Grand Committee

Tuesday 30th October 2018 Grand Committee

Tuesday 30 October 2018

15:30

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

If there is a Division in the Chamber, the Grand Committee will adjourn for 10 minutes.

Further Education Bodies (Insolvency) Regulations 2018

Tuesday 30th October 2018 Grand Committee

Considered in Grand Committee

15:30

Moved by

[Lord Agnew of Oulton]

That the Grand Committee do consider the Further Education Bodies (Insolvency) Regulations 2018.

[The Parliamentary Under-Secretary of State, Department for Education (Lord Agnew of Oulton) (Con)]

My Lords, these regulations were laid before the House on 5 September. In the Technical and Further Education Act 2017 we introduced a special administration regime for the further education sector. This included provisions for insolvency in the rare instances that it might be needed. It has been some time since we have discussed further education insolvency in this place and it is worth taking the time to set out some context for the benefit of those less familiar with this regime and the primary legislation.

Colleges are statutory corporations but operate independently of government. They have the ability to raise debt funding in the same way as a commercial body, through bank or other lending, although they are not for profit. A financially resilient further education sector requires strong leadership and an efficient structure to operate in. Since 2015, we have been working with the sector to strengthen that leadership.

Additionally, through a programme of area reviews, we have supported the restructuring of the sector so that colleges can meet the needs of learners and employers in their area as efficiently as possible. The Government have supported the sector to share best practice and to help weaker colleges to improve and raise standards. Coupled with the FE strategic leadership programme offered by the Education and Training Foundation, the aim is to drive up professional standards in the sector to help colleges to improve quality and become better equipped to deliver sustainable provision serving local needs. The Government also provided access to a restructuring facility, set up in 2016, to support the implementation of recommendations that came out of the area reviews. As that work is coming to an end, the restructuring facility closed to new bids at the end of last month.

Although we are seeing merged colleges and more robust arrangements developing as a result of the area reviews, we cannot guarantee that no college will fail in the future. We recognised that we needed a suitable mechanism in place to deal with colleges in an orderly manner if they should fail in the future. Therefore, in 2016 the Government announced that they would develop an insolvency regime for the sector. This includes a special administration regime with the objective of avoiding or minimising disruption to the studies of existing students of the FE body as a whole, while ensuring that the education administration is no longer than it needs to be—thus it benefits both students and creditors of an insolvent college.

The main provisions for the regime are in the Technical and Further Education Act 2017. The legislation provided clarity on whether and how insolvency law applies to FE bodies. The new regime ensures that there is an orderly process in place for managing a college insolvency. It also introduces, in the unlikely event that a college should become insolvent, a special administration regime known as education administration, which prioritises the protection of learner provision. Once commenced, the regime will give the Secretary of State the power to apply to court for an education administration order, appointing an education administrator. This could happen as a result of a creditor taking insolvency action of its own, in which case the Secretary of State can use his powers to put in place a different form of insolvency proceeding to protect provision for learners. Alternatively, he may be persuaded that the FE body is insolvent and that an application to court for an education administration order is the best course of action.

The 2017 Act applied certain provisions of insolvency law to the FE sector subject to modifications set out in the Act and specified in the regulations that we are considering today. These regulations modify insolvency legislation as it applies to FE bodies, both in the Insolvency Act 1986 and in wider legislation that concerns insolvency, to make it work effectively for further education bodies.

I also draw the Committee’s attention to the fact that there will need to be another piece of secondary legislation enacted before the special administration regime can be commenced. This will be a statutory instrument setting out the rules that apply to the education administrator’s conduct of an education administration. That instrument will follow the negative procedure. The insolvency regime provides the framework for insolvency practitioners to work within when dealing with the further education sector and specifies how education administration can be used to protect provision for existing learners at a college in financial distress. It is not the purpose of this legislation to seek to close colleges. It is a necessary tool to deal with the worst-case scenario, as the hard edge of a broader intervention system providing a structured and measured approach to preventing and responding to failure.

Colleges enjoy a high degree of financial independence, and it is right that they should be responsible for the decisions they take. This wider intervention system will start with the monitoring of colleges that are experiencing difficulty. If things get worse, then there will be a wide range of intervention tools. The insolvency regime is the mechanism of last resort, and we would expect it to be used only rarely. I wish to be clear that, where a college becomes insolvent, it will not necessarily lead to provision being closed. The aim would be to deliver the best scenario for the local area in the manner that is least disruptive for the learners at the college.

I turn to the purpose of this legislation. The draft regulations before the Committee today are quite technical. Their main purpose is to modify provisions of the Insolvency Act 1986 and to have legislation made under those provisions apply effectively to college statutory corporations. This not only ensures that a regime works technically, it also deals with practical issues to allow for the fact that FE bodies are autonomous and will have different provisions within their instrument and articles of governance. Therefore the regulations make provisions to manage insolvency proceedings in a standard way. These regulations also set out provisions for filing documents with Companies House, so that insolvency procedures are transparent for further education corporations, as they are for companies.

The role that the governors play in the UK education system is a crucial and well-established one. They bring a wealth of outside experience and knowledge to the sector. They are, rightly, already subject to important duties and liabilities as trustees of a charity and should already be well used to the responsibility that these duties bring. Governors should respect good practice, following proper process and ensuring that they take and carefully consider appropriate professional advice before taking key decisions.

The regulations have been drafted purposely to exempt student governors from certain offences and duties normally contained within insolvency legislation. The Government took the view that there would be some situations where student governors could not possibly have a meaningful say in decisions that gave rise to particular offences. It follows that it would not be right to expose them to liability for those offences. It is common for student governors under the age of 18 to be excluded from voting on decisions by the board that have financial outcomes. We have taken the view that if they cannot have a say in financial decisions, they should not be liable for offences linked to those decisions. Equally, student governors should not have to prepare a statement of the affairs of the college corporation, which includes a summary of the corporation’s assets and liabilities and details of its creditors—details that they might not be expected to be privy to. However, let me be clear that there is an onus on all governors—student members, staff members and other governors alike—to co-operate with the insolvency practitioner appointed by the court. This includes not making false statements when they are required to supply evidence of events.

I turn to the more technical detail of the regulations that we are considering today. Part 3 of the regulations modifies provisions of the Insolvency Act 1986 and the Insolvency (England and Wales) Rules 2016 as they apply to FE bodies that are statutory corporations. Part 4 of the regulations applies provisions of other legislation relating to insolvency to FE bodies, subject to modifications. For example, the Land Registration Rules 2003 need to be modified to enable the Land Registry to make an entry in the register that an administrator or liquidator has been appointed over a statutory corporation. Part 5 modifies provisions of the Companies Act 2006, applied to statutory corporations by Regulation 3, to ensure that they work effectively for FE bodies that are statutory corporations. This is to facilitate the correct filing of key insolvency documentation.

We carried out consultation on the position adopted in the regulations with insolvency practitioners, lenders, colleges and organisations that represent the sector. This included the Association of Colleges and the Sixth Form Colleges Association. The department has also worked hand in hand with Companies House and the Insolvency Service to ensure that these regulations work effectively for their intended purpose. The regulations apply to FE bodies and companies conducting designated further education institutions in England and Wales, and Welsh Ministers are fully supportive of the approach taken in the development of this legislation. I commend these regulations to the Committee.

[Lord Watson of Invergowrie (Lab)]

My Lords, I thank the Minister for introducing these regulations, which will bring a new college insolvency regime into effect by the end of the year. We believe that they are necessary and will not be opposing them, although we have some caveats that I shall bring to the Minister’s attention.

The Government are right to regulate in this area to bring more legal certainty, but we believe they should use the new powers only in exceptional circumstances because of the risk that they could damage confidence in an important sector. As I argued in Committee on what was then the Technical and Further Education Bill—before the noble Lord, Lord Agnew, was in your Lordships’ House—there is a danger that highlighting the need for a statutory insolvency regime that has not hitherto existed may alarm governors, banks, employers, international partners and others whose support is necessary to ensure that colleges provide the education and skills that the country needs. That is even more important now that the country is about to leave the EU and faces an uncertain economic future into the 2020s.

These regulations are technical and take a sensible approach to fitting out the structure of the legislation. The continuing underfunding of further education and the growing financial weakness of some colleges heightens concerns that the Government could unintentionally force a college into insolvency, with the serious consequences that that would bring. The new statutory college insolvency scheme can be traced back to early 2016, when the Government were overseeing the rationalisation of the sector through the national area review programme. No clear rules currently exist as to what happens should a college run out of money and the Government did not effectively indemnify it. When colleges were taken out of local government in 1992, a new type of statutory corporation was created to run them but no rules were ever established to apply in circumstances where colleges simply ran out of money. Instead, to protect a college’s students, courses and assets, central government—through a succession of funding agencies—has ended up being the funder of last resort. This has meant that the banks have always been paid in full or been able to replace an old loan with a new one.

The Government’s post-16 area review was designed to put all colleges on a sustainable financial footing and has resulted in more than 50 mergers since 2015, the majority of which have been self-funded by colleges. The process of restructuring colleges has proved to be more complicated than was anticipated when the area reviews started. Colleges have found that it takes more time than expected to satisfy their banks, resolve pension issues and navigate rules devised by Ofsted, the Home Office and the Education and Skills Funding Agency. We understand that the Treasury insisted on a college insolvency regime as a price for providing its restructuring loans, and this is what was legislated for in the Technical and Further Education Act. These regulations will put this into effect and are intended to provide clarity about what happens when a college gets into severe financial problems. The law creates a special administration regime for colleges akin to that put in place in recent years for energy companies, train operating companies and housing associations—strange comparators, noble Lords may feel. But it is to be welcomed that the special administrator will have duties to protect learners, as well as creditors, in a situation where a college has run out of money.

The new college insolvency regime has been described as a last resort rather than a normal route to secure change. Once the new arrangements come into force, there will be several lines of control in place: the governing bodies will of course have a duty to ensure the solvency and viability of colleges; the ESFA will have financial oversight; the Further Education Commissioner will intervene where the college has a notice to improve; and there is the independent business review, a new pre-statutory process that will apply for colleges in severe financial distress. Only if and when all the above fail to resolve matters will the new college insolvency regime apply.

15:45

Just as the vast majority of companies and charities never come into contact with a normal insolvency practitioner, so almost all colleges will be unaffected by the existence of a special administrator. Given that there are four players in the game, the possibility of overlap clearly exists, so can the Minister explain how the various bodies I listed will interact to avoid any confusion or duplication?

The regulations clarify issues associated with the statutory process, the position of colleges that are also companies—a handful of adult learning institutes—and the fact that student governors will not be covered by director disqualification rules. The bigger issue is that the circumstances have changed considerably since spring 2016 when the Government drafted the legislation for these changes. Despite widespread agreement that education and skills matter for the country’s future and the Government making noises that suggest they agree, the financial outlook for the 266 colleges in England has further deteriorated in the past 12 months.

I refer to the Explanatory Memorandum that accompanies the regulations; it is towards the end of the bundle of documents. On page 3, using wording that would do Sir Humphrey proud, the first sentence of paragraph 7.1 reads as follows:

“A proportion of FE colleges have fallen into financial difficulty for a variety of reasons”.

That is an understatement. I read on, interested to see whether any of these reasons were listed; there was not a word. That is all the document says, with no attempt to specify what the reasons are. That is, at best, unfortunate. It may not be the role of the Explanatory Memorandum but drawing attention to the issue then casting it aside as if it is of only relatively minor importance is not very helpful.

However, it fits to some extent with the fact that the Government remain in denial about the serious underfunding of the college sector. The cost of recruiting and retaining the staff needed for high-quality academic and technical education is rising but the Government refuse to acknowledge inflation in their funding decisions. The funding rates paid to colleges have been fixed in cash terms since 2013. The hope that apprenticeships would provide more income has not been realised because of their falling numbers, although the one ray of light for colleges to emerge from yesterday’s Budget was that the co-investment rate for smaller, non-levy-paying employers will be cut from 10% to 5%, which hopefully will have an effect on those hitherto prevented from participating.

Despite the mergers that have resulted from the area review process, some colleges remain in a financially fragile state. The Minister may question my raising funding in the context of these regulations but I believe their relevance should be clear. Over the past 10 years, colleges have had to deal with an average funding cut of 30% while, at the same time, costs have increased dramatically. Further education is the only part of the education budget to have had year-on-year cuts since 2010, with funding for students aged 16 to 18 suffering an 8% cut in real terms since 2010. Funding for adult education has had a cut of 62%, so it is little surprise that the past 10 years has seen total enrolment for adults drop from more than 5 million to less than 2 million. That explains why banks are removing or withholding investment from the sector, leaving some colleges exposed in terms of cash flow.

I finish with a word of caution to the Government. Given the chilly financial climate that their policies have created for colleges and the uncertain future to which I referred, they should be very careful about using the new rules contained in these regulations without considering the consequences.

[Baroness Garden of Frognal (LD)]

My Lords, I too thank the Minister for introducing the regulations. It is always somewhat frustrating that discussion of regulations offers no chance to amend, but of course it gives us an opportunity to challenge and seek clarification from the Government on rationale, detail or implementation.

We on these Benches found the Technical and Further Education Act a deeply depressing piece of legislation. Our further education sector makes an enormous contribution to education and the economy but continues to be overtasked, underfunded and underappreciated. The Bill was largely about potential insolvency in further education—hardly a resounding message of support. Of course, it introduced the baffling T-levels, which were not sought by the sector and continue to be baffling months after their inception. They risk undermining the highly regarded vocational qualifications that have served this country well for generations, but we will keep the perplexities of T-levels for another debate.

I declare an interest as a vice-president of City & Guilds, an organisation I worked with for some 20 years. For more than 140 years, it has been an immense source of employment skills for the nation. City & Guilds has always worked with FE colleges, which play a crucial part in delivering world-class qualifications that are highly regarded in the UK and overseas by employers across the whole range of work-related skills.

We note that a number of FE colleges have fallen into financial difficulties. Can the Minister tell us how many of them have actually become insolvent? I note that the Explanatory Memorandum indicates that,

“in reality we expect that FE colleges entering insolvency would be a very rare event”.

One wonders why, in that case, so much of the Act was devoted to such insolvency. We gather too that:

“The Department will publish two sets of guidance before the instrument comes into force”.


Will the Minister say when we can expect these sets of guidance? Apparently there is to be no monitoring to assess whether there are,

“any unexpected burdens or tensions within the FE sector”.

Any legislation that imposes additional burdens and tensions on an overburdened sector should surely be dismissed instantly. Would it not be prudent to have some sort of review?

Will the Minister also say what part in those financial difficulties has been played by the unwelcome and damaging burden of providing GCSE resits in maths and English? If ever a policy was designed to reinforce failure in learners, these resits are that policy. Young people who may have brilliant workplace skills are forced into taking exams again and again which have little, if any, relevance to the work they wish to do, and they fail time and again. This is hardly encouragement for the future. Colleges have been tasked with this depressing and resource-intensive duty. When will the Government realise the negative and counterproductive impact of their obsession with academic qualifications, regardless of the talents of young people or the relevance of those qualifications to the things that young people actually want to do? Can the Minister say if and when the Government have plans to review the GCSE resit policy?

I share the concerns of the noble Lord, Lord Watson, over the drop in funding for FE, which is surely unacceptable with all the pressures put on it.

Can the Minister say what provision has been made for private providers? What progress has been made in developing comparable safeguards for apprentices and other learners who are with private providers, especially in view of the collapse of 3aaa? What about the looming collapse of learndirect? Do these regulations have any implications for protecting learners if there are subcontracting arrangements, for instance? We know that colleges and private providers are entangled in highly complex subcontractors. The Minister may have an answer on this, but if he does not, perhaps he could write to me.

We do not seek to challenge these regulations, but we express again our deep concerns over government policies towards vocational, or even technical, education. We hope that wise heads will appreciate that it is in the national interest, and in the interest of learners, to give every possible support and status to those who seek to acquire the work skills the country so desperately needs. I look forward to the Minister’s reply.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his cogent introduction and my noble friend for his eloquent steer in a debate such as this. My remarks will be very brief. The regulations refer to Section 124A of the Insolvency Act, which is headed “Petition for winding up on grounds of public interest”. Will the Minister expand on how he perceives the public interest in the context of this sphere of education? The matter is complicated, and obviously the provision is necessary, but can he give a recent instance of where a specific further education establishment has been perceived to be insolvent? Has that happened? Does he know of a sixth-form college that has been wound up? Has that happened?

Paragraph 7 of the Explanatory Memorandum on the policy background is helpful. Does the Minister know whether exceptional financial support has been given to one of these institutions? Like others in this debate, I think the further education sector is crucial to the future of Britain’s economy. In particular, FE colleges might help us save what remains of our manufacturing base.

[Lord Storey (LD)]

My Lords, I preface my remarks by saying that we value further education. It will go through a renaissance and the need for vocational courses, skills development and apprenticeships will help it to blossom. This instrument is technical but it is absolutely right that we should agree it.

However, I have a number of concerns. We have had the area reviews, of course, but why do we allow a further education or sixth-form college to become insolvent? One would think that further down the line we would take strong and robust action to ensure that that does not happen. If a college closes down the effect on the local community and economy can be devastating. If we allowed a further education college in, say, Northumberland to close down because we had not kept our finger on the pulse, imagine the effect that that would have in a predominantly rural area.

It is important that we understand the mechanisms for ensuring that this does not happen. I see in the document that 37 further education colleges published notices to improve financial health. What do the Government do to make sure that that support is given?

I agree with the comments of the noble Lord, Lord Watson, about cuts, but it is not always about cuts; it is about management as well. An institution might not have all the resources it needs but it might be so well managed that it thrives nevertheless. It is about the management of the college as well as its finances.

I have three further questions. First, the Minister said that insolvency will not always mean closure. Will he expand on that and say what other actions can be taken? Secondly, do these regulations apply to university technical colleges? Thirdly, if we want to create the level playing that the Minister talked about, should we not ensure that all sixth-form colleges are treated equally and that those that have to pay VAT will no longer have to do so? Will he perhaps explain why sixth-form colleges that are not in a multi-academy trust have to pay VAT?

[Lord Agnew of Oulton]

My Lords, I thank noble Lords for the interesting points they have raised. There have also been a number of questions which I will certainly try to address.

I say to the noble Lord, Lord Watson, that we are adamant that this provision is for exceptional circumstances. I made that clear in my opening comments. In answer to noble Lords who raised questions about our commitment to this sector, it might be worth summarising the extent of that commitment. In the current academic year, 2018-2019, we expect to spend some £7 billion, which includes apprenticeships. That gives a sense of the proportion of our public spending that we are putting into this age group.

I can reassure all noble Lords that this instrument is designed as an exceptional mechanism. The main reason for it is that under traditional insolvency arrangements, the lenders take control of the process. The provisions in these regulations make sure that learners are given more priority. That is the overarching principle of why this is being done.

On the specific question that the noble Lord, Lord Watson, asked about how the various bodies involved in the sector would interact with one another, we are still developing intervention systems so that we can respond effectively to the early signals of poor financial health to focus on preventing colleges from getting into positions of insolvency. This allows the FE commissioner and his team to go into colleges at an early stage, work with principals and governors and share best practice on better financial management to help college boards develop sustainable plans for financial resilience. College boards may need to make tough decisions to make to become more resilient. We will rely on their engaging with us early on, as soon as they know there is a problem. That goes somewhat to the point that the noble Lord, Lord Storey, made about the quality of management and governance. That is very much what we are pushing for, to ensure that when the canary in the coalmine sings, it is listened to and early action is taken.

16:00

I turn now to the question asked by the noble Baroness, Lady Garden. First, I pay tribute to the great work of City & Guilds, which is a vital part of the framework for education post 16. She asked specifically about the numbers we expect to become insolvent. I cannot give a number on that, but I restate what I said a moment ago—that we see this as a last resort. On her question about resits, I know that this is a matter of some emotion for people. It is worth saying that employers value the fact that young people have to face up to the basics of English and maths; they appreciate it. I understand that this can be demoralising. I come from a family of seven children. Only two of us passed maths O-level, so I know what it is like to be in a family of low-achievers. However, most jobs today include a high level of technical involvement. Not grasping the basics of good English comprehension or basic maths skills will put young people at a disadvantage for the rest of their lives.

[Baroness Garden of Frognal]

There is no objection to the fact that young people are helped by being able to read, write and add up. The point is that GCSEs are very academically focused and the content of those syllabuses is completely inappropriate for many people who have technical skills and could happily do a functional test paper but not the academic papers of GCSE; it is the GCSE exam that is the bugbear, not the fact that people need to be able to read, write and add up.

[Lord Agnew of Oulton (Con)]

I will certainly take the noble Baroness’s views back to the department and reiterate them; I understand exactly what she is staying. She also raised a question about providing guidance to governors. We are committed to providing clear guidance, particularly on their duties and liabilities under insolvency law. The general College Governance guide, last published in 2014, will be updated. Both sets of guidance have been drafted and are being developed with the stakeholders—the Insolvency Service, the Association of Colleges and the Sixth Form Colleges Association—ready for publication in, we hope, the next few weeks.

The noble Lord, Lord Jones, asked whether I have any specific examples of colleges that have become insolvent. The short answer is no, as they have so far resolved their issues. In 2016 we created the restructuring facility, a fund from which some £330 million has been drawn across the sector. That has been used specifically to help them carry out the restructurings and some of the mergers to which other noble Lords referred, so there has been a period of consolidation over the last two years.

The noble Lord also asked about sixth-form colleges. There is a provision—this also addresses the point made by the noble Baroness, Lady Garden—for sixth-form colleges to convert to academy status. If they do that, they get the benefit of VAT recovery. The question was: why cannot everybody do that? The reason is that it is a complicated process. It is an option that we have offered to sixth-form colleges but not all of them have taken it up.

[Lord Storey (LD)]

There are all sorts of reasons. If a sixth-form college chooses not to become an academy or part of a multi-academy trust, it is penalised by having to pay VAT; but if it chooses to go down that route, it gets the reward of not having to pay VAT. Is that what the Minister is saying?

[Lord Agnew of Oulton]

That is, in essence, correct. However, one of the advantages of the FE sector is that colleges are allowed to borrow money commercially. If that is a route they want to take or have taken, that can be a barrier to conversion to academy status.

The noble Baroness, Lady Garden, asked about the role of private providers in subcontracting. These regulations are specifically designed simply for the further education sector, not for independent subcontractors. If a further education college were to become insolvent, a subcontractor could become one of the creditors.

I hope I have answered all the questions that have been raised.

[Lord Storey]

There was the question of university technical colleges.

[Lord Agnew of Oulton]

These regulations do not apply to university technical colleges. A UTC is framed under the academies legislation and has a funding agreement in the same way as an academy has, but UTCs are a separate legal entity.

As I have outlined, these regulations make necessary modifications to insolvency law so that it effectively applies to FE bodies and can bring the further education insolvency regime into effect. Cases of insolvency are rare and will continue to be so, but we cannot afford to be complacent. It is essential that this legislation is put in place for the FE sector to provide legal certainty and, most importantly, to ensure that learners are protected in the event of financial failure.

Motion agreed.

Newcastle Upon Tyne, North Tyneside and Northumberland Combined Authority (Establishment and Functions) Order 2018

Tuesday 30th October 2018 Grand Committee

Considered in Grand Committee

16:07

Moved by

[Lord Bourne of Aberystwyth]

That the Grand Committee do consider the Newcastle Upon Tyne, North Tyneside and Northumberland Combined Authority (Establishment and Functions) Order 2018.

Relevant document: 40th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, this order was laid before the House on 4 September. At Budget 2017, nearly a year ago, we announced that we were minded to agree a North of Tyne devolution deal with the three areas which will be the constituent councils of this combined authority: Newcastle upon Tyne, North Tyneside and Northumberland. The deal will devolve major powers and budgets, including £20 million a year of devolved funding over the next 30 years, control of the 19-plus adult skills funding, and powers for the combined authority to acquire and dispose of land. The mayor will have powers to take forward compulsory purchases and establish mayoral development corporations as a foundation for the North of Tyne’s housing and regeneration ambitions. In return, the area has agreed appropriate governance for these new powers and budgets centred on a combined authority with a directly elected mayor. Such mayors can provide a focused single point of accountability for the powers and budgets being devolved, and can be a powerful voice raising the profile of their area with business, with government, and internationally, helping to promote inward investment and growth.

The order before the Committee, if approved by Parliament and made, will implement this deal—a deal which is yet another step along the way of our devolution agenda. It recognises that North of Tyne is a coherent economic area, which generates almost £17 billion in economic output, has a number of significant growth sectors and is home to more than 815,000 people. The deal will support the delivery of the North East local enterprise partnership’s strategic economic plan, which sets a forward direction for industrial growth across the north-east.

The background to this deal is that when in September 2016, the four authorities south of the Tyne—Durham, Gateshead, South Tyneside and Sunderland—chose not to participate in the agreed North East Combined Authority devolution deal, the Government were clear that they would continue to work with those authorities committed to devolution. As a result of this, the three North of Tyne authorities that supported the original deal have worked with government to agree this new mayoral devolution deal on this smaller North of Tyne geography. Although ideally we would have wished to see a deal that covered the area of all seven councils, we are clear that this North of Tyne geography is an economic area that can rightly support a devolution deal that will bring considerable benefits to both that area and the wider north-east. As my honourable friend the Minister made clear in the other place, we in the Government pay tribute to and thank the leaders of the three North of Tyne councils—Nick Forbes, Norma Redfearn and Peter Jackson—for their vision, work and commitment, which have led to this deal and the benefits it will bring to both their communities and the north-east more generally.

If approved by Parliament and made, the draft order will implement the deal. It is made pursuant to the provisions of the Local Democracy, Economic Development and Construction Act 2009 as amended by the Cities and Local Government Devolution Act 2016. It will put in place the necessary governance arrangements. It will establish a combined authority for the areas of Newcastle upon Tyne, North Tyneside and Northumberland. It makes provision for a directly elected mayor for that area, to be elected by all the local government electors for that area. The first mayor will be elected on 2 May 2019 for a term of five years, with the next election taking place in May 2024, then every four years subsequently. The initial five-year term is to bring these mayoral elections in line with mayoral elections in other city regions where there are elections of metro mayors, such as Greater Manchester and the West Midlands.

The order also makes provision for an interim appointed mayor in the period before the mayoral election takes place. This interim mayor will be appointed by the members of the combined authority, and while he or she will be chair of the combined authority they will not have any powers devolved to them. The order is equally the instrument through which certain powers, as envisaged in the deal, are devolved to the area to be exercised by the combined authority and, in some cases, by the mayor, once he or she is elected. These include local authority powers of compulsory purchase and the power to create and establish mayoral development corporations.

To allow for the establishment of the new mayoral combined authority, this order removes the local government areas of Newcastle upon Tyne, North Tyneside and Northumberland from the area of the current Durham, Gateshead, Newcastle upon Tyne, North Tyneside, Northumberland, South Tyneside and Sunderland Combined Authority and changes the name of that combined authority to the Durham, Gateshead, South Tyneside and Sunderland Combined Authority.

Most importantly, to ensure the continuity of the delivery of integrated transport arrangements across the two combined authorities across the north-east, the order also makes provision for the establishment of a joint transport committee. The new combined authority will appoint three members to this committee, one of whom must be the mayor unless the mayor decides that he or she does not want to be a member. The existing combined authority will appoint four of its members to this new joint transport committee. The new joint committee will exercise all the transport functions of the two combined authorities. It will produce a joint transport plan covering the area of both combined authorities. As with all combined authorities, an overview and scrutiny committee, as well as an audit committee, will be established for this joint committee.

In laying the draft order, we have followed the statutory processes specified in the 2009 Act as amended by the 2016 Act, which I mentioned. Establishing a combined authority is centred on there being a triple lock: a combined authority can be created only if the councils concerned consent, the Government agree and Parliament approves the necessary secondary legislation. The three councils that will be the constituent councils of the new combined authority—Newcastle, North Tyneside and Northumberland—have consented to the provisions in this order that will create the combined authority. The original combined authority and the three councils leaving it have consented to the change of that combined authority’s area. All seven councils and the original combined authority have consented to the establishment of the joint transport committee and the associated constitutional changes that this order brings.

We have considered the particular circumstances of this proposal in relation to establishing a new North of Tyne combined authority and the changing of the boundaries of the existing combined authority, as the law requires. We have concluded that all the statutory conditions are met. We also consider that it would be appropriate to establish this combined authority while having regard, as the 2009 Act requires, to the need to reflect the identities and interests of local communities, and to secure effective and convenient local government.

16:15

Finally, we have considered the public consultation carried out by the three North of Tyne authorities on the proposals, and we are satisfied that no further consultation is needed. I can confirm to the Committee that we believe that the conditions have been unambiguously met and therefore seek the approval of the Committee to this draft order today. In short, when it is approved and made the order we are considering, which has already been approved in the other place, will establish a mayoral combined authority to which will be devolved wide-ranging powers and significant budgets. It opens the door to a new era for the area to promote economic growth, to improve productivity and, as the area itself believes, to lead to the creation of 10,000 jobs. I therefore commend this order to the Committee and I beg to move.

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an elected councillor in Newcastle, and one who will be seeking re-election next May. Next Sunday will be the 14th anniversary of the referendum on the proposal at that time to create an elected regional authority for the north-east. Forty-eight per cent of the electorate cast their votes and, I am sorry to say, resoundingly rejected the idea by 77% to 23%. Disappointing as it was to those of us who saw in the concept a real opportunity to create a body capable of promoting the interests of the region as a whole, the result was not a great surprise. Local rivalries have never been confined to the football pitch.

In the mid-1960s, at a time when local radio was being promoted by the BBC, the then leader of Gateshead Council declared that nobody in Gateshead could possibly be interested in anything broadcast from Newcastle. In the mid-1990s I wrote a paper advocating the establishment of a north of England councils’ association, incorporating the counties of Northumberland, Durham, Cumbria and Tyne and Wear—the latter of which has since vanished—and their constituent city and district councils. Knowing that if such a proposition was seen to have emanated from Newcastle its prospects of success would have been negligible, I passed it to the then leader of Northumberland County Council, who circulated it without attributing its source. The association was accordingly established with Hugh Little of Cumbria as its first chairman. When Cumbria departed, it became the North East Assembly and when Tees Valley in turn departed, it became the Association of North East Councils.

It is unfortunate that the four councils south of the Tyne have so far declined to join the new combined authority—I should add that part of Northumberland is south of the river but will be within the boundaries of the new authority. I can understand some of their concerns. The new structure will be led by an elected mayor, a requirement imposed by the Government on all new combined authorities. Newcastle itself voted 62% to 38% against having an elected mayor when it was compelled to hold a referendum—for just the city itself—in 2012. This time, people are being denied a voice completely on that issue.

Moreover, the much-vaunted investment by the Government of £600 million over 30 years, which is all of £20 million a year shared between three councils, is frankly pitiful. Newcastle alone is facing cumulative cuts which, by next year, will amount to £280 million annually, and there is no suggestion from the Government that there will be any benefits flowing our way under any changes in the local government finance system. The same would apply to the neighbouring authorities.

There are, however, some promised changes which are welcome. These include local control of the budget for adult education, with enhanced powers to promote development, and a joint committee to manage public transport. Can the Minister say whether the latter will include a role in relation to rail transport, including the east coast line? Can he give any assurances about the future of the region’s airports? If, as has from time to time been suggested, the Scottish Government abolishes air passenger duty, will the region’s airports, and in particular Newcastle Airport, be able to follow suit?

On the housing front, I understand that the current chairman of Homes England is to chair a housing land board. Can the Minister explain how this will work in relation to the role of the councils in the provision of social housing? Will it be possible for the councils to provide more social housing for rent? Who will determine the size and nature of local housing provision and the provision of the necessary services for residents?

There are ambitious claims for job creation and new housing, with apparently 9,500 people to be helped into employment and 10,000 houses to be built. Can the Minister indicate over what period these goals are expected to be achieved? How many of the 10,000 homes will be provided respectively by local authorities, social housing providers and for sale?

Transport is an important issue for the whole region. It is to be hoped that both the new combined authority and the four councils which will remain from the existing authority will continue to work together through the joint transport committee.

The Metro, which serves Newcastle, North and South Tyneside, Gateshead and Sunderland, is a critical service covering all the authorities in the currently established set-up. There is clearly a potential to expand the service, not least to the west end of Newcastle, one of whose wards I represent. Will the department invest in this important area? It is a modest task in the light of the vast amounts being spent on Crossrail and HS2.

Will the Minister’s department put pressure on the Department for Transport to tackle the dreadful performance of the laughably misnamed TransPennine Express in the service between the north-east and the north-west, a more important project in the eyes of many of us than HS2?

The region is one of 10 bidding for funding from the £1.7 billion transforming cities fund. Six mayoral authorities have already shared £840 million. Given the problems facing the north-east, which are threatening to worsen after Brexit, it is vital that we secure investment of this kind. I understand we are looking for funding in the range of £50 million to £100 million. I hope the Minister will support our bid from the region.

There are some issues which cross the boundaries between the new combined authority and the four south of Tyne authorities. Two further education colleges, on either end, in effect, of the Tyne tunnel, are now combined. One will be in each of the two combined authorities hereafter and I am not clear what the implications of that will be. I do not know whether the noble Lord is in a position today to respond to that. He may need to consult the Department for Education. However, there will be services which cross the river, as it were, which will not apparently be affected directly by the new authority structure and there will have to be arrangements to deal with that.

It is similar in the National Health Service. We have, for example, a Newcastle and Gateshead clinical commissioning group which also crosses the boundary of what will be the two combined authorities. Is it envisaged that any change will be made in the NHS area, given the changing boundaries within local government and the important connection between local authorities’ social care provision and the NHS?

The justice system is another area which merits consideration, especially the probation service, which hopefully is to be restored as a single service in the light of the systemic failings of the split between probation and Chris Grayling’s community rehabilitation companies. Will the combined authority have oversight of both the custodial and probation services in its area and, indeed, of the court system, where court closures are having a serious impact on the working of the courts? It may well be that at least oversight of these areas could well be placed within the province of the new combined authority.

Many of us are hoping that, whatever doubts we may have about aspects of the changes in bodies in the order, they will help the region to address the serious problems it faces, constantly exemplified for me by the presence in the council ward that I have represented for the past 51 years of the busiest food bank in the country. I look forward to the evolution of a North East Combined Authority with the determination and resources to help transform the life chances of our citizens. I endorse the conclusion of the Secondary Legislation Scrutiny Committee’s report:

“It will be important that all involved keep under review the success of cooperation between the new mayoral Combined Authority and the other councils, against the objective identified by DCLG in 2014 of promoting more effectively economic growth and prosperity for the area concerned; and that the Government should be ready to adapt arrangements in the light of experience”.


We are in a period of change. There is real potential for improvements to be made, but it will not be enough simply to rely on that reorganisation, not least in relation to the necessary funding to address the very serious economic and social problems that the area faces. This is a step forward. There is still a long way to go to transform the life chances of people living in the north-east, and in particular in the area covered by these changes.

[Lord Shipley (LD)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Beecham, in a debate. He reminded us of the history of devolution and of some of the current problems in public investment and governance across the wider north-east. I agree with him that this proposal is a step forward. He used the word “unfortunate” to describe the fact that the four councils south of the Tyne have refused to take part. I think I might have used a stronger word, but for the moment “unfortunate” will do. Indeed the Secondary Legislation Scrutiny Committee said:

“Progress towards establishing a mayoral Combined Authority in this part of the North East has not been straightforward”.


Let us all agree with that. I have been very critical of this and of the failure of local councils across the wider combined authority area to speak with one voice. As the Secondary Legislation Scrutiny Committee reminded us, key business stakeholders appear to view the latest proposal as a second-best option. It is the only option on the table. It is a second-best option, but the final sentence in the Secondary Legislation Scrutiny Committee’s comment is,

“the Government should be ready to adapt arrangements in the light of experience”.

I very much hope that the Minister will be willing to confirm that that is exactly what the Government plan to do.

I support this proposal because I believe that the north of the Tyne should not be left behind because of the approach taken south of the Tyne. Indeed, there are powerful combined authorities elsewhere across the north of England that have mayors. They give focus to strategic planning and to the delivery of growth, jobs, higher education and skills standards. For that reason this proposal should be supported. It is a very great pity that the area to the south of the River Tyne decided not to take part.

The Minister referred to the transport arrangements. It is true that the current structure will remain in place. There will be a statutory joint authority to bring all the councils and passenger transport executives together on key issues. The seven local authorities are said to be confident that these arrangements will work. Well, they need to work. There will have to be an agreed clarity of purpose for the whole subregion, because this could come unstuck when a critical decision has to be made.

16:30

I noticed recently, for example, that Nexus has parked the issue of where future investment in the Tyne and Wear Metro system might go. At some point, a decision will be needed on whether the first extension of the system will be into south-east Northumberland or towards Washington. Such a decision on priorities will need open public debate. The decision will need to command general support based on evidence, for without that it is likely to cause differences of opinion where we need to speak with one voice to ensure that the necessary funding gets to the region.

Whenever we have debated the combined authorities, I have been concerned that the issue of scrutiny and the openness of meetings should always be foremost in our minds. There are proposals for a scrutiny system, which I understand will be all-party, as it needs to be. That system needs to be open. The scrutiny process is only as good as the issues that it is able to discuss. It is important that, in the scrutiny system, officer support is available to the scrutiny members, so that they can put things on the agenda and do their job properly. Decision-making also needs to be open to the public. In other words, there needs to be media access. It would be a bad thing if this new North of Tyne mayoral combined authority began to be perceived as a secretive organisation that did not explain what it was doing and why it was doing it. For that reason, I hope that great attention will be paid to how public scrutiny will work.

Let me also express a concern about hyperbole in the expectations of what will apparently be achieved if the combined authority comes into existence. I give two examples from briefings that I have received. The first says:

“The new body will have a £600m investment fund, worth £20m a year over 30 years, which is expected to generate £1.1 billion for the local economy, create 10,000 new jobs and leverage £2.1 billion in private sector investment”.

I hope that I am not the only Member of this Committee who thinks that these are big figures to commit oneself to for £20 million a year, which is not a substantial sum. I therefore exercise a note of caution. Delivery could well be difficult. It will probably be made more difficult by the consequence of Brexit, if it happens. Even if it does not, it is difficult to see how such figures can be achieved.

There is then a further piece of hyperbole:

“The minded-to North of Tyne devolution deal represents value for money to Government”.

Of course, giving only £20 million a year probably is value for money for the Government. The briefing goes on to say that the deal represents,

“a cost effective contribution to rebalancing the national economy by … Generating almost three quarters of a billion pounds (£734m) in income tax and NI contributions to HM Treasury … Saving £93.9m in welfare payments as more people move into employment”,

and,

“Increasing business rates by approximately £298m”.

It would be marvellous if all these figures came to pass. I just issue another note of caution that achieving these sorts of figures is difficult from additional spending of £20 million a year. Somebody might hold the North of Tyne combined authority to commitments of this kind. I urge a note of caution on big numbers that common sense suggests might be difficult to deliver.

The North of Tyne combined authority needs to be open and honest in its objectives; it needs to win public support—given that 38% of those consulted opposed its creation; and it needs to be seriously focused on delivery. If it does these things well, it can build public support. But it will need to: ensure that it addresses public concerns; bring together urban and rural; ensure local accountability, not top-down decision-making from a centralised mayoral office; and ensure the fullest consultation on all its plans. Having expressed those concerns, I very much hope the North of Tyne combined authority will be a success and I wish it well in its endeavours.

[The Lord Bishop of Newcastle]

My Lords, I welcome this proposal for a North of Tyne combined authority. I was present when the minded-to agreement was signed and there was a real sense of purposeful energy around the room. I agree with my noble friends Lord Beecham and Lord Shipley who talked about the level of investment that this combined authority will pull in; it is good, but very modest. I hope that nobody, including the Minister, will feel that this is anything like a sufficient answer to the critical lack of investment in the north-east. This development is a necessary but not sufficient condition for a proper level of investment in the north-east economy.

I hope, however, that I can offer some encouragement in the face of undoubted disappointment that we are looking at three authorities joining together in this combined authority, not seven. Most people would absolutely have preferred it to be seven. The governance review decided that there is an economic coherence between the three authorities that have been brought together; I agree with that. I share a bit of hope that, beyond economic coherence, there is also social and cultural coherence.

Towards the end of the 19th century, the Church of England and Parliament looked at the structure of Church of England dioceses to see whether they were fit for purpose for the development of new areas of industrial and manufacturing population. In 1878, an Act of Parliament created two new dioceses in the north of England—Liverpool and Newcastle dioceses. The area of the proposed combined authority was at that time part of Durham diocese. The diocese of Newcastle, which came into being in 1882, is almost exactly coterminous with the proposed combined authority. When my diocese came into being, St Nicholas Parish Church in Newcastle became Newcastle Cathedral; Queen Victoria then granted a royal charter and Newcastle became a city, so there is a real coherence.

In the life of the diocese, which has existed since 1882, we have found that, when it works, it works because there is a real sense of identity in these three areas. It works only when we recognise a degree of mutual dependence and support, one for the other. When we look to our own interests in either Newcastle, North Tyneside or Northumberland, we are not served—but in the sense of belonging together there is enormous strength, far greater than any of the three areas have separately.

I am well aware of the degree of political risk in this proposal. I commend the real commitment from all sides of the political spectrum to accept that risk but to set it aside and come together around what everybody believes will be to the benefit of the communities in the new proposed combined authority. I want to honour those who have shown such political leadership. I hope the Minister will assure us that the Government too will honour this genuine commitment to flourishing, which, in the region, is a sign of hope for us.

[Lord Beith (LD)]

My Lords, I admire the optimism of the right reverend Prelate, which she has brought to her work; she is a welcome arrival in the Newcastle diocese.

When asked which of the two would have a more profound impact on the region, this measure or Brexit, most people I talk to in the north-east are pretty clear that it is Brexit. An awful lot of people recognise that, unless we bring the Brexit process to a halt or somehow get a miracle deal that allows the just-in-time provision of spare parts to the Nissan factory and further investment in the north-east by firms from abroad, there will be a profound and adverse economic effect that will put what we are discussing today very much in the shade. Viewed from rural Northumberland—the vast area of north and western Northumberland that forms part of this combined area—it all seems a bit distant. I doubt whether many people there are even aware that it is happening.

One thing that many people will remember, as we were reminded of by the noble Lord, Lord Beecham, is that there was a referendum on whether there should be a regional structure for the north-east. It was a referendum under which the proposed body had too little power, and that was a powerful criticism made by its opponents. But those opponents, of course, included many prominent people in today’s governing party, the Conservative Party, who said that they did not want another tier of government in the north-east or any addition to the structure, and did not want any more politicians. But this order provides specifically not only for a mayor but for the mayor’s political adviser —the only two jobs you can be certain will be created as a result of it. So here those people are bringing before us what I think is a deeply defective scheme. It will be a miracle if real good can be achieved by it.

The scheme’s fundamental failure is that it slices through the middle of what it is supposed predominantly to be dealing with: transport and other urban issues in the conurbation of Tyne and Wear. We talk about having a system of government that is accountable, but how are people expected to understand a system that, to simplify government, brings together three authorities which will still exist and carry out their functions but will be part of a combined authority? Just as you have grasped that, you are then told that that combined authority will also be a member of a joint committee made up of two combined authorities, and that only this joint committee can deal with the transport issues because of the folly of creating an authority that exists on only one side of the river and goes right through the middle of the integrated transport system, the Metro.

Here, perhaps I can pay passing tribute to my noble friend Lord Rodgers of Quarry Bank, who has either just celebrated or will soon celebrate his 90th birthday. It was he who signed off on the Metro, in his Labour governmental days, many years ago. What a valuable feature it is of the north-east and how valuable it would be to see it extended into south-east Northumberland and Washington to bring more unity to the conurbation. Other aspects of transport that we want to see integrated in the conurbation—both its heavy-road system and its bus system—require a lot more work. The joint committee will be busy if it is going to address that. But it remains absurd to split the conurbation in this way.

The point I most want to make is this: in rural Northumberland, we are still suffering the consequences of the loss of accountability at district council level. Local government already seems extremely remote—it is 50 miles away from people living in Berwick or Bellingham and beyond. It is very distant indeed.

16:45

Now we discover that certain functions will no longer be exercised at that level, but at one of two levels further up. This is really a new three-tier system of local authority, combined authority and joint committee. Things such as the transport issues faced in rural areas are distant from the world of the conurbation. Whether your bus pass gets you from Berwick to the Borders General Hospital outside Melrose is a world away from discussing cross-Tyne transport issues. Whether there is a bus at all to travel on between villages in the Cornhill area to get into town is a rural problem that seems very distant. It looks unlikely to be resolved satisfactorily by a mayoral system in which power is concentrated in one person, who will no doubt owe his or her election primarily to what happens in the urban area where the votes are and will feel under constant pressure from that area.

I find it sad that we are having to approve a structure which no one has sought to defend logically simply because of things that come with it. The Minister had difficulty keeping a straight face when he started reading out a list of the names of the two authorities and their details. Nobody will come along and defend this as a structure. We have got into it because the Labour Party north and south of the river could not agree, and a much more determined attempt should have been made to arrive at a more rational structure.

My noble friend Lord Shipley has made it quite clear that this structure will be tested against the extraordinarily optimistic claims that have been made of large numbers of jobs and large amounts of investment. If that has to be achieved in the context of Brexit, it will be an even more difficult task. I would like this structure to succeed in those aims, and I would like it to ensure that it attends to the needs of rural areas, not just urban areas, but I have to have the optimism of the right reverend Prelate the Bishop in order to think that.

[Lord Wrigglesworth (LD)]

My Lords, I declare my interest as chairman and shareholder of the Durham Group and a former chairman and shareholder in UK Land Estates, which, among other things, owns Team Valley, still the single biggest industrial estate in the UK, with some 800 acres of businesses of all sorts.

I speak in this debate not just from that point of view but from having been the regional chairman of the CBI and of the Northern Business Forum. I was a member of the board of the Northern Development Company, which succeeded in bringing Nissan, Fujitsu, Komatsu and a variety of other businesses to the region in years gone by. I was delighted and honoured to be the founding chairman of the NewcastleGateshead Initiative as a result of an invitation from the Labour leaders of Gateshead and Newcastle city councils. As a result of an invitation from Gateshead Council, I was chairman of the Baltic Centre for Contemporary Art, which was in financial difficulty and which we managed to pull back from the brink.

I have also been chairman of the Port of Tyne. It dominates a large part of the business life of the region. All the cars from Sunderland are exported to the rest of Europe and other parts of the world from the Port of Tyne. It is the fourth-biggest import- export car terminal in Europe. It is the biggest trust port in the country. It is bigger than Dover. It makes an enormous contribution to the whole of the subregion.

Colleagues will understand that in all those different roles I have had a fair amount of interest in and experience of dealing with local authorities and other bodies in the Tyneside area. Although I support what the Government are doing and I have every sympathy with the Minister in trying to bring these things about, it is a tragedy for the area that we have not been able to bring all the authorities together as was envisaged. It would have been better to have had a separate Wearside LEP and a separate Wearside combined authority, with Sunderland and Durham working together. There has been an historic problem of Sunderland being overshadowed by Newcastle and the Tyneside area, which seems the natural conurbation for the region, rather than including Wearside in it. If we had been able to get a combined authority for the whole of the seven authority areas, it would have been very much to the advantage of the region. This is very much a second-best solution.

It is also in sharp contrast with the success that there has been on Teesside, which includes my home area and which I represented in the other place for many years. There, the Conservative mayor and the Labour local authorities are working extremely well together, bringing resources to the area, developing the area and working together for the benefit of the whole region in a way that I have never seen in my lifetime in the north-east. The contrast between what is happening in the south of the region and what is happening in the north of the region illustrates the damage that is being done by the parochialism and the antagonism across local authority boundaries by the leadership of the local authorities in the southern part of Tyneside.

Although I am happy to support this first step—as it has been described—we should not in any way underestimate the damage that this mix-up and this weird split of the north part of the north-east into these two areas—north and south of the Tyne—will have. As I said, I was chairman of the NewcastleGateshead Initiative, the destination marketing agency for both sides of the river, which made an enormous impact. We put in a bid for European Capital of Culture. It has had a massive impact in the area on both sides of the river. How is the NewcastleGateshead Initiative going to work with a combined authority on one side of the river and the other authority on the other side of the river? It is going to be extremely difficult at times. It will certainly make life much more complicated, as it has been in the past.

The Port of Tyne, on the north bank of the River Tyne, straddles both sides of the river. On the north side is the international passenger terminal, with 30 cruise ships every year, paying visits and bringing an enormous amount of money and economic activity to the area. There are car and other activities going on on the north bank. On the south bank, we have the major dock facilities, with all the cars and the exports going out of there. There are wood chips and coal coming in, a whole pile of scrap being exported, and tea and a whole range of goods being imported on the south bank of the river, where the port will have to deal with South Tyneside. Instead of dealing with one authority for the whole area, the port will have to deal with a combined authority on the north bank and two authorities on the south bank. It will make the best of it, but this illustrates the difficulties when there is such a split of responsibilities and staff.

I mentioned the Team Valley. For 25 or 30 years, I have been developing factories and offices, probably creating more jobs throughout the region than I have ever done in Westminster. You have to work with the economic development departments of different local authorities. If I build a big shed in South Tyneside and I want to let it to somebody, I will have to go to the LEP, to the combined authority and to Gateshead Council. I will have I do not know how many economic development departments to deal with in trying to fill that factory with people working there for a company. If I am going to embark on a project like that, I will have to work with all those bodies to make a success of it. That makes life very complicated.

I do not know what will happen with representations from the area on economic regeneration. I think of MIPIM, the great property event in Cannes in the south of France every year, and more local ones here in London. Are all the authorities going to be sending representatives down? They probably will. But if there were one combined authority for the area, we would have one group of people and one strategy and everybody would know who they were dealing with. Frankly, it would also be much cheaper for the rate payer and taxpayer if that were to be the case.

Although I support what is happening as a first step, it is a tragedy for the area that we do not have a single united authority. I would prefer one for Tyneside and one for Wearside. We already have the successful one on Teesside.

The transport issue illustrates the problems—it will be the same on housing and other areas—where all the bodies have to work together and staff will have to be employed to carry out the work in different bodies. It will be less efficient and less effective and it will not have the impact of one authority for the whole area.

I support the regulations with a heavy heart. I shall be interested to hear from the Minister if any discussions are going on with the authorities south of the river to try to bring them to their senses and join in, so that everyone knows where they stand, with one authority for the whole area.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for their contributions and I shall seek to deal with the points that have been raised.

No one on the Government side seeks to suggest that this is an ideal arrangement. We would have much preferred the councils south of the Tyne to participate in the deal. I agree, therefore, with the points that have been made by all speakers—with differing amounts of stress—that this is not the first choice. That said, it takes us forward. Again, most participants would agree with that, with the possible exception of the noble Lord, Lord Beith. I do not think that he was fair in suggesting that I was not keeping a straight face about this—it was probably said tongue in cheek; he is normally very fair—because I have no doubt that this is a good step forward for the region. I emphasise that, given the circumstances, this is the best way forward.

I shall try to deal with some of the points that were made. I agree with the noble Lord, Lord Beecham, that this is not the most desirable arrangement and that anyone who did not know would think that Gateshead and Newcastle were as remote from each other as Sydney and Melbourne, rather than being connected by the Tyne Bridge. It is a mystery to me, but that is where we are.

I do not want to suggest that £600 million over 30 years—although we should not underestimate the amount that will be put into the deal—will solve all the problems of the north-east. That is clearly not the case. Nor is it the sum total of the investment that goes into the north-east. Significant amounts, for example, go into the LEPs and the borders growth deal, of which the noble Lord, Lord Beith, will be aware. The Northern Spire Bridge attracted £82 million of government money and the International Advanced Manufacturing Park is another example. I shall come on to the money earmarked for the Metro system.

We cannot both say “Let us set up this devolution deal” and “What is the Government’s policy on x, y, and z?” It is for the combined authorities and the mayor to decide. It will not have escaped everyone’s attention that, although some metro mayors are Conservative, they are not all Conservative. This one—although I have no doubt it will be a close run thing—may not be a Conservative. I remind the noble Lord, Lord Beecham, that we are giving significant power to the mayor and the combined authority to decide on policy in the areas that we devolve.

The noble Lord mentioned the airport and air passenger duty. That issue will not be devolved. The Government are looking at that to balance all the needs of the different parts of the UK. He is right to refer to the problems of Scotland in competition with Newcastle; similar problems are felt in relation to Bristol and Wales. The Davies review has formed some of the policy in this area.

There is a significant housing element here, but that will not affect, for example, the existing provision for social housing, nor the £2 billion that the Prime Minister recently announced from 2022. There is no doubt that that will be bidded in for.

Adult education is not devolved by this. I agree with the noble Lord about the need for authorities to work closely together, as they do at the moment in many cases. The NHS is also not devolved by this arrangement—of the metro mayors, I think only the Mayor of Greater Manchester has that devolved power. Similarly, justice will not be devolved and so probation will not be directly affected, but I agree with him about the need to work across borders and to adapt arrangements in the light of circumstances. That is a fair point and we will approach it very much on that basis. The noble Lord asked about investment in the Metro system. In Budget 2017, £337 million was announced.

17:00

The noble Lord, Lord Shipley, expressed many of the same concerns as the noble Lord, Lord Beecham. I bow to their combined experience in the north-east. Indeed, everybody who has spoken has massive experience in the north-east and I thank them very much for participating in this debate so that we are able to get a flavour of what is happening on the ground and what some of the concerns may be. The noble Lord, Lord Shipley, said that this is a second-best arrangement. It is—there is no getting away from that. He also gave fair warning about hyperbole. We need ambition and aspiration, but we should not overreach ourselves and I do not think that it would be wise to suggest that this solves all the problems of the north-east. That said, it will contribute to success.

To pick up the point made by the noble Lord, Lord Wrigglesworth, on the experience in Teesside, this can generate work across parties for the greater good of the area. We have seen that with many of the metro mayors. None of them has solved all the problems of the area, but in all areas we can see some successes. They are making a significant difference to governance in their area.

The noble Lord, Lord Beith, commented on another layer of administration. Still on the subject of hyperbole, I think that we have to be a little careful here. He said that we are introducing an elected mayor and a political adviser, but we are not adding an extra layer of politicians; it is people from the combined authority participating in the way that things are governed. However, I agree that that is a concern that has to be guarded against. This is not the only money going into the north-east, although a significant amount will, and I agree that it will not solve all the problems.

I thank the right reverend Prelate for her contribution. It is always good to hear from someone with her experience and knowledge of the challenges in the north-east. I thank her for the encouragement that she has given and agree that it is important that we seek to make this a success by working together for the good of the area in facing the challenges that there are. I had not appreciated the history of the diocese and it was extremely interesting to hear about Newcastle. As I recall, a similar thing happened with the university: Newcastle University was initially an offshoot of Durham and is now very much a proud university in its own right.

The noble Lord, Lord Beith, spoke in the other place with massive experience of his area, rural Northumberland, and is still a powerful voice for the interests of Berwick and that area. I therefore take seriously the points that he makes. He is right to say that this is a joining of two very different traditions and areas: rural Northumberland, which is massive, and urban Newcastle. However, there is a shared economic, cultural and social interest, so we look to this being driven by the three leaders, who have so far shown real political leadership.

The noble Lord talked about the challenge of transport for the joint committee. It is a challenge. I have travelled on the excellent Metro system many times and know that it works very well now, as I am sure it will in the future. That is why we have provided for the committee, which needs to meet those challenges.

The noble Lord, Lord Wrigglesworth, has great experience in the north-east—as he said, more in Teesside than Tyneside. I thank him for the business analysis that he provided on the importance of ensuring that the areas work well together. That is the essence of the success of metro mayors: they bring people together at a regional and local level to work well together. I do not seek to suggest that this is a panacea that will solve everything overnight, but I think that it is a constructive way forward and I think that that view is shared. Once again, I thank noble Lords for their contributions.

Motion agreed.

Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018

Tuesday 30th October 2018 Grand Committee

EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018

Considered in Grand Committee

17:06

Moved by

[Lord Bates]

That the Grand Committee do consider the Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018 and the EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018.

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

[The Minister of State, Department for International Development (Lord Bates) (Con)]

My Lords, HM Treasury is currently undertaking the necessary preparations to ensure that, in the event that no deal is agreed when we leave the EU in March 2019, a functioning legislative and regulatory regime will continue to be in place for financial services. The aim of the work is to maintain continuity at the point of exit as far as possible. The European Union (Withdrawal) Act 2018 will transfer existing EU legislation on to the UK statute book at the point of exit. It also gives Ministers powers to amend this legislation to ensure that it will operate properly in a UK context. The Treasury is laying the necessary statutory instruments to complete this work for financial services legislation. This is the third debate in this Committee as part of this programme of work and there will be many more over the coming months.

Last December, the Treasury announced that legislation would be brought forward to establish a temporary permissions regime enabling EEA firms operating in the UK to continue their activities in the UK for a time-limited period after withdrawal. At the same time, it was also announced that a temporary regime would be brought forward in relation to non-UK central counterparties. The two SIs being debated today deliver on these commitments. They are both extremely important to the financial services sector, as they make a key contribution to our aims of maintaining service continuity at the point of exit.

The EEA passport rights regulations deal with references to the EEA financial services passport in UK law and establish a temporary permissions regime to provide for continuity once the UK leaves the EU and passporting no longer operates in the UK. Many will be familiar with the passporting system, which allows firms in an EEA state to offer services in another EEA state on the basis of the authorisation granted by their home state regulator. In a no-deal scenario, the UK would be a third country outside the EU financial services framework and therefore outside the passporting system, meaning that any references to EEA passport rights in UK legislation would become deficient at the point of exit.

The Government therefore need to repeal provisions in the Financial Services and Markets Act 2000 that implement the EEA financial services passport. This would mean that any EEA firms currently operating in the UK via a passport would no longer be able to do so from exit day, just as UK firms would no longer be able to passport into other EEA states. EEA firms would then need to obtain authorisation from the UK’s regulatory authorities if they wished to continue doing business in the UK. In such a scenario, the volume of applications received by the UK regulators would increase significantly as many hundreds, perhaps thousands, of EEA firms submit applications for UK authorisation. This will include applications from large and complex businesses with a substantial UK presence.

The need for a large number of firms to submit these lengthy applications for authorisation before exit day, and have the UK regulators process them in time, therefore poses a substantial cliff-edge risk for firms and regulators. Ultimately, this would affect UK individuals and businesses who rely on services from passporting EEA firms and cause disruption to them. To mitigate those risks, in line with the Government’s commitment on 20 December last year, the Treasury has therefore put forward this legislation to establish a “temporary permissions regime”. This regime would enable EEA firms operating in the UK via a passport to continue their activities in the UK for up to three years after exit day, allowing them to obtain UK authorisation or transfer business to a UK entity as necessary.

