All 11 contributions to the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022

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Tue 26th Oct 2021
Mon 7th Feb 2022
Northern Ireland (Ministers, Elections and Petitions of Concern) Bill
Commons Chamber

Consideration of Lords amendments & Consideration of Lords amendments
Tue 8th Feb 2022
Royal Assent
Lords Chamber

Royal Assent & Royal Assent & Royal Assent & Royal Assent

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

2nd reading
Tuesday 22nd June 2021

(2 years, 11 months ago)

Commons Chamber
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[Relevant document: Second Report of the Northern Ireland Affairs Committee, Session 2019-21, New Decade, New Approach Agreement, HC 160, and the Government response, HC 792.]
Second Reading
13:36
Brandon Lewis Portrait The Secretary of State for Northern Ireland (Brandon Lewis)
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I beg to move, That the Bill be now read a Second time.

If you will allow me, Madam Deputy Speaker, before I talk about the Bill I wish to congratulate our parliamentary colleague the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on becoming the leader of his political party. I look forward to working with him in the period ahead. I also hope, as I am sure all colleagues do, that he has a very enjoyable week, not just with the introduction to becoming leader-elect of his party, but with the very big family event, a wedding, with which we all wish him well.

The United Kingdom is a family of nations and a Union of people. We share cultural, social and economic ties that bring us together, and make us more prosperous and secure. This Government believe in upholding the constitutional integrity of this great nation. Our Union is strongest when its institutions work well, work together and deliver real change on the issues that matter. In Northern Ireland, that means we need properly functioning institutions, both in Stormont and in Westminster.

Sammy Wilson Portrait Sammy Wilson (East Antrim) (DUP)
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Will the Secretary of State give way?

Brandon Lewis Portrait Brandon Lewis
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I will make a bit of progress, then I will give way to colleagues.

In this centenary year for Northern Ireland, today marks exactly 100 years since the opening of the first Northern Ireland Parliament, at Belfast city hall, by King George V and Queen Mary. This momentous occasion saw locally elected politicians for the first time, following the first Northern Ireland general election, so it is fitting that this Bill has its Second Reading today, of all days. The Bill will strengthen the democratic institutions of Northern Ireland and serve to build the people of Northern Ireland’s faith in their locally elected representatives in the Northern Ireland Assembly. As this House knows, the Northern Ireland Executive and Assembly were restored on 11 January 2020 when all five of Northern Ireland’s main political parties came together under the New Decade, New Approach agreement. I wish to pay tribute to my right hon. Friend the Member for Skipton and Ripon (Julian Smith) and the hon. Members for Foyle (Colum Eastwood) and for North Down (Stephen Farry) for their dedication and persistence, with others, in pursuing this deal, which was a great achievement after three years of impasse.

Prior to the restoration of the institutions, there had been no functioning Executive since January 2017. The absence of a devolved Government for such an extended period had a detrimental effect on the people of Northern Ireland. We saw the first strike in the 103-year history of the Royal College of Nursing over pay and staffing levels. There was ongoing action by teaching unions, and schools were not co-operating with the inspections in a dispute over teacher pay and workload. Essential infrastructure projects, including the York Street interchange and investment in waste water infrastructure, which was at capacity in many places across Northern Ireland, could not be progressed.

I think we can all agree that a pandemic with no Executive would have been unthinkable. I was pleased therefore to see the First Minister and Deputy First Minister nominated last Thursday, following this Government’s intensive engagement with the party leaders. However, the events of last week also highlight how important it is for everyone to deliver on their commitments under the New Decade, New Approach agreement. It is disappointing to see that a way forward has not yet been found to implement all of the parts in full, which is why the Government have, for example, promised to deliver the balanced culture package that was agreed in NDNA through Parliament if it has not been taken forward by the Northern Ireland Executive by the end of September. I wish to reiterate and be very clear that our strong preference and desire is for this to be delivered in the appropriate place by the devolved institutions.

Sammy Wilson Portrait Sammy Wilson
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I am sure that people back home will be amazed at the honeyed words of the Secretary of State. He talks about the constitutional integrity of the United Kingdom and the importance of the devolved Administration and devolved institutions, and yet he has interfered, and has just announced that he is prepared to interfere once again, in the institutions in Northern Ireland in a way in which no Secretary of State would dare to do in Scotland or Wales. Does he not accept that, for the Unionist community, this continual interference in the institutions at Stormont at the behest of Sinn Féin is not an annoyance but something that enrages people?

Brandon Lewis Portrait Brandon Lewis
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I have to say that I do not recognise the principle on which the right hon. Gentleman outlines his point. The reality is that the UK Government are the Government of the United Kingdom. The UK Government are a co-guarantor of and signatory to the New Decade, New Approach agreement, which the parties themselves negotiated and agreed. For example, the parties agreed between themselves the cultural package, which has had a lot of attention in the past week. We have a duty to ensure that, for all the people of Northern Ireland, these things are delivered in a way that is set out and agreed by the parties. I would much rather see that delivered by the institution itself. That is why we have given time and space for the institution to be able to move things forward. It is also right that, on a range of issues, including women’s healthcare, women in Northern Ireland have access to the same good-quality healthcare as women across the United Kingdom. I make no apologies for making sure that we the United Kingdom Government are representing people across the whole of the United Kingdom.

Mark Harper Portrait Mr Mark Harper (Forest of Dean) (Con)
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I am grateful to the Secretary of State for giving way. He has referred to the position across the United Kingdom. Obviously, like him I am a strong Unionist, but there is one thing that I am concerned about. I heard this morning that the outgoing leader of the Democratic Unionist party, Mr Edwin Poots, has said in a number of media interviews that he has received assurances from the Secretary of State about changes to the Northern Ireland protocol. I know that that is now a story. Is the Secretary of State able to say anything to the House about whether that is true or not? Obviously, it will be of great interest to people not just across Northern Ireland but in constituencies such as mine, which have understandable problems with shipping goods across our United Kingdom.

Brandon Lewis Portrait Brandon Lewis
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My right hon. Friend makes a very important point. There are two points. First, at the end of last week some of Edwin Poots’s colleagues commented about an announcement. Actually, the announcement was not really an announcement; it just confirmed that we had requested from the European Union an extension to the grace period, particularly for chilled meats from 1 July. I said on the Floor of this House last week, and I am very happy to reconfirm it today, that, as the Prime Minister himself has outlined, we do have issues with the Northern Ireland protocol. Like others across this House, my right hon. Friend the Member for Forest of Dean (Mr Harper) has, quite rightly, outlined an example of those challenges for consumers and businesses in Northern Ireland. We are not going to allow that to continue. We want to get this corrected so that consumers and businesses in Northern Ireland can continue to function as a full and integral part of the United Kingdom.

As I said at this Dispatch Box just last Wednesday, and as the Prime Minister has said both publicly and at the Dispatch Box, we will do what we need to do to make sure that we deliver for the people of Northern Ireland, and we will take nothing off the table in that regard. Obviously, we will wait to hear from the EU, and we want to work this through with it with regard to the request we made last week.

The Northern Ireland (Ministers, Elections and Petitions of Concern) Bill will deliver elements of the New Decade, New Approach deal relating to the governance of the Executive and within the competence of this House. That includes reforms to sustainability of institutions, updating the ministerial code of conduct and reforming the petition of concern mechanism. The UK Government and this Parliament have a duty to ensure good and functional governance in Northern Ireland. Today, through this Bill, we discharge that duty by bringing forward measures that will help continue to enhance the public’s confidence in the Northern Ireland institutions through increased transparency and improved governance arrangements. Those measures will ensure that the institutions will be more sustainable, more resilient and for the benefit of the people of Northern Ireland.

Let me turn briefly to the contents of the Bill. In short, we are legislating, first, to provide up to four six-week periods for the appointing of new Northern Ireland Ministers, including the First Minister and Deputy First Minister, after an election; secondly, to provide up to four six-week periods for the appointing of a First Minister and Deputy First Minister after they cease to hold office—for instance, in the case of one of them resigning; thirdly, to provide, if the First Minister and Deputy First Minister cease to hold office, that other Northern Ireland Ministers remain in office for a maximum period of 48 weeks after the First Minister and Deputy First Minister ceased to hold office, or for 24 weeks following any subsequent election, whichever is the shortest, unless the Secretary of State triggers the sufficient representation provisions.

The Bill will implement reforms to the petition of concern mechanism in the Assembly, including a new 14-day consideration period before a valid petition can be confirmed; it will require petitioners to come from more than one Northern Ireland political party; prevent the mechanism from being used for matters that concern the conduct of a Member and for Second Reading votes on a Bill; and it will update the code of conduct for Northern Ireland Ministers in accordance with a request from the Northern Ireland Executive and in line with the New Decade, New Approach transparency and accountability recommendations.

Mark Harper Portrait Mr Harper
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The Secretary of State has rightly set out the scope of the Bill. May I press him on another matter that was referred to in the New Decade, New Approach agreement? He knows that the prosecutions of soldiers as part of the legacy of the troubles in Northern Ireland is of great concern. I shall not press him on the content of the legislation, because I know that work is under way, but may I press him a little on the timing? Many Members are eager for that work to proceed at pace so that we can resolve these issues, and many are keen for that to happen before the House rises for the summer. Is the Secretary of State able to give the House any indication today of the Government’s latest thinking on when they may be able to bring that legislation—if, indeed, it is separate legislation—before the House?

Brandon Lewis Portrait Brandon Lewis
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My right hon. Friend asks a fair question—that is part of New Decade, New Approach, so it is a fair point. I outlined, I think in February or March this year, my ambition to bring something before the House before the summer recess; I still have that ambition, but I should also say clearly that we are determined to do what we have always said we would do, which is to engage with our partners—not only the Irish Government but the parties in Northern Ireland and victims’ groups, because whatever we bring forward has to have victims absolutely at its heart. We have to deal with information recovery and truth and reconciliation, because whatever we bring forward has to work properly for the people of Northern Ireland, so it is right that we take the time to do that properly and methodically, which I am looking forward to doing. We will do that and we are still absolutely committed to ensuring that we deliver on our manifesto pledge to the veterans community. I will touch on that a little more in a few moments.

Colum Eastwood Portrait Colum Eastwood (Foyle) (SDLP)
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Will the Secretary of State explain very carefully for some people in this House who do not seem to understand that, if an amnesty is given to anybody—for example, if an amnesty is given to soldiers who maybe committed murder on the streets of Derry, Belfast or anywhere else—an amnesty would have to be given to everyone, including IRA members, Ulster Volunteer Force members and Ulster Defence Association members?

Brandon Lewis Portrait Brandon Lewis
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As I said before, we want to ensure that we put forward a package that works for all of Northern Ireland and genuinely allows it a chance to move forward. One thing that we have heard consistently from civic society is a desire to move forward. The hon. Gentleman is absolutely right to say that whatever we do has to be balanced across the whole community. As I say, I will come back to that in separate legislation in due course—we are not dealing with legacy legislation today.

Sammy Wilson Portrait Sammy Wilson
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Just so that no one is misled by the previous intervention, will the Secretary of State confirm that no one has sought an amnesty for soldiers? All that has been asked for is that soldiers who have already had cases investigated—some up to three times—should not be trailed through the courts again for political reasons by those who are attempting to rewrite the history of the troubles.

Brandon Lewis Portrait Brandon Lewis
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As I say, we are not dealing with legacy today, so I will resist the urge to go too much into that, but I will say that the right hon. Gentleman is correct in the sense that we have been clear that we are committed to ending the cycle of re-investigations. We also have to accept that, as we have all seen recently, the current situation is not serving anybody. It cannot be right that, as we saw in the Ballymurphy case, it has taken 50 years for people to get information. Equally, it is inappropriate and wrong to see people go through a cycle of investigations. We have committed to end that and we will do that.

Let me turn to the specifics of the Bill before the House. Clause 1 amends the Northern Ireland Act 1998 to extend the period of time available to appoint a First Minister and Deputy First Minister after the resignation of either or after the first meeting of the Assembly following an Assembly election. Currently, the period for ministerial appointments is only 14 days from the first meeting of the Assembly after an election, and seven days after the First Minister or Deputy First Minister ceases to hold office. The Bill will extend the period for filling ministerial offices to a six-week period that is automatically renewed—unless the Assembly resolves otherwise on a cross-community basis—for a maximum of three times, up to a total of 24 weeks.

Stephen Farry Portrait Stephen Farry (North Down) (Alliance)
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It will not have lost anyone’s attention that we are discussing the extension of the sustainability mechanisms at a time when there is huge instability in the Assembly, when we have had First Minister resignations and changes and multiple seven-day cliff edges potentially emerging. Can the Secretary of State take this opportunity to stress that all parties in Northern Ireland should act responsibly in relation to the institutions, not make any threats to collapse them, and should work to deliver on the core issues of health, education and jobs, on which people urgently need action over the coming months?

Brandon Lewis Portrait Brandon Lewis
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The hon. Gentleman is absolutely right. Our focus, for all of us, as I have outlined over the last week or two, should be on making sure that we have stable institutions that can deliver on issues such as health, education and infrastructure, among other things, for the people of Northern Ireland. That is what I believe the people of Northern Ireland want to see, and it is why I was so pleased that, to be fair, the parties in Northern Ireland were able to resolve this issue within three days and have stability, with a First Minister and Deputy First Minister having been nominated.

By extending those periods, the Bill will allow more time for discussions between the parties and for the Secretary of State to facilitate a resolution before they come under an election duty. It also allows for Northern Ireland Ministers to remain in post after an election until the end of the period for appointing new Ministers. That change will again allow for greater continuity in decision making.

Under clause 2, Ministers will no longer cease to hold office after the election of a new Assembly. It provides for up to a maximum of 24 weeks after an election or a maximum of 48 weeks since a functioning Executive was in place—whichever is the shorter—in which Ministers may continue to hold office, subject to those offices otherwise being filled or if a Minister is not returned as a Member of the Assembly. The measure will ensure that institutions become more sustainable and more resilient. Currently, the Secretary of State is required to propose a date for an Assembly election where the Assembly resolves to dissolve itself, or where the period for appointing Northern Ireland Ministers or a First Minister and Deputy First Minister expires without those offices being filled.

Clause 3 allows the Secretary of State to certify or call an Assembly election at any point after the first six weeks in the period for filling ministerial offices if the Secretary of State considers that there is not sufficient representation among Ministers to secure cross-community confidence in the Assembly.

Clause 4 substitutes a revised ministerial code of conduct that sets out expectations for the behaviour of Ministers, including provisions around the treatment of the Northern Ireland civil service, public appointments and the use of official resources and information management. Those updates are in the reserved or excepted space and are unable to be progressed through the Assembly. The UK Government are bringing those changes forward at the request of the then First Minister and Deputy First Minister on the agreement of the Executive.

Clause 5 reforms the petition of concern mechanism to reduce its use and to return it to its intended purpose as set out under the Belfast/Good Friday agreement—a safeguard to ensure that all sections of the community can participate and work together successfully in the operation of the Northern Ireland institutions and are protected when the Assembly legislates, and to prevent one party from blocking measures or business. The mechanism, which was given effect in the Northern Ireland Act 1998, allows MLAs to lodge a petition against a matter that the Assembly is voting in, providing that they can gather at least 30 signatures.

A successful petition means that the relevant matter is to be passed on a cross-community basis rather than on a simple majority basis. The Bill will require the petitions to be signed and confirmed 14 days later by at least 30 MLAs from two or more political parties, which will prevent one party from being able to block measures or business that would otherwise have cross-community consensus. These specific changes and commitments from the Northern Ireland parties aim to reduce the use of the mechanism to the most exceptional circumstances and as a last resort only, having exhausted every other available mechanism.

The Government are bringing forward those changes through Westminster legislation as they are excepted matters. Separate legislation seeking to make provision for legacy commitments made in the New Decade, New Approach deal—to go back to the comment made absolutely correctly by my right hon. Friend the Member for Forest of Dean—will be introduced separately. This Bill will implement aspects of the New Decade, New Approach deal, which the parties agreed to in January 2020. The provisions in the Bill seek to reform the sustainability of the institutions, update the ministerial code of conduct and reform the petition of concern mechanism.

We will always be steadfast in maintaining the importance of Northern Ireland’s place within the United Kingdom. We are working closely with the Northern Ireland Executive and the Irish Government to progress the delivery of all the commitments in the New Decade, New Approach deal.

By introducing this Bill now, we are delivering on those promises, but it is ultimately up to the parties to come together. Both the Irish Government and the UK Government will continue to stand together and stand ready to support them, as we did in bringing about the package of measures under New Decade, New Approach. Until then, the Bill is a reminder that the UK Government will always uphold our responsibilities for political stability and good governance in Northern Ireland. I commend it to the House.

13:55
Louise Haigh Portrait Louise Haigh (Sheffield, Heeley) (Lab)
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I join the Secretary of State in congratulating the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on his appointment as leader of the DUP and I also look forward to working with him. I thank the Secretary of State for setting out the measures in the Bill and for the regular updates he and the Minister have provided to me and my office over the past few weeks.

The instability in recent months has been unsettling for all of us who cherish the Good Friday agreement and who believe that its institutions and the principles that underpin it represent the best way forward for Northern Ireland, but, as ever, that instability has been most keenly felt by the people of Northern Ireland. They need a stable, functioning Executive to meet the enormous health and economic challenges facing Northern Ireland—a third of the entire population languishing on health waiting lists; nearly 300 children without a post-primary place for next year’s term; and, of course, recovery from covid. For all political leaders in Northern Ireland, that must be the priority in the coming days and weeks. It is partly for that reason that the Labour party supports the Bill before the House today.

We welcome attempts to safeguard power sharing and improve the sustainability of the Executive and the Assembly. Although we will suggest amendments to tighten up provisions in the Bill, the lessons from the past should offer a clear warning to all of us. Institutions are much easier to collapse than they are to get back up and running. Recent events could scarcely have provided a clearer example of why the provisions contained in the Bill are necessary.

Precisely because we support the provisions in the Bill, which were agreed through New Decade, New Approach more than 18 months ago by the former Secretary of State, the right hon. Member for Skipton and Ripon (Julian Smith), I want to make clear the mistake I believe the Secretary of State has made in leaving it until now for this crucial piece of legislation to be considered. It is simply not credible that this was the first moment that parliamentary time allowed for the Bill to be considered, and it is unclear why we are debating these measures only now, in the midst of political turmoil in Northern Ireland.

The instability we have seen in recent months, which the Bill in part attempts to address, has not emerged out of thin air. I fear the delay in bringing forward the Bill is symptomatic of the Government’s approach to Northern Ireland.

Too often over the past decade, Northern Ireland has been an afterthought here. As the consequences of decisions taken by Ministers have played out in Northern Ireland, the Government have frequently behaved as though they have found themselves at the scene of an accident entirely beyond their control. Too often, Northern Ireland has been overlooked and the work to deliver on the promise of peace allowed to stall.

Nowhere is that more striking than in the Prime Minister’s actions. He was repeatedly warned of the consequences for the fragile peace process of his Brexit deal and he chose to ignore those warnings. There is a direct line from his dishonesty over the deal to the instability we see in the institutions today.

It would be foolish to assume that the provisions of the Bill alone can guarantee stability. They cannot. To do that, Ministers must address the effects of their own actions, which have shaken faith in Northern Ireland. Progress has stalled and instability has grown. The Belfast/Good Friday agreement has been treated as a crisis management tool rather than as the vehicle through which lives and communities can be transformed.

Although Labour supports the Bill, we believe there are several missed opportunities for the Government to refocus on delivering on the promise of peace, which they have allowed to stall. We will seek to bring amendments to push for the full implementation of the Government’s commitments under the New Decade, New Approach agreement, which, like the Bill, have been delayed for too long.



The same principle is true of the undelivered promises of the Good Friday agreement on a Bill of Rights, integrated education and housing, women’s rights and giving communities a real say in decision making. They were the essence of the Good Friday agreement and the shared future that it imagined, but progress on them has been virtually non-existent over the past decade. We do not believe that the instability that we see can be separated from the failure to deliver on such commitments. Above all, the way to guarantee stability is to demonstrate that commitments made will be honoured and that Westminster is still prepared to step up and honour our side of the bargain.

We will further seek to tighten up the provisions on the caretaker institutions to prevent misuse and promote good governance. With that in mind, we have concerns about what might be described as some of the constructive ambiguities in the Bill and some of the unintended consequences that may follow. Our concerns fall into two categories: those relating to a caretaker Executive and those relating to the vetoes available within the Executive.

First, on the provisions allowing for a caretaker Administration following an Assembly election or the resignation of the First Minister or Deputy First Minister, the scope of statutory powers was recently significantly expanded. Although the Government talk about caretaker Ministers being able to operate only “within well-defined limits”, those limits are in no way outlined. That leaves open a broad statutory remit and does not provide the necessary safety catch to prevent caretaker Ministers from exercising powers not envisaged in the Bill. I would be grateful if the Minister responded to that point or if we could address it in Committee.

Secondly, the Bill deals with the petition of concern and its use and misuse. We absolutely support this limited reform, which will return the mechanism to its original intention, but the Bill is silent on the other effective vetoes that have been used to block agenda items from reaching the Executive or to prevent discussion on cross-community issues of concern. If the petition of concern reform was intended to prevent it from being misused by a single party to block progress, it would be a mistake to allow other vetoes to persist that allow for much the same outcome.

Finally, we hope to see some movement from the Government on dual mandates to allow for greater flexibility, potentially on a short-term basis. I reiterate our support for the limited measures in the Bill, but I make it clear that this is only a start. There is much, much more work to do.

Rosie Winterton Portrait Madam Deputy Speaker (Dame Rosie Winterton)
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We now go to the Chair of the Select Committee on Northern Ireland Affairs.

14:01
Simon Hoare Portrait Simon Hoare (North Dorset) (Con) [V]
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I welcome the speech made by my right hon. Friend the Secretary of State. I particularly echo his welcome and congratulations to the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on his assuming the office of leader of the Democratic Unionist party at what we know is a very difficult time for the politics of Northern Ireland. I know that the House will wish him well as he begins that task.

I also welcome the fact—probably overlooked, but long called for by the Northern Ireland Affairs Committee—that this is not emergency legislation. It is nice to have a Northern Irish Bill being dealt with in normal parliamentary time. That is important, and I think that it says quite a lot about how we are dealing with these issues. It also provides an opportunity to remind ourselves that the Good Friday agreement is a process, not a monolithic event or structure that is beyond change or tampering. It was supposed to be an iterative, organic process; it is important that we remind ourselves of that.

It is sad, I suppose, but we need to remind this and future generations of the importance of peace and of the horror before the Good Friday agreement was brought into being. I hope that the Secretary of State, the Government and those who are serving in Stormont refocus as they move forward on ensuring that, within the prosperity agenda of the Good Friday agreement, peace is the bedrock and the widest possible delivery of the benefits of prosperity are felt throughout the communities of Northern Ireland.

I also welcome what my right hon. Friend the Secretary of State said in response to an intervention about legacy. I welcome his affirmation that he will take a victim-centric approach, and I was encouraged to hear him talk about the need to ensure that the Republic and those in the north are taken along in the process rather than having an impost made on them. I know that the timetable is tight and that there is a lot in his in-tray, but I encourage him to follow and adhere to the commitment that he made to me some months ago on the Floor of the House that we will see what he is proposing before the House rises for the summer recess and possibly have the opportunity to debate it.

Devolution, in its operation, is not a political equivalent of a Woolworths pick and mix. It will not and cannot work if those who are charged with its care and delivery duck difficult decisions and abdicate responsibilities. In part, this Bill is there to address that, as quite a lot of the New Decade, New Approach process is supposed to as well.

I echo those who have said—I think my right hon. Friend the Secretary of State said this pretty clearly—that if there ever is a time to collapse the Executive, although I am never convinced that there is, now is most certainly not it. I say that not least because it would let down the people of Northern Ireland who were so badly harmed by a three-year interregnum and a pressing of the pause button on the delivery of public service reform and better services for those who rely on them. Now is not the time to embark on political blackmail—“Do this or we will”, or “Don’t do that and we won’t.” In reference to the pretty gruesome statement made by the Loyalist Communities Council at the tail end of last week, I also say that now is not the time for those who are unelected and who have never faced the tests and trials of the ballot box to start issuing ultimatums to those who do take up the baton of public service and try to deliver a better life for the communities of Northern Ireland.

I welcome the Bill, I think. I say “I think” because we have here four six-week periods, and then another four six-week periods. These elongated timeframes are understandable, but I occasionally worry that we will just feed the beast of instability by putting in place longer and longer periods and opportunities for people to “play around”, which we would not see with regard to the operation of devolution in Cardiff or Edinburgh, and at some point we will have to wrestle with that. If we are to make devolution a normal thing in Northern Ireland that can deliver, we need to try to weed out and cut away all the props that allow people to pause and think and so on. None the less, we are where we are. We understand the tensions and we understand the history, which is why I shall support the Bill.

The changes to the petition of concern process are to be hugely welcomed, and that has been recognised across the House in speeches made by those on the two Front Benches. Again, that process was a good intention initially, but it got played. When a system gets played, and it does not look right and it does not smell right, then it needs to be changed, and I congratulate the Secretary of State on wrestling with that.

I share the Secretary of State’s hope that it will be a fully functioning and vibrant Stormont that can deliver the cultural package that everybody signed up to in New Decade, New Approach. If it does not or cannot, or if that becomes another insurmountable obstacle to the delivery of other issues, then the Government are absolutely right to take up the mantle and to legislate for it here in the House of Commons. I hope and pray that we do not have to and that it is dealt with by those charged to do so in a devolved environment, but if not, the Government are right to do it. If one of the by-products of that is taking off the table a nut that nobody was prepared to crack in Northern Ireland because one or another thought it was too difficult, that would be a good thing because it would remove another reason for somebody to take their ball home and not play.

This is an important Bill, but we should not just view it in isolation. There is a lot from which it flows, and there is a lot that flows from New Decade, New Approach, which is not addressed in this Bill. None the less, we know that the Secretary of State is up for the task. There are huge issues ahead. We have to deal in a proactive and sensible way with this protocol.

Let me close by making an observation to those on my party’s Front Bench. We are asking the parties that have signed up to New Decade, New Approach to adhere to it in full—not to cherry-pick or to do the things that are more pleasant or easier first, but to take it as an entire package and to deliver and implement it. Why can we make that legitimate demand of them? Because they signed up to it and they agreed to it. When the Government perhaps do not play as fixedly to that rule vis-à-vis the protocol, with some of the things that some Ministers have been saying, it should be of no surprise if those who want to try to wriggle off the commitment hook pray in aid some of those observations of Ministers as their defence and their cover.

I wish the Bill well. All of us are very conscious of the environment in which we are holding this debate and of what is going on across Northern Ireland, with so many big issues. Let us all, coming from different traditions, different strands of thought, different histories and different communities, recommit to the golden thread of motivation in political life, which is public service. We are here to serve the people who send us to this place, just as those who are elected to Stormont are there to serve the community of Northern Ireland. At this crucial moment, let nobody dodge that. Let us hope that we can all rise to the occasion and meet the needs and aspirations of the people we serve.

14:11
Richard Thomson Portrait Richard Thomson (Gordon) (SNP)
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Let me begin by offering my congratulations and those of my party to the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on his elevation to be leader of the Democratic Unionist party.

This is a very important Bill in the sense that it is required to deliver on aspects of the New Decade, New Approach commitments. There are parts of that agreement that can and, I would argue, should be delivered by the Northern Ireland Executive and the Assembly themselves. I am sure that other speakers will begin to go over that ground in more detail, but I do not intend to do so myself. I will seek to confine my remarks to the measures in the Bill that can only be implemented by this place.

Before I do, I would like to offer a perspective from Scotland. There has been much comment about devolution. The Chair of the Select Committee said that devolution is neither a pick and mix nor a picnic. The Prime Minister, who clearly regards himself as a success, has notoriously described devolution as a failure. I think that most people in Scotland, and indeed further afield, would feel that the Prime Minister has got these things the wrong way round altogether.

Nevertheless, as with all Governments, there have been times when devolved Administrations, including the Governments in Scotland, of whatever political stripe, have acquitted themselves well and times when they have not—times when people have been left wondering why some things were not being done or, in some cases, why they were being done at all. There have been occasions when Parliaments have failed to pass budgets or when Governments have unexpectedly found themselves in a minority on an issue, sometimes within the Parliament and sometimes outside it. Occasionally, in the early days of devolution, there were also crises on education policy, aspects of social policy and even matters of personality and who held office, which left the institution somewhat battered and exposed in the harsh glare of the media and, at times, in its public standing. While I do not pretend that there is any scale of comparability, I would hope, viewing the situation from Scotland, that we can look at the progress that is being made in Northern Ireland with some kind of insight into the politics that goes on.

Over that time, there were strong opinions, deeply felt and sometimes trenchantly expressed, within, between and beyond political parties, some of which, as I say, led people to question the value of the institutions themselves. However, across the piece, politicians did what they had to do, which was not to ignore differences or try to come together on a false consensus, but instead to talk, to listen, to understand, to take responsibility and ultimately to move forward and start finding the much-vaunted Scottish solutions to Scottish problems instead of always looking to this place to have them sorted out for us by Governments who, very often, we did not elect. It is important that politics continues, and sometimes in order for politics to continue, all that is required is to give politicians the political space they need to be able to have the discussions they need to have with colleagues, to negotiate inside and outside the parties and between the parties, and sometimes even to reflect more broadly on whether public opinion on some issues is really where it has always been assumed to be. Who takes the decisions, and where and why, is obviously hugely important, but it is still important that the decisions that need to be taken are taken.

It is telling that in the opening of the “New Decade, New Approach” document, so much space was taken up with bread-and-butter issues such as resolving the long-standing issues around the delivery of healthcare and healthcare entitlements, around reforms to the education system and around the need to press ahead with capital expenditure and infrastructure, all of which had backed up during the absence of self-government. So, while I hope I do not underestimate for a single moment the sensitivities involved in a climate of power sharing, or the importance of being in a position to match words with deeds, I believe that the Bill will enhance the transparency and accountability of the institutions and that it is significant for what it sets out to do.

Politics may abhor a vacuum, but there is no question but that trying to bring matters to a head too quickly in the face of short and sometimes artificial and meaningless deadlines can lead to problems all of their own. For that reason, I believe that allowing an extended period, as the Bill seeks to do, for the appointment of a First Minister and Deputy First Minister, whether in the event of their ceasing to hold office or in the aftermath of an election, is an important step. Similarly, allowing Ministers to remain in office after an election to allow for some limited but necessary political direction to be provided over that period is an important mechanism for ensuring continued normalcy, not only to ensure the continuity of government but to assist the political process in the formation of new Governments. Similarly, while the petition of concern process has been an important consociational mechanism, the time is surely right to begin to narrow the scope of its potential usage while broadening the support required in order for it to be brought to bear. Also, I believe that an updating of the code of conduct for Ministers to enshrine the Nolan principles will be opportune.

As I have said, this is an important Bill. The people of Northern Ireland deserve stability and, with it, the ability to have decisions taken on their behalf by the Assembly that they elect and by the Executive who are there to govern on their behalf, and so long as these proposals enjoy the broad support of the people of Northern Ireland and the parties of Northern Ireland, they will have our support too.

14:17
Julian Smith Portrait Julian Smith (Skipton and Ripon) (Con)
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I rise to support the Bill, and I would like to pay tribute to the MLAs and to the Northern Ireland Executive for the role that they have played during the coronavirus crisis. There were lots of reasons why I was delighted that the Executive and the Assembly got up and running last January, but that was before we knew about covid. To have had no Government during this period does not bear thinking about, and all my thoughts are with the families and friends of those who have lost loved ones across Northern Ireland as a result of these tragic 18 months.

