Northern Ireland (Executive Formation etc) Bill

Lord Caine Excerpts

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.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

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

My Lords, I said in my opening remarks some hours ago that I have found this legislation challenging and difficult, and the subsequent few hours have done nothing to reduce that one bit. I have listened to a very powerful debate. First, I thank a number of noble Lords for their kind words in response to my earlier remarks, which I genuinely and deeply appreciate. I also thank one or two noble Lords—the noble Lords, Lord Browne of Ladyton and Lord Bruce of Bennachie—who were kind enough to remind me of certain words I had written for previous Secretaries of State on this subject and into previous Conservative manifestos.

There have been a number of very powerful and moving speeches. As ever, I refer to the noble Baroness, Lady Ritchie of Downpatrick. She reminded us of the Loughinisland massacre. I remember it very well because I was with a friend from the Republic of Ireland, watching the same football match that evening, when the news came through. I was an adviser, as the noble Baroness knows, to the then Secretary of State for Northern Ireland, the late Lord Mayhew of Twysden, so I deeply sympathise with the case to which she referred. My noble friend Lord Rogan, who is in his place, the noble Viscount, Lord Brookeborough, my noble friend Lord Dodds of Duncairn and many others referred to incidents during the Troubles which deeply affected them, people right across Northern Ireland and people across the whole United Kingdom.

I concur with the noble and right reverend Lord, Lord Sentamu, that, of all the speeches, the noble and right reverend Lord, Lord Eames, made an outstanding contribution, which I think moved the whole House. I thank him very much for that, and I am aware of the tremendous work he has done over many decades in Northern Ireland, and his great record of service to the community there.

In my opening comments I said that there have already been a number of attempts to resolve these issues over many years. Going back to 1998 and the Belfast/Good Friday agreement, legacy was the untouched issue, if you like, and at the time it was one of those matters that was—probably for good reason at the time—put into the “too difficult” drawer. There have been a number of attempts since and they have all foundered for one reason or another.

A number of noble Lords, including the noble Lords, Lord Alton of Liverpool and Lord Bruce of Bennachie, talked about the need for the Assembly to be more closely involved in this. I remember, and referred in my speech to, the attempt by the Executive to deal with this issue back in 2013, with the Haass-O’Sullivan talks, which unfortunately did not lead to an agreement.

I referred also to the Stormont House agreement, when most of the institutions contained in that agreement, such as the Historical Investigations Unit and the ICIR, were very firmly in the devolved sphere. It was always our assumption at the time that it would be the Assembly that would take them forward. There would have had to be legislation in parallel here to deal with certain national security issues and issues around disclosure of the sort that the noble Baroness, Lady O’Loan, referred to. It was at that point that the then First and Deputy First Ministers came to see the then Secretary of State to say, “This is all far too difficult for us—could you do it all at Westminster?” I completely appreciate the sentiment of working with the local politicians and the local political parties in Northern Ireland, but there are difficulties in just handing it back to them. I do take on board the points about the need for a collaborative effort.

I think that is one reason why people refer to the shift in approach in 2020 by the then Secretary of State. If I am being fair to him, I think he genuinely looked at the previous attempts made to resolve this and at the possibility of prosecutions. We have heard a great deal about that this evening, and I have enormous respect for the noble and learned Lord, Lord Judge, with whom I agree far more than I ever disagree on a range of subjects. When he talked about people literally getting away with murder, unfortunately, in Northern Ireland they have for many decades because of the lack of evidence to convict. When I talked earlier about the vast majority of cases now being over 40 years old, the reality is that the likelihood of any meaningful prosecutorial process leading to a conviction is very slim indeed.

[Lord Judge (CB)]

That is not a justification for embodying it in statute.

[Lord Caine (Con)]

The noble and learned Lord touches on some of the issues that have also troubled me in dealing with this over the past months. I can see an argument to do with the chances of a prosecution being so slim in a very large number of cases. I talked to the retired police officers about this, who were very clear that in most cases, if the evidence had existed at the time, there would have been convictions, but it is simply not there and the chances are incredibly slim. Therefore—

[Baroness O'Loan (CB)]

I want to interject the fact that in the 1970s, a process was adopted which prevented prosecutions—there were to be no prosecutions for murder of any military personnel—and there was a process through which the Royal Military Police produced statements which have now been declared to be totally unacceptable, so there were processes which made it impossible. I ask the Minister again: will he make the money available for the prosecution of the 33 files which Operation Kenova has submitted to the Director of Public Prosecutions? If you have the money, you can prosecute.

[Lord Caine (Con)]

The noble Baroness has asked me this question a number of times before. The Public Prosecution Service is not funded by the Northern Ireland Office; it is funded by the Executive, and it is a devolved responsibility. It would have to find the money from within its own resources, if resourcing is the only issue here. I have heard from a number of respected figures within Northern Ireland, within the legal system, who would argue that it is not just about resources at all.

I was trying to set out what I think the Government’s position was, because the chances of prosecution in so many cases were so remote, even where people have held out for prosecutions. I have given the example before of Bloody Sunday and the Saville inquiry, which reported in June 2010. The PSNI then very methodically went through the report and investigated the cases again to see whether there were any grounds for the prosecution of soldiers. It took nine years for the current DPP to come to a decision around prosecutions, concluding that prosecution would be justified in one case. As we know, that case subsequently collapsed. I think it has now been re-referred, but it did collapse. One noble Lord mentioned the fact that people are getting older and dying, and this example points to the fact that these processes can take a very long time.

Therefore, the purpose of what the Government are putting forward here is to try to bring forward information and get people to the truths in a much more timely way. The noble Baroness, Lady O’Loan, shakes her head and disagrees, but that is the genuine intention: to try to get more information out there while it is still available. As noble Lords know, the problem with a prosecution if it collapses is that no information is provided to families, and they are literally back at square one. We can have these discussions, but I just wanted to say that that was one of the justifications for this. In order to encourage people to come forward and co-operate, as noble Lords know, the Government originally put forward in the Command Paper a blanket statute of limitations of the kind referred to by my noble friend Lord Cormack, but they then refined the position on the basis that if people were going to be given immunity from prosecution, there should at least be some incentive to earn it. That was the way in which the Government approached this back in 2020.

I have taken on board the very strong feelings expressed this evening. If noble Lords will forgive me, I think I have been fired hundreds of very detailed questions from across the House, which I could not possibly answer, particularly at nearly 10.05 pm. But what I am prepared to do is to sit down with noble Lords, both individually and collectively, before Committee, which I hope will not be rushed. That is certainly not my intention. I think somebody used the phrase “pell-mell” the legislation through the House, but that is not my approach or my intention. I would want to take sufficient time to look at the Bill in detail and give it the scrutiny that it absolutely deserves.

In my speech I tried to respond to some of the concerns that have been expressed already and which were brought out in the debate. I apologise to the noble Baroness, Lady Smith of Basildon, that I was not in a position to flag, if you like, at an earlier stage what these amendments might be. I think the noble Baroness is familiar with government write-round processes, which do not always proceed at pace and are the subject of discussion. I do apologise. In all genuineness, I hope that these amendments, when they are drafted and I bring them forward, will go some way to allaying concerns on the issues that have been raised outside the House and inside the House this evening around ECHR compatibility, independence of the new commission, greater incentives for co-operating with the body, and penalties for misleading, lying and not telling the truth, including revocation of immunity where that has already been granted, and full sentences for those who do not co-operate with the body but are subsequently investigated and convicted.

I also assure the noble Baroness, Lady Smith, that I do not expect those amendments to be the end of the story. There are other amending stages in your Lordships’ House beyond Committee, and, again, I hope we will not rush from Committee to Report and can have a reasoned and genuine discussion and debate between those two stages of the Bill.

While I will look at what further amendments the Government might be able to bring forward, I will genuinely look constructively at those which are put forward by other noble Lords across the House. As I have always said in my engagements within Northern Ireland itself with victims groups and others, I am the least precious person when it comes to amendments and where they come from. If they are sensible and constructive, I will always look at them and give them a fair wind.

As I say, I am very happy to sit down individually and collectively and engage with noble Lords before Committee. I will seek to go through the speeches made in your Lordships’ House this evening and, where detailed questions have been put to me, I will respond in writing, if noble Lords will allow me, rather than detain the House for a great deal longer this evening.

As I said at the outset, it is challenging and difficult, but there is no perfect way of dealing with this. I want to try and genuinely use this House in its proper constitutional way to revise and improve legislation.

--- Later in debate ---

Moved by

[Lord Caine]

That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the Bill in the following order: Clauses 1 and 2, Schedule 1, Clauses 3 to 6, Schedule 2, Clauses 7 to 9, Schedule 3, Clauses 10 to 14, Schedule 4, Clauses 15 to 26, Schedules 5 and 6, Clauses 27 and 28, Schedule 7, Clauses 29 to 39, Schedules 8 and 9, Clause 40, Schedule 10, Clauses 41 and 42, Schedule 11, Clauses 43 to 52, Schedule 12, Clauses 53 to 58, Title.

Bill committed to a Committee of the Whole House.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

2nd reading
Wednesday 23rd November 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, as I rise to speak in this Second Reading, before I move to the Bill itself, I would like to put on record my thanks and gratitude to the Police Service of Northern Ireland and partners who, at this time and around the clock, are working to keep Northern Ireland safe and secure. I am sure the whole House will join me in condemning the recent attacks in Northern Ireland on the rule of law, and condemn terror in all its ugly guises.

The period of what are sometimes euphemistically referred to as the Troubles in Northern Ireland has left a terrible legacy and an indelible mark on society. More than 3,500 people were killed during the Troubles, with an estimated 40,000 more maimed or injured. Families were shattered, businesses destroyed along with livelihoods, and society was torn apart by atrocities that for many of those who suffered are as vivid, raw and painful today as they were at the time they occurred. Widespread disruption, either as a result of terrorist activity or the security presence needed to counter it, was a daily fact of life. In this Government’s view, the main responsibility for this appalling legacy rests firmly with the terrorist organisations, both republican and loyalist, which between them caused some 90% of those deaths—or, more specifically, the 60% that were down to republicans and the 30% down to loyalists.

Of those groups, the Provisional IRA was the terrorist organisation responsible for more deaths than any other: approximately 1,700 people, including some 300 Catholics. That is more than the police and the Army combined—something, I suggest, that those who today think it cool to chant “Up the Ra” might wish to reflect on.

This Government are equally clear that none of the terrorist campaigns that took place in the Troubles could in any way be warranted. Terrorism was always wholly wrong. No injustice in Northern Ireland, either perceived or real, justified the taking of a single life and the violence of paramilitary groups. There was always an alternative to terrorism in the past, just as there is today. The terrorist campaigns caused untold misery and suffering, and this Government will never agree with a version of history that seeks to legitimise them, just as we will always reject any suggestion of moral equivalence between the security forces and those who carried out acts of terrorism.

Ultimately, of course, terrorism in Northern Ireland did not succeed. In our view, there are three main reasons for that: first, the sheer resilience of the overwhelming majority of people in Northern Ireland who rejected violence and would never bend the knee to terrorism; secondly, the determination of successive UK Governments of all parties that the future of Northern Ireland would only ever be determined by democracy and consent, which is enshrined in the 1993 Downing Street declaration and is such a key pillar of the 1998 Belfast agreement; and, thirdly, the extraordinary dedication of the men and women of the Royal Ulster Constabulary and our Armed Forces.

