Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

Lord Duncan of Springbank Excerpts

Wednesday 26th June 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 16 May be approved.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, this order is necessitated by the Victims and Witnesses (Scotland) Act 2014. Through this Act, the Scottish Government sought to improve the information and support available to victims and witnesses, and to put them at the heart of the justice system in Scotland. The Act also created a new victim surcharge fund, which will use the money raised from this surcharge to provide support to victims of crime.

The order will amend the Criminal Justice Act 1991, which gives the Secretary of State the power to introduce a process whereby courts can apply for a deduction from an offender’s benefits to pay for a fine or compensation order.

This process has been in place for the victim surcharge in England and Wales since 2007. However, social security is for the most part reserved and, therefore, the Scottish Government are unable to apply the power to the new Scottish victim surcharge. This order, if approved, will allow Scottish courts to apply to the Secretary of State for a deduction to be made from an offender’s benefits.

This order demonstrates that the UK Government remain committed to strengthening the devolution settlement and shows Scotland’s two Governments working together. I commend the order to the House and beg to move.

[Lord Hope of Craighead (CB)]

My Lords, looking at the matter from the point of view of a sheriff sitting in a court in Scotland, I think that the order is much to be welcomed. The fact is that people move about, and some offenders coming to Scotland from England or Wales disappear back to England or Wales after they have been sentenced. It is necessary that this measure be passed so that the order that the sheriff would like to make can be properly put into effect.

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[Lord Davidson of Glen Clova (Lab)]

My Lords, I thank the Minister for introducing this brief order, which this side does not oppose. It is commendable that the Scottish Parliament has replicated the victim surcharge scheme that has operated in England and Wales since 2007. It should be a reasonable example of the cross-fertilisation of legal innovation that can occur from time to time within the UK.

What is perhaps surprising, as the noble and learned Lord, Lord Wallace, narrated in some detail, is that, having gone to the trouble of introducing this instrument into Scottish criminal law in 2014, some five years on victim surcharges have not been brought into force in Scotland. I note from the Explanatory Memorandum that it appears that some statutory amendment is required to be undertaken by Her Majesty’s Government before the relative support for victims and witnesses may be made effective.

I have a few questions for the Minister. On the assumption that the victim surcharge would be as useful in Scotland as in England and Wales, should not the scheme have been operational in Scotland some time ago? Does responsibility for the delay lie with Her Majesty’s Government, with the Scottish Government or, indeed, with both? Is there any particular reason why the scheme should not have been operational in Scotland? Is it perhaps because problems have arisen with the scheme in England and Wales that no one wishes to visit on the people of Scotland? Is there any assessment of how much money has been denied to the victims of crime in Scotland consequent on the non-implementation of the scheme? The noble and learned Lord, Lord Wallace, identified a figure of £1 million per annum. By my arithmetic, that would mean £5 million has been denied to victims in Scotland. Is that correct?

On the assumption that the scheme will be implemented, how is it envisaged that cross-border issues will be determined? Where the convicted person is resident in another part of the UK, will a special recovery procedure be required for the victim surcharge? I appreciate that the Minister may not be able to answer all these questions immediately; any written answer would be welcome.

[Lord Duncan of Springbank]

My Lords, this is one of these rather interesting areas in which I seem to be called on to explain the inscrutable workings of the Scottish Government, which I am unfortunately rather ill equipped to do. The noble and learned Lord, Lord Wallace, raised a number of issues regarding the lengthy delay. To be frank, I do not have an adequate answer to give him on behalf of the Scottish Government.

I have before me a statement which says that the Scottish Government have undertaken detailed consideration and consultation. Clearly it has taken a very long time. Exactly why that has been the case remains to be seen. Indeed, through a series of questions asked by a number of Members of the Scottish Parliament, it is quite evident that the Scottish Government were very optimistic that this would be delivered—that the answer would be arriving now—and that has simply not happened.

The noble and learned Lord, Lord Davidson, asked who is to blame for this. I would not use the term “blame”, but I suggest that the Scottish Government have responsibility in that regard. When we learned that there needed to be an amendment of the legislation which was reserved, we of course acted expeditiously to move that forward and will do so. Today is a measure of how quickly we have been able to move. I have not had sight of the details of the Scottish Government’s proposals. While I could speculate that they may look rather like the English and Welsh version—I would only be speculating in saying that—I anticipate that this will come through the Scottish Parliament in due course. I am afraid that I cannot speak on its behalf, however, so I am unable to answer that question.

The noble and learned Lord, Lord Hope, raised the issue, echoed by the noble and learned Lord, Lord Davidson, of those individuals who find themselves outwith the territorial jurisdiction of Scotland—in Wales or in England. That is a correction which we can take forward. As to the mechanism whereby that will be undertaken, I have to admit to the noble and learned Lord, Lord Davidson, that I do not have the detail on that. If it is equivalent to the English or Welsh version, I can certainly have that information placed in the Library. If it is some variation on that, we will have to wait until the Scottish Government determine what it should look like.

As to the amount of money not gathered as a consequence of the length of delay, the noble and learned Lord, Lord Wallace, is correct in his figures. The estimate is that around £1 million is available to be gathered in this way, but that of course depends on the details of the Scottish Government’s regulation, which I do not have. I am not sure whether that is an accurate reflection of the money or whether it is just speculation on our part. It may be that, once we have more detail on this, I can secure that information and place it in the Library. Of course, the avid Members of the Scottish Parliament may be better equipped to interrogate the Scottish Government further on these issues, about which I am afraid I have remarkably little information to satisfy noble Lords.

[Lord Wallace of Tankerness]

Perhaps I might ask the Minister something that hopefully will be within his responsibilities. The Explanatory Memorandum says that it has been,

“prepared by the Office of the Secretary of State for Scotland”.

Paragraph 6.1 states:

“On a practical level, there need to be enforcement measures to ensure that the victim surcharge is paid. One such measure is deduction of sums of money from the relevant offender’s benefit payments”.


Given that that was written by the Office of the Secretary of State for Scotland, can one reasonably infer that there are other ways in which the other enforcement measures could have been done—and, indeed, that they could have been used against people who do not have benefits and might be very wealthy? Therefore, given that that is in an Explanatory Memorandum from the UK Government, can the Minister explain why an interim order was not brought forward before there was a need for this particular one?

[Lord Duncan of Springbank]

Again, the noble and learned Lord asks a question to which I am afraid I do not have an adequate answer in terms of an interim approach to this. Scotland has two Governments, and of course we are active in the area where we can control the elements within our remit. The Scottish Government are responsible for those matters which they must determine and drive forward. As a consequence of that, I am less able to answer the question.

However, I do have an answer to the question of whether the rates of subtraction from benefits are a potential risk to the individual’s ability to pay, or indeed to struggle to pay. The DWP has set out very clear guidelines to avoid any suggestion that the deductions themselves are in any way harmful to the individual. If these guidelines are followed in the Scottish example, I anticipate that this would therefore not be an issue that would occur in the Scottish Government’s proposals. Again, I am speculating on what they will be putting in there; I do not have that detail.

As I move this forward and welcome the support of the House this evening, I suspect that that the Members of the Scottish Parliament may well be better equipped to continue to prod the Scottish Government in order to elicit the responses which I have been unable to deliver on their behalf. On that basis, I hope that I can move forward and commend this order to the House.

Motion agreed.

Northern Ireland: Inter-party Talks

Lord Duncan of Springbank Excerpts

Thursday 20th June 2019 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what progress has been made in the inter-party talks in Northern Ireland.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

We are now six weeks into talks aimed at restoring power-sharing, devolved government. The issues on which the parties are focusing include language, identity and sustainability. These are complex and sensitive matters, but the parties have approached them in a spirit of engagement and with a willingness to find solutions. However, there remain significant gaps between the parties that still need to be bridged if we are to secure an agreement.

[Lord Lexden (Con)]

Is it not the case that none of the parties in Northern Ireland is, at the moment, expressing optimism about the talks? A few days ago, the leader of the Ulster Unionist Party said:

“It’s time to get the political leaders together for some hard political graft”.


Why on earth has this not happened already? Is it because Sinn Féin is once again putting forward impossible demands, instead of negotiating constructively?

While the impasse drags on and on, will the Government now get on and provide compensation for the victims of institutional child sex abuse in Northern Ireland? The Northern Ireland parties are united on this issue and the Northern Ireland Office’s inaction, in defiance of their wishes, is a complete disgrace.

[Lord Duncan of Springbank]

My noble friend raises two points. On the first, it is important to strike the right language. This is a positive time in the talks; I believe that progress is being made. It would be premature to say that we are at the final moment, but right now the conversations are being conducted in the most positive language that we have heard in some time. I answered a Question on institutional abuse last week. I note again that a number of issues need to be resolved, as a result of matters raised by the parties themselves. Once these have been examined, analysed and converted into the next step, progress will be made.

[Lord Morgan (Lab)]

My Lords, are the Government not in a hopelessly impossible dilemma? On one hand, they are supposed to be keeping the ring at a time when Northern Ireland does not have a Government. On the other, they are propped up by a small group of pro-Brexit Ulster unionists, even though Northern Ireland voted strongly to remain. Therefore, is the loss of unity of the United Kingdom one of the many aspects of the catastrophe that Brexit is likely to impose on this country?

[Lord Duncan of Springbank]

My answer is categorically no. Unity is not in question; unity is not in doubt. Matters in Northern Ireland must be resolved by the parties in Northern Ireland. Only they can reach the consensus required to deliver a sustainable Executive.

[Lord Bruce of Bennachie (LD)]

Does the House recognise that the upturn in support for the Alliance Party in the recent elections demonstrates that there is a mood in Northern Ireland for reconciliation and compromise, to which the political parties need to respond? In what way will be the Government be prepared to ensure that these talks continue until a conclusion is reached, bringing in outside agencies if necessary, and to legislate in this place if that helps to take pressure off some of the difficult issues? These things can all bring a solution and the people of Northern Ireland have expressed a wish to get a result.

[Lord Duncan of Springbank]

No stone will be left unturned in the effort to secure a restored Executive. The talks going on now are conducted in the most positive of times. It is important that, during this period, we make hay while the sun shines.

