Grand Committee

Monday 3rd February 2014 Grand Committee

Monday, 3 February 2014.

Defence Reform Bill

Monday 3rd February 2014 Grand Committee

Committee (1st Day)

15:30

[The Deputy Chairman of Committees (Lord Geddes) (Con)]

My Lords, as is customary on these occasions, I must advise the Grand Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells ring and resume after 10 minutes. Before calling Amendment 1, I must advise your Lordships that there is a mistake in the Marshalled List. The amendment should say, “Page 1, line 10”, not “line 9”.

Clause 1: Arrangements for providing defence procurement services

Amendment 1

Moved by

[Lord Rosser]

1: Clause 1, page 1, line 9, after “DE&S,” insert “subject to conditions on maintenance and upkeep set by the Secretary of State,”

[Lord Rosser (Lab)]

My Lords, I should like to talk first about the amendment before progressing to brief comments on Amendments 2, 3, 4 and 5. Clause 1(1) provides for the company providing defence procurement services or,

“another company … to acquire from the Secretary of State rights in or over premises and property used for the purposes of”,

defence equipment and support. Under what circumstances might that involve a company other than a company providing defence procurement services? The Bill makes no reference to conditions on maintenance and upkeep. It would be helpful if the Minister were to indicate the key conditions that would apply to the company concerned, bearing in mind that the premises will continue to be owned by the Government and that the defence procurement service operation could, in certain circumstances, be transferred back under complete government control.

Will the Secretary of State be continuing to oversee the upkeep of the premises, and would it be the Secretary of State or the company concerned that would renegotiate any rental or leasing of goods, equipment or property transferred under this clause? Will it be open to the company concerned to rent or lease out property acquired under subsection (1)(b)(i) that is not being rented or leased out at the time of acquisition? Will the new government trading entity responsible for DE&S from April this year be operating under arrangements in respect of property and premises similar to those intended under subsection (1)(b)(i), and, if not, what will be the arrangements in respect of property and premises that will apply to the new DE&S organisation?

Amendments 2 to 5 stipulate action that has to have been undertaken or requirements that have to be met before the arrangements for providing defence procurement services can be brought into force. The Bill appears to be largely silent on these matters. Amendment 2 requires the Secretary of State to publish guidance on the operation of the GOCO contract, which has to include,

“the system by which available defence contracts will be advertised”,

an issue of some importance, not least to small and medium-sized enterprises. Amendment 2 also puts a responsibility for operating the GOCO contract,

“to produce and report annually against progress on an export strategy”.

At the moment, we do not know—and neither do potential bidders—how available defence contracts will be advertised. This is an area in which transparency and openness is essential if we are to provide a level playing field for those interested in bidding. Perhaps the Minister can also say if the move to a bespoke, central government trading entity from April this year will or could lead to a change in how contracts are let or advertised, bearing in mind that we are to see the introduction of a significant element of private sector support.

Likewise, the extent to which equipment to be used by our Armed Forces can also be sold to other countries is an important aspect of our export strategy, and makes a valuable contribution to our export earnings. Such exports also provide us with important links, influence and contacts with other countries and their armed forces. If there were to be a change in our defence procurement arrangements, we need to ensure that an outside company operating a GOCO contract is mindful of the importance of defence exports and continues to give this area of activity the priority it needs. Perhaps the Minister can say whether the setting up of a DE&S as a bespoke central government trading entity from April, with new freedoms, flexibilities and private sector support, will or could lead to any change in approach as far as the potential for defence exports is concerned.

Amendments 3 and 4 provide for contractual obligations to be placed on the company operating the GOCO contract under subsection (2), specifically including provision to prohibit the sale of financial securities in any publicly listed company appointed under subsection (2) where such sale would result in a change of majority ownership; a provision to require non-UK companies to establish special security arrangements for the operation of the contract; and provisions to disqualify certain categories of individuals, as stated in the amendment, from a directorship of the company operating the GOCO. Amendment 5 defines special security arrangements, as referred to in proposed subsection (7A)(a) in Amendment 4.

The purpose of Amendments 3 to 5 is to draw attention to the possibility of unacceptable foreign influence over British defence interests as a result of the GOCO operation, with the private sector involvement and the consequential issue of the ownership or possible change in ownership of one or more of the companies concerned. There is also the issue of possible conflicts of interest at director level and how that will be addressed or avoided, and that is the subject of Amendment 4.

I am sure that the Government are more than aware of the significance of these issues, and I hope the Minister can say something about how they would have been addressed had the GOCO option been pursued. It would also be helpful if the Minister can say how these issues will be addressed in DE&S organisation from April, with its newly significant element of private sector support and its separate governance and oversight structure.

[Lord Palmer of Childs Hill (LD)]

My Lords, the noble Lord raises some interesting points, which the Government should take cognisance of. However, I ask those who tabled the amendment and the Minister whether these issues should be included in primary legislation. I jotted down the noble Lord’s points as he spoke. He spoke about the premises, and he raises important points, but those are points you deal with in contracts, when you have a lease—whether it is a repairing lease or not. It is not something one would expect to see in primary legislation.

The noble Lord talks about export strategy and the importance of defence exports. I could take this even further: the Ministry of Defence, which is very much involved in defence exports, should also be working closely with the Business Secretary to promote exports. Very often they operate in their own silos rather than together. However, that is not something which would appear in primary legislation.

The noble Lord also talks about foreign influence over defence interests, and I hope the Minister will respond to that point; however, again, it is not a matter which needs to be addressed in primary legislation. I await my noble friend’s answers to these questions but I think they are matters for regulation and secondary legislation rather than being in the Bill.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)]

My Lords, these amendments have enabled the Committee to have a debate on Clause 1. As has been identified, Clause 1 is the key clause in Part 1 of the Bill, and it is important that we consider it in detail, because it will enable the Secretary of State to contract with the company for the provision of defence procurement services, should that be the way forward that is eventually agreed. It is also the clause on which most of the rest of Part 1 hangs. The amendments we will be discussing today have highlighted some very important issues and the reasons behind them have been clearly and comprehensively covered by the noble Lord, Lord Rosser, and my noble friend Lord Palmer of Childs Hill.

Amendment 1 relates to the GOCO acquiring rights over the premises and property used by today’s Defence Equipment and Support organisation and ensuring that assets are properly maintained and managed. I agree with the intent behind this latter point as it recognises the importance of ensuring that effective arrangements are in place to ensure that any such assets continue to be properly managed. Clause 1(1) specifically makes it clear that the provisions within Part 1 of the Bill will apply only when three clear conditions have been met. The first condition is that the Secretary of State makes arrangements with a company—in other words, the GOCO—for the delivery of the defence procurement services currently undertaken by DE&S within the Ministry of Defence. The second condition is that the GOCO acquires from the Secretary of State rights in or over premises and property used by DE&S. The third condition is that the GOCO becomes the employer of some or all of the civil servants employed by DE&S immediately before the company becomes their employer.

It is our intention that, although the GOCO will be given the right to use existing DE&S property, the ownership of the assets themselves will not change. In the vast majority of cases this means that ownership will continue to lie with the Ministry of Defence and the management of the assets will be the responsibility of the Defence Infrastructure Organisation. Amendment 1 seeks to make the acquisition of rights over existing DE&S premises and property by the GOCO,

“subject to conditions on maintenance and upkeep set by the Secretary of State”.

However, although I fully support the intent behind the amendment it is simply not required as the issue will be more effectively and better addressed in the contract between the GOCO and the MoD and on a case-by-case basis in the individual leases or agreements.

The premises and property occupied by the GOCO will remain the property of their existing owners, which in the majority of cases will be the Ministry of Defence. The GOCO’s rights and obligations in respect to using these assets will be agreed with the MoD and set out in the GOCO contract and the relevant lease or agreement. This will include conditions on maintenance and upkeep, as normal in a commercial contract or lease. The Defence Infrastructure Organisation within the Ministry of Defence will continue to be accountable for the delivery of infrastructure services, maintenance and upkeep. However, in some cases it is possible that responsibility may be contracted to the GOCO in due course. In conclusion, although the amendment raises some excellent issues, I must resist it for the reasons I have just set out.

I turn now to Amendment 2. Its purpose is to prevent the Secretary of State commencing the establishment and operation of a GOCO under Part 1 of the Bill until he has published guidance on the operation of the contract. In particular, the amendment proposes that this guidance should include the system by which available defence contracts will be advertised to potential bidders and how any follow-on GOCO shall produce and report annually against progress on an export strategy. The amendment seeks to address concerns raised during the oral evidence sessions in the other place about a possible lack of visibility on how the contract will work, particularly in relation to how defence contracts will be placed, and about ensuring that the new GOCO pays sufficient regard to wider defence industrial policy issues, such as the exportability of equipment. The concern was that the GOCO would be focused solely on delivering equipment more cheaply and would not have to take into account other aspects of our industrial policy.

It is our intention that the GOCO will act as the Secretary of State’s agent when contracting for defence equipment and support. This means that the Treaty on the Functioning of the European Union, the Public Contracts Regulations 2006 and the Defence and Security Public Contracts Regulations 2011 will apply in the same manner as they do today. This includes advertising in the Official Journal of the European Union where required. MoD commercial policy on advertising defence contracts will also continue to apply. In addition, it is to be remembered that any contract entered into by the GOCO to deliver defence equipment, support, logistics and services will be entered into by the GOCO as agent on behalf of the MoD, which will remain a counterparty to defence contracts.

It is also our intention that the strategy for wider defence industrial policy and exports remains with government, but supported by the GOCO providing defence procurement services under contract, including providing support to government marketing of defence materiel at defence exhibitions and shows; managing the provision of defence assets and resources to support defence export opportunities, including assistance with export licence applications; and providing recommendations to government on export strategy and policy, a point that the noble Lord raised. The GOCO will therefore not be required to have its own exports strategy and the amendment is therefore not required.

15:45

The purpose of Amendment 3 is to prohibit the sale of financial securities in the GOCO if the GOCO is a publicly listed company, when such sale would result in a change of majority ownership. The amendment deals with a perfectly understandable desire to protect national security arising from the concern that, although we might be content with the companies we contract with initially, we must control those companies subsequently selling their stake to other less desirable companies with national security implications. I understand these concerns and agree that these risks need to be effectively managed.

It is our intention that the GOCO will be prohibited from selling financial securities through contractual provisions in the contract with the GOCO managing company and through the operating company’s articles of association, which will be agreed as a condition precedent to the contract. It is our intent that these provisions will also apply to any new arrangements—for instance, on expiry of the original contract with the GOCO.

The structure of the GOCO proposal and its associated operating model are not new and have been tested elsewhere in industry both in the UK and overseas. One such example, which also includes provisions on managing share ownership, is the Atomic Weapons Establishment.

In conclusion, the amendment is not required because, although the underlying concern is fully appreciated, it does not recognise the complexities of change of ownership and sale of financial securities in the context of the proposed contracting structure either now or in any new arrangements. These complexities can best be dealt with in contracts that can be drafted and negotiated to meet specific requirements. There is no necessity for a legislative provision to address the concern.

The purpose of Amendments 4 and 5 is twofold. First, they seek to put in place additional security arrangements should the contractor be a non-UK company. Secondly, they seek to disqualify from the directorship of the GOCO any individual who is involved in the provision of defence equipment or services in any other company in the defence industry. I would like to reassure noble Lords that, although we have concluded that these amendments are not required, it is because extensive, effective checks and balances are either already in place or will be put in place within the GOCO contract and that the risks in question are already, therefore, being effectively managed through more appropriate means.

The amendments also seek to ensure that the GOCO cannot take advantage of its privileged position to exert influence over British defence interests and to prevent the company’s directors, whether or not it is UK-registered, having conflicting interests in other defence companies. Amendment 4 seeks to make it necessary for the GOCO to include a number of mandatory obligations on the contractor. The first requires that non-UK companies must establish “special security arrangements” for the operation of the contract. Amendment 5 provides a definition of “special security arrangements” as,

“a proxy board or special security agreement set up to prevent foreign influence over British defence interests”.

The second and third obligations seek to disqualify from appointment to the GOCO directors who have conflicts of interests, because they are also directors of, or have financial interests in, other defence companies. For example, this would mean that the CEO of BAES could not hold a directorship within any company associated with the GOCO. The MoD governor will monitor any changes to share ownership and directorship to identify any major changes that might introduce conflicts of interest. Ultimately, should it be required, the MoD will retain and be able to use appropriate change of control provisions within the articles of association with the GOCO-operating company within a two-company structure and the contract between the MoD and the management company. I do not think these amendments are necessary as the issue is already covered by provisions within the anticipated contractual documentation.

The invitation to negotiate requires the GOCO, both ManCo and OpCo in the two-company structure, to be a UK company. This will be a condition precedent for awarding the GOCO contract and also be contained in the operating company articles of association. The GOCO is also required to conduct its business so that the centre of main interest of the operating company is deemed to be in the United Kingdom. As far as the award of the first term of the contract is concerned, therefore, the eventuality envisaged in proposed subsection (7A)(a) does not arise.

Conflict of interest issues are being managed robustly as an integral part of the materiel strategy commercial process. In the pre-qualification questionnaire, potential bidders are required to declare any perceived, potential or actual conflict of interests, together with proposals for how they would manage them. In addition to providing information regarding existing or future contracts with the MoD, potential bidders are also required to declare any personal conflict of interest. All declared conflicts of interest were reviewed and, if necessary, action was required to be taken before any company could proceed to the procurement phase.

The companies which successfully qualified to the procurement phase were required to enter into a bid participation agreement, which detailed the MoD’s requirement for management of conflict of interest and included an initial list of all conflicts of interest and how the MoD expected them to be managed. The intention is that this list will become a live document, which will be subject to ongoing review and will ultimately be enshrined in the GOCO contract.

Within the MoD all project branches are aware of the companies which are involved in the GOCO procurement and, if they have any concerns about potential areas of conflict, they are required to consult the MoD MatStrat commercial team for guidance before proceeding. Any company which is considered to have unmanageable conflicts of interest may be asked to remove themselves from the competition or, alternatively, from any existing contract which may be the cause of the conflict.

The materiel strategy invitation to negotiate required the proposed GOCO, both the proposed management company and operating company in the two-company structure, to be a UK-registered company. This will ensure that any GOCO contractor will be required to comply with UK legislation, including the obligation to pay UK tax.

The GOCO will also be required to conduct its business so that the centre of main interest of the operating company is deemed to be in the UK. Management of information which is considered to be commercially sensitive or security classified will be subject to stringent conditions under the GOCO contract. Such conditions will include, but may not be limited to, restrictions on the extent of information that can be shared between the OpCo and the ManCo, and between the ManCo and its respective parent companies. These types of restrictions are not uncommon on MoD contracts where the parent company is not based in the UK.

The draft company articles of association for the GOCO and the Government’s provisions in the draft contracts state that one of the parent companies cannot be taken over without the MoD’s authority. The MoD’s approval is also required before the GOCO contract can be assigned or novated. One of the grounds on which such authority could reasonably be refused is national security. Also, the articles of association specify that at all times at least one of the CEO or the chairman of the operating company’s board must be British. The MoD would be able to veto an appointment that would leave the board with neither of these posts held by a British national. As a fallback, should the need arise, the MoD will also have the power to remove the CEO of the operating company.

The noble Lord, Lord Rosser, asked whether the Secretary of State would negotiate any leases and the answer is yes. On maintenance, the conditions of maintenance would be properly specified in the contract between the MoD and GOCO. On the central government trading entity, property would remain in MoD ownership and staff would remain civil servants. On the export policy of a bespoke trading entity, export policy remains within the Ministry of Defence, expressed through government policy.

On the description of the trading entity, none of the generic organisational models fits our need so DE&S will be bespoke. It will be an arms-length body with a hard boundary with the rest of the MoD, a separate governance and oversight structure with a strong board under an independent chairman, and a chief executive who will be an additional accounting officer, accountable to Parliament for the performance of the organisation. It will have significant freedoms and flexibilities agreed with the Treasury and Cabinet Office around how it recruits, rewards, retains and manages staff. This will reinforce the customer-supplier relationship, facilitating a more businesslike approach and culture change, including hard charging of customers and the injection of private sector skills through the appointment of managed service providers for project delivery, finance, MI, IT and HR. Finally, the delivery of mechanisms that provide a robust performance baseline will allow the MoD, at a future date, to retest the market’s appetite for continuing DE&S evolution into a GOCO.

I am conscious that I have not answered all the questions, particularly those of my noble friend. I undertake to write to noble Lords as soon as possible—certainly well in advance of Report. In conclusion, although I think that the amendments tabled by the Opposition raised some excellent issues, I must resist them for the reasons I have outlined and therefore ask the noble Lord to withdraw the amendment.

[Lord Rosser]

I thank the Minister for his considered response and the noble Lord, Lord Palmer of Childs Hill, for his comments. The Minister appeared to address most of the questions I raised but there is one I am not sure he gave an answer to—he may well have done so. He said that the Secretary of State would be involved if it was a case of renting or leasing out property. Could I just check that it will not then be open to the company with the GOCO to rent or lease out property acquired under Clause 1(b)(i) which was not being rented or leased out at the time of acquisition?

The Minister also made a number of references to the GOCO contract. To what extent will the terms of that contract be in the public domain or—if I can use the expression—hidden from view as far as the public is concerned? I believe that the Minister said that freedoms and flexibilities had been agreed with the Treasury and will come back to that issue on a later amendment. Once again, I thank the Minister for his response. I do not know if he is in a position to respond to the two issues I just raised but it is of course my intention to withdraw the amendment.

[Lord Astor of Hever]

The answer to the noble Lord’s first question is no, it would not be. I will write to the noble Lord about the second question on contracts.

[Lord Rosser]

I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 to 5 not moved.

16:00

Debate on whether Clause 1 should stand part of the Bill .

[Lord Rosser]

My Lords, we had a lengthy debate at Second Reading on the Government’s decision no longer to proceed with their then plans for the GOCO option but to continue nevertheless with Part 1 remaining in the Bill. It was not made clear then why Part 1 was still relevant or needed and, in my opinion, that remains the situation.

Part 1 is not about some minor change, it is about a major change to the £10 billion annual defence procurement arrangements and procedures, a change to an as yet untried and untested way of doing defence procurement not only in this country but in any other country in the world. The Government now intend to go down the road of further developing DE&S+, something which one might have thought they would have done before deciding whether the GOCO option should be considered. Surprisingly, the further development of the DE&S+ organisation will be under the leadership of someone who, it has been claimed, does not actually believe that it is the best way forward but favours the GOCO alternative.

One suspects that that decision has been made at least in part because the view of that individual reflects the Government’s stance, a stance that also involves putting in place the necessary legislative provision to proceed with the GOCO option at some time in future, but with the added advantage for a future Government of being able to make the change with the minimum of further scrutiny and challenge by Parliament. There can, after all, be little or no effective scrutiny now of Part 1. There is a limit to the amount of hard information that the Government can provide about why the GOCO option would be better or what the financial advantages would be compared to other options, because we did not even get to this stage of having two or more private consortia willing to tender and set out their stall, a development which in itself raises question marks about the whole GOCO proposition.

Why then are the Government persisting with the retention of Part 1 when, even on their own admission, nothing will happen that needs the powers contained in Part 1 this side of a general election? Part 1 is not about giving this Government statutory powers that they plan to use; in fact, it is the exact opposite, it is about giving statutory powers that this Government have now explicitly said that they will not be using, following the collapse of the commercial competitive tendering process.

Part 1 should be deleted because it provides for an untested and untried major change in defence procurement which this Government do not intend to introduce and for which they cannot and will not be able to produce any evidence that it will provide a better alternative at some time in future than either the existing arrangements—or, significantly, the further developed DE&S model, which does not even come into being until April this year.

By retaining Part 1 at the same time as they say that they want to develop further the DE&S+ option, the Government create a situation of continuing uncertainty over the future of the defence procurement organisation for a period of a few years at a minimum. It will not make it easier to recruit people, for the highest levels of the organisation at least, if it is faced within a relatively short period with the real prospect of becoming a GOCO under new private ownership, as it will be the most senior people in the new DE&S+ organisation who will be the most likely to be replaced by the new owners with their own appointees.

What is the Government’s objection to saying that we are now going down the road of DE&S++ and only if that does not deliver the improvements in defence procurement that we are seeking will we look at the other options? What is their objection to saying that, in the mean time, we are not even considering other options or providing legislative provision to introduce them with inadequate scrutiny—not least because we are talking about radically changed arrangements for the future delivery not of £10 million-worth of taxpayers’ expenditure but of £10 billion-worth of taxpayers’ expenditure each year?

A major change in the arrangements for delivering on such a large sum of taxpayers’ expenditure in an area of cutting-edge technology that is crucial to the nation’s security should be subject to the fullest parliamentary scrutiny, based on the facts available and the position in relation to any new procurement arrangements at the time that the change is proposed to be made, not on the basis of the virtually non-existent facts and details that appertained a minimum of three or four years previously, at a time when it had then been decided not to proceed with such a change in defence procurement arrangements.

The Government’s proposed amendment for affirmative orders as a means of providing parliamentary scrutiny in a minimum of a few years’ time, and possibly considerably longer, is, frankly, inadequate. There is no requirement as to how much information, including comparative information, should be provided, and by whom, with such affirmative orders, or the extent to which the information justifying the action and decision covered by the order should be subject to scrutiny.

That is quite important when we are talking about a significant, untried and untested change in the arrangements for procuring defence equipment worth, as I have said, some £10 billion per annum of taxpayers’ money and when we are talking about affirmative orders that cannot be amended but have either to be accepted or rejected as a whole. The Government’s proposed affirmative orders provide no proper checks or scrutiny, bearing in mind the magnitude of what we are talking about. I fear that no soothing or calm words from the Minister about what information might be provided, or however much debate or discussion there might be will alter that fact, not because such words would not be genuinely meant, but because nothing the Minister says commits the Government who would be involved to anything. For it will not be this Government who are in office when decisions are made on whether to continue with DE&S+ or establish a GOCO.

If the decision is made to establish a GOCO it will not be this Government but the next or a subsequent Government who will decide how much information should or should not be provided to Parliament. It cannot be right to pass legislation now which enables a future, unknown Government to make a major change in defence procurement at some time ahead in circumstances that are currently unknown without having to come back to Parliament with a Bill so that they can be made to justify their proposals in detail in the light of the circumstances at the time, with their proposals subject to possible amendment as well as rejection. That is a further reason why Part 1 should be deleted from the Bill. Since it will be a future Government who will take the decision to make a radical change in our defence procurement arrangements, if that is what they decide, it is that Government, not a Government who have decided not to make the change during their term of office, who should have their proposals and reasons for the change subject to full scrutiny by Parliament through a Bill.

How do we meaningfully discuss what the GOCO option will mean in practical terms and the many questions that will need answering when we are not discussing it with the Government determining what the GOCO option means in practical terms and giving responses to the questions that need answering? There are many questions that will need to be discussed and answered but these must be answered by the Government who are making the switch to the GOCO, if that is the stage that is reached. They include questions on the GOCO relating to conflicts of interest, impact on national security, treatment of intellectual property, retention of sovereignty, the operation of any civil and criminal penalties, actual risk transfer and retention of the skills base, for example.

There are other reasons why we should not be giving some future Government at some future, unknown date the power to make major changes to our defence procurement arrangements simply through affirmative orders without full parliamentary scrutiny. Such scrutiny would also take into account how effective the changes have been that are now proposed in the DE&S+ organisation, changes which this Government did not intend to test or evaluate before making a decision on the GOCO option, since it is only now that the Government have decided to make the further changes to the DE&S+ proposition. One would have thought that the Government would have done their utmost to keep defence procurement as a core business for the Ministry of Defence and would not even have considered outsourcing through a GOCO until all options which would keep it in house had been tried, to see whether the necessary improvements could be delivered through that channel. If that can be achieved it would have the advantage of retaining the procurement capability within the Ministry of Defence and the knowledge that goes with it, which will, at the very best, be significantly weakened under the GOCO proposition.

Defence procurement is not simply about what may be the best course of action in commercial terms, but involves a multitude of considerations including political considerations such as the impact of procurement decisions on national, regional and local economies and the future of the defence industry. Such decisions can have international and strategic implications on collaborative projects, for example. It is also the case that the provision of Armed Forces equipment involves uncertainty over both the cost and capability, now and over some years, of cutting-edge technology. This has to be capable of being upgraded or adapted as necessary to meet the increasing sophistication of the equipment deployed in the future by those we might confront in differing conditions in different parts of the world. In addition, the effectiveness of equipment used by our Armed Forces can only be definitively assessed once it has been used in action.

How all these issues and considerations will be addressed and covered in the terms of a GOCO also requires answering, but by the Government who decide to make the switch to a GOCO and not by the Government who do not, and by the Government negotiating the arrangements with the successful GOCO operator and not by the Government who are not. Questions of that magnitude and importance cannot be addressed and considered in a discussion on an affirmative order, as opposed to a parliamentary Bill. Neither can this Government say that there would not be time in the legislative programme for a further Bill dealing with defence procurement, because that would be a matter for the next or a subsequent Government to decide when determining their legislative priorities. One thing that we do know is that there will have to be a further Armed Forces Bill shortly after the next general election, which will provide a legislative opportunity if one is needed at an early stage.

The Government have stated their intention to change DE&S into a new, bespoke central government trading entity with effect from April and have said that the new organisation will be permitted significant freedoms and flexibilities agreed with the Treasury and the Cabinet Office. At Second Reading, the Minister referred to,

“getting the best out of freedoms that we have agreed with Her Majesty’s Treasury and the Cabinet Office, which are necessary for the new DE&S”.—[Official Report, 10/12/13; col. 771.]

Will the Minister now spell out what those freedoms are that have been agreed with the Treasury and the Cabinet Office, what changes they will lead to in the DE&S organisation from April that do not apply in the DE&S organisation as it is today, what their impact is expected to be and what their additional cost, if any, is expected to be? What goals, objectives or targets are being set for the DE&S organisation that comes into being in April and how will they differ from those applicable to the current organisation?

It rather appears as if the new DE&S organisation, in the eyes of this Government, is to be used as little more than a stalking horse for the GOCO, since the Minister said at Second Reading:

“We believe that a GOCO remains a potential future solution for transforming DE&S once we have put in place a more robust baseline from which to contract with a GOCO partner”.—[Official Report, 10/12/13; col. 768.]

That suggests that bringing in private sector support to transform DE&S further within the public sector is being regarded simply as a stopgap measure by this Government. Be that as it may, perhaps the Minister could indicate the extent and breadth of the private sector support that is being brought in now and the form that it will take and where it will come from. Is the private sector support going to come from companies that the Government would like to see as GOCO partners?

As I have indicated, our view is that Part 1 should be withdrawn from the Bill, for the reasons that I have already given, and I hope that at some stage that is what the Government will do. Likewise, for the reasons that I have mentioned, we certainly do not believe that the Government’s proposals that Part 1 should be capable of being brought into effect by some future Government, by the passage of affirmative orders in both Houses, represents adequate scrutiny or the potential for adequate in-depth consideration or challenge.

A further amendment that we are proposing, which we regard as very much the second-best option behind withdrawal of Part 1, is for a super-affirmative order, which would require to be passed by both Houses before Part 1 could be brought into force. The amendment provides conditions that the Secretary of State must fulfil before a statutory instrument containing an order under subsection (1) in respect of Part 1 can be made. Those conditions are set out in Amendment 25 and require the Secretary of State to lay before Parliament evidence-based impact assessments of the risks and merits of at least the DE&S model as modified in 2014, the arrangements for defence procurement as laid out in Part 1 of the Bill—that is, the GOCO—and other options as may be recommended following consultation with the House of Commons Defence Committee. It also requires the Secretary of State to lay before Parliament an independent report setting out the comparative advantages of defence procurement arrangements and options to which I have just referred and for the Defence Committee to report to Parliament its findings on the independent report.

If the Government are determined to leave Part 1 in the Bill, we believe that the measures set out in our amendment would at least help to ensure that the next or a subsequent Government, if they decide to go down the GOCO route, would have to justify their decision to Parliament in some detail based on hard evidence relating to the circumstances at that time before they can proceed and that Parliament, when making its decision, would have the benefit of impact assessments, an independent view of alternative defence procurement arrangements and a review and report on that independent report by its own Defence Committee in the House of Commons. That will be the minimum necessary if Part 1 is not withdrawn from the Bill to at least ensure appropriate scrutiny of a future Government’s proposals and reasons for establishing the GOCO option for defence procurement.

16:15

[Lord Robertson of Port Ellen (Lab)]

My Lords, I declare an interest in that I work for the Cohen Group, a Washington-based consultancy led by a former Secretary of Defence, William Cohen.

I support the idea and concept of a GOCO. However, I also recognise the powerful case made by my noble friend in relation to secondary legislation. We should consider the GOCO because something radical needs to be done about defence procurement. I was Secretary of State for Defence for two and a half years, too brief a period to get to terms with the scandal that has been the continuing story of defence procurement in this country. The story of cost overruns and time overruns is deeply disturbing and worrying.

Over the past weekend, I took part in a security conference in Munich. There was a special session with a number of talented and experienced people talking about European defence and the crisis of diminishing defence budgets in the face of both existing and emerging threats. I made the point in that discussion that we were unlikely to get defence budgets stabilised or increased. Unless the case can be made to the general public that there are threats that need to be dealt with, defence budgets will continue to go down. At the moment, advocacy of the need for defence is missing.

At the same time, the case is consistently undermined by the fact that we do not use existing defence budgets properly or effectively. First, there is a multiplicity of defence projects across Europe which duplicate in many areas what we could do; a focus on items of capability which are related to the Cold War and not to future threats; and the sheer number of tanks and hopeless aircraft in the European arsenal which relate to yesterday’s enemy and not to the future. Secondly, and importantly, a large amount of money is wasted on the way in which we procure defence. As Secretary of State, I thought it was important that we should deal with that issue and look at it radically. In the strategic defence review of 1998, which I supervised, we made radical changes to defence procurement. I am sad that I did not stay there long enough to pursue it. My successors also tried and failed to get to grips with it as well. The term “smart defence” was coined by me at a press conference during my time at the Ministry of Defence, but it has become less and less smart as time has passed.

The saga continues and will do so until something radical is done. The thinking at that time was put together by me and my special adviser, Bernard Gray. He was employed by me—I took him away from the Financial Times, where he was the defence editor, in order to be my special adviser—and I frankly admit that we would not have had such a good and long-lasting defence review if it had not been for Bernard Gray’s clear thinking and his powerful purpose during that time. People criticise him now, but I believe that he is one of the few people who has the intellectual grasp and dynamic conviction to drive through the required changes. The noble Lord, Lord Levene, was appointed by Lady Thatcher to look at defence procurement, and he made a good fist of it then, but again he moved on before it could be fully put into practice. If my private sector experience since I left NATO has taught me anything, it is that execution is a critical area to focus on to get outputs instead of just excellent inputs.

The GOCO concept is certainly radical—and my noble friend is right that it is in many ways untried—but many people are watching us because many countries have exactly the same problem. We have to look at that. It is sad that the process failed, and that only one competitor—if that is the right word—was left standing at the end, but the process produced a number of proposals, as part of the tendering, that indicated that major savings could be made. There may only have been one left at the end of the day, but each competitor put forward proposals that would have saved the taxpayer money and made sure our troops got equipment much more on time. DE&S+ is second best, but it has to be tried, given the situation. The radical nature of what we have to do is utterly justified by the fact that our troops do not get the equipment at the right time and in the right form, and the taxpayer also pays well over the odds for it. If we do not think radically, the same old mess will continue.

However, my noble friend has made a powerful case for the GOCO, having been shunted into a siding, remaining there until it is a reality and we have had time to test it properly—and secondary legislation is not the right way to do that. Therefore, Amendment 25 is a good way of making sure that when the day comes, as I am sure it will, when we go down the GOCO route, there will be the proper scrutiny that the idea deserves.

[Lord Roper (LD)]

My Lords, I believe we should give consideration to Part 1 at this time, and that it should remain in the Bill. I am therefore unable to support the suggestions by the noble Lord, Lord Rosser, that these clauses do not stand part of the Bill. His points about the gap between now and when the GOCO comes into effect are important; that is why I asked the Secretary of State, when he came to see some of us, for an assurance that there would be an opportunity for Parliament to make a clear decision before Part 1 came into operation. That is why the Minister tabled Amendment 24, suggesting that there would have to be affirmative Motions in both Houses. My noble friend Lord Palmer and I have added our names to that, because it is in response to the request that we made to the Secretary of State. Since then the noble Lord, Lord Rosser, has tabled Amendment 25.

The case for a super-affirmative resolution needs to be examined. It will be useful between now and Report to consider the value and possibilities of such a procedure, perhaps making rather more explicit the scrutiny which would be given in this House, as well as by the Defence Committee of the House of Commons, of any proposal at the time when it is put forward. The super-affirmative procedure is a useful development of recent years, and there is a case for its consideration.

[Lord Palmer of Childs Hill]

My Lords, I will add a few points. At Second Reading, I said that I understood the weaknesses in Part 1 but wanted it to remain part of this legislation. I have not changed my mind on that. I thought the words of the noble Lord, Lord Robertson, about the scandal of defence procurement summed that up. Coming into this much more recently, it was clear to me with my experience of procurement that it was not fit for purpose. I am not blaming anyone for that: many people tried to change it, including some noble Lords in this Room, but were not able to.

The noble Lord, Lord Rosser, made the point about this being a stalking horse. In fact, the word used was “baseline”. The question raised by many noble Lords in previous debates was why two of the three bidders for the GOCO came out of the bidding. In my view, they must have realised that they could not work out the baseline—that is, the actual cost of running the department. Numerous sorts of contracts—even contracts with the same companies and contractors—are done under different agreements and bases. Therefore, two of the bidders left probably because they did not feel they could see where the profit was with any degree of certainty. Left with only one bidder, the Secretary of State was clearly right to say that one could not go forward with a GOCO at that stage. However, as my noble friend Lord Roper said, a great achievement was reached by some of us who spoke with my noble friend the Minister and the Secretary of State about having a sunrise clause—that is, Clause 24. That means that it has to come back to both Houses before you proceed with a GOCO. Whichever Government are in power when that happens, that will give them a big control.

The noble Lord, Lord Robertson, spoke very warmly about Mr Gray, the Chief of Defence Materiel. I have only come to this more recently and probably never saw all the good things that the gentleman did. We are in a new ball game now. DE&S+ will come into force only in April and will probably get going properly only by the autumn. Mr Gray’s contract ends on 31 December 2014. He might well apply for the new chief executive post thereafter—that is of course everybody’s right, and the employer has every right to decide who it should be. However, this is purely a run in, using Mr Gray’s experience in the coming months to help set up DE&S+, and it is obviously in the future as to who that person or persons will be.