It is worth pointing out that one of the exciting things in the restoration was the fact that all five parties engaged with it. Nichola Mallon, Conor Murphy, Robin Swann, Naomi Long, Michelle O’Neill, Arlene Foster and all the other members of the Executive got stuck in during this period, and that has been really important. I would also like to pay tribute to Diane Dodds, Peter Weir and Gordon Lyons, who left the previous Executive. Let us see whether they will be in for just a short period on the Back Benches; they—or one of them—could well be back very soon. I also join colleagues who have sent congratulations to Jeffrey Donaldson on his election as DUP leader. As well as dealing with the covid crisis, the Northern Ireland Executive have done positive work over the past 18 months on infrastructure, on city deals, on climate change and on getting the finances under control—the Fiscal Commission and the Fiscal Council have been set up—so although the last year has been very bumpy at times, much has been achieved by this group of people.

This Bill does not contain components of NDNA that have been in the media recently—namely, the cultural package and the protocol. While I understand there are parties here that want to propose amendments to the Bill to enact the cultural components of NDNA, it is in my view important that that should be the final resort. The cultural components of NDNA are clearly a matter for the Assembly. While I would support a vote here in extremis, I believe that, following the agreement between the two main parties and the Secretary of State last week, we should encourage the new Executive and the Assembly to enact those themselves.

Many hours and days were spent agreeing these and the other provisions of the NDNA agreement, and I would make two broad points. First, it is wrong for some to claim or to report that there is an Irish language Act in the NDNA agreement; there is not. Negotiators wanting an Irish language provision won important language provisions, but not the all-encompassing Act that was their initial goal. Much time was spent by negotiators on the other side of the argument who wanted to balance and to limit the scope of the provisions both in legislative terms and in practical terms, particularly for signage and public signs. I make no comment on the merits or otherwise of this, but there is no Irish language Act in the New Decade, New Approach agreement—rather a series of carefully nuanced cultural provisions to reflect and represent all communities in Northern Ireland.

Paul Girvan Portrait Paul Girvan (South Antrim) (DUP)
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I thank the right hon. Member for giving way, and it is good to highlight that. Unfortunately, the media and many political pundits keep peddling this line, and very little has been done in relation to giving confidence to the Unionist community. In fact, many within the Unionist community believe that devolution is dead. Those who have driven around Northern Ireland will have seen the many banners hanging around lampposts telling us that devolution is dead and the Belfast agreement is null and void. The messages that have come forward from this Government in the last year and a half have not given any confidence to the Unionist community. I am glad to hear the right hon. Member making mention of the issue of no Irish language Act being included in NDNA.

Julian Smith Portrait Julian Smith
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Well, I confirm that it is not there.

Colum Eastwood Portrait Colum Eastwood
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We will keep checking back as to what actually happened during those talks with the right hon. Member, who committed an awful lot of time and did an awful lot of good work to ensure that we actually got devolution back. Can I just ask him, because we have had confirmation that Sinn Féin did not actually negotiate an Irish language Act, despite what the claims have been, to confirm to me that this legislation going through the House today was actually a demand of the DUP, so the DUP did get some stuff out of NDNA?

Julian Smith Portrait Julian Smith
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I would argue that all parties got a lot, and all parties negotiated hard, including the hon. Member’s own, and of course the DUP.

The second item that is not part of this Bill is the Northern Ireland protocol. I note that the Government have now asked for an extension of the grace period, and I am pleased to see that the EU response looks positive. I called last year for the Government to negotiate a grace period for the whole of 2021, and I believe now that they should cut a deal around the offer by the EU of a veterinary zone—a temporary veterinary zone. I would encourage a compromise on both sides to meet halfway and to ease the many practical complaints from Northern Ireland business. I am pleased that the rhetoric is easing, and I would encourage everyone to continue to dial it down.

Ian Paisley Portrait Ian Paisley (North Antrim) (DUP)
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Indeed, in the interests of dialling it down, as the right hon. Member quite rightly says, does he regret that he made a commitment to the Northern Ireland Affairs Committee in October 2019, when he made it clear that the protocol would be “light touch”? Does he agree now that that was not the case, and that in fact the heavy-handed approach of the protocol now, in the words of the new Economy Minister, concerns him because of the “commercial discrimination” that now appears to exist in Northern Ireland?

Julian Smith Portrait Julian Smith
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I strongly believe that the protocol can be light touch, but it does require significant amounts of practical working behind the scenes and not politicising every particular issue. I strongly believe that can happen, and I believe it will happen. I would urge both the EU and the UK Government to continue a positive, practical dialogue through the Joint Committee.

The Bill provides for a number of important and practical measures. It ensures more time to work through the creation of an Executive should there be Dissolution after an election. The 24 weeks for things to be worked out in a positive way is important, because we must avoid the three-year impasse that we have had before. The petition of concern provisions came from hard-fought negotiations by the Alliance, the SDLP and the Ulster Unionists, to ensure that both the major parties did not continue to abuse the veto mechanism, as had historically happened. Although provisions in the Bill do not go as far as those parties had hoped, they contain practical and positive improvements that make the petition of concern more difficult to abuse. The UK Government have also agreed in the overall agreement to review the usage of the petition of concern, and lay a report before Parliament every six months.

Finally, the Bill will ensure stricter adherence by Ministers to the Nolan principles and to higher standards in public life, following various scandals such as the renewable heat initiative scandal, and others, and address the misuse of public money and the need to maintain high standards in ministerial office.

We have heard reference to the significant tension in the politics of Northern Ireland over the past weeks and months regarding the protocol, language, leadership putsches and leadership contests. There have been burning buses, marches and demonstrations. The headlines of the past few months do not represent my experience of Northern Ireland. Whether as a result of what people have been through, its contested status, or the beauty of its land and the skills, capabilities and intelligence of its people, Northern Ireland is a unique part of the world. It is a great place to live, an exciting place to do business, and it is full of positivity and dynamism.

There has been much talk about a new Ireland, a united Ireland, and threats to the Union in recent weeks, but the high probability is that the Good Friday agreement will maintain the status quo for many years to come. Successive UK Governments have said that they will respect that agreement, and that the provisions in it, particularly those on the Executive and the Assembly that we are discussing, will have ongoing support from this House. As they have shown during this covid crisis, this Government will continue to do that for the foreseeable future.

If that is the case, the noise and headlines of the past few months risk leading many people down paths that will not come to pass, and missing the massive opportunities that the GFA hybrid situation provides, such as all-Ireland opportunities for infrastructure and climate change, east-west opportunities for work and progress on health and other issues, and huge opportunities to maximise Northern Ireland’s position coming out of the pandemic. It also risks missing the opportunities provided by the protocol, and not maximising the big opportunities of power sharing, and how that can deliver on the issues that matter most to the majority of Northern Ireland citizens, such as improving waiting lists, inward investment and jobs, education, coming out of the pandemic and enhancing incomes and life chances. There is the first Northern Ireland Youth Assembly in years, and a fantastic new head of the Northern Ireland civil service, whose obsession is innovation and how to make Northern Ireland more competitive globally, given its position on the cusp of the EU and UK, is about to take power at Stormont.

The UK Government cannot guarantee a Unionist First Minister for ever more, and they cannot change the fact that they signed an international agreement to exit the EU, which contains issues that need to be resolved. We in this House must be clear and honest about those facts. However, the Government can and will support the Assembly and Executive in supporting and developing this important and unique part of the UK, and in doing so they create the best possible protection of the Union. The Bill contains important technical amendments to the Northern Ireland Act 1998, to ensure that the best vehicle for doing that, the devolved Northern Ireland Assembly, continues to prosper. It also reconfirms today that the Good Friday agreement remains the only show in town.

14:29
Sammy Wilson Portrait Sammy Wilson (East Antrim) (DUP)
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First, let me make it clear from the outset that the Democratic Unionist party will be supporting the Bill’s Second Reading. That is not because, as the right hon. Member for Skipton and Ripon (Julian Smith) seemed to suggest, the Bill is somehow or other a Unionist game and an exclusively Unionist demand. There are provisions in the Bill that seek to ensure that the Assembly cannot be torn down by those who want to see instability in Northern Ireland. Indeed, for three years they ensured that there was instability and no Assembly. We wanted those changes to ensure that that could not happen again, not for the benefit of the DUP or the Unionist community, but for the benefit of the whole of the community. I want to make that clear at the outset.

This is not a Unionist game. This is not a Unionist Bill. This is not a Unionist demand. This is an attempt by the parties in Northern Ireland, led by us in the negotiations, to ensure that we could not have three years without a Government in Northern Ireland. Incidentally, because the Government here in Westminster were afraid to take on Sinn Féin, they sat on their hands and refused to do anything to try to get a situation going in which devolution was restored in Northern Ireland.

Secondly, there is a certain irony. We had the Secretary of State standing here today, and we heard his honeyed words that the Bill is all about the Government’s commitment to the constitutional integrity of the United Kingdom and that parties should not be making threats to bring down devolution. Yet, in the same breath, he described how, once again, he intends if necessary to cast devolution aside and take on the responsibilities of the devolved Administration in Northern Ireland to satisfy the threats of one party and one party alone: Sinn Féin.

Of course, the impasse and fears we had in Northern Ireland were because Sinn Féin was threatening not to appoint a Deputy First Minister if it did not get the cultural aspects of New Decade, New Approach delivered on the timetable it demanded. I must say that while my party has signed up to the cultural aspects, many people—including, I suspect, Sinn Féin voters in Northern Ireland—really are questioning why, at a time when we are coming out of covid, with hospital waiting lists at about 350,000, with lots of children in schools having missed out on their education and in need of catch-up and with unemployment having doubled as a result of the covid restrictions, the main concern, and the threat to devolution again, is, “If you do not do the cultural aspects of New Decade, New Approach and allocate resources, Assembly time and political capital to it, we will not allow devolution to be set up again.” Pathetically, the Secretary of State caved in to those threats again with the commitment he made to Sinn Féin that if it is not done in the Assembly by the end of September, he will take the devolution powers and do it in Westminster.

Either the Secretary of State wants parties in Northern Ireland to work together or he does not. Either he wants to try to take the poison out of the system in Northern Ireland or he does not. I can tell this House one thing: if this one-sided pandering to Sinn Féin—setting aside the devolved powers—continues, all he is doing is allowing Sinn Féin to come back time and again. this is the irony: this is a party that refuses to take its seats in this House and wants to see Northern Ireland divorced from the rest of the United Kingdom, but when it cannot get its own way, where is the first place that it goes scurrying to? A British Secretary of State, the British House of Commons—“Please do these things for us because we can’t persuade people in Northern Ireland to do them.”

I think the Secretary of State should think very carefully about the way he undermines devolution. The Bill is meant to be all about sustaining devolution—to try to make devolution stronger, to try to stop it being hijacked by any one party, to try to stop the disruption that we had in the past—and yet, at the same time as the Bill is going through, we have the Secretary of State once again giving the green light to a party that does not want to see stability in Northern Ireland, that does not really care whether there is stability in Northern Ireland, and that gives priority to its niche demands over the main concerns of people in Northern Ireland, whether they are Unionist or nationalist, which are to get money spent and time devoted to dealing with the essential, day-to-day issues.

I listened to the Chair of the Northern Ireland Affairs Committee, the hon. Member for North Dorset (Simon Hoare), who endorsed this approach. I have to say, the kind of condescending, patronising attitude that we get from the Chair of the Select Committee does not go down very well in Northern Ireland—this kind of condescending attitude: “If the natives can’t get it together, then let’s do it here”. He was talking like some 19th-century colonial ruler. Of course, there are difficult situations and difficult decisions to be made in Northern Ireland. I served as a Minister in the Northern Ireland Executive for five years; I served as Finance Minister. None of the parties ever accused the DUP at that stage of being one-sided in the way in which it dealt with the finances across Departments. My own party actually complained more about not getting the money for certain things than some of the other parties did, because that is just the job, and if we do not have enough money, we cannot give everyone everything they ask for. But no one ever accused us of being biased. We worked our way through difficult issues including, during that period, the most difficult issue of the devolution of policing and justice. For any Member of this House to suggest that the natives cannot work their way through these things, so we have to take things over occasionally—all it does is ensure that those who wish to be intransigent will continue to be intransigent because they know that they have the safety valve of running to the Secretary of State’s door, and he will sort it all out for them rather than them sorting it out for themselves.

I know that this is not part of the Bill, but the Secretary of State mentioned it and he mentioned his intention in the House today. I give warning to him that if he wants to find a way of undermining devolution and of making it difficult for parties to work together, let him continue down this road of giving in to people because they threaten. Or, maybe it is because the Government fear that Sinn Féin has more of a threat than any other party in the Executive and therefore it has to be pandered to. This does not augur well for devolution.

Let me turn to the terms of the Bill itself and the period of up to 24 weeks for reflection and attempts to try and overcome the difficulties that there are. Sometimes there are issues that parties do not see eye to eye on, which they cannot agree on and which are important to them. There would be that 24-week period with Ministers in place, but I take the point made by the shadow Secretary of State, the hon. Member for Sheffield, Heeley (Louise Haigh), about what powers those Ministers should have. That is a very fine balance. Do we have 24 weeks in which Ministers have full power without accountability? Do we have 24 weeks in which Ministers have no power other than to administer issues and therefore are not able to deal with serious issues that come up? I do not have an easy answer to that, but she posed an important question.

There may be occasions when that elongated period is necessary. If we are going to have it, we have to be very clear what Ministers can do during that time. If they are simply there as lame ducks, there is no point in having them, yet if they are able to do everything that they would normally be able to do with Assembly scrutiny, I think that there would be grave concerns about that. I hope that some of those issues will be teased out in Committee. I do not know whether it is easy to codify that or put it in the terms of the Bill, but certainly it is not an issue that can be ignored.

On the changes to the petition of concern, I note again what the right hon. Member for Skipton and Ripon said. He said that the changes are necessary to stop the abuses of the petition of concern by the large parties. First, let me make something clear. The Belfast agreement did not put any limitations on the petition of concern. It can be used for whatever purpose. Incidentally, that was not drafted by Sinn Féin or the DUP. We were not the largest parties when the Good Friday agreement was negotiated. It was drafted in that form by the Social Democratic and Labour party and the Ulster Unionist party, who thought that they would be the ones who would be able to exercise the petition of concern. It is very significant that, now that Unionists no longer have a majority in the Assembly, those who clamoured for the petition of concern because they said it was necessary to protect minorities are the ones who wish to see it watered down.

There were not abuses of the petition of concern. Indeed, it was not even used all that often. When it was used, all parties used it, and the time that it was used and abused the most was by the SDLP when it came to welfare reform. I am sure we will get some lectures about the petition of concern when the SDLP speakers get up to speak, but all I can say about the changes is that, incidentally, no one party now would have 30 Members to exclusively put forward a petition of concern, and the petition of concern was one of the safety mechanisms in the agreement, for use when there were divisive issues and one bloc tried to impose those issues on others.

Incidentally—this is significant, again, as an example of the Government’s interference—there is nothing more divisive in Northern Ireland than the Northern Ireland protocol, yet the safety measures in the Belfast agreement for issues such as the protocol have been totally removed. They were totally removed when the protocol and the withdrawal agreement were brought here to the House of Commons. As a result, we now have the protocol being able to be pushed through without any real say by the people who are most affected by it, although, as Members have pointed out today, it is beginning to affect some of their constituents too, because they cannot even trade in Northern Ireland. It is another example of where, in order to attain certain objectives, the Government have cherry-picked parts of the safeguards built into the constitutional structure of Northern Ireland. What angers many people in Northern Ireland is that that seems to be done on issues that most affect the Unionist community. I am sure some of my colleagues will have something to say on some of those other issues.

We will be supporting the Bill tonight, but if the Government want to sustain devolution and see it prosper, it will require more than just this Bill. It will require them to show the same respect to devolution in Northern Ireland as they would show in Scotland and Wales. I guarantee that no Secretary of State for either Scotland or Wales would dare interfere in the devolved settlements in those two countries in the way in which this Secretary of State for Northern Ireland and this Government have done with devolution in Northern Ireland.

14:45
Mark Harper Portrait Mr Mark Harper (Forest of Dean) (Con)
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It has been a great pleasure to listen to the speeches so far, in particular the speech by my right hon. Friend the Member for Skipton and Ripon (Julian Smith). His remarks about the future, innovation and the opportunities for Northern Ireland struck a chord with me. They took me back a decade to when I visited Northern Ireland as the Minister for Political and Constitutional Reform. I remember very clearly meeting youngsters at a local school and talking predominantly about the future. I was keen to understand how young people viewed the future. When we talk about Northern Ireland we spend a long time, for understandable reasons, talking about the past. I went away from that meeting incredibly optimistic, because they were very keen to focus on what united them and on the opportunities for the future. Those young people who were then in the sixth form will now be in their late 20s. They will be in careers, building businesses and building families. I was very optimistic about that and I echo what my right hon. Friend, a former Secretary of State for Northern Ireland, said about the opportunities for Northern Ireland as part of the United Kingdom.

I add my congratulations to the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on his successful election as the leader of the Democratic Unionist party at what, I suspect, will be a challenging time in Northern Ireland politics. I wish him all success in that role, and in the role he will play in ensuring the devolved institutions remain in being and are able to be successful in helping to govern what is a beautiful part of the United Kingdom.

On the Bill, a lot of the press comment over the past week about the future of the institutions has been rather feverish. It is worth reflecting on something the Chairman of the Select Committee, my hon. Friend the Member for North Dorset (Simon Hoare) said about the timetable. We are considering this proposed legislation in the normal way and I think that is a good thing. It is clear from the programme motion that the Bill will be considered in a Public Bill Committee until July. It will then come back on to the Floor of the House and make its way to the other place to be debated there. Looking at the commencement details, there is a further two-month period before it comes into force. It is therefore worth all the parties in Northern Ireland reflecting over the coming days and weeks that if anything were to happen to the institutions at the moment, the rules governing events are the current rules, which obviously have some very challenging timescales attached to them. It is worth all the parties reflecting that, as we debate the Bill, the rules in force at the moment will be those in force for a considerable period of time.

I support the measures in the Bill, but the Chairman of the Select Committee made a good point—I think it was also touched on by others, including the right hon. Member for East Antrim (Sammy Wilson)—about time periods. Although I accept that the current time periods are very tight, there is a danger in extending them too far, whereby we lose the focus we get from the results of democratic elections. The danger is that we allow the results of elections not to be put into place, we do not concentrate people’s minds appropriately and we get drift and indecision; although it may be uncomfortable, we sometimes need deadlines and uncomfortable consequences to enable people to make what are often difficult decisions, to ensure that there are functioning institutions. Although I support what is in the Bill, it is worth our reflecting on whether we are perhaps going too far; it is worth bearing in mind that there is a balance to be struck.

I will briefly touch on what is not in the legislation—I trust I will not tempt you to intervene, Madam Deputy Speaker, as I think we are allowed to touch on this briefly on Second Reading. I wish to reflect on the exchanges I had with the Secretary of State and the exchange involving the hon. Member for Foyle (Colum Eastwood) and the right hon. Member for East Antrim on the forthcoming legislation on legacy prosecutions. To make it absolutely clear to the hon. Member for Foyle, I certainly do not advocate an amnesty, and I do not believe those in my party who advocate for a better settlement and fairer treatment of veterans have ever argued for one. One important factor in the reputation of the British Army around the world is that our armed forces are bound by the rule of law and if they transgress it, they deserve to suffer the consequences. What we are talking about here is a situation where a due process has been undertaken and vexatious attempts are then made to prosecute people where there has been a proper investigation. This is about how we get that balance right—not through having an amnesty but reflecting that there have been some injustices. That is what we are trying to achieve, and I think the right hon. Member for East Antrim put that point well when he intervened. I will leave that there for now, because it is not covered in this Bill—it will come in separate legislation and I know the Government are considering carefully the right content, to reflect the points made by Members on both sides of the House.

The Secretary of State touched on the final couple of points that I want to make when he talked about where it was right for this House to legislate—the right hon. Member for East Antrim and the former Secretary of State, my right hon. Friend the Member for Skipton and Ripon also mentioned this—and where matters are properly devolved and the Assembly would be able to deal with them. I have had slight differences with the Government on this point in the past. For example, although I very much support same-sex marriage and voted for it in England, my view was that that was a devolved matter that the Northern Ireland institutions should have resolved. I know the former Secretary of State took great pleasure in putting it into force, but I did not agree that it was right for him or the Government to do so—it should have been for the devolved institutions to do so. I raise that because of the debate we had on the cultural aspects of the New Decade, New Approach agreement, which the former Secretary of State touched on. I have been following the debate that has been taking place in Northern Ireland. The understanding that has been set out in the media—which of course is not necessarily completely representative of the facts—is that under the deal that appears to have precipitated the end of the former leader of the Democrat Unionist party, Mr Poots, there had been an agreement that if the cultural aspects of the deal were not dealt with in the Assembly, they would be legislated for here. My right hon. Friend the Member for Skipton and Ripon has said that his view is that they should be done locally. He is prepared, in extremis, to countenance their being done here. When the Minister of State winds up the debate, could he set out a little of the Government’s thinking about when the devolved aspects should be dealt with by the devolved institutions, and about what the Government’s tests are for when they should be legislated for here?

I would perhaps put it a little less loudly than the right hon. Member for East Antrim, but I broadly support his sentiments that if we have devolved matters, they should be ones for the devolved institutions. As in other parts of the United Kingdom where there are devolved governance mechanisms, we do not have to agree with the decisions of the devolved Administrations in order to accept that they are the right people to be making them. The test for me is not whether I agree with what the Scottish Government, the Welsh Government or the Northern Ireland Executive do; if a matter is devolved, the decision is for them, and it does not matter whether I, the Government or this House like it. The decision is for the institutions to take, and for them to justify to the people who elect them. That is the essence of democratic accountability.

There is an important point here: if those who were elected in Northern Ireland to govern Northern Ireland do not make those decisions and are not held accountable, we damage the entire drive to enable properly functioning democratic institutions. It will not be sustainable if every time something very difficult challenges the ability of those institutions to make decisions, somebody else sorts it out for them, for whatever reason. Whether it is for good motives or not, that will not be helpful in the long term. A little thinking about how the Government approach these matters would be helpful.

The final point, which the right hon. Member for East Antrim and my right hon. Friend the Member for Skipton and Ripon touched on, is about the powers of Northern Ireland Ministers in the extended periods when they are able to remain in post but there is no functioning combination of a First Minister and a Deputy First Minister. I think that the Bill is still an improvement on where we are today because, as I understand it, when we were in the long period of having no functioning Government, officials were in the very difficult position of having to manage Departments. For rather obvious reasons, they are incredibly constrained in the decisions that they can take; they are not accountable to anybody, and regardless of their actual powers, they are very constrained in what they are able to do.

I am not clear from having read the Bill and the explanatory notes quite what the legislation envisages, for example about the extent of the powers in the 48-week period with Ministers taking decisions. However, I still think that even if they are having to take quite important or big decisions, they have the benefit of being accountable. They are able to appear before the Assembly and have questions asked of them; that provides better accountability, which is an improvement on having those decisions made by officials.

Gavin Robinson Portrait Gavin Robinson (Belfast East) (DUP)
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This point has now been raised on three occasions. It is probably worth reflecting for the benefit of the House—perhaps the Minister will pick up on it later—that during the negotiations that led to this provision, it was recognised and remains the case that no Minister can act on a significant cross-cutting issue without recourse to the Executive. That also applies if the issue is controversial. In those circumstances, the Executive will not be sitting, because there will not be a First Minister or a Deputy First Minister, so the Minister will have full competence in their range of departmental responsibilities—but should any issue be significant, cross-cutting or controversial and require recourse to the Executive, it should not proceed.

Mark Harper Portrait Mr Harper
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The hon. Gentleman makes a very good point. I had in mind what happened during the extensive period in which officials were having to manage these things, when really important issues built up in the national health service in Northern Ireland and there were important decisions to be made about pay, conditions and funding. My understanding, having looked into it, is that there were serious deteriorations in the quality of care provided. I do not think that that raises issues of the sort that the hon. Gentleman raises, but it is obviously helpful if Ministers can take decisions. Even if Ministers are taking decisions that may not have been envisaged when the legislation was set out, at least they have the benefit of being accountable, having to set out both in the Assembly and publicly what they have done and why they have done it and, at some point, being accountable at the ballot box. I think that is an improvement. If the Minister can, in winding up, say anything about the extent of those powers or decision taking that is not currently set out in either of the documents before us, that would be helpful to the House.

I hope that the Bill progresses to Committee after we have concluded our remarks.

15:00
Colum Eastwood Portrait Colum Eastwood (Foyle) (SDLP)
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It really is a new experience to be sitting in between the two wings of the DUP. If they need any help to bring themselves back together again, we have a bit of experience in that.

Before I continue, I will deal with some of the points made by the previous speaker, the right hon. Member for Forest of Dean (Mr Harper). He talked about devolution, and I absolutely agree with him that this place should not be encroaching on the devolution settlement. Those are points that we made during the debate on the United Kingdom Internal Market Act 2020. There is not as much support coming from some quarters of this House to oppose what is very clearly a power grab in all the devolved spaces right across the different policy areas. There is not as much support coming from certain sections of this House for that.

One of the issues that had to be legislated for in this House that could not be legislated for in the Northern Ireland Assembly was marriage equality. In other words, two people who love each other could not get married just because politicians said so. The right hon. Member for East Antrim (Sammy Wilson) talks about politicians being unable to deal with things in a devolved context. I remember being the person who proposed the motion that got majority support for marriage equality in the Northern Ireland Assembly. That was the will of the House, and it was the will of the people, but we were blocked by the petition of concern that the right hon. Gentleman talks about. The petition of concern, despite what he might say, was there to protect minorities. It was abused time and again, including to stop people who loved each other getting married. So this is all connected.

The right hon. Member for East Antrim accused us of using the petition of concern on welfare reform. Absolutely we did, because welfare reform brought through by the Conservative party and supported, surprisingly, by some of the parties in Northern Ireland, was there to attack the most vulnerable in our communities—communities that have been let down and abused over many decades. The people who suffered the most as a result of the troubles in Northern Ireland were being abused again by Governments. I would sign a petition of concern any day of the week to stop that.

The right hon. Member for East Antrim also talked about legacy. I get that it is not his or many other people’s intention to bring about an amnesty, but let me tell him this; we are talking to the British Government every day of the week about this. An amnesty is what you are going to get, because if you say to people, “In the early days of the troubles, your case was properly investigated”—well, it absolutely was not. That is why we are having to go through this process.

Who is going to come with me to see a Bloody Sunday family, or somebody who was shot by the IRA in any year during the conflict, to tell them that they are not entitled to go through the justice process like everybody else? Come with me and do that any day of the week—I will take you to those victims. If you follow what this British Government intend to do, you will be saying not just to veterans, but to IRA people, UVF people, everyone, that they are entitled to walk the streets free, and that the people who were murdered, and their family members who have been left behind, who have suffered the most and have been left out of this peace process, will just have to wait because once again, we are going to let them down.

That is the road that this British Government are on. It flies absolutely in the face of the New Decade, New Approach agreement; it flies in the face of the Stormont House agreement; and it flies in the face of common decency, but that is what you will be supporting. You will be supporting an amnesty for everybody if you support the intentions of this British Government.

On why we are here, I think it is important to remember. I really wish we did not have to be here putting in legislation to stop people walking out of government. It should never be the case that, in the 21st century, any political party should be threatening or walking out of government. We are here because Sinn Féin brought down the institutions for three years. It started with the renewable heat incentive scandal and has ended up with the Irish language and God knows what else. The reality is that we had three years of no Government. The right hon. Member for Skipton and Ripon (Julian Smith) will know of the long, tortuous hours of negotiating and discussing and going through every one of these issues. I am not a massive fan of much of this Bill, but we will support it because we did not win the argument in the New Decade, New Approach discussions.

Will we all take the same approach—that whatever was agreed in the New Decade, New Approach negotiations should be implemented? That is not happening today. I note that DUP Members are saying that we should not be going over the heads of the devolved space and the Assembly and implementing things that were not agreed. But it was agreed—you have all accepted it.

The Irish language Act that I wanted did not come to pass as part of those negotiations. This Bill’s provisions for language and culture are nowhere near enough. People should be prepared and able to continue to argue for better support for the Irish language, but that is not what was delivered in that agreement. I have to accept that. However, when you are in government in Northern Ireland, you have to implement it. I do not want this place legislating at all in the devolved space, but if parties like the DUP and Sinn Féin cannot deliver in government, this is what is going to keep happening time and again. If you want to stop Westminster going over the heads of the devolved Government, do the things that you agreed to do in the first place, and then we will not be in this situation.

My hon. Friend the Member for Belfast South (Claire Hanna) and I were prepared table amendments to the Bill to deal with the issues of language and culture. We would not have changed one single word that was agreed in the NDNA discussions—the legislation that was published at that time by the Government. Actually, I think that the Government have badly mishandled this last week and we have ended up on the brink of another collapse of our institutions.

Mark Harper Portrait Mr Harper
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I just want to pick the hon. Gentleman up on his last point. I take his point that the parties agreed on things in New Decade, New Approach, but he has just said that, if the parties in the Assembly cannot sort things out, things will get done here. That is exactly the problem. My argument would be that it is for the public in Northern Ireland to look at how the parties are dealing with commitments they have made and to then reach appropriate decisions at subsequent elections. If the decisions are just taken here, whatever we think about a particular issue, that would effectively let the parties in Northern Ireland off the hook on delivering on their commitments and promises, and it would not end up leading to a robust devolved institution. That is the argument that I would make, countering slightly the point the hon. Gentleman is making.

Colum Eastwood Portrait Colum Eastwood
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I thank the right hon. Gentleman for his intervention. He has a very optimistic view of how politics in Northern Ireland works. I have absolutely no interest in things being done here that should be done at home, but people have to live up to the things that they committed to and deliver them.

The reality is, though, that there are a lot of things in New Decade, New Approach. The right hon. Member for Skipton and Ripon will know that I talked about this every single time we met during the negotiations. I am the representative for the city of Derry, and for 57 years we have been denied a full-scale university. It is in New Decade, New Approach. What are the Northern Ireland Executive doing about that? We had to fight like mad to get them to implement the support for the medical school at Magee. What are the Northern Ireland Executive and the British Government, who will need to support this, doing about waiting lists? Again, that is in the New Decade, New Approach agreement. What are the Executive doing about making housing a stand-alone priority in the programme for government?

I very much welcome today’s elevation of the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson), and I phoned him earlier to congratulate him. I was disappointed, though, to hear him say in his first statement as leader of the party that his No. 1 priority will be the protocol. Last week, we heard from Sinn Féin, whose No. 1 priority was the Irish language Act. I want to take this opportunity to make it absolutely clear that the SDLP’s No. 1 priority is the 350,00 people languishing on waiting lists, in pain, today, because the Executive have not got round to dealing with that crisis. The waiting lists in Northern Ireland would make a third world country blush. Yet, last week, Sinn Féin threatened to bring down the very edifice of government over the Irish language Act—it is a very important issue, but not the most important issue that we should be dealing with today. This week, the DUP is threatening to bring down the very edifice of government on the protocol.

Would it not be better if we actually sat down together, worked these issues out, worked together, recommitted to the institutions of the Good Friday agreement, and, more importantly, the spirit of the Good Friday agreement and began to deal with the issues that are the real priorities of the people of Northern Ireland—nationalist, Unionist or other?

Sammy Wilson Portrait Sammy Wilson
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Will the hon. Member agree then that, since we already spend about £200 million on the Irish language, whether it is in relation to education, broadcasting, street names and a whole lot of other things in Northern Ireland, he would not give priority to further cultural issues when a huge amount of money is needed to deal with the waiting lists he described?

Colum Eastwood Portrait Colum Eastwood
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I thank the right hon. Member for his intervention. He gave a fantastic oration earlier on in support of devolution and the Good Friday agreement. It was fantastic to hear him talking about the Good Friday agreement in such glowing terms. I was 14 or 15 when that was signed. Maybe my memory is not quite serving me right, but I just cannot remember how exactly the DUP voted on the issue of the Good Friday agreement. But if he has now become a convert to the Good Friday agreement and all things power sharing, I welcome him on to the pitch. I am delighted to see it.