[Lord Bew (CB)]

My Lords, one thing delaying progress in these talks is uncertainty about the outcome of the judge-led inquiry into the renewable heating scandal. Is the Minister in a position to give any information on when the judge will finally report? All parties are waiting to see what the fallout will be before they commit themselves further in the talks process.

[Lord Duncan of Springbank]

The noble Lord raises a question to which I do not have the answer, but when I have it I will ensure that he and the rest of the House know exactly when the report will be published.

[Lord Cormack (Con)]

My Lords, we have repeatedly raised two points in your Lordships’ House. First, could we not have the Assembly summoned? There is nothing to prevent the Assembly meeting without an Executive. My noble friend Lord Trimble has raised this on a number of occasions. Secondly, could we please have some progress on the appointment of a so-called facilitator? It has gone on for month after month. I pay tribute to my noble friend, but speed is of the essence and we are not seeing any speed.

[Lord Duncan of Springbank]

My noble friend raises points he has raised in the past. It is important to stress that we are witnessing, I hope, a progressive step, out of which will emerge resolution of the issues that both he and the Secretary of State for Northern Ireland passionately care about.

[Lord Hay of Ballyore (DUP)]

My Lords, we all want talks re-established at Stormont in the hope that the political parties in Northern Ireland can come to an agreement that allows the Assembly and the Executive to get up and running. But does the Minister agree that any agreement reached at the talks at Stormont must be balanced and fair, so that both communities—every community—can buy in and take ownership of that agreement? We cannot have a situation where one side takes over.

[Lord Duncan of Springbank]

The noble Lord is absolutely right: it must be balanced, fair and, importantly, sustainable.

[Lord Hain (Lab)]

My Lords, does the Minister agree that it will be a shameful betrayal of the fine memory of Lyra McKee if the parties—both the DUP and Sinn Féin—do not bear in mind what she stood for and reach an agreement? In facilitating that, does he agree that the personal involvement of the next Prime Minister, whoever that is, is critical, as my noble friend Lord Murphy, the Labour Leader and I have repeatedly urged? He must get directly involved and convene a summit, because that is sometimes the only way to crack these problems.

[Lord Duncan of Springbank]

The noble Lord is right to raise the sad death of Lyra McKee. I think that has added momentum and impetus to the current talks and it would be a betrayal of all she stood for if we do not finally secure a restored Executive. I can assure the noble Lord that the Prime Minister has taken an active interest and even last night was in direct contact with the Taoiseach to discuss these matters and give, as best we can, a favourable momentum to the ongoing talks.

[Baroness Smith of Basildon (Lab)]

I thank the Minister for referring to the Prime Minister. I have to say that this week has not been an encouraging one for the NIO. It started with the NIO trying to hold an event that all MLAs refused to attend. It moved on to rumours that vital talks are to be paused over the summer, and at the last count we had four possible Conservative Prime Ministers who all think that no deal is an acceptable outcome, given the implications for Northern Ireland. It is essential that the Government engage better, the point made by the noble Lord, Lord Lexden, in his Question. The Minister told us that the Prime Minister had a conversation with the Taoiseach last night. How many times has the current Prime Minister met with all the Northern Ireland political parties? Will the Minister commit to doing everything he can to ensure that the next Prime Minister meets every party from Northern Ireland as soon as possible after he enters No. 10?

[Lord Duncan of Springbank]

The noble Baroness raises several points. The important thing to stress is that the resolution of this issue rests not in London but in Belfast between those parties. The Prime Minister and the Taoiseach have sought, by their various offices, to engage directly with that. As to the future Prime Minister, I do not know whether he will ask my advice, but I will be very happy to give it to him.

Northern Ireland: Historical Institutional Abuse Inquiry

Lord Duncan of Springbank Excerpts

Thursday 13th June 2019 Lords Chamber

[Lord Empey]

To ask Her Majesty’s Government what assessment they have made of the request from the head of the Northern Ireland Civil Service to introduce measures to compensate the victims of Historical Institutional Abuse, as recommended by the Report of the Historical Institutional Abuse Inquiry in January 2017.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

The head of the Northern Ireland Civil Service wrote to the Secretary of State on 2 May, providing her with the historical institutional abuse consultation report, draft legislation and a document that set out the key issues that require ministerial decision. The Secretary of State asked the Northern Ireland political parties to consider these important policy questions and to seek a consensus. She has now received their recommendations and will consider them as a matter of urgency. She is determined to do everything in her power to ensure the victims and survivors get the redress they deserve as quickly as possible.

[Lord Empey (UUP)]

The Minister will be aware that, in addition to the head of the Northern Ireland Civil Service, as he said, all parties at Stormont have asked his right honourable friend to legislate to implement the Hart report, which came out in January 2017. Since this Parliament is effectively lying idle for the next six weeks, could I implore my noble friend to prevail on the Secretary of State to immediately introduce this legislation on humanitarian grounds? Why should these victims suffer all over again because of unnecessary delay? Thirty-one victims have died since the report was published in January 2017. Why should any more go to their graves without receiving justice?

[Lord Duncan of Springbank]

The noble Lord makes an important point. This is about victims and redress. The issue we face is that the original draft diverges significantly from the consensus reached by the political parties. This will therefore take time to redraft. That is what is being taken forward right now in Northern Ireland by the authorities. Once that is done, it will return to us and we will take it through both Houses as expeditiously as possible.

[Baroness Smith of Basildon (Lab)]

My Lords, this all sounds a little delaying. I trust the noble Lord’s judgment implicitly on this, but it is over two years since the inquiry report. We have heard from the noble Lord, Lord Empey, that this delay comes at a very high price for the people of Northern Ireland and the survivors of abuse. Obviously, the preferred option would be a devolved Administration, but I put on record again, because this is not the only example like this, that the Government are not doing enough to ensure the devolved institutions are up and running. I have said that perhaps if the noble Lord was Secretary of State we might see greater progress, which we would welcome. The political parties all blame each other for it not happening. Meanwhile, we have cases such as this where people are dying and struggling through lack of action. There is a moral duty to act. The noble Lord said that work is ongoing. Can he give a commitment to bring back that legislation to this House in this parliamentary Session before any Prorogation, whenever that might be?

[Lord Duncan of Springbank]

The challenge we face is that, had the political parties in reaching their consensus broadly affirmed the Hart report and all its elements, we could have been taking it forward right now. Unfortunately, there were 13 substantive areas of change that the political parties wished to take forward. These require some time. I cannot give the commitment the noble Baroness would like to hear, but I can say that once we work through those things with the relevant authorities in Northern Ireland we will take it forward as quickly as this House and the other place will allow.

[Lord Bruce of Bennachie (LD)]

My Lords, the noble Lord, Lord Empey, is to be credited for his persistence on this issue. I concur with him that neither this House nor the other is preoccupied at the moment. I hear what the Minister says, but people have waited far too long. There is time to do things quickly and effectively when all the political parties are on side. Will he take that on board? Northern Ireland needs a positive gesture right now. Is this not the right time to deliver this, and not delay it any further?

[Lord Duncan of Springbank]

The important thing to stress is that, were we in receipt of the draft legislation, this House could take it forward very quickly indeed, but we are not. The challenge right now is for the authorities in Northern Ireland that are responsible for this to work through each of the aspects raised by the political parties, to ensure that this can be brought forward in draft. The moment it arrives here we will be able to take this forward very quickly indeed.

[Lord Cormack (Con)]

Would my noble friend accept that there are other victims too? We have discussed in this House those who were brutally treated during the Troubles, many of whom were maimed. Many have died in the last few years. They deserve the same sort of recompense; my noble friend has acknowledged that on the Floor of this House. Will he try to bring legislation that includes them as well?

--- Later in debate ---

[Lord Duncan of Springbank]

I would not wish to see these two elements entwined, because they are quite distinct. However, the issue to which my noble friend refers is very important. I have given an assurance before and repeat today that we must make progress on victims’ pensions. He has my word that we will take that forward as quickly as we possibly can.

[Lord Morrow (DUP)]

My Lords, I certainly agree with the Minister when he says that these are two separate, different issues, which are both extremely important. From his reply to the noble Lord, Lord Empey, do I take it that the settled position of the Government is that, since all the obstacles are out of the way and all the political parties are on board, they will now take the necessary action, bearing in mind that some of the institutions have a big role to play here and must not be allowed to get away scot free? I urge the Government to give a clear, unambiguous, unequivocal reply that they will take this issue forward and that this is their settled position, irrespective of what is happening in Northern Ireland and since all the political parties in Northern Ireland agree that it should be taken forward.

[Lord Duncan of Springbank]

I can give the noble Lord that assurance. We will do just that.

[Lord Foulkes of Cumnock (Lab Co-op)]

Is the Minister telling us that the only reason we are not able to consider this is because of a delay in drafting the legislation? The Minister knows that I have a great respect for him. Could he not go back to the officials to say that this House, indeed the whole Parliament, is ready to consider this legislation and put a rocket under them so that it comes here as quickly as possible?

[Lord Duncan of Springbank]

I will be very happy to put a rocket under them.

[Lord Rogan (UUP)]

My Lords, the victims of these crimes and their relatives are grieving. The grief is deep. They simply cannot understand why the Secretary of State for Northern Ireland, Karen Bradley, has not taken a decision more quickly. There must be no more delays. I welcome the Minister’s comments today that he will expedite this matter so that it is dealt with in the quickest possible time.

[Lord Duncan of Springbank]

We can afford no more delays, so the moment we have this material here, we will move it forward quickly. We will see that justice is served and redress is achieved.

Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2019

Lord Duncan of Springbank Excerpts

Tuesday 4th June 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 30 April be approved.

Relevant document: 48th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2019. The current provisions expire on 31 July. While this is the sixth such extension of these provisions, I hope to leave noble Lords in no doubt of the continued necessity of these provisions for another two years.

It is important to note that non-jury trial provisions are available only in exceptional circumstances in Northern Ireland where a risk to the administration of justice is suspected by the Director of Public Prosecutions. This could be, for example, through jury tampering or due to jury bias. Non-jury trial provisions also protect against the risk of impairment to the administration of justice arising from a hostile or suspicious jury—a circumstance that is more likely to occur in Northern Ireland than the rest of the UK, with Northern Ireland’s unique security situation and troubled past.