To alleviate the potential scenario where some EEA firms cannot be authorised within the three-year period, this SI also gives the Treasury the power to extend the regime. This could be done only where it is “necessary” to do so, and it could be extended by only 12 months at a time. Any extension would need to be based on a robust assessment from the FCA and the PRA regarding the effects of extending and not extending the period. The instrument that would extend the regime would be subject to the negative procedure, which was drawn to the special attention of the House of Lords by Sub-Committee B of the Secondary Legislation Scrutiny Committee in its report published on 18 October. The Treasury judges this choice of procedure appropriate given that the power to extend the regime is conferred by this instrument, which itself is subject to the affirmative procedure. I assure Members that we take parliamentary scrutiny seriously. Although this affirmative instrument introduces a power to make regulations via the negative procedure, the Treasury believes that if a like provision were to be made by an Act of Parliament, it would also be via the negative procedure because the power is so tightly drawn.

The temporary permissions regime would ensure, first, that firms can continue servicing UK businesses and consumers for a temporary period after exit day and, secondly, that firms will have appropriate time to prepare for and submit applications for UK authorisation and complete any necessary restructuring. Finally, the PRA and the FCA can manage the expected applications for UK authorisation from EEA passporting firms that were previously operating in the UK via a passport in a smooth and orderly manner.

This SI is a pragmatic response to a complex issue. It is necessary to minimise disruption to users and providers in the UK financial services sector in a no-deal scenario. I note that the Secondary Legislation Scrutiny Committee report acknowledged the importance of these regulations in achieving this objective.

It is with similar considerations for minimising disruption and enabling the UK’s regulators to manage a no-deal scenario in an orderly fashion that I turn to the second of these SIs, which covers central counterparties. Central counterparties are central to the UK and global financial system. They reduce risk and ultimately improve the efficiency and resilience of the system as a whole. They stand between counterparties in financial contracts, becoming the buyer to every seller and the seller to every buyer. They guarantee the terms of trade even if one party defaults on the agreement, reducing counterparty risk. UK firms currently receive services from non-UK central counterparties under the framework set out in the European Market Infrastructure Regulation, known as EMIR.

Under EMIR, non-UK central counterparties are permitted to provide services to UK firms if they are either located in the EU and authorised by their home regulatory authority or located in a third country deemed equivalent by the Commission and recognised by the European Securities and Markets Authority. In a no-deal scenario, when the UK leaves the EU and is no longer within the single market for financial services, those non-UK central counterparties would be unable to provide services to UK firms until they were recognised under the UK’s domestic regime. Such a sudden dislocation in the provision of services would introduce substantial risks to UK firms, many of which rely on non-UK central counterparties to provide clearing services and for mitigating transaction risks. By extension, this could impact on customers of those UK firms. Day one disruption to these services would pose risks to UK firms, as well as stability risks to the broader financial system.

17:15

The central counterparties SI therefore provides a number of measures to mitigate these risks, and ensure that a day one scenario can be properly managed. First, the SI establishes a UK framework for recognising non-UK central counterparties, while maintaining the same regulatory criteria for non-UK central counterparties to provide services in the UK. The Treasury will take on the European Commission’s responsibility for determining whether a third-country jurisdiction’s regulatory and supervisory framework is equivalent in respect of EMIR. The Bank of England will take on functions relating to the recognition of individual central counterparties located in third countries, which up until now has been the responsibility of the European Securities and Markets Authority.

Secondly, the SI makes it possible for the Bank of England to take the necessary steps to recognise non-UK central counterparties as soon as possible following exit day. This is done by providing powers to the Bank of England to consider recognition applications ahead of exit day, as well as to enter into supervisory co-operation arrangements with non-UK authorities.

Finally, the SI establishes a temporary recognition regime for central counterparties, in a similar fashion to the temporary permissions regime provided by the EEA passport rights SI. Subject to certain conditions, the regime provides temporary recognition for a period of three years to non-UK central counterparties that notify the Bank of England of their intention to continue to provide clearing services in the UK. The purpose of temporary recognition is to allow additional time for applications to be processed and equivalence decisions to be made by the Treasury. While non-UK central counterparties are encouraged to engage with the Bank of England as early as possible, the temporary recognition regime will ensure the continuity of services if it happens that a recognition decision cannot be made ahead of exit day. As with the EEA passport rights SI, this SI would give the Treasury the power to extend the regime for 12 months at a time if it is satisfied that an extension is necessary and proportionate to avoid disruption to financial stability.

The measures in both these SIs are, we believe, a pragmatic response to ensuring service continuity for the UK on leaving the EU without a deal. The importance of their provisions is reflected in the announcement last December, which made it clear to the industry well in advance of exit day that the Treasury would put forward legislation to deliver these regimes. The regulators are now in the process of consulting industry to ensure that these regimes are properly applied in the UK when it leaves the EU. Further information has been made available to firms through dedicated sections of the regulators’ websites. The Treasury has continued to engage the financial services sector on issues relating to no-deal legislation and will continue to do so.

These SIs are an important part of the work to provide a functioning financial services regime in the event of a no-deal scenario. It is important to stress that if, as expected, we enter an implementation period when we leave in March 2019, the access to each other’s markets would remain the same during that period: passporting will remain in place and non-UK central counterparties that meet the current requirements will continue to be able to provide services to UK banks. However, these SIs should provide reassurance to Parliament and, more importantly perhaps, to the UK financial services sector as a whole that the UK is prepared for all possible outcomes. The City’s success is based on being the most open and dynamic financial centre in the world. Ensuring that EEA financial services firms and non-UK central counterparties can continue to operate here after exit day will help to maintain this status, protect jobs and preserve tax revenues to fund our vital public services, while also preserving an efficient and resilient financial system. I hope noble Lords will join me in supporting these regulations and I commend them to the Committee.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I would like to intervene briefly to ask my noble friend a couple of questions. Although we all hope for a deal scenario, not a no-deal scenario, nevertheless the practical approach to these matters should perhaps be thought through a little more. My first point is a procedural one relating to the statutory instrument—I refer particularly to the EEA passport rights matter. I spent some years—not many, thank goodness—as a member of the Select Committee on Statutory Instruments in the House of Commons, which was chaired by the late Bob Cryer. He was scrupulous about determining the nature of approaches towards statutory instruments.

I am concerned that we have, effectively, a hybrid—an affirmative resolution, but nevertheless with the prospect of a negative procedure in the event of any extension of time, for registration of the various bodies that may need registration in due course. I find that rather concerning. I would like my noble friend to confirm that we are not getting dangerously close to a ban on negative approaches. Clearly that could happen when the affirmative approach is required but where there is a fee involved for a function which a UK public authority would exercise.

I believe the registration itself must by implication—although it is not revealed in this document—carry with it some financial implications; some fees will have to be paid, although they are not referred to here. If that is the case, would it not be more appropriate for affirmative resolution to be carried through to those extensions as well as to the rest of the item? That is my first point.

My second point is that while the FCA seems capable of handling quite large numbers of registrations for companies under EEA processes, the Prudential Regulation Authority does not. That is a deep concern. So far, the PRA seems able to manage only 10 or 12 applications per year. It has already indicated that it expects that there will be between 100 and 200 applications in the event of a no-deal scenario under these proposals. How does my noble friend believe this can be dealt with, without some form of massive increase in resources or powers, particularly in the hands of the PRA? I would be grateful if he would allow that.

I come to my third and final point. He has talked about the extension of the extension, which requires six months’ notice from either the PRA or the FCA as to the needs arising. To my mind, that is an almost indefinite process; we would see these extensions going on ad infinitum, or certainly for a considerable time. Surely that must be a disadvantage to the entities applying for registration and, indeed, to the position of this country in relation to the financial services in which it is at present so pre-eminent. Can he assist with that? I am grateful to him for his introduction.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I thank the Minister for his introduction and I concur with him that these are necessary instruments. I declare my interests as in the register and, in particular, as a director of the London Stock Exchange.

Starting with the EEA passport rights regulations, I fully understand the need for temporary or deemed permissions and some flexibility, but in the longer term there are risk and competitiveness issues to consider, so I shall explore further the time periods and how the policy surrounding them might operate. There are two time periods: two years from exit before a formal application for authorisation has to be made, and three years from exit, extendable, within which the relevant regulator makes a determination. Supervisors can require a formal application to be made before the two-year period is up, and presumably that could be exercised for a variety of reasons, such as phasing in for size or complexity of entity or for other risk-based reasons. As the Minister has already mentioned, the two-year period is also potentially useful to EEA firms trying to decide what to do, getting used to UK supervision and having time to organise themselves before having to seek authorisation. It can also be that the two years is simply a waiting room until the regulators have the capacity to carry out the authorisation determinations. How is it envisaged that the two-year period will operate? What is the policy? Is it a phasing mechanism? Will the regulators be controlling that phasing? Is it wholly in the hands of the firms that want their passports replaced? Is it expected that everyone will have two years and then there will be a sudden rush of applications; or, as I asked before, will there be some kind of risk-based assessment about which applications must be brought forward in time?

I now turn to supervision, because the entities in the temporary regime will come under supervision. Can the Minister assure us about the regulator’s capacity to supervise and that significant supervision will take place? If it is envisaged that there may be an unmanageable, or at least long, queue for authorisations because of capacity issues, what is the capacity situation with supervision?

Does two years really mean a fixed two years that cannot be extended? I cannot find anything to say that it could be, and there is nothing in the Explanatory Memorandum. But just in case I might have missed something, will the Minister clarify whether the construct of the regulation stating that “Section 55U” of FiSMA “has effect as if” is a good way of keeping the two years unamendable by any power to make changes that might be embedded in FiSMA or anywhere else? I am still learning the tricks of some of the parliamentary drafting that goes on here, and that is quite a good one to remember.

As to the three-year limit allowed for determination of applications, it can be extended, as has already been said. How necessary that is might in part be determined by the policy over the preceding two years. Is extension available only if the regulators do not have the capacity to conclude within three years? I think that is what the Minister said. Has three years been set assuming a rush of applications at the two-year stage, or will an extension be inevitable if that two-year rush happens?

As the noble Lord, Lord Kirkhope, said, it would clearly not be appropriate for the extension to be used on a rolling basis to allow businesses that might not measure up to full UK authorisation standards to continue to operate in a temporary regime because there had been no determination of their application. That is one of the reasons why I share the view expressed by the Secondary Legislation Scrutiny Committee that there is a good case for an extension requiring the affirmative procedure. I do not agree with the reply from the Treasury Minister John Glen in the correspondence. It is not satisfactory to say that some affirmative permission somehow flows from this SI so that the negative procedure is enough at the time of the extension. That might have been the case if the policy on these time periods had been more clearly elaborated, but it was not. In fact, it seems to be in the hands of the regulators, and if that is the case, then I cannot see how avoiding affirmative procedure is the right way to go. If the Government had set the policy and embedded it in here, that would be different, but this does not include the policy on how it is going to be used.

17:30

A positive case for extension somehow has to be made to Parliament. An important part of the extension process is the report under Regulation 27, made by the relevant regulators to the Treasury six months ahead of expiry of the time period. What arrangements are there for that report to be made available to Parliament in a timely way, not just as background once the regulation has been laid and it is too late? For example, will at least all the relevant Select Committees be briefed?

There are undeniable risks if temporary measures drag on too long, and it could mean unfair competition with domestic entities. It is one thing for UK companies to have to absorb the cost of seemingly more strenuous conditions being applied to them in EU countries, and quite another if there is somehow a lighter-touch temporary regime here at home for competing EU-based companies. I am sure noble Lords will see that there is a prospect for a double whammy to UK companies if they lose out on both sides of that for a significant period.

I will move on now to the central counterparties regulation. The temporary regime has some parallels with the passport regulation, and covers making the Bank of England the regulator and the EMIR recognition and equivalence regime. I acknowledge the wisdom of saying that the Treasury and the Bank of England can get ahead in the recognition and equivalence. That is very important. I repeat the concerns on time limit extension. There is good reason why that should have been made using the affirmative procedure. In some ways, I see even less reason for extending it here because central counterparties are relatively few—they may be important and systemic when they are large, but there are not huge numbers of them. Will the Minister tell me what reasons are envisaged for not being able to get out of the temporary regime and needing an extension? It might be that, despite the best endeavours, the necessary co-operation arrangements have not been put in place for whatever reason.

I am also slightly puzzled by the fact that Regulation 12 says that an application has to be submitted before Brexit, but Regulation 19 says that the game is up if you have not made one by six months after Brexit. Either there is some discontinuity there or I have missed something—which is not impossible when going through lots of these things very quickly.

The final point I want to make is not a question that can be easily answered. One of the criticisms that was constantly made against the EU equivalence regime in the various Brexit reports that came out was that it could be withdrawn with little notice—in fact, they feared that could happen under political influence of the Commission. Can the Minister explain whether such criticism could also be made against the UK regime in due course, bearing in mind that it basically follows the EMIR regulation, or have the conditions in Regulation 19(7)—that the Bank of England can withdraw only because of financial stability; although that can obviously be used very widely—made it in some way more binding?

Finally, when the Commission was making equivalence decisions under EMIR, it was sometimes quite difficult to fit within the wording of EMIR Article 25(2)(b) because some countries simply do not have regulation and authorisation provisions. These are not the major countries, but nevertheless there may be CCPs. Due to the capital charges that apply to other bodies if a CCP is not recognised, there is an incentive for recognition of CCPs in what one might call less-developed countries in the financial services sense. It then became necessary for the Commission to consider comparable mechanisms and use a very flexible interpretation of the language of the legislation. Indeed, it had to resort to things like looking at the rules of the exchangers that were using the CCPs, with that replacing, if you like, the legal provisions. It raises the question of whether there is any language in the way equivalence is to be done that is drawn so tightly in this statute that it will become inflexible and you will not be able to recognise some of those types of CCPs, particularly where you are referencing the legal constructs that are available in the country. Those legal—in legislative terms—constructs simply may not be there, and you are looking for something else that you have to use to replace them.

[The Earl of Lindsay (Con)]

My Lords, I want to ask my noble friend a couple of questions on the CCP side to clear up any confusion, in my own mind at least. The first refers to the requirement in the Explanatory Memorandum for,

“non-UK CCPs (including CCPs established in the European Union)”,

to apply to the Bank and receive recognition from the Bank in order to continue their activities after Brexit day. The paragraph thereafter refers to the opportunity for temporary recognition, and there it refers only to third country CCPs. I assume that third country CCPs include CCPs established within the European Union, but the slightly different terminology used in those two paragraphs left a doubt in my mind as to whether there was some distinction. If indeed the temporary recognition is not available to CCP establishment within the European Union, what is the reason for that? From the way the memorandum is written, it could conceivably be that the term “third country CCPs” does not apply to European Union-established CCPs.

My second question, which reflects a question raised by the noble Baroness, Lady Bowles, is about the length of the temporary recognition timeline. If I understand it correctly, it is set initially at three years and can be extended by 12-month intervals. Is it envisaged that a non-UK CCP can, at the end of three years, still be operating under a temporary recognition regime and can continue thereafter to enjoy 12-month extensions to its—as it were—permitted activities in the United Kingdom?

[Lord Tunnicliffe (Lab)]

My Lords, I will speak to these two instruments in the order they appear on the Order Paper. I found these two instruments difficult to understand and therefore have consumed considerable intellectual effort in actually understanding them, which has left very little effort in reserve to produce an elegant speech. I would like to thank two officials: Greg Stump, for his tutorial on the CCPs, and Richard Lowe-Lauri, for his tutorials on the passporting. I have to say that the disadvantage of having an excellent tutorial is that all the questions I could have asked have largely been answered, so I will not be making a very long speech.

One of the biggest problems in understanding the instruments is that they, particularly the one on passporting, refer frequently to the Financial Services and Markets Act, which we all know as FiSMA. I do not have available a fully amended version of it to refer to so I want to ask the Minister something; I definitely do not want a reply because he will have to take this back to the ranch. Some years ago, a precedent was established when a 50-page Bill came from the Commons and left the Lords 150 pages long—it involved introducing bail-ins, et cetera—and the Treasury was good enough to provide an electronic copy of FiSMA, fully amended. That made understanding what the revisions of the instruments were doing much easier. I request formally that the Treasury does that again. Clearly the Government have a fully amended copy of FiSMA available on their machines because otherwise the creation of the instruments would be virtually impossible.

The regulations on passporting seem very simple. Basically, they say that an EEA CCP can continue trading in the UK, initially under a temporary recognition before moving into permanent recognition. It is as simple as that. As I understand it, this cannot be done unilaterally because moving CCPs into a full recognition environment will be dependent on memoranda of understanding with the host nations of those CCPs. I would value confirmation of that if it is true. Even in an extreme no-deal scenario, there will still need to be international understandings between nations in that situation.

There is no reciprocity in the instruments, as I read them. We have a situation where we are saying to EU CCPs, “Please carry on as before”, and to UK-based CCPs, “We have secured nothing to allow you to continue your business in Europe”. In the case of CCPs, not continuing on a reciprocal basis will be very difficult for both Europe and ourselves. I believe that there is some discussion in Brussels about there being reciprocity, even in a no-deal situation. I would value any news the Minister may have on the development of such a reciprocal understanding.

In the event of a loss of recognition by a foreign-based CCP, it is not clear what the enforcement mechanism would be. For instance, would the loss of recognition mean that trade contracts would become ultra vires or lead to a very messy situation? The statutory instrument contemplates the loss of recognition but does not set out how that would be managed. I would value anything that the Minister might be able to tell me about what would happen.

Equally, my understanding of the passporting instrument is, once again, that it is extraordinarily simple. It means that EEA firms can carry on trading in the United Kingdom on virtually the exact same terms as they do now. In other words, a no-deal situation has no negative consequences for non-UK firms because the mechanism for a more or less automatic granting of temporary authorisation, and then the transition to permanent authorisation, is set out in this instrument. The converse is not there; as far as I can see, it does nothing for UK firms. The Minister may put me right on this but, as far as I know, there are no effective World Trade Organization rules for services that would allow UK firms to trade in Europe.

17:45

I have only one or two small questions on the instrument, if my one-line précis is substantially accurate. First, some of these foreign firms are covered by the Financial Services Compensation Scheme—the FSCS. Customers of those firms in the United Kingdom therefore have that protection. Can I be assured that with a temporarily—and subsequently fully—authorised firm, such protection as consumers now have will continue uninterrupted as we go through exit day into, perhaps, a temporary period and a more permanent period? Again, the instrument seems silent as to what happens if a firm, having been in a period of temporary authorisation, is subsequently denied it permanently if it is found to be lacking in some way. What would be the consequence for UK customers? Would they in fact find that their investments or trades, or whatever services are provided by these financial firms, are in some way at risk?

The sequence of events if there is no deal, which we all hope will not happen, will in some bizarre way end up as an audit of passporting because its concept, as I understand it, is that each member nation of the EU has equivalent and appropriately powerful rules for regulation. Those rules and regulations can be accepted by other members of the EU as sufficient to allow trading across borders. This would imply that any firm trading in the UK now through a passport ought to be trading at such a standard that it would, beyond reasonable doubt, expect to be authorised. I would value any comments that the Minister might have on that concept.

Other noble Lords have spoken about the extension being for 12 months at a time. I am sure the Minister will try to assure us that these extensions will happen only in exceptional circumstances, but they always are exceptional circumstances. I suspect that those from the 17th century, when the Army went from being a standing army to being authorised every year by a vote in Parliament, would be surprised to find the practice still happening today—which it does, because I have to vote on it every year. I fear that “12 months at a time” could go on for many years. For that reason, I support the general request that this should be under an affirmative procedure, not a negative one.

The question about regulators’ resources is also very valid. I believe that in a year, the PRA makes authorisations that are in single figures and, although I cannot remember the figure I have been given, that the number of firms that might be under its purview could be something like 70.

My other concern is about the Bank of England. My understanding of the instrument is that the Bank of England will have supervisory responsibilities towards these firms from exit day. I assume that will include supervision of what I think is called the reform and resolution regime—that is, how you manage a bank that is going broke. I know that the Bank of England has a significant directorate that looks after that for UK banks. Presumably it would pick up a similar responsibility. Can the Minister assure us that all features of supervision for which the regulator has immediately become responsible, as I understand it, will be properly resourced?

I do not know whether I am getting this wrong, but this seems to me to be the most significant SI in the financial sector that we have had so far and that it is not likely to be overtaken by a more significant one. It says that in a no-deal situation the UK capitulates on the matter of international financial services. It creates a regime where EU and EEA firms carry on trading more or less as if nothing had happened and it implies that the UK cannot trade in Europe as it does today. As far as I can see, there are no mechanisms to allow it to trade. I hope that I am wrong, that out of the hat comes a rabbit and that the Minister will say there is a WTO rule or something like that, but I do not believe that is so. I think the situation is catastrophic. Perhaps I am over-exaggerating. Perhaps it is really not a big problem. Lots of eminent politicians for whom I do not have natural sympathy have expressed how wonderful no deal would be. I think this is the classic example of where no deal would be really bad for the industry. What is the Government’s estimate of the effect of no deal on financial services in terms of employment, tax revenue and the health of the economy? Aside from these instruments, because presumably the Government are, as we speak, working flat out to secure a better deal for financial services, what is the Government’s aspiration in this area? What position do they hope to reach to make up for the lack of reciprocity in this deal? Will it be a fully reciprocal situation where UK firms will have the same privileges as EU firms have trading in the UK?

[Lord Bates]

I thank noble Lords for participating in this debate. It has lasted for 46 minutes, of which my introductory remarks were 13 minutes. In the 33 minutes, noble Lords have, by my calculation, managed to generate 24 questions which I will attempt to work my way through. I simply flag that up for colleagues on the Front Bench who are waiting for immediate business.

These are crucial issues. Noble Lords are quite right to raise them and seek further clarification. I commence by saying that I agree with the noble Lord, Lord Tunnicliffe, in this respect: this is not the outcome we are seeking or that we want or desire. It is not the outcome that we expect. We expect to secure a deal that will allow us to continue to have a good trading relationship in financial services with the European Union. We believe that that is in the interest of not only the UK but the EU as well. We are working very hard to secure that.

[Lord Tunnicliffe]

I want to explore that question a little bit further. Surely the test would be whether this is, in its elements, reciprocal to the privileges that EU firms will have as a result of this instrument.

[Lord Bates]

I will come on to that.

[Lord Tunnicliffe]

I am sorry.

[Lord Bates]

I do not want a 25th question; I will keep it at 24 and work my way through to that one. I have some remarks to address that particular point.

The noble Baroness, Lady Bowles, asked whether there could be a scenario in which a firm cannot be authorised within three years, which would extend the time limit. The answer is yes. The position is that although the PRA and the FCA have credible working estimates of the number of EEA firms that will apply to them for authorisation, there is an unavoidable degree of uncertainty about this process. That, coupled with the varying degrees of complexity in some of these firms’ applications, means that a power to extend the length of time is necessary. This will be crucial to mitigate the potential scenario in which some EEA firms cannot be authorised within three years from exit day, which could force the regulators to reject authorisation for the firms’ applications. Clearly, we do not seek that outcome.

The noble Baroness also asked whether there is enough flexibility to make equivalence decisions for CCPs. The powers in the EU withdrawal Act limit the fixing of deficiencies to retain EU law when the UK leaves the EU. It does not allow for policy changes beyond this element. The aim is to provide certainty to non-UK CCPs and their UK users during the period immediately following withdrawal from the EU. The criteria for recognition of non-UK CCPs will remain unchanged and will be onshore. This would allow recognised non-EU CCPs to resubmit the application used for EU recognition.

The noble Baroness then asked about the process for the joint assessment by the regulators. As set out in the statutory instrument, the PRA and the FCA would need to submit to the Treasury a joint assessment outlining the effect of extending or not extending the time period on the regime, on firms in general, on the UK financial system and on the ability of the regulators to discharge their functions in a way that advances their statutory objectives. That assessment would need to be submitted to Her Majesty’s Treasury no later than six months before the end of the regime. The Treasury would then make regulations to extend the duration of the regime only if it considers them necessary on the basis of the assessment.

The noble Lord, Lord Tunnicliffe, asked what protections would be available following exit day to UK customers who currently have access to the Financial Services Compensation Scheme. No one should lose FSCS protection as a result of this SI. If a UK customer is currently protected by the FSCS, they will be protected as long as the firm enters the temporary permissions regime.

The noble Lord also asked about the consequences for UK customers if a firm is denied authorisation. Any firms in the temporary permissions regime that are denied full UK authorisation by the UK regulators will lose their temporary permissions. Further legislation will be laid before Parliament at a later date to enable such firms to wind down their UK-regulated activities in an orderly manner. This legislation will ensure that the existing contractual obligations of these firms with UK customers can continue to be met. UK customers would no longer be able to enter into new contracts with these firms unless the firms had successfully reapplied for authorisation from UK regulators.

The noble Lord then asked what a firm being denied authorisation says about the passport regime and whether it suggests that it is not equitable, let alone equivalent. The EEA passport regime system is underpinned by the co-operation of EEA member states’ competent authorities. Each member state’s competent authorities supervise the activities of firms under its jurisdiction, even if those activities take place elsewhere in the EU. Once we leave the EU, we cannot rely on this co-operation continuing. We are therefore making these preparations.

18:00

The noble Baroness, Lady Bowles, asked what organisational preparations are being made by the FCA and the PRA for the challenges of supervising new firms. As the CEO of the Prudential Regulation Authority, Sam Woods, explained to the Treasury Select Committee, the PRA has significantly increased the number of staff working on these issues and has reprioritised its activities to ensure that the right resources are focused on its authorisations work. The FCA stated in its 2018-19 business plan:

“A significant proportion of our resources are already focused on the forthcoming exit, including arrangements to implement the change”.

I am confident that the PRA and the FCA are making adequate preparations and are effectively allocating resources ahead of March 2019 and the start of the temporary permissions regime.

The noble Baroness, Lady Bowles, asked whether there is a contradiction between Regulations 12 and 19 about when the application needs to be made. The central counterparties may apply before exit day but are not required to. They have up to six months after exit day to apply for full recognition.

[Baroness Bowles of Berkhamsted]

Regulation 12 states:

“A central counterparty established in a third country”,


that,

“intends to provide clearing services … on and after exit day”,

has to make an application and that the application “must” be submitted before exit day. I do not think that is quite what the Minister said. I realise that time is short now, and there are quite a few things that the Minister has had to gloss over. I hope he will review what I have said, and I would welcome a written response.

[Lord Bates]

We may have misunderstood the point that the noble Baroness was making. I am very happy to undertake to write to her on that specific point and copy it to members of the Committee.

The noble Baroness asked why a CCP might not have been recognised within the initial period. While the Bank of England has credible working estimates of the number of CCPs that will apply to it for recognition, there is an unavoidable degree of uncertainty about this.

My noble friend Lord Lindsay asked whether third-country CCPs includes EU CCPs. EU CCPs will be treated as third-country CCPs post-exit. EU CCPs and third-country CCPs will be eligible for the temporary recognition regime if they were permitted to operate prior to 29 March 2019.

My noble friend Lord Kirkhope asked whether the regime could be extended continually each year. It is in everyone’s interest for firms to transition from the current system of EEA passporting rights to full UK authorisation as quickly and efficiently as possible. There would be no circumstances in which it would be desirable for the regulators or the Treasury to extend the length of the regime on a continuous basis. He also asked whether the negative procedure is an appropriate instrument. I respect the work of the Secondary Legislation Scrutiny Committee, whose report we have before us today. I addressed this in my opening remarks. We believe that the choice of procedure is appropriate, given the overall powers being scrutinised now through this affirmative instrument. The negative procedure would just be an extension of that. The power to extend the time period is not a provision which relates to fees and so would not, if made alone, attract the affirmative procedure under Section 8 of the Act, to which my noble friend referred. He also spoke about the process for registration with the PRA and its ability to deal with the volume of applications. I reiterate what I said to the noble Baroness, Lady Bowles: I am confident that the PRA and the FCA are making adequate preparations to deal with the scale of the challenge which they face, but it is a significant challenge.

The noble Baroness, Lady Bowles, asked whether the regulators may ask firms to apply for authorisation sooner than the two-year deadline set out in the statutory instruments if they so choose. The EEA Passport Rights (Amendment, etc., and Transitional Provision) (EU Exit) Regulations will give regulators the ability to direct firms to make an application for authorisation during a specified period within two years from exit day if they have not already applied for authorisation. This will help regulators manage the flow of applications in a smooth and orderly manner. I draw the Committee’s attention to the FCA’s recent consultation paper published on 8 October, in which it set out its intention to allocate each firm a three-month landing slot within which that firm will need to submit its application for UK authorisation. It plans to issue a direction shortly after exit day setting out which firms have been allocated to which landing slot.

The noble Baroness, Lady Bowles, asked how the two-year application period will operate. I dealt with that earlier but I did not cover one specific point: the two-year deadline for applications to be received cannot be extended.

The noble Lord, Lord Tunnicliffe, asked whether this is a one-sided arrangement and whether there will be any reciprocation. The Government are only able to take legislative action in relation to EEA firms’ passport rights to the UK; they cannot through unilateral action influence the status of UK firms. That is why we are seeking to agree a deep and special partnership with the EU, as well as an implementation period, so that important preparations can take place in an orderly manner.

The noble Lord asked what the impact on the financial services sector would be if there is a no-deal exit. Reaching a deal is in the mutual interests of both sides. We are focusing on the negotiation of the right future partnership based on a proposal published in the White Paper on 12 July. That White Paper outlined the Government’s position on financial services and Brexit. We propose a framework for financial services that will provide stability for the EU-UK ecosystem, preserving mutually beneficial cross-border business models and economic integration for the benefit of businesses and consumers in the UK and the EU.

The noble Lord asked what it says about the regime if a firm is denied authorisation. Once we leave the EU we cannot rely on this co-operation continuing and therefore we are making these preparations. It is important that these regulations go ahead so that consumers in this country have confidence in the financial services put forward here.

I have addressed the Financial Services Compensation scheme and I will now deal with one or two points relating to central counterparties. The noble Lord, Lord Tunnicliffe, made a point on the memorandum of understanding with the host state. Yes, there are a number of necessary steps for a non-UK CCP to be recognised in the UK. These include that the Treasury must determine that the relevant third country’s regulatory and supervisory framework is equivalent to EMIR; the bank must agree supervisory co-operation agreements or memorandums of understanding with relevant competent authorities of the CCP applicant; and the non-UK CCP’s application for recognition to be assessed by the bank must include information on its financial resources, internal procedures and various other relevant information.

The noble Lord asked what would happen if the central counterparty is not recognised. If a non-UK CCP were to continue to provide clearing services to UK firms without recognition, it would be in breach of a general prohibition under the Financial Services and Markets Act, which prohibits anyone carrying out a regulated activity unless they are authorised or exempt. The CCP would be guilty of an offence and subject to a fine or imprisonment. However, further legislation will be laid at a later date to enable such firms to wind down their activities in an orderly manner by being treated as being recognised for a short period.

I hope that has addressed many of the questions.

[Lord Tunnicliffe]

In the unlikely event that the Minister has missed anything, will he review his answer and, if he has missed the odd point, send a letter covering it?

[Lord Bates]

I am happy to give an undertaking to do that. We are in uncharted territory here—we have not been through this process before. The Economic Secretary to the Treasury, John Glen, is being incredibly diligent in engaging with the regulators on a regular basis and being guided through this process. That is why the announcement was made in December. We will continue to keep this under review. The noble Baroness, Lady Bowles, made a suggestion about how we might keep the House informed of developments and made particular reference to perhaps involving the Select Committees. If I may, I will take that back to the Economic Secretary to the Treasury because, in some of these areas, once we know the lay of the land—we hope it will not come to that but if it does—then we will clearly need to review these provisions. I am happy to take that suggestion back and include it in my answer to the noble Lord, Lord Tunnicliffe, which I will copy to my noble friends Lord Lindsay and Lord Kirkhope.

Motion agreed.

Electricity and Gas (Energy Company Obligation) Order 2018

Tuesday 30th October 2018 Grand Committee

Considered in Grand Committee

18:10

Moved by

[Lord Henley]

That the Grand Committee do consider the Electricity and Gas (Energy Company Obligation) Order 2018.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, this order was laid before the House on 19 July of this year and I beg to move that it be approved. The Government place great importance on supporting low-income families and ensuring that their energy bills are as low as possible. To that end, we continue to provide direct financial support to vulnerable households through the warm home discount scheme, while the energy price cap will protect around 11 million energy customers who have been stuck on poor value deals. Our election manifesto restated our commitment to tackling fuel poverty by increasing the energy efficiency of homes and the energy company obligation, or ECO, is the key policy in meeting those commitments.

Under ECO, energy suppliers in Great Britain are regulated to reduce domestic energy bills by installing energy efficiency measures. Since its start in 2013, more than 2.4 million measures have been installed in around 1.9 million homes. In 2015, the Government stated their intention to reform ECO to provide more help to those who need it most. The ECO order that we are debating completes that reform and will result in the whole scheme being focused on low-income and vulnerable households until March 2022. We will continue to fund the scheme at £640 million per annum until 2022, and in the Clean Growth Strategy we committed to funding domestic energy efficiency at least at that level until 2028. The Government consulted on proposals for the new scheme in spring and received 239 responses. Most responses were broadly supportive.

Currently, energy suppliers become obliged to act under ECO when they have 250,000 customer accounts. These thresholds were set in 2013, when the “Big Six” energy companies dominated the market. There are now more than 70 domestic suppliers in the market and we consider it appropriate that more are covered. Therefore from April 2019, suppliers with 200,000 customer accounts will be covered, falling to 150,000 from April 2020. We have expanded the eligibility criteria of the scheme so that households on certain disability benefits, their Ministry of Defence equivalents and low-income working households in receipt of child benefit are newly eligible for support. This increases the number of households eligible for support from 4.7 million under the affordable warmth part of the previous scheme to 6.6 million households under the new scheme. We believe this strikes the right balance between supporting those households most in need and keeping delivery costs low. We have also increased the proportion that can be delivered under the local authority flexible eligibility scheme from 10% to 25%. This allows local authorities to refer households for help, including people with health conditions exacerbated by cold homes.

To support the industrial strategy and the clean growth challenge, suppliers will be able to deliver up to 10% of their obligation using measures not previously supported under ECO. While encouraging a broader mix of measures, we will continue to maintain safety and installation standards. The scheme allows the equivalent of 35,000 broken heating systems to be replaced each year so that low-income households can receive support, should their heating system be beyond repair. While other forms of energy efficiency may have greater long-term benefits, a broken boiler can be the immediate crisis point for a struggling family.

18:15

We are allowing oil systems to be replaced so that rural households without a viable alternative can continue to receive support. However, coal heating is ineligible. Only ground source heat pumps will continue to qualify for support under both ECO and the renewable heat incentive. We have limited the potential for double subsidy, but have made an exception for ground source heat pumps due to their high up-front costs and the long-term value of ground loops. Energy suppliers will have to deliver at least 15% of their obligation to rural households, maintaining this important safeguard for households with a greater propensity for fuel poverty.

To encourage installers to take a broader approach to improving the energy efficiency of homes, inefficient heating systems can be replaced if they are delivered alongside high-value insulation. We have retained a solid wall minimum requirement at the equivalent of 17,000 solid wall homes per year, but we have introduced flexibility by allowing suppliers to meet this minimum through a combination of other measures if they deliver the same bill savings as solid wall insulation.

The changes that we have made to the scheme are important. They will help to upgrade the homes and reduce the bills of more than 1 million low-income and vulnerable households during the period of this order, while paving the way for new measures. This will add further impetus to meeting our fuel poverty and carbon reduction goals by encouraging more cost-effective, customer-friendly solutions. I commend the order to the Committee.

[Lord Teverson (LD)]

My Lords, I thank the Minister for his very detailed explanation of what this secondary legislation does, although I have a few questions. This is an example of where we pretend we are not taxing consumers. As this is not public expenditure, we have to put it through energy companies, which are in the private sector. They decide and spend a lot of time working out who should get these things when it could all be done a lot more simply if we did not go through this public expenditure pretence. When I go through ECO, it always seems to me that it would be so much better if it was administered by local authorities. They know households with problems and have all sorts of obligations towards private renters, who are a real problem in terms of energy efficiency and getting landlords to implement these sorts of schemes. It would be so much easier if we were honest with ourselves. This is a form of taxation, it is public expenditure, and we should just sort it out, rather than go through all the bureaucratic inefficiency that we have.

Having said that, I welcome the scheme very much in terms of moving this agenda forward. The present scheme, as I understand it, ran out at the end of September. We now have this instrument in front of us. I do not know how long it will take to get the thing started. I understand that there are some roll-over functions, and I welcome that, but so often with this sort of funding—even more so with European funding—there is always a risk that the companies and installers involved in this have a cash-flow crisis because we stop and start these programmes. I may be worrying unnecessarily, but I would be interested to understand how that gap is coped with and when the scheme is expected to really take off.

I noted with some amusement paragraph 7.20 of the Explanatory Memorandum, which said:

“There is a high level of interest in the scheme from energy suppliers who deliver the scheme, fuel poverty groups and installers, and some interest in the scheme from the public”.


That is extremely honest of the instrument, but I am sure we would all agree that it would be good if the public, who are affected by this, were motivated to push to get the scheme going. From that evidence, there may be a real need for some sort of public information scheme. I would be interested to hear from the Minister how that will be solved.

I find some of this order a little bit difficult to follow. Clearly there is an emphasis on social housing, which I welcome. Given the budget of the ECO—it is not insubstantial but it is limited—I also welcome that it is going on areas of fuel poverty rather than just carbon savings. No one is more committed to climate change issues than me but it is right to concentrate expenditure on fuel poverty.

What do we do about the rest of the housing stock that is not covered by this? The Minister mentioned that there is still a real gap in the Clean Growth Strategy in dealing with household efficiency in the rest of the market. I notice that the strategy states that it will:

“Support around £3.6 billion of investment to upgrade around a million homes”.


The programme covers 900,000 homes with an average spend of £640 million per calendar year. That works out at only about £2 billion for the time that is left until the end of March 2022. I would be interested to see what happened to the other £1.6 billion between the strategy and this paper.

On the private sector side, how do we check that landlords are meeting their legal obligations? How do we check that the measures work? I am sure that there is already a process for this but the instrument mentions the “monitored measure” option. I do not want to go into great detail but that option gives bonuses to suppliers or accounts in additional savings or help.

From the evidence, we all know that fuel poverty families getting better insulation does not tend to reduce their energy spend. Quite understandably, it just makes sure that the family is warmer than it was before, so I do not understand how we measure the effect of this given that people will probably use more energy to keep warmer instead of being cold. Are the Government confident about how these schemes are audited?

I welcome the fact that the scheme will continue beyond this until 2028, as in the Clean Growth Strategy, and I welcome the concentration on fuel poverty. Again, following the unfortunate relative failure of the Green Deal during the coalition Government, we absolutely need a national scheme to find a way to upgrade the rest of the UK’s housing stock.

[Baroness McIntosh of Pickering (Con)]

My Lords, I bow to the superior knowledge of the noble Lord, Lord Teverson. I have a couple of questions. I want to press my noble friend, if I may.

At the outset, I declare my interest in the register as a vice-president of National Energy Action. I have long taken a close interest in the Warm Front programme. Like the noble Lord, Lord Teverson, I welcome the continuation of the scheme. Obviously, it is a matter of record and ongoing regret that around 4 million households are still in fuel poverty. Any scheme that can be seen to reduce that is very welcome. How does the scheme compliment what is already happening? What more could potentially happen through building regulations? A more joined-up approach to warm homes would be very welcome indeed.

Being half Danish, I am particularly interested that we currently export residual household waste from the city of York and north Yorkshire to Holland at a cost to the local taxpayer. However, at the end of the day, the benefit is to Dutch residents, because the waste is burned and energy from waste is recovered in the form of district heating. My aunt in Denmark gets the benefit of that—although not from our residual waste in north Yorkshire—through cheaper electricity, hot water and heating. I am very interested to know the potential number of new district housing connections that could be made through the continued scheme before us this afternoon. Does my noble friend have a projection of that? What plans do the Government have to retrofit? There is a firm in Denmark that has changed its name to Ørsted, but I prefer the old name of DONG—the Danish Oil and Natural Gas company—which is easy to remember. It claims it could retrofit properties here in London. Is that something that the department has considered?

My last question is about the figure in the order before us today for potential savings. Is the overall home-heating cost reduction target of £8.2 billion realistic? How do the Government plan to achieve that?

[Lord Grantchester (Lab)]

I thank the Minister for his introduction to the order before the Committee today. As he explained, it introduces a completely new energy efficiency programme—ECO3—focused essentially on those in fuel poverty but with elements of ECO2 and 2t. Indeed, the first ECO order, made in January 2013, was itself a successor to previous government energy efficiency schemes such as Warm Front, CERT and CESP. These previous schemes were more centrally funded, whereas ECO is an obligation on energy companies to fund and finance energy efficiency measures using their own resources and without additional government support. In that regard, austerity is still continuing.

The order extends to 2028, which, as I mentioned last week, is only four years short of 2032, the end period for the fifth carbon budget. We note that the Government are at risk of failing to meet that. The new ECO3 measure, as suggested, replaces the wider remit of former ECO schemes, which were based on a carbon-saving metric and encompassed a number of programmes relating to energy efficiency for carbon-saving purposes, where only a minority of the overall funding was directed specifically towards people in fuel poverty. The main programme therefore restricts measures to those households in band E, F and G properties. For these reasons, I cannot fully endorse the order before the Committee today. I also detected a slightly less than encouraging response from the noble Lord, Lord Teverson, and perhaps some criticism.

The order is a continuation, reducing and restricting policies that fail to address the wider issue of energy efficiency on a more comprehensive basis. Nevertheless, it does contain some good measures in response to previous Labour criticisms. The Government should be commended for reducing the obligation threshold for suppliers from 250,000 to 150,000 accounts over time, and for looking at the problems encountered by customers when switching from a company above the threshold to a smaller company operating below the accounts threshold.

Also to be welcomed is the Government’s response to extending the 25% of the suppliers’ obligation to be met by local authority flexible eligibility. It is, in effect, a nominations scheme in which local authorities can participate, whereby area-based activity can be undertaken to improve similar properties in a location. Another important aspect of this measure is the focus on innovation and the benefits it can bring—for example, Q-Bot, which undertakes the laying of insulation in inaccessible places.

18:30

The fuel poverty measures contained in the order are also welcome, especially the extensions to further participants in the scheme and the measures to maintain at least 15% of the obligation to rural households. They are important. However, concentration on the problems of fuel poverty is certainly important, but whether this should be to the exclusion and at the expense of all other aspects of energy efficiency is a matter of concern. This would fundamentally alter the carbon savings brief of the original obligations programme. When it was first introduced in 2013, ECO represented a change from the previous Government’s programmes—namely, the carbon emissions reduction target, the community energy saving programme and the Warm Front scheme.

In the context of the Clean Growth Strategy, which the noble Lord and others have mentioned and which I quote:

“We will need to ensure existing buildings waste even less energy”.

This order reduces the overall envelope of the ECO programme for 2018-22 and onwards. The rate of improvement in properties can only diminish. This order represents a continuing substantial cut in overall obligation requirements, from £1.67 billion per annum in 2013 for CERT, CESP and Warm Front, to £1.12 billion for the ECO replacement, to £0.87 billion per annum for ECO2, reducing now further to £640 million under ECO2t and the ECO3 measure. This represents a more than 60% drop in energy efficiency funding through government schemes, however funded, since 2013—and a regrettable lack of ambition. This obligation level falls well short of what is required to meet statutory fuel poverty targets. Indeed, the Committee on Fuel Poverty has indicated that even this order’s concentration on fuel poverty will not be sufficient to meet current poverty reduction targets—a reflection of the overall size of the scheme and its ambitions within the overall setting.

Labour is committed to a programme of insulating 4 million homes in a period of one Parliament, and to repeating that commitment for another two Parliaments to reach the level of domestic energy efficiency required to meet contributions to the fifth carbon budget by 2032. This commitment, including both state funding and the accompanying company obligations, will enable both carbon obligation targets and fuel poverty targets to be met, including specifically through a prioritisation of measures relating to fuel poverty within the overall programme.

Even after refocusing ECO3 to deal exclusively with households in fuel poverty, this measure falls short, even in its own terms, to meet statutory fuel poverty targets. It does not deal with the carbon reduction imperative, provides no new public sector funding and does not deal with the challenge to improve energy efficiency requirements for the UK’s housing stock. I can approve the order only on the basis that it is a starting measure while the Government consider more comprehensive measures to bring forward.

The memorandum provided with the regulation states that one of the core aims of the instrument is to contribute to carbon reduction targets. Bearing in mind the assessment of the Committee on Climate Change in achieving the fourth and fifth carbon budgets, what action will the Government be taking to meet the UK’s target?

[Lord Henley]

My Lords, I welcome the generally positive tone of the noble Lord and my noble friend Lady McIntosh, both of whom recognised that this order is a genuine reform of the ECO system. As I made clear in my opening remarks, it is designed to target it far better at those who are less well off and those who find it harder to adapt their houses to make them more energy efficient. It has achieved a great deal in the past and will continue to achieve a great deal.

I am sorry that the noble Lord, Lord Grantchester, takes a less positive approach to this and accused us of a lack of ambition, given that I talked about increasing very dramatically the number of people that we intend to try to reach, and recommended generally spending more taxpayers’ money in a rather haphazard manner. I point out to him and to the noble Lord, Lord Teverson, that technology will encourage those who can afford it to make changes that will lead to a reduction in the use of energy. One only has to look at, for example, the reduction in the cost of things such as LED lights over the past few years, which has made it far easier for people to change to those lights and therefore decrease their use of energy. Similarly, it is right that those who can afford it should pay for appropriate insulation as is necessary, as they will see the benefit in a reduction in their fuel bills and the country and society as a whole will see a benefit in the reduction in carbon use. These measures are designed to encourage those who find it less easy to afford to make those changes.

[Lord Teverson]

As the Minister knows, in the UK, particularly in commercial buildings and increasingly in private buildings, we have a problem that landlords and tenants have very different goals in this area, so unfortunately it does not always work out that way. However, I do not want to interrupt him further.

[Lord Henley]

I totally agree that landlords and tenants have different views on this. Landlords can benefit from these measures. If the noble Lord would like, I will write to him in greater detail on that point. We would also like to see landlords with old houses make the investment that is right in those houses where they can do so.

I shall deal with some of the more detailed questions that were put to me, particularly by the noble Lord, Lord Teverson, and my noble friend Lady McIntosh. I hope that in the process I will also deal with some of the queries of the noble Lord, Lord Grantchester.

My noble friend talked about energy from waste and the possible advantages that the Danes are getting from us exporting some waste. My noble friend will remember that when I served in Defra I had an interest in waste. She will also know that there are sometimes difficulties in getting planning consent for energy from waste plants. I will write to her in greater detail on that, as it goes slightly beyond my brief at the moment. I also note that she mentioned the firm DONG in Denmark—I think it has now changed its name to something else that I cannot pronounce: Ørsted. I have recently seen some of its windmills off Barrow, which is now the largest wind farm in Europe, providing, I think, a very large increase in renewables from that source.

I agree with what my noble friend said about more homes being retrofitted. The new innovation routes could allow multiple measures to be installed in homes. That approach would need to be sponsored by us to demonstrate that it could be cost-effective. That information would need to be provided to Ofgem, the scheme administrator, to ensure that it met the relevant standards. If I can give her some further detail on that and on potential figures for those new district heating connections, I will write to her in due course.

The noble Lord, Lord Teverson, was concerned about the end of the old scheme and the start of the new. I assure him that early delivery means that the measures which meet the new scheme’s rules, and which are delivered before Parliament agrees these regulations, will count towards the supplier’s obligations. We will have a seamless transformation of these matters. I also assure the noble Lord that there will be the appropriate audit he seeks. Ofgem requires measures to be installed to specific standards and 5% of the measures are checked by Ofgem under the scheme’s technical monitoring checks. I hope that 5% will be sufficient for the noble Lord to consider that it provides the appropriate audit and checks.

The noble Lord asked about the housing stock that is not covered by the ECO scheme. We are reviewing the fuel poverty strategy and will make an assessment of how best to meet the fuel poverty targets. As I made clear, the clean growth strategy has set aspirations to decarbonise all sectors of the UK economy. The buildings mission aims to at least halve the energy use of new buildings by 2030, as well as halving the cost of renovating existing buildings to a standard similar to new buildings. I repeat that new buildings are covered by current building regulations, and therefore any new buildings will be appropriately insulated. However, we want to get old buildings up to the same standard as new buildings while increasing quality and safety.

The noble Lord had other queries. He quoted from paragraph 7.20 that there was some interest from the public and said that he wished to see more. We would all like to see more interest from the public—that is true of a great many schemes throughout government, way beyond this one. I assure the noble Lord that a number of members of the public responded to the consultation. They obviously had an interest in energy issues, energy efficiency and fuel poverty. The majority of the responses were supportive of consultation, as I set out in my opening remarks. I hope that as a result of this debate—should people be taking much interest in it—and other measures, others throughout the country will take an interest in this, and that those firms involved in the scheme will do their bit to contact the public and let them know what is available, particularly for those with low-cost housing.

As I said, I welcome the generally positive tone taken by the noble Lord, Lord Teverson, and my noble friend. I hope that in due course the noble Lord, Lord Grantchester, will come round to that view and accept that this will go a long way towards meeting the problems of fuel poverty, will help to decarbonise and will help to meet the targets that we hope to—and will—meet by 2030 and beyond. I commend the regulations to the Committee.

Motion agreed.

Electricity and Gas (Powers to Make Subordinate Legislation (Amendment) (EU Exit) Regulations 2018

Tuesday 30th October 2018 Grand Committee

Considered in Grand Committee

18:44

Moved by

[Lord Henley]

That the Committee do consider the Electricity and Gas (Powers to Make Subordinate Legislation) (Amendment) (EU Exit) Regulations 2018

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, the regulations were laid before the House on 5 September. As we approach EU exit, my department is working to ensure that our energy legislation continues to function effectively after exit day. In recent years the EU has introduced through the third energy package a suite of legislation governing the energy systems of member states. Much of this is technical legislation, known as European network codes and guidelines which apply to energy operators and regulators.

To maximise continuity, the European Union (Withdrawal) Act 2018 will incorporate the majority of this legislation into domestic law when we leave the EU. This instrument is the first of a package of energy-focused regulations amending this retained EU law to ensure that the UK’s energy legislation and markets work effectively after exit. This instrument does so in two ways: first, by ensuring that directly applicable EU law concerning electricity and gas will be effectively incorporated into domestic law; secondly, by enabling the UK Government and the Northern Ireland Executive to amend elements of this retained EU law in a simple and proportionate way, ensuring that our energy legislation can keep up with the rapid pace of technological advances and market developments. To do so, this instrument will transfer legislative functions conferred by four EU regulations from the European Commission to the UK Government and Northern Ireland Executive under the powers of Section 8 of the withdrawal Act.

The first power being transferred by this instrument is a limited ability to create European network codes. The withdrawal Act will incorporate all direct EU legislation so far as is operative immediately before exit day. This means that provisions in force on exit day but applying from a later date will not be incorporated. This is the case for several European network codes. Without government action, this could create gaps in the energy regulatory framework, leading to uncertainty and detriment to industry, which has adapted rules and practices to comply with the network codes. It is therefore important that the UK can incorporate these missing provisions promptly through legislation. This is accomplished by Part 2 of the instrument, which will revoke the European Commission’s power to make new codes and instead substitute limited powers for the Secretary of State and the Northern Ireland Department for the Economy to make regulations bringing into domestic law provisions corresponding to the codes or parts of codes not captured by the withdrawal Act. These statutory instruments will themselves be subject to the affirmative procedure to ensure effective parliamentary scrutiny.

Secondly, this instrument will enable amendments to network codes by transferring powers currently held by the European Commission to the Secretary of State and the Northern Ireland Department for the Economy. These powers would be exercised using subsequent affirmative statutory instruments.

Thirdly, as well as powers relating to network codes, this instrument will transfer to the Secretary of State and the Northern Ireland Department for the Economy powers to amend definitions and reporting requirements under the EU regulation on wholesale energy market integrity and transparency, known as REMIT. REMIT prohibits insider trading and market manipulation in wholesale energy markets and provides energy regulators with valuable tools to fight these crimes. The power to amend definitions is limited and may be used only to ensure coherence with other relevant financial services and energy legislation, or to take into account developments in wholesale energy markets.

The fourth power under this instrument concerns the security of gas supply regulation, which creates common standards and indicators to measure threats to gas security and defines how much gas is needed to maintain security of supply. The regulation contains templates for risk assessments, preventive action plans and emergency plans to be carried out by the Government. Further, the regulation contains powers for the European Commission to amend these templates using delegated acts. This instrument transfers these to the Secretary of State. Powers to amend the security of gas supply regulation and REMIT would be exercised through subsequent negative statutory instruments. This is appropriate as these powers permit only narrow amendments to very limited provisions of these regulations.

This instrument extends to Northern Ireland. As energy is a devolved matter, this instrument transfers powers variously to the Secretary of State and to the Department for the Economy in Northern Ireland, respecting the devolution settlement. In addition, my department has consulted with the Northern Ireland Department for the Economy throughout. While this instrument permits the Secretary of State to exercise its powers in respect of Northern Ireland, this would occur only in respect of a reserved area such as international relations, or when the Department for the Economy determines that it is unable to act in the absence of Northern Ireland Ministers. Each time this occurs, it would be accompanied by a ministerial Statement explaining why it was necessary.

In conclusion, the regulations are a sensible and necessary use of the powers of the withdrawal Act that will maximise continuity in our energy regulations as we leave the EU. I commend the regulations to the House.

[Lord Teverson (LD)]

It is left to me to start this rather technical discussion. On this occasion, I will stick to a rather strategic level, if the Minister does not mind. First, it has been the Government’s intention in our EU negotiations to remain in the single energy market, which I hugely welcome. I would be interested to understand from the Minister whether there has been any progress on that; whether that might appear in the political declaration of our future relationship in the withdrawal agreement; whether the Government are still keen to do that; and, if we are successful despite our red lines and the Government’s general intention to come out of the single market, whether the instruments would be necessary if we remain in the EU internal energy market.

Moving on from that, we have interconnectors. On codes and other technical matters, once we leave, if we are not part of the internal energy market, we will no longer have access to discussions on or information around codes used by that market. I would be interested to understand what effect that will have on interconnectors between us and the European Union at that time. Certainly the Select Committee that I chair was very concerned about the inefficiencies in trading—not so much around interruption of supply but around increases in energy prices due to inefficiencies because of the relationship not being as smooth as it was before—that might come about from that.

I want to ask a fundamental question. As the Minister mentioned, the secondary legislation concerns Northern Ireland as well. As he knows, the island of Ireland has a completely integrated energy market—a so-called single energy market. What preparations have the Government made, particularly in the case of no deal, so that this energy market for electricity and gas can continue to function, with powers coming back to the UK and such disintegration—that is, no longer being completely under the purview of the internal energy market? Will that single energy market in Ireland still work despite the fact that the network codes will change? This system seems fundamental to Northern Ireland’s energy needs, let alone those of the Republic.

[Lord Grantchester (Lab)]

My Lords, I thank the Minister for his introduction to the regulations—the first of many to come concerning the UK’s exit from the EU. The Committee will consider many technical energy matters. It will not be entirely simple to identify the crucial elements and their implications. However, I will echo the remarks of the noble Lord, Lord Teverson, on the more challenging aspects of the regulations on wider-ranging topics, such as the internal energy market and the position of the island of Ireland.

On the face of it, the instrument seems simple enough. It moves powers held by the European Commission to a domestic authority, giving the Secretary of State power to alter them—in this case, referring to European network codes and guidelines—and adopt the amendments overall as “retained direct EU legislation”. Later amendments that will not come into force by 29 March 2019 will not be regarded as retained direct EU legislation. They will be resolved, perhaps even revoked, by exit day under separate secondary legislation, along with elements of retained EU law where the Secretary of State considers that the EU instruments retained in law will not be capable of operating in isolation from the rest of the EU instrument. Powers are also taken in the SI to amend the provisions of REMIT, an EU regulation concerning wholesale market integration and transparency, to apply internally to the UK and not to have to report to EU authorities.

Some amendments will be made by affirmative procedure and some negative. As your Lordships’ Secondary Legislation Scrutiny Committee concluded, all is so clear, so far. Perhaps the Minister can confirm first whether all these amending instruments will be amending only: that is, not enabling new powers through secondary legislation. That does not seem to have been commented on.

More importantly, this question brings up the whole issue of the internal energy market. Unlike Euratom and other bodies established by treaty, the IEM is merely a collection of agreements among member states on how the European energy market is to be conducted. It has been stated many times that it would be advantageous for membership of the IEM to be retained, or a close association with it. How far could any statement go when it is not really a distinct entity? This order would be regarded as a contingent action, to be effected and commenced if no suitable alternative arrangement for energy trading through interconnectors can be put into place—rather like the contingent nature of the Nuclear Safeguards Bill, now an Act, as the Minister will remember. Can the Minister clarify whether this is the Government’s intention or whether, as the memorandum seems to suggest, the order will apply regardless of any deal and be part of a signal to break with the IEM under all scenarios? Will he also clarify the Government’s general intention toward the internal energy market?

Very pertinent in this respect is the position regarding Northern Ireland. Ireland, north and south of the border, already operates under an all-Ireland grid. Given the possibility that Northern Ireland will not operate its own grid requirements at Brexit, is it intended to break up the Ireland grid? While paragraphs 7.12 and 7.13 of the Explanatory Memorandum deal with the position as now, when there is not a functioning Executive, is it intended that Northern Ireland will function on different codes from the rest of Ireland at Brexit? Can the Minister explain what is intended and how it will work on a United Kingdom basis with Northern Ireland and the Irish grid?

While an effective system must be in place upon Brexit, does this order—while enabling continuity for UK authorities—close the door on options for a better working of the energy system after Brexit through close association with the internal energy market? Can the Minister provide the Committee with any further clarity? If any of his remarks can assure the Committee on this point, I can confirm the order today.

[Lord Henley]

My Lords, I am grateful to both noble Lords for their comments. As the noble Lord, Lord Grantchester, rightly said, this is possibly the first of many statutory instruments that will come before the House, possibly as negative orders. He will remember that, if I have this right, I wrote to him and to the noble Lord, Lord Teverson—or if I did not, I copied a letter that my right honourable friend Claire Perry sent to colleagues in another place—about these orders back in August of this year. I will double check whether I did. All I know is that she wrote on 14 August; I thought that I had copied that letter but if not, I will make sure that I have.

