Northern Ireland (Executive Formation etc) Bill

(Limited Text - Ministerial Extracts only)

2nd reading
Monday 5th December 2022 Lords Chamber

Moved by

[Lord Caine]

That the Bill be now read a second time.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I was honoured and humbled to attend a service in Ballykelly yesterday to mark the 40th anniversary tomorrow of the heinous and depraved Droppin Well bomb, which killed 11 soldiers and six civilians in 1982. In working as a Government to build a stronger, shared future for Northern Ireland, we should never forget that all terrorism, then as now, was totally unjustified and unjustifiable. There was always an alternative to murder.

I reiterate this Government’s unyielding support for the historic 1998 Belfast agreement, to the constitutional principles it enshrines, to the institutions that it establishes and to the rights that it guarantees for all in Northern Ireland. I reiterate what I have said on previous occasions: the agreement is the bedrock of all the progress that has been achieved in Northern Ireland in recent decades and protecting the agreement will remain at the heart of everything that we do. This Government will not take risks with the hard-gained relative peace and stability that the people of Northern Ireland enjoy today.

Central to that agreement is, of course, a fully functioning Executive and Assembly, from which the other institutions in strands 2 and 3 of the agreement flow—an Assembly and Executive where locally elected representatives can address issues that matter most to those who elect them. This has not, however, been the case since February this year and in the period following the Assembly election that took place on 5 May. As I set out in my Statement in this House three weeks ago, it is a matter of profound regret that the Northern Ireland Executive had not been restored by 28 October, the deadline after which the Secretary of State would come under a legal obligation to set a date for a further election.

I think it is clear to most, however, that a further election in the immediate term would be unlikely to produce a significantly different result or resolve the situation that we currently face. The time has therefore come for the Government, and indeed noble Lords in this House, to take action in response to what can best be described as the governance gap that has emerged in Northern Ireland. That is what the Government’s Bill seeks to do.

Separately, I set out in a Written Statement on 24 November how the Government intend to respond to the extremely difficult budgetary issues that have arisen in Northern Ireland. The Government will bring forward a separate budget Bill where more detail will be provided on this; no doubt noble Lords will want to consider that carefully. This Bill, though, is about creating the conditions whereby some key decisions in Northern Ireland can continue to be taken, including on the implementation of that forthcoming budget.

I am sure noble Lords will be relieved to hear that I do not intend to speak at great length in this Second Reading; I know that many noble Lords will want to come in during the limited time available to us today. Before I briefly summarise the overall intention of this legislation, I offer my thanks to the House for considering this Bill at the pace required. I am very grateful to the noble Baroness, Lady Drake, for the very constructive approach of the Constitution Committee to this legislation. I assure her and other noble Lords that the Government do not take these steps lightly, and I am glad that there seems to be broad consensus on the need to consider this quickly.

I also welcome a very old friend of mine, the noble Lord, Lord Weir of Ballyholme, to his place in this House today. The part of Northern Ireland that forms part of his title I know extremely well, not least because I have close friends who live about five doors from the Esplanade bar in his former constituency, which he will know very well. He will be making his maiden speech today and, if he takes his cue from his noble friends in the DUP, as I am sure he will, he will no doubt bring to proceedings unparalleled expertise, as a former Northern Ireland Executive Minister, and a formidable eye for detail. I wish him well. The noble Lord will, I am sure, help to strengthen further the reputation of this House as the Chamber of Parliament that diligently scrutinises legislation and holds the Government of the day to account, while at the same time bringing together Peers who represent all the regions and nations of our United Kingdom.

Broadly, the Bill seeks to do three main things. First, it retrospectively extends the period for Executive formation for a further six weeks until 8 December, with a power to extend by a further six weeks after that until 19 January. That means, subject to the agreement of this House, that if an Executive is not formed within those timeframes, the duty placed on the Secretary of State to call an election will commence this week, on 9 December, or, if the second six-week extension is activated, on 20 January 2023.

Secondly, the Bill clarifies the decisions that civil servants in Northern Ireland government departments can take in the absence of Northern Ireland Ministers, meaning that decisions in crucial areas can continue to be taken.

Thirdly, the Bill provides for powers that allow the Government to take action to amend the pay of Members of the Northern Ireland Assembly when they are unable to conduct the full range of the functions expected of them.

