Northern Ireland (Miscellaneous Provisions) Bill

Baroness Smith of Basildon Excerpts

Monday 3rd February 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

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

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

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

[Baroness Smith of Basildon (Lab)]

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

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

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

“Ensuring appointment on merit and safeguarding ethics”,

which is, indeed, their role.

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

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[Baroness Smith of Basildon]

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

[Baroness Randerson]

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

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[Baroness O'Neill of Bengarve]

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

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

[Baroness Smith of Basildon]

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

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[Lord Browne of Belmont]

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

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

[Baroness Smith of Basildon]

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

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

[Baroness Randerson]

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

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

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

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[Lord Lexden]

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

[Baroness Smith of Basildon]

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

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

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

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

[Baroness Randerson]

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

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

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

[Baroness Smith of Basildon]

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

[Baroness Randerson]

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

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

[Baroness Smith of Basildon]

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

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

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

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

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

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

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

[Baroness Randerson]

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

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

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

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