The point about the Irish language issue, and all the cultural issues—remember, it was not just the Irish language that was dealt with in the NDNA agreement—is that you can do two things at once; you can do many things at once when you are in government. I would go much further, by the way: I believe absolutely that the language and cultural legislation needs to happen and has to happen as quickly as possible. Do I think we should be threatening the very edifice of government and power sharing over that issue? No, I do not. Equally, do I think we should be threatening the very edifice of government and devolution and power sharing and the Good Friday agreement institutions over the protocol? No, I do not.

That is the problem. We have two parties in control in Northern Ireland—in charge for the last 14 or so years—that are absolutely and totally obsessed with themselves and their own self-interest, with nowhere near enough effort put into dealing with the problems and crises that are evolving, in our collapsing health service and in our education system, which is in real trouble. Why do we not focus our efforts on that, instead of constantly having culture wars and constantly dragging ourselves to the brink of collapse? I will tell hon. Members why: because it suits those two political parties and the system we have created and the bastardisation of the Good Friday agreement that happened at St Andrews to keep having this culture war: “Let’s build both sides up against each other; let’s build the walls higher and higher.”

Why not break down some of the walls? Why do we not realise that the people’s priorities are the health service, access to decent education and a job for the young people? When I walk around the city of Derry, it is a city that has been starved of investment for many a decade, and a city that still does not have—this was in New Decade, New Approach, as the right hon. Member for Skipton and Ripon will know, as I helped write some of the words in that document—the full-scale university that it desperately needs. Derry needs that university to stem the tide of our young people leaving—hundreds of them every year, never coming back.

They are the issues we should deal with. They are not Unionist priorities. They are not nationalist priorities. They are priorities for every single one of our citizens. For God’s sake, can we not start dealing with those, instead of bringing ourselves to the brink of collapse every single time?

15:14
Stephen Farry Portrait Stephen Farry (North Down) (Alliance)
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The Secretary of State made reference to the fact that this Bill coincidentally—or perhaps by design—coincides with the 100th anniversary of the official opening of the Northern Ireland Parliament. It is worth my referring to the words of King George V at the official opening, when he appealed to those listening to do their utmost

“to stretch out the hand of forbearance and conciliation, to forgive and to forget, and to join in making for the land which they love a new era of peace, contentment, and goodwill.”

If we perhaps leave aside some of the historical context, it is none the less worth noting how relevant those words are to the situation in which we in Northern Ireland find ourselves today. We need to be very conscious that if things go wrong and people push and push and push, we could see a situation in which Northern Ireland and the future of power sharing and devolution are in real trouble.

There is a certain irony, particularly in respect of the sustainability aspects of the legislation, that this debate is happening at a time when, under the outgoing rules on the seven-day window, there is so much turmoil in Northern Ireland, some parties are playing fast and loose with those rules and putting demands on the table, and, if things go wrong, we could potentially see Northern Ireland going for an early election. An election would see the fall of a lot of legislation that is currently in works, including an important justice Bill, and would further delay the urgent reforms that are required for our health and education systems and the process of job creation. Elections are, of course, always important for democratic renewal, but it is none the less important that politicians fulfil their mandates and do the job they are required to do on behalf of the people.

I will certainly support the Bill today. It is about putting into practice some of the governance aspects of the New Decade, New Approach agreement that fall to Westminster, and there may well be some aspects on which we can go further and perhaps clarify some ambiguities that were left in that agreement. I mean no disrespect to the right hon. Member for Skipton and Ripon (Julian Smith), who did an absolutely marvellous job in his leadership on negotiating the agreement, but there are things that could be clarified. In some areas of the agreement, we could go further in building on the reforms that are offered.

It is important to recognise that, ultimately, rules can take us only so far in terms of any structures. Any society has to work on the basis of trust, conventions and respect among the various political actors—those norms of democracy. In the context of Northern Ireland in particular, that relates to partnership and power sharing. At times, we see trust and mutual respect pushed to the very limits. The boundaries of what is necessary to maintain the integrity of devolution are frequently being breached. We cannot see that as sustainable.

Two particular aspects are currently focusing minds: the first relates to the protocol and the second to the language and cultural package. First, on the protocol, it is important that we remind ourselves why the protocol is here: it is the outworking of Brexit and, in particular, the decisions on the very nature of Brexit that were taken by the Government and, indeed, this Parliament. The protocol is a response to decisions taken elsewhere.

At times, the current situation is seen very much through the lens of Unionist discontent with the situation. However, it is important to bear in mind that there is a wider community in Northern Ireland and most people in Northern Ireland recognise why the protocol is there. They do not see it as a breach of the Good Friday agreement or of the constitutional settlement—the principle of consent is written in stone in respect of the various withdrawal agreement documents—and they want to see a situation in which the problems are resolved and we end up with genuine political stability and, indeed, stability for businesses in terms of investment. That means not scrapping the protocol or taking us to or over brink, but finding practical solutions.

I was pleased to hear the right hon. Member for Skipton and Ripon make reference to doing even a temporary veterinary agreement. That is of fundamental importance in addressing the checks across the Irish sea. If such an agreement were implemented, we could see the removal of 80% of those checks. If all parties in Northern Ireland pushed in that direction, I think the UK Government would listen a lot more in that regard. The Government need to be very conscious of the choices they make—whether they want to pursue a very pure Brexit or to be pragmatic—for the sake of Northern Ireland and stability.

Sammy Wilson Portrait Sammy Wilson
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The hon. Gentleman talks about the commercial impact of the protocol. As his party has Members in the Northern Ireland Assembly, has he no concerns that, as a result of the protocol, many of the things that are devolved to the Northern Ireland Assembly and many of the laws and regulations that were made in the Northern Ireland Assembly will and can no longer be made there, but will be made in Brussels?

Stephen Farry Portrait Stephen Farry
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When we were part of the European Union, certain laws were made in Brussels, but, of course, we had democratic representation at the time. This is all about the pooling of sovereignty, which means that we gain much greater benefits through being part of a much bigger enterprise. While the right hon. Gentleman is perhaps correct to point to the fact that there is now that democratic deficit, there are things that can be done in terms of what happens to the UK representation through, for example, the Joint Consultative Working Group. The European Union is also being innovative in trying to find space for voices from Northern Ireland to address some of these issues. None the less, it is far from perfect, which is one of the many reasons why we were opposed to Brexit in the first place.

The language and culture aspects of the current situation were very much part of the New Decade, New Approach agreement. It is fair to say that the language and culture issues were the most fundamental and, indeed, intractable part of what was almost a three-year interregnum of the Northern Ireland Assembly. It is natural that there is a focus on getting those issues delivered in a timely way. Indeed, the document itself refers to its happening within 100 days. In theory, if it were not for covid, the Assembly would have acted by now.

I appreciate that comments have been made about this issue being something for the Northern Ireland Assembly to sort out and for democratic politicians to work through, but there are two things to say in response to that. First, it has not happened. I very much wish that it had happened in the Northern Ireland Assembly, but it has not. If need be, Westminster may have to intervene to address it. Secondly, this is not an ordinary democratic issue that comes along from time to time that politicians have to address. All five parties in the Northern Ireland Executive are back in office due to the New Decade, New Approach agreement. If we find a situation in which we do not honour the agreements that we make around the integrity of devolution, then devolution will collapse. That is the reality, and that is why this is seen in that very particular light.

There are those who point to a much sadder situation where, time after time, we are seeing agreements made and breached. In particular, aspects in relation to rights on equality do not seem to move through the Northern Ireland Assembly for one reason or another. That is a source not just of frustration for many, but of despair for those who depend on those rights. That moves beyond simply issues around the culture and language aspects and into areas around marriage equality and women’s reproductive rights, on which the Minister of State is working very keenly.

I want to focus on the three different sections of the Bill. The first is the sustainability of the institutions. Again, rather than having just seven days following the collapse of the institutions, it may well be necessary to have a little more breathing space, but that does bring a downside, which some Members have very ably drawn out today. There are also some wider issues around sustainability, which is how the institutions evolve to meet the needs of an evolving society.

Northern Ireland is a very diverse society, but if we go back to 1998, there was this working assumption that the world was divided into two camps—the Unionist camp and the nationalist camp—and there were a small number of people in between who were either “others” or “neithers”. They were perhaps a slightly awkward group that could be put to one side because they were not that many, but, over time, that centre ground bloc, or those who were designated as “others”, has grown dramatically in the Assembly. Indeed, after the next Assembly election, who knows, they could represent more than 20% of the Members of the Assembly.

In that context, the nature of designations becomes ever more untenable. They are fundamentally anti-democratic; they are about dividing Northern Ireland and sending out a message that Northern Ireland is fundamentally divided and will be so perpetually, which is not how many people, particularly young people, wish to see the future of their society. It is entirely possible to have power-sharing in different ways, through weighted majorities and so on, where we do not need the system of designations.

The same applies to how we form Governments in Northern Ireland through what was a mandatory coalition, with the built-in vetoes that caused so much damage. There are other ways in which power-sharing can be done with different models of associational democracy. The hon. Member for Gordon (Richard Thomson) referred to an associational model. It is important that the Government are conscious that in the very near future some of the fundamental rules of the Assembly, particularly the assumption that the First Minister and Deputy First Minister will always be a Unionist or a nationalist, may come under pressure through electoral demographic change and we could see a major crisis of legitimacy of the institutions. It is important that the Government act ahead of that rather than in response to yet another crisis that may emerge.

The ministerial code has perhaps not had the same amount of attention in this debate as other matters. It is very welcome that we strengthen the standard to which Ministers are required to keep in Northern Ireland. In doing so, however, it is worth referencing that what is proposed on paper for Northern Ireland now goes further than what is the norm for the UK Government in their operations. Obviously in recent months there has been a lot of controversy in Whitehall over the ministerial code and how it is enforced. That rather prompts the question: if it is good enough for Northern Ireland to have a strengthened ministerial code with independent enforcement and oversight, then why not Whitehall as well? In Northern Ireland the ministerial code is frequently breached by Ministers from a number of parties on a regular basis, so simply having an improved code on paper does not always mean that we see an improvement in practice.

On petitions of concern, there has been a long-standing demand for reform from my party and indeed many others. There have been particular frustrations over recent years where petitions of concern have been used, and indeed abused, to block the delivery of rights and equality issues in Northern Ireland. In effect, it gives a party that previously had over 30 seats the ability to have the net equivalent of 55 or 56 seats and to block anything that it does not like. That is not democratic. It moves us away from the original intent in the Good Friday agreement: the petition of concern was to protect the vital interests of different sections of the community, not to enable rights that cut across the entire community to be blocked. I welcome what has been negotiated in New Decade, New Approach, which will hopefully be placed into law, although I am still slightly sceptical as to whether it goes far enough. We may need to revise and review it in future if it proves not to be workable. None the less, it is good to see it on paper.

Alongside that, it is worth stressing that the petition of concern in the Assembly is only one feature of the vetoes. There are also the hidden vetoes that operate inside the Northern Ireland Executive: not only the vetoes tabled by the Executive, where a number of Ministers can block an issue; but because the two largest parties control the agenda of the Executive and either party can prevent an issue from even coming to the Executive table. Those areas also need to be addressed if we are to have a proper functioning democracy.

My final point is about legacy. I will hopefully come back to this if and when a Bill is produced by the Government in due course. While it is welcome that the Government are being faithful to the governance aspects of New Decade, New Approach, it is worth stressing that in terms of legacy they are not. The chapter on legacy in New Decade, New Approach refers directly to Stormont House; in fact, that is its actual title. It could not be more clear that the intention in that document is to deliver the previous agreement that was made between the UK and Irish Governments and a number of the other parties back in 2014.

However, we have seen a major U-turn away from the principles of Stormont House and, indeed, the content of Stormont House. I concur with what other Members have said, including particularly the hon. Member for Foyle (Colum Eastwood), in that what we are likely to see is a de facto amnesty. We cannot do what Parliament wants to do in relation to members and veterans of the armed forces, and not do the same in relation to those people who were involved in terrorist organisations. It has to be uniform, and the Government know that is the legal advice they have been given.

It is worth stressing that what may be coming down the tracks on legacy does not have the support, at least in public, of any political party in Northern Ireland, it does not have the support of any of the victims groups right across the community and it is something that may well be imposed over the heads of those in Northern Ireland. Right around the world, whenever we see different forms of transitional justice, even those that may well have a statute of limitations or indeed an amnesty, they are part of a wider peace agreement and they have legitimacy whenever parties across the political spectrum buy into them. That is not the case with what may be happening in Northern Ireland. That point stands apart from the fact that what may well be coming from the Government is not likely to comply with article 2 of the European convention on human rights, and what is proposed will eventually be struck down in the courts. We will wait and see what emerges, but for today I am happy to support the Second Reading of this Bill.

15:31
Alistair Carmichael Portrait Mr Alistair Carmichael (Orkney and Shetland) (LD)
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It is a genuine pleasure to follow my hon. Friend the Member for North Down (Stephen Farry) and indeed, before him, the hon. Member for Foyle (Colum Eastwood). It is at moments when the House has to debate matters relating to Northern Ireland and to Northern Ireland alone that the somewhat asymmetric nature of the Union that makes up the United Kingdom is most apparent. I think it assists the House enormously that we are able to hear now a variety—a multiplicity—of views coming from Northern Ireland. I thank those hon. Members, and indeed all hon. Members from Northern Ireland who have made their contribution to this debate today.

I also place on record my congratulations and the congratulations of my party to the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on assuming the leadership of his party. He does so at a difficult and challenging time, and I am sure that he has the good wishes of all parts of the House in taking on the task that he has undertaken.

My party, like those represented by everybody else who has spoken today, will support the measures in this Bill. I think it is perhaps worth reflecting parenthetically that, in a debate that has generated a fair amount of disagreement, the one thing in respect of which there has been universal agreement is that we all support the Bill. That just makes me wonder whether the measures in the Bill are the equal of the political situation that it purports to deal with.

I think the political context is important here. Let us not ignore the fact that much of the political instability to which others have referred is a consequence of the Brexit deal that was done by the Prime Minister and of the Northern Ireland protocol. I suggest that the Prime Minister and his party have for the most part, with a few honourable exceptions such as the right hon. Member for Skipton and Ripon (Julian Smith), been careless in the custody of their duties under the Good Friday agreement. I have always felt that they never really understood the genuinely fragile nature of the peace that was created by the Good Friday agreement, and that it becomes acute at a moment like this as a consequence. As my hon. Friend the Member for North Down just said, the most obvious and sensible thing that could be done at the moment is the negotiation of a temporary veterinary agreement in relation to Northern Ireland. It would, I think, be something not that difficult to construct, but for reasons of dogma as much as anything else, the Government seem incapable of doing that.

Mr Deputy Speaker, you and I were both in this House in 2003 when it was necessary to cancel elections to the then Northern Ireland Assembly. That was a difficult and painful time. It led to the suspension of the Assembly and to business and legislation relating to Northern Ireland being conducted directly from this Parliament. It was a disgrace. I remember whole Bills going through in Committee Rooms upstairs in 90 minutes for all stages. The idea that there was any democratic scrutiny or accountability as part of that process is nonsensical. Therefore, at the very least, I welcome the fact that we are managing not to return to that. However, as I look around the Chamber, there are not many hon. Members who were here in 2003, so I remind them of what it was like under direct rule when the Assembly collapsed previously. It would not be in their constituents’ best interests to return to that.

As the hon. Member for North Dorset (Simon Hoare), the Chair of the Select Committee, said, this is not emergency legislation. Of course, in the technical, parliamentary sense of the term, it is not, but I suggest that it is still urgent. He also said that the Good Friday agreement was a process, and he was correct in that as well. However, as somebody who has observed and participated in the conduct of Northern Ireland business in this House for some time, I think that it is a process that we might have hoped would bring us further and faster than it has done. It established a framework for the people of Northern Ireland to deal with problems for themselves through politics rather than through violence. Although it sounds modest to say that now, it was a significant achievement. The process started actually under Margaret Thatcher and went through the Governments of John Major and Tony Blair.

In the course of the debate, many people, including the right hon. Members for East Antrim (Sammy Wilson) and for Forest of Dean (Mr Harper) and the hon. Member for Foyle (Colum Eastwood), have reflected on the different ways in which devolution works, and unfavourable comparisons have been made about its operation in Scotland and Wales compared to Northern Ireland. Throughout the 1980s and 1990s, I was part of the process that saw the set-up of the Scottish Parliament. The Liberal Democrats were an active participant, along with the Labour party, the local authorities, Churches and other parts of civic Scotland, in the constitutional convention that constructed the blueprint for the Scottish Parliament. Those were the roots of devolution in Scotland, and we did that out of a concern that Scottish institutions and Scots law would be better protected and promoted through a devolved Parliament.

Devolution in Scotland and Wales was the product not of a peace process but of an aspiration to make democracy work better and make democratic politics work better for Scotland and Northern Ireland. To suggest now that a comparison can be made is, I am afraid, misleading. It is rooted in a misunderstanding of the process that has brought us to this point. An understanding of the process that brought us to devolution is important, because that reminds us of the consequences should we allow devolution—the democratic institutions in Northern Ireland—to fail.

My hon. Friend the Member for North Down spoke about designations and the difficulties now with the model of government set up under the Good Friday agreement. He is absolutely right. So much in that agreement created institutions that were never intended to be as enduring as they have been. The purpose of power sharing was to provide an environment in which the communities could work together eventually to achieve what we in the rest of the UK would regard as normal politics, where it would not be necessary to have an Executive constituted in the way that they are, where, in effect, everybody is in government and nobody is in opposition. That is why the one tiny point of disagreement I have with the right hon. Member for Skipton and Ripon is when he says we should be seeking to maintain the status quo. The status quo was never meant to be maintained, and I do not believe that in the long term it is sustainable as a democratic exercise. We need to be more ambitious than that, and for those in this House there must come a point when we decide whether we help the progress towards normal democratic politics in Northern Ireland by continuing to “help out” or whether eventually we will have to say that that is a problem for the Northern Ireland institutions themselves to resolve. For today, on Second Reading, this Bill has my support, but I want it to be clearly understood that in as much as it does sustain a status quo, it can do that only to create stability to ensure further progress. Otherwise, it is always going to be a waste of time.

15:41
Carla Lockhart Portrait Carla Lockhart (Upper Bann) (DUP)
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The New Decade, New Approach agreement certainly paved the way for the return of the Northern Ireland Assembly in January 2020, and this was welcomed by everyone. It is therefore ironic that the backdrop to today’s Second Reading debate is a decision of this Government to threaten to usurp the role of the Northern Ireland Assembly in the exercise of its newly restored powers, not to prioritise the promises and pledges on health, the economy and education but to prioritise a cultural package. Mention has already been made of this, but I need to reiterate that the three-year long crisis and absence of devolution in Northern Ireland was precipitated by Sinn Féin’s refusal to share power unless and until its demands were met. In doing so, it held to ransom not just the other political parties in Northern Ireland but every person on the health service waiting lists, as they spiralled out of control.

Somewhere along the line, the fact that the sustainability provisions in this Bill are actually needed as a direct result of the behaviour of Sinn Féin would seem to have been forgotten. A former Member of this House for the Foyle constituency used to say, “What gets rewarded gets repeated”, and that is never more true than today. Last week, Sinn Féin played the same old trick again and, surprise, surprise, was richly rewarded by this Government. That is the message that will have been heard loud and clear across Northern Ireland. The precedent has been set. If Sinn Féin was prepared to use such tactics to speed up the delivery of a cultural package, many in my community would ask why Unionists would not adopt the same approach when the constitutional status of Northern Ireland within the UK is at stake, under the guise of the protocol.

At its heart, this Bill is about the sustainability of the political institutions in Northern Ireland, yet the delay in introducing this legislation has contributed to the lack of political stability in the Province. Had the Government introduced this legislation sooner, they might have avoided the ransom politics of Sinn Féin, who were prepared to hold the political institutions hostage over the timing of a cultural package set out in NDNA. Having spent three years working to secure the return of powers at Stormont, Sinn Féin wasted no time in giving back control to Westminster, not because the DUP refused to implement the cultural aspects of NDNA, but because it would not do so ahead of other priorities within that agreement. As a Unionist, I suppose the fact that Sinn Féin has changed its message from “Brits out” to “Brits in” should be regarded as progress. However, the fact that the Government are prepared to pass legislation without the consent of the Northern Ireland Assembly on matters that are entirely within the devolved arena at the behest of a party that does not even take its seats in this House is beyond parody.

The last time the Government breached the Sewel convention, with regard to abortion and same-sex marriage, they did so under the cover of the absence of the Northern Ireland Assembly, much to my frustration and despair. Today, no such pretence or pretext exists. Instead, a new exception to the Sewel convention has been created. In the light of this background, the fact that elements of this Bill will not achieve the desired objectives seems almost irrelevant. Let us take just one example. When the First Minister or Deputy First Minister resigns, as happened last week, there can now be a period of up to 24 weeks to replace them without the need for a fresh election, but there are no arrangements in place to allow the institutions to function credibly during this period. In the absence of a First Minister or Deputy First Minister, no Executive can meet and Ministers are unable to take significant or controversial decisions. That is not a sustainable way to do business, and I hope that those arrangements can be looked at again in light of recent experience.

My party signed up to New Decade, New Approach in its entirety, not because we welcomed every dot and comma but because we believe in devolution and we believed that the agreement was a pathway forward for the devolved institutions. It was by no means a deal without fault, but with waiting lists spiralling out of control, with the challenges posed by Brexit, with the need to address educational underachievement, with welfare reform mitigations coming to an end and with so many other issues pressing on people’s lives, we engaged with other parties to stop the harm that Sinn Féin’s boycott was doing to ordinary people in Northern Ireland.

However, NDNA is about more than the cultural provisions on which there is considerable focus. It also deals with the reform of public services, policing resources, infrastructure investment and so much more, yet on much of this there has been no progress and nothing said. The voices on these Benches from within the Government and the Opposition that are so exercised by the Irish language question are silent on the worst waiting lists in the whole of the United Kingdom.

The Bill is designed to address the sustainability of the political institutions in Northern Ireland, yet in the final analysis the Assembly will be sustainable only if the devolution settlement in Northern Ireland is respected. My party is prepared to lend its support to the Bill tonight, but I have very real concerns that the Bill is too little, too late. Through their actions in recent days, the Government have damaged the devolved settlement in Northern Ireland in a way that they would never countenance doing in Scotland or Wales. The real challenge for this Government in the coming weeks will be to address their commitments in New Decade, New Approach in relation to the UK’s internal market. I trust that, in that endeavour, we can count on those in this House who supported the Government’s approach to the culture package to display the same enthusiasm in that regard.

15:48
Gavin Robinson Portrait Gavin Robinson (Belfast East) (DUP)
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It is a pleasure to follow the excellent contribution from my hon. Friend the Member for Upper Bann (Carla Lockhart). I guess I also need to reflect on the points made by the right hon. Member for Orkney and Shetland (Mr Carmichael). He made two points, and I substantially agree with the first, which was about the range of voices from Northern Ireland in this debate and the positive aspect that that brings to our deliberations in this House. I say that acutely knowing that I am following a colleague of mine and that people will be thinking, “For goodness’ sake, we’ve just had six minutes of that, and now we’re going to get another 15 or 20 from the big lad.” I promise I will try to give an alternative reflection.

The right hon. Member for Orkney and Shetland is right, and I too believe that the 2017 to 2019 Parliament was greatly inhibited by the curtailed voices. There was no range of voices from Northern Ireland save for that of Sylvia Hermon, the former hon. Member for North Down. That is not to say that I agree with everything that is said or with other contributions, but I think this House benefits from a range of reflections. I also make the point, since there are now a range of voices from Northern Ireland in Parliament, that it is still important that the other parties engage with us. It would be a shame for anyone to think that they now have a buddy or a mate in Parliament, so there is no need to broaden their own horizons; that would similarly be a foolhardy mistake. I look forward to continued engagement with the right hon. Gentleman.

The fact that there is widespread critical agreement on the progress of the Bill through Second Reading highlights the point that it is probably not that significant an advancement. Its provisions take us so far and make some changes, but they are not significant in and of themselves. It is appropriate, however, that there are advancements to New Decade, New Approach, and in a legislative sense it is appropriate that those aspects are before us today.

It is right that we reflect that this is non-emergency legislation. That is nice for me as a Member of Parliament who has been here for six years and seen hugely significant issues that affect the people of Northern Ireland rushed through this Chamber in a three or four-hour process of Second Reading, Committee and Third Reading. None of that is appropriate. It is important to recognise how this is progressing and is intended to progress over the months to come.

We benefited not only from the contribution that the right hon. Member for Skipton and Ripon (Julian Smith) made earlier, but from his time as Secretary of State for Northern Ireland. I remember the engagement that we had at Stormont House on the discussions about New Decade, New Approach, and the personal determination that he had at the time to make sure that politics worked; I sometimes feel that that is lacking now. I hear time and again from community voices, sectoral support, business and public servants in Northern Ireland, all of which still have good contact with the right hon. Member and still hugely value the contribution that he made to our society in Northern Ireland. That energy and drive was predicated on Northern Ireland people working for Northern Ireland people on supporting devolution in Northern Ireland, on making it work no matter how difficult or intractable the problems appeared, on highlighting, recognising and dealing with the continual difficulties in our society, and on supporting us collectively across the political spectrum to deal with those issues in Northern Ireland.

That is why I think that the commitment made last week was so retrograde. We know that there are challenges—they have been reflected in this debate—but do not turn around and give the impression that “If you just can’t do it, we’ll do it for you.” I said to the Minister of State two weeks ago, “Do not make the commitment that you will legislate on any aspect of NDNA without political consent, because the political party that you are going to do it for still needs to work with other political parties in Northern Ireland.”

The only way that devolution will be successful in our Province—the only way that we will continue on the pathway from troubles to peace—is if we work with one another, trust one another and build a relationship based on shared values and a shared outlook on how we grow as a society. If the British Government, the Irish Government or the American Government step in at every turn and say, “Come on, now, I’ll hold your hand and take you down this certain path, because that’s where you want to go,” it will not work.

The short-term gain of what was agreed last week is futile and fundamentally injurious to devolution in Northern Ireland. I say at this stage—it is not part of the Bill, but it is intrinsic to all that has gone before—that the Government need to recognise that continuing along the path that they have outlined would be hugely detrimental to progress in Northern Ireland. I say that with no joy—none whatever.

The protocol was mentioned. It is a hugely symbolic and genuinely difficult issue affecting all strands and strata of our society. We hear voices at one side saying, “It’s all a disaster and it’s all been imposed upon us,” and we hear others saying, “Well, you brought it upon yourselves.” None of that actually matters at the end of the day for the ordinary consumer, the ordinary businessman or the ordinary member of our community who is striving for the best but sees the barriers ahead of them.

I heard the hon. Member for Foyle (Colum Eastwood)—I am glad that he is back in the Chamber as he gets a mention—say that he was surprised that the protocol featured in the statements made today; “Why not the priority of the health service?” We first need to recognise the difficulties. We need to highlight the problems and work to resolve them. But make no mistake about it: there was a suggestion that a focus on veterinary agreement would be significant in relation to the protocol; it is but one aspect.

We recognise the challenges in the health service. How do we deal with the challenges in the health service if we do not deal with the grace period on medicines that is going to expire? Was it not the European Union, three months ago, that sought to trigger article 16 to prevent the export of vaccines to Northern Ireland? It was. We saw cancer drugs get approval by our UK medical agency in the last month, but the European medical agency had not yet quite made the approval, so those cancer drugs were not being made available in Northern Ireland, a part of this country—a constitutionally integral part of this country, enshrined under the Good Friday agreement that we all seek to protect.

Let us not suggest that veterinary issues alone will solve the protocol. They will deal with the significant impediment of barriers for food and animal products, but they will not deal with the totality of it.

Stephen Farry Portrait Stephen Farry
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I appreciate what the hon. Member says about medicines. It is important that we have a resolution in that regard, and I believe that some very good work is being done by both the European Commission and, let me say, the UK Government in that regard. But on the veterinary agreement, although I appreciate that it is only one part of the equation, would his party join all other parties in Northern Ireland in making a common call to the Government in that very particular respect? I appreciate that it does not address all the issues, but surely, if all five parties were to make a common pitch on that one topic, it would make a huge difference, and I would expect the Government to listen to that.

Gavin Robinson Portrait Gavin Robinson
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I understand why the hon. Member puts forward that proposition, but he is falling into the same trap. That alone will not solve it. If we go collectively as five parties and say, “Sort out veterinary,” the Government will, but does that solve all the problems impacting Northern Ireland on the protocol? No, it does not. Does it solve the medicines issue? No, it does not.

There was a clamour months ago about steel, and a resolution was found for the importation of steel into Northern Ireland, with a Her Majesty’s Revenue and Customs fix. Did it do anything for aluminium? No, it did not. Does that impact aerospace, the largest private employer in my constituency and a huge employer in the hon. Member’s constituency—something we recognise that, despite the problems last year with coronavirus, had £1.4 billion-worth of economic benefit to Northern Ireland and still employs 6,500 people? Is that on the table for resolution? I can tell you, Mr Deputy Speaker, of my disappointment and anger when I got a message back from the Northern Ireland Office indicating, “Well, actually, the letter was sent to Mr Šefčovič, and it’s not going to be added to the agenda.” There has been little change since.

That is before we touch on the constitutional aspects and before we touch on the democratic deficit associated with the protocol. I am not saying that we should not collaborate on veterinary checks, but let us not go down the rabbit hole of focusing solely on one singular issue when the issues are many, deep and broad and they need to be resolved.

I shall conclude on this, Mr Deputy Speaker. There are challenges in society in Northern Ireland. There have been concerns around the stability of our institutions in Northern Ireland and the opportunity for progress. Although I recognise them all, I will not lose my passion for progress in Northern Ireland—for all of us, irrespective of our differences, working together in Northern Ireland. It costs me nothing to say I believe and agree that commitments that were entered into shall and will be honoured, but we cannot ignore the huge and damaging impact that the protocol has brought to society in Northern Ireland and the unease that abounds throughout my community and many others, and we have to buckle down and deliver, and solve it.

15:59
Claire Hanna Portrait Claire Hanna (Belfast South) (SDLP)
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It is a pleasure to follow the hon. Member for Belfast East (Gavin Robinson). We served together as Belfast city councillors and his voice and his views are always worth hearing. I believe that if they were the values and views projected by his party we would be in a much better position. While not seeking to put him on the spot, I think that was a very important point to make about the fact that if we, as five parties, went to the Government—if I am hearing him correctly—and spoke about how much a veterinary agreement would solve many of the problems facing us in Northern Ireland, he believes the Government would listen. I hope that that is the case, because he, like me, will know that there is progress to be made and fixes to be done on medicines. He will know that there is not a person in Northern Ireland who has been denied cancer drugs as a result of Brexit or anything else, but that constructive spirit would take us very far indeed and I would like to endorse the proposal.

January 2020, before covid and Brexit, might feel like a completely different place and time politically, but the politics of the past fortnight have been a reminder of the culture of crisis, stand-off, side deal and repeat that dogged devolution and the operation of the Good Friday institutions, and preceded the 2017 to 2020 collapse and the New Decade, New Approach deal that followed it. That came after three years in which Northern Ireland was a governance black hole. While the whole world was talking about the Good Friday agreement, its institutions were lying empty. Because of that, the agreement spans very many issues, including waiting lists, support for victims of the troubles, third-level education and childcare. Those were the preoccupations of the SDLP during the negotiations and I think they better reflect the preoccupations of the electorate as well.

It is worth reminding Members that it was not the deep desire of the power parties that restored Stormont, but the message sent by the electorate in December 2019—my hon. Friend the Member for Foyle (Colum Eastwood) and the hon. Member for North Down (Stephen Farry) were elected in that election—and the message sent by striking healthcare workers. Credit for getting power back to the Good Friday institutions goes to them, along with, it must be said, the former Secretary of State, the right hon. Member for Skipton and Ripon (Julian Smith), who by all accounts and all regards is the best Northern Ireland Secretary we have had in a generation. His commitment was matched by the then Tánaiste Simon Coveney. They, and particularly the healthcare workers and the striking nurses in Northern Ireland, deserve credit. They and other people voted for a break in the stalemate, but they expect and need a lot more than just the absence of stalemate. They want delivery on all the policy commitments in New Decade, New Approach and in terms of change to the governing culture.