The reason why I mentioned it is that I have given a commitment to write to noble Lords as other orders come forward. As I made clear in my introductory remarks, these orders merely give certain powers to the Secretary of State to make powers that previously existed with the EU. Obviously, those powers are to make further orders that will come forward. It is, one might say, quite a complicated landscape and—both noble Lords will have heard the discussions on earlier orders—we might have found it easier and speedier if I had written to them in advance. I thought that I had.

19:00

Further orders will come forward and I will write to noble Lords. Some of the orders will be affirmative and some will be negative. All will go to the appropriate committees, which might suggest that some that we had thought were possibly negative should be treated as affirmative. If that is the case, Her Majesty’s Government will obviously take that on board and deal with them as appropriate as they come before this House. As I said, I will make sure that I write on those.

The noble Lord, Lord Teverson, asked whether this instrument would still be needed in a deal scenario as opposed to a no-deal scenario. These regulations are a deal/no-deal instrument. The powers will be needed in all scenarios. In a deal scenario, they could be used to keep pace with EU amendments to the network code. We need them whatever happens.

Let me deal with some of the other points. First, what effect will EU exit have on the interconnectors? The Government and Ofgem are already working with the interconnectors to ensure that new access rules, which set the terms and conditions for trade, can be approved by Great Britain by 29 March 2019. We understand that the interconnectors are already engaging with EU member state regulators, who will need to approve the access rules to the same timeframe.

Will the single electricity market in the island of Ireland still function after EU exit? Negotiations have already made good progress on legal provision to underpin the single electricity market in the withdrawal agreement. The UK will work with Ireland and the EU in an effort to ensure that the SEM is maintained in any future scenario, including the unlikely event that we do not reach a deal. Given the benefits to consumers and the economy of a more efficient shared market, it is strongly in the interests of all parties to agree to a means to ensure the continuation of the SEM. We have long-standing and ongoing bilateral relations with Irish energy officials.

I accept that these regulations are pretty technical and that further SIs will come forward in due course. The noble Lord, Lord Teverson, invited me to take a more strategic approach and view the whole of the negotiations in the round, but I do not think that this would be the time or the place to do that. We will continue with our negotiations and I am sure that they will have the appropriate outcome in due course. Meanwhile, it is necessary to get these regulations on the book so that we are in a position to make the appropriate changes and to take the appropriate powers at the right time. I commend the regulations to the Committee.

Motion agreed.

[The Deputy Chairman of Committees (Baroness Newlove) (Con)]

My Lords, the Committee needs to adjourn for five minutes to make an adjustment to the furniture before the final debate.

19:04

Sitting suspended.

Child Support (Miscellaneous Amendments) Regulations 2018

Tuesday 30th October 2018 Grand Committee

Considered in Grand Committee

19:08

Moved by

[Baroness Buscombe]

That the Grand Committee do consider the Child Support (Miscellaneous Amendments) Regulations 2018.

Relevant document: 41st Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Buscombe) (Con)]

My Lords, I begin by thanking noble Lords for bearing with me as I take these regulations through from a seated position. I want to say a particular thanks to the noble Baroness, Lady Sherlock, for giving me early notice of her response to the regulations, for which I am extremely grateful. The regulations were laid before both Houses on 12 September 2018. They enable the Government to make amendments to child maintenance legislation to deliver the new child maintenance compliance and arrears strategy. Let me give the Committee some context and background to the regulations.

The Government introduced a reformed child maintenance scheme in 2012. The reformed scheme provides stronger incentives for parents to work together following separation and, where possible, to make a family-based arrangement for maintenance, avoiding state intervention altogether. The Child Maintenance Service is there for families unable to make a private arrangement. It delivers a simpler scheme, avoiding the problems which beset the previous statutory child maintenance schemes. These draft regulations will strengthen the statutory scheme and introduce measures to prevent parents artificially minimising their child maintenance liability. They will also introduce new collection measures, close loopholes and broaden the sanctions that we can bring against the small number of parents who persistently fail to meet their obligations to their children.

Now that the majority of cases with ongoing maintenance have been closed on the CSA schemes, the Government want to draw a line under the regrettable legacy of the CSA and end the years of uncertainty that families who have historic CSA cases have experienced. For many years, these cases have been held in limbo. The debts outstanding are often small, and in some cases, when asked, parents have moved on with their lives and are not interested in pursuing the debt. These regulations will give parents in certain circumstances a final chance to tell the Government that they still want to consider taking action to collect their debt where it is likely to be possible at reasonable cost to the taxpayer. This will enable these cases to be closed finally in the next few years.

A small number of parents are currently able to lower their child maintenance liabilities artificially, or avoid them altogether, by drawing an undeclared income from assets. Whether this is via loans against the value of bullion or through the acquisition of virtual currency, the cultivation of a cash-poor but asset-rich lifestyle is a rare but growing method of evading child maintenance responsibilities. These regulations introduce new powers to address this problem. Where a client believes their ex-partner possesses the relevant assets, the Child Maintenance Service will investigate, escalating to its financial investigations unit if appropriate. If possession of a relevant asset is confirmed, and the value exceeds £31,250, a notional income will be calculated at 8% of the asset’s total value. This will be added to the total income used to calculate the maintenance due. It is recognised that assets can be acquired for legitimate reasons, which is why this power will be used in only a very small number of cases. The draft regulations protect assets in certain circumstances, including where the asset is used for business purposes or is the primary home of the parent or a child.

It has become evident that some parents are able to place all their funds in joint or unlimited partnership accounts, rendering them inaccessible to our current powers. These regulations extend the Government’s powers to enable the Child Maintenance Service to use regular and lump sum deduction orders in relation to joint and unlimited partnership bank accounts and to use lump sum deduction orders in relation to sole trader accounts. The introduction of this new power will mean that an additional £350,000 of maintenance per year may be collected for children.

To protect the rights of other joint account holders, a number of safeguards have been put in place to prevent deductions being taken from the other joint account holder’s funds. Joint or unlimited partnership accounts will be targeted only where there are insufficient funds in the parent’s solely held accounts. Before action is taken, the last six months’ account statements will be checked to establish the ownership of the funds. In a small number of cases where, despite investigation, it is not possible to establish how much of the funds within the account belong to the parent—for example, because no evidence is furnished as to ownership—a pro-rata approach will be adopted. This will assume that the parent’s share of the funds is equal to that of the other account holders. All account holders will be notified before a deduction order is made in respect of a joint account and given the opportunity to make representations in relation to the funds targeted. The standard representation periods will be 14 days for regular deduction orders and 28 days for lump sum deduction orders. All account holders will also have appeal rights. Further safeguards are in place to ensure businesses have sufficient cash flow to continue to trade. A deduction will not be taken if it would reduce the account balance below a reasonable amount; we suggest, for example, £2,000. There is also a requirement for the Government to review these provisions every five years.

19:15

With respect to passports, the Government plan to commence an existing power to enable the Child Maintenance Service to disqualify a parent with child maintenance arrears from holding or obtaining a UK passport. These regulations make further provisions in respect of this power. This measure will add to the existing sanctions of commitment to prison and disqualification from holding or obtaining a driving licence and will operate in a similar way. It will be used only where a parent has consistently failed to meet their financial responsibility for their children and all other enforcement powers have failed to regain compliance. Given the serious nature of this power, appropriate safeguards are in place. It will be for the court to decide whether to disqualify a parent from holding or obtaining a UK passport. The court has the power to suspend the disqualification order on such conditions as the court thinks appropriate. This power will be used in only a small volume of cases but will serve as a deterrent to encourage the payment of maintenance as early in the case as possible.

Debt on CSA schemes has built up since they launched in 1993. Over the years, successive Governments have tried various strategies to collect this debt, including using external debt collection agencies and offering parents the option of making a part payment, but none of these has been successful in getting money to children. The published Child Support Agency client fund accounts for 2015-16 make clear that £3.1 billion of CSA debt is deemed uncollectable. These regulations include changes that help to deliver certainty to parents by attempting a final collection of their debt where they want it and where such action is likely to be cost-effective for the taxpayer. For a case to be in scope for these regulations, the debt must have accumulated on the 1993 or 2003 CSA schemes. It must also be a case where only arrears of maintenance are due—that is, where no maintenance is currently due for a child—and the case has not received a payment within the past three months. Where a case started on or before 1 November 2008 and has more than £1,000 arrears, or is over £500 if the case started after 1 November 2008, or the arrears accrued under the CSA but have transferred to the Child Maintenance Service system and are more than £500, we will write to the parent the money is owed to and ask whether they would like us to make a last attempt to collect the debt. Parents will be given 60 days to tell us that they want us to attempt to collect the debt. If representations are not received within the 60-day period, the debt may be written off.

Where CSA debt falls below the thresholds prescribed in the regulations and no payment has been received in the past three months, it will be written off without seeking representation. This is because it will not be cost-effective to attempt collection of debt below these thresholds. There are different thresholds according to age of debt, as the older the debt, the harder it is to collect. Where this applies to a case, both parents will be notified that the debt has been written off. Where the debt is below £65, these regulations will enable the debt to be written off without notice to the parties. This is in line with the current threshold used for debts owed to government. Finally, if a case has debt subject to sequestration, which is Scottish insolvency, these regulations will enable it to be written off when the sequestration expires. This will apply to all child maintenance schemes, as this debt becomes legally uncollectable due to the way sequestration operates.

In conclusion, I am of the opinion that these regulations will strengthen the statutory Child Maintenance Scheme by enabling greater compliance by the small number of parents who deliberately try to reduce their child maintenance liability or to evade their parental responsibilities. It will bring certainty to families with historic CSA debt by offering a final chance of collection of that debt, where it is possible at reasonable cost to the taxpayer. I am satisfied that this instrument is compatible with the European Convention on Human Rights, and I commend these regulations to the Grand Committee.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I am very grateful to the Minister, who, in adversity, has done a splendid job in explaining these regulations. I cannot help but believe that somewhere on the premises there must be a parliamentary sedan chair, which I happily will take one end of until she is better, and I hope that that happens soon.

I am a member of the scrutiny committee, and its report is part of the discussion this evening. It was interesting scoping the report, and we got some really compelling evidence from both sides of the argument, from non-resident parents as well as parents with care. My track record on all this stuff is longer than I care to admit. I was around in 1991 when the original legislation was brought forward and produced the 1993 scheme. The economic environment within which these schemes were started is now different. In the past, I have always taken a Gingerbread approach to this. In 1991 and 2003, the thing that really exercised me was that there were people acting in bad faith as non-resident parents with considerable amounts of money, and, because of the bad blood between the parents, they were taking it out on the children. That is what set my measuring stick for working out how this happens. It is very difficult for the state to go behind the front door of any family and interfere in these circumstances, and we learned that the hard way. It is true to say that under both Governments—and I could not help either from the place I sat in in the House of Commons or in the House of Lords—the two legacy schemes have been really difficult for families. Misery is not too important a word because they exacerbated the relationship between the separated parents.

None of this is easy, and my heart goes out to the professionals who have been running these schemes. They have been dogged by IT difficulties, and the collection process has struggled. The honest truth is that the elements in these regulations, which largely I support, should have been carried out years ago. I was part of the 2008 Act that gave passport legislation authority to the department, and now in 2018 we are actually implementing some of that. In parentheses, there is an interesting question about why that is not happening in Northern Ireland. It may be that there are special provisions for Northern Ireland at the current political moment, for all I know, but I would be pleased to know why it is an exception, because I cannot think of any other reason than the fact that it is getting special treatment.

When the Secondary Legislation Scrutiny Committee looked at this statutory instrument, it looked at the fact that there is still only a 57% payment compliance rate. My colleagues on the committee, who have not been studying this legislation as long as I have, found it very hard to understand why a scheme of this duration was still getting only 57% payment compliance, and that is still an issue for me as well.

Concerns were expressed about the way in which assets are still being protected from actions in bad faith because of the difficulties of valuation. I understand that with physical assets such as works of art it is difficult to know how much they are worth, who owns them and so on, but we heard evidence in the committee’s investigation of this SI which demonstrated that yachts are being bought which, even under these regulations, cannot be attached to the liability due by the non-resident parent. That is too complacent. There must be some way of obtaining an independent valuation of an asset’s worth. I support the notional wealth which the regulations attach to assets but they do not go far enough, certainly in relation to some of the physical assets that the Secondary Legislation Scrutiny Committee heard about in evidence when considering these regulations. I will be interested in what the Minister has to say about that.

The evidence we received from non-resident parents led me to think again about the relatively different economic environment for child poverty that we are facing. Non-resident parents have that problem as well as parents with care. They do not get any credit within universal credit for making maintenance payments, which must be difficult for some non-resident parents. They made that point with some force in the course of the evidence they gave. The department made a fist of answering some of these points, but we were still left with real concerns.

People are nervous that we are closing down these schemes—no one will miss them when they go—but, when we move into the new child maintenance scheme, are we taking proper advantage of the opportunity to look at this in a slightly wider context than merely these regulations? They are welcome as far as they go. The weekly value of assets being considered is good, deduction orders, lump sums and additional write-off powers are understandable, and I have mentioned passports, but the communities which will be deprived of pursuing some of these liabilities in future deserve better legislative consideration of the impact that will be felt by them when all of these dramatic things happen.

It would help if there could be an update on how these schemes are proceeding towards closure—what the time frames are and whether there has been any slippage from the last time we discussed this in Parliament. I am still concerned about some of the issues that were raised by the National Audit Office report of March 2017. I am delighted that the Select Committee in the House of Commons is still interested in actively pursuing some of these issues. However, the NAO report did not make happy reading either.

There are a couple of issues I wish to ask questions about. The NAO made special reference to the fact that the department does not tell non-resident parents who have arrears that there is an opportunity available to them to renegotiate the debt on cause shown where hardship can be demonstrated. However, the department does not do that, I suppose for the obvious reason that it gives people an excuse to pay less, but in the situation that we facing in terms of child poverty and for the next couple of years, I think that some non-resident parents should be told about that. The claim they make for a reduction in their maintenance liabilities can be contested by the department and controlled in that way. The NAO was right to raise that. Keeping it secret is no longer defensible and I hope the department will think about that.

19:30

Does the department review the impact and outcomes of enforcement activities? That point was also made in the NAO report. If we are thinking seriously about taking major steps in closing down some of these accounts with outstanding arrears—I suspect we will have another NAO report before too long—the department must, for its own good, be able to argue that it is looking at the outcome and impact of its enforcement schemes.

I could go on for a long while but I will not. Finally, can the Minister say anything about the disappointing number of people who were invited to join the new scheme once the old scheme closed? In the last figures I looked at, which the NAO referred to as well, the department expected far more people to volunteer with a fresh application to go on to the new scheme. The results were very disappointing. The number of family-made arrangements that flowed from that was also very disappointing. The suspicion in my mind is still that a lot of families out there have given up and there are no arrangements. That is a tragedy in anticipation of increased child poverty statistics over the next couple of years for families under a lot of pressure. Is the Minister happy to write to me if she does not have the information to hand? The hour is late and I am sorry to detain the Committee but this debate is important. I would be much happier supporting the regulations if I knew that there was a wider parliamentary context that could help us to understand in more detail the full consequences of the major change that is about to happen.

[Baroness Sherlock (Lab)]

My Lords, I, too, thank the Minister for her explanation of the regulations. I also wish that she is back to full ambulatory health soon. I was glad to have the opportunity to give her advance notice of the questions I will raise because some of them are quite technical. It would be great if she could answer them but if not, she should feel free to write to me.

Before I start, I want to pick on where the noble Lord, Lord Kirkwood, stopped. Most of the people in the House of Lords who have a passionate interest in this are in this room, apart from one or two who could not be here. We have been discussing these issues for a long time. The noble Lord, Lord Kirkwood, saying that he has moved on to a different perspective makes me want to rehearse briefly the fact that having an administrative system of child maintenance is incredibly important. Before it existed, the only way for single parents to get the money they needed to raise their kids was to go to court. It was expensive to get an order, to get it updated and to get it enforced, so the creation of an administrative system of child support really matters. It matters for those kids, the families and the country. It is a statement that you may separate from your partner but you do not cease to be responsible for your children, and the state will enforce that if necessary if the parents cannot afford to do so. I want to lay that on the record.

We should also note that, although the legacy schemes have had a range of problems, billions of pounds have changed hands and gone towards raising children. We should mark that. We should not say simply assume that the problems mean that we do not want to get this right going forward. The obligation to support your children is there, so I share the view that it would be good to have an opportunity to discuss more broadly the issues around child support policy. However, since Parliament has determined the amounts that should be paid by non-resident parents to parents with care, getting that enforced really matters and the regulations address that. In the light of that, I should flag up a historic and now rather distant remunerated interest as I was a non-executive director of CMEC for a time.

In essence, these regulations do two things. They allow the Government to write off significant debts arising from historic schemes and they introduce some new compliance measures to help with collecting future child maintenance. I want to look at each of those in turn to see whether it feels like a balanced package.

First, on the debt proposals, the Explanatory Memorandum says that there are uncollected arrears of £3.7 billion, with £2.5 billion owed to parents and £1.2 billion owed to the Government. DWP thinks that it would be too expensive to try to collect all this, so it proposes to separate the debt into two parts: that which it will make one last attempt to collect and that which it will simply write off. Where there has not been a payment in the last three months and, as the Minister explained, a CSA case started on or before 1 November 2008 and the debt is more than £1,000, or the case started after that date and the debt is more than £500, it will ask clients if they want it to try to collect the debt. If no representations are received, or collection of the debt is not possible, it may be written off. Can the Minister tell us how those representations will be sought? Will each parent to whom money is owed be written to individually?

Secondly, where there has been no payment in the last three months and the case started on or before 1 November 2008 and the debt is less than £1,000, or the case started after 1 November 2008 and the debt is less than £500, or the debt is less than £65, then the debt can be written off without asking the parents at all. Can the Minister tell us, if there had been a payment of some sort in the last three months, irrespective of how much was involved or when it started, would attempts carry on being made to collect the debt, even if it did not meet these criteria? If so, is there not a risk of what is known in the trade as moral hazard? In other words, does it not risk sending out a message to parents who have not paid to support their kids that if they simply do not pay for long enough, the Government will give up and they will benefit from having the debt written off?

To justify writing off historic debt while avoiding the moral hazard charge, it is incumbent on the Government to show that current child maintenance liabilities are being effectively enforced—a point made by the noble Lord, Lord Kirkwood. So is that the case? As the noble Lord mentioned, the current rate of compliance is 57% and it has been static for the last two years. Ministers are partly arguing that these regulations would add to the range of collection and enforcement powers the department has to drive up that statistic. Let us see whether we think they would.

There are basically three measures. First, the deductions from joint and unlimited partnership accounts, which is a welcome measure designed to prevent non-resident parents from evading their financial obligations by moving all their money into joint or unlimited partnership accounts. However, I would like to raise a point made in paragraph 11 of the 39th report from the Secondary Legislation Scrutiny Committee. It reports a concern—raised in a submission to the committee, on which the noble Lord, Lord Kirkwood sits—that the proposal to notify the other account holders of the intention to make regular or lump sum deductions and give them a set period to make representations could give the non-resident parent time to move the cash somewhere else.

The committee noted that the regulations provide that the interim order must include an instruction to the deposit-taker not to do anything that would reduce the amount standing to the credit of the account below the amount specified in the order. However, the Explanatory Memorandum also goes on to say that, in the absence of evidence to the contrary—the Minister reinforced this today—it will be assumed that the NRP has a share of the funds equal to that of any other account holder. So, if the deposit-taker is required only to keep in the account an amount equivalent to that specified in the order, is there not a risk that, in some cases, only a portion of that retained balance can be attributed to the non-resident parent, and therefore, when it comes to the attempt to reclaim it, there will not be enough left to meet the debt? What are the Government doing about that? I did say this was technical.

Secondly, I want to look at the effect of this measure. The self-certified impact assessment says that DWP expects that the use of this measure will result in 350 requested deduction orders from joint personal accounts in England and Wales per year and 170 from unlimited partnership business accounts. Based on the pattern of their use for sole accounts, DWP assumed 34% will be lump sum deduction orders and 66% regular deduction orders, and it expects a 60% success rate. When you crunch these numbers down—which I did because I am very sad—it means that, adding together personal joint accounts and unlimited partnership business joint accounts, you get a total of basically not very much. My sums suggested this meant that the department expected to issue only 100 successful lump-sum DOs and 200 successful regular DOs, which would have brought in about £350,000 a year in extra child maintenance.

However, about half an hour before I came into the Committee, I saw a letter—just published—from Justin Tomlinson to Frank Field, chair of the Work and Pensions Select Committee, in which he said that DWP analysis after the consultation estimated that these new powers would actually enable an extra 400 to 500 actions per year, yielding around £840,000 in additional maintenance. The letter said that the department thought the figure might be even higher still. Can the Minister tell the Grand Committee the current estimate of the number of cases in which these powers are likely to be used, and how much extra maintenance the department expects to collect?

Another question is on the confiscation of passports. The instrument also commences a power, set out in Sections 39B to 39G of the Child Support Act 1991, enabling the Secretary of State to apply to the court for an order to disqualify a non-resident parent who is wilfully refusing to pay from holding or obtaining a UK passport. This is again welcome but I wonder how well it would be used. The 39th report of the scrutiny committee quoted the department as saying:

“This measure will be used as a last resort, where all other enforcement actions have been found to be inappropriate or ineffective”.


When I went back to the methodology document that accompanied the consultation, it said that DWP expected approximately 20 cases per year where a court sanction would be applied. But then it became clear that that would be not 20 passports a year but 20 cases where court sanctions could be applied. Those sanctions might be passport removal but might be losing a driving licence or going to prison. That could mean this new power on passports might be in single-figure usage.

Again, the letter to Frank Field from Justin Tomlinson suggested that this power could be used in around 20 cases a year. Can the Minister explain whether that is 20 cases of passport confiscation a year or whether we are still talking about 20 cases of court sanctions a year, of which some may or may not be on passports? Either way, it is a very small number. Clearly, I realise that it is intended to be a deterrent as well but that was said of driving licences, yet we are still stuck at 57% enforcement. We have to ask: how effective is this likely to be?

The third and final category is on including major assets in the calculation of child maintenance liabilities. There has been lots of pressure on DWP for a long time to reinstate the lifestyle variation available under the previous regime, by which parents could request a variation to the calculation based on a disparity between the lifestyle of a non-resident parent and the income which they reported. Charities such as Gingerbread, along with the Work and Pensions Select Committee, have pressed DWP on this but to no avail. One of the presenting problems has been parents complaining that the NRP claims to have a low income, yet possesses considerable assets and a lifestyle that should be impossible on the income that he or she is declaring.

However, DWP decided not to do that. This is one of its proposals to deal with it instead by including major assets in the calculation of child maintenance liabilities. That is welcome but the scrutiny committee remains concerned about how it is to be done—a point alluded to by the noble Lord, Lord Kirkwood, who mentioned yachts. I do not often get to talk about yachts in my brief but it is the case that a specific submission was made to the committee of a parent who said that her former spouse had bought a yacht, yet nobody could make him pay over the amount of cash he was meant to do as support for the children.

It would seem from that case that there is a real situation out there. Yet in its 41st report, the committee managed to establish from DWP that the definition of asset does not include high-value items such as a yacht or a Rolls-Royce, because it is too hard to value them. In fact, the report said:

“This would seem to confirm our concern that the Non-Resident Parent can find ways of avoiding payment by buying goods with their cash assets and reinforces our view that the new formula for calculating income may make little actual difference”.


Given that that is the whole point of this power, can the Minister explain how the Government plan to deal with this issue and, again, how often DWP anticipates using these provisions?

In conclusion, we are in a position where compliance rates are stuck at 57%. I am doubtful that the package of powers we are discussing are likely to make all that much difference given that the biggest of them will, in the original calculations, affect only 450 children and bring in £350,000 a year. Alongside that, the Government are planning to write off debts of £3.7 billion, so basically we are talking about 0.01% of the amount that has been written off. Even if it is the higher £840,000 figure, my back-of-an-envelope calculations say that we are still talking about 0.02%. There is quite an imbalance.

I remain concerned about those who are slipping through the net—the noble Lord, Lord Kirkwood, raised this. In 2012, DWP estimated that 56% of CSA clients who chose not to apply to the statutory service would make a family-based arrangement. A survey by NatCen conducted between June 2015 and September 2016 found that three months after the CSA cases had been closed, only 18% had a family-based arrangement in place. A similar number had gone to the CMS but 56% had nothing in place.

19:45

Perhaps I may ask the Minister some final questions. What is the Government’s current target for the proportion of parents who do not use CMS and who will go on to have an appropriate family- based arrangement? What target has been set for increasing compliance by non-resident parents from that 57% current base? What target has DWP set for future arrears to avoid us simply being back here again in five years, with Ministers wanting to write off arrears on the current system on the grounds that they need to have a fresh start for everyone before a new system is devised? If the Minister could reply to those questions, I would be grateful. It would also be helpful if she could tell the Committee whether she is satisfied with the level of resourcing going into this. Is it really about powers or resources? Either way, we will be interested to hear how the Government plan to make sure that having an administrative child maintenance system is worth the regulations that are written about it.

[Baroness Buscombe]

I thank noble Lords for their contributions to this debate and for the constructive approach that they have taken towards today’s proceedings. I will now respond to some of the key issues raised. I will attempt to do this in order but I doubt whether I will succeed. I will do my best and if I fail to answer any questions, please be assured that we will write to the Committee following the debate.

I wish to put into context the justification for what we are doing. This has not been a quick or easy decision; it has involved exhausting other approaches to deal with the debt. We have also had numerous long debates and discussions within the department in trying to decide the best thing to do. We are talking about huge sums of money here. I say immediately that when considering resources and budgets, the truth is that we have to be proportionate—what is reasonable in the circumstances; what is more pressing; and what is more important. In our department we are already spending 25% of the entire government budget across Whitehall, so we have to think about resources and the degree to which we want to protect and support children going forward versus the difficulty of writing off such a considerable debt. We have to balance that against the fact that if we do not write it off and keep it on our books it would cost us approximately £30 million a year, which would not be money well spent. It has been a difficult balancing act.

Moving all the debt to the CMS IT systems would incur a one-off cost of at least £250 million, without the resources to action it. We have taken various actions to collect this debt, including using debt collection agencies to chase what is owed. More than 63,000 cases were passed to debt collection agencies for them to arrange collection, but after three years we took back 55,000 cases because the DCAs had not been able to make any debt collection arrangements.

This is our approach following exhaustive discussions, debates and thinking through what is fair to the taxpayer. As the noble Baroness, Lady Sherlock, said, the most important thing is to put the children at the forefront of our minds while seeking ways to send out the critical message that no one should cease to be responsible for their children. Enforcement matters.

I say to the noble Lord, Lord Kirkwood, that I absolutely respect his considerable and lengthy involvement on this really important subject. Of course, there have all along been compelling arguments on both sides. It is interesting what he said about the economic environment being different. Maybe there is also a sense that people are becoming more artful in how they seek to avoid their responsibilities, which is depressing. I am not sure what that says but the truth is that we must have the well-being of children at the forefront of our minds. In a sense, yes, these regulations are overdue, so it is important that we look forward. It is also important to say here that they form the first of two packages. We plan to lay a further set of regulations in 2019 to secure the remaining powers to deliver the 2018 compliance and arrears strategy. These will allow us to take a consistent approach to deduction from benefits.

I should explain that the regulations are being laid in two packages because the Social Security Advisory Committee needs to consider the regulations that make changes to deductions from benefits. But we would not wish to delay the rest of the regulations so that we may lay them all together. Those regulations are not yet drafted, so there is still time—I stress this—to take into account any thoughts on these provisions from noble Lords and honourable friends in another place. We welcome any input on that.

[Lord Kirkwood of Kirkhope]

That is an opportunity perhaps, under an SSAC consideration of the second package of regulations, for affected parents with care and non-resident parents to make submissions to the SSAC scheme later this year. If I understood what the Minister was saying, the Social Security Advisory Committee will undertake a normal consultation and will be looking for people to make submissions for consideration as the committee makes its recommendations. Am I right in thinking that?

[Baroness Buscombe]

I ask the noble Lord to bear with me, because I do not want to get this wrong. The answer is: only if the committee decides to report the regulations.

I will focus on some of the questions put to me, which are welcome. I start with the question from the noble Lord, Lord Kirkwood, on case closure timescales and the fact that there has been slippage. We are still on course to have ended all existing liabilities on CSA cases by the end of this year, 2018. The noble Lord referenced the NAO report. In that context, it is really important to say that we are continuing to consider the recommendations in the report. The department, in a broader context, has really taken on board that we need to be much better at listening. We thought that we were doing enough perhaps, but there is always more that we can do—within time and resource constraints, of course—but it is very important that we listen.

The noble Baroness, Lady Sherlock, asked how the representations will be sought. Will each parent to whom money is owed be written to individually? Depending on which category a case falls into, a client will receive a different letter or series of letters explaining what is happening and why, and, where appropriate, giving them the opportunity to ask us to try to collect their debt. These letters will be sensitively worded and will acknowledge that this may not be the outcome a client is hoping for. I was asked whether, if there has been a payment in the last three months, we will continue to collect. The answer is yes. If the case is in payment, we will continue to collect any arrears still outstanding for as long as the case remains in payment.

I was also asked whether our power to confiscate passports will be used only in a few cases. We will use this power in a targeted, proportionate way. I noted what the noble Baroness, Lady Sherlock, said about our having tried driving licences and asking whether that worked. The keyword here is “deterrent”. The vast majority of parents, we must stress, willingly pay towards their liabilities; we will seek to apply sanctions only in cases where parents wilfully refuse to pay. This happens only in limited circumstances. As with other enforcement powers, such as removing driving licences, the threat of exercising it can be very persuasive. The threat of denying people a passport is certainly something that stood out, when I first read the draft regulations, as something quite exceptional. I hope noble Lords will agree that it should send out a strong message to those who, frankly, are consistently refusing to take responsibility for their children.

The noble Baroness, Lady Sherlock, and the noble Lord, Lord Kirkwood, enquired about compliance rates for cases of collect and pay, asking what we are doing to improve the figure of 57%. The latest data, published in September, for collect and pay compliance shows it is going up; it is now 62%. Of the £1.85 billion due to be paid since the Child Maintenance Service began, £1.6 billion has been arranged through direct pay or collected through collect and pay while £290 million is currently unpaid—around 12% of the total. This percentage share continues to decline from 12.4% last year and 13.1% two years ago.

The CMS is not the only option available for separated parents to arrange child maintenance; it is there for people who cannot work together to make their own arrangements. The collect and pay service is in place for those parents unable to work together, who are less likely to be compliant. This means that the caseload is smaller but naturally more challenging than the CSA caseload.

The noble Baroness, Lady Sherlock, asked how many cases will be affected by the notional income power each year. We have not made projections on this point, but we anticipate the number to be small as, historically, only a small number of parents attempt to avoid their liabilities in this way. On the question of how many passports we expect to be disqualified every year, the figure referred to indicates that we project 20 applications for all types of sanctions will be made in the year. These include commitment to prison and disqualification from driving. Sanctions must only ever be a last resort; this is not just about how many we pursue but about targeting the right people. The threat often results in payments restarting.

The noble Lord, Lord Kirkwood, asked why the passport power is not being introduced for people in Northern Ireland. I can assure the noble Lord that this is not a particular sop to those resident in Northern Ireland who do not respect their responsibilities for their children. This is not being introduced in Northern Ireland simply because Northern Ireland citizens are entitled to an Irish passport; they have options for dual nationality, which would reduce the effectiveness of the power—they would simply find an easy way around it.

The noble Baroness, Lady Sherlock, asked whether giving periods of representation to account holders would mean that NRPs can move money to other accounts. This change is intended to close down a known loophole. If we intend to deduct a lump sum from a joint or business account, the funds will be frozen during the representation period. If parents move their funds to another type of account—for example, a sole account—we will target that account. If the funds are moved to an account we are unable deduct from, we will use our other strong enforcement measures to collect the debt.

20:00

A question was asked about whether the amount frozen in a lump sum deduction would be reduced if some of the money belonged to the other account holders. Although the debt outstanding will be frozen in the case of a lump sum deduction, if we receive representations from other account holders and, following these, decide that a proportion of the money does not belong to the non-resident parent, we will deduct only the proportion that we have decided belongs to the non-resident parent. Those working on this issue in the Department for Work and Pensions have been considering many of the possibilities—as has the noble Baroness, Lady Sherlock—of how people will work hard to get around the system.

I was asked whether we have targets for family-based arrangements. We do not have targets. We want families to make an arrangement which suits them. Around 25% of families who contacted the Child Maintenance Options service chose a family-based arrangement. Other families may make these arrangements without speaking to the service. Family-based arrangements tend to have high rates of compliance.

I was asked what target has been set for increased compliance and arrears. Again, we do not set formal targets. Our ambition remains to take the new powers debated today and continue to build on our success to date. Again, it is more about listening, watching and seeing how these regulations work out, bearing in mind that, as I have already made clear and the regulations make clear, we can revisit this instrument within five years if it is found to be ineffective.

The question of the yacht came up. Again, we have discussed and debated this interesting issue in the department. How easy is it to set a value on a particular asset? Some may think that it is easy to value a yacht, but it is quite difficult. It is easier to value a house because you can look at comparisons, go to estate agents and so on, but we have to think about the proportionate cost.

There is more to it than that in considering why we have not included high-value items such as yachts as an asset under these powers. The assets chosen reflect those which are most commonly used by individuals to generate undeclared income to support themselves and are based on operational experience. We are not interested in targeting assets that cannot be used in this way. It certainly persuaded me to a considerable degree that, unfortunately, these high-value items are often purchased using credit. We attempted to take into account this kind of lifestyle inconsistency under the CSA, but it has not been adopted because it has rarely led to a change in the liability of a case.

We must remember that buying such items is simply not the reality for the vast majority of clients. The latest published statistics show that more than 90% of paying parents pay less than £100 a week. Payment amounts vary according to family circumstances. To put this in context, for a hypothetical separated family with two children—and no children from another family—a weekly payment of £100 per week might imply a gross income of approximately £625 per week, which is around £32,500 a year. Our focus is on introducing a power that will effectively target a small minority of highly-motivated individuals who take steps to avoid their responsibilities, not those funding a lifestyle through debt.

The noble Lord, Lord Kirkwood, asked whether I can say anything about the number of people moving from the old scheme to the new scheme, which, in the words of the noble Lord, was disappointing. The number of parents opting for the new statutory scheme—the noble Baroness, Lady Sherlock, also referred to this issue—was lower than was expected but we continue to monitor the arrangements parents make, including understanding why parents may not choose to make an arrangement. It is very difficult to monitor that. To what extent should we seek to pry—if I may use that word—into people’s private lives about why they do what they do? This is a very fine and difficult balance. I can appreciate that. With the depth of experience of the noble Baroness, Lady Sherlock, and the noble Lord, Lord Kirkwood, we have to be careful to try to do the right thing while being proportionate but not being naive, and putting the children first. It is very difficult.

Finally, the noble Lord, Lord Kirkwood, asked what happens if parents cannot afford to pay off their arrears because of other debts. If the paying parent is having financial difficulties, the Child Maintenance Service will discuss the parent’s income and outgoings with them to agree an affordable and sustainable payment arrangement that settles the outstanding arrears within two years. In exceptional circumstances this period can be extended, for example where the paying parent has recently stopped claiming benefit and started new employment or self-employment.

I hope that I have mostly answered, if I can put it that way, the questions that have been raised. I am very grateful to the Committee for asking for much more detail following my introductory speech. The Government are committed to building on the success of the Child Maintenance Service. These regulations will help to do this, first, by extending our enforcement powers, closing down known loopholes and sending a clear signal that those who fail to meet their obligations to their children will be pursued, and secondly, by addressing the arrears which represent the legacy of the CSA in a way that best balances the interests of parents with the public purse. I commend this instrument to the Grand Committee.

Motion agreed.

Committee adjourned at 8.06 pm.

House of Lords

Tuesday 30th October 2018 Lords Chamber

Tuesday 30 October 2018

14:30

Prayers—read by the Lord Bishop of Portsmouth.

Prisons: Children of Prisoners

Tuesday 30th October 2018 Lords Chamber

Question

14:36

Asked by

[The Lord Bishop of Gloucester]

To ask Her Majesty’s Government what action they are taking to support the children of prisoners.

[Baroness Vere of Norbiton (Con)]

My Lords, having a parent in custody can have a very significant impact on a child. We must understand the diverse needs of these vulnerable children and provide the necessary support. For example, recent government reforms mean that prison governors now have the budget and the flexibility to commission family services that work for their prisons and in their communities.

[The Lord Bishop of Gloucester]

In 95% of cases where a mother receives a custodial sentence, a child has to move home. Unlike a child in care who moves home, the child of someone in custody has no guarantee of a place at the local school, and the person looking after that child receives no financial support. Will the Minister commit to identifying children of those in custody as a specific group, and ensuring that they and their carers receive the necessary support?

[Baroness Vere of Norbiton]

I thank the right reverend Prelate for raising this. I managed to speak to her, literally a few minutes before I rose to answer the Question, and I was surprised, as I am sure noble Lords will also be, that that is the case. My information is that families who look after such children, whether they are carers from the same family or non-family carers, are eligible for the same benefits as they would get if they were the parents of the child—child benefit, child tax credits and so on. Indeed, they may also get other funding under Section 17 of the Children Act. I would like to investigate this further and write to the right reverend Prelate. I will, of course, put a copy in the Library, because this is a very important issue.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, almost exactly a year ago we debated the excellent Farmer review on this very subject. Can the Minister report on the progress, if any, on developing links between prisons and communities, which benefit the children of all prisoners, and on technology such as tele-visiting arrangements, for maintaining prisoner-child contact?

[Baroness Vere of Norbiton]

I share the noble Baroness’s appreciation for the work of my noble friend Lord Farmer, and we are making good progress in going through his 19 recommendations and ensuring that they are implemented. One of those recommendations was the introduction of new family service contracts for prison governors, which, as I mentioned, has already happened. We are trying to create outward-looking prisons so that our empowered governors go into the community and look at what is available there, whether that be third sector groups or other service provision, and use what is available locally to ensure that prisoners have contact with their families, and also the employment skills and training they need to make a successful future.

[Baroness Corston (Lab)]

My Lords, I hope the Minister will visit some women’s prisons. A short time ago the Justice Secretary, David Gauke, announced that there would be a presumption against sentences of less than 12 months. The overwhelming majority of women in our prisons are there for far less than 12 months; indeed, two years ago 271 of them served sentences of two weeks. This break between mother and child is catastrophic, and frequently there is no family reunion. What progress is being made to ensure that we do not have these short sentences?

[Baroness Vere of Norbiton]

The noble Baroness is completely right, in that short sentences for men or women are a significant factor in family breakdown. The Lord Chancellor has made it very clear that he wants to see the number of short-term sentences decline. That of course depends on the independent judiciary and the sentences that they hand out, but there is lots that the Government can do. We are ensuring that the National Probation Service pre-sentencing report includes information on dependants. If that information is in the pre-sentencing report, the judge sees it and can then use it as a mitigating factor in the sentence that gets handed down. Furthermore, we are rolling out an excellent piece of work by Dr Shona Minson, Safeguarding Children when Sentencing Mothers. That is important work and we need to get that message out there, but at the end of the day it will be up to our independent judiciary to hand down sentences.

[Baroness Burt of Solihull (LD)]

My Lords, it is estimated that over 200,000 children are affected by parental imprisonment across the UK. We do not know the actual number because neither the courts nor local services routinely ask them. These children are left in the shadows, their needs often forgotten, with devastating impacts. Despite their situation, they are locked out of the support that they need to get a better chance in life. Will the Minister heed Barnardo’s call for the Government to appoint a lead Minister to oblige the courts to ask about the children of people being sent to prison and ensure that adequate childcare and support arrangements are in place?

[Baroness Vere of Norbiton]

My Lords, this is a very complicated area. The noble Baroness is not quite right: we do encourage courts to ask defendants, whether they are male or female, whether they have dependent children. What happens is that some mothers, in particular, fear that their child might then be taken into care, and they may well have made their own informal arrangements for that child and therefore think, “Actually, I’m not disclosing that I have children”. It is therefore very difficult for us to pick up that information.

The noble Baroness mentioned Barnardo’s. I pay tribute to the work that it has done on the National Information Centre on Children of Offenders, a comprehensive website that was launched in May this year so that all government agencies, both nationally and locally, can find out best practice and work out the diverse needs of these very vulnerable children.

[Lord Laming (CB)]

My Lords, does the Minister agree that one of the reasons why we have these very short sentences of two weeks and the like is that the courts appear to have lost confidence in the non-custodial arrangements that have been made, particularly given the decline in the standing of the probation service? What steps are being taken to recover the position of probation supervision?

[Baroness Vere of Norbiton]

The noble Lord is right that there has been a move away from community sentences, which perhaps has been because the quality has not been there. However, we are turning that around. We are looking at improving the provision of mental health, alcohol and drugs treatment locally, so that court-ordered treatment can run alongside community sentences. On the point about probation, we have re-established the National Sentencer Probation Forum, in which people who hand out sentences and the probation service can discuss what issues need to be sorted out to ensure that the provisions are there for these community-based sentences. I think all noble Lords will agree with me that the more that we can use them, the better for all involved.

[Baroness Massey of Darwen (Lab)]

My Lords, are the Government supporting parenthood programmes for prisoners? I believe that some are very effective. Can the Minister say whether there is support for them, and whether will they expand?

[Baroness Vere of Norbiton]

I would be very happy to talk further on that matter. For example, in women’s prisons the family services contract has gone out to a single contractor called Pact, and there are lots of opportunities for families to learn together, along with homework clubs. The noble Baroness mentioned parenting. There are parenting skills classes, which often involve constructive whole-day family days through which the families of mothers in prison can get together and learn together. These appear to be working very well.

Railways: East Coast Main Line

Tuesday 30th October 2018 Lords Chamber

Question

14:45

Asked by

[Lord Beith]

To ask Her Majesty’s Government when new trains will be in service on the East Coast Main line between Newcastle and Edinburgh.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)]

My Lords, passengers across the east coast main line, including in Newcastle and Edinburgh, will benefit from the introduction of new trains by London North Eastern Railway, delivered through the Government-led intercity express programme. These new trains will transform passenger journeys, providing more seats, more frequent services and faster journeys. LNER is working closely with Hitachi Rail Europe, Network Rail and other industry partners to bring these trains into service as soon as possible, with a full rollout scheduled to be complete by 2020.

[Lord Beith (LD)]

My Lords, the noble Baroness did not say very much about when these particular sections of the line will have the service. Because these new trains apparently interfere with the outdated signalling and points system on the east coast main line—and also, bizarrely, because the regulator thinks people might use the interconnecting things to climb on top of the trains—the introduction north of York has been delayed. In what year will each of these sections of the line get new trains, and for how long will the service depend on worn-out HST trains which are 40 years old?

[Baroness Sugg]

My Lords, I am happy to give some more information on the timings. The first trains were due to enter service in December this year, but LNER has recently announced that these will not be introduced until early next year. There remain challenges relating to electromagnetic capability, ORR approvals and train design. Of course, this is disappointing for all involved, but when introduced the trains will provide more seats and faster journeys. As I said, the full rollout of the east coast fleet is still scheduled for completion in 2020.

[Baroness McIntosh of Pickering (Con)]

My Lords, my noble friend will be aware of my interest in this. I congratulate the Government on their involvement in this programme. Can my noble friend put a date on when the trains will actually run the full route to London? How will this coincide with the improvements to King’s Cross station that have been announced?

[Baroness Sugg]

My Lords, I am afraid that I am not able to give a definite date. We are trying to introduce the trains as soon as possible, but there remain issues that we need to work through. LNER has said that it hopes to start introducing the trains early next year. On my noble friend’s point about King’s Cross, we are carrying out essential works on King’s Cross to replace the expired track and signalling to ensure that we can see the full benefits of the east coast main line enhancements.

[Lord Rosser (Lab)]

It was from the government Dispatch Box that we were told on 23 May this year that:

“The good news also is that we fully expect the new intercity express trains to be introduced on the east coast main line from the end of this year, as planned”.—[Official Report, 23/5/18; col. 1032.]


Is this episode yet another example of the reality that, in our fragmented railway system, no one is in overall charge? No one is ultimately accountable for the performance or lack of it of our national railway network and, as a result, no one accepted responsibility for ensuring that the new trains would start running on the planned date. If the Government disagree that that is the case, then which individual or body was accountable for ensuring that the new trains would start running on the planned date on the east coast main line?

[Baroness Sugg]

Well, that was not me. The noble Lord is quite right to say that in May I gave reassurance that those trains would come into service. At the time, that was very much what we were planning. However, as I said, there have been emerging issues on that which we need to work through. It is not unusual with delivery of a whole new infrastructure—and this is a £2.7 billion investment, which we should welcome—that there are some compatibility issues. We are working through them. On the noble Lord’s point about the rail system, it has been well over a decade since we have seen a large change in the rail network and, while we have seen record private investment and the doubling of passenger journeys, of course it has had its challenges. The time is absolutely right for a comprehensive review, and that is what the rail review will do.

[Lord Cormack (Con)]

My Lords, I thank my noble friend for the help that she has given in recent weeks to try to ensure that we have a happy resolution to the better, promised service—I repeat, promised service—between Lincoln and London. Is she confident that she will be able to join me on one of those trains during the course of 2019 with those colleagues from all parts of the House who have already accepted my invitation?

[Baroness Sugg]

My Lords, we have discussed this specific service many times, and I know that it will disappoint my noble friend, as it does me, that we are unable to guarantee that those services will be introduced in May 2019—and I am not able to give an exact date either. I know that that will also disappoint the people of Lincoln because those extra services will enable more people to visit that great city. However, I can absolutely reassure my noble friend that both LNER and the Government are committed to more trains to Lincoln and we will deliver them as soon as possible.

[Lord Steel of Aikwood (LD)]

My Lords, next year, when the new sleeping cars are reintroduced to the railways, will they be run on the east coast line to Scotland as well as the west coast line?

[Baroness Sugg]

There are some issues with trains to Scotland at the moment, so I am afraid that I am unable to give that guarantee. We are working very closely with the Scottish Government to deliver that.

[Lord Watts (Lab)]

My Lords, how can the Secretary of State keep his job? What has happened to ministerial accountability for this shambles?

[Baroness Sugg]

My Lords, we are overseeing, as I have said many times, record investment in our railways: £48 billion over 2019 to 2024. Obviously, with all these improvements, that has given us challenges, but we should not lose sight of the benefits that are being seen through this investment. The Azuma trains alone will have 15% greater capacity, and once the full fleet is in service they will deliver a 28% increase in morning peak services. There will be improvements in accessibility, and they will be more reliable, with more storage room. That is what we should aim for.

[Baroness Brinton (LD)]

My Lords, the Azuma train appears to have fewer disabled spaces than the current high-speed trains. Can the Minister confirm that first, that will be rectified, and secondly, that passengers will not be able to store suitcases in the wheelchair spaces? Becky Whitworth could not get on a train because the entire space was filled with cases.

[Baroness Sugg]

My Lords, I understand that the new trains will have improvements in accessibility, with more wheelchair spaces, which will not include flip chairs. There will also be universally accessible toilets. However, I will write to the noble Baroness on her specific question.

Health: Spectrum Conditions

Tuesday 30th October 2018 Lords Chamber

Question

14:52

Asked by

[Lord Addington]

To ask Her Majesty’s Government what assessment they have made of the importance of identification of spectrum conditions, such as dyslexia, ADHD and dyspraxia, on (1) educational, and (2) other life outcomes.

[Lord Addington (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and remind the House of my declared interest as president of the British Dyslexia Association.

[The Parliamentary Under-Secretary of State, Department for Education (Lord Agnew of Oulton) (Con)]

My Lords, our data collections do not separate outcomes of dyslexia, ADHD and dyspraxia, so we are unable to make such an assessment. In terms of destinations, after completing key stage 4, for those with SEN, overall in 2016-17, 90% of pupils with a statement or education, health and care plan were in sustained education, employment or training compared to 88% of pupils with SEN without statements, and 95% of those without SEN.

[Lord Addington]

I thank the Minister for that reply. I have made him and his office aware of the document brought forward in February this year by Warwickshire Educational Psychology Service, called Teaching Children & Young People with Literacy Difficulties Practice Guidance, which is very similar to a document that appears on the Staffordshire site. This states that dyslexia effectively is not something to worry about. It effectively undermines the whole basis of the support which the noble Lord has been talking about. Will he give an assurance that the Government will make sure that accurate diagnosis, which can be life-changing, is maintained for this group because it helps through education and throughout life?

[Lord Agnew of Oulton]

My Lords, the document to which the noble Lord refers recognises that early identification and intervention is important to meet the needs of children and young people with literacy delays. On the necessity of a dyslexia diagnosis, I do not have expertise in such matters. However, the noble Lord and the British Dyslexia Association do, and I would encourage Warwickshire local authority to consider carefully its advice on this point, and on the document generally. I share the noble Lord’s frustration that it has not responded to the British Dyslexia Association’s letter written over two and a half months ago.

[Lord Winston (Lab)]

My Lords, I am astonished that the Government do not know the figures for the relative incidence of the spectrum disorders in schools. I declare an interest as a member of staff of Imperial College. Is the Minister aware of our programme where we have managed, hugely successfully, to encourage dyslexic students, in particular, to gain very high educational qualifications? But of course, if the condition cannot be identified, it is very difficult to do that.

[Lord Agnew of Oulton]

My Lords, I acknowledge the great work the noble Lord, Lord Winston, is doing. I am clear that early diagnosis makes a huge difference; it helps the self-esteem of the child in question, and also enables earlier interventions to take place, helping to establish that child on a strong educational pathway.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend accept that dyslexia is an impairment that can result in substantial and adverse long-term effects on an individual and their ability to carry out normal, day-to-day activities, and therefore this report is in complete contrast to the legislation that this House has passed?

[Lord Agnew of Oulton]

My Lords, it is certainly not helpful that Warwickshire County Council is not engaging with the British Dyslexia Association. Under the Equality Act 2010, a person has a disability,

“if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities”.

[Lord Watson of Invergowrie (Lab)]

My Lords, this is not a party-political issue, and I acknowledge that the Minister made time last week, along with the noble Lords, Lord Addington and Lord Storey, to discuss Warwickshire County Council’s guidance with me. That is why the Minister’s words today are disappointing, because I had understood that he accepted that this was an urgent and serious issue. Warwick County Council’s guidance to parents ignores the science and refuses to recognise that dyslexia is a medical condition. One wonders if, perhaps, it has also advised their residents that the earth is actually flat and that there is no such thing as global warming. With Cambridgeshire County Council and Staffordshire County Council considering aligning themselves with Warwickshire County Council’s position, I think it is important that the Government set out what action they will take to ensure that this misguided guidance is withdrawn as a matter of urgency.

[Lord Agnew of Oulton]

My Lords, I share the concern of the noble Lord, Lord Watson, and I have offered to write to Warwickshire County Council to understand why it has not responded to the British Dyslexia Association’s very detailed and well-written letter, sent two and a half months ago. As I said, we recognise the issue of dyslexia. Many children and young people who have SEN may have a disability under the Equality Act, and as I said, we strongly believe in early diagnosis and early intervention.

[Lord Sterling of Plaistow (Con)]

My Lords, my grandson—a splendid little boy—is on the spectrum. Only yesterday, we had a meeting with the Minister on the subject of early identification of this problem. There is no doubt about it: the earlier it can be identified the better for everybody, as it gives children a chance to participate in life in a normal way. What was lacking, as many of us here know, is child psychologists. Without many more child psychologists we do not have the ability to identify problems early, and I hope that the Minister, who I know has huge empathy for this subject, might hasten to add to that voice.

[Lord Agnew of Oulton]

My Lords, I am not sure whether the noble Lord, Lord Sterling, was referring to dyslexia or autism, but he will be aware that we have increased awareness among all schools, and encouraged teachers to increase their awareness. With the Autism Education Trust, for example, we have rolled out a lot of autism awareness training. We now have 190,000 people trained in autism awareness, which is up from 150,000 in June of last year.

[Lord Storey (LD)]

My Lords, the Minister will recall that during Children and Families Act, the local offer required local authorities to give information about special needs provision, and that information has to be accurate. Does the Minister not agree that it is not helpful to parents when false information is given out by councils, particularly on this issue of dyslexia? Will the Government clarify whether they fully support the recognition of dyslexia as a disability as defined by the Equality Act 2010?

[Lord Agnew of Oulton]

My Lords, the Equality Act 2010 provides protection for any person with a condition that meets the Act’s definition of disability—that is, a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The Act does not, except in a few specific instances, mention by name the conditions that automatically fall within the definition of disability. This is because, in most cases, it is the impact on the person’s life that is the qualifying criterion, rather than the condition itself.

Gambling: Fixed-odds Betting Machines

Tuesday 30th October 2018 Lords Chamber

Question

15:00

Asked by

[Lord Griffiths of Burry Port]

To ask Her Majesty’s Government whether they will introduce legislation to reduce the maximum bet for fixed-odds betting machines to £2; and if so, when.

[Viscount Younger of Leckie (Con)]

My Lords, as announced in May 2018, the Government will introduce legislation to reduce the maximum stake for B2 gaming machines, also known as fixed-odds betting terminals, from £100 to £2. The Chancellor of the Exchequer confirmed in yesterday’s Budget that the new stake limits will come into effect when the remote gaming duty is increased to 21% in October 2019.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I find it difficult to thank the Minister for that reply. The need was felt and identified, a consultation period was held, results were published, and an impact assessment was brought forward. When the Government announced their readiness to reduce the stakes from £100 to £2 there was universal light shed on a very dark area of British national life, including among members of his own Government.

This is a victory for the bookies. What are their lobbying powers with the Treasury that they have been able to eke this process out to suit their needs and to make huge profits from the results of their endeavours? How can they do that when they disingenuously argue that it takes time to change the machines, even though the evidence shows that they can be changed very quickly? There are too many questions but the overriding one is: why? The Minister is an honourable man. Would he not prefer to be on this side with me, asking the Government that question?

[Viscount Younger of Leckie]

My Lords, I am happy to give an answer. We have never said exactly when this would come into force.

[Noble Lords]

Oh!

[Viscount Younger of Leckie]

It is true. I am delighted that, along with the excellent list of other good news that came out of the Budget yesterday, we are now able to provide clarity on the reduction to £2, which will help to stop extreme losses for those who can least afford them. The answer to the noble Lord’s question about why is to allow enough time for businesses to readjust. We are talking about a good number of jobs here. The Association of British Bookmakers has ascertained that there are about 21,000 jobs and 4,500 businesses. We think that that is a slight exaggeration, but we are talking about big numbers.

[Lord Alton of Liverpool (CB)]

My Lords, I refer the Minister to a reply he gave, on the last occasion the House discussed this, about the targeting of gambling at children and young people. In particular, the development of virtual reality games such as Fortnite, which is specifically targeted at young people, makes the idea of gambling normal. Will he also say a word about the contribution that the gambling companies to which he referred are supposed to make through the levy, to help people who become addicted? As many of them do not pay the voluntary levy, when do the Government intend to make it compulsory?

[Viscount Younger of Leckie]

As I have said in the Chamber before, we do not intend to make it compulsory. The voluntary system is working well at the moment, but we always keep it under review. The resources that we receive through the levy go towards helping problem gambling. The noble Lord made an extremely important point about the need to protect children. Problem gambling has remained consistently below 1% of the adult population for many years. Much work focused on children is going on, particularly with GambleAware. About two months ago, I noticed in the papers that a well-known TV personality took a machine from her son and smashed it against a table leg. In other words, parents need to take control and make sure that children do not spend too much time on these machines.

[The Lord Bishop of St Albans]

Many of us who have been speaking and campaigning on this issue were appalled yesterday to hear about the further time that it will take to implement this. These machines are predominantly found in the poorest areas. The research is quite clear: they cause huge poverty. On top of that, it is estimated that every day between one and two people commit suicide for gambling-related reasons. That is not only a huge social cost; it is a massive financial cost, far more than the £400 million relevant tax revenue that Her Majesty’s Government receive each year. Surely it is time to do this for the sake of everyone in our country.

[Viscount Younger of Leckie]

I note what the right reverend Prelate says, but coming to this decision was a result of much cross-departmental work and liaison with the industry. Now is the time for clarity, which we have given, and we need to go ahead. We expect the companies to implement this by the date that we have given.

[Lord Storey (LD)]

My Lords, the Minister talks about jobs and businesses, but what about the thousands of young people who become addicted to gambling? What about the 500 suicides? Does the Minister not think it is time to look at the whole issue of television advertising, which the noble Lord, Lord Alton, mentioned? Young men are seen regularly in betting adverts during the cricket, and football players have betting companies’ logos on their shirts. Is it not time that we regulated the industry and looked again at a review of gambling?

[Viscount Younger of Leckie]

I answered the question from the noble Lord, Lord Alton, about whether the levy was mandatory or voluntary. The Government take suicide prevention extremely seriously and much work is being done, particularly with the National Health Service. Support is available. GamCare provides the national gambling helpline and a national network of counselling services. It is very important that we run this in parallel with the lead-up to the date that we bring in this change to the fixed-odds terminals.

[Lord Naseby (Con)]

My Lords, my noble friend says that it is going to take another year and, as we understand from the Chancellor, there may be a Budget in the spring. Did my noble friend listen to the strong feeling of, I suspect, almost everybody in this Chamber today? Perhaps it would be possible in such a Budget to implement what should happen.

[Viscount Younger of Leckie]

I will certainly take the noble Lord’s comments back, but the date is fixed.

Greater Manchester Combined Authority (Adult Education Functions) Order 2018

Tuesday 30th October 2018 Lords Chamber

Liverpool City Region Combined Authority (Adult Education Functions) Order 2018

Cambridgeshire and Peterborough Combined Authority (Adult Education Functions) Order 2018

Tees Valley Combined Authority (Adult Education Functions) Order 2018

West Midlands Combined Authority (Adult Education Functions) Order 2018

West of England Combined Authority (Adult Education Functions) Order 2018

Motions to Approve

15:07

Moved by

[Lord Agnew of Oulton]

That the draft Orders laid before the House on 23 July be approved. Considered in Grand Committee on 24 October.

Motions agreed.

Mental Health Units (Use of Force) Bill

3rd reading (Handard): House of Lords
Tuesday 30th October 2018 Lords Chamber

Third Reading

15:08

Motion

Moved by

[Baroness Massey of Darwen]

That the Bill do now pass.