Decisions for non-jury trials are made on a case-by-case basis, taking into account the circumstances of both the offence and the defendant. The Director of Public Prosecutions for Northern Ireland must suspect that one or more of four conditions is met. The conditions are specified in the Justice and Security (Northern Ireland) Act 2007 and relate to association with proscribed organisations or offences connected with religious or political hostility. A case that falls within one of the four conditions will not automatically be tried without a jury. The DPP must also be satisfied that there is a risk that the administration of justice might be impaired if a jury trial were to be held.

Let me be clear: this is not a Diplock court system. There is a clear distinction between this system and the pre-2007 Diplock court arrangements. The Diplock system saw a presumption that all scheduled offences would be tried by a single judge. Today in Northern Ireland there is a clear presumption that a jury trial will take place in all cases. At the peak of Diplock courts in the mid-1980s, there were more than 300 such cases per year. The peace process and ceasefires saw this figure fall to an average of 64 cases in the last five years of the Diplock system, leading to their end in 2007. By contrast, the average number of non-jury trials per year is less than a third of this. Non-jury trials are used only in exceptional circumstances; they are not Diplock courts. I assure noble Lords that the Government wish to end the exceptional system of non-jury trials as soon as it is no longer necessary, but this should happen only when circumstances allow: otherwise, we risk allowing violence, fear and intimidation to undermine the criminal justice process in Northern Ireland.

Noble Lords will be aware of the lethal threat still posed by terrorists in Northern Ireland. Violent dissident republican terrorist groups continue to plan and mount attacks with the principal aim of killing or maiming those who serve the public in all communities so bravely. Police officers, prison officers and members of the Armed Forces are the main focus of these attacks. Terrorists’ continued use of firearms, explosive devices and other weaponry continues to cause death and injury. Individuals linked to paramilitary organisations also continue to undermine the rule of law and the hard-won peace in Northern Ireland through the use of violence, fear and intimidation in both republican and loyalist communities.

While many attacks have been disrupted, the security situation today regrettably remains much the same as it was in 2017, when the provisions were last extended. The current threat level for Northern Ireland-related terrorism remains “severe”, meaning that an attack is highly likely. In fact, it has been set at “severe” for nearly 10 years. This year, in 2019, three national security attacks have occurred as a result of Northern Ireland’s terrorist activities. Although there has been a reduction in the overall number of national security attacks in recent years, vigilance in the face of the continuing threat remains essential.

Noble Lords will remember the car bomb in January that exploded outside the Londonderry courthouse. It was described by the PSNI as a relatively unsophisticated, crude device. Clearly, however, as noble Lords may have seen from CCTV imagery released at the time, it could easily have caused injuries or fatalities and was wholly indiscriminate. Noble Lords will also recall the postal packages that were sent to addresses in London and Glasgow. One detonated. Thankfully, no one was injured during these first two national security incidents.

No one will forget the tragedy in Creggan on 18 April, just seven weeks ago. Lyra McKee, a young journalist, lost her life standing behind a police line when a dissident republican gunman fired shots at police. The police had been in the area searching for firearms and explosives, doing their job trying to keep people safe. The sickening events that unfolded in Creggan remind us how volatile the security situation in Northern Ireland can be.

Noble Lords may have heard subsequently that the PSNI and the Public Prosecution Service announced that every possible support, including witness anonymity, would be provided to those giving evidence as part of this murder case. This move highlights the fear and intimidation that exists in some communities in Northern Ireland. These are small, close-knit communities in which it is very easy for people to be identified. Violence, fear and intimidation are real concerns for the wider community because of the presence of violent dissident republican terrorists and paramilitary groups. A report commissioned by the Department of Justice (Northern Ireland) in March this year found that 29% of those living in mainly loyalist areas and 25% of those living in mainly republican areas think that paramilitaries create fear and intimidation, compared with 15% in Northern Ireland generally. This evidences a general fear of paramilitaries among people across Northern Ireland—but one that is exacerbated within certain communities.

We accept that having specifically designed non-jury trial provisions in Northern Ireland is not an ideal situation—but neither is the “severe” terrorist threat in Northern Ireland. We also accept that this is the sixth extension of what were designed to be temporary provisions. But the “severe” terrorist threat in Northern Ireland is a complex and enduring issue, and we must make sure that, for as long as it endures, it does not interfere with our ability to provide safe and effective justice.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, I am sure that noble Lords will join me in wishing the noble Lord, Lord Thomas of Gresford, all the very best.

Recalling my first visit to Northern Ireland as a youngish shadow Minister 24 years ago, the situation was hugely different from what it is today. There were Diplock courts, of course, and juries before that had been severely intimidated by paramilitaries from both sides. Extreme sectarianism meant that that you were not guaranteed, in the proper sense of the word, a fair trial if that trial was to be held with a jury. As the Minister said, Northern Ireland is a very small place and it was even smaller, in population, in those days. We had to have these necessary evils: there had to be some system which meant that justice was fair and outside the realms of intimidation. It is also fair to say that between that time and 2007, when the Diplock courts went and the new system came in, we saw an enormous difference in Northern Ireland. The landscape changed considerably. Not least of this, of course, was that the nationalist and indeed the republican communities began to accept the criminal justice system and the police system, so that people from those communities sat on the Policing Board and involved themselves with the PSNI as well.

So there were huge changes. The Minister touched on the fact that in recent times—the last couple of years in fact—non-jury trials in Northern Ireland have become a tiny proportion of the whole. In 2016 there were only 12 non-jury trials out of 1,640. In 2017 it was nine out of 1,409. Those figures clearly indicate that there has been a huge shift in what happens in Northern Ireland. He is right, of course, to say that the security situation in Northern Ireland is still such that, at the end of the day, you cannot totally rule out a trial that would be unfair because of intimidation or extreme sectarianism. The points made by my noble friend Lord Reid and the noble and right reverend Lord, Lord Eames, are very significant in terms of working out when we will actually see the complete end of non-jury trials in Northern Ireland.

Of course, in a general sense it is about security, and if the security situation improves to such an extent that they are unnecessary, then it will change by the next time we look at this legislation, in two years’ time. But we have to be a bit more scientific than that; as long as you have a system which is different from the rest of the United Kingdom—indeed, from the rest of Ireland—Parliament should be informed as to how and why it should continue, if it does. It would be helpful if the Minister could tell us how the oversight occurs and how this might eventually end.

The other issue is that, so long as there is political instability in Northern Ireland, the possibility of terrorist activity, which we have seen over the last couple of months and even in the last couple of weeks, fills the vacuum of political instability, albeit nothing like how it used to. But it is still there. In that context, I am sure the Minister can reassure the House that the talks in Northern Ireland are going well and that there is a possibility that the institutions might be brought back—bearing in mind that it is not long before the marching season and the holidays are upon us, which is always a reason why we cannot do things in Northern Ireland. The fact that there is political stability hopefully means at the end of the day that the dissident republican threat, if not evaporating, is certainly very much less and that, as a consequence, normalcy can come to Northern Ireland and all trials in Northern Ireland, where relevant, can be trials with a jury.

[Lord Duncan of Springbank]

My Lords, I begin by thanking all noble Lords for recognising the need for this extension and that it is not the choice or preference of the Government to pursue this route. Were we in different circumstances, we would not be countenancing non-jury trials in Northern Ireland. But circumstances are different and we need to be cognisant of what those differences mean for the fairness of the trials themselves.

I too wish the noble Lord, Lord Thomas, a speedy return to the Chamber. He made the important point that paramilitarism, with which we are so familiar, has evolved. It has now become a gangsterism. It has moved from just being men wearing uniforms to being a corrosive element in so many communities in Northern Ireland. Many of these communities are close knit, and intimidation can be exercised in the most insidious and secretive of ways. That is why we need to recognise that a trial must be fair. In those circumstances, we must recognise that intimidation, tampering or any of the other means by which juries or witnesses can be affected must be taken into account in the exercise of justice.

I do not doubt for a moment—here I return to the comments made by the noble and right reverend Lord, Lord Eames—that the judiciary in Northern Ireland has borne a significant burden. Those here who have practised law, especially those who have served on various judicial Benches, will recognise what a challenge that is. To do so in Northern Ireland is to embrace a different world, where traditional family life is disrupted on a daily basis. The fact that it exercises justice in an impartial way is to its credit, and the fact that it is willing to do so under what are sometimes the most perverse and difficult of situations is a tribute to it. I join the noble and right reverend Lord in paying tribute to it for the work it does and the duty it displays in the service of its country.

It is important to touch upon two key aspects that have come through in this debate. First, while accepting that there will be an extension for two more years, by what criteria will we ever be able to establish when we have moved beyond this moment in time? This is important; when I spoke to my officials this morning, that was the very issue about which I too was concerned. It is not enough to say, “When things get better” or wave your arms and say, “We will know when it is time”. There needs to be a suite of very clear criteria.

I can set out certain criteria to your Lordships today. Clearly, the warning about security in Northern Ireland is critical. That is based upon a whole series of assessments conducted by various organisations and bodies in Northern Ireland. That is quite a delicate thing to establish, because it is very easy to use the word “severe” but very difficult to then quantify how you got there. Clearly, we need to move to a situation in which the exercise of justice can be undertaken without threat. That can be done only when we reduce the various gradations down from “severe” until we reach the “normalcy”—the very word used by the noble Lord, Lord Murphy—of everyday life in Northern Ireland.

Devolved Administrations: 20th Anniversary

Lord Duncan of Springbank Excerpts

Wednesday 22nd May 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, it has been a wide-ranging debate. I hope I can do it justice this evening but I will exercise ministerial priority in addressing two points which need to be drawn out of the overall discussion.

I address my first point to the noble Lord, Lord Hain. He raises important issues regarding our wider legacy question but also, specifically, about pensions for those who have suffered in the Troubles in Northern Ireland. I was genuinely privileged to meet the same group who he brought across and they made me think. We still await the views of the victims’ commissioner, which we anticipate imminently, but I give the noble Lord my word that we will act on them as quickly as we can. These people have waited too long and it is right that we begin the discussion tonight on that point. It is important that they hear clearly from us that they have not been forgotten and that we will move forward—within the constraints, of course, of the victims’ commissioner’s views—as best we can to address that issue.

