Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (Third sitting)
Tuesday 6th July 2021
(3 years, 4 months ago)
Public Bill CommitteesNorthern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 View all Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 6 July 2021 - (6 Jul 2021)
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, I remind hon. Members to observe social distancing and sit only in the places that are clearly marked. I also remind Members that, in line with the House of Commons Commission decision, face coverings should be worn in Committee unless people are speaking or medically exempt. Electronic devices should be switched to silent mode. Tea and coffee are not allowed during sittings. The Hansard Reporters would be grateful if Members emailed electronic copies of their speaking notes to hansardnotes@parliament.uk.
We will now begin our line-by-line consideration of the Bill. The selection and grouping list for today’s sittings is available in the room. This list shows how the selected amendments have been grouped for debate and the order of debates. Decisions on each amendment will be taken when we come to the clause or schedule that the amendment would affect.
Clause 1
Period for making Ministerial appointments
Question proposed, That the clause stand part of the Bill.
The Minister of State, Northern Ireland Office (Mr Robin Walker)
It is a pleasure to serve under your chairmanship, Mr Stringer. If I may, I will speak to the first three clauses of the Bill, which do not have any amendments on the amendment paper.
Clause 1 amends the Northern Ireland Act 1998 to extend the period of time available to appoint a First Minister and Deputy First Minister after the resignation of either, or after the first meeting of the Northern Ireland Assembly following an Assembly election. Currently, the period for ministerial appointments is only 14 days from the first meeting of the Assembly after an election and seven days from the First Minister or Deputy First Minister ceasing to hold office. The Bill will extend the period for filling ministerial offices to six weeks, which is automatically renewed—unless the Assembly resolves otherwise on a cross-community basis—a maximum of three times, up to a total of 24 weeks. By extending these periods, the Bill will allow more time for discussions between the parties and for the Secretary of State to facilitate a resolution before they come under an election duty. It also allows Northern Ireland Ministers to remain in post, after an election, until the end of the period for appointing new Ministers. This change will allow greater continuity in decision making.
Under clause 2, Ministers will no longer cease to hold office after the election of a new Assembly. It provides for up to a maximum of 24 weeks after an election or for a maximum of 48 weeks since there has been a functioning Executive in place—whichever is the shorter—in which Ministers may continue to hold office, subject to those offices otherwise being filled, or if a Minister is not returned as a Member of the Assembly. This measure will ensure that institutions becomes more sustainable and resilient.
On Second Reading, concerns were raised about so-called caretaker Ministers. We are not discussing that matter at length today, but I do want to make the following points. While the Executive were not functioning, civil servants were left trying to maintain the machinery of government and to provide public services in the absence of ministerial decisions. Without the direction or control of Ministers, civil servants are significantly limited in respect of the powers that they may exercise. I want to reflect on the examples that we heard in evidence last week from Lilah Howson-Smith on public services. The health service was left to deal with “long waiting lists”; Belfast City Council was unable to resolve sewage issues; and in schools there was what Lilah described as
“a sense of overall stasis.”––[Official Report, Northern Ireland (Ministers, Elections and Petitions of Concern) Public Bill Committee, 29 June 2021; c. 21, Q24.]
Keeping Ministers in a caretaker position means that civil servants can continue to take direction and everyday issues can be resolved. Ministers will not be in post to take new decisions or implement new policy. The purpose of this measure is to ensure that Northern Ireland does not shut down in the way it did during the absence of devolved government. As Sir Jonathan Stephens said:
“The fundamental protection is the absence of an Executive if there is not a First Minister or a Deputy First Minister, meaning that significant, controversial, cross-cutting decisions cannot be taken”.––[Official Report, Northern Ireland (Ministers, Elections and Petitions of Concern) Public Bill Committee, 29 June 2021; c. 31, Q40.]
Under the 1998 Act, Ministers cannot take decisions that ought to have been taken by the Executive. We therefore believe that there is no need to provide further statutory clarifications, given that legal safeguards are already in place. We also know that the courts are ready to step in, should Ministers act unlawfully.
Let me turn to clause 3. Currently, the Secretary of State is required to propose a date for an Assembly election in the following scenarios: when the Assembly resolves to dissolve itself or when the period for appointing Northern Ireland Ministers or the First Minister and Deputy First Minister expires without those offices being filled. Clause 3 allows the Secretary of State to certify or call an Assembly election at any point after the first six weeks in the period for filling ministerial offices, if the Secretary of State considers that there is not sufficient representation among Ministers to secure cross-community confidence in the Assembly. I commend clauses 1, 2 and 3 to the Committee.
Louise Haigh (Sheffield, Heeley) (Lab)
As ever, it is a pleasure to serve under your chairmanship, Mr Stringer.
I appreciate the Minister laying out clauses 1 to 3 and his exposition of some of the issues raised on Second Reading, in particular on caretaker Ministers. As I made clear on Second Reading, we welcome these limited attempts to safeguard power sharing and to improve the sustainability of the Executive and the Assembly, which reflect commitments made in New Decade, New Approach. We believe that all parties to that agreement, including the UK Government, should fulfil all the commitments made in it. That is the basis of amendments that we will come on to.
On clause 1, I appreciate the Minister’s description of the safeguards to ensure that caretaker Ministers do not step beyond the bounds of what is reasonable. I want to tease some of that out, not to put it in statute but to make it clear on the record. On Second Reading, the Minister said that there were well-defined limits for caretaker Ministers and explained that they would be constrained by the ministerial code. Will he confirm that only the ministerial code constrains Ministers in that regard, and not the programme for government?
It will not have escaped the Minister’s attention that at the moment, there is no programme for government, so if there were to be an election and this scenario envisaged, in that situation there would be no programme for government to constrain Ministers. Also, the ministerial code is silent on powers in that situation. I will be grateful if he could make it clear which section of the ministerial code would constrain Ministers.
On the courts being able to step in to hold Ministers to account, exactly what would they hold them to account on—on what point of law, or on what code? Will he clarify that? How exactly do we stop Ministers taking decisions that are significant, controversial and cross-cutting in the absence of an Executive in that scenario? In evidence, Professor Jon Tonge posed questions that need an answer today. What ministerial decisions will be taken that are not significant, controversial or cross-cutting? Will the Minister give us examples of what does not fall in that description? In a caretaker capacity, will Ministers be able to take decisions with financial implications? The reality is that few decisions will fall outwith those scopes.
On Second Reading, we discussed the possibility of Ministers going beyond their mandate and their remit. The reality is that what we are constraining them with is potentially extremely limited. We might be in exactly the same situation as we found ourselves in during the three years of collapse, with Ministers able to take very few decisions. I will be grateful if the Minister explains how he envisages that working.
In the evidence session, Mark Durkan expressed concerns about the possibility of the Assembly being up and running for 24 weeks during this period, albeit a caretaker one, but with potentially no protection for the operation of the north-south institutions. The ministerial code is clear that Ministers are required to attend the north-south institutions, so I will be grateful if the Minister confirms that that would remain the case and that strand two of the Good Friday agreement would be respected equally in such a period, while the Assembly is up and running.
The clause also excludes the possibility of a six-week extension period for filling the offices of First Minister and Deputy First Minister if the Assembly passes a resolution to stop that extension. It further states “without cross-community support”. In evidence, concerns were expressed about exactly what cross-community support looks like in that scenario. What is his definition of “sufficient”?
Clause 3 gives effect to a point that was of some debate during the NDNA talks in late 2019 and early 2020: paragraph 3.15 of the sustainability annex to the agreement. It was aimed at ensuring that a caretaker Executive that might be in place for up to six months had
“sufficient representation to command cross-community confidence in the Assembly.”
That finds expression in the Bill at clause 3, with the authority for the Secretary of State to call an election
“if the Secretary of State considers that it is necessary to do so in order to give effect to the purpose underlying paragraph 3.15 of Annex C of Part 2 of The New Decade, New Approach Deal”.
That leaves open the possibility that all the Unionist parties or all the nationalist parties refused to continue as caretaker Ministers, but that there would not be cross-community support in the Assembly to call an election, so the caretaker Executive could limp on with only one community represented for the six months before an election had to be called, subject only to the judgment of the Secretary of State. It would of course be open to the parties to ensure representation by staying in the ministerial roles as caretakers. However, it is clearly a dilution of the safeguard and places it as much as possible in the hands of the Secretary of State.
There is a difficulty quantifying absolutely what would constitute sufficient cross-community representation in circumstances where, for example, the Deputy First Minister resigns and Ministers withdraw. The common-sense view is that it would be sufficient if either the Ulster Unionist Party or Social Democratic and Labour Party stayed on. I concede it is difficult to quantify in legislation, and would be grateful if the Minister could expand on that.
