Northern Ireland (Executive Formation and Organ and Tissue Donation) Bill

(Limited Text - Ministerial Extracts only)

2nd reading
Monday 27th February 2023 Lords Chamber

Moved by

[Lord Caine]

That the Bill be now read a second time.

Relevant document: 26th Report from the Delegated Powers Committee

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

My Lords, before I turn to the main business, it is only right that I invite the House to join me in condemning unreservedly the despicable and cowardly attack on DCI John Caldwell on Wednesday evening. The terrorists who commit such evil acts are not wanted by society and they will never succeed in their objectives; democracy and consent will always prevail in Northern Ireland. The people of Omagh and Beragh spoke for us all over the weekend when they rallied together to say there can be no going back. Our thoughts and prayers are with DCI Caldwell, his family and his colleagues—some of whom I met at Omagh police station on Thursday morning—at this terrible time.

Over a year has passed since the then First Minister of Northern Ireland resigned his post. Twelve months and one Assembly election later, people in Northern Ireland still do not have a properly functioning Government, as set out in the Belfast agreement and subsequent agreements. In the absence of those institutions, this Government have stepped in to protect the interests of the people of Northern Ireland. We have set a Budget, delivered vital energy support funding of £600 per household and legislated to provide clarity on the decision-making powers of Northern Ireland civil servants to enable them to maintain public service provision.

On each of those occasions, I have stood at this Dispatch Box and expressed my deep disappointment that we still await the return of a functioning Assembly and Executive. I wish to restate that profound disappointment once again today. The restoration of the Executive, in line with the 1998 agreement and its successors, remains the Government’s top priority. It was on that basis that we legislated last autumn to extend the Executive formation period through the Northern Ireland (Executive Formation etc) Act 2022. Since that period ended in January 2023, the Secretary of State has once again been under a statutory duty to call an Assembly election, which would have to be held within 12 weeks—on or before 13 April this year.

We have spent some time since then engaging with Northern Ireland’s political and community leaders, assessing the options available to His Majesty’s Government, and it is the Government’s conclusion that a further Assembly election at this time would be unwelcome and expensive and, crucially, would bring us no closer to our objective of delivering fully functioning devolved institutions. On that note, I will briefly summarise the overall intention of the Bill. Before I do so, I again express my gratitude to the Benches opposite, including to the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Suttie, for the cross-party approach that they continue to take in relation to the delivery of key legislation for Northern Ireland.

The Bill itself will provide for a retrospective extension of the Executive formation period of one year from 19 January 2023, meaning that, if the parties are unable to form an Executive on or before 18 January 2024, the Secretary of State will again fall under a duty to call an Assembly election to take place within 12 weeks. We believe, however, that flexibility is necessary if we are to play our part in encouraging and facilitating the return of the institutions. On that basis, the Bill will also provide the Secretary of State with the power to call an earlier election, providing that offices have not been filled.

Taken together, these provisions represent a delicate balance. Eventually, if the political impasse in Northern Ireland continues, people will rightly expect to return to the polls and have their say. The prospect, however, of forcing an election when that would be unwelcome or unhelpful would, in our view, run contrary to our broader goal of forming an Executive.

Noble Lords with a keen eye for detail will have noticed that, unless an earlier election is called, the extension provided by this Bill would run past the date on which the decision-making powers contained in the Northern Ireland (Executive Formation etc) Act 2022 will lapse: namely 5 June 2023. We are therefore keeping those arrangements under review, in the continued absence of devolved government, but we sincerely hope that an Executive will be in place before these arrangements expire.

In the meantime, the provisions of the 2022 Act and its accompanying guidance provide civil servants with the clarity that they need on how and when they should be taking decisions. The decisions that have been taken by civil servants using the 2022 Act are being published to ensure transparency. We are grateful for the work that Northern Ireland civil servants are doing in making use of those provisions. The current arrangements are not, however, and never can be, a substitute for a fully functioning devolved Government.