There is no doubt that covid has been an immense drain on political and legislative time, and there is no doubt that Brexit has been a drain on good will and political energy, but neither of those explains or excuses the paralysis that has beset many of the commitments in New Decade, New Approach. Culture and language fall into that category. They are not, in fact, among the most complex and challenging issues. The New Decade, New Approach commitment endorses a three-dimensional legislative compact that was drawn up by the Office of the Legislative Counsel in Northern Ireland, so it was not one-sided or maximalist. It means that many of those who for many years and in good faith campaigned strongly and honourably for an Irish language Act will see that the legislative guarantees are not as free-standing or as far-reaching as they wished to see.

That should have meant that those who opposed the Act would be encouraged to recognise that its nature, balance and thrust were not in one direction and not out of proportion in terms of purported cost or unwanted impact on anybody. Edwin Poots himself, as he was departing, said that one of Unionism’s faults is that it plays up the wins of others and plays down its own achievements. This is a very good example of that. This was an opportunity for the DUP to agree to a balanced package and I regret that it seems to be rejecting it. The Assembly has passed other legislation since its resumption last January, so there is no reason it could not pass this “Blue Peter” “Here’s one we made earlier” Bill. The only reason it has not passed it is resistance and reluctance. The former First Minister Arlene Foster waited until her resignation statement to commend the package, but that was a proportionate perspective that could have been used, in partnership with her fellow First Minister, to bring forward the Bill that would have been a significant part of an honourable legacy for her, a meaningful gesture towards a shared future and a signal that the DUP is willing and able to share power.

Like the hon. Member for North Down, the King George V speech has caught my attention today as well. There is a lot in it that is worth quoting. I am not usually given to quoting monarchs, but perhaps some of my DUP colleagues will take it more from a former king than they will from their neighbours. As well as the points that the hon. Member outlined, he talked about a Parliament for Northern Ireland being

“an instrument of happiness and good government for all parts of the community”.

He talked about

“moderation, with fairness and due regard to every faith and interest”

and about bringing forward

“a new era of peace, contentment, and good will”

upon

“sure foundations of mutual justice and respect.”

I say, 100 years on: please can we have another crack at doing that? The words ring very true.

If the issue is the UK Government legislating over your head on the Irish language, the opportunity still exists to send a signal to your neighbours that you are prepared to do it on their behalf. Withholding legislation on language as a worn-down bargaining chip is not a basis for meaningful sharing—neither, though, is Sinn Féin’s tactic of withholding the whole of devolution to achieve it. Sinn Féin criticised the DUP for withholding its nomination and the DUP criticised Sinn Féin the week before for withholding its nomination, with each party righteously condemning the mirror-image tactic from the other and each instalment draining away belief and faith in power sharing among the general population.

Over recent weeks, against the backdrop of no movement on bringing forward these legislative terms, the SDLP, as an honourable party to New Decade, New Approach, explored with the Secretary of State whether those pre-published legislative terms could be included by amendment to this Bill, which is, of course, a vehicle for advancing those aspects. Although he rested the onus us to design the relevant amendments that might be scoped, we established that the Government were not opposed in principle or practice to Westminster legislating for that, on the basis that it had been signed off by all five parties. We are grateful for the assistance of Clerks and drafters in navigating those possibilities.

We had proposed to table specifically and faithfully the legislative drafts that were agreed by all those parties and drafted by the Office of the Legislative Counsel—no more and no less were we going to do—and, in draft format, those amendments run to only 23 pages, so they would be even fewer in Bill form. Now that the Government have declared in public what they had agreed in private, the obvious question occurs: why not now with the means available to us with this Bill? There is a real argument, we believe, that it would be better to incorporate this package into this miscellaneous approach to New Decade, New Approach rather than leaving it until October when other factors might be at play. We have seen slippiness and slipperiness when it comes to previous commitments. As others have outlined, we are grossly overdue legislation relating to victims and New Decade, New Approach, so we do not and cannot have blind faith in how the Government will discharge that commitment, or what concession or other factor they will read into it in the autumn. We hope that the people of Northern Ireland and the Gaeilgeoirs of Northern Ireland do not look back in a few months on this as a missed opportunity.

This tale of the last few weeks of bad faith and foot dragging are the last 14 years of stop-start governance in microcosm. For all that the letter and spirit of the agreement are used as an amulet for people for or against Brexit, the spirit of power sharing and working the common ground, and of building trust through mutual endeavour, are quite absent from the Assembly. Watching that daily in the media drains away those feelings in the public. We are now very far off the vision that in 1998 created infrastructure and architecture to manage differences and to be able to realise a better future in Northern Ireland.

There are other issues on which we will table amendments, and we will not resile from New Decade, New Approach, but we will put forward ways that would strengthen the provisions in that and correct some of the divergence from the concepts of the Good Friday agreement—on, for example, restoring the joint nature of the First Minister’s office, which has been distorted by St Andrews. That was a centrepiece of strand 1, and although we hear a lot of waxing about parallel consent, that was the part of the Good Friday agreement that spoke about parallel consent and about the Assembly collectively nominating the First Ministers who would then be accountable to it. That foundation that would embed those concepts in the Assembly as an act of leadership from the top down was stripped out by the DUP and Sinn Féin at St Andrews.

Similar corrections to the petitions of concern are sensible and valid. It was, as my hon. Friend the Member for Foyle outlined, a mechanism designed to protect minorities, but instead it is used to thwart them. In fact, it is now thought of as a byword for veto, and that extends to the vetoholic tendencies of the DUP in the Executive and other corruptions of the agreement inserted at St Andrews. The three-Minister provision is causing absolute logjam in the Executive office and prevents Ministers from bringing forward progressive and productive legislation because they know that it will be thwarted at the Executive.

There are a number of other good points to be made and discussed around the issue of designation, which runs the risk, when it is wielded as it is by the larger parties, of locking in and embedding some of the sectarianism that the Good Friday agreement was designed to phase out. We look forward to discussing some of those issues.

Stability and sustainability ultimately will not come from rules and procedures; they will come from people believing, understanding and accepting that sharing power with their neighbours is the right thing to do, and not just sharing that power because the law tells them that they cannot make decisions without it. The right hon. Member for Orkney and Shetland (Mr Carmichael) made a number of good points about how devolution is not just about preventing conflict, because if we look at Scotland and Wales, it is of course about local power being in local hands, and about people being able to realise opportunities that those elected close to the ground will understand.

The hon. Member for Belfast East about spoke about common grounds and shared values. They are what we all want; they unite people of all backgrounds in south Belfast and in Northern Ireland as a whole, but they are currently absent from the top the Assembly. They would be displayed if the DUP were willing to advance all the aspects of the New Decade, New Approach deal, and if they were, legislation would not be required from this House.

16:12
Jim Shannon Portrait Jim Shannon (Strangford) (DUP)
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I want to give the perspective of those in the Unionist community who are very disillusioned and have great concerns, which I will express at some length in the time that I have been allocated.

As a Northern Ireland MP, a Unionist and a resident of Northern Ireland, I must express my great concern about the work and movement of this House, not in the Bill, which has been introduced in an appropriate manner and by the correct mechanism, but on Northern Ireland issues, which the Minister has not deigned to lay before Members of the House or indeed answer to in the House. I very much look forward to the Minister’s reply to what I and other Members have said from all perspectives across the House, however.

It is very fitting that the Bill is before the House because the fractious state of emotions in Northern Ireland could well see an election called shortly. Indeed, it could be called before the Bill has managed to make its way through the due process. I am not saying that that will happen or that I want that to happen, but it could happen because of where we are. I have often taken due process for granted, but it is absolutely missed when it is not in place.

I was beyond shocked last Thursday to hear that a deal had been done—it was promoted as such on TV—with Sinn Féin to deliver on the Irish language aspect of the New Decade, New Approach deal, especially when so many life-changing aspects have been left behind. The Bill brings in aspects of the new deal, yet I do not see the Irish language aspect anywhere, as my hon. Friend the Member for Belfast East (Gavin Robinson) said. It really does make me angry and annoyed whenever we look at these things. Perhaps when the Minister replies he can explain why there is an intention to bring proposals before this House, perhaps by September this year, if there is not some sort of arrangement or deal, yet promises have been made and I, as the representative for Strangford, have no idea what they contain. Why is it that we should be made aware of this via the TV news at a half past seven on a Thursday morning? Why are these deals done behind backs?

To be frank, the irony of this Bill coming before us today, after the backroom dealings of last week, is not lost. The Bill has been brought in, ostensibly, to firm up democracy—a process by which we are all here in the House and in which we all believe, and to create a path forward—yet the actions of last week, in tandem with the Northern Ireland protocol, have angered and upset people and made them question the very fact of their being as British as those in Finchley. Are we as British as those in Staffordshire, London and elsewhere?

The protocol has left the people of Northern Ireland shaken in the ties that bind to this place. There is a feeling of anything goes for one community: “Have your thousand-strong funeral, your two-tier policing and your Irish language brought in by stealth—sure, you have your cake and then you can have my cake as well.” That is how some people feel. The anger is palatable and can be cut with a knife in Northern Ireland at this time. It really concerns me to see the republicans making a quick call to have the Irish language circumnavigate the process of devolution, when they refuse to come here and take their seats in this place to bring such a measure forward democratically, if they felt they could do that. It would be laughable were it not so serious and were tensions in my community not at boiling point at this moment in time.

I will never condone the actions of some who burn buses and destroy property, but I absolutely understand the frustration behind that—frustration inflamed by the Secretary of State just last week, when he annoyed many people to an extent that I am not quite sure he understands. There are those who will never burn a bus or step out of line, and I thank God for those people. Everyone in this House and on this side of the Chamber would be among those people, but there are many others who will never resort to that either. There are those who have signed the petitions against the protocol and lawfully waited to see the democratic process at work, and those who have contacted my office and other offices with issues to do with keeping their businesses afloat—they do it all appropriately and according to the legislation, following it religiously—then see the background dealings and threats and wonder why they continue to do the right thing only to be done over again. Some of the strongest Unionists I know have told me that they question why it is that they cling to their Britishness when their Government are content to step in for things that are important to the republicans but avoid the things that have mattered over the years for us.

I have great concerns. During the last collapse of Stormont, I came to this House repeatedly, and I am probably one of those who have spoken more on the Northern Ireland protocol over the last period of time than most other MPs. I have repeatedly asked the Government to step in and act for education, for our health service and for our veterans, yet the answer is always the same: “We cannot overstep the democratic process.” Well, they can if it suits them, but not if we ask for some things that are really important. One constituent suggested to me—indeed, it has been suggested by many constituents—that not overstepping the democratic process is only the case if the normal person is asking: representatives of unapologetic terrorism can have every whim satisfied and looked after. I find myself unable to dispute that assertion from my constituent and many others.

The action taken by the Government to go above the Assembly to implement any form—any form—of Irish language measure will of course mean that every aspect of the New Decade, New Approach agreement must be administered and wholly funded by the Government. It is not simply about the electoral forms presented today and on which the Minister will speak shortly. How much funding has been sourced to implement the other aspects of the deal? Others have referred to health, as will I, because I am my party’s health spokesperson in this place and I am well aware of the precarious position of the health sector in Northern Ireland. Some 300,000 people are on the list waiting for their examinations and surgical operations. People are waiting for knee replacements, for hip replacements, for their tonsils to be removed, for cataracts—the whole thing is enormous. People are waiting to settle the ongoing pay dispute for our nurses.

When I see and hear about the Irish language, I just ask myself, “What’s the priority?” I ask my constituents what the priority is, and even some of those of a different political persuasion from me in relation to Unionism say, “The most important thing is health, education, policing, roads.” They want to see the money spent on those things, not spent on an Irish language that only 5% of the people of the Province actually speak.

We need to introduce a new action plan on waiting times and deliver the reforms on health and social care set out in the Bengoa report. I become intensely frustrated when I see the numbers of people who come to me and my office with issues about getting operations. Today a guy told me that he has been waiting a number of years for an operation on his knee, and some of those waiting for cancer operations have unfortunately not been able to have their operation because they are no longer here. When I see the waiting lists, and the need for such operations, I think that is where we should be spending the money.

On education, the Executive should urgently resolve the current teachers’ industrial dispute, and address resourcing pressures in schools. A number of schools have contacted me about their funding and the money available for maintenance, and every school must have access to a sustainable core budget to deliver quality education. The Executive should establish an expert group and propose an action plan to address links between persistent educational under-achievement and socio-economic background, including the longstanding issues facing working-class Protestant boys. My hon. Friend the Member for Belfast East and I know a number of young Protestant boys who have under-achieved.

Today in the press the Chair of the Education Committee referred to under-achievement by young white boys and men on the mainland. We have had that in Northern Ireland for a while, but what is being done to address it? It is a massive issue for my constituents, and when it comes to spending money, we should spend it on those things, not on something that is unnecessary at this time. The Executive should also deliver a new special educational needs framework to support young people with special needs to achieve their full potential. We must consider the mental health of our children and look at these massive issues.

On security, the Executive need to increase police numbers to 7,500. Ask my constituents what they want to spend the money on. Should we spend it on the Irish language, or on recruiting new police officers to protect those in their homes, stop antisocial behaviour, and have a more obvious platform. This is the tip of the iceberg, and I would welcome hearing from the Secretary of State how such measures will be implemented. How much funding outside the Barnett consequentials has been set aside to deliver on the things that are important to people—health and education—as opposed to those things important to the Sinn Féin agenda, to the detriment of health and education?

This deal was published in January 2020, and we have spent the last 18 months being battered by coronavirus and decimated by the Northern Ireland protocol. It frustrates me greatly, and there is the threat of worse to come under full implementation of the protocol. The person on the street is praying that their business will see it through so that they can keep their job and staff. People are concerned about whether their loved one who has been diagnosed with cancer can be treated quickly, or they are waiting four years—or longer—for knee surgery. Parents wonder whether they can get a funded nursery place for their child in their town, yet it seems that the republican agenda comes before life and before quality of life. Hon. Members will understand the frustration I am expressing on behalf of my constituents, who have told me how angry they are.

To do anything less than implement all the agreement is tantamount to the Government admitting that they are yet again bowing the knee to the republican agenda against the process of democracy. I am a democrat and I have always believed in the democratic process. I want to see it working. When the democratic process works, it calms people, and they see it can work. If it does not work, people say, “Well then, something else will have to work.” To go against that democratic process is abhorrent to every right thinking person in the Province, and it should also be abhorrent in this place. If the Minister of State, and others, can appreciate my annoyance and the abhorrence felt by me and those I represent, we will have made a step in the right direction.

Yet again we have been strong-armed by the thirst for a new historical narrative, and a new attack from Sinn Féin’s never-ending litany of ways to take from the British Government without improving the quality of life of even one person in Northern Ireland. Indeed, many of its supporters would like issues such as health, education, policing and roads to be prioritised.

It is up to the Assembly democratically to outline the form of any language changes, not this House. This is a sensitive issue and, as with the issues of abortion and the Northern Ireland protocol, our democracy has again been overruled. Whether there is a vote today is not the issue. The voice of the people of Strangford matters, and I hope I have expressed it on their behalf today. They have elected me to do a job, and I want to ensure that their viewpoint is heard in the Chamber. Those people, of all persuasions, matter to me. Their right to devolution matters to me. They have a right to see their taxes pay for more operations, smaller classes in education, greater help for special needs, and an adequate, fully funded and numerically strong police force. All of those things matter to them a lot more than whether a sign is in a language that they do or do not understand and have little desire to understand.

This House did the people of the Province a disservice last week when this was announced. There is time to correct it, to do the right thing and to remind the people of the Province why we are better off together, instead of making all of those who have treasured their British identity all their lives wonder why they have treasured it and whether the blood of their loved ones was shed in vain.

16:25
Alex Davies-Jones Portrait Alex Davies-Jones (Pontypridd) (Lab)
- Hansard - - - Excerpts

I place on record my congratulations to the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on his appointment as the leader of his party. I also thank the Members who have spoken in this afternoon’s debate, adding their rich and in many cases first-hand experiences of previous political difficulties in Northern Ireland, to enhance and improve the legislation as it stands. That point has already been far more eloquently delivered by the right hon. Member for Orkney and Shetland (Mr Carmichael) and the hon. Member for Belfast East (Gavin Robinson).

Today we have heard from the hon. Member for North Down (Stephen Farry) and the former Secretary of State, the right hon. Member for Skipton and Ripon (Julian Smith), about the benefits of using this Bill to strengthen the ministerial code and the promotion of the Nolan principles of public life. If I may echo the words of the hon. Member for North Down, this House and the Government could benefit from such a provision, given the issues we have seen over previous weeks.

We have also heard the hon. Member for Gordon (Richard Thomson), the right hon. Members for East Antrim (Sammy Wilson) and for Forest of Dean (Mr Harper), and the hon. Members for Foyle (Colum Eastwood), for Upper Bann (Carla Lockhart), for Belfast South (Claire Hanna) and for Strangford (Jim Shannon) make passionate cases for the benefits of devolution. This is an area extremely close to my heart, as an MP from a devolved nation. I believe that it was the Chair of the Select Committee, the hon. Member for North Dorset (Simon Hoare), who stated that devolution should not be treated like a Woolworths pick‘n’mix, and I wholeheartedly agree.

As my hon. Friend the Member for Sheffield, Heeley (Louise Haigh) has outlined, as well as delivering devolution, the Belfast/Good Friday agreement remains one of Labour’s proudest achievements in office. We have made it clear that we welcome these attempts to safeguard power sharing and improve the sustainability of the Executive, the Assembly and the institutions and decision making within it. The provisions in the Bill are a sensible and necessary evolution of the post-Belfast/Good Friday agreement landscape and should promote greater stability and good governance. It is for that reason that we will support the Bill as it makes its way through the House.

However, as we have heard this afternoon, it is unfortunate that due to the prolonged delay in introducing this legislation, many months after the agreement was signed, its crucial provisions will now be utterly redundant in the current political crisis. The unfortunate lack of urgency from Ministers means that the provisions of the Bill are highly unlikely to come into force until winter. Will the Minister therefore explain why the commencement provision is for two months after the legislation receives Royal Assent, and not immediately?

While ensuring necessary scrutiny, the Opposition will do what we can to ensure that the important provisions of the Bill are in place as quickly as possible. The current situation clearly demands it. Nevertheless, as my hon. Friend the Member for Sheffield, Heeley has made clear, we will, working with colleagues from Northern Ireland and across the House, seek to tighten up the provisions of the Bill.

On the caretaker Executive, we will seek to bring much greater clarity to the powers that Ministers are entitled to exercise during a caretaker period; to probe what constitutes a caretaker Executive with sufficient cross-community support; to guarantee the sustainability of decision making; and to ensure the proper consideration of equality duties and good governance. On the petition of concern, while we welcome amendments in and for themselves, we also encourage Ministers to look at the other effective vetoes, which are being used in much the same way as the petition of concern. Without careful scrutiny, there is a danger that much-needed reform of the petition of concern will simply displace veto activity elsewhere without addressing the problem itself.

Speaking more broadly, what is not in the Bill is as significant as what is in it. Twenty-three years on from the Belfast/Good Friday agreement, progress has undoubtedly stalled over the past decade. The unmet promise of the Good Friday agreement, including the Bill of Rights, integrated education and housing, and a civic forum to give citizens a proper say in the functioning of the Government, has been held back for far too long.

Take the Bill of Rights, for instance—a Westminster responsibility. Decades on from the Good Friday agreement, it has still not been implemented. Does the Secretary of State agree that if provisions designed to underpin the rights of all communities are not delivered, confidence in the agreement itself is diminished? Does the failure to bring that forward in this Bill not represent a real missed opportunity to properly bolster the Good Friday agreement?

The same can, of course, be said of the Civic Forum, which was established under the Good Friday agreement and was supposed to give communities a real stake and a say in decisions made about them. Given the real need for communities to see the Assembly working for them, do Ministers back its reintroduction?

Furthermore, the New Decade, New Approach agreement was agreed 18 months ago, yet the Government have held just one meeting on its implementation and many of the commitments remain unmet. Is it not time that the Government delivered on the promises made and demonstrated clearly to communities in Northern Ireland that the deal to restart power sharing is working for them?

Labour look forward to offering the careful scrutiny this Bill demands as it passes through both Houses of Parliament. Although we support the technical provisions within the Bill, we believe that, with ambition and vision, the Bill could and should go much further and do much more to secure the foundation of the Good Friday agreement and build on its promise.

16:30
Robin Walker Portrait The Minister of State, Northern Ireland Office (Mr Robin Walker)
- Hansard - - - Excerpts

It is a great pleasure to respond to such a well-informed debate and I pay tribute to all the Members who have taken time to speak this afternoon. As the hon. Member for Pontypridd (Alex Davies-Jones) said, Members from across the House have spoken with real passion and experience.

I am very grateful for the support we have heard from all parties for the Second Reading of the Bill. I recognise that there are a number of issues that people will want to explore in Committee. I look forward to those debates and hope they can be as well informed as this debate has been.

I add my congratulations to the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on his election as leader of the DUP. I very much look forward to working with him in the months to come.

As we have heard, the Bill being debated today will implement aspects of the New Decade, New Approach deal, which the parties agreed to in January 2020. We will reform the sustainability of the institutions, updating the ministerial code of conduct and reforming the petition of concern mechanism. These measures were all agreed by the main political parties in Northern Ireland upon restoring the Executive. It was a pleasure to hear from my right hon. Friend the Member for Skipton and Ripon (Julian Smith), the former Secretary of State, who did so much to reach that agreement.

We heard from a number of Members in today’s debate who played a crucial role in securing that deal. I pass on my congratulations to all of them for getting there. We have heard many passionate speeches from all sides, and from all sides of the debate in Northern Ireland, about the importance of devolution. It was the achievement of the deal to restore devolution.

We have made good progress on the delivery of the commitments that the UK Government made under the New Decade, New Approach agreement, which helped to bring that about. We will continue to support the delivery of those commitments. I draw the House’s attention to a few examples beyond the scope of the Bill, such as our support for the resolution of the nurses’ pay dispute by securing an advanced drawdown of funding; the release of £556 million of the £2 billion-worth of funding agreed in the deal; the revision of the immigration rules governing how people in Northern Ireland bring their family members to the UK, which took effect from August 2020; the appointment of a Veterans Commissioner in September 2020; the launch of the programme for the centenary of Northern Ireland in 2021, supported by £1 million from the shared history fund; the establishment of an independent fiscal council; and regulations to bring Union flag flying days in line with guidance for the rest of the UK.

The hon. Member for Pontypridd referred to the Secretary of State’s meetings. He has been meeting regularly with the First Minister and Deputy First Minister in the Executive. There have also been two formal meetings including the Irish Government over that time. Those will continue.

I thank everybody for the contributions we have heard. I will not be able to respond to all of them because I have been asked to keep my remarks to a reasonably short period of time, but I did want to respond to the point that the hon. Member for Pontypridd made about so-called caretaker Ministers, a point that was also reflected on by the right hon. Member for East Antrim (Sammy Wilson) and my right hon. Friend the Member for Forest of Dean (Mr Harper).

As part of NDNA, Ministers will remain in office in a caretaker capacity to allow for greater continuity in decision making, but those Ministers will be required to act, as the hon. Member for Belfast East (Gavin Robinson) made very clear, within well-defined limits, including as set out in the ministerial code and in accordance with the requirement for an Executive Committee to consider any decisions that are significant, controversial and cross-cutting. The hon. Gentleman made the point well; in the case that the Executive Committee is not there, Ministers cannot go beyond their brief. As was also demonstrated by that exchange, there are important decisions that could be taken, which is a much better position than we saw during the period that the hon. Member for Belfast South (Claire Hanna) described as a black hole in governance—during the absence of the devolved institutions. I am sure we can explore the point further in Committee, but there are clearly defined limits on the role of those Ministers.

On the issue of language, we heard many passionate points. This is not, as we all accept, part of the Bill before us today. The hon. Lady asked a fair question: why not, and why not now? I think there is a simple answer to that question, which we have heard a lot about in the debate today, and I think everyone actually agrees that this would be best dealt with in the devolved space. I have met both the Ulster Scots Agency and Conradh na Gaeilge in the last few weeks; apologies if my pronunciation is not right there. I have met some of the key bodies on both sides arguing for progress on the cultural issues, and what they are saying very clearly is that they want to see this delivered by the devolved institutions. We want to give the devolved institutions every chance to do that, and we do not therefore want to legislate on this issue at this time.

Colum Eastwood Portrait Colum Eastwood
- Hansard - - - Excerpts

I appreciate what the Minister says, and of course this would be better done in the Assembly, but I do not know where he has been, because I have heard very clearly today that the DUP will not support it going through the Assembly on a quick timeframe, so why not now—why wait?

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

I have made the point that we want to give every opportunity for that to happen. The Secretary of State has also made this clear, and he did so in a written ministerial statement. I accept the frustration and the anger that the hon. Gentleman expresses on behalf of many of his constituents, but there was a clear written ministerial statement that set out the approach we are taking, and if there is not progress by September, then we have agreed that this House would step in.

My right hon. Friend the Member for Forest of Dean asked a crucial question on this point, and I think it is a very important one about where we do this. The answer should be that we never want to be doing it and we never want to have to do it. The Government believe in empowering and supporting the devolution settlement in Northern Ireland and across the UK. That is why we are bringing forward this Bill to strengthen the stability of the devolution settlement in Northern Ireland. We do not take lightly any decision to intervene in legislation for Northern Ireland, and would only ever do so on devolved issues as a last resort. I agree with my right hon. Friend that it is incumbent on us to support the Executive and the Assembly to legislate for themselves. However, I am sure he would also agree that, as co-guarantors of the NDNA agreement, it is incumbent on us to deliver the package it promises, if necessary, to ensure that can be delivered. The point of the intervention was to get the devolved institutions restored and to get Ministers nominated so that we could have an Executive in place.

Sammy Wilson Portrait Sammy Wilson
- View Speech - Hansard - - - Excerpts

I have a list the length of my arm of other issues contained in the New Decade, New Approach document that are not being delivered on. Why does the Minister feel that these cultural issues are a greater priority than dealing with the reforms in the health service and dealing with the waiting list of 350,000 in the health service? Why is he not stepping in to deal with that as a priority, rather than these cultural issues?

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Actually, I very much welcome the fact that the Health Minister has set out the approach to dealing with those issues. As I have said, we have already provided some of the up-front funding to unblock some of the health issues that Northern Ireland was facing in the absence of the Executive, but of course there is more to do on that front.

Jim Shannon Portrait Jim Shannon
- Hansard - - - Excerpts

Will the Minister give way?

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

The hon. Gentleman, from whom I will take an intervention—he is always a very courteous intervener—has made the point very powerfully about the priorities of his constituents on these issues. These are all devolved issues that we want an Assembly and an Executive in place to deliver on.

Jim Shannon Portrait Jim Shannon
- Hansard - - - Excerpts

The Minister is most generous in giving way, and I thank him for that. Does he accept that 100% of the people of Northern Ireland want the health issue sorted out, 100% of the people of Northern Ireland want education sorted out, 100% of the people want police recruited and in place, 100% of the people want the roads issue sorted out as well, and only 5% of those in Northern Ireland actually speak the Irish language? Put it in order of priority. The priorities are health, education and policing, not the Irish language.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

I recognise the point the hon. Gentleman is making, but I think the issue is that these were the areas agreed in NDNA. They were hard-fought, and they were negotiated, as we have heard, very strenuously between the parties. No one got precisely what they wanted, but at the end of the day these were the compromises that were agreed and we need to move forward with them. It is crucial that the Executive are in place to deliver on those issues.

This Bill will help to deliver greater stability and transparency to governance in Northern Ireland.

Mark Harper Portrait Mr Harper
- View Speech - Hansard - - - Excerpts

Will the Minister give way?

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

I will have to press on, I am afraid. I am under instructions, which my right hon. Friend will understand, from the Whips to get on.

We are looking forward to talking further about the NDNA agreement with the Irish Government during the British-Irish Intergovernmental Conference later this week. I do want to commend this Bill to the House, and I do want to thank those from all sides of this House for the profound case we have heard for having strong devolved institutions in place. That is what all of us want to get on with, and this Bill will help to take that forward.

Question put and agreed to.

Bill accordingly read a Second time.

Northern Ireland (Ministers, Elections and Petitions Of Concern) Bill (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Northern Ireland (Ministers, Elections and Petitions of Concern) Bill:

Committal

(1) The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 8 July 2021.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and Third Reading

(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.

Other proceedings

(7) Any other proceedings on the Bill may be programmed.—(Scott Mann.)

Question agreed to.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (First sitting)

The Committee consisted of the following Members:
Chairs: Sir David Amess, †Graham Stringer
† Anderson, Stuart (Wolverhampton South West) (Con)
† Benton, Scott (Blackpool South) (Con)
† Brereton, Jack (Stoke-on-Trent South) (Con)
† Butler, Rob (Aylesbury) (Con)
† Davies-Jones, Alex (Pontypridd) (Lab)
† Dines, Miss Sarah (Derbyshire Dales) (Con)
† Eastwood, Colum (Foyle) (SDLP)
† Farry, Stephen (North Down) (Alliance)
Haigh, Louise (Sheffield, Heeley) (Lab)
† Hanna, Claire (Belfast South) (SDLP)
† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Robbie (Keighley) (Con)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Robinson, Gavin (Belfast East) (DUP)
† Sunderland, James (Bracknell) (Con)
† Walker, Mr Robin (Minister of State, Northern Ireland Office)
Jo Dodd, Sarah Ioannou, Committee Clerks
† attended the Committee
Witnesses
Daniel Holder, Deputy Director, Committee on the Administration of Justice
Professor Jonathan Tonge, Professor of Politics, University of Liverpool
Lilah Howson-Smith, former special adviser to Julian Smith at the Northern Ireland Office
Public Bill Committee
Tuesday 29 June 2021
(Morning)
[Graham Stringer in the Chair]
Northern Ireland (Ministers, Elections and Petitions of Concern) Bill
09:25
None Portrait The Chair
- Hansard -

Before we begin, I have a few preliminary announcements. Hon. Members will understand the need to respect social distancing guidance, in line with the House of Commons Commission decision. Face coverings should be worn in Committee unless Members are speaking or medically exempt. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent mode. I remind Members—sometimes people forget—that tea and coffee are not allowed during sittings.

Today we will first consider the programme motion on the amendment paper, then a motion to enable the reporting of written evidence for publication and then a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope that we can deal with those matters formally, without debate.

Ordered,

That—

1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 29 June) meet—

(a) at 2.00 pm on Tuesday 29 June;

(b) at 9.25 am and 2.00 pm on Tuesday 6 July;

(c) at 11.30 am and 2.00 pm on Thursday 8 July;

2. the Committee shall hear oral evidence in accordance with the following Table:

Date

Time

Witness

Tuesday 29 June

Until no later than 10.30 am

The Committee on the Administration of Justice;

Professor Jonathan Tonge, University of Liverpool

Tuesday 29 June

Until no later than 11.25 am

Lilah Howson-Smith

Tuesday 29 June

Until no later than 2.30 pm

Sir Jonathan Stephens

Tuesday 29 June

Until no later than 3.15 pm

Emma Little-Pengelly

Tuesday 29 June

Until no later than 4.00 pm

Mark Durkan

Tuesday 29 June

Until no later than 4.45 pm

Alex Maskey, Speaker of the Northern Ireland Assembly;

Lesley Hogg, Clerk of the Northern Ireland Assembly;

Dr Gareth McGrath, Director of Parliamentary Services, Northern Ireland Assembly



3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 8 July.—(Mr Robin Walker.)

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Robin Walker.)

None Portrait The Chair
- Hansard -

Copies of written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Mr Robin Walker.)