At a basic level, the safeguard could be strengthened by saying that the Secretary of State “will” rather than “may” call an election if there is not sufficient representation in the Northern Ireland Executive to command cross-community confidence in the Assembly. Is the Minister comfortable that the Bill reads the Secretary of State “may” rather than “will” call an election? Can he explain the circumstances in which the Secretary of State would not call an election, even in the absence of sufficient cross-community support?
The Chair
I make it clear to the Committee, before I call Members to speak, that the Minister spoke to the first three clauses of the Bill. We will vote on clauses 1 to 3 separately at the end of the debate.
Claire Hanna (Belfast South) (SDLP)
It is a pleasure to serve under your chairmanship, Mr Stringer. Apologies for my lateness. I was outside the Boothroyd Room, uncharacteristically on time, and am new to this process.
On the ministerial code, we welcome clause 4—
Louise Haigh
We are just doing clause 1 to 3 at the moment. We are not on to the amendments yet.
Mr Walker
I am grateful to the hon. Member for Sheffield, Heeley for her broad support for the principles of the Bill and for her questions. She asked important questions about the safeguards on what we have come to know as caretaker Ministers. It was agreed in New Decade, New Approach that Ministers will remain in office in a caretaker capacity to allow for greater continuity of decision making. The deal also stated that Ministers would be required to act within well-defined limits, including those set out in the ministerial code and the pledge of office, in accordance with the requirement for an Executive Committee to consider any decisions that are significant, controversial or cross-cutting. As appropriate, restrictions are put in place during the pre-election period.
Limits have not been defined in the legislation because we anticipate they will operate as a matter of convention, rather than a legal issue. This approach to drafting allows a degree of discretion for unforeseen circumstances. I reiterate the expectation that Ministers will act responsibly.
The NDNA deal also stated that Ministers would be required to act within well-defined limits, as set out in the ministerial code, to operate within the framework for government, as the hon. Lady says, agreed by the previously functioning Executive endorsed by the Assembly. Ministers will act in accordance with the statutory requirement, included within the ministerial code, that any decisions that are significant, controversial or cross-cutting are required to be considered by the Executive. As appropriate, restrictions are in place during the pre-election period, as I have said.
The point is that this is not a good situation to be in—we do not want caretaker Ministers to be required. We would prefer to have a fully-functioning Executive and the institutions of devolution up and running at all times. We are trying to put in place—this was agreed by all parties—is a preferable situation to leaving civil servants with no ministerial cover at all, which is important. We heard in the evidence session of the problems faced during that time.
The hon. Lady asks about the decisions Ministers will be able to take—an important question. They will be able to take decisions within their responsibilities and areas previously agreed by the Executive as a priority for their Department. That puts us in a significantly better place than the absence of devolution. She asks about the north-south institutions, and I confirm that those can operate in this scenario and Ministers will be free to take part within the broader constraints.
The hon. Lady asks about cross-community support and is right that this is important. We need to ensure that any Executive meets the requirements of power sharing. She will understand, as she set out in her explanation, why we have not written into legislation the full detail of how that could work, as there are all sorts of scenarios with different outcomes from elections and political crises that could emerge. Her example of only one party being represented in the Executive would clearly not be sustainable. We would want to ensure that the Executive represents more than one community. It is important that a Secretary of State has a degree of discretion, depending on the political circumstances, as to when to exercise that power.
On the question of “will” or “may”, if a Secretary of State were in the position where they thought they were on the verge of a breakthrough in talks, they might need that discretion, but I cannot think of any other scenario in which they would not move towards calling an election if there were not that cross-community representation. I hope I have answered the hon. Lady’s key points.
Louise Haigh
Will the Minister confirm that if a programme for government is not in place, as is the case in the current mandate, Ministers will not be able to take any decisions?
Mr Walker
I am not sure that is quite right because Ministers would be able to take decisions within their departmental remit, which are running-order decisions for their departmental business. Clearly, they would not be able to take decisions that are about making significant changes to policy. The offer of working together is also part of the pledge of office. It is an important part of power sharing and that is one of the things that they are constrained by in their activities. Where a programme for government is agreed, they will also be stuck within its limits and will be working forward with that.
As Sir Jonathan Stephens said, the fundamental protection in the case of caretaker Ministers is the absence of an Executive. If there is no First Minister and Deputy First Minister, significant, controversial or cross-cutting decisions cannot be taken by the Executive. In a resignation scenario, Assembly Committees will also continue to function for the Assembly’s duration and can continue to discharge their important duties of scrutinising Ministers and Departments and holding them accountable. Under the Northern Ireland Act 1998, Ministers cannot take any decisions that ought to have been taken by the Executive. We therefore believe there is no need to provide further statutory clarifications given that legal safeguards are already in place. We also know, and as we saw during the period of absence of an Executive, that the courts are prepared to step in if they feel that decisions are being taken beyond the remit of whoever is taking them. We have seen examples of that.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clauses 2 and 3 ordered to stand part of the Bill.
Clause 4
Ministerial Code of Conduct
The Chair
Before I call Claire Hanna, just to be helpful, once you have proposed the amendment, I will call members of the Committee, the Minister will then reply and then you can have a chance to respond. Please indicate to me and to the Committee whether you wish to withdraw or push the amendment to a vote.
Claire Hanna
I beg to move amendment 13, in clause 4, page 5, line 22, after
“be accountable to the Assembly”
insert “users of services,”.
This amendment would ensure that Ministers and Departments are accountable and responsible to users of services, as well as to the Assembly and the public.
The Chair
With this it will be convenient to discuss amendment 14, in clause 4, page 5, line 25, at end insert—
“(ba) ensure all reasonable requests for information from the Assembly, users of services and individual citizens are complied with; and that Departments and their staff conduct their dealings with the public in an open and responsible way;”.
This amendment would ensure that the principles of transparency and openness, as well as a duty to comply with requests for information, as outlined in Strand One, Annex A of the Good Friday Agreement, are maintained within the Ministerial Code of Conduct.
Claire Hanna
Thank you very much, Mr Stringer. I appreciate your guidance. We welcome the strengthening of parts of the ministerial code, which we think will protect, enhance or potentially and eventually deliver good governance in Northern Ireland. Indeed, we think it could have wider purchase. Amendments 13 and 14 refer to our concern that parts of the ministerial code that were in the Good Friday agreement in the 1998 Act have been diluted or omitted here, purposefully or otherwise, and our amendments seek to restore those.
Amendment 13 specifically mentions accountability to users of services. That is topical, as there is much discussion at the moment about the awarding of contracts for the processing of social security payments and the potential processing of the victims’ payment. Amendment 13 would restore the accountability of Ministers for the services they deliver, including the services their Departments may be delivering through a third party.
Mr Walker
I am grateful to the hon. Lady for her presentation of the amendments. We are legislating to update the ministerial code of conduct in accordance with a request made by the then First Minister and Deputy First Minister, following agreement of the revised code by the Executive Committee. The changes have not come from the UK Government; they come directly from the Executive themselves.
It is important to note that the ministerial code of conduct will continue to require that Ministers uphold the seven principles of public life, known as the Nolan principles. Some of the changes to the code that we are making will make that a little more explicit. The principles include selflessness, integrity, objectivity and—crucial to the amendment—accountability, openness, honesty and leadership.
The changes strengthen the code of conduct, as we heard from witnesses last week. We are legislating to strengthen the code to reflect the request that we received from the First Minister and Deputy First Minister, agreed by the Executive. That forms part of the wider package outlined in NDNA, which the Executive were committed to, but it will strengthen the codes governing ministerial accountability and conduct.
I gently propose that it is not for us here as Members of Parliament in Westminster to suggest amendments to a ministerial code of conduct that affects Members of a separate legislature. I urge the hon. Lady to withdraw the amendment. I assure her that the principles of openness and accountability are reflected in the original code and are strengthened in the changes we are making to the ministerial code here.
Claire Hanna
I thank the Minister. We appreciate that this flows from NDNA, but I am unclear whether there was a specific request for those particular provisions to be withdrawn. They existed before the New Decade, New Approach deal. Other aspects have been enhanced, and this one has been diluted. It is not clear to me why that would be the case—why it would have been weakened.
I will keep my powder dry, in order to perhaps push subsequent amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Louise Haigh
I beg to move amendment 4, in clause 4, page 5, line 23, at end insert
“in accordance with the current Programme for Government drawn up in accordance with section 20(3) of the Northern Ireland Act 1998 and paragraph 20 of Strand One of the Belfast Agreement,”.
This amendment requires Ministers to pay regard to the statutory duty under the Belfast (Good Friday) Agreement for the Executive Committee to seek to agree each year, and review as necessary, a programme incorporating an agreed budget linked to policies and programmes, subject to approval by the Assembly, after scrutiny in Assembly Committees, on a cross-community basis.