[Baroness Massey of Darwen (Lab)]

My Lords, in moving that the Bill do now pass, I should like to sincerely thank several people, including the Minister and his counterpart in the other place, Jackie Doyle-Price MP, who have been so supportive and helpful on the Bill. I also thank the voluntary sector, which has been incredibly vigorous and thorough in making sure that the Bill is as close to perfect as it can be. Will the Minister confirm that there will be other, informal, meetings on the Bill, which will look at the guidance to the Bill, particularly on statistics, impact and measurements? I wish to say that the Bill should now pass.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

I am very grateful to the noble Baroness for her question and, more importantly, for her steering the Bill to this point. I offer my thanks to her, her colleague Steve Reed in the other place and everybody who has been involved in this important piece of legislation. As she will know, my honourable friend Jackie Doyle-Price, the Minister for Mental Health, committed to the Government publishing statutory guidance within 12 months of the Bill being passed. I am happy to confirm to the noble Baroness that, in developing this guidance, the department will establish and consult an expert reference group, which will include experts on restrictive intervention as well as people with lived experience and, furthermore, that public consultation will take place before the publication of the final guidance. So I can absolutely reassure the noble Baroness and all noble Lords that we will consult widely with a broad set of stakeholders, as well as reflecting discussions in this House and the other place, to make sure that all those contributions are included in the guidance.

Bill passed.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

Second Reading

15:10

Moved by

[Lord Duncan of Springbank]

That the Bill be now read a second time.

Relevant Documents: 15th Report from the Constitution Committee, 36th and 37th Reports from the Delegated Powers Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, as I have said on many occasions, the Government remain emphatic in their support and advocacy of the Belfast agreement. The beating heart of the Belfast agreement is a devolved power-sharing Executive Government, and for that reason the restoration of a devolved power-sharing Executive is our top priority. Much to our regret, and despite our best efforts, there remains no devolved government in Northern Ireland. I believe we all share a common view that this is not good, particularly at this serious and important time. Let there be no doubt: the people of Northern Ireland need and deserve a devolved Government—a sustainable, stable, fully functioning and inclusive devolved Government.

I would much rather not be here—I suspect that many of your Lordships might share that sentiment—and that the Bill was not necessary. However, for reasons we have discussed before, sadly it is. As a Government we remain committed to taking those decisions necessary to provide good governance and political stability for Northern Ireland. This package of measures is a key staging post toward restoring a devolved power-sharing Executive and Assembly.

I do not doubt that the debate that follows will be wide-ranging. However, I shall state at the outset what the Bill seeks to achieve. The purpose is threefold. First, it will create a time-bound period for the intensive talks necessary to create an Executive. Secondly, it will ensure the functioning of the Northern Ireland departments during that period. Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers in the absence of Ministers, and will be underpinned by guidance that will help Northern Ireland departments judge whether those powers should be used in the absence of Ministers. Finally, it will seek to ensure that key public appointments are made.

I thank the Delegated Powers and Regulatory Reform Committee and the Constitution Committee of this House, and I put on record both my appreciation and that of my right honourable friend the Secretary of State for Northern Ireland for their hard work in scrutinising and publishing the reports on the Bill so very quickly. We accept the Delegated Powers and Regulatory Reform Committee’s recommendation that the power enabling the Secretary of State to add offices to the table in Clause 5(2) should be subject to the affirmative procedure. The Constitution Committee raised concerns about that procedure and the fast-tracking of the legislation. We agree that this should not become the norm and that it should not be considered to set a precedent.

On the specifics of the Bill, first, it extends the period provided for in the Northern Ireland Act 1998 for Northern Ireland Ministers to be appointed before the local elections in 2019. As your Lordships will be aware, because Ministers were not appointed by 29 June 2017, the 1998 Act requires a further election before an Executive can be formed. As set out in my right honourable friend the Secretary of State’s Statement of 6 September, an election at this time would neither be helpful nor improve the prospect of restoring the Executive. From our engagement with Northern Ireland parties, we believe that this view is widely shared. Nor is the prospect of direct rule an attractive one. The provisions of Clause 1 seek to create a period in which an Executive can be formed and talks can take place, by removing that current legal impediment to an Executive being formed for a defined period.

The Bill also provides, in Clause 2, that this defined period may be extended once, for up to five months, removing the need for further primary legislation in the event that, for example, a short extension is judged necessary to finalise an agreement and form an Executive. I assure noble Lords that we will not be waiting until March to bring the Northern Ireland parties together. Following the passage of this legislation, my right honourable friend the Secretary of State intends to meet party leaders to discuss the basis, process and timing for further talks. My right honourable friend will also welcome all efforts to improve and enhance the political dialogue between the parties in Northern Ireland—including Church leaders and Members of this House—to discuss how best to encourage meaningful political engagement towards the restoration of an Executive.

With regard to decision-making, during this period, in light of recent court judgments, Northern Ireland departments require certainty and clarity. Their decision-making powers in the absence of Northern Ireland Ministers have come under close scrutiny. The Bill makes clear that a senior officer of a Northern Ireland department may exercise departmental functions in the absence of Ministers during the period for forming an Executive, if the officer is satisfied that it is in the public interest to do so. The Bill also requires the Secretary of State to publish guidance on the exercise of departmental functions during this period, including the principles to which senior officers in Northern Ireland departments must have regard when deciding whether to exercise a decision-making function. A draft copy of this guidance has been published and placed in the Library of the House.

The Bill stipulates that the Secretary of State must have regard to representations from Members of the Northern Ireland Assembly before publishing the guidance. Similarly, my right honourable friend would have regard to such representations should the need for revised guidance arise. We would also welcome representations from UK parliamentarians as well as MLAs on its content before a final version is published, something the Secretary of State intends to do shortly after the Bill receives Royal Assent.

The principle established by this Government’s interventions over the past year is that we will legislate where doing so is necessary to protect the delivery of public services and uphold public confidence in Northern Ireland. But let me be clear, while the NICS needs certainty in respect of decision-making powers, these measures do not set or change policy direction on devolved issues in Northern Ireland. That is for a restored Executive and Assembly.

The principles underpinning decision-making are set out in guidance rather than on the face of the Bill, as Northern Ireland departments need a degree of flexibility and discretion to enable them to reach appropriate and necessary decisions and ensure the continued delivery of public services in Northern Ireland. We have engaged closely with the NICS during the development of the draft guidance. The factual information provided by it has informed the approach we have taken.

This Government also recognise that, in the absence of an Executive, there will be some decisions that we, the UK Government, should take, such as setting out departmental budget allocations for approval by Parliament to ensure that public services continue to function.

Noble Lords will be aware of some new elements to the Bill since it has arrived in our House. There was a series of amendments to Clause 4. To be very clear, the clause requires the Secretary of State to issue guidance to Northern Ireland departments on how to exercise their functions in relation to Sections 58 and 59 of the Offences against the Person Act 1861 and Article 13(1)(e) of the Matrimonial Causes (Northern Ireland) Order 1978 and wider human rights. The Secretary of State would also be required to report guidance under this clause on a quarterly basis to the other place, and set out her plans to address the impact of the absence of Ministers on human rights obligations in Northern Ireland within three months of the day on which the Bill receives Royal Assent.

[Lord Steel of Aikwood (LD)]

I am most grateful to the Minister for giving way. He will recognise that Clause 4, which was inserted in the Bill in the other place, is quite modest in its objectives. During the Brexit negotiations we have been told we cannot have a line down the middle of the Irish Sea affecting trade differently in one part of the United Kingdom from the other. Yet we have a line down the middle of the Irish Sea, affecting the human rights of one part of the United Kingdom, compared with the rights of the rest of the United Kingdom. The Supreme Court in particular, in relation to abortion, said recently,

“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate … the present law clearly needs radical reconsideration”.

What are the Government going to do about that?

[Lord Duncan of Springbank]

I hope that the noble Lord will allow me to expand on that later. However, in response to him directly on this issue, the Supreme Court judgment to which he refers was based on an absence of standing, which therefore created another technical issue—it was technical only, but it is important to stress that. We already have lines around our United Kingdom, because they are lines of devolution as well. The devolved settlements are important and have a role to play in this. I do not doubt that we will expand on that as certain amendments are discussed later today. However, I of course recognise the point that the noble Lord has raised and will report on it directly in due course, but perhaps he will allow me to continue.

The important aspect here is that, as the honourable Member who drafted the amendment has acknowledged, the new clause does not alter the law in Northern Ireland. This was not a clause that the Government sought but its inclusion was clearly the will of elected Members of the other place. I appreciate the sensitivities around the issues that the clause addresses. Abortion law and same-sex marriage have previously been subject to debate in this House and indeed in the Northern Ireland Assembly. As your Lordships know, these issues are devolved and should, rightly, be determined by an incoming Assembly. However, as I stated, the new clause does not change the law in respect of the wider legal framework in respect of either.

Finally, the Bill contains provisions to address the urgent need for key appointments to be made in Northern Ireland and to certain UK government-sponsored bodies where those appointments would normally require the involvement of Northern Ireland Ministers. Clauses 5 to 7 ensure that key posts can be filled while minimising the extent of UK government intervention in what are, rightly, devolved matters. Clause 5 would allow the relevant UK Minister to make certain specified appointments, exercising the appointments functions already conferred on Northern Ireland Ministers. As my right honourable friend the Secretary of State set out in her Written Statement on 18 July, these posts are the most pressing and urgent appointments, as they are essential to the maintenance of good governance and public confidence in Northern Ireland. They include the Northern Ireland Policing Board, the Probation Board for Northern Ireland, the Northern Ireland Judicial Appointments Commission and the Police Ombudsman for Northern Ireland. The Bill takes this focused approach rather than conferring a blanket power on the Secretary of State.

It is also important that we provide for other vital offices which might unexpectedly become vacant. For this reason, the Bill includes provision to add to the list of offices by means of a statutory instrument allowing the relevant UK Minister to exercise Northern Ireland Ministers’ appointment functions in relation to additional specified offices. This power would be used only if the appointments were urgent and necessary, and my right honourable friend the Secretary of State would of course consult the main Northern Ireland political parties before bringing forward regulations.

A large proportion of appointment functions in Northern Ireland are conferred on Northern Ireland departments. The provisions that I outlined earlier dealing with departments’ decision-making powers would provide the necessary clarity to allow the Northern Ireland departments to be able to exercise those appointment functions conferred on them during the formation of the Executive. It does not transfer to them any appointment functions currently conferred on Northern Ireland Ministers.

The lack of an Executive has also affected appointments to UK-wide bodies, as a small number of these require Northern Ireland Ministers to be consulted or to agree an appointment made by a UK Minister. The most pressing example is the appointment by the Home Secretary of a new chair of the Disclosure and Barring Service. Similarly, joint appointments are made by UK and Northern Ireland Ministers. The Bill addresses such appointments by allowing them to be made in the absence of Northern Ireland Ministers but it retains the Northern Ireland input by requiring the UK Minister to consult the relevant Northern Ireland department. The powers given to UK Ministers under Clauses 5 to 7 would expire when Northern Ireland Ministers were appointed and an Executive formed.

The people of Northern Ireland deserve strong, locally elected, accountable individuals sitting in an Assembly, and they deserve a functioning, sustainable devolved Government. Achieving that is our priority, and we continue to be focused on achieving it. On that basis, I commend the Bill to the House.

15:23

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the noble Lord for introducing the Bill before the House today, and I think we understand the reason for it. As he explained, the Bill has three clear and limited purposes: to extend the period to form an Executive; to clarify the functions of the Northern Ireland Civil Service at this time; and to ensure that important public appointments can be made.

We on these Benches do not disagree with the individual elements of the Bill, but the Minister will not be surprised to hear that we are deeply frustrated and disappointed, as I think he acknowledged he himself was, that it has been necessary to bring these measures forward at all. This is now the seventh or eighth piece of legislation that the Government have had to bring forward to Parliament to ensure that Northern Ireland continues to function on a day-to-day basis in the absence of the political parties being able to reach an agreement that would restore the devolved Executive.

The Minister can be in no doubt that this party has a long-established commitment to devolution, and in particular to the institutions in Northern Ireland established under the Good Friday agreement. I have a personal, abiding memory of the referendum, as the result was declared on the morning of my wedding, giving a particularly positive lift to an already happy day. Like, I hope, everybody else around this Chamber, I would hate to see that agreement put at risk, as it currently is because of the stalemate.

The best solution for Northern Ireland remains devolved government and a well-functioning Assembly. However, we are deeply concerned that the real challenge of restarting the talks and restoring an Executive is not being faced up to. As far back as 2017, the then Secretary of State for Northern Ireland, James Brokenshire, stated that the current situation—which is continuing—was “not sustainable” in the long term. We are now almost one year on from that statement, and fast approaching two years since the collapse of the Executive. This really is a shameful indictment of this Government, as well as the parties.

The noble Lord the Minister has more than once talked of “a new impetus” being needed in the talks process—we agree, but when will we see this, and what are the Government doing to spur it on? Although he mentioned that the Secretary of State will follow this legislation through, it would be good to hear in his response precisely what the Secretary of State is going to do to try and break the impasse. It has been eight months since there was any real attempt by the Government to restart talks between any of the parties in Northern Ireland. My understanding is that the recent attempts to encourage discussions were led by Naomi Long, the leader of the Alliance Party, in a separate meeting convened by church leaders at the end of September. The Government really do need to be visible and present.

For Northern Ireland to function properly, we need much more than this. While we welcome the clarity given by the Bill and by guidance to the Northern Ireland Civil Service, enabling officials to take key decisions is not enough. It lacks democracy and proper accountability, as I think the Minister has acknowledged. It is in no way comparable to normal politics, where politicians drive change through committees, departments, the Assembly and the Executive. In the end, devolution is the only credible and democratic way forward, and we must surely exhaust every possible initiative to ensure accountable, local government is back in place.

For quite some time, we on these Benches and others have called for an independent mediator to be appointed to manage a fresh talks process. I would contest that now, more than ever, is the time that an independent facilitator must be appointed. The nature of the breakdown of the talks in February, the subsequent dispute over the status of negotiations, and the damage caused to political relationships make the appointment of an independent facilitator absolutely crucial, and emphatically in the Government’s own interests. In addition to building internal confidence in any talks process, there is also a pressing need to give the public confidence that everything possible is being done to restore the institutions. This means that any talks process needs to be inclusive, with all five parties around the table, and transparent.

As far back as the Stormont House agreement in 2014, there has been recognition that the petition of concern system in the Assembly has not been working as it was originally intended. Since then, we have seen times when it has been used to block progressive social reforms. Indeed, many of the issues that are currently in deadlock between the parties could be resolved democratically on the floor of the Assembly if the ability of some to use, and abuse, the petition of concern was removed. Rather than going back into talks and simply repeating the dynamics of past failures, can the Minister say whether the Government are giving any consideration to reforming the petition of concern? There is a possibility that future-proofing the Assembly to deal with social policies and equality issues, and preventing any single party being able to frustrate the will of the electorate in the future, could change the pitch and nature of the talks process. Does the Minister agree that such a change could be very helpful in achieving an outcome, and restoring an Executive with the capacity to address issues of current concern across the Province?

I have tabled and am supporting amendments to address some important policy issues for Northern Ireland that are currently not being resolved as there is no Executive and Assembly in place. I will address these in detail in Committee, but I place on record my strong personal support for Clause 4, which I am sure is shared on these Benches, which was inserted by a free vote in the Commons. Recent polls have shown support of up to 76% for equal marriage. There is also a huge amount of public support in Northern Ireland to reform the law on abortion: a recent poll showed that some 80% of people now believe that a women should have the choice of abortion if her health is at risk; 80% also feel that the same choice should be there in cases of rape or incest; and 73% of those surveyed in Northern Ireland agree that a woman should have the choice of abortion in cases of fatal foetal abnormality. A figure that the Minister should consider most carefully is that 65% of those surveyed in Northern Ireland think that Westminster should reform the law in the absence of a devolved Government. Across the UK, surveys suggest that as much as 75% of UK citizens believe that the law should be changed and that the UK Government should take responsibility for doing it. I suspect that very high figure reflects discomfiture in knowing that British citizens do not have equal rights across the United Kingdom, something which my noble friend Lord Steel drew attention to in his intervention.

I have a further specific question for the Minister on the detail of the Bill. I would be grateful if he could address this in his remarks at the end of the debate. Clause 3 contains six initial subsections that allow senior officials to take decisions that may have previously been the preserve of Northern Ireland Ministers. However, subsection (7) then states:

“Subsections (1) to (6) have effect despite anything in the Northern Ireland Act 1998, the Departments (Northern Ireland) Order 1999 … or any other enactment or rule of law that would prevent a senior officer of a Northern Ireland department from exercising departmental functions in the absence of Northern Ireland Ministers”.


While the latter part of this sentence appears to qualify this power only to circumstances whereby senior officials are exercising power in the absence of Ministers, it is drafted in a fairly ambiguous way. That is an ambiguity that we could do without, given the length of time since we had a functioning Executive.

Therefore, could the Minister reassure the House that this cannot and will not be used as a justification for not abiding by some key equality and human rights safeguards in the Northern Ireland Act when any such decisions are taken? Specifically, Section 24 of the Act prevents departments “doing any act” that is incompatible with rights under the European Convention on Human Rights or discriminates against a person or class of person on the ground of religious belief or political opinion. Section 75 places procedural requirements to equality screen and to equality impact assess policy decisions. Section 76 prohibits discrimination on sectarian grounds by public authorities. Will the Minister give a categorical assurance that these important protections will not be undermined by the Bill? After all, the UK Government are the legal signatory of the European Convention on Human Rights and, I would argue, have a responsibility to protect and to promote these human rights.

It is abundantly clear that issues of vital importance that are in the public interest are not being addressed in Northern Ireland. This is of concern not just to people in Northern Ireland, but to a majority of the people of the United Kingdom. Rather than what we would hope for—the vibrant, progressive and shared society that we want to see—Northern Ireland is being allowed at best to drift and at worst to stagnate. It is imperative that the Government take urgent action to inject momentum into the talks and to end the ongoing political impasse. The people of Northern Ireland deserve nothing less, but it is the responsibility of the Government, as well as the parties of Northern Ireland, to break the deadlock, bring about change and get normality back.

15:33

[Lord Morrow (DUP)]

My Lords, those who spoke before me, albeit just two, have committed themselves to devolution in Northern Ireland. That is something that I and my party are strongly in favour of. Indeed, records will show that we are the only party that has not dallied with other ideas for Northern Ireland over the past 30 or 40 years. We are strong believers in devolution. We believe that devolution is the way forward. We believe that it serves Northern Ireland well and that the people of Northern Ireland should be making those decisions.

However, I have some concern when I hear some Members past and present speak who want to cherry pick things that London should be deciding and then maybe Northern Ireland politicians can decide other things if and when devolution returns. We will strongly oppose any attempt to cherry pick and decide what should or should not happen in Northern Ireland. However, if—and I know that the Minister has not said this—it is the opinion that direct rule should return, then let it return in full, not piecemeal, because that gives everybody the worst of both worlds.

We stand here today ready to go back into a Northern Ireland Assembly tomorrow, with no ifs, ands or buts, and no preconditions. It has to be said here, loud and clear, that it was Sinn Féin members who brought down the Northern Ireland Assembly—and I suspect that, if it were to be restored again, they would do the same all over again at their own timing. That is the way they work.

There are aspects of this Bill about which we have great concerns. I have great concerns about Clause 4. I do not want to get into technical, legal arguments that I know others will want to address: I will save my contribution on that for Committee. I simply want to point out that some others do not want to point out that abortion is a devolved matter. Legislation in Northern Ireland is the most up-to-date in any part of the United Kingdom, having been decided in 2016 on a cross-party vote. There was no petition of concern, but it was decided on a simple, straightforward majority that the law should remain as it is.

[Lord Adonis (Lab)]

My Lords, will the noble Lord explain to the House what the Parliament of the United Kingdom is supposed to do where a matter is devolved and there are no devolved institutions?

[Lord Morrow]

I simply point out again to the noble Lord that it is a devolved matter—but he consciously ignores that. I would respect him more if he would have more respect for what the people and the elected representatives of Northern Ireland have said quite recently. Furthermore, it is not going to help us to get power-sharing back. That surely should be the aim and the goal of this House: the restoration of devolution, as the Minister has already stated.

Polling of 1,013 adults in Northern Ireland conducted between 8 and 15 October showed that 64% of people do not think that Westminster should interfere in this issue but should leave it to the Northern Ireland Assembly. I agree with those 64%. The figures rise to 66% of women and 70% of 18 to 34 year-olds. The same polling also shows that 47% of people in Northern Ireland believe that intervention by Westminster would undermine devolution; only 30% disagree.

Furthermore, I understand that Amnesty has also done some polling on this same question, reaching different conclusions. However, I note, first, that it was conducted by an organisation that is not a member of the British Polling Council. Secondly, it did not release the polling tables for this question; and, thirdly—inexplicably—it left out the “don’t knows” and the “prefer not to says”. This inevitably distorts the outcome. Had the polling I cited been done, the proportion of Northern Ireland citizens saying that Westminster should not intervene would be more than 70%.

Of course, I accept that all polling has its limitations. The country vote on which we can depend was the election of the Northern Ireland Assembly, of which I was then a Member, by the women and men of Northern Ireland. This Assembly determined, by a simple majority vote and without reference to a petition of concern—I emphasise that—not to change abortion law in any way on 10 February 2016. Of course, if at some future point the Supreme Court issued a declaration of incompatibility with respect to any aspect of our law, the Northern Ireland Assembly would respond appropriately.

15:40

[Lord Empey (UUP)]

My Lords, I said when the Bill was first mooted that it was a smokescreen for failure, and that is exactly what it is. It is before us only because the Government have been forced by various actions pending in the courts. One action would have forced the Secretary of State to call an election. The noble Lord, Lord Alderdice, referred some months ago to the fact that the Government had been acting ultra vires for quite a long time. The provocation for it, of course, was when a decision by a senior official in the Department for Infrastructure was struck down over a waste incinerator, of all things. The Government realised then that the civil servants who had been taking decisions could no longer do so and were not prepared to do so. I fully understand their position.

In many cases we are using the Civil Service in Northern Ireland as a football—as an excuse, in some respects, for not taking other decisions. As long as it is prepared to take decisions and keep things running, everybody can stand back and say, “Things are ticking over okay, there is no urgency”.

I also want to deal with the appearance that some form of political talks process and action is happening. There is not. Every fortnight, the Secretary of State rings up the party leaders, she speaks to them for a few minutes, asks a number of questions—probably off a list—and that is about the height of it. There is no formal process and there has not been one for months. There is nothing happening in that area at all.

The Minister has brought several pieces of legislation before us over the past year and we have had this conversation many times. He has said that we cannot continue with this, we cannot let this go on any longer, there is only so far we can push it. I have to say to the Minister that he has developed the ability to say nothing with great conviction and compassion. I do not believe that if he was put in the spotlight he could actually defend what is being done here. On the formation of an Executive, the dogs in the street know that there is not going to be an Executive this side of Brexit. Everybody knows that. Secondly, of course, in the last formal process between the parties, which ended in February, while there was no agreement between the parties at that stage, there was clearly a set of understandings that were to be put to the respective parties for their approval. That blew up in their faces at that time. So getting that process going again with the existing personnel in place is going to be extremely difficult.

The other thing that has happened is that support for devolution and for the Assembly is withering. The behaviour of the last Administration was absolutely outrageous by any standards. Anybody who has paid the slightest attention to the inquiry conducted by Sir Patrick Coghlin into the RHI would be shocked and appalled at the attitude and the culture that were operating in that Executive, where spads, paid enormous sums of money—between £85,000 and £92,000 a year—were able to effectively run departments. That applies to both the DUP and Sinn Féin. Sinn Féin’s Minister had to go cap in hand to somebody who was not allowed to be a spad, who did not even have that capacity but was in Sinn Féin headquarters, to get permission to see whether they could bring the heating scheme to an end and put a cap on the prices. A DUP adviser, when he thought the money was coming from annually managed expenditure, which is outwith the block grant, said that we could fill our boots. This is the attitude. This House and this Parliament seem to be oblivious to it; the Government know what is going on; they have not covered it up but have ignored it. They have turned a blind eye for months—for years. People are disgusted and fed up. Every time this happens, it is harder and harder to get things going.

I have drawn attention to issues concerning health. There is the issue of institutional abuse, which I know is coming forward in Committee. On health itself, I believe we have to take some decisions on humanitarian, not on political, grounds. With our waiting lists, people’s lives are being directly affected and injured as a result of the inability to have a Minister in place.

I say to this House and to Parliament in general that this situation cannot continue much longer, but as long as the Government are prepared to turn a blind eye to it, it will. There are no initiatives at all. Regarding the issues in Clause 4, while the public have latched on to this and we have all received lots of emails, nothing in this Bill is actually changing the law. People misunderstand that: they think the law is being changed, but it is not. To some extent, it is smoke and mirrors. Those who will be happy with the idea that the law is changing will be disappointed, and those who are not happy that the law is going to be changed are obviously frightened by this.

The Minister should at least clarify the legal position. We all know that the efforts to clarify the situation for civil servants are only going to last between now and the next judicial review. We will be back here in a few months in the same pickle as we are in today.

15:47

[Lord Mackay of Clashfern (Con)]

My Lords, my intention is to speak about Clause 4 only and the legal situation which is the background to it. I am taking no position on the substantive issues which underlie the clause, but it is quite clear that the intention of those who promoted the Motion put to approve Clause 4 as an amendment in the House of Commons, on a free vote, was to bring the law on abortion in Northern Ireland into line with modern law on the other side of the Irish Sea. The position is that abortion has been made a devolved subject. Therefore, the only statutory authority with authority to alter the statutes and statutory instruments is the Legislative Assembly of Northern Ireland and Ministers of that Assembly. There is no power whatsoever in the United Kingdom Parliament to interfere with that while it is devolved.

The noble Lords, Lord Steel of Aikwood and Lord Bruce of Bennachie, mentioned that there is a border in the Irish Sea on this point. That is certainly true. There are borders between here and Scotland on a number of things, including, for example, free prescriptions in the health service. It is part of devolution that the law on one side of the devolved border may be different from the law on the other side. I am a little surprised that exponents of devolution found that surprising, but that is the fact. That is part of the background of the law on this matter. The devolved issue is one, as I say, for the Northern Ireland Assembly and Ministers acting as Ministers of that Assembly.

Where that is the law, the question of the Human Rights Act is important. Your Lordships will recollect that the Human Rights Act does not modify existing law. There is a power in the courts to declare a provision of British law—this would apply in Northern Ireland as well—incompatible with the convention provision in the Human Rights Act. That decision of the courts does not affect the law unless and until it is acted on by Parliament. Perhaps the best example of that was the relationship between the Westminster Parliament and prisoners’ voting rights. That was declared incompatible with the convention rights by a Scottish court many years ago and the English court followed it, saying it was not necessary to do it twice because there was nothing wrong with the way that the Scots had done it—which is a compliment that I always like to hear. Anyway, that is what happened, and it remained the law of the United Kingdom for a long time. There have been some slight modifications recently but the idea that the Human Rights Act changes existing statutes is wrong. It is part of the provision of the Human Rights Act that it does not do so.

Therefore, the only authority to alter the existing law and bring it into conformity with the Human Rights Act is the legislature in question, if it is a statute that is in issue. Therefore, there is no question that the Secretary of State could by guidance alter the law in this matter, which is to a considerable extent defined by statutes which are in existence and in force in Northern Ireland. The Secretary of State is mandated to do this—she must do this—but if she were to make an order, it would be immediately set aside because it is quite clear from the statistics that have been given that not everybody in Northern Ireland is of exactly the same mind in connection with abortion. If it were so, it might pass without any challenge but in Northern Ireland that is extremely unlikely. Therefore, if the Secretary of State were to make an order trying to escape the existing statutes of Northern Ireland relevant to this subject, she would be immediately struck down as doing something which she is not entitled to do. The fact that she would have been asked to do that by Parliament is an extraordinary situation.

I know that those who moved this amendment in the House of Commons did so with that in mind—that this might be a way forward—but in this House we must take the view that that is not possible. I tabled an amendment for Committee—the last one, which will presumably come fairly late this evening—about that. I am proposing to move the amendment so that discussion will be possible but I do not intend to press it to a Division because abortion has always been—rightly, because it is a matter of conscience—on a free vote. This amendment was passed on a free vote in the House of Commons and therefore I do not intend to press it here. There may be others who want to do that and the fact I have tabled the amendment makes that possible. I just make it clear that I am not going to do that because it would be completely ineffective in producing the result that the movers of it wanted.

15:53

[Lord Dubs (Lab)]

My Lords, the Bill is a sad necessity and many of us hoped that the Executive and institutions would have been restored in Belfast long before today. I will make just a few brief comments.

One of the arguments that has been put is that we should stop paying Members of the Legislative Assembly. I know that their pay is going to be cut a bit but I caution against doing more than that small cut, simply because if we take away all income from Members of the Legislative Assembly, they will have to find other jobs, and then when the Executive is restored we will have no politicians ready to take over and we would denude Northern Ireland of some people who would have a part to play in public life there. So I would caution against being too harsh with the pay of Members of the Legislative Assembly.

I have tried to understand what constraints the Bill seeks to permit or not to permit in terms of decision-making by civil servants—and I am bound to say that I found it pretty difficult. I have read the bits of paper, but maybe the Minister will throw some light on this in winding up. Of course, the civil servants in Northern Ireland have, by tradition, done a pretty good job. They are used to it. Ministers come and go, and the civil servants stay—but in the absence of Ministers they tend to be excessively cautious. One cannot blame them for that, but the difficulty with excessive caution is that very little will happen unless we take away the constraints that the civil servants impose on themselves.

Let me give a few examples. On the Parliament channel I happened to stumble on some Northern Ireland television and saw a bizarre example, which I think I have now had confirmed. It is not proper for Members of the Legislative Assembly to put on the noticeboard above their constituency office more than their name and their party; they may not put their email address or their phone number. Indeed, if that television programme was right, David Ford, a former Justice Minister, will lose his Assembly money and be penalised by £10,000 because he put his email address and phone number on the sign above his office door. I cannot think of anything dafter or more absurd. I hope that the Minister will find a way of getting rid of that stupid anomaly and giving David Ford the money to which he is surely entitled under the present provisions. We spend our time—or at least, they certainly do in the Commons—trying to make ourselves available to the public, yet there, by some bizarre reason, things go the other way.

I have been trying to understand the details of the Budget. I have not yet managed to do it all, but I understand that there are some provisions for extra expenditure in Northern Ireland, including expenditure on shared and integrated education projects. Is that extra money now available to be spent on integrated schools, and will civil servants get the go-ahead to do that, rather than having to wait until the Executive are restored? Integrated education is surely crucial to politics in Northern Ireland, and to harmony among communities. All we are saying is that parents in Northern Ireland would like to have the choice of integrated education, and I would like to feel that, on the basis of yesterday’s Budget Statement, there is a bit of money in the budget available for this purpose.

I also note what the Bill says about appointments. I think that there are some other appointments that are not listed, and the danger is that if the Secretary of State permits appointments to be made only fairly late in the day, there could be a lame duck in a senior post, not knowing whether he or she had a future. That is a very unsatisfactory position to be in. I urge that the Secretary of State should give as much notice as possible in the case of renewing appointments, or of removing appointees and appointing new people, so that there is at least some continuity. That would be fair to Northern Ireland and to the people concerned.

I am worried about what the decision-making will mean regarding planning constraints. There have been one or two such cases in Northern Ireland, and in the past few months civil servants have been very cautious about giving the go-ahead for major projects requiring planning permission, because they are concerned about whether they have those powers or not. Planning constraints are important, but I hope there can be at least some relaxation, so that worthwhile projects that would create jobs and be beneficial to Northern Ireland are not held up. When people want planning permission for such projects they cannot always wait. They may not have the money to sit tight, and the chance will go away. The Minister will know of some examples.

I note what the noble and learned Lord who preceded me said about abortion, but I want to leave that until we deal with the amendment.

Penultimately, may I ask the Minister a question that he will expect to come from me—one about child refugees? I know that some parts of Northern Ireland have taken Syrian families, but I would like the Minister to answer this question: can it be made possible for Northern Ireland to provide foster accommodation for child refugees through the scheme under Section 67 of the Immigration Act? I have been told by people in Northern Ireland that they would like to co-operate, and there are local foster parents who would be willing. I understand that it is a matter for the health boards. I have talked to lots of people and they are all keen that there should be some progress. Can the Minister throw some light on whether that would be possible, or could be made possible?

Lastly, the Minister talked at a number of points in his speech about the consent of the Northern Ireland parties to one or two specific issues. I wonder how widely it could be made a principle underlying the Bill that the Northern Ireland parties should be asked in an informal consultation process about some of the issues we are talking about today. That would help to move things along. It would not give a mandate or make the process legal in terms of devolution, but at least consulting the Northern Ireland parties on some of the changes that need to be made might not be a bad idea.

16:00

[Lord Eames (CB)]

My Lords, the columns of our newspapers in Northern Ireland are frequently filled with people giving their wise or otherwise comments on public affairs. In the last few weeks the discussion of the Bill that is before the House today prompted one writer to say, “Here we go again”—and I have a feeling that that is the emotion that many noble Lords will be feeling at this moment. Because I believe that that is a danger in its own way, we need to put everything that we are saying this afternoon—and, as I have been reminded, this evening—in the context of what the reality is.

Yes, here we go again: we face another look at the disastrous consequences of a failure to establish a local Administration at Stormont. We all know the story, the excuses and the reasons, and we are left in no doubt that, even though at one stage in recent history, we are told, the main parties were within grasping distance of an agreement, no agreement was possible. For my part, I believe that we would be failing the people of Northern Ireland, who are after all the substance of what we are doing, if we did not realise that, no matter what the details are of our discussion and debate, it has an effect right across the board on a society that in many ways is unique.

It is unique because it is a devolved Administration and because many of the things that have happened question the value of devolution and the way in which the United Kingdom goes about it. In the margin of many of the arguments that we have heard over and over in this House, there are questions of a fundamental nature that we find it comfortable to avoid, such as: does devolution mean the New Jerusalem to those concerned because power is given to local politicians? When those local politicians find that the margins in which they are asked to work are not possible, we then ask the bigger question: does that mean we have somehow got the theory of devolution wrong?

Once more the disastrous consequence of the failure to reach agreement on the formation of that devolved Administration for which we had such hope at the time of the Good Friday agreement is that our people are being denied a voice on serious issues. The reality is that this failure means that medical services, education, social services, roads, transport and indeed victims face impossible odds because Stormont cannot take serious decisions.

It would be very easy to place much of what we are talking about this afternoon in a context that takes us away from the reality of the experience of Northern Ireland. It is a society which has suffered much and which is still trying to come to terms with the wounds of the Troubles. They are not just physical or obvious wounds. They are the failure to build relationships, to mature in political relationships and to understand that within our grasp, if we have the rare will to do it, we can achieve much that has so far eluded us. The absence of this local devolved Administration in these days as Brexit comes galloping—dare I say?—across the Irish border, fast approaching with all its unanswered questions, means that Northern Ireland is bereft of the presentation of its local voice.

We have been reminded by the Minister that this is the Government’s attempt to meet a unique situation. We are told that it is one means of encouraging local government in Stormont. It places on our Civil Service responsibilities to take actions that could easily lead it into a legal minefield. That, for me, is a real concern. It causes long-term questions on the theory of devolution. We are bound to ask: after this Bill, what happens next? What happens if the consequences of this Bill falter yet again? Will the Government face another situation where special needs must be met by special provisions? Are we, in fact—I ask the Minister directly—in danger of setting a precedent that could be interpreted in other devolution relationships in the United Kingdom? Today we face decisions affecting the people of Northern Ireland which their representatives, rather than Westminster, ought to take.

16:07

[Baroness Butler-Sloss (CB)]

My Lords, no one in this House who has just heard what the noble and right reverend Lord said would feel anything other than the most profound sympathy, both for what he said and the picture he painted. I am English but married to an Ulsterman and go regularly to Northern Ireland. I heard that with mounting depression, but it does not surprise me. I also feel a great deal of sympathy for the Government, who are doing their best not to take over. They are doing their best to allow for a situation in which they can persuade those who do not seem to want to be persuaded that they must form an Executive and recall the Assembly.

I want to say a few words about Clause 4, which is not, of course, government-inspired, for obvious reasons. In the other place, there were interesting and useful arguments on devolution and human rights. It is not necessary to explore those today, except to say that the Supreme Court has criticised the situation in Northern Ireland in no uncertain terms. I particularly remark on the speech of the noble and learned Lord, Lord Kerr, who was the Lord Chief Justice of Northern Ireland, and was perhaps more outspoken about the injustice to the women of Northern Ireland.

On the Bill itself, even if there had been a declaration of incompatibility, as a previous speaker seemed to think, the Supreme Court could not make it because it came from the commission, not an individual, so there was no declaration. As the noble and learned Lord, Lord Mackay, pointed out very clearly in his exposition of the law, a declaration of incompatibility would not help at all in this situation. If he is right, as I assume he is, abortion is currently more serious an issue than same-sex marriage because at least there can be civil partnerships. The current situation on abortion is, however, as the Supreme Court said, profoundly unfair. I would not want to open the floodgates of easy abortion to Northern Ireland, but certainly there are situations of rape, incest and foetal abnormality that absolutely cry out to be dealt with.

Having heard the figures from various noble Lords, it is interesting that, like many others, I have had a lot of emails from women supporting the clause and women opposing it—more supporting the clause. I feel, “Poor dears, what do they think this clause really means?” The clause means absolutely nothing on abortion. It will help no one, and it raises expectations with a clear misconception, misunderstanding and misinterpretation of what the clause will say when it inevitably becomes law.

As the Secretary of State in the other place said, the clause puts an impossible burden on her because she will be expected to do something. Those who disapprove of it will see that she may do something they do not like. Those who want it—despite some of the figures we have heard, many women do want it—will find that she cannot do it. Her civil servants cannot do it. As the noble and learned Lord said, if they tried to do anything, they would rightly be slapped down by judicial review because sufficient people would oppose it for it to be taken to the Northern Ireland courts.

There has been a very well-meaning attempt by Members of the House of Commons to circumvent devolution by putting in a clause that I cannot believe they thought would mean anything or would do any good. I do not understand what they thought would happen but it will send a message—or a number of messages. I was told yesterday by somebody from Northern Ireland that this could even send a message that might have some adverse effect on the Good Friday agreement. That may be a step too far but it is certainly something that one cannot ignore. It is the expectation that has been raised that is so sad. What will the Belfast Telegraph, the News Letter or other newspapers in Belfast say after this goes through and becomes law?

If anything is to be done, the Government will have to take over the management of Northern Ireland and, in doing so, the point made by the noble and learned Lord will fall away because London—Westminster—would be making the laws. If Westminster makes the laws, it could change the Offences Against the Person Act, but until the Government do that—and they have absolutely no intention that I can see to do that, for obvious reasons—there is a stalemate, and nothing useful can be done. It is very unfortunate that seeing the Bill through on one day, for perfectly good reasons, means that there is no time for reflection on the best way forward. Clause 4 will pass and it is very unfortunate that it will become law.

16:15

[Lord Dunlop (Con)]

My Lords, I rise to support this Bill—the fifth piece of fast-track Northern Ireland legislation this Session. I confess that I do so with a slightly heavy heart, because legislating this way is far from ideal, as the Constitution Committee— of which I am a member—points out in its report. However, I sympathise with the Government’s predicament. Last year, as a Minister in the Northern Ireland Office, I brought before your Lordships’ House a fast-track Bill to extend the limit for creating an Executive to 108 days. Going the extra mile to try to restore devolved government in Northern Ireland is clearly right. By all accounts, as has already been pointed out, the DUP and Sinn Fein came within a whisker of an agreement in February. Further extending the time available is an understandable impulse, but will the sense of urgency to strike a deal diminish with each deadline passed and then extended? What happens if stalemate persists at the end of extra time, when there is no political equivalent of a penalty shootout to break the deadlock? These nagging questions remain.

All that said, in the circumstances I believe that the Bill is the least-worst option judged against two pretty unattractive alternatives. Those are either that there will be another Assembly election that changes little, with a campaign that might unhelpfully raise the political temperature; or that the spectre of direct rule returns. No one wants that; history has shown that it is not easy to escape from—it took nearly five years the last time.

That is why the current state of affairs is so frustrating. Between the end of direct rule and the dissolution of the Assembly in January 2017, Northern Ireland enjoyed the longest unbroken period of devolved government since the dissolution of the old Stormont Parliament in 1972. That was nearly 10 years in which there were real and positive steps forward in Northern Ireland, and it is a more peaceful and prosperous place today as a result. Yet, just at the moment that Northern Ireland should be driving forward and building on the progress of the last two decades, it has languished for 22 months without Executive Ministers. If negotiations go to the wire allowed for by this Bill, the vacuum could in theory persist for another 10 months. That is nearly three years without an Executive developing policy and being held to account by a fully functioning Assembly.

This is a troubling democratic deficit that our UK Parliament could never hope to make up. However, if further legislation is required, or fresh guidance from the Secretary of State, I hope the Government will be mindful of the need to provide as much time as practical for this Parliament to scrutinise and debate what is proposed.

It is, of course, the Buick judgment in July that has forced the Government to act now. The court judged that decisions normally for a Minister to approve lie beyond the competence of a senior civil servant in the absence of a Minister. However, the court offered no definitive view on where the dividing line should be drawn. Matters that are significant, controversial or engage more than one department would normally be a collective Executive decision, and therefore are clearly beyond a senior civil servant’s competence, in even these exceptional times.

The Bill still leaves a very large grey area. In the absence of this Bill and in the face of a heightened risk of further legal challenges, one can well imagine how there might be a chilling effect on Civil Service decision-making. The Bill seeks to fill that void. However, the lines between policy and administration are never clear cut. The scheme set out in Clause 3 and draft guidance attempts to strike a balance that is difficult, if not impossible to achieve—balancing sufficiently wide scope of administrative discretion with the controls on how that discretion is exercised, without normal accountability mechanisms. The Constitution Committee’s report highlights a number of constitutional issues, including the breadth of conferred powers, lack of clear lines of accountability and the retrospective effect of Clause 3. However, the committee accepts that exceptional times require an exceptional response, while expressing concern that the Bill’s exceptional and constitutionally challenging provisions are not taken as precedents for future legislation.

Whatever our concerns about the Bill, we must not lose sight of the bigger picture. In the absence of fully functioning devolved institutions, decisions crucial to the future prosperity and security of the people of Northern Ireland are simply not being taken. Devolved corporation tax designed to give a boost to Northern Ireland’s economy is stalled; £2 billion of critical economic infrastructure, such as the north/south electricity interconnector and the new Belfast transport hub are in a holding pattern. Recommendations from the Hart report into historical institutional abuse are unimplemented. A strong elected voice representing Northern Ireland’s interests in the Joint Ministerial Committee discussions to prepare for Brexit is absent, not to mention the pressures facing schools and hospitals. Nothing in the Bill will directly change this state of affairs. One can only hope that the Bill provides a space to facilitate a political resolution.

My last official engagement as a Northern Ireland Office Minister was on 7 June last year, on a windswept ridge in Flanders, at the ceremony to commemorate the centenary of the Battle of Messines. The battle has great symbolic significance for the island of Ireland. Soldiers from the 36th (Ulster) and 16th (Irish) Divisions fought together for the first time during the First World War. Unionists and nationalists set aside political differences to unite in a common cause. Their story and sacrifice made a powerful impression on all those there, nationalists and unionists alike. The example of those servicemen echoes down the years and stands as a rebuke to those who have not—after nearly two years—resolved their differences. As we approach our own national day of remembrance, I hope that Northern Ireland’s political leaders will reflect on the example set by those soldiers, rise to the same heights of leadership and do right by the people of Northern Ireland by restoring the devolved government they clearly want, urgently need and so richly deserve.

16:22

[Lord Browne of Belmont (DUP)]

My Lords, regrettably we are again discussing another piece of legislation that should not have been necessary. Once more, we are holding a debate against the backdrop of a Northern Ireland with no locally accountable decision-making body in place. None of us wants to be in the current situation with no local decision-makers. As I have said many times before in this House, it is vital that we move forward positively. Northern Ireland has moved on considerably during the last decade and, despite the present situation, none of us wants to go back to where we were in the past. In the context of the continued absence of a fully functioning Assembly and Government, legislation such as this is necessary to facilitate the continued governance of public services. Bills require scrutiny, analysis and examination. This is the level of accountability that one should expect. Time does not allow for a great deal of that today and I would, naturally, prefer that such matters were scrutinised in the context of Stormont. Unfortunately, this is not the present reality.

I support the Bill, but I do so cautiously as it is limited in scope and far from an ideal solution. Before focusing on a couple of specific concerns, it is important to look at how we have reached this situation. It is worth repeating that we are discussing these matters in your Lordship’s House, and in the other place, only because of one party’s narrow agenda. Instead of a fair and balanced way forward, the party that collapsed the Stormont Assembly in January 2017, and refused to return, continues to halt progress in re-establishing a Government. One party continues to place the fulfilment of demands ahead of governing in the interests of everyone in Northern Ireland. Unfortunately, the result is that there is little prospect of a return to local decision-making at this time.

The legislation before us, although welcome, will continue to present challenges. Unaccountable senior civil servants have been tasked with taking decisions within departments for a considerable period of time. It is true to say that in some instances, decisions have been delayed and many are still not being made. I commend the Government for being proactive in issuing supporting guidance to the Civil Service so that it can get on with its job of doing the necessary work to advance day-to-day living in Northern Ireland.

The Buick ruling undoubtedly undermined the status of officials. Although the legislation and guidance are aimed at dealing with this directly and at providing some advice and clarity to reassure officials, I remain concerned that it gives limited scope for decision-making. There are still real concerns that decisions will be subject or open to judicial review or legal challenges. Does this legislation do enough to minimise the possibility of such a scenario?

It is to be welcomed that there is some assurance that decisions can be made, although it is likely that these will be non-controversial, covering planning and investment, which enjoy a broad consensus. I welcome the Government’s clarity in the other place that a decision such as that on the transport hub, which is crucial to Northern Ireland’s economy, can be advanced under the terms of the legislation. Policing Board members and other appointments can now be made, and this is extremely important.

There is now a specific requirement for senior department officials to report monthly directly to Her Majesty’s Government on decisions that have been taken under the Bill. This is an important point which deals with transparency, and I am pleased to see that it has been included.

There are some understandable fears of a continuation of the current situation, in which decisions in a range of areas, such as education, health, housing and major projects are not being taken. The Bill provides no certainty on key decisions. Permanent Secretaries in a number of departments have been cautious to date about advancing the number of decisions which have been in the pipeline for a considerable time. More than 200 decisions have lain in abeyance across departments since the suspension of the Assembly, and although we have made some progress within this Bill, there is no compulsion for officials to make key decisions that impact on the people of Northern Ireland.

These decisions need to be made if we are to see day-to-day public services restored to the level at which they should be. Budgetary decisions also need to be taken urgently, and policing and departmental spending challenges will continue to be an issue in some cases, as the allocations officials are working with are based on historic decisions taken by the previous Assembly.

On Clause 4, regardless of one’s personal views on abortion, it must objectively be accepted that this is a controversial issue in Northern Ireland. An amendment has been tagged on to this Bill, and this does not allow enough time for proper consideration or scrutiny of this matter. It is also the case that, in the United Kingdom, this is clearly defined as a devolved matter. The courts have recognised that this issue is, rightly, for the relevant democratic body, which, in this instance, is the Assembly. This is an attempt to change the law. As the Government have previously noted, guidance cannot do that. Any change in the current law in Northern Ireland will require legislative change. This provision is asking the Government to ask officials to do something that is impossible in law. This clause is therefore an inappropriate vehicle, regardless of the substantive issue involved.

Given that we are now approaching two years since the Assembly last met, we have reached a point where there needs to be some level of political decision-making, accountability and public scrutiny. Decisions will need to be made on a range of issues. I ask the Minister to provide assurance to departments that relevant ministerial approval will be provided.

16:29

[Lord Alton of Liverpool (CB)]

My Lords, in March 1979, four days after Airey Neave was brutally murdered in the precincts of Parliament, I made my maiden speech in the House of Commons. I reflected on the need to find political solutions to the endless cycle of violence in Northern Ireland. During the years that followed, I served as a spokesman on Irish affairs. In 1985 I was appointed by the noble Lord, Lord Steel, to be a member of the commission that served under the chairmanship of the late Lord Donaldson of Kingsbridge, which produced the report What Future for Northern Ireland? Our commission concluded that progress could be made if, instead of encamped and embedded hostility to the other community, the respectful place of both traditions in a devolved power-sharing institution could be recognised. While endless legislation was rushed through as emergency legislation, none of it addressed the fundamental issue.

Eight years later, on 20 March 1993, the shocking waste of innocent life was underlined when a bomb was left in a litter bin in a shopping area of Warrington. Two children, three year-old Johnathan Ball and 12 year-old Tim Parry, were murdered. As I stood with John Major at their funeral, it was clear that the finest memorial to those boys would be renewed efforts to end a conflict which, over 30 years, claimed 3,600 lives, injured and maimed thousands more, and left countless lives scarred and disfigured in the way that my noble and right reverend friend Lord Eames described earlier.

The Downing Street declaration of December 1993 paved the way for the Good Friday agreement, signed on 10 April 1998. The painstaking and patient work of a succession of Secretaries of State, some of whom have been in your Lordships’ Chamber this afternoon, the statesmanship of men like John Hume and the noble Lord, Lord Trimble, and ultimately the willingness of the Reverend Ian Paisley and Martin McGuinness to make devolution work, set aside the forced choice between British and Irish identities, with two tribes looking out at one another in enmity and hate—all gains alluded to by the noble Lord, Lord Dunlop, in his moving speech.

I hold both an Irish and a British passport, as do my children. In two world wars, my grandfather and father fought in the British Army, and an uncle died in the Royal Air Force. My mother was a native Irish speaker. Her family suffered extreme poverty in an area where Irish nationalism and republicanism had been nurtured by famine in one century and brutality in the next. So, more than most, I have always had to hold in tension a love of both traditions. From both sides of my family I was taught to abjure violence and to uphold the sanctity of every human life. I am troubled to see the gains of those years now at risk. Here we are again, rushing legislation through this House in 24 hours flat, with the House of Commons having done the same.

I was struck—it has not been referred to yet—by the report of the Select Committee on the Constitution of your Lordships’ House, published only yesterday. It stated:

“We question whether the speed at which the Government wishes to pass this Bill is necessary … more time (even with a fast-track timetable) could have been made available for parliamentary scrutiny of this Bill”—


which is surely our job. It continues:

“We emphasise that in any other circumstances provisions such as these which challenge established constitutional principles would not be acceptable”.


That brings me to Clause 4, which the noble Lord, Lord Browne of Belmont, just referred to, as did other noble Lords. It purports to provide guidance to members of the Civil Service in Northern Ireland in relation to the repeal of Sections 58 and 59 of the Offences Against the Person Act 1861: namely, the provisions banning abortion—the deliberate ending of the life of a child in the womb. This is a serious issue. This is the law of this land. “Procuring miscarriage” is an offence unless two doctors agree that one of the defences set out in the Abortion Act 1967 applies. So how can the Secretary of State issue guidance to another jurisdiction advising on the repeal of legislation that is current law in her own jurisdiction? As the noble Lord, Lord Empey, said earlier, this is smoke and mirrors—and, as the noble and learned Baroness, Lady Butler-Sloss, said, it makes a nonsense. This is an absurdity, and on this point alone these ill-thought-through amendments ought to be dismissed.

In the mid-1990s, I accompanied a cross-community delegation of Members of Parliament—from the Social Democratic and Labour Party, the Official Unionist Party and the Democratic Unionist Party—to see John Major. We were given his assurance that he and the Conservative Government would insist that abortion would remain a matter to be settled in Northern Ireland. It troubles me that Clause 4 seeks to unsettle that agreement. In a Bill of such a limited and temporary nature, how can anyone reasonably suggest that an issue as contentious and sensitive as abortion should even be included for consideration?

In the Commons, the amendments that were introduced came at such short notice that many MPs did not even know that the House would divide. Karen Bradley, the Secretary of State, was right when she said that if the amendments were passed, which they were, it would put the Northern Ireland Civil Service in “an impossible position”. She went on to say that,

“the Bill cannot force Northern Ireland Departments to change the law”,

as the new clause seeks to do—a point made by the noble and learned Lord, Lord Mackay of Clashfern, in his remarks earlier. The Secretary of State said:

“It would be totally contrary to the rule of law and the way the independence of the civil service across the whole United Kingdom operates”.—[Official Report, Commons, 24/10/18; col. 385.]


In March of this year, 47 Members of this House, including former Cabinet Ministers, co-signed a letter to the Secretary of State for Northern Ireland noting that legislation from Westminster would severely destabilise the devolution agreement. The Prime Minister says it would not be right for the United Kingdom Government to undermine the settlement agreement.

We have heard many references during the debate to things such as human rights. In December we will celebrate the 70th anniversary of the Universal Declaration of Human Rights, which says that everyone has the right to life. There is no right to abortion in human rights law: let us be clear about that. Nowhere does the Universal Declaration of Human Rights refer to abortion being a human rights question.

There will be a chance to return to these issues in Committee, but let me conclude. Noble Lords do not have to agree with my substantive opposition to the taking of the life of a child in the womb, up to and even during birth in the case of a child with a disability—which results, in Great Britain, in one abortion every three minutes, or around 40 in the two hours that we have been debating this Bill so far, or some 9 million since 1967—or my noting that if that legislation had applied in Northern Ireland, 100,000 people would not be alive today who were born because the legislation does not apply there. Noble Lords do not have to agree with my view about this to be concerned about the provisions in this Bill. As parliamentarians, we have a duty to pass laws that make sense, a duty to uphold the principles of subsidiarity, a duty to resist the making of laws on the hoof, a duty to insist on proper scrutiny and debate, a duty to contest ideology and sloganeering, and a duty to respect the people of Northern Ireland.

16:37

[Lord Trimble (Con)]

My Lords, I have a lot of sympathy with the suggestion made by the noble Lord that we could have benefited from a procedure that allowed a more thorough examination of the legislation. However, we are where we are, and we are dealing with legislation which at the moment has to be acknowledged to be necessary. It is necessary because, for a long time now, the Secretary of State for Northern Ireland has been vulnerable to a judicial review, and while that has not matured, she does need the provision that is in here to protect her against that.

Another factor that has been mentioned is with regard to doubt over the capacity of civil servants to take decisions in these matters, and here I just do not understand the problem. The Government of Ireland Act 1920 is quite clear: Section 8 puts executive powers in departments. Very clearly, the devolution is to departments. We could have a long argument about how this came about, because it flies against normal British practice, but this happened. There are hypotheses about it, but I am not going to go into the question of how it came about; I am simply saying that is the law, and that is the law that civil servants are exercising. Civil servants may find it embarrassing, but the law is as it is in the 1920 Act.

Clause 4 has been referred to, and I agree with a lot of the negative comments made with regard to it, but I have to say there is again another misunderstanding of what the law is. With regard to the law in Northern Ireland, the only substantive difference between the law in Northern Ireland and the law in England and Wales on abortion is the question of foetal abnormality. On all other matters the law is the same, in terms of the substance of the law. What is different is that the law in England is in statute law, but in Northern Ireland it is in common law: judicial decisions, including the Bourne decision in 1938. The problem then lies with the lack of a clear process and a way of proceeding. It is all very well to say, “Go and see your GP and he should arrange an abortion for you”. I do not think that that happens very often, but that is basically what should happen under our law. Rather than people having to go to England and spend thousands of pounds, they should be able to go to their GPs. Unfortunately, some doctors do not display the courage or constancy that is required. A further problem has been that various people put the health service under pressure to produce guidelines, which resulted in the Civil Service producing guidelines that were overly cautious and narrower than the law. Those guidelines should be dumped and we should have a clearer understanding of the law. Again, I do not want to spend too long on this point, although it has to be made. I am afraid that I disagree with some noble Lords—indeed, some noble Lords who are highly learned in the law—but I am confident that the situation is as I have stated it.

We should focus on the political problem in trying to resolve the difficulties. I agree with a lot of what my noble friend Lord Empey said. He gave a very clear description of the problems and of the way in which, unfortunately, the Government have not been able to progress matters in the way that we would like. However, that is understandable as we have so much on our plates at the moment. I can well understand someone saying to the Secretary of State for Northern Ireland, “Don’t bring me any new problems”. I am sure that that is the sort of thing that is being said there, but it is unfortunate that we do not have a viable political process to bring about a restoration of devolution.

There would be difficulties with that, because it is quite clear that Sinn Féin does not want to see Stormont restored. We need to find a process analogous to that which happened way back in 1997, when Tony Blair became Prime Minister and made his first speech outside London, in Belfast, in which he said to the republican movement, “A settlement train is coming. I want you to be on the train, but it will be going with or without you”. That put pressure on Sinn Féin to come into the process. We now need to find a way of exerting that kind of pressure on Sinn Féin to get things moving, because it will not move without pressure. One likes to think that, once Brexit is resolved, it might be prepared to look at things, but I am beginning to have doubts about whether it will really want to do that.

So the question is: how do we exert the necessary pressure? I have put forward proposals on these matters on previous occasions, but nothing has happened, probably because those proposals were too ambitious. This time, I am going to the opposite extreme and will table an amendment later today which is as cautious as I can make it. In fact, I cannot think of anything that could be more cautious than what I am about to propose, but it might start something moving, which is what we need to happen.

Finally, there have been a number of unkind comments, particularly in the debate in the other place, about Northern Ireland MLAs drawing salaries when there is no Assembly for them to participate in. That is not their fault—unless they are Sinn Féin Members, in which case I think they have to bear some responsibility. They are trying to do their best in their own way, and I shall give a little plug for my own MLA in Lisburn, Robbie Butler. One of the things he is doing to try to keep politics alive is that normally, on a weekly basis, he transmits videos that deal with various issues, and they are very effective. In September, he issued a video on suicide awareness and it has had 34,000 viewings, which is incredible in the current context. I declare an interest in this matter. It is not just that Robbie is my MLA; he has had the good sense to employ my son in his office. I mention that to show that MLAs are doing the best that can be expected of them in the present circumstances. However, it is our responsibility, and particularly the Government’s responsibility, to put them back into the circumstances they ought to be in—in a functioning Assembly.