More than 1,000 members of the security forces lost their lives during Operation Banner, the longest continuous deployment in British military history, while over 7,000 awards for bravery were made. Of course, I fully acknowledge that, at times, some might have wrongly acted outside the law and that mistakes were made, sometimes with deeply tragic consequences. We should always be prepared to admit that—I speak as one of the authors of David Cameron’s statement in June 2010 in response to the report of the Saville inquiry into the events of Bloody Sunday—yet of the more than 250,000 who served, the overwhelming majority did so with exemplary professionalism, bravery and restraint, and without their efforts there would have been no peace process. So, this Government will always salute their service and their sacrifice, and we will always remember the debt of gratitude we owe them. As I said in this House in July, we will always resist a pernicious counternarrative of the Troubles that seeks to put the state at the heart of every atrocity, denigrate the record of the security forces and, as I said earlier, legitimise terrorism.

Terrorism did not succeed but the legacy of the Troubles, as I indicated at the outset, continues to cast a dark and long shadow over Northern Ireland. As we have seen all so vividly in recent years, legacy issues retain the capacity to poison and paralyse politics, divide society and, in certain circumstances, create the potential for public disorder. For all the progress we have seen over the past quarter of a century, education and public housing remain highly segregated in many areas, while so-called peace walls still loom large in a number of areas. Far too many still live with the physical suffering and mental scars of what happened, and the costs of division continue to place additional burdens on an already highly overstretched public purse.

Against this background, therefore, the Government have a responsibility to do what they can to attempt to tackle the legacy of the past. While I am the first to acknowledge that we will never agree a common narrative as to what happened, the question is whether we can find structures that will enable society as a whole in Northern Ireland to move forward.

Of course, there have been a number of attempts to do this since 1998. The last Labour Government established the commission chaired by Denis Bradley and the noble and right reverend Lord, Lord Eames—who is in his place, I am pleased to say—which reported in 2009. In 2013, the Northern Ireland Executive invited the former US special envoy to Northern Ireland, Ambassador Richard Haass, and Meghan O’Sullivan to examine the issues of flags, parading and the past. In 2014 the Government reached the Stormont House agreement which, although motivated primarily by the need to address problems at the time around the Executive’s finances, contained far-reaching proposals to tackle legacy issues based on earlier initiatives.

Yet despite the best and very genuine efforts of many, over a number of years, none of these initiatives has succeeded in delivering for those directly affected by the legacy of the Troubles. I speak as someone who from 2010 to 2019 served four Secretaries of State and was intimately involved in trying to find ways forward on these issues. I participated in all 11 weeks of the talks leading to the Stormont House agreement, and then spent the subsequent four-and-a-half years in extensive and painstaking efforts to implement it—without success.

I know that some, including members of your Lordships’ House, still regard the Stormont House agreement as the best way forward. Yet as somebody who was there, it is clear to me that any broad consensus once held no longer exists, and it is easy with the benefit of hindsight to overplay the extent to which it ever did. Even in December 2014 it was not supported by all the parties, and in the months and years that followed what high-level support that had existed began to diminish as the Government and political parties sought to convert the paragraphs of that agreement into legislation.

Indeed, I recall in early 2015 Peter Robinson and Martin McGuinness asking the then Secretary of State to take all the Stormont House agreement through Westminster, due to the difficulties of doing any of it via the Northern Ireland Assembly, even though most of it was technically devolved. I remember clearly in November 2015 Martin McGuinness vetoing any reference to the Stormont House legacy proposals in the fresh start agreement, such were the difficulties Sinn Féin had with them at the time.

Stormont House was eight years ago next month, and, in the absence of an agreed way forward, those affected by the Troubles continue to be left with processes that have largely evolved piecemeal and which for the vast majority will never deliver justice, information, accountability or any form of acknowledgement. That is why the Government have introduced the Bill before your Lordships’ House today.

Taking into account previous attempts to tackle legacy, the Bill seeks to deliver an approach that focuses on what can practically be achieved when dealing with events that in some cases occurred half a century ago. It provides victims and survivors with information in a way that can provide some acknowledgement and some accountability. It has the potential to provide better outcomes both for those who suffered and those who served, and is able to help society look forward together to a more shared future, which I hope is the objective of all of us in your Lordships’ House.

The Bill seeks to do these things in the following ways. Part 1 of the Bill sets out for the purposes of this legislation the meaning of “the Troubles” and establishes its period as beginning on 1 January 1966 and finishing on 10 April 1998, the date on which the Belfast agreement was reached. Part 2 of the Bill provides for the establishment of a new independent commission for reconciliation and information recovery—the ICRIR. I think the first prize in Committee will be for anybody who can come up with a snappier name. This will carry out reviews, mainly at the request of families and surviving victims, into deaths and incidents resulting in serious injuries that occurred during the Troubles.

More than two thirds of Troubles-related cases are now over 40 years old, and it is commonly accepted that the likelihood of prosecutions, regardless of resources, is extremely remote. The Government have therefore taken the view that better outcomes for families are more likely to be achieved by a process of information recovery, acknowledgement and accountability, and that is what the ICRIR will seek to provide.

The commission will be chaired by a former or serving senior judge and will be equipped with the same investigative powers as the police to carry out criminal investigations, as well as, like coroners in inquests, the power to compel witness testimony and documentary evidence from individuals. It will be able to use these powers in relation to any case to fulfil outstanding procedural obligations under the European Convention on Human Rights. Although the term “review” in the Bill is deliberately broad, the commission will be under a duty to look into all the circumstances of a death or incident, including criminal activity.

The commission will be fully operationally independent, while, for its part, the state will be under a legal requirement to disclose all relevant information to it. Written reports of the commission’s findings to the families and surviving victims who request a review will be publicly available. To encourage those who might have relevant information to share it, the commission will be able to grant immunity from prosecution, on a case-by-case basis, to an individual who acknowledges their role in a Troubles-related incident by providing an account that is true to the best of their knowledge and belief. These accounts will be tested against information that is already in the public domain and information that is not—for example, from previous investigations and intelligence. Where an individual chooses not to engage with the commission, they will remain liable to prosecution in the normal way should the evidential test be met.

Part 3 of the Bill deals with ongoing and future proceedings within the current criminal, civil, inquest and police complaints systems. As the Bill is drafted, once it comes into force, no other body in the UK other than the commission will be able to take forward an investigation into a Troubles-related incident. Where a decision has already been taken to prosecute an existing case, this will continue. Any civil claims filed before the Bill was introduced will continue but no new cases will be allowed. Inquests that have reached an advanced stage by the time the commission becomes operational will continue; however, new inquests and those that have not reached an advanced stage will not continue but may be referred to the commission.

Part 4 of the Bill will build on proposals in the Stormont House agreement and provide for the establishment of an expert panel to devise a memorialisation strategy designed to promote reconciliation and greater understanding, as well as a major new oral history initiative.

I am the first to acknowledge that some of the proposals outlined in the Bill have met with far from universal acclamation in Northern Ireland itself. I fully appreciate that, for many, this legislation, despite some significant changes since the publication of the Command Paper in July 2021, remains deeply challenging. In being completely candid with your Lordships, I count myself among that number. I personally have found this legislation extremely challenging.

I have been involved in the affairs of Northern Ireland for some 35 years, and worked in the Northern Ireland Office while the Troubles were still raging in the 1990s. Only weeks before he was murdered by the Provisional IRA in July 1990, I had lunch with the very great man, Ian Gow, in the Strangers’ Dining Room in the other place, where, with typical generosity, he offered to sponsor me for the Conservative Party candidates’ list. Indeed, one of my first jobs in politics was to take the minutes of the Conservative Back-Bench Northern Ireland Committee, of which Ian was chairman. I have probably spent more hours with victims and survivors than just about anybody outside of Northern Ireland, and have heard countless harrowing and heart-wrenching stories of suffering. So I am hardly immune to the feelings of those affected by the Troubles who find this Bill difficult and challenging.

At the same time, I am as conscious as anyone, based on experience, that we will never solve the past or bring, to use that horrible word, closure in every case. Equally, I am clear that no Government can legislate to reconcile people, though we can strive to promote it. However, we can attempt to provide better and realistic outcomes. It is because of this, and in fulfilment of a commitment I made to the noble Baroness, Lady Suttie, in this House on 14 July, that, since late July, I have carried out some 25 legacy-related engagements and meetings, all but a couple in Northern Ireland itself. I have done so on the basis of being open to sensible and constructive proposals to improve the Bill—commitments I have also made individually and collectively to Members of your Lordships’ House.

As a result of my discussions, and of those between my right honourable friend the Secretary of State and a number of groups within Northern Ireland, I intend to bring forward a series of proactive government amendments in Committee to address a number of concerns that have been raised. These will include amendments to underpin the Bill’s compliance with the ECHR, by making it clear that the commission will be able to carry out Article 2 and 3-compliant criminal investigations in cases where it judges them to be appropriate. We will strengthen the commission’s independence by making clear that the Secretary of State should consult named individuals before appointing the chief commissioner.

To make the information recovery process and the provisions around immunity more robust, we will create an offence for those who choose willingly to mislead the commission and give the commission the power to revoke immunity where individuals have been found subsequently to do so. We will disapply the Northern Ireland (Sentences) Act 1998 for individuals who choose not to tell the commission what they know and are subsequently convicted of an offence, so that they face a full rather than a reduced sentence, as well as increasing the fine for non-compliance with the commission.

I wish to work with noble Lords across this House to enable us to fulfil our important constitutional role as a revising Chamber and make further improvements to the Bill where possible as it proceeds. That is my commitment, and that of a Government who are prepared to listen. On that basis, I beg to move.

Amendment to the Motion

Moved by

Northern Ireland Elections

Lord Caine Excerpts

Monday 14th November 2022 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I too am grateful for the opportunity to discuss last week’s Statement. An election at this time, as the noble Lord, Lord Murphy, said, would have been an expensive distraction and would almost certainly not have resulted in any kind of breakthrough in the impasse. It is always a great pleasure to follow the noble Lord, Lord Murphy. Not only does he speak with such great authority and common sense but, for many of us, me included, he symbolises a more optimistic time in Northern Ireland politics.

Nearly 25 years on since the Belfast/Good Friday agreement, it is very important to recall that it was not always like this. There have been times of great hope and optimism. The peace process has previously been held up as a positive example to many other troubled parts of the world. But, as the Minister knows all too well, with all his years of experience, those more optimistic times did not happen without hard work, dedication, dialogue and commitment at the highest level. Mutual respect and trust were absolutely key to this.

Like the noble Lord, Lord Murphy, I appeal to the Prime Minister to take an active role in finding a solution and a way forward out of this impasse, for it is in the interests of the whole United Kingdom for him to do so. Continued stalemate in Belfast is damaging to our reputation and is not in our national interest. So can the Minister confirm when and whether the Prime Minister plans to visit Northern Ireland next?

I am a Scot who believes strongly in the United Kingdom. I am not from Northern Ireland but, in the six years of closely following Northern Ireland matters in your Lordships’ House, I have come to understand the intensity and strength of feelings—and indeed anger—that have come to pervade Northern Ireland politics since 2016. An already complex history has become so very much more complex and complicated since Brexit. Cross-community consensus is the only way forward but, to quote my honourable friend Stephen Farry MP,

“power sharing is about power sharing happening; it is not about blocking it from happening.”—[Official Report, Commons, 20/7/22; col. 1026.]