The second issue concerns the points raised by the noble Baroness, Lady Harris, regarding police funding in the Province of Northern Ireland. I have some exact figures on that but I am aware of the late hour. It might be better to send, if I may—I see a noble Lord nodding—those figures to the noble Baroness. I will lodge the same figures in the Library, so that all can see exactly how the UK Government have responded to the needs of the security forces in Northern Ireland to address these issues. I believe they are of particular importance but I will not detain us too long this evening.

This has been a wide-ranging discussion and I will start on what is perhaps the darkest aspect of what your Lordships have touched on this evening. It concerns Northern Ireland, which is the part where devolution is not working as it should. We see the consequence of that failure of devolution day after day. I have stood here on a number of occasions and listened to noble Lords explaining and exploring the realities of an absent Executive and a dysfunctional Assembly. That reality is palpable and it is felt. It is a reminder of how important devolution is and of how important it needs to be to work well.

The noble Lord, Lord Bew, is right to remind us that there are challenges in the working of devolution. Not everything is full of smiles and roses and there is no doubt that some of the challenges in Northern Ireland bedevilled the previous Executive. A number of the big questions that they had the opportunity to address and resolve were left unresolved. I am thinking of issues around the wider abortion question and same-sex marriage, and of some of the legacy questions themselves. These were great challenges, which would have challenged the greatest minds, so perhaps it is not surprising that they have not been resolved. But it is a reminder that devolution itself does not offer a solution to all the problems, only an arena in which they can be addressed. Northern Ireland needs that arena now more than ever.

I am reminded again of the comments made on more than one occasion that had there been a functioning Executive, the comments on Brexit would have been quite different. The voices that we hear would have been different and the discussion on the elusive backstop may well have taken on a very different colour. We have missed that, which is a great tragedy not just for Northern Ireland but for everybody here in these islands. I will not comment too much on the talks, which are ongoing, but there is a hint of progress. There is a belief that we are perhaps on the track of reaching that elusive resolution to bring the Assembly and the Executive into being once again. We need to pay tribute of course to Lyra McKee. That is why the people of Northern Ireland have begun again to remind their politicians that they are but temps—that they are there for a short time and have a job to do, and that it is critical that that job be done.

A number of noble Lords have said that devolution is not a destination but a journey. It is important as we look at that journey to recognise how we came to be there. I shall not spend too long examining the history—a number of noble Lords have done that eloquently today—but it is important to remember the challenges that brought about the need for devolution: the belief that there was a disconnect between the people and those governing them. It was almost as simple as that. I listened avidly to the noble Baroness, Lady Adams, when she talked about the situation she encountered when there were only a handful of Conservative MPs in Scotland, who were at that point seeking to move things forward there. There were two ways to look at that. One was at the number but the other was at the proportion of the vote. A number of noble Lords today have noted that the systems of voting carry with them large responsibility for where we are. In the election of 1992, the SNP secured 21.5% of the vote in Scotland and got three MPs; the Labour Party gained 39% of the vote and got 50 MPs, and the Conservative Party won 25% of the vote and got only 11 MPs. So the voting procedures carry with them a high degree of problems.

A number of voting systems can be used. There is no doubt that some are more believable than others. In these islands, I think people quite like to vote people out; they like to get rid of politicians they feel have wearied them for too long. I found myself standing for the Scottish Parliament in the early 2000s. Of the six candidates, I was the only one who did not enter the Scottish Parliament; the other five did—I felt a little left out.

When I was a clerk in the Scottish Parliament, I remember an MSP telling me that he had been elected by STD. I thought, “That means sexually transmitted disease and I am nearly certain that we were not elected by that method”. STV is a complicated system; I do not think the people of the country fully understand how it works. If we are to move forward on reinvigorating devolution, we need to make sure that the process and procedures that put people into office are understood and believed in by the people. That is critical. I think it is sometimes not understood and we end up with a challenge.

It would be wrong of me to suggest that devolution has not carried with it consequences that were not perhaps foreseen. One touched on by several noble Lords today is the impact on local authorities. Across this kingdom, there have been significant impacts on local authorities as a consequence of the functioning—sometimes the dysfunctioning—of some of the Administrations. A number of noble Lords have spoken about the centralising instinct of certain Administrations, who draw in to their capital city the very thing that they have sought to take away from the capital city of London. As someone who comes from Perthshire, which is approaching the Scottish Highlands, I was always lamenting the fact that all the good things happened in Edinburgh and never seemed to get across the Tay to where I lived. Then I remember my mother telling me that everybody in Blairgowrie had something but the people in Alyth did not. It is just a matter of scale—people are always fearful that something is going on—but it is a reminder that local authorities have been squeezed in this process. We need to consider that carefully as we examine the wider devolution question.

My noble friend Lord Lindsay raised an important point: the notion of intergovernmental and inter-parliamentary connection. He strikes a chord. These are things which, on a parliamentary basis, we could take forward now. There should be opportunities not just for Members to exchange views but for members of staff, who can experience the different methods of the different institutions, also to begin that journey. There is much to be learned by that conversation. As a former MEP, I have a strong memory of how important those shadowing systems were and how important it was to be able to trade different members of staff so that they could explain to Members, who were sometimes —as we often are—a little in the dark, how an institution worked. It is important to bring about that sort of intergovernmental and inter-parliamentary approach. Much can be learned and we can avoid some of the bigger problems.

I want to touch on the wider questions of where we go next, because a lot of the discussion today has been historic, and rightly so—we are celebrating a 20th anniversary—but the question is what comes next. A number of noble Lords made the point that the devolution framework broadly existed within the EU context. There is no doubt that, as the noble and learned Lord, Lord Hope, said, things might have looked different had there not been the EU, giving a certain permission for things to be devolved and others to be retained. Again, we will have to begin to think afresh. The Government have begun this approach, we have looked at these common frameworks, and there will need to be, across a whole range of areas, functional relationships between the different Administrations to make sure that there is seamless government and that the best policies are able to be achieved and the best outcomes delivered. We are working on that process; it is not always easy.

Without wishing to delve too far into the politics, certain Administrations are less inclined toward co-operation for very difficult and very distinct reasons, and it is not always easy to bring them alongside. That is why, when we have been seeking the legislative consent Motions, we have had greater success with the Welsh Government than with the Scottish Government. We should be able to see that for what it is, and not be dismissive of the reason behind it. It is hardly surprising that a nationalist Government in Scotland would wish to see things quite differently from a more unionist-minded Government in Wales. But we need to recognise that that creates a tension within the various fora and within the different structures. We need to be aware of that and not see it as a failure of the system but recognise that, in fact, it is because different individuals in a room see an outcome quite distinctly and differently.

A number of noble Lords asked whether the British state can survive. I am much more optimistic about that. I know that we are bedevilled by Brexit just now; the challenges are real and there is no point in pretending otherwise. But the UK has undergone fundamental constitutional change over the last 20 years, and sometimes we forget how resilient it has been. We often talk about the fact that that there is no single UK written constitution, and of course that is accurate, but in truth there are a number of written documents from which our powers and our rights are drawn. That can be remarkably flexible in the way we move forward.

Some of the biggest changes we have seen in our lifetime are indeed the devolution approaches that have happened. Again, recognising the distinctions between the different parts of this kingdom, the same was not applied to each. They were allowed to grow and evolve in ways that were particular to those areas and entities. I think, therefore, that it is indeed a process; it is a journey, and we will not reach the end point. We have to ask ourselves how, then, those entities work together to make sure that the United Kingdom continues to survive and thrive and prosper, and of course allow for those who would wish it to exist in a very different format to make their points known carefully and comfortably within the systems we have created.

I am aware of a number of individuals who have constructed the system we have today. I am always reminded of Donald Dewar. I met Donald Dewar once and he was an extraordinary individual. He was very unhappy that day because fishermen had just dumped a very large bundle of rotting fish just in front of the Parliament. He was not overly impressed at meeting me because I represented Scottish fishermen. At the same time, he recognised that we were trying to make a particular point. “There shall be a Scottish Parliament” was his oft-repeated statement, but my favourite part of his opening speech to the Scottish Parliament was what came next: “I like that”. That was a nice way of putting it. It was a recognition that there was now a different way of doing things.

It is right that we are critical. We cannot and should not simply accept and celebrate devolution as if it has been a unified and wholesome success. The noble Lord, Lord Foulkes, has made a number of interventions in this House regarding the British Transport Police and he and I have been overt allies in this regard, recognising that devolution itself does not need to be a great stake through the heart of co-operation: sometimes it is about working together to find the right solution, but being accountable to the democratic bodies, whether it be in Edinburgh, Cardiff, Stormont or indeed here. If you approach the argument with a simple position, which is that, irrespective of the argument, we must have it separate, with a wall around it, you are always going to get the same outcome, which will never be satisfactory within the devolution settlement.

That is one of the great failings that we experience on a daily basis: if you simply believe that independence is the answer to every question, you are never really going to get the functioning devolution you want. If all you have is a hammer, everything looks like a nail. If all you believe in is independence, every answer will give you the same outcome. Trying to marshal that is one of the greater challenges, particularly when we are seeing some of the great difficulties that Brexit has cast on us. I am fully aware, as a number of noble Lords here will be happy to attest, that the time ahead will be most challenging. There is no point pretending otherwise. We have in our devolution structure enough robustness to allow serious debate to take place. That is important, but we must recognise that it will be tested to the extreme. That is simply a statement of fact.

I have a couple of minor points on the ongoing intergovernmental review. It is important to recognise that this is a collaboration between each of the devolved Administrations and the UK Government. That is an important point, because we are trying to find the right way of creating the right sorts of structures. As a clerk in the Scottish Parliament, I always found the JMC structures frustrating because they were so secret; you could never find out what was going on behind closed doors. I am now on the other side of the doors and I wish that there was a secret. Sometimes it is not actually as exciting as it would seem. The reality is that the JMC structures will be one of the evolving aspects of this. People need to have greater confidence that their elected representatives are doing the right thing, and transparency and accountability will be at the heart of that.