16:44

[Lord Adonis]

My Lords, it is a great privilege to follow the noble Lord, Lord Trimble. Given the success he brought to the office when he was First Minister of Northern Ireland, can I suggest that his son is immediately given a hereditary peerage so he can participate in these debates? This might enable him in quick succession to become First Minister of Northern Ireland.

I feel, as with some other noble Lords, like an interloper in this debate, particularly sandwiched as I am in the batting order between the noble Lord, Lord Trimble, and the noble Lord, Lord Alderdice, both of whom played an extremely important role in the operation of the devolved institutions. However, the reason why I and others are speaking—and we do so without any hesitation—is precisely because there are no devolved institutions in Northern Ireland at the moment. We take a view, which we have a duty to take, that after two years where there has been no Assembly and no Government in Northern Ireland, we in Westminster have a duty to take an interest, including, I would say to the noble Lord, Lord Alton, in fundamental rights in Northern Ireland.

The point which is essential to grasp here—and it is also my comment on the speech of the noble Lord, Lord Morrow—is that if Northern Ireland wishes to exercise the prerogatives of devolution, it must operate devolved institutions. It is unacceptable for those of us in Westminster, who are ultimately responsible for the welfare of people in Northern Ireland, to be told that we should respect a devolution settlement which the political parties in Northern Ireland will not respect themselves. That is an unsustainable position.

I believe that is against our fundamental duties as Members of this House and the other place, and there can only be a short period of time for which we can tolerate it any longer. This Bill says until the end of next March—that is nearly three years in which the people of Northern Ireland will not have had an Assembly or a Government. Could the people of England tolerate for one moment the idea that this House would not be sitting for three years? I made a bit of a fuss before the summer at the idea we were not sitting for 10 weeks. The idea we would not sit for three years—that the other place would not sit for three years too—and would devolve to civil servants the task of running the country is utterly unthinkable, and that is the context in which we are dealing with these issues in Northern Ireland.

I say to the noble Lords, Lord Morrow and Lord Alton, if they think that the devolved institutions of Northern Ireland are required to protect fundamental rights, then those institutions must sit and legislate. If they do not sit and legislate, then we have a duty to legislate in their place, because there is no one else who can do it. We cannot tolerate a situation where there is no Government or legislature for Northern Ireland. If the only legislature available is this one, then we have a fundamental duty in that respect.

The noble and learned Lord, Lord Mackay, who is not in his place at the moment, said that we have to respect the devolution settlement and we do not have a right to legislate. I really do hesitate to take on a former Lord Chancellor, but my understanding of the constitution of this kingdom is that if this Parliament chooses, in its wisdom, to legislate, its law is supreme. Indeed, it has to be supreme because there is no other supreme body in this kingdom.

If we continue in this situation where the political parties in Northern Ireland—despite the strong advice being given by many of their wisest leaders in your Lordships’ House this afternoon—take the view that they are not prepared to operate those institutions, there must come a point, probably not far distant from now, where some form of direct rule will need to be instituted. The alternative to that is no legislature and no Government in Northern Ireland, which puts an intolerable pressure on civil servants, who cannot be expected to have to take these decisions without a proper, democratic set of institutions.

[Baroness Butler-Sloss]

I want to ask the noble Lord whether he thinks he was right in saying that this Parliament in Westminster could actually pass legislation. I think we would have to take over Northern Ireland and go beyond devolution when there is power for us to do that. But I think in the absence of that we could not, today for instance, pass a law.

[Lord Adonis]

My Lords, I absolutely defer to the noble and learned Baroness. If she says that that is the case then she is obviously right, but there clearly are procedures by which we can exercise our sovereignty—the only question is what those procedures are.

I thought that the speech of the noble Lord, Lord Empey, was quite brilliant. I have been to Northern Ireland several times in recent months to acquaint myself with the situation because of the debates taking place on Brexit, but also partly because the only way of understanding what the views of the parties and politicians across the spectrum in Northern Ireland are is to go there. It is not possible to get them here because, unfortunately, Sinn Féin does not take its seats, nor is it possible to be guided by the views of the Northern Ireland Assembly because it is not meeting. It is quite a commentary on our affairs that literally the only way of understanding what is going on in Northern Ireland, if you sit here in the Parliament in Westminster, is to go to Belfast and meet the parties.

When I went to Belfast, I had extremely constructive discussions with the parties in Stormont. It was the first time I had been to Stormont; its grandeur is quite extraordinary. These are institutions very much in the image of Westminster. What really struck me while I was holding meetings in one of the committee rooms, where I am told that the Executive used to meet, was that in the Senate Chamber was meeting the inquiry into the renewable heat scandal, which the noble Lord, Lord Empey, referred to. If a scandal on that scale had happened here in London, by now there would be cases in the courts and serious legal proceedings. The noble Lord is absolutely right to say that the fact so little is known about those affairs here and we take so little interest in them is, I am afraid, something of a condemnation of us. However, if these affairs continue in Northern Ireland, I believe we will have no choice whatever but to become involved.

This is Second Reading and we will deal with Committee in due course. I will put down a marker for three issues that seem essential for us to address ourselves to in Committee, since there is no Assembly in Northern Ireland. The first is the issue of a mediator and getting serious talks started that could lead to a new Government in Northern Ireland. The Minister, in his excellent introductory speech, said that “intensive talks” are necessary. He also said—I noted this down as he said it—that,

“we will not be waiting until March”,

to get intensive talks going. I take those to be significant statements. Could he, in his summing up, return specifically to the issue of whether the Government will as a matter of urgency proceed, with agreement among the parties in Northern Ireland, with the appointment of a mediator? It seems an essential next step since nothing else appears to be producing momentum. I have amendments tabled in respect of that, but I do not intend to press them. I am looking for assurance from the Minister that the Government will move in this regard.

Secondly, on abortion and equal marriage, the situation as I see it is as follows. It is a judgment that will be held by a majority in this House and in the House of Commons that the current law in Northern Ireland is not consistent with fundamental human rights. Other noble Lords might take a different view and some of them have spoken in this debate, but it is my view that that would be the judgment of a majority. Indeed, that clearly was the judgment of the majority in the House of Commons. I expect that it will be the judgment of the majority in this House too. The only point I make in this regard is this: if the people of Northern Ireland want to take a different view through their elected representatives, those elected representatives must meet, because there will come a point, which I believe is not far distant, where, if they do not meet, we will be obliged to legislate.

Thirdly, there is the issue of Brexit. What has taken me to Belfast, Dublin and the border territories in recent months are discussions on this very vexed issue of the Irish border and how it is possible for us to Brexit while not having a hard border. It seems to me that we need some mechanism in the coming months, given that there is not an Assembly and an Executive in Northern Ireland, where we—this Parliament in Westminster—can receive the views of the elected representatives of Northern Ireland, not just from the one party that takes its seats in the House of Commons. In my amendments on the Order Paper, I suggest that the way of doing that would be to have a special sitting of the Northern Ireland Assembly without there being an Executive, purely for the purpose of debating Brexit and reaching a resolution that could then be submitted to the Parliament here. My understanding from his speech is that the noble Lord, Lord Trimble, might have a more ingenious suggestion to make later on in Committee as to how the opinions of the parties in Northern Ireland might be taken in respect to Brexit. I will absolutely defer to him if he has such a suggestion to make. I believe it is important in the coming debates on Brexit that we are able to take account in some formal way of the views of the political parties and their elected representatives in Northern Ireland. In the absence of any better solution to this problem, I suggest that there should be a special sitting of the Assembly.

16:55

[Lord Alderdice (LD)]

My Lords, other noble Lords have already commented on the fact that, yet again, we have fast-track legislation in respect of Northern Ireland. In no way, however, could this be described an emergency situation. Time after time I have advised the Government in this House from these Benches that the Secretary of State was operating ultra vires and that civil servants could not take the decisions that needed to be taken. The last time was in the debate on the Budget on 18 July. It is not just regrettable: it is becoming a really bad habit to keep bringing forward fast-track legislation when the problems have been known well in advance. It is almost as though the Government do not seriously want to discuss and debate these matters in detail, because there is no other excuse for what is being done.

Having said that, I am, of course, glad to see that the positions of the Secretary of State and the civil servants are being regularised in respect of departmental functions and appointments. However, that addresses only the legal problem and in the short term. It does not address the political problem, which is the reason for us being in this difficult situation. Noble Lords on the other side have described the responsibility that Sinn Féin bears for being in this situation, but it is not only a question of Sinn Féin.

Let us reflect on the fact that Martin McGuinness, who played a very valuable and constructive role with Dr Ian Paisley—Lord Bannside—resigned over the question of the First Minister’s handling of the RHI debacle. As time has gone on, whatever responsibility some members of Sinn Féin and Sinn Féin Ministers may have, it is absolutely clear that what was happening under the aegis of the First Minister, Arlene Foster, was utterly unacceptable and reprehensible. The report that is going to come out will be devastatingly bad, and so it should be. What is worse is that Arlene Foster had the experience of stepping in for Peter Robinson when he, as First Minister, stepped back from his role briefly but very appropriately on a matter of much less public expenditure import. She could have done the same, and we might well have not had the suspension of the Assembly.

On the question of whether we need a mediator, the parties were perfectly capable of getting together and coming to an agreement. The problem was that Mrs Foster was clearly not able to deliver that agreement when it went back to her own party. There is no evidence that getting an agreement through a mediator or otherwise is actually going to deliver, because it is not only one party that is a problem here: it is two parties. That is why, in addition to saying to the Government, “You have a legal problem with the Secretary of State and possibly civil servants operating ultra vires,” we need to say, “You have a political problem and you need to address that by an election”. All this Bill does from that point of view is postpone the date of that election, because it would not be acceptable to go to any form of direct rule at any stage without an election. All we are doing is postponing it.

I accept that November, December and January are not very good months for an election. I also accept that we might be preoccupied with other things by the time February and March come round, so I understand the provisions, but this is not the first time that the warning has come. This is not the first time I have asked for an election. Will the Minister, in his response, indicate why it has not been possible to have an election during any of the period of time when the election should have been held?

We may well come to the situation that the noble Lord, Lord Adonis, has mentioned: we go through this period, there is still no agreement; we have an election, there is still no agreement. What happens then? The point that the noble Lord, Lord Adonis, needs to pay attention to is that we do not simply return to Westminster sovereignty. Why? Because we have an internationally binding treaty with the Republic of Ireland. That means that if there were to be any change or any development, it would have to be in discussions with the Irish Government. I think it unlikely that they are going to agree to a simple matter of direct rule. I think it much more likely that you would move to a form of direct rule in which there would be some clear acknowledgement of input from the Irish Government. That has been the trajectory for the last 25 or 30 years and I think it is the much more likely way out of this problem if the Northern Ireland political parties are not able to find a way of moving. That is the trajectory: this makes it a transition rather than a settlement. Much more could be said about that and I trust that we will be able to do so when we have the opportunity of a wider debate.

On Clause 4, the noble Lord, Lord Trimble, has pointed out, I think correctly, that much could be done by way of guidance under the current legal system. I well recall, as a young psychiatrist, having to do assessments on women needing abortions for reasons of their mental health, but that was tightened once people said, “We need some kind of guidance”. It would be entirely possible, legal and appropriate for the Secretary of State to look at the guidance that is being issued on the current law. But there is another matter that could be dealt with entirely legally, and I ask the Minister to respond to this if possible, if not this evening then at another time. What is to stop the Secretary of State, on these two issues that have been referred to, putting proposals forward for referendums, so that we would not be dependent on particular political parties in hock to minorities, or on opinion polls? We could ask the people of Northern Ireland whether they want to make a change to the abortion law or the law on gay marriage. That would not be undermining devolution but saying that, if elected representatives do not put themselves in a position to fulfil devolution, we do not ignore the people of Northern Ireland, nor human rights law, but we ask them to give their view. Is there anything to stop the Secretary of State making a recommendation that there should be referendums—non-binding, but nevertheless advisory referendums?

These are two issues on which there is deep disagreement between Sinn Féin and the DUP regarding the resumption of devolution. Therefore, it is actually important that they be addressed, whether by ourselves, the people of Northern Ireland, or otherwise. We are all preoccupied with Brexit now but I tell the House that, one way or another, elected representatives in Northern Ireland must get the matter resolved within a short period after Brexit. I know that Sinn Féin is keen to see itself in government in the south more than in the north, but when the noble Lord, Lord Trimble, asked what can be done that would induce Sinn Féin back into devolution, I can see a situation very clearly. If the minority Government in the south were to fall, if there were to be an election and Sinn Féin found itself in coalition Government in the south, which is entirely possible, despite what is said by the leaders of Fianna Fáil and Fine Gael, I can guarantee that you will have devolution at the drop of a hat, because Sinn Féin would very much like to be in government on both sides of the border at the same time.

This is still a moving picture. It may seem that watching politics in Northern Ireland is like watching paint dry, but eventually paint does dry, and we will come back to this issue again.

17:03

[Viscount Brookeborough (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Alderdice. I have been scratching out bits and pieces that I was going to say and I was going to scratch out the bit about a referendum, but then I thought I would support it, since it had not come up. One of the problems we have in Northern Ireland is that we have a lot of politicians who say they are speaking for other people, but when you go around the country it is remarkable how few people they are really speaking for when they become hard line and morally demanding. That is all I shall say. Perhaps a referendum would at least settle it one way or another.

I welcome the Bill, although I think its scope is not nearly wide enough and it is very late in the day. The question has been asked: why it is an emergency; why urgent? The part of the Explanatory Memorandum entitled “Why is Fast-tracking necessary?” says “to provide clarity” and to “clarify the powers”. That does not mean that it is urgent. It means that the Government have sat on their backside and have done nothing since the Assembly crashed. Many of us in Northern Ireland would have said that that was incredibly predictable anyway. There seems to be very little forward thinking. If we look back for a moment at what happened in the Second World War under the coalition Government—I was not around—there was a single aim: to win the war, which they did. What happened afterwards? The whole thing burst apart. The Chuckle brothers, for once, had a single aim: to stop the violence. They stopped the violence and wanted power sharing. They got it, but what happens after a Government or a person achieve their aim? They make friends with their enemies to do so, but can they really work together in peace? There is a flaw there. I am not against devolved power or devolved organisation and co-operation, but it is difficult to believe that it will go on for ever. Therefore, many of us thought that it was fairly predictable.

There are people who think that the Assembly—I am not running it down—was the be-all and end-all of everything, and that all the decisions were made because they flowed out of it. They were not, it was not easy and it was commendable that people were trying to make it work. It is by no means a perfect system. It made government very difficult, and it made life in Northern Ireland very difficult. You could not get things done because there were contradictory signals the whole time. The Government have ignored these fundamental facts for far too long, and there has been little forward planning. When you plan forward, we were taught in the military—I know this is getting military—to carry out an appreciation, but to make fundamental assumptions and base those assumptions on fact. If you do not refer to them, you begin to run into trouble. The Government should refer to them more.

In addition, lately, the Prime Minister and the Taoiseach seem to have taken back seats—they have hardly engaged at all on this issue. Their predecessors were much more active and provided more leadership. We were grateful for it, and it provided a great deal more impetus to getting people together, without a shadow of a doubt—let alone a mediator, which is for other people. I am pretty even on that. In future, we should demand much more involvement and determination from the Government and Westminster. The only democratically accountable body that we, as citizens in Northern Ireland, currently have is here, because the Assembly is not sitting. I also realise that we do not want direct rule; however, inasmuch as we are making laws today to enable certain things to happen, why are we not passing legislation to enable Ministers to be appointed from here for a short, specified length of time? That would not be direct rule; that would be interim management of the situation. I think it is quite a good idea, but others have thought about it and binned it a hundred times. It would be time-limited in the same way that the Bill is. We would then avoid this whole issue of Civil Service responsibility and power, and judicial reviews. This is obviously a minefield and it is very difficult. The Civil Service is outstanding, but we are pressurising it into making decisions on which there will be comeback. It would also mean that policy introduction would be current, not retrospective, as it tends to be at the moment, taking a long time.

Perhaps all this lack of attention, lack of action and legislation with limited scope is intended not to upset the two main parties—the DUP and Sinn Féin—and therefore achieve a return to Stormont. Again, I say to the Secretary of State and the Government—who say, “This is our aim”—that of course it is their aim. They say, “This is our wish, we believe it will happen”, to which I say, “Face the fundamental facts”. Enough people have pointed them out today and I certainly do not need to go into all that detail.

Personally, I believe that Sinn Féin has no intention of going back until after Brexit and possibly after later discussions further down the Brexit road. It is waiting for the wheels to fall off this wagon and it wants to pick something up. If you were in Sinn Féin’s situation and wanted a united Ireland, what would you do? You would do exactly what it is doing. We should not be wasting dividend or any bonuses on Sinn Féin at the moment. You can use them only once and if you use them and do not get what you want, the next time round you have to leave it the heirlooms. We should not be going down that route. As has been said, the DUP has its own problems. It is not entirely one-sided but it appears that in that context Sinn Féin will say no.

The people of Northern Ireland, from all communities, feel totally frustrated and demoralised, with little hope of any progress. Somebody said—it may have been the noble Lord, Lord Empey—that people are not happy and everyone thinks that devolution and the Assembly are wonderful. I can tell your Lordships that people in Northern Ireland do not say that, because devolution has not worked for them, and that is that.

One has to remember that the vast majority of people—Catholic, Protestant, Muslim or whatever—are for peace, for a quiet time and for their own government. However, added to that is the number of people from not only Great Britain but Northern Ireland who served in the Armed Forces, and now our veterans are being hounded, when every one of them volunteered to serve—to lay down their lives if necessary—for our peace. Let us not squander all this by pussyfooting round those who brought about the Troubles. We need—from the Government especially—leadership, determination and legislation with the required scope until we get our Assembly and Executive back, but it has to work properly.

17:12

[Lord Rogan (UUP)]

My Lords, I welcome the opportunity to contribute to this debate but, like others, I wish it was unnecessary. As the noble Lord, Lord Duncan, said, most of us would prefer not to be here today.

Earlier this year we celebrated the 20th anniversary of the Belfast agreement. Several noble Lords present in the Chamber played key roles in that remarkable achievement on Good Friday 1998, and should be very proud of what they did. But I am sure that, like me, they can barely believe that, two decades on, Northern Ireland does not have a functioning Government. Yesterday in another place, the Chancellor of the Exchequer delivered his Budget Statement. Together with welcome funding for a Belfast city region deal, Mr Hammond announced an extra £320 million for the Northern Ireland Executive for 2020-21. However, as things stand tonight, it is difficult to envisage local Ministers being in place to spend it even then.

Several noble Lords mentioned the RHI inquiry, which has exposed levels of dysfunctionality inside the last Northern Ireland Executive that are shocking in the extreme. For month after month, we have heard tales of unelected DUP special advisers wielding considerably more power and authority at Stormont than most of their political masters. Last week evidence was produced which appeared to show that at least one Sinn Féin/IRA Minister was acting under instructions—not from special advisers but from senior members of the IRA, if not the IRA Army Council itself. It is little wonder that disillusionment with the political process in Northern Ireland is so high. The people of Northern Ireland deserve much better.

It was 25 years ago when the UDA murdered seven people in the Rising Sun bar in Greysteel; another person died from his injuries. Last week we commemorated the 25th anniversary of the IRA bomb on the Shankill Road that claimed nine victims. Three further terrorist attacks took place in the seven days between the Shankill and the Greysteel atrocities, with yet another six people losing their lives.

Make no mistake: we are never going back to that. We have come so far since 1998. Tourists are flocking to Northern Ireland in record numbers. In recent years the Province has gained a global reputation as a prime location for film production and high-profile sporting events. Next year Royal Portrush will host the Open golf championship for the first time since 1951. Tickets for all four days of competitive play have sold out—the first time this has happened in the 148-year history of the event—and the first ball has not yet been struck. I might add that I own a holiday home in Portrush, and I have been inundated with requests to let it over the Open period.

We have so much in our favour, but we continue to lack a functional, proactive and accountable Government. It makes me very angry that we have found ourselves in this situation. At times it also leaves me feeling a little embarrassed. Here we are in the mother of Parliaments, where I am immensely proud to serve as a Deputy Speaker. I am honoured to travel on a fairly regular basis to meet parliamentarians in other parts of the world to discuss democracy. But when my hosts ask me what form of elected Administration we have in Northern Ireland, I have to tell them that we have none.

My sense of discomfort is not eased by the substance of the Bill before us today. I too have tremendous respect for the Northern Ireland Civil Service. Its staff serve with great skill, knowledge and commitment—but their task has been made almost impossible by the current absence of political direction. The Permanent Secretaries I have spoken to have no desire to be placed in the position in which they find themselves. They want a functioning Northern Ireland Executive to be formed. But, as the noble Lord, Lord Trimble, said, we are where we are, and although this legislation is far from ideal, I understand why Her Majesty’s Government have deemed it necessary—for now. I sincerely hope that it will not stay on the statute book for long.

I end my remarks with a request which I ask the Minister to convey on my behalf. Everyone in your Lordships’ House will be fully aware of the excellent work done by Marie Curie to support those living with terminal illness and their families. Marie Curie has been campaigning to reform the special rules determining eligibility for personal independence payments for terminally ill people. There are special rules for terminal illness under PIP, which allow terminally ill people to access their payments quickly and without a face-to-face assessment. But only those with a diagnosis of six months or less to live are eligible to apply under these rules.

Experts from across the medical community have said that this is too restrictive. The difficulty in predicting life expectancy for many terminal illnesses means that legitimate claimants are being excluded from applying for PIP under the special rules. In June an independent review of PIP recommended that the six-month life expectancy criterion determining eligibility under the terminal illness rules be removed. However, in the absence of an Executive at Stormont, the changes required have not been actioned. The Secretary of State for Northern Ireland, Karen Bradley, has talked about allowing Northern Ireland departments to make decisions in the public interest. As Joan McEwan from Marie Curie Northern Ireland recently said:

“There can be no doubt that creating a fairer and more compassionate PIP system for terminally-ill people in Northern Ireland falls into this category”.


I agree, and I humbly invite the Minister to take Joan’s words on board.

17:19

[Lord Lexden (Con)]

My Lords, it is almost a year since the noble Lord, Lord Rogan, and I both had the honour to be appointed Deputy Speakers in your Lordships’ House. I have to say that he at once acquired a position of efficiency that I am still striving towards.

One of the many serious matters on which we have been reflecting today is the fact that for the best part of two years public services in Northern Ireland have been under the control of civil servants unaccountable to elected representatives, the first time that this has happened in any part of our country in the modern era. A visitor from another planet might perhaps wonder why those elected representatives serving as Ministers in the Northern Ireland Office cannot assume control temporarily, with additional appointments being made to cope with the greatly increased work. The answer that our political leaders would immediately give to such an impertinent visitor is of course that that would violate the devolution settlement. It is the settled conviction of the leaders of the main political parties that any amendment or modification of the devolved settlement in Northern Ireland, however slight or temporary, would bring disaster down upon us. Such dogmatic rigidity is unusual in the mainstream of British politics, where pragmatism normally reigns to the benefit of our country.

The reality is that the Government are content that public services in Northern Ireland should remain for the time being in the hands of unaccountable civil servants. How fortunate we are that their integrity and impartiality are admired so widely and justifiably. They certainly deserve the clarification and confirmation of their powers that the Bill will provide so that they can continue to discharge their responsibilities successfully.

No new policy can be created, we have been firmly told; the Secretary of State said last week that the Bill was,

“about allowing civil servants to make decisions that have been part of a policy that has previously been agreed”.—[Official Report, Commons, 24/10/18; col. 300.]

That means, of course, policy agreed by the Northern Ireland Executive before it went out of business nearly two years ago. Time moves on and circumstances change, but policy remains in the state in which the Executive left it nearly two years ago. Yet policy needs to advance, desperately and urgently, in those long-established services on which people depend for their daily health and well-being: health, education, housing and welfare. My noble friend Lord Empey, one of my greatest friends in this House, has spoken with passion on several occasions, including this afternoon in what the noble Lord, Lord Adonis, rightly described as a brilliant speech, about the appalling NHS waiting lists in the Province. My noble friend has suggested that the Northern Ireland Office should assume responsibility on a purely temporarily basis to tackle this crisis, a point endorsed by other noble Lords. “Oh no,” comes the reply, “that would breach the devolution settlement”, as if it were holy writ. Can it be right that our fellow countrymen and women in Ulster should suffer such distress—there are many other examples, some of which have been mentioned today—when a remedy could be supplied by the Government, who have the ultimate responsibility for the entire country?

In all this, one very important point tends to be overlooked: the Northern Ireland Assembly is the Province’s upper tier of local government as well as a devolved legislative body. One of the last acts of the Stormont Parliament of 1921 to 1972 was to make provision for the transfer of all the main local government services, on the very sensible grounds that Northern Ireland was not of sufficient size to warrant a range of county and county borough councils as well as Stormont itself. Today only very minor powers are exercised by Northern Ireland’s lower tier of local government, its district councils. Does Northern Ireland really need to be completely deprived of democratic oversight of all its main local government services because an Executive cannot be formed to exercise devolved legislative powers?

The creation of some form of interim committee structure in the Northern Ireland Assembly elected last year has been urged on several occasions by my noble friend Lord Cormack—who is not in his seat at the moment—drawing on his experiences as a distinguished former chairman of the Northern Ireland Select Committee in another place. The fertile mind of my noble friend Lord Trimble might perhaps also be moving in this direction. He has spoken, as he reminded us, of various possibilities in the past and we look forward to hearing more from him later. Some such arrangement would help rescue local government from the democratic limbo into which it was cast when the Executive collapsed.

Two issues of human rights, about which many people are now deeply concerned, loom large in this debate. I have frequently called for the extension of same-sex marriage to Northern Ireland—an issue which the noble Lord, Lord Hayward, has recently associated himself with by introducing a Bill in your Lordships’ House, and in which the noble Lord, Lord Adonis, is now taking a welcome interest. I hold to the straightforward unionist principle that the same basic rights should apply throughout our country. On same-sex marriage, opinion polls in Northern Ireland are overwhelmingly in favour of bringing Northern Ireland into line with the rest of the country. The Assembly voted for it before its collapse. Would it be appropriate to seek a further vote in the Assembly elected last year to provide the strongest possible basis on which to proceed in this Parliament in the absence of devolved government? Should abortion—on which feelings run so high in all parts of the country—be treated in the same manner or, as the noble Lord, Lord Alderdice, suggested, should there be a referendum? These points need serious consideration.

I make one further point. How much better things would be if we had a common core of human rights throughout our unitary state—our “precious union”, as Mrs May referred to it. That would be a matter, perhaps, on which a Select Committee of your Lordships’ House could usefully deliberate. I reach one simple conclusion: the successful government of Northern Ireland in the conditions that exist today, and which we must expect to endure, requires rather more imaginative policy-making than is currently being practised.

17:27

[Lord Maginnis of Drumglass (Ind UU)]

My Lords, as someone who contributed actively to the creation of the Belfast agreement in 1998, it is galling to find myself standing here today endeavouring to find the slightest merit in this belated effort to compensate for the failure of the Northern Ireland Assembly. The harsh reality is that this Bill is but a camouflaged attempt to humour those who do little more than continue the attempts of the Provisional IRA, which was defeated in 1994 at huge cost—not least in the lives of hundreds of innocent men, women and children over the previous 25 years. I refer, of course, to Sinn Féin.

On top of that we see from the results of the recent presidential elections in the Republic the diminishing standing of Sinn Féin overall. It would be bad enough if we merely had Sinn Féin trying to “legalise” the Irish language—which has been financed and sponsored successfully for as long as I can remember—but the idea of creating the basis for pro rata usage in our courts, councils, Civil Service and the like is an extravagance our 1.8 million population simply cannot afford or facilitate.

The long-overdue compensation for abused children still awaits settlement. We should be getting our priorities right and I would like immediate reassurance in that respect. Remember that the victims are ageing and dying, so this is a matter of urgency—or should be. On the subject of compensation for injury, how does a person injured in what has become known as “Bloody Sunday” receive around £500,000 in damages while I do not know of a single IRA victim—soldier or civilian—who has received anything comparable? Is there a delusion in the Government that they can buy stability?

This Bill appears to provide for the replacement of the democratic process by an unaccountable Civil Service. Let me give an example of that unaccountability from personal experience, and I begin by reminding noble Lords that the Civil Service is composed of some who are just as bigoted as, albeit publicly accountable, politicians.

About five years ago, I applied to have my driving licence renewed and, being diabetic, I provided a letter from my GP as to my fitness. However a Mr Paul Duffy rejected my application, unless I sent all my medical records to him. I appealed the decision but sought agreement to bring my medical records to the appropriate doctor and then bring them home again. I was told, “We don’t employ a doctor in the department. Your medical records will be retained safely in my office”.

Having had 10 attempts made to assassinate me between 1970 and 1974, there was no way I was going to risk my safety by providing details of my routine visits to my diabetes and cancer clinics, so I again renewed my appeal. I cleared myself on that basis with my insurance company but had to wait 22 months to get my licence. It did not end there. Being notified at last, by Paul Duffy, that my new licence was available, I collected it from him on 6 May—note that date—2015. Mr Duffy, it turned out, watched me drive off with my new licence in my pocket, and immediately phoned the police to report having seen me driving without a licence. When the police called to see me that evening, we discovered that the licence I had received earlier that day had been post-dated to 7 May. Technically, I had been conned. I had no licence until the following day. To cut that long story short, the judge who heard my case threw it out in about two minutes.

The sequel, however, has a relevance to this Bill in so far as I decided to complain to the departmental head, Peter May, who curtly informed me by letter that he had the utmost confidence in Paul Duffy. Peter May has subsequently been transferred as head of the Northern Ireland Department of Justice. I apologise to noble Lords for having had to recount this experience, but this is the sort of administrator we are being asked to impose on Northern Ireland—and it does not end there. David Stirling was Permanent Secretary of the department at the time of the RHI debacle and we have seen his dire performance at the RHI inquiry. He now describes himself as head of the Civil Service in Northern Ireland. Who actually appointed him and to whom does he, and will he, report?

There is so much room for potential disaster in this proposed Bill, but perhaps my major point should be to ask on how many occasions the Secretary of State for Northern Ireland has actually met and consulted the Northern Ireland Peers who sit in this Chamber. They are directly and indirectly the people who best understand Northern Ireland, both pre and post the Belfast agreement.

My final point must be what I will call the Stella Creasy aberration. I am one who cannot accept that “rights” should have priority over what is “right”. I am ashamed that Great Britain panders to a reluctant mother’s pride or social convenience, so that we so casually relegate a potential life to the incinerator. As the father of four and the grandfather of seven I have always believed that life is sacred. It is why I, with the late Enoch Powell, voted for the abolition of the death penalty when it was not something the grass roots sought. There is enough potential for disaster in this Bill without adding something that is so offensive to a majority across the traditions in Northern Ireland.

17:35

[Baroness O’Loan (CB)]

I declare an interest. My husband is the chair of arc21, the organisation created by six district councils in Northern Ireland responsible for addressing the problem of waste disposal, and made the planning application that led ultimately to the Buick judgment, which has been referred to repeatedly both in this House and in the other place, and is one of the reasons for the legislation we are debating today.

I am sure that everybody in your Lordships’ House regrets the situation that prevails in Northern Ireland. It really is profoundly difficult—almost two years with no legislature, and things are challenging. Members of the other place and of this House have articulated the various issues which are stalled as a result of the situation, not least the major infrastructure projects, the commencement of which would provide employment, therefore contributing to the economy—an economy that is seriously depleted. I see no purpose in repeating that list. It is a difficulty compounded even more by the fact that there is no legislature and no Executive to consult on matters relating to Brexit, as the noble Lord, Lord Adonis, said. Brexit is probably regarded by the people of Northern Ireland as the greatest hazard they face at present, for a variety of reasons. I shall come back to that in a moment.

However, I want to address a matter raised by the noble Viscount, Lord Brookeborough, who is not in his place, but for whom I have the greatest respect. He said that there must be an end to the hounding of veterans. I have to say that there is no hounding of veterans. There are investigations in Northern Ireland into unsolved killings. When somebody is suspected of having been involved in a killing, it is right and proper, and due process in law, that those persons be investigated. That is what is happening. I personally have been involved in the investigation of matters where both military and former RUC personnel have been involved. I know that those who serve in the forces do a very difficult job, and I speak from the perspective of one whose brother served in Northern Ireland in the 1980s, and whose nephew, aged 18, went to Iraq in the British Armed Forces and lost his leg six months later right up to the groin, and suffered multiple other injuries. I speak as one whose other nephew has served in Her Majesty’s forces for coming up to 22 years in Iraq, Afghanistan and other places, so I am not in any way attempting to attack Her Majesty’s forces. In a country which has had the experiences of Northern Ireland, however, it is important that there is no abrogation of the rule of law. It is profoundly important that we adhere to the rule of law.

This measure is clearly seen as necessary to address the lacuna which has been referred to repeatedly. It is legitimate to question the rushing through of this Bill without thought of the normal discussion, analysis and scrutiny necessary, particularly in the delicate situation which is life in Northern Ireland today. The Select Committee on the Constitution rightly raised various issues, not least the breadth of the power which would be afforded to Ministers and civil servants, the lack of clear lines of accountability and the retrospective effect of the Clause 3 provisions, which were described as “irregular and concerning”. It went on to say that,

“a Bill with such characteristics being fast-tracked through its legislative stages in Parliament is undesirable”.

The Minister referred to the fact that it was being fast-tracked. He did not, however, explain why it is being fast-tracked at such a pace. Our peace reposes on the basis of the Good Friday agreement—in our divided way, some call it the Belfast agreement—and the consequential legislation. The Northern Ireland Act 1998, in which I am sure many noble Lords played a part, was an Act designed to make new provision for the Government of Northern Ireland, for the purpose of implementing the Good Friday/Belfast agreement. The consequential legislation enabled a complex, multi-faceted construct, which was designed as best possible to ensure the delivery of the principles of the Good Friday agreement. The noble Lord, Lord Alderdice, referred to the involvement of another state in the creation of that agreement. The construct we now have was very hard won, and trust grew gradually and sometimes painfully over the years—particularly 1998 to 2007. Interestingly, trust grew despite the suspension of the devolved institution from October 2002 until 8 May 2007. We were still able to work—myself included as police ombudsman—to enable the constitutional process to have its full impact in Northern Ireland. That was difficult, challenging and, on occasion, dangerous work. Policing and justice powers were devolved only on 12 April 2010. It is all very new and must be treated with great care.

There may be a perception in your Lordships’ House, and in the wider community, that Northern Ireland is solved. That it is far from solved is demonstrated by the fact that, once again, we are in a position in which there is no mechanism to run our devolved Government. It is also demonstrated by the fact that during 2016-17 —the last year for which we have security statistics—there were five security-related deaths, 61 shooting incidents, 29 bombing incidents, 66 casualties from paramilitary- style assaults and 28 paramilitary-style shootings, and 75 kilograms of explosives and 2,635 rounds of ammunition were seized. That was the largest quantity of explosives seized since 2006.

It is not all over, and I do not say that with anything other than distress. I personally have suffered in the Troubles; my family, many of my friends and many of the people I worked with have suffered. As police ombudsman, I sat and listened to story after story. I remember one family who came in where the 11 year-old daughter had been left with her two brothers, Rory and Gerard, who were 18 and 22. Their parents had gone out to mass. Róisín had been celebrating her 11th birthday when the gunmen came in and shot her two brothers dead in front of her. You would have to have a heart of stone not to care about things like this, so we need to remember that the situation can change very rapidly in Northern Ireland.

We need to be conscious that, when the talk about the border is so challenging and when no one really knows what is going to happen, this is a difficult time. I do not want to exaggerate, but it is a dangerous time. I have driven across the border twice in the past couple of weeks and will again next week. As you cross the border, you remember what it was like when there were checkpoints and things like that. I do not envisage military checkpoints, but look at the border between Canada and America, and borders between the European Union and some of its non-member states—you see queues and time spent. We do not need all that could happen to us—the social, economic and political cost —were it to come to some kind of hard border in Northern Ireland.

It is in the context of the uncertainties of Brexit and the failure to address the problems in Northern Ireland that the Government are taking powers to themselves. I grant that they are limited powers and in a statute that will have effect for only a limited period, but to many it will seem like shadow direct rule.

I make no comment on the extension of the time for the appointment of an Executive, other than to observe that the power to extend the period seems to have a maximum life of up to August 2019, by which time we will have been without proper governance for two years and eight months. I know why our two main elected parties, the DUP and Sinn Féin, say that they cannot go into government, but the people of Northern Ireland are being badly failed by the stand-off. It is surely incumbent on those parties, and consistent with democracy, that they lay aside these issues temporarily, go into government and use democratic means to resolve those problems as best they can—that is what democracies do.

We want government decisions made by elected politicians, not by spads on the one side—as we have heard in relation to the RHI agreement—or on the other at the headquarters of Sinn Féin, Connolly House, as I think the noble Lord, Lord Rogan, pointed out. The Executive collapsed because Martin McGuinness resigned from the Government in the wake of the RHI crisis—the green energy scheme. That is now going to cost taxpayers up to £490 million. The RHI scheme has been the subject of a public inquiry, very ably chaired by Sir Patrick Coghlin, who has heard testimony from those involved that was dreadful to listen to. It is astonishing to see who is following the RHI inquiry broadcasts in Northern Ireland. I know of women who watched it intently while doing their ironing. Never before has a public inquiry attracted quite so much interest among the general population.

Our most senior civil servants have said that spads “were in charge” following the reestablishment of the Assembly in 2007. We know that civil servants did not do ordinary things like keeping minutes of meetings, and were not informed about issues of which the spads were aware. We know that the Minister who presented the renewable heat incentive scheme regulations had not even read them when she brought them to the Assembly and asked MLAs to vote on them. So it goes on, but the story has been told and Sir Patrick will report, so there is no more excuse—it is dealt with. Now is the time for the DUP and Sinn Féin to go back into government, fight for the cause of Northern Ireland together and ensure proper governance.

I want to ask the Minister again: what is the urgency that required this Bill to pass through the other place in one day and through your Lordships’ House in such a rush? This is not an emergency situation. There is no sudden threat to the economy. There is no immediate terrorist threat. What is the reason for the haste?

The Act enables Northern Ireland civil servants to exercise departmental functions if it is in the public interest to do so, and will confer on the Secretary of State a duty to publish guidance on the exercise of functions, including the principles to be taken into account in deciding whether to exercise a function. The Secretary of State made it clear in the other place, as the Minister has, that this Bill was introduced because,

“we have to enable public services to continue to be delivered in Northern Ireland”.

The Secretary of State said that the Bill,

“will allow decisions to be taken by civil servants who have felt unable to do so since the Buick appeal was heard. We need to make sure that those civil servants can take those decisions, but this is not about their making major policy decisions or becoming lawmakers”.—[Official Report, Commons, 24/10/18; col. 381.]

So far, so good, and that was what the Minister was telling us, until he came to Clause 4, which goes way beyond the position that the Government have taken. In a situation in where those who voted to amend the Bill in this way hold no seats representing anyone in Northern Ireland, where neither Conservatives nor Labour have an MP, there can be no proper accountability for decisions like that. Abortion—I place it on the record yet again—is not a human right. There is a right to life; there is no right to kill the unborn child in the womb. There has been no declaration of incompatibility in courts in Northern Ireland. Somebody said that we do not have a common set of human rights, but we do; they are established under the European Convention on Human Rights, and we are signatories.

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt the noble Baroness. Although this is not a time-limited debate, might she consider concluding her remarks pretty quickly, given that the guide time is six minutes?

[Baroness O'Loan]

I am coming to an end.

Most recently, in June the noble Lord, Lord O’Shaughnessy, gave me an assurance that the intention of the Government and the NIO,

“is to restore a power-sharing agreement and arrangement in Northern Ireland so that it will be up to the people of Northern Ireland and their elected officials to decide on abortion policy”.—[Official Report, 6/6/18; col. 1312.]

It cannot be compatible with the rule of law for a Secretary of State to be required by their Government and legislature to issue guidance which is not consistent with the law of the land. That is what would happen if the Bill were given effect. I have every sympathy with calls to give effect to the findings of the public inquiries into historical institutional abuse and hyponatremia-related deaths, and to give help to victims of the Troubles. However, I have not heard anyone advocating for Clause 4. I have not heard anyone advocating for direct rule, as suggested by other noble Lords; that is not the answer. We see Sinn Féin looking towards a referendum on a united Ireland, a profoundly important issue which does not commend itself to many of our population. We need action to bring the people together and that is what I ask of the Secretary of State.

17:51

[Baroness Stroud (Con)]

My Lords, I add my voice to those of noble Lords who expressed their sadness that we are, once again, in this place. Given the time, I will concentrate on Clause 4, which was introduced to this Bill by amendment in the other place. I question the clause for two main reasons. First, it represents a serious overreaching of the powers of Westminster. Secondly, as the House has heard, the insertion of this amendment is a misinterpretation of the role of the courts in relation to changing primary legislation.

Clause 4 represents a serious overreaching of the powers of Westminster and is not sensitive to the current reality of Northern Ireland politics. If we were in a position where there was no chance of devolved government being restored, it might be appropriate for Westminster to intervene on sensitive devolved matters. However, as this House has repeatedly expressed this afternoon, that is patently not the case. Most people in Northern Ireland believe that there is a good chance that devolved government will be restored once the main Brexit decisions have been made. The prospect of a fully functioning Stormont in 2019 is not beyond the bounds of possibility, and we should do nothing to put it there. Indeed, the Bill is premised on that hope. It is not advisable for Westminster to intervene on a devolved policy matter for the first time since the advent of Northern Ireland in 1921.

It is also understood that this is a matter where the people of Northern Ireland are known to feel strongly. As we have heard, recent polling shows a strong desire for abortion law to be set by the democratically elected representatives of Northern Ireland. For example, a recent ComRes poll found that 64% of people—and 66% of women—in Northern Ireland believe it would be wrong for Westminster to legislate on this issue at this time. Those proposing these amendments seem a little more concerned to make progress on this issue while the Assembly is down than to get power sharing back up and running again. I firmly believe that the steps that we in Westminster take at this time should be guided by one overriding consideration—whether our work will help or hinder the restoration of power sharing. Will this clause hasten the return of a functioning Executive and Assembly? Will it build the necessary trust, or hinder it? The answer is pretty self-evident, given the culture and nature of Northern Ireland. Trust grows slowly but can be quickly decimated.

Secondly, as noble Lords have noted, the sections of the law referred to in this clause govern the law on abortion, as interpreted by the courts. These provisions currently restrict legal abortions in Northern Ireland to situations where the life of the mother is at risk and continuing the pregnancy would adversely affect her physical or mental health in a manner that is “real and serious” and “permanent or long-term”. As the noble and learned Baroness, Lady Butler-Sloss, so eloquently stated, it is clear that Clause 4 rests on a misunderstanding about changing primary legislation. Although the Northern Ireland Assembly is temporarily suspended, abortion law remains devolved, as we have heard many times this afternoon. Only on 10 February 2016, the Assembly debated changing the law; the Assembly voted not to change the law in either of these situations. This is a recent debate.

This June, the Supreme Court ruled on a case in Northern Ireland on the same narrow scope of abortions that the Assembly had debated in 2016. It rejected the appeal and did not make any declarations of incompatibility with the current law in Northern Ireland and the European Convention on Human Rights. The notion that the Secretary of State should now produce guidance to impact the conduct of officials based on non- binding reflections of the courts rather than on the law is deeply problematic. It establishes a concerning precedent that should not be sustained. The relevant guidance should not differ from that issued by the Executive in March 2016, which reflects the law as it stands.

The impact of the law in Northern Ireland today is interesting in certain respects and may be of interest to policymakers here. The commitment to the value of the life of both the unborn and the mother has helped to define the culture of Northern Ireland and, in part, to make Northern Ireland what it is today. This is illustrated by the publication of a report at the beginning of last year which used robust statistical methods to show that around 100,000 people are alive in Northern Ireland today who would not have been had the Province elected to embrace the Abortion Act back in 1967. It should not be surprising that a Province which has lost so many holds life to be so precious. The figure of 100,000 was attacked and complaints made to the Advertising Standards Authority. However, after a five-month investigation, and drawing on the advice of health economists, the ASA ruled in August last year that the figure was entirely reasonable. It is extraordinary to consider that 100,000 people are alive today and that their right to life is entirely consistent with human rights.

Clause 4 is deeply problematic, and I ask the Government for assurances that any guidance that they provide will instruct officials to respect the rule of law and the law as it stands in this area.

17:57

[Lord Curry of Kirkharle (CB)]

Noble Lords will be delighted to hear that I have slashed my speech by about 50%, in view of the time and the fact that other noble Lords have made comments very similar to mine, much more forcefully than I could have done. I too will speak about Clause 4 and I very much support the comments of other Peers on the matter. As a Christian, I agree with the noble Lord, Lord Alton, and the noble Baroness, Lady Stroud. I subscribe to the biblical view that human life is sacred from conception and that marriage is the union of one man and one woman for life. However, my views are not important; our views are not important. Many of us feel a great unease that this Bill is being used to force our views on the people of Northern Ireland. The last thing we should do at this time is intensify division in Northern Ireland and potentially mislead, as the noble and learned Baroness, Lady Butler-Sloss, mentioned earlier.

Yet here we are with a Bill which declares to the people of Northern Ireland that their laws are in breach of human rights, even though there is no proper legal basis for saying so. Whatever views they hold on the substance of these issues, many people in Northern Ireland will find it quite improper that Westminster is attempting to force a particular view on them by the back door, in haste.

This issue is about the authority of this House and our parliamentary institutions to overrule delegated, devolved powers. I find that deeply concerning. Incidentally, the Northern Ireland Assembly has, even though it is not functioning at present, expressed a view and has voted on these matter within the past two years, as was mentioned earlier. According to the procedures that govern the Assembly under the terms of the Belfast Agreement, attempts to legalise abortion and same-sex marriage were not passed. We must give proper respect to the people, politicians and institutions of Northern Ireland and leave these matters to them.

These are incredibly sensitive matters for us to be trampling over with last-minute amendments to a Bill which was designed to be purely administrative and all about steadying the boat while the political parties in Northern Ireland try to negotiate a return to power sharing. Why in the world do we risk rocking the boat with Clause 4?

I am deeply concerned about the precedent that this creates. It could have serious consequences if we ignore and overrule devolved powers without having given this adequate debate. What authority do we have, when the devolved power-sharing Assembly is not functioning, to overrule the devolution agreement? This is a really important question—a point that was raised by the noble Lord, Lord Adonis. Without clarity on these issues, we should respect the fact that marriage and abortion are devolved in Northern Ireland to the Northern Ireland Assembly, so we should leave it to the Assembly and stop interfering.

18:00

[Lord Hayward (Con)]

My Lords, before I comment on Clause 4, to which the noble Lord, Lord Curry, and others have been referring, I pay credit to those Members of this House who fought and worked so hard to achieve the Belfast agreement some 20 years ago. I fall into the category of the noble Lord, Lord Rogan, if I can classify myself in that group, in that we should not underestimate the achievements of bringing to the Province peace and prosperity which continue today despite the problems which we are discussing. I say that having had the experience of members of my own family returning to Belfast only a few weeks ago because they had both the confidence and the desire to live in Belfast in a way that they had not had for many years. I hope that economically, while we debate the issues of this specific Bill, we do not talk down Northern Ireland, because it has a great potential.

I now move to Clause 4. It will come as no surprise to a number of Members that I wish to refer to it—the noble Lord, Lord Lexden, referred to my Private Member’s Bill earlier. The noble Lord, Lord Curry, just asked, “Why do we rock the boat?”. The answer is, “Because this affects people’s lives on a daily basis, and we have to do something about it”. Contrary to what the noble Baroness, Lady Stroud, said, we cannot just sit here and say, “There will be an Assembly. There will be an Executive. We will just disregard the people until there is”. The discussion this afternoon has identified, over and over again, that we do not know when there will be an Assembly. We do not know when there will be an Executive. Conor McGinn in the other place and I have been pursuing an identical Private Member’s Bill. We will continue to do so. I remind the House, as the noble Lord, Lord Lexden, did, that in 2015 the majority of the Northern Ireland Assembly voted for same-sex marriage. I believe that, if there were an Assembly now, that would be the case again today. Unfortunately, we do not have an Assembly or Executive to test that.

Nobody who introduces law should do so only because they know somebody who is going to be affected by it. We should try, as legislators, to cast our nets wide. It does, however, make it easier when we are aware of specific cases and the impact that our legislation would have upon individuals. When I made my maiden speech in this House, I referred to my involvement with the Kings Cross Steelers, the world’s first gay and inclusive rugby club. It happens that a fair number of the members of that club are from Northern Ireland, including John Henry, who captained the club a number of years ago. He and his brother were featured in the Belfast Telegraph earlier this year. We cannot say to those members of a rugby club based in London, “It is fine. You can get married here, but you cannot return home to Northern Ireland to get married as you could if you stay in this city”.

Last weekend, I was present at a gay wedding here in London. Of the two men involved, one had been brought up in Northern Ireland. He worked in this House for a number of years. We are saying to that person, “It is fine to get married in London but, by the way, you cannot decide to live and get married in Northern Ireland”. Is that really what we are proud of in this country? It is certainly not something of which I am proud. There are others whom we all know, or ought to know, who are affected similarly by the absence of same-sex marriage legislation in Northern Ireland. When I introduced my Private Member’s Bill in March this year, two were sitting in the Gallery. There were other people present at the wedding where I was on Saturday.

I can understand, as the noble and learned Baroness, Lady Butler-Sloss, said, that it will have relatively little impact if we pass Clause 4, but it will have an impact in itself. It will send a message, a small but clear message, that we still care for people who face problems that our legislation is not dealing with, wherever they may be. I was very interested in the suggestions of the noble Lord, Lord Alderdice, of a number of different ways that we might find a solution to this problem.

I ask all parties not to stop with this Bill and this clause but to move rapidly to a change in the law that would be welcomed by so many people. It is not a question of people’s human rights; it is a British duty, and particularly our duty as legislators, to provide equality throughout my country.

18:06

[Baroness Barker (LD)]

My Lords, I am very pleased to follow the noble Lord, Lord Hayward, and I wish him all success with all his efforts to make sure that there is justice for our brothers and sisters throughout the United Kingdom.

I want to get back to the Minister’s opening speech. He said:

“Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers”.


That is the point about Clause 4 that I wish to address. The purpose of Clause 4 is to allow the UK Parliament, in the absence of a Northern Ireland Executive, to scrutinise the impact of existing laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations. The clause requires the Secretary of State for Northern Ireland to provide clear guidance to Northern Ireland’s civil servants with regard to the operations of these laws and to update the House of Commons each quarter on how she plans to address the laws’ impact on human rights obligations. It does not change the law in Northern Ireland.

I say to the noble and learned Baroness, Lady Butler-Sloss, it may be that this has been misinterpreted, but I think that Stella Creasy MP, in introducing this in another place, could not have been clearer when she said that it did not change the law in Northern Ireland. If people who are opposed to it choose to misinterpret it and overstate it, that is a different matter, but nobody who has supported the inclusion of Clause 4 as it now stands has made that claim. People who object to the substance of it certainly have—that I would accept.

There have been recent court cases which have cast doubt on the compatibility of the current Northern Ireland law with convention rights. The Supreme Court case in the summer questioned whether the current law in Northern Ireland was in contravention of Article 8. There will be further cases later this year which will return to the Supreme Court. That is the reason that this is important. The noble Lord, Lord Morrow, and several other people have repeatedly returned to decisions that were made in 2016, but life goes on in Northern Ireland, and things which happen in people’s lives all the time are raising new cases which will go to law.

There is deep confusion about the current law in Northern Ireland, which is interpreted by professionals in very different ways, and that leads people to be charged under the law. In 2017, a man and a woman had to accept formal cautions under the Offences Against the Person Act 1861 because they were seeking solutions for the termination of a pregnancy because they could not do what the many hundreds of other women are forced to do, which is to leave Northern Ireland and come to the United Kingdom in order to obtain the rights which are perfectly afforded to other women in England and Wales. We know that a woman at the moment faces potential prosecution for purchasing abortion pills for her then 15 year-old daughter, who had been the subject of an abusive relationship and had been raped. She has been granted a judicial review to challenge the decision of the Public Prosecution Service to pursue a prosecution against her—which was the result of the sharing of her information by a medical professional. This is the sort of thing on which the people of Northern Ireland, and in particular professionals who engage in implementing the laws, need further guidance.

The noble and learned Lord, Lord Mackay, said that the Human Rights Act does not change law, and he is absolutely right—it does not. I put it to him that if it did, in line with the Supreme Court’s recent ruling on abortion law in Northern Ireland, reform of Sections 58 and 59 of the Offences Against the Person Act would have happened. But it will not, and it will not under this law, either. The amendment to the Bill made in the Commons allows the court to rule on the compatibility of our laws with convention rights, like the Supreme Court did in June 2018 when the noble and learned Lord, Lord Mance, found that deferring to the Assembly, which had not sat for 18 months, to reach its own conclusion was not an appropriate course, as the need for such an amendment is evident. He said:

“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate”,

in relation to abortions in cases of rape, incest or foetal abnormality.

I will say the following about the devolution matter, as devolution has been used a lot in this debate. I point out to noble Lords that the amendment which now stands as Clause 4 was passed by a majority of the House of Commons, in which there are representatives whose commitment to devolution goes way beyond that of anybody else in this House. They chose to pass this law and did so by a significant majority, because they never saw the devolution settlement as a reason to abrogate the human rights of people across the United Kingdom. This is an important and necessary piece of legislation at the moment, which will enable women in Northern Ireland simply to access their human rights.

18:13

[Lord Hay of Ballyore (DUP)]

My Lords, I very much welcome the Bill to the House this afternoon.

Before I come to the Bill, I shall take up a point that the noble Lord, Lord Adonis, mentioned. Some of us, as a party, would be supportive if he could convince all the parties in Northern Ireland to come with him with regard to discussing the Assembly meeting and a number of aspects, including Brexit. As a party, we would support that. I know that the noble Lord was recently in my own city of Londonderry, talking about the whole issue of Brexit, and I know he met a number of parties. Did he put that suggestion to Sinn Féin, as we would definitely support that in getting the Assembly up and running and meeting without an Executive? The noble Baroness, Lady O’Loan, suggested that both parties should set aside their differences and get the Assembly and the Executive up and running, and we would support that as well. At least it would be the start of getting devolution up and running in Northern Ireland once again. All the other parties would support that way forward but, once again, one party is creating a major problem.

As I said, I very much welcome the Bill. Although it is not perfect, it is what it is. Yes, there is consensus in this House but that the best solution would be to have a working Assembly at Stormont, with local Ministers in place who are accountable to the people of Northern Ireland taking such decisions. But that is not the situation, and I appreciate the situation that the Secretary of State has found herself in. The Bill has become necessary to ensure that public services continue to function in Northern Ireland and to allow civil servants to make decisions.

In the other House the Bill was described very much as a limited measure. I would describe it as a poor substitute for democratically elected politicians in Northern Ireland making decisions that affect the people they serve. The Bill is limited in what it can do and the powers it gives civil servants in Northern Ireland. Yes, it will enable the Civil Service to continue to run public services, but it will not make civil servants lawmakers, and they will not have the power to change policy decisions in Northern Ireland. Of course, the Bill also gives powers to the Secretary of State and Ministers to appoint people to public bodies in Northern Ireland. My only question for the Minister concerns people who are unsuccessful in being appointed to public bodies in Northern Ireland. Will there be a mechanism for them, so that they can appeal if they have a grievance over public appointments?

We know that the Bill is very much time-bound. There is a clear indication from the Government that they hope that by March 2019—or by August 2019, a further five months—the Executive and Assembly will be up and running. The Bill is very quiet about what will happen if that does not happen. Certainly, I should like to know about that from the Government, because the Secretary of State is running out of road as regards what more she can do as a Secretary of State to get the talks process on its way. I worry that the Bill is very silent on what might happen afterwards, if there is no agreement on getting an Executive and the Assembly up and running.

It is difficult to see how the Bill will resolve some of the major issues that Northern Ireland now faces. Education is in a serious situation. The principals of many schools will tell you that their budgets have been so stretched that they can no longer deliver the service they want to deliver. On health, too, a number of policies and policy decisions that need to be made are being sat on. Waiting lists are growing, and members of the public sometimes have to wait 12 hours to be seen at A&E departments. All of this is compounding, so real policy changes need to be made by Ministers to get these serious situations addressed. On infrastructure, economic development and inward investment in Northern Ireland, a number of issues are sitting there awaiting policy decisions on how we will move forward. The Bill is ambitious, although in many ways it is not, and the Government should have gone much further when the Bill came to the House.

There has been a sense of political vacuum in Northern Ireland since the collapse of the institutions. I hope—I know it is the hope of all Members of this and the other House—that we can get the Executive restored sooner rather than later. Our party is willing to listen to any suggestion that gets the Executive and the Assembly up and running. As a party, we have put forward a number of suggestions to the Secretary of State on how that might be done in a limited period, so that we can move to full devolution again in Northern Ireland.

18:19

[Lord Kilclooney (CB)]

My Lords, this has been a wide-ranging debate and I sympathise with the noble Lord, Lord Duncan, who has many problems to solve in Northern Ireland. When the noble and right reverend Lord, Lord Eames, commenced his speech he said, “Here we go again”, and I am afraid we could add, “We’ve heard it all before”. There were two exceptions. The noble Lord, Lord Adonis, came out in favour of direct rule, which was a step forward by the noble Lord. And we heard an interesting idea from the noble Lord, Lord Trimble, who has an amendment, which I look forward to hearing later in the evening. We then heard the astonishing news from the noble Lord, Lord Maginnis, that he had a driving licence, which will come as a great source of comfort to those who drive between Belfast and Dungannon on the M1.

Northern Ireland is a serious subject as well. Democracy is not just the rule of the majority; it is the rule of the majority with the consent of the minority. Because Northern Ireland politics are not based on economics or on social issues, and because the political division is between those of two different nationalities—those who claim to be Irish and the majority who claim to be British—there is a great division between the communities. That is why those of us who met in the discussions that led to the Belfast agreement agreed to a power-sharing devolved system of government in Northern Ireland. We thank the noble Lord, Lord Murphy, for the role he played in getting that agreement. It is why, today, I repeat that I support the Belfast agreement and the idea of power-sharing devolution.