The Minister will be aware that the leader of the Alliance Party, Naomi Long, wrote to the Prime Minister on 25 October setting out some suggestions for reform. If the choice becomes between deadlock and direct rule, is this not the time for the Good Friday/Belfast agreement to evolve and develop to meet the current circumstances? As the noble Lord, Lord Murphy, said in a debate last week, any reforms to the Belfast agreement have to be “by agreement”; it cannot be

“changed unilaterally by one side or the other.”—[Official Report, 7/11/22; col. 535.]

Can the Minister indicate when he anticipates that Naomi Long will receive a response to her letter?

As a true believer in devolution, I say that it is hard not to reflect what a fully functioning Northern Ireland Executive would be in a position to achieve right now. A functioning Executive could have been working to resolve the crisis in the healthcare system and to deal with those issues surrounding legacy and moving on from the past—for example, through promoting a truly integrated education system. Perhaps most importantly, a functioning Executive could have been promoting Northern Ireland as a positive place to do business and to attract inward investment, with its unique access to both the United Kingdom and EU markets.

I am not in any way underplaying the scale of the problems facing Northern Ireland politics at this time, but surely the Government, as well as all the political parties in Northern Ireland, owe it to the people of Northern Ireland to try again, to change the tone and to start again with a fresh approach to negotiations, both in Brussels and in Belfast. Not to do so would, I believe, be unforgivable as we approach the 25th anniversary of the Belfast/Good Friday agreement.

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

My Lords, before I reply to the comments of the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Suttie, I want to place on record my sadness at the news today of the death of the very eminent Northern Ireland historian Dr Éamon Phoenix, an outstanding public figure who will be greatly missed. We send our deepest sympathies to his family. Also, I am also very conscious that today marks the 41st anniversary of the brutal murder by the IRA of the former Member of Parliament for Belfast South, the Reverend Robert Bradford, and the caretaker at the Finaghy Community Centre, Kenneth Campbell. If I can pick up on some comments that have been made recently in Northern Ireland, there was always an alternative to terrorism.

I am incredibly grateful to the noble Lord who, as always, speaks with great wisdom on Northern Ireland affairs, as a very distinguished former Secretary of State; as, indeed, does the noble Baroness, Lady Suttie. I welcome their comments on the Belfast/Good Friday agreement and the approaching 25th anniversary. The noble Lord played a key role in securing that agreement back in 1998 as the chair of strand 1, I believe. The House should be in no doubt that this Government are absolutely determined to restore as quickly as possible a fully functioning devolved Administration, which will then allow the other institutions in strands 2 and 3 to function effectively.

The noble Lord and the noble Baroness highlighted some of the problems that Northern Ireland currently faces and that we should be looking to a restored Executive to address as a matter of urgency. Only recently, the outgoing Northern Ireland Finance Minister pointed to a £660 million black hole in the Executive’s finances and this, of course, is having a very damaging impact on key public services, not least the National Health Service and education in Northern Ireland. So, I absolutely agree with noble Lords who are very keen and very desperate to get the institutions back up and running. I can assure noble Lords that that is the Government’s very clear commitment.

The noble Lord, Lord Murphy, referred to the need for a plan and a structure. I very much take on board what he says about that, given his experience. I too have been involved in a number of talks processes in Northern Ireland—some successful, some less so. It is always a difficult decision, how exactly we move these things forward, but I very much take his comments on board. One of the reasons, obviously, for delaying the election and postponing the election duty under which the Secretary of State is currently, is to give extra time and space, first for our discussions with the European Union over the protocol but also in the hope that the Northern Ireland parties can come together in some form, ready to restore an Executive.

Both the noble Lord and the noble Baroness referred to prime ministerial involvement. I hope both will welcome the fact that the Prime Minister attended the British-Irish Council meeting in Blackpool last week—the first that a Prime Minister has attended, I believe, since 2007. I understand that at that meeting there was very constructive engagement between the Prime Minister and the outgoing Taoiseach, Micheál Martin. I look forward to those discussions and that engagement continuing. I cannot give the noble Baroness a precise time and date as to when the Prime Minister will next step foot in Northern Ireland itself, but I assure her that resolving these issues is very much a top priority.

I will add one word of caution—or a caveat, if you like—based on all our experiences. Yes, of course prime ministerial involvement is important, but it is not always the silver bullet. The noble Lord, Lord Murphy, will recall Leeds Castle in 2004 and the Hillsborough declaration in 2003. I was involved in the Stormont House negotiations, when there was limited involvement from the then Prime Minister yet we had a successful agreement. Prime ministerial involvement is not always a guarantee of success, but I very much take on board the comments made.

I absolutely share the sentiments of the noble Lord, Lord Murphy, about not wanting to drift into direct rule. Both he and I have both been in the Northern Ireland Office during periods of direct rule, and it is a very unsatisfactory state of affairs. I agree entirely that Northern Ireland is best governed when it governs itself under the devolved Administration.

The noble Baroness referred to the letter sent by Naomi Long to the Prime Minister. I will go back to officials and try to establish where we are with the draft response to that.

We had long debates about reform of the institutions on the then Northern Ireland (Ministers, Elections and Petitions of Concern) Bill. As I set out at the time, the Government are not opposed to the reform and evolution of the institutions, but the noble Baroness will be aware that since the mid-1990s we have proceeded on the basis of what is known as the sufficient consensus rule. This means that changes to arrangements in Northern Ireland should have the support of parties that represent the majorities of unionism and nationalism. We are always open to ideas about how the institutions will evolve, so long as any reform or evolution is consistent with the underlying principles of the Belfast agreement which, to our minds, should be sacrosanct.

I am very grateful to both the noble Lord and the noble Baroness. I will take on board a number of their comments in discussions that I will have with the Secretary of State as we chart the way forward over the next few weeks and months with the sincere hope that the Belfast/Good Friday agreement is upheld, maintained and protected, and the institutions restored as soon as that is possible.

[Lord Hain (Lab)]

Like my noble friend Lord Murphy and the noble Baroness, Lady Suttie, whose responses I commend, I welcome this Statement. However, I stress that there is only one way in which we will get the devolved Government up and running: to succeed with the negotiations over the protocol. I hope that the Government and these early signs of the Secretary of State’s stance over recent weeks—as well as the Prime Minister’s meeting with the Taoiseach—are good signs. Trust between London and Dublin has basically been at a level of zero for quite a while, and it is not much better with Brussels.

To be perfectly honest—I hope the Minister will not take this amiss—we negotiated the Good Friday agreement and the St Andrews agreement even though they were “It will never happen” agreements; my noble friend Lord Murphy was directly involved in the former, and myself in the latter. By comparison, the negotiations with the European Union are relatively straightforward. There need to be much more flexibility and creativity on the part of London and less dogmatism over such matters as the European Court of Justice—the noble Lord, Lord Thomas of Gresford, suggested a solution to that which I commend to the Government—as well as over the question of the democratic deficit, and the Northern Ireland parties need to have consultative rights with Brussels over issues affecting them due to the protocol. Norway has those although it is outside the European Union; like Northern Ireland, it is in the single market. Northern Ireland should have those consultative rights. I therefore urge the Minister and the Secretary of State to impress upon the Prime Minister that there needs to be more flexibility on the part of the British Government, then we can sort the protocol, get Stormont up and running again and the devolved Government of Northern Ireland doing their job.

[Lord Caine (Con)]

I am grateful to the noble Lord, another distinguished former Secretary of State, for his comments. Of course, I absolutely agree that the single biggest obstacle to the restoration of devolved government is the current operation of the Northern Ireland protocol, which is why the Government are absolutely determined to keep what is working within the protocol but to remedy the clear defects that are apparent. We have had very lengthy debates about this in Committee on the Northern Ireland Protocol Bill over the past few weeks. The Government’s clear preference is that we have a proper negotiated outcome and an agreement with the EU but, of course, if that is not possible, we will have to take action as set out in the Bill itself.

The noble Lord referred to the need for the Government to show a greater degree of flexibility. I wish he had added something about the need for the European Union also to adopt a less theological and less dogmatic approach to certain matters. However, I agree with his aspiration that we manage to come to an agreement with the EU to resolve these issues so that Stormont can be back and up and running again as quickly as possible.

[Lord Browne of Belmont (DUP)]

My Lords, I too wish to be associated with the remarks the Minister made regarding the untimely death of Dr Phoenix. If the current negotiations taking place with the European Union on the Northern Ireland protocol fail to deliver any major changes, I think it is unlikely that the Assembly will resume. Can the Minister therefore confirm what he has just said: that the Government will therefore act on the protocol Bill which has been agreed by the other place?

[Lord Caine (Con)]

I am grateful to the noble Lord speaking for the DUP. As he is well aware, the Government are committed to making changes to the protocol through discussions with the European Union that are currently taking place. We all hope that they will be successful, but in the event that that is not the case or is not possible, we remain committed to the provisions of the Bill.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I would like to be associated with the Minister’s comments about Dr Éamon Phoenix, a lecturer in Irish history at Stranmillis, one of the colleges of Queen’s University Belfast, who had a particular emphasis on Ireland and Northern Ireland. Dr Phoenix was a very eminent historian, giving talks on a regular basis and writing documents about historical analysis, with particular reference to the current situation with the Good Friday agreement, particularly over the last 25 years.

The Government were correct to pause the elections. As my noble friend Lord Murphy said, it would simply have increased the level of polarisation in Northern Ireland. Rather gently, I say to the DUP that no political ideology, no matter how dearly held, should prevent the restoration of the political institutions. Over the last weekend, we have seen a health service in crisis. The Royal Victoria Hospital in Belfast and the Antrim Area Hospital have been unable to deal with accidents and emergencies that have arrived at their front doors.

As a follow-on from the Statement, and from the Elections Act 2022, what negotiations will take place with the political parties regarding the statutory designation of the First Ministers as joint First Ministers to reflect their equality of power and equality of say in terms of partnership and co-operation, and will such a provision be made in the forthcoming legislation on foot of this Statement?

[Lord Caine (Con)]

I am grateful to the noble Baroness and echo the comments about Dr Phoenix. I was present at a talk on the road to partition that he gave to the British-Irish Parliamentary Assembly when I was briefly a member last year. It was an outstanding lecture and, of course, he played a great role in some of the work around the decade of centenaries in Northern Ireland from 2012 onwards.

The noble Baroness referred to opposition to the protocol. The Government have been very clear throughout that we do not regard opposition to the protocol as a justification for not being part of an Executive, just as, I hasten to add, we did not regard the Sinn Féin position between 2017 and 2020 as remotely justified. We have been pretty consistent on that.

The noble Baroness rightly referred to the problems in the NHS. I spoke of the £660 million black hole in the Executive’s finances and the impact it is having. It is why we will have to bring forward budget allocations and a budget Bill in Westminster. It is very regrettable. These are matters that should be dealt with in the Northern Ireland Assembly. However, we must provide some certainty and the ability to protect key public services at this time.

On the noble Baroness’s point about First Ministers and Deputy First Ministers, of course there will be ongoing engagement between Ministers and Northern Ireland political parties. At the moment, our first priority is to get the institutions back up and running. However, as I said in responding to the noble Baroness, Lady Suttie, we are not against reforms and evolution of the institutions, so long as we proceed on the basis of agreement and sufficient consensus.