A very good question was raised by the noble Lord, Lord Rosser, about the freedoms agreed with the Treasury. I hope my noble friend the Minister when he replies can give some assurances on what levels of payment the Treasury will allow to be made to senior employees of the MoD. Also, why does he believe that the super-affirmative Motion is not needed with Amendment 24—in other words, why should we go with Amendment 24 and not Amendment 25? I look forward to my noble friend’s reply.

[Lord Levene of Portsoken (CB)]

My Lords, I can claim to have spent quite a lot of time working on this particular issue, having held the post of Chief of Defence Procurement for six years. The noble Lord, Lord Robertson, was kind enough to pay tribute to some of the work I did but said that I did not stay around long enough to finish it off. I was actually there for six years. If anybody could look through the results of the Procurement Executive, as it was called at the time, they would see that at the end of those six years as compared with the beginning we had actually resolved most of the problems. I say that without fear of contradiction because if anyone consulted the report prepared by the National Audit Office at that point they would find that for the first time the outturn of the budget matched what we expected it to be and that contracts were being delivered on time.

16:30

So what was the magic formula? It was to try to even up the negotiations between the suppliers on once side and the buyer—the Government, Ministry of Defence, the Armed Forces—on the other. There were a few battles during that period but we seemed to have got it right. Even some of the most implacable foes of the policy that we were trying to introduce, at the end of the day accepted that we were, in fact, doing the right thing. A side issue was the enormous success of the defence export side of the industry which found that it was far better able to sell its equipment because the terms on which it had been supplying it to the Ministry of Defence were no longer so-called sweetheart terms but tough, negotiated terms. This made the firms much more competitive than the companies also in the industry in other countries.

I was brought in through a combination of the late Baroness Thatcher and the noble Lord, Lord Heseltine, at a time when they were actually speaking to each other, to try to bring a more commercial element into the work. I do not claim any genius for having done this; it was simply to run the operation on commercial terms, and it is a business involving one party buying equipment and the other one selling it. Where had been the problem? It was not in the civil servants’ and serving officers’ understanding of the equipment, which they understood well enough. However, they had not been trained in commercial negotiation. That was the one element of the puzzle, if you like, that I brought to it.

I was the first person who ever introduced a GOCO into the Ministry of Defence. Before I started on procurement, I was given the task of trying to sort out the problems that had existed in the naval dockyards at Rosyth and Devonport since the time of Samuel Pepys. We managed to resolve them by taking away the management of those dockyards from what had been an extraordinarily bureaucratic organisation and giving it to two very successful commercial companies that turned around the performance of those dockyards. I am sure that the noble Lord, Lord Robertson, will remember how things changed in Rosyth. That worked very well.

However, I have been implacably opposed to the idea of a GOCO for procurement because it is not the right place in which to use it. It works well in an industrial operation such as a dockyard but does not work well as a commercial negotiator. What are needed are the skill of the serving officers within the Armed Forces and those who are seconded to the Ministry of Defence, and the skills of the civil servants, particularly the technical ones who understand the equipment that they are buying. That leaves just the element of commercial skill on top, which is what I was asked to bring in, and which I did. Although we have yet to hear what they are, I believe that with the new-found freedoms that we understand the Treasury has agreed, the Ministry of Defence will be allowed to negotiate and involve a small number of people with commercial experience at the top. That will work.

It is undoubtedly the best way to go and, as I understand it—although it is complex for everyone—that is what DE&S is intended to bring in. I do not believe that it right to bring in a GOCO. We cannot discount the fact that no one else in the world has brought in a commercial organisation to run their procurement. If no one else wants to do it, why do we want to do so? DE&S+, which we have now ended up with, with a suspension of any move towards a GOCO, is the right thing to do. Although perhaps few people know this, the noble Lord, Lord Roper, who sitting on my left, used to teach me. He may recall that that was the sort of thing that he would have taught me at the time. If we stick with DE&S+, I would agree entirely that it would be good to shelve permanently the idea of bringing in a GOCO and leave it as another issue. If a future Government want to bring one in, that is entirely up to them, but we should not have this sort of trap door through which it can escape, if someone has the right key. We are now in the right place and we should stay there.

[Lord Bach (Lab)]

My Lords, I shall not speak about the advantages or disadvantages of a GOCO; I remain fairly neutral on the issue. I have listened with great interest to the very good speeches that we have heard so far on this clause stand part debate started by my noble friend Lord Rosser. What concerns me is the point about an affirmative order being somehow a solution to this problem.

I will not speak with my ex-Minister for Defence Procurement hat on at this stage, although there is plenty that I could say and would like to say. I am concerned about statutory instruments being used in Parliament in both Houses as a way of holding Governments to account. My experience is that orders, whether negative or affirmative, are useful and the debates that follow from them are often vital when legislation is eventually brought into effect. My concern is that they are no way for Parliament to stop something happening that should not happen.

I speak from experience. This is not a boast but I am one of the few Members of this House who has successfully won a fatal Motion on an affirmative order. There are others on all sides of the House, but it is a very rare event. It happened a few years ago, on a completely different subject from this one, to legislation which required an affirmative order but was resisted. The House voted on that occasion by a very small majority not to pass the affirmative order. The consequences of that for the cause that I was espousing were probably worse than if I had not won that vote. The Government decided that they would do absolutely nothing about the fact that the affirmative order had been voted against and so the previous position then applied. It was a worse position than the one I was trying to get and on which the House had supported me. Since then, forgive me, I have been slightly sceptical—even cynical, sometimes—about how effective opposing affirmative orders can be. We know that we can oppose them, regret them or just have a debate on them, whichever either House decides to do, but the effect is nearly always the same: the Government get their way. The primary legislation is there and it is extremely hard—often impossible—even if the primary legislation needs to be amended by the affirmative order, for that to happen.

All I am saying in this debate is please do not choose an affirmative order as a way to get around this issue. Frankly, once you have passed legislation that includes a GOCO, if that is what the House decides to do, it will be extremely difficult, if not impossible, for either House of Parliament to change the position.

[Lord Craig of Radley (CB)]

My Lords, I shall speak briefly to the amendments. I look at the matter from the point of view of the user, the Armed Forces, and what is in it for them.

Nowadays, the Armed Forces will have much more say over the amount of money that may be spent on their equipment, and therefore they may take more of an interest in the detail of the procurement side than was true in my day. Nevertheless, it is important that they have confidence that whatever system is going to procure their equipment has general support throughout the country and throughout government. At the moment we have two propositions, neither of which seems to be making good headway. The GOCO has certainly made no headway and it remains to be seen how well the DE&S+ will go—I even have doubts about that—but, of the two, I prefer it the GOCO.

However, dealing with the amendments, I find a good deal of attraction in Amendment 25. It brings the super-affirmative approach to the issue and is the one that I would favour.

[Lord Davies of Stamford (Lab)]

My Lords, I was the last defence procurement Minister in the previous Government. It is too early to make definitive judgments about how well-based were the projects for which I was responsible because some of them were quite long term. As far as I know, most of them are doing well and are on track and on time. They include the A400M, the Typhoon Tranche 3, the Chinook contract—where the Government, sadly, cut the numbers from 22 to 12 —the Puma upgrade, the Scout vehicle and so on.

However, I inherited a number of contracts which were the subject of substantial cost and time overruns. They were originally signed in the late 1990s. I will not make party-political points by saying exactly when they were signed now because otherwise you will think that I am making a party-political speech, which I certainly do not intend to do. Those errors were based on a fundamental mistake, which is to think that there is one simple formula for defence procurement. There have been arguments for many years, for generations, about whether you should have cost plus, competition or fixed-price contracts. The answer is that all these formulas are appropriate in certain circumstances. However, the great mistakes were made on projects such as Astute and Nimrod, which involved new technology and new developments—a new generation of reconnaissance aircraft in one case and hunter-killer submarines in the other.

It was a fundamental mistake to think that those procurements could be conducted on a fixed price because, when you are at the frontiers of technology—I said this on Second Reading—by definition you do not know what problems you are going to encounter and how much time and money will be needed to resolve them. If you ask a contractor to come up with a fixed price it will either be crazily high to cover all possible risks to himself or, more likely, if he thinks that being a national provider he is going to get the contract anyway, he will come up with an unrealistically low price, knowing that he can renegotiate more favourable terms once the Government and the MOD are committed to that contract because ultimately the Government have to have that capability delivered.

That is the phenomenon we suffered from with those two disastrously-conceived projects, although the capability was absolutely necessary. It was a great mistake for the Government to get rid of the MRA4 when they came into power. The Astute programme has continued and is delivering results, and I am very glad about that. The MRA4, however, was a great error. If you have a first of class of a major aircraft or naval vessel—a major platform—an absolute rule is that that is inevitably going to be a prototype. You cannot actually call it a prototype because you cannot build a combat aircraft for £100 million, or a Type 45 destroyer for £1 billion, or an Astute class submarine for £1.2 billion or £1.5 billion and then throw it away. So it is not going to be a prototype.

You are going to make some mistakes in building it the first time round. You will need to make amendments and changes which you had not originally foreseen and these will all add to costs and time. The only solution is to have a version of cost plus during that period for the first of class. Subsequently, when you have an idea of the technical issues and have resolved them, you can refine the thing down and ask for a fixed price. It must be a sophisticated version of cost plus and the formula that I found most useful—we have got it now for the Astute programme—is a target price with an incentive for coming in under the target price; a share of the over-run if it is above the target price; and a completely open book policy so that there is a genuine sense of teamwork between customer and supplier. Those formulas can work. One has to be quite flexible about this and not believe that there is some perfect, platonic solution to defence procurement.

16:45

At Second Reading I explained why I was against the GOCO in principle and the noble Lord, Lord Rosser, has repeated some of the arguments that we both used at Second Reading. The most important one is, of course, that defence procurement should remain a core business of the MoD. I have never believed in a GOCO. It has always seemed to me to be an expensive solution; something which would add rather than reduce cost and would deprive the MoD, the defence procurement Minister and the Government as a whole of the flexibility which is so essential. It is essential because the threat changes, or the enemy changes, or the enemy changes his tactics, or new opportunities open up for international collaboration. One needs to be extremely flexible and able to change the system quite rapidly. One needs to be able to steer the ship.

One cannot do that if one has made a contract with some GOCO under which, for a whole year, it has defined tasks to complete and it gets a penalty paid to it if you make any changes in the specification. For all those reasons, I have always thought it is a great mistake to go the GOCO route. We would have greatly regretted it if we had gone the GOCO route and we will greatly regret it if we go that route now.

The only sensible argument in favour of it is that it would enable us to hire people in the DE&S or in the GOCO at market rates, rather than being constrained by civil service pay. It would be utterly ridiculous to go for a GOCO merely to achieve that objective, which could perfectly well be achieved on the basis of DE&S+. Indeed, I hope that that is what DE&S+ is substantially about. The MoD already pays people, including the Parliamentary Under-Secretary and Mr Gray, who has been referred to, on the basis of salaries which have nothing to do with the Civil Service pay scale, so I do not see that as a good argument.

I am against the GOCO in principle, as I have said before, but, as my noble friend Lord Bach, has just said, there is an argument which goes above and beyond the issue of defence procurement, significant and weighty as that is for the national interest, about the way in which we legislate here. It is fundamentally wrong simply to give a future Government a blank cheque and say that Parliament will allow any Government in the future to come back without full parliamentary scrutiny and go in for a major reform of this kind. My noble friend Lord Rosser has made a number of those arguments so I do not need to repeat them. It would be a very unfortunate precedent if we establish that.

I do not think that the Government even intended to create that sort of precedent. What happened is that the Government changed their mind at the last minute and thought it would be extremely humiliating to bring forward a Bill at Second Reading having taken out the first part of it. They therefore thought that the sensible thing to do would be just to let it stay there. They would not make this humiliating cut to their Bill on day one but would say, “This might be useful in the future if we change our mind”. That is an extremely casual, indeed frivolous, way to conduct parliamentary business and I am sorry that they proceeded along those grounds.. They would have done much better to have courageously said, ”We have changed our mind and so the first part of the Bill does not apply any more. Let us have a debate on the second and third parts and we will withdraw the first part”. That would have been the sensible thing to have done. It is still the sensible thing to do and I very much support my noble friend’s amendment.

[Lord Astor of Hever]

My Lords, I start by thanking my noble friends Lord Roper and Lord Palmer for their support and I will look very closely at their suggestions. I always listen very carefully to the noble Lord, Lord Levene. He mentioned the importance of defence exports, and I agree with him entirely on that. He mentioned that he was brought in to bring more commercialisation to the operation, and everyone tells me that he was very successful at that. That is exactly what we are trying to do, and I agree that civil servants are not the best people to be commercially aware. We may end up sticking with DE&S+ but we want the flexibility with which the Treasury and the MoD are negotiating at the moment.

The noble Lord mentioned freedoms and controls. As I said, officials are in discussion with the Treasury regarding the nature of the delegations required within the DE&S budget, which revolves around how DE&S recruits, rewards, retains and manages staff. The detailed application of those freedoms will be worked on through the first year of operations, and DE&S staff will remain core to organisational delivery. We want to enhance our skills in bringing in private sector expertise. Further to the work done by Booz & Co on the functional make-up of DE&S, we are conducting a zero-based review to look at the organisation on a post-by-post basis.

I can tell the noble Lord that the Treasury has already agreed—this is not part of the GOCO bespoke trading organisation debate—to limited freedom for the MoD to recruit commercial officers from industry at market rates in recognition of their niche skills. This concession will remain in place as we move to the new organisation on 1 April this year. I will answer the other questions I was asked when I finish the first bit of my speech.

Part 1 sets out the provisions and safeguards necessary to transform the Defence Equipment and Support organisation into a government-owned, contractor-operated organisation—a GOCO. On 10 December last year, the Secretary of State announced a halt to the competition to select a consortium to deliver the GOCO. Although the bidder, known as Materiel Acquisition Partners, engaged effectively with the very challenging brief set out and presented a credible and detailed bid, the Secretary of State concluded that we did not have a competitive process once the other remaining consortium chose not to submit a bid, and that the risks of proceeding with a single bidder were too great to be acceptable.

Further work is necessary to develop DE&S financial control and management information systems to provide a more robust baseline from which to contract with a risk-taking GOCO partner. We remain clear that the only realistic prospect of resolving the delivery challenges facing DE&S in an acceptable timescale is with the injection of a significant element of private sector support. Noble Lords will also recall from the Secretary of State’s announcement in December that we decided to transform the DE&S further within the public sector, bringing in that private sector support and ensuring that it becomes match-fit as the public sector comparator for any future market-testing of the GOCO proposition.

To address the concerns expressed by a number of noble Lords about the continuing need for Part 1 in the light of the Secretary of State’s announcement, I tabled a government amendment that would make the commencement of Part 1 subject to an affirmative resolution by both Houses of Parliament. We have done this in recognition of the likely timescale for any future consideration of a GOCO option as the way forward for DE&S. To do this, we intend to set the DE&S up as a bespoke central government trading entity from April 2014. The new entity will be at arm’s length from the rest of the MoD, with a separate governance and oversight structure consisting of a strong board under an independent chairman, and a chief executive who will be an accounting officer, accountable to Parliament for the performance of the organisation. Importantly, we will permit the new organisation significant freedoms and flexibilities, agreed with the Treasury and Cabinet Office.

Although I understand concerns that have been raised, I reassure noble Lords that we would not seek to retain legislation without good cause. The changes we are now making to DE&S are important, but we cannot guarantee that this approach will prove to be efficient. We need to ensure that we can move quickly to run a future GOCO competition if the new DE&S freedoms prove insufficient to transform the organisation. The Government are convinced that Part 1 remains necessary to deliver an effective GOCO if—I repeat, if—that is the option selected by a future Government. It should therefore remain part of the Bill, to ensure that any Government can move quickly to a GOCO if that is so desired.

Clause 1 is the key clause in Part 1, as I have already described. Although the Secretary of State could enter into a contract with the GOCO using common law powers, the scale of what is contemplated, in terms of both money and people and the important nature of the work that DE&S undertakes, is such that Parliament should have the opportunity to scrutinise and agree the proposals through specific legislation. An important potential change such as this should be made with the consensus of all parties and with the express approval of Parliament. It is right that we have chosen this approach. Clause 1 is the main provision for that debate, and there has already been an insightful and important discussion on it through the amendments tabled by the Opposition in the other place.

Clause 1 also covers the arrangements for the transfer of procurement services once the initial and any subsequent contract comes to an end. It also allows for the transfer of DE&S services to the GOCO in a phased way. Clause 1 provides the basis on which the other provisions in Part 1 work. For example, the exemptions at Schedule 1 apply to premises which are used by a contractor under the arrangements at Clause 1. Clause 1 also includes many of the definitions used in Part 1. If Clause 1 is removed, the other clauses in Part 1 will need to be substantially redrafted to make them work.

If Clause 1 is removed, the Secretary of State could still contract out defence procurement services to a GOCO using his common law powers, but there would be no clause on the general issue of contracting out defence procurement services. This would deprive Parliament of the opportunity to approve this significant change in the way in which the Ministry of Defence does its business through its express agreement to the clause. It would also require a significant rewriting of the rest of Part 1. For those reasons, Clause 1 should stand part of the Bill.

On government Amendment 24, which I have already described, it is appropriate that Parliament has an opportunity further to debate the provisions in Part 1 at a point before they are commenced. I have tabled the amendment to allow this. It requires that both Houses approve by affirmative resolution a statutory instrument to commence the provisions in Part 1.

We have listened carefully to the views expressed by noble Lords from all sides during Second Reading about the need for Parliament to have a further opportunity to consider any proposal for a GOCO, should one be brought forward by a future Government. The government amendment removes the requirement for Amendments 17 and 25, tabled by the noble Lords, Lord Rosser and Lord Tunnicliffe. Their amendments have enabled our informed debate about a number of important issues.

Amendment 17 goes much further: it seeks to place a lengthy consultation requirement on the Secretary of State before any draft commencement order can be laid before Parliament. It requires the Secretary of State to comply with any recommendation by the Select Committee on Defence as to persons and bodies to be consulted. It extends the period in which Parliament has to consider and debate the draft commencement order. These additional requirements are far too prescriptive and would place an onerous and unreasonable bureaucratic burden on the Secretary of State.

Amendment 25 would add yet more prerequisite requirements on the Secretary of State before he may place a draft order before the Houses of Parliament seeking to commence Part 1. The amendment seeks to make the Secretary of State’s power conditional on satisfying the powers set out in proposed new subsection (2B), which would require the Secretary of State to, first, lay before Parliament an evidence-based impact assessment, which must cover the risks and merits of available options, including the GOCO and the “do nothing” option of retaining the existing DE&S; secondly, lay before Parliament an independent report setting out the comparative advantages of the options set out above; thirdly, require the Defence Select Committee to review and scrutinise the independent report and report its findings to Parliament; and, finally, to lay before Parliament any other documents or information that it needs to inform its decision.

Amendment 25 is not required, as the activities proposed will either have been undertaken by the Ministry of Defence as part of its normal approvals process or are not appropriate for legislation as they could be considered to be normal business. Any future proposal to proceed with the GOCO option will be subject to a full, evidence-based business case and investment appraisal, which will set out the relative risks and merits of all credible options, including those cited as required in the amendment. The business case will undergo extensive cross-government scrutiny and assurance and will require ministerial approval before any option can be taken forward. Business cases are approved by the MoD Investment Approvals Committee and by both Ministry of Defence and Treasury Ministers. However, wider government approval is sometimes required—for example, in the most contentious cases.

17:00

The opposition amendment also seeks to require any decision to proceed with a GOCO option to be subjected to independent scrutiny and for a report to be laid in Parliament. Ministry of Defence investment decisions are already subject to external scrutiny by the National Audit Office and can be considered by the Public Accounts Committee and/or the House of Commons Defence Committee. We believe that this meets the requirement for independent scrutiny while preserving the confidentiality of any commercial process. The findings of either committee would be available to both Houses in the normal course of events and therefore a statutory provision is not appropriate or required. The amendment also seeks to make an order conditional on the Secretary of State providing all necessary information to Parliament to inform its decision. A statutory requirement is simply not necessary to achieve this, as the Ministry of Defence would comply with its obligations to ensure that Parliament is appropriately informed to make its decisions.

The noble Lord, Lord Rosser, asked why we should legislate. We still need the private sector skill injection. We need the new freedoms for the DE&S model. There will be scrutiny by Parliament at the time of a future decision to proceed with the GOCO. Part 1 has already been subject to detailed scrutiny. We feel that it is absolutely prudent to make sure that we can move quickly to run a further GOCO competition if the freedoms in the bespoke body prove inadequate and, when tested, a GOCO is the best option.

The noble Lord asked if there were any other options. The decision on whether to move to a GOCO will be on the basis of a full business case, so other options will be considered. Only if a GOCO represents a best option will that be proceeded with; we think that a GOCO will be the best option to deliver an enduring change.

The noble Lord asked what a bespoke central government trading entity is. It is an arm’s-length organisation with a hard boundary with MoD and the public sector but with freedoms and flexibilities to recruit, reward, retain and manage staff. The organisation will have separate governance and oversight, a strong board, an independent chairman and a chief executive who will be an additional accounting officer. I was asked whether it was just a trading fund. DE&S will not become a trading fund, but we will take the best features of that approach—strong governance, a clear organisational boundary and an emphasis on customer-supplier relationships—into the new bespoke DE&S entity.

I was asked why the new approach would work. We are in a better place than previously. The new approach builds on the work done on the DE&S+ proposition to transform DE&S further within the public sector, bringing in private sector support, ensuring that it is match-fit, as a public sector comparator, for future market testing of a GOCO proposition.

The noble Lord asked about the relevance and effectiveness of equipment procurement. The provision is precisely to deliver a more agile organisation capable of giving equipment and support better than currently achieved by DE&S. The assessment of performance will be by front-line commands—the bespoke entities and customers.

The noble Lord, Lord Robertson, asked about the support for looking at a GOCO. I agree with him that we need to look at radical solutions, and that includes a GOCO. This is not about undermining the new model but making sure that we have the legislation in place for a GOCO, should it be needed in future.

My noble friend Lord Palmer asked if the new model is about establishing a strong baseline for a GOCO, not about undermining the new model. He is exactly right. If a GOCO is to succeed in the future, we need a strong baseline. He asked about the unclear baseline or stalking horse. I agree; the key thing is for DE&S to define a clear baseline to underpin any new competition. That relies on DE&S becoming match-fit, which can only be good to enable fair competition.

The noble Lord, Lord Bach, asked about affirmative orders and felt that they were not a way in which the Government could be stopped from doing something. If the affirmative order is not approved, the GOCO cannot proceed in the way set out in the Bill. The status quo does not include legislation for a GOCO to operate effectively. The need for an affirmative order gives real choice to Parliament. A future Government—any Government—cold not establish an effective GOCO without approving Part 1 of the Bill.

[Lord Bach]

My point is that an affirmative resolution does not really provide any effective stop for Parliament, not that it does so. Given my experience of affirmative orders that have been fatally objected against, I wonder how the noble Lord can say that an affirmative order that is defeated really changes things. What happens is that the Government of the day—this is not a reflection on the Minister’s Government—say that the legislation has been passed and the affirmative order must therefore also be passed. In reality, fighting affirmative orders is not an effective way of allowing Parliament to give its view. For something as vital and important as this, having merely the protection of an affirmative order somewhere down the line is not nearly enough. I should be interested to know why the Minister thinks differently.

[Lord Astor of Hever]

I tabled our amendment after approaches from a number of noble Lords from different parts of the House who wanted to allow any future Government flexibility with which to introduce a GOCO, if that was thought to be the best thing at the time. In reply to the noble Lord’s question, one simply would not have the legislation without the commencement.

[Lord Robertson of Port Ellen (Lab)]

Can the noble Lord reflect after this debate on the fact that in the House of Commons, as the Commons Library statement says:

“Several amendments relating to the GOCO (Part 1 of the Bill) were tabled for Report Stage but were subsequently not called. Instead the main focus of the Report Stage was on the Government’s plans for the Reserves”?

So there was limited scrutiny in the House of Commons of this part of the Bill. Now the Government are proposing to promote the idea that a GOCO will be a matter for secondary legislation and affirmative resolution. Can the Minister take away the fact that in this sitting, we have had a former Chief of Defence Procurement, a former Chief of the Defence Staff, a former Minister for Defence Procurement and a former Secretary of State saying that, on balance, although they are in favour of radical reform, they all think that Amendment 25 is actually the best way of proceeding? Would it not look rather odd after that if the Government were to say, “We will ignore the advice that we have been given at that level, and arrogantly go ahead with a procedure that is perhaps inadequate”?

[Lord Astor of Hever]

My Lords, I will certainly reflect on that. We never ignore advice given by the people that the noble Lord mentioned. I am very happy to organise a meeting to discuss the issue, if he feels that that would be a way forward, before Report. I will certainly take it away to reflect on it. I have just been told there were eight sittings on this issue in the House of Commons.

The noble Lord, Lord Davies, said that cost-plus is the most appropriate type of contract for this class. The GOCO will have the commercial expertise that the MoD does not possess to identify the most appropriate contracting arrangements. In future, budgets will lie with the commands, ensuring that we can more quickly respond to changes in equipment requirements. The noble Lord asked about contracting arrangements for first-class major equipment. The target cost incentive fee contracting arrangements are one of the options available to the MoD for the reasons that he described and will continue to be utilised where they are the best option to deliver and support equipment procurement.

In the light of the government amendment and the points that I have just set out, I commend Amendment 24 to your Lordships; I will take away the point that the noble Lord, Lord Robertson, mentioned; and I urge noble Lords not to press Amendments 17 and 25.

[Lord Rosser]

First, once again, I thank the Minister for the consideration he has given to the amendments and for the detail with which responded to the points that have been made. I also thank all noble Lords who have contributed to this debate with varying degrees of support for the super-affirmative procedure and for the deletion of Part 1. I think it is fair to say that the noble Lord, Lord Palmer of Childs Hill, very much left his options open and was waiting to hear what the Minister said on the question of the super-affirmative procedure.

My argument for removing Part 1 is that this Government no longer intend to go down the GOCO road. It will be for the next or a subsequent Government to make such a decision one way or the other, and it is that Government who should have to justify their decision in detail to Parliament in the light of what improvements have or have not been achieved through the DE&S++ organisation after the changes being introduced after April this year.

The Minister referred to the freedoms and flexibilities that have been agreed with the Treasury in relation to the DE&S organisation from April of this year but, personally, I would find it helpful if he could put in writing what has and what has not yet been agreed with the Treasury and whether there is also agreement by the Cabinet Office; we understand that those freedoms and flexibilities have to be agreed with both, and I do not think that the Minister referred to the Cabinet Office.

One justification that the Minister gave for keeping Part 1 was that it would speed up the process of moving to a GOCO if the decision was made to go down the GOCO road. I do not think that speed is the most important thing. After all, it has already just been delayed for at least three years, so how can an argument be put forward that we need this legislation in place on grounds of speed? The Minister also referred to my amendment and the proposals within it as an unreasonable burden on the Secretary of State. The convenience of the Secretary of State of the day is not the matter we should be worried about. What matters is proper scrutiny of the proposals and getting them right through parliamentary scrutiny, not speed or the convenience of the Secretary of State of the day.

17:15

The Minister gave some assurances about what information would be provided if it came to the Government’s proposal for the affirmative orders but I simply repeat what I said earlier: this Government are not in a position to commit through words a future Government and what they will do. The Minister can say it but cannot commit the next or a subsequent Government to doing that, even if they intend to go down the road of the GOCO option. Their only legislative requirement would be to do it through affirmative orders going through both Houses. The question of what information they would be required to provide will largely be a matter for the Government of the day. I seriously hope that the Minister will give further reflection to what has been said today about the importance in a major change such as this of making sure that the Government who make this decision—if they decide to go down the GOCO channel—fully justify their decision and the reasons for it, giving the evidence to support the line they want to take.

The Minister said in response to my noble friend Lord Robertson of Port Ellen that he would be happy to hold a meeting to discuss the super-affirmative order or the provisions that might be within it—I hope I am not misinterpreting him. If I have understood that correctly, I would certainly wish to be involved in any such meeting to see if we could make some progress down that road, if that would be acceptable to the Minister. We might reach some sort of accord on it. However, in the mean time our position is that we do not think that Part 1 should remain in the Bill. I mentioned that our amendments in relation to the super-affirmative order were very much the second-best option. Obviously as far as that is concerned, we do not consider the proposal made by the Minister on behalf of the Government in their amendment for two affirmative orders to be adequate. However, I must make a decision on what I do now in relation to Clause 1 standing part. I do not intend to pursue the issue at this stage but, as I am sure the Minister understands, I am keeping our options open as to what we pursue on Report.

Clause 1 agreed.

Amendment 6

Moved by

[Lord Rosser]

6*: After Clause 1, insert the following new Clause—
“Code of conduct
(1) A code of conduct shall be prepared by the Ministry of Defence governing contact between members of the armed forces and Ministry of Defence officials and employees or representatives of defence contractors.
(2) The code of conduct shall contain the following provisions—
(a) employees of the armed forces or the Ministry of Defence at or above the rank of Brigadier General or the equivalent Civil Service grade, shall be prohibited from undertaking paid employment with a defence contractor unless two years or more have elapsed since the termination of their contract with the armed forces or Ministry of Defence;(b) the appointment of an individual as described in subsection (1) by a defence contractor shall be treated as a public appointment;(c) individuals employed under the terms of paragraph (a) shall not, whilst in the employment of a defence contractor, undertake any activity that brings them into contact with the Ministry of Defence;(d) defence contractors shall publish on an annual basis a list of current employees whose appointment was under the terms of paragraph (a);(e) a register of gifts and hospitality shall be published quarterly by the Ministry of Defence;(f) any gift or hospitality to an employee of the Ministry of Defence, member of the armed forces at or above the rank of Brigadier General, or Civil Service equivalent, or spouse or partner of such, of a value greater than £660 from a defence contractor must be placed on the register prepared under paragraph (e).(3) “Defence contractor” means a company, organisation or person whose main business is in the manufacturing or provision of equipment, works or services for defence purposes.”

[Lord Rosser]

Amendment 6 seeks to insert the code of conduct outlined in the proposed new clause. It seeks to address what is sometimes called the “revolving door” issue among Ministry of Defence personnel which can potentially lead to undue influence or access when bidding for MoD contracts.

The matter is relevant to the Bill as many Ministry of Defence staff could have cross-over work with, and come into contact with, the GOCO. There is also the question of whether the revolving door will become a bigger issue than now with the new DE&S+ organisation from April this year which will have greater private sector involvement, greater freedom and flexibilities and be a separate government trading entity.

We would like to see a code of conduct which precludes Ministry of Defence or military personnel of certain rank and above from working for defence contractors, say, for at least two years from the termination of their contract, requires contractors to publish annually a list of employees who have worked for the Ministry of Defence at the specified rank or above, and requires the creation of a register of gifts and hospitality over a certain value. Such a code of conduct would go some way towards slowing down the revolving door between the Ministry of Defence and defence contractors, and also reduce the brain drain or loss of skills in the Ministry of Defence.

Published information, compiled apparently from freedom of information requests, suggests that senior military personnel and former officials from the Ministry of Defence have taken up 3,500 positions with defence contractors since 1996. This trend continues today and clearly is not an issue that relates to a particular Government.

The Advisory Committee on Business Appointments appears to have insufficient influence or power. As rules can effectively be broken, or so it would appear, without sanction, there is surely a case for legislation which will bring greater accountability and transparency to this area. We suggest, as set out in the amendment, a code of conduct with tighter guidelines. I beg to move.

[Lord Astor of Hever]

My Lords, before I address this amendment, perhaps I may reassure the noble Lord that I will write to him, answering as best I can the points he raised. I mentioned the Cabinet Office in my earlier answer.

[Lord Rosser]

Perhaps I may express my regrets. I did not hear it. I accept fully what the noble Lord has said.

[Lord Astor of Hever]

I shall certainly write. I said that officials were in discussions with Her Majesty’s Treasury and the Cabinet Office regarding the nature of the delegations required within the DE&S budget. As far as I am able, I will write as detailed a letter as possible to the noble Lord and make sure that copies are sent to all other noble Lords who have taken part in this Committee. I can reassure the noble Lord, Lord Robertson, that I will organise a meeting to see whether we can come to some meeting of minds. We all want to do what is best for the Armed Forces and for procurement. I shall organise that meeting as quickly as I can.

On Amendment 6, I am grateful for the points raised by the noble Lord. I fully accept the critical importance of protecting the interests and integrity of decision-making within the Ministry of Defence and wider government by maintaining the highest standards of propriety of those Crown servants within the Ministry of Defence, which includes civilian staff as well as members of the Armed Forces, who interact with defence contractors. I believe strongly that the integrity and propriety of those Crown servants who may be in a position to influence decision-making should be seen to be beyond reproach.

However, I must resist the inclusion of the amendment as the issue is already effectively addressed. The code of conduct that the noble Lords wish to include seeks to address general concerns that senior government officials could be perceived to be in conflict or have vested interests when dealing with defence contractors in their day-to-day work. Further, the noble Lord, Lord West of Spithead, in his evidence session of 3 September to the House of Commons, also made mention of Title 10 of the US code, the section of the code relating to the Armed Forces of the United States.

The code of conduct that the noble Lords seek already exists within the Ministry of Defence in two forms. The first is in the form of the business appointment rules, which govern situations in which Crown servants wish to take up a relevant offer of employment within two years of leaving the Ministry of Defence. The second is the gifts, reward and hospitality rules, which govern situations in which Crown servants are offered a gift or hospitality. Together, these two important sets of rules set out the standards of conduct expected of Crown servants within the Ministry of Defence. For civilian officials within the Ministry of Defence, both the business appointment rules and the gifts, reward and hospitality rules are contained within the Civil Service Management Code, which was issued under Part 1 of the Constitutional Reform and Governance Act 2010. For military officials, the rules are contained within the Queen’s Regulations for each of the services, and the provisions of the business appointment rules have been in effect since July 1937.

The Civil Service Code states that civil servants must not accept gifts, hospitality or benefits of any kind from a third party that might be seen to compromise their personal judgment or integrity. The Queen’s Regulations lay down the conduct and procedure to be observed by service personnel on the acceptance of gifts, rewards and hospitality. In all cases, any offers of gifts or hospitality must be registered by the individual in receipt of the offer. The provisions of the business appointment rules for both military and civilian officials differ depending on the seniority of the individual, with the most senior officials requiring permission from the Prime Minister to take up an appointment following the end of their service within the Ministry of Defence.