09:27
The Committee deliberated in private.
Examination of Witnesses
Daniel Holder and Professor Jonathan Tonge gave evidence.
09:28
None Portrait The Chair
- Hansard -

We are now sitting in public again and the proceedings are being broadcast. Before we start to hear from the witnesses, do any Members wish to declare any interests in connection with the Bill? No. We will now hear oral evidence from Daniel Holder of the Committee on the Administration of Justice, and from Professor Jonathan Tonge of the University of Liverpool. Before calling the first Member to ask questions, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion to which the Committee has agreed. For this session, we have until 10.30 am. May I ask the witnesses to introduce themselves, starting with Daniel Holder?

Daniel Holder: Good morning. I am Daniel Holder, the Deputy Director of the Committee on the Administration of Justice, a Belfast-based human rights organisation.

Professor Tonge: Good morning, and thank you to the Committee for the invitation to be here. I am Professor Jon Tonge, Professor of British and Irish Politics at the University of Liverpool and author of various books on politics in Northern Ireland.

None Portrait The Chair
- Hansard -

Thank you very much. Minister, would you like to ask the first question?

Robin Walker Portrait The Minister of State, Northern Ireland Office (Mr Robin Walker)
- Hansard - - - Excerpts

Q Thank you. It is a pleasure to serve under your Chairmanship, Mr Stringer. This is a question for Daniel Holder. In the briefing note that your organisation prepared for the Second Reading of this Bill, you welcomed the fact that,

“the current bill will provide a level of legislative reform intended to return the Petition of Concern to its intended GFA purpose.”

Could you tell the Committee about the limitations with the current mechanism and how provisions within this Bill will return the petition of concern to its intended purpose, in your view?

Daniel Holder: If we look back at the intended purpose of the petition of concern, it was very much linked to a level of scrutiny of what would be objective rights and quality standards. Every time a petition of concern is tabled, unless there is a cross-community vote to the contrary, it was to be referred to a special committee, the Ad Hoc Committee on Conformity with Equality Requirements. This serves a similar function to the Joint Committee on Human Rights at Westminster in actually scrutinising provisions of a contested piece of legislation that has been referred to a petition of concern against standards that include the ECHR, but also the Northern Ireland Bill of Rights. There is obviously a significant gap there, as the Northern Ireland Bill of Rights has not been put into place.

One of the problems, however, is that a committee has never been established as a result of a petition of concern. Instead, what has essentially happened is that the original intention of the petition of concern has been turned on its head somewhat. At times, it has actually been used not just for party-political purposes but to block equality of rights initiatives rather than as an equality of rights-based tool. Therefore, we do welcome the reform that is within both the New Decade, New Approach agreement and the Bill.

However, my recommendations to the Committee have identified one weakness, which is that essentially what is in the Bill will replicate what is in the current primary legislation regarding the establishment of the Ad Hoc Committee on Conformity with Equality Requirements. Unfortunately, to date that has not proved sufficient to ensure that standing orders are drafted in a way that ensures that the ad hoc committee is convened every time a petition of concern is tabled, as the Belfast agreement originally intended. That is one area I wanted to draw to the attention of the Committee, so that it can deal with that codification in the primary legislation to ensure that the commitment in the NDNA agreement to return to the original purpose of the Good Friday agreement is met.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q Thank you. With regard to that second area, NDNA also committed to setting up a committee within the Assembly to look at the Bill of Rights and take that work forward. Are you following the work of that committee, and do you have any views as to how that is progressing?

Daniel Holder: Yes, we have given evidence twice to that committee—once in the capacity of the CAJ and secondly as co-conveners of the Equality Coalition, which is a network of equality and rights non-Governmental organisations that we co-run with UNISON. It has been extremely important that that committee is established, and it is progressing its work. We keep coming back to our evidence that really the Bill of Rights was supposed to be a safeguard to prevent the type of abuse of power, rights deficits and discriminatory decision making that characterised not only the old Stormont Parliament but patterns and practices that re-emerged and were instrumental in the collapse of the institutions in 2017.

So it is in some senses to us not surprising that safeguards that were envisaged within the agreement that have not been put into place have led to a situation whereby Stormont becomes unworkable and dysfunctional. I think it is only if these safeguards over the exercise of both Executive and legislative powers are properly put into place that the institutions should begin to function as they were originally intended to.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q You recommended that MPs examine changes to address the St Andrews veto. Can you explain what that is and how often it has been used?

Daniel Holder: It is the case that since NDNA not a single petition of concern has been tabled. Its use has become, it appears now at least, politically untenable. There is a significant risk that the problems that were associated with the petition of concern will simply be displaced and picked up by the use of other veto-type mechanisms.

So there are two vetoes: one is the St Andrews veto, which is whereby any significant or controversial decision that a Minister has taken must be referred to the full Executive unless it is already within an agreed programme for government, but, of course, despite the draft being in NDNA, we do not have an agreed programme, so at the moment it means practically any decision.

We have managed to obtain under freedom of information the amount of times this veto was used in the first 11 months of the current mandate. It was used six times. On each occasion it was invoked by DUP Ministers. On the first three occasions it was used to block provision for early medical abortion services and engagement with women’s reproductive rights. On two other occasions, which were quite public, it was used, again by DUP Ministers to block proposals from the Health Minister for public health measures to contain the pandemic. On a final occasion it was used to block an SDLP proposal seeking an Executive position on the extension of the Brexit timeframe. Those six occasions are the same number of occasions that that particular veto was exercised during the entirety of the 2007 to 2011 mandate, so there is a significant risk of displacement now.

The second veto that we have noticed has been readily used is a provision in the ministerial code whereby the First and Deputy First Ministers both must agree on agenda items for the Executive, which in practice gives either a veto. Although we do not have a full list of the occasions it has been used—that has been withheld from the freedom of information requests that we submitted—we certainly know that it has been used. For example—as referenced in a UK Government report to the Council of Europe—it was used to block a timeframe for adopting the Irish and Ulster Scots strategies, despite them being legal requirements. It was used to block the draft budget from being on the agenda for, I think, around a month and a half of the Executive. Most recently, this month, the communities Minister has stated that particular veto was used 17 times to prevent legislation to close loopholes in welfare legislation being tabled for the Executive.

The Justice Minister has also referenced occasions where perhaps one of the two vetoes, we do not know strictly which one, was used to block for a period of time the Justice Bill being introduced into the Assembly that dealt with issues around gender-based violence. Indeed, the Health Minister has publicly stated that the gender veto was used to prevent, until this week, I think, legislation being taken forward on opt-out for organ donations. So, there is a real issue whereby we could deal with the petition of concern but be left with the same problem simply being displaced on to other veto mechanisms that are well outside what was originally intended by the Belfast Agreement, which was that such mechanisms would be safeguards scrutinised against rights and equalities standards, which would bring a degree of objectivity as to their use into decision making.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q Given the equivalence that you see between the petition of concern mechanism and these other mechanisms in the Executive, why do you think that those reforms were not included as part of the NDNA deals? Obviously, that was something that all parties had a say in and the Irish and British Governments worked together on. Why do you think that equivalence was not delivered as part of that deal itself?

Daniel Holder: Of course, we were not in the room during the negotiations. It is possible that those who most used those vetoes perhaps resisted reforms to them. We don’t know that. But I think another factor in this is that these types of vetoes have not had the public profile that the petition of concern has had. When a petition of concern is tabled, at least it is done in full public sight on the Floor of the Assembly, whereas with the St Andrews veto and indeed the Executive agenda veto it is done within what is usually the secret world of Cabinet confidentiality of the Executive, although I think the frustrations as to the use of these particular vetoes have spilled over in the last year, which is why a lot more information about them is in the public domain.

Also, while Ministers have the St Andrews veto, the concepts of significant and controversial are deeply subjective, of course these are ministerial decisions that are still subject to judicial review. They have to be compatible with convention rights. If the Bill of Rights was in place, they would need to be compatible with the provisions of the Bill of Rights. For example, the veto over public health measures to contain the pandemic and the context in which it was exercised, we consider would probably have been unlawful if the Bill of Rights had been in place with the right to the highest sustainable standard of health integrated within it.

There have been other occasions whereby in judicial proceedings the use of these vetoes have been drawn out, but quite often they occur in secret, so a lot less is known about them.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q Thank you. Professor Tonge, in your analysis of the 2017 and 2019 elections, you identified the restoration of the Assembly and its institutions as one of the key issues facing Northern Ireland at both elections. How important do you perceive it to be for the state of politics in Northern Ireland that the Executive and the Assembly have been restored and that the Assembly is again able to legislate for Northern Ireland?

Professor Tonge: I think it is hugely important, because in successive surveys that we have done—I have directed the last four Economic and Social Research Council Northern Ireland election surveys—every time we have asked the question, “What is your preferred mode of governance?”, direct rule has never come above 15% as a preferred option. Devolved power sharing is overwhelmingly a preferred option that comes back from each of those surveys—never larger, it should be said, than in 2019, which might be seen as remarkable given the hiatus in devolution from January 2017 until just after the election in December 2019. So the public have never lost faith with devolved power sharing. They have continued to support it.

Moreover, there were substantial majorities, both in the main communities and among those who say they are neither Unionist nor nationalist, in favour of the principles of devolved power sharing, including that key decisions should be taken by concurrent majorities among Unionist and nationalist representatives. So I think you would also conclude from the 2019 election that part of the reason that DUP and Sinn Féin lost support was that they were being blamed for the absence of devolution.

When we asked, “What is the most important issue at this election?”, restoration of the Assembly was listed fourth. There were others that were higher—Brexit and the crisis in the health service pre-covid, which of course was a derivative of the absence of devolution—but restoration of the Assembly came fourth in terms of the importance of issues, and was above that among those who said they were neither Unionist nor nationalist. So clearly it is of seismic importance to keep the devolved power sharing show on the road, and that is why I endorse the vast bulk, but not everything, of what is in this Bill.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q In terms of what you have seen since then with the restoration of power sharing—obviously, the pandemic has meant that we have been living through extraordinary times; I think it is unimaginable what it would have been like to try and deal with it without the Executive in place—have you done any further research on the perceptions of the public of the period of government that we have seen?

Professor Tonge: No, because I run the general election surveys in Northern Ireland, but the Northern Ireland life and times survey has subsequently shown continuing support for devolved power sharing. That is an annual survey run by Queen’s University and the University of Ulster, and it again showed substantial support for devolved power sharing. That survey work is limited in the sense that it does not ask what we should do about reforms of power sharing. We have just heard about petitions of concern. I would endorse a lot of what Daniel said in respect of that.

The explanatory notes to the Bill talk about the petition of concern mechanism having departed from its intended purpose,

“which was to ensure that all sections of the community are protected”.

I agree, but I think petitions of concern are the least important aspect of the vetoes that often frustrate the public in Northern Ireland. I am not saying that they are museum pieces, but I think petitions of concern were a product of their time. They were a big feature of the Assembly from 2011 to 2016, with 115 petitions of concern tabled, albeit across only 14 Bills. The petitions of concern in which the DUP was involved were solo runs in the vast bulk of cases—82 out of 86 petitions of concern that the DUP signed.

However, given the reduction in size of the Assembly from 108 to 90 Members in 2016-17, and given the fact that I do not think it is conceivable that any party will get to 30 Assembly seats in the near future, the legislation before us is to some extent closing the stable door after the horse has bolted. To be honest, much as I welcome what is in the Bill in terms of the 14-day consideration before a petition of concern is tabled and the fact that there has to be two or more parties, petitions of concern are less of an issue than the forms of veto that frustrate the public, as Daniel emphasised in his evidence.

One other point I would like to make about petitions of concern is that if they are not about just a single section of the community but are about protecting all the community, is there not a case for a petition of concern to have to be signed by two parties that are not from the same section of community? Why does it not have to be signed by two parties from different sections of the community—nationalists and others, or Unionists and others, or Unionists and nationalists? That would really turn petitions of concern from communal protection into what they were intended for, which was to protect all sections of the community. That does not appear in the Bill.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q The Bill does not do anything to stop that. It requires 30 Members from more than one party, so in theory could you not have various different parties getting together to put those forward, given the way the Bill is drafted?

Professor Tonge: That is true, but there is nothing to prohibit, for example, the DUP and UUP, or on the other side Sinn Féin and the SDLP, combining to table a petition of concern, which keeps that sense of communal politics. You might think that is perfectly legitimate—that, frankly, you have to have communal protection—but the Good Friday agreement and the explanatory notes to the Bill state that petitions of concern are

“to ensure that all sections of the community are protected”.

You would still be permitting communal protection, and perhaps specifically communal protection, by allowing two parties from the same side—I use those terms advisedly, obviously—to table a petition of concern.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Sure, but I would take it as all sections of the community including those communities, but not exclusive to those communities, therefore allowing any two parties to come together, or indeed Members from some parties and none. That addresses that point. I see where you are coming from. I think you have already answered my supplementary questions in the extra information you provided on petitions of concern, so I am happy to hand over to the Opposition.

None Portrait The Chair
- Hansard -

Thank you, Minister. Before I move on to the official Opposition, I remind members of the Committee of the point I made before we started—that tea and coffee cannot be consumed during Committee hearings.

Alex Davies-Jones Portrait Alex Davies-Jones (Pontypridd) (Lab)
- Hansard - - - Excerpts

Q It is a pleasure to serve under your chairship, Mr Stringer. Mr Holder, I will come to you first, as the representative of the Committee on the Administration of Justice. The CAJ has done work in the past on the importance of the undelivered Good Friday agreement commitments and the role that, had they been implemented, they would have played in the stability of the Executive over two decades. Would you outline your thinking and your research on that?

Daniel Holder: Thank you very much. We have engaged both as CAJ and as part of the Equality Coalition, which represents a broad section of groups from across the sector. In 2013 we published a report called “Mapping the Rollback?” about the unimplemented commitments of the peace agreement, 15 years on from the Belfast agreement. It examined and produced a matrix of what had not been implemented and the problems that had caused in terms of a return to some of the patterns and practices—for example gerrymandering within housing—that had beset the previous, pre-troubles Stormont institutions.

We also produced in 2018, as a part of a coalition, what we call the “Manifesto for a Rights Based Return to Power Sharing,” which looked at the restoration of power sharing but in a manner that power sharing would not simply be restored only to collapse for exactly the same reasons that led to its implosion in 2017. That was largely beyond the renewable heat incentive issue; it was issues around rights deficits, sectarianism in decision making and a lack of safeguards to qualify Executive power in the way that the agreement originally intended.

This year, 23 years on from the agreement, we did a significant stocktake on the back of the “New Decade, New Approach” report. We again mapped the level of non-implementation of commitments in a matrix and pushed on a call to end this endless cycle where we have renegotiation and fresh agreements, then bodies reneging on the commitments and the agreements, and we end up going back into an almost endless cycle of renegotiation. We looked specifically at some of the decisions that had been instrumental in bringing down power sharing and how they could have been prevented, for example if the Bill of Rights had been in place.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q You mentioned the Bill of Rights, which is a reserved measure for Westminster. Why is it so important for the stability of the Assembly and the integrity of the Good Friday agreement?

Daniel Holder: I think the best way of answering that is to give a couple of examples. In 2017, when the Assembly collapsed, one of the straws that broke the camel’s back was what was called the líofa decision, from the Irish word for fluency. This was a decision made by the then Minister for Communities, who is currently the First Minister, to cut quite a small Irish language bursary scheme—I think it was around £50,000 —that enabled children from lower-income families to attend the summer gaeltacht schemes. That caused a huge outcry; the decision was widely seen as sectarian and it was one of the issues referenced in the Deputy First Minister’s resignation letter.

All we have to do is look back. In the same way that Ministers are very unlikely to breach the European convention on human rights because they know that would be unlawful, had the Bill of Rights been in place that decision would have been easily challengeable as unlawful. I am thinking about a Bill of Rights as in the advice of the Equality and Human Rights Commission that was delivered in 2008. A Bill of Rights that reflected that advice would have had a provision that outlawed discrimination, for example, on the basis of language. Given the background, such a Bill of Rights would have prevented such a decision from happening.

That was not the only Irish language decision that destabilised power sharing. There was a decision, again primarily by a number of Democratic Unionist party departments—the biggest impact was certainly from the Department of Education—to tear up a long-standing trilingualism policy that was in keeping with the United Kingdom’s human rights commitments under the European charter for regional or minority languages. That is the Council of Europe treaty that was signed as a result of the Belfast agreement, with specific provisions for the Irish language and the Ulster variant of Scots. The Bill of Rights would have made that enforceable in Northern Ireland, so decisions by DUP Ministers in, say, the Department of Education or the Department of Agriculture, to scrap those policies and introduce English-only policies would not have been compatible with the UK’s international human rights commitments and would have been directly enforceable through a Bill of Rights, so that would not have happened.

Equally, many discussions have sapped energy out of the Executive discussion, because we have an endless cycle of very basic things that are present elsewhere in the UK being blocked. An example would be single equality legislation. There are big gaps in the equality law framework in legislation to prevent age discrimination against children, for instance, or provisions around harassment in the workplace on the basis of sexual orientation. These types of things have been endlessly argued about and endlessly vetoed, yet they would have had to already be in place by virtue of the Bill of Rights. It would have taken contentious issues off the table and enshrined them in what would essentially be equivalent in other countries to a constitutional framework, or the equivalent to what the Human Rights Act provides for convention rights. We think that would have provided a much more solid basis for power sharing, where a lot of these misuses of power could not have taken place.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Thank you. This is my final question to you. NDNA is just the latest agreement that is easier to achieve than it is to implement. Should Ministers be accountable for implementing the agreements that act as the scaffolding for the peace process?

Daniel Holder: Yes, we need mechanisms that ensure implementation, whether they are legal mechanisms, dispute-resolution mechanisms and so on. As the two exercises that we conducted show, both in 2013 and more recently, we end up in the endless cycle where agreements are made, significant provisions are reneged on and not implemented, and we have to return to another negotiation, usually to water down what was originally agreed in a previous negotiation. It is incredibly frustrating and makes the institutions unworkable and dysfunctional.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Thank you, Mr Holder. Professor Tonge, I will come to you next. The briefing accompanying the Bill says that Ministers in the caretaker Executive would be operating within well-defined limits, but those limits are not outlined. Is that a concern? Are there examples of how those limits could be better identified?

Professor Tonge: Yes, I think that is a serious concern. New Decade, New Approach refers to “caretaker Ministers” but that term does not appear in the explanatory notes to the Bill. During the debate on Second Reading, the only definition of powers afforded to caretaker Ministers were those

“set out in the ministerial code and in accordance with the requirement for an Executive Committee to consider any decisions that are significant, controversial and cross-cutting.”—[Official Report, 22 June 2021; Vol. 697, c. 821.]

That is an Executive Committee, please note. That definition begs far more questions than it answers. First, what ministerial decision is insignificant? That is an obvious question to ask. Secondly, the formation of the Executive Committee is a moot point. It is far from clear in the Bill whether there would simply be a collection of individual Ministers, remnants from the previous Assembly and Executive, left in place for up to 24 weeks after the election, but d’Hondt is not run to re-establish those Ministers post-election. Obviously, the composition of the Executive Committee may change substantially if there is a change in party fortunes at that election.

Let us assume that the pre-election Ministers are left in place for up to 24 weeks. First, there is a democratic element: is that correct, given that the electorate might have spoken in a different way? More substantively, in terms of powers, is the question you asked: which ministerial decisions will they be able to take that are significant, controversial or cross-cutting? Will they be able to take decisions with financial implications in a caretaker capacity? I would seek clarification of those points from the Minister, because I am far from clear. The right hon. Member for East Antrim used the phrase “lame duck Ministers” during that 24-week period. It would be interesting to see what specific powers they will be able to use during that period of up to 24 weeks.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q The purdah restrictions for local government operate under the Local Government Act 1986. They prevent the local authority from publishing

“any material which, in whole or in part, appears to be designed to affect public support for a political party.”

The rules governing purdah in the UK Government are outlined in the Cabinet manual, and civil servants inform their permanent secretaries if any requests by Ministers raise issues. Do you think that the Bill will provide civil servants with enough legal scope to push back on Ministers making inappropriate requests during a caretaker Administration?

Professor Tonge: Yes, I am comfortable about the Bill’s provisions in that respect. Actually, I think the most comprehensive part of the Bill is the updating of the ministerial code. It makes clear the need for the separation of party political from ministerial matters. In that respect, I am quite sanguine about the Bill doing exactly what you suggest.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Do you think that the Bill should set out how the code of conduct should be enforced?

Professor Tonge: Therein lies a much bigger area: how the code of conduct will actually be enforced, what will happen and whether we will simply see the traditional divide on party lines over its implementation.

There is one phrase in the code of conduct that slightly alarms me:

“Ministers must…operate in a way conducive to promoting good community relations”.

No further definition is offered. What would constitute promoting bad or offensive community relations, as distinct from good community relations? To give one example, would a Minister who criticised Irish language provision while still implementing it be in breach of the code of conduct? Similarly, if a nationalist Minister praised aspects of a paramilitary campaign of the past, would that be seen as non-conducive to good community relations, and would sanctions against that Minister be available? It is far from clear, partly because it is ultimately a matter for the Assembly and the Executive to decide how to impose sanctions.

I think that what is contained in the Bill is very laudable in updating the ministerial code, but the devil will be in the detail of implementation. Whether implementation is actually possible in terms of sanction against a Minister who is seen to be in breach of the ministerial code—I think that that is where the difficulty will lie. I am not convinced that Westminster can necessarily resolve that difficulty.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Under the current wording,

“the Secretary of State may”—

only “may”, rather than “must”—

“issue a certificate”

outlining the date for a poll, even if the conditions for cross-community representation are not met. Do you think that that is a mistake? Is there a risk of undermining the principles of the Good Friday agreement if an Executive drawn from one community is able to limp on at the behest of the Secretary of State?

Professor Tonge: I think that there has been a lot of limping on in the Assembly and Executive over the years, and there has been an arbitrariness about when a poll should be called. We have had, in effect, two pieces of emergency legislation by previous Secretaries of State to prevent an election from being called and to update the rules because an election was due.

In a broader sense, I welcome the fact that the current time periods of either seven days or 14 days are being extended to either 24 weeks or 48 weeks, to keep the show on the road. You simply cannot afford another collapse. I understand the principles behind the Bill, so I do not think that we need to be too formulaic about giving the Secretary of State some discretion in that respect. The main purpose of the Bill is clear here: to allow greater cooling-off periods before another election is called. If that means giving the Secretary of State greater flexibility, so be it.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q A final question, Professor Tonge. At the moment, the First Minister and the Deputy First Minister must be drawn from the two traditions: Unionist and nationalist. Do you believe that this integral feature of the Good Friday agreement is at risk of becoming outdated if a party representing neither achieves sufficient support? What do you think could be done to remedy that?

Professor Tonge: I think it is outdated. It may soon look very outdated, depending on the performance of Alliance in the Assembly election that has to take place by 5 May next year.

The communal designations more broadly are period pieces; they were of their time, and they were necessary in their time. Is the Assembly ready for the complete abolition of communal designations? It would be a bold step, but it would probably be laudable. You could still build in protections. The obvious way forward, if you get rid of communal designations, is to have qualified majority voting, where, for example, any controversial measure would have to be passed by 70% of the Assembly as an entirety. There is something horribly reductionist in requiring parties in the “centre ground” to designate as “Other”; I know that Alliance refuses to use the term “Other”, as reductionist, and use that term as a “community first” label.

Have the communal designations served their purpose? Yes, over time, but I think there is now a clear case for a fundamental review of Assembly rules to see whether it is still necessary to have those Unionist and nationalist designations. Particularly if you got to the position after the next Assembly election in which you had a First Minister from the largest party and the largest designation who may be nationalist, but for example, Alliance was to be the second largest party, but because it was not from the next largest designation it was not able to provide a Deputy First Minister, the case—which is already mounting—for a reappraisal of the rules would become quite overwhelming.

You can make the case against that by saying, “If you look at the recent Assembly elections, you’ve got 85% of voters still voting for Unionist or nationalist parties”, or certainly in excess of 80%. However, if you look at the electorate as a whole, when we have done the last four Northern Ireland election surveys, the largest single category of elector now—as distinct from voter—is a person saying they are neither Unionist nor nationalist. The life and times survey from two different universities shows exactly the same. That is the largest single category: bigger than the Unionist category, bigger than the nationalist category. The Assembly rules as they are are in denial of that.

You might say, “Well, the percentage of actual voters who are still Unionist or nationalist is still high”, but in terms of the electorate as a whole, there is a case for reform of the rules, and the fact that you have those communal designations is a deterrent to people voting in Northern Ireland who say they are neither Unionist nor nationalist. When we ask non-voters the question, “Why didn’t you vote in the last election?”, those communal rules come across loud and clear as one of the most significant deterrents to people participating in the electoral system, so in terms of the health of the body politic, I think there is a growing case for getting rid of the communal designations. Whether Unionist or nationalist politicians would concur with that is a very moot point.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Thank you, witnesses; thank you, Chair. No more questions from me.

None Portrait The Chair
- Hansard -

Thank you. James Sunderland, and could you state which of the witnesses your question is to, or whether it is to both of them?

James Sunderland Portrait James Sunderland (Bracknell) (Con)
- Hansard - - - Excerpts

Q Thank you, Mr Stringer; it is a great pleasure to serve under you as Chair. My question is to both witnesses in turn: would you comment on the extent to which the petition of concern has been used as a veto? Is this perception or reality?

Professor Tonge: I am happy to go first. It clearly was used as a veto between 2011 and 2016. It was often used as a solo run: the DUP, because of its very considerable Assembly strength during that period, was in a position to veto not particularly the social and moral issues with which the veto is often associated—although they did use the veto for that—but welfare reform legislation. That was the most common form of veto; that was where the veto card was played the most. Some 115 petitions of concern were tabled, 86 from Unionist parties and another 29 from Sinn Féin and the SDLP, across just 14 Bills. When you think that during that period, something like 70 Bills were passed by the Assembly between 2011 and 2016, it was very much only a minority of Bills for which the veto card, if you want to call the petition of concern that, was used. Petitions of concern were tabled for only a relatively small percentage of Bills, but it was used quite extensively during that period.

Of course, as soon as the Assembly size was reduced from 108 to 90 and no party could get up to 30 seats, the petition of concern faded considerably in significance. The six-monthly reports that now have to be produced on petitions of concern show clearly that it is simply not a veto that can realistically be used these days by any single party anywhere.

Daniel Holder: I suppose all I can add to that is just to concur that, yes, the petition of concern was essentially used as a political veto, rather than—as alluded to earlier—a mechanism whereby a particular measure or piece of legislation would be scrutinised against rights and the European convention on human rights.

The only other point to add is that, of course, the actual use of the petition of concern and, indeed, the other vetoes, while they have not been used in large numbers, really is the tip of the iceberg as to the broader impact they actually have, particularly not just with the petition of concern but with the St Andrews and agenda vetoes. You will have a situation where Ministers simply will not progress particular initiatives or measures because they know that they are likely to be vetoed. What is in plain sight is perhaps the tip of the iceberg of a much broader problem in the way that what were supposed to be safeguards have been flipped on their head and are not used for their original, intended purpose.

James Sunderland Portrait James Sunderland
- Hansard - - - Excerpts

Q May I ask both witnesses to confirm the extent to which they believe that the Bill will achieve the aim of making communities and parties work more closely together without necessarily resorting to the use of the petition of concern as a veto?

Professor Tonge: Clearly, the Bill is laudable in how it deals will petitions of concern. It makes it much more difficult for parties, in one sense, to use petitions of concern, notwithstanding the fact that none of them has the Assembly strength to go solo in respect of petitions of concern. The message that comes from the Bill is quite clear: petitions of concern should be used only as a last resort and used to the benefit and for the protection of the entire community, not just communal interests. I return to the point that I made earlier: I would like to see petitions of concern confined to cross-community tabling, or at least having to go beyond your community, so it would have to be a POC from nationalists and others, or from Unionists and others, for example.

There is stuff in the Bill that is eminently sensible: the 14-day consideration stage before its deployment; the fact that the Speaker, or three Deputy Speakers, cannot be involved in tabling a petition of concern; the fact that a Minister would be in breach of the code of conduct if he or she supported a petition of concern, given that it went against Executive policy, so it encourages a sense of collective Executive responsibility—they cannot then go and grandstand on behalf of their party, which is a good thing—and the fact that a POC cannot be used at the second stage of a Bill, which is simply a discussion of general principles in the Assembly. All those things contained in the Bill are very laudable

Daniel Holder: From our perspective, the Bill represents significant progress in relation to the petition of concern. I reiterate the gap that I mentioned earlier, however: it does not appear to deal with codifying in primary legislation and ensuring that the Standing Orders will follow the procedure that was intended under the agreement for the special procedure committee being set up. Also, there is the broader risk that the problems associated with the petition of concern will simply be displaced elsewhere into, for example, the St Andrews veto.

Just to pick up on the caretaker Administration when the First Ministers are not in place, again, there is a significant risk of a legal lacuna and that Ministers will not be able to take any decisions that are significant, which, as Professor Tonge has said, could be practically anything, or indeed any decisions that are controversial, which is anything that anyone wants to make politically contentious. That could be particularly problematic where Ministers have to take steps to deal with legal obligations or human rights obligations, for example, but will be unable to do so, as those decisions would have to be deferred to the full Executive committee that essentially does not exist.

A further problem we have identified is that there are certain duties that were core elements of the peace agreement, such as the adoption, further to the legislation passed at St Andrews, of an anti-poverty strategy on the basis of objective need to deal with the patterns of deprivation that, in the past and present, have quite often fuelled conflict. That particular decision, and the strategies legislated for at the time of St Andrews to progress both the Irish language and Ulster Scots, are legal obligations on the full Northern Ireland Executive. Again, those obligations would go into limbo in the caretaker period where you have no Executive able to adopt them.

We welcome the provisions in the Bill that would strengthen the ministerial code. We would concur with Professor Tonge’s concerns, however, about the ambiguity in the term, “good community relations”, which is open to interpretation. In particular, it has been used in the past as a veto on, for example, new housing developments, on the grounds that the other community to that which has hitherto been dominant in that area may live in the house, and that is therefore not conducive to good community relations, which offends against the right to housing that should have been in place under the various peace agreements.

On the ministerial code and enforcement, it is worth noting that the private Member’s Bill of Jim Allister MLA, led to provisions whereby the Assembly standards commissioner now can deal with breaches of the ministerial code. I should declare an interest, in the sense that my organisation, along with another one, has already issued one such complaint that is under investigation, so it would not be appropriate to go into the details.

We have identified a potential ambiguity that may be of relevance to the Committee to the extent that the new provisions on enforceability just concern the code of conduct, not whether they also cover the pledge of office and broader provisions of the ministerial code. Our view certainly is, given the reference to the broader ministerial code in the code of conduct itself, that there should be a degree of enforceability of broader provisions. Others may take a different view, and that is possibly something worth exploring further.

Gavin Robinson Portrait Gavin Robinson (Belfast East) (DUP)
- Hansard - - - Excerpts

Q Good morning. Mr Holder, will you reflect on your repetition that these provisions will bring us back to what was intended on the petition of concern? You have tried to contextualise what you believe was intended, but may I ask you to provide us with your authority for what the Belfast agreement says on the intended purpose of the petition of concern?

Daniel Holder: Certainly. We have done a number of papers on this, which we have fed into the negotiations that led to the re-establishment of it. In summary, we think that what is in the Belfast agreement as the petition of concern was set up as a safeguard to ensure that all sections of the community are protected and can participate in the institutions. That was linked expressly to conformity with equality requirements, specifically, as I have said a number of times, the ECHR and the Northern Ireland Bill of Rights. The provision for cross-community voting was also linked to that.

The Good Friday agreement provides for a special procedure committee, which would be a committee with full powers. It would be established to examine and report on whether a measure or proposal was in conformity with equality requirements, including the ECHR and the Bill of Rights. That committee must be convened when a petition of concern is tabled, unless there is a cross-community vote to the contrary.