That will be particularly important as we look at the common frameworks going forward. On the magical date when we move from this limbo world to the next stage, they will become critical as we try to make sure that our United Kingdom remains united and that we are able to focus on the bread and butter issues, as we know people want. Time and time again as I stand here representing Northern Ireland I am fully aware that those issues have been set aside because the devolution settlement of Northern Ireland is not working. We are ultimately tested on how we deliver well-being and results for the people we represent. It is important that we get the right system and that we get it working well.

[Lord Purvis of Tweed]

I do not wish to detain the Chamber, nor bring in any kind of division, and it is very welcome to hear that this relationship is progressing at an executive level. But would the Government be open to entertaining the possibility that there could be Members of the legislatures also involved in some of these discussions about what comes with the accountability to some of these ministerial or cross-executive discussions? Even if there are other intergovernmental relationships, there are still very few formal links between the parliaments, either in Cardiff, Edinburgh or Westminster, for parliamentarians. I know that the noble Lord cannot speak on behalf of the legislatures, but if these discussions are ongoing and the Government are willing to be open to the idea of like-minded parliamentarians, that may be positive.

[Lord Duncan of Springbank]

The noble Lord is right to raise the point, but I am probably not the right person to answer it. That is a parliamentary issue, which I imagine can be taken forward if the noble Lord is minded to write to the parliamentary authorities. That might be an approach. I know that noble Lords will be very pleased to hear that I am drawing my remarks to a close—or at least I was drawing my remarks to a close.

[Lord Hain]

I will make a brief point, and I am grateful to the noble Lord for accepting my intervention. It strikes me on Northern Ireland that half of the community is not represented in Parliament. It is not represented in your Lordships’ House and it is not represented in the House of Commons. That is partly because Sinn Féin will not take its seats—we understand that. But can the Government—and whoever is the Prime Minister when the next set of appointments is made—think about this? I would certainly be willing to talk privately. It is really important for balanced debate that this is redressed.

[Lord Duncan of Springbank]

The noble Lord makes a very valid point. Now more than ever, if Sinn Féin were to have taken its seats, the difference it could have made in the other place would have been palpable. There is no question about that. The point he raises needs careful consideration. We are, I hope, a diverse Parliament in terms of representing that—particularly this House, which has history behind it. I am not saying that noble Lords are all historical, but they certainly have pedigree on the issues, and there are opportunities here that do not exist in the other place. I will reflect on that and bring it to the attention of the Secretary of State for Northern Ireland.

On that point, I hope that noble Lords will forgive me. We have had a very good discussion—but, again, it is a journey and not a destination. I am sure we will revisit this on a number of occasions in the future.

Motion agreed.

Scottish Government: Discussions

Lord Duncan of Springbank Excerpts

Thursday 2nd May 2019 Lords Chamber

[Lord McConnell of Glenscorrodale]

To ask Her Majesty’s Government when their Ministers will next meet Ministers from the Scottish Government, and what will be discussed at that meeting.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the UK Government have frequent engagement with the Scottish Government. UK and Scottish Ministers are due to meet on 9 May 2019 at the meeting of the Joint Ministerial Committee on EU Negotiations. I am scheduled to meet Scottish Ministers as part of the Defra devolved Administrations Inter Ministerial Group for Environment, Food and Rural Affairs on 20 May 2019. The agendas for both meetings are yet to be finalised.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, next week sees the 20th anniversary of the first elections to the devolved Scottish Parliament. I am sure that the whole House would want to congratulate the civil servants and legislators who, despite all the political ups and downs of the last 20 years, created such a stable institution that has legislated and budgeted on a consistent basis, despite one party rarely having a political majority. The success of the scheme was based on debate and discussion about the constitutional convention and very well thought-through legislation. In view of the fact that, whatever happens with Brexit, there needs to be a good, hard look at the UK’s constitutional arrangements and our relationship with the public, is it not the case that a model such as a constitutional convention, looking on an all-party basis at improving the governance of the United Kingdom as a whole, might be a way forward in these times?

[Lord Duncan of Springbank]

The noble Lord is right to draw attention to the sterling efforts of all those civil servants who brought about a functioning and sustainable Scottish Parliament and, indeed, a Welsh Assembly Government. There has been extraordinary progress and it is right that we recognise that this is a process, not an event. Last year, the Government set up, alongside the Welsh and Scottish Governments, an intergovernmental review and it will be reporting soon. Let us see what comes of that. However, the noble Lord is correct that this is a process and we cannot let this be the end of it. We must make sure that it continues to deliver as we would like it to do.

[Lord Forsyth of Drumlean (Con)]

My Lords, notwithstanding that the Labour Party campaigned in 1978 on a slogan of “Devolution will kill nationalism stone dead”, will my noble friend use the opportunity of the meeting with Scottish Ministers to discuss their plans to secede from the United Kingdom while remaining subject to control by Brussels and, in particular, ask them to explain how they will avoid a hard border between England and Scotland? Doing so might help my noble friend with his problems over the backstop.

[Lord Duncan of Springbank]

I will certainly raise several of those issues. I do not think it will surprise my noble friend to know that Scottish Ministers themselves often raise these very issues. The meeting I had was focused rather more on the environment and farming; none the less, the issues he raises are important and they will be part of the ongoing debate between the Scottish and UK Governments.

[Lord Reid of Cardowan (Lab)]

My Lords, on the relationship between devolution and separation, referred to by the noble Lord, will the Minister confirm that after 17 years of devolution, when the Scottish people were asked to decide whether to separate from the United Kingdom or stay in it, they decisively decided to stay in it?

[Lord Duncan of Springbank]

The noble Lord is spot on. The Scottish people were very canny and very clever, and they voted very correctly.

[Lord Wallace of Tankerness (LD)]

My Lords, this time last year, during the final stages of the European Union (Withdrawal) Bill, never a day seemed to go by when we did not discuss common UK frameworks. Can the Minister perhaps update us on what is happening? It seems to have gone quiet. How will he ensure that in areas of shared responsibility there is parity of esteem and there will not be direction from Westminster?

[Lord Duncan of Springbank]

The noble and learned Lord is correct. There needs to be parity of esteem in all these discussions. The intergovernmental review should look at the functioning of the frameworks. The existing joint ministerial committees can be improved, and I suspect that the improvements will emerge from the intergovernmental review.

[Earl Attlee (Con)]

My Lords, the Scottish Government decided to lower the blood alcohol limit for drivers, but I have not been able to find out whether that has been successful in reducing the casualty rate. Can my noble friend tell us whether it has been successful? If not, will he undertake to write to me with the stats?

[Lord Duncan of Springbank]

I will very much undertake to write to my noble friend with those statistics—I do not have them to hand.

[Baroness Bryan of Partick (Lab)]

My Lords, we should take this opportunity to congratulate those present who were Members of the first Scottish Parliament. We should go beyond intergovernmental discussions to look into inter-parliamentary contact, and take this opportunity to consider a more federal approach to the UK. Having set that in motion in 1997, we cannot now step back and say that nothing else can change. This is a perfect opportunity to make those changes. I hope the Minister will agree.

[Lord Duncan of Springbank]

It is important that we continue to learn about what is going on. It is also true that, while we have very strong working relationships Government to Government, that might not be as well established Parliament to Parliament. There is no doubt that there would be a benefit in that—the learning of this House could well be useful in informing the Scottish Parliament. Beyond that, it will be difficult to see until we have the results of the intergovernmental review.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Scottish Government have taken a lead in agreeing that universal credit should be paid separately to each member of a couple—not least to protect women surviving domestic abuse. However, they are wholly dependent on the Department for Work and Pensions and changes to the IT system to enable them to implement the policies. What active steps are the department taking to help the Scottish Government do this, and thereby enable the DWP itself to learn from Scottish experience? If the Minister cannot answer, could a letter be written that can go into the Library?

--- Later in debate ---

[Lord Duncan of Springbank]

The UK Government have been very diligent in reaching out to the Scottish Government on the devolution of benefits. This is for one very important reason: people’s lives are at stake, and their well-being is at the heart of this. I will of course send a letter to the noble Baroness setting out the answer to that question in greater detail, but please be assured that the UK Government take their role very seriously—as indeed do the Scottish Government.

Northern Ireland Update

Lord Duncan of Springbank Excerpts

Monday 29th April 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Secretary of State for Northern Ireland in the other place. The Statement is as follows:

“Mr Speaker, with permission I wish to make a Statement about the political process in Northern Ireland. Last week I came to this House and delivered a Statement in the aftermath of the sickening attack that led to the death of Lyra McKee. The day after, both the Prime Minister and I attended her funeral at St Anne’s Cathedral in Belfast along with political leaders from across Northern Ireland and Ireland.

It was, as many right honourable and honourable Members will be aware, an incredibly emotional and touching event where I heard moving and powerful testimonies from Lyra’s family and members of the community. That was a day to grieve and a day to reflect on a brilliant young life that was cut down by terrorism. All of us heard a clear message that day from inside the cathedral from the powerful testimony of Father Magill, from the streets of Creggan and Londonderry and from Northern Ireland’s political leaders: no more—no more violence, no more division and no more delay. Northern Ireland’s political leaders must come together now and work together to stand firm against those who oppose peace and the political process and work to build a genuinely shared future for all the people of Northern Ireland.

Lyra symbolised the new Northern Ireland and her tragic death cannot be in vain. All of us must take inspiration from what Lyra achieved in her life and work even harder to make Northern Ireland a brighter, more peaceful and prosperous place for everyone. As Secretary of State, I have always made clear that my absolute priority is to see the restoration of all the political institutions established by the Belfast agreement. The Belfast agreement has formed the bedrock of peace and progress here since it was reached just over 21 years ago. It must be upheld and it must be defended from those who would seek to undermine it. Northern Ireland needs its political leaders to stand together and work with each other now more than ever. That is why in Belfast last Friday I called for formal political talks to restore the Executive commencing on 7 May. Those talks will involve the UK Government, the five Northern Ireland political parties which are eligible to form an Executive and the Irish Government for matters on which they have responsibilities. They will be conducted in full accordance with the Belfast agreement and the well-established three-stranded approach to which this Government remain committed. There will also be a meeting of the British-Irish Intergovernmental Conference on 8 May.