The specific provisions of the business appointment rules are as follows. For the most senior officials in the Civil Service—at three-star level or their military equivalents—the rules require that they submit an application, which must be referred by the department to the Advisory Committee on Business Appointments, which will provide advice to the Prime Minister to enable a decision to be taken. Due to their role at the highest level of Government and their access to a wide range of sensitive information, all Permanent Secretaries will be subject to a minimum waiting period of three months between leaving paid Civil Service employment and taking up an outside appointment or employment. As a general principle, there will be a two-year ban on civil servants at three-star level and above lobbying the Government—communicating with a view to influencing a government decision or policy in relation to their own interests. For civil servants at two-star level and their military equivalents, the rules require that an application be made to the Permanent Secretary, who is responsible for making a decision and providing a written recommendation to ACOBA—the Advisory Committee on Business Appointments.

[Lord Robertson of Port Ellen]

The Minister was reading rather quickly. Did he say that the quarantine period was to be three months only?

[Lord Astor of Hever]

Yes, I did. I shall be able to answer the noble Lord’s question at the end.

Applications from one-star level and below and their military equivalents are considered internally within the MoD. An application at these levels is required only if the individual’s circumstances mean that, in their last two years of service, they have been subject to one or more of the following: first, they have been involved in developing policy affecting their prospective employer, or have had access to unannounced Government policy or other privileged information affecting their prospective employer; secondly, they have been responsible for regulatory or any other decisions affecting their prospective employer; thirdly, they have had any official dealings with their prospective employer; fourthly, they have had official dealings of a continued or repeated nature with their prospective employer at any time during their civil service career; fifthly, they have had access to the commercially sensitive information of competitors of their prospective employer in the course of their official duties; sixthly, the proposed appointment or employment would involve making representations to, or lobbying the Government on behalf of a new employer; and seventhly, the proposed appointment of employment is consultancy work, either self-employed or as a member of a firm, and they have had official dealings with outside bodies or organisations involved in their proposed area of consultancy work.

The number of applications made under the business appointment rules is relatively modest and has averaged around 200 per year over the past five years across grades 1 to 4. For example, in 2012-13 there were 258 applications, of which 172 were approved with conditions, and the rest approved unconditionally.

17:30

The rules on the acceptance of gifts and hospitality set out that, even where the acceptance of gifts or hospitality is not unlawful, acceptance can still be improper and, in serious cases, may lead to internal misconduct action being taken. This can be a particular risk in the MoD where many areas of departmental activity bring Crown servants into regular contact with outside organisations, and in particular with defence contractors, who may regard it as normal practice or social convention to offer hospitality and, sometimes, gifts.

It is impossible to set out rules to govern every conceivable circumstance in which a gift or hospitality might be offered and accepted. Much will depend on the nature of the relationship between the department and the organisation, and the role of an individual Crown servant in that relationship. However, a number of clear principles are applied to all cases, and intended to enable Crown servants to act with propriety when deciding whether or not acceptance is appropriate. If there is any doubt, the individual is expected to consult with their superiors before accepting any gifts or hospitality. This consultation can be elevated as necessary within the department if there is any unresolved doubt.

Crown servants should have regard not simply to whether they feel themselves to have been influenced but to the impression that their actions could have on others. In instances where acceptance of gifts may be acceptable, they must be deemed to be trivial in nature and non-contentious, and must not exceed £50 in value. Typically, such gifts include items such as pens, diaries, et cetera.

In answer to the noble Lord, Lord Robertson, all Permanent Secretaries will be subject to a minimum waiting period of three months between leaving paid Civil Service employment and taking up any outside appointment or employment.

In summary on this amendment, the extant MoD policy already contains the required protection against perceived conflicts of interest or impropriety that this new clause is seeking to achieve, and it is therefore not needed.

[Lord Robertson of Port Ellen]

I do not want to pre-empt my noble friend, but there is an air of astonishment around the Grand Committee that the Minister said that Permanent Secretaries have only three months before they can take up some paid employment. If that is what is being said, it is a remarkably short period. Who wrote that rule? Was some Permanent Secretary responsible for it? If that is the case, there is a real cause for alarm that junior civil servants are being constrained in a remarkable way but Permanent Secretaries at that level seem to be given a remarkably short period before they can take up a new job. I have to say that I am profoundly sceptical about the operation of the committee on business recommendations, or whatever it is called, because it is completely toothless. It can make recommendations that senior people in government are not obliged to follow. The current record is that quite a few people completely ignore the recommendation and time limits, even the three months that is talked about. Perhaps the Minister would like to explain.

[Baroness Garden of Frognal (LD)]

Can my noble friend clarify whether the minimum three months would relate to an employment which was absolutely nothing to do with the previous work? In practice, people who go to work for defence contractors tend to have to wait considerably longer than three months before they can take up that appointment, do they not?

[Lord Astor of Hever]

My noble friend makes a very good point, which I was just going to mention. The period is three months but obviously, if a Permanent Secretary has any conflict of interest, that would be extended to two years under the normal rules. My noble friend makes a very good point.

[Lord Rosser]

Once again, I thank the Minister for the thoroughness of his reply on the amendment explaining the current situation, which has clearly caused some surprise in relation to some aspects. Clearly, we will want to look at what he has said when we read Hansard. I assume from his reply that the Government as a whole are satisfied with the present arrangements, and that they are being adhered to—and that there is no problem with the rules being broken, which is what I suggested might be the case. It would be helpful if the Minister could confirm that as far as the Government are concerned, there is no significant or worrying breach of the rules. Perhaps he could also comment on the role and effectiveness of the Advisory Committee on Business Appointments, as that is a matter that I and my noble friend Lord Robertson of Port Ellen raised.

I will be withdrawing the amendment, but I hope that the Minister will be able to reply to those points. I am loath to keep asking him whether he will reply in writing, as I appreciate that what he says will appear in Hansard but, bearing in mind some of the concerns that have been raised, it would be helpful if he could put in writing what he said about the distinction between the three-month period, and the circumstances in which that applies; and the two-year period, and the circumstances in which that applies.

[Lord Astor of Hever]

My Lords, I will be very happy to do that; in fact I was going to offer to write to the noble Lord, Lord Robertson, with copies sent to other interested noble Lords. I have been handed a fairly detailed brief on that point. Rather than reading it out, I would like to put it in a letter and address all the concerns that have been raised.

[Lord Rosser]

In that case, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7

Moved by

[Lord Rosser]

7: After Clause 1, insert the following new Clause—
“Duty of Secretary of State to report to Parliament on increases in cost of defence contracts
(1) Where it is proposed that the total price payable for the provision of goods, works or services, procured from another person for defence purposes under a contract entered into by the Secretary of State, or a contractor acting on behalf of the Secretary of State under the provisions of section 1, should rise beyond that detailed in the original terms of the contract, the Secretary of State shall—
(a) lay before both Houses a report detailing the circumstances requiring the increased price,(b) withhold approval of any adjustment of the total price for the contract until the report has been laid, and(c) write to the chairs of the relevant parliamentary committees indicating that such a report has been laid.”

[Lord Rosser]

This group also contains Amendment 9. Amendment 7 addresses the issue of scrutiny and transparency over increases in the cost of defence contracts, whether entered into by the Secretary of State or a contractor acting on behalf of the Secretary of State. The second amendment provides for scrutiny of financial assistance given to a contractor by the Secretary of State under the terms of Clause 2.

The form of scrutiny provided for in the amendments is parliamentary, through reports to both Houses, and with two other requirements as set out. The Secretary of State would not be able to approve any adjustment of the total price provided for in the contract or provide financial assistance to a contractor unless the required reports had been laid.

With the responsibility for keeping within the original financial terms of the contract likely to become more remote from the Ministry of Defence and the Secretary of State if the provisions of Clause 1 are implemented, there is a need to be precise about what checks and controls will be in place and how Parliament will be kept advised and aware of increases in the cost of defence contracts. Likewise, with the Secretary of State being given power under the Bill to give financial assistance to a contractor on terms and conditions that the Secretary of State thinks appropriate, there is a need to be precise about what checks and controls will be in place over the use of that power and of taxpayers’ money, and how Parliament will be kept advised and aware of how and when the power is being used.

In that regard, perhaps the Minister could give some examples of the kind of circumstances in which this power for the Secretary of State to give financial assistance might be used and is intended under the terms of Clause 2. It would be helpful if the Minister could say whether the new DE&S organisation that will come in from April as a bespoke central government trading entity with greater private sector involvement and new freedoms and flexibilities will lead to any changes in the current arrangements for reporting on or dealing with any increases in the cost of defence contracts or changes in the role of the Secretary of State in that regard. I beg to move.

[Lord Roper]

My Lords, I would be grateful if my noble friend in replying to this debate could give us more information on why Clause 2 is necessary and what sort of financial assistance we are discussing here.

[Lord Astor of Hever]

My Lords, Amendment 7 would require the Secretary of State to withhold approval on any relevant contract price change until a detailed report has been laid before both Houses setting out the circumstances why the increased price is required. The amendment also requires the Secretary of State to write to the chairs of the relevant parliamentary committees, which I assume to be the House of Commons Defence Select Committee and the Public Accounts Committee, telling them that the report has been laid. Although I fully support the principle of being transparent with Parliament regarding the performance of the defence equipment programme, I do not believe that this amendment is appropriate, as it would significantly constrain the operational freedom of the Secretary of State and the department. The amendment is also not required as the performance of the equipment programme is already regularly reported on, including by the National Audit Office, and scrutinised by Parliament.

In addition, the proposal would introduce significant practical issues. Under the proposal, every change of price within a contract managed by the future GOCO would require a report to be laid before both Houses. Given that DE&S manages many thousands of contracts, this requirement could impose an unmanageable burden on the GOCO and the department. Gaining better control over the schedule delivery and cost of the equipment programme is a fundamental part of the likely future GOCO arrangements, and that will not be helped by imposing an excessively burdensome reporting constraint on the GOCO. Indeed, it could result in the opposite effect. The amendment also provides no mechanism for how contract price changes would be approved while Parliament is in recess. It is clearly unreasonable for the day-to-day operation of the department and GOCO in delivering equipment and support to the front line to be constrained in this fashion.

Turning to Amendment 9, it is important to stress that Clause 2 of the Bill is designed as a fallback option to be used as a last resort in circumstances where a GOCO company is in need of financial assistance and unable to obtain it from the commercial market at acceptable rates. We would expect a future contractor to be a financially robust company that would only very rarely need to seek financial assistance from the market and that, should it need to do so, the assistance required would be available on acceptable commercial terms. Therefore, the power to provide financial assistance to the contractor from the Secretary of State is anticipated to be required only in extremely rare circumstances and as a last option to prevent the business from becoming insolvent and ensure business continuity. Clearly, continuity is critical and must be ensured when the business in question is the provision of defence equipment procurement and support services that are vital to supporting our troops on the front line. That risk must therefore be effectively managed. A further important point is that the Ministry of Defence would seek to claw back any financial assistance provided under this clause through deductions from future contractual payments to the GOCO.

The effect of the amendment is to require the Secretary of State to withhold approval for the grant of financial assistance until a report has been laid before both Houses setting out why financial assistance is required and until he has written to the relevant chairs of the parliamentary committees telling them that the report has been laid.

The purpose of this amendment is about ensuring transparency to Parliament—a principle, as I said in my opening remarks, that I fully support. I understand and agree with the desire for Parliament to be kept fully informed and to have the opportunity to consider and comment on the provision of financial assistance from Government funds. However, although the amendment seeks only to constrain the ability of the Secretary of State to provide financial assistance—to the extent that he could not do so until the report has been provided to Parliament—it would have the effect of introducing a time delay to the provision of such assistance, which could have very significant consequences if assistance is required urgently to ensure business continuity.

17:45

A further consideration would be that the content of the report may need to be limited or confidential due to commercial sensitivities regarding the contractor’s financial position. The reporting of such matters is not usually embedded in legislation, but governed through HMT’s Managing Public Money. I draw attention to a similar reporting process within MPM for reporting contingent liabilities, where departments are required to lay them before the House. Where the proposal is more urgent, or the House is not sitting, departments write to the chairs of the PAC and the departmental committee explaining the need for urgency, and as a matter of record provide a Written Ministerial Statement and a departmental minute at the earliest opportunity.

Why would the MoD need to be able to provide financial assistance to a contractor if their financial soundness is part of the contract award process? The answer is that a number of scenarios could arise where, in order to ensure business continuity, it would be advisable for the Secretary of State to have the flexibility to act quickly to secure the capability, but it is not possible to forecast that at this time. What is the likely cost? It is not possible to say that yet: it will become clearer as we go through the commercial negotiation process. That is why the Bill does not include an upper limit on the extent of assistance the Secretary of State could provide. With regard to my noble friend’s two questions, I do not have an answer but will write to him on that subject.

[Lord Roper]

Before my noble friend sits down, could he explain—I thought I understood this but now understand it less—whether the reference in Clause 2 to “a contractor” is to the GOCO contractor or to an individual company that is supplying goods to the Ministry of Defence? That is not totally clear.

[Lord Astor of Hever]

My Lords, I totally agree with my noble friend. Before Committee I had a long debate with the team about this, and we changed my speaking notes radically. We changed “‘contractor” to “GOCO” in many cases. The answer to my noble friend’s question is GOCO, but the terms “contractor” and “GOCO” are interchangeable as far as the Bill is concerned. One can use both when describing provisions in Part 1 of the Bill, but for consistency and clarity we have decided, in my speaking notes, to use the term “GOCO” as far as possible. I note that a “contractor” slipped through the net.

In the light of what I have just said, I need to resist these amendments as unnecessary, and I hope the noble Lords will withdraw Amendment 7 and not move Amendment 9.

[Lord Rosser]

Once again I thank the Minister for his detailed response. I make two brief comments. Clearly the point of Amendment 7 was to seek to ensure that Parliament would still be kept advised on cost increases in defence contracts in the changed circumstances of the GOCO.

In relation to Amendment 9, if I have understood the Minister correctly, one could argue that if there is provision for financial assistance, it would mean that the risk was not being transferred to the GOCO operator but would remain ultimately with the taxpayer. That raises an important issue about the GOCO operator and the proposals: what risk is being transferred? The response given by the Minister suggests that, come the crunch, not much risk at all is being transferred. However, I do not intend to pursue the matter any further, certainly at the moment. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendment 8

Moved by

[Lord Rosser]

8: After Clause 1, insert the following new Clause—
“Transfer of employees
Employees transferred to a company by virtue of arrangements mentioned in section 1 may not be required to geographically relocate outside of the UK without full and proper consultation.”

[Lord Rosser]

The amendment inserts a new clause after Clause 1 to provide that employees transferred to a company under Clause 1 may not be required to geographically relocate outside the UK without full and proper consultation, which, frankly, one would hope in reality would mean that it would be done only by agreement, although that specific wording is not in the amendment.

There will be an opportunity under later amendments to consider all the possible implications for the employees affected by being transferred to a GOCO contractor organisation, and indeed of being part of the new DE&S organisation after April, with its greater flexibilities and freedoms. However, this amendment deals with a specific issue: the need to provide assurance that staff transferred to a GOCO consortium made up of at least some major international companies will not find themselves being told they must move to a position outside the UK when it is not something they would wish to do, nor would have been compelled to do when part of the current DE&S organisation. I am assuming that this could not happen under the new post-April 2014 DE&S organisation, but it would be helpful if the Minister could confirm that that is the case.

The provisions of the amendment would at least reduce the prospect of such transfers being required against the wishes of the individual concerned. This is not some minor point, because requiring an employee to move abroad is a not unknown way of either removing an employee who has fallen out of favour, or is no longer needed, out of an organisation in the UK, or alternatively if they refuse, out of a company altogether. I very much hope that the Minister will be able to provide some assurance on this point. I beg to move.

[Lord Astor of Hever]

My Lords, going back to the previous amendment, the noble Lord asked me about risk. I can confirm that risk is transferred but must be capped; otherwise no company would bid for a GOCO, due to unlimited liability. The noble Lord may wish to come back on that.

Amendment 8 raises an important issue. I am grateful for the points that the noble Lord raised and I agree that it is important that we protect the interests of those members of DE&S who would be transferred to the GOCO. I believe strongly that the interests of the transferring employees should be protected in the event that the new company should decide to relocate some or all of the services outside the UK. However, I must resist the inclusion of the amendment because it is not needed. Those employees transferring to the GOCO would be sufficiently protected by UK employment legislation in this regard and, accordingly, there is no requirement to include this provision in the Bill.

Noble Lords may recall the note on the Transfer of Undertakings (Protection of Employment) Regulations 2006—SI 2006/246—provided in another place for reference, which explained the protections that those regulations afford to transferring employees. In summary, the TUPE regulations protect employees if the business in which they are employed changes hands, or the services that they provide are to be provided by another organisation. The effect of the regulations is to transfer employees and any rights, powers, duties and liabilities associated with them from the old employer to the new employer. This includes any rights specified in their contract of employment, statutory rights and the right to continuity of employment. Additionally, the new employer cannot change the terms and conditions of employment of transferred employees if the sole or principal reason for the change is the transfer. This is also the case where the sole or principal reason is connected to the transfer, unless there is an ETO reason for the change, usually requiring a change in number of the workforce. This often makes it difficult, if not impossible, for new employers to amend terms and conditions of employment of staff immediately after a TUPE transfer.

The fact that this Bill makes it clear that the TUPE regulations would apply to the transfer of employees to the company would have the effect of protecting the employees’ terms and conditions of employment in place at the point of transfer, as well as representational rights. The terms of employment that will be protected include any obligation with regard to mobility. Civil Service terms and conditions of employment generally contain a mobility obligation within the UK and abroad for all but the most junior of grades. Some employees who would transfer to the GOCO will have, on previous occasions, relocated for work-related reasons both within the UK and abroad throughout their career in the Civil Service. Any proposed change of work location would be subject to general employment law constraints, which require that any enforcement of a mobility obligation must be fair and reasonable, dependent upon the personal circumstances of the individual concerned.

Noble Lords will be aware that amendments to the TUPE regulations came into force last week, and those amendments will not have a detrimental impact on employees. Further to the protections afforded to employees by the TUPE regulations, part IV of the Information and Consultation of Employees Regulations 2004 (SI 3426/2004) places a general obligation on employers to provide information to, and consult, employee representatives. Consultation is the process by which management and employees or their representatives jointly examine and discuss issues of mutual concern. It involves seeking acceptable solutions to problems through a genuine exchange of views and information. Consultation does not remove the right of managers to manage—they must still make the final decision—but it does impose an obligation that the views of employees will be sought and considered before decisions are taken.

To comply with their obligations under the ICE regulations, employers must provide relevant information to, and consult employee representatives on, all matters in relation to: first, recent and probable development of the undertakings activities and economic situation; secondly, the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged—in particular, where there is a threat to employment within the undertaking; and, thirdly, decisions likely to lead to substantial changes in work organisation or in contractual relations. The information must be provided at such time, in such fashion and with sufficient content as are appropriate to enable the representatives to conduct an adequate study and prepare for consultation.

Furthermore, any consultation must be appropriate in terms of timing, method and content, and conducted with a view to reaching agreement on decisions within the scope of the employer’s powers. In other words, the employer must ensure that any consultation that is conducted must be meaningful, and commensurate to the change which is being consulted on. For example, if an employer were planning to move their current premises to a new building half a mile from where they were currently located, with no effect on working practices or workforce numbers, it could be deemed that the impact of this change would be minimal and, accordingly, a minimal time period of consultation of two to three weeks would be appropriate. However, if the proposal were to relocate to new premises at the other side of the UK, or even abroad, this would have a significant impact on the workforce and a period of two to three months would probably be deemed more appropriate.

I do not have an answer to the noble Lord’s question, except “confirmed”, and I would need to pad that out in the form of a letter to him. In summary, established UK employment legislation provides the required protection to the employees that this new clause is seeking to achieve and I therefore ask the noble Lords to withdraw their amendment.

[Lord Rosser]

I thank the Minister for his detailed and considered response, which I will read carefully in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Clause 2: Financial assistance

Amendment 9 not moved.

Clause 2 agreed.

Clauses 3 and 4 agreed.

Schedule 1 agreed.

[Lord Astor of Hever]

My Lords, this may be a convenient moment for the Committee to adjourn.

Committee adjourned at 6.01 pm.

House of Lords

Monday 3rd February 2014 Lords Chamber

Monday, 3 February 2014.

14:30

Prayers—read by the Lord Bishop of Wakefield.

Democratic Republic of the Congo

Monday 3rd February 2014 Lords Chamber

Question

14:37

Asked by

[Lord McConnell of Glenscorrodale]

To ask Her Majesty’s Government what is their assessment of recent developments in the Democratic Republic of the Congo.

[The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)]

My Lords, after the surrender of M23 last year, 2014 provides an opportunity for greater stability in the DRC. We encourage the Government of the DRC to deliver on their commitments under the peace, security and co-operation framework, including the disarmament of militia groups, security sector reform and an elections timetable. We will continue to work closely with the UN special envoy Mary Robinson and other partners on these issues.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, on the disarmament of militias, it is now nearly 12 months since the peace, security and co-operation framework was signed by the 11 countries of the region. Although there has been some success against the M23 armed group, other groups, including the FDLR, those responsible for the genocide in Rwanda 20 years ago, are still operating in the eastern DRC. Will the UK use its seat on the UN Security Council to press for continued action on this front to create conditions for development that require the removal of these armed groups?

[Baroness Warsi]

Of course, the noble Lord will be aware that part of the conditions of the peace, security and co-operation framework, signed by 11 countries including the DRC and Rwanda and other countries in the region as well as the African Union and the UN, was about these militia groups laying down their arms. The M23 laying down arms at the back-end of last year is a hopeful step, but we continue to press countries and individual groups, including those linked to the FDLR, to move towards disarmament and reintegration.

[Lord Alton of Liverpool (CB)]

My Lords, is the Minister aware that there are now some 2.9 million people displaced in the DRC, 60% of them in the North Kivu and South Kivu areas, where the M23 was most active? Half of those displaced people are children. Does the Minister therefore view with consternation the report from the United Nations group of experts that the M23 is continuing to recruit fighters in Rwanda and that sanctioned M23 leaders are moving freely in Uganda? Has she seen Navi Pillay’s report accusing both countries of hosting some of the most serious perpetrators of human rights violations in the DRC? When did we last raise this with the High Commissioners of Uganda and Rwanda?

[Baroness Warsi]

The noble Lord will take some comfort from the fact that the Minister for Africa, my honourable friend Mr Simmonds, will be landing in the DRC in about two hours. Part of his role is to look at these particular camps. The noble Lord will be aware that DDR—disarmament, demobilisation and reintegration, which is effectively bringing these fighters back into the mainstream—has happened in the DRC, predominately in relation to foreign fighters, but there is not a particular programme, or a detailed enough programme, in relation to Congolese fighters who have laid down their arms. These are matters upon which my honourable friend is hoping to make progress over the next two days. I can issue a statement or put a letter in the House to give an update.

[Lord Chidgey (LD)]

My Lords, the news that the Government of the DRC are to postpone—basically, to suspend—a controversial oil extraction bill is welcome news. However, will the Government support the NGOs, other donors and local MPs in using this delay to press for the inclusion of strong transparency measures to root out corruption and to ensure that the country’s oil wealth goes towards helping the very poor in the Congo rather than disappearing offshore in dodgy deals through companies such as Nessergy, with links to the controversial businessman Dan Gertler?

[Baroness Warsi]

My noble friend makes an important point and he is right: corruption means not only that the wealth of the country does not help the poorest but that money earned from minerals in that country serves to finance conflict and abuses of human rights. That is why we have been pushing both for UK businesses engaged in that country to make sure that they follow the OECD guidelines and for the DRC to make progress on the EITI, the extractive industries transparency initiative. The noble Lord may be aware that its candidate status was suspended and we hope that it will be restarted. We also hope that the new DRC oil law, which is under consideration, will make some progress.

[The Lord Bishop of Wakefield]

My Lords, I am sure that the Minister will be aware that my colleague and friend the most reverend Primate the Archbishop of Canterbury is visiting the DRC today with the Minister for Africa. Could she inform the House of the work of Her Majesty’s Government, currently being promoted by them, in the protection of women in the DRC, particularly from gender-based violence?

[Baroness Warsi]

The Minister for Africa will have meetings with the most reverend Primate the Archbishop of Canterbury and the Archbishop of the DRC, particularly to support HEAL Africa, a project which aims to support women who have been subjected to sexual violence.

[Baroness Kinnock of Holyhead (Lab)]

My Lords, is the Minister aware that, since 1990, rivalries over the exploitation of natural resources have been among the root causes of at least 18 violent conflicts, particularly in Africa? In view of that, does she acknowledge the substantial risk that companies operating in the UK that purchase minerals are indirectly but significantly contributing to the conflicts in Congo and the Central African Republic, consequently undermining the peacekeeping efforts of the UK and others?

[Baroness Warsi]

The noble Baroness’s assessment is of course right and that is why we expect UK businesses to respect laws and agreed international voluntary standards for responsible business when they conduct business in the region. The OECD guidelines for multinational enterprises are part of that.

[Lord Bach (Lab)]

My Lords, can I say from the opposition Front Bench how delighted we are that the Minister for Africa is in the DRC today along with the most reverend Primate? My question goes back to the disarmament, demobilisation and reintegration, or DDR, programme that the Minister talked about. What steps have Her Majesty’s Government taken in the past, and are taking now, to support the implementation of this crucial programme, especially in terms of funding?

[Baroness Warsi]

I am not aware of the specific amount of funding which has gone into DDR. Of course, we have a very large aid programme, as well as work around the preventing sexual violence initiative. I know that the Minister will be going to a DDR camp to look at how much further we can assist and encourage other donors to be supportive as well. Once the Minister returns, perhaps I may formally write to the noble Lord and give him an update.

[Lord Foulkes of Cumnock (Lab)]

My Lords, what discussions did the Prime Minister have with President Hollande about Franco-British co-operation at their recent meeting?

[Baroness Warsi]

My Lords, this clearly shows that I did not get through all my boxes this weekend. I did not read the complete update on the meeting so I do not know what discussions were had in this area. I am, therefore, 48 hours out date, but I will write to the noble Lord.

Schools: Pupil Premium

Monday 3rd February 2014 Lords Chamber

Question

14:45

Asked by

[Lord Horam]

To ask Her Majesty’s Government what plans they have to increase the Pupil Premium for the most disadvantaged primary school children.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, pupil premium funding will rise from £1.875 billion to £2.5 billion in 2014-15. The primary school pupil rate will increase from £900 to £1,300 to reflect the importance of early intervention. For the first time, all pupils who are looked after or leave care through adoption, special guardianship or residence orders will attract £1,900 from April 2014.

[Lord Horam (Con)]

My Lords, this is a very important educational programme and I am pleased that it is going to have a further boost above what it already has. What advice is available to schools on how best to use the money they receive? What means does the Minister have to check that they are using the money wisely?

[Lord Nash]

My Lords, advice is available from, for instance, the national college, which lists a database of schools with excellent practice. We direct schools to the teaching and learning toolkit run by the Education Endowment Foundation, which provides an accessible summary of research on key education interventions that have an impact in this area. Ofsted’s report last year on the impact of the pupil premium in schools that do this well was very informative. In addition, any school judged to be requiring improvement, where the leadership is also deemed to require improvement, is expected to carry out a pupil premium review. Schools must publish online details of what they do with the pupil premium and Ofsted will be looking very closely at its use and effect on pupils’ attainment.

[Baroness Massey of Darwen (Lab)]

My Lords, in the past, some schools have used the pupil premium not for individual pupils but to support general provision. What is being done to check that?

[Lord Nash]

As I said, my Lords, schools are required to publish online how they have spent the pupil premium and the effect it has had on attainment. If it had been used on general provision, they would have to justify how that had impacted all pupils. Ofsted inspections are increasingly focused on the achievement of disadvantaged pupils. It is now very unlikely that a school which is not showing good progression for disadvantaged pupils would make an outstanding rating.

[Baroness Howarth of Breckland (CB)]

My Lords, having information online is very helpful. It is even more so when heads are able to meet and share information about the way they have been developing programmes. I have recently seen work done by family learning programmes using part of the pupil premium. Will the Minister encourage head teachers to share good practice more directly, as this seems to have a real impact?

[Lord Nash]

The noble Baroness is absolutely right. Good practice, of which there is a lot available, should be shared. We are encouraging, at every turn, all schools to do what good schools do. School-to-school support is the best way of improving performance.

[Baroness Walmsley (LD)]

My Lords, since my noble friend clearly believes, as I do, that early intervention is a very good strategy, will he go further and agree with the Liberal Democrat policy of putting pupil premium into the early years sector?

[Lord Nash]

Funding is tight, as my noble friend will know, and we have no plans to do that in the near term.

[The Lord Bishop of Wakefield]

My Lords, can the Minister tell us whether the Government are considering ways in which an increase in the pupil premium can be targeted at the forms of deprivation most difficult to address? Rural deprivation, for example, particularly in church schools, is very significant in our part of West Yorkshire, in the Diocese of Wakefield.

[Lord Nash]

The right reverend Prelate is quite right to point out the problems with rural deprivation; it is similar to coastal deprivation. There are particular schemes that schools follow: mentoring; systemic feedback; much more involvement of parents; early intervention, particularly using the better teachers; and peer tutoring. Much can be learnt from groups like Ark, whose academy in Portsmouth, for instance, which is in a classic coastal town, has improved results in four years from 24% to 68%.

[Baroness Hughes of Stretford (Lab)]

My Lords, as the Minister himself just said, Ofsted has a crucial role in improving the standards of attainment for the most disadvantaged pupils. Does he therefore agree that its effectiveness depends on it being a very strong and independent organisation? Does he therefore regret the political interference of the Secretary of State in the reappointment of the current chair of Ofsted, who by all accounts has done an excellent job?

[Lord Nash]

The answer to the noble Baroness’s first question is yes. The answer to the second is that I cannot regret something that is not taking place.

[Lord Sutherland of Houndwood (CB)]

My Lords, does the Minister agree that Ofsted must be judged on the basis of the quality of its evidence and of the surveys that it carries out in schools and the implications for a policy such as this, rather than on political matters?

[Lord Nash]

The noble Lord is absolutely right. Of course, given his background, he is vastly experienced in this. I could not agree more. Ofsted is doing an outstanding job. It is our sharpest tool. The first thing that the chief inspector did was to abolish the appalling and mediocre term “satisfactory” that had been allowed to exist for years. That shows where he is coming from, and he is having a great effect. Indeed, Ofsted reports that last year our schools improved at a faster rate than any other time in history.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, will the Minister remind the House what the key measures of deprivation are against which the allocation of the pupil premium is measured? To go back to the question from the right reverend Prelate, are those standard measures applied consistently across the whole country?

[Lord Nash]

The noble Baroness has asked me a question that has a very detailed answer. There are about six key measures. We attempt to apply them equally across the country, but the answer is so complicated that I will write to her, if I may.

Schools: Emergency Life Support Skills

Monday 3rd February 2014 Lords Chamber

Question

14:52

Asked by

[Baroness Finlay of Llandaff]

To ask Her Majesty’s Government how many secondary schools teach emergency life support skills as part of their compulsory school curriculum.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, the ability to save a life is one of the most important skills that a young person can learn, and many young people take part in activities on emergency life support skills in schools. For example, in 2012, St John Ambulance provided support resources for the direct teaching of first aid to more than 500,000 young people in schools. It is for schools to decide whether, how and when pupils should learn emergency life support skills. The Government do not collect data on school provision in this area.

[Baroness Finlay of Llandaff (CB)]

Given that 60,000 people a year have an out-of-hospital cardiac arrest and yet three-quarters of our population are not trained to give basic cardiopulmonary resuscitation, does the Minister recognise that this is a problem? It is devastating for anyone, particularly a child, to see someone have a cardiac arrest in front of them and not know what to do. We know that immediate cardiopulmonary resuscitation will triple the chance of survival. Life-saving skills really should be mandatory in schools, as they are in other European schools. I ask the Minister to reconsider. Has the current consultation over key stage 4 curriculum content in English, maths and science considered including heart function, cardiac arrest and CPR as part of science teaching?

[Lord Nash]

The noble Baroness is quite right to draw attention to this very important point. Emergency life-saving skills are extremely important. In addition to the St John Ambulance provision, the Red Cross and the British Heart Foundation run excellent schemes. The BHF’s Heartstart scheme has to date trained more than 3.5 million people.

The answer to her curriculum question is that I do not believe we are intending to put this in, but I will investigate that and write to her about it. With regard to particular incidents in schools, we are looking at that in the context of defibrillators to see if there is anything more that we can do.

[Lord Storey (LD)]

My Lords, the Minister may have heard of the Oliver King Foundation, named after a 12 year-old boy who died of sudden arrhythmic death syndrome. The foundation set up in his name is campaigning successfully to put defibrillators in every school and public place. Would the Minister consider how the Government might support this campaign, and would he be prepared to meet the foundation?

[Lord Nash]

I am aware of the Oliver King Foundation. Our current policy is that it is a matter for individual schools to decide whether to have defibrillators and to arrange individual training. However, as many noble Lords will know, we have tabled an amendment to the Children and Families Bill to create a new duty on the governing bodies of maintained schools to make arrangements to support pupils with medical conditions and have regard to guidance in that respect.

We are looking at the issue of defibrillators. I am particularly interested in this myself and I would be delighted to meet the Oliver King Foundation with my noble friend to discuss the matter further.

[Lord Kinnock (Lab)]

My Lords, does the Minister agree that the imposition of a compulsory universal requirement for schoolchildren, especially those in their young teens, to learn life-saving skills would have all the advantages spelt out by the noble Baroness, Lady Finlay, and directly contribute to the character-building that the Secretary of State rightly says he would like to see imparted in schools? Will the Minister reconsider the latter part of his Answer to demonstrate even more enthusiasm for the addition of this essential skill to the school curriculum?

[Lord Nash]

As the noble Lord will know, this Government believe as a matter of policy that prescription from the centre has not worked. The evidence of the performance of our school system over the past 15 years speaks for itself. However, we believe, as we have debated many times in this House, that PSHE and programmes such as first aid are incredibly important, and we are sending out messages as far as we can. We have a new PSHE review and we are engaging with bodies such as the PSHE Association to get the message out to all schools that this kind of programme is very important.

[Baroness Hollins (CB)]

What impact assessment has been made of the effect of relying on voluntary organisations such as the Boys’ Brigade, the Scouts or St John Ambulance to teach vital emergency life-saving skills, instead of including this on a national curriculum? I agree with my noble friend that the biology course could teach these highly relevant practical skills.

[Lord Nash]

I am not aware of any impact assessments. If I hear of any I will send them to the noble Baroness. The view of the Government is that, as with PSHE, rather than have prescriptive detail—in words on a piece of paper—of what should be taught, it is much better to encourage schools to engage with expert organisations, such as the ones to which the noble Baroness referred. They are the professionals: they are focused on a particular area and can constantly update their material.