In our view, it is very clear that that was the original intention of the Belfast agreement. I do not think that the custom and practice of it not operating properly through this time is sufficient to suggest that that should be viewed differently. Essentially, the original intention of the agreement has been departed from. It is now, but was not supposed to be, essentially, a subjective political veto; it was supposed to be tied to more objective criteria.

We always go back to the fact that—plus sometimes the difference of views—you cannot just make up human rights, ECHR rights or the rights in the Bill of Rights. They would largely reflect the existing human rights commitments of the UK, albeit not in an enforceable format without the Bill of Rights. Therefore, you bring in a level of objectivity, with the same function that the Joint Committee on Human Rights would have, in that the special procedure committee may seek advice from the Human Rights and the Equality Commissions that were established under the Belfast agreement as to whether a measure or particular piece of legislation offends those standards.

Of course, there is a weakness, that a party or parties could just ignore the expert advice and the determination as to whether a particular measure breaches those equality standards and vote to the contrary anyway. However, the original intention was very much to make that linkage. It is expressly on the face of the agreement.

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

Q Although expressly on the face of the agreement, it states that a special agreement may be established, but there is no requirement—it was not mandated to be so. Do you accept that?

Daniel Holder: If you read paragraph 13 of strand 1 of the Good Friday agreement it says that, when a petition of concern is tabled,

“the Assembly shall vote to determine whether a measure may proceed without reference to this special procedure. If this fails to achieve support on a cross-community basis...the special procedure shall be followed.”

The agreement expressly says that the special procedure committee must be established each time a petition of concern is tabled, unless there is a cross-community vote to the contrary.

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

Q But, of course, we all know in Northern Ireland the good phrase, “cherry picking”, and you cannot outline the provisions of paragraph 13 without considering those of paragraph 11, which start:

“The Assembly may appoint a special Committee”.

Is that correct?

Daniel Holder: I am fortunate to have the relevant paragraphs in front of me; yes, but—

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

You can take my word for it, Mr Holder. I will move on.

Daniel Holder: No, I do have the relevant paragraph in front of me but, Mr Robinson, that is referring to other occasions when the Assembly may establish this particular committee. For example, the special committee on equality requirements can be established for another reason. There is one example of its ever being established, for the Welfare Reform Bill. That was on the basis of a petition of concern, from a referral from the Bill Committee dealing with welfare reform. The Assembly can establish this Committee for other reasons, and you are right to point to that being permissive. However, it is not permissive when a petition of concern is tabled; it is mandatory, unless there is a cross-community vote to the contrary.

None Portrait The Chair
- Hansard -

I have two Members indicating that they wish to ask questions, and there are nine minutes left, so I will move on.

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

Do you mind, Mr Stringer, if I ask one question of Professor Tonge?

None Portrait The Chair
- Hansard -

If there is time at the end, but I want to see if we can get everybody in.

Stephen Farry Portrait Stephen Farry (North Down) (Alliance)
- Hansard - - - Excerpts

Q Good morning, and it is a pleasure to serve under your chairmanship, Mr Stringer. As a strong advocate for reform of petitions of concern, I slightly wanted to play devil’s advocate in this scrutiny process on the Bill. Do both witnesses feel that the measures are in some ways too cumbersome, given the potential 16-day window in some circumstances between a petition being tabled and an actual vote? How will that work, particularly in things such as the Committee stage of a piece of legislation? Will that become a straitjacket for the Assembly? Are there alternative ways in which the same outcomes around petitions of concern could be achieved, rather than what is in the Bill? Is there a risk of parties somehow gaming the system by doing multiple petitions of concern on more or less the same item, time after time, which further delays reforms going through?

Professor Tonge: Briefly on that, the obvious solution to your last point would be to restrict the number of times any particular party can table a petition of concern. As I say, I do not think they will be key players anyway throughout the life of the next Assembly, or any Assemblies thereafter, because they have had their day. The obvious solution is simply to limit the number of times a POC can be played. There has been talk of limiting petitions of concern to certain types of legislation—I do not think that is a runner because it would very hard to define. However, why not only allow a party one or two opportunities to table a petition of concern during the lifetime of an Assembly? That would be a logical solution, so that only in extremis could any party play the veto card.

Daniel Holder: I think the risk of gaming the system is there, given what we have heard to date, and it would be helpful if that was constrained to an extent. At the same time, the time available will be helpful to allow the special procedure committee to sit and scrutinise a measure at that stage. Yes, certainly we would encourage a discussion on the broader reform of the provisions, including the designation provisions that have become a very crude instrument. Although they are termed as cross-community voting, they are of course not linked to any indicator of community background as such, but to Unionist or nationalist traditional political affiliation.

Stephen Farry Portrait Stephen Farry
- Hansard - - - Excerpts

And the petitioners have the option of simply reconfirming—

None Portrait The Chair
- Hansard -

Sorry, Mr Farry. We are really running out of time. I am going to move to Colum Eastwood, so that every Member who has indicated that they wish to ask a question will have had the opportunity to do so.

Colum Eastwood Portrait Colum Eastwood (Foyle) (SDLP)
- Hansard - - - Excerpts

Q Thank you, Mr Stringer. I thank the two witnesses. It is always difficult to pinpoint exactly why or how the Assembly collapsed on any of the times that it did. It is arguable, though, that a factor was the lack of progress and the inability of the Executive or Assembly to get things done because of the three vetoes that particularly Daniel has outlined, whether it is a petition of concern, the St Andrews veto, as you call it—it is well named—or the veto in terms of what goes on the Executive agenda.

We have another storm brewing around Irish language legislation, because whilst the Government here have said that they will introduce the legislation, that legislation is quite clear that some of its provisions will need to be implemented by the First Minister and the Deputy First Minister jointly. Do you see this as another potential crisis point in the process for the Executive and the Assembly, given the fact that it has already been touted as a potential bargaining chip to deal with some other issues?

Professor Tonge: Yes, I do see that as a problem, because the Ulster Scots/Ulster British commissioner and the Irish language commissioner have to be joint Office of the First Minister and Deputy First Minister appointments. One obvious stalling tactic would be disagreement, potentially from opponents of either, but more obviously from opponents of Irish language provision, to the appointment of an Irish language commissioner. An objection to the appointment of an Irish language commissioner could arise.

At the moment, there is not provision for the Secretary of State to intervene to make those appointments. I have already written that I can see a scenario in which legislation has to be passed again, assuming that the provisions of New Decade, New Approach on Irish language are formally accepted. I suspect that if the Secretary of State has to legislate for this come the autumn, the legislation would have to be amended to include the appointments, if necessary, of those two commissioners. Otherwise, there will be another Assembly impasse down the track.

Daniel Holder: My short answer is also yes, but it goes well beyond the issue of the appointment of the two commissioners. The Irish language commissioner, as envisaged by NDNA, draws on the Welsh model of a commissioner who produces language standards that are then, in the Welsh model, binding on public authorities. In the NDNA model, public authorities have to pay due regard to them, which is a weaker formulation. However, the language standards produced by the commissioner are subject to approval by the First Minister and the Deputy First Minister. Therefore, you again have the ongoing risk that they will simply be vetoed and not put into place, which will bring us straight back to the problem that we are trying to get past.

Certainly one particular area of focus could be looking at alternatives, such as whether the commissioner can approve their own standards, or whether they could be referred to Foras na Gaeilge, the body set up under the North South Ministerial Council language body under the agreement, to instead approve and formally incorporate those standards. Otherwise, yes, we could end up having commissioners appointed, including the Ulster Scots commissioner, who is set up in a different format.

Unfortunately, sometimes provisions for Ulster Scots are designed more around being a counterweight to Irish rather than thinking through what is actually needed to safeguard and preserve Ulster Scots linguistically. That in itself is a problem. That particular commissioner—rightly, because it would not be the right model—will not produce language standards. So, that concern over veto would not necessarily apply to that commissioner once appointed, but certainly in terms of the Irish language commissioner there is potential for, essentially, ministerial interference in the daily work of the commissioner, unless the legislation is amended.

None Portrait The Chair
- Hansard -

Thank you. We have a matter of seconds left of the time allocated. So, may I take this opportunity, on behalf of the Committee, to thank the witnesses for the very valuable contributions that you have made?

Examination of Witness

Lilah Howson-Smith gave evidence.

10:30
None Portrait The Chair
- Hansard -

Q We will now hear oral evidence from Lilah Howson-Smith, a former special adviser at the Northern Ireland Office. For this session, we have until 11.25 am.

Could you introduce yourself, please?

Lilah Howson-Smith: Hi. Good morning. My name is Lilah Howson-Smith. I was a special adviser in the Northern Ireland Office under Julian Smith, when he was Northern Ireland Secretary.

None Portrait The Chair
- Hansard -

I will go to the Minister to ask the first questions.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q Thank you, Mr Stringer, and it is good to see you again, Lilah. You were working as a special adviser to the Secretary of State for Northern Ireland during the period when the Executive was not functioning, from 2019 to 2020. Can you give us your views on the real-life impact that that situation had on Northern Ireland’s citizens, and the importance of putting in place some mechanisms to make sure that it does not happen again?

Lilah Howson-Smith: Sure. I think that the most obvious impact was on public services delivery. You obviously had a situation where the civil service could authorise certain decisions, up to quite a low threshold, and authorise certain amounts of spending, but you basically had a situation where no new policy or structures could be pursued.

The way in which that impacted public services was basically most explicitly on the health service, with incredibly long waiting lists, but the impact also extended into education. We visited a number of schools, both at primary and secondary level, where there was just a sense of overall stasis. I think there was also a kind of frustration more widely about infrastructure issues, even extending to Belfast City Council, who we spoke to; they talked about issues around sewage that just had not been dealt with, because of the absence of Ministers.

So, I think it affected all aspects of life. It was very much the first thing that came up in all our meetings with civil society, business and border organisations throughout our time in Northern Ireland, before power sharing was restored.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q On Second Reading, Julian Smith stated that the Bill provides for a number of important and practical measures. What do you think are the practical benefits of this legislation?

Lilah Howson-Smith: Particularly with regard to the measures around elections and the sustainability measures, as they were characterised in the original agreement, I think they give the Executive and Ministers space and time to resolve various issues around power sharing, in advance of any need to bring forward an election.

As it is, at the current moment in time there is very little capacity for Ministers to work through even quite basic issues, in terms of policy programmes, in advance of an obligation falling on the Secretary of State to bring forward an election. So, I think the intention was specifically to give greater space and time for them to resolve those policy issues and personnel issues, to build some relationships in advance of an immediate decision by the Secretary of State to hold an election.

I also think that the measures around the petition of concern were specifically about building greater trust between the parties, in terms of the mechanics of policy making, as some of the other witnesses have spoken about. There was obviously a sense in which the petition of concern had been used as a veto or blocking measure by particular parties. While the new measures are maybe not as extensive as some of the parties wanted during the negotiations, the intention clearly is that the petition of concern once again becomes a measure of last resort, restored to its original purpose as it was conceived in the Good Friday agreement, rather than being a kind of blocking mechanism on moral or social issues, or even party political issues, such as welfare.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q You just referred to the negotiations; obviously, they were pretty intense and, as you say, some of the parties pushed for things that they did not necessarily get. Was the issue of the border executive vetoes and other issues discussed in those negotiations? Did you have a clear view as to whether it would be acceptable to the parties to change that?

Lilah Howson-Smith: Of the measures introduced as part of the Bill, the petition of concern measures were the most discussed in the talks. I do not think they were necessarily controversial, but there was a disagreement or divergence of views between the parties on how far they wanted to go on that. It was not necessarily about any single party having a strong view on how they conceived the petition of concern being used in future, but there was a broader acknowledgment that the petition of concern had been used too much in the past, there was a need to reduce its use and therefore a need to signal that as part of the agreement.

Where the agreement landed and where the Bill is representative of that agreement is roughly where there was the most agreement between the parties, in that it could not be used on Second Reading votes and on standards motions, and that there is now a 14-day cooling-off period. That was all about basically making parties and individual MLAs consider whether it was an appropriate use of the petition of concern and whether it was the best way to do policy making, in terms of building credibility and trust between the parties.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q The Government have been criticised by the Opposition for treating Northern Ireland as an afterthought. Would you agree with that claim? Does it reflect your experience in Government?

Lilah Howson-Smith: Not at all. Definitely Julian and I worked alongside all the officials in the Northern Ireland Office—worked extremely hard to restore the institutions. I frequently reflect that, in the absence of an Executive, the covid pandemic and the public health crisis that has happened since is unthinkable. It is really difficult to think how the civil service in Northern Ireland would have been able to handle that with the limited powers it had at that time. That is not a reflection on their abilities, but the absence of ministerial decision making would have made it unthinkable. The fact that those institutions were restored in advance of the covid pandemic represents the fact that the Government took that extremely seriously, and that went right up to the Prime Minister.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q Finally, as I want to give Members the opportunity to ask questions, you previously worked in the Chief Whip’s Office before coming to the Northern Ireland Office. What do you think are the benefits to introducing this legislation on non-emergency timings? Can you recall when we last had non-emergency legislation for Northern Ireland?

Lilah Howson-Smith: It is exactly the point that you make in your question. We have had to rush bits of Northern Ireland-related legislation through, in part because of the absence of power sharing. You have the Executive formation legislation, which was always done on an incredibly tight timescale. I think rightly, some of the Northern Ireland parties objected to that, on the basis that perhaps there was not adequate scrutiny. More recent bits of legislation around victims’ payments and abortion, which we were involved in implementing, were also incredible difficult to implement because there was not broad consensus or buy-in from the other parties through a longer-term legislative process.

There is definitely an advantage to taking this bit of legislation through in slightly slower time, so that we can have discussions like this where we are able to discuss where things are missing or not clear, or can be clarified through implementation.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Lilah, from your experience of the negotiations, was it envisaged that there would be ambiguity on what constituted sufficient cross-community representation in a caretaker Executive?

Lilah Howson-Smith: I understand that perhaps there is not total clarity about what that means. I think the point was that it was supposed to be agreed by the Executive once the legislation was taken forward by Westminster. The fact that the legislation is being taken forward by Westminster reflects the fact that amendments have to be made to the Northern Ireland Act 1998 and that this part falls within a reserved area, rather than the fact that there will not be an active process, I assume, with the Executive to discuss what this means in reality. I think there was tacit or implicit agreement between all the parties that there would clearly need to be clarity around that, and that there would be checks and balances on the fact that Ministers obviously would not be able to take decisions in a caretaker capacity that went beyond the normal remit of perhaps the types of decision that might be taken during a purdah period.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Are you concerned that the scope of powers is not clearly defined, allowing for an Executive, for example, to limp on without broad cross-community support but still be able to make significant decisions?

Howson-Smith: The intention was never that they would be able to make—yes, it depends how you define significant decisions, but the intention was always that there would be sufficient checks either within the Executive or by the Secretary of State that would mean that there was not the kind of significant decisions that would have broader implications for the cross-community nature of those decisions. I am concerned that you have characterised it as limping on. I take your point, but the reality is that it was supposed to just provide that bit of additional flexibility to the Ministers and in forming the Executive, where those decisions have been difficult to make or have not happened because the time periods are so short and perhaps it was not in everyone’s political interest to form an Executive within that short period of time. So yes, obviously, there is a flip side to that, but clearly there is also opportunity to avoid the type of situation that we fell into in 2017, where an Executive just is not formed for a long period of time because there is an election and then there has to be a series of talks processes to get the Executive and the Assembly back up and running.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Is there anything, from your experience, that did not make the cut in NDNA that you think would have been valuable in terms of the sustainability of the Executive?

Howson-Smith: In terms of the petition of concern, I do have some worries that perhaps we did not necessarily go far enough in ensuring that, for example, petitions of concern are not tabled on Bills that are allowing the Northern Ireland Executive to take border legislation that is compliant with human rights. For example, petitions of concern were previously used—or were likely to be used—on issues around abortion and that was a concern for me, that perhaps those measures did not give adequate protection. On that specific issue, Westminster is taking forward legislation and we are now in a process of implementation. However, there were some suggestions about potentially having more oversight from human rights bodies in that petition of concern process. I do not think that that necessarily would have been a bad thing. I think that would be quite valuable, given the previous types of things the petition of concern has been used for. However, I hopefully think that the changes that are in there will make parties and MLAs think twice about using petitions of concern in that way again.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Finally, as I also want to give other Members the opportunity to ask questions, what statutory provisions currently exist to prevent the misuse of powers available to caretaker Ministers?

Howson-Smith: As far as I understand it, there are no statutory limitations.

None Portrait The Chair
- Hansard -

If there are no further questions from Members, I thank the witness for that interesting and valuable contribution.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

10:44
Adjourned till this day at Two o’clock.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (Second sitting)

The Committee consisted of the following Members:
Chairs: †Sir David Amess, Graham Stringer
† Anderson, Stuart (Wolverhampton South West) (Con)
† Benton, Scott (Blackpool South) (Con)
† Brereton, Jack (Stoke-on-Trent South) (Con)
† Butler, Rob (Aylesbury) (Con)
† Davies-Jones, Alex (Pontypridd) (Lab)
† Dines, Miss Sarah (Derbyshire Dales) (Con)
† Eastwood, Colum (Foyle) (SDLP)
† Farry, Stephen (North Down) (Alliance)
† Haigh, Louise (Sheffield, Heeley) (Lab)
† Hanna, Claire (Belfast South) (SDLP)
† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Robbie (Keighley) (Con)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Robinson, Gavin (Belfast East) (DUP)
† Sunderland, James (Bracknell) (Con)
† Walker, Mr Robin (Minister of State, Northern Ireland Office)
Jo Dodd, Sarah Ioannou, Committee Clerks
† attended the Committee
Witnesses
Sir Jonathan Stephens, Former Permanent Secretary at the Northern Ireland Office
Emma Little-Pengelly, Former DUP MP and former Northern Ireland Special Adviser
Mark Durkan, Former SDLP MP and Good Friday Agreement Negotiator
Alex Maskey, Speaker, Northern Ireland Assembly
Lesley Hogg, Clerk , Northern Ireland Assembly
Dr Gareth McGrath, Director of Parliamentary Services, Northern Ireland Assembly
Public Bill Committee
Tuesday 29 June 2021
(Afternoon)
[Sir David Amess in the Chair]
Northern Ireland (Ministers, Elections and Petitions of Concern) Bill
14:00
The Committee deliberated in private.
Examination of Witness
Sir Jonathan Stephens gave evidence.
14:02
None Portrait The Chair
- Hansard -

We will now hear from Sir Jonathan Stephens, former permanent secretary at the Northern Ireland Office. Colleagues, we have until 2.30 pm. Sir Jonathan, I described you, but briefly please say something about yourself.

Sir Jonathan Stephens: Certainly. I am Jonathan Stephens. I was permanent secretary of the Northern Ireland Office from 2014 until February 2020, having previously worked in the Northern Ireland Office over a number of years from the mid-1980s.

None Portrait The Chair
- Hansard -

Thank you. Colleagues, it is over to you to start the questioning.

Robin Walker Portrait The Minister of State, Northern Ireland Office (Mr Robin Walker)
- Hansard - - - Excerpts

Q33 Sir Jonathan, it is very good to see you again. You were permanent secretary from 2014 to 2020, as we have heard, and that means you were at the heart of the Northern Ireland Office both before and during the period of the collapse of the Executive. In your view, how was the Northern Ireland civil service most hindered by the lack of ministerial accountability when the Executive was not functioning?

Sir Jonathan Stephens: Fundamentally, there were no Ministers available to give direction and take critical decisions. The Northern Ireland civil service was left in a wholly unprecedented situation, which I know from talking to many of them they found intensely challenging and was not at all what they sought. Civil servants are trained to work for and support the Government of the day and Ministers and provide their advice to Ministers, who take decisions that civil servants then implement. Our colleagues in the Northern Ireland civil service were left trying to maintain the machinery of Government and trying to provide public services in the absence of ministerial decisions, and they found that increasingly uncomfortable as time went on.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q How far do you feel this Bill goes to safeguard Executive stability and provide the civil service with the accountability mechanisms they require? Given some of the discussions we have had to date, both in the case of encouraging the Executive to stay together and to stay in place, but also in the case where you might have a First and Deputy First Minister step down and caretaker Ministers, as they have been described, remaining in place, how far do you feel the Bill creates the clarity needed for them to be able to carry out their role?

Sir Jonathan Stephens: I think it does a number of important things. First, it fills in what you might think of as a number of loopholes in the original design of the Northern Ireland Act 1998, which simply did not contemplate the sort of situation in which we found ourselves in 2016.

Secondly, and perhaps most importantly, it provides time and space for the Executive or for party leaders to resolve fundamental differences, if and when they arise. As you will know, the previous scheme provided only for periods of either seven or 14 days for the formation of the Executive and the appointment of the First Minister and the Deputy First Minister. We went through those early deadlines very quickly indeed in 2016. We were left in the unprecedented situation of having no means of restoring the Executive without fresh legislation at Westminster.

It is important to say that these changes provide a number of mechanisms that will help in the resolution of fundamental differences, if they arise again. They provide greater assurance for continuity of decision making, but, of course, nothing is perfect. I have always thought that if there is absolute determination to bring about the collapse of the institutions, or such a deep and fundamental breakdown in trust between the parties that they cannot be restored, then no amount of clever constitutional provisions will get over such a fundamental breakdown.

Colum Eastwood Portrait Colum Eastwood (Foyle) (SDLP)
- Hansard - - - Excerpts

Q It is a pleasure to serve under your chairmanship, Sir David. It is good to see you, Jonathan. I spent many long hours over that three-year period in your company, and thankfully we got there in the end.

Do you think it is fair to say that the New Decade, New Approach agreement was largely imposed by the two Governments at a very opportune moment in the political process? The three largest parties had had a difficult election. We had a nurses’ strike and then the two Governments struck, and got Stormont back up and running again. That goes to the heart of your point that if we do not have political parties willing to work the system and work together, no clever constitutional construct can stop them collapsing it. Do you think there is more that we could have done as part of those discussions? I am particularly thinking about the way in which the First Minister and the Deputy First Minister are appointed.

Sir Jonathan Stephens: I would not use the word “imposed” because, at the end of the day, it was the decision of all the main parties in Northern Ireland to re-form the Executive. Yes, it was on the basis of the proposals put forward in New Decade, New Approach, but each party was free to take its own decision on that. From my point of view, when the document was published there was no certainty as to how parties would react and whether it would provide a basis for forming the Executive. We very much hoped so, but there was no certainty.

It reflected extensive discussions, of which a number of people on the Committee will have close memories, over many years, but most recently over the period of months from the calling together of the most recent session of talks, following the tragic murder of Lyra McKee. Again, there was very strong input from the parties. Although the proposals were the proposals from the Governments, they reflected very considerably the input of the parties. They were our best judgment as to where agreement lay.

On the First and Deputy First Ministers, I am conscious that parties have a number of different views on that. There are a number of parties that think that the original arrangement under the Good Friday agreement for the election of the First and Deputy First Ministers on the basis of cross-community consent should not have been changed after the St Andrews agreement. Other parties who were critical of the St Andrews agreement formed and participated in devolved government on the basis of that.

The Good Friday agreement was now more than 20 years ago. It was designed with one situation and set of scenarios in mind. As ever, the world moves on and change comes. It is coming in Northern Ireland, and there will come a time when it will be right to look at some of the fundamental arrangements within that agreement and consider whether they still best serve the people of Northern Ireland and adequately reflect the current situation in Northern Ireland. However, that would be quite a major task to undertake, with possible renegotiation of key aspects of the agreement. It is not a task that, personally, I think is quite right for now.

Stephen Farry Portrait Stephen Farry (North Down) (Alliance)
- Hansard - - - Excerpts

Q It is a pleasure to serve under your chairmanship, Sir David. A very warm welcome to you, Sir Jonathan. I will largely pick up on your answer to the questions posed by Colum Eastwood. You are one of the very rare officials with long experience of Northern Ireland over several different stints in office, so you have that wider perspective. You indicated that there might be a need to revise the rules around the institutions at some stage. Do you feel there is a danger of the Northern Ireland Office almost operating on a reactive basis after a problem has actually arisen and then trying to patch it up, amend it and move on for a few more years before going back to the next crisis? Is there not an argument for trying to be a little bit more proactive and anticipate where pressure points are likely to emerge, to assess how society is changing and to act accordingly? In that regard, should we look at some of the rules around the election of the First Minister and Deputy First Minister, particularly in the light of the democratic change that we are seeing in society?

Sir Jonathan Stephens: In a sense, I agree with you, Mr Farry. I was indicating earlier that there had been significant change in Northern Ireland. At the time of the Good Friday agreement, the assumption was that there was a Unionist majority community, a substantial nationalist minority community and a relatively small but steady component who did not identify with the others. Since then, the situation has changed. It is more like two substantial minorities with a much larger, more significant and growing number of people who choose not to identify with either.

Over time, I think that will mean that a number of the arrangements need to be looked at again and examined. I am just conscious, having participated in a number of those discussions over the years, that that is not an easy task. It takes up a huge amount of political energy. Yes, there is a lot to be said for anticipating, rather than reacting to, crises, but Governments across the world, not least in Northern Ireland, have a number of crises right now to respond to. I simply suggest that right now does not seem to me to be a good time to undertake that significant and mammoth task, but I would be surprised if at some point in the next 10 years it is not on the agenda.

Gavin Robinson Portrait Gavin Robinson (Belfast East) (DUP)
- Hansard - - - Excerpts

Q Good afternoon, Jonathan. I will reflect on the question from the hon. Member for North Down. Of course, the Assembly and Executive Review Committee is the sort of place where you would ordinarily think these discussions at the moment should occur. Going to the NIO and expecting the Government to sort these issues out should be the last resort; it should be something that is foreseen and considered among parties.

I do not know whether you had the opportunity to hear the evidence session this morning. Some questions were raised about the lack of detail in the Bill as to what safeguards are in place if Ministers are in position and there is a difficulty in forming an Executive. You will know that the discussions during the negotiations focused on safeguards for issues that are significant, cross-cutting and controversial, which would ordinarily therefore go to the Executive, but with no Executive sitting, those decisions could not be made. It appears in one sense that there needs to be further detail in the Bill on what the pitfalls might be. One aspect that did not come out in the evidence this morning was the fact that Ministers normally operate after having gone through a process of reaching consensus on a programme for government. Any Minister without an Executive could therefore continue to bring forward decisions on that basis, and perhaps juxtapose that with an inability for Ministers to act and the difficulty that the Northern Ireland civil service found itself in during that three-year hiatus.

Sir Jonathan Stephens: The fundamental position is that the Bill essentially provides for a form of caretaker Administration in the absence of the formation of a full Executive. Without an Executive Committee or an Executive meeting—there cannot be an Executive without a First and Deputy First Minister—as you say, Mr Robinson, decisions cannot be taken on issues that are cross-cutting, significant or controversial. That in itself will be a significant constraint. During the absence of Ministers, cases were brought before the courts arguing that decisions had been reached without the required authority, and the courts policed that quite robustly. No doubt they will police these provisions equally robustly.

Although there might not be an Executive Committee meeting in place, there is likely to be agreement on a programme for government, even if it was of the previous Administration. That will provide an overview, as it were, of the direction of the Government under which a caretaker Administration would be able to continue to operate. I think there are protections in place, but I continue to come back to the point that no system is perfect, and there should be no doubt that the absence of a properly functioning Executive for the periods of time that could be possible under the Bill would itself have serious consequences, but at least we would not be in a situation where there was no direction and no decision making at all.

Alex Davies-Jones Portrait Alex Davies-Jones (Pontypridd) (Lab)
- Hansard - - - Excerpts

Q It is a pleasure to serve under your chairmanship, Sir David. Sir Jonathan, thank you for joining us this afternoon. Given your experience from the negotiations, are you concerned that the scope of powers is not clearly defined in the Bill and an Executive could essentially limp on without any broad cross-community support, but still would be able to make significant decisions?

Sir Jonathan Stephens: I think that is where the provisions in the Bill for the Secretary of State to call an election in the event that he judges that there is no longer broad cross-community support are critical. That underpins the whole basis of government in the Good Friday agreement, which is that Government should have broad cross-community support. If one ended up in a situation in which there were Ministers of only one party, that would be very unlikely indeed to command broad cross-community support, and you would expect the Secretary of State to step in. I think there are protections against that.

I have also identified the fact that if there is no Executive Committee meeting, because there is no First or Deputy First Minister, the ability of Ministers to take significant, controversial or cross-cutting decisions is heavily constrained. They cannot take such decisions, and the courts have already demonstrated their readiness to step in if they think that that boundary has been crossed. So this sets up a mechanism in which this is a caretaker Administration keeping the business of government and public services going, but unable to take it in new, strategic directions. So I think there are protections in place.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q On that point, Sir Jonathan, the Bill provides for up to 24 weeks for the appointment of new Ministers before the obligation to call an Assembly election is triggered. What assessment do you make of the potential effectiveness of those time provisions?

Sir Jonathan Stephens: I think they are likely to be more effective than the existing provisions, which are seven days or 14 days respectively. As I indicated, where a fundamental disagreement arose, that was almost inadequate time even to get discussions going. Once that deadline was busted, there was nothing to fall back on. Of course, you may encounter a disagreement that is so fundamental that whatever amount of time you provide for it is inadequate, but the negotiations on the Stormont House agreement and the fresh start agreement both lasted roughly 12 to 16 weeks. I think that sort of period of time provides a reasonable window in which to seek to resolve fundamental disagreements, but at the end of the day it depends upon a willingness among the parties to get together to discuss, seek to understand and resolve those differences. More time helps, but it is not the complete answer

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Finally, what statutory provisions exist that you are aware of to prevent the misuse of the powers available to caretaker Ministers?

Sir Jonathan Stephens: The fundamental protection is the absence of an Executive if there is not a First Minister or a Deputy First Minister, meaning that significant, controversial, cross-cutting decisions cannot be taken by Ministers, as well as the readiness, as demonstrated already, of the courts to step in and rule that decisions are ultra vires—not valid—if they break that boundary.

None Portrait The Chair
- Hansard -

If there are no other questions from colleagues, let me bring the Minister in again.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q Thank you very much, Sir David, for your chairmanship. Sir Jonathan, you were permanent secretary at a time when, because of the political situation and the absence of an Executive, serious thought had to be given to the possibility of direct rule. Do you agree that we are in a much better situation to be legislating for a deal, rather than agreeing and implementing policy directly for Northern Ireland, and could you expand for the Committee on some of the risks and challenges that we would have faced had we not been able to get the NDNA deal in place?

Sir Jonathan Stephens: Without the deal in place, although of course at the time we had no awareness that covid was just around the corner, it is absolutely inconceivable that Northern Ireland civil servants without ministerial direction could have responded to the covid crisis. I think it would have driven direct rule inevitably. Much of my career in the Northern Ireland Office has been about trying to find the basis on which devolution can be restored and leaders from within Northern Ireland can take decisions for Northern Ireland. I believe that that is a far better system of government for Northern Ireland, allowing Northern Ireland’s unique interests and concerns to be reflected by its own politicians and leaders.

Of course, over many years in the Northern Ireland Office I experienced direct rule, and direct rule Ministers from Westminster made the best of trying to take decisions for Northern Ireland, but I know they felt deeply uncomfortable at times taking decisions for a part of the UK from which they were not elected and where they did not reflect the local community. I do not think that I ever saw a Minister who did not believe that local politicians should be taking decisions for local matters in Northern Ireland.

The concern always was that, once direct rule were reinstituted, if it ever were, it would be enormously difficult and time-consuming to restore agreed institutions again. That would mean that there were real questions about the nature of Northern Ireland, how its society was reflected in its Government, and I think that would also be very bad for Northern Ireland. Although we did not know it at the time, it was incredibly fortunate timing that the agreement was reached just in time before covid hit, and meant that Northern Ireland was trying to respond to that crisis but with its own leaders and politicians, conscious of its own challenges and unique characteristics.

None Portrait The Chair
- Hansard -

Sir Jonathan, were there any final remarks you wanted to make before we finish your evidence session and wish everyone well?

Sir Jonathan Stephens: No, thank you.