There is much to do and many challenges ahead. It is incumbent on all of us to do all that we can to make these talks a success. Northern Ireland needs its Government back up and delivering for the people of Northern Ireland. From now until the start of talks, my team and I will be working with the parties on an intensive period of preparation for those talks.

Both the UK and Irish Governments have been clear that we will do everything in our power to make these talks a success, but we cannot do it alone. No Government can impose an agreement from the outside. We need Northern Ireland’s political leadership to do everything they can to ensure that we emerge with an agreement to restore the Executive and build a better future for the people of Northern Ireland. We have a narrow window in which genuine progress can be made and we must act now.

I hope that all Members of this House will appreciate that, to give these talks the best chance of success, there is a responsibility on all of us to give the parties some time and some space to talk. While I will of course seek to keep the House updated, I will not provide a running commentary on negotiations. However, I will be doing everything I can to give these talks the best possible chance of success. I know that all of us in this House and in the other place want to see these talks succeed.

This week has been a difficult time for us all. The murder of Lyra McKee was an attack not just on Lyra or our police service; it was an attack on us all. Since that sickening attack in Derry, Northern Ireland’s political leaders have shown great leadership in standing up together to reject violence, but now it is time for us to go further. The best possible way of showing those who oppose peace and democracy that their efforts are futile is for all the political institutions of the Belfast agreement to be fully restored and functioning, as was intended by those who reached that historic agreement 21 years ago. The stability and safety provided by the agreement has allowed Northern Ireland to thrive. Northern Ireland is now a leading destination for inward investment, unemployment is at a record low and employment at an all-time high.

Northern Ireland needs a devolved Government to allow for local decision-making, to continue to strengthen the economy and to build a united and prosperous community. I will do all I can to make that happen. I commend this Statement to the House”.

--- Later in debate ---

[Lord Maginnis of Drumglass (Ind UU)]

My Lords—

[Lord Duncan of Springbank]

My Lords, I am sorry, but I say to the noble Lord, Lord Maginnis, that his time will come.

I thank both speakers on the Opposition Benches for their confirmation and commitment. This is an opportunity. Out of darkness, let there be some light. It is important that we embrace that flickering flame to ensure that we can restore an Executive. There is no doubt, as is often said, that nature abhors a vacuum; so does peace. We saw last week—indeed, over many weeks—how, in the absence of functioning public servants in Northern Ireland, terrorists, gangsters and others who have no interest in peace or the well-being of the communities of Northern Ireland have far too often held sway on some of the streets.

In response to certain questions, the noble Lord, Lord Murphy, is of course right; we need to think in a fresh way. There is no point pretending that the methods that we have deployed thus far have been adequate to deliver that which must be delivered. We must think, and behave, afresh to achieve that. I have said in the past that nothing can be ruled out. I include in that the idea of a facilitator or mediator, which needs to be actively considered; I have no doubt whatever of that.

I am also very conscious that the Prime Minister and the Taoiseach must be part of this process. I do not believe there ever was telephone diplomacy in this, but I recognise that we now need the visible commitment of all who need to be active in these talks, as they begin to generate what I hope will be the momentum that takes them in the right direction.

I am very much aware that nothing can be off the table. There are a number of elements to the impasse which have bedevilled the various opportunities to bring about a functioning Assembly and a restored Executive. Each element will need to be considered carefully during the talks, and they must include all participants; there can be nobody left on the sidelines. All must now be active in this process.

The noble Lord, Lord Bruce, asked whether there was now a public expectation. It would be fair to say, for any of those here assembled who have spent time in Northern Ireland, that there has been a weariness with politicians of all parties—a certain fear that politicians were simply no longer able to deliver. There is now a public expectation, and rightly so. They have gone too long without a functioning Executive. I do not doubt that the people of Northern Ireland would like to move quickly beyond the constitutional considerations on to the bread-and-butter issues of health, welfare, education, roads, farming and everything else that needs to be addressed by a functioning Executive, drawn from an Assembly that represents the people of Northern Ireland who are affected by the very issues that we are discussing. I hope this talks process leads to the restoration of an Executive, and I hope it does so quickly.

[Lord Eames (CB)]

My Lords, coming from Northern Ireland and speaking from my experience over the years of being heavily involved in attempts to bring peace and to support the political efforts based on the Good Friday agreement, I welcome much of what the Minister has said to the House. The dramatic reaction to the funeral service in St Anne’s Cathedral needs no enlargement from me, but I say to the Minister that, having presided over the years at numerous funerals of the victims of violence and being in contact with the families of those who have been murdered, I was not at all surprised at the reaction.

However, allied to that must be a new urgency from Her Majesty’s Government in recognising that there is a cynicism abroad in the Northern Ireland community at the failure of organised politics to bring about a solution to these problems, and that, unless that cynicism is addressed in a realistic way in these talks, we are doomed to further failure. So can we be assured that the Secretary of State for Northern Ireland will be aware of all the facets of what she is undertaking, and that the full force of the British and Irish Governments in emphasising those particular shortcomings of the past will be fully realised for the long-suffering people of Northern Ireland?

[Lord Duncan of Springbank]

My Lords, the noble and right reverend Lord, Lord Eames, reminds us again that there have been far too many funerals in Northern Ireland, and that the passing of Lyra McKee represents but the latest in a tragic list of those who have lost their lives on the island of Ireland. I can give the noble and right reverend Lord the assurance that the two Governments will be active in their pursuit of an agreed settlement that restores an Assembly and a functioning Executive.

Let Lyra McKee not have died in vain. Let this moment be grasped by all the political parties. Whatever differences, obstacles and challenges there may be, they can and must be overcome. I can of course give the full assurance that the Secretary of State for Northern Ireland will in every way seek to move this matter forward. We now need to restore a functioning Executive. That would be a fitting but all too tragic tribute to the passing of that young journalist.

[Lord Maginnis of Drumglass]

My Lords, I am grateful to the Minister for bringing the Statement to this House but I have absolutely no faith in the ability of our present Secretary of State for Northern Ireland to bring into effect those things that, despite the clichés in her Statement, she appears to promise. Like others, I was deeply saddened by the murder of Lyra McKee, but it is not new for those of us who have lived a lifetime in Northern Ireland. I have had fellow schoolmasters and my own pupils from my school murdered by the IRA.

The Secretary of State has made a vague promise without appearing to understand the difficulties that she faces in restoring a form of government to Northern Ireland. I have made it very clear that to a large extent I have given up hope; I believe that first and foremost we should have direct rule so that we could have, say, six to nine months’ stability out of which we could try to evolve a system whereby we could implement the things that we promised in the Belfast agreement in 1998.

The major problem—I hope the Minister will take on board this point—is that we have allowed outside interference, and not just from the Taoiseach, who suddenly arrived on the scene and promised problems of violence that we would have on the border, whatever happened with Brexit. Today, we have had the leader of Fianna Fáil, who would advocate—

--- Later in debate ---

[Lord Maginnis of Drumglass]

I apologise but, after all these years, noble Lords will understand my deep concern. When will the Secretary of State have the courage to consult those of us who were involved in the 1998 Belfast agreement? We are boycotted, are we not? What improvement can we have on that scenario?

[Lord Duncan of Springbank]

My Lords, I understand the passion that the noble Lord, Lord Maginnis, brings to this issue. I understand very well the challenges he must have experienced as a schoolmaster, seeing his pupils lost in such a tragic cause. The Secretary of State has sought to reach out to Members of your Lordships’ House on a number of occasions and will continue to do so. It is important that the experience which rests in these hallowed Chambers is not dismissed lightly; there is a wealth of knowledge that can be brought into the discussions. I will strongly encourage my right honourable friend the Secretary of State for Northern Ireland to draw on the wealth of knowledge that noble Lords represent.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, does the Minister appreciate just how much ordinary civil society is suffering because there is no Executive in Northern Ireland? An example of that is the charity that Lyra McKee was involved with, which I think is called Headliners. It works in troubled areas, particularly in this country, and in Northern Ireland, with young people across the divide. It works with them on journalism skills in every sense—not necessarily to make them journalists but to build their confidence through telling stories about their communities, their lives and so on. Lyra McKee was involved with it from the age of 13 onwards and became a trustee. That charity faces closure in Northern Ireland because of funding and because there is no Executive to take decisions. The decision is outside the competence of officials. That is one civil society organisation, and because the Executive have not worked for so long, lots of other organisations face real challenges. It is that sort of vacuum, as well as the political vacuum, that is really bringing trouble to folk who just want to get on with a decent, ordinary life. That is the real challenge for the Government.

--- Later in debate ---

[Lord Duncan of Springbank]

The noble Baroness draws attention to a sad state of affairs in Northern Ireland—namely, that the everyday business of government has almost fallen by the wayside, in so far as we have reached the point, so many years now after the collapse of the previous Executive, that we cannot with confidence or certainty maintain that which has gone before. That includes funding across a whole range of charitable operations and funding aspects of education, welfare and beyond. There is a whole range of aspects, which is why the importance of restoring an Executive has always been critical. The United Kingdom Government remain committed to good governance in Northern Ireland, but that is not enough. This is an opportunity to bring together the parties in Northern Ireland to restore a sustainable, functioning Executive to address the very issues that the noble Baroness raises. The people of Northern Ireland deserve a lot better than they have had.

[Lord Cormack (Con)]

My Lords, I suggest to my noble friend, if we are really going to sustain the momentum that has been created, that when these talks begin they do so not in rooms but that the Assembly that has been elected is summoned to Stormont and that not only the Secretary of State but the Prime Minister and the Taoiseach are there to speak to the Members of the Assembly to stress their total commitment and dedication to the restoration of devolved government, and to challenge the Members of the Assembly to respond positively to it.

[Lord Duncan of Springbank]

My noble friend Lord Cormack was short, sharp and very much to the point. We need to ensure that this is not a process that remains solely behind closed doors. It must involve all the Members of the Assembly, who bring their knowledge to the process. There can be nobody left behind. I include in that civil society and local government. Each must now play their part in this process to make sure that we deliver a sustainable Executive that can hit the ground running and restore the confidence of the people of Northern Ireland in politicians full stop.