[Baroness Gardner of Parkes (Con)]

My Lords, is the Minister aware that it requires remarkable strength to resuscitate someone simply by pushing on their chest or whatever? As a trained dentist, I went on an adult course and I was amazed by how hard you had to press on someone’s chest to revive them, although we did not have a real person to try it on. The Minister should realise that learning this as a child at school would be much more valuable than learning it at a later stage of life. For that reason, we should all support the view of the noble Baroness, Lady Finlay.

[Lord Nash]

I know the experience of my noble friend in this area and I do not think I can add to the answers that I have already given.

[Lord Roberts of Llandudno (LD)]

My Lords, with cutbacks in education and probably a reduction in the number of school nurses, how is the Minister monitoring the situation to make sure that schools have a school nurse facility, and that nobody will be endangered by the withdrawal of the service?

[Lord Nash]

My Lords, I know that the Department of Health is developing a better vision for school nurses. There are 1,300 school nurses but all schools have access to a much wider range of health professionals who may be appropriate depending on the particular conditions. It may be the school nurse’s job to be the bridge between that wider range. We are conscious that, with the new medical condition provision that we put in the Children and Families Bill, we will need to watch carefully to ensure that there is capacity in place to deliver it.

[Lord Colwyn (Con)]

My Lords, as we have heard, the British Heart Foundation found significant support for teaching emergency life support skills in schools. Is the Minister aware that, in your Lordships’ House, Mr Phipps and his team have signed up to a London ambulance accreditation scheme which includes the use of defibrillators? The scheme could easily be used in schools nationally, 78% of children having stated that they wanted to undertake this training.

[Lord Nash]

I have already said that this is something that we are looking at.

Ethnic Minorities: Ministers’ Statements

Monday 3rd February 2014 Lords Chamber

Question

15:00

Asked by

[Lord Avebury]

To ask Her Majesty’s Government what advice they issue to Ministers about making public statements on allegations about the general behaviour of ethnic minorities.

[Lord Wallace of Saltaire (LD)]

My Lords, Ministers are expected to behave in a way which is consistent with the Ministerial Code.

[Lord Avebury (LD)]

My Lords, when Ministers, or officials on their behalf, refer to homeless Travellers as a blight on the community, or as having a negative impact on business, does this not reinforce local authorities’ failure to produce a five-year rolling programme, as required by the Government’s planning policy for Traveller sites? Will they desist from using pejorative language about Travellers and instead embody the PPTS in statute law, with a power for the Secretary of State to direct local authorities to grant permission for such a number of sites and caravans as he may specify, as already happens in Wales?

[Lord Wallace of Saltaire]

My Lords, I think the noble Lord is referring to a DCLG press release of last summer which used the unfortunate term “blight”; the word was shortly afterwards removed and replaced by “problem”. In the previous survey of Travellers’ caravans, there were estimated to be 20,000, of which 15,000 were on authorised sites of one sort or another and another 5,000 were on non-authorised sites.

[Baroness Whitaker (Lab)]

My Lords, last week we commemorated the Holocaust, which encompassed the genocide of about one-quarter of the Roma people of Europe, whose violent persecution still continues. Should not our political leadership be more mindful of where prejudice and bigotry lead?

[Lord Wallace of Saltaire]

My Lords, we remember the Holocaust and that, I hope, although the Jews were the primary target of the Holocaust a great many others also died: nearly 2 million Poles, perhaps 200,000 Sinti Roma, gays, people with Asiatic features and others. The West German Government recognised the Roma dimension of the genocide in 1982; I understand that in 2012 a memorial to the Roma and Sinti who died in the genocide was unveiled in Berlin.

[Lord Taverne (LD)]

My Lords, what is the advice given about migrants? Can the Government publish the apparently mysterious reasons why the report commissioned on migrants by the Home Secretary has been shelved?

[Lord Wallace of Saltaire]

My Lords, I think the noble Lord is referring to the EU balance of competences review, particularly the free movement of persons report. In view of the considerable uncertainty about the impact of the free movement of persons this January, it was felt that we should postpone that paper until the third semester, this coming summer, to make sure that we had accurate figures.

[Baroness Thornton (Lab)]

My Lords, the Question of the noble Lord, Lord Avebury, concerns all democratic parties, and how we ensure that racists and extremists are pushed back into the political margins where they belong. Are HMG committed to ensuring that all their Ministers have a self-denying ordinance not to pander to the racists by echoing their messages for short-term gain? Secondly, how will HMG ensure that our laws to combat racism and xenophobia are reflected in the language that their Ministers and MPs use?

[Lord Wallace of Saltaire]

My Lords, the Ministerial Code is entirely clear on the way in which Ministers should behave. I am not aware of many other occasions on which such language has been used. Ministers are extremely careful about references to particular communities, migrants or others. We all understand how very delicate this area is.

[Baroness Hussein-Ece (LD)]

My Lords, does my noble friend agree that the sort of language we saw in the run-up to 1 January in reference to the latest wave of migrants—Bulgarians and Romanians—was wholly unnecessary and negative, and had an impact on the ground on the perception of people from other countries coming here to work? I mean words like “scroungers”. Does he agree that this sort of language has no place in our society? After all, are we not all part of the big society?

[Lord Wallace of Saltaire]

My Lords, I entirely agree but I think it is a question for the editor of the Daily Mail more than for any Minister in the current Government. There was quite absurd language and, indeed, some entirely untrue stories about extra planes, packed buses and so on that appeared in December, and which have not been denied since by the newspapers that published them. That is very unfortunate in an open, free and democratic society.

[Lord Foulkes of Cumnock (Lab)]

Could the Minister remind the House how complaints against the Ministerial Code are made and to whom, and how they are dealt with?

[Lord Wallace of Saltaire]

My Lords, they are dealt with by the Cabinet Secretary. The only other case I am aware of during the last year was where a Minister was thought to have referred to electoral fraud within the south Asian community in an unfortunate fashion. The Minister responsible apologised immediately.

[Lord Hannay of Chiswick (CB)]

My Lords, would the Minister not agree that his very welcome words about Ministers being careful about using any words that might encourage racism or xenophobia would be rather more believable if the Government were not opting out of the European Union’s decision on racism and xenophobia?

[Lord Wallace of Saltaire]

My Lords, the noble Lord makes an extremely strong point. I offer no further comment than that.

County Court Jurisdiction Order 2014

Monday 3rd February 2014 Lords Chamber

Motion to Approve

15:06

Moved by

[Lord Faulks]

That the draft order laid before the House on 18 December 2013 be approved.

Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 28 January.

Motion agreed.

District Electoral Areas (Northern Ireland) Order 2014

Monday 3rd February 2014 Lords Chamber

Motion to Approve

15:06

Moved by

[Baroness Randerson]

That the draft order laid before the House on 18 December 2013 be approved.

Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 28 January.

Motion agreed.

Scottish Parliament (Constituencies and Regions) Order 2014

Monday 3rd February 2014 Lords Chamber

Motion to Approve

15:06

Asked by

[Earl Attlee]

That the draft order laid before the House on 18 December 2013 be approved.

Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 28 January.

Motion agreed.

Northern Ireland (Miscellaneous Provisions) Bill

Monday 3rd February 2014 Lords Chamber

Committee

15:07

Relevant document: 14th Report from the Delegated Powers Committee.

Clauses 1 to 5 agreed.

Amendment 1

Moved by

[Lord Empey]

1: After Clause 5, insert the following new Clause—
“Opposition status in the Northern Ireland Assembly
(1) The Northern Ireland Assembly may, at any time after the passage of this Act, request that the Secretary of State introduce opposition status and rights for members of the Assembly, subject to the provisions of this section.
(2) Within six months of receiving a request from the Northern Ireland Assembly, the Secretary of State shall, by regulation, introduce the following rights for Assembly members with opposition status—
(a) speaking rights;(b) supply days; and(c) chairmanship and deputy chairmanship of the Public Accounts Committee, and shall make clear that these rights are to be allocated to members with opposition status in a manner that is proportionate to their relative number in the Assembly.(3) It shall be for the Speaker of the Northern Ireland Assembly to determine what is proportionate under subsection (2) and to set this out in the Assembly’s Standing Orders.
(4) For the purposes of this section, opposition status shall apply to any party with at least one seat in the Northern Ireland Assembly which is not a part of the Executive and which has notified the Speaker in writing of its desire to be accorded opposition status.”

[Lord Empey (UUP)]

My Lords, the purpose of the amendment is very simple. Basically, Members will recall that in 1998, in the Act that implemented the Belfast agreement, a rather complicated form of mandatory coalition Government was introduced to provide for the return of devolution to Northern Ireland. Let me say at once that, while it is a complicated and unusual system, I support that system and that nothing in the amendment before the House alters it in any way at all. In other words, if parties achieve at the election sufficient support to entitle them to sit in the Northern Ireland Executive and exercise executive powers and occupy ministries, then that is entirely a matter for them. At present, if a party decides not to sit in the Executive or does not have sufficient numbers to qualify for a seat in the Executive, it has the option either of not taking its seat in the Executive or of remaining on the Back Benches. However, the missing link here is that those who are not in the Executive have no status as regards the Assembly’s proceedings.

Amendment 1 seeks to give the option to allow the Assembly, should it so wish, to apply to the Secretary of State, who would respond. That would allow the Assembly to draw up Standing Orders, under characteristics that she would determine, which would provide parties that wish to seek opposition status with the opportunity to seek that status from the Speaker. That would give people who took that position basic rights such as speaking rights, where the Speaker would call a member of the Opposition in response to a government amendment or a government proposal, but in proportion to the size of the parties. It would give the opposition the power to have supply day debates, which I think would be accepted in any reasonable jurisdiction. Finally, it would ensure that someone not from a Government-supporting party chaired the Public Accounts Committee and occupied the deputy chair of that committee. We must be the only jurisdiction in these islands where government party representatives also chair the Public Accounts Committee; that is a severe weakness of our current system.

Much has been made of the Assembly perhaps already having sufficient powers to create an Opposition, and there is no doubt that there are Standing Orders that the Assembly could make which could provide for such a facility. However, what the Assembly gives, the Assembly can take away. The main purpose of doing this through London is to ensure the independence of that Opposition and that it is not dependent on the good will of whichever parties happen to dominate the Assembly at any point in time, so that it does not have to rely on other parties for its supply days, speaking rights or any resources that might be made available. That would be one small step on the road to a more normal political set of arrangements. Given the fact that the vast majority of the 108 MLAs in the Stormont Assembly are supporters of the Government in one form or another, we do not believe that this is anything but a minor step in the road to making the Executive more accountable for their actions or inactions.

Some folk have said, “Would we be interfering in any way with the current arrangements and the rights and entitlements of parties under the Belfast agreement?”. The answer is an emphatic no. The time is neither right nor appropriate for any significant change in how the Executive are constructed, albeit I am sure that many of us wish to look forward to a day when we have a more normal arrangement for a Government, such as we have in Scotland or Wales. However, we are not there and perhaps will not get there during the lifetimes of most of us in this Chamber. We can, however, make one small step to give those who do not occupy positions in the Government the opportunity to hold that Government to account. No rights would be removed; I see this as an additional right that currently does not exist.

When this amendment was tabled a number of comments were made at home in the local press. I must say that I have not yet heard anybody come out and say that they are opposed to the concept of an Opposition. It is a very hard thing to stand against. I noticed in the Irish news that on 24 January, a spokesman for the Social Democratic and Labour Party said that the SDLP believes that the British Government should make provision for legislation for opposition in the next mandate in a way that protects partnership working under d’Hondt and is in line with the spirit of the Good Friday agreement. That is precisely what this amendment is designed to achieve, and it sums up clearly exactly what I and my colleagues wish to see.

15:14

It is perfectly clear that any changes that one makes or proposes in relation to arrangements for the governance of Northern Ireland are very sensitive. For that reason, the amendment makes it clear that, while provision might be made, the actual application and trigger for its implementation would have to come from the Assembly itself. In other words, although it could legally do so, there would be no question of this Parliament imposing this change without the Assembly’s consent. Therefore, to reassure the many people who are mindful of the Sewel convention in devolved matters—and much has been heard of it in terms of Scotland and elsewhere—the convention is not offended by my proposal for two reasons. First, matters pertaining to the Assembly and the Executive Committee of the Assembly are actually excepted matters. Secondly, and more importantly, the fact that the Assembly itself would have to trigger a request, which could be triggered only by cross-community consent, would mean that the convention would not be offended.

For those reasons, I believe that the time is right; we have, unfortunately, been going through a period of great stalemate. Looking to the years ahead, a modest move such as this, which does not offend anybody’s rights or require any imposition, would be the minimum movement that most people would expect 16 years after the agreement was reached. Those of us who were involved in negotiating that agreement—there are a number in the Chamber today—know that nobody foresaw that, so many years ahead, we would still not be further down the road to a more normal political situation than we are. However, if the system is made more accountable and it is not possible for parties simply to stall things, in the sure and certain knowledge that they control 95% of the membership of the Assembly, giving an opportunity for an opposition and accountability to take root can only have a positive impact on the governance of Northern Ireland and the political process in general. I beg to move.

[Lord Lexden (Con)]

My Lords, I attached my name to this important amendment readily and enthusiastically. I very much agree with my noble friend Lord Empey that a firm, statutory basis should be provided through this Bill for the creation of a formal Opposition with the appropriate rights and privileges if and when the Northern Ireland Assembly should wish to bring it into being. This proposal has been formulated by my noble friend, drawing on his deep knowledge of the Assembly in which he served and of the Executive, of which he was a distinguished Member. It has attracted widespread interest and no small measure of support in Northern Ireland, as recent comments in the Ulster press have indicated, comments to which my noble friend has referred. Within the Assembly itself, advocates of the need for an Opposition are making themselves increasingly heard. They do not believe that the Assembly should remain in perpetuity the only legislature in these islands in which the Government face no Official Opposition who could hold them publicly to account.

Speaking as a staunch Conservative and Unionist, I am convinced that my noble friend’s proposal should, through his amendment, be incorporated into this Bill. Over the years, I have always been inclined to back forward-looking measures proposed by members of the Ulster Unionist Party, with which my party was closely allied for the best part of 100 years until the relationship broke down after 1972. My noble friend, as chairman of the Ulster Unionist Party, has done much to encourage closer contact with Conservatives once again. Indeed, at the previous general election, Conservatives and Ulster Unionists in Northern Ireland stood on a common platform. It included the following statement:

“Over time we would like the institutions of Northern Ireland to evolve into a more normal system with a government and opposition. But we recognise that any changes are for the future and will only come about after full consultation and with the agreement of the parties in the Assembly”.

This amendment seeks to give effect to that Conservative and unionist commitment.

However, the amendment has not been brought forward in any narrow party spirit. My noble friend has made clear that it rests on a conviction that the prospects of political progress would be assisted in the longer term if the Northern Ireland Assembly had available to it the power to establish an Official Opposition on the basis of primary legislation passed in this Parliament. As he said, that would give any Opposition who are called formally into existence a greater independence and strength than one established under the Assembly’s current standing orders, as is perfectly possible. All the central elements of the Assembly, including the arrangements for the appointment of chairmen and deputy chairmen, and for the modus operandi of the committees themselves are enshrined in schedules to the Northern Ireland Act 1998. The role and functions of an Official Opposition are obviously no less important. They, too, should rest on a statutory basis.

I have stressed that the amendment reflects no narrow party political interest. I hope that it will attract support throughout the House as a measure which seeks to encourage a significant useful step forward in the government and law-making processes of Northern Ireland without in any way dictating to the Assembly or attempting to impose a timetable for change upon it. Should we not seek to give the Assembly firm, open encouragement to move in a direction that we believe to be right at a time that it believes to be appropriate?

During Northern Ireland’s first period of devolved government after 1921, Parliament at Westminster gave no advice and guidance and ignored Northern Ireland for more than 40 years, with disastrous consequences. We must not repeat that terrible error, as my noble friend Lord Empey has often reminded us. Here, in this amendment, lies an opportunity to offer a view on a crucial aspect of Northern Ireland’s political future and to provide the means by which progress towards it could be achieved. When my noble friend on the Front Bench comes to reply to the debate, I hope she will be able to indicate that the Government will give this amendment sympathetic consideration, paving the way for the incorporation of its extremely important objective in the Bill itself.

[Lord Alderdice (LD)]

My Lords, I should like to pick up on the latter part of the helpful speech of my noble friend Lord Lexden. He reflected on the fact that ignoring the problems of Northern Ireland from 1921 onwards turned out to be disastrous not just for Northern Ireland but, indeed, for the United Kingdom. Therefore, I support the notion put forward by the noble Lord, Lord Empey, my noble friend Lord Lexden and, indeed, the noble Lord, Lord Trimble, that the question of opposition within the Northern Ireland Assembly requires attention.

Indeed, if one looks back at the period up until the breakdown of Stormont, I think it is true that in the whole of that period only one person occupied an executive position who was not a member of the Ulster Unionist Party. That was the right honourable David Bleakley from the Northern Ireland Labour Party, who was for six months the Minister of Community Relations in the very late stages of that unionist Administration. That represents the problem. Those who wanted to be in government were denied that opportunity and were kept in permanent opposition. This was very much to the fore in the minds of everyone during the negotiations on the Good Friday agreement—how to make sure that those who wanted to be in government but had a permanent minority status could participate in the Government and share responsibility. It was not in the minds of anyone at that time to insist that people had to be in government; the problem was the blockage as regards getting into government.

There were many other things that were not clear in the minds of some of those involved. For example, I think it is probably the case—I see that the noble Lord, Lord Trimble, is not yet in his place—that the leadership of the Ulster Unionist Party and of the SDLP, which were the two largest parties within unionism and nationalism, scarcely at that time conceived that they might not continue to be the two largest parties. Of course, the situation changed dramatically. When the new institutions were constructed, instead of bringing people together across the community divide, they promoted strength within the two sections of the community. Not only did they not provide for an official status for an opposition but they did not provide for a proper status for those who did not want to describe themselves as unionists and nationalists. Instead of the cross-community voting system being as I and my colleagues tried to promote, with a need for a two-thirds majority to form an Executive, it was decided that they needed a majority within both the unionist and nationalist communities and a majority of the whole. That made it very difficult for people to appeal across the community divide and to have a proper and reasonable status for those who did not want to consider themselves either unionist or nationalist. Once one moved down that road one created a real problem for any formal opposition status.

What the noble Lord, Lord Empey, said about the absence of an Official Opposition being a problem is true. He is right to raise it and I support the fact that he has raised it. I hope that my noble friend the Minister will be able to indicate to us that the Government will take this matter seriously as we go through the remaining stages of the Bill. Does this way of addressing the problem achieve what the noble Lord, Lord Empey, and his colleagues want? First, the noble Lord has rightly said that it would be perfectly possible under standing order arrangements to be made in the Assembly for there to be a position for the Opposition. That is the situation in this Parliament and it would be perfectly possible. However, he made the point that the two largest parties as they are at present probably have little motivation to support such a thing. That is quite true but that is also true of the amendment before us as it requires the two largest parties with the majority in the Assembly to sign up for this. It does not give the Secretary of State the opportunity to push it. I understand why the noble Lord does not want in any sense to suggest that there should be imposition from outside. The people of Ireland, north and south, respond particularly badly to being pushed in any direction at all, even one they would agree with if left to themselves. Nevertheless, the great vulnerability of the proposition he puts forward is that it does not take us much forward beyond what the Assembly could do itself if it chose to do so.

My erstwhile colleagues in the Alliance Party tried to play a role as an Opposition when they did not have sufficient support to get a ministerial position. Undoubtedly, they felt that the speeches they made and the stances they took were constructive. However, the observation they made is exactly the one that the noble Lord, Lord Empey, makes—that there is no official position and that is a substantial weakness. Would it be possible for a party at present simply to go into opposition? Yes, it would. It simply means that during the running of d’Hondt the nominating officer of a particular political party does not put a name forward. The party is then automatically not in the Executive and therefore is in opposition. The problem is that it would not have any further status without some kind of negotiation.

I was encouraged, as I know the noble Lord, Lord Empey, was encouraged, by the editorial in the Irish News as it suggested that not only had we presently a cross-community basis for government but that it was possible that we might have a cross-community basis for opposition. The SDLP and the Ulster Unionists might come together on this and make a presentation to the Assembly that said, “Together, we think it would be more constructive for us to go into opposition”. There is a bit of a tendency in Northern Ireland to say that the Government over here should sort out the problem. However, I would urge that not only do my noble friend and Her Majesty’s Government here take this issue seriously, but the noble Lord, Lord Empey, and his colleagues in the Ulster Unionist Party should take it seriously in discussions with the SDLP. A cross-community presentation that said, “Let’s have an opposition and we will form that together by volunteering not to take executive positions”, would be a very powerful political position to take. Along with some legislative encouragement of the kind the noble Lord suggests, that might begin to make a difference.

In principle the noble Lord is right. The Belfast agreement was a good agreement but not a perfect agreement. The noble Lord pointed to one of the things that is imperfect—an imperfection that will become clearer as time goes on. My uncertainty is not about the principle or the value, but the delivery. This gentle nudge might help to push us in the right direction or show that something further is necessary. I hope that my noble friend, the Secretary of State and others in the Government will take the principle seriously to see whether through this amendment, another amendment or by another process it is possible to move our politics in Northern Ireland forward.

15:30

[Lord Browne of Belmont (DUP)]

My Lords, I am sure that we all desire to see the Assembly at Stormont working better. This means reforming our political institutions and how government works. I believe that many clauses in this Bill will go a long way towards achieving progress on normalising politics in Northern Ireland.

Following four decades of terrorism and division, politics in Northern Ireland is changing and it is our duty to deal with the legacy of that period and seek to build a more united community. My party leader the First Minister of Northern Ireland has made it abundantly clear time and again that we are prepared to facilitate any party which wishes to opt for an opposition role within the current structures at Stormont. To date no party has taken up this offer. The DUP has always been willing to support additional resources and speaking time for a genuine Opposition as a first step towards the normalisation of our democratic structures.

In the long term, the best means of governing Northern Ireland would involve a voluntary coalition Executive and weighted majority voting in the Assembly, resulting in an end to community designation. This would be consistent with normal democratic institutions while respecting the particular circumstances of Northern Ireland. While a voluntary coalition could improve the performance of devolution in Northern Ireland, it would be a mistake to assume it is a panacea. However, that system could provide for both an Executive and an official loyal Opposition outside government instead of a disloyal Opposition within government. This should be the long-term goal of all the parties of Northern Ireland. However, we must be realistic about the ability to achieve it in the short term.

As the party which has constantly sought to improve the Assembly structures in Northern Ireland, we are in favour of an Opposition. In truth, this process could and probably should take place at the Northern Ireland Assembly. Therefore, I should be most grateful if the Minister could clarify whether at present the Stormont Executive and Assembly have the full power to approve an Opposition with speaking rights. I am of the firm belief that in a democracy there needs to be an Opposition, and I am firmly behind the principle of the amendment. However, I am not convinced as yet that this amendment is the best way to achieve that aim.

[Lord McAvoy (Lab)]

My Lords, the noble Lord, Lord Empey, makes, and has made in discussions with us, a reasonable case for this principle. Like the noble Lord, Lord Alderdice, we can see where the pressure for this is coming from. Words such as “unique” have been used several times to describe the situation in Northern Ireland, and that is still the abiding mantra that we need to take into account. However, devolution is devolution, and this is a matter for MLAs to consult and decide upon. Should any newer reforms be proposed which require necessary legislation to be brought before this House, we should fully consider them.

The issue of an Opposition is not mentioned within the Northern Ireland Act 1998. It is therefore a devolved matter that can and should be dealt with at Stormont. Despite the Irish News, and despite positive statements that have been made, there is no detectable overall consensus among MLAs on a move towards a formal opposition model such as exists here at Westminster. The point has been made that the Assembly is the only legislature not to have these powers, but there are people here who know better than me and who have more experience of the situation in which the 1998 agreement came about. It divided a society. As was so eloquently put by the noble Lord, Lord Alderdice, the problem of a permanent Opposition was that it never had a chance of getting power and felt it had no say. The Belfast agreement was designed to deal with exactly that situation.

In June 2013, the Assembly and Executive Review Committee concluded that it was possible to grant informal recognition to non-executive parties in the Assembly on a proportional basis. As has been mentioned, this could be achieved through additional speaking rights, recognition of non-executive status in the order of speaking and the allocation of time for non-executive party business. All this lies within the purview of the Assembly; it requires no legislation in Westminster. There has been a widespread desire expressed to see a situation such as this come about. Surely the true test will be when the Assembly brings forward a unanimous recommendation along these lines and takes action within the powers that it already has. The structure of the committees within the Assembly already provides a vehicle for regular accountability. They are organised so that Ministers face a committee within their jurisdiction which is headed by a representative of another party.

The 1998 agreement established an Executive in Northern Ireland which would be inclusive. In the same way, the responsibility for accountability must be exercised in an inclusive manner. The committees of the Assembly already allow the Executive to be held to account, commensurate with the fundamental principle of inclusivity. Furthermore, there is a broad consensus about giving non-executive parties informal recognition. This could be given by the Assembly itself. It would have much more power behind it if it came about in that way. There does not appear to be a full consensus among MLAs about reforming the structure to create an Official Opposition. It is essential that all the structures within the Assembly operate in an inclusive manner and are supported by broad cross-party consensus. The question is: do these conditions exist or not? It is the responsibility of MLAs to consult and agree upon newer structural reforms for an Opposition. This is an ongoing process. If, once consensus is reached, it is necessary for legislation to be brought before the House, we shall fully consider it.

We are very responsive to and aware of the sentiments that have been expressed, but the Assembly is on a journey. Unfortunately, we do not yet seem to have reached the stage where it can take the next step, but we believe that it is getting there and the move must come from there, although at present the necessary conditions do not seem to exist. For this reason, although we understand the amendment of the noble Lord, we cannot support it.

[Lord Empey]

My Lords, perhaps I may first respond to the noble Lord, Lord Alderdice. He made the point that he felt the amendment would not achieve the purpose being advocated for it. I understand that, but there is a clash between the issue of imposition and the issue of consent. While the mandatory coalition has been set out in statute, during those negotiations we did not set out in statute proposals for an Opposition because, to be honest, the main objective at the time was to get agreement on devolution. That was seen to be the way we could move on from where we were, in those bad dark days, to where we wanted to be. But, as the noble Lord, Lord McAvoy, has just said, it is a journey.

I am not, and I know that my noble friend Lord Lexden is not, totally wedded to the language of the amendment, but perhaps I can elaborate on why we feel that something needs to be done here as opposed to leaving it to Belfast alone. The reason is simple: we have to remove ourselves from the current political arrangements and look ahead a number of years. If we are going to establish an institution or see it modified, we cannot confine ourselves to the current politics; we have to look at the long term. I will tell the Committee, and in particular the noble Lord, Lord McAvoy, why we feel it is necessary to have a dimension of this set out here. First, we happen to have a legislative vehicle in front of us, and that does not often occur. The second reason is this. The noble Lord, Lord Browne, mentioned that the First Minister had said that he would be happy to facilitate any party at Stormont that wished to take up the opposition role. However, that is not the point I am getting at because it would apply only if a particular party, at this point in time, wanted to fill that role. Of course it would be up to any party to say so, but so far no party has said that it wants to. The point, though, is that it would be at the grace and favour of whoever was in place at the time, and that is the difficulty.

I can give an example that happened last year in the Assembly. At a very late stage in the Planning Bill, at the very last moment an eight-page amendment came in from the First Minister and the Deputy First Minister which would have had the effect of taking power away from the existing Minister. The amendment had not gone through the Committee procedure because it came in late. It was bounced on to the Floor of the Assembly at the last moment and it was put through. It failed to be implemented only because of legal activity by the Minister and it has not come into effect, but the example illustrates why it is necessary to have an element of independence. For instance, as my noble friend Lord Lexden said, under Schedules 3, 5 and 6 of the Northern Ireland Act 1998, even a simple body like the NI Assembly Commission, dealing with property issues, grass cutting and appointments of staff, is set out in statute. Standing orders are indicated so that they set out the characteristics of the committees. It is not impossible, therefore, to marry these two things.

I accept entirely the point made by the noble Lord, Lord Alderdice, that the weakness lies in the fact that you still have to get consent, but I feel that having the trigger at Stormont to implement something that is enabling—this is an enabling amendment—and thus having it on the stocks so that it is ready to go, would shorten the time the Assembly would require to move forward and take the next step. There would be no imposition.

I still think that this is the best way forward, albeit I accept that there could be a stalemate. The fact is that the Assembly and Executive Review Committee has been sitting for years. It has talked about everything, but nothing has actually emerged. For that reason, I believe it is necessary to move forward with these proposals. I would certainly request the Minister to consider them, that we should have discussions with the Opposition and the other parties between now and the Report stage, and that we should see whether we can find a mechanism to square this circle and achieve our objectives.

15:44

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, I thank the noble Lord, Lord Empey, and my noble friends Lord Lexden and Lord Trimble for tabling this amendment. It has given us the opportunity to discuss and debate an important issue. This has done the process of government in Northern Ireland a service. There has been considerable support across the House for the principles behind this amendment, although some doubt in some quarters as to whether the amendment would work in the way in which the noble Lord, Lord Empey, believes that it would.

We all recognise that an effective, responsible Opposition perform a valuable service in a democracy in keeping a Government on their toes and ensuring they deliver effectively on the basis of sound policy. That has been common to the speeches made this afternoon. Opposition helps to expose abuses. It gives people a clear choice between alternative approaches to issues of public concern. It is likely to enhance challenge to government and to spur on innovation. That is something that the present system in Northern Ireland, notwithstanding much scrutiny work by the Assembly, arguably lacks.

The system of government under the Belfast agreement in Northern Ireland is unusual, and, as the noble Lord, Lord Empey, has said, complex, in that it involves a mandatory coalition in which all parties meeting certain size criteria are entitled to take part. Oppositions therefore do not come into being as they do here. Parties, as noble Lords have pointed out, are entitled to decline their right to fill their allocated posts. They are entitled to take up an opposition stance. However, as noble Lords have pointed out, no party has so far sought to do so. The noble Lord’s amendment seeks to deal with the issue of why there would be that insecurity in seeking opposition status.

The Government consulted on the question of an Opposition in 2012, but concluded that there was not sufficiently broad support among the parties to justify proceeding with legislation that would change the legislative structure deriving from the Belfast agreement in any way. At that point, the Government also made clear that they would in no circumstances envisage departing from the basic principles of power-sharing and inclusivity.

The noble Lord, Lord Browne, asked for clarification on the issue of powers. At the time that they consulted, the Government raised the possibility that the Assembly itself could make some greater provision for an Opposition through changes to its procedures, as laid out in Standing Orders. This point has been well canvassed here this afternoon. It would be open to the Assembly to make provision in that way for, as has been suggested, extra speaking rights, entitlement to supply days, and arrangements for the chairing of the Public Accounts Committee, with which the amendment deals—the “missing link”, as the noble Lord, Lord Empey, called it. Those are the attractions of opposition. There are attractions to being in government. If you want parties to choose opposition status, they have to have a guarantee for that to be an attractive position to seek.

The issue has been considered by the Assembly’s own Assembly and Executive Review Committee, but no consensus has yet emerged. Many will find this failure to provide more effectively for opposition a disappointment.

The noble Lord, Lord Browne, asked whether the Assembly had the powers to accord the rights set out in the amendment through its Standing Orders. As I understand it, the point of the amendment of the noble Lord, Lord Empey, is to prevent those rights being removed at a point in the future. The Assembly could do this itself but, as the noble Lord, Lord Empey, has pointed out, it could take away that right in the future. I believe it is that uncertainty that the amendment seeks to address. It is important that a formal Opposition should have sufficient status if they are to be effective in holding the Executive to account. The Government will reflect on what has been said in the debate and we will certainly return to this on Report.

My noble friend Lord Lexden reflected on the breadth of support for the principle of opposition. That is clearly the case here today but there are of course, at the same time, differences among us as to how you might seek to enshrine that position of formal opposition status within the Standing Orders of the Assembly. My noble friend Lord Lexden also pointed to this as an important step in what one would call the normalisation of Northern Ireland politics. That is the thread that runs behind the Bill.

My noble friend Lord Alderdice looked back to the history of the situation and referred to what was, at one point, the permanence of the Ulster Unionist Party’s position in government for a long period of time, and the dramatic change that then occurred. He discussed the reasons why that happened and the problems within the current arrangements for those parties that do not want to be designated as either unionist or nationalist. Those parties also have to be taken into account in the arrangements for any future Opposition. My noble friend Lord Alderdice pointed to some technical problems with the amendment, which the Government will have to take away and consider.

As the noble Lord, Lord McAvoy, said, this is really a decision that must be taken within the Assembly. The UK Government can point in a direction, facilitate and encourage, but the Government would certainly not, in any way, seek to impose anything from outside. The principles of power-sharing and the Belfast agreement are absolutely fundamental in this, and any arrangements must be made with cross-community support and with a broad agreement across society. The Assembly has also discussed this. Mr John McCallister MLA raised the issue and is contemplating a Private Member’s Bill in the Assembly on the issue of opposition in the coming months. I regret to say that, so far, there is no indication of any greater consensus forthcoming on that than there was when the Government consulted on the issue of an Official Opposition in 2012.

I return to the amendment of the noble Lord, Lord Empey, which would not overcome that lack of consensus. In the view of the Government, there would need to be an approach from the Assembly to the Secretary of State before any of the rights that he envisages could be accorded. However, as he explained, the intention behind his amendment is that the Assembly could not then unilaterally withdraw these rights. Once accorded by the Secretary of State, they would presumably be permanent. The noble Lord has made a very good point. He has called this “one small step” and “an additional right”.

The debate has given us all a good deal to think about. The Government will certainly reflect on what has been said on all sides this afternoon, and no doubt the House will return to the issue on Report. I hope that at that stage there might be a clearer sense of how we should proceed on this issue, essentially of what steps might be taken, consistent with the Belfast agreement and the current legislation, to facilitate the operation of opposition parties.

[Lord McAvoy]

My Lords, I apologise for interrupting. This is an important point. Will the Minister bear in mind the wise and experienced opinion of the noble Lord, Lord Alderdice, that opinions that can be seen as instructions from outside are often counterproductive?

[Baroness Randerson]

The noble Lord is absolutely correct. He is emphasising the point that I made that the Government are well aware that there should be no direction from outside. It is absolutely fundamental that the Assembly itself reaches this agreement. The Government see their role as that of facilitating the operation of the opposition parties within the Assembly when the Assembly reaches that decision for itself.

There will clearly be views on this from well beyond this Chamber today, including from Members of the Northern Ireland Assembly, and I emphasise that the Government are interested in hearing those views. I hope that, in view of the indications that I have given, the noble Lord will agree at this point to withdraw his amendment.