The Bill also provides for a number of other measures; namely, making provision for certain public appointments to be made in the absence of an Executive and conferring on the Secretary of State a power to set regional rates in Northern Ireland for the financial year ending 31 March 2024.

No doubt we will speak to each of these provisions in greater depth as proceedings continue but, taken together, these measures will help to plug the governance gap that has emerged. However, I cannot stress enough that the Bill is not intended to be a long-term solution to the issues that Northern Ireland is facing.

I will briefly go through the Bill’s clauses. Clause 1 makes provision for an extension of the period for filling ministerial offices, as set out in the Northern Ireland Act 1998 and amended by the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022. It retrospectively introduces a further six-week period during which an Executive can be formed, to 8 December. Clause 2 provides for a further power to extend the Executive formation period by a further six weeks.

On decision-making, Clauses 3 to 5 clarify decisions that Northern Ireland civil servants can take in the continued absence of an Executive. The Government have broadly mirrored the approach that the previous but one Administration took in 2018 with regard to these powers, largely replicating the relevant provisions in the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018.

Northern Ireland civil servants will therefore be provided with the necessary certainty to take a limited set of decisions where it is in the public interest to do so. To assist them, the Secretary of State published draft guidance on 29 November on taking decisions in the public interest and the principles to be taken into account in deciding whether or not to do so—again, mirroring the previous approach. I think I am right in saying that guidance has gone to Members of the Legislative Assembly, who have until 8 December to make representations. However, as I have said previously, we recognise that this is not a long-term solution and civil servants cannot be left to take decisions indefinitely. That is why these provisions will last for six months or until an Executive is formed, whichever is sooner.

On public appointments, Clauses 6 to 9 make provision for certain public appointments that would normally have to be made by Executive Ministers or require their approval to be made. Again, this mirrors previous legislation and is another sensible step to take to ensure that key appointments that are necessary to maintain governance and public confidence in the institutions in Northern Ireland can still be made.

Clause 10 will allow the Secretary of State to take action when it comes to the pay of Members of the Assembly. These clauses will therefore allow the Secretary of State to amend MLAs’ pay in this and any future period of inactivity, drawing on Sections 47 and 48 of the Northern Ireland Act 1998. We anticipate that any determination made once these provisions come into force will take into account the independent analysis produced in the previous political impasse between 2017 and 2020.

The Secretary of State will retain the power to set MLAs’ pay in future instances where the Assembly is unable to elect a speaker and deputies following an election. The power would then go back to the current arrangement when these roles are filled and the Assembly is able to conduct business.

Clause 11 confers on the Secretary of State a power to set the regional domestic and non-domestic rate in Northern Ireland for the financial year ending 31 March 2024 by regulations. These rates must be set for every financial year. Clauses 12 to 15 are minor and consequential.

No Government would want to be in the position in which we find ourselves today. It is clearly not a satisfactory state of affairs. In response, although this Bill will provide some short-term cover, so to speak, it is clearly not a long-term solution. Such a solution remains primarily for a newly reconstituted Northern Ireland Executive and Assembly, working in partnership with the United Kingdom Government, to tackle. I assure noble Lords in this House that we will continue to work tirelessly during the timeframe set out in the Bill to create the conditions that will enable those institutions to be re-established at the earliest possible opportunity.

During my Statement to the House on 14 November, I reflected upon the upcoming 25th anniversary of the Belfast agreement and made the point that we should be marking the progress that Northern Ireland has made since that historic agreement. I sincerely hope that this will be the case. Meanwhile, we have little option but to pass this necessary but regrettable legislation. On that note, I beg to move.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I thank the House for the quality and spirit of the debate that has taken place over the last few hours. To some of us in your Lordships’ House, it emphasises and underlines the important role that this House retains in our constitutional arrangements. The contributions this afternoon have shown a great degree of interest in and constructive consideration of the contents of the Bill, and indeed a real passion to move Northern Ireland forward. In that spirit, I thank the noble Lord, Lord Murphy of Torfaen, as always, for his very sensible, wise and constructive comments; I also thank the Liberal Democrats and the noble Lord, Lord Bruce of Bennachie, in the same spirit.