None Portrait The Chair
- Hansard -

Thank you for our time; we are very grateful and it will help with our later deliberations. There will now be a 30-second break while we test the sound.

14:26
The Committee deliberated in private.
Examination of witness
Emma Little-Pengelly gave evidence.
14:34
None Portrait The Chair
- Hansard -

Good afternoon, Emma, and welcome. Would you kindly introduce yourself to the Committee?

Emma Little-Pengelly: I am Emma Little-Pengelly. I have recently been a special adviser to the First Minister, but I am a barrister by training. I have been special adviser to various First Ministers since 2007, although I stepped out of that to be a public representative and Member of Parliament for a few years.

None Portrait The Chair
- Hansard -

Colleagues, we have scheduled 45 minutes for this session. Who would like to ask the first question?

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

Q Good afternoon, Emma. Members will know you well from your time here, but those of us from Northern Ireland will know that you have been integrally involved in numerous iterations and negotiations over the years.

You know the Bill before us. Would you mind giving us your reflection on its provisions, the rationale for them as you see them, and whether you feel there are elements that have not been achieved or are worthy of consideration by the Committee?

Emma Little-Pengelly: My experience of the existing provisions comes from a more practical point of view, as well as the theoretical and legal aspects of the Belfast/Good Friday agreement and the Northern Ireland Act 1998. I had come in initially as a shadow special adviser to help prepare for the restoration of institutions back in 2007. That included working very closely with the drafters office and with machinery of Government elements within the Executive and the Departments in order to look at things such as the ministerial code, how the Executive should operate, and the guidance for Ministers and Departments in relation to what matters needed to come to the Executive. Also, it included issues such as the nomination of Ministers and the First and Deputy First Minister.

Over that period of time, from 2007, obviously we have had a number of significant issues and challenges. Very often they led to periods of negotiation. Much of those negotiations took place within the context of trying to talk about the technical details of the process in which we try to operate in Northern Ireland. It is a very challenging and difficult system to operate. It is a system where, at the very heart, arising from the Belfast/ Good Friday agreement, the key principle is consensus and inclusion. That is a very slow and difficult process for trying to come to decisions.

The key element to remember is that in Northern Ireland we do not have—and have never had for some considerable time since the Belfast agreement—a majoritarian system of government. Therefore, that principle is very much cooked into every part of the process, from the nomination of First and Deputy First Minister and what they can do, singly or acting jointly, to the way the Ministers operate in relation to the Executive. All of that is based on a process of consensus and a process of agreement. That of course means that at times we cannot get agreement, and that has been very, very difficult. Nevertheless, that is the system that we have had. It is the system that we have operated right up until very recently.

In more recent years, there has been a drive to change some of the elements of the Belfast/Good Friday agreement —in particular, around the concept of cross-community voting and consensus, and particularly around the safeguard mechanism of the petition of concern. When you look at the petition of concern, it is important to take a look, carefully, at the Belfast/Good Friday agreement. I listened to the evidence very carefully today. I strongly disagree with what was put across, for example, this morning by Daniel from the Committee on the Administration of Justice, in relation to the original intent of the petition of concern mechanism. I think that the proposal that this was supposed to be a very narrow issue, as opposed to it applying to all key issues, simply does not hold up to scrutiny.

I would ask everybody to take a look back at the Belfast/Good Friday agreement. The petition of concern is set out in the section referred to as Safeguards, and the Safeguards section that refers to the cross-community voting is entirely separate from the safeguard that sets out the ECHR and the equality protections. The cross-community component of that is set out in 5(d), under strand 1, and yet the ECHR and the equality severable obligations are set out in 5(c) of strand 1 of the Belfast agreement. Those are not conditional on each other; they are entirely separate. It was clear from the Belfast agreement and then the Northern Ireland Act 1998 that the cross-community consensus was to apply to all key decisions.

This is not just in terms of the basic reading of the Belfast/Good Friday agreement or the Northern Ireland Act. I think it is important also to look back at the Hansard for the passage of the Northern Ireland Bill in 1998 and the comments that were made about that Bill from all parties. I think the key thing here is that those commenting on that in the House of Commons were those who negotiated it. It was the Ulster Unionist party—David Trimble and others—along with the Social Democratic and Labour party representatives. It is very clear from reading the Hansard that no issues of concern were raised about the scope of the petition of concern and cross-community vote protections and safeguards as set down in the Safeguards section of the Belfast/Good Friday agreement.

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

Q Thank you for that. To draw on some of the issues that were brought out this morning, there was a suggestion from Professor Tonge, for example, that the petition of concern could benefit from being amended so that you had support across the community designations, so that one community wishing to table a petition of concern would require support from another or the other designation, if I can put it that way. Do you have any reflections on that contribution or suggestion that was made this morning?

Emma Little-Pengelly: When you look back to the operation of the petition of concern—again, I referenced, in terms of the passage of the Northern Ireland Bill, as it then was, in 1998, the fact that no concerns were raised about the scope of those particular provisions. But likewise, when the Northern Ireland Assembly was established under the First Minister and Deputy First Minister leadership of the Ulster Unionist party and the SDLP, no concerns were raised at that time about the petition of concern. It was still difficult. When you look back at the history of the Northern Ireland Assembly and the various crises that we have faced, of course it is difficult, because the ultimate aim of those provisions, and the provisions across the Northern Ireland Act, arising from the agreement, is that they are all based on consensus building.

We have heard some reference about the petition of concern being used as a veto, but in reality it is used in a way that reflects the fact that there is not yet, or no, consensus on particular issues, and those are key issues, so where a petition of concern is used, it is an indication that an issue has been pushed forward without consensus. That is why, when you look at the new provisions proposed in this Bill—the idea, for example, of a 14-day cooling-off period for a petition of concern is, I think, very welcome. Gavin will know as well as I do that—look, the sustainability procedures and processes as part of the New Decade, New Approach negotiations were something that the Democratic Unionist party pushed very, very hard. We pushed because we could see that it does not benefit the people of Northern Ireland to be in a situation of perpetual crisis, particularly if those crises are manufactured by, for example, the tactical resignation of a First or Deputy First Minister. Ultimately, we do need stability, and stability within a very difficult process to operate. I think the 14-day period, now within this proposed Bill, will allow a period for people to get together to try to find a consensus way forward. That may be through amendment if it is legislation, or it may be by some further or different agreement. But at the very heart of this is the idea that because the institutions were set up to be very inclusive, from the very beginning there was a concern that significant minorities should not be forced to be part of either an Executive or Government in Northern Ireland where they were subject to continual majority decision making.

That applied right up until the point at which Unionism was no longer the majority. We have since seen concerted moves to try to remove that safeguard for significant minorities. The concern there is that yes, it is a difficult and frustrating system, but in Northern Ireland ultimately this will only work if you have that maximum consensus. As I understand from those who negotiated the Belfast agreement, and right through to those who negotiated the St Andrews agreement that modified and built on some of those protections, that at the heart of that is the idea that significant minorities should not be excluded, and that consensus decision making is the priority over a quick and simple majority system, which would exclude those people.

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

Q Perhaps just one final question from me, Sir David, if you have a rake of colleagues now hoping to jump in. Questions have been raised around the lack of detail on safeguards for Ministers who find themselves remaining in position where the Executive is not fully functioning. Do you have any concerns about the provisions as drafted in the Bill, or do you feel that the safeguards from the St Andrews agreement around significant, cross-cutting and controversial decisions are sufficient in the circumstances?

Emma Little-Pengelly: I think that Northern Ireland have found themselves in this position on previous occasions, and in fairness, on those occasions all Ministers have respected that an Executive is not in place, and largely abided by and operated under the decisions previously agreed by it. I agree completely with what Sir Jonathan Stephens said on the safeguard of the courts, but as we know, the court process is long; it requires somebody to take a challenge and often ends up in Ministers taking legal challenges against Ministers.

I would have thought, though, that there is an additional safeguard in that Ministers in Northern Ireland are required to operate lawfully—they cannot step outside of that. If a Minister wanted to take a decision that was significant or controversial or cross-cutting, it is very clear from both the jurisprudence and the legal cases on this, and in terms of what was said at the time of the passing of the Northern Ireland (St Andrews Agreement) Act 2006, that a Minister has no power—there is no vires for a Minister to take a decision that ought to have come to the Executive under the terms of the St Andrews Act amendments. Therefore, a Minister could not take a decision on a significant, controversial or cross-cutting matter, unless that had already been agreed by the Executive.

In the situation that you have outlined, Gavin, there would be no way to form an Executive. Without the First Minister and Deputy First Minister, you cannot have an Executive meeting and therefore those decisions cannot be decided on because an individual Minister does not have the power or the vires to do that. Therefore, he would be operating ultra vires. I presume that the permanent secretary or the accounting officer of that Department would advise the Minister of that, and that the Minister could not proceed because that would be unlawful under those circumstances.

Colum Eastwood Portrait Colum Eastwood
- Hansard - - - Excerpts

Q Thanks for your evidence, Emma. You are absolutely right that the Democratic Unionist party pushed very hard for a lot of the provisions around sustainability during the negotiations, and some of us had some concerns about it, but I absolutely agree with you that there have to be some mechanisms for keeping the show on the road. Nobody should be threatening to pull down institutions. Of course, it was Sinn Féin that walked out the last time. Does that go as well for the DUP when it comes to issues like the protocol?

Secondly, you and I will disagree about the purpose of the petition of concern and when it should be used and so on. You have said, now that Unionism is no longer a majority, there are moves to take away safeguards like the petition of concern. What did you think, then, when Arlene Foster suggested removing it as a mechanism altogether during the negotiations?

Emma Little-Pengelly: First, to be fair to the Democratic Unionist party, I should make it clear that I am not here as a spokesperson for the DUP, so I cannot comment on the particular issues of the current situation. What I can say is that the DUP, along with many others, has, over the years since the Belfast/Good Friday agreement, pushed for a better form of government, as you will be aware, very much around trying to put better democracy in that and a better system that is not so slow or difficult to try to get agreement through.

There is a real issue around protections and safeguards. It is notable that the petition of concern is in the safeguard section. It does apply to all key decisions. That is the system that was set up—purposely difficult, I suppose, one might say—to ensure that there was maximum buy-in. What we are rapidly seeing is that people now have a particular policy proposal, they get the majority for it and they want to push that forward, against the will of significant sections of the other community.

People need to get back better to fundamental consensus policy making. Potentially we have lost that over the years. As I said, it is slow but there is a benefit to that. When you look back to the original point about intent, it is important to point out that equality and human rights are very well protected, cooked in right across the system.

If you look back to the narrative around the Belfast/Good Friday agreement, including the discussions and the debates in the House of Commons on those matters, you will see that the key safeguards lay with the establishment, under the agreement, of the Equality Commission for Northern Ireland and the Human Rights Act, which at any time can give advice or perhaps even take a legal challenge against a Department or the Northern Ireland Assembly—certainly give advice on that.

Importantly, the Northern Ireland Assembly is set up but it does not have competence to deal with matters that would be in contravention of the European convention on human rights or equality legislation. I understand that your evidence will go on next to the Speaker. The Speaker will have a legal team, so it is not even a case of a discretion. The Northern Ireland Assembly, certainly even set down in the agreement and the Northern Ireland Act, emphasised and safeguarded even further in the Human Rights Act 1998, has no power to legislate in a way that is in violation of that. A piece of legislation should never be introduced where there is a decision by the Speaker’s legal panel that is in contravention of that.

What we have seen subsequently is that people will have a range of views about whether something is a breach of human rights, which is very different from whether it is legally a breach of human rights. Of course, that is an evolving issue. There are safeguards there already, but I would also point out that the party of which Mr Eastwood is a member did not raise any concerns about the scope of the petition of concern at the time of the passing of the Northern Ireland Act, nor in the first decade of the Northern Ireland Assembly’s operation, and the operation of the petition of concern. This is an issue that has emerged over the past number of years, on the briefing from the likes of CAJ and others. There was no indication on the record—Hansard or elsewhere—that there was a concern about this.

To go back to the Belfast/Good Friday agreement, the obligations under strand 1 5(d) are completely separate from the obligations under strand 1 5(c). They are severable. Of course, they can be linked through the special process, which has already been outlined to you, but they are separate. It is very clear from both the spirit and the detail of the Belfast/Good Friday agreement that cross-community consensus was to apply to all key decisions.

None Portrait The Chair
- Hansard -

If there are no further questions, I will bring in the Minister again.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q It is good to see you, Emma. As a former Minister within the Executive, and having worked as a special adviser, could you speak to the need for a ministerial code of conduct, and how you believe that could help to strengthen public confidence in elected representatives? I recognise that, with the changes that the Bill enshrines to the ministerial code of conduct, the Northern Ireland Office is acting as agents on behalf of what was already agreed within the Executive. Can you speak a bit to the process that has been gone through in looking at the ministerial code within the First Minister’s and Deputy First Minister’s office?

Emma Little-Pengelly: Over the years, there has been some frustration about what some may perceive to be breaches of the ministerial code, and a lack of action against those. I think that the proposed changes are welcome, in that they really try to tighten up some of those provisions in relation to how they apply, but ultimately this comes down to two different issues, and I think this applies to all of the provisions in the Bill. These changes are designed to try to encourage better behaviour. For example, when you look at the move from seven days after a resignation to call an election to the rolling process of six weeks and six weeks, that is obviously something that was pushed for to try to encourage people to get around a table, with a series of deadlines to try to encourage a more structured process, I think to focus minds, and also to allow other people to come in and make their representations very clear to the parties that they want the Northern Ireland Assembly to continue, and about the issues that are important to them, as opposed to—as I have said—a tactical resignation.

However, ultimately, as some of the other witnesses have said, this will work only if there is a willingness for people to agree. We all have our issues that we feel very strongly about, and we will not always find consensus on those issues. Some of the people around the table will have been part of coalition Governments before. Coalition Government is frustrating: you will not always find agreement on the way forward, and therefore those issues cannot be progressed. Ultimately, it is about the willingness of people to compromise—to get together to try to find a solution that appeals to everybody across the community. If we try to get into a space where there are only solutions that appeal to the majority, to the exclusion of a significant minority or to the exclusion of a community in Northern Ireland, we would be in a very difficult space in terms of stability, not only of the institutions but of Northern Ireland. I think those who worked on the Belfast agreement and those who worked on the St Andrews agreement recognised that and saw the value in having those types of safeguards to ensure maximum inclusion, because once we go down the route of—for example—removing the safeguards of petition of concern and consensus decision making and moving towards majority decision making, there is the risk of exclusion, and I do not think that is good for people, certainly not on the key decisions. I think it is all about balance.

Robin Walker Portrait Mr Walker
- Hansard - - - Excerpts

Q We have heard evidence from various witnesses and various speeches on Second Reading about the fact that many of these issues and, indeed, some of the issues beyond the scope of this Bill were hard negotiated on all sides. I wonder if you agree with what we have heard in some of the evidence earlier: what they have described as other vetoes, but I think you might describe as some of the balance within the process of working together in the Executive, would not have been signed up to by all the parties in NDNA if it had sought to go further on that front.

Emma Little-Pengelly: Absolutely. When you look back over the 20 years of the operation of these mechanisms, they were there to build trust and confidence in all of the parties across all of the communities to be part of the institutions in Northern Ireland. That is why I highlight the difference between what has happened in more recent elections, where we now have a number of quite significant minorities, and what had happened for the majority of that period of time, which is that there was a Unionist majority. I think that those who drafted these documents and those, including myself, who have worked on this over the years recognised that this was not a majority Government situation in which Unionists, when they were in the majority, simply got everything they wanted and others got nothing.

That is why there needs to be, I suppose, better reflection about why these provisions are there, and the dangers of simply dismissing them. Rather than people jumping up and down and saying, “We are really angry because you are vetoing what we want”, they should sit back and reflect and say, “Look, there is clearly not consensus for this proposal. How do we find a consensus way forward? How do we look at getting a balance within what is happening and try to find a way forward that includes the maximum number of people?” You will never get absolutely everybody on board, and we recognise that, but we have been through really difficult situations before, such as the devolution of policing and justice and trying to work through a programme for government. We have to remember that the parties in Northern Ireland are not just very different constitutionally speaking, but they are very different in that they come from across the political spectrum, from left to right and all things in between. Any coalition Government with parties that are quite diametrically different in political ideologies will always be challenging. That is the challenge that we have; we have got through it in previous years. But we only get through it by getting round a table and finding the consensus way forward, not by majoritarily forcing other people, through the removal of the veto’s protections and safeguards.

Stephen Farry Portrait Stephen Farry
- Hansard - - - Excerpts

Q A very warm welcome to Emma. I will ask a two-part question. The first part is this: would Emma recognise that the effect of a petition of concern, or the veto as such, is that in effect it works for those parties or that part of the community that are perhaps most comfortable with the status quo, and it probably frustrates those parties that have a desire to see change in society?

Perhaps as an example of that, could Emma just reflect on the fact that, to my knowledge, since the Assembly was created in 1999 there has been no instance whatever of it legislating successfully at all in the human rights or equalities sphere? That has never happened and it has always fallen to Westminster to address those issues.

Emma Little-Pengelly: In terms of the provisions, I am not sure that if you look back at how the petition of concern operated from the Belfast/Good Friday agreement onwards—so, from 1998—what you will see would back up your analysis that the petition of concern is used mainly by one particular side of the community.

I say that for this reason. If you look at the bare figures, it does look as if it has been used much more, of course, by the Unionist-designated bloc than by the nationalist-designated bloc. However, that really only changed quite recently, in terms of the Democratic Unionist party obtaining 30 seats, which was the threshold in terms of signing the petition of concern. Prior to that, by default no party had over 30 seats. Therefore, despite the fact that it was not explicit within the petition of concern, the way that the petition of concern practically operated was that you required more than one party to agree with it, and that was including within designations.

I think that what you see, for example within the nationalist designation, is that you do not have and you never had the ability of one party to sign a petition of concern. Therefore, I would suggest that to try to get 30 signatures within that designation on policy issues is much more challenging, because of course you will have significant policy differences between those two parties. However, when the DUP obtained 30 seats or votes in the election, that of course made it much easier to use the petition of concern, and I think that is when some of the issues and concerns arose.

Also, when you look, Dr Farry, at the types of issues for which the petition of concern has been used, you will see that a significant number of those petitions of concern were used, for example, in relation to welfare reform legislation. Again, I think it is important to look at the nature of this issue. For example, it was not the case that the Unionist bloc were not sympathetic to the arguments around welfare reform and that we are not sympathetic to, for example, the proposed welfare mitigations; in fact, I think the opposite is true and that people were very sympathetic. But the concern around that issue lay fundamentally with financial aspects of it.

As we know, with welfare reform happening in Westminster, that had a direct impact in relation to what was happening in Northern Ireland. We were not going to get the hundreds of millions of pounds that would have been required to do the mitigations put forward by a series of amendments by other parties. So, the consideration there in terms of the use of the petition of concern was around this argument: “Look, if this passed in the Assembly, or if these legislative changes are proposed without consensus”—and there was no consensus on those amendments—“there would be a cost to the Northern Ireland Executive of hundreds of millions of pounds of additional money, which would have to be found from the block grant”.

Now, if you look back at that time, you had a DUP Finance Minister, so of course they would have been very attuned to what the concerns were then. But that is a decision that is often used to say that this is a misuse of the petition of concern. In fact, if it had not been used, those hundreds of millions of pounds would have had to be found from across other Departments. Of course, it did include human rights and equality issues because it would have meant, for example, top-slicing or taking funding away from the health service at that time, before it had been reformed, when it required even more money, never mind a top-slicing. It would undoubtedly have required other programmes to stop completely, but without any analysis by the Assembly of what the impact of those changes would have been.

In my view, a decision was taken that it was the responsible thing to do to use the petition of concern in that way to prevent the Assembly from voting on something that was going to cost hundreds of millions of pounds across Departments and have a massive impact on the everyday lives of individuals. Of course, as you know, having been a Minister in the Government, these things are all about balance, but they are also about responsibility and trying to assess the best way to do those things by talking them through and by consensus, not by forcing amendments through where there is clearly no consensus behind them, for example.

None Portrait The Chair
- Hansard -

Q If there are no other questions, Emma, do you want to make some closing remarks in your evidence before we say goodbye?

Emma Little-Pengelly: The only thing I would want to reflect on, I suppose, is really where these proposals came from. As I have indicated, it was the DUP that pushed very hard for the sustainability aspects of the New Decade, New Approach agreement, and we did that very much because of the experience of the preceding three years, where Northern Ireland was left in a really appalling situation of not only having no local devolved Government, but having no real direct-rule Ministers either, so civil servants were left in the position where they had to try to make decisions with no accountability, no democratic accountability and no guidance.

I do not think the Bill is in any way perfect, but I do think it is progress. The key thing is to try to ensure that there is not that incentive for others to bring the institutions down and cause instability in a tactical way, and to recognise that at times there will be major constitutional issues—we are seeing that at the moment with protocol, for example—and other issues of serious concern that we have had before. In those situations, of course it is absolutely right for people to raise their personal concerns, their party concerns and their community concerns to say, “This is simply not sustainable as a way forward.”

I know that that cannot be prevented and should not be prevented, but ultimately, this is a step forward to try to encourage greater stability, which is much needed across Northern Ireland.

None Portrait The Chair
- Hansard -

Thank you for your time today, Emma. I am sure that I speak for everyone when I say that I wish you well.

Colleagues, we are a little early. We were meant to hear from Mark Durkan at quarter past three, but we are trying to make contact with him. We are ready to go, so we will bring things forward. I am beginning to think that this is all to do with the football match, but I could be wrong.

Examination of Witness

Mark Durkan gave evidence.

00:03
None Portrait The Chair
- Hansard -

Welcome, Mark. I think this is a conspiracy to do with the football because we seem to be getting through things very quickly. We have earmarked 45 minutes for your session. Would you explain to everyone who you are and what you do?

Mark Durkan: I am Mark Durkan, and I suppose the reason I may be of interest to these inquiries is that I was one of the people who negotiated the Good Friday agreement. I also served in the institutions and the Executive, as the Finance Minister in the first Executive and then as Deputy First Minister elected by the Assembly in 2001. Then the Assembly was suspended in 2002. I also served from 2001 to 2010 as SDLP leader and as Member of Parliament for Foyle from 2005 to 2017. I was involved in various negotiations, including St Andrews, Leeds Castle, all the various Hillsborough talks and all of the other impasse negotiations that were around difficulties about interpretation and implementation of the Good Friday agreement and some of the subsequent agreements.

None Portrait The Chair
- Hansard -

You are most welcome, Mark, albeit virtually. Our first question today is from Alex Davies-Jones.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Thank you, Sir David, and thank you, Mark, for joining us this afternoon. As you mentioned, so much of the Good Friday agreement, which you helped to negotiate, is still not implemented. How important do you believe that this failure to implement key elements such as a Bill of Rights has been to damaging the sustainability of the peace process?

Mark Durkan: I think it has damaged it hugely. For too long, Governments and others have tried to pretend it is as though the tyre is only flat at the bottom whenever we do not have the rights, provisions and promises of the Good Friday agreement upheld and implemented. It is not just that the Bill of Rights has not been implemented; we have seen regression in recent years because there were absolutely explicit commitments in the Good Friday agreement to the European convention on human rights, of it being accessible in the domestic courts in Northern Ireland and that it could be used specifically to allow the courts to strike down legislation in the Assembly.

Mo Mowlam worked very hard as Secretary of State and the areas of the agreement that she concentrated on most were the areas to do with rights, equal rights, equality and other safeguards. The fact is that she ensured that we had a strong Equality Commission for Northern Ireland and a strong Northern Ireland Human Rights Commission, which would be a way of giving voice and reality to those commitments on rights. The fact is that subsequent Governments adopted a position that said: “Well, we’re not really going to move on a Bill of Rights unless there is total agreement among the parties.”

The way the Good Friday agreement was written, it charged Westminster with the responsibility to legislate for a Bill of Rights, on top of its commitment to ensure that the European convention on human rights would apply to all public authorities and bodies. We did not get to follow through on that as far as the additional provisions of a Bill of Rights alongside the European convention is concerned, but in the post-Brexit legislation, we have seen holes being drilled into the commitments that are made there to the European convention on human rights.

Now, Ministers of the Crown have powers—it is almost like a form of direct overrule—to supersede decisions and choices at the devolved level in the name, for instance, of protecting the internal market of the UK. Those decisions can completely ignore any concerns around the European convention on human rights and a public body is actually forbidden to cite concerns about the European convention on human rights as to why it would not comply with what a Minister of the Crown has said. We have gone well off-road in what was envisaged in the Good Friday agreement in respect of rights.

One other thing I would say about rights, because this Bill touches on the whole question of petition of concern, is that it was the thinking at the time we negotiated the agreement that the petition of concern was not a petition of veto, it was not even a petition of objection, but that it would be used to trigger a special proofing procedure during which a special Assembly committee would hear specifically from the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. So the petition of concern was very much rights and equality focused. It was to be there as a proofing procedure to ensure rights were upheld. It was never there to prevent rights being legislated for, which is how it has turned round to be abused.

None Portrait The Chair
- Hansard -

Alex, if I could just interrupt you for a moment. Mark, we can all hear you very well indeed, but our technical team here is not hearing you very well and cannot do anything to turn up the volume. Of course, we are trying to record your evidence for Hansard purposes. If you can try and get as close to your microphone, wherever it is, that would be helpful for those trying to record things here.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q The Good Friday agreement established a Civic Forum to give communities a voice and a proper consultative say in the democratic process. How important do you believe that was and has it set back progress on the Good Friday agreement that it is not currently in place?

Mark Durkan: I think again that it is a key bit of the architecture that is missing. The Civic Forum was agreed by the parties in the strand 1 negotiations. We recognised that the Assembly was going to have many challenges and difficulties and agreed that it would be useful to supplement the elected representation in the Assembly with a strong Civic Forum. The thinking that some of us had was that maybe a Civic Forum involving a variety of stakeholders and public policy interests would be an outrider on some of the more difficult structural challenges that we would face in Northern Ireland in trying to rebalance our economy and make sure that a rebalanced economy also went along with a better balanced region, and also in tackling issues of a shared future and some of the big structural problems that we needed to change.

The idea was that work could proceed in the Civic Forum in ways that could frame issues for debate and choice that could then be taken up by the Assembly and Executive themselves. The fact is that the Civic Forum, when it was in operation, did start to do some of that work in forward strategic thinking, but unfortunately, while the Assembly was restored some years after it collapsed in 2002 after Stormont-gate, spy-gate—whatever people want to call it—the Civic Forum never was, and that is a loss.

Alex Davies-Jones Portrait Alex Davies-Jones
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Q Finally, what key measures do you believe need to be implemented that are currently absent from the Bill?

Mark Durkan: I think we need progress in relation to the Bill of Rights. We need to try to clarify exactly what damage may have been done to the standing of the European convention on human rights and the reliance that citizens can place on it. A very direct promise was made to citizens in Northern Ireland about the European convention on human rights, but several of the Acts on the foot of Brexit have diluted that quite significantly, so I think that needs to be improved. While this Bill makes some improvements to the petition of concern—it weeds out some of the abuses in terms of how quickly or easily people table a petition of concern, so it is more qualified—it does not actually fix the problem with the petition of concern, which goes right back to the original 1998 legislation.

This is not a criticism of Mo Mowlam or of Paul Murphy, who brought that Bill through at the time, but that Bill translated the Good Friday agreement into statute in pretty short order, and the fact is that it did not properly translate what was intended in terms of the petition of concern. As I said earlier, the petition of concern was never to be a petition of veto, or even a petition of objection. It was to be there to trigger a special procedure, which the Assembly would then use and which would also call in the Equality Commission and the Human Rights Commission. It was to be joined-up scrutiny for rights and equality.

Of course, that has not happened and instead we have had the petition of concern being abused as essentially a dead-end veto, played almost as wild, as a joker at times, even against censure motions on Ministers. It was never intended to be so used. Some of the provisions in the Bill weed some of those bad habits out, but they do not correct the basic architectural mistake that the 1998 legislation never properly provided for paragraphs 11, 12 and 13 of strand 1 of the Good Friday agreement to be put into statute.

Claire Hanna Portrait Claire Hanna (Belfast South) (SDLP)
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Q It is a pleasure to serve under your chairmanship, Sir David. Thanks for your evidence, Mark. You commented briefly on the original intent of the Good Friday agreement versus how it has latterly been used as a way to, I suppose, thwart minority rights rather than protect them. Could you give an assessment of what Daniel Holder this morning called the St Andrews veto, deployed at the Executive, and the extent to which it is being used as a pre-emptive veto that prevents proposals and legislation from even reaching the floor of the Assembly?

Mark Durkan: Thank you for that question, Clare. First of all, there is a problem with what you describe as a pre-emptive veto—in the past, I have used the phrase “predictive veto”. That certainly stems from, first, the petition of concern itself, because once parties start to moot the possibility that a proposal or a part of a Bill might be the subject of a petition of concern, that very much helps to stop a lot of the preparation and a lot of the thinking.

Even at the prelegislative stage, issues end up staying inside Government Departments, or on the Executive table even, and not going to the Assembly because people sense that there will be a petition of concern, so we end up with a bit of a stand-off, or gridlock. Issues that should be the subject of clear, concrete proposals often find themselves remaining in hidden contemplation at Departments because people are afraid of triggering the petition of concern process. In that sense, it has ended up being like a predictive veto. The petition of concern was meant to be there so that issues could be properly considered and perused because of their equality and human rights implications. It was not there to stop proposals being tabled in the first place, but it has had that effect.

In terms of what Daniel seems to have said this morning about the St Andrews veto, that refers to the fact that, as part of the St Andrews agreement, an additional point of veto ended up being created explicitly at the Executive, whereby three Ministers could call in any measure—even one being dealt with by another Minister—to the Executive. They could also then subject that to a cross-community voting requirement at the Executive itself. Again, in this provision, there was no reference to equality, rights or any grounds on which such a veto or call-in power had to be selectively used. It was not there; it was just wide open and free range. At the time of the St Andrews negotiations, I referred to it as a “drive-by veto” that would be used on top of the difficulties that we already had with the petition of concern. Of course, again, this has meant that rather than giving due consideration to legitimate and much-needed proposals—often those that have been directed or requested by the courts—the Executive are not able to do that simply owing to this additional veto, which was created as part of the St Andrews negotiation.

Claire Hanna Portrait Claire Hanna
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Q I want to pick up on another change to the Good Friday agreement at St Andrews that is also covered, in part, in the Bill, which is the change from jointly electing First Ministers to the arrangement that we currently have. What was the point in principle of that change? Do you think it has been a factor in the recurring instability that we have seen over the last number of mandates and years?

Mark Durkan: I do not think there was a point in principle in that change as such. The reason why it was an imperative for the DUP to seek that change was because the DUP did not want to be in the voting lobby along with Sinn Féin to elect the First and Deputy First Ministers. The Good Friday agreement very deliberately provided for the joint election of the First and Deputy First Ministers by the Assembly on an open-nomination basis. Any two Members of the Assembly could have been proposed by any Member of the Assembly to be First Minister and Deputy First Minister, or, as we would have preferred to have the wording, joint First Ministers.

The DUP were afraid that if they were going to vote for Ian Paisley, they would have to vote for Ian Paisley and Martin McGuinness together, and they would be in the yes Lobby in the Assembly, possibly on their own. The first move that the DUP and the two Governments made to try to resolve that momentary issue—it would have been the 10 or 15 minutes of a Division—was to say, “Well, we will force all the other parties into the Lobby with you.” From December 2004, the whole way up until St Andrews, it was the position of Sinn Féin, the DUP and the two Governments that the agreement was going to be changed so that no other party would get to be nominating Ministers under the d’Hondt rules if they had not also voted for the First and Deputy First Minister. This was an attempt to oblige the SDLP and the UUP to be in the lobbies with the DUP voting for Ian Paisley and Martin McGuinness, as the price of being included in ministerial office.