The Chair
With this it will be convenient to discuss the following:
Amendment 17, in clause 4, page 5, line 25, at end insert—
“(ba) seek in utmost good faith and by using their best endeavours to implement in full the Programme for Government in “The New Decade, New Approach Deal” as regards the transparency, accountability and the functioning of the Executive;”.
This amendment requires Ministers to implement the Programme for Government agreed in January 2020, as it relates to transparency, accountability and functioning of the Executive.
Amendment 18, in clause 4, page 5, line 25, at end insert—
“(ba) seek in utmost good faith and by using their best endeavours to implement in full any future deal on the operation of devolved government between the parties to “The New Decade, New Approach Deal” which may be approved by the Assembly;”.
This amendment requires Ministers to implement any future deal on the operation of devolved government in Northern Ireland.
Amendment 19, in clause 4, page 5, line 26, at end insert—
“(ca) abide by and implement in every respect Annex A to Part 2 of “The New Decade, New Approach Deal” as regards the transparency, accountability and the functioning of the Executive;”.
This amendment requires Ministers to strengthen and enforce the Ministerial Code and other codes including the Special Adviser Code of Conduct.
Amendment 6, in clause 4, page 5, line 28, at end insert—
“(da) comply with paragraph 2.11 of the Northern Ireland Executive Ministerial Code in relation to the inclusion of ministerial proposals on the agenda for the Northern Ireland Executive, with areas for resolution to be recorded in the list of “Executive papers in circulation” against those papers still outstanding after the third meeting, in accordance with paragraph 62(c) of Section F of the Fresh Start Stormont Agreement and Implementation Plan;”.
This amendment implements a commitment further to the Fresh Start Agreement providing that an item may not be blocked for more than three meetings of the Executive through lack of agreement on the agenda.
Amendment 3, in clause 4, page 6, line 8, at end insert—
“(1A) ‘Key performance targets and objects’ include commitments made in the Belfast Agreement (1998), the Hillsborough Agreement (2010), the Stormont House Agreement (2014), the Stormont House Fresh Start Agreement (2015) and the New Decade, New Approach Deal (2020).”
This amendment makes it a requirement of the Ministerial Code of Conduct that Ministers are accountable to the Assembly and the public for fulfilling the Belfast (Good Friday) Agreement and subsequent Agreements.
Louise Haigh
I shall speak to amendments 4 and 3, and in support of amendments 17, 18 and 19 that appear in the name of my hon. Friend the Member for Belfast South.
Amendment 4 seeks to address an issue that was discussed in the earlier debate—an issue that we see with the current absence of a programme for government. As hon. Members know, the programme for government is drawn up in accordance with section 20(3) of the Northern Ireland Act 1998 and paragraph 20 of strand 1 of the Belfast/Good Friday agreement. It provides Ministers and the public with a clear mandate and agenda and a basis for decision making. As we have discussed, any issue that a party in the Executive deems significant or controversial that is outside the programme for government can be referred for approval by the full Executive. Since New Decade, New Approach, that mechanism has been used on at least six occasions.
Despite the draft programme for government having been published in New Decade, New Approach, no programme has been adopted in the current mandate. The amendment would make Ministers accountable under the code of conduct for agreeing a programme for government, providing an additional layer of accountability. It would also be important for sustainability. In the absence of the powers of a caretaker Executive being codified in the Bill, the Committee is being asked to rely, in essence, on a programme for government to limit those caretaker ministerial powers. The amendment is therefore an additional safety mechanism, requiring Ministers to agree a programme for government. I would be grateful if the Minister could explain why he chooses not to accept it, if indeed he does not.
I will allow my colleague to speak on amendments 17, 18 and 19 more comprehensively, but the broad thrust of them is absolutely right and we wholeheartedly support them. Agreements made must be honoured, and too often elements of agreements made in the past—from the Belfast agreement through to the St Andrews agreement and, indeed, too much of New Decade, New Approach—have not been honoured. That has damaged trust in the operation of the Assembly and the perception of its ability to effect change. The amendments in the names of the hon. Members for Foyle and for Belfast South simply codify agreements that have already been reached. For that reason, we are very happy to support them.
Mr Walker
To respond to amendment 4, the Committee will know that clause 4 substitutes a revised ministerial code of conduct, setting out expectations on the behaviour of Ministers, including provisions around the treatment of the Northern Ireland civil service, public appointments and the use of official resources and information management. We are legislating to update the ministerial code of conduct in accordance with the requests made by the then First Minister and Deputy First Minister following agreement to revise the code by the Executive Committee. The changes, as I said, have not come from the UK Government but from the Executive themselves, to reflect what the parties agreed in the NDNA deal.
We do not think that the amendments are, in any event, necessary, as the pledge of office already requires Ministers to participate with colleagues in the preparation of the programme for government, and to operate within the framework agreed within ExCo and endorsed by the Assembly. We therefore feel that amendment 4 is not necessary, and I ask the hon. Member for Sheffield, Heeley to withdraw it.
Louise Haigh
I am grateful to the Minister for placing it on the record that the provisions in the pledge of office will constrain Ministers. I am therefore happy to withdraw the amendment.
The Chair
There was no debate on amendments 17, 18, 19, 6 and 3. I probably should have explained this at the beginning. We were debating amendment 4. I said at the beginning that it would be convenient to debate the other amendments at the same time. I think the hon. Member for Belfast South probably did not understand that. With the Committee’s indulgence, I will listen to the points that she wishes to make.
Claire Hanna
Once again, Mr Stringer, I appreciate your indulgence. I promise that we will be expert going forward, and I will be very brief about amendments 17, 18 and 19.
As the hon. Member for Sheffield, Heeley outlined, the amendments are about compelling and encouraging Ministers to implement the programme for government. Notwithstanding the fact that one is not currently agreed, a programme of work has been laid out. Amendment 18 is a pre-emptive amendment that is designed with the sustainability of the Executive in mind. It would require Ministers to implement future programmes for government. By my count we are, since 1998, yet to make it through a full mandate without at least one period of crisis talks and a refreshing of the programme for government, so it would appear to make sense to have that future-proofing amendment.
Amendment 19 would require a strengthening of the code of conduct. We have some concerns around enforceability. Members who were at the evidence sessions the other day may recall that the Speaker and staff of the Assembly were not particularly expansive in terms of how they thought that enforcement should take place. We have emerged from a period of explicit poor governance in the Assembly, with the likes of the renewable heat incentive debacle, where the ministerial code was perhaps not sufficiently powerful to curb the powers of Ministers. Amendment 19 is designed to strengthen it.
The Chair
I call Colum Eastwood. [Interruption.] I am sorry, I was looking at the names of the proposers and not around the room. I call Stephen Farry.
Stephen Farry
Thank you very much, Mr Stringer. It is a pleasure to serve under your chairmanship. I take no offence at the mis-association of me with the hon. Member for Foyle—I have been called far worse, so I will take it on the chin.
I will speak briefly to amendment 6, which appears in my name. It relates to the ministerial code and the insertion into law of what is known in Northern Ireland as the three-meeting rule, which was agreed by the Northern Ireland political parties as recently as the Fresh Start agreement in 2015. At the moment, my understanding is that it is in essence guidance and not part of law, and we see partial implementation of the rule in the Executive. Sometimes papers can be blocked for considerable periods, causing considerable frustration for Ministers. In recent weeks, for example, the Northern Ireland Health Minister has had a Bill on organ donation blocked. My party colleague, the Justice Minister, has had a Bill blocked for a considerable time.
There has been a lot of talk about the petition of concern and vetoes in discussion of the Assembly, but a lot less attention has been paid to what happens inside the Executive where, in essence, there are two vetoes. The first is in the way in which the First Minister and Deputy First Minister have almost full control over the Executive agenda. It takes almost a double sign-off from both for a matter even to get on to the agenda for debate. Secondly, a cross-community veto can be deployed by three Ministers to block a decision. My amendment addresses the former issue of the agenda, so that there is at least scope for a discussion and a vote to take place on any Executive paper. No Minister puts a paper to the Executive that is without merit, and they all deserve discussion.
The purpose of amendment 6, in essence, is to put into the ministerial code something that has already been agreed by the Northern Ireland political parties in the Fresh Start agreement of 2015.
Gavin Robinson (Belfast East) (DUP)
It is a pleasure to serve under your chairmanship, Mr Stringer.