[Lord Empey]

My Lords, I am grateful to the Minister for her decision that the Government will reflect on this. It is interesting that everyone around the Chamber agrees the basic principles. Perhaps we should invite Mr Richard Haass to come in and help us between now and Report. Failing that, if the Minister and other parties—

[Lord Alderdice]

My Lords, if cross-community agreement were the key element in reaching an Executive, some kind of cross-community negotiation of those parties that could reasonably be expected to be in opposition might be a very fruitful way forward for consideration.

[Lord Empey]

I do not think that it would be appropriate to turn down any suggestion. However, we must not look at this purely in the current context of who happens to be around at this point in time. We must look years ahead. This is a structural issue. The Minister got the main points in her summing-up. The tensions here are that, first, we do not want to impose and, secondly, we must be consistent with the Belfast agreement. However, if you have to ask somebody for the right to be in opposition then there is a flaw. That is why one further step is required. Nevertheless, on the basis of the Government’s announcement that they will reflect on these issues and, I hope, discuss them with those who have participated in this debate today, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

16:00

Clause 6: Reduction in size of Assembly to be reserved matter

Amendment 2

Moved by

[Lord McAvoy]

2: Clause 6, page 6, line 30, at beginning insert—
“( ) In Schedule 3 to the Northern Ireland Act 1998 (reserved matters), at the end of paragraph 1 insert “except such functions as are specified by the Secretary of State by order made by statutory instrument.””

[Lord McAvoy]

My Lords, the amendment allows us the opportunity to reflect on the continued importance of Westminster and the Northern Ireland Office in Northern Ireland. There is a vital role for Governments and the Secretary of State in bringing peace, progress and prosperity to Northern Ireland. These are areas where, at times, it is appropriate for the Government to lead and others to support, at all times working in partnership with the Assembly, the Executive and the Government of the Republic of Ireland. Much progress has been made since the Good Friday agreement, but there remains a need for a comprehensive and inclusive process to deal with the past—the name Haass comes to mind—a process that has the victims and survivors of violence at the centre. As yet, there is no consensus within Northern Ireland as to the structures which would enable this. Nevertheless, it should be a priority of the Northern Ireland Office to facilitate and advance dialogue in this area. Dealing with the legacy of what has become known as the Troubles is expressly a responsibility of the Northern Ireland Office. The publication of the Executive’s cohesion, sharing and integration strategy is good news, and the Secretary of State should co-operate with the Executive and provide support for initiatives designed to build, and to continue to build, a shared future in Northern Ireland.

Northern Ireland’s future, like that of other parts of the United Kingdom, can be built only on a strong economy and a compassionate welfare system. These are additional areas in which the Government must work with the Assembly. The Government should also acknowledge the effects that their policies on the economy and welfare are having in Northern Ireland. What could be regarded as inattentiveness has been evidenced in the Government’s inequitable welfare reforms. Thirty-two thousand households in Northern Ireland will be affected by the bedroom tax. Northern Ireland is being disproportionately affected, since almost 90% of social housing stock is family homes of three bedrooms or more—another exposure of the falsehood that people can somehow easily downsize their homes.

This amendment restates the important role that Westminster and the Government have to play within Northern Ireland. The use of these powers would help. The Northern Ireland Act established an important role for the Secretary of State; this Bill will reaffirm this. Both restate the need for active engagement by the Secretary of State with issues that affect Northern Ireland. The amendment is entirely probing to enable some discussion on the affairs of Northern Ireland.

[Baroness Randerson]

I thank the noble Lord, Lord McAvoy, for his amendment. It is always worth considering whether the arrangements in place for devolution are as effective as they might be and whether there is anything we can do to improve the way in which we work with devolved Administrations.

The noble Lord referred to the role of the Secretary of State and to the Haass talks. I reflect back to his speech on the previous amendment, in which he made it absolutely clear—and rightly so—that it was vital that we respect devolution and that the Government do not intervene where it is a matter for the devolved Assembly. I remind the noble Lord that the Government on occasions walk a narrow line between encouraging and leading in relation to the development and the firming-up of devolution in Northern Ireland. They walk a narrow line between that and interfering.

As noble Lords have already pointed out, interfering is a major mistake. The Secretary of State is very aware of this, in relation to the Haass talks in particular, because those talks were convened by the leaders of the political parties in Northern Ireland. It is a sign of the development and firming-up of politics and political institutions in Northern Ireland that these leaders felt confident enough to put hugely complex and difficult issues—the most difficult ones they face—into the discussions led by Dr Richard Haass. I am delighted to see that those discussions are still going on, with two meetings of the leaders of the political parties scheduled for this week. It is therefore absolutely essential, at this moment, that we trust them to take those issues forward and avoid the temptation to interfere. That does not mean that the Secretary of State is not watching this moment by moment and day by day or that she is not anxious for the Haass talks to succeed and for there to be progress on those difficult issues.

The noble Lord made it clear that this was a probing amendment, but it is essential that I address the details of it. Amendment 2 relates to ministerial functions. It is already the case that, if the Assembly wants to legislate to alter the functions of a UK Minister, or confer functions on a UK Minister, all it needs to do is ask for the Secretary of State’s consent. The formal consent process takes about 10 days. The amendment would, therefore, have a very limited impact because it would only remove that consent process in a small number of cases specified by the Secretary of State in advance.

The current process is not onerous and there have been no complaints from the Northern Ireland parties about the way that procedures have operated in this area to date. It is also notable that the consent process is very rarely used. Only one Assembly Bill—the marine Bill—has so far required the Secretary of State’s consent since the current Assembly was elected in 2011. Consent in relation to that Bill did not relate to ministerial functions, so it would not have been affected by the proposed amendment. Although I am grateful for the opportunity for debate that this amendment has brought, I do not believe that we should legislate for a problem that does not exist. I hope that the noble Lord will withdraw his amendment.

[Lord Empey]

My Lords, before the Minister sits down I apologise: I should have been in a moment earlier. I want to reflect on the amendment in the name of the noble Lord, Lord McAvoy. Clause 6 deals with the reduction in size of the Assembly being a reserved matter. There is a general view that, at 108 Members, the Assembly is too big. Compared with the Welsh and Scottish assemblies it is proportionately far bigger, but the reason for this was a deliberate decision to try and make it as inclusive as possible. Some two years ago we thought that a solution would be brought upon us with the change in parliamentary constituencies, because reducing the number of parliamentary constituencies would automatically reduce the size of the Assembly—QED. However, one or two people around your Lordships’ House and in other places had different views, and consequently that did not come to pass. However, it would have been an important step.

I have to caution the House that the Assembly deciding on how to reduce its numbers is as important as actually reducing the numbers. Using the existing system, if you reduced the numbers and left the existing constituencies the same, it would be perfectly possible to have a major political impact. It is a bit like the American states: the winning party then determines the boundaries of the new congressional districts, and so it goes on. This is a similar type of issue, and we have to be very cautious as to how we deal with it.

There is a general sense overall that the operation of the Northern Ireland institution is far too complicated and expensive, and everyone has the general view that it should be reduced. How you do that is very important and can have a significant political outcome, so I caution your Lordships that if we agree to this, it will hand the ability to whoever happens to be in charge when this happens to draw up the numbers to suit themselves, because proportional representation under the single transferable vote is very sensitive to the number of seats in each constituency that are contested.

[Lord Alderdice]

My Lords, I spoke to this question at Second Reading. I have a concern about the question of the reduction in the numbers of Members of the Assembly. I do not share the view expressed by the noble Lord, Lord Empey, and others in other places that the Northern Ireland Assembly is too big. I think that there is a certain minimum size; I hear from colleagues in Wales that the Welsh Assembly is too small, and that it is actually very difficult for it to accommodate all the requirements for committees to scrutinise Ministers, for internal committees and to do all the necessary things. There is a certain minimum size below which it is difficult to address all the required functions. Of course, in the case of Northern Ireland, unlike in Wales and Scotland, there is a very significant cross-border responsibility that is present in dealing with another state, which is not something that has to be done in quite the same way by other devolved institutions.

I am not convinced about the question of the reduction of the size of the Assembly, particularly since, after the Belfast agreement, there has been a decision to bring a major reduction in the number of local authorities and the number of elected representatives. We are going to move from a substantial number of elected local representatives to a much smaller number, while at the same time talking about a possible reduction of Assembly Members. I am not persuaded by that.

The second issue is the question that the noble Lord, Lord Empey, picked up: the people who will deliver on a decision will be the majority. In the old days the majority was from one side of the community, and the manipulation of electoral boundaries and votes was not at all unknown—in fact, it was quite a significant issue. One of the problems that I find, looking back at it from this side of the water, is that people over here sometimes assume that if major parties on both sides of the community agree, that is all you need to know. It is perfectly possible for two large parties, one on either side of the community, to agree to do something that is a major and inappropriate disadvantage to minority parties on both sides of the community or from neither.

There is a real danger that if this became a reserved matter, the two largest parties, one on either side of the community, could come forward with an agreed set of proposals that would advantage them electorally and politically in a way that was inappropriate but would be very difficult to resist because of, if we take the argument that the Minister made, the danger of a Secretary of State or people from this side of the water imposing their will. What does that mean? It means that if the two largest parties in the Northern Ireland Assembly came forward with a proposal, it would be rather difficult for a Secretary of States to withstand it and not be accused of inappropriately affecting affairs when there would be a cross-community agreement to move on that front. So there is a real danger, and I have to say that I am not at all enthusiastic about giving powers to the two large parties in the Assembly—that is what this amounts to—to affect the number of elected representatives per constituency. That would have a major impact, and we could live to rue the day if it were able to proceed.

16:14

[Lord Bew (CB)]

My Lords, I support the words of the noble Lord, Lord Alderdice. This is a more significant change than the House has fully grasped. We have recently lost a distinguished Member of the House of Commons, Mr Paul Goggins, who was widely respected on all sides. When he was Minister of State for Northern Ireland he used to say at the Dispatch Box that, “Electoral law will remain in this House for all time”. Today we are, in a sense, changing that. The reasons why he thought that are very close to the reasons given by the noble Lord, Lord Alderdice. I fully accept the point made by the noble Lord, Lord Empey, that there is a general public perception in Northern Ireland and throughout the United Kingdom that there is great expense associated with the running of the Stormont Parliament. However, it is a lot easier to make a case for a reduction in the number of relatives assisting and the number of special advisers, as well as in this area, to deal with the question of public expenditure.

There is a fundamental point here. The very large number of representatives—108 for a small population—permits a greater role for smaller parties than otherwise would have happened, and these smaller parties have something relatively fresh to say in the context of Northern Ireland. Do not forget that we have a Parliament at the moment where 105 out of 108 Members support the Government. All of them would support the Government if it were not for the fact that we have this very broad system of allowing 108 people to be elected.

[Lord McAvoy (Lab)]

My Lords, I welcome the opportunity to restate the important role that Westminster and the Government play within Northern Ireland in building a shared future. The Secretary of State and the Northern Ireland Office must be actively involved and engaged in assisting the people of Northern Ireland to deal with past violence and the legacy of the Troubles. The Government have a duty to lead, but not prescribe, working with the Assembly, the Executive and the Irish Government. The Government must also take responsibility for and consider the effects of their economic and welfare policies in Northern Ireland. However, having listened to what has been said, and having indicated that it was a probing amendment, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Clause 6 agreed.

Clauses 7 to 9 agreed.

Clause 10: Civil Service Commissioners for Northern Ireland

Amendment 3

Moved by

[Lord Empey]

3: Clause 10, page 9, line 7, at end insert—
“(3) Subsections (1) and (2) shall only enter into force after the remaining provisions of this section have been complied with.
(4) The Secretary of State shall establish a body corporate called the Northern Ireland Civil Service Commission (“the Commission”).
(5) The Commission must publish a set of principles to be applied for the purposes of recruiting persons on merit on the basis of fair and open competition.
(6) Before publishing the set of principles (or any revision of it), the Commission must consult the Secretary of State.
(7) Northern Ireland Civil Service management authorities must comply with the recruitment principles.”

[Lord Empey]

My Lords, I know that a number of your Lordships have been contacted by the Civil Service Commissioners for Northern Ireland. While the commissioners do not oppose the devolution of their functions, they are very concerned that they at present do not have the benefit of formal legislative provisions. This distinguishes them from their counterparts here in Whitehall. Civil servants generally are sometimes, like politicians, the butt of jokes, and I am sure many a cartoonist has made a living out of it, but the Northern Ireland Civil Service over many difficult years ensured a degree of civilisation where proper governance continued, despite threats, both personal and real. It is important that its impartiality in serving whatever Administration it happens to serve is maintained.

I see one distinguished former Secretary of State in his seat. He will know the importance of having that impartial advice available. I believe that the Civil Service Commissioners want to ensure that that remains the case. They would like the Constitutional Reform and Governance Act 2010—it puts the Home Civil Service Commission on a statutory footing and enshrines in law the requirement that selection of appointment to the Civil Service should be on merit, following fair and open competition—to apply to the Northern Ireland Civil Service. I think that they are very anxious that devolution of this function should not take place until that is achieved.

That is not a very difficult issue. We have seen in the past 24 hours what can happen when people have to say things about public appointments. Given the circumstances which we come from, and the history, background and substantial achievements of the Northern Ireland Civil Service under difficult circumstances, it is important that we take any and every measure we can to ensure that that impartiality is guaranteed, is in statute, that there is no ambiguity and that no political influence could subsequently be brought to bear were attempts to be made over the years to try to interfere in who was appointed to which posts.

This is a sensitive issue throughout the United Kingdom. The amendment is just another small step in attempting to ensure that that impartiality is guaranteed long into the future, and that it, and the respect in which the Civil Service is widely held in Northern Ireland, is retained. I beg to move.

[Lord Alderdice]

My Lords, I was happy to put my name to the amendment which the noble Lord, Lord Empey, pioneered. I support many of the things that he said.

I will give two examples; a modest one, and one perhaps more substantial and persuasive. This question of maintaining the non-partisan stance and community appreciation of the Northern Ireland Civil Service is of enormous importance. Quite a lot has been written about the peace process in Northern Ireland, and most of it concentrates on negotiations between politicians, the people who are brought in from outside to assist, the role played by the Prime Minister and the Taoiseach and, in some cases, the impact of the United States, the European Union, the NGOs and so on. Very few of those papers point up the importance of civil servants in the Northern Ireland Civil Service, yet they were absolutely critical. A few of those civil servants—nominated by the Secretary of State and his successors—basically spent all their time engaging with politicians right across, and in some cases beyond, the spectrum to keep the process alive. Whether Governments changed, whether leaders of the political parties changed, with all the ups and down of elections those civil servants continued to meet. They would make minutes. They would ensure that meetings were held. They would keep people in touch with each other.

Very little is written about it. It was absolutely essential. As I have involved myself in peace processes in various other parts of the world, I have come to realise how important it was. In many places, almost right across the Middle East, for example, this is not a tradition in the civil service. It is difficult to make peace processes work in some of these places precisely because there is no civil service there of that kind—no non-political, non-partisan civil service.

I give another example. One of the problems I had when I became the first Speaker of the Assembly was how to staff it. Nobody had been there for decades, running, as clerks or other officials, an Assembly. There was only one body of people who could be called upon in sufficient numbers: the Northern Ireland Civil Service. People, particularly on the nationalist and republican side, were very anxious about this. They had come to a view, for particular reasons, some of them based on experience and some of them on suspicion, that the Northern Ireland civil servants would be biased towards unionists. We had a lot of negotiation about it, but we all came to the conclusion that there was no alternative, so the agreement was that we would take these people in—however, on only a three-year contract. During that period, there would be open advertisement, and people would come in from other places in society and outside Northern Ireland. There would have to be this transitional process.

The fascinating thing was this: as that period of three years went on, it became increasingly apparent to nationalists and republicans that the concerns they had had about the non-partisan nature of the Northern Ireland Civil Service were actually pretty groundless. As we came near the end of the time, people from those communities wanted to keep on many of the staff who had proved themselves perfectly capable of being loyal to a power-sharing cross-community Executive and Assembly. That was the quality of people and, to some extent, the culture, which was a more non-partisan one than was realised.

I have a real anxiety—in this situation, I do not think that examples on this side of the water are necessarily perfect—that Members of the Government on both sides in Northern Ireland might well be tempted to influence the appointment of some senior civil servants in a way that would not ultimately be in the interests of any of us in Northern Ireland. I ask the Minister to take very seriously the amendment put forward in the name of the noble Lord, Lord Empey, and myself, and to take it away and look at whether it is possible to accommodate the very legitimate concerns—not concerns about devolution of the function but about protection of the devolution of this function from adverse and partisan impact.

[Lord Butler of Brockwell (CB)]

My Lords, I was one of those contacted by the chairperson of the Northern Ireland Civil Service Commissioners about this matter and I support the amendment. As the noble Lord, Lord Empey said, this is a simple matter. It really should be straightforward and I cannot see that there can be a serious objection to the amendment that the noble Lords, Lord Empey and Lord Alderdice, have tabled.

In the Constitutional Reform and Governance Act 2010, the provision was made to enshrine in statute the obligation of the Civil Service Commissioners that appointment to the Civil Service should be on merit following fair and open competition. We have always taken that as a constitutional principle of our Government. That Act did not apply to Northern Ireland—not that it was deliberately excluded for any particular reason, but it simply did not apply. However, exactly the same principles should apply, and I think everybody would want them to apply, to the Northern Ireland Civil Service. Indeed, because of the divided history of the Northern Ireland community there is a particularly strong reason why they should apply.

I was very pleased to hear what the noble Lords, Lord Empey and Lord Alderdice, said, because over many years I worked with members of the Northern Ireland Civil Service, as it were from the inside rather than working with them from a political perspective. My experience was exactly the same as theirs, as I would have expected: that members of the Northern Ireland Civil Service were politically impartial and appointed on merit. It took 150 years before these principles of fair and open competition were embodied in statute in Britain, following the Northcote-Trevelyan report. Once they have been embodied in statute, it seems to me that the same thing should be done for Northern Ireland, and before a question of devolving this function should take place. I strongly support the amendment. I hope the Government will say that they see no objection to it.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lords who have spoken on this. I too support the principle of the amendment before us. It is a very important principle. I was also contacted by the Northern Ireland Civil Service Commissioners and they make a powerful case. They were established, as noble Lords will know, by the Civil Service Commissioners (Northern Ireland) Order 1999. The principle is that a person shall not be appointed a situation in the Civil Service unless a selection is made,

“on merit on the basis of fair and open competition”—

the merit principle. The commissioners have the power to consider, make decisions, and have appeals made to them under the Northern Ireland Civil Service code of ethics, and their notepaper says:

“Ensuring appointment on merit and safeguarding ethics”,

which is, indeed, their role.

Noble Lords from different backgrounds have made important points, and I will also make a point, having served as a Minister in Northern Ireland and in Whitehall. The Northern Ireland Civil Service is a much smaller unit. Everybody knows everybody else in Northern Ireland, and sometimes it seems—I am sure that other noble Lords will confirm this—that everybody knows everything about everybody else in Northern Ireland. Many senior Northern Ireland civil servants had a profile that was not known here in Whitehall, but they were known across Northern Ireland in their respective roles as Permanent Secretaries. Therefore this is not just about things being done in the right and proper way and about there being impartiality; the perception of impartiality must also be there for all those who are appointed, and for others.

16:30

On the point on the transfer of powers, I have not seen anything that did not agree with devolving the responsibilities. However, before they are devolved the Government have to work with the Assembly to ensure that legislation brought forward to provide those safeguards ensures the continued impartiality of appointments made to the Northern Ireland Civil Service and the impartiality and independence of the commissioners who regulate those appointments. As we have heard, that provision is in place for other UK Civil Service posts, but it is not currently there as a devolved matter. Therefore before responsibility is devolved, something in legislation should enshrine that impartiality. I hope that the noble Baroness will be able to give an assurance today that there will be no further devolution of these issues until that impartiality is enshrined in statute.

[Baroness Randerson]

My Lords, I thank the noble Lords, Lord Empey and Lord Alderdice, for their amendment and the spirit in which it was put forward, and I thank all noble Lords who have spoken in this debate. They rightly emphasise the key issue: the importance of the impartiality of the Civil Service. My noble friend Lord Alderdice referred to the key role of the Civil Service prior to the days of the Good Friday agreement. I was in a small way involved in the early discussions and, from my own experience, was acutely aware of the key role of the Civil Service in Northern Ireland in that regard, the importance of its expertise and, above all, the importance of its impartiality and the trust with which it could therefore be regarded.

It is worth emphasising that Clause 10 does not change the current procedure for the appointment of Civil Service Commissioners for Northern Ireland. Appointments are currently an excepted matter; the Bill proposes to make them a reserved matter, in common with the functions and procedures of those commissioners. Commissioners will continue to be appointed by the Crown: that is, on the advice of the Secretary of State. The Civil Service Commissioners (Northern Ireland) Order 1999, which currently governs the functions of the commissioners, will continue to apply. However, that leaves open the possibility of the future devolution of responsibility for appointment of the commissioners and that of their functions and procedures. Under Section 4 of the Northern Ireland Act 1998, that could only happen with the agreement of Parliament and that of the Northern Ireland Assembly voting with cross-community support. However, before any proposal of that sort is put forward we would certainly intend to consult publicly.

We believe that the devolution of responsibility for the commissioners at some point may well be appropriate. Matters have moved a long way since the Good Friday agreement and the initial devolution of responsibility in 1999. For example, we had big changes in 2010, focusing on policing and justice. The commissioners’ independence and the maintenance of an impartial public service are of paramount importance. I thank the noble Lords for their suggested safeguards in this regard. It is clear across the Chamber today that there is agreement on the importance of the impartiality of the Civil Service and agreement that there should be additional safeguards to those currently provided for in legislation. The Government are certainly open to the possibility of new statutory safeguards at the point of devolution and welcome the suggestions made. We hope to hear more when the time comes for the consultation. We have heard what your Lordships have said here but we believe that it is premature to specify preconditions to devolution in the Bill today. The necessary protections should be carefully debated before devolution takes place, as it would be inappropriate to make such significant changes without a thorough consultation.

[Lord Lea of Crondall (Lab)]

I apologise to the House for asking a question as a disinterested observer, although not an uninterested observer. Given that this is Committee stage and that there seems to be general agreement around the Committee on the principle of the amendment—unless I have missed something—why does the Minister not find it possible to say that consideration will be given to this matter before the end of proceedings on the Bill?

[Baroness Randerson]

My response to the noble Lord is that, as I was in the process of saying, we do not disagree with the concept of the safeguards that have been suggested and laid out in the amendment. However, we believe that before we devolve the Civil Service Commissioners’ role, we need to have public consultation so that we have a fuller understanding of what the public expect. It is also worth pointing out that safeguards are already in place in relation to the Civil Service Commissioners in England. Therefore, it is right and appropriate to compare the safeguards proposed in this amendment with those in place for the Civil Service Commissioners in England. In the case of England, they go to several pages; they are very much more detailed. The proposals in the amendment are an indication of the sort of lines one would wish to put in place, but the Government believe that they are nowhere near detailed enough for the final situation. They would need a great deal more fleshing out and should rightly be fleshed out following public consultation.

[Lord Hurd of Westwell (Con)]

I have been following this debate with some care and would like to join, from my own experience as Secretary of State, in welcoming the spirit with which the Northern Ireland Civil Service conducted its affairs at a time when the pressures on civil servants as individuals must have been really quite substantial, coming from several parts of the community. They resisted those pressures, as far as I could tell, with persistence because they believed in the principles which have been endorsed in every speech made here, including that of my noble friend. She is straining at a gnat. We are all familiar, from being in government, with occasions when Ministers are asked to take this line. She is saying, “Yes, the principle is fine,” and so on, “but we need more thought; we need more time, we need more consultation”. We have had quite a substantial consultation in this House this afternoon. The principle is not at stake and is not being questioned. Is this not an opportunity to endorse that principle, which is hugely important for the future of the Province? It seems that the House should take the opportunity offered to it this afternoon to underline its strong endorsement of the principle, rather than be deflected by the arguments for delay.

[Baroness Randerson]

I thank my noble friend for that point. However, I do not see this as an argument for delay. This measure must go through the appropriate legal processes and there should be proper public consultation. With all due respect to your Lordships, there is another side to public consultation which involves, for example, asking the opinions of the elected representatives in Northern Ireland.

[Baroness Smith of Basildon]

If my understanding of the noble Baroness’s lengthy speech is correct, she is not arguing that there should be delay as regards the principle but is saying that it is absolutely accepted by the Government, and is talking now only about process. Is that correct?

[Baroness Randerson]

Absolutely. The noble Baroness is entirely correct. I had hoped I had made it clear in my opening remarks on this issue that the Government fully support the principle and intend to ensure that safeguards are put in place. However, they believe that there should be public consultation to ensure that those safeguards are as full and detailed as is necessary. The Government also believe that although the intention of the noble Lord’s amendment is entirely satisfactory in many respects, it is deficient in technical terms because the safeguards it specifies are nowhere near detailed enough compared with those for the Civil Service in England.

[Lord Butler of Brockwell]

The Bill contains the powers to devolve this function of the Civil Service Commissioners. If we are going to put that in the Bill, surely the sensible time to legislate for the safeguards is at the same time as making that provision. If not, why have this provision in the Bill? If the provision is to go ahead, the Government ought to undertake such consultation as they think necessary but introduce a suitable amendment on Report.

[Baroness Randerson]

The Government are listening very carefully to what is said this afternoon, which will inform the content of our consultation paper when it is produced, and we will take close account of what is said more generally by parties and public figures in Northern Ireland. The body that it is proposed to devolve—the Civil Service Commissioners—has, as the noble Lord pointed out, raised our awareness of this issue and is very much involved with the whole process. I should point out that there will be a vote here and in Stormont before the Civil Service Commissioners are devolved. Therefore, noble Lords will be able to discuss once again the details of the safeguards to be put in place as regards the impartiality of the Civil Service. I hope that noble Lords who have spoken this afternoon will contribute fully to the consultation that will take place in due course. However, for the present, I hope that the noble Lord will not press the amendment. I cannot agree to it for the reasons I have outlined—namely, it is technically deficient and does not provide the detail that is required properly to protect the impartiality of the Civil Service in Northern Ireland.

16:44

[Lord Lexden]

Can my noble friend confirm that she will consider most seriously the point made by the noble Lord, Lord Butler of Brockwell, about the extension to Northern Ireland of the 2010 Act, which, after 150 years, as he mentioned, finally enshrined in law the Northcote-Trevelyan principles of impartiality? I speak in part here as a member of the Constitution Committee of your Lordships’ House, which contains most enthusiastic supporters of the 2010 Act.

[Baroness Randerson]

I thank my noble friend for his intervention. I am fully aware of the noble Lord’s tremendous expertise and am very happy to take into account the point he made. I assure noble Lords that the Government will be taking careful note of everything that has been said here this afternoon.

[Baroness O'Neill of Bengarve (CB)]

Is the Minister willing to confirm from the Dispatch Box that, should the consultation reveal that public sentiment is not going to endorse the principles of Civil Service independence, it will not be the outcome of the consultation that is carried through but rather those principles for Civil Service independence?

[Baroness Randerson]

In public consultation in Northern Ireland, the Government look particularly at a consensus across parties and communities. Therefore, it seems to me highly unlikely that there would be a consensus of opinion—a broad agreement across parties and communities—that there should not be an impartial Civil Service. That would be highly unlikely. In that consultation, we would be looking for the details that we would require for proper safeguarding of the position of civil servants in Northern Ireland.

[Lord Butler of Brockwell]

I am very sorry to ask the Minister one more question. She said that there would be a further vote before devolution took place. Can she say that, if there is agreement that these principles should be applied, the effect of that vote would be to give them statutory force?

[Baroness Randerson]

It is the Government’s intention that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exists for England. I hope that satisfies the noble Lord.

[Lord Empey]

My Lords, when we started out on this amendment, I thought it was a very simple matter that would not be at all controversial. It just shows you that you never can tell around these parts. First, nobody in Northern Ireland has asked for this. The Assembly certainly has not made an approach. To some extent, the issue has come as a bit of a surprise. As I said—I think there is widespread acceptance round the House—the Northern Ireland Civil Service did a good and impartial job. There are a number of former Ministers in their places to confirm that, including the noble Baroness on the Opposition Front Bench, who ran a number of departments and has many years of experience. I accept that there may well be technical deficiencies in the amendment that the noble Lord, Lord Alderdice, and I have tabled. We are very happy for the amendment to be taken away and those technical deficiencies resolved. However, the Minister referred on a number of occasions to consultation. It is not clear to me what the consultation is on—whether it is the principle of devolution or not. To have a consultation on the merit principle would take us back to ground zero. If we do not or cannot accept that, we will pretty well have thrown in the towel.

I suggest that the Minister should look at this before Report because it is an issue to which we may well have to return. Everybody in the Chamber agrees, so it ought to be possible to resolve it. In that spirit, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Clause 10 agreed.

Clause 11: Northern Ireland Human Rights Commission

Debate on whether Clause 11 should stand part of the Bill.

[Lord Alderdice]

My Lords, this clause deals with the potential for devolution of certain aspects of the Northern Ireland Human Rights Commission. Human rights is a particularly important and sensitive issue in all jurisdictions, not just those in which there are conflicts. It takes on particular characteristics where there is communal and intercommunal conflict. I well remember discussions at a very early stage among the political parties and the two Governments, well before those with which George Mitchell and colleagues were involved—right back to the days of Sir Ninian Stephen, whom some of your Lordships will probably have forgotten. It was very interesting because at that stage four political parties and the British and Irish Governments were involved. It was fascinating that the four political parties could all agree that we needed robust human rights protections. It is generally not that difficult to get people, particularly opposition parties to agree. In those days, all the parties in Northern Ireland were opposition parties. If you say, “Do you want the rights of your people to be protected?”, they say, “Yes, of course”. If you say, “Do you want the rights of everybody else to be protected?”, it is difficult to say, “No, I just want our rights protected”.

The four parties involved at that stage all agreed and those who found it most difficult were the British and Irish Governments. They could see the implications of embodying this in statute and setting up human rights commissions, and so on. What is important about that is that when people are in government they have a very different perspective on human rights from when they are in opposition. This is why I have a real anxiety and wonder how much thinking there has been about the question proposed in Clause 11. I would be interested to know from the Minister who exactly has asked for this; certainly the Northern Ireland Human Rights Commission has not asked for it. If the Northern Ireland Government have asked for it, I am particularly suspicious—not because of the occupants of those offices but because, in principle, the point of human rights commissions is to speak truth to power and to challenge.

That is why in Scotland, it is not the Scottish Government but the Scottish Parliament that addresses these issues. I want to explore whether we are talking about devolution to the Executive—to government—of more control of the Northern Ireland Human Rights Commission, about which I would have considerable anxiety, or whether we are talking about the possibility that it might be devolved to the Northern Ireland Assembly, where a whole range of the community is represented by elected representatives. There is a sort of reason for this. One of roles and responsibilities of the Speaker of the Northern Ireland Assembly is that every piece of legislation, before it comes to First Reading, must have the Speaker’s approval that it conforms to the European Convention on Human Rights. Before the legislation leaves the Assembly, in case any amendments have been passed that change that, it must have approval again. At various stages, the Northern Ireland Human Rights Commission can intervene in the legislative process precisely to make sure that the governing parties cannot of themselves put into legislation things that do not conform to proper international human rights requirements.

I would be interested to find out where the drive has come from for this particular change. Is it a question of giving more power to the Northern Ireland Executive to control those who are supposed to hold them to account, or is it possible that we might look at devolution to the Northern Ireland Assembly? That would at least ensure that it was not those in government appointing those who scrutinise government, but rather that it was the Assembly as a whole. At least that would be some form of protection.

[Lord Bew]

My Lords, I support the concerns expressed by the noble Lord, Lord Alderdice. Clause 11 embodies a significant step towards the devolution of function in relation to the Northern Ireland Human Rights Commission.

I do not want to leap ahead to the amendment in my name and the names of the noble Lords, Lord Lexden and Lord Black. That will be discussed in its own time. There is, however, a particular irony here. The key issue in that amendment is the continuing reluctance of the Northern Ireland Assembly to accord to the citizens of Northern Ireland the same level of freedom of expression that exists in the rest of the United Kingdom since the recent passing of the Defamation Act 2013. It seems a heavy irony that we should be proposing to devolve functions related to human rights precisely at the same time as we have a denial by the same Assembly of what is a pretty sensitive question in this particular respect. I do not want to anticipate a later discussion but it is relevant to the points made by the noble Lord, Lord Alderdice. The timing of this seems at least a little odd.

[Lord Empey]

My Lords, I have some sympathy with the points made by the noble Lord, Lord Alderdice. This kept coming up time and again in the Haass process—and I am sorry that I did not have the opportunity to sell tickets for it at an earlier stage; I know it would have been a sell-out for many noble Lords. It goes to the core of what people feel about their cultural identity and how they express that identity. Everybody talks about human rights in that context. What might seem a relatively modest administrative change does have significant consequences, and it could not have been put better than by the noble Lord, Lord Bew.

[Baroness O'Neill of Bengarve]

My Lords, I declare an interest as chair of the UK Equality and Human Rights Commission. We have an asymmetric situation in the United Kingdom, whereby Scotland has a separate human rights commission reporting to the Scottish Parliament, as the noble Lord, Lord Alderdice, said; Wales does not have anything separate; and Northern Ireland has a human rights commission. However, the status of all three human rights commissions is jointly considered under the United Nations process. The A status of the human rights performance of the UK is an extremely important feature of our foreign policy. The fact that we retain an A status, despite the asymmetries and anomalies of the way in which we are structured at the moment, seems to make this a matter that deserves further consideration.

I know that the Joint Committee on Human Rights has given this some consideration along the lines that the noble Lord, Lord Alderdice, suggested—namely, that it might be better if the Northern Ireland Human Rights Commission, at present without a chair, were to report to the Northern Ireland Assembly. I take no view on this matter, but I think it is something that raises wider issues and needs further consideration.

[Baroness Smith of Basildon]

My Lords, I was taken by the comments made by the noble Lord, Lord Alderdice. I was surprised when he said that the Northern Ireland Human Rights Commission had not asked for this. He said that he had not really expected it in this Bill. I wonder if it was consulted prior to the Bill being drafted. Who else was consulted prior to this coming forward? Obviously, the impartiality and independence of the commission is crucial and must be both retained and maintained. The comments that have been made beg questions which I hope the noble Baroness can address and thus give the Committee some reassurance. I look forward to her comments and to being given some information on who was consulted prior to this move being made.

16:59

[Baroness Randerson]

My Lords, I thank noble Lords for their contributions on such an important topic. My noble friend Lord Alderdice emphasised the fundamental importance of human rights to the successful establishment of devolved government in Northern Ireland. I shall deal first with the bread-and-butter issues for the clause to stand part of the Bill.