We meet in bad times, with the collapse of the Northern Ireland Executive. Strangely, I agree with the suggestion of the noble Lord, Lord Alderdice, about when the restoration of the Executive at Stormont might arise. It will not be just after Brexit; it will probably be after the Irish general election. I have said that for some time and, increasingly, people are beginning to accept it. Sinn Féin does not want responsibility for any unpopular decisions in Northern Ireland, and then to go into an election in the Republic of Ireland. The one question that arises from the contribution of the noble Lord, Lord Alderdice, concerns the doubt that has increased in the last week over the fall in the Sinn Féin vote in the Republic of Ireland during the recent presidential election. Its vote in the Republic fell dramatically from 10% to 5%. Apparently, a lot of the missing 5% voted for the sitting President Higgins and might return to Sinn Féin. If that is so, Sinn Féin, as the noble Lord, Lord Alderdice, suggested, may well be in a coalition Government in the Republic of Ireland. In such circumstances, it would then also like to be in a coalition Government at Stormont in Northern Ireland.

This Bill is necessary because projects have been delayed or dropped in Northern Ireland and jobs have been lost. The details of the projects that have been dropped have already been listed in this debate and there is no need to repeat them. It means that we need, immediately, an interim measure until there is a restoration of the Executive at Stormont, or indeed direct rule—that may be the final, fallback position. We have the Bill as an interim measure and I welcome it.

There are three subjects that I want to refer to briefly. The first is abortion. This is a very sensitive subject in Northern Ireland and one that, strangely enough, unites Protestants and Catholics. What do I hear, on the one rare occasion when Protestants and Catholics are united? The English want to wreck it. It amazes me. This is a devolved issue and it should be decided by the Northern Ireland Assembly. In a recent ComRes poll, 66% of Northern Ireland women wanted the question of abortion decided at Stormont and not imposed by Westminster. We must pay attention to the wishes of the Catholic and Protestant people in Northern Ireland. It would be wrong to impose English moral standards on the people of Northern Ireland.

Secondly, we had the Budget yesterday. From Northern Ireland’s point of view it is a welcome Budget. We particularly welcome the decision for a city deal for Belfast and the financial contributions that will be made towards that programme. We also heard that there is a city deal for the Derry and Strabane council area—or the city of Londonderry. What is a disappointment to me, given where I live, is that the second-largest city council in Northern Ireland—the city of Armagh, Banbridge and Craigavon—has not even had the initiative to submit its claim for a city deal. I hope that will receive consideration in the very near future.

The third point, which was missing from the Budget and has not been mentioned in the debate on the Bill so far, is the need for an exemption to air passenger duty in Northern Ireland. I remember raising this some years ago, when we had a Sinn Féin Minister of Finance at Stormont. He was genuinely sympathetic to the idea. His name was Ó Muilleoir, if I can pronounce it correctly. He pointed out to me, in a reply, that it would probably cost the Northern Ireland Exchequer about £50 million from the block grant. If that is all that is involved, and since we have no road or land links between Northern Ireland and Great Britain, it is a special case. Sympathetic consideration should be given to the abolition of air passenger duty. This would certainly increase tourism in Northern Ireland and reduce the cost to families—our families in Northern Ireland are somewhat larger than those in England —of going abroad on holiday, or even going to England for holidays.

Last week, the noble Baroness, Lady Doocey, on the Liberal Democrat Benches, who always stresses her Republic of Ireland origins, said that the St Andrews agreement could not be changed, but it has been changed. The St Andrews agreement was an amendment to the Belfast agreement, and further amendments can be made. It is nothing new. One subject that needs to be addressed is one the noble Lord, Lord Bruce, mentioned at the outset: the petition of concern, which needs reconsideration. This concern should not apply matters of personal conscience, such as same-sex marriage or abortion. It should apply to economic and social policies—so that you do not have one community trying to impose its will on another, because that is the way life goes in Northern Ireland. It should not be abused or used by any party to stop legislation on same-sex marriage or abortion.

I look forward to the amendment of the noble Lord, Lord Trimble, and I hope that the next time we debate Northern Ireland it will not be, yet again, a case of, “We’ve heard it all before”.

18:29

[Lord Murphy of Torfaen (Lab)]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Kilclooney, particularly because of the important role that he played 20 years ago at the time of the Good Friday agreement.

The Opposition will not of course oppose the Bill. It is very important in clarifying the position of civil servants and allowing important and urgent decisions to be made, but it imposes on them quite a considerable personal burden. The shorter the time they have that burden, the better, because they are not elected. At the same time, the law will now clarify the position regarding planning application issues in Northern Ireland. It is important too that public appointments are made, because until now hugely significant appointments for the people of Northern Ireland have been frozen. That is obviously a part of the Bill that we very much support.

However, the thrust of the Bill is about the restoration of the Executive and the Assembly in Belfast. Although I say that we do not oppose the Government, we are not very happy about the situation with the current negotiations, or lack of them, which would lead to the restoration of the Assembly and Executive. It seems to me that there has been little urgency over the last months. It also seems that, by putting a final 10-month limit on the talks, we are in a sense accepting the principle of delay. That lack of urgency and the lack of an incentive to ensure that we have an Assembly and Executive up and running much more quickly than is envisaged by the terms of this Bill are disappointing.

Interestingly, the noble Lord, Lord Lexden, made the point that, because local government is so limited in its powers in Northern Ireland, not only what a regional government do but what local government in England, Wales and Scotland do as well is without democratic accountability, and as a consequence huge strain is put on the Good Friday agreement and the agreements that followed it. It is not just about an Assembly and an Executive; it is about the north-south arrangements too, because they fall if the Assembly falls. The whole point of getting the two communities together over all those years was that you would balance on the one hand the importance of the north-south institutions, which are extremely important to the nationalists, and on the other hand the importance of devolution in Northern Ireland, as well as east-west relations—the British-Irish Intergovernmental Conference has not met properly until recently. All these strands of the agreement went together. You could not pick and choose the ones that you liked; you had to accept them all. That is the problem today in Northern Ireland in getting those institutions up and running.

Sinn Féin makes a great deal of the fact that it believes that the principles of the Good Friday agreement, particularly with regard to equality and human rights, are not being carried out in Northern Ireland. However, the agreement has also been breached by the Assembly not meeting. If Sinn Féin does not go into the Assembly and causes it not to function, that breaches the agreement too, and that is an important part of the negotiations that will follow this legislation.

The DUP should acknowledge that the RHI scheme caused much scandal in Northern Ireland. It should also acknowledge that the issues that Sinn Féin is complaining about, particularly with regard to the Irish language, can be resolved. If 20 years ago the whole apparatus and structure of the agreement that we all admire had depended on one single issue—the Irish language—it would not have happened. Far more significant issues than that had to be resolved at the time, but there are other ways in which you can restore the Assembly and still deal with the Irish language. Why can there not be an independent commission to make recommendations on the language? Why cannot people from Northern Ireland go to Wales and Scotland to see how the language legislation operates there? There are ways and means that can be examined but they have not been examined over the last months and years and they urgently need to be dealt with. The trouble is that you cannot legislate for trust—it is built up over years.

In Northern Ireland there is always a reason why you should not establish the Assembly at this time or that time. People say, “Oh, we can’t do it because of Brexit”, or “Ah, it’s not Brexit at all; it’s the general election in the Republic that will stop it”. And if it is not that, perhaps the local government elections in Northern Ireland will be a barrier. If we had listened to those sorts of arguments over 20 years, nothing would have been done in Northern Ireland, because there are always obstacles in front of us. There has to be a greater sense of urgency, and these obstacles, important though they are, have to be seen as part of the bigger picture.

I am glad that at the beginning of this rather long but interesting debate the Minister indicated that there are to be talks about talks, as they are not talking about talks at the moment. When they do talk about talks, perhaps they should think about a more imaginative way of holding them. They should be much more intense. They should be proper all-party talks, structured in the way that we have seen in the past—not the odd meeting in a party office here and there but proper talks around the table with everybody involved. There should also be an independent chair or mediator. That has been talked about for months now but there has been no movement on it. We would not have had what we did unless it had been for George Mitchell and his colleagues, and there are people who can be called upon to do that job.

Frankly, the two Prime Ministers and the two Governments have to do a lot more in getting people involved in the talks. The Minister will know that when talks were held in the past, the Prime Ministers from Dublin and London spent day in and day out, week in and week out, and month in and month out working to bring the parties together. In my view, there is no evidence that the two Prime Ministers, in dealing with what is, after all, an international treaty between our two countries, are dealing with it as they could. I know that they have the problems of Brexit, which will overshadow things, but that is intertwined with the restoration. There are two sets of negotiations that affect Northern Ireland—one on Brexit and the border and the other on the restoration of the institutions—and both are getting nowhere. There has to be a greater intensity in the weeks ahead.

There is another way. Time after time we have had what you might call “away weeks” in which the parties are brought together—at St Andrews, for example, which worked, and at Leeds Castle, which did not—but I have seen no evidence of new thinking on this. I hope that the Bill will herald new thinking, new imagination and new ideas about how to bring this matter to an end. Otherwise, we will drift inexorably towards direct rule.

We have said it many times: if you establish direct rule, it is a devil of a job to get out of it again. I was a direct rule Minister for five years in total. I did not like it, and I have said that to your Lordships before. I did not want to take decisions on behalf of the people of Northern Ireland. It is for the people elected in Northern Ireland to do that job. However, with issues such as Clause 4 and so on, the longer this goes on, the greater the chance that this Parliament and this Government will have to take decisions for the people of Northern Ireland, and that would be a disaster for the people of Northern Ireland. It is not an ordinary Assembly like the ones in Edinburgh or Cardiff; it is different. It is an integral part of the peace process as well as the political process. We cannot go back to where we were. The only way is forward, and that, I hope, will start after this Bill is enacted.

18:38

[Lord Duncan of Springbank]

My Lords, to use the term “wide-ranging” for today’s debate would be an understatement. I shall try to do justice, as best I can, to each of the points that have been raised. I hope that noble Lords will forgive me if I miss any points, as that will not be deliberate, and there will be an opportunity to pick them up later.

I begin with the obvious statement that it is now 22 months since there has been a functioning Executive. If we are successful and secure the passage of the Bill today, and it takes the full five plus five months, it will be 32 months since there has been a functioning Executive. That is an extraordinary period of time without functioning government, and I am drawn in particular to the remarks of the noble Lord, Lord Dunlop, who reminds us that while much is going on in Northern Ireland, much is now stuck in limbo. Whether it be corporation tax, questions of the north-south interconnector, the implementation of the Harper report, even the functioning of the joint ministerial committees, all are stuck in limbo, all are a loss for the people of Northern Ireland and this is a negative, not a positive. We cannot lose sight of that reality.

Of the three parts of the Bill, the first is designed to address this very issue. The noble Lord, Lord Murphy, paints a very clear picture: “What on earth are you going to do differently now? Otherwise, you run the risk of simply repeating that which has gone before”. So we do need to be moving forward, and on the question of an independent mediator, we are exploring that. There needs to be change, and that is one example. In terms of how we configure the meetings, their frequency and intensity, whether it be home or away, or however we seek to do it, there needs to be a new momentum. This is now—I have said this before—the last point at which we can move this forward. It is not an easy thing to stand here; I listened with a wry smile when the noble Lord, Lord Empey, said I have an ability to say nothing with great conviction. That would be quite a talent, but I hope I can give a little bit more of something rather than nothing today.

The issue we are facing now is that we need—several noble Lords mentioned this—something which is not mechanical. I have spoken often about this agreement as being like an engine or a machine that involves engineers and mechanics. There is also a spirit inside it, and that spirit of co-operation needs to be there. I noted that one noble Lord said, “You cannot legislate for trust”. You cannot legislate for spirit either, but without it, you cannot get the engine working. That is the most telling thing of all.

The Government continue to invest in Northern Ireland. There are ambitious projects going forward. Yesterday’s Budget was a revelation regarding where we can see money going forward—both into the Belfast city deal and the Derry/Londonderry deal. To the noble Lord, Lord Kilclooney, I say, get Armagh to write to me now as they need to be part of the widest possible deal. The whole mosaic of Northern Ireland should be captured inside the city deal framework.

I say to the noble Lord, Lord Dubs, that the £320 million released under the Budget for co-operation within education is available now and will be spent in the time available. It is absolutely right that it should be so, but there is no point in pretending that this is a substitute for local decisions made by locally elected individuals. There must be a functioning and sustainable Executive who can carry with them the trust and certainty the people of Northern Ireland deserve.

The noble Lord, Lord Eames, reminds us that we have a near unique society which has gone through the Troubles in the widest and darkest possible sense, and that there are wounds to be healed. Those wounds cannot simply be healed by putting money into the Province—that is not where they come from. It is about a trust and belief that the institutions of Northern Ireland can function and deliver the outcomes the people deserve. Without that, there is almost no purpose in having the Executive at all.

There are three parts to the Bill before us. The first, although difficult to realise, is straightforward in one sense: it is creating a window of opportunity for those negotiations. The second is a challenge, and there is no point pretending otherwise: how do we ensure that the civil servants are able to function in such a way that they have confidence in taking decisions? One of the questions asked by a number of noble Lords is: what is the urgency for this Bill to go through so quickly? One of the answers is that there is now a backlog of decisions in Northern Ireland, which have not been taken because civil servants do not have the confidence to take them. Those are not decisions that usurp the authority of Ministers. It is the quotidian, daily functioning decisions that must be taken to ensure good governance inside the Province. That is why we are issuing clear guidance—this is not an attempt to do direct rule lite. We have lodged the guidance in the Library, and noble Lords can read it and see where it is coming from.

We are ensuring that all those decisions taken by civil servants are fully transparent and are recorded and lodged each month, so we can see exactly what they are and understand what they are trying to do. Let us be frank about it: it will not allow civil servants to take bold, grand decisions which do not rest upon a solid foundation. We cannot ask those civil servants to display that level of courage. It is not appropriate to do so. That must rest with an elected Executive. A whole range of questions that we are all too familiar with will require that level of activity. I say to the people of Northern Ireland that the great shame right now is that this will not help those decisions to be taken. It will help the daily decisions to be taken with some confidence, but the bigger decisions await the arrival of a functioning Executive. That in itself is a serious challenge.

I have no desire to be critical of the Northern Ireland Civil Service; it is doing an extraordinary job in difficult circumstances. I note the circumstance that the noble Lord, Lord Maginnis, has raised once again, but the wider question of where that Civil Service stands is to be broadly applauded.

On the third part of the Bill, we have been very careful not to try to give a blanket power to my right honourable friend the Secretary of State to create appointments without due recourse to the affirmative procedure, which allows full scrutiny. We have tried to put on the face of the Bill only those appointments which are urgent and pressing and need to be made now. However, there are now other means whereby, in extremis and emergency, we can move forward under that approach.

Those are the three component parts of the Bill, but there is another part, which arrived in the other place. That was not at the behest of the UK Government, who did not seek that amendment. However, it was put forward, there was a vote, and that amendment has now come to us. It has not come through some illegitimate means, but through a proper means. One can debate what it is intended to achieve—and sometimes the interpretation granted by the media is a little unhelpful—so let me be as clear as I can be. I listened to the noble and learned Lord, Lord Mackay of Clashfern. The clause in question does not confer new powers within the established procedure. It does not allow, in the guidance which will be issued, the civil servants to upset, ignore or run in contravention to the law.

I note the useful and important comments made by the noble Lord, Lord Alderdice, about how guidance can be used in a sensible way to understand the law as it is today. As someone who comes from part of the kingdom which has a fully functioning devolved Government, I stress again that these decisions must be taken by the devolved Administration in the north of Ireland. There is no point in pretending we can usurp democracy in that fashion, simply because devolution is not to our liking. Devolution must function even when it is not as we would like to see it, but rather, how it must be.

Let me also be clear that it is not the desire of the Government to push this to a vote in any sense at all, but rather to recognise that which is here with us today. The guidance itself will not in any way seek to undermine the functionality or reality of the law. It is important we understand what it will do. It is not our desire to move into an issue of conscience—this must rest with the individual Peers gathered in this House today, should it come to a vote.

We come to a very simple point, raised by the noble and learned Lord, Lord Mackay: irrespective of what emerges from the Supreme Court decision, which I do not doubt will emerge very soon, there will be a simple question of what that ruling means for the law. Ultimately, that new law will have to be made by the elected representatives of Northern Ireland, fully recognising all aspects of the community and that all individual voices need to be heard. It is not for us today to do that.

I turn briefly to the remarks made by my noble friend Lord Hayward. I am not unsympathetic to the point he makes about being able to send a message. Sometimes a message does indeed need to be sent, and sometimes it needs to be received too. I am not unsympathetic to that, but it is slightly different from what we must do here as a functioning legislature in that regard. I hope that will help us move that forward.

There are some other elements that we need to touch on very briefly. The question of the petition of concern has been raised. We are not averse to this being re-examined, resting broadly upon the principle of full engagement with all parties to ensure we can move it forward into a new but none the less fully supportive form. We would not be averse to that; how to achieve it is certainly something we can think about.

I listened with interest to the noble Lord, Lord Alderdice, who again raised some very interesting points that I would like to discuss with him further so that we might have an opportunity to fully explore some of those aspects. If he will forgive me, I would like to have that meeting afterwards. I will happily produce a note of that meeting so that it can be shared with all. I am not trying to keep secrets from the rest of your Lordships here gathered.

I say to the noble Lord, Lord Bruce, that I am very much aware of the questions that arise in Clause 3(7) regarding the functioning of the advice and guidance. It is not the ambition or intention to undermine or erode any aspect of the functioning of the human rights legislation as it applies to Northern Ireland. I am happy to give that categorical assurance right now, on the record.

I am also aware, as I look across the Benches, of the points raised by the noble Lord, Lord Dubs. I am conscious that we will not seek to eliminate the salaries of MLAs, who have a very real and serious function. They will be adjusted, as per earlier discussions that we have been party to, but it is not the ambition to remove them, nor to eliminate the salaries that rest on the assistants of those individuals. That will also be a very important part. If he will forgive me I will write to him directly on the question of fostering refugees because I do not have the answer at my fingertips.

I am aware of the points raised by the noble Lord, Lord Alton of Liverpool, and I understand exactly where he is coming from. That is why I said earlier that this matter must be addressed by the people of Northern Ireland.

On the comments made by my noble friend Lord Trimble, I await with interest his amendment to understand what he intends. On the remarks of the noble Lord, Lord Adonis, I hope that I have given some measure of comfort on the question of mediation, and that we will be able to move forward. The question of a wider mechanism might well rest on something similar that is in the mind of my noble friend Lord Trimble. Let us see what emerges. We are not averse to looking at new methods to try to move these issues forward.

I could go on, but given the hour and that this is not the last time your Lordships will hear from me today, I will close. I say again that we hope that this can move forward in a sensible way and that we do not divide the House. If there are any issues that noble Lords wish to raise with me between Second Reading and Committee stage, I will be available for any discussions they might like to have. On that basis, I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Arrangement of Business

Tuesday 30th October 2018 Lords Chamber

Announcement

18:53

[Viscount Younger of Leckie (Con)]

My Lords, it might be convenient for me to say a word about the Committee stage of the Northern Ireland Bill. The Public Bill Office will be taking amendments until an hour from now. Timings for Committee will be advertised on the annunciators after that point.

Extradition Treaty: UK and the State of Kuwait

Tuesday 30th October 2018 Lords Chamber

Motion to Take Note

18:54

Moved by

[Lord Collins of Highbury]

That this House takes note of the Extradition Treaty between the United Kingdom and the State of Kuwait.

[Lord Collins of Highbury (Lab)]

My Lords, I appreciate that this evening will potentially be a very long one. I do not anticipate taking up too much time. I am rather disappointed about the procedure being used relating to these Motions on treaties. I looked at the computer on Friday and noticed that there was a speakers’ list, which promptly disappeared. Speakers’ lists aid the business of the House. They encourage people to participate. I can understand why there are some circumstances where lists are not used, but I hope that in the future the usual channels will consider it appropriate to have them.

I start by saying that Labour absolutely supports the use of extradition treaties, including with such states as the US which practise the death penalty, although we strongly believe that extradition should not take place where the subject could face the death penalty. Of course, the Extradition Act 2003 set out the basis for the UK’s extradition policy. Part 1 implemented the European arrest warrant and Part 2 allows treaties with other states to be established. Under Part 2, the Secretary of State must decide whether to certify each individual request for extradition. Of course, the 2003 Act also stated that extradition is expressly prohibited where the subject could face the death penalty.

The UK’s extradition treaty with Kuwait specifies that extradition between the two states is permitted under certain circumstances, the first being that the offence attracts a maximum penalty of at least 12 months and the requesting state must establish a prima facie evidential case in respect of any person whom they wish to extradite. The agreement specifically refers to several grounds on which extradition must be refused. These include if,

“the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, sex or status, or political opinions, or that that person’s position may be prejudiced or his or her liberty restricted for any of those reasons”,

and if the extradition would breach human rights. Another element, of course, is if,

“the person whose extradition is sought could be, or has been sentenced to death”.

One of the first issues I want to raise is the fact that the penal code in Kuwait contains general provisions against debauchery. That means that it can punish lesbian and gay people, and fine and imprison them for up to six years simply for being gay. I have mentioned that the agreement specifically refers to the grounds on which extradition must be refused, but we can have a situation where someone was charged with an offence not related to their sexuality but a return to Kuwait might lead to abuse and further charges because their sexuality might become known or is likely to be known. There are horrific circumstances with some of the abuse that could take place in prison. Could the Minister give the House an assurance that, in such circumstances, an application will fail?

Human Rights Watch has raised concerns about the Kuwaiti justice system and claimed that, due to process violations, it makes it very difficult for defendants to get a fair trial. In fact, this week Labour MEPs have raised one such case that has had scant attention in the media, of Marsha Lazareva, Kuwait’s top woman CEO, who was jailed earlier this year for corruption following a trial in which the prosecution did not give her defence team full disclosure of incriminating documents and other evidence. In fact, the conditions for non-nationals such as Marsha Lazareva, who is Russian, are described by Human Rights Watch as “truly shocking” by those with experience of the prison system in Kuwait. Accounts tell us of seven women to a cell, with clothes and food limited intentionally by prison officials who distribute to Kuwaitis first and foreigners second.

19:00

Human Rights Watch has also said that foreign women working in Kuwait are particularly vulnerable. They are particularly vulnerable to false accusations of theft, summary dismissal by employers, assault and even rape. Many women then face imprisonment and expulsion. Human Rights Watch has repeatedly raised concerns over the lack of a right to a free trial in Kuwait. Will the Minister tell us what, if any, actions the Government have taken to raise these concerns over due process with Kuwaiti officials, particularly in regard to negotiating this treaty?

On the death sentence, we on this side have criticised the Government for paving the way for two ISIS terrorists formerly of British citizenship to be extradited to the US and potentially executed. Sajid Javid, the Home Secretary, wrote to the US Attorney-General, Jeff Sessions, that he would not demand a death penalty assurance in this particular case. In a letter quoted by the Daily Telegraph, he wrote:

“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurance will be sought”.

He continued:

“I have instructed my officials to set out the terms of our assistance and to work with your officials to action the request. As you are aware, it is the long held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK Government’s stance on the global abolition of the death penalty”.

The reason for his letter, the Home Secretary said, was that US courts were better placed to handle foreign fighter cases because of the risk of legal challenge in the United Kingdom. Sajid Javid appears to have secretly and unilaterally abandoned Britain’s opposition to the death penalty. His actions will not simply impact on the lives of those two particular terrorists—whose actions were absolutely disgusting and appalling—but will impact on the lives of other Britons, including potentially innocent ones across the world. Will the Minister explain how the principles in the 2003 Act will be maintained, because I am not sure, in the light of the Home Secretary’s actions, how any assurances given can be seen as credible? His actions have the potential to undermine all of our efforts over many years to persuade countries such as the US, Iran and others to drop the death penalty.

On 25 January last year, Kuwait carried out seven executions by hanging for those convicted of violent crime: two nationals, including a member of the royal family, an Ethiopian woman, a Filipina woman, two Egyptian men and a Bangladeshi woman. The January 2017 executions are believed to be the most recent to have taken place in Kuwait. Prior to 2017, the last known executions took place in 2013, which themselves ended the de facto death penalty moratorium that had been in place since 2007. The 2017 executions took place in private, in stark contrast to the previous executions, which were before an invited media. Given that the Kuwaitis did not publicise these executions, can we really be certain that no further executions have taken place since? I hope that the Minister will be able to assure us on that point.

In April 2017, we had the case of Fahad al-Rajaan, the former head of the Kuwaiti social security fund, arrested in London. This case has gained significant public attention in Kuwait, but there is little indication of how many other Kuwaiti nationals could potentially be extradited from the UK. Will the Minister tell us whether the Government have made an assessment as to how many Kuwaiti nationals in custody could be extradited on ratification of these treaties?

I have raised these issues not because we are opposed to the principle of this treaty but because we are genuinely concerned about our human rights policies and our commitment to seek the abolition of the death penalty. If the Home Secretary’s actions are considered, it looks like that commitment will be undermined, both in general and in the specific case of Kuwait. I beg to move.

[Baroness Northover (LD)]

My Lords, I thank the noble Lord, Lord Collins, for initiating this debate. It is important that treaties like this are scrutinised. This treaty was initialled by UK and Kuwaiti Ministers in November 2015, signed in December 2016, ratified by the Kuwaiti parliament in April 2017, but only laid before the UK Parliament in July 2018. I guess we had various other things that we were thinking about.

We know that there has been much engagement with Gulf states in recent years. In fact, the UK offered to host the first-ever meeting of the Gulf Cooperation Council outside the region. I understand that this is on hold because of the Saudi/UAE dispute with Qatar. The UK has put effort into increasing exports to the region. Exports to Kuwait rose 23% from 2017 to 2018, with goods and services valued at £1.7 billion. Perhaps we should pay tribute here to the Prime Minister’s trade envoy to Kuwait, the noble Baroness, Lady Morris. If the UK leaves the EU, the Government have made it clear that they wish to have a free trade agreement with the GCC states. That has been made particularly difficult in relation to Saudi Arabia, with its involvement in Yemen, the blockade of Qatar, and of course, the murder of Jamal Khashoggi.

Set against some of its neighbours in the Gulf and the wider Middle East, Kuwait has often been seen by the Government as an example of moderation and political reform. A House of Commons Library paper from 2016 notes that Kuwait has,

“one of the liveliest and most influential parliaments in the region, with the power to cross examine ministers and significant influence over legislation”.

It is obviously good to hear that.

Nevertheless, as the noble Lord, Lord Collins, has pointed out, concerns have been expressed, most notably by Amnesty International and Human Rights Watch, about human rights and freedom of expression in Kuwait. Thus, Amnesty reports that in March, the UK-based writer and blogger Rania al-Saad was sentenced in her absence to three years in prison on charges of “insulting Saudi Arabia” on Twitter. Former MP Musallam al-Barrak was released in April after serving a two-year prison sentence for criticising the Government but continues to face other charges.

Amnesty further reports that the authorities have prosecuted and imprisoned government critics and online activists under penal code provisions that criminalise comments deemed offensive to the Emir or damaging to relations with neighbouring states. Human Rights Watch noted in its 2017 report:

“Provisions in Kuwait’s constitution, the national security law, and other legislation continue to restrict free speech, and were again used in 2017 to prosecute dissidents and stifle political dissent”.


It was noted, however, that Human Rights Watch was allowed access to and dialogue with the Government of Kuwait.

As the noble Lord, Lord Collins, also mentioned, Kuwait has recently used the death penalty. As he explained, in January 2017 Kuwait executed seven people, though it had not, as he pointed out, carried out any such executions since 2013. This is obviously a very worrying development, as he emphasised. There are, in addition, concerns about the independence of the judiciary and prospects for a fair trial. Thus, for example, in the case of the “al-Fintas group”, 13 men were charged in connection with WhatsApp discussions about video footage that appeared to show government members advocating the Emir’s removal from power. This case obviously causes concern. Amnesty concluded:

“The trial was marred by irregularities”.


Concern has also been expressed about the 2016 electronic media law which, as Amnesty argues,

“criminalises … criticism of the government, religious figureheads or foreign leaders”.

The Government’s overseas business risk assessment for Kuwait describes it as a “semi-democratic” country, which is an interesting way of putting it. Political parties are prohibited, or as the Government document carefully puts it:

“Political parties have not been legalised”.


The Emir “reserves the right” to dissolve the 50-member National Assembly. Criticism of the Emir is illegal. These are serious issues which must be considered when assessing this extradition treaty.

We understand that the Kuwaitis have been keen for the treaty to be implemented, arguing that corrupt former officials have relocated to London. Kuwait’s Minister of Justice commented when the extradition treaty was signed:

“It supports efforts to bring convicts and fugitives to justice, which in turn will help ameliorate Kuwait’s ties with the UK”.


The Speaker of the Parliament stated:

“Kuwaitis will no longer see embezzlers of public funds roaming the streets of London and Britain”.


Indeed, as the noble Lord, Lord Collins, mentioned, in 2017 Britain arrested the former head of the social security fund, who was wanted on corruption charges. Although the extradition treaty had not yet been ratified, the extradition request was acceded to and the judge in this case ruled that the extradition could proceed. This case in fact showed that an extradition treaty was not required for individual extradition requests to be agreed by the Home Secretary.

In the light of this background, I have a number of questions for the Minister. What considerations in the UK-Kuwait relationship made this treaty a priority for the UK? In what context was this treaty discussed, both bilaterally with Kuwait and internally within the UK Government? Were linkages made to progress on political reform and human rights? Are the Government generally using extradition treaties as a way of encouraging political reform? How have the Government kept the wider political situation in Kuwait under review since first initialling this treaty in 2015, with the changes that have been noted? Did commercial considerations, particularly if the UK were to leave the EU, play a part?

In addition, given that our international partners in some cases do not appreciate that our judiciary is genuinely independent, what potential fallout could we see for the relationship with Kuwait if extradition requests are refused on human rights grounds? What are the Government’s options to revoke or suspend a treaty if they see violations of human rights in the judicial system or have systemic concerns around freedom of speech and fair trials? Will they keep the extradition treaty under review? There is no bilateral extradition treaty now with Saudi Arabia, Oman or Bahrain. Are any such treaties in the pipeline?

Setting aside Kuwait-specific concerns, there has been concern around extradition policy over the last few years. As the Lords Extradition Law Committee stated in 2015,

“the system of seeking, accepting and monitoring assurances during the extradition process cannot guarantee the UK is meeting its human rights obligations”.

What review have the Government made of their policy in the light of those comments? The UK does have extradition treaties with countries where there are significant limitations on human rights and dubious judicial systems—for example, Uganda, Libya and Russia. It is important, therefore, that this extradition treaty should be adequately scrutinised, and I thank the noble Lord, Lord Collins, again for ensuring that we are doing so. I look forward to the noble Baroness’s response.

19:15

[Baroness Goldie (Con)]

My Lords, I am pleased to speak for the Government today on the important matter of extradition, a matter in which I know the House has taken a close interest over recent years. By way of introduction, I say to the noble Lord, Lord Collins, that I have observed his disquiet over procedure. In the small number of debates we have had on treaties—I think we had two before tonight—we have not had speakers’ lists, but I am prepared to take it up with the usual channels, because in terms of certainty, and so that people can make a judgment on whether they wish to participate in the debate, further information might be helpful. I undertake to relay that to my very good chum the Chief Whip and see what progress I can make.

I am grateful to the noble Lord, Lord Collins, for securing this debate to discuss a further step forward in enhancing the close relationship between the UK and an important and valued historical friend in the Middle East: Kuwait. Our co-operation with Kuwait in recent years has spanned the entire spectrum of the UK’s strategic priorities. It has focused on building links between our economies through developing trade and investment, working together to counter the threat from extremism, radicalisation and terrorism that we both face, and continuing to enhance our close and valuable military relationship. Together, we also strive to support peace and stability in a changing region. Kuwait is a major donor in areas of conflict, providing humanitarian aid in Syria and Yemen, as well as supporting projects for the reconstruction of Iraq.

The UK has strongly supported Kuwait’s mediation efforts in recent talks in the Gulf and its support for de-escalation and Gulf unity has demonstrated its commitment to regional stability. As a non-permanent member of the United Nations Security Council since January 2018, Kuwait has also worked effectively alongside the UK, during which time Kuwait has arranged a fact-finding mission on the Rohingya crisis, supported sanctions against the DPRK and condemned the use of, or threat to use, chemical weapons following the appalling incident of the Salisbury poisoning in our own country. As a close friend, we are also able to offer support and advice, where appropriate, as Kuwait continues to develop its democracy, governance and human rights frameworks. I will come to this point and points specifically raised by noble Lords in the course of my comments.

The next important frontier in our co-operation with Kuwait is that of criminal justice. The noble Baroness, Lady Northover, asked about the context of all this. I have tried to explain that we value our very close relationship with Kuwait and we want to reach a mutually supportive situation in which we can each play our role in dealing with challenging issues that arise in the field of and in relation to criminal justice. That is why co-operation on criminal justice with Kuwait is very important.

In July, the Policing Minister laid before Parliament a package of judicial co-operation measures, comprising treaties on mutual legal assistance and extradition. Kuwait has acted with admirable swiftness to be ready to ratify both treaties. I am very pleased that they have now been laid before the House for the requisite number of sitting days to now allow the Government to move towards ratification. As your Lordships may be aware, the mutual legal assistance treaty needs no further legislation to be able to enter into force and will be ratified in the coming months.

In accordance with the provisions of the Extradition Act, Kuwait must be designated a Part 2 country before ratification of the latter treaty can take place. As the noble Baroness, Lady Northover, observed, there have been pressures on the parliamentary timetable with Brexit, but the Government intend to lay a statutory instrument to effect ratification as soon as the parliamentary timetable allows. Orders made under the Extradition Act are made under the affirmative procedure, so it will not be long before your Lordships have the opportunity to debate this treaty a second time. Work is proceeding on the drafting. As I say, the next task is to find a slot in the parliamentary timetable.

By way of general comment on extradition, the UK’s extradition framework is an essential tool for ensuring that those who seek to flee from their crimes are not able to evade justice. In a world where crime and terrorism are no longer contained within national borders, the importance of ensuring effective co-operation on criminal justice has never been greater. We all share a deep respect for the fundamental principle that no one should be above the law. The extradition treaty we are discussing tonight is a further building block in an international structure that will facilitate our collective global ability to bear down on terrorism and serious organised crime. The Government are pleased to have the co-operation of Kuwait on this important issue.

The noble Lord, Lord Collins, and the noble Baroness, Lady Northover, have tonight raised a number of issues relating to Kuwait’s human rights record and the continued use of the death penalty. Let me reaffirm: this Government are committed to upholding human rights and oppose the death penalty in all circumstances as a matter of principle. The safeguards available in the Extradition Act are strong and reliable in that respect. Extradition from the UK is not possible if it would be incompatible with a person’s human rights. The Home Secretary must not, in law, order an individual’s extradition if they have been, will be or could be sentenced to death. I hope that clarifies matters that naturally concerned the noble Lord, Lord Collins, and the noble Baroness.

On the broader issues raised, the Government of Kuwait respect our position on this matter and we have accordingly included provisions in the treaty before both Houses that make it entirely clear.

On human rights, the noble Lord, Lord Collins, referred to the position of LGBT persons in Kuwait. I was looking at the grounds for refusal in the treaty.

[Lord Collins of Highbury]

I am sorry to interrupt the Minister. I did read out the grounds and it did not seem clear that sexual orientation was covered, although there is a sentence referring to “sex and other”. Could she clarify that?

[Baroness Goldie]

I would take great pleasure in doing that. I am just talking about the first paragraph, Article 3(1)(a), which I think the noble Lord read out. My understanding is that the specific reference to sex, or indeed to status, is intended to ensure that persons are not wrongly persecuted for their sexual orientation and that extradition under this treaty shall be refused in any such cases. I hope that that clarifies the understanding of the position.

[Lord Cashman (Lab)]

Can I seek a further reassurance? As regards the reference to “other” status, as in the UN Declaration of Human Rights, in my dealings with some African, Caribbean and Pacific countries I have noted that some significantly fail to recognise that “other” status includes sexual orientation.

[Baroness Goldie]

I have described the grounds on which extradition under this treaty would be refused. As your Lordships will be aware, the exercise of extradition is a matter for both the Home Secretary and the courts. The courts must consider the actual application. That is our interpretation of what the phrasing means.

[Lord Collins of Highbury]

My question did not relate specifically to crimes because of somebody’s sexuality. There can be circumstances where, if someone is being sent back to a country where homosexuality is illegal—and certainly homosexual acts are—and it becomes known that that person is gay, they might be accused or charged with one crime but could then be subject to treatment because of their sexuality. It is that issue that I sought clarity on.

[Baroness Goldie]

I will write to the noble Lord in further detail. This will come before the House again in the form of the affirmative statutory instrument, but I am very happy to seek further clarification on the points being raised to see whether I can go further than what I have before me this evening.

The noble Lord, Lord Collins, and the noble Baroness, Lady Northover, also raised the matter of the decision in the cases of Alexanda Kotey and El Shafee Elsheikh. That was not an extradition of individuals. It was a decision by the Home Secretary to provide assistance, including mutual legal assistance. The decisions are taken in accordance with the Government’s overseas security and justice assistance guidance, which requires an assessment of human rights risk, including the death penalty. Overseas security and justice assistance guidance has always permitted the Government not to require assurances in mutual legal assurance requests where there are strong reasons not to do so. I reiterate that the UK remains opposed to the death penalty in all circumstances as a matter of principle.

I think that the noble Baroness, Lady Northover, raised the particular matter of Al Rajaan. I cannot comment on individual cases, I am afraid; that is not the policy of the Government. On the serious issue of the 2017 executions, I repeat the Government’s position on the death penalty: we believe that the death penalty undermines human dignity, there is no conclusive evidence of its deterrent value, and any miscarriage of justice leading to its imposition is clearly irreparable. We raised our concerns with the Government of Kuwait at the time and expressed our disquiet that this should have taken place. Again, regarding potential extraditions, we do not comment on individual cases.

The noble Baroness, Lady Northover, raised the matter of other Gulf states. As noble Lords have pointed out, extradition is clearly possible on a case-by-case basis with all countries, regardless of treaties. The Government discuss mutual legal assistance and extradition with partners in the course of bilateral relations. The extradition treaty was negotiated in its own right without linkage to other policy areas. There is a word here that I cannot make out because the writing in the Box is, I am afraid, not of the clarity that I was taught to observe in primary 1 in my Scottish school. I beg the Box’s pardon. It was laid in Parliament as part of a judicial co-operation package alongside a mutual legal assistance treaty. I hope that that reassures the noble Baroness.

In conclusion, we are committed to the global campaign to abolish the death penalty and continue to maintain this position in discussions with the Government of Kuwait. This forms part of the advice and support, which I mentioned earlier, that we provide as Kuwait continues to develop its democracy, governance and human rights frameworks. We share with Kuwait a commitment to pursuing justice internationally.

[Baroness Northover]

Perhaps when the Minister writes to the noble Lord, Lord Collins, she might also address some of my other questions with a bit more precision—perhaps she will be able to read the writing of the people in the Box. I would be grateful if she did that.

[Baroness Goldie]

Yes, of course. I will be very happy to do that. As your Lordships are aware, I do look at the Official Report and try to address any points I may have overlooked in the debate. I certainly undertake to do that.

19:30

[Viscount Waverley (CB)]

In the spirit of writing, perhaps the Minister might wish to reflect on this. Given that she has suggested that this is going to come before the House again, I have been reflecting on it during the debate but I have not fully worked out my thinking. Is there any question in relation to the European arrest warrant? Some odd cases have come through the system where the system has been somewhat abused, if I may say, by certain states. Is there any possibility that European arrest warrant issues will come into play and be relevant to this? People are shaking their heads but perhaps the Minister might wish to respond.

[Baroness Goldie]

It is a rare pleasure to receive comfort from the Liberal Democrat Benches. I understand from the noble Lord, Lord Paddick, that this does not appear to be germane to the issue under discussion—but I hear what the noble Viscount says.

[A noble Lord]

Kuwait is not in the EU.

[Baroness Goldie]

Yes, I think the noble Viscount acknowledges that.

[Viscount Waverley]

It was a question of whether any other state within the European Union could come into play and make an issue in relation to the European arrest warrant that might affect the process.

[Baroness Goldie]

I can see a whole debate being possible on this issue alone. I hear what the noble Viscount is saying and we will certainly bear that in mind when we come to a later state of the procedure.

I am sure your Lordships will have realised that the whole purpose of this is to ensure that criminals are brought to trial. But it also means, as noble Lords have rightly pointed out, ensuring that our judicial system maintains its full respect for human rights and protection of those procedural safeguards necessary to ensure the fairness of our system. Our extradition framework, including this treaty, achieves a balance of these fundamental principles, and we look forward to the success of our future co-operation with Kuwait on this crucial subject.

In conclusion, I thank the noble Lord, Lord Collins, for introducing this very illuminating debate, which was a helpful prelude to the debate that will take place when the affirmative instrument comes to the Chamber. It has been a useful opportunity to listen to the exchange of views and I thank noble Lords for their contributions.

[Lord Collins of Highbury]

I thank the Minister for her response. I have attended one other debate on the treaty. The noble Baroness who moved that Motion exercised her right of reply and, as there is no speakers list, I will do the same.

I just want to reassure the Minister that I do not see this treaty as something bad or regrettable. It is an opportunity. As the Minister says, individual cases can be considered anyway by the courts, but in negotiating and agreeing this treaty, the opportunity was there, as she rightly said, to raise issues about due process and human rights and our concerns over the use of the death penalty. I am somewhat reassured by her comments in this regard.

The Minister said that the purpose of the treaty is that no one should be able to avoid justice—absolutely right. We certainly need to ensure that globally people cannot act with impunity. She knows that I have raised this point on many occasions. No one should avoid justice, and justice must be served and be seen to be served. That is why it is really important for the principles we have raised in the debate to be heard. I am grateful to the noble Baroness, Lady Northover, for her contribution. It is absolutely right that we see these things in context and see them as an opportunity to bring change. The fact that there are still countries in this world where being gay is subject to execution is absolutely disgusting and we need to challenge that.

Motion agreed.

Data Retention and Acquisition Regulations 2018

Tuesday 30th October 2018 Lords Chamber

Motion to Approve

19:35

Moved by

[Baroness Manzoor]

That the draft Regulations laid before the House on 28 June be approved. Considered in Grand Committee on 24 October.

[Baroness Manzoor (Con)]

My Lords, the other place approved these draft regulations on 15 October and they were considered in great detail in Grand Committee on 24 October. That was followed by a letter on 25 October to all noble Lords who took part in the debate. Of course, a copy of that letter was also placed in the Library.

The regulations bring into force the draft communications data code of practice and amend the Investigatory Powers Act—IPA—to comply with a European Court of Justice ruling. The ruling requires that there must be independent authorisation for requests to access communications data and, in relation to crime, where the intrusion into private lives would be serious, the offence justifying that intrusion must also be serious. The High Court declared that the Act must be amended by 1 November, which is when these regulations are due to come into force. Therefore, it is important that they are approved today.

I will explain what these changes will mean in practice. To clarify, we are talking about communications data—information such as the name of someone subscribing to a mobile phone contract, the time a call was made or the number that was dialled—but not the content of any calls or messages. At the moment, a police officer investigating any crime can request any type of communications data to support their investigation if it is necessary and proportionate to do so. A request is sent to a designated senior officer who, having consulted a specialist in the use of communications data, decides whether or not to authorise the request.

The regulations introduce additional safeguards to the process. The police officer will no longer be able to request any type of communications data in the investigation of all crimes. Instead, the officer will be able to access only the more intrusive types of communications data—such as where the person was when making a call—in the investigation of serious crimes. Instead of the request being authorised internally, it will now be sent externally to an independent organisation overseen by a Court of Appeal judge. The staff of this independent organisation—the Office for Communications Data Authorisations, or OCDA—will assess the request and, weighing up all the factors relating to necessity, proportionality and seriousness, decide whether or not to authorise it. Only once this independent authorisation has taken place can the officer acquire the data.

There will be cases—such as a missing child, a terrorist attack or another threat to life—where communications data must be accessed more urgently than the new regime will allow. The regulations and code of practice, therefore, include provisions for such circumstances, allowing internal authorisation by a designated senior officer, but make it clear that such authorisations will expire after only three days— not 30 as with ordinary authorisations—and all urgent requests will be reviewed by the Investigatory Powers Commissioner’s office; that is, the OCDA. Your Lordships will see that these regulations are about strengthening safeguards, limiting the availability of communications data to public authorities and ensuring that when it is made available, that happens only after proper independent scrutiny.

When we debated the regulations in Grand Committee last week, the noble Lord, Lord Paddick, raised concerns that the definition of serious crime in the regulations does not abide by the ruling of the European Court of Justice that I have already mentioned. I strongly disagree. All offences that meet the serious crime definition, and pass the tests of necessity, proportionality and seriousness set out in the code of practice, will in fact be serious and warrant the use of communications data in their investigation.

A higher threshold would not allow public authorities to investigate such offences as harassment, stalking, sexual communication with a child, sending grossly offensive messages and contempt of court among others. The Government believe that these are serious and that communications data should be available in their investigation. They are certainly not viewed as trivial by the victims.

The European Court of Justice itself, in its recent ruling on a Spanish case, Ministerio Fiscal, made it clear that a higher level of intrusion into private lives in accessing different types of data must correlate with the seriousness of the offence being investigated. The more intrusive the data request, the more serious the offence must be. Legislation alone cannot give effect to this, and I ask noble Lords to see these measures as a package, with independent authorisation, a legislative threshold that sets clear limits, and the code of practice, which involves considerations of necessity, proportionality and seriousness. As a result, less intrusive data types will still be available when investigating all crime types, but the more intrusive communications data, such as location data, will be accessed only in the investigation of serious crime. Being able to intercept—bug—phones will continue to be available only for the investigation of offences meeting the higher seriousness threshold already in the Investigatory Powers Act.

We consider the regulations to be very much in the spirit of the European Court of Justice ruling. We already have strong safeguards and oversight in relation to our investigatory powers. If an individual believes that their communications data have been accessed unlawfully, they can make a complaint to the Investigatory Powers Tribunal, which is independent of government and consists of senior members of the legal profession. The regime as a whole is overseen by the Investigatory Powers Commissioner, a Court of Appeal judge independent of government. Moreover, the Act as a whole must be reviewed after five years, allowing us to consider whether any changes must be made.

The Government have carefully considered the European court’s decisions in this area and have proposed amendments in good faith, ensuring that this important investigative tool is available to the police for crimes whose impact on the victim is considerable. The regulations are about increasing, not reducing, safeguards. If they are not passed into law by 1 November—Thursday—the new additional safeguards I have talked about will not come into force. I beg to move.

Amendment to the Motion

Moved by

[Lord Paddick]

At end insert “but that this House regrets that the draft Regulations fail to comply with the spirit of the ruling by the Court of Justice of the European Union by failing to restrict the use of communications data to serious offences.”

[Lord Paddick (LD)]

My Lords, I first remind the House that I was a police officer for over 30 years and that— contrary to popular belief—my certificate of service says that my conduct was exemplary. I acknowledge the importance of communications data in the investigation of serious crime, as the Minister has set out. I also welcome the independent authorisation provisions contained in these regulations, as far as they go.

Secondly, may I give the House some background on the history of the passage of these regulations through this House? At a meeting with the Minister of State for Security and Economic Crime, the Minister of State for Countering Extremism and officials almost three weeks ago, I asked for an explanation of the definition of serious crime in these regulations, which is significantly different from the definition in the Act under which the regulations are made. The Minister for Security was unable to offer an explanation, but undertook to find out and get back to me.

19:45

Having heard nothing by the day before the regulations were to be debated in Grand Committee, I alerted the Government to the fact that, in the absence of any explanation, I would seek to oppose the regulations when they reached the Floor of the House. At 8 pm the night before Grand Committee, the Minister of State for Countering Extremism called me to find out what my objections were. I repeated my main concern, as clearly expressed in the meeting with Ministers and officials on 10 October, and she undertook to provide me with a copy of the relevant part of the Minister’s opening speech in Grand Committee. This was received at 10 am on the day of the Grand Committee debate.

Turning to the regulations, in the Investigatory Powers Act 2016—the Act of Parliament under which these regulations are made—serious crime is defined as offences for which a person over 18 with no previous convictions can reasonably be expected to receive a custodial sentence of three years. In other legislation currently before the House, the Counter-Terrorism and Border Security Bill, the definition of serious crime is the same. An offence for which the expected custodial sentence is three years’ imprisonment without any previous convictions is not a maximum sentence of three years. Take shoplifting, for example. The maximum sentence for theft is 10 years in prison, but someone stealing a can of beans from Tesco could not be expected to be sent to prison for three years.

The regulations not only lower the bar to a minimum of 12 months’ imprisonment—down from three years—but, by defining serious crime as an offence for which someone is capable of being sentenced to 12 months, mean a maximum sentence of 12 months or more, a much lower threshold than the definition in the Act. Furthermore, it disregards any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions, as opposed to the Act, which has regard to such restrictions.

The Minister in Grand Committee talked about preventing,

“data being acquired in the investigation of trivial offences”.—[Official Report, 24/10/18; col. GC 42.]

The CJEU judgment talks about,

“the objective of fighting serious crime”,

not the prohibition on using communications data to investigate trivial offences. The CJEU allows member states to define a serious offence as entailing three years’ imprisonment, or a maximum sentence of 12 months.

However, the regulations go even further. They include any offence committed by a body corporate and any offence that involves, as an integral part of the offence, the sending of a communication or a breach of privacy. “Any offence” clearly does not differentiate between a serious offence and an offence that is not serious.

As has been said, since Grand Committee the Minister has written to noble Lords who took part in that debate. She reiterates that communications data can be acquired only when the offence being investigated is a serious crime. She refers to the European Court of Justice’s ruling in the Ministerio Fiscal case, which the Minister cited earlier. I quote from that ruling:

“The court concluded that the offence must be serious to justify a serious level of intrusion involved in accessing communications data (i.e. where the data would allow precise conclusions to be drawn concerning the private lives of the persons concerned)”.

The details of every phone call made and received on someone’s mobile phone, the geographic location of that phone on any particular day or time and the websites that a person has accessed either on their phone or computer in the past 12 months are all communications data, and accessing them amounts to a serious level of intrusion.

The letter tries to justify offences that involve as an integral part the sending of a communication or a breach of a person’s privacy, and it goes on to say that “this carve-out”—whatever that means—

“seeks to capture offences such as online stalking or harassment which law enforcement advise have the potential to escalate to more serious offences such as assault, and this has been shown by experience to often be the case. Such offences can be incredibly distressing and alarming to the victim”.

Let me unpack that a bit. First,

“offences ... which have the potential to escalate to more serious offences”,

clearly implies that initially they are not serious offences. Secondly, these offences,

“can be incredibly distressing and alarming to the victim”.

As soon as such offences reach a level of involving fear of violence or serious alarm or distress, they amount to an offence under Section 4A of the Protection from Harassment Act 1997, which attracts a maximum prison sentence of 10 years. That is clearly within the proposed 12-month maximum sentence limit in these regulations, and arguably within the three-year anticipated custodial sentence in the existing definition of “serious offence” in the Investigatory Powers Act. The CJEU explicitly states that the use of communications data must be restricted to the investigation of serious offences, yet these regulations define any crime as serious if committed by a body corporate or if it involves the sending of a communication or a breach of privacy, when by any reasonable definition some of these offences will not be serious.

Two questions therefore remain: why have the Government tried to twist the definition of “serious offence” to include offences that are not serious, and how do they expect to get away with it, bearing in mind that these regulations are a response to a CJEU ruling?

In Grand Committee the Minister explained:

“We have worked closely with the operational community to consider the importance of obtaining communications data against a range of offences, with a particular focus on cases where it was anticipated that communications data will be an important—or indeed the only—investigative tool”.—[Official Report, 24/10/18; col. GC 42.]

I understand the difficulty of investigating some low-level offences if the police cannot access communications data, but the CJEU has ruled on where the line needs to be drawn between preventing unreasonable intrusion into citizens’ privacy and law enforcement, and it drew that line at serious crime. The Government cannot redefine “serious” as any offence involving the sending of a communication or a breach of privacy to get around the bar that the CJEU has set, just because the police say it is an important investigatory tool.

The Minister tried to reassure the Committee by saying that in every case the tests of necessity and proportionality would have to be passed. Indeed, the use of communications data in any case where it was not necessary or proportionate would in itself be a breach of the Human Rights Act. However, the CJEU has said those tests are not sufficient. In addition to being necessary and proportionate, the use of communications data must be used only,

“with the objective of fighting serious crime”.

So how do the Government expect to get away with this clear flouting of the spirit of the CJEU judgment? Presumably they hope that by the time these regulations are challenged in the courts, we will have left the EU and the jurisdiction of the CJEU. This case shows the danger that our civil liberties are in if we leave the EU.

I will spare the House the issues around corporate offences; the way in which these regulations could jeopardise our data protection adequacy status; whether self-authorisation in urgent cases complies with the CJEU judgment requiring independent authorisation; whether there should be a requirement that any retained communications data should be kept within the EU; and whether the regulations should include a requirement to notify the person that their communications data has been accessed or used, as required by EU law—despite my having received no meaningful response from the Government on these issues. I look forward to the Minister’s response. I beg to move.

[Baroness Hamwee (LD)]

My Lords, when Alice was through the looking-glass and having a conversation with Humpty Dumpty, she remarked that he was “exactly like an egg”. He said he found this “very provoking” and Alice explained that he looked like an egg, not that he was one. Their discussion on semantics included the following exchange:

“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things’”.


We have had what we regard as a novel and inappropriate definition of “serious”. There is a current movement, which I welcome, towards language in legislation being as close as possible to normal-speak, giving words their natural meaning. Sometimes, of course, terms need definition, as I accept “serious” does in this context. However, an offence that could give rise to a 12-month sentence is not what most people would regard as serious in comparative terms—I put it that way because I will not be the only person in the Chamber tonight who thinks all crime is serious—and this is what the European court pulled us up on.

I think people will be even less inclined to accept the definition in the case of someone not previously convicted of anything or—it does not say so but presumably this is the case—convicted and given a suspended sentence. Stalking and harassment have been prayed in aid. I for one will not be characterised as not regarding these as serious, but I ask what other areas were, to quote the Government,

“highlighted by law enforcement agencies”.—[Official Report, 24/10/18; col. GC 42.]

Maybe those are the ones that we have already heard about; I do not know. I appreciate that these behaviours often escalate but they are not the only behaviours or offences that can do so. If there is an issue of legislation regarding an offence and the sentence that it may attract, we should address it head-on. The Minister referred in the previous debate to the right of citizens to be protected from crime and terrorism. I have not read through all the terrorism legislation but she may be able to help me: are there any terrorism offences where the sentence is as low as a year?

She said that the regulations will prevent data being acquired in the investigation of trivial offences, and she mentioned that again today. I think this confuses categories of crime, which are what underlie possible sentences, and the particular infringement, which may be anywhere on a spectrum and the court will give its view in passing sentence as to where on that spectrum the test should be. I accept that there are tests of necessity and proportionality and that these are essential reference points for lawmakers and the commissioner, but it is harder for individuals who consider their privacy to have been invaded to look to these in an effective fashion.

My noble friend said that he would not mention corporate bodies and then rather effectively did so. I do not think the inclusion of these has been fully justified. There has been no attempt to distinguish between levels of seriousness in their case. I thought it was ironic that a crime that will be subject to—or qualifies for, if you like—the regulations may be an offence involving a breach of a person’s privacy.

I support my noble friend whose amendment to the Motion—although he opposes the regulations—is, in fact, to regret them, not to oppose them, and not to seek to delay them beyond 1 November.

20:00

[Lord Rosser (Lab)]

My Lords, the debate on these regulations took place last Wednesday in the Moses Room, when concerns were expressed about the definition of serious crime in respect of communications data acquisition and retention as being for offences carrying a maximum of 12 months’ imprisonment. The definition also covers any crime by a body corporate or any offence that involves as a key part of it,

“the sending of a communication or a breach of a person’s privacy”.

Since then the noble Lord, Lord Paddick, has put down the amendment to the Government’s approval Motion, which we are now considering.

The reason for the speed in considering the matter further so soon after last Wednesday’s debate is that the Government seek to have the draft regulations approved by this Thursday. If they are not, we will be in breach of a court order following a ruling of the European Court that the relevant parts of the Investigatory Powers Act 2016 are incompatible with European law. The draft regulations have already been discussed in the Commons, where we the Opposition said that we did not oppose the changes. That remains our position and for that reason we will not be supporting the noble Lord’s regret amendment to the Government’s approval Motion if he decides to test the opinion of the House.

Since last Wednesday the Minister, as promised, has written to noble Lords who participated in the debate, in the light of the concerns expressed, setting out the Government’s position on their proposed definition of serious crime in the context of retaining and acquiring communications data. They were valid concerns, which the noble Lord, Lord Paddick, has just reiterated in very clear and emphatic terms. In a nutshell, the Government’s argument, both tonight and in the letter of 25 October, is that the draft regulations remove a power from the police to use data to investigate non-serious crimes and provide additional safeguards and restrictions on the retention and acquisition of communications data in respect of the Government’s definition of serious crime. The changes provided for in the draft regulations were prompted by the court judgment on the incompati- bility with European law of the relevant parts of the Investigatory Powers Act 2016. The Government believe that what they have proposed in the draft regulations meets the terms of that court judgment.

The Government’s second argument is that if they used the definition of serious crime that exists in Section 263 of the Investigatory Powers Act in relation to interception powers in respect also of retaining and acquiring communications data which the Government regard as less intrusive, it would mean that the ability to investigate some crimes considered to be serious would be compromised. The Government also referred to the code of practice and the considerations that have to be taken into account when assessing seriousness, the independent authorisation of communications data requests by the Office for Communications Data Authorisations and the oversight of public authorities and the OCDA by the Investigatory Powers Commissioner.

In theory, these provisions ought to be enough to prevent the definition of serious crime from being abused through ending up with communications data authorisation in respect of crimes that could not be regarded as serious in their nature by any stretch of the imagination. However, there have been too many examples of powers which have been provided by statute in good faith to address genuine concerns in specific areas which have then been abused by being applied or used by those given the authority to deploy them in ways that were never intended or envisaged. Frankly, no one can give a cast-iron guarantee that this could not happen in relation to the use of the provisions in these draft regulations, which were designed to address a court judgement and which may or may not stand up to further judicial scrutiny.

The Minster says in her letter:

“I recognise that some noble Lords may consider that our amendments do not go far enough to limit the retention and acquisition of communications data to serious crime. That question is subject to ongoing legal proceedings”.


The Minister went on to say that the Government would be strongly defending their approach in the courts, but she added:

“Should the courts not agree with our position we would of course move to rectify the regime”.