[Viscount Stansgate (Lab)]

My Lords, I welcome the Statement and the news that action will be taken to extend the legislative formation of the Assembly, and to enable time and space for the talks to be taken forward. Probably everyone in this House hopes that those talks succeed.

I hope the House will not mind if I make two observations. I have been to Northern Ireland and seen the Assembly in action on many occasions over years when it was in operation. I organised the annual “Science & Stormont” event, on which all the major parties in Northern Ireland co-operated to co-sponsor. I have seen the capacity of the Northern Ireland Assembly to work together for the good of the people of Northern Ireland.

I very much hope, as referred to later in the Statement, that progress can be made despite all the difficulties. I am mindful of the fact that it was possible for the Northern Ireland Assembly to meet when Her late Majesty the Queen died. There was a Speaker and tributes were paid from all sides of the Assembly. I would have thought—I hope the Minister agrees—that if it is possible to do that on the death of the Monarch, it is possible to restore the Assembly to the working order we all hope for in the future.

[Lord Caine (Con)]

I am grateful to the noble Viscount for his comments and his long-standing involvement and commitment. He makes some pertinent points about the Assembly and the need to get it back up and running. As I say, the Government’s clear position is that the current situation is not justified and it would be far better for all if the Assembly was functioning in the way intended. He refers to people coming together; in the context of approaching the 25th anniversary of the Belfast/Good Friday agreement, this serves as a useful reminder of Northern Ireland’s huge potential, notwithstanding the current challenges we all face, to thrive and prosper when people work together on all sides.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, it is well known that the Secretary of State, beating his chest and saying, at one minute past midnight, that an election would be called, was endeavouring to blackmail the DUP into the Executive. It did not work. Make no mistake: the DUP is not afraid to go back to the electorate after honouring what was pledged in the previous election. It is interesting that the noble Baroness, Lady Suttie, and the Alliance Party are suggesting a reform of the institutions because of the present stalemate. The Alliance Party did not say the same when Sinn Féin put the Assembly down for three years. Let us therefore have a little balance.

Can the Minister confirm whether, when the Secretary of State was discussing the internal affairs of Northern Ireland—the date of an election to the Assembly in Northern Ireland—he consulted the Foreign Minister of the Irish Republic? This would be in contravention of strand 1 of the Belfast agreement.

[Lord Caine (Con)]

I am grateful to the noble Lord. He will not be surprised to hear that I would not characterise my right honourable friend the Secretary of State’s approach to this as attempting to blackmail any party in Northern Ireland. He was rightly setting out the legal position in which he found himself, at one minute past midnight on 28 October. As the noble Lord is aware, having consulted political opinion widely in Northern Ireland, the Secretary of State took the view that an election would not be the right course at this time—hence the extension and the legislation.

As far as the noble Lord’s other point is concerned, of course the Secretary of State has numerous discussions, but the important point is that strand 1 issues are—and remain—for the United Kingdom Government and the Northern Ireland parties. That is clear. We are always committed to the three-strand approach to Northern Ireland, including for the internal affairs of Northern Ireland, which are matters for the UK Government in discussion with Northern Ireland parties.

[Lord Judge (CB)]

May I return to the protocol, please? On how many occasions have there been negotiations and discussions specific to the issues raised in the protocol between the UK Government and the European Union, first, at Secretary of State level and, secondly, at any ministerial level? When will the next such meetings take place at each of these levels?

[Lord Caine (Con)]

Forgive me if I misheard the noble and learned Lord. Is he referring to discussions between the UK Government and the European Union?

[Lord Judge (CB)]

Yes, on protocol issues.

[Lord Caine (Con)]

I cannot give the noble and learned Lord a precise date for the next meeting, but there are ongoing discussions, as he well knows. The Foreign Secretary and Maroš Šefčovič have now spoken and met on a number of occasions. I can only reiterate what I said in response to earlier questions: we are determined to do whatever we can to secure a negotiated agreement that will remedy the defects in the protocol, preserve what works and facilitate a situation in which all parties can go back into a restored Executive for the good of the people of Northern Ireland.

[Lord Judge (CB)]

On how many occasions have meetings taken place, specific to the protocol, at Secretary of State level and ministerial level, with EU equivalents? There can have been only so many—one, two, 10, 15. If the Minister does not know the answer, I am perfectly happy to receive a letter.

[Lord Caine (Con)]

If the noble and learned Lord will forgive me, I will endeavour to write to him.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in responding to the noble Baroness, Lady Ritchie of Downpatrick, the Minister said that the Government were not against reforms to the process. I believe that he was referring to reforms of institutions, in particular the way in which the Executive are constituted. Will he go further in saying that, to restore full faith in the process for the people of Northern Ireland, reforms are indeed necessary? Further to that, does he agree that it is crucial that people have a full understanding and involvement in the democratic process at all levels; and so, should there end up being a Stormont election next year, it would be absolutely essential that it were not combined with local government elections, as that would further complicate and involve matters that should be kept separate?

[Lord Caine (Con)]

At the moment, the priority has to be to try to re-establish the institutions. Of course, people will bring forward ideas about potential reforms to the institutions, and we are not against that. They have evolved over the years. Reference has been made to the election of First and Deputy First Ministers. The system that we now have in place following the agreement that the noble Lord, Lord Hain, negotiated at St Andrews is different from the one in the original Belfast agreement. There have been subsequent changes around a number of issues such as facilitating official opposition. I do not particularly want to get drawn into specifics on this. The priority has to be to get the institutions back up and running. Of course, next year is the 25th anniversary of the agreement. Assuming that the institutions are back up and running, which I hope they will be, that may well be a time when we need to reflect on whether there are things that can be done to make the institutions work better. Regarding the noble Baroness’s last point, I will not speculate on the dates of elections.

Northern Ireland Protocol Bill

Lord Caine Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

I would expect that, too, and I think it is regrettable that we have got to where we are. I was one of those people in the other place who very regularly got up and asked Ministers about Northern Ireland and what the plan was, because there were obviously going to be these issues. There were other solutions; we could have had a customs union or some kind of single market arrangement that would have maybe dealt with this in a slightly different way. I remember talking to one of the noble Lord’s colleagues who said, “Well, we don’t mind what it is as long as we’re all treated the same within the United Kingdom”. Ministers cannot be surprised that we are still having these discussions now.

I want to talk a little bit about this issue of cross-community consent; I am just reflecting on the speech made by my noble friend Lady Ritchie on Monday. It seems clear that the intention of Ministers is to protect the Article 2 rights of individuals, the Article 3 common travel area and the north-south co-operation in Article 11. We have debated the protection of the rights of individuals before, but what we really need is some sort of assurance from the Government that those intentions are reflected throughout the Bill in a consistent and watertight way. So can the Minister confirm that there is no prohibition on the overriding of Article 18 of the protocol, which deals with cross-community consent? We have rightly heard a great deal about this issue, and I would like the Minister to address it to make sure that I have understood it correctly.

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

My Lords, I am very grateful, as ever, to the noble Baroness, Lady Ritchie of Downpatrick, for moving Amendment 25. Much to my astonishment, the debate has veered away somewhat from the strict terms of her amendment. However, let me say at the outset, as I have said before, that I very much share the noble Baroness’s frustration at the lack of a sitting and functioning Northern Ireland Executive and Assembly. Of course, one of the motivations behind this legislation is to try to facilitate a situation in which those institutions might be restored. It is sensible that we always go back to why we are doing this and why we are legislating.

I can also sympathise with the intention behind the noble Baroness’s amendment, but the Government’s view is that it is unnecessary. To answer the noble Baroness, Lady Suttie, and I think to some extent the noble Baroness, Lady Chapman of Darlington, the Government have absolutely no intention whatever to use the powers in Clause 15 to alter the operation of the democratic consent mechanism in Article 18.

I appreciate that there are different views on the mechanism itself; they were aired to some extent a few moments ago. They have been debated extensively in this House, and I seem to recall that they even managed to make their way into the debate on the Ministers, elections and petitions of concern Bill at the end of last year and the beginning of this one—so, if my noble friend Lord Dodds of Duncairn will forgive me, I do not really wish to reopen that whole debate again at this late hour of the evening.

To answer the further question from the noble Baroness, the vote in the Assembly will be on Articles 5 to 10 of the protocol.

[Baroness Suttie (LD)]

Is that the protocol as amended, or the original?

[Lord Caine (Con)]

The vote will be on Articles 5 to 10, regardless of any changes in domestic law made by this Bill.

The noble Baroness, Lady Ritchie, will recall that securing the consent mechanism was, in the view of the Government at the time, one of the key measures which paved the way for them to agree to the revised Northern Ireland protocol in the autumn of 2019. It follows therefore that it would make no sense for the Government subsequently to remove what was seen at the time as a key part of the protocol. It is perhaps because this point is so self-evident to the Government that we did not see the need to protect this element of the protocol under Clause 15(1). The clause is not intended to provide an exhaustive list of every single article of the protocol that we do not intend to alter and therefore we have not listed other articles which we have no intention to amend.

For the avoidance of doubt, I can confirm to the noble Baroness that the democratic consent process remains an integral part of the Northern Ireland protocol. The protocol should not, and indeed cannot, continue unless it retains the support of a majority of Members voting in the Northern Ireland Assembly. Again, I hear the points made by my noble friend Lord Dodds of Duncairn in that respect, but I am just setting out the position as it stands.

I hope that this reassures the noble Baronesses, Lady Chapman, Lady Suttie and Lady Ritchie of Downpatrick, that we have no intention of using the powers to alter in any way the mechanism in Article 18.

[Lord Hannay of Chiswick (CB)]

The Minister gave a reply to the question about what the basis of the consent vote in 2024 would be, but I really did not understand what he said. Surely the vote in 2024 will take place on the Northern Ireland protocol and its arrangements for implementation as they stand at the time of the review, not as they are now and not as they would be if the Government unilaterally changed the protocol and destroyed it in the process—then there would not be a review at all. The answer is surely quite simple. It cannot be said with precision, because we do not know what the provisions of the protocol and those for its implementation might be at the time the vote takes place, but that is what it will be on.

[Lord Caine (Con)]

The noble Lord is right that it is probably not fruitful to speculate on what the circumstances might be in 2024. Our first objective is to have an Assembly in place that would be able to consider these matters and take the decision.

In conclusion, I hope I have provided some assurance to noble Lords about our intentions in respect of the powers in Clause 15, Article 18 of the protocol and the consent mechanism. I therefore urge the noble Baroness to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his detailed explanation of the Government’s position. I also thank the noble Baroness, Lady Suttie, my noble friend Lady Chapman and the noble Lords, Lord Hannay and Lord Dodds, for their interventions. This has been a very useful debate underpinning the principle of democratic consent. Irrespective of our differing views on this, I think we all believe in the value of democracy and people making decisions.

I would hope that we could have those institutions up and running in the short term, so that the democratic wishes of the people of Northern Ireland could be protected. I will further examine what Ministers have to say in relation to the protection of Article 18. If I have any further issues, I will write to the Minister, under separate cover, so to speak, and I reserve the right to further examine this on Report if required.