Clause 11 moves certain functions relating to the Northern Ireland Human Rights Commission from the excepted to the reserved category. Human rights issues have long been politically sensitive in Northern Ireland and at the time of the 1998 Act it was considered that functions relating to the new commission should remain in the Secretary of State’s hands. In the context of stable devolved institutions and of their development in the future, it may become desirable in due course to devolve responsibilities relating to the NIHRC if the Northern Ireland political parties so wish and if the Secretary of State considers that the Northern Ireland institutions are better placed than the Government to carry out the functions concerned. Clause 11 will mean that the appointment, functions, procedures and funding of the NIHRC will be reserved.

The Government made a commitment, in their response to the Northern Ireland Affairs Committee’s pre-legislative scrutiny report on the draft version of this Bill, to consult formally on any future devolution of responsibilities relating to the NIHRC and the other arm’s-length bodies discussed prior to any such devolution taking place. I reiterate that commitment today. We will also ensure that the NIHRC retains its responsibility for the scrutiny of non-devolved matters relating to Northern Ireland such as national security and terrorism in the event of any future devolution of responsibilities for the institution.

We understand the concerns that have been expressed both in this Committee and elsewhere that in the course of devolution the independence and freedom of action of the NIHRC should not be compromised. Indeed, not only do we understand those concerns, we fully share them. The independence of the commission is essential to its effectiveness. Its international standing is high and reflects that independence. We are well aware of the importance to the commission itself of the Belgrade and Paris principles, and it is essential that those are abided by. I also ask noble Lords to consider the benefits of devolution. I understand the concerns, but I ask them to consider the benefits. We believe that if it can be accomplished without compromise to the independence and important international standing of the commission, it would be a good thing. It would show that the institutions have matured. After all, in 2010, we accepted that they should take responsibility for sensitive matters such as policing and justice. It is not outrageous, therefore, to suggest that they should be capable of accommodating the independent oversight of institutions, as indeed they already do in various areas such as that of the police ombudsman, with due respect for propriety. So we do not believe that it is unthinkable that, at some point soon, the devolved institutions in Northern Ireland should take on responsibility for the NIHRC, but we are not asking for decisions at this point. All that the Bill does is to make it possible for such decisions to be reached and for effect to be given to them at a later date. If that happens, it will be after full consultation, because these issues need debate in Northern Ireland, of which we have had very little so far. Devolution would require votes in the Assembly by cross-community support and in both Houses here, so we shall certainly come back to these issues before any act of devolution.

I shall respond to some of the points made by noble Lords. The noble Baroness, Lady O’Neill, referred to the current lack of a chair of the commission. In fact the position will be advertised in the immediate future, so this temporary situation will be rectified in the near future. The noble Lord, Lord Bew, referred to the issue of timing. We shall come back to this, because it is the topic of an amendment later in these proceedings.

My noble friend Lord Alderdice asked who had initiated this, and the noble Baroness, Lady Smith, made a similar point. The Government have had discussions with various Northern Ireland political parties about possible devolution of the commission. Officials have also discussed the matter with the chair and the chief executive of the commission, and I discussed it with them a couple of weeks ago. I emphasise that the Government believe that it is important above all that there is broad support across the community for devolution before it takes it place.

[Lord Alderdice]

My noble friend may be able to help me and the House with one question of information that I asked, on whether what we are being asked to do is devolution only to the Executive, or whether it would open the possibility of devolution to the Executive or to the Assembly.

[Baroness Randerson]

I apologise to my noble friend for omitting that. We are not looking at a precise model of devolution at this moment, because that, of course, is to be effected after consultation. However, we are well aware that devolution in Scotland has been to the Parliament and that that is a very successful model of devolution. It is sensible to follow successful models where they exist rather than to apply a different model. However, the details will be subject to further consultation and will become obvious after there has been full consultation.

Clause 11 agreed.

Clause 12: District electoral areas for council elections

Debate on whether Clause 12 should stand part of the Bill.

[Lord Empey]

My Lords, there is no question that, from an administrative point of view, having the district electoral areas dealt with by the same commissioner who deals with each individual ward makes sense. However, as has been mentioned in the context of other issues, this is a very significant development under proportional representation, because the drawing up of district electoral areas out of wards has two consequences. The decision on how many seats to award for each district electoral area has consequences under proportional representation, and which particular wards make up that DEA is also an extremely sensitive issue. There are grey areas in many respects.

You cannot of course go around in life with a conspiracy theory always at the front of your mind, but I have to say that current experience—within the past couple of years—is not encouraging. I refer to the recent reorganisation of local government, which I have previously referred to elsewhere. The recommendation of the commissioner was overruled in one case. In my opinion, a scandalous gerrymander has occurred in the city of Belfast, and barely a word is said. I have absolutely no confidence that the time is right for this particular function to be considered for devolution. A lot of people say they want the single transferable vote system of proportional representation but fewer people perhaps have had full experience of it. We have had 40 years of experience and understand the significance of deciding on the number of seats. For each local government area, you have a number of district electoral areas, each of which is a collection of wards. Those areas can include, in our case, five, six or seven; in the Irish Republic it could be four or three. Those decisions on the number are very significant. Equally, deciding which particular group of wards form the DEA is also significant.

In many respects, that can lead to putting the cat in charge of the cream, to be perfectly blunt. At this stage, I feel that this is not an appropriate thing to do. Recent experience, as I said, is not encouraging and we could start to create the particular problem which, as referred to, was a problem in the past. Do we really want to go back down there again? It is not a big deal—I have to tell noble Lords that the people on the streets are not talking of little else—and not a source of difficulty, so why move to a position where that could happen? The point might well be made that we have done our local government DEAs—we have just passed the order today—so this is not something that will arise in the near future. That is indeed true, but so what? If it will not arise, and will not be necessary right now or in the foreseeable future, we can wait. Whenever it does come round, and when is needed, we can hope things will have sufficiently matured politically so that anxieties such as the ones I am expressing today are no longer held by individuals. It is for that reason that I put down this proposal.

[Lord Alderdice]

My Lords, the noble Lord, Lord Empey, suggested that this is not a matter that is talked of every Friday and Saturday night in the pubs of Belfast. He is right about that, at this point, because it is not an issue. However, I have found in conversations with political friends and colleagues in the United States that districting is very much a matter of debate, because it is actually in place. You do not need to be a particular student of Northern Ireland history to know that manipulation of electoral boundaries and arrangements was a fundamental problem which led to many of our difficulties. I am a little puzzled as to why this has come up at this stage. I am delighted that we are 15 or 16 years on from the agreement, but we are not 15 or 16 years more mature than at the time of the agreement and it is quite clear that it is very difficult to reach agreement on a whole raft of issues in the Northern Ireland Assembly. I would feel much more relaxed about this if, over the past 15 or 16 years, we had passed a whole series of constructive pieces of legislation in the Northern Ireland Assembly and agreed on all sorts of community initiatives that had to be done, and if the walls of partition were coming down in the city of Belfast and the word “dissident”—whether loyalist or republican—was consigned to history and so on. In that case, I would probably not be standing up here.

However, I am not persuaded that the situation has changed so dramatically. If issues of flags, parades and the legacy of the past are bringing people out onto the streets, I fear that applying districting to Northern Ireland could well become a matter of enormous contention. I am not persuaded that adding this to the pot at the moment assists the parties in Northern Ireland in reaching agreement. It adds a further complexity and difficulty, and I am not persuaded that we need or could benefit from that at the moment.

17:15

[Lord McAvoy]

My Lords, Clause 12, with Clauses 10 and 11, will have the effect of converting some of the functions relating to certain arm’s-length bodies from excepted to reserved matters. This is a small change but it is right that we support it. It grants more power to the Assembly, allowing it to legislate on these matters, but only with the consent of the Secretary of State. The noble Lord, Lord Alderdice, is absolutely correct to refer to past difficulties. I would not accuse him of being pessimistic about the progress made over the past 16 years. However, there is a failsafe with the involvement of the Secretary of State.

The district electoral areas for council elections in Northern Ireland are in need of reform and rationalisation. It is only right that the Assembly plays some role in such rationalisation. The changes effected by this clause are a recognition and endorsement of the growing maturity of Northern Ireland’s political structures. It reflects faith in the ability of the Stormont Assembly to scrutinise changes properly and to reach cross-community consensus. Concerns have been raised over whether it is possible for the Assembly to oversee such important and sensitive changes. Again, this clause reflects the proper functioning of devolution within the framework of Northern Ireland. The clause recognises the ability of the Assembly to make decisions in the cross-community interest and to hold the Executive to account, while clearly outlining the responsibilities of the Secretary of State and Westminster in aiding and scrutinising change in Northern Ireland.

Any legislation by the Assembly regarding these matters will require the consent of the Secretary of State. Governments in Westminster will therefore be beholden to study extensively whether such changes truly have cross-community support within Northern Ireland. That is a big responsibility. This guarantees that changes to district electoral areas in Northern Ireland cannot be designed for the benefit of two or a handful of political parties, but in full accord with the guiding principle of the 1998 agreement—that of inclusivity. This is not Westminster abdicating responsibility in this area. Instead, it imposes a major responsibility on Westminster Governments to impartially scrutinise legislation from the Assembly.

Clause 12 should stand part of the Bill as the changes it makes are part of the process of normalising politics within Northern Ireland and accord a suitable and appropriate role to Westminster in this. The clause allows the Northern Ireland Assembly to rationalise local government electoral areas, but appropriately requires the Secretary of State to give assent to any of the Assembly’s legislation. This empowers the Assembly and endorses its ability to make inclusive decisions and scrutinise them. It also retains a vital role for the Secretary of State in the scrutiny process and allows her to make decisions when the Assembly cannot reach cross-community consensus. This short clause strikes an important balance between Westminster and Stormont in this sensitive area of boundaries and should stand part of the Bill. It is another step in a long journey.

[Baroness Randerson]

I thank noble Lords for their contributions to this debate. I welcome the support of the noble Lord, Lord McAvoy. I must address the concerns of the noble Lord, Lord Empey, and my noble friend Lord Alderdice, who have both expressed doubts about this proposal.

Clause 12 moves matters relating to district electoral areas to the reserved category. Noble Lords will be aware that in Northern Ireland local government boundaries are determined by the Northern Ireland Assembly following a report by the Local Government Boundaries Commissioner for Northern Ireland. Local government electoral areas are then determined by Westminster following a report by the District Electoral Areas Commissioner. The noble Lord, Lord Empey, clearly explained that the responsibilities are split at the current time.

It has been the clearly expressed view of successive District Electoral Areas Commissioners that this method of establishing district electoral areas could be improved. Separating out the two processes as I have described leads to increased costs, extends the timetable for boundaries processes by about a year, creates barriers to public understanding and participation, and reduces accountability in the process.

In concluding his December 2013 report, the most recent District Electoral Areas Commissioner, Mr Richard Mackenzie, noted that he had received a number of representations which were outside his remit. This indicated a lack of understanding about the difference between the local government boundaries and district electoral areas processes. He recommended that the processes of setting ward boundaries and electoral areas should be carried out simultaneously and under one authority. This proposal is for a process of potential rationalisation of a cumbersome system. The previous commissioner, Dr Maurice Hayes, also recommended that the reviews be combined. He believed this would lead to higher public participation and a reduced timetable for boundaries decisions.

Moving these matters to the devolved category would allow the Northern Ireland Assembly to rationalise the way in which local government electoral areas are set, subject to the consent of the Secretary of State. For example, the Northern Ireland Executive might create a single local government boundaries commission responsible for both local government and electoral area boundaries, such as exists in Scotland, Wales and England. However, electoral areas would continue to be set via legislation at Westminster in the event that the Assembly did not reach agreement on a suitable alternative model.

I am grateful to noble Lords for expressing their concerns about this. If the Government decide that it would not appropriate to devolve these matters, it may yet be appropriate for the Assembly to legislate on this issue with consent. I therefore resist the proposal by the noble Lord, Lord Empey, that Clause 12 should not stand part of the Bill.

Clause 12 agreed.

Clauses 13 to 20 agreed.

Amendment 4(rev)

Moved by

[Lord Shutt of Greetland]

4(rev): Before Clause 21, insert the following new Clause—
“Civic forum
(1) The Northern Ireland Act 1998 is amended as follows.
(2) After section 55 insert—
“55A Civic forum: establishment
The First Minister and Deputy First Minister shall consult with the civil and voluntary sector within Northern Ireland in order to bring forward proposals to the Northern Ireland Assembly to give effect to a working and effective Civic forum.”(3) In section 56 (civic forum), after subsection (2) insert—
“(2A) A motion for approval under subsection (2) shall be made no later than 1 April 2015.””

[Lord Shutt of Greetland]

My Lords, I see that this amendment has been reprinted on another sheet of paper and described as Amendment 4(rev). I have looked at the amendment on the main document and I see that “Civil” has become “Civic” I am rather in favour of a civic forum being civil as well. However, I turn to the substance.

The business of having a civic forum was set out in paragraph 34 of strand 1 of the Belfast agreement. Earlier today we heard the Minister say that the principles of the Belfast agreement are fundamental. The Civic Forum was then enshrined in Section 56 of the Northern Ireland Act 1998. The problem is that, in terms of that Act, it is almost an aspiration, or something that may happen between now and infinity.

A Civic Forum was established in October 2000 but it was suspended, alongside the Northern Ireland Assembly, in 2002. That is now 12 years ago and the Civic Forum is still not functioning. We must realise why it was put there in the first place. When the Belfast agreement came to pass, there were tremendous numbers of people in civic and civil society in Northern Ireland egging on that there was an agreement and they wanted to be part of it. There is a sense that we are all in this together, but there are those who cannot bring themselves to be part of political parties. We know what has happened throughout our kingdom with membership of political parties. There are plenty of people who are interested in the political process and civicness but cannot bring themselves to be associated with political parties. An opportunity arises, under the Belfast agreement, for such people and those in non-governmental bodies, quangos and everything else to be involved in this forum. It will bring people together. We hear about there being a “shared future”—a splendid phrase—in Northern Ireland. The establishment of the Civic Forum will hold the political parties to making certain it is a shared future and not a shared-out future.

In 2013 the Northern Ireland Assembly passed two resolutions that the Civic Forum should be reconstituted. The amendment in my name is gentle but firm. It is gentle because it suggests there is time—up to 12 months—to re-form the Civic Forum and that there is further consultation. This is not putting it into legislation with a heavy hand. I hope we can, by legislation, make certain that the Civic Forum happens and is effective and that the principles of the Belfast agreement are fundamental. I beg to move.

[Lord Alderdice]

My Lords, I commend my noble friend Lord Shutt of Greetland and support his amendment. We have been discussing a number of amendments which go way beyond what was agreed by the Northern Ireland parties and the two Governments in the Good Friday agreement. There is some space for debate and discussion on those issues, but at least one of the parties which supported the agreement had the mantra that it has to be in the agreement; the Belfast agreement has to be fully implemented. Here, in one hugely significant element, the Belfast agreement is not being implemented.

One might ask why, if there was sufficient enthusiasm to get it into the agreement, it fell into disarray so quickly. One could look at the forum itself and whether it performed to its maximum; one could, perhaps, say the same thing about the Assembly. However, there was a dynamic there which may not be familiar to the House. During the long period of direct rule, the Government here at Westminster—the Secretary of State and members of the Northern Ireland Office—wanted to find some way to relate with the Northern Ireland community. There was great difficulty in relating with elected representatives who were, in any case, elected either to the other place or to local authorities because there was not an Assembly. It was very common to invite people from NGOs and civil society generally to drinks at Stormont and Hillsborough, and to discuss with people who were running sometimes very commendable NGOs what would be a good way of spending money locally, how things should be organised and who might be appointed to bodies.

17:30

I have to say that a considerable resentment grew up between politicians and those in political parties on the one hand and members of civil society on the other, because politicians felt that they themselves were often in danger and considerably exerting themselves—going out, knocking on doors, delivering leaflets and desperately trying to get votes—and then being ignored by the Government when it came to sharing things out, whereas those who did not go out to try to get votes but set up their own frequently unaccountable, though in many cases quite commendable, organisations were actually being favoured. So, when politicians started to take control of things after the Good Friday agreement, they were not in a mind to share them with anyone, certainly not those who they felt had been the beneficiaries of government largesse over a period of 20 or more years. There was antipathy towards the Civic Forum and civil society organisations on the part of the newly elected representatives in the Northern Ireland Assembly. So not only was there not quite the momentum that there might have been in the Civic Forum but there was a real antipathy.

Has that changed in any way? There are still feelings of that kind around, but I revert to the very first debate that we had in Committee about an Opposition. One of the difficulties when so many people are in government is that any opposition parties will be a minority, possibly in some cases a permanent one. If they are going to have an impact—noble Lords will recall that I raised questions about the amendment at that stage because of the lack of leverage that smaller parties had in the Assembly—then one way in which those who question the Government within the Assembly might gain some help, strength, leverage and public accord might well be if there were a civic forum that could also address these issues and might well also say, “Well, actually, here’s a situation where the Opposition in the Assembly may not have the numbers but they have the argument”. In this way, a civic forum could help the Assembly to strengthen its scrutiny function when a majority of Members of the Assembly were members of government parties, under any kind of arrangement based even loosely on the Good Friday agreement.

While we can understand where this important element of the agreement was not implemented beyond 2002, it seems that there could be a change that may well make it possible to bring it back into play. The Civic Forum will never be any kind of emulation of your Lordships’ House, but it may nevertheless be able to perform not a governmental, parliamentary or legislative function but still a useful one. In any case, we should all be trying to ensure the full implementation of the Good Friday agreement, because that is what most of the progress of the past 15 or 16 years has been based upon.

[Lord Empey]

My Lords, there is no doubt that the noble Lord, Lord Shutt, is correct that the Civic Forum was and is in the agreement. It fell into disuse in part because of the resentments that the noble Lord, Lord Alderdice, referred to. People said that many of these individuals were usurping the role of elected representatives, and that feeling persists. The other reason, though, was that it did not get off to a terribly good start. It did not distinguish itself during the relatively short period of its existence. That does not rule out having a look at it again, but I suspect that that was the reasoning.

Another issue, and we will be coming to this in the next amendment, is that if the agreement had been left as it was agreed, there would be strong pressure on those who signed up to it in principle to follow it. However, as we will be referring to in the next amendment, the Government unilaterally changed the agreement in 2006, so therefore a lot of people do not feel as obligated to the full agreement as they would have done prior to that happening.

Another point is that people are getting a constant stream of criticism about the costs of the Northern Ireland Assembly and its complications, and they felt, “Well, here we have another layer. Were we right to agree to this in the first place? Is it going to be too expensive? Do we really need it? With 108 MLAs representing the people, do we need this?”. That is the kind of argument, but there is no question of doubt about the fundamental point that the noble Lord Shutt, makes: it is in the agreement. It is not the only thing that is not implemented—I hear a sound from a sedentary position that I know may well emerge in a moment or two from this chrysalis and bring blinding light to the House. Those are some of the reasons why we are where we are.

[Lord McAvoy]

My Lords, once again the Labour Front Bench will come to the rescue of a Minister who is under siege from her own side of the House. I do not usually see myself as a knight in shining armour coming to the rescue of a Conservative Government, but there is always hope for sinners repenting.

I will be repeating a familiar refrain. The Civic Forum is a matter for the Northern Ireland Assembly and does not require legislation in this House. The 1990 Act gave responsibility for the creation of the forum to the Office of the First Minister and Deputy First Minister, and gave them the responsibility for scrutinising the body as well. Provisional arrangements for the Civic Forum were created and approved in this manner. These arrangements also established that there would be a review of the forum after one year of its operation. This was deferred until 2002, but unfortunately the suspension meant that that was not completed.

Since 2007 the Civic Forum has once again been under review, and surely a six-year to seven-year review tells a story of its own. The review was initiated by the Office of the First Minister and Deputy First Minister. This decision and the review have rightly been approved, scrutinised and debated by the Assembly. The transitional Assembly’s Committee on the Preparation for Government concluded that a review of the mechanism for civic society to promote its views was necessary. Here, sad to say, the opinions expressed by the noble Lord, Lord Empey, about the role in society of quite a large Assembly raise necessary doubts. It serves some nebulous cause to have a good thing in operation, but on the other hand we have to be professional and sharp about things and not just have bodies just for the sake of them. Anyway, as I said before, this comes under the aegis of the Assembly.

The best way in which to engage with the community in the political process is surely a matter for the Assembly and Northern Ireland politicians to decide upon. There are indications that there is a nationalist/unionist split—I use the terms roughly—about the worth of the forum and whether it should be reinstituted. As the noble Lord, Lord Empey, said, in this era of austerity the costs of an extra, subsidiary body have resulted in some doubts about it as well. Once again, though, I say that the initiative must come from the Assembly. This is devolution in practice.

I regret that I have not been able to support the noble Lord, Lord Shutt, because he has a respectable record on Northern Ireland issues. No one doubts his concern about the Northern Ireland situation or his anxiety to contribute to that process. I respect his record on Northern Ireland and genuinely regret that we have not been able to support his amendment on this occasion.

[Baroness Randerson]

I thank my noble friend Lord Shutt for his amendment and all noble Lords who have contributed to a short but interesting debate. As my noble friend highlighted, the community and voluntary sector plays a vital role in Northern Ireland society, as it does in my home country of Wales and in other parts of the United Kingdom. Alongside the important services it provides to citizens, the community and voluntary sector can be particularly influential in informing debate and helping to shape our society. I believe that is what led to the Civic Forum being established under the Belfast agreement. However, as noble Lords have already said, the Civic Forum has not always commanded the support of the parties in Northern Ireland. In its short existence between 2000 and 2002, the forum met a total of 12 times and produced a number of papers on various issues. There was a wide range of useful papers. For some in Northern Ireland that was seen as beneficial and important in delivering good government but, as the noble Lord, Lord McAvoy, has just pointed out, for others it was seen as poor value for money. Others also pointed to it being ineffective.

Whatever the situation, the Civic Forum fell by default when the Assembly was suspended. I believe that the disagreements on how effective it had been are what prompted the First and Deputy First Ministers to initiate a review of the Civic Forum in 2007 which would make recommendations on the way forward. As noble Lords will be aware, that review has never been published but that has not quelled the interest of the parties at Stormont on progress around the Civic Forum and, as my noble friend Lord Shutt pointed out, it was debated last year in the Assembly. What was clear from that debate is that there is no clear consensus to this day on the merits of the Civic Forum or the manner in which it should be constituted in the future.

My noble friend Lord Shutt pointed out that political parties are not always popular these days as organisations to join and that civic involvement is often the favoured choice for members of the public. That is an important point and it points to the continued, or potential, significance of a forum if it were to be re-established. As the noble Lord has pointed out, the Civic Forum is an important component of the Belfast Agreement. His proposed amendment requires that the First and Deputy First Minister launch a formal consultation on the Civic Forum. I expect they may argue that this has already been carried out through the review which they launched in 2007, although the current status of that review is unclear. I say to my noble friend that I reread the Belfast agreement at the weekend and it is quite clear that this is an issue for the executive and the parties at Stormont to agree, as the noble Lord, Lord McAvoy, said. Ultimately, the onus is on the parties at Stormont to agree a way forward on the Civic Forum.

If the Civic Forum is to reappear, it would be essential for it to have a clearly delineated role. It would be especially useful to agree that beforehand. That prospect would obviously follow only from the review undertaken by the First Minister and Deputy First Minister, which has never been published to this day. We are therefore speculating about a potential re-establishment which, although still under active consideration within the Assembly, is in my view some way off—if it is on the horizon at all. This is very much an issue for the parties at Stormont. I thank the noble Lord for raising the issue and hope that, in doing so, he has given the issue some renewed impetus. I hope that the parties in Belfast will take notice of our debate here and the comments of your Lordships this afternoon. In the mean time, I ask my noble friend to consider withdrawing his amendment.

17:45

[Lord Shutt of Greetland]

My Lords, I thank the three noble Lords who have spoken, and the Minister. I understand that it is always possible to put up an argument against something. Costs have been raised. There are plenty of costs in Northern Ireland that I could have a go at before getting at the costs of a body such as the Civic Forum. The reduction in numbers of those who are going to be involved in local government is another reason why setting up the forum would be right.

[Lord Lexden]

Am I right in my understanding that members of the Civic Forum were unpaid and, if that was the case, that its re-creation would add little, if anything, to public spending?

[Lord Shutt of Greetland]

I believe it was the case that they were unpaid. There was, obviously, a bureaucracy and there is no doubt that that was the cost of the Civic Forum. My noble friend is right to make that important point. If they were unpaid, I often wonder whether there was any point trying to get a group of people together at 10 am on a Wednesday if all those people were in work. They would be far better meeting at 10 am on a Saturday. I do not know what the position would have been on that but, if you have a body such as this, it is important that it should meet when it is convenient for such people to meet.

The Minister agreed that it is important that this has been aired; I am delighted that it has been. However, it beggars belief that a report produced in 2007 has not seen the light of day in 2014. The years from 1939 to 1945 are fewer than that but think of all that happened in that period. I cannot understand how it can be the case that no one said, “We have managed to put this report through the duplicator and get the reports done, so that they can be distributed to people who are interested”. However, there is more to do and, for the moment, I withdraw the amendment.

Amendment 4 withdrawn.

Clauses 21 to 25 agreed.

Amendment 5

Moved by

[Lord Empey]

5: After Clause 25, insert the following new Clause—
“Election of the First Minister
(1) The Northern Ireland Act 1998 is amended as follows.
(2) Omit sections 16A (appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election, 16B (vacancies in the office of First Minister or deputy First Minister) and 16C (sections 16A and 16B: supplementary).
(3) Before section 17 (Ministerial offices) insert—
“A17 First Minister and deputy First Minister
(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and deputy First Minister.
(2) Each candidate for either office must stand for election jointly with a candidate for the other office.
(3) Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.
(4) The First Minister and deputy First Minister—
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister. (5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office—
(a) during any absence or incapacity of the holder; or(b) during any vacancy in that office arising otherwise than under subsection (7)(a);but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding six weeks.(6) The First Minister or the deputy First Minister—
(a) may at any time resign by notice in writing to the Presiding Officer; and(b) shall cease to hold office if he or she ceases to be a member of the Assembly otherwise than by virtue of a dissolution.(7) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other—
(a) shall also cease to hold office at that time; but(b) may continue to exercise the functions of his or her office until the election required by subsection (8).(8) Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.
(9) Standing orders may make provision with respect to the holding of elections under this section.
(10) In this Act “the pledge of office” means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4).””

[Lord Empey]

My Lords, a few moments ago we were talking about the Belfast agreement and the obligation of those parties who supported it to uphold it. Undoubtedly, if you make an agreement you might subject it to a referendum, a subject regularly discussed in your Lordships’ House. We are getting in the mood now for all sorts of referendums. We had a referendum in 1998 and the agreement was agreed. However, that is not where it ended. One of the reasons we have difficulty is that that agreement was worked out after many months—in fact, years—of delicate negotiations. At the core is the concept of a partnership, which is the point that the noble Lord, Lord Alderdice, made earlier. I understand his point about designation and that he has an issue, but at the core was the concept of a partnership. That partnership was such that those at the top of the Government each had a hand on the wheel. That obviously made decision-making much more difficult but it was the only way that we could figure of getting people to consent to the re-establishment of devolution.

The noble Lords, Lord Kilclooney and Lord Alderdice, and others, sat at the table when these matters were discussed; the noble Lord, Lord Maginnis of Drumglass, sat there with the rest of us. We looked at these issues and came to a conclusion. We set out, as was set out clearly in the 1998 Act, how we were going to identify the First Minister and Deputy First Minister. These are the people who are charged with the responsibility of oversight and for steering the business of the devolved Assembly. They jointly chair the Executive.

In legal terms, the two personages are absolutely equal; there is no distinction between them. I know that clearly because, when I occupied the post for a short time with Seamus Mallon, the first issue we had to agree was the notepaper: you could not send out a letter from the department without both signatures. Because Seamus Mallon was the Deputy First Minister and I was coming in in place of the noble Lord, Lord Trimble, who was the First Minister, he assumed that his name would go to the left-hand side of the notepaper, and that mine would go to the right-hand side. I said, “No. I am not substituting for you; I am substituting for him”. Consequently, we were unable to send a letter out for a week. The settlement was that I went on the left-hand side as Minister for Enterprise, a post which I held in parallel with First Minister, and his name stayed where it was. That was a classic case. The point is that it is a partnership.

Unilaterally, and behind our backs in 2006, this process was torn up. In the original agreement, the First and Deputy First Ministers’ names had to go before the Northern Ireland Assembly in a joint Motion that they both be appointed to their respective positions. That meant that the Northern Ireland Assembly had to agree, by cross-community consent, who the First and Deputy First Ministers would be. The Northern Ireland Assembly now has no say in that. That was removed at a stroke and replaced by the current system, which is that whichever party is the largest from one designation and whichever is the largest from the other designation between them occupy the two posts. The Assembly is not involved.

What has happened? This turns all subsequent elections into sectarian headcounts. People go around the country saying, “If you don’t vote for me, Martin McGuinness will be First Minister”. Somebody else says, “If you vote for me, I can put Peter Robinson out”. The fact that there is no difference in the powers that either of them exercises is set aside. If we made any mistake in 1998, perhaps the titles that we chose for these two offices were wrong. We have created a hierarchy where no hierarchy exists.

However, that is how the system works. How it came about is another bone of contention. The agreement was agreed by all parties sitting around the table with Senator Mitchell. On this change, which radically altered the dynamics of devolution, my party was not consulted, the Social Democratic and Labour Party was not consulted and I suspect that the Alliance Party was not consulted. It may have applied to others, too. It was just done, and appeared in the draft of the Bill. It was not part of the St Andrews agreement; while it was part of the St Andrews agreement Act, it was not dealt with at St Andrews. It came out of nowhere; it was just produced as a deal and appeared in the Bill. When I saw it, I knew exactly what was happening and why. It was a major mistake, and people say to us that every part of the agreement should be implemented, when a part of the agreement that was implemented in good faith was simply torn up before our eyes, without our consent or knowledge.

I cannot say how strongly many of us feel about this, and it has contributed very much to the stalemate that we have. I understand that the Government were doing their best to get the show back on the road. I do not impugn the motives of the Prime Minister of the time who did this. However, it was a significant and unfortunate course of events, first, to create a row over nothing—when there is no difference between the powers of the two persons elected—and, secondly, to change the dynamics of electoral politics in Assembly elections much more in favour of sectarian headcounts than ever was the case before. Under the original proposals in the Belfast agreement, you would not have had a situation where the First and Deputy First Minister were elected without the consent of the Assembly.

Once you lose the link between the Assembly and the First and Deputy First Minister, they inevitably feel less obligated. That is a mistake. It is interesting that, in the Irish Parliament, the Taoiseach is elected by the members of the Dáil. You might say that if that is the case, it is the very last thing that I would want in Northern Ireland but it is not, because the partnership principle is paramount. If we made a mistake, we did so in the titles of the two positions. However, who could have foreseen that somebody would go behind your back eight years later, without consulting you or participating in any process whatever, and just produce a clause in a Bill out of nowhere? I hear so many speakers—the noble Lord, Lord McAvoy, and others—saying today, “Oh, this is the Assembly and we cannot do anything—it was part of the agreement”, or, “It was up to Stormont”, or whatever. That is true, but whenever it suited the Government they just made a change like that without a by-your-leave.

That is the rationale for the amendment. It is also almost, to the word, the same position that was adopted by the noble Baroness, Lady Harris of Richmond, who is not in her place at the moment. She pioneered a similar amendment in 2006, when the St Andrews agreement Bill was going through this House. She opposed the introduction of this proposal on the same grounds and I think that the then Opposition took the same view. That is the background, and why the amendment is before your Lordships.

[Lord Alderdice]

My Lords, I do not think that the noble Lord, Lord Empey, expects the amendment to be passed. He is raising it to make an important point.

I will briefly take his point from a slightly different angle, which is particularly important for people looking into Northern Ireland from outside. Everyone is familiar with the fact that the history of the 20th century in Northern Ireland was one in which a substantial minority felt that it was not fairly involved and a significant majority was constantly in control. That is largely true. However, from that came an assumption that if you could get an agreement that had support from the majority on the two sides of the community, it must be a good thing and should simply be accepted without too much argument.

That is a serious mistake. It is wholly possible to create an environment in which a majority rule in two sections of the community can be, if not as bad, certainly not very commendable. When we look at the majority in the community as a whole, we realise that that, on its own, is not satisfactory in a divided community. This is an issue way beyond just Northern Ireland. When people look into divided communities, whether in Syria, Israel/Palestine or other areas, they should not assume that just because you get a majority on each side that you have a satisfactory outcome. It may be more satisfactory than getting a majority from only one side, but it is not of itself a satisfactory outcome. When noble Lords look not just at this Bill but at other Bills, it is important to think about the implicit warning of the noble Lord, Lord Empey: solving the problem is not just a matter of satisfying a majority within each of the two pillars. On that, and on the principle behind it, he is right and not just for Northern Ireland.

18:00

[Lord Browne of Belmont]

My Lords, in Northern Ireland we currently have the longest period of stable government in a generation. What is detailed in the amendment tabled by the noble Lord, Lord Empey, simply takes us backwards and returns us to a position that was in the Northern Ireland Act pre-St Andrews. There is a legal requirement placed on the Assembly to provide a report on how the Assembly can be improved. My party would be reluctant to pre-empt the work going on in the Assembly to review their workings and all the political institutions by supporting an amendment such as this.

None of the other ministerial appointments, with the exception at present of the Justice Ministry, require cross-community support so it seems rather odd that we would isolate the First Minister and Deputy First Minister’s positions. Therefore, we oppose any changes in relation to this. Of course, one favours normalisation but not this bit-by-bit approach. It is important to take a comprehensive approach. If changes are to be made, one must look at the totality of the system so that the people are reassured that doing certain things is offset by other things. Therefore, I cannot support the amendment.

[Baroness Smith of Basildon]

My Lords, this is an issue that the noble Lord, Lord Empey, has returned to in the past and I am sure he will do so again. I do not feel we can support it here today. Clearly, as I recall, the time leading up to the St Andrews agreement was tense in Northern Ireland. I seem to recall various deadlines in reaching agreements so that the Assembly could be re-established after what was then four and a half years of suspension—a situation that nobody wanted to be in at the time. The agreements made there were not just agreements made there and then. There were discussions for several weeks after, before the legislation came to your Lordships’ House. My noble friend Lord Rooker took the legislation through your Lordships’ House at that time. Legislation giving effect to the St Andrews agreement and ongoing discussions was passed by both Houses.