[Lord Empey (UUP)]

My Lords, naturally I welcome any process and I have complained bitterly that there has not been one, but, in a bizarre twist, four of the party leaders at Stormont, including the leaders of the SDLP and the Alliance Party, are standing as candidates in the European elections in parallel with this process. I thought that we had dealt with double jobbing, but it would appear that we have not.

The Statement referred to the Belfast agreement. People are saying how wonderful it is and how much it needs be defended, but what is not recognised is that the Belfast agreement we are talking about is not the one that we negotiated and which got 71.2% of the people to support it. It was severely damaged in 2006. When the legislation went through this House, the Liberal Democrats and the Conservatives, who were on the opposition Benches at that time, fiercely opposed it because they realised that the core of it—the partnership model at the centre—was hollowed out to facilitate the two parties that did not negotiate the agreement. That means we should go back to factory settings and deal with the agreement we made. Last year, the Secretary of State said to the House of Commons:

“Clearly, the changes made to the Belfast agreement in the 2007 St Andrews agreement have made the situation we have found ourselves in for the past 19 months more likely”.—[Official Report, Commons, 6/9/18; col. 354.]


Does the Minister agree?

[Lord Duncan of Springbank]

My Lords, there is no question that the Belfast agreement remains the cornerstone of our approach. There is also no doubt that it has undergone evolution. In this process of talks, nothing can be taken off the table. All aspects must be available for consideration. Whether that ultimately results in a restoration of factory settings I suspect time will tell, but it will be important to ensure that we have the key aspect out of these talks: a sustainable Executive that can deliver and not be brought down by either noises off or any one political party.

I am also aware that the European elections, with which the noble Lord began his question and which we perhaps had not anticipated, are seemingly fast approaching. The landscape in Northern Ireland between now and the end of the year has a number of serious obstacles that we must navigate around. This is but one of them. I recognise that there will be challenges as the political parties seek to operate normal politics while involved in the extraordinary politics required to deliver an Executive.

[Lord Campbell-Savours (Lab)]

My Lords, the noble Lord, Lord Cormack, made a specific recommendation with regard to the location of the talks and the conditions under which they would take place. Can the Minister take away his proposition and seriously consider it?

[Lord Duncan of Springbank]

Yes, I am very happy to do that.

[Lord Lexden (Con)]

My noble friend made reference to the end of the year for the completion of discussions. Did we not have a deadline at the end of August? Secondly, time and again my noble friend has been asked about an independent facilitator—by the noble Lord, Lord Murphy, and others—and time and again he has said “It will be considered”. When? How? By whom?

[Lord Duncan of Springbank]

The noble Lord is right to remind us that we are operating within what is the second window of the Executive formation extension period, which ends in August. Depending on circumstances, that may need to be revisited. I do not think a deadline at that point should in any way be a curtailment if progress is being made; that would be foolhardy.

The final points raised, about an independent facilitator, are being actively considered. They will need to be actively considered by all participants, because there is a range of views on this. Much as I would like to agree with noble Lords here that it is a unanimously popular and supported aspect, it is not. There are political parties which do not share that view, and so we need to ensure that all are brought on board, that all recognise the value and worth of such an individual, and that the individual is able to function—if indeed there is an agreement to move forward in that direction. I believe that Senator George Mitchell delivered a great deal to the previous discussions, and I recognise the value of such an individual in any future discussions.

[Lord Dubs (Lab)]

My Lords, the noble Lord, Lord Cormack, may have made this point on an earlier occasion. Is there any reason why the committees of the Assembly could not be brought together, so that at least there is a voice for politicians—or for local people, through those politicians—to let their views be heard? Would that not be salutary?

[Lord Duncan of Springbank]

The noble Lord, Lord Dubs, raises an important point, which is to ensure that there are voices from across the political spectrum. Whether the forums themselves are those committee structures—or indeed other structures—remains to be determined by those participants, but at heart I agree completely with what he is saying. There needs to be that representative element across the political spectrum and across the themes which need to be discussed. There can be particular themes discussed in closed rooms where only certain people are privy to the discussion. There also needs to be openness and transparency, and the political strata in Northern Ireland at all levels—from local government, right the way through—need to be involved in this difficult process.

[Lord Empey]

I am sorry for coming back again to the Minister, but he did say that everything is on the table. Just be very careful. Everything is not on the table. If we start opening up the whole constitutional question, I do not know where we will be. Do not forget that we had a referendum on that. People have been telling us that, because 52% of the people voted a certain way in a referendum, it has to be implemented. We had 71.2% vote for that referendum in 1998, and they were not consulted—and nor were the people who negotiated that agreement consulted—when it was changed behind our backs. Be careful about the language, because if we open up the whole constitutional Pandora’s box, I do not know where we will end up.

[Lord Duncan of Springbank]

The noble Lord makes an important point about everything being on the table. I think we can probably agree that there is a table, and that table must represent the three-stranded approach. We need to recognise the importance of the achievements of the Belfast agreement in bringing together the structures whereby we can move these matters forward, but it is also important to recognise that at heart we need to deliver a sustainable Executive which can deliver—that must be the outcome all aspire toward. I hope that using that three-stranded approach, and the various strands which must be woven into those three strands later, will help us move towards that outcome.

Northern Ireland (Extension of Period for Executive Formation) Regulations 2019

Lord Duncan of Springbank Excerpts

Wednesday 10th April 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the Regulations laid before the House on 21 March be approved.

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, as I have said many times, restoring the Northern Ireland Executive remains the Government’s key priority in Northern Ireland. My right honourable friend the Secretary of State has spoken to the Northern Ireland parties and the Irish Government on a number of occasions over recent weeks.

In those discussions, all five parties have been consistent in their commitment to restore power-sharing as set out in the Belfast agreement. The five main parties will undertake a further series of talks with the aim of restoring devolution at the earliest opportunity. The Irish Government also support this approach. These talks will involve the UK Government, the five main parties and the Irish Government, in accordance with the established three-stranded approach.

The Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 extended the period for Executive formation to 26 March. The Act gave the Secretary of State the option to extend that period once for a period of up to five months. On 21 March she laid before Parliament the statutory instrument that extended that period to 25 August, subject to the approval of both Houses of Parliament.

That step was taken reluctantly. However, as 26 March approached without agreement to form an Executive, only three options were available to the Government: calling an Assembly election, undertaking direct rule, or extending the period for Executive formation. The Government believe that an extension is the best route toward restoring an Executive.

During this period, the Secretary of State will continue to work with the five parties and the Irish Government to create the right conditions and the best possible framework for successful talks. As a first step, the Secretary of State intends to invite the MLAs of all parties to two sets of briefings, one on issues related to the programme for government and the other on the petition of concern.

Before I conclude, I want to explain why the Government chose to use the made affirmative procedure in this instance. Our preference would have been to bring forward this instrument in the usual way, using the draft affirmative procedure, but that procedure carries with it a longer lead time. We would have had to lay the instrument weeks earlier than we did. The Government took the view that laying the instrument at that earlier stage would have been prejudicial and disruptive to the private work the Secretary of State was undertaking with the parties during February and March. Of course, the instrument cannot remain in force without this House’s approval, which is why we are discussing this today. That is the reason I beg to move.

[Lord Cormack (Con)]

My Lords, extensions are clearly the flavour of the day. We at least know the exact date for this one. However, I regret this infinitely. I am extremely grateful to my noble friend for what he has said on the Floor of your Lordships’ House and in private conversation. I do not for a minute doubt his total commitment. However, it really is not good enough that we have to keep revisiting this matter.

The history of our country over the last year would probably have been different had we had a Northern Ireland Assembly functioning where people would have been able to express the view of the largeish majority recorded in June 2016. We touched on this before. As it is, we have heard only one view and one voice in parliamentary assembly. The only parliamentary Assemblies we have been able to hear are your Lordships’ House and the other place.

Several times, a number of us, including my noble friend Lord Trimble and the noble Lord, Lord Alderdice —neither of whom is here at the moment—have strongly endorsed the plea that I have made many times to my noble friend. Can we at least make some real progress by having the Assembly meet? Of course, it is a second best to having the Executive as well. We all recognise and acknowledge that. The sooner we can have an Executive, the better. Until we do, why can we not have an Assembly—the Members of which are paid; I am not complaining about that—meeting in Stormont and able to discuss the issues of the day, even if they will not have the legal authority they would have if we had fully restored devolved government? We touched on one issue only a week ago when we were talking about flags. The noble Lord, Lord Bruce, moved an amendment to the Motion, which I was happy to support. I yet again ask my noble friend to please do his utmost to persuade the Secretary of State that this really would give out a signal that would be warmly welcomed throughout the United Kingdom and, I believe, Northern Ireland. It is not impossible; it should be done.

I very much hope that my noble friend will also be able to say something about progress towards appointing some highly respected neutral individual—I hate the word “facilitator”—who would be able to try to move things on towards the restoration of the Executive. I make no criticism of anybody’s integrity, but the perception, because of the official link-up between the Government and the DUP, is that the Government are somehow involved in partiality. I do not believe it—I certainly would not believe it of my noble friend in a thousand years—but it is a perception, and perceptions are important. Therefore, to have someone who would command the respect of all potential participants could be only helpful. When he comes to reply to this brief debate, I ask my noble friend to be kind enough to touch on both those points.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, I very much support this Motion. It is necessary and it means that we can move ahead over the next few months to try to get a resolution. It is not about a no-deal Brexit situation, but it is about Europe in many ways, because we could have resolved the issue of the backstop if there had been an Assembly and an Executive in place. I believe that the nationalist and unionist parties in Northern Ireland would, over a period of two years, have come to an agreement. The border between Northern Ireland and the Republic of Ireland is central to the negotiations over the European Union and Brexit. Brexit has polarised opinion in Northern Ireland in the same way that it has done in Great Britain, except that there is a Northern Ireland tinge to it.

Sinn Féin and republicans believe that Brexit will enable a united Ireland. Only this week, the president of Sinn Féin said that she believed that we would see that united Ireland very quickly because of Brexit. The unionist community in Northern Ireland purports to speak on behalf of the whole of Northern Ireland, whereas 56% of the electorate of Northern Ireland voted to remain in the European Union. The failed negotiations in Brussels, therefore, are intimately linked with the failed negotiations in Belfast.