I add to those who have congratulated the noble Lord, Lord Weir of Ballyholme, on his outstanding maiden speech. I thank him in particular for his kind words, along with those from the noble Lord, Lord Murphy of Torfaen, about our late noble friend Lord Trimble, who was rightly described by the noble Lord as a giant of Northern Ireland politics. I think that I have in the past described him as probably being up there in the unionist pantheon with Carson and Craig as one of the great leaders of unionism in Northern Ireland. I thank both noble Lords for their comments. I apologise for highlighting that I might have a better knowledge of some of the public houses of Ballyholme than the noble Lord who is from there, but I assure him that I will keep supporting the local economy with friends in that respect.

I repeat what I said at the outset, and what many noble Lords have said in the course of the debate: no Government would want to be in the position in which we find ourselves today. It is highly unsatisfactory that the Northern Ireland Assembly and Executive are not functioning properly and doing the job that we would all expect them to do. For the avoidance of doubt, and as somebody who worked for previous Secretaries of State, I can tell noble Lords that we made exactly the same criticisms in the period between 2017 and 2020, when it was Sinn Féin holding up the Executive; there is no inconsistency in our approach to those matters. Like noble Lords across the House, we want to see the institutions restored at the very earliest opportunity and we are working diligently to try to ensure that this happens. As I say, it is clear from noble Lords’ contributions that they share that desire.

I will address one point raised by the noble Lord, Lord Dodds of Duncairn, in response to a point made by the noble Baroness, Lady Ritchie of Downpatrick, around reforming the institutions. I have been involved in this for quite a long time now, and I stand by the ground rules for political talks that were established back in 1996. They make it clear that changes to the governance arrangements and institutions in Northern Ireland do indeed have to proceed on the basis of sufficient consensus; that requires the support of parties representing the majority of unionists and the majority of nationalists. Any future recommendations for changes, such as the noble Baroness, Lady Ritchie, put forward about joint First Ministers, would always have to be judged in that context and against that background.

I am pleased that the House recognises largely that the Bill is a necessary if regrettable step—as the noble Lord, Lord Kerr of Kinlochard, described it—that we need to take so that the UK Government can ensure the continuance of governance arrangements in Northern Ireland. A number of noble Lords, in particular the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Ritchie of Downpatrick, referred to the necessity of all-party talks at the current time. Like the noble Lord and noble Baroness, I have been through many talks processes in Northern Ireland over the years—some successful and others, regrettably, less so. The Government are committed to continuing very close dialogue with each of the parties. We will judge, when the time is right, whether that needs to move forward on the basis of bilateral discussions or whether it needs to be in a multilateral format; we will judge what is the right format at the appropriate time. But I take on board what the noble Lord said about the need for a plan in this respect.

I will respond to some of the other points raised during the debate. Unsurprisingly, in a debate about the Executive formation Bill, the Northern Ireland protocol loomed large because, as many noble Lords, particularly those on the DUP Benches, made abundantly clear, the principal reason why no Executive is up and running is the Northern Ireland protocol. I was very grateful to the noble Lord, Lord Bew—I should call him my noble friend—for a number of the suggestions he put forward as to how things could move forward. I want to take away his suggestions and discuss them with colleagues back in the department.

The noble Lord referred to the importance of strands 3 and 2 of the agreement. That is extremely important. It is common for people to look at the Belfast agreement through the strand they prefer or to which they are most attached. That has been characteristic of some in the European Commission in the past, regrettably. It is clear that the Belfast agreement is a three-stranded agreement in which all the strands are interlocking, and all need to function alongside each other properly. I am very grateful to the noble Lord for making that point clear.

The noble Lord also talked about what he described as “skulduggery” across the border, which has always been with us. He made some suggestions in that respect. I remind him that the 2015 fresh start agreement, in which I was involved, did indeed establish a cross-border joint agency task force to deal with some of the issues to which he referred. I believe that is functioning quite satisfactorily at the moment.

Unfortunately, I will have to disappoint a number of noble Lords when it comes to the protocol. We have debated the protocol Bill extensively in your Lordships’ House in recent weeks. As a member of the Bill team, I sat through all four days in Committee. Where I would agree with the noble Lord, Lord Murphy, as I have said in the past, is in his very valid point that we suffered from the lack of a Northern Ireland Executive in the period after 2016. I well remember the joint letter in the summer of 2016 that Martin McGuinness, as Deputy First Minister, and Arlene Foster—the noble Baroness, Lady Foster, as she now is—as First Minister signed, setting out an agreed Executive position. Northern Ireland suffered quite considerably from the lack of an Executive in the period between 2017 and 2020.