We understand the concerns being voiced by the noble Lord, Lord Paddick, but likewise—as I am sure the noble Lord does, too—we understand the reasons for these draft regulations and the desire to have provisions that will assist in bringing to justice those who have committed serious, unacceptable acts. The issue is whether the regulations meet the terms of the court judgment—a matter that will presumably be determined in the courts—and whether the authorisation and oversight arrangements and procedures, if they survive legal proceedings intact, will prove strong enough to prevent the powers, the purpose of which we understand, being misused. The Government maintain they will be strong enough, but only time and experience will show. The Government now have a responsibility to make sure that their assurances over how the regulations in reality will be applied and used are adhered to and delivered in full. I am sure that plenty of people will be watching to see whether that happens. As I said at the beginning, we did not oppose the changes provided for in these regulations in the Commons, and that remains our position.

[Baroness Manzoor]

My Lords, I am glad that we have been able to debate these regulations so thoroughly and consider carefully the proposed amendments to the Investigatory Powers Act. I thank the noble Lord, Lord Rosser, for his very balanced approach to this important issue, and the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for their considered view on the issue of what constitutes serious crime. If I may refer them back to my letter, the position that I outlined there remains the Government’s position.

I will briefly say a few things, but I am conscious that almost everything that has been said tonight was said in Grand Committee—I can see the noble Lord, Lord Paddick, nodding—and I have followed it up in writing to all noble Lords who took part in that debate. I again apologise for any confusion that took place regarding the earlier part of the issue that the noble Lord, Lord Paddick, raised, in relation to the meetings with the Ministers of State. I was not party to those discussions, so I apologise that I am not in a position to comment, but I hope that my letter went some way to addressing the issues that were raised with me in Grand Committee.

I will say a few things again for clarity. These regulations bring in additional safeguards. They ensure that the more intrusive requests for communications data will be accessed only in the investigation of serious crime and that the vast majority of requests by public authorities to access all communications data—approximately 200,000 requests are made per year—must be authorised by an independent organisation overseen by a Court of Appeal judge. There are very clear safeguards in place. We are taking powers away from our law enforcement agencies in the interests of privacy.

We are, of course, mindful of our duties to protect the public and properly to investigate crimes that they suffer. A balance must be struck and these regulations strike that balance correctly. As I have said, noble Lords may have differing opinions on whether our definition of serious crime in this context is appropriate. Let me be clear. I do not want our police to be unable to effectively investigate an individual sending grossly offensive messages to someone, causing huge distress to the victim who certainly considers the offence to be serious. I do not want to damage the effectiveness of our judiciary by limiting the ability of the police to investigate contempt of court. These are serious matters.

I refer the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, to page 2 of my letter. It is not just the sentence that the person who commits the crime receives. That is important in terms of the 12 months, but it is not the only issue. As the code of practice sets out clearly in paragraph 3.33, a range of factors should be considered, including but not limited to the circumstances of the case, the offender, the impact on the victim, the harm suffered and the motive for the crime. I hope that that goes some way to addressing the concerns that noble Lords raised.

We have a comprehensive code of practice which provides extensive guidance on what considerations must be taken into account by individuals applying for and authorising requests for communications. As I have said, each and every request must be assessed in relation to necessity, proportionality and seriousness. We are strengthening the safeguards and oversight of a regime already world-leading in these aspects, and we are creating a regime that is compliant with EU law.

I am grateful to Members of the House for their time in ensuring that this has been such a valuable and high-quality debate. We take these issues very seriously. I would now like the regulations to be approved and I commend them to the House.

[Lord Paddick]

My Lords, I am grateful to the noble Baroness. It is not primarily about the definition of serious crime being an offence punishable by 12 months’ imprisonment or more. It is about the fact that it goes beyond that to include all offences, whether or not they are capable of a 12-month sentence, that have communication as an integral part, all corporate offences, whether or not somebody can be given a 12-month sentence, and all offences involving a breach of privacy. Clearly that is going beyond the definition of serious crime: it includes lots of offences that are not serious.

I am not reckless enough to jeopardise these regulations by asking noble Lords to vote against approving them, but I hope that noble Lords will agree that the Government’s attempts to get round the CJEU judgment is to be regretted, and I wish to test the opinion of the House on my amendment to the Motion.

20:14

Division 1

Ayes: 64

---

Liberal Democrat: 60
Crossbench: 2
Independent: 1

Noes: 158

---

Conservative: 141
Crossbench: 9
Democratic Unionist Party: 4
Ulster Unionist Party: 2
Independent: 2

Motion agreed.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

Committee

20:26

Clause 1: Extension of period for Executive formation

Amendment 1 not moved.

Clause 1 agreed.

Amendment 2

Moved by

[Lord Adonis]

2: After Clause 1, insert the following new Clause—
“Executive formation: appointment of a mediator
(1) During the period while there is no Executive, the Secretary of State may specify in regulations the appointment of a mediator to facilitate formation of an Executive.(2) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before both Houses of Parliament by 1 December 2018 and approved by a resolution of both Houses within the period of 10 sitting days beginning with the day on which the instrument is laid.(3) For the purposes of this section, a “sitting day” means a day on which both the House of Commons and the House of Lords are sitting.”

[Lord Adonis (Lab)]

My Lords, I spoke to this amendment at Second Reading and I will not say anything further, as I want to give the Minister an opportunity to say more about the progress which he and the Secretary of State are making with the parties in Northern Ireland on identifying and appointing a mediator and what the timescale for that might be. This is clearly of huge importance to our debate and to progress towards establishing a new Executive in Northern Ireland. I beg to move.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, thank you for bringing this matter before the Committee. I will make some general points and then some specific ones. The amendment would place the question of a facilitator or mediator in the Bill. We can do that without it going on the face of the Bill. As I indicated earlier today, we now intend to move from the statement which I gave the previous time I addressed your Lordships—that this is part of the mix—to stating that we are now actively consulting with the parties in order to move this matter forward. All elements of the timescale are not yet fixed but I can say that this will be moving forward within the realisable timetable that we have set for the overall movement of the parties gathering. In order for this to be meaningful, such an individual would have to be in play from the earliest stages, in order to move the most intensive form of dialogue forward. We hope and intend that such an individual would be able to act in a much more expansive role than just as a chair. I would rather use the word “Sherpa” in its European context; someone who can be part of the play and engage directly with each participant both behind and before the scenes.

We hope to move this forward with the consent of all the parties involved to make sure that it is a meaningful contribution. I cannot comment further on the individuals who might be in scope for this role, but others have already sent information through to the department, and we are in the process of sifting and examining it in some detail.

20:30

[Lord Empey (UUP)]

My Lords, we have heard the suggestion of the noble Lord, Lord Adonis, that we have a mediator, but we are not comparing like with like. Going back to the time of George Mitchell, we have to remember that everything—the whole constitutional process, from scratch—was on the table. My fear is that if you appoint a mediator, they are not going to be able to confine their activities to the narrow issues that brought the Executive down. I believe Sinn Féin would want to completely open up the whole process, putting on the table the constitution, the principle of consent—all those things. I can see where people are coming from, but it seems to me that it is not beyond the ability of the parties to find a mechanism within themselves whereby talks could be held. To get a mediator to come in to deal with the Irish language Act and the RHI—the two things that brought the Executive down—does not seem particularly realistic.

The agenda would grow and grow, and the process could go on for years. Everything will end up on the table, including the constitution and the principle of consent. I do think we have to try to keep as open a mind as possible, but there may be a difference between a mediator and a facilitator, or a question as to whether the parties can find a mechanism among themselves; but bear in mind where this could go. If some people want to open up a process, there is no better place for Sinn Féin to be than in a process. They are serial negotiators; they want to continue to negotiate, which avoids having to take any tough decisions, particularly decisions in government. We have been warned by others that there are many who would take the view that Sinn Féin will do nothing until the Irish election is over. They do not want to have to take any tough decisions in government, which they would have to do because of the arithmetic, if nothing else.

Bear that in mind when considering the options before us. I would caution that that needs to be taken into account.

[Lord Adonis]

My Lords, the Committee is listening with great attention to the noble Lord. Would he care to elaborate on the distinction between a mediator and a facilitator?

[Lord Empey]

I am not personally advocating either, but a mediator is somebody who is negotiating between the parties. A facilitator may be somebody who simply organises the meetings, the paperwork, the breakout sessions and so on. A mediator is playing a Mitchellesque role in meeting the parties, negotiating, putting papers to them and so on. I see it as a step down, if you like, in those terms. I am not personally convinced. If people are not mature enough at this stage, after all these years, to arrange meetings among themselves—and we did have one, admittedly, that was an initiative by one party. I do not believe that we are so far down the road that we could not arrange meetings between ourselves. If the will to talk is there, surely it is not beyond the bounds of possibility that the parties can arrange that among themselves. We have an Assembly Speaker and we have Deputy Speakers. They could chair the meetings. All parties are represented, more or less. There are ways in which it could be done, but believe me, once you get into a process with a mediator, it could go on for years.

[Lord Adonis]

My Lords, I listened with great attention to the noble Lord, but I listened with equal attention to his speech at Second Reading in which he said that no progress was being made whatsoever in establishing an Executive, and that it was about time that some was made. If it has not been done by the process he has just suggested—the parties coming together—it is hard to see how some external stimulus could lead to a less advantageous situation than the current one.

[Lord Empey]

I take the noble Lord’s point, which is pertinent. However, do not forget that if we keep to this three-stranded model, we have a Secretary of State and, where appropriate, an Irish Foreign Minister, and in the proper format there is no reason why they cannot be engaged. I am saying that maybe it would be an incentive if the Secretary of State made it clear that a process was starting and that the parties understood that if they were not prepared to participate in that, perhaps she and others would start to take decisions. I am not trying to be obstructive or rule anything out. I am simply saying, be careful. It sounds like a good idea, but bear in mind that people who are serial negotiators—they have been doing this for 25 or 30 years —will put things on the table and open the whole thing up. My only worry about this is that it just postpones the decisions even further, although I understand fully the noble Lord’s good intentions.

[Lord Murphy of Torfaen (Lab)]

I will intervene for a few seconds. The issue is that because the “talks” and “negotiations” have been notoriously unsuccessful over the last couple of years, there has to be some form of structure—although I agree with the noble Lord, Lord Empey, that it has to be on a very restricted number of issues, otherwise you go back to a Good Friday agreement mark 2, and we do not want that. You want to work within the agreement but have some sort of structure. If there is a person who could organise that structure and be acceptable to all the parties, I see nothing wrong with that. I understand that if you expand it beyond the current issues, that could be difficult. However, there are a number of issues beyond those the noble Lord, Lord Empey, mentioned—for example, the Irish language and equal marriage. All those things can be on the table, but it is about getting some form of structure which simply does not exist at the moment. Anything that could help that would be useful.

[Lord Adonis]

My Lords, I invited the Minister to set out the Government’s thinking, which he did, clearly, and I took him to say that they are minded to move towards some form of external mediation at some early date. I take that as a significant statement, and on that basis, I am content to withdraw the amendment.

Amendment 2 withdrawn.

Clause 2 agreed.

Clause 3: Exercise of departmental functions during period for Executive formation

Amendment 3

Moved by

[Lord Hain]

3: Clause 3, page 3, line 7, at end insert—
“( ) The guidance must direct senior officers of Northern Ireland departments, giving due regard to advice from the Northern Ireland Commission for Victims and Survivors, to prepare a scheme to provide a pension to those who are regarded as seriously-injured arising from an incident associated from the conflict in Northern Ireland.”

[Lord Hain (Lab)]

My Lords, Amendment 3 is in my name and that of the noble Lords, Lord Bruce and Lord Cormack, and, I think, the noble Lord, Lord Bew, indicating Cross-Bench support. I will also speak to Amendment 13A in my name and that of the noble Lord, Lord Bruce.

When I spoke in March, I raised the plight of the 500 or so people severely injured because of the Troubles in Northern Ireland. The overwhelming majority were injured through no fault of their own, and face growing into old age desperately unsure about what the future holds for them. Because of their injuries, most of them were unable to build the kind of occupational pensions that they would otherwise have had. Just recently, one of the WAVE Trauma Centre’s injured group, which has been campaigning for a special pension, received a final settlement on her pension contributions in the form of a lump sum. It was taxed at 20%. She received a magnificent £25.39, which, frankly, is an insult to somebody in her situation.

Jennifer had her legs blown off in a no-warning IRA bomb in 1972, when she was 21 years of age. Paul, who was 21 when loyalists shot him six times because their target who lived next door did not turn up, is paralysed from the waist down. He describes the constant pain he lives with as like,

“sitting in a pool of lava”.

Every two days his carers—his wife and his brother—have to use a colonic irrigation system to empty his bowels into a bucket. That is Paul’s reality.

This especially vulnerable group of victims have had to deal with much more than the physical damage inflicted upon them. Peter was 26 when he was shot and paralysed in a case of mistaken identity in 1979. His wife, his childhood sweetheart, was tormented by misplaced guilt because she opened the door and,

“let evil into their home”,

as she described it. Peter had to watch her drink herself to death by the age of 51.

Mary was 17 when she was paralysed in a drive-by sectarian shooting. She was told that a realistic life expectancy was that she would not see her 32nd birthday. More than 40 years on, she is still here. She has had three shoulder replacements because of the strain on her upper body, being confined in a wheelchair. She has had to pay for these privately because if she joined an NHS waiting list she would be immobile.

Those who suffered severe physical injuries during the Troubles in Northern Ireland are, in many ways, the forgotten victims of the conflict. Perhaps there was an assumption that they had been looked after at the material time with generous compensation payments that would see them financially secure for the rest of their lives, but that simply did not happen. Many of the severely injured have lived much longer than the life expectancy assumptions made at the time. Most of the severely injured sustained their injuries during the 1970s and 1980s. Many predated disability discrimination legislation so, even if they could have found work, the chances that the workplace would have been adapted to their needs—for example, for those confined to wheelchairs—were more than remote. All they want is a degree of modest financial security so that they—and in many cases their carers—can live the rest of their lives with as much independence and dignity as possible.

To that end, I urge the Government to act swiftly to address this cruel legacy of Northern Ireland’s violent past and provide support for the severely injured through the provision of a special pension. Getting the Government both to recognise and to act upon that obligation is the purpose of these two amendments. In terms of the level of pension, the then Victims Commissioner for Northern Ireland suggested a figure of £150 per week or around the current state pension provision. Given the age profile, a lump sum for those aged over 75 would probably be more appropriate.

In any event the cost, including the administration of the pension, either by the Northern Ireland Civil Service or through the DWP, would not be prohibitive. This total cost has been authoritatively estimated to be between £3 million and £5 million annually. These figures clearly indicate that the pension commitment will diminish through the passage of time, even allowing for some provision for a proportion of the pension to go to the carer when the injured person dies. But for the pension to make a real difference to those who need it, it cannot be counted as income for the purposes of qualifying for existing benefits. That is a very important point. It must be “as well as” and not “instead of”, and be in addition to any other pensions and/or benefits that the injured person either is, or will be, in receipt of.

There is a subsidiary issue to be dealt with in relation to the relatively very small number of people who were severely injured by their own hand, but it is quite wrong that the vast majority who were injured through no fault of their own should be denied support because of a specific political blockage that could and should be resolved. These were not people in the wrong place at the wrong time. They were at work. They were at home with their family. They were having a coffee in a café. They were walking home after an evening at the cinema. They were in the right place, where they should have expected to be safe and secure.

Now is the time for the Government to act swiftly, with I hope wide parliamentary backing, after years and years of this case having no response. That is why I speak to this amendment, which simply seeks that the guidance referred to in Clause 3(3) must direct or, as Amendment 13A puts it, provide for,

“senior officers of Northern Ireland departments, giving due regard to advice from the Northern Ireland Commission for Victims and Survivors, to prepare a scheme to provide a pension to those who are regarded as seriously-injured arising from an incident associated from the conflict in Northern Ireland”,

and for that to be backdated, as Amendment 13A requires, to 1 January 2018. I say that because, if this takes some time to implement—if it requires legislation, as I understand may be the case—there must be certainty that this will happen and that, however long it takes to process, it will be backdated so that at least these victims can have something to look forward to.

20:45

This is an opportunity for the Government to show some real compassion for those who have suffered most. I know from conversations that I have had with the Minister that he is on the side of the angels on this matter. I respect him for that. I think that he is trying to do his best, and I hope that in his response he can take this matter forward. I do not want to make his life more difficult by anticipating and rebutting the Government’s likely official response, at least so far as it has been stated in the other place and elsewhere.

However, we have been told that this is a devolved matter and that the Government cannot undermine the devolution settlement by interfering or, as I would prefer to describe it, intervening. I will come back to the question of whether the plight of the severely injured is in fact a devolved matter or whether it should properly be treated as a reserved matter for the UK Government, like other legacy issues. However, there are precedents for the Government intervening in devolved areas because it has been the right thing to do. Health is devolved to Northern Ireland. Thanks to the amazing work of Charlotte Caldwell, literally arguing for the life of her son Billy, who suffers from life-threatening epilepsy, the Home Office was forced to move on the use of medical cannabis, which is absolutely essential for his and other sufferers’ treatment. The use of medical cannabis is now permitted in Northern Ireland. Did that interfere with the devolution settlement? Presumably not or it would not have happened.

Recently, the Independent Reporting Commission, set up to bring an end to paramilitary activity and to tackle organised crime in Northern Ireland, reported for the first time. Twenty-five million pounds to back the IRC came from the British Government, not from devolved budgets, to pave the way for those involved in paramilitary activity to make the transition from mafia-style gangsterism to being ordinary law-abiding citizens. Apart from a small but highly dangerous number of dissident republicans, the paramilitary activity that the IRC is focused on is pure gangsterism. Indeed, the highly respected former assistant chief constable of the Police Service of Northern Ireland and now chief executive of Co-operation Ireland, Peter Sheridan, argued that these groups should be called paramilitary no longer, but criminal gangs, and I agree. However, this is not a national security issue. Primarily it is a matter for the criminal justice system in Northern Ireland. It is a devolved matter. Criminal justice is devolved yet the Government intervene—absolutely rightly, in my view—to the tune of £25 million. Did that interfere with the devolution settlement? Presumably not.

Injured victims recognise that the paramilitaries who so grievously damaged them have to leave the stage and they do not begrudge this money being used to help Northern Ireland transition, but they wonder how the Government could find this money so quickly when they are told in effect, “Your case is nothing to do with us. Wait for the local politicians to finally bring themselves to discharge the responsibilities for which they were elected, whenever that is—next year, the following year, maybe whenever, if ever”. The reality is that the Government already intervene in devolved matters when it is the right thing to do in the absence of functioning devolved government and a functioning Assembly, and that is as it should be. Indeed, this Bill is a form of intervention.

The Secretary of State made a welcome move in May when she asked the Victims Commissioner to revisit and update her advice on this claim for a pension, and I thank the Minister for his role in that. I have absolutely no doubt that the Victims Commissioner will produce advice that is rigorous, objective, costed and workable, and I hope she produces it soon. No one will be plucking figures out of the air. There will be a template that can and should be speedily implemented.

When the Bill was debated in the other place last week, the Secretary of State said that the Victims Commissioner’s advice would sit on a shelf until devolution was restored. That is, in effect, telling those injured victims that they will not be assisted. Instead, they will be abandoned, as they have been for a very long time. An unarguable case for recognition and reparations has been made for nearly eight years now. For most of that time, there has been devolution in Northern Ireland, and all they have got is tea and sympathy because the question of eligibility in relation to the very small number of those “injured by their own hand” is just too difficult for the local parties to resolve. That is why it should and must be done by this Parliament.

We rightly praise politicians in Northern Ireland who are trying to take it to a better place than it was in when I and other noble Lords, including my noble friend Lord Murphy, were charged with building new political foundations out of the wreckage of a violent past. At the same time, we have to call them out when they dig in behind their entrenched or sectarian positions and refuse to compromise for the greater good of victims, such as those severely injured. So far, the DUP and Sinn Féin remain deadlocked on this issue, and nothing has moved. That is why we must do it for them, so that justice for this most vulnerable and desperate group of citizens can prevail, and when I speak about them I mean the vast majority who were not “injured by their own hand”. The latter can be dealt with separately.

Nevertheless, I firmly believe that the Government’s insistence that this is solely a devolved issue is misplaced and simply wrong. Those campaigning for a pension who were injured through no fault of their own are as much a part of the legacy of Northern Ireland’s violent past as anything else, and the Government are trying to address this. Indeed, it would be hard to find a more physical manifestation of that legacy than Margaret, who has no eyes, pushing the wheelchair of Jennifer, who has no legs. Has the Secretary of State so little compassion for her plight that she will not put the local parties to shame by providing a pension, and quickly? The Government have an overarching responsibility for legacy issues. That is why they are considering responses to their recent consultation paper on legacy issues, for which they have set aside £150 million. It would be absolutely shameful if the people who have suffered so much were told, “We feel sorry for you, but not sorry enough to do anything about it”.

Finally, I wish to say something about the Bill before us that relates directly to the amendment but has wider and deeply worrying implications. I could have made this point at Second Reading, but I make it now. The Government want us to focus on the narrow issue of the supposed clarity given to civil servants in Northern Ireland, in relation to their capacity to maintain public services and keep the business of government ticking over in the absence of an Executive and Assembly. What is seriously concerning is how long the Government envisage this democratic void persisting before anything happens. They do not envisage any movement before March next year, and then an additional five months is built in. It is shocking that the Government do not seem to realise that hoping something will turn up is nothing approaching a coherent political strategy to restore devolution. Sadly, while the Government procrastinate, the condition of severely injured victims deteriorates daily, and many fear that they will die before their plight is acknowledged and support given. Time is not on their side. The Government must show that they are prepared to act in the name of justice and decency, and I appeal for support for this amendment if the Minister resists it.

[Lord Cormack (Con)]

My Lords, I will be very brief. I was delighted to add my name to Amendment 3, which is also in the names of the noble Lords, Lord Hain and Lord Bruce. I do not need to make the case, because it a powerful case that has been powerfully made by the noble Lord, Lord Hain. All I would say is that during my five years as chairman of the Northern Ireland Affairs Committee in another place I met many people and heard many distressing accounts that underline the points made by the noble Lord, Lord Hain. We are talking about people whose futures were destroyed, whose hopes were blighted and whose lives were changed for ever by an evil act and not by anything that they had done to themselves.

As the noble Lord, Lord Hain, said, there were those who were responsible for their own injuries. They deserve some compassion for their terrible mistakes and evil deeds, but that is not what we are talking about tonight. We are talking about those who were blameless and whose need is great, who are advancing in years as they advance in decrepitude, and who are less and less able to do anything for themselves. The only way to help those people, who are as deserving of help as any category I can think of, is for us to do something along the lines advocated in Amendment 3.

I hope that my noble friend the Minister, for whom I have a genuinely high regard and who is a real master of his brief and really concerned with the subjects for which he is responsible, will be able to say enough to prevent any thought of dividing the House. The House should not be divided on an issue such as this. We should be totally united in our determination to do a little for those who have lost so much. I have great pleasure in supporting this amendment.

[Lord Bruce of Bennachie (LD)]

My Lords, I too support this amendment, which I have signed, and which was powerfully moved by the noble Lord, Lord Hain. All I add is that it encapsulates the dilemma that the Bill represents. These are people who have suffered for decades and who are towards the end of their lives, although they have lived a lot longer in many cases than they were expected to, with psychological and physical difficulties. There is a cross-party and, indeed, administrative and political consensus that they should be compensated, but there is no mechanism for doing so because that mechanism has effectively foundered or is in deep freeze. In that situation, to say to these people that they will have to wait until such time as an Assembly is re-established would be heartless in the extreme.

There are two issues. First, it should be within the capacity of the Government to make this happen, either in the Bill or by some other mechanism. The cost is relatively low. Secondly, to suggest that it is not possible to do something as sympathetic and compassionate as this, which has such cross-party support, would be very distressing to people who have been led to believe that their case is understood and that there is a willingness to deliver it, when, because of the incapacity of the political system, they might have to wait too long even to benefit. The amendment is well made and there are one or two others that fall into the same category. If the Minister can provide the assurance, he should really be talking not to the House but to the victims.

[Baroness O’Loan (CB)]

My Lords, I support the noble Lord, Lord Hain, on this issue. We need the issues of the past to be dealt with. This needs to be dealt with by means of a separate ring-fenced budget so that it does not come out of the Northern Ireland budget. Particularly on pensions, I know many of the people to whom the noble Lord referred. I have worked with them and met them, and spoken to and for them. There is an ongoing campaign that is wearing them out. I ask that there be support, as there seems to be right across the House.

I also ask for support for additional resources for trauma services, for the ongoing search for the disappeared, such as Captain Robert Nairac and the 17 year-old Columba McVeigh, and for an independent historical investigations unit that is not constrained to a five-year period.

The suffering of those to whom the noble Lord, Lord Hain, referred has been enormous. It has lasted for so long. The Government could make a difference here and I ask them to do so.

21:00

[Lord Eames (CB)]

My Lords, I add my support to that which the noble Lord, Lord Hain, has received already. In my own experience over the years, I have been in these people’s homes; I have been at their bedsides; I have been with their families; I have tried to advise their young people, who were bereft of parental support. Time and time again, the efforts of clergy of all denominations have somehow come to a shuddering stop over this simple question: who is a victim?

Right back in the early stages, when Denis Bradley and I were asked to produce a report on the legacy of the Troubles, we came head-on to this question of definition. In my reading of the words that the noble Lord, Lord Hain, just used in his speech, I have no hesitation in adding my support to his request. These are the real victims of legacy: through no fault of their own, they will carry to their deaths the scars—mental and physical—of the Troubles. I am so glad to support the amendment.

[Baroness Altmann (Con)]

My Lords, I briefly add my support for the amendment moved so passionately by the noble Lord, Lord Hain. From personal experience, I know what it is like to campaign for a pension that one desperately needs. It is soul-destroying. The relief when the pension finally arrives is also life-changing.

The Government already intervene in devolved issues, as the noble Lord, Lord Hain, said, while the functioning Assembly is not operational. The case for recognition and reparations for these severely injured victims seems absolutely clear. I implore my noble friend, who I know is a compassionate man, to urge the department to show the compassion for which so many across the House have expressed the need.

[Baroness Smith of Basildon (Lab)]

My Lords, I support my noble friend Lord Hain and the noble Lords, Lord Cormack and Lord Bruce, in their Amendment 13A. I spent two and a half years as Victims Minister in Northern Ireland. As we heard from other noble Lords, there is great understanding in this House of the suffering that many have endured. Indeed, the Eames-Bradley report—written by two great men—really brought home to many what was required for the needs of victims, though it was unpalatable and difficult for some.

The victims whom my noble friend Lord Hain spoke about are ageing—they are getting older. Their conditions are getting worse and their circumstances more difficult. One of the things that struck me as both Victims Minister and Health Minister was how, in so many cases, the help that the health service was able to provide was inadequate to meet the needs of those who required support, particularly in cases of mental health. When you spoke to the group of people we are talking about—I do not know whether other noble Lords felt the same—and heard their stories and about the impact of what had happened on their lives, you would be very conscious that you could turn around and take the story with you, but they were living with what they told you and the consequences would never leave them.

We understand the limitations of the Bill and what can be done within it. We understand the problems caused by there being no Executive or Assembly, but this is an occasion when, I hope, the Government could take some action to right a wrong and address an injustice. They could take a step in the right direction to see what support can be given. I congratulate noble Lords on bringing this forward, and I hope that the Minister—who I know is giving considerable thought to this—can give a positive response this evening.

[Lord Duncan of Springbank]

I am struck, as I gaze around the Chamber, by how many people are wearing poppies. And I am struck again by the poetry:

“Age shall not weary them, nor the years condemn”.


But of course we are talking about people who will be wearied by the passage of years and who will be condemned to live through that period—victims of a great iniquity done to them. I have spoken of the situation a number of times now with the noble Lord, Lord Hain. I will preface my remarks by saying that it is our hope that we will secure an Executive who can take this matter forward. Were I to stop with that answer, it would be inadequate, so I will not stop there but carry on.

The important issue here is that we have commissioned from the Victims Commissioner a thorough report into all aspects of this serious issue. We have asked her to expand her remit to look at not just physical but mental anguish and I am able to say today that the Secretary of State will write to the Victims Commissioner, asking her to include a date from which payments shall be made. This is not a future point but rather some point where we can be very clear going forward.

As I said, it is our hope that an Executive will take this matter forward. However, if, despite our best efforts, that Executive have not been restored by the time updated advice on a pension issue has been provided by the Victims Commissioner, the Northern Ireland Office will consider how the matter can be progressed. That is not to put it into the long grass or put it away, but to recognise that it must be progressed.

[Baroness O’Loan]

Has the Victims Commissioner indicated a date by which she might report?

[Lord Duncan of Springbank]

The Victims Commissioner has not indicated such a date, but I am led to believe that we should be able to see progress in good time, if I can use that term. It is not an answer that the noble Baroness would want. I would like to give her a date but I cannot bind the Victims Commissioner to a date.

[Lord Cormack]

Of course my noble friend cannot bind her, but could she not be asked to do it within six months at the most? These people’s lives are coming to an end very frequently and we do need to have a date.

[Lord Duncan of Springbank]

I am in a slightly invidious position because I cannot give a date—but I know that six months would be very far away and would be unacceptable to us. I cannot say that specifically, if my noble friend will forgive me, but we will make progress as quickly as we can because we recognise that this is not a matter that can be left to languish. The individuals are living through their own fate and we will not allow that to be the case. I hope that noble Lords will accept these words for what they mean and what they can deliver.

My word—I have been given a sheet of paper. We will guarantee within six months. So, yes, we will be able to do it within six months and I hope that that will therefore give some comfort to noble Lords that we take this matter with the utmost seriousness and we will move it forward.

[Lord Hain]

My Lords, I am grateful for the support from the noble Lords, Lord Cormack and Lord Bruce, from the noble Baronesses, Lady O’Loan and Lady Altmann, from the noble and right reverend Lord, Lord Eames, with his passion, and from my noble friend Lady Smith, because of course she worked with many victims, both when I was Secretary of State and before and did a fantastic job. She, perhaps more than anybody, knows about the issues at stake here, from a ministerial point of view at least. I am grateful to the Minister for the discussions we have had and for the efforts he has made both to understand and respond to the issue. He has showed more conviction to do something about this than I have detected from the Government so far. I do not want to put him in an invidious position, and I certainly do not want to injure his future career by praising him, but he has shown real compassion as well as some determination to resolve this.

I think that six months, with due respect, is a long way away, as the Minister said. The Victims Commissioner has had this instruction since May. That is a while ago and I hope that this can be weeks rather than months. Maybe some of his officials listening to this debate might ring the Victims Commissioner and suggest that she at least read the debate and make her own mind up.

This has to happen—and it has to happen within a specified time. I am not asking the Minister to do that specifically tonight, but I do not want to be in the position of facing some future legislation in six months’ time and then being told, “Well, maybe next year”. I am grateful to the Minister for saying that there will be a date from which it will be applied, even if the actual decision to do something about it comes in the future. I think that that will be a reassurance to the severely injured victims. I look forward to receiving the letter which may give us some clarity. On that basis, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by

[Lord Bruce of Bennachie]

4: Clause 3, page 3, line 7, at end insert—
“( ) The guidance shall direct senior officials of Northern Ireland Departments to take all reasonable action to prepare to deliver, within the existing legal framework, a redress scheme for victims of historic institutional child abuse, taking into account the recommendations of the Historical Institutional Abuse Inquiry and the reports of the Panel of Experts on Redress.”

[Lord Bruce of Bennachie]

My Lords, I think this again indicates the dilemma that we are having, although the framework is possibly slightly clearer and it may therefore be possible to implement it at least as well as the previous amendment, which we hope will be delivered. The reality is that the historical institutional abuse inquiry was the largest inquiry into child abuse ever held in the UK. I think it is fair to say that the backdrop was not just the need to investigate: in reality, movies have been made, novels have been written, many testimonies have been given to the systematic and appalling treatment that people have received, north and south of the border, over decades and in many institutions. It is quite shocking. When we read these things, it makes most people very angry that that kind of abuse could have been perpetrated—sometimes, and too often, in the name of religion. However, the point is that an inquiry happened, it reported and made clear recommendations. It was chaired by a retired judge, Sir Anthony Hart, and lasted for four years. It is more than two years since it reported. It included a public apology, a memorial and a financial redress scheme

There is political agreement—and yet, because we have no Executive and no Assembly, we have no ability to deliver that agreement. We are talking about victims who, as in the case of the previous amendment, have been waiting for up to 40 years for redress and have had to live with consequences of that abuse. We are seeing them, again, approaching the end of their lives without having received anything more, at the moment, than an apology and a memorial. There is a need to address this.

The recommendations of the Hart commission provide a clear template. It looks, on the face of it, as if this could fall within the terms of the Bill. In other words, there is enough detail in those recommendations to enable the civil servants to implement them. Again, without guidance, maybe the civil servants feel that they cannot or should not, or that they need the authority of Ministers from an Executive or the Assembly.

If the Minister agrees with the basic analysis I have presented, is it his interpretation that the Bill could provide the guidance that would enable the recommendations of the Hart commission to be implemented within the terms of the Bill as advice and recommendations that civil servants would actually have the capacity to implement? If that is not possible, the same argument will apply as to the previous amendment—that the UK Government need to do something about it. I beg to move.

[Lord Maginnis of Drumglass (Ind UU)]

My Lords, I support the amendment of the noble Lord, Lord Bruce. It would be absolutely ridiculous if the amendment which has previously been accepted were to supersede this particular case of sexual abuse of young people, which predates to a large extent what has already been dealt with in Amendment 3.

21:15

[Lord Empey]

My Lords, my Amendment 6 is in this group. The argument is the same. This is not the first discussion we have had on the Hart report. It has been raised whenever we have dealt with budgetary matters, and we have had two budgets. To put it in context, there is one complication in that the funds are not exclusively a government responsibility because presumably the people who operated the institutions have insurance. We have seen examples, particularly in the United States and elsewhere, where insurers have had to contribute. I am totally in favour of that but it should not paralyse us and prevent us moving forward.

The other characteristic of this proposal is that there is all-party support in Northern Ireland for it. There is not a single, solitary MLA in Stormont who is opposed to it, so there is no reason to say that there is a political issue here. There is no political issue with regard to support. There is unanimity—a rare commodity in Northern Ireland. The victims came to the other place to lobby—I met them in the Public Gallery—and spoke to Members of Parliament. This is a very similar demographic to that referred to by the noble Lord, Lord Hain, including people who were traumatised more than 40 years ago. This is not just a Northern Ireland issue; it applies right across the board, as the noble Lord, Lord Bruce, indicated.

Where do the funds come from? As of yesterday there are unhypothecated Barnett consequentials of £320 million. Where Barnetts are concerned, the money that comes from London does not have to go to particular subjects, such as education or roads; it can go to whichever department the previous Executive directed it to. It would not be difficult to check again whether there is unanimity for this, which I believe there is. I understand the Minister’s dilemma—is this creeping direct rule?—but there is a different dimension here, just as in other amendments that we will come to shortly. There is compassion. There is time. There is the degree of suffering that people endured. Is it right that we add to that when there is no financial, political or any other rational reason for doing so?

I just do not believe that the ordinary person in the street back home, whatever their view of devolution or Stormont, would be that upset if these people who have suffered for so much of their lives receive redress and we deal with this on humanitarian grounds. That is the best approach. There is unanimity of support, there is a humanitarian issue and I believe the resources are available. On those three issues, I hope the Minister will see fit to give us a positive response.

[Baroness O'Loan]

The people affected by the historical institutional abuse inquiry were also affected by the Troubles. Many of them ended up in residential institutions because of the Troubles. Billy McConville, the son of Jean McConville—who was abducted and murdered by the IRA—died before the payments recommended by Hart were made. I support the proposal and hope that the Government will find some way of dealing with this in the interests of those victims.

[Lord Hay of Ballyore (DUP)]

My Lords, I, too, have some sympathy with the amendment moved by the noble Lord, Lord Bruce. As the noble Lord, Lord Empey, said, this issue is supported by all the political parties in Northern Ireland in trying to address this very serious problem.

It is quite some time since the Hart report was delivered to the Government. I know that David Sterling, head of the Civil Service, was working up a Bill to try to resolve the issue, but I am told that he is now saying clearly that it has to be dealt with by a Minister, which slightly worries me. None the less, if there is anything that all the parties can agree on, the Government should grab it, because that does not often happen.

I have raised this subject in the House before, because I believe that the institutions responsible for the abuse should pay up as well. It would be totally wrong if all the money came from the Government. I know that the issue has been raised in the other place as well, and I say to the Government that nothing should stop them trying to address it. Some survivors of the abuse are getting old: some are very elderly, and some have died. Relations have died, too, and those people have not seen the full output of what they deserve. I appeal to the Government and I hope that, with the support of all the political parties in Northern Ireland, and the support shown throughout this House and in the other House as well, when the issue has been raised, they will find a way of dealing with it. We should make sure that we do not create a major problem for devolution in Northern Ireland when it comes back.

[Lord Duncan of Springbank]

My Lords, it is not often that we find unanimity in such a fashion, so let us grab it with both hands. I fully recognise the importance that Members accord this issue. It stands alongside the earlier matter raised by the noble Lord, Lord Hain. I hope the House will welcome the fact that the Northern Ireland Civil Service has advised that it is currently preparing draft legislation based on the recommendations of the Hart inquiry, which it will publish very soon. On the basis of that there will be a full public consultation, to ensure that we can move this matter forward, and it will be our intention to do so within a sensible time. There is unanimity on this issue and I believe we can make progress on it. I hope that is enough to give the noble Lord who moved the amendment some comfort.

[Lord Bruce of Bennachie]

I am grateful to the Minister for his characteristically sympathetic response, and obviously for the practicality that civil servants are bringing forward legislation. That does, of course, raise the question of how and when such legislation could be implemented, given the present lacuna. So I add the proviso that I hope the Government will ensure that the timetable is not open-ended. This does not have to wait for ever, or for the return of the Assembly.

A point has been raised about the responsibility of those who perpetrated the abuse. Yes, I agree—but I also caution that I would not want that to be used as an excuse to create an argument that would delay things. It seems to me that there is absolute agreement about what should be done and how it should be done. It is good that legislation is happening, but it is slightly concerning that this requires legislation rather than executive action. There seems to be enough in the Hart recommendations to pretty well constitute the basis of legislation, which could be implemented as an executive action. With the proviso that I hope the Government will not allow this simply to languish as one of the issues waiting for the Assembly to return, I am willing to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Moved by

[Lord Bew]

5: Clause 3, page 3, line 7, at end insert—
“(4A) The Secretary of State must establish an advisory panel which senior officers of Northern Ireland departments may consult in cases where they are required to exercise a function of the department under subsection (1).(4B) If a senior officer consults the advisory panel under subsection (4A), then the senior officer must have regard to the advice of the advisory panel.”

[Lord Bew (CB)]

My Lords, before I speak to the amendment I should like to say that the noble Lord, Lord Hain, is right in his belief that he has my support on the earlier amendment and I am happy to give it. Amendment 5 is about a less emotive matter, but it still addresses a serious question. Noble Lords will have heard, particularly in the speech by the noble Lord, Lord Empey, but also in an allusion just now by the noble Lord, Lord Hay, about the morale at the top of the Northern Ireland Civil Service. It is in a very bad way. Part of the context has already been described by the noble Lord, Lord Empey: the incredible bullying by spads. Of course you hear about bullying by spads in Whitehall but believe me, as someone who knows both worlds, this is a qualitatively different level of bullying. The consequence has been that the Civil Service has lost some of its élan and, to be blunt, self-confidence.

Related to that is the fact that at the beginning of the Brexit crisis the Irish Government, under Enda Kenny, the then Taoiseach, had allowed practical discussions about the border and other questions to go on with Northern Ireland civil servants, but that was then stopped under a new Irish Taoiseach. In fact, the Northern Ireland Civil Service has not had the sort of practical impact on Brexit discussions—even with our own Government, in a weird kind of knock-on effect—that it might be expected to have. When you read that three or four weeks ago Michel Barnier was asking for figures on the trade flows on the island of Ireland—east-west and north-south—your jaw drops because you know that the senior officials at the Northern Ireland Office all know these things just like that but apparently we have been conducting a negotiation with the rather important issue of exactly what is going on in this trade relationship not even known. Perhaps it is not that surprising; there are things at stake in this negotiation other than the actual practicalities of the trade relationships from north to south and east to west, but still they seemed to have disappeared from the scene.

I think, by the way, that this issue has constitutional significance. The NICS has a strong sense of the way in which the Good Friday agreement was established, particularly the notion that if you are going to adhere to the agreement then north-south regulatory arrangements, however they develop, depend on the co-operation and support of the Northern Ireland Assembly. That point is critical: if you are going to defend the Good Friday agreement, you also have to be careful about what is projected in terms of regulatory arrangements north and south, and the Assembly has an effective veto.

We have lost a lot through a lack of morale. It means that when this legislation came down the pipe, officials could be heard rather nervously saying, “I don’t want that authority”, even though, to be absolutely blunt, the Queen’s Government must go on and these decisions are necessary to prevent extreme cases of waste, if nothing else. So it must happen and the Government are right to take the powers. However, in the context in which we are now living, it is right to offer the officials, who strongly suspect that they will be subject to judicial review and all manner of clamour locally about decisions that people do not like, some sort of advisory panel—which might include Assembly Members—as a kind of cushion against some of the pressures that will come their way. It is hard in the current public climate in Northern Ireland to ask a single Permanent Secretary of a given department to, as it were, take on the burden of these decisions on their own because all hell will break loose, even over decisions that we consider the simplest, and the most obvious and clear-cut. There will be calls for judicial review and major public controversies. So there is a case for having some kind of advisory panel so that officials would, in effect, be able to say, “I took the advice of the advisory panel”. That is the case for this amendment, given the current public climate. When the morale of the NICS was somewhat stronger I would not have made it, but let us be clear that everyone knows—the noble Lord, Lord Empey, explained why today—that its morale at the top levels could not now be lower. That is why this is the specific moment at which to advocate this point.

I have one final point. In a slight aside, the Minister talked about the legislation as having been designed to progress public appointments that have lapsed or are not happening. One of those categories is QCs, and I wonder whether the Government have anything to say to clarify their general position on quite rightly wanting to speed up public appointments.

This is essentially a probing amendment and I am strongly in favour of the Bill in general terms. Whatever happens today, though, the Government should be very mindful of the exposed state now of those who head up, as Permanent Secretaries, the individual Northern Irish ministries.

21:30

[Lord Empey]

My Lords, I have Amendment 13 in this group. I am not quite sure that it sits precisely with Amendment 5. To follow up on what the noble Lord, Lord Bew, said, I asked whether senior civil servants were members of the First Division Association, the trade union for people in senior positions in the Civil Service, because these civil servants are being asked to do things that no other civil servants are being asked to do. There is a risk here that is not fully appreciated. We are taking it for granted.

The noble Lord, Lord Trimble, made the point about the law and the department being different. Here, the power is vested in the Secretary of State and back home it is vested in the department—we understand that—and a Minister’s role, when one is in place, is to direct and control the department. What we found when we had a period between devolution before—even though there was direct rule—was that civil servants ended up having to implement policies that they knew those of us who had been devolution Ministers and were again did not approve of. They were put in an embarrassing position when devolution was restored because they suddenly found they were having to work for somebody whom they had previously actively opposed. We have to understand that you cannot take a public institution such as this and simply mould it to whatever circumstances you find on a day-to-day basis. These people have a career. They do not want to get into a firefight with politicians but that is where we are pushing them. We have to be very careful.

My amendment covers audit office reports and, like everything else, these come regularly. Each year the auditor decides an agenda of what issues might come up. These reports are extremely valuable because they look at what is happening to taxpayers’ money. Incidentally, there is another big question. What happens when Sir Patrick Coghlin reports on his inquiry? Where does that go? It certainly will not go into the ether. Who will deal with it? Does the department prepare and publish a response? Will important lessons be learned from these audit office reports? We have to be careful that they do not just disappear because valuable lessons are learned from them here as well as everywhere else. I simply say to the Minister that reports should not just be in the ether, without our knowing what happens to them. It is taxpayers’ money at the end of the day and Parliament has an overall responsibility for that, even though it is devolved. I should like to think that departments will publish a response, even if it is merely to some of the technical matters that may be resolved.

I support the noble Lord, Lord Bew. Practically every week over the last couple of months, senior civil servants have been appearing in that inquiry and getting a hard time—some of them have been there for days—and coming back and revealing what has been going on. I have to say that, even though I knew things were not great, like most other people, I have been shocked by the extent of the abuses that have been allowed to take place and the culture that permitted it to happen. Huge issues need to be discussed here. In this case, I should like to think that responses to audit office reports can be published so that we can learn and, I hope, not repeat the mistakes.

[Lord Murphy of Torfaen]

My Lords, it has been a very interesting short debate. I think that it has to be dealt with in the context that this is a temporary arrangement. The issue at the end of the day is that if we have anything like an elaborate panel set up, it will give permanence to this totally unsatisfactory system where a part of our country is run by civil servants who are unaccountable in any way to the electorate.

My experience is that as a Minister you would have in the department a system by which you would consult civil society on various decisions that you have to make anyway—at least there should be consultation. Perhaps there is some method by which that could be made a little bit stronger, so that there is a sounding board for the civil servant. The danger always is that the civil servant will be very reluctant to take a decision that might be controversial but which is necessary. That is worth examining, but in the context that this has to be seen as a highly temporary arrangement. It also highlights how terribly unsatisfactory the whole situation is that we do not have a proper elected Government or Assembly in Northern Ireland.

[Viscount Younger of Leckie (Con)]

My Lords, I am grateful to the noble Lord, Lord Bew, for his thoughtful Amendment 5, and for giving us advance notice of it. I also note the support given to the amendment by the noble Lord, Lord Empey.

I say at the outset that I appreciate the intent—seeking to give Northern Ireland civil servants some further cover. I listened very carefully to the analysis of the noble Lord, Lord Bew, of the status quo, especially on the question of morale: that was very much taken note of. I want to assure the noble Lord that we have considered options for providing support in this way to the Northern Ireland Civil Service, and will keep them under review.

The decision-making provisions in the Bill are needed urgently, and while the case could possibly be made that there would be some merit in having advice from an external body such as an advisory panel, the challenges and time commitment associated with setting one up mean that we have opted to proceed without one at this particular stage. I should say also to the noble Lord that my noble friend Lord Duncan and I have spoken in this Chamber before about the burden on civil servants, and I add my voice to the understanding that has been given today about the genuine burden that falls on the Northern Ireland Civil Service.

The amendment, however, causes problems in terms of how such a panel, if mooted, would be constituted: under what authority; how it would operate; and what would happen if it could not agree a position. I am sure that the House will understand those questions and the difficulties involved, again alongside the need for speed and urgency today. We will continue to consider carefully whether Northern Ireland civil servants need further support, and, as the noble Lord, Lord Murphy, said, it would have to be temporary. For today I hope that the noble Lord will feel able to withdraw his amendment.

I turn to the second amendment in this group—Amendment 13, tabled by the noble Lord, Lord Empey—which seeks to direct departments to publish their responses to the Northern Ireland Audit Office. As the noble Lord, Lord Duncan, made clear in his opening speech, the Bill and guidance are not a move to direct rule. To include this amendment in the Bill would introduce a level of formality that we believe is not appropriate and runs too close to directing Northern Ireland departments. That goes against the spirit of the guidance, which is intended to assist departments in deciding whether exercising their functions is in the public interest but does not direct them to take specific actions.

We fully recognise the importance of transparency, which is why the guidance published alongside the Bill seeks to build on the arrangements agreed with the Northern Ireland Civil Service as part of the budget. In addition to Northern Ireland Audit Office reports on budgetary matters, this guidance sets out that all reports and the respective departmental responses will be presented to the Assembly and shared with the Secretary of State, who will promptly lay these in Parliament. This effectively makes them available to the public. The Secretary of State will also now be writing to share these with the Northern Ireland political parties to encourage their scrutiny of all Northern Ireland reports and departmental responses.

The noble Lord, Lord Bew, raised the question of QC appointments. The Bill deals with the bodies that are currently considered to be the most pressing cases. Making the necessary appointments to those bodies is essential to the good governance of vital public bodies in Northern Ireland. The Bill enables the Secretary of State to extend this to other offices by regulation, and we will continue to monitor the situation and assess whether further offices—including QCs—should be included in regulation, which would then be debated by affirmative procedure.

The noble Lord, Lord Empey, raised a point about the RHI inquiry. As the noble Lord says, the inquiry is ongoing, so there is a limit to what I can say on this, as I am sure he will appreciate. However, the House will recall that it agreed legislation earlier this year for external cost-capping regulations to ensure that scheme continuity can be kept. This allows the Northern Ireland department to consult on a way forward to develop options for a longer-term solution.

I hope that this short debate will provide sufficient comfort for the noble Lord, Lord Bew, to withdraw his amendment on the basis that it is already provided for in what we are proposing.

[Lord Bew]

I am happy to withdraw my amendment.

Amendment 5 withdrawn.

Amendment 6 not moved.

Amendment 7

Moved by

[Lord Empey]

7: Clause 3, page 3, line 7, at end insert—
“( ) The guidance must direct the Department of Health in Northern Ireland to take all reasonable action, within the existing legal framework, to prepare to—(a) reduce waiting times and waiting lists for the provision of all health services;(b) improve the timeliness and quality of cancer treatment services, including a new cancer strategy; and(c) implement the recommendations of the Strategy for Suicide Prevention in Northern Ireland (“Protect Life 2”).”

[Lord Empey]

My Lords, I have raised issues pertaining to health in Northern Ireland before. I think I quoted figures before that show that, out of a population of 1.8 million, we have 280,000 people waiting for their first consultant-led out-patient appointment. Of those, approximately 90,000 are waiting over 12 months. At the end of June this year, a further 83,746 patients were waiting for admission to hospital. Of these, 18,000 had been waiting longer than a year. For performance figures for A&E, sadly we are at the bottom of the table for the whole of the United Kingdom again—not meeting any targets, but in fact at a worse level than any other part of the United Kingdom. Whichever way you look at it, this crisis in health has been building up for some time. Its origins date from before the Executive ended, because the trend had already been established, but it has now accelerated. These figures refer to the summer, and we have not even begun to get into the issue of winter pressures.

I have drawn your Lordships’ attention before to the fact that I believe that the Government should take control of health back here to Westminster on humanitarian grounds, on a temporary basis. Bear in mind that it happened with welfare reform—the decisions were taken and then the powers were sent back to Stormont. That happened because there was a political disagreement. These figures may mean a lot to somebody or they may mean nothing to anybody, but I can assure Members that what we are seeing here is real harm done to a significant number of people. That is why we really need to take action.

The problem we have at the moment with the absence of a Minister is that nobody can take long-term financial decisions. We are taking decisions within a very short timescale, and anybody who knows anything about health knows that you cannot do that. It requires time and planning and it is very inefficient if it is all done at the very last minute. A Minister could enter the scene and take decisions on even mid-term financial planning. Immediately an Executive is formed it can be taken back to Stormont. Some people say that there is a risk of creeping direct rule. I am not in favour of direct rule; I believe in devolution, but we are dealing with a magnitude of something here. There are 5,600 vacancies. Last week, I visited a hospital. One of the bays in the ward had to be closed because there were not sufficient staff.

21:45

This leads me on neatly to Amendment 8, which deals with pay. At the moment, there is nobody to agree even agreed payments. The health service has not had increases; the Police Service of Northern Ireland did not get payments for 2017-18, to say nothing of 2018-19. We are depending on these civil servants, front-line workers in the health service and police to keep us safe, yet, as I understand it—I hope I am wrong—there is no mechanism to deliver a pay rise. What would the reaction be if that were happening here? With all the publicity there has been on policing issues, on the Department of Justice, and on the pressures of numbers in prisons, we say: “You are not getting your pay rise”. These are not demands; they are agreed through the proper mechanisms yet they are just lying there.

I appreciate the Minister’s dilemma on this and the political issues surrounding it. However, just like the Hart issue and the pension issue, this is a step above and beyond a simple matter of politics. People’s lives will be blighted by these waiting lists and they are getting longer and longer. I respectfully ask that the Minister recognise the significance of this. I can imagine nobody objecting to having a proper Minister appointed, on a short-term basis, to deal with these matters. I beg to move.

[Viscount Younger of Leckie]

My Lords, these two amendments in the name of the noble Lord, Lord Empey, seek to direct the Northern Ireland departments regarding health issues and public sector pay. As we have consistently said, the proposed legislation is not a move to direct rule, and decision-making must remain within the remit of Northern Ireland departments. To use this guidance to direct individual decisions would therefore go against this principle.

It is important that senior officers are able to apply the principles in the guidance in determining whether it is in the public interest to exercise functions. I understand the concern to ensure that effective decisions are made on the important issues of health, such as waiting lists, and public sector pay—as the noble Lord, Lord Empey, pointed out. However, as we have heard today, these are certainly not the only important—I stress that word—issues in Northern Ireland. Prioritising certain functions in the guidance could suggest that they should be followed at the expense of others. We are confident that the draft guidance as it stands allows Northern Ireland departments to exercise functions such as those raised in this amendment, although whether and how to exercise functions must remain a matter for Northern Ireland departments.

The Department of Health is already working intensively to respond to increasing demands on the Northern Ireland health service, and will continue to do all it can to uphold its duties in the public interest in this interim period. We of course recognise, however, that there are some decisions not enabled by this Bill. The Bill and guidance simply seek to enable senior officers in Northern Ireland departments to take a limited range of decisions using existing powers where it is in the public interest to do so now rather than wait for Ministers. That is in the context of providing the space and time for political talks to help restore devolved government, an issue that has been much discussed today in the Chamber.

Intervening in individual areas in this manner would be tantamount to direct rule—the noble Lord, Lord Empey, used the expression “potential creeping direct rule”—and would undermine our commitment to devolution and the Belfast agreement. The Prime Minister and the Conservative and Unionist manifesto are crystal clear that we will uphold our obligation to the people of Northern Ireland to ensure that their vital public services are protected. We have always said that we do not rule out further legislative intervention if it is necessary. I realise that my response will disappoint the noble Lord, Lord Empey—he will probably not be too surprised—but on the basis of these points I hope that he will feel able to withdraw his amendment.

[Lord Empey]

Before the Minister sits down, I want to say that he is not quite clear as to the Government’s exact position. He is saying that senior officers should be able to take certain decisions. Of course, this could be seen as direct rule. Look, folks, this is life—this is people’s lives here. We are not talking about a road junction or something casual. We are talking about people not being treated within any guideline that currently exists on these islands. In other words, these are to be sacrificed because of some political ideal of devolution versus creeping direct rule, or “Who are we going to annoy? We are going to annoy Sinn Féin. We are going to annoy this party or that party”.

Think of the people affected by this. This is not going to go away. It is getting worse. The statistics have been going like this not just recently, but for a long time. The suicide strategy is another one where there is total agreement. It is a big problem back home and it has not been addressed, yet everybody agrees that it should be addressed. What does it take?

I ask the Minister to clarify what he means. He thinks the guidance will allow officers to take decisions, yet on the other hand they are afraid that this would be seen as creeping direct rule. This is a qualitatively different subject matter, and it is on humanitarian grounds that I put this forward, not on a political platform.

[Viscount Brookeborough (CB)]

It may appear that, because the noble Lord, Lord Empey, is leading this on his own, he may not have support. I think he has support from everybody. I declare an interest in that I have had cancer of the throat. This sort of thing does not just affect the people. It affects their families and dozens of other people; it affects their friends. I feel that it affects their friends and families more because they are so worried that they cannot do anything to help, and yet the state, in the form of the National Health Service, is not helping them. Therefore, I cannot conceive that this is not in the public interest, yet the Minister is almost saying that if a senior civil servant thinks it is in the public interest he may come out in support of it.

The other point is that, on another amendment, on the PSNI, we have just spent five or six hours debating the fact that the primary aim of the Government is to restore the Assembly. Policing is absolutely vital to that, and we cannot see the police force denuded of pay or resources to achieve this end. I am afraid that all afternoon, whenever we have talked about any other part of it, the Government have been saying, “Our primary aim is to restore the Assembly”. We will not restore it without enabling our security forces, the police, to manage the day-to-day situation. The Minister should give a slightly more reassuring answer than, “We’ll post it back and see what they think about it”.

[Viscount Younger of Leckie]

I hope the noble Viscount does not think I said that. First, I am left in no doubt about the passion of the arguments presented by the noble Lord, Lord Empey, and by the noble Viscount in supporting him. However, I think the Committee will appreciate that there is an extremely difficult line to take. We have said that we do not wish to go down the line, whether it is creeping or not, of direct rule. On the other hand—perhaps this is what I really want to say—the reassurance has to be given from this Dispatch Box that upholding our obligation to the people of Northern Ireland is a high priority, as is ensuring that vital public services are protected. This includes the issues raised on health. We are not afraid to step in, if or when we think it is right, and we have said that we will not rule out further legislative intervention. If that is not clear enough, I have to say that this is very much a subjective decision and constantly under review. I cannot say anything more. Finally, I clarify that the Bill enables the Department of Health to take these decisions, and if the UK Government intervened to step in, it could easily be construed as direct rule. I cannot go any further to clarify that point.

[Baroness O’Loan]

I do not want to hold the Committee up, but I am having some difficulty. The aim of the legislation is to enable the continuity of the delivery of services, yet vital services such as our health service do not receive that attention. I do not understand what is covered by the Bill if things such as this are not.

[Viscount Younger of Leckie]

I hope I have made the point that health is very much a priority. I cannot say anything more. I have also attempted to define the line that we have to take, which is an extremely difficult one in the circumstances that we have been presented with. With that, I hope the noble Lord will agree to withdraw his amendment.

[Lord Elton (Con)]

My attention is not quite as close as it was earlier today and I did not hear my noble friend’s reply on the question of paying the police. Am I confused? I understood that Amendment 8 would enable the payment of the sums due and already agreed. I did not hear his reply to that; he may have given it, but I did not hear it.

[Viscount Younger of Leckie]

I am not sure I gave it, but in the interests of time, I will look over what I said and write to my noble friend to give a succinct answer.

[Lord Hay of Ballyore]

My Lords, we have all sympathy with what the noble Lord, Lord Empey, is trying to achieve; when it comes to health, we would all like to see waiting lists reduced in Northern Ireland, and there is cancer care and health as well—there are so many issues within health. This is putting the Minister in an awkward position. I have sympathy with what has been said in the Committee. However, I could also make a strong case for education. If you speak to many principals of schools in Northern Ireland, they will tell you that they are suffering because of the lack of budget and cannot deliver the service they want to deliver. They are even asking parents to pay for some things in their schools. Do we appoint an Education Minister temporarily? Then you will have other departments saying, “I think we need a Minister temporarily”, and you end up with direct rule. Is that what we want?