I promised myself this morning that I would not get into the mould of opposing every amendment that has been proposed by my colleagues from Northern Ireland, but I have a couple of points to make about SDLP amendments 17, 18 and 19, which were tabled by the hon. Member for Belfast South. The danger is that we seek to legislate too much on such issues. I understand entirely the thrust of her argument and, indeed, the way in which the amendments have been structured is to talk of best endeavours and the relationships that we want to see in our political situation. In truth, however, they bring with them no legislative consequence should we not see best endeavours. How I would frame it is that if we need to rely on such provisions being in legislation, the system is not working as it should in any event. Without a consequence, and given the positive but loose nature of the amendments, I do not think that the proposals would add significantly to the Bill or to the agreement reached in New Decade, New Approach.
I also understand why the hon. Member for North Down has advanced amendment 6. He served in the Executive when I was a special adviser in the Office of the First Minister and Deputy First Minister. He will understand not only that the nature of that joint office brings political challenges with it, but that there is still an importance of that office’s chairing and maintaining the efficiency of the business brought before the Executive. He and I will both remember times when things were much more terse around that table, but to reflect on his time as a Minister, whenever he brought forward papers for the Department for Employment and Learning, we engaged in discussions prior to any difficulty emerging around an agenda. His special adviser and I used to spend a lot of time problem solving before issues were brought formally to the agenda.
Mr Walker
I am grateful to all hon. Members who have spoken in this discussion of the amendments. The hon. Member for Belfast East brings important experience from his time working with the Executive. I also recognise that the hon. Member for North Down represents an important strand of opinion in that respect and, indeed, has great experience.
Turning to amendment 17, although the parties made a commitment in New Decade, New Approach that the Executive should bring forward a programme for government, Westminster cannot compel them to deliver a particular programme for government, and nor should we. The programme is for the Executive and Assembly to determine and agree, as is set out in paragraph 20 of the Belfast/Good Friday agreement:
“The Executive Committee will seek to agree each year, and review as necessary, a programme incorporating an agreed budget linked to policies and programmes, subject to approval by the Assembly, after scrutiny in Assembly Committees, on a cross-community basis.”
That is implemented in law by section 20 of the Northern Ireland Act 1998. We therefore ask that amendment 17 be withdrawn.
Turning to amendment 18, the purpose of the Bill is to implement reforms to the institutions of Northern Ireland agreed in the New Decade, New Approach deal, not to use the ministerial code of conduct as a means to instruct Ministers to implement future deals. I appreciate the optimism of the hon. Member for Belfast South in seeking to legislate for future potential deals—or perhaps pessimism that they might be required—but I do not think that it would be appropriate to use the ministerial code of conduct. Should we need to revisit the code in the future, we should do so then. I therefore ask that amendment 18 be withdrawn.
Turning to amendment 19, although we acknowledge the importance of the Executive producing strengthened drafts of their relevant codes, as is set out in annex A to part 2 of the NDNA deal, that is an action for the Executive. We therefore do not think that it is appropriate at this moment for Westminster to legislate on it. It is for the Executive to agree to the amendments to relevant codes and, where appropriate, they must be agreed by the Assembly. It is not for this Parliament to make those changes. The hon. Lady will be aware that the Assembly has recently legislated in respect of some of these matters in the Functioning of Government (Miscellaneous Provisions) Act (Northern Ireland) 2021. That is the appropriate forum for such provision to be made.
Turning to amendment 6, as I have mentioned we are here to amend the ministerial code of conduct in line with requests received from the Executive and approved by the Office of the First Minister and Deputy First Minister. I acknowledge the concerns that the hon. Member for North Down raised about the process to secure Executive discussions on specific issues, and the points that the hon. Member for Belfast East made about the importance of having discussions behind the scenes about them. Ultimately, though, parties did not agree to address that as part of the NDNA deal, and it is not for Westminster to try to go beyond the carefully agreed package of reforms in the Bill.
The Bill is not, of course, the only or final means through which reform to the governance of the institutions of Northern Ireland can be delivered, but we will be guided by the needs and requests of the Executive. Should there be further consensus from the parties that they would like to revise the issue of alternative vetoes, we stand ready to support that, but I say to the hon. Member for North Down that that is not part of the deal that we are in the process of implementing. I therefore urge him to withdraw amendment 6.
The Chair
As the Opposition do not wish to press amendments 4 or 3, I call Louise Haigh to withdraw amendment 4.
Louise Haigh
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Claire Hanna
I beg to move amendment 15, in clause 4, page 6, line 11, at end insert—
“(3) If an investigation by the Commissioner for Standards finds that a Minister has breached the Ministerial Code of Conduct by engaging in harassment, bullying or inappropriate or discriminatory behaviour, then the Minister shall be deemed to have resigned their ministerial post at midnight on the day of the report’s official publication, unless they have resigned before this time.”
This amendment would ensure that if the Commissioner for Standards found that a Minister had engaged in harassment, bullying or inappropriate or discriminatory behaviour, in breach of the Ministerial Code of Conduct, then the Minister would be deemed to have resigned.
The Chair
With this it will be convenient to discuss amendment 16, in clause 4, page 6, line 11, at end insert—
“(3) Ministers shall cooperate with any relevant investigation by the Commissioner for Standards, give due respect to the findings of any report by the Commissioner in respect of themselves or their Special Advisers and responsibly reflect on the findings of other reports by the Commissioner in order to enable them to duly comply with the obligations of their Pledge of Office, the Ministerial Code of Conduct and/or related rules or codes.”
This amendment would ensure that Ministers cooperate with any investigation and give due regard to existing standards including reports from the Commissioner for Standards.
Claire Hanna
These amendments are part of the same package. Essentially, amendment 15 would ensure that if the Commissioner for Standards found that a Minister had engaged in harassment, bullying or inappropriate or discriminatory behaviour—
Claire Hanna
Certainly, Mr Stringer. In that case, the Minister would be deemed to have resigned. Amendment 16 would ensure that Ministers co-operated with any investigation and gave due regard to existing standards, including reports from the Commissioner for Standards. The Minister has made an argument, about legislating for the ministerial code of conduct within the Assembly, that I think has the broad support of this Committee, so I will be happy to withdraw the amendment.
Mr Walker
I am grateful for the hon. Lady’s indication that she is prepared to withdraw the amendment. I will just offer a little further explanation. I understand the intent behind the amendment and agree that there should be a fair system of checks and balances through which to hold Ministers accountable. Provision for that already exists in section 30 of the Northern Ireland Act 1998: if the Assembly resolves that a Minister or junior Minister no longer enjoys the confidence of the Assembly, or the Secretary of State is of the opinion that such a resolution should be considered, the Minister can be excluded from holding office for a period of not less than three months and not more than 12 months. As that provision already exists, I ask the hon. Lady, in addition to making the points that she has made, to withdraw the amendment.
Claire Hanna
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 ordered to stand part of the Bill.
Clause 5
Petitions of concern
Stephen Farry
I beg to move amendment 7, in clause 5, page 7, line 12, leave out from “or” to end of subsection.
If appropriate, I will also address the other amendments in my name to this clause in relation to the petition of concern. The petition of concern is something that my party and, indeed, many others have been—
The Chair
Order. This debate is specifically on amendment 7. We will come later to amendment 11, and we will discuss amendment 12 with amendment 11. This debate is just on amendment 7.
Stephen Farry
I apologise, Mr Stringer. I will focus exclusively on amendment 7. My party has been very keen to see the petition of concern amended. Our views and, indeed, those of many others on this issue are very clear. In some senses, it would be almost logical for us to try to make the signing of a petition of concern as difficult as possible. However, I was very struck by evidence that we received orally last week and also in writing from the Speaker of the Assembly. Concern was expressed that if the proposal for Deputy Speakers not to be able to sign a petition of concern were put into law, that might well deter people from coming forward to become a Deputy Speaker in the Northern Ireland Assembly. It is worth referencing the fact that the way Deputy Speakers operate there is somewhat different from the practice at Westminster, in that they continue to have a political role.
I should say that my party does not have at present a Member of the Assembly who is a Deputy Speaker, and nor do we intend to seek any of those offices in the future, so I may be speaking from a position of a certain objectivity in this regard. I do think it is worth the Committee’s considering whether what was a sincere commitment made in New Decade, New Approach—I accept that it is in black and white in that document—may have, in the cold light of day, some unintended consequence and therefore that there may be some scope for reconsideration. I would be happy to hear the views of other Members in that regard.
Gavin Robinson
I just want to give my reflections on the evidence that we heard from the Speaker of the Northern Ireland Assembly. I do not agree that there is a chilling effect associated with the agreement reached––New Decade, New Approach–that would have a material impact on parties’ willingness to provide a Deputy Speaker for the Assembly. I would go further and say that our Deputy Speakers are not the same as Deputy Speakers here. Neither is our Speaker. Our Speaker in Northern Ireland does not resign from their political party. When they seek re-election, they do so as a member of a political party.