I will speak briefly to the amendments the Government brought forward in the other place that now form part of the Bill. I know that all of us in your Lordships’ House have been deeply moved by the courage shown by Dáithí Mac Gabhann and his whole family in fighting for the implementation of organ donation changes. The Secretary of State, my right honourable friend Chris Heaton-Harris MP, has met Dáithí and his family. He was incredibly moved by his story and by the family’s dedication to seeing important changes to the law implemented as quickly as possible.

As a Government we have recognised that this issue is exceptional, both in the sheer importance it holds and the cross-party support it commands both in Northern Ireland and in this House. Clause 2 will therefore change the procedure for making regulations defining permitted material for transplantation in Northern Ireland under Section 3 of the Human Tissue Act 2004, as amended by the Organ and Tissue Donation (Deemed Consent) Act (Northern Ireland) 2022. This would allow regulations to be made in the absence of devolved institutions regarding rules for organ donation.

Before I conclude, I will make a very short statement on legislative consent, which is required in relation to the section on organ and tissue donation. Clearly, we have been unable to secure an LCM, a legislative consent Motion, from the Northern Ireland Assembly, given that it is currently not sitting—indeed, if it was sitting, we would not have needed this Bill, but its continued absence, and that of the Executive, mean we have to take action here.

I have spoken this afternoon about dates and timelines in the light of the nature of this Bill. As I conclude, I also want to note one anniversary of which noble Lords across this House will be keenly aware: the upcoming 25th anniversary of the Belfast agreement. I see the noble Lord, Lord Murphy, opposite, who played such a key role in negotiating particularly strand 1 of that agreement. Noble Lords will no doubt join me in noting the progress that Northern Ireland has made since that historic agreement. This Government will always work to implement, maintain and protect the agreement. As I said in opening, the restoration of the Executive remains our top priority. The Bill will help assist those objectives by avoiding an unwelcome election and providing time for us to work together to end the current impasse. But of course the Bill alone will not be enough to achieve that. All of us now, including His Majesty’s Government, need to make the most of the opportunity presented by the Bill. In that spirit, I beg to move.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I am very grateful, as always, for the contributions on the short Bill before your Lordships’ House this afternoon. I thank noble Lords at the outset for their unanimity in condemning what happened in Omagh last Wednesday evening. The noble Baroness, Lady Ritchie of Downpatrick, referred to violence never being justified and of course she is absolutely correct: paramilitary activity in Northern Ireland was never justified in the past and is certainly not justified today. I completely agree with the noble Lord, Lord Alderdice, when he refers to the threat that has been made by some on the loyalist side in recent days. Loyalist violence, or the threat of loyalist violence, should always be condemned with equal vigour as republican violence, and it is very important that we do not differentiate.

A number of noble Lords from Northern Ireland referred to the glorification of terrorism by certain parties. They will not be surprised to hear that I have considerable sympathy with that point. I was involved, a number of years ago, with framing a response to a parade organised by republicans in Castlederg which commemorated two IRA men who had blown themselves up bringing a bomb into the town in the early 1970s, so I understand the strength of feeling. I say to noble Lords that we now have a third day scheduled for Committee on the legacy Bill, and my recollection is that the amendments on glorification will be the first group that we take, so we can have a much longer discussion and debate on that issue very shortly. I sympathise with a number of the points that noble Lords behind me have made.

I turn to the Bill. Of course, there has been no opposition to it at all in the House. Almost uniquely, I think I have been asked only one direct question during the couple of hours we have been debating it. That was from the former Secretary of State, the noble Lord, Lord Hain, on taking powers. I said in my opening remarks that should the situation regarding the Assembly not be resolved, the existing powers for civil servants run out in June and we would have to make an assessment as to how we deal with that situation. It is clearly untenable, for a number of reasons that were pointed out by his noble friend Lord Murphy of Torfaen in his very powerful and typically insightful and sensible winding-up speech for the Opposition. Of course, in this piece of legislation we have tried to avoid coming back any time soon with further legislation on election timing. It is the hope of many of us that we will get back to a position where the powers in the previous Executive formation Act 2022 and the timetable in this legislation become irrelevant, because we have the institutions back up and running.