22:00

[Lord Alderdice (LD)]

My Lords, I have listened carefully to what colleagues from Northern Ireland said. I am no particularly strong supporter of the Government but it seems that, in a way, this debate demonstrates a kind of learned helplessness, not just of politicians in Northern Ireland but of the Civil Service. If there is a problem, it is someone else’s responsibility—such as the Government’s—to sort it out. The Bill is clearly handing power back to civil servants in Northern Ireland and saying, “You’re covered for making any kind of reasonable decision; that’s not a legal problem now. And by the way, if the politicians in Northern Ireland would get their act together and go back, that would rather help things as well”.

What I am hearing is people trying to pass it back and say, “Come and sort the whole thing out but, by the way, we know that that will disrupt all kinds of agreements we have reached—the Good Friday agreement and so on”. I say to colleagues, in fairness, what the Government are trying to do is to give people the legal cover to do what is necessary. That includes senior civil servants in Northern Ireland, who have not covered themselves in glory over the RHI scheme or anything else. This is a chance for them to take responsibility and actually do the governing work that they need to do, and that we all need them to do. To that extent, I hope we can move on with some acceptance of what the Government are trying to do, albeit that it is not as satisfactory as we would all like it to be.

[Lord Empey]

My Lords, I know the noble Lord, Lord Hay, mentioned education—we could all mention that—but there is a qualitative difference between something affecting life and something affecting bad administration. I need to read Hansard—I am not particularly clear on what the Minister means by his decisions—but I will read it. I assure him that if things continue to deteriorate in that area as they have been, I will certainly be holding his feet to the fire. There will be other opportunities; I am not going to let this drop. Having said that, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendment 8 not moved.

Amendment 9

Moved by

[Baroness Smith of Basildon]

9: Clause 3, page 3, line 7, at end insert—
“( ) The guidance shall provide for senior officials of Northern Ireland Departments to report to the Secretary of State at the end of every six month period, beginning with the day on which this section comes into force, on which recommendations of the Report of the Inquiry into Hyponatremia-related Deaths—(a) have been implemented,(b) are being considered and the process by which they are being considered, or(c) have been rejected and why they have been rejected.”

[Baroness Smith of Basildon]

My Lords, I rise to move Amendment 9 on the hyponatremia inquiry, which may not be something that is well known to many noble Lords, but I have to tell the House that I have special interest in this issue. As a direct rule Minister in Northern Ireland and Minster for Health, I announced the setting up of this independent public inquiry on 18 November 2004. It was to be chaired by a highly regarded QC, Mr John O’Hara, now Mr Justice O’Hara.

For background information, hyponatremia is a condition where the concentration of sodium in the blood falls below safe levels. It can occur for different reasons: it may be that somebody has been vomiting or has diarrhoea and needs to be rehydrated. In hospital, where patients’ fluids are monitored, it is a preventable condition.

The inquiry was started because five children were identified who had died in hospital. They were Adam Strain, aged four; Claire Roberts, aged nine; Raychel Ferguson, also aged nine; Lucy Crawford, aged just 17 months; and 15 year-old Conor Mitchell. The deaths of Adam and Claire, the events following Lucy’s death, Raychel’s case and the issues presented by Conor’s treatment were all investigated by this inquiry.

Surely, there can be no greater or more painful loss for a family than that of a child. When this happens in hospital and that child was receiving treatment, a fundamental role for any inquiry has to be to understand precisely what happened both before and after, and to give recommendations for future actions to prevent something like that ever happening again. The inquiry, announced in 2004, was originally delayed because of police investigations. For other reasons, the report of inquiry was not published until January this year, nearly 14 years after I initiated it. That report has 96 recommendations. I have just re-read large parts of the report before the debate today, and in places it makes grim and very sad reading.

I want to refer to two key aspects that Mr Justice O’Hara identified, and they will form the background to my explanation for bringing this amendment before us tonight. The first is the number of errors made in treating the children, which, rightly, have been very carefully and painstakingly investigated and recorded. The second is the unacceptable difficulties in getting witnesses to be open and frank. In places, Mr Justice O’Hara refers to what he calls “unsatisfactory evidence”, with an attitude of deceit and defensiveness. He describes this as “frustrating and depressing”. That led to his first recommendation being a “statutory duty of candour”—in other words, a legal duty to tell the truth—and there are 95 other recommendations.

My amendment is about the implementation of those recommendations and to ask what has happened since that report was produced in the absence of a Northern Ireland Assembly, an Executive or Ministers to consider them and take action. Paragraph 1.70 of Mr Justice O’Hara’s report said:

“It is for the Department of Health to take them forward. Many will doubtless require significant detailed consideration to enable implementation. I expect the Department to indicate not only which of my recommendations it accepts but also to make clear how and when implementation is to be achieved. Further and subsequent reports should then be made detailing progress towards implementation with a final published confirmation of same”.


So Mr Justice O’Hara and his team took on this inquiry and made their report with every expectation that it would be properly considered and acted on, and the purpose of my amendment is to ensure progress.

In the intervening years since 2004, I would have expected that, as problems were identified, some of those recommendations would already have been evident and acted on, with new systems and practices being put in place, but we just do not know. Also, some recommendations—particularly the statutory duty of candour—require political decisions. Others might need political direction in terms of funding and others will be purely clinical.

Given the difficulties faced in the 14 years before the inquiry was able to complete and publish its investigations, what is needed now is a totally transparent and open process. However, the difficulty is that, because there is no Assembly and no Ministers or Executive, we do not know what progress has been made and there is no political direction. It seems wrong that a lack of political responsibility in Northern Ireland, with no Ministers and no Assembly, should prevent action, and prevent those concerned—particularly the families of the children I have mentioned—knowing what action is being taken. Even the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, has described the situation as “shocking” and “appalling”. Ideally, local Ministers—I think there is also a role for a Stormont health committee here—should deal with this as a matter of urgency.

Therefore, my amendment provides for the Secretary of State to bring some humanity to this issue and to seek six-monthly reports with updates on progress—the amendment details the kinds of updates that we are seeking—so that the people of Northern Ireland can be confident that there is some political oversight and openness about what happens now. Whatever the political situation in Northern Ireland, this is too important a report to allow it just to fade away.

I am grateful to the noble Lord, Lord Bruce, for his amendment, and I know that he supports my amendment as well. I am also grateful to the Minister for the discussions that he and I have had on this issue. I know that he recognises the importance of and urgency behind it. I have had a letter from him this evening which indicates to me that, in so far as the limitations of this legislation allow, he is looking to see what can be done, and I shall be grateful if he can put that on the record tonight.

This matter is key. The families of these children are desperate to know what is happening and how progress will be made. In asking the Minister to respond and outline the commitments that he has been able to make to me in the letter so that they are on the record, perhaps I may press him a little further. In his letter to me, he says that he will seek that information at regular six-monthly intervals from the Department of Health. What is his expectation of the department’s responding? We need some expectation that it is going to respond and is prepared to do so. I note also that the Permanent Secretary of the Department of Health, Richard Pengelly, is prepared to meet with the noble Lord, Lord Bruce, and myself to discuss the issue. I hope the Minister can endorse the comments in his letter and explain what this House would expect. It is difficult—we understand that the Government do not want to have direct rule creep towards it, as it were—but unless there is some political responsibility, who else do the families have to turn to in order to see that justice is done and this report’s recommendations are seriously considered and implemented? I beg to move.

[Lord Bruce of Bennachie]

My Lords, I am very grateful to the noble Baroness, Lady Smith, who brings her first-hand experience to this amendment, which I have also tabled, and has given us in detail the history of this very sad set of circumstances involving children who appear to have died in circumstances of negligence within the health service. The fact that it took so many years is in itself a problem, but I do not need to reiterate what has been said.

I noted that on Friday the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, said that it was “shocking” and “appalling” that the inquiry recommendations could be fully implemented because of the lack of an Executive in Northern Ireland. In particular, legislation is needed to introduce a legally enforceable duty of candour—a key recommendation of the inquiry. In light of our debates, I wonder how many times politicians in this House or in Northern Ireland are going to be saying to the public in Northern Ireland, their constituents and voters,“We can’t do anything because we don’t have an Executive”, and at what point the people themselves will say, “When on earth are you going to do something for us?”. They are living in a democratic and political vacuum, with no time limit. I take the point about direct rule, but it is heartless to say to people that we had an inquiry, we got recommendations, but because of political incompetence—the mildest way you could describe it—there is nothing we can do. I hope that the Minister can give some reassurance that this vacuum can be at least partially filled.

[Viscount Younger of Leckie]

My Lords, when I knew I was going to give some relief to my noble friend Lord Duncan in responding, I wanted to look up what hyponatremia actually means, and what happens to your body when it is low on sodium. I wanted to add a little to what the noble Baroness, Lady Smith, said. Low blood sodium hyponatremia occurs when you have an abnormally low amount of sodium in your blood, or when you have too much water in your blood. Signs and symptoms of hyponatremia can include altered personality, lethargy and confusion. Severe hyponatremia can cause seizures, coma and even death—so I am left in no doubt about the seriousness of this particular matter.

Amendment 9 in the name of the noble Baroness, Lady Smith, and Amendment 12 in the name of the noble Lord, Lord Bruce, provide that the guidance should require Northern Ireland departments to update the Secretary of State to implement the recommendation of an important inquiry into hyponatremia that reported earlier this year. As has been said, the proposed legislation is not a move to direct rule. Northern Ireland departments are not subject to the direction and control of the Secretary of State. As a consequence, to have this requirement on the Northern Ireland Department of Health to report to the Government in such a way on the face of the Bill is not consistent with the aim and intention of the guidance, which is to provide guidance as to the exercise of functions in the public interest, not to direct specific action. To use this guidance to direct individual decisions or to seek to introduce formal reporting mechanisms would therefore go against this principle.

22:15

However, I am sympathetic to the noble Baroness’s desire to see progress on this matter. We have therefore sought an update from the Northern Ireland Department of Health and have been assured that a team was established in June to consider options for implementation of the inquiry’s recommendations. A meeting has already been scheduled for that team, led by the Deputy Chief Medical Officer, to brief Justice O’Hara QC at the end of November on progress, and I intend that the Government should write to the Northern Ireland Department of Health to seek an update following that meeting on implementation of the inquiry’s recommendations. We will ensure that this update can be made public and will request further updates on a six-monthly basis.

To take the matter further with the noble Baroness, Lady Smith, the Department of Health Northern Ireland has said that it will respond. The letter, which I believe she has received, commits that we will write to the Department of Health Northern Ireland, asking for an update on the recommendations in the manner proposed by the noble Baroness’s amendment. We shall share those updates publicly. On the basis that work is ongoing and with the reassurances we have given that regular updates will be provided, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Smith of Basildon]

I am grateful to the noble Viscount. I was rather surprised that he answered; I had expected the noble Lord, Lord Duncan, to respond as the letter is from him. Could I have one clarification? In the letter to me from the noble Lord, Lord Duncan, he said that he would be writing personally. The noble Viscount, Lord Younger of Leckie, said that the Government will write. This has to be done at ministerial, not official, level. Will he confirm that to me?

[Viscount Younger of Leckie]

I can give a complete reassurance to the noble Baroness on that basis. It might be a good idea if I can commit that my noble friend Lord Duncan will write to her. I will also put my name on that letter.

[Baroness Smith of Basildon]

No, the noble Lord, Lord Duncan, has already written to me and I am happy with the letter he sent. I want to confirm that the letter to the Department of Health in which the noble Lord, Lord Duncan, will seek at six-monthly intervals to get an update, which the Minister has said the Department of Health will respond to, will be a letter from a Minister, not an official.

[Lord Duncan of Springbank]

I was having a bit of a breather, but I am very happy to confirm that. It is important that we do this—absolutely essential.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. I understand and appreciate the time that he has invested in this. He has been very generous with his time and his views. On that basis, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10

Moved by

[Lord Adonis]

10: Clause 3, page 3, line 7, at end insert—
“( ) The guidance may direct departments after 1 May 2019 not to enforce sections 58 and 59 of the Offences Against the Person Act 1861.”

[Lord Adonis]

My Lords, in moving Amendment 10 I shall speak also to Amendment 11. The intent of these amendments, although they had to be drafted in a more complex way, is very simple: if the Northern Ireland Assembly has not legislated for equal marriage and abortion rights in Northern Ireland by next May, equal marriage and abortion should, by the authority of this Parliament, be made legal in Northern Ireland next May.

I do not intend at this late hour to press this matter to a vote, but my first comment is that I believe, based on the balance of parliamentary opinion in this House and the other House, that if the Northern Ireland Assembly does not move to address these basic issues of civil rights over the next year or so, Parliament will be left with little choice but to act in this manner. Particularly on the basis of the vote held in the House of Commons last week, where there was a majority of 100 in favour of Stella Creasy’s amendment, the intent of which was clearly that abortion and equal marriage should be legalised, although it is not possible to do it through this Bill, I believe that it is the very clear view of the House of Commons that it would move pretty swiftly in that direction if the Northern Ireland Assembly does not.

Clearly, this needs to be reconciled, if possible, with devolution. The right way to do that is to give the opportunity for a new Executive to be formed in Northern Ireland and for the Northern Ireland Assembly to consider this issue, in the expectation that Northern Ireland will not remain the only part of the British Isles where equal marriage and abortion rights are not recognised. It is my belief, however—and I can only express my view—that if the Northern Ireland Assembly is not prepared to act in that regard, the Parliament of the United Kingdom will be obliged to do so in due course. Sending that message out from this House is quite an important signal to politicians in Northern Ireland that there is really not an option for Northern Ireland to continue for any long period of time to deny what many of us would regard as fundamental human rights.

[Lord Trimble (Con)]

I have a simple point. I am sorry to repeat myself from earlier on today, but abortion is legal in Northern Ireland. There is only one small point of difference in the law between Northern Ireland and England and Wales. Therefore, to talk about denial or otherwise is wrong: it is not a matter of law. The problems lie elsewhere.

[Lord Adonis]

My Lords, your Lordships will be very open to different ways of resolving this issue, but it is a fact at the moment that some 28 women a week travel from Northern Ireland to Great Britain for the purpose of having an abortion, because it is not possible to access these services in Northern Ireland. So whether it is theoretically legal or not, women in Northern Ireland are not able to access these services at the moment, so to all intents and purposes abortion is not available to them.

[Lord Trimble]

That is a different matter.

[Lord Adonis]

It is not a different matter in terms of the impact on the women affected. This is surely the fundamental issue.

[Lord Trimble]

The solution must be in Northern Ireland.

[Lord Adonis]

I am entirely open to the solutions being found in Northern Ireland, but if those solutions are not found, the only course open to this Parliament is to change the law. The reason that I speak in such direct terms is that it is very important to be able to offer assurances to the people of Northern Ireland themselves that this Parliament is not prepared to allow this abuse of civil rights to continue for any substantial further period. That appears to be in line with majority opinion in Northern Ireland itself. An Amnesty International poll taken earlier this year showed that 65% of people in Northern Ireland think that abortion should be decriminalised and 66% think that Westminster should act in the absence of the Assembly.

[Baroness O’Loan]

Is the noble Lord aware that Amnesty is promoting abortion in Northern Ireland, hence the results?

[Lord Adonis]

My Lords, that in no way invalidates the findings. Those figures are from a poll; they do not represent Amnesty’s own view. A Sky News poll earlier this year found that 76% of people in Northern Ireland support an equal marriage law, and also wish this Parliament to carry such a law if it is not carried in Northern Ireland. I state all this because this is the situation as I see it. My own view is that we are not standing by the people of Northern Ireland in guaranteeing these basic rights at the moment. If I was the responsible Minister, I would think very seriously about seeking to change the law now, but, because of the great respect that I have for the devolution settlement and the Good Friday agreement, it is right that we should allow one last opportunity for the devolved institutions of Northern Ireland to resolve these issues of fundamental rights. If they are unable to resolve them, I do not believe that there is any realistic alternative to this Parliament doing so at some early date.

[Lord Alton of Liverpool (CB)]

I do not know whether the noble Lord was present earlier to hear the noble Baroness, Lady Stroud, challenge the poll to which he referred. I draw his attention to the ComRes poll that was carried out only last week in Northern Ireland. It found that 64% of the general population and 66% of women in Northern Ireland agreed that changing the law on this issue should be a decision for the people of Northern Ireland and their elected representatives. It also found that 70% of 18 to 30 year-olds agreed that Westminster should not dictate that change to them.

[Baroness Barker (LD)]

Will the noble Lord, Lord Alton, say who commissioned the poll from ComRes and make available the questions so that the House can see them?

[Viscount Younger of Leckie]

My Lords, for clarity, we should allow the noble Lord, Lord Adonis, to finish his speech. There have been a number of interventions and I am sure other Peers will have a chance to intervene afterwards.

[Lord Adonis]

My Lords, my response to the noble Lord, Lord Alton, is that of course the devolved institutions are not even sitting in Northern Ireland at the moment, so we face two issues in this respect. The first is that the Northern Ireland Assembly should be given an opportunity to address this matter. Clearly, it does not have that opportunity at the moment because it is not sitting. The Bill seeks to ensure that the Northern Ireland Assembly does sit and is sustaining an Executive by the end of next March. The second point concerns the situation if the Assembly is not, even when it is sitting, able to address this issue, I do not believe it is consistent with the poll that the noble Lord has just cited that the people of Northern Ireland would regard it as satisfactory for the Assembly in Northern Ireland not to address this issue of fundamental rights. One way or another, in a short time, this issue must be resolved. It will not be satisfactory either for the Assembly in Northern Ireland to fail to address this issue or for this Parliament to allow fundamental breaches of civil rights to take place in a substantial part of the United Kingdom. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, my Amendment 16 has the honour to be joined to the two amendments of the noble Lord, Lord Adonis, Amendments 10 and 11. It seems to me that Amendment 10 breaches a fundamental aspect of the constitution, namely that it is not right for anyone not connected with the prosecution to intervene to alter or to direct a prosecution decision. That is what Amendment 10 does. Amendment 11 again breaches the constitutional rule that our judiciary is not to be directed by departmental guidance. The Secretary of State for Northern Ireland has no authority whatever to direct the prosecuting authorities in Northern Ireland not to prosecute existing statutory provisions there, and certainly no authority to order the judiciary in Northern Ireland not to obey a part of the rule that is there already.

Amendment 16, which was passed in the House of Commons, is intended to deal with both matters as the noble Lord, Lord Adonis, has explained them. It seeks to get the Secretary of State to issue guidance, which will have effect as they wish, but the amendment is so drawn that it does not specify that the guidance has to be of a particular kind. It is obvious from the way it was introduced in the Commons that that is what they would like to see, but the amendment does not require the Secretary of State to do anything that is unconstitutional or wrong. That is why, as far as I am concerned, I shall not press the amendment. It is a matter that was decided on a free vote, on the issue of abortion—which is always subject to a free vote in both Houses of Parliament—and therefore I shall not press it to a Division. However, I thought it might be necessary to have further discussion on it. Having regard to the amount of discussion that took place at Second Reading, it may not be necessary to do more than introduce it and see whether anybody wants to speak.

As for the first two amendments, in the name of the noble Lord, Lord Adonis, these are quite unconstitutional. Indeed, the first, on interference in a prosecution, was a constitutional disaster in, I think, the 1920s, and as a result the constitution of the United Kingdom has not had the law officers be part of the Cabinet ever since. Decisions about prosecution are not Cabinet decisions; they are the responsibility of the law officers. In Northern Ireland, in the present situation, the Director of Public Prosecutions is the authority. Nobody has authority under our constitution to tell him what to do in relation to an existing law. The amendment is framed on the basis that this is still an existing law not to be enforced by the department. That is a completely unlawful order. The Secretary of State would be quite wrong to give guidance on that aspect in Amendment 10, and in relation to the judiciary in Amendment 11.

Amendment 16, which I have tabled, is the way that the House of Commons decided to deal with this same matter, which the noble Lord, Lord Adonis, will improve on with his amendments. The Commons agreed the amendment by a majority of about 100. As far as I am concerned, it can stand, because it does not direct the Secretary of State to do anything unlawful. It obviously hopes that the Secretary of State may manage to do something that the Commons had not quite thought of how to do itself. Anyway, that is the way it is. There is no attempt in Clause 4, as it is now as part of the Bill, to direct the Secretary of State to do anything that is necessarily unlawful.

22:30

[Baroness O’Loan]

My Lords, I put my name to Amendment 16. I should like to speak to it and, briefly, to Amendments 10 and 11.

I have no doubt that the ultimate purpose of Clause 4 and Amendments 10 and 11 is to change Northern Ireland and United Kingdom law by decriminalising abortion. This would mean that abortion would cease to be illegal in all circumstances. That means that any baby, at any stage of gestation, right up to birth, could be aborted. No human right exists to do that. I think noble Lords would wish to accept that that, at least, is true. There is no human right to abort babies as described. To decriminalise abortion would be, to my mind, the act of an uncivilised society.

We do not have any declaration of incompatibility. If we had such a declaration, it would not change primary legislation, nor would it create an imperative for changing primary legislation. The law is provided for in Section 4 of the Human Rights Act, which says:

“A declaration … does not affect the validity, continuing operation or enforcement of”,


any provision, and,

“is not binding on the parties”,

to the action. The effect of a declaration of incompatibility, which we do not have, would be not to change the law, but to ask the Northern Ireland Assembly to think about changing the law. Having considered a declaration of incompatibility, were one to exist, the Government would have the option to do nothing. The noble and learned Baroness, Lady Hale, in her Supreme Court judgment, said that Strasbourg would have regarded doing nothing,

“as within the UK’s margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day”.


The Secretary of State is the representative of the UK Executive. She is not the Northern Ireland legislature for any purpose of considering a change in the law. It is not for the Secretary of State to assume the role of the Northern Ireland Assembly to change primary legislation—nor has she indicated any wish to do so—or to issue new guidance pursuant to primary legislation.

Since health and justice are devolved matters, since this Bill does not change the law on abortion in Northern Ireland, and since the courts have no power to change the law in this respect in Northern Ireland and have not done so, the law stands. Since the matters referred to in Clause 4 and Amendments 10 and 11 are matters of law in Northern Ireland, and since only the legislature in Northern Ireland may make law in respect of those matters, it must surely be illogical to ask the Secretary of State to issue guidance, which would be incompatible with that law.

I have nothing more to say on the matter, other than that we need to think very carefully, and that Amendments 10 and 11, as the noble and learned Lord, Lord Mackay, says, direct the Secretary of State to do something that would be unlawful.

[Lord Alderdice]

My Lords, it may have come to your Lordships’ attention that anybody from this side of the water telling Northern Ireland politicians what to do is likely to bring about exactly the opposite result to the one they want. What is much more likely to affect Northern Ireland politicians is when their own people start to say things to them. On issues such as abortion and divorce, it is very clear that on the island of Ireland the views of the population have changed quite dramatically in a relatively short period. That is why I do not depend on opinion polls, which are notoriously unreliable in all sorts of ways, as has already been pointed out, depending on what questions you ask, in what kind of way, of what group of people at what particular stage. That is why at Second Reading I asked the Minister whether he might give consideration, at an appropriate time, to whether it would be in order under the terms of the Bill, as it has come to us from the other place, for the Secretary of State to consider recommending referendums on these two issues to be carried out with the people of Northern Ireland.

If the people of Northern Ireland said to their elected representatives, “Actually, we have a different view from the one you think we have and things have changed a lot for us in the last little while”, that would be a much more appropriate and effective way of making change, although if the people of Northern Ireland take a different view from that which might be expected, that is an important issue that must also be respected. It is not reasonable or acceptable to say that something is a devolved matter but if you do not make the decision that the people in London like we will stop it being a devolved matter. That is not a very human rights-based approach to things. But I believe that dramatic changes are taking place in the views of the people of Northern Ireland on many issues and the only way for us to become clear about that is to put it to the people in a clear fashion. I wonder whether the Minister might be able to help us on this, either tonight or in the relatively near future.

[Lord Bruce of Bennachie]

My Lords, my noble friend Lord Alderdice has made a fairly constructive suggestion, which has already been replicated in the Republic, with quite dramatic results. But my question relates to the amendment in the name of the noble and learned Lord, Lord Mackay. I accept that the law is where it is and that if it is devolved, it is for the Northern Ireland Assembly, which does not exist, to change the law. However, the Supreme Court has already indicated that it questions whether or not the law in Northern Ireland is compatible with the European Convention on Human Rights, and has indicated that if an individual case was brought, it is likely to rule that it is not. In those circumstances, if a ruling was made that said that the law in Northern Ireland is not consistent with the convention, but there is no Assembly and no devolution, what is the mechanism by which the law can be changed to bring it into line with the European convention?

The issue on gay marriage could also move in that direction. It has not yet but given the acceptance of gay marriage more and more widely across the world, it may well become an issue where human rights law says that the right to gay marriage is a human right. If that became the case, somebody would need to change the law to bring it into line with the convention. In the absence of an Assembly—which would have to do it, whether it liked it or not, but is incapacitated because it does not exist—who would do it?

[Lord Mackay of Clashfern]

My Lords, the answer is that the Human Rights Act makes it absolutely plain that the declaration of incompatibility does not of itself change the law. If the law is to be changed, that has to be done by the appropriate legislature. In this case, because of the devolution, that would be the Assembly in Northern Ireland if it was functioning. Because of the devolution, that is the way it is: it is the Legislative Assembly that has the power to do this. There is no question of the Secretary of State being able to do it by guidance. That is out of the question. The Human Rights Act made that very plain.

There was quite an important discussion on this during the passage of the Human Rights Bill. Some people thought that the courts should be able to overrule existing statutes that were contrary to the human rights convention. But the politicians of that day, including Jack Straw, were very keen on the view that in our constitution Parliament should be supreme and the courts should not be able to overturn Acts of Parliament. That is a matter for Parliament itself. Of course, as I said at Second Reading, the great example of that in our arrangements recently has been the issue of prisoners’ voting rights because it was declared incompatible and yet Parliament decided not to change the law for some considerable number of years.

[Lord Shinkwin (Con)]

My Lords, I shall speak to Amendment 16, in the names of my noble and learned friend Lord Mackay and the noble Baroness, Lady O’Loan. I thank them for tabling the amendment because I have a direct personal interest in it, having been born with a severe disability. My objection to the current Clause 4, which I appreciate was not part of the original Bill, is twofold.

First, I object on the grounds of inequality. As noble Lords will know, I do not take a position on abortion itself, but I most definitely do take a position on disability equality. Though supposedly about advancing human rights, Clause 4 is actually about a hierarchy of human rights. It is, in effect, about denying the right to exist of, and the equality of, human beings diagnosed with a disability before birth, and ensuring that the power—dressed up as rights—of stronger human beings reigns supreme.

A world in which one group’s equality is more important than another’s is not equality; it is inequality. Clause 4, perversely, would achieve the opposite of its presumed purpose: it would entrench inequality. The argument which was advanced forcefully in the other place—that this is somehow about equality—is therefore bogus. The fact is that if Clause 4 becomes law, more human beings with my condition and other disabilities will be aborted. As it stands tonight, Northern Ireland is the safest place in our United Kingdom to be diagnosed with a disability before birth. That will change if Clause 4 is allowed to stand part of the Bill, because the presumed protection against the most lethal form of disability discrimination—death for disability—will be gone, in time.

A quick glance at the Department of Health’s own statistics tells us everything we need to know about what would happen. I wonder, would any noble Lord care to hazard a guess at the trends in disability-related terminations? Only last week noble Lords may have read about the amazing breakthrough in intra-uterine surgery on human beings diagnosed with spina bifida before birth. Indeed, human beings diagnosed with my condition—brittle bones, which put me in hospital for most of my childhood—can now be treated from the moment of birth with medicines such as bisphosphonates, to ameliorate even some of the most severe forms of the condition. Some people with my condition lead perfectly normal lives, to the extent that they can play sport.

22:45

Yet the direction of travel is one way, and we are going at a disturbingly faster and faster rate. Despite wonderful medical advances, between 2007 and 2017 the number of terminations on the grounds of disability increased by a massive 63%. In the same 10-year period, terminations for Down’s syndrome increased by 45%, and the figures for the 20 years between 1997 and 2017 are even worse. If you took the disability death toll as the key performance indicator of the success of this measure, we could not get a higher score, for the simple reason that the increase in Down’s syndrome abortions in that 20-year timeframe is 100%. That means that in 2018, in the rest of the UK we can “boast” that 90% of human beings diagnosed with Down’s syndrome before birth never see the light of day. So much for human rights. So much for equality.

If Clause 4 is left in the Bill, the one part of the UK that has done so much to challenge and break down bigotry since the Good Friday agreement will have bigotry foisted upon it under the perverse pretence of advancing human rights. No wonder, as we have heard, that recent polling shows that the people of Northern Ireland are dead against it.

My second objection is that it is not for us to tell the people of Northern Ireland what to do on this most contentious of issues. We should respect the people of Northern Ireland, not belittle them.

I close by asking this question. What is the message that your Lordships’ House will be sending to people born with a disability if we allow Clause 4 to stand part of the Bill? Surely it is this: “We believe that you would be better off dead; we believe it would be better if you had never been born, because of your disability”. So I ask my noble friend the Minister to take this opportunity to reassure me that the Government do not believe that I, as a Member of your Lordships’ House, would be better off dead and indeed that the Government do not believe that disabled human beings like me would be better off never having been born. I also ask my noble friend the Minister to reassure me that the Government will insist on protections, so that that message can never be given in practice by changes to the law and to practice in Northern Ireland.

[Lord Morrow (DUP)]

My Lords, I congratulate the noble Lord, Lord Shinkwin, on his excellent speech. I think he has captured it all here this evening, and I put on the record my appreciation of what he said.

I shall speak to Amendments 16, 10 and 11. I begin by responding to the amendments tabled by the noble Lord, Lord Adonis. I shall first touch briefly on the effect of each before reflecting on their immediate implication and then on their broader constitutional consequence. If the departments were advised not to enforce Sections 58 and 59 of the Offences Against the Person Act, it would allow abortion for absolutely any reason up until 28 weeks’ gestation. It would propel Northern Ireland from a place where it has the highest abortion legislation in the British Isles to having the loosest. In supporting this measure, parliamentarians from England, Scotland and Wales would be thrusting on Northern Ireland a far more liberal abortion law than they think appropriate for themselves. There is simply no justification whatever for this approach.

Setting aside the fact that no declaration of incompatibility was made by the Supreme Court in June—and that even if it had been, it would not have changed the law—the only criticism in the obiter comments was in relation to abortion in two very narrow contexts: first, when a baby is so severely disabled that there is a likelihood that it will die in the womb, will not survive birth or will die soon after; and, secondly, when a baby has the misfortune that the father was a rapist. This would not justify anything remotely resembling not enforcing Sections 58 and 59. Indeed, adopting such a course would be diametrically opposed to the statement by the court that Northern Ireland’s abortion law—Sections 58 and 59—is human rights compliant in prohibiting abortion on the basis of severe malformation.

The amendment is also deeply problematic because of the way in which it would expose people to the risk of prosecution. In the first instance, where these amendments would direct departments not to enforce the law, the law would remain in place. The Secretary of State would effectively be directing departments to make people aware that the law would not be enforced by them—which is likely to result in some people feeling more at liberty to break the law. This, however, would not stop private prosecutions. It is not right that we ask the Secretary of State to put officials in a position where they send out messages that are likely to result in some people breaking the law, thinking they will not end up in court when they will. This would be monstrous.

Amendment 11 is also deeply problematic. If the hope is that officials enforce Article 15 of the Matrimonial Causes (Northern Ireland) Order 1978, the amendment is misconceived. That piece of legislation relates to the conduct of judges, not departmental officials. If the hope is that officials will enforce Article 15 of the order by directing judges, that also will not work because it would contradict the principle that the judiciary is independent and not instructed by the Executive.

There is an even more profound difficulty with both amendments and their attempt to encourage the Executive to dispense with enforcement of the law. In examining them both, one cannot help but think of that very formative period in our history that, arguably, has done more than anything else to give us the constitutional system of government that we enjoy today. The Glorious Revolution was, in part, a response to the tendency of James II to dispense with the enforcement of laws—laws that remain on the statute book. His actions created a constitutional crisis that provoked the Glorious Revolution.

I know that the parallels are not exact. The noble Lord, Lord Adonis, is not a king: nor does he claim to be. He is raising this as a parliamentarian and suggesting that Parliament takes this step. However, I feel deeply uncomfortable about the idea of Parliament sanctioning one law to undermine another one that remains on the statute book. There is a real sense in which effectively he is asking Parliament for permission to overthrow the sovereignty of Parliament. This request is wrong-headed, and acceding to it would be destructive of our laws.

I support Amendment 16, in the name of the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan. It seems to me that Clause 4 is one of the most problematic provisions in the Bill. Although those who secured the inclusion of Clause 4 believe that Northern Ireland’s abortion law has been declared incompatible with human rights, no such declaration has been made. Even if a declaration of incompatibility had been made, it seems that the champions of Clause 4 have completely misunderstood what it means. When a declaration of incompatibility is made, the law is not changed and does not have to change. This point is made absolutely clear by Section 4(6) of the Human Rights Act 1998. The fact that, constitutionally, a declaration of incompatibility brings with it no imperative for legal change is set out very clearly by the noble and learned Baroness, Lady Hale, in paragraph 39 of her judgment in the recent Northern Ireland Supreme Court case back in June.

I now turn to examine some of the specific problems with the understanding of how the declaration of incompatibility applies in the context cited by Clause 4. The first specific example of incompatibility is set out in paragraph (a). This statement is problematic for two reasons. First, as I have already noted, no declaration of incompatibility was made; and secondly, again as already noted, the majority of the noble and learned Baroness’s commentary in the Supreme Court judgment also questioned the balance struck by the law in Northern Ireland in two very narrow contexts—foetal abnormality and rape. The commentary did not provide any justification for suggesting a general problem with Sections 58 and 59 of the Offences against the Person Act. Repealing Sections 58 and 59 would result not simply in adjusting the balance of rights in relation to those two specific contexts, but instead would permit abortion on demand for any reason up to 28 weeks’ gestation. The idea that the majority of her commentary suggests a problem with Sections 58 and 59 of the Offences against the Person Act per se is extraordinary. Subsection (1)(b) is equally confusing.

It is plain wrong to suggest that the Supreme Court has identified any human rights problem with Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003. There is a challenge to that provision before the Northern Ireland Court of Appeal, the case having already been rejected by the High Court. To date, however, the definition of marriage has not been considered by the Supreme Court.

Having considered the immediate problems with both provisions, I now turn to the wider constitutional point. It cannot be right to require the Secretary of State to produce guidance for officials that has the potential to critique or undermine existing legislation. The only guidance that it would be proper for the Secretary of State to provide, mindful of Section 4(6) and Section 6 of the Human Rights Act, is guidance that upholds current primary legislation unless and until it changes. For the Secretary of State to do anything else would undermine the rule of law.

Mindful of this I have asked the Minister for an assurance that any guidance issued under Clause 4 will make plain, first, that even binding declarations of incompatibility do not have the effect of changing the law or of creating a legal imperative requiring the law to be changed in line with Section 4(6) of the Human Rights Act; and secondly, that no convention right can negate contrary to domestic legislative obligations in line with Section 6 of the Human Rights Act. Unless and until such a time as the law is changed, any guidance provided by the Secretary of State must require officials to uphold that law as it stands.

[Lord Cashman (Lab)]

My Lords, I speak in favour of the principles outlined by my noble friend Lord Adonis in Amendments 10 and 11, and against Amendment 16. I will be very brief indeed. Basically I am speaking in defence of Clause 4 because I believe that I have listened to a misrepresentation of that clause. For me it is as simple as this: the women of Northern Ireland and the lesbian, gay and bisexual people of Northern Ireland should be afforded exactly the same rights and opportunities as other citizens across the rest of the United Kingdom, and no one should face discrimination based on where they were born or where they now live. For those reasons, I support my noble friend’s amendments, but particularly Clause 4 as it stands.

23:00

[Lord Browne of Belmont (DUP)]

My Lords, I have listened very carefully to the wise words spoken by the noble and learned Lord, Lord Mackay, so I very much welcome Amendment 16. I want to say a few words about Clause 4. The architects of Clause 4 in the other place were very clever, and I pay tribute to their ingenuity. The word “functions” is dropped into Clause 4 in an attempt to make it fit, but it is no more than a fig leaf. Clause 4 is not about functions; it is about policy. This is not the appropriate legislative vehicle for this clause, touching as it does on sensitive issues that are highly controversial, particularly in Northern Ireland.

Regardless of our views on abortion and marriage—and there is a divergence of views right across this House—we can surely agree that they are issues deserving of proper attention and debate. A clause of this kind in a Bill of this kind does not provide that opportunity. What we have here, I rather suspect, is an attempt to change the law through guidance. It cannot work—any change would require legislation—but it is seeking to influence key devolved policy matters that should be decided by a Northern Ireland Executive and Assembly. It is proper for those matters to be dealt with by the devolved institutions. Northern Ireland is the most recent part of the UK to vote on abortion law. In 2016 a clear majority of Assembly Members voted to retain the current law. We should be very wary of undermining devolution, or being seen to undermine it. There is a risk that this clause creates a dangerous precedent for interference that could have wider consequences for our constitutional arrangements. Clause 4 is inappropriate, poorly drafted and should have no place in this Bill.

[Baroness Barker]

The noble Baroness, Lady O’Loan, and the noble Lord, Lord Alton, have repeatedly said that there is no right to abortion, but your Lordships will know that time and again international courts and the UN have agreed that access to abortion is a right under Article 8. There are many rights that are not set out specifically in the convention, but the right to privacy and the right to family life are inextricably linked to control over one’s body and reproductive rights.

Therefore, I ask your Lordships to vote against the amendment of the noble and learned Lord, Lord Mackay, if it is put a vote, which I hope it is not. It inserts a reference to Section 6 of the Human Rights Act, and that is designed to constrain what the Secretary of State for Northern Ireland could include in guidance. That would be most likely used to declare that the current criminalisation of women who end their own pregnancies in Northern Ireland is acceptable under human rights law, because it is as a result of one or more of the provisions of primary legislation and the authority could not have acted differently. Specifically mentioning Section 6 of the Human Rights Act could require that guidance be issued that knowingly contravenes Article 8 of the European Convention on Human Rights—the right to privacy and family life. There have been many mentions of the court case in June, and we know that there will be a case before the Supreme Court later this year. It is important, therefore, that the guidance issued in Northern Ireland is sufficiently up to date to ensure that the men and women of Northern Ireland do not lose the access to human rights that the rest of us have.

This is a wrecking amendment, it would overturn the decision made by a majority in another place, and I hope therefore that all noble Lords will resist the amendment of the noble and learned Lord this evening.

[Baroness Smith of Basildon]

My Lords, I had not expected to be on so soon. Many of us in the Labour Party have some form on debating Clause 4. I am nothing if not consistent: I want to keep Clause 4. It is worth reminding ourselves what Clause 4, which was voted into the Bill by a cross-party majority of almost 100 in the House of Commons, says. It came on the back of a decision by the Supreme Court in June that Northern Ireland abortion law was “untenable and intrinsically disproportionate” in relation to rape and incest, which are criminal matters, and fatal foetal abnormality. The House of Commons looked at this issue within the confines and context of the Bill and also at gay marriage, which is possible in the rest of the UK as a result of a law passed in your Lordships’ House.

Noble Lords have rightly said that Clause 4 does not change the law but states that, in the absence of a Northern Ireland Executive to scrutinise the impact of laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations, the Secretary of State for Northern Ireland is required to provide clear guidance to Northern Ireland civil servants on the operation of these laws, and to update the House each quarter on how she plans to address the laws’ impact on the UK’s human rights obligations. This is exactly what has been agreed by the House of Commons by a large majority.

I understand why the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan, have brought forward this amendment. It recognises that the existing law may contravene the European Convention on Human Rights but then says that the Secretary of State can do nothing about it. That does not seem to be a position which your Lordships’ House would want to be in. Like my noble friend Lord Cashman, I understand the sentiments and principles behind the amendment in the name of my noble friend Lord Adonis. We think alike on these issues. I struggle with the concept of issuing guidance to civil servants not to enforce legislation. Guidance is not the way to do it, and that is why the House of Common has taken the approach that it has.

All noble Lords understand that these issues evoke emotional responses. They are difficult, personal issues, which is why this is a matter of conscience and there is a free vote in both Houses of Parliament. The House of Commons sought a way forward which is both proportionate and within the terms of this legislation. As I said once before within my own party: I urge your Lordships’ House to protect Clause 4.

[Lord Duncan of Springbank]

My Lords, this has been a thought-provoking, considered contribution to the debate this evening. At the outset, I draw the attention of the Committee back to the functioning and purpose of the Bill itself. The Bill is designed to ensure an opportunity to re-establish a functioning Executive. That is the ambition behind the Bill and its subsequent elements. A functioning Executive would go a long way to addressing the issues which have been raised this evening. We can be fairly clear that this matter most correctly rests with an Assembly in Northern Ireland.

The noble and learned Lord, Lord Mackay, has put forward an amendment and has graciously said that he will not put it to a vote. However, his contribution has allowed an open opportunity to explore each of the elements within the wider debate. The noble and learned Lord has been clear about the constitutionality of the amendments in the name of the noble Lord, Lord Adonis. However, the purpose behind them is understood. He too was seeking to send a message with his amendments this evening. He has done that; we have heard the message.

I also listened very carefully to the impassioned remarks of the noble Lord, Lord Shinkwin; everyone here will have been moved by them and recognised the passion with which they were given. The Government have no intention of undermining or diminishing the position of persons with disabilities. That was never an attempt or an endeavour. This Bill and any guidance it puts forward would not influence Northern Ireland departments to act in any way which is not compliant with Section 75 of the Northern Ireland Act 1998, which includes provisions to ensure equality between people with disabilities and people without disabilities. I recognise, however, exactly the points the noble Lord made, and they are perhaps for us all to reflect upon this evening. This is, as a number of noble Lords have made plain, a matter of conscience, and I have no doubt that many this evening will be considering these elements as they listen to the ongoing remarks.

I am also taken by the ideas put forth by the noble Lord, Lord Alderdice. Two things become clear to me. Public opinion is a curious thing. Sometimes we think that we know what it is, and sometimes we are wrong, but I think he is absolutely correct that there has been an evolution in public opinion within Northern Ireland. Exactly what it is and how it can be determined can be captured in snapshots of opinion polls, which are like the blink of an eye. Sometimes they change, and it is very hard to pin them down. I cannot make any commitment regarding his novel idea of referendums, but I would like to discuss that further. If he is amenable, I would like to sit down in the future to explore that very thing. However, it is of course not for this particular Bill to move that matter forward.

[Baroness O'Loan]

The noble Lord, Lord O’Shaughnessy, told me that the Government’s position was that there would be no move on abortion by this Parliament as long as the Northern Ireland Assembly was in devolution mode. I do not think it is helpful for the noble Lord to suggest that there be a referendum on abortion in Northern Ireland at this time of night, in this Bill. Even to discuss it, I think, is most unhelpful.

[Lord Duncan of Springbank]

I hope the noble Baroness will forgive me, but I disagree with her on this. I do not think that, in opening up a discussion with the noble Lord, Lord Alderdice, we are doing anything other than recognising that there are challenges ahead, in respect of which this is but one opportunity to progress. It is not my intention that we will do any more than discuss this; indeed, it is far too great a discussion to have. Equally, this is perhaps not the correct Bill through which to do it, and this is not the right time of day to have such a detailed discussion.

I recognise a number of the points which were made by the noble Lords this evening. I am guided, in truth, by one simple fact. Clause 4 as drafted does not in any way instruct the Secretary of State to issue guidance to civil servants in Northern Ireland to disobey the law. It cannot do that in any way whatever. Given our earlier discussions about the challenges facing the civil service in Northern Ireland, perhaps this would be one burden too far, to try to encourage movement in that direction. Our purpose here is to ensure that, in recognising that Clause 4 came to us with overwhelming cross-party support from the other place, we acknowledge that that came from a democratic House. We must recognise what it represents and understand how best to take it forward. That is exactly what we will do, and we will do so carefully and in a very transparent manner. That is what is required from this particular clause. We will not be issuing guidance that seeks to undermine the letter of the law, in effect usurps it or changes it in any fashion whatever. We cannot and should not do that. I stress again that this is a matter correctly to be taken forward by the democratic Assembly of Northern Ireland.

On those points, my Lords, I hope that you will find it acceptable not to move your amendments to a vote.

[Lord Adonis]

My Lords, I assure the noble Lord, Lord Morrow, that I have no intention of becoming King James III, and can I assure the noble and learned Lord, Lord Mackay, that I am only too well aware of the defective drafting of Amendments 10 and 11. It was no part of my purpose to abrogate the proper operation of the law. I was simply advised by the Clerks that, because of the limits of the current Bill, it was not possible to have a straightforward proposal in it to legalise abortion and equal marriage, so in order to enable a debate to take place, the amendments were moved in the form that they were. However, I recognise that the noble and learned Lord does not intend to press his amendment, and nor do I intend to press mine. As the Minister rightly said, I was simply seeking to set down a marker for what the Northern Ireland Assembly will need to deliberate on—assuming there is an Assembly. I need to say in conclusion that if there is not a Northern Ireland Assembly within a reasonable period of time, I do not see how this Parliament can abrogate its responsibility for maintaining fundamental human rights in Northern Ireland.

23:15

The suggestion of the noble Lord, Lord Alderdice, of a referendum is an interesting one, which I am glad to hear the Minister say he is prepared to discuss further. After the experience of the last few years, I am not wildly enthusiastic about referendums. I note that the reason why the referendums on equal marriage and abortion needed to take place in the Republic of Ireland was that its own constitutional provisions enabled the constitution to be amended only by means of a referendum. I hope that these matters can be resolved by the Northern Ireland Assembly but if it cannot, a way will need to be found to resolve them. I do not believe that your Lordships’ House or the other place, on the basis of the vote in the House of Commons last week, will be prepared to see the existing law continue for long. On that basis, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

Amendments 11 to 13A not moved.

Amendment 13B

Moved by

[Lord Trimble]

13B: Clause 3, page 3, line 11, at end insert—
“(4A) If the Secretary of State deems it in the public interest for a senior officer of a Northern Ireland department to exercise a function or functions of that department during the period for forming an Executive, the Secretary of State may summon the Northern Ireland Assembly to debate the issue.(4B) A debate under subsection (4A) may not extend beyond four hours.”

[Lord Trimble]

My Lords, I welcome the opportunity to stand after sitting for so long. Amendment 13B, in my name, is grouped with two amendments in the name of the noble Lord, Lord Adonis, but I see no overlap between the two. The noble Lord’s amendments relate to the early stages of the process, when the Secretary of State has to formulate and issue guidance, whereas I look beyond that to what the operation might be.

From the point when the Assembly collapsed, I turned my mind to ways in which we might get it going again or find some way of substituting, or other ways of carrying out what Northern Ireland needs. I still feel that the suggestion of the Welsh model was quite good, but it became clear that it was far too much for the Northern Ireland Office to digest and that my rather ambitious proposals would not get anywhere. I have therefore gone to the other extreme and drafted something as short and simple as can be, but which would give the opportunity for a significant step forward.

The amendment takes off from the provisions in the Bill whereby senior officials in the Northern Ireland Administration can exercise, if they think it is in the public interest, the powers that they have under the legislation, which goes right back to the 1920 Act. I took that and added to it a proposal that the Secretary of State may, where she or he is satisfied that it is in the public interest, summon the Northern Ireland Assembly to debate the issues that they have in mind. This is entirely discretionary on the part of the Secretary of State. It does not compel her to take any particular action but gives her the opportunity to bring the Northern Ireland Assembly together to discuss how the powers referred to in this legislation are carried out. That would be beneficial to the Northern Ireland Office and to the Government. They would then have the opportunity to discuss what they are doing, or to see other people discussing what they are doing at some length and, I hope, with some degree of careful examination of the matter. This would improve the quality of what has been done and, as I say, would give the opportunity to move in that way. I will not go into this in detail, but a serious debate by the elected representatives is bound to add something to the quality of the Administration and is worth having.

There is also a political aspect to this, because if we had this implemented—again, it is entirely at the discretion of the Secretary of State; I am not saying that she must do this, and it could be that it is not operated—by bringing the Northern Ireland Assembly together, we would be taking a concrete step towards it coming back as it should. It adds something to the discussions that the Government may be having in trying to persuade the parties to sort out their differences and then return to the Administration. By having it in operation, even if only for a few hours on particular issues, we would make it clear that it is possible that the Assembly can work again, and will work again. Having got that initial first step, it will be easier, I hope, to take other steps beyond that.

This is a very modest amendment and I shall not press it to a vote. It is purely discretionary; nobody is obliged to do anything with regard to it. I shall not spin out the discussion any further. I think the best thing I can do for the House tonight is to sit down and let things take their course. I beg to move.

[Lord Alderdice]

My Lords, there is one reason why I would support the amendment that the noble Lord, Lord Trimble, has put forward: from the beginning, the element of the Northern Ireland institutions that worked rather well was the Assembly itself. When it came to the Executive functioning, that was much more contentious and difficult, but the Assembly functioned rather well. The idea of finding ways in which the Assembly could start to meet again, to debate issues of some substance that would increase, to some extent, the accountability of the Government side—be it civil servants or others—is a good one. To simply bring the Assembly back together for one occasion to debate a contentious issue would potentially be damaging because the old splits would re-emerge. To come together on a number of occasions to debate issues that are not necessarily of high contention but are nevertheless important seems to me a good idea. Whether one follows the very specific proposal in this amendment, or some of the other ideas that the creative mind of the noble Lord, Lord Trimble, has produced over the last little while, the principle is important and merits exploration by the Government. To that extent, I support the amendment.

[Lord Adonis]

My Lords, I have Amendments 14 and 15 in this group. I think the noble Lord, Lord Trimble, undersold his own amendment. It seems to me that he was raising a very important principle: it should be possible for the Assembly to meet in the absence of an Executive. As somebody who looks at this from outside, it has always seemed strange to me that, because of the architecture of the Good Friday agreement, the Assembly cannot meet if it has not sustained an Executive. I do not know whether the noble Lord can tell me if it legally cannot meet. It certainly has not met in the absence of the Executive. It seems, in terms of seeking to engage the elected representatives of Northern Ireland, and encouraging them to create a context in which an Executive can be formed, what the noble Lord has proposed is extremely constructive. The Minister will be able to tell us whether legally it is possible to proceed in the way the noble Lord, Lord Trimble, has proposed. My amendments facilitate a meeting of the Assembly for the specific purpose of discussing Brexit, given that that is one of—not the only, but one of—the most important decisions that will be taken affecting Northern Ireland over the next six months. It seems highly detrimental to the people of Northern Ireland that their voice is not being taken account of in any formal way, apart from the impact that they are able to have through their elected representatives in the House of Commons. If it were possible to bring the Assembly together for the purpose of discussing Brexit in the absence of Ministers, I cannot see any good reason why that should not happen.

I understand the point that the noble Lord, Lord Alderdice, has made, which is that summoning the Assembly purely for the purpose of discussing one issue—a contentious issue—may not be the best way of proceeding. Enabling the Assembly to meet to discuss a wider range of issues and issues of immediate local concern, including many that were raised at Second Reading, such as infrastructure, public services and so on in Northern Ireland, could help to inform the decisions that officials take. That would seem to be an eminently sensible way forward, and it appears to be what the noble Lord, Lord Trimble, has in mind. However, if it were legally possible for the Assembly to meet in the absence of Ministers, I would have thought that that would be an excellent way of proceeding, and my amendments would simply include Brexit among the issues that should be discussed by any such meetings of the Assembly.

[Lord Empey]

My Lords, there might be a couple of technical issues surrounding this. As I understand it—perhaps the Minister can confirm this—under the current law the first item of business when the Assembly meets is the election of a Speaker. The Assembly would refuse to do that under the current circumstances, so that would have to be addressed.

However, there is a wider point that I want to make. I am sure that the Minister or his predecessors have been saying for more than a year that they are prepared to think outside the box. However, this is a hermetically sealed box; it has a number of combinations on it but nobody knows what they are; and it has not been opened in the past year. Not a single idea has been brought forward. For months the noble Lords, Lord Alderdice and Lord Trimble, have been putting forward options—but they are talking to a brick wall, because the principal holy grail at the moment is, “Don’t upset the Shinners”. As long as that is the driving force, we will never move a yard forward.

So I hope that the Minister will, with the Secretary of State, genuinely be prepared to look outside the box. We will be sitting here having this conversation in several months’ time, and I do not know whether these are the right options but I think that they certainly merit discussion. The Northern Ireland Office has to start thinking outside the box. I understand that the Prime Minister and everybody else is Brexit focused. The noble Lord, Lord Adonis, rightly said that this is the biggest change that has happened to us in the last 20 years and we are out to lunch. Our voice is not being heard, yet the people of Northern Ireland will be the most directly affected. It is barking mad that we are in this position—so let us genuinely think outside the box.

I hope that when he winds up, the Minister will be able to refer back to Amendments 7 and 8, which I spoke to earlier, concerning the circumstances in which our health service and other matters could be addressed in the future. These are all parts of a bigger picture. I just hope that he will persuade his right honourable friend in the other place to start thinking outside the box, because we are trapped, it is wrong that we are trapped and people are hurting. This Parliament has a responsibility towards those people, and we are not doing our duty.

[Lord Murphy of Torfaen]

My Lords, I think that there is a case for putting this on the table as a matter for discussion in the forthcoming negotiations. Obviously the Good Friday agreement is a structure that means that all sorts of different organisations have to operate at the same time. You have to have an Assembly, an Executive, a north/south ministerial body and a British intergovernmental conference with the Republic of Ireland. However, the noble Lord, Lord Empey, is right: you have to think outside the box. There has to be imagination. The noble Lord, Lord Trimble, has been talking for at least a year about using what could have been the original Welsh model, when the Welsh Assembly was effectively a very large county council. It has changed considerably over the years—in my view, for the better. But that was an opportunity for elected people in Wales to get together. We have just under 100 Members of the legislative Assembly in Northern Ireland. They do not meet formally or informally. This would give them a chance to go to Stormont and talk about issues, and also talk among themselves—to start talking again—because this is all about talking in many ways.

23:30

In the late 1990s there was an Assembly before the original Executive was set up. I was the Finance Minister in Northern Ireland and spent at least one or two days presenting the budget to the Northern Ireland Assembly, because there was no Executive. They then had an opportunity to question me as a Minister about these issues—but why cannot the same happen again? I hope that the Secretary of State and the Minister will also look at the conclusions of the Northern Ireland Select Committee in the other place, which put forward a number of suggestions not unlike the ones noble Lords have put forward in the last few minutes. It is worth thinking about—anything that brings people together is worth thinking about. It would also, as my noble friend Lord Adonis said, provide the opportunity to at least address the most significant issue facing the people of Northern Ireland—other than the restoration of the institutions—which is Brexit, which affects Northern Ireland so uniquely and strongly. It is worth thinking about, and I hope it is on the agenda for the negotiations.

[Lord Bruce of Bennachie]

Before the Minister replies, may I add that if he is minded to make a constructive response to this, might it involve scrutiny committees meeting again? That is a way of getting people to work together, and within those scrutiny committees could be a Brexit committee. The best way to break the deadlock is to get people used to the idea that they did work together and they could do it again.

[Lord Hay of Ballyore (DUP)]

I did not intent to speak on this particular issue, but we are talking about the Assembly meeting to discuss issues. This has already been on the table. All the other parties are keen for the Assembly to meet to discuss Brexit, and there are other serious issues that the Assembly could come together on—public representatives meeting and coming, as far as possible, to a consensus. This has been on the table for some time. All the other parties are happy to move in that direction, at least for the Assembly to meet without an Executive. The only party which has said no to that is Sinn Féin—so anything suggested this evening is already on the table, and it has failed. The noble Lord, Lord Empey, is right—why do we pander to Sinn Féin? We will never achieve what may be achieved in trying to get devolution up and running.

It is important that the Assembly does meet, even without Ministers and an Executive. That would be a start—discussing some major issues that deeply concern the people of Northern Ireland.

[Lord Duncan of Springbank]

My Lords, in my head I have a New Yorker cartoon of a very elegant gentleman with a cat on the floor next to its litter tray. The gentleman is pointing and saying, “Never think outside the box”.

We do need to think afresh—Amendment 13B from the noble Lord, Lord Trimble, and the other amendments from the noble Lord, Lord Adonis, do have certain impediments. The noble Lord, Lord Empey, referred to the question of the Speaker and the question of cross-party consent being one of those impediments. I do not want to end this evening’s discussion on that negative statement. Let me take away some of the ideas that have been expressed tonight. Let me think and reflect on them in discussion with my right honourable friend the Secretary of State for Northern Ireland, and let us see if we can live up to that statement of “thinking outside the box”. On that basis, I hope that noble Lords will not press their amendments.

[Lord Trimble]

I beg leave to withdraw the amendment.

Amendment 13B withdrawn.

Amendment 14 not moved.

Clause 3 agreed.

Amendment 15 not moved.

Clause 4: Equal rights for people of Northern Ireland

Amendment 16

Tabled by

[Lord Mackay of Clashfern]

16: Clause 4, page 4, line 4, leave out from “State” to end of line 15 and insert “shall issue guidance to Northern Ireland departments on the exercise of their functions in a manner which is compatible with section 6 of the Human Rights Act 1998”

[Lord Mackay of Clashfern]

My Lords, I said earlier that I would move this amendment, but since it has been grouped with the amendment in the name of the noble Lord, Lord Adonis, I think we have had plenty of opportunity to discuss it, so I will not move it now.

Amendment 16 not moved.

Clause 4 agreed.

Clauses 5 to 11 agreed.

House resumed.

Bill reported without amendment.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Report stage (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

Report

23:36

Report received.

Arrangement of Business

Tuesday 30th October 2018 Lords Chamber

Announcement

23:36

[Viscount Younger of Leckie (Con)]

My Lords, the Public Bill Office will be open to receive amendments during the next half an hour. At the end of that window, the time for the House to resume will be advertised on the annunciator. I should warn noble Lords that in the event that no amendments are tabled, the period between the end of the tabling window and the resumption of the House may be fairly brief. I beg to move that the House do now adjourn during pleasure and in so doing I suggest that the House does not resume before 12.07 am.

23:37

Sitting suspended.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

3rd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

Third Reading

00:07

[Lord Taylor of Holbeach (Con)]

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Northern Ireland (Executive Formation and Exercise of Functions) Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill passed.

House adjourned at 12.09 am.