The noble Lord, Lord Empey, whom I have known for many years—indeed I followed him into his department, DETI, in Northern Ireland—has never been a great fan of the St Andrews agreement. He has had criticisms of it for some time. However, there is no doubt that that agreement led to the re-establishment of the Assembly and the process we have now. I really feel that it is not appropriate to unpick just some parts. The noble Lord, Lord Browne of Belmont, made an important point about the ongoing review by the Assembly. However, it would be unfortunate in this legislation to unpick one part of the St Andrews agreement, even though I understand the concerns raised, and it is not something that we will support today.

[Baroness Randerson]

I have listened with great interest to noble Lords. I will keep my comments short because noble Lords who have taken part in the debate have spoken with the advantages of experience and expertise, which come with having been part of the events that we are discussing. They were key actors in the events. Therefore, the role for me here is to lay out the Government’s point of view on the amendment. In this, we agree with the noble Baroness that it is not appropriate to unpick one part of the agreement.

Noble Lords will be aware that the Government opposed amendments on this issue in Committee in the Commons, and that is the position they intend to maintain today. I recognise the noble Lord’s strongly held views on this matter and I can sympathise with a lot of what he and my noble friend Lord Alderdice have to say. In some ways, it may be a welcome change to revert to the pre-St Andrews method of electing the First and Deputy First Ministers of Northern Ireland, involving as it did an overt demonstration of cross-community support and—as the noble Lord pointed out—the involvement of the Assembly.

However, the St Andrews agreement, and the subsequent legislation, is the basis on which devolved government was restored in 2007. The arrangements by which the First Minister and Deputy First Minister are nominated by designations in the Assembly emerged at St Andrews. This was a change, as the noble Lord said, from the 1998 agreement. There was one change subsequently, with the effect that the largest party in the Assembly nominated the First Minister, but the basic principle comes from St Andrews and I do not think we should now move from it. It would be highly disruptive. The reality is that such changes as those proposed by the noble Lord would require a degree of cross-community support that is still lacking.

[Lord Maginnis of Drumglass (Non-Afl)]

I am grateful to the Minister for giving way. Would she accept that the Belfast agreement was voted for by the people of Northern Ireland as well as by the people in the Irish Republic? Would she also agree that St Andrews was never voted on; that it was in fact a sleight of hand—a carve-up between the two parties—that would not allow, and preached against, the Assembly having any virtue; that that is what we are left with now; and that the chances of making any progress if she continues with that recipe are virtually nil?

[Baroness Randerson]

I accept of course that the Belfast agreement was voted on on both sides of the border and, as the noble Lord has pointed out, the St Andrews agreement is in a different category. As the noble Baroness pointed out, it was a response to an urgent and difficult situation. It was not an agreement dealing with things as one would ideally wish them to be, but an agreement dealing with a very difficult situation. However, I take issue with the noble Lord that there has not been progress. I understand frustration at lack of progress—I think everyone who is involved with and visits Northern Ireland might feel that frustration—but there is progress. When I look back at what the Northern Irish devolved Government was like in about 2000, maybe 1999, they have moved on significantly in that time. With every year that passes, they become more secure. As the noble Lord, Lord Browne, pointed out, this is the longest period of stable government we have seen in a generation.

At the moment, it would reopen old debates, risk destabilising politics in Northern Ireland and divert attention from the important challenges that Northern Ireland faces, if we were to revert to the old method for electing the First Minister and the Deputy First Minister. I should like to concentrate noble Lords’ minds for a moment on the new challenges that Northern Ireland faces, which are the importance of rebalancing the economy, reducing social division and building a properly shared future. Therefore, I ask the noble Lord if he would be willing to withdraw his amendment.

[Lord Empey]

My Lords, I thank the Minister but may I say several things because there is an issue of fact that needs clarity here? The current method of electing or identifying the First Minister and the Deputy First Minister does not come from the St Andrews agreement. It was not discussed at St Andrews—let us be very clear about that—but emerged after a deal between Sinn Fein and the Prime Minister of the day. I want to make it absolutely clear that it was not dealt with at St Andrews. Therefore, if we are to talk about unpicking, the unpicking was the removal of the process that was voted on by the people in 1998. However, it was never part of the St Andrews agreement, which was an agreement between two Governments, not between the parties. I want to make that absolutely clear, because if that is the case, it makes a major difference. It emerged as a deal subsequent to St Andrews.

[Lord Lexden]

Can the noble Lord say whether the current arrangements were debated at any stage by the Northern Ireland Assembly itself? If it held such a debate, did it endorse that which now exists, or did it reach some other conclusion about them?

[Lord Empey]

I cannot recall a debate of that nature, but other noble Lords are present who were Members of the Assembly then. Perhaps they can jog my memory, but I do not recall it.

I repeat: this was never part of the St Andrews agreement. I understand and accept that Governments were faced with a terribly difficult situation: they had to get restoration. However, we must remember why there was instability in the first place. We still had people who were prepared to threaten us with terrorism, and other people who opposed the very agreement that established the Assembly. Leaving that to one side, the original unpicking was done by the removal of the original process in the agreement, and it was never part of the St Andrews agreement.

However, I have made my point. I welcome the longevity of the current Assembly, of which I was part, and I know that we are all glad that it has survived. That is not a mean achievement, and I would not take it away from anybody; it is a very significant achievement, which I welcome. However, survival is one thing but good governance is another, and we have to balance the two. With that, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by

[Lord Empey]

6: After Clause 25, insert the following new Clause—
“Amendment of Crime and Courts Act 2013
(1) The Crime and Courts Act 2013 is amended as follows.
(2) In section 61 (short title, commencement and extent), for subsection (18) substitute—
“(18) Part 1 of and Schedules 1 to 4 to this Act extend to Northern Ireland.”
(3) Omit Schedule 24 (the NCA: Northern Ireland).”

[Lord Empey]

My Lords, during the passage of the then Crime and Courts Bill through this House I asked the noble Lord, Lord Taylor of Holbeach, who was answering that evening, what he would do in circumstances where the National Crime Agency did not extend to Northern Ireland. What would the Government do if they identified a national threat in the event that the National Crime Agency did not apply to Northern Ireland? His answer to me was that he would “act responsibly”. Quite a lot of time has passed, and I know that the Northern Ireland Office is in discussions with the Home Office and that they are working in consultation in Stormont with the parties that are objecting. I wish them well; I understand that it is a very delicate matter. However, let us be absolutely clear about the downstream consequences of this.

Not a large amount of time has passed since the establishment of the National Crime Agency, but to replicate the services that would be needed would cost the PSNI resources that it simply does not have and never will. Even if it was able to do that, it would lack the connectivity and intelligence that would be required in order for it to act effectively. I therefore put to your Lordships that while everybody has been prepared to be patient, to encourage and to wish the negotiations well—I hope that they are progressing—I would be very interested if the Minister could tell us what progress has been made. Are we any nearer to getting this dealt with? Just as we will deal with another amendment shortly, where Northern Ireland is becoming a vacuum as regards other issues, we cannot afford for it to become a vacuum where crime can establish itself and from which it can operate with impunity. I know that Customs officers and others have power to act and that they do, and that the border agency can act on the relevant matters—and that is fine. However, there are still whole areas outwith what the border agency and other intelligence services can deal with. It cannot be satisfactory to say that we have a National Crime Agency that is not national.

18:15

I therefore put it to your Lordships that we have here a gap in our defences as a country. I partly understand the reasons why the agency is not there. First, Sinn Fein will never agree to anything that is done on a national basis, particularly in this area—I might be wrong about that, and I hope that I am. The other party that objected to it has other reasons, and I hope that it will be possible to address them. However, at the end of the day, our objective must be to have the best security and anti-crime prevention that we can put in place. To have this gap in Northern Ireland creates a vacuum, which will be filled over time if it remains. However, I will hold the Government to the commitment that they made through the noble Lord, Lord Taylor of Holbeach, when he said that if circumstances arose in which there was a clear risk to the United Kingdom as a whole the Government would act responsibly. The question is: when will that time arise? I beg to move.

[Lord Alderdice]

My Lords, I have spoken on this issue before on a number of occasions. I did so right from the beginning, when the legislation first came forward, when it became apparent to me that there needed to be discussion not just with parties of Northern Ireland but with the Government of the Republic of Ireland, because we have a land border with them.

One of my concerns at home in the last little while has been that a new generation of people, including politicians, have come forward who do not know what had to be done in the past to reach the agreements. They do not understand the language and the choreography that was necessary. That is not just a matter for Northern Ireland. It is apparent to me that on this side of the water there are people in senior positions in government who do not realise what had to be done to reach accommodations in the past. For example, it was unthinkable, even in those days, that a Government—in which the noble Lord, Lord Hurd, who is no longer in his place here, served—would have embarked on a key issue of security policy that involved the border area without any discussion with the Government of the Republic of Ireland, and that was long before many of the agreements with which the subsequent political progress was made. The Labour Administration, particularly under Tony Blair, would never have engaged in some kind of agreement on security issues without discussing it with the Government of the Republic of Ireland. The Taoiseach and the Prime Minister had a very close relationship.

When I raised the question of whether there had been serious discussions between the Home Office and the department of justice in the Republic of Ireland—and I am talking about the Bill team stage, not after the legislation had been passed—I was astonished, because I was looked at as if it was an extraordinary question. Yet the responsibilities of the NCA will include border regions, and there is only one land frontier in the United Kingdom. I have raised that again and again, and I must say that from time to time Secretaries of State and Ministers—in particular I mention in dispatches David Ford, the Justice Minister—have worked extremely hard to try to ensure that the Irish Government were brought in to assist us in getting the agreement of some of the parties in Northern Ireland that find it most difficult to agree on those kinds of things. Therefore there have been efforts from within elements of the British Government here and from within the Northern Ireland Executive, but it is also clear that at some very senior levels there is no appreciation that you cannot simply take these things for granted within that part of the United Kingdom.

I support the noble Lord, Lord Empey, in raising this question, not because I think it should be dealt with in this particular piece of legislation, but—as he said earlier on, and it is true—because it is not every day that a piece of legislation relating to Northern Ireland comes forward without being governed by emergency provisions of some description and rushed through the two Houses. In fact, this is probably the first time in 16 years that we have had a piece of Northern Ireland legislation that has not come through under emergency provisions of some description. Therefore, it gives us an opportunity to raise these kinds of matters.

This is a serious issue: it is not going to go away; it has the potential to become more serious; and, unless the British Government relate with the Irish Government in trying to assist parties in Northern Ireland to achieve an outcome, I do not think it is going to be successful. I warned about this at the time and it did not seem to register, so it is no surprise that we are in the difficulty that we are in. People did not take the advice at the time; they did not think it was necessary. I hope they have learned and begin to take action. As I said, this does not fall in the lap of either the current or the previous Secretary of State for Northern Ireland because they actually realised the problem, but it was not in their bailiwick at the time. It was in that of another government department. They worked very hard, as did the Justice Minister, David Ford, but I hope the warning that the noble Lord, Lord Empey, has cited will be heard again and reverberate until we get a proper outcome for this.

[Lord Browne of Belmont]

My Lords, I am pleased to support the amendment of the noble Lord, Lord Empey, in relation to the National Crime Agency. Failure to extend the full operation of the National Crime Agency to Northern Ireland seriously jeopardises security in the province. Failure to extend the work of the agency to cover every part of the United Kingdom is the equivalent of putting up an “open for business” sign over the Province.

In the Police Service of Northern Ireland, we have one of the most accountable police forces in the world, with constant checks and balances, scrutiny and high-level review. With the introduction of the National Crime Agency, this high level of scrutiny would continue. The head of the National Crime Agency, under statute, would appear in front of the Northern Ireland Policing Board once every year. Significantly, the NCA could not operate in devolved matters at all without the instruction of the chief constable. Despite these control mechanisms, some politicians in Northern Ireland have constantly blocked attempts to allow the full operation of the NCA. That leaves those involved in all levels of organised crime in a much better position than they were previously. A fully operational National Crime Agency would be a vital tool in tackling serious and organised crime such as human trafficking and the illicit drugs trade and in preventing terrorist attacks. At a time when my noble friend Lord Morrow is working tirelessly to stamp out human trafficking in Northern Ireland, it is vital that an operational agency is in place that can support this work. Therefore, I support this amendment.

[Lord Lexden]

My Lords, a most important note of warning has been sounded by my noble friends Lord Empey and Lord Alderdice. There can surely be no more important issue of concern to the whole United Kingdom than the national security of us all. It is intensely worrying that, in one part of our country, the national interest is not being secured fully and effectively. That is the simple point at issue. The principle is the same as applies to the amendment in my name to which we are coming shortly. We have in this House the right to look to all those involved in the Government and the law-making processes in Northern Ireland to do everything possible. In no area is it more important than this: to secure the total interests of the United Kingdom as a whole.

[Baroness Smith of Basildon]

My Lords, I find myself in great sympathy with the amendment posed by the noble Lord, Lord Empey. He and I have discussed this before. I regret that my experience of trying to raise this issue with Ministers was identical to that of the noble Lord, Lord Alderdice. I was leading for us on Home Office issues on the then Crime and Courts Bill, and when this issue first came up I raised it with Ministers on the Bill team. The advice I was given was not to draw attention to it. That is pretty horrendous, because people knew there were concerns and issues to be addressed. I believe that early intervention and early political engagement from both Governments could have addressed those issues.

On a number of occasions, on the Floor of this House and outside, I asked Ministers about it and found myself in the curious position of discussing with Home Office Ministers what was happening and being told it was a matter for the NIO; and when I raised it with the Secretary of State at the briefing on Northern Ireland issues, I was told it was a matter for the Home Office. So the NIO was telling me it was the Home Office and the Home Office was telling me it was the NIO, and I was really worried that this just fell between two stools.

Devolution does not mean disengagement. The British Government had a responsibility when setting up the National Crime Agency—or, as I now call it, the nearly-National Crime Agency, because it is not a national crime agency—to ensure that very early on, when the proposal was first discussed, there were discussions between both Governments and between the political parties. I hold David Ford in very high regard; I regard him as a friend. He is, however, one person in one Government. In the old days, under the Labour Government, there would have been political engagement and political discussion on something as important as this. As the noble Lord, Lord Empey, and the noble Lord, Lord Browne, have indicated, the difficulties and the problems are not just for Northern Ireland, but also for those who are genuinely trying to fight crime across the whole of the UK, who are finding themselves hampered because of this gap in provision in Northern Ireland because the Government did not properly engage. Therefore, I support the principle of what the noble Lord, Lord Empey said, but I do not feel that I can support it as a whole because there has to be that engagement first. Merely saying “it will apply” does not resolve the issue.

Will the Minister answer some questions? Can she tell me—and I think the noble Lord, Lord Empey, also referred to this—what has taken place since the legislation received Royal Assent to ensure discussions and engagement in Northern Ireland so that we can move to a position where the National Crime Agency is a genuinely national crime agency? What has happened so far? Also, what will happen next? Can she give the House an assurance that both Secretaries of State—the Home Secretary and the Northern Ireland Secretary—will engage in Northern Ireland to ensure that we can have a National Crime Agency that fulfils the needs of Northern Ireland in the way they should be met?

[Baroness Randerson]

I thank the noble Lord for this amendment because it has given us the opportunity to discuss a very important issue and it has given me the opportunity to clarify the position of the National Crime Agency in Northern Ireland. Given the sensitivity of policing in Northern Ireland, and the potential gravity of the impact of this amendment, I have assumed that this is a probing amendment. It was clear at Second Reading that your Lordships consider the role of the National Crime Agency in Northern Ireland to be of great interest and significance. That has been re-emphasised here this afternoon.

To be clear, the National Crime Agency is operating in Northern Ireland, but as a consequence of the Northern Ireland Executive’s failure to agree to take forward a legislative consent Motion, the Agency’s powers and activities in Northern Ireland to tackle serious and organised crime are restricted. The NCA is providing support and expertise to partners in Northern Ireland and continues to take forward its own investigations within the scope of the limitations on its powers and responsibilities. We, however, remain keen to extend its remit to cover crime falling within devolved responsibilities, if agreement can be reached on this within the Northern Ireland Executive; the Crime and Courts Act provides the necessary order-making powers to achieve this.

18:30

I turn to the amendment itself. Removing Schedule 24 from the Crime and Courts Act would in fact put us in the position of legislating on the NCA in Northern Ireland without consent. As the noble Lord knows, that is not something that we are prepared to do. Schedule 24 is about respecting the devolution settlement and the important convention that we do not legislate on matters within the competence of the devolved Administrations without their consent. It would not be appropriate to overrule the Executive on this matter or, indeed, in this way.

Although I am not persuaded by the need for this amendment, I recognise the objective that it seeks to achieve—that of securing a fully operational National Crime Agency in Northern Ireland which is unrestricted in its operational activities. The noble Lord, Lord Empey, is right to say that the NCA has expertise that the PSNI cannot match. For example, in fields such as cybercrime and in its connectivity with international agencies it goes to places that the PSNI is not able to. However, I hope the House will agree that it is equally important that this is achieved with the agreement of the Northern Ireland Executive and Assembly and with the appropriate safeguards for the agency’s activities to respect the devolution of policing in Northern Ireland.

The noble Lord, Lord Empey, asked for an update and other noble Lords also asked for the latest information. My noble friend Lord Alderdice raised the issue of the will to succeed on this issue. I emphasise that because this is a devolved process it is absolutely right that the discussions were led by the Northern Ireland Justice Minister, David Ford, to whom my noble friend paid tribute for his role in this. Government intervention in the process, whether during the then Crime and Courts Bill or now, would not be appropriate. Given the sensitivity of this matter, which is so central to the devolution settlement, we could have undermined discussions altogether. We must continue to support David Ford in his efforts and certainly not do anything to undermine them. He has continued to try to reach agreement with the nationalist parties on this. The Policing Board itself is currently considering the impact of the situation on policing in Northern Ireland and on the ability to detect crime.

I want to make it absolutely clear what the NCA is still able to do. While NCA officers are not able to be designated with the powers of a Northern Ireland constable, NCA officers in Northern Ireland are able to be designated with customs and immigration powers and will focus on serious and organised customs and immigration crime. The NCA in Northern Ireland still has tax powers under the Proceeds of Crime Act, so will continue to be able to remove any ill gotten gains accumulated through taxation, but civil recovery activity is restricted to non-devolved investigations. Examples include using its customs powers to target work on the importation of drugs and guns from outside the UK, and using its immigration powers to target human trafficking in Northern Ireland. Despite the considerable powers that the NCA still has, an unavoidable consequence of the failure to get agreement is that the capability of the agency in Northern Ireland is less than that available in the rest of the UK.

Comments were made by some noble Lords about the Government’s efforts to get agreement. We made a number of significant changes to the then Crime and Courts Bill prior to its introduction in order to encourage agreement. In recognition of the fact that policing is a very sensitive issue in Northern Ireland, we were willing to go further and make substantial changes to the NCA arrangements to reflect the situation in Northern Ireland. We remain hopeful that there will be further progress in the future and that this is not a closed issue because we accept, and agree, that the situation is not satisfactory. I urge the noble Lord to consider withdrawing the amendment.

[Baroness Smith of Basildon]

I asked a specific question about what arrangements had been put in place in discussions that had taken place prior to the Bill coming forward and what is taking place now. I appreciate that the noble Baroness may not be able to give me that information now but I am happy for her to write to me.

[Baroness Randerson]

I thought I had done my best to answer that question but I will, of course, examine the record tomorrow and if I can provide noble Lords with further information I will be very happy to write and provide further detail.

[Lord Empey]

My Lords, like most amendments at this stage in a Bill, this is a probing amendment. However, as I pointed out, this is a miscellaneous provisions Bill, and therefore noble Lords will seek to insert measures in it as the opportunity is available to do that. I think that is the tradition of the House and I am merely following in that wake.

In regard to this specific amendment, I will have to look at Hansard tomorrow but the Minister said, if I heard her correctly, that we could not, or would not, overrule the Northern Ireland Executive. Let us be very clear—Parliament can overrule any devolved Administration. Devolution means that part of our functions and powers are devolved, but it also means that they can be undevolved. We have a convention to which we normally stick, and I understand that. However, if the Minister is saying that the Government will not introduce any legislation on this matter in Northern Ireland, she is effectively giving Sinn Fein a veto over a crime issue. That is a very disturbing comment. I will check the record tomorrow and, if necessary, return to the issue at a later stage. However, when the noble Lord, Lord Taylor of Holbeach, answered my question on the Crime and Courts Bill, the clear implication of what he was saying was that, if progress was not made, the Government would have to take the national interest into account. That was the inevitable implication of what he said to me. If that is not the case and we are saying that whatever happens we are not going down this road, that in practice is a veto for Sinn Fein, which is not a very good thing to do in the interests of national security.

I hope that the Minister is listening. I wish the discussions that are taking place well. Those holding the discussions have not perhaps been dealt the best hand, and comment could fairly be made on that. However, let us not be under any illusions—the fact that we have an underperformance in this area in Northern Ireland, which is an inevitable outcome of the agency not operating totally and without limits, must mean, ultimately, that crime, like anything else—like nature itself—will fill a vacuum. We have enough people in Northern Ireland with certain skill sets. I need hardly finish the sentence as noble Lords know what I mean, but let us not encourage them. If there is no prospect whatever of our doing anything in this regard, that is not much of an incentive to those involved in the negotiations as we are throwing away their hand.

[Lord Maginnis of Drumglass]

Is the reality not that by resisting this amendment and the suggestions in it, there is again—I choose my words carefully—a behind backs hope and ambition that strand 1 of the Northern Ireland agreement will, by necessity, be infringed? Is that not the inevitable outcome? It has not happened yet.

[Lord Empey]

I know my noble friend Lord Maginnis is very sensitive that these matters have not been involved in negotiations. It just goes to show the interconnectivity between these different issues and how sensitive they are.

My objective here is not to make life more difficult for those holding the negotiations. I want them to succeed because I believe in the national interests. It is in the interests of everybody in the United Kingdom that they succeed. However, let us not throw away or indicate that under no circumstances would the United Kingdom Government take certain measures. If you do that you are giving people a guarantee that if they dig their heels in they can prevail. On that basis, and on the basis of checking the report and reflecting on what has been said, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7

Moved by

[Lord Lexden]

7: After Clause 25, insert the following new Clause—
“Defamation
(1) Section 17 of the Defamation Act 2013 (short title, extent and commencement) is amended as follows.
(2) In subsection (2), after “Wales” insert “and Northern Ireland”.”

[Lord Lexden]

My Lords, this is another probing amendment. As has already been mentioned, it raises the same principle that lay at the heart of the previous amendment—the incomplete implementation of a matter of vital national interest throughout our country. The amendment seeks to probe the Government’s response to the Northern Ireland Executive’s failure to implement the Defamation Act 2013—a failure for which the Executive have provided no clear or convincing explanation. I introduced a short debate in Grand Committee back in June on this issue. The Executive gave no account of their inaction then and have not done so since. This has been a story of evasion and irresponsible delay.

The House will recall the momentous significance of last year’s Defamation Act, which recently came into force in England and Wales, cutting them off from Northern Ireland where libel law is concerned for the first time in history. The Act makes the law cheaper and easier to use. It tackles the dire impact of the old libel regime on free speech and updates an antiquated area of law that was out of step with the rest of the world. It is a liberalising, modernising law that will confer lasting benefits throughout our society. It is wholly unjustifiable that the people of Northern Ireland, an integral part of the United Kingdom, should be excluded from the benefits and protections of this new law. It is important that the damage that this will do should be clearly understood. The Province’s exclusion will have harmful effects on six main aspects of its internal affairs.

First, jobs will be put seriously at risk. Some 4,000 people work in publishing in Northern Ireland and another 2,000 work in the broadcast media. Some of them will lose their jobs if media companies decide that it is too risky to operate in a jurisdiction that stifles freedom of expression and then move out of the Province. Secondly, thousands of ordinary people—citizen journalists, casual bloggers, social tweeters and those who produce news for their families on Facebook—will be exposed to the intense dangers of costly libel actions that can wreak great havoc on individual lives. Thirdly, new investment will be deterred. The companies leading the digital revolution are unlikely to invest money, which the Northern Ireland economy needs so badly for its future success, while the Province retains a law of defamation that is hopelessly out of date. Fourthly, those who teach in Ulster’s great universities and colleges will be deprived of the new defences for academic freedom that the Defamation Act confers. Will higher education in Northern Ireland be able to maintain its international reputation for excellence if academics face the threat of legal action for voicing controversial or unconventional opinions? Fifthly, the Executive’s failure to act means that UK publishers will face difficult decisions. They will either have to edit each edition of their newspapers separately in order to avoid being caught by outdated libel laws or they will have to withdraw their papers from sale in Northern Ireland. Sixthly, the Executive’s inaction is bad for democracy in the Province. That is the inevitable consequence of laws that inhibit investigative journalists because the dice are loaded in favour of wealthy or powerful claimants and their lawyers. When those under investigation hire lawyers, most regional and local newspapers almost invariably react either by sanitising their reports or dropping the investigation.

18:45

All these six implications of what the Executive have left undone matter profoundly. However, there is an even more fundamental issue at stake. The new dual system of defamation, overturning centuries of unity in our country, will create doubt and confusion in an area of law where absolute clarity is essential. There will be intense legal uncertainty as courts in different parts of our country seek to resolve the conflict of law across the Irish Sea and between the United Kingdom and the European Court of Human Rights in Strasbourg.

This calamitous state of affairs has naturally aroused widespread concern within Northern Ireland. To its very great credit, the Ulster Unionist Party has committed itself to achieving the only possible solution—the application of the new Defamation Act to the Province. To that end, the Ulster Unionist leader, Mr Mike Nesbitt, has introduced a Private Member’s Bill in the Northern Ireland Assembly. A wide public consultation has shown practically unanimous support for his Bill. Mr Nesbitt said:

“My consultation indicates only one per cent of the population agrees … the laws of defamation are as good as they can be. Apart from two or three lawyers, I am unaware of any real opposition to reform”.

We can help Mr Nesbitt more swiftly to the great goal he has set himself than the protracted and uncertain proceedings a Private Member’s Bill allow, particularly if the Executive are unwilling to reconsider their inadmissible position. Through the Bill before us today we can extend the new Defamation Act and all the benefits and protections it confers to our fellow countrymen and women in Northern Ireland without further undue delay. That is what this amendment provides.

Action by the Northern Ireland Executive could resolve the issue at once. As my noble friend Lord Empey has already said, it is contrary to the standing constitutional conventions that this Parliament should legislate in an area within the competence of a devolved legislature. However, here, as in national security, we are faced with a great national issue in which an overriding United Kingdom interest is at stake. I ask the Government to give this amendment the most careful consideration. I beg to move.

[Lord Bew]

My Lords, I support the amendment, which is in my name and those of the noble Lords, Lord Lexden and Lord Black. I support it very much for the reasons that the noble Lord, Lord Lexden, has given. I declare an interest as I served on the Select Committee of both Houses that worked on the defamation question in the year leading up to the Defamation Act which has recently passed. The committee was chaired by another Ulsterman, the noble Lord, Lord Mawhinney. Both of us feel a certain pain that the one part of the United Kingdom in which the Act is not effectively operating is the part from which we come. I feel a particular pain on the grounds that the noble Lord, Lord Lexden, has already referred to—that a key part of the Defamation Act was to enhance academic freedom. It consequently means that my fellow academics at Queen’s University in Belfast are now second-class citizens with respect to academic freedom as it is now being defined and protected in the rest of the United Kingdom.

There is an important point here with respect to the recent Haass talks. One of the key reasons why those talks failed in Belfast was around the issue of dealing with the past. Do we honestly believe that the antediluvian libel laws, which restricted freedom of certain key questions with respect to the past in Northern Ireland, should be maintained to improve understanding of the past? The idea is too ridiculous to consider for a minute.

Although I was deeply committed to the Defamation Act when it went through the House, I fully accept and understand that there are serious reasons why serious people had objections. I can respect that, but we are in a changed situation. As far as the bulk of the United Kingdom is concerned, this is now the law of the land. It places people in Northern Ireland in a different situation; it is not simply a matter of the merits or demerits of the old law. It is the new concrete situation that has been created by the change in the rest of the United Kingdom that I want to consider. On my way here I read the Belfast Telegraph in which a Member of the Northern Ireland Assembly referred to the debate that he knew would take place here this afternoon. That Member made a fair and certainly accurate point which I accepted, that this is a devolved matter for the Assembly. However, there are some things that are devolved matters for the Assembly which are, as it were, matters which stay in Northern Ireland, if I can put it like that.

Whether one approves or disapproves, the Northern Ireland Assembly’s view on gay marriage is an issue that is internal to Northern Ireland. Another issue that does not quite stay in Northern Ireland is the position of the Northern Ireland Assembly on abortion, which effectively means exporting many of Northern Ireland’s problems to the United Kingdom. None the less it can be argued that there are issues where the Assembly reserves its competence on devolved matters which affect only the people of Northern Ireland. In this case there is an “incoming” element—the United Kingdom media, which have to operate within Northern Ireland, and the greater risk to which they are now exposed. It has to be remembered that the people of Northern Ireland have many virtues, but not being naturally litigious is not one of them. I have put that as a double negative as I think that it is the most polite and accurate way of stating it.

There have been many major libel cases in Belfast over the years of the Troubles in which very heavy costs were paid out by our national media. Put ourselves in the position now of a Northern Ireland judge. In the past a Northern Ireland judge at least had the comfort that his job was to interpret the libel law as it existed throughout the rest of the United Kingdom. If a case comes up tomorrow, the Northern Ireland judge is now dealing with a much more difficult and complicated question. He will be dealing with media produced in the rest of the United Kingdom where certain assumptions now exist about what can and cannot be said and operating and trying to deal with a legal problem in a part of the United Kingdom where those assumptions do not exist. The Government have to think seriously about the almost intolerable position that the Northern Ireland judiciary will be placed in if it is left with this status quo. I do not know quite how one makes these judgments.

We have talked much about the European Convention on Human Rights and how it is part of the Good Friday agreement. It is also a part of the continuing responsibility of the Secretary of State in the Northern Ireland Office. The European Convention on Human Rights is significant in the important respect of the defence of freedom of expression. I remind the Government that under the conventions they are committed to, and under the terms of the Good Friday agreement, these issues of freedom of expression are potentially part of their remit.

[Lord Black of Brentwood (Con)]

My Lords, in supporting this amendment I declare my interest as executive director of the Telegraph Media Group, and I draw attention to my other media interests in the register. I believe that all those who have an interest in safeguarding jobs in Northern Ireland, who have an interest in the health of its creative economy—which is so often the motor of economic progress—and who have an interest in the quality of its governance, have great cause to be thankful to my noble friend Lord Lexden for tabling this probing amendment so that this issue can be properly addressed.

As my noble friend said, we last looked at it in a debate in June when I set out from the perspective of somebody involved in the media the profoundly damaging consequences of the Northern Ireland Executive’s inexplicable decision not to implement the Defamation Act in Northern Ireland. I do not need to go over that ground again, not least because my noble friend has summarised it so eloquently. I support absolutely his analysis of the six things that will flow from this decision. There is certainly no doubt in my mind that this quixotic decision will cost jobs. It will put off the vital investment that is needed to create a sustainable economy based on modern industries, and it will expose ordinary people in Northern Ireland—anyone who uses social media, which I suspect is the vast majority of the population there—to the intense dangers of costly legal actions that can destroy lives.

Three things have happened since we had that debate in June that make the case for action ever more powerful and urgent. First, as my noble friend said, has been the strong response to the consultation on Mr Mike Nesbitt’s Private Member’s Bill. It is a very thorough and very well publicised exercise that has produced an overwhelming response in favour of the Bill. I praise Mr Nesbitt for the way in which he handled the consultation so magnificently. People in Northern Ireland have clearly understood the dangers of the status quo and the need to bring Northern Ireland’s libel laws into line with England and Wales. The case was powerfully made out in the Belfast Telegraph today, as mentioned by the noble Lord, Lord Bew. So, the media are in favour of change. We now know that ordinary people are in favour of change. Civic society in Northern Ireland wants action, and international press freedom organisations have been queuing up to support change. The only stumbling block appears to be the Northern Ireland Executive, who, as my noble friend said, have never produced one compelling argument in favour of their position. That is the first thing. We now have a very clear view of public support.

Secondly, since the debate, there has been the sealing of the royal charter on press regulation. Since that took place in October, I understand that the Northern Ireland Executive have decided to opt out of the provisions, or rather not to opt in to them. I say that I understand because it is not easy to discern how, when or why the decision was taken. As noble Lords will be aware, I am no fan of the royal charter—completely the opposite because I believe that it has potentially long-term damaging consequences for press freedom. But I have to set my personal views on that to one side. The point is that the charter is now part of a hugely complex legal web, including provision of exemplary damages in libel and privacy cases that is now ensnaring the rest of the UK media. If Northern Ireland is outside of that and outside of the Defamation Act, that will produce massive legal uncertainty of the sort talked about by the noble Lord, Lord Bew. There will be uncertainty for the media, for litigants taking actions against newspapers, magazines or any other media, and for the wider creative economy. Uncertainty is the enemy of the law and it is also costly. It will cost jobs, as we have heard, and it will cost extra money for those seeking legal redress. So the decision on the charter compounds the problem over defamation in a way which will be deeply destabilising.

19:00

The third and most crucial point, which the noble Lord, Lord Bew, made, is that the Defamation Act has now been implemented, which was not the case when we last debated this matter. That means that many of the dangers which I and others have been warning about move rapidly from the theoretical to the real. The biggest risk, as has been alluded to by my noble friend Lord Lexden, is to the future of media plurality in Northern Ireland. As we all know, a healthy democracy requires a range of different voices to flourish. Yet that is now in real jeopardy because, in effect, we have two libel jurisdictions in the United Kingdom. As a result, in a very short time, UK publishers will have to confront a difficult choice. Either, as my noble friend Lord Lexden has said, they will have to edit each edition separately for Northern Ireland. That will often mean sanitising the copy, and readers and viewers in Northern Ireland will not always get the full story that people outside Northern Ireland might. Or else—perhaps simply for reasons of cost, which is, of course, a big matter for many hard-pressed media companies—they will have to contemplate withdrawing newspapers from sale in Northern Ireland. That is a very real issue and in many ways the clock is ticking so fast that we are at five minutes to midnight.

If Mike Nesbitt’s Private Member’s Bill does not proceed—and it seems that the Northern Ireland Executive and some of their friends in the Northern Ireland legal establishment will always find ways to kill it—then we will have to take legislative action here in order to avoid the very real dangers that will be done to media plurality in a part of our country that desperately needs it. I know that that sort of action is unprecedented, but not to take action would be a deeply irresponsible act in itself. I support the amendment.

[Lord Empey]

My Lords, briefly, I support the amendment in the names of my noble friends Lord Black, Lord Bew and Lord Lexden. This will come as no surprise. I believe that the consultation had more than 200 responses, which those familiar with this process will know is a big response. It was not only the quantity, but the quality and variety of those who responded that was very significant. The Minister has spoken about consultations today. I think the responses to the consultation on Mike Nesbitt’s Bill were greater than to the national consultation, because the penny has dropped and people have realised what the implications are. Some very serious players responded.