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[Lord Purvis of Tweed (LD)]

I rise to move the amendment in the name of my noble friend Baroness Ludford, to which I have also added my name. The brevity of my contribution should not be seen as representing any lack of seriousness in the intent behind them. It really is to seek assurance from the Minister at the Dispatch Box that the regulation-making powers in Clause 15(2) would not be exercised unless there has been consultation with the human rights bodies outlined in Amendment 26, and similarly that regulations will not be put forward under other elements of the Bill without similar consultation of the human rights bodies. I need not make the case as to why that is so important. It is simply a case of seeking reassurance from the Minister that, at the very least, consultation with these bodies will have been carried out before the Government bring forward any orders. On that basis, I beg to move.

[Lord Caine (Con)]

My Lords, I am very grateful to the noble Lord, Lord Purvis of Tweed—as opposed to Twiddle—for being very brief. I think that this is probably the shortest debate by far that we have had throughout this Committee.

I will address the two amendments together, if that pleases the Committee. As the noble Lord set out, these amendments would require Ministers to consult both the Northern Ireland and the Irish human rights and equalities institutions before making regulations under the powers in the Bill. As I set out—I hope fairly clearly—on Monday evening when I was addressing the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick, the UK remains fully committed to ensuring that rights and equality protections continue to be fully upheld in Northern Ireland, in line with the provisions of Article 2 of the protocol. I think that on Monday I referred to the fact that, given my own experience over many years in Northern Ireland, I completely recognise the importance of those human rights protections. I often cite them when I am defending and supporting the Belfast agreement, as one of the key pillars of that agreement. I hope that the noble Lord will accept that assurance.

This is why Article 2 is explicitly protected from being made an excluded provision in Clause 15. The institutions mentioned in Amendments 26 and 47 are, as I have just stressed, important and respected institutions, established by the Belfast agreement and the Northern Ireland Act 1998. They therefore deserve—at the risk of repeating myself—our full and strong support. They undertake important duties and any change to their remit should, of course, not occur arbitrarily.

I will try to assure the noble Lord: the Government do engage regularly with these commissions. I last met the Northern Ireland Human Rights Commission on 8 August. It has powers to provide advice to the Government on issues arising from Article 2 of the protocol, as things stand. Officials have already had meetings with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland regarding a number of these powers. I believe that a further meeting is being scheduled very shortly.

More broadly, the Government have engaged extensively on the issues created by the protocol with stakeholder groups across business and civic society, in Northern Ireland, the rest of the UK and elsewhere, and we continue to do so. This amendment would compel the Government to do what in many cases they already are doing and intend to continue doing. However, the situation in Northern Ireland is pressing. Therefore, it is essential that in certain circumstances powers might need to be used quickly. In normal cases, the Government would of course engage with stakeholder groups in Northern Ireland, but there may be occasions when we have to move very swiftly.

In that context, the requirements set out in the two amendments to engage with the Equality Commission and the Northern Ireland Human Rights Commission before making any changes to how the Bill operates or using any of the powers in the Bill—even though most areas of the protocol do not touch on the commissions’ remit—would be disproportionately burdensome and risk delaying the implementation of solutions for people and businesses in Northern Ireland.

However, I cannot emphasise enough the extent to which the Government are committed to no diminution whatever in human rights protections in Northern Ireland, an integral part of the Belfast agreement. As such, I invite the noble Lord to withdraw the amendment.

[Lord Purvis of Tweed (LD)]

My Lords, I welcome the Minister’s commitment. I hope he sees very clearly that we do not doubt his commitment or his work in this area. The challenge we all have is that there may be a situation where he is no longer the Minister. We hope he will have as long a ministerial life as his noble friend Lord Ahmad of Wimbledon next to him, but that is not guaranteed in this world, so this is about having statutory protections, which we will reflect on. We are considering the question because it does not necessarily delay, nor is it burdensome, to consult human rights organisations before bringing forward amendments.

On the basis of the Minister’s commitment, we will reflect on this. However, in the meantime, I beg leave to withdraw this amendment.

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[Baroness Chapman of Darlington (Lab)]

Very briefly, I very much welcome these amendments for many of the reasons that have been said. We favour a veterinary agreement with the EU to assist us in resolving some of the issues brought about by the protocol.

I use this opportunity to say that I agree wholeheartedly with what the noble Lord, Lord Purvis, said, but remind Ministers of the amendment on consultation and impact assessments that we tabled at the beginning of this process, which we will come back to and want to see addressed either at the end of this process or at the very beginning of Report, if the Government bring the Bill back. That has not gone away and, much as we have engaged with this Committee process, those asks that we had of the Government remain on the table.

[Lord Caine (Con)]

I am extremely grateful again to the noble Lord, Lord Purvis of Tweed, for proceeding at a canter. To some extent, as he said, we are, to borrow a line from “Wish You Were Here”, going over the same old ground—Pink Floyd, for the uninitiated.

I will address the amendments in the names of the noble Baroness, Lady Ludford, and the noble Lord together. Again, I will try to reassure noble Lords that the Government have engaged very broadly on the issues created by the protocol with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. I remind the Committee of something that I think was raised on Monday: over the summer, in addition to routine engagement the Government held 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators.

Within my department, Northern Ireland Office Ministers held discussions with a wide range of businesses and organisations, including a number of those not actually named in the amendments tabled by the noble Lord and his colleague, such as the Dairy Council, Hospitality Ulster, as mentioned by my noble friend Lord Dodds of Duncairn, the Northern Ireland Grain Trade Association, the Northern Ireland Meat Exporters Association and the Northern Ireland Poultry Federation, either individually or as part of the Northern Ireland Business Brexit Working Group. In fact, the noble Lord might or might not be aware that most Northern Ireland food and drink representative bodies—although not one of those listed in his amendment, Food NI—are members of the Northern Ireland Business Brexit Working Group, with which we engage regularly, as are the Federation of Small Businesses in Northern Ireland, the Northern Ireland Retail Consortium, the Northern Ireland Chamber of Commerce and Industry, and the CBI in Northern Ireland.

Alongside this engagement, we have made visits to a number of individual businesses. I reminded the Committee on Monday about a farm I visited between Newry and Armagh during the summer, where senior representatives of the Ulster Farmers Union were indeed present, and where we discussed a number of issues relating to the operation of the Northern Ireland protocol in respect of the dairy sector. So the Government have already been conducting a detailed programme of engagement to inform the specific design of the regime in Northern Ireland that will be created by this Bill, and I give every assurance that we will continue to do so.

The noble Lord’s amendments would compel Ministers to engage in consultation with specific organisations as set out in the amendment, but as I said, there are many others that we are in discussions with that are not mentioned in those amendments. In many cases, the consultations that would be set out in statute would not necessarily be pertinent or proportionate to the regulations themselves and would lead only to further delays in implementing solutions. For example, I think the Committee would agree that the Northern Ireland Food and Drink Association might not necessarily need to be consulted on VAT applied to domestic energy saving materials.

However, the powers in the Bill might need to be used quickly, and while in normal cases the Government would seek to engage with stakeholder groups, there may be occasions on which the urgency of a situation would make that unnecessary and therefore it should not be compulsory. Given the extent of the consultation we are already carrying out with business organisations and others in Northern Ireland, this amendment would risk tying the Government’s hands behind their back.

Regarding the publication of consultations, it is vital that we be able to have free and frank discussions in confidence with as many groups and organisations as possible, in which they can freely express their views to government, sometimes in forthright terms. I am sure the noble Lord would not want them to be constrained in so doing, but the amendment might well inhibit that. Of course, the outcome of our engagement will be considered and reflected in the final regulations, which the House, as has been mentioned in earlier debates, will have an opportunity to consider and scrutinise under the normal procedures. In our view, we do not need a statutory obligation to do something we are already doing with a far larger number of organisations and bodies than the amendment would have us commit to. In that spirit, I ask the noble Lord to withdraw the amendment.

On the government impact assessment set out in Amendment 74, I understand completely and sympathise with the desire for an assessment of the arrangements under the new regime. I will try to reassure noble Lords that while the Bill does not at present have an impact assessment, the full details of any new regime will be set out in regulations alongside and under the Bill, including the economic impact where appropriate. We do not, however, believe it would be appropriate to mandate by statute that the Government must in all circumstances produce an economic impact assessment before the Bill can be brought into full force. Conducting an impact assessment, while important, is not and never has been a statutory bar to making legislation, and for that reason I invite the noble Lord not to move Amendment 74.

[Lord Purvis of Tweed (LD)]

I am grateful for the Minister’s response and I am not entirely surprised by it. I mean no disrespect by that. There is a distinction between engagement—I welcome the engagement that is taking place—in how the Government are informed about the operation of the framework, and the regulations in the two parts: first, to change the exclusion areas, to alter them, to expand them and to diminish them; and, secondly, to bring forward regulations. When we in Parliament are then asked to approve them, our knowing that consultation has been carried out is an important factor when we are scrutinising them.

The second issue is consultation with the Trade and Agriculture Commission and the Competitions and Markets Authority. I will not labour the point, but it is certainly not tying hands behind Ministers’ backs to consult those organisations before bringing forward regulations, because that is a statutory duty in other legislative areas for the functioning of the UK single market. But I hear what the Minister has said, and I understand the engagement. It is reassuring that that engagement will carry on. I will, of course, reflect on the Minister’s comments in more detail, but in the meantime, I beg leave to withdraw the amendment.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the continued absence of a formal budget for the coming year is a pressing problem. While there may be a draft budget, departments are unable to plan ahead, and this undermines both consumer and business confidence at the worst time. As-yet unspecified changes to the protocol are a risk to the Northern Ireland economy, which is one of the reasons why we, and many business organisations, would like to see a detailed impact assessment from the Government, alongside indicative regulations. Engaging with those departments in the weeks and months ahead is very important, as they know the Northern Ireland economy far better than any Minister in Whitehall. Can the Minister outline how frequently these discussions are taking place in Northern Ireland? Have the Government shared detailed proposals with their Northern Ireland counterparts? If they have, why should not Parliament see what those plans are as well?

[Lord Caine (Con)]

My Lords, once again I am very grateful to the noble Lord, Lord Purvis of Tweed, for speaking to Amendments 29 and 30, which I will address together. I will try to be very brief in this response, because the answers are actually very similar to the ones I gave in response to the last group. That is, the UK Government, since this Bill was introduced, have engaged extensively across Northern Ireland on the use of the powers in the Bill, including with the Northern Ireland Executive, with Ministers in the Executive when Ministers were in place, and with Northern Ireland departments. The expertise of officials in the Northern Ireland departments, to whom the noble Lord has just referred, is absolutely invaluable and crucial, and I take his point about budgets. Obviously, there are ongoing discussions about how that issue needs to be addressed in the absence of a functioning Executive and Assembly—but I cannot really go much beyond saying that this evening.

As of a minute past midnight on 29 October, we have no Ministers. The views of civil servants are obviously constrained by their positions, but the engagement with them is absolutely invaluable. Once again, the amendments from the noble Lord, Lord Purvis of Tweed, seek to place on a statutory footing things that we are already doing. He has my assurance that we will continue to engage as widely and comprehensively as possible, including with the bodies to which he refers in his amendments. On that basis, I do not think I need to say a great deal more. We are committed to continuing that dialogue with all the relevant departments and bodies, so I invite the noble Lord to withdraw his amendment.

Northern Ireland Protocol Bill

Lord Caine Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I intervene briefly in support of these amendments requesting that the Government provide an economic impact assessment.