We as a party were very clear. We had negotiated elective inclusion into the Good Friday agreement. We had negotiated it there for everybody. Nobody had to even support the agreement to be eligible for elective inclusion; nobody had to vote for the First and Deputy First Ministers to be eligible for inclusion. When Seamus Mallon and David Trimble were elected, the DUP voted against and Sinn Féin abstained but they still got appointed Ministers. The plan was to change the rules to force the SDLP and the UUP to vote for them.

Whenever the DUP realised that neither the SDLP nor the UUP would comply with those terms, and therefore they were going to be in the Lobby on their own, they came up with this other device instead, that said, “Well, we will pre-assign, on an exclusive basis, the nomination of First Minister to the biggest party of the biggest designation. We will also privatise the nomination of the Deputy First Minister to the biggest party of the second biggest designation.” It was purely to remove that 15 minutes of discomfort for the DUP on one day.

What has happened since then has been that that change has meant that the Assembly elections have been tribalised even more deeply than they would have been, because they have been turned into a first-past-the-post race for First Minister, with the DUP saying, “You have to back us to make sure we are the biggest Unionist party and the biggest party, otherwise you could have a Sinn Féin First Minister.” Similarly, Sinn Féin are using it on the other side, saying, “Rub the DUP’s nose in it. We can take First Minister off them if everybody piles in behind us.” That is not what having proportional representation elections for the Assembly was designed to produce.

It has also meant that the office has had less of an air of jointery around it. Remember, they are nominated separately; they are not nominated or elected jointly. More fundamentally, there has been a weakening of the sense of accountability of the First and Deputy First Ministers. When the First and Deputy First Ministers are not appointed by the Assembly, they may feel less accountable to the Assembly. We have seen that with changes in previous years in relation to levels of Budget scrutiny. We also saw it at other times. For instance, there was a motion by the leader of the SDLP in the Assembly back at the end of 2016 around the renewable heat incentive. It was a motion calling Arlene Foster to account.

Arlene Foster’s attitude as First Minister was that she resented being called into the Assembly and she just parroted that she had a mandate from the people of Northern Ireland. She did not have a mandate from the Assembly. Her only mandate was to those who voted for the DUP. The DUP, in that previous Assembly election, got a smaller share of the vote than the Labour party, then in opposition in Great Britain, had done. The idea that this was a mandate from the people of Northern Ireland, not from the Assembly, created some of the tensions and some of what I would say—maybe unfairly—was evidence of arrogance on the part of the holders of that office. It all stemmed back to those St Andrews changes, which essentially privatised those two appointments simply to two parties and gave other parties no say in the appointment of Ministers.

I would contrast that with my own experience. To be elected as First Minister and joint First Minister, David Trimble and I had to have the support of not just members of our own parties but members of other parties. Indeed, some members of other parties had to even stretch to redesignate themselves to so elect us. You were always conscious that you owed your election and your level of accountability to all parties—not just to be obsessed with your own party’s mandate.

Claire Hanna Portrait Claire Hanna
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Q I do not want to hog all the time, but I want to ask what your assessment is of the Government impact of the potential period of caretaker Ministers. The phrase that has been in my head all day is the former First Minister’s phrase “rogues and renegades”. I am thinking of the issues around powers and scrutiny. What is your assessment of that?

Mark Durkan: As I understand it, the New Decade, New Approach negotiations involved a push by some parties to say that there was a need to lock in stability or sustainability, and that the way in which the Executive had fallen after the resignation of Martin McGuinness was something that needed to be corrected or avoided. I am not sure that the scheme provided for in this legislation really does lock in stability. In some cases, it may lock in what might be a pretty untenable situation of a caretaker set of Ministers limping on in office.

In fairness, we have to accept that every time we have tried to solve some of the conundrums that come up with the agreement, we find ourselves coming up against the same basic problem. It is a bit like, “There’s a hole in the bucket, dear Liza”. Every time we try to solve one procedural or structural problem, we find ourselves coming up against another one, and in many cases we find ourselves coming up against the same basic question: is there really the will and commitment to truly honour and uphold disparate power sharing, both in the joint office of First Minister and in a power-sharing Executive? I am not sure that the proposals adequately answer that.

You can see, I think, that there is planning permission in the proposals for roll-over periods of every six weeks, potentially, where you have caretaker Ministers. No doubt kites will be flown that there are proposals to break through the impasse, and then we will find that that does not work, and there are more recriminations and still more roll-over of caretaker Ministers. How credible that will be, I am not sure. Whether the public will regard that as sustainability in the way that the parties that wanted the changes in NDNA talked about, I am not sure.

Then, of course, there is the issue about what is called representation—that the Secretary of State may step in, notwithstanding provisions elsewhere in the Bill, to call an election because he thinks that there is not sufficient representation among the Ministers who are in office to enjoy cross-community support in the Assembly. I think that was the phrase used in NDNA, but it is not used in this legislation. I assume that that is to address the possibility that one of the First Ministers could resign, other Ministers might resign, and in essence a shell of an Executive would continue, but it does not seem to me that the issue is properly dealt with. It seems to me that we are looking at planning permission for new brinks to be brought to teeter on, which is what happened even with some of the St Andrews changes, and some of the other procedural adjustments that have been made.

There is the question of what powers the Ministers will have. The suggestion is that their powers will be qualified and limited—NDNA said, of course, nothing significant or controversial. The question then arises of how many weeks you can really go on for on that basis, and who is to judge what is controversial. Do you have an Executive Committee that is able to operate? If we are talking about a period of either 24 weeks or even, as the Bill provides for, up to 48 weeks, where you have this kind of zombie Executive, what happens to the North South Ministerial Council? The Good Friday agreement provided very clearly that the Assembly and the North South Ministerial Council are so interdependent and so interlinked that one cannot function without the other. It seems to me that we have come up with a scenario of a period, possibly of up to a year, where you could have an Assembly functioning in some sort of quasi-status form and Ministers in a shell of an Executive, but without a basis for NSMC meetings to take place. That is not the institutional, interdependent, interlinked balance that the Good Friday agreement specified. The Good Friday agreement is explicit on the interdependence of the strand 1 and strand 2 institutions, but NDNA seems to have come up with a way of sustaining strand 1 in a way that could not actually sustain strand 2 at the same time.

James Sunderland Portrait James Sunderland (Bracknell) (Con)
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Q Mark, thank you for appearing before the Committee. Politicians generally agree that the Good Friday agreement was a good bit of work. It was successful, it has endured to the present day, and there is lots of confidence in it for the future as well. We know there are some relative threats to it at the moment, not least the Northern Ireland protocol and possibly the forthcoming statute of limitations on legacy—the list goes on. Can you assure the Committee that the Bill does not pose any threat to the Good Friday agreement? If there is a threat, can you explain what it is?

Mark Durkan: In terms of the agreement, the Bill is meant to uphold and follow through on understandings that were reached by five parties and the two Governments in the NDNA, and that was the price of getting devolution restored. I look at the Bill not as something that is going to directly damage the Good Friday agreement. I would say it is something that does not go far enough to restore and repair the Good Friday agreement, to correct its standing. What is missing is the true correction correcting the original architectural flaw in the original 1998 legislation around the petition of concern. What is in the Bill about qualifying the use of the petition of concern is helpful and good, but it does not go far enough to correct the basic architectural flaw about the absence of the special procedure and the focus on equality and human rights, so that is something that could be improved.

Likewise, in terms of the appointment of First Ministers, I would prefer legislation that restored the factory setting of the Good Friday agreement and allowed for the joint election by the Assembly of joint First Ministers. That is going to be particularly important coming up to the next Assembly election when there will be all sorts of speculation about the possible permutations of numerical strengths of different parties. The terms that were fixed at St Andrews say that the biggest party in the biggest designation gets one nomination, and the next nomination goes to the biggest party in the next biggest designation, but they also provide for the fact that if the biggest party is not in the biggest designation, it will get to appoint the First Minister, and then the Deputy First Minister will go to the biggest party in the biggest designation. So, you can see areas where parties will speculate that they might score very highly in the election in terms of seats but end up, because of St Andrews, being disqualified from the exclusive nominating rights that are fixed. It would be much better if the whole Assembly, as elected at the next Assembly election, had the responsibility of jointly electing First and Deputy First Ministers, and if all parties had responsibilities for making the Government work, rather than being able to say, “It’s the problem of those two parties,” which are preassigned those two nominating positions by the random results of the election. Nobody else can be nominated to anything without the First and Deputy First Ministers being nominated.

The repair work that could be done and the prevention of some pretty serious anomalies or absurdities that could potentially arise after the next election have not been achieved by the Bill. I do not think that we should be precluded from thinking that through further, in order to avoid an impasse after the next election.

Gavin Robinson Portrait Gavin Robinson
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Q Good afternoon, Mark. I do not agree with all of your evidence, but I certainly enjoy the fact that you have not lost your unique turn of phrase. I have been following very closely. On some of your comments concerning human rights and equality, you will remember the negotiations that led to the deal that was not a deal, which you and I were involved in around Stormont Castle. We had interesting discussions about the petition of concern and so on. Do you still accept that it is impossible for the Assembly to consider a Bill that has not been screened for equality and human rights impacts, and that the Assembly cannot progress or pass a Bill that is in conflict with human rights or equality legislation?

Mark Durkan: I do not fully accept that. The whole point about the petition of concern at the time was to ensure that we had—I used this phrase earlier—joined-up scrutiny and that we would make sure that there could be a connection between the quality of Assembly consideration and the advice or evidence that might come from the Equality Commission, the Human Rights Commission or indeed others.

Remember that the whole promise of the Bill of Rights in the agreement was very much a promise to citizens. That is one of the reasons I lament the absence of a Bill of Rights. When we were negotiating the agreement, our thinking was that the reliance on things like the petition of concern would reduce in circumstances where you had a live Bill of Rights and the good custom and practice of people being able to exercise their own challenges. Parties would not then have to rely on some of these other designation-related devices. It was there for a reason. Yes, the agreement and the legislation are clear about the obligations around rights, including the European convention on human rights. But the logic and strength of that has been watered down by much of the legislation that has happened since Brexit, because the European convention on human rights does not have the same strength of standing in Northern Ireland after some of those bits of legislation as it did.

We are in a bizarre situation whereby a public authority can say to a Northern Ireland Minister, “You cannot ask us to breach the European convention on human rights,” and they are within their rights to do so and to challenge any request, demand or pressure by a Minister or Department to so do. But they will not be in a position to so challenge a demand or instruction from a Minister of the Crown under, for instance, the United Kingdom Internal Market Act 2020. Those instructions can apply directly to Departments in Northern Ireland or to other public bodies. What was envisaged in the Good Friday agreement, which Mo Mowlam in particular put so much work into the wording and strength of, is now diminished. I would like to see it restored.

Gavin Robinson Portrait Gavin Robinson
- Hansard - - - Excerpts

Q You know that the European convention on human rights is there in the Belfast agreement, and the Human Rights Act in the UK was passed some months after and came into operation in 2000. As part of that, for any challenge that is brought within Northern Ireland, our courts have to consider the jurisprudence of the European Court of Human Rights in assessing the application of the Human Rights Act. Does that diminish your concerns in any way? Does that give you more reassurance? You mentioned earlier in your evidence that you could not go to court and rely on the convention, but you seemed to not ignore but maybe not reflect on the Human Rights Act and the part of it that specifically requires our courts in Northern Ireland to consider the jurisprudence and case law of the European Court of Human Rights.

Mark Durkan: Yes, and the courts in Northern Ireland are given under the agreement the power to strike down legislation of the Northern Ireland Assembly on the grounds of incompatibility. They do not have the power to strike down legislation from Westminster, for instance. They do not have the power to strike down decisions that might be taken by a Minister of the Crown under something like the United Kingdom Internal Market Act. The decisions of a Minister of the Crown cannot be challenged in the courts. The UK Internal Market Act specifically provided for there being no challenge in the courts of Northern Ireland, or indeed in any other courts, on that basis.

That knocks a pretty big hole in the intended effect of the commitments on the European convention on human rights, which was provided for as part of the Human Rights Act. When negotiating the agreement, one of the reasons we were able to agree that the work on the Bill of Rights was something that would be for the future—for the next few years—was that a bird in the hand was worth two in the bush. The promise of the European convention being available and accessible in the domestic courts in Northern Ireland, on the basis of the Human Rights Act, meant there was a starting point—there was already a starter for 10—as far as rights protections, alongside the institutions, was concerned. But the intent and the expectation was that there would also be some additional rights that would go alongside the European convention and that, together, those rights and the European convention would constitute a Northern Ireland Bill of Rights.

It would have been good to achieve that. I think it would also relieve the temptation that parties sometimes feel to use devices like the petition of concern and other structural blocks in the name of saying they are reserving or protecting rights, when they are actually preventing decisions. The more robust and articulate a Bill of Rights that can be taken to the courts, the better for the decision-making processes.

Gavin Robinson Portrait Gavin Robinson
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Q This is perhaps slightly outside the scope of the Bill—Sir David, you can strike me down if you wish—but on the issue of a Bill of Rights, as you know, Mark, the agreement provided that the Human Rights Commission would bring forward proposals at the request of the Government, and it did and you reflected that there was not consensus at that time. What it was asked to bring forward was additional rights framed particularly because of the unique circumstances of Northern Ireland. It may fall outside the scope of your remit or interest, but what sort of issues do you think fall within that category of being unique issues to the circumstances of Northern Ireland now, in 2021, today’s era?

Mark Durkan: The word in the agreement is not “unique” but “particular”. From my memory, that was because one negotiator in particular and one party would have voice-activated apoplexy any time anybody said Northern Ireland was a “unique situation” or “unique”. George Mitchell, Ministers of both Governments and all sorts of people found themselves seized with this fierce reaction to the suggestion that we were unique. “Particular” was, apparently, allowed, so that is what is there.

In the wording of the agreement, we did not specify—we did not give lists of examples of the particularities—and that was simply because we did not want to turn that section of the agreement into a sort of sin sheet, whereby we would each record or voice sensibilities about rights breaches or perceived rights breaches that had been endured, either through governmental or non-governmental and other actions.

Obviously, Northern Ireland does have very particular circumstances. At the time we were negotiating the agreement, there was a lot of talk around group rights. For instance, people were talking about that in relation to the parades issues, from two different sides and two different senses of rights. They were partly being talked about there, but we were not writing that specifically into the agreement.

Obviously, there is a statement in the agreement that makes a commitment—a kind of “from here on in”, future-looking commitment—around certain rights in Northern Ireland. Some of those touch on some of the issues that maybe are not dealt with in this Bill but are dealt with in other aspects of NDNA.

Gavin Robinson Portrait Gavin Robinson
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Q Finally, Mark, you reflected on your disappointment with the Civic Forum. I think you know that we are probably in a different space from that, but as part of New Decade, New Approach there was an agreement, outside this Bill, to incorporate civic co-design in policy making and so on. Do you think that that was a useful step forward as part of the overall discussions in New Decade, New Approach, although I recognise that you still want to see the re-establishment of the forum itself?

Mark Durkan: I think you can have both—it does not have to be an either/or. The forum having its own standing is good—it can take on work, particularly long-term work that may need careful framing of options and choices, and scoping out some of the issues and potential problems. We saw the forum as something that could do that, but we do not think it is the only form of civic engagement or input that there should be.

Let us not forget part of the success of a different aspect of the agreement in terms of policing—the Patten plan. We think the role of the independent members of the Policing Board was part of the strength of making that new beginning for policing happen and succeed during some very challenging times in the early days of the Policing Board and some challenging issues, in terms of the Omagh bombing report and the issues around, “I’m retiring; no, I’m not retiring”, by the then Chief Constable. The independents had a key role alongside the elected representatives. That is something that we can replicate in other ways. When it comes to prelegislative scrutiny in the Assembly, for instance, there is no reason why members of the public with particular policy insider expertise and credibility in given policy communities should not be there alongside MLAs.

There are different models and options, but there is certainly a big appetite among the public for it to be not just politicians alone who decide those things—or, more often than not, fail to decide them—and then recriminate those who are to blame.

None Portrait The Chair
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If there are no other questions from colleagues, I call the Minister.

Robin Walker Portrait Mr Walker
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Q Thank you, Sir David. It is a pleasure to see you again, Mark, as a much-valued former colleague in the Commons whom I enjoyed engaging with over many years. It is good to see you back.

You have talked about the importance of the Good Friday agreement institutions. I absolutely recognise that. Do you accept that, since the NDNA deal was reached, we have seen the restoration of devolution? We have seen meetings of the British Irish Council and the British-Irish Intergovernmental Conference. We have seen those institutions functioning. It required an agreement, as you say, with the input of both the British and the Irish Governments and all five parties to reach it.

I appreciate there are aspects of the Bill that you and your party might feel ought to be different, and aspects of the St Andrews agreement architecture that you may not like. Do you accept, however, that in order to get the devolved institutions restored and the institutions of the Good Friday agreement itself properly functioning, we needed to get the buy-in of all five parties and therefore reach a deal that was acceptable to all of them?

Mark Durkan: Yes, I do. I said that I recognised that NDNA was an agreement by all the parties and it was the price that had to be paid for getting the institutions restored. I am glad that it is the case, too, as you say, Minister, that it is not just the Assembly and the Executive who have been operating; obviously, this week we had the British-Irish Intergovernmental Conference and other things, and I am very glad of that.

I am at a loss to understand why there was a decade when the British-Irish Intergovernmental Conference did not meet. I think that the two Governments gave a very bad example as the supposed co-guarantors of the agreement. The one bit of the agreement that falls particularly to them was not being honoured. The Governments were not always in the strongest place by appearing to criticise either or both Sinn Féin and the DUP for the failure to restore the Assembly for three years, in circumstances where the two Governments had failed in their responsibilities.

Yes, I recognise the limitations in the NDNA. The problem is that some of those limitations are being translated into statute here. The promise is that this legislation is there to give stability and sustainability, but rather than blocking instability, there is a danger that it locks in a sort of zombie Executive and creates difficulties between parties, as well as creating difficulties in which the Secretary of State can be implicated. I think that the more we get into those sorts of difficulties, the harder things are.

This Bill does not rescue us from the sorts of absurdities that might emerge with possible election results at the next Assembly election. With a bit of speculation as to the different strengths of different parties, you could have very serious difficulties trying to appoint the First Minster and Deputy First Minister, as provided for in the St Andrews agreement, due to the random nature of the electoral results in terms of the number of Assembly seats. Those seats determine who has the prescribed right to nominate the First Minister and who has the prescribed right to nominate the Deputy First Minister. It becomes a real problem, and that will be a problem that discolours a lot of the election debate. It is going to bring people into all sorts of difficulties due to technical voting, tribalistic voting and all sorts of other things. We should be free of that. We should be trying to correct the St Andrews damage there, and I make no apology for that.

I think that proposed new paragraphs (e), (f) and (l), set out in clause 4(1), provide useful additions to the ministerial code in relation to good community relations and equality of opportunity, and also in relation to public appointments, civil service appointments and the code of conduct for special advisers. Those are useful additions, although I do not know whether there is a particular reason why some of the original terms of the code of conduct are now being omitted. For instance, one requires Ministers at all times to

“ensure all reasonable requests for information from the Assembly, users of services and individual citizens are complied with; and that Departments and their staff conduct their dealings with the public in an open and responsible way”.

That seems to have been omitted for the first time, and I do not know why.

Similarly, there are references elsewhere in the original version to users of services, but there is now no reference to users of services in the ministerial code of conduct. Even some of the opening language in the original version has been changed. It had required Ministers

“to observe the highest standards of propriety and regularity involving impartiality, integrity and objectivity in relationship to the stewardship of public funds”.

The opening language in the new version is arguably weaker. I am not aware of which parties either argued for or agreed that weakening of language.

Robin Walker Portrait Mr Walker
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Q I must say that most of the evidence we have heard to date—this is certainly true of the submissions I have received from the parties individually—sees this as a strengthening of the ministerial code. It is the case that some aspects of the Spad code and the ministerial code would sit with the Assembly to manage. What we are seeking to do here is correct those bits of the Northern Ireland Act 1998 in relation to the ministerial code, in line with the agreement that was reached by the Executive and signed off by the Office of the First and Deputy First Minister.

Overall, this should be a strengthening of the ministerial code, alongside some of the other mechanisms to enhance the stability of the Executive. This is about trying to support them. I would agree with your evidence and that of the former permanent secretary, but what we all want to see is good will from all parties to keep the Executive fully functioning and to avoid a situation in which these mechanisms are required. It is very important that we see that.

With regard to the possibility of what you called a zombie Executive—the Opposition talked about caretaker Ministers—do you accept, given the experience that we had during the long period of the absence of the Executive, with civil servants really being put in an impossible position, that it is useful during any potential period of interregnum to have a Minister in place who is able to take decisions within their departmental remit, to allow for some accountability within that, on the basis of the programme for government on which they were originally put in place? That would allow for continuity of departmental decisions and give some cover to their civil servants in a future period in which we might be without a First Minister and Deputy First Minister.

Mark Durkan: I take that point, Minister, but you said “some cover”. Given that the decisions are not meant to be on matters that are significant or controversial, some cover might be quite limited. Some of the difficulties and frustrations that the civil servants had in the previous period of abeyance could equally apply, but they would have Ministers who are not at full power or status and who may not have the benefit of actually operating inside an actual Executive, in those terms. It will be a pretty limp-along situation. It will be a sort of twilight zone, both politically and administratively.

I know you will say that, with the roll-over periods and things like that, there are options for the Assembly, and that if the position becomes completely unsustainable, in terms of cross-community support, there is the power for the Secretary of State to intervene to call an election. However, I think we need to recognise that we are providing for a series of episodic crises and anomalies that can happen under this legislation. In Northern Ireland, people have a habit of being able to conjure up all sorts of problems and interpretive misapplications of provisions to create particular problems. We have seen that previously in relation to provisions of the agreement or in subsequent legislation. As I say, I do not expect that there could ever be perfection in a Bill like this, because there is a hole in the bucket, dear Liza, and people keep coming up against some of the same problems, no matter how many patches or solutions we come up with.

However, I think we need to recognise that this imperfection means that it probably will not be very long after the next Assembly election until you will be looking at possibly more remedial legislation to deal with the probably untenable situation that might exist around the St Andrews provisions for the appointment of First Ministers. I think it would be better to correct that now. I think it is in all parties’ interests that that is corrected, in terms of equalising the title of the offices of First and Deputy First Ministers, and also restoring the joint election by the Assembly, and maybe relying not only on parallel consent but on other measures of cross-community support. I think that would safeguard the atmosphere around the election debate and would safeguard the choices of the public from being pulled into all sorts of tactical voting considerations owing to a pretty tribalistic agenda around the totemic significance, supposedly, of the title of First Minister, which should not be a singular title.

None Portrait The Chair
- Hansard -

Mark, even though I dare say that the Minister wants to continue the questioning, we cannot; you have, in fact, used up the 15 minutes we gained, and we are due to finish hearing your evidence at 4 o’clock. We thank you very much indeed for the time you spent with us this afternoon. I know I speak for everyone when I say that I wish you well.

Mark Durkan: Thank you, Sir David.

None Portrait The Chair
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We will have a two-minute pause.

00:05
The Committee deliberated in private.
Examination of Witnesses
Alex Maskey, Lesley Hogg and Dr Gareth McGrath gave evidence.
00:04
None Portrait The Chair
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In our last session this afternoon we will hear from Alex Maskey, the Speaker of the Northern Ireland Assembly; Lesley Hogg, the Clerk of the Northern Ireland Assembly; and Dr Gareth McGrath, the director of parliamentary services at the Northern Ireland Assembly. This is just to prove that I can read what is in front of me. I have introduced our three witnesses, but would you expand on your jobs, please?

Alex Maskey: My name is Alex Maskey. I am the Speaker of the Assembly. I was elected to this position in January 2020, when the Assembly was reconstituted on the basis of the NDNA agreement.

Lesley Hogg: I am Lesley Hogg, Clerk and chief executive of the Assembly. I took up post in 2016.

Dr McGrath: I am Gareth McGrath, director of parliamentary services. I took up my post with the Assembly in 2008.

None Portrait The Chair
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Thank you for your time this afternoon. Which colleague would like to ask the first question? I call Mr Stephen Farry.

Stephen Farry Portrait Stephen Farry
- Hansard - - - Excerpts

Q Thank you, Chair. I welcome my former colleagues from the Northern Ireland Assembly—it is great to see you all again. To facilitate the conversation, I will start with you, Mr Speaker. I am conscious that you have written to MPs setting out some particular concerns about micro-details on how some of the governance aspects of NDNA may impact the day-to-day working of the Assembly. Perhaps it would be useful if you set those out for the Committee.

Alex Maskey: Thanks, Stephen—it is good to talk to you again. You have been missed in the Assembly for a while, let me tell you. Thanks to you, Chair, and to the Committee, for allowing me and my two colleagues Lesley and Gareth to appear today. Obviously, we want to make a number of points on the procedures and potential unintended consequences, given the slight difference between the scenarios that exist within Westminster and what exists and is pertinent to ourselves in the Assembly.

As Speaker and as officials, we have no view on the substance of the NDNA, or indeed the content or intentions of any of the aspects of it, but we are obviously very much aware of the fact that this Assembly was reconstituted on the basis of that particular agreement being reached by the parties and the Governments involved in those discussions at the time. I would have been involved in some of those conversations myself but, as you all know, once I take up the role of Speaker, as is the case for all Speakers, we immediately adopt a position of impartiality and independence and take no opinion on any of these matters. I am dealing with this, and my colleagues are going to deal with this, on an exclusively procedural basis.

We had a number of concerns. They may well be on a little bit of a cautious basis, but we thought that we would draw them to the attention of the NIO in the first instance. That is why we wrote to them, and eventually met them as well, to discuss this matter. A number of the issues of concern that we had were around the procedural and technical aspects of it, as I have said. It is about supporting the day-to-day operation of the Assembly, so our concerns are exclusively about making sure that any changes that occur through the Bill are clear and can be delivered practically.

I will just touch on a couple of the issues that you have referred to, Stephen. For example, the Bill includes triggering a consideration period of 14 days when a petition of concern is presented by 30 Members. As currently drafted, it would appear that this period of 14 days cannot be shortened in any way, which could present a significant issue when a vote on a matter that is the subject of a petition is time-sensitive—for example, a statutory rule, a legislative consent motion or some other types of regulation. In a more malign sense, it could also be used to stymie business: if people want to upset some of those time-sensitive matters, they could put in a petition of concern.

That might seem outlandish or unreasonable, given the way that the petition of concern has been dealt with in the past couple of years, but nevertheless we thought we would draw attention to the fact that this 14-day period might actually lead to an issue. In fact, any shortened period or any number of days set beyond where we are at the minute could lead to some of these unintended consequences, so we just want to draw them to the attention of the Committee, as we did to the NIO.

People also need to understand that the Bill requires that the Assembly Standing Orders provide for the implementation of the new arrangements for the petition of concern, which include a 14-day consideration period. It is not yet clear if or when the Standing Orders required would be agreed by the Assembly, and consequently the existing Standing Orders would continue to apply. We already have an example of this. We had a Bill passed some time ago, and there was not the political agreement within the Assembly on a cross-community basis to put that into the Standing Orders. That was the John McCallister Opposition Bill, so these things can actually happen in reality.

Moving on to the proposal that outgoing Ministers would continue to be in office for an extended period following an election or since an Executive was in place, the only comment to note is that the Standing Orders of the Assembly are clear that Committees are not established after an election until all ministerial offices have been filled. Therefore, if Ministers remain in office, there is the proposal for Ministers to exercise some level of function without the normal accompanying Committee scrutiny.

Finally, I want to comment on the proposal to prohibit the Speaker and Deputy Speakers from signing a petition of concern throughout all of the mandate. In relation to the Speaker, Stephen, you will of course know that this simply puts existing practice into law, but in relation to the three Deputy Speakers, the position is different. As currently drafted, by prohibiting a Deputy Speaker from signing a petition of concern even if they would not be chairing that item in that capacity, there is the potential to deter Members from serving actively as a Deputy Speaker, and occasionally parties may be reluctant to allow one of their Members to serve as a Deputy Speaker if they cannot sign a petition of concern throughout the mandate.

Intentionally or unintentionally, that could impact on the inclusivity of the team of Deputy Speakers who work with the Speaker, on the basis that if Members cannot sign a petition of concern throughout the whole of the mandate, as I say, some individual Members may have some particular issues of interest on which they would wish to reserve the right to do that. It may put them off, or indeed it may put the parties off, given that we need 30 Members now to sign a petition of concern. No party at the moment can deliver those 30 signatures on its own.

Parties may be a bit reluctant to allow their Members to sign petitions of concern, which could affect the inclusive nature of having Deputy Speakers from across the current main parties. We were just trying to set out to the Committee and the Northern Ireland Office that we want to avoid situations where the Speaker and officials would have to resolve any ambiguity or deficiency in any of these provisions.

We are happy enough to come back in if there are any other issues that we have left out. Maybe I will ask Gareth, in the first instance, if he wants to add anything.

Stephen Farry Portrait Stephen Farry
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Q Gareth might be able to elaborate on this. Essentially, Mr Speaker, you are outlining three broad issues. One is the removal of the bar on Deputy Speakers with regard to a petition of concern. The second is the ability to establish Committees if there is a long period after an Assembly election in which Ministers are still in place on a caretaker basis. Perhaps we could ask Gareth to elaborate on the third point, which is around the potential lowering of the 14-day threshold in very limited circumstances. Maybe he could give us an idea of how that could be achieved in primary legislation—there are some enabling issue—and in Standing Orders. There may well be issues around those circumstances are defined.

Dr McGrath: Mr Farry will recall from many discussions of petitions of concern over many years that the devil in these matters is in the detail. It is almost impossible to envisage all the scenarios that could be captured in relation to the 14-day period. As Mr Speaker mentioned, a number of matters would be obvious to us, such as statutory rules, prayers of annulment and legislative consent motions, but there may be a plethora of other statutory motions, as I would call them, in primary legislation throughout the statute book. It is quite difficult to say, “If it isn’t 14 days, is it 10 days or seven days? What is it?” From that perspective, some sort of mechanism that could take into account when a statutory deadline will impact on the 14-day period would be helpful. It would be almost impossible for me to get into defining that in more detail.

Alex Davies-Jones Portrait Alex Davies-Jones
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Q I thank the witnesses for joining us. Mr Speaker, are you concerned that the limits of the power of Ministers during the caretaker period are not set out?

Alex Maskey: What we would be concerned about is that under our rules, once we have an election, we would appoint the Speaker and Deputy Speakers before anyone else. Then we would appoint Ministers and Committees. First, we need agreement on a cross-community basis in order to elect our Speakers. Secondly, if we were not to have new Ministers, and outgoing Ministers were caretakers, you could have a situation where there would be little scrutiny or accountability of the work that they were doing, albeit that they would still be operating on a caretaker basis. That would be a concern for us.

We would also have an issue on the question of sufficient representation, which we would like better clarified. I do not want to have to navigate undefined or ill-defined conditions, such as “sufficient representation”. The NIO is suggesting it would want flexibility in that case, which I can fully understand, but we are drawing attention to the fact that that could give us the issue of trying to navigate something that is not very well defined.

Alex Davies-Jones Portrait Alex Davies-Jones
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Q In the Bill, it is not clear how the ministerial code will be enforceable. Do you think that will make it hard for Members of the Legislative Assembly to hold Ministers to account?

Alex Maskey: I would not necessarily say so, to be truthful with you. That is always a work in progress, I suppose. I would not necessarily say that that would create any further difficulties than we already have.

Alex Davies-Jones Portrait Alex Davies-Jones
- Hansard - - - Excerpts

Q Do you think it would be wiser for the definition of “cross-community confidence” to be outlined in clause 213 in relation to a caretaker Executive?

Alex Maskey: For me, as Speaker and as someone who will remain impartial on this, I am trying to draw out, as are our officials, what areas are not as clear as we might like, but we support the legislation, and we will support what the Assembly decides. At the end of the day, it is not for us to make specific proposals. We are certainly very happy for our officials to continue to liaise with the NIO on some of these matters, but for us, in our role, to put specific proposals probably would not help, and would be inadvisable.