The element that I do not think the Speaker reflected on appropriately in his evidence last week is that, as each of the four parties provides a Speaker and three Deputy Speakers—one from each of the four parties—the consequence of assuming that office and so being unable to sign a petition of concern applies to the four largest parties. Each is supplying somebody and each takes the consequence. In that sense, what was agreed in New Decade, New Approach is fairer than one party losing a signatory from a petition of concern because they assume the position of Speaker, so I take quite a different view from that of the Speaker of the Northern Ireland Assembly and I do not believe that the fears that he outlined are merited.
Mr Walker
The New Decade, New Approach deal was explicit that the Speaker and three Deputy Speakers shall not sign a petition. I therefore question why we would seek to amend the deal, which delivers on a key concern of the party of the hon. Member for North Down during the negotiations: that a petition of concern should be used only in rare situations.
I acknowledge the concerns that were raised by the Speaker, but as we have just heard, there are different views on their strength and there is the fact that four out of the five major parties in the Assembly are represented in the speakership or deputy speakership. There is a balance in its impact in that regard. I have offered a follow-up conversation between officials at the Northern Ireland Office and the Speaker’s officials to look into the matter further, but I cannot at this moment support an amendment because we are not aware of how real a risk this poses. We have heard divergent views on that. The Government are willing to return to the issue after further engagement with the Speaker, but for the time being I ask that the amendment be withdrawn.
Stephen Farry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Claire Hanna
I beg to move amendment 11, in clause 5, page 7, line 12, at end insert—
‘(5A) When a petition of concern is lodged and confirmed against a measure, proposal or a decision by a Minister, Department or the Executive (“the matter”), the Assembly shall appoint a special committee to examine and report on whether the matter is in conformity with equality and human rights requirements, including the European Convention on Human Rights and any Bill of Rights for Northern Ireland.
(5B) Consistent with paragraphs 11, 12 and 13 of Strand One of the Belfast Agreement, a committee as provided for under Section 13(3) may also be appointed at the request of the Executive Committee, a Northern Ireland Minister or relevant Assembly Committee.
(5C) A committee appointed under this section—
(a) shall have the powers to call people and papers to assist in its consideration; and
(b) shall take evidence from the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission.
(5D) A committee appointed under this section shall—
(a) report in terms that reflect evidence regarding human rights and equality assessments relating to the matter; and
(b) identify relevant clarification, adjustments and amendments (in the case of legislation) and/or other assurances which would address the stated concerns.
(5E) The Assembly shall consider the report of any committee appointed under this section and determine the matter in accordance with the requirements for cross-community support.
(5F) In relation to any specific petition of concern or request under subsection (5B), the Assembly may decide, with cross-community support, that the procedure in subsections (5A) and (5C) shall not apply.”
This amendment provides for a petition of concern to lead to a special procedure, described in paragraphs 11-13 of Strand One of the Belfast Agreement, whereby a special committee shall consider the stated concern(s) relating to equality requirements and/or human rights. Such a special committee could also be appointed at the request of the Executive Committee, a Northern Ireland Minister or relevant Assembly Committee.
The Chair
With this it will be convenient to discuss amendment 12 in clause 5, page 7, line 27, at end insert—
“(ca) specify the size, timescale and terms of reference for such a committee;
(cb) specify procedure(s) to allow for subsection (5E).”
This amendment is consequential on Amendment 11 and would further clarify how standing orders should make due provision for the working terms for the sort of special committee/procedure in respect of stated human rights or equality concerns as outlined in paragraphs 11-13 of Strand One of the Good Friday Agreement.
Claire Hanna
While we welcome minor amendments to the petition of concern to make it a little more difficult to table one, that does not improve how the POC works or restore it to its intended purposes. Amendments 11 and 12 seek to do that by restoring some of the Belfast agreement’s factory settings, as it were, and reinserting the special procedure described in paragraphs 11 to 13 of strand one, whereby a special committee should examine the rationale and viability of a petition of concern so that it is used as a mechanism to protect minority rights and not, as has been practised during the previous mandate, to thwart them. Amendment 11 would restore that original intent, which has not been adequately used. Amendment 12 enables that by specifying how such a committee could be established at the request of either the Assembly Executive Committee, a Minister or a relevant Committee.
Gavin Robinson
I am not doing very well on my commitment at the start. I want to push back politely on the notion of factory reset, and that we are getting back to the original intent of the provision. That is not agreed. Going through last week’s evidence, it is fair to say that there are those who were involved in the process in 1998 who are now trying to retrofit and read into the 1998 agreement what they hoped to attain or achieve at that stage, and did not.
Mr Walker
I was very interested to hear the hon. Member for Belfast South use the term “restore factory settings”. It is a good technological phrase with which we are all familiar. The issue is that the factory settings lie under what is there and are available to return to at all times. In this case, there is already such a provision for a committee in section 13(3)(a) of the Northern Ireland Act 1998. The Bill requires the Assembly to implement Standing Orders to make provisions for referral to that committee, in the same terms as exist in section 42 of the Northern Ireland 1998.
This is a matter for the Assembly’s Procedure Committee to implement through changes to Standing Orders. The parties did not reach agreement on this in New Decade, New Approach; the hon. Member for Belfast East made that point as well. I urge the hon. Member for Belfast South to understand that her party colleagues in the Assembly can take forward the issue of those changes to Standing Orders, but on the basis that the provision that she is calling for already exists in law, I ask that she withdraw the amendment and consequential amendments.
Claire Hanna
I acknowledge that they exist, but they are not enacted and, when I questioned the Speaker at the evidence session last week, it was not clear why they have not been established. While I understand where the hon. Member for Belfast East is coming from, there is a creeping narrative that the attempt to thwart the vetoholic nature of some Ministers is somehow pulling up a ladder as demographic change happens in Northern Ireland and in the Assembly. That is not the case. It is due to public concerns about the use of that veto on issues that have nothing to do with the in-built traditional divisions, for example around equality for lesbian and gay people, which is the most prominent use of that provision.
I acknowledge the Minister’s comments about the provisions already being there, but they are not being used. I agree with the hon. Member for Belfast East when he said that if these provisions have to be used it is because power sharing is not working, but I would argue that unfortunately the last few years would indicate that in many cases that is not working.
Sir Jonathan Stephens told us last week that no amount of regulation will push parties to power share if that is not what they want to do. Until we have parties that share power appropriately and use power in the interest of everybody, because they think it is in everybody’s interest and not because the law tells them to do so, then unfortunately we need these amendments. On the basis that the Committee is in agreement with the Minister in terms of the Assembly’s legislative ability, then I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
With this it will be convenient to discuss the following:
Government amendment 2.
Amendment 8, in clause 5, page 7, line 19, at end insert—
“(aa) make provision for the minimum period under (a) to be reduced in prescribed circumstances to be determined by the Assembly;”.
Mr Walker
Clause 5 reforms the petition of concern mechanism to reduce its use and return it to its intended purpose, as set out under the Good Friday agreement, as a safeguard to ensure that all sections of the community can participate and work together successfully in the operation of the Northern Ireland institutions, that all sections of the community are protected when the Assembly legislates, and to prevent one party from blocking measures or business. The Government have tabled two technical amendments to correct an unintended consequence in drafting.
The Bill, as introduced, required that Standing Orders should specify a minimum period between when a vote is due to take place and when the petition in connection with it must be tabled: at least a day would be required. That was not the intention. Currently, the Standing Orders enable the Speaker to waive notice of the petition in exceptional circumstances. The amendment will enable Standing Orders to continue to include such provision, if that is what the Assembly agrees. The amendments ensure that there need not be any change to the timings for tabling a petition of concern.
While the Government have committed to reforming the petition of concern mechanism to return it to its intended purposes, we are not trying to legislate beyond what was agreed in the NDNA agreement. I can therefore reassure the Committee that the changes are purely technical and aim to ensure that we do not inadvertently alter things from what was agreed between the parties.
Stephen Farry
I want to refer to my amendment in this grouping that probably goes beyond what the Government are trying to rectify with their technical amendments. It goes back to some of the evidence we received from the Speaker of the Assembly. The New Decade, New Approach agreement talks about a 14-day timeframe in relation to the processing of petitions of concern. I welcome that and want to see that become normal practice in what I hope will be the very rare event of a petition of concern being tabled.
It is also important that we are conscious that there may well be some extreme situations in which the 14-day window becomes somewhat of a straitjacket. It may be in relation to some sort of statutory instrument or legal deadline or some other emergency in trying to take something forward. In parallel with that, there is probably a need for petitioners to have the right to withdraw a petition of concern rather than its sitting on the books for 14 days, particularly in the event that they are convinced there is no need for the petition to continue or they have changed their mind. It is essentially a means of trying to ensure there is some flexibility. That is best addressed by giving the Assembly the scope within its own Standing Orders to address the issue.