Aside from that, there was strong support for the legislation: both the provisions relating to the date of the election and, of course, Dáithí’s law. I join noble Lords in paying tribute again to Dáithí and his family. I also pay tribute to those who have been very prominent in the campaign, including my old friend Fearghal McKinney, the former party colleague of the noble Baroness, Lady Ritchie of Downpatrick, who has played a key role in all this. I bumped into him last week in Westminster and was able to talk through a number of the issues.

My noble friend Lord Lexden made a typically powerful intervention in the debate. He and I go back many years; we are a part of the Tory tradition that owes a huge amount to the late, great TE Utley in the way we have always approached Northern Ireland affairs. As ever, my noble friend’s speech was in what I might call the great Utley tradition of moderate Tory unionism. My noble friend talked about Northern Ireland enjoying the benefits of the union and questioned the widespread view that has been held over many years that a united Ireland is inevitable. I agree with him entirely that a united Ireland is not inevitable. However, the priority has to be to make Northern Ireland work; the more it works, the better that is for the union and for Northern Ireland’s position within it. He also talked about the inadequacies of the current legislation and the powers; I dealt with that point a few moments ago.

Unsurprisingly, the debate was dominated not necessarily by the provisions of the Bill but by events that have taken place elsewhere this afternoon in Windsor. We have debated the protocol many times; I have been here late at night during Committee of the Northern Ireland Protocol Bill before Christmas and I answered a PNQ from the noble Lord, Lord Morrow, two or three weeks ago. I hope noble Lords will forgive me if I do not rehearse all the arguments around the protocol this afternoon. The Prime Minister is due to make a Statement in the other place very shortly, and I would be astonished if there was not an opportunity for that Statement to be repeated in your Lordships’ House at some point fairly shortly, which will enable noble Lords to ask questions based upon actually having been able to read some of the documentation which has been published. The Windsor Framework: A New Way Forward has now been published and is available on GOV.UK.

I heard the comments of many noble Lords, and the noble Baroness, Lady Hoey, reiterated the DUP’s seven tests, as did a number of members of the Democratic Unionist Party this afternoon. It will be for them to judge whether the agreement that my right honourable friend the Prime Minister has come to with the European Commission satisfies those tests; no doubt they will want to go through with a fine-toothed comb, as is customary. For our part, the Government are confident that the agreement reached will ensure free-flowing trade by removing the border in the Irish Sea; it will safeguard Northern Ireland’s position within the United Kingdom; and it will restore sovereignty for the people of Northern Ireland through what the noble Lord, Lord Murphy, referred to accurately as the so-called Stormont brake. However, it would be better for noble Lords to listen to what the Prime Minister has to say, go through the documentation and then, of course, they will have an opportunity to return to these matters when the Statement is repeated in your Lordships’ House.

I think we all hope that the agreement that has been reached this afternoon in Windsor will provide a basis for the restoration of the devolved institutions so that we do not have to come back again to this House and debate the kind of legislation we have seen over the past number of months, and so that responsibility for the running the domestic affairs of Northern Ireland within the United Kingdom will once again be in the hands of locally elected politicians at Stormont, who are responsible and accountable to the electorate there. We fervently hope that that will happen so that we can work together. My noble friend Lord Lexden gave me a very powerful point about the United Kingdom Government and the Northern Ireland Executive at Stormont working closely together on issues of great importance, such as public services in particular—which, as the noble Lord, Lord Murphy of Torfaen, reminded us, need a great deal of attention over the coming months. If this agreement does provide the basis for restoration—I do hope it will—I think the Government will be working extremely hard with a newly-formed Executive to address those issues so that we can get on with building a Northern Ireland that works for everyone across the entire community. On that note, I beg to move.

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