Nothing could better characterise the extraordinary nature of our debates today, Wednesday and next Monday—and their unreality—than the fact that the Government are asking us to enact a Bill that gives them complete powers to do whatever they like in circumstances where it has been impossible, in the Government’s view, to get a negotiated solution. I recognise that the Government’s preference is for a negotiated solution. They are proposing that we give them a blank cheque for that without telling us what the impact on the British economy or the economy of Northern Ireland might be. That is frankly bizarre. It is not truly credible.

Of course, we all know that, in the event and after we have given them those powers, they would probably publish something, but we need to know now. We need some guesstimates—I accept they could be only guesstimates—of what the likely consequences would be if the Government’s preference for a negotiated solution cannot be achieved and they use the powers in the Bill that they are asking us to enact. I cannot honestly think of an argument against it.

Five years before we joined the European Communities, the then Labour Government issued a White Paper under George Brown which was an impact assessment of joining the European Communities. Why is it impossible to do that now? Why can the Government not say what the impact would be if the car goes over the cliff? I hope the Government will relent and will provide some impact assessments of these matters, because we really need to see them before we are asked to vote on the Bill.

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

My Lords, I am very grateful to the noble Baroness, Lady Chapman of Darlington, for Amendments 12 and 15 in her name.

Since the Bill was introduced, the Government have engaged extensively with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. In addition to routine engagement, as I have mentioned, during the summer, the Government held over 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators to inform the details of how the dual regulatory and trade boundary models should work in practice. In response to the noble Baroness, Lady Ritchie of Downpatrick, I refer to some of my own engagement, not just with the dairy and agri-food sectors, but with business representative groups in Northern Ireland. That has been a similar experience to that of my right honourable friends, the Minister of State and the Secretary of State. We are very committed to this and we are reflecting on the huge wealth of feedback that we have received as we continue to develop the details of the underlying regime.

The clause is designed to provide stakeholders in Northern Ireland with certainty that the Government will deliver the solutions we have outlined. The House will have the opportunity to scrutinise regulations in the usual fashion, and the Government will provide all the usual accompanying material under normal parliamentary procedures. The full details of the new regime will be set out in, and alongside, regulations made under the Bill, including economic impacts where appropriate, so that Parliament may make informed scrutiny of the new regime which is being put in place.

The regulations themselves will be the product of engagement with businesses to ensure the implementation of the new regime is as smooth and operable as possible. Stakeholder views are of course important, but it is ultimately for Ministers to exercise these powers, and for Parliament to scrutinise and hold them accountable in the usual way. An additional requirement for the Government to lay an assessment and a report when it makes regulations using this power is therefore, in our view, unnecessary, and in that spirit, I urge the noble Baroness to withdraw the amendment.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister and to others who have contributed to the discussion on this group of amendments. I just gently say to the Minister that we do appreciate and respect the fact that a great deal of engagement is being undertaken by the Government and by others; we are all talking to businesses, and so we should. But that is not the same as a proper consultation process in line with Cabinet Office guidelines, which is what we really need here, because at some stage there will be decisions made by the Government about what they want to do, and it would be really unfortunate if those decisions were implemented without sufficient consultation. That is the point we are trying to get across to the Government at this stage, but for now I beg leave to withdraw the amendment.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking my noble friend Lady Ritchie for tabling this group of amendments. It has provoked an extremely interesting debate, with some strongly held views. First, in welcoming these amendments, my noble friend built on the contribution of my noble friend Lady Kennedy of The Shaws, who spoke last week about the importance of preserving the rights of people from all communities. The withdrawal agreement was not about the practicalities of trade; first and foremost, it was about setting out matters relating to the rights of citizens. Article 2 of the protocol reflects this, with the Government having committed to

“no diminution of rights, safeguards or equality of opportunity”

under the 1998 agreement.

The concerns raised by my noble friend Lady Ritchie are legitimate and need a detailed answer from the Minister. The Government’s obsession in relation to the European court is not helpful when it comes to questions about the rights of individuals. As my noble friend said, this is indeed an opportunity for the Government to show that they are protecting Article 2 at all costs.

The noble Lord, Lord Deben, asked a couple of very important questions. I think I wrote down correctly that he said that the Government do not even know the extent of the powers they are asking for in this Bill. That is quite a statement to make. He also gave a very telling comment about the importance of parliamentary restrictions when one has the responsibilities of a Minister. I thank him for making those points.

The noble Lord, Lord Bew, had a different view. He said that the Bill is less important than the noble Lord, Lord Deben, seemed to imply and that really the focus was on Articles 5 to 10; they are really the target of the Bill, not Article 2. I would be interested to see how the Minister reconciles those two points of view.

The noble Baroness, Lady Ludford, spoke of the law of unintended consequences. She went into some detail—almost the same level of detail as the noble Baroness, Lady Ritchie—with a number of questions that I hope the Minister will be able to answer, maybe in writing at a later stage.

The noble Lord, Lord Purvis, asked some interesting questions and reminded us all that two committees have highlighted the unprecedented nature of the Bill. This is an opportunity for the Minister to reassure us that the Article 2 rights can indeed be dynamically maintained through the Bill.

[Lord Caine (Con)]

My Lords, as ever, I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, for her amendments, which have provoked a wide-ranging debate at this late hour. I put on record my acknowledgment of her forthright defence of human rights in Northern Ireland over very many decades.

I note that some of the amendments that have been debated this evening follow on from briefings and comments made by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which are important institutions that were established under the 1998 agreement and were set out in the Northern Ireland Act 1998. They perform a hugely important function, as noble Lords have pointed out, as part of the dedicated mechanism under Article 2 of the protocol. I do not think there is any difference between us on that point.

I therefore reaffirm at the outset that the Government are committed to Article 2 and to ensuring that rights and equality protections continue to be upheld in Northern Ireland. If noble Lords will forgive me, I think I have long enough experience in Northern Ireland itself to understand the importance of those protections. That is why Article 2 is explicitly protected from being made an excluded provision by Clause 15 in the Bill. To be clear, the Government will not do anything to undermine the provisions of Article 2. We believe that the Bill gives us all the powers we need to ensure that we can protect it. The noble Baroness’s amendments therefore seek to address problems that we do not envisage arising from the Bill.

I could go into great detail now but, given the lateness of the hour, I will say that we will continue to look at these issues as we consider plans for secondary legislation under the Bill. We will be particularly mindful of any interactions with Article 2, given the interest of the Committee. In that spirit, I look forward to receiving the detailed questions from the noble Baroness in writing. Of course, I give her an undertaking that we will provide her with very detailed responses, which will be placed in the Library well in advance of Report so that noble Lords have a chance to consider them.

On the noble Baroness’s specific question, Article 2 is not excluded and cannot be. Section 7A of the European Union (Withdrawal) Act 2018 will always apply. None of the provisions that the noble Baroness mentioned ceases to apply to Article 2 under this Bill, including Article 13(3), the arbitration provisions, Article 5 of the withdrawal agreement and Section 7C of the European Union (Withdrawal) Act. As I say, I am happy to put this down in much more detail in writing so that all noble Lords will have a chance to consider the responses.

On the point made by the noble Lord, Lord Purvis of Tweed, regarding the EU negotiating mandate, I am happy to confirm that the Government are still engaging with the EU in talks, and we are clear that movement from the EU is needed that goes beyond its 2020-21 proposals. We need to be able to make changes to the protocol.

To conclude—

[Lord Purvis of Tweed (LD)]

I know that it is late; it is very kind of the Minister to give way. Just so we are crystal clear, that means that we have formally sought EU member states to seek a new mandate from the Commission.

[Lord Caine (Con)]

I am sure that the noble Lord will forgive me if I do not give a running commentary on the negotiations. I have set out the Government’s position, and I do not really want to be drawn beyond it.

[Lord Deben (Con)]

I am sorry to interrupt my noble friend, but when he replies to the points made by the noble Baroness, Lady Ritchie, will he answer the question not just whether the Government will do these things but whether they would have power to do these things? That is the question that most concerns me and many on this side of the Committee.

[Lord Caine (Con)]

I am grateful to my noble friend, and I will ensure that the answers to the noble Baroness are as full and detailed as possible.

In conclusion, given the lateness of the hour and the need to make progress, I genuinely believe that the aims of the Government, the noble Baroness and other noble Lords who have spoken in the debate this evening are broadly aligned. There might be differences of approach, but we do not believe that the amendments are required. I will write to the noble Baroness in detail and, in that spirit, urge her to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate, including the Minister who responded. I obviously look forward to the detailed answers following the submission of my speech, outlining the questions to him. What the noble Lord, Lord Deben, has just expressed, and it is the thread running through the contributions made by noble Lords this evening, is the fear of the power that Ministers will have through the regulations. That will have a damaging impact on Article 2, perhaps by default, but it is the worry and the concern of both commissions in Northern Ireland. I understand that they have a statutory duty under the dedicated mechanism to deal with these issues, but it might be useful for the Government to enter into discussions. I do not know whether that is possible, because one is the responsibility of the Northern Ireland Executive and the other is the responsibility of the Northern Ireland Office, but it might be useful, because of their joint responsibility, to have further discussions with them in relation to these issues.

Because of the lateness of the hour, I look forward to the answers from the Minister. I believe that the problem lies with the further powers in the regulations that are yet to be revealed to your Lordships’ House. At this stage, however, I beg leave to withdraw the amendment, with the proviso—dependent on the answers received—that I might bring some of these issues back on Report.

Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2022

Lord Caine Excerpts

Wednesday 7th September 2022 Lords Chamber

Moved by

[Lord Caine]

That the regulations and order laid before the House on 15 and 23 June be approved.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 5 September.

Motions agreed.

Health and Social Care Act (Northern Ireland) 2022 (Consequential Amendments) Order 2022

Lord Caine Excerpts

Monday 5th September 2022 Grand Committee

Moved by

[Lord Caine]

That the Grand Committee do consider the Health and Social Care Act (Northern Ireland) 2022 (Consequential Amendments) Order 2022.

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

My Lords, I hope to be even shorter with this piece of legislation. The Health and Social Care (Northern Ireland) Act was passed by the Northern Ireland Assembly earlier this year and received Royal Assent on 7 February 2022. The Act provided for the dissolution of the regional Health and Social Care Board and the transfer of its functions to the five Northern Ireland health and social care trusts.

A number of UK Parliament and Scottish Parliament Acts reference the now dissolved regional Health and Social Care Board, where amending those references would be outside the legislative competence of the Northern Ireland Assembly. Secondary legislation is therefore required to make consequential amendments to update references to the regional Health and Social Care Board so that the

“Northern Ireland Department of Health or health and social care trusts”


are referenced instead. This technical order seeks to update these references.

Although the order is primarily for administrative purposes, I would like to give a bit of background on the Health and Social Care (Northern Ireland) Act. All noble Lords will be aware that health is a devolved matter in Northern Ireland. The primary purpose of the Act was to implement recommendations made following a number of independent reviews and reports that had been commissioned over a number of years, from Donaldson to Bengoa, which found the current health system to be “overly bureaucratic and complex”. Those recommendations included the dissolution of the regional Health and Social Care Board and the transfer of its functions to the five Northern Ireland health and social care trusts.

As I said, the Act to give effect to this received Royal Assent on 7 February 2022, after which the Northern Ireland Health Minister, Robin Swann, requested that my department take forward secondary legislation to make consequential amendments to UK Parliament and Scottish Parliament Acts where the regional Health and Social Care Board is referenced.