I am not minded to press my amendment today. I can see the Minister is nodding at some of the comments I am making and I welcome that occasionally. Can the Government give an assurance that they recognise that there is a genuine issue here? The Government might wish to reflect on what I have said today and, indeed, more importantly what the Speaker of the Assembly has said and come back with a Government amendment on Report.
Mr Walker
I am grateful to the hon. Member, particularly for the way he has presented this. I recognise the concerns, but it is important to recognise that we heard a number of positive comments about the 14-day cooling-off period envisaged in the legislation. I draw his attention to the fact that what we have tried to do with the Government amendments is return to what was specifically agreed in the NDNA agreement. I agree with the hon. Gentleman’s comment that this is something the Assembly should be able to address through Standing Orders, and we encourage them to do so. We do not think it is necessary to put in the Bill what should be in the Standing Orders of the Assembly, but I see no reason, if the petitioners who have signed the petition of concern agree to its being withdrawn, that it cannot be made possible to withdraw it at any stage during the 14-day period. That is an eminently sensible approach for them to take. Our view is that this is not the place to deal with it because that should rightly be for the Assembly and its Committee on Procedures to agree on.
Stephen Farry
I am grateful to the Minister for giving way and also for his comments. For the purpose of the record, can he assure me that there is nothing in the Bill today that would inhibit the Northern Ireland Assembly through Standing Orders from making its own decisions in relation to how it would manage a petition of concern around timeframes?
Gavin Robinson
I think this is a constructive proposal. We have to be mindful of the concern that was raised last week in evidence: that Assembly authorities might be slow to consent or assent to such a restriction on the 14-day timescale should it not be elucidated very clearly—not just here, but on Report and so on. If we cannot find a form of words that is acceptable on Report, the exchange that has just been had needs to be expanded on and very clearly delivered on Report in Hansard. There should be no doubt or equivocation among the Assembly authorities that, should petitioners decide that the 14 days are no longer required, or that the issue is of such urgency or significance that it needs to be resolved within that timeframe, that flexibility is permissible.
Mr Walker
I absolutely take note of the hon. Gentleman’s comments, and agree with his intent. I am happy to come back to that issue on Report, as appropriate.
Amendment 1 agreed to.
Amendment made: 2, in clause 5, page 7, line 17, leave out from beginning to first “the” on line 18 and insert “the presentation of the petition and the time when”.—(Robin Walker.)
This amendment means that the standing orders may specify a minimum period of notice of less than a day for a petition of concern.
Stephen Farry
I beg to move amendment 9, in clause 5, page 7, line 31, at end insert—
“(e) make provision to allow petitioners to withdraw a petition of concern at any stage in the process.”
The amendment relates to the wider package of comments I made earlier. I will not press it to a vote today. I just flag it up as part of that wider discussion and hope that the Government reflect on it and, indeed, as the hon. Member for Belfast East said, speak further to this general issue on Report.
Gavin Robinson
When you see the physiology of that amendment, it is clean; it does exactly what we have described. We may have to consider whether it is appropriate for us to do this through the Bill or whether it can be reflected through the Standing Orders of the Assembly, but it is exactly what the intent behind amendment 8 was; amendment 9 does it very cleanly. I am positive about the spirit and the text of the amendment, but it may not be pressed to a vote this morning.
Mr Walker
I am grateful for the brief discussion we have had on this. As the Committee will know, the Bill makes provision for a 14-day consideration period after a petition has been presented by 30 Members. The 14-day consideration period was part of the NDNA deal on the basis of which the five parties entered into the Executive. The consideration period provides MLAs with a vital opportunity to lobby those who are petitioning their item of business, persuade them of its merits and prevent it from going to a cross-party vote.
The question here is where this is most appropriately dealt with. We all broadly agree with the principle that petitions of concern should be able to be withdrawn. However, putting that on the face of the Bill and making it explicit could—we were warned about this in evidence—have the effect of actually making petitions of concern more common. I think Gareth McGrath commented to that effect. We think this would be better dealt with through the Standing Orders of the Assembly, and I am very happy to reiterate the commitment I made on the previous item—to discuss this further on Report if necessary.
Stephen Farry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr Walker
I thank the Committee for the detail in which it has scrutinised this measure. As I said before, the purpose of this clause is to reform petitions of concern and return them to their intended purpose.
The UK Government are not seeking to legislate beyond what was agreed in the NDNA deal. That is exemplified by the amendments I have introduced today, which correct a technical error relating to the time period in which the petition of concern may be tabled. The Bill requires that petitions be signed and confirmed 14 days later by at least 30 MLAs from two or more political parties to prevent one party from being able to block measures or business that would otherwise have cross-community consensus. The changes and commitments from the Northern Ireland parties aim to reduce the use of the mechanism to only the most exceptional circumstances and as a last resort, having exhausted every other available mechanism.
Question put and agreed to.
Clause 5, as amended, accordingly ordered to stand part of the Bill.
Clause 6
Repeal of spent provisions
Question proposed, That the clause stand part of the Bill.
Mr Walker
I can be very brief on this one. Clause 6 repeals the Northern Ireland Executive (Formation and Exercise of Functions) Act 2018, and sections 1 to 7 of the Northern Ireland (Executive Formation etc) Act 2019.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Extent
Question proposed, That the clause stand part of the Bill.
Mr Walker
The Bill extends to the United Kingdom, but applies only in Northern Ireland. It deals only with excepted matters under Northern Ireland’s devolution settlement, and does not alter the legislative functions of the Northern Ireland Assembly or the Executive functions of Northern Ireland Ministers or Departments. With that assurance, I commend the clause to the Committee.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Commencement
Stephen Farry
I beg to move amendment 5, in clause 8, page 8, line 8, leave out “at the end of the period of two months beginning with” and insert “on”.
Stephen Farry
Everyone appreciates that politics in Northern Ireland is extremely fluid—that is probably a massive understatement. We never know what political crisis is around the corner.
This is an excellent Bill, and I am keen to see it implemented as quickly as possible following Royal Assent. I am not conscious of what the reason is for the two-month delay in commencement after Royal Assent, so I would be very grateful if the Minister outlined the Government’s thinking in that regard. I am conscious of the laws of unintended consequences, and while this otherwise excellent piece of legislation is sitting on the statute book, about to be implemented, a situation could emerge to which the implementation of one or another aspect of the Bill was very pertinent. We could have the bizarre situation where these good measures could not be deployed because of the two-month delay. Obviously, New Decade, New Approach was not specific about commencement dates, so it is in the gift of this Committee and subsequently the Chamber to look at them further.
Louise Haigh
I rise briefly to speak in support of the amendment in my name and that of the hon. Member for North Down. Recent events could scarcely have proven more how important this legislation is. Because it is clearly the will of this Committee and the House to support the measures in this Bill, it is important that they commence as soon as possible. It is baffling that it has taken 18 months to get here. As I said on Second Reading, covid is not a good enough excuse for why it has taken this long. If it progresses as quickly as it has so far, it will still not be in place until Christmas, which would be two years since NDNA was signed. That is just not good enough, as that will be approaching the end of the mandate for the May Assembly elections. We have made it very clear that we are prepared to do anything we can to help speed up the passage of the Bill and would welcome movement from the Minister on the commencement date.
Gavin Robinson
There are no surprises in this Bill to the parties of Northern Ireland. There is no period of time that is required to get ready, implement or reflect the changes brought forward in the Bill. The shadow Secretary of State has clearly outlined that the agreement was reached 18 months ago. But for coronavirus—whether we accept it as an excuse or not—the provisions in the Bill would be in place and we would be able to fall back on them if they were required.
I am not sure what the rationale is for two additional months beyond Royal Assent. A strong argument has already been put forward by the hon. Member for North Down and the shadow Secretary of State. Subject to a compelling reason why an additional two months are required, there is merit in curtailing that timescale.
Mr Walker
Committee members will know that it is usual practice and parliamentary procedure to allow two months before provisions come into effect following Royal Assent. The type of preparatory measures we might be referring to in this case could be the very changes to Assembly Standing Orders that we have debated. Nevertheless, I recognise the strength of feeling among Committee members.
The hon. Member for Sheffield, Heeley talked about recent events in Northern Ireland. The Bill was not brought forward as a response to recent events. It was brought forward as a response to NDNA and what was agreed between the parties. In terms of the time that has elapsed, she will know that Parliament has been extremely occupied with covid legislation, thanks to the pandemic, but we made a point of introducing this Bill early in this Session. We have also given the time for the Bill not to be rushed through as emergency legislation, but to be subject to full parliamentary scrutiny, which has been welcomed by all sides. That is good news and is all too rare an occurrence for a Northern Ireland Bill.