The problems have been mentioned many times in this Chamber, and I will repeat them, because I hope that the Minister will engage the Secretary of State on the issues that are important by way of process over the next few months.

Neither the Prime Minister nor the Taoiseach has been sufficiently engaged in trying to solve the situation in Northern Ireland. There is a mechanism: the British-Irish Intergovernmental Conference, which was part of strand 3 of the talks leading up to the Good Friday agreement. As the noble Lord, Lord Bruce, said, the guarantors of the Belfast agreement are the two Governments. I suppose it is a matter of debate as to whether the Prime Minister’s involvement would be beneficial or not; the point is that she is the Prime Minister. We would not have seen progress in Northern Ireland over the last 20 years had not successive Prime Ministers, from John Major onwards, been intimately involved in negotiations. There is no evidence that that has occurred in the last couple of years. Insufficient time has been given to the negotiations, if we can call them that, over the last two years.

The other day I heard the Secretary of State giving evidence to the Northern Ireland Select Committee. I do not for one second deny her sincerity or purpose in wanting to resolve the issues of Northern Ireland. However, in answer to a question from Lady Hermon she said that she spent one day a week in Northern Ireland. You cannot make peace in a part-time way. We would never have got the agreements—Good Friday, St Andrews, or any of them—unless there had been much fuller engagement by the British Government. You cannot make peace by making telephone calls—you have to meet face to face and engage in round-table, all-party talks. There is no evidence that over the last two years the parties have faced each other to discuss the issues that confront them.

There has been no attempt to get an independent chair or facilitator, in my view; the Minister can tell us whether there has been. We need them because people, rightly or wrongly, believe that the DUP cannot be an independent arbitrator, because it has an agreement with the Government. I do not think that the Government deliberately set out to be partisan for one second, but it is a perception, so an independent chair or facilitator is essential. It seems that there has been no plan, structure, timetable or shape to the talks to set up the institutions in Belfast, which should have been concluded long ago.

It is not all the Government’s fault—obviously, the parties have to take their share of the blame. Sinn Féin, which was a signatory to the Good Friday agreement, is breaking it by not taking part in strand 1—by not taking their seats in the Assembly or having Ministers in the Executive. Obviously there was an issue with the DUP on the RHI scheme, which caused a collapse in confidence as well, but it is prepared to have no preconditions to go into talks, as the noble Lord, Lord Morrow, said. However, important issues were dealt with and need to be dealt with. No—we are drifting towards direct rule as every week and month goes by, and if that occurred it would be a disaster.

As I have said many times—the noble Lord, Lord Lexden, touched on it today—Northern Ireland is the least democratic part of our country and of the European Union. No nationalist Members of Parliament, or, for that matter, Members of this House, take their seats; there is no Assembly or Executive to deal with the important issues of education, health and all the rest of it; and people have to rely on councillors, who are members of local authorities that have less power than their counterparts in Great Britain, as the only existing democratic institution in Northern Ireland, which is a disgrace. There has to be more intensity about the talks, more energy and commitment, and more evidence that the Government have an actual plan. I therefore hope that the Minister, who I know is very attached to his job and committed to bringing about devolution in Northern Ireland, can perhaps tell us what that plan is.

The Minister touched on one example: the two committees of MLAs which the Secretary of State will meet. That is a start. It does not go as far as the point made by the noble Lord, Lord Cormack, about bringing the Assembly together—which is possible: I did it when I was a Minister in Northern Ireland and I am sure it could be done again. The absence of the Executive and the Assembly and the possible destruction of the Good Friday agreement because of it, is a hugely serious matter which, at the moment, is taking second place because of what is happening on Brexit. The collapse of those institutions is important not only to the future of Northern Ireland but to the future of the United Kingdom as well.

[Lord Duncan of Springbank]

My Lords, this has been a short debate but, as always, instructive and thought-provoking. I am reminded that 21 years ago to the very day, 19 unforgettable words were stated:

“I am pleased to announce that the two Governments and the political leaders of Northern Ireland have reached agreement”.


I would love to be standing here before you to say that very thing, but I cannot.

I believe there is support for the extension: that it is seen as the least worst option of the three on the table. I think that around this House there is general acceptance that those five months may yet afford an opportunity for the parties to come together and for an Executive to be struck. I think it is accepted that that is the least worst option before us.

A number of other points were raised today, and let me address them as best I can. Noble Lords will recall that, in the past, my noble friend Lord Cormack and others spoke of bringing together the Assembly in some capacity and said that that could well have an influence on events. I also recall that the noble Lord, Lord Murphy, has said more than once that, truthfully, had there been an Executive and a fully functioning Assembly, there would have been a change in the weather over Brexit. I agree: I think that is correct.

I said at our last gathering that we should find a way to discuss the notion of an Assembly in that capacity, and I will make sure that we continue that idea: that we find time to see how we can advance that and bring something comparable to discuss. I think there is merit in that. As is rightly pointed out, we see in Northern Ireland the least democratic part of the United Kingdom.

As to the question of a facilitator, the words I cited at the outset from George Mitchell are a reminder of what someone can do when they are able to bring the parties together. The role of a facilitator is under active consideration, and I believe that we will move forward on it in the coming weeks and months of the five-month extension.

Noble Lords are correct to point out that it is very difficult for the Government to appear entirely neutral when so many noises off suggest otherwise. Perception can in many cases be more challenging than the reality. We need to find a way to explore that to bring to bear an opportunity of trust restoration which can, one would hope, bring about the breakthrough that we all need.

In Northern Ireland, there are plenty of individuals at whom one could point fingers and say, “If only you had done more”. I suspect that everyone could do that, pointing in very different directions. The challenge before us today is: what can we do now to move things forward? Five months is a very short time. Five months would be a challenge at the best of times. Five months today, with all that is going on around us, not just in Northern Ireland but beyond, is a reminder of the challenges we face.

As we look at those challenges, we recognise what five months means. It is only a few weeks until we begin the marching season. We have the local government elections in Northern Ireland, which will place stresses on the body politic. We have Brexit, ever present, looming over us. Each of those challenges us to bring about the very thing that we all so clearly wish for—that all parties seem to wish for, yet cannot find the magic moment to come together to break through the wall that has separated them. That is a frustration.

A number of noble Lords made points about the Assembly. I will do all I can to see how we can move that matter forward. I believe that the time for a facilitator is fast approaching, and that we need to figure out how to make it so.

The noble Lord, Lord Dubs, asked about unaccompanied asylum-seekers. I do not have the information to hand but, if he will allow me, I suggest that we sit down together and discuss that point when I have more information to hand. That would be useful and I would be happy to share the results with noble Lords after our meeting.

In listening to the debate, I am conscious of how many times I have stood here, trying my best to explain what appears to be inexplicable. None the less, we have to recognise that we are where we are.

--- Later in debate ---

[Lord Cormack]

My noble friend always impresses. He has the regard of all Members of your Lordships’ House. However, we must move things forward. Will he undertake to make a statement to the House after we return from the all-too-brief and already-truncated Easter Recess so that we know exactly what is happening?

[Lord Duncan of Springbank]

I am always content to return to this House and explain what is going on at any particular point. I would hope to do so on the basis of news to report. If my noble friend will allow it on that basis, we can keep this House updated on what is unfolding. I do not wish to place pressure on the parties by so doing, of course, but it is right and appropriate that this Chamber understands how events are unfolding—particularly when we have only five months. When these regulations were introduced in the first instance, we had five months in the bank that we could potentially draw upon. Now we do not. This is the five-month period and the sand is trickling through the hourglass. It is appropriate that we keep this House updated so that noble Lords understand what is happening. I will do my utmost to ensure that your Lordships are kept fully abreast of these issues when there is news to report.

Motion agreed.

Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2019

Lord Duncan of Springbank Excerpts

Wednesday 10th April 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 4 March be approved.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, it is good to be with you again. I beg to move that the draft order laid before the House on 4 March 2019 now be considered. The order is necessitated by the Regulatory Reform (Scotland) Act 2014, which sought to accelerate the procedure for how certain appeals are determined: namely, appeals on applications for consent for renewable energy generating station development and appeals against decisions to hold a public inquiry.

Today’s order will ensure that the same appeal mechanism applies whether there is a challenge against a decision of the Scottish Ministers on either an application for a marine licence or an application for a Section 36 consent for energy developments in Scotland’s waters. This order makes two amendments to the Electricity Act 1989 to ensure that this same appeal mechanism applies.

The UK and Scottish Governments have worked closely together to ensure that this order makes necessary amendments in consequence of the 2014 Act. This order demonstrates that the UK Government remain committed to strengthening the devolution settlement and shows Scotland’s two Governments working together. On that basis, I beg to move.

[Lord Davidson of Glen Clova (Lab)]

My Lords, I commend the Minister on the brevity of his exposition of this particular order. Again, it is one that Labour is not inclined to oppose. The Explanatory Memorandum describes part of the amendment as being in relation to a legislative oversight. Have any issues arisen as a result of this oversight? For example, is the Minister aware of any decisions that have been made affecting the Scottish part of the renewable energy zone that excluded Scottish Ministers from the decision-making process? Additionally, are any appeals currently outstanding regarding decisions that in fact affect the Scottish part of the renewable energy zone?

[Lord Duncan of Springbank]

My Lords, the noble and learned Lord, Lord Davidson, is quite right that this is a very short correction. In discussing this with my officials, we came up with the phrase “a technical tidy-up”, which is broadly what it is meant to do. The oversight mentioned by the noble and learned Lord—my word, I actually know the answer to this one—refers to the definition of “waters”. Because it was a reference to part of an earlier order, it was incorrect in so far as it did not encompass all of Scotland’s waters, but instead just the inshore waters. The purpose of this order is to ensure that, in essence, the entire zone out to 200 nautical miles is covered—the waters in their entirety.

As to the specific issues, there have been no occasions on which Scottish Ministers have been affected by this technical oversight. In essence, they have been exercising the powers as they assumed the provision had been drafted rather than as it was actually drafted. Only when we discovered that there was a technical problem did we recognise that this needed to be brought back to give clarity in law. So no outstanding appeals are affected in any way by this particular decision, and Scottish Ministers have not in any way been excluded from the decision-making process. In essence, we have just been diligent in correcting, literally, the letter