Since then, officials have worked closely with colleagues across a range of UK government departments and with legal colleagues to identify the list of Acts where the now dissolved board is referenced, of which there are a total of 25. Twenty-three of those are UK Parliament Acts and two are Scottish Parliament Acts.

As I said, the order before your Lordships simply seeks to update references to the now dissolved body. There are no policy implications whatever; it is just a technical updating which the Government are taking forward. I beg to move.

--- Later in debate ---

[Lord Caine (Con)]

I am incredibly grateful to noble Lords for their contributions on what I rightly described as a very technical piece of secondary legislation. The main theme of contributions was the current problems in the health service in Northern Ireland and the need for a properly functioning Executive and Assembly to address them. I think we all agree on that. I reiterate what I said on the previous regulations: the Government and the Northern Ireland Office are fully committed, and I am personally committed, to doing whatever we can do ensure that those institutions are back up and running as quickly as possible.

The noble Lord, Lord Murphy, was not entirely accurate when he said that there were no Ministers in place at the moment. He will know, as the noble Baroness, Lady Ritchie of Downpatrick, acknowledged, that as a result of the Northern Ireland (Ministers, Elections and Petitions of Concern) Act, which we passed earlier this year, there is provision for Ministers to stay in place for up to 28 weeks after an election.

[Lord Murphy of Torfaen (Lab)]

I realised after I said it that I had dropped a clanger, but the point I was trying to make, which I am sure the Minister will come to, is that they are not Ministers in the sense of being completely accountable in the way that an ordinary Minister would be in any other legislature. Although they have limited powers, which they undoubtedly exercise as well as they can, it is not the same as if they were Ministers in a functioning Assembly and Executive.

[Lord Caine (Con)]

The noble Lord is absolutely correct to point that out. It is 24 weeks; I said 28 because the current deadline is 28 October. Although Ministers can stay in place, they are very limited as to what they can do—they cannot take decisions that would require executive agreement because there is no functioning Executive and they cannot take decisions that would be cross-cutting with other departments—but it is a preferable situation to the one we had when the Assembly was last down, when just civil servants were running the show. I am all too well aware of the limitations. For that reason, noble Lords are absolutely right to set out once again the urgency of restoring a properly functioning Executive and Assembly in which Ministers are fully accountable to the Assembly and, through the Assembly, to their respective electorates within Northern Ireland.

The noble Baroness, Lady Ritchie, again underlined with her questions on certain aspects of the legislation the importance of getting the Assembly back. Although her questions were directed at me they really should be directed by MLAs to the Health Minister. I am very happy to look into the matter for her, but it is essentially a devolved one on which further elucidation would be gained through Health Minister’s Questions in the Assembly rather than in a House of Lords Grand Committee.

[Baroness Ritchie of Downpatrick (Lab)]

I asked the question because we as a House of Lords are being asked to approve an order that would enable a change in in English, Welsh and Scottish legislation to reflect the dissolution of the Health and Social Care Board. In view of that, would the question not be quite prescient? I also thank him for going to ask the current Minister for that information on the projected savings and whether they will be ploughed back into the service.

[Lord Caine (Con)]

As I said to the noble Baroness, I am perfectly happy to do so. I appreciate that no MLA is able to stand up in the Assembly and ask those questions at the moment, so I am happy to look into the matter and come back to her.

I welcome the noble Baroness, Lady Brinton, to her place. She correctly identified my look of alarm at the fact that a Westminster health spokeswoman had come into a debate on Northern Ireland matters. She will be aware that I played no role whatever in the passing of the health and social care Act, so I must confess to a certain degree of ignorance of some of the matters she raised. Again, I am happy to look into them for her.

[Baroness Brinton (LD)]

I was making a generic point for Ministers to take away that, where these things emerge, I suspect it would be useful if there were some wider discussions, at least with the Front-Benchers involved with the relevant Bills. It is somewhat frustrating three-quarters of the way through a Bill to suddenly be told that amendments cannot happen, but I am absolutely not asking the noble Lord to deal with that on its own. We respect devolved authority and think it is really important, but we all have to learn how to work together. In this Bill, for once, it was the Westminster side that was left out until after other things had happened.

[Lord Caine (Con)]

I am grateful to the noble Baroness. Like her and many others in this Committee, I am a strong supporter of devolution across the United Kingdom and wish to see it function smoothly, efficiently and harmoniously across all parts of our country. I am very happy to have a look at what she suggested.

My noble friend Lord Lexden asked again about the problems in the health service. On the measures that might be necessary, I talked about the limitations on Ministers in the current scenario we face. Without straying into devolved policy areas, there are probably some quite radical measures and actions that need to be taken to deal with the situation that would be cross-cutting in the Executive, would require executive approval and would need to be quite bold, but which simply cannot happen within the current constraints, without a properly functioning Executive.

My noble friend is absolutely right: things are in a pretty poor state in Northern Ireland and this just underlines the need for the devolved Government to be back up and running as soon as possible. Although I do not necessarily share the reasons, I completely understand why the institutions are not up and running. That is why, without wishing to stray too much into other policy areas, the Government—including under the new Prime Minister, I am sure—are committed to resolving the issues which are preventing the establishment of the devolved Government that we all wish to see up and running. On that note, I commend the order to the Committee.

Motion agreed.

Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2022

Lord Caine Excerpts

Monday 5th September 2022 Grand Committee

Moved by

[Lord Caine]

That the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2022.

Relevant documents: 6th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the regulations before your Lordships today seek to align flag-flying days in Northern Ireland with the rest of our United Kingdom. As many noble Lords will be aware, the Flags Regulations (Northern Ireland) 2000, introduced by the noble Lord, Lord Mandelson, for the then Labour Government, provided that, on certain designated days, the union flag and in certain circumstances other flags must—I repeat, must—be flown on government buildings.

For the purposes of these regulations, a Northern Ireland government building is a building wholly or mainly occupied by members of the Northern Ireland Civil Service. The 2000 regulations also set out a number of “specified buildings” at which the union flag must be flown on the designated days in question. These buildings were chosen as they were the headquarters of Northern Ireland government departments. In 2002, the provisions were extended to court buildings in Northern Ireland.

Noble Lords will also recall that the New Decade, New Approach agreement in January 2020, which saw the restoration of devolved government in Northern Ireland after a period of almost three years, contained a UK government commitment to:

“Update the Flags Regulations (Northern Ireland) 2000 to bring the list of designated flag flying days from Northern Ireland government buildings and court-houses into line with the DCMS designated days, meaning the same designated days will be observed in Northern Ireland as in the rest of the UK”.


The updated 2022 list of designated flag-flying days was published by DCMS on 11 February this year, and it states that Her Majesty the Queen’s two birthdays and the birthday of His Royal Highness the Prince of Wales are the only royal birthdays to be observed for the purposes of flag flying. The regulations before your Lordships today will ensure that flag flying in Northern Ireland is aligned with this updated DCMS guidance and the policy followed across the rest of the UK. Prior to publishing the list of designated days, DCMS consulted a wide range of interested parties, individuals and bodies. I can confirm that the updated designated days reflect very clearly the wishes of the palace; the Committee should take note of that.

I understand that some Members will be disappointed that the number of designated flag-flying days in Northern Ireland will be reduced as a consequence of these regulations. I stress that our approach to flag flying in Northern Ireland through regulations has consistently sought to reflect Northern Ireland’s clear constitutional status as an integral part of the United Kingdom, as well as the reality of different political aspirations and sensitivities that exist across society.

I also point out that, as designated days are a matter of law in Northern Ireland, revised regulations must be considered by the Assembly ahead of being approved by both Houses of Parliament here in Westminster. I can inform noble Lords that, ahead of the most recent Northern Ireland Assembly election, Members of the Northern Ireland Assembly considered and approved these regulations on 15 March this year.

The 2000 flags order also requires that consideration be given by the Secretary of State for Northern Ireland to the Belfast agreement when making or amending flags regulations. I confirm that the Secretary of State is satisfied that these regulations are in accordance with the provisions of the Belfast agreement and that the regulations treat flags and emblems in a manner respectful of Northern Ireland’s particular circumstances.

The Government will continue to ensure that our approach to flag flying reflects the sovereignty of the United Kingdom in Northern Ireland, our Belfast agreement commitments and the need for sensitivity. On that note, I look forward to contributions from noble Lords today but commend this largely technical instrument to the Committee. I beg to move.

[Lord Murphy of Torfaen (Lab)]

My Lords, I apologise for delaying the Committee for some minutes. I completely abandoned my toasted teacake to get here very quickly; I had mistaken the time.

The Minister is right that it is a technical change, of course, but it reflects the significance of flags in Northern Ireland. This was a cause of great bewilderment to me when I first went there so many years ago—25 or 30 years ago—including the fact that one saw the Palestinian and Israeli flags: the Israeli flag generally in loyalist areas and the Palestinian one generally in nationalist areas. It reflects identity, not as Palestinians and Israelis—those are political choices—but rather the identity of people as they see themselves.

The law is clear. The flags to be flown on public buildings are flown on them because those buildings are part of the United Kingdom. Clearly, if the rules change in Great Britain, they should change in Northern Ireland as well.

It is quite interesting to read the Assembly’s proceedings on this particular statutory instrument. It was, as always, an intriguing and interesting debate that reflected the wider view on flags in Northern Ireland.

On balance, the issue has been dealt with sensitively over the last two decades, but there have been some notable exceptions, such as over Belfast City Hall some years ago, which caused a great deal of fuss. You have to be very careful in what you do about flags. It is pretty clear that this particular change was initiated by the palace. Noble Lords will ask why for themselves—I think it is pretty self-evident—but the commemoration of the birthdays of all the royals has had to be abandoned on the flagpoles of Northern Ireland as a consequence of what I think this change resulted from. The essence of this is that what happens in Britain happens in Northern Ireland as long as it remains part of the United Kingdom. Even if it did not, it would still have to have sensitivity about flags. However, it is still part of the United Kingdom, so I support the statutory instrument.

--- Later in debate ---

[Lord Hannan of Kingsclere (Con)]

My Lords, I had not planned to participate, but I give my full-throated support to what the noble Baroness, Lady Suttie, suggested. Not only is the Somme important in the iconography and history of the 36th (Ulster) Division, but it is often forgotten that more southern Irish Catholics died in British uniform during the Somme offensive than participated in the Easter Rising. That fact was for a long time brushed under the carpet. One of the more welcome signs of the approximation of the Governments in these islands is that those volunteers—they were all volunteers in Ireland—were eventually brought in and recognised, albeit long after the event.

It is a grisly memorial and a rather awful thing that we remember—the whole history of the world cannot contain a more horrible word, as one German veteran said. Yet it is something we all have in common in these islands, including me. I have a great-uncle whose name is carved on the rather skeletal memorial at Thiepval. Here is a suggestion with cross-community support and broad support in this House and in another place. It is something that I hope my noble friend the Minister will consider taking forward.

[Lord Caine (Con)]

My Lords, I am extremely grateful to noble Lords who have participated in this short debate on the instrument before us. I shall respond to one or two of the points raised.