We are not minded to accept the amendment, but should the political context in Northern Ireland and an early commencement be beneficial for Executive stability, we are content for it to be considered in the other place. I urge the hon. Gentleman to withdraw the amendment for the time being and allow the process of parliamentary scrutiny to continue. Should the progress that we have seen today be repeated in the other place, and the level of cross-party support that we are seeing at this stage, I see no reason why they could not allow for an amendment of this nature to proceed.
Stephen Farry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9 ordered to stand part of the Bill.
New Clause 1
Report on implementation of The New Decade, New Approach Deal
“(1) The Secretary of State must lay a report before each House of Parliament and before the Northern Ireland Assembly no later than six months after the date on which this Act is passed.
(2) The report under subsection (1) must set out —
(a) whether, and how, each provision of this Act has been implemented, and
(b) what plans the Government has to bring forward further legislative proposals to implement the remainder of The New Decade, New Approach Deal.”. —(Louise Haigh.)
This new clause requires the Government to report on what parts of The New Decade, New Approach Deal have been achieved under this Act, and what plans the Government has to implement the remainder of the deal.
Brought up, and read the First time.
Louise Haigh
I beg to move, That the clause be read a Second time.
I thank you, Mr Stringer, for chairing us through the speedy but proper scrutiny of the Bill this morning.
On Second Reading and this morning, the importance of all political parties abiding by commitments that are made in forming the Northern Ireland Assembly and Executive has been discussed at length. The Government have made that very clear on important elements of NDNA. If it is true for the Northern Ireland political parties, it must be true for the UK Government as well, as one of the co-signatories, just as it holds true for the Irish Government.
The provisions of annex A of NDNA outline a financial commitment that the Government were prepared to provide about 18 months ago. Much of that has still not been delivered, by the Government’s own admission—£1.5 billion of the funding set aside has yet to be delivered. I know the Minister will have figures on how much has been given for covid, but it still remains that much was promised to be delivered on public policy to support the mandate set out in NDNA.
The standstill budget for Northern Ireland when covid support is removed means the 7,500 police officers promised is little more than a pipe dream. Indeed, the Police Service of Northern Ireland has confirmed that it will cut numbers if that budget remains at a standstill this year. That also apples to the investment in transforming public services, such as the health service, which has been repeatedly mentioned because of the appalling waiting times in Northern Ireland, and infrastructure delivery.
The Prime Minster, who could not build a bridge when he was Mayor of London from one side of the Thames to the other, seems more concerned with one that will not be built from Scotland to Belfast, than delivering commitments the UK made just 18 months ago on urgent infrastructure requirements. The Stormont House agreement, recommitted to New Decade, New Approach, seems further way than ever, with the Government unilaterally rewriting it in briefings to newspapers.
The establishment of a Northern Ireland hub in London is nowhere to be seen, neither is the connected classroom initiative. Little wonder that the NDNA review panel has met just twice, as the Minster confirmed on Second reading, when it was supposed to meet quarterly. The Government would clearly rather not review their progress on their commitments.
The new clause is important because it requires the Government to report on which aspects of NDNA have yet to be delivered, especially when there is little time left of this mandate. It would provide an important parliamentary mechanism for Members across the House to keep to their side of the bargain, just as we ask all Northern Ireland political parties to keep to theirs.
Mr Walker
Before I comment on the new clause, I want to correct an error I made in my closing speech on Second Reading on this issue, when I stated that the Government have released £556 million of £2 billion-worth of funding agreed in the NDNA deal. I want to put on record that to date, the Government have released over £700 million of the £2 billion funding agreed over a five-year period.
The Government made good progress on the delivery of commitments under the New Decade, New Approach deal. We provided support for the resolution of the nurses’ pay dispute by securing the advance drawdown of funding. The revision of immigration rules governing how people in Northern Ireland bring family members to the UK took effect from August 2020. The appointment of a Veterans Commissioner took effect in September 2020. The launch of the programme for the centenary of Northern Ireland in 2021, supported by £1 million from the shared history fund, and regulations to bring Union flag-flying days in line with guidance in the rest of the UK, came into force in December 2020.
I am grateful to the Northern Ireland Affairs Committee, which has been scrutinising NDNA delivery closely, and we continue to welcome that. In “New Decade, New Approach Agreement: Government Response to the Committee’s Second Report of Session 2019-21”, the Government were supportive of the Committee’s recommendations to produce an annual report and offered to explore this further with the joint board. The Secretary of State also offered to attend a one-off oral evidence session before the Committee to discuss implementation of the New Decade, New Approach deal.
Given the commitments the Government have already made to bring forward reports and offer further discussions on implementation, as well as the existing scrutiny function in NIAC, we do not consider it necessary at this stage to lay a further report on the NDNA agreement. I ask the hon. Lady to withdraw her amendment.
Louise Haigh
Will the Minister confirm that £1.3 billion has still yet to be made available to the Northern Ireland Executive to fulfil the Government’s NDNA commitments? Can he confirm when the annual report will be published?
Mr Walker
On the first point, those commitments were made over a period of years. Much of the financial commitment has been front-loaded, and is why £700 million has already been brought forward in the first year. It is certainly the case that the commitments from NDNA will continue over that period of years. On the second point, I cannot give the hon. Lady a specific date, but am happy to write to her when that has been agreed with NIAC.
Louise Haigh
On that basis, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 2
Appointment of First Minister and Deputy First Minister
“(1) The Northern Ireland Act 1998 is amended as follows.
(2) In section 16A (Appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election), in subsection 4, omit the words “of the largest political designation“.
(3) For subsection (5) of that section, substitute—
“(5) The nominating officer of the second largest political party shall nominate a member of the Assembly to be the deputy First Minister.”.
(4) In section 16(B) (Vacancies in the office of First Minister or deputy First Minister), in subsection (4), omit the words “of the largest political designation“.
(5) For subsection (5) of that section, substitute—
“(5) The nominating officer of the second largest political party shall nominate a member of the Assembly to be the deputy First Minister.”.
(6) In section 16C (Sections 16A and 16B: supplementary), omit subsection (6).”—(Stephen Farry.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 3—Appointment of First Ministers—
“(1) The Northern Ireland Act 1998 is amended as follows.
(2) In subsection 16A (appointment of Ministers following Assembly election), leave out subsections (4) to (7) and subsection (9), and insert after subsection (3)—
“(3ZA) Each candidate for the office of First Minister or deputy First Minister, or jointly First Ministers, must stand for election jointly with a candidate for the other office.
(3ZB) Two candidates standing jointly shall not be elected to the two offices without one or more of the following measures of representational support—
(a) the support of a majority of members, a majority of designated Nationalists and a majority of Unionists; or
(b) the support of 60 per cent of members, 40 per cent of designated Nationalists and 40 per cent of designated Unionists; or
(c) the support of two thirds of members.
(3ZC) The First Minister and the deputy First Minister—
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and
(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Ministers.”.
(3) In subsection (3)(a) the reference to “subsections (4) to (7)” shall be replaced by a reference to “subsections (3ZA) to (3ZC)”.”.
This new clause would restore the Good Friday Agreement provision for joint election by the Assembly of the joint First Ministers.
Stephen Farry
The issue is essentially about being proactive and the Government and Parliament recognising changes in Northern Ireland, recognising where problems may well arise in the near future and acting to get ahead of those, as opposed to responding to what may well become a crisis in the future.
At present, there is a lot of concern about the precise approach to the determination of the First Minister and Deputy First Minister in Northern Ireland, which has been through quite a number of changes over the years. Obviously, new clause 3, tabled in the names of my friends in the SDLP, potentially takes us back to the original wording of the Good Friday agreement and the Northern Ireland Act 1998, which was of course changed by the St Andrews agreement and the subsequent legislation.
We now have a situation where, under law, the determination of First Minister and Deputy First Minister is closely linked to designations. In effect, at present, the largest party in the largest designation chooses the First Minister and the largest party in the second largest designation chooses the Deputy First Minister, with the proviso—slipped into the legislation in 2007—that when that does not apply to the largest party overall, that largest party takes the First Minister role.
This has become, shall we say, the focal point for a lot of polarisation—even more polarisation in what is already a polarised society—and has led to elections becoming focused around who will become the largest party, rather than recognising First Minister and Deputy First Minister as a joint office, and that in practice it does not matter terribly much which party has the First Minister and which has the Deputy First Minister. None the less, this is part of the narrative of our politics and acts to squeeze out the consideration of other issues during election time.
Beyond that, there is a specific issue. The system of appointing the First Minister and Deputy First Minister is very much linked to the designation system in the Assembly. We do not believe that that was ever legitimate, but it was put in in 1998. Not everyone in Northern Ireland is a Unionist or a nationalist, and not every elected representative is a Unionist or nationalist; people wanted to see themselves in a different light. The situation has changed dramatically over the past 20 years, both in terms of the number of elected representatives who do not identify as Unionist or nationalist, and—perhaps even more significantly—within the wider public. Our people, particularly our young people, have moved away from traditional labels.
It is important that our institutions keep up with the changes and evolution in society. We could see a situation in the near future where a party—I cannot think of one that springs to mind at present—may well emerge as one of the largest two political parties in Northern Ireland, but the current formation of the rules around the appointment of the First Minister and Deputy First Minister, and in particular the link to designations, would act to prevent that from happening. I think that would create a crisis of legitimacy, in terms of the political institutions.
New clause 2 is designed to reflect the changing demographics within Northern Ireland, to move away from the 1998 situation, in which perhaps only a small number of MLAs were neither Unionist nor nationalist, to what may be a very different situation after the next Assembly election. It would also avoid, therefore, what could become a major political crisis of legitimacy, in which the Government would have to intervene to rectify in due course—perhaps with some period of the institutions not being operational. That is why it is important that the Government are proactive: not in a massively speculative way, of course, but by dealing with realistic changes that may be just around the corner in Northern Ireland’s society.
Claire Hanna
The previous amendments to the Bill tabled by SDLP Members were probably probing amendments, but we believe that new clause 3 is fundamental and fairly existential for the Assembly. It is worth saying that for the last 20 years the SDLP has advocated adherence to the Good Friday agreement and the mechanisms and safeguards designed in good faith during that process.
The reason why we have protected some of the changes that happened at St Andrews is that the agreement was designed in good faith and endorsed by a very large number of the people north and south. Subsequent changes have been made by politicians and for politicians in their own interests, frankly—and, we believe, over the heads and to the detriment of the electorate.
The joint election of First Ministers was a centrepiece of strand 1. In recent months, we have heard much debate about the concept of parallel consent, but this is really the clearest example of parallel consent as designed in the Good Friday agreement. In theory and in practice, in those early years the First Ministers would have been jointly elected by all the Assembly Members and in practice by a majority in total and a majority of each designation at the time.
The current distorted process, arrived at at St Andrews, has essentially privatised the election to the two larger parties. That was done to spare the blushes of those parties so that they did not have to endorse one another in the voting lobbies, but that has had knock-on effects on the joint character of the office. Leadership comes from the top, and that has an effect on the character of the Assembly and of political conversation more widely. The current process has also undermined the accountability mechanisms that had been designed for the Assembly and removed the primacy of the Assembly as an authority to hold Ministers to account.
The flaws in that approach become very clear in December 2016, when the Assembly was limited in its ability to hold to account Ministers who had presided over a substantial and fairly catastrophic example of poor governance. Restoring that joint election, as we have outlined in new clause 3, would restore some primacy to the Assembly as the key source of devolved authority. It would also facilitate the cross-party working and cross-party mandates, allegiances and alliances envisaged in 1998.
The St Andrews in this Bill is about sustainability and the new clause is very much in that spirit. The St Andrews change has also facilitated the ransom tactics that we saw most acutely in the 2017-to-2020 stand-off, but that we have also seen in recent weeks as well. The fact that the nominations are private decisions for those parties allows them to withhold a First Minister and therefore to withhold an Assembly. That prevents any potential emergence of a coalition of the willing, as might have come forward in the last three-year stand-off of MLAs from all parties. They wanted to get on with the job to which they were elected but, because of the privatisation of the First Minister’s nomination, had essentially been relegated to being bystanders and commentators with no power to implement a different mandate.
That change at St Andrews also has a ground-level impact, in that it has allowed parties to make every Assembly election a first-past-the-post race to be top dog. It effectively makes Assembly elections into many border polls; we have to race to become them’uns or us’uns as the biggest party and get the top job. That has sucked oxygen away from every other issue and prevented the emergence of a politics and discourse more about the everyday issues that affect people here.
Our new clause seeks to address those issues and would also formalise the joint and coequal nature of the offices in removing the word “Deputy”; the reality is that one First Minister cannot order paperclips without the say-so of the other First Minister. The “Deputy” and “First” mechanism undermines the joint nature of that office. The new clause is in the wider interests of this Bill, which is about sustainability, and would head off any potential existential crisis following a future election if the few hundred votes that separate those parties were to change and people in one were anxious about being deputy to the other.
The mechanisms that we have outlined would also go some way to address the issues discussed by the hon. Member for North Down and for which the SDLP has much sympathy. The designation system was designed and is in place to manage the traditional divides and the two communities, as was, and as has been spoken about, but it is a fair point that it is entrenching those communities, in which people are separated and divided out on that basis.
The mechanism that we have outlined in our new clause designs in other potential ways to ensure that the First Ministers have the support of sufficient numbers of the Assembly, through either majorities of each designation or, in essence, a form of qualified majority voting that would in practice ensure that those First Ministers were acceptable to different sides of the communities—different potential identities, but without negating the role and the vote of those who designate as others, which is a perfectly rational way to designate, whatever the constitutional outlook.
Mr Walker
I turn first to the new clause tabled by the hon. Member for North Down. As I have stated previously, the purpose of the Bill and the reason why we are in Committee today is to legislate for commitments made to support the institutions and to improve sustainability under the New Decade, New Approach deal. I commend the hon. Gentleman on his creativity in seeking to reform the mechanism through which to nominate a First Minister and a Deputy First Minister, but it is not something that I can support because it has not been agreed by the parties.
Of course, I know that the hon. Gentleman’s party may be looking at the polls and at the possibility of making gains in the next election, but it would not be appropriate for the UK Government to alter unilaterally the principles of power sharing so carefully negotiated as part of the Belfast/Good Friday agreement and later by the St Andrews agreement.
The new clause could have an adverse impact on the make-up of the Executive should the First and Deputy First Ministers arise from the same designation. If both the largest and the second largest parties were from the same designation, the Executive could not command cross-community support within the Assembly, which would lead to the instability of the political institutions in Northern Ireland. That is precisely what the Bill aims to avoid. I recognise that the hon. Gentleman might wish the issue to be addressed at another time. As our previous Speaker used to say regularly, that is a bridge that we might have to cross when we come to it, but we do not have any mandate to address it in this particular piece of legislation.
The hon. Member for Belfast South is looking to return the situation to how it stood before the St Andrews agreement. Her party has championed that position consistently. It is worthwhile for her to consider what power sharing should look like in the future, in particular as the political landscape in Northern Ireland evolves. That conversation might need to be had, but it would not be right for this Parliament to reverse unilaterally the approach agreed at St Andrews.
To reiterate a point that I have made previously, the purpose of the Bill is to legislate for commitments made under the NDNA deal. The Belfast/Good Friday agreement has continued to be built on since its historic agreement in 1998 through periods of political difficulty, resulting in the deal that we legislate for today—itself built on agreements such as St Andrews, which the hon. Lady is looking to reverse with her new clause.
The history of devolution in Northern Ireland has shown that the communities and politics are changing continually. Shortly after the Good Friday agreement was reached, there was a prolonged suspension of the institutions between 2002 and 2007. The period of suspension was longer than the institutions had been functioning following the Belfast/Good Friday agreement.
Devolution was restored in 2007, following the St Andrews agreement, which the hon. Lady wishes to reverse. That historic agreement led to a 10-year period of political continuity, between 2007 and 2017. As I stated, it would not be right for this Parliament to reverse unilaterally the approach agreed at St Andrews. I therefore urge that both the motions be withdrawn.
Stephen Farry
We may return to the matter on Report. For now, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 3
Appointment of First Ministers
‘(1) The Northern Ireland Act 1998 is amended as follows.
(2) In subsection 16A (appointment of Ministers following Assembly election), leave out subsections (4) to (7) and subsection (9), and insert after subsection (3)—
“(3ZA) Each candidate for the office of First Minister or deputy First Minister, or jointly First Ministers, must stand for election jointly with a candidate for the other office.
(3ZB) Two candidates standing jointly shall not be elected to the two offices without one or more of the following measures of representational support—
(a) the support of a majority of members, a majority of designated Nationalists and a majority of Unionists; or
(b) the support of 60 per cent of members, 40 per cent of designated Nationalists and 40 per cent of designated Unionists; or
(c) the support of two thirds of members.
(3ZC) The First Minister and the deputy First Minister—
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and
(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Ministers.”.
(3) In subsection (3)(a) the reference to “subsections (4) to (7)” shall be replaced by a reference to “subsections (3ZA) to (3ZC)”.’—(Claire Hanna.)
This new clause would restore the Good Friday Agreement provision for joint election by the Assembly of the joint First Ministers.
Brought up, and read the First time.
Question put, That the clause be read a Second time.