Sadly, I will disappoint a number of noble Lords by not being able to go into a great deal more detail at the Dispatch Box as to the status of the negotiations and discussions that are taking place, other than to reiterate that, as noble Lords know and as was set out extensively in Committee on the protocol Bill, it has always been our preference to resolve the issues, which we accept do need resolving—there is no question about that—through talks with the European Union. The Foreign Secretary and Vice-President Šefčovič are speaking regularly and UK government officials continue to have talks with their counterparts in the EU.

When I talk about solutions to the protocol, I reassure noble Lords who raised the commitments in New Decade, New Approach that one of the objectives of the UK Government is, of course, to ensure that Northern Ireland’s position within the UK internal market is fully respected and upheld. There should be no doubt about that. No doubt we will return to these matters in much greater detail at a date to be determined at some point after Christmas.

The noble Baroness, Lady Hoey, referred to the court case in the Supreme Court that she has been sitting through. We await its judgment in the new year with some interest.

My noble friend Lord Lexden referred to the need for a stronger union, in a speech that I think was in the best traditions not only of him but of somebody he and I would describe as a mentor on Northern Ireland matters, the late TE Utley, the great and wise Tory seer. If I can give my noble friend one piece of reassurance, he kindly referred to the Conservative manifesto from 2019, which I confess to have playing a small part in. The first sentence of the Northern Ireland section states that, as Conservatives and Unionists, the preservation of a secure and prosperous United Kingdom is our overriding goal.

My noble friend raised possible joint authority between London and Dublin, which has been raised by some in recent weeks. Again, to reassure him, our position is very clear: the Belfast agreement allows for two constitutional options for Northern Ireland. One is as part of the United Kingdom, the other is as part of a united Ireland on the basis of consent. It does not provide for a third way or in any way create a hybrid state in Northern Ireland; it is either wholly in the UK or wholly in a united Ireland. Therefore, joint authority would be totally incompatible with the provisions of the Belfast agreement. This Government will not countenance any constitutional provisions that are incompatible with the agreement, such as joint authority. That should be an end to the matter.

A number of noble Lords referred to the timetable set out in the Bill. I appreciate their concerns around that. Clearly, we hope that the time period afforded by the legislation will create the space required for talks on the protocol to make some progress but, in response to the noble Lord, Lord Bruce of Bennachie, and my noble friend Lord Godson, it is not and never has been our intention to create an indefinite or undefined extension to the Executive formation period. Obviously, I cannot predict what might happen over the next few weeks or months, but it would not be appropriate to have an open-ended delay to that deadline in the legislation.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, referred to a number of issues. In particular, I will mention energy support. I think he said that the Government were preventing support. That is very much not the case. There are differences between the energy markets in Northern Ireland and Great Britain. There are also differences in the capacity of supply companies that operate in Northern Ireland compared with some of those operating in Great Britain. We are absolutely determined to get that money and support to people in Northern Ireland at the earliest opportunity. I think my honourable friend the Minister for BEIS said in the other place last week that he was very hopeful that we could get this money to people by January, but there is absolutely no intention on our part to delay, or anything of that nature. We are absolutely committed to helping people in Northern Ireland and ensuring that they are not disadvantaged vis-à-vis the rest of the United Kingdom. I hope that goes some way to reassuring the noble Lord on that point.

The noble Baroness, Lady Hoey, talked about the dates of the local elections. She will be aware that, under Section 84 of the Northern Ireland Act 1998, the Secretary of State has the power to change the date of the elections. We will consider the timing of local elections in Northern Ireland in respect of the date of the Coronation in due course. We have a short period in which we can come to a decision on that—but I do understand her points.

If I have missed anything of major significance, as always, I will commit to writing to noble Lords, but in conclusion, I have said many times that none of us wishes to be in this position. We all wish to see the institutions established by the Belfast/Good Friday agreement; that has the support of the overwhelming majority of Members of this House and, I believe, the other place. We want to see all those institutions up and running and functioning, and Northern Ireland largely governing its local affairs in a local Assembly through its local, democratically elected politicians. In our view, that is the surest way for a strong, stable, prosperous and increasingly shared Northern Ireland within, I hope, the United Kingdom. That is our objective. In the meantime, the Bill is a regrettable necessity.

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