I am very grateful that the noble Lord, Lord Murphy, managed to abandon his toasted teacake and get here in time to participate. I hope he can return to it, or a warmed-up version, at some point later this afternoon. He mentioned that the issue of flags is very sensitive, as did the noble Baronesses, Lady Suttie and Lady Ritchie of Downpatrick. Of course, we all know why that is the case. I commend the initiative of the Labour Government back in 2000 in grappling with this issue, which was seen as rather too difficult for the Northern Ireland Executive and the Northern Ireland Assembly to resolve. As a consequence of their actions and those taken subsequently by this Government, we are in a much better place when it comes to the flying of flags from government buildings and there is a wide degree of consensus.

The noble Lord is right to remind the Committee of the difficulties that can arise, and I am well aware of what happened in Belfast from late 2012 well into 2013 with the decision on the flying of the union flag. The noble Baroness, Lady Ritchie, asked whether we had worked with councils. We have, of course, but, as she is aware, flag flying from council buildings is not covered by the regulations but is a matter for district councils themselves. I will reflect on her suggestion.

The noble Baroness, Lady Suttie, referred to the possibility of making 1 July, the anniversary of the first day of the Battle of the Somme, a designated day, and I have a great deal of sympathy with what she said. My noble friend Lord Hannan was very supportive. I have visited the Somme battlefield probably 11 or 12 times in the course of the past 12 years. I was there for the centenary in 2016, at the Lutyens memorial to the missing and the Ulster tower, and later in September that year. As my noble friend reminded us—it should never be forgotten—the contribution of the 36th (Ulster) Division on 1 July was heroic, as was the contribution of the 16th (Irish) Division in September 1916 at Guillemont and Ginchy. For those who have never visited, it is always a very moving occasion.

My noble friend talked about the number of southern Irishmen who gave their lives. When I was there last July, I managed to locate the inscription of a former Member of the other place, Tom Kettle, the MP for East Tyrone, whose name is one of the 72,000 on the Lutyens memorial. I think something like four out of the nine Victoria Crosses awarded at the Somme went to members of the 36th (Ulster) Division, so I am aware of its importance and resonance across Northern Ireland and the wider island of Ireland. In response to that specific request, I am very happy to take it up with DCMS, which I know regularly consults on the designated days. My personal view is that it is a very worthwhile suggestion.

The noble Baroness, Lady Ritchie of Downpatrick, asked about executive formation and so on. Of course, I am not yet in a position to second-guess what steps the new Prime Minister might take from tomorrow, and we are in a slight state of flux over the next 24 hours, but I am confident that the new Prime Minister and whoever might be the Secretary of State, whether it continues to be the current holder or it is a new appointment, will remain very committed to working as a matter of urgency to deal with problems around the protocol but also the impasse preventing the re-establishment and reformation of a Northern Ireland Executive.

None of us wishes to be in this situation. We all want to see the institutions established by the Belfast/Good Friday agreement fully functioning and up and running. On these occasions I always look to the noble Lord, Lord Murphy, who played such a key role in the negotiations, particularly on strand 1 of that agreement, back in 1998. It is my personal commitment and the Government’s that we wish to see devolved power-sharing government and the institutions that flow from that. We should never forget that strands 2 and 3 of the agreement do not function properly without strand 1. To get all the strands of that interlocking agreement back up and running will remain an absolute priority for Her Majesty’s Government.

The noble Baroness talked about parity of esteem in flag flying. These regulations deal only with the flying of flags from government buildings and, as I said in my opening remarks, they reflect the clear constitutional position of Northern Ireland as part of the United Kingdom. The agreement contains provisions on parity of esteem, but it is always sensible to remember that it never created a hybrid state; Northern Ireland is either part of the United Kingdom or part of a united Ireland, and I am very happy to say that it continues to be part of the United Kingdom of Great Britain and Northern Ireland. There is always the need for sensitivity when it comes to such issues, and I hope that I reflected that in my opening comments.

This is a technical change that reflects the updated list published earlier this year by DCMS after consultation with the palace. It keeps Northern Ireland fully aligned with the rest of the United Kingdom.

Motion agreed.

Northern Ireland: Operation Kenova

Lord Caine Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Hain]

To ask Her Majesty’s Government what assessment Ministers have made of the Operation Kenova investigation into past paramilitary criminal offences in Northern Ireland.

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

My Lords, before I answer the noble Lord’s Question directly, I am conscious that between now and the end of this month we will see the 40th anniversary of the Hyde Park bombings, the 50th anniversary of Bloody Friday and the Claudy bombings and 32 years since the murder of Ian Gow, a friend of many of us in this House. All were heinous, wicked terrorist atrocities which were totally unjustified. Our thoughts, as always, are with the survivors and victims.

Operation Kenova has conducted much commendable work since its establishment in 2016, particularly through its ability to build trust and confidence with those engaging with its investigations. The Government very much hope that the best practices established by it will be carried through into the new legacy bodies once they are established.

[Lord Hain (Lab)]

I thank the Minister for his reply, particularly his reminder to the House about past atrocities, which we should never forget. Before the Northern Ireland legacy Bill, to which he referred, comes to this House, will Ministers agree to an amendment that I will table to adopt the Operation Kenova investigations model? Lamentably, the Government’s current amnesty provisions—that is what they are—favour perpetrators of atrocities over the needs of victims. Kenova uncovers crucial information because it is carrying out investigations to criminal justice ECHR Article 2-compliant standards, with 32 of its cases referred to the Public Prosecution Service, and so offers potential justice to victims and upholds the rule of law in a way the Bill does not. As currently drafted, the Bill does neither and is opposed by all victims’ groups and Stormont parties. Surely, Ministers should think again.

[Lord Caine (Con)]

The former Secretary of State for Northern Ireland makes a number of important points. As I said at the outset, Operation Kenova has conducted much commendable work and I pay tribute to the way in which Jon Boutcher has set about his task. The noble Lord probably asks me to go a bit too far in agreeing to amendments before we have even considered Second Reading of the Bill in your Lordships’ House. As he is aware from my record in taking other legislation through this House, I am always prepared to look at any amendment on its merits and give it due consideration. I am very happy to sit down with the noble Lord and any other noble Lords across the House prior to Second Reading to discuss the contents of the Bill.

[Lord Robathan (Con)]

My Lords, does the Minister agree that there can never be any moral equivalence between those who were sent by this Parliament to defend the rule of law—they sometimes made mistakes but they were under a huge amount of pressure—and those who went illegally, with weapons, to murder and cause mayhem?

[Lord Caine (Con)]

My noble friend will not be in the least surprised to hear that I agree with his comments entirely. He makes very important and powerful points. There is no moral equivalence between those who set out to uphold the rule of law and defend democracy and those who sought to destroy both. His question gives me the opportunity to place on record once again the enormous debt of gratitude we all owe to the members of the Royal Ulster Constabulary, George Cross, and the members of our Armed Forces for their work in Northern Ireland. Of course mistakes were made but, overall, it is a record of which they and we can be very proud.

[Lord Murphy of Torfaen (Lab)]

I very much agree with my noble friend Lord Hain, about learning from the processes of Operation Kenova. Since, as the Minister knows, every victims’ group in Northern Ireland, the Irish Government and every single political party in Northern Ireland disagrees with the Bill, is it not time to go back to the new Secretary of State, rethink the Bill, or preferably abandon it altogether?

[Lord Caine (Con)]

I appreciate the spirit in which the noble Lord, another distinguished former Secretary of State, makes his point. As he will know from his time in office, finding consensus around legacy and the past is incredibly difficult and has eluded successive Governments. I was intimately involved in the Stormont House negotiations in 2014, when we thought we had reached some kind of agreement. That subsequently unravelled in the following years. These are very difficult matters but, as I said in response to a previous question, I am very happy to meet victims’ groups, political parties, the Irish Government and Members of your Lordships’ House to see if there are ways in which the Bill can be improved.

[Baroness O’Loan (CB)]

My Lords, I declare an interest as a member of the international steering group for Operation Kenova, on which I have served for six years. Is the Minister aware that Operation Kenova has been investigating some 200 murders over a span of 25 years, including the murders of three police officers in 1982 at the Kinnego embankment, and that Kenova has submitted some 33 investigations to the DPP since 2019, but that no prosecutorial decision has issued in respect of the murders and abductions, apparently because of a lack of resources? How does the Minister view the Northern Ireland Troubles (Legacy and Reconciliation) Bill, now before your Lordships’ House, which will prevent anybody whose loved one died as a result of the Troubles terrorism, whether in England, Scotland, Wales or Northern Ireland, being able to have an inquest or bring any civil action for damages, and even from having a proper investigation which will lead to a prosecution? Can the Minister explain how this is consistent with the operation of the rule of law, of which we are so proud in the United Kingdom?

[Lord Caine (Con)]

I thank the noble Baroness for her question and acknowledge her work on Kenova, and as a former Police Ombudsman for Northern Ireland. She makes a large number of points, which are probably worthy of a debate rather than Question Time. She highlighted the point that over 30 case files are currently with the Director of Public Prosecutions for Northern Ireland. Funding for the DPP and the Public Prosecution Service for Northern Ireland is a devolved matter for the Assembly, not for Her Majesty’s Government. It highlights the fact that the cases where criminal justice outcomes have been sought take a huge amount of time. The Government are trying to focus on moving towards a more information recovery-based approach to legacy cases, which will, we hope, allow victims to access more information more quickly than would be the case with long, drawn-out prosecutions.

[Baroness Suttie (LD)]

My Lords, as the Minister said, he knows how important it is to build consensus on this matter in Norther Ireland. However, it is clear—I hope he will acknowledge this—that there is no consensus for the legacy Bill. I am pleased the Minister has agreed to meet the victims’ groups and the political parties in Stormont over the summer, but will he commit to listening to what they say and bringing forward a different Bill or, preferably, to scrapping the Bill as it stands?

[Lord Caine (Con)]

I thank the noble Baroness for her question. As I think I have outlined in my response to previous questions, I am very happy to do that. I think she will know, from experience of dealing with me, that I am always prepared to listen.

[Lord Lexden (Con)]

My Lords, was not my noble friend right to remind us of the anniversaries of terrible terrorist atrocities in order to keep proper perspective on these matters? I speak as one who was not far from the Oxford Street bus station in Belfast just after 3 pm on 21 July, 50 years ago, when an IRA car bomb killed six people and injured nearly 40. Is it not one of the objectives of terrorists and their sympathisers to try to rewrite history, to draw attention away from their evil deeds? Is it not the duty of all of us to ensure that they do not succeed?

[Lord Caine (Con)]

I agree entirely with my noble friend. It is worth remembering that, on the day in question, some 20 bombs were exploded in the space of about 80 minutes in the centre of Belfast, killing nine people and injuring 130—it was utterly horrific. My noble friend is correct to highlight the attempt by some to rewrite history. We have seen over recent years, I am afraid, a pernicious counternarrative of the Troubles, which tries to place the state at the heart of every atrocity, denigrates the contribution of the police and our Armed Forces, and seeks to legitimise terrorism. We should strongly resist that.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the noble Baroness, Lady O’Loan, referred to Kenova and its lack of resources. Would the Minister and colleagues talk immediately to the Justice Minister to ensure that both financial and staff resources are provided to a legacy investigation unit within the Public Prosecution Service, so that it can carry out the prosecutions that will flow from the Kenova inquiry, rather than pursuing this legacy Bill, which has been rejected by everybody in Northern Ireland?

[Lord Caine (Con)]

I thank the noble Baroness for her question. As I made clear in my response to the noble Baroness, Lady O’Loan, funding for the Public Prosecution Service in Northern Ireland is a devolved matter for the Department of Justice.