There has been a development in Northern Ireland which, on the surface, I welcomed at first. The Minister of Finance has asked the Law Commission to have a look at this. However, it has emerged that the timetable that the Law Commission is considering could take us into years. It is talking about another consultation, scoping studies, and so on. This could go on literally for years. In fact, it could supersede the lifetime of the current Assembly. In those circumstances, I think there is a lot of food for thought in this amendment, which I support wholeheartedly.

[Lord McAvoy]

My Lords, the noble Lord, Lord Bew, who supported the original decision, was characteristically frank and honest in indicating that there was heavy opposition to what is being proposed here. When you get that sort of difficult situation, you must resort—maybe that is the wrong word, but you must go back—to basic principles. The basic principle is that there is devolution in Northern Ireland. It is a difficult subject, but the Assembly and the Executive will need to take full, political responsibility for it. I have heard powerful pleas, but I am taken with the honest assessment of the noble Lord, Lord Bew, that there are serious differences and points of view on this. In that event, the Assembly must make its own mistake—if, indeed, this is a mistake. We have devolution, and devolution is the principle that we have to go by.

[Baroness Randerson]

I thank all noble Lords for their contributions and I thank my noble friend and the noble Lord, Lord Bew, for the amendment. This is a very important matter. When we previously debated it, I was struck by the very high level of expertise, and by the very real concern felt by many noble Lords about the fact that the law on defamation in Northern Ireland has not been reformed. My noble friend Lord Lexden outlined the legal and economic impact of the failure to extend the defamation law to Northern Ireland. He also emphasised legal uncertainty.

Several noble Lords referred to the fact that there are also differences in defamation law in Scotland. As the noble Lord, Lord McAvoy, has pointed out, this is the result of devolution. As a Minister, I can sympathise with the frustrations of noble Lords about devolution. It may be that the slowness of response in Northern Ireland is particularly frustrating on occasions. However, it is essential that we respect the devolution process, and part of that process is that you have different laws in different parts of the country. I am not suggesting that I regard it as a good thing that Northern Ireland has not updated its defamation law. I do not regard it as a good thing at all that Northern Ireland is in this position. However, it is important that we respect devolution and, under the Sewel convention, decisions on whether legislation in transferred areas should apply to Northern Ireland would normally fall to the devolved Administration. This repeats the arguments we had in our previous debate.

That does not mean we do not have a view on the matter. The Government have been active in encouraging the Executive to consider the need for change. As I indicated when we last debated this issue, there was contact at official level prior to the introduction of the then Defamation Bill to establish whether the Northern Ireland Executive wished to seek the approval of the Assembly to a legislative consent Motion. Following completion of the Bill’s passage, my noble friend Lord McNally wrote to the Minister of Finance and Personnel to commend the Act to him and to set out its benefits.

Noble Lords and many other organisations and individuals have highlighted concerns about the possible effects of there being differences in the law between Northern Ireland and England and Wales. My noble friend Lord Black pointed out that this is an area where it is particularly difficult to have different laws in different parts of the country. It is important that the Northern Ireland Executive assess the impact on their economy, and on academia in Northern Ireland, as the noble Lord, Lord Bew, said. It is also important that they take into account those key issues when deciding whether they wish to extend the legislation to Northern Ireland.

Several noble Lords have referred to Mike Nesbitt’s consultation in terms of its size and the quality of the responses. It is important to remember that 90% of those who responded to the consultation wanted the extension of the law to Northern Ireland. It is therefore important that Mike Nesbitt should be able to develop his legislation and take it forward.

Reference was made to the fact that Simon Hamilton, the Northern Ireland Finance Minister, has asked the Northern Ireland Law Commission to examine the matter and concerns were expressed about the timescale for this. It is something which of course the Government cannot influence, but it is important that we should encourage all those with an interest in this issue in Northern Ireland to pursue it as quickly as possible in order to provide certainty for academia, for the press—as my noble friend Lord Black mentioned—and for all those who are affected by the lack of an update to this legislation. It is clear that active consideration is now being given to it and, in view of the action being taken at Stormont and the devolved status of the issue, the Government cannot support the amendment. I am pleased that we have been able to debate the matter, and I commend the noble Lords, Lord Bew and Lord Lexden, for their continued efforts, but I respectfully ask that the amendment be withdrawn.

[Lord Lexden]

My Lords, I think that for the most part we have probed this issue most usefully, apart from the noble Lord, Lord McAvoy, who did not seem to want to probe it at all. We should be careful before concluding that this sovereign Parliament would be wrong in taking action, and doing so over the head of the devolved legislature, as I think that that is a principle that we must be very reluctant to accept. Devolution does not mean the abnegation of sovereignty by this Parliament.

In respect of Scotland, the existence of a separate defamation law is explained by its own historic body of separate law. England, Wales and Northern Ireland have hitherto always marched together. I have listened carefully to the Minister’s comments and I am deeply grateful to all those who have spoken to express their grave concerns about this issue both on the part of Parliament here and, more importantly, for the people of Northern Ireland. I will want to consider it further in conjunction with my noble friends who have spoken along similar, if not identical, lines to mine and decide with them what further action might be appropriate. On that basis, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

19:15

Amendment 8

Moved by

[Lord Empey]

8: After Clause 25, insert the following new Clause—
“Junior Ministers
In section 19 of the Northern Ireland Act 1998 (junior Ministers), after subsection (1)(b), insert—“(c) that any department exercising any of the functions specified in paragraph (b) shall do so under the direction and control of the junior Minister.””

[Lord Empey]

My Lords, I shall be brief. The power to appoint junior Ministers in Northern Ireland already exists. Junior Ministers are appointed by the First Minister and the Deputy First Minister and, while only two have ever been appointed in each Assembly and they have always exclusively been in one department, the Department of the First Minister and Deputy First Minister, that does not preclude them being in other departments. Indeed, it does not prevent the appointment of more than two. What I feel is lacking is that while junior Ministers could be appointed to more than one department simultaneously, I want to try to achieve in Northern Ireland the same thing as is available here, and even in Dáil Éireann. You can have a Minister who serves in more than one department, as we have in this House. The noble Lord, Lord Green of Hurstpierpoint, worked in the Department for Business, Innovation and Skills and the Foreign Office, and his successor does the same. Moreover, there are other examples in the Government.

The one thing that a junior Minister does not have is any executive authority. The junior Minister works exclusively for the Minister whose department he or she happens to serve in. What I am hoping to achieve is that, with the agreement of the relevant Minister, some power could be devolved to the junior Minister—they might be called a deputy Minister—so that that person can carry out a specifically indicated function. I shall give an example of what I am driving at. Years ago, we set up what was called the West Belfast and Greater Shankill Task Force, which was set up to deal with areas of deprivation. The thinking was that if you could prove to people in such an area that devolution worked, you would encourage support for it and you would improve the social and economic circumstances of that community. Invariably, a number of departments were involved. Two departments appointed the task force, one for which I was responsible and one for which, I think, Mr Nigel Dodds was then responsible. It meant that several departments were involved. What we had was a ring-around-the-roses of all these people being involved with the task force. While, obviously, the political situation over devolution did not help, the fact was that even after all those years, we were not able to get the outcome that we all wanted.

I thought it would be a good thing to be able to appoint a junior Minister in more than one department and, with the consent of the departmental Ministers, have some executive power in and of him or herself. Currently, such power is not available to a junior Minister. Executive power flows through the departmental Minister where the person is based. I want to find a practical solution by having someone in charge of tackling underachievement in particular areas, and for that individual to be able to deliver that responsibility rather than have it spread over a whole range of departments with different budgets, funding priorities and so on. I am sure that, having been there, the noble Baroness will know what I mean. That is the purpose of this amendment. I beg to move.

[Baroness Randerson]

I thank the noble Lord for his amendment and I recognise the importance of cross-government co-operation in addressing certain challenges in which several departments have a role. Indeed, as he has just said, there are several examples here in Westminster such as the Minister of State for Policing, Criminal Justice and Victims and the Minister of State for Trade and Investment. It is plausible that we should consider a similar approach in Northern Ireland, and the noble Lord has already highlighted some of the areas in which it could be most effective.

The noble Lord will recall that this issue was debated when he was First Minister in the Assembly in 1999, and a determination was made to appoint the junior Ministers in the Office of the First Minister and Deputy First Minister. Section 19 of the Northern Ireland Act 1998 already provides for what his amendment is intended to achieve. The section permits the First Minister and Deputy First Minister to issue a determination to appoint junior Ministers. It is conceivable that, in that determination, the First Minister and Deputy First Minister could specify that the junior Minister is appointed to lead on a particular issue and across more than one department. That determination could, for example, specify that a junior Minister would work alongside the Ministers for Regional Development, the Environment and Agriculture on issues such as—to take a very topical example—flooding.

Section 19 also provides sufficient safeguards around the appointments of junior Ministers. Subsection (4) requires that any determination on the part of the First and Deputy First Ministers be approved by a vote of the Assembly. As the Government read it, the amendment may open the way to encroachment by junior Ministers on the authority of departmental Ministers. That would be a significant departure from existing structures. As to junior Ministers contributing in other ways to the working of the Executive, the noble Lord’s points will have been heard. I hope that the noble Lord will agree that this is a debate that should now be taken forward in the Assembly. I hope that he will consider withdrawing his amendment.

[Lord Empey]

I thank the noble Baroness for her response. Of course I want this to be debated in the Assembly, but I take issue with the substance of her point that what we have currently does what I seek to achieve. The point on which we differ is that you cannot unilaterally give departmental power to a junior Minister. Each departmental Minister has certain functions, and they cannot and should not be usurped. An example is the attempt last year to usurp the functions of the Minister for the Department of the Environment. It would have to be clearly spelt out that no encroachment could be made on the powers of a departmental Minister unless that Minister consented, because the politics of this are very important. You cannot have a Minister from one party come into a department and take part of the departmental Minister’s powers away. That would be very dangerous. So I interpret things slightly differently from the noble Baroness.

All I am trying to do is to find a solution to a problem that I have identified. I accept that the debate should move to Stormont but I wanted to highlight it because a problem exists. It is easily solved. Flooding was an excellent example, but I think that the noble Baroness, Lady Smith, knows that the departmental system at home is very rigorous and substantial in number. Therefore, in trying to resolve some of these cross-cutting issues, we have to look for innovative and creative decisions. That is the rationale for my proposals. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendment 8A

Moved by

[Lord Empey]

8A: After Clause 25, insert the following new Clause—
“Victims and survivors
In Article 3 of the Victims and Survivors (Northern Ireland) Order 2006, at the end insert—“(3) In this Order references to victim and survivor shall not include an individual appearing to the Commission to be any of the following—
(a) someone who is or has been physically or psychologically injured as a result of or in consequence of their undertaking a criminal act in a conflict related incident;(b) someone who was in whole or in part responsible for an unlawful conflict related incident if that person took part in all or any of the planning or execution of that unlawful act.””

[Lord Empey]

My Lords, this is a more sensitive issue. We have had much discussion on the fate of victims and survivors, and one theme has transcended virtually all attempts to resolve it: that many victims and survivors feel that a victim is almost equated with a perpetrator. This amendment seeks to make it clear that any person who has been,

“physically or psychologically injured as a result of or in consequence of their undertaking a criminal act in a conflict related incident”,

is not a victim. It is not clear that that is the present position. Similarly, somebody who was involved in the planning of a conflict-related incident is guilty of an unlawful act and therefore should not be treated as a victim.

From the experience of the Haass process in recent months, and in particular towards the end of last year as we came to the close of the process, it is clear that a huge constituency of people feels, after all this time, that they see on their screens relentless pressure for inquiries, for the state to explain its actions and for the security forces to explain their actions and be accountable for them. Yet the average individual who has been a silent victim feels that they are not valued accordingly. For example, recently some Sinn Fein figures who were actively engaged in the terrorist campaign said, “Well, we are not terrorists or guilty of terrorism”. The implication was that the fact that they shot somebody—as some of them openly admitted they did—does not mean that they were terrorists. I do not accept that. There is a fundamental divide on that issue.

I believe that if somebody voluntarily engaged in a conflict-related act of violence or was involved in the planning of such an act, they cannot be classified or regarded as a victim. This amendment seeks to make that absolutely clear. It is a very modest proposal to set out that there is a difference between those who were actively involved in terrorism as perpetrators and those who were the victims. I beg to move.

[Lord Alderdice]

My Lords, I agree with the noble Lord, Lord Empey, that the issue of victims and survivors is a very difficult and delicate matter, and one that needs attention, but I do not feel able to go along with him on this amendment. There are many reasons, but at this time of the evening I shall restrict myself to a couple.

First, in discussing the needs of victims and survivors, two different issues have been mixed. I think this affected the Haass process as well. The first issue is the welfare, treatment, counselling and all that is involved in helping individuals who have suffered as victims—people who have been in bombings, shootings or attacks, or have observed them, or who have been affected through their families. These individuals need to receive appropriate care and attention, which has not been happening. This has never been given proper attention. I remember quite some time ago putting two Written Questions to the Secretary of State asking if had there had been any exploration of the sort of funds and resources that were required in other countries to deal with these kinds of things. The answer was no, it had not even been looked at.

There is no question that the care that individual victims need has not received the attention that it ought to have had. The health service, perhaps even more than the voluntary organisations, has not had the resources it ought to have had. I say that as someone who set up and ran a centre for psychotherapy to try to deal with a range of problems, including some of these difficulties. However, that is a separate issue from how a community as a whole deals with the impact of violence upon itself. That is different in kind. The two things are confused all the time, which is one of the reasons why we have not got anywhere with addressing this issue. I do not want to say more because it is a major, complicated and difficult issue, but I am quite clear that there are two separate questions. One question is in many ways not frightfully contentious, so it is surprising that so little attention has been paid to it, but the other is more complex and difficult. This amendment does not sufficiently distinguish between them.

The second reason is that there is a kind of black and white clarity in the amendment. That certainly applies in respect of certain individual circumstances; there is no doubt about that. You can point to particular circumstances in which it is clearly an iniquity that matters are dealt with in the way that they are. However, big cases of that kind do not necessarily make good law, because many smaller circumstances would be swept into an amendment like this. Because someone breaks the law—not necessarily in a major way—it does not mean that there should be no possibility of any kind of recognition of their situation.

19:30

For example, somebody can infringe the law in a minor way—maybe some young person who has been drinking too much throws a stone at a police car, or something like that—and there is a wholly disproportionate response. There is no real threat to anyone but they are shot dead or left brain-damaged. Would one say that there should be absolutely no question of any kind of compensation for that young person and their family because of some stupid thing that they did, when a wholly disproportionate reaction was observed? This is the kind of real problem that one has when one tries to put all the complexity of the circumstances of conflict into a simple black and white amendment, where you are either in or out. The reality is that things happen in the dead of night, with big crowds of people and some having drunk too much. A more recent example is perhaps of somebody involved in a flags protest. They are breaking the law but some wholly disproportionate kind of action is then taken. Is there to be no recognition of that at all?

That is the second problem I have with this amendment. It deals in a simple black and white way with something that requires a whole volume of complex legislation to deal with it. However, in making it clear that I cannot support the amendment, I do not want to fail to recognise that the noble Lord, Lord Empey, is pointing to perhaps the most difficult and complex, but least resolved and addressed, parts of the legacy of the Troubles. That is what he is doing and he is absolutely right to do it. It is a running sore that these issues have not received the attention that they deserve in all the ways that I have described. However, for the reasons that I have adumbrated, and some others, I do not feel able to support him on this occasion.

[Baroness Smith of Basildon]

My Lords, this is a very sensitive and complex issue. Of all the meetings and conversations I had and events that I went to when I was a Minister in Northern Ireland, the ones that had the most profound effect on me were those during the years when I was a Victims Minister from 2003 to 2006. If I look back, I think now that I was singularly unequipped to deal with some of the issues that I faced. People would tell me their life stories, what had happened to them and about the impact on them and their families. They would come from both sides of the community: I recall the anger of the Ballymurphy victims as well as the quiet resilience of those RUC widows left to bring children up on their own. Among all of them, I felt that it would be very hard for me to define who was a victim or who felt they were a victim.

I did some of the work on the definition taken in 2006, although my right honourable friend David Hanson took the order through. It is extraordinarily difficult to try to define who is a victim and who is not. I totally understand the comments made by the noble Lord, Lord Empey, having spoken to so many people affected by physical and psychological trauma and damage during the Troubles in Northern Ireland. On the point made by the noble Lord, Lord Alderdice, about people’s ongoing needs, there is that difference between individual needs and the collective needs of the community. I was also Health Minister at the same time. Trying to provide an adequate health service for the needs left by those 30 years is extraordinarily difficult. The challenge has not yet been met, in respect of both physical and mental health issues.

People who you talked to were scarred by what had happened to them and damaged by what they had seen and heard; some were damaged by what they had done themselves or by what members of their family had been involved in. An extraordinarily wide range of people were considered to be victims and felt themselves to be victims. That is why, in the 2006 Act, there was that fairly wide near-attempt at a definition. The definition we take is of those who felt that they had suffered as a consequence of those years. I am not defining some as having suffered more than others—clearly some have been through the most terrible and horrendous experiences and others have been able to cope better with what they have experienced. However, in each case, if somebody came forward and felt that their life had been altered and that they had suffered as a result, whether due to life-changing injuries or life-changing mental health issues, we did not feel able then, and I still would not know how, to differentiate any kind of hierarchy.

More than 3,000 people lost their lives and thousands more were injured and affected. These are sensitive and complex issues. Obviously those from Northern Ireland speak with far greater authority and understanding, and with direct experience, of the issues than I ever can, but our approach has been consistent and ongoing in support of a comprehensive and inclusive process to deal with the past. We stand by that and I hope that the Assembly has also asked for the British Government to be involved in that process. It would be a major step forward if the Government were to take a lead. There needs to be an inclusive and comprehensive process in Northern Ireland, covering the two areas that the noble Lord spoke about: one dealing with the physical needs and the other trying to help a community that is still scarred by what happened.

I remember many years ago, while Nelson Mandela was in prison, talking to a white South African involved in the ANC who had come over to talk to people. He commented on some people—white South Africans—who were hedging their bets, as I think somebody in the audience he was speaking to put it. Somebody said, “They’re just trying to save their skins”. He replied, “We’re all trying to save our skins”. There is a very similar situation in this case, with a whole community whose members are all trying to heal together. We have to have the British Government at the heart of that, with the Irish Government. There is a legacy of the Troubles that is difficult to address but, collectively, it can be done. It is not easy—there is certainly no consensus to start with and there are points at which it will be very difficult to gain consensus along the way, but it may be gained on very small areas.

I fully understand why the noble Lord, Lord Empey, has brought this amendment forward, but one of the difficulties with it is that definition. One of the things we looked at in 2006 was the issue of children whose family had perhaps been involved in terrorist activities and who were orphaned as a result or whose lives were changed. They were victims and, as children, were innocent. Once you get into definitions, it does become more complex. I remember a particular case I dealt with where a mother wanted her son, who had been accused of terrorist activities and had been shot by the Army, to be vindicated. That has now been done and it was totally accepted that her son was never in the wrong but had we taken the definition at that time, he would have been labelled a terrorist. Things have changed over the years.

We cannot support the amendment but we understand what is behind it. What I hope the Minister takes away from this debate is that the British Government need to be at the heart of a process. I know that the Assembly has called for that process and for talks on how we deal with the past to start. A wide range of people need to play their part in letting Northern Ireland deal with the past and trying to heal some of it.

[Baroness Randerson]

I think that noble Lords might agree with me when I say that the noble Lord, Lord Empey, has saved the most complex and intractable issue until last. In a sense, all the other issues we have discussed here today flow from the problems associated with the issue of victims.

The amendment moved by the noble Lord, Lord Empey, relates to the definition of a victim in the context of the role of the Commissioner for Victims and Survivors. Many noble Lords here today will have far more direct knowledge than I about the impact of the conflict in Northern Ireland on people’s lives over more than three decades. I recognise that those of us who do not have personal experience of the conflict must approach this debate with considerable humility and great care. I recognise the concerns that the noble Lord is making clear here today. Like the noble Baroness, I have met people in Northern Ireland who have explained to me the nature of the impact that the Troubles have had on their lives and the result of the conflict in terms of the damage that it has done to them. These are people who still suffer today.

Noble Lords will be aware of the recent talks chaired by Dr Richard Haass, where the right approach to dealing with Northern Ireland’s past was debated in detail. A key element of the approach taken during those talks was that victims and survivors should be central to any efforts to deal with the past. The Government commend the progress made by the parties in Northern Ireland in dealing with these issues during the Haass talks and I hope that progress will continue to be made in the future. As I said earlier in this debate, there are still meetings going on between the party leaders, and the Government remain hopeful that progress will be made.

The noble Lord, Lord Empey, has made a moving argument. However, the Commissioner for Victims and Survivors is the responsibility of the First Minister and the Deputy First Minister. Any change to the definition would require cross-community support in the Assembly. The Government are particularly anxious not to cut across the initiatives in the Haass talks. To address the issue here, in this Bill, might have a negative impact on the ability of the parties in Northern Ireland to develop an inclusive process of dealing with the past. I am sure that noble Lords will agree that the all-party talks, building on progress made by Dr Haass, still represent the best chance of making progress on these matters. In the mean time, I hope that the noble Lord will consider withdrawing his amendment.

[Lord Empey]

My Lords, I take the point that the noble Lord, Lord Alderdice, made about the differences between the recognition of the individual and the provision of services that can be made available to that person as a victim. However, there is a growing recognition that that has been an issue. My party leader, Mike Nesbitt, proposed at the end of last year a new mental health initiative where we could perhaps teach the rest of the world the expertise that we have developed in treating people because, sadly, we will all be facing the downstream consequences of the trauma caused by Iraq and Afghanistan. That will be coming before us and I do not think that, as a country, we have any grasp as yet of the scale of what people will face. Even now, 30 or 40 years after they were involved in the conflict, people, including those in the security forces, are still presenting with trauma. The noble Lord, Lord Alderdice, is a professional in this area and knows perfectly well what I mean.

19:45

I accept that whenever you try to define something it becomes very difficult to define what is right, who falls off and so on. The noble Lord quoted examples that were perfectly fair and reasonable. I understand them entirely. However, one of the issues that cause the vast majority of victims the most pain is what they see as the lack of equivalence between what happened to them and what is happening to the people who were the perpetrators. When they see politicians who openly admit to killing individuals prancing about on our television screens and glorying in what they did, that adds to their trauma and distress. It shows an absolute lack of sensitivity. My previous colleague, Michael McGimpsey, was the Minister for Health when we had the Bamford review on mental health, which showed that we could improve the services that are provided to the individual. I totally support that aspect of the argument of the noble Lord, Lord Alderdice.

It is not my intention, and was not my intention, to try and make life more difficult. However, the issue that causes the greatest hurt is this issue of equivalence. We must deal with it. It has come up in the House but it was not pursued to the finish. Perhaps it is unfinished business. Let us hope that it is unfinished business and that we can get an outcome. There are things that need doing, whether or not Haass produces an outcome. There should be common ground among us on that.

As we come to the end of what the Minister may feel has been a longish day, I hope that she will have some hard work to do after we have finished. On a lighter note, this is difficult to say, but I wanted to thank the NIO Bill team and the Minister for their availability during the last few weeks. I am waiting for the bolt of lightning to strike at any moment. However, I reassure her that, between now and Report, I will not go away, you know. I beg leave to withdraw the amendment.

Amendment 8A withdrawn.

Clause 26 agreed.

Clause 27 agreed.

Clause 28: Commencement

Amendment 9 not moved.

Clause 28 agreed.

Clause 29 agreed.

Schedule agreed.

House resumed.

Bill reported without amendment.

Inheritance and Trustees’ Powers Bill [HL]

Monday 3rd February 2014 Lords Chamber

Report

19:48

Schedule 1: Determination of the fixed net sum

Amendment 1

Moved by

[Lord Faulks]

1: Schedule 1, page 6, line 25, at end insert—
“3A (1) This paragraph applies where—
(a) a figure for the consumer prices index for a month has become available, and(b) the consumer prices index for that month is more than 15% higher than the consumer prices index for the base month.(2) The Lord Chancellor must, before the end of the period of 21 days beginning with the day on which the figure mentioned in sub-paragraph (1)(a) becomes available (“the publication date”), make an order under paragraph 3(1).
(3) But if the Lord Chancellor determines under paragraph 5 that the order should specify an amount other than that mentioned in paragraph 5(1), the Lord Chancellor is to be taken to have complied with sub-paragraph (2) if, within the period of 21 days beginning with the publication date—
(a) a draft of a statutory instrument containing the order is laid before each House of Parliament, and(b) paragraph 5(4) is complied with.(4) In this paragraph—
“the base month” means—(a) the month in which this Schedule came into force, or(b) if one or more orders under paragraph 3(1) have been made before the publication date, the most recent month for which a figure for the consumer prices index was available when the Lord Chancellor made the most recent of those orders;“consumer prices index” means—(a) the all items consumer prices index published by the Statistics Board, or(b) if that index is not published for a relevant month, any substituted index or index figures published by the Statistics Board.”

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I have put down an amendment to the Inheritance and Trustees’ Powers Bill that will amend the way in which the level of the statutory legacy is set. As noble Lords will know, the statutory legacy, referred to in the Bill as the fixed net sum, is the sum awarded to a surviving spouse for his or her future maintenance before any other part of an intestate deceased’s estate is shared with any other beneficiary. It is therefore important that it takes account of the prevailing economic conditions.

The Bill as introduced required the Lord Chancellor to make an order specifying the level of the statutory legacy at least every five years. The proposed government amendment would sit alongside the existing requirement but would oblige the Lord Chancellor to make an order short of the five-year deadline if the level of the consumer prices index, known as the CPI, rises by more than 15%. The purpose of this would be to allow for the statutory legacy to be updated more frequently in times of high inflation so that it more accurately reflects the cost of living.

The CPI, which is published monthly by the Statistics Board, will be judged to have risen by the requisite amount if a particular month’s figure is more than 15% higher than the CPI for the month when the Bill comes into force in the first instance, and then the month when the most recent order specifying the level of the statutory legacy was made. It should be noted that although the default position would be that the order would raise the statutory legacy so that it is in line with the rise in CPI, the Lord Chancellor will still be able to amend the level of the legacy in some other way. However, if he chooses to do this, he must first submit a report to Parliament setting out his reasoning for doing so. If an order is made because the CPI has risen by the necessary amount, this will signal the start of another five-year period within which another order must be made.

This amendment has a very similar effect to the one that was put forward by the noble Viscount, Lord Hanworth, during a meeting of the Special Public Bill Committee. Since taking up my ministerial post, I have considered that amendment and recognise the merit in providing for more frequent updates to the statutory legacy should this be required. I am grateful to the noble Viscount for his original suggestion. In those circumstances, I ask noble Lords to look favourably on this amendment. I beg to move.

[Lord Lloyd of Berwick (CB)]

My Lords, in his very helpful letter of 30 January 2014, the Minister referred to the amendment moved by the noble Viscount, Lord Hanworth, at a meeting of the Special Public Bill Committee on 16 December. He indicated that the present amendment is to the same effect.

These things go out of one’s mind so quickly that I have had to refresh my mind as to what took place at the two meetings that we have had. At our previous meeting on 13 November, the noble Lord, Lord Beecham, asked why the fixed net sum should be reviewed only every five years and not annually. The noble Viscount, Lord Hanworth, strongly supported that suggestion. Professor Cooke said that she would look into why the Law Commission had come up with the figure of five years in the first place. In her letter of 28 November, she explained the Law Commission’s reasons: on the evidence that it had received, five years was a compromise figure.

By the time of our next meeting on 16 December, the noble Viscount had drafted his amendment, but it contained two, quite separate features. It contained, first, the requirement of an annual review such as we had discussed at our first meeting, but it also contained the new feature of a compulsory order if the consumer prices index should increase by more than 15%.

There was support for an annual increase from the noble Lord, Lord Beecham, but doubts were expressed by the noble Baroness, Lady Hamwee. I took the same view as the Law Commission; in other words, that an annual review was too frequent, certainly if it led to an annual revision of the fixed net sum. There was very little, if any, discussion of what is now before your Lordships; that is, the proposal for a compulsory review if the index rose by more than 15%—I think that a passing reference to it was made by the noble Lord, Lord Plant.

In due course, the noble Viscount sought leave to withdraw his amendment, but said that he would come back on Report. It is now proposed by the Government that we should accept the second half of the noble Viscount’s amendment but not the first—I think that I understand the Minister right in saying that. There is to be a compulsory review if the consumer prices index is increased by 15%, but there is to be no annual review.

My only concern is that this new amendment now before your Lordships, confined as it is to the compulsory feature, was not considered in any way by Professor Cooke—at least not to my knowledge. However, it seems a sensible amendment, and I cannot imagine the Law Commission, had it been asked for its views, having any objection. It makes sure that the Lord Chancellor will in only limited circumstances be, as it were, brought up to the mark, even though he will then—again, if I understand the noble Lord correctly—have discretion as to the amount. In my view, this represents an improvement to the Bill and I therefore support the amendment.

[Baroness Hamwee (LD)]

My Lords, I will not be the only person in the Chamber this evening who remembers when mortgage interest rates were 15%, and very painful they were too. I have one question for the Minister, relating to the term “available” in proposed new paragraph 3A(1)(a). When does the figure become “available” within the meaning of the provision? Does it mean published or “available” to the public? The figure must be available to others privately before it is published. I do not know whether it means published in the sense that the consumer prices index uses the word “published”, but we need to be clear about how one identifies when a figure becomes available.

[Lord Beecham (Lab)]

My Lords, in Committee, I raised a number of issues and said that I would consider the position further before Report. I took advantage of seeking advice from leading counsel, Mr Nugee, who gave evidence to the Committee. I have to say that he received the same fee for his services as the Minister receives for his in his present capacity, and I am obliged to Mr Nugee for his advice. Having considered it, I am not proposing any further amendments today. He would perhaps be inclined to support such amendments but, taking things in the round, thought that the position that had been reached in Committee was reasonable.

We are discussing an amendment stemming effectively—I agree with the noble and learned Lord, Lord Lloyd—from the contribution of my noble friend Lord Hanworth. As I said to him just before we entered the Chamber, he has the law in his genes because his grandfather, the first Viscount Hanworth, was Attorney-General in the coalition and subsequent Conservative Governments in the early 1920s. Clearly, he has inherited that gene and deployed it to some effect. I have no difficulty with the amendment that the Minister has moved, but I have one query.

In Committee, I moved an amendment to Clause 1 which did not succeed because it referred to simple interest. Are the amendments now being proposed compatible with Clause 1 as it now stands, which appears to provide for the interest rate referred to in paragraph (B) of case (2) of the table to be the Bank of England rate? I may have misunderstood the original effect of Clause 1 and the amendment. I assume, but perhaps wrongly, that Clause 1 deals with the situation that the amendments now seek to modify. I just hope that the provisions are compatible but that, if they are not, perhaps by Third Reading we might have the necessary change. On the face of it—again, I may have misunderstood the position—the two are to some degree in conflict.

20:00

Be that as it may, I agree with the amendments. It is always a pleasure to be involved—this is only my second time—with a Law Commission Bill. It is a rather quixotic enterprise to tilt at Law Commission windmills, but I thank the commission and the learned—or, perhaps, not learned but effective—lady who presented the Bill and took us through it. I also thank the Bill team: I know we are not yet at Third Reading but, subject to the matter I have just raised, this is effectively the end of the road. Having said that, I support the amendment.

[Lord Faulks]

My Lords, I am grateful for the contributions to our short debate on this and for the thorough contributions to the Bill Committee which discussed these important, although relatively obscure to some, provisions.

The noble and learned Lord, Lord Lloyd, referred to the fact that Professor Cooke had not specifically considered the question of the 15% trigger. I can assure him, and the House, that she has now considered it and approves the amendment, which has her blessing as well as that of the Government. The Government think the 15% trigger is high enough to ensure that the level of the statutory legacy is adjusted only where there has been enough of a rise in inflation to warrant it. I, too, remember the days referred to by the noble Baroness, Lady Hamwee.

In answer to the question raised by the noble Baroness about the word “available” in new paragraph 3A of the amendment, this refers to the Statistics Board publication of the consumer prices index for a particular month. The index is published on the website of the Office for National Statistics. The monthly publication dates are published a year in advance.

I turn to the query of the noble Lord, Lord Beecham. Clause 1 refers to the interest payable on an unpaid statutory legacy. New Schedule 1A refers to the level of the statutory legacy overall. I understand that the different rates apply in different circumstances and are compatible. We will take cognisance of this matter and refer it back at Third Reading if there is any residual doubt on it.

[Baroness Hamwee]

My Lords, before the Minister finishes, I will test the patience of the House and say that I understand his common-sense answer, which was what I expected. However, I am not completely convinced that the Bill, incorporating this amendment, actually says that. I will leave that with him, as it is not very sensible for the noble Lord, Lord Ahmad, to go to and from the Box to answer a rather technical question. However, we are all such pedants in this Chamber that I know we all want it to be correct.

[Lord Beecham]

I follow the noble Baroness to take a little further our discussion on the impact of Clause 1 and the amendments. If I understand the noble Lord correctly, there are two situations. One will be governed by one rate of interest, as specified in Clause 1, and the other will be covered by these amendments. This raises a further question of why there should not be consistency, in terms of the interest to be calculated, in respect of what appear to be two separate situations. If they are not separate situations, there is a degree of confusion; if they are separate, there needs to be a rationale for having two different rates of interests. I invite the noble Lord to consider that before Third Reading. It may or may not need tidying up. On the face of it, there seems to be something slightly awry with the position we will be in when the amendment is passed.

[Lord Faulks]

My Lords, I accept the invitations from both the noble Baroness and the noble Lord to consider their points and come back, if necessary, at Third Reading.

Amendment 1 agreed.

Amendments 2 to 7

Moved by

[Lord Faulks]

2: Schedule 1, page 6, line 26, leave out from “Chancellor” to end of line 27 and insert “must ensure that the power under paragraph 3(1) is exercised in such a way that an order is made—”

3: Schedule 1, page 7, line 38, leave out “instrument” and insert “order”

4: Schedule 1, page 7, line 39, leave out from “index”” to end of line 44 and insert “has the same meaning as in paragraph 3A”

5: Schedule 1, page 7, line 46, leave out “paragraph” and insert “paragraphs 3A and”

6: Schedule 1, page 7, line 47, after “index” insert “(as defined)”

7: Schedule 1, page 8, line 1, leave out “that paragraph” and insert “those paragraphs”

Amendments 2 to 7 agreed.

House adjourned at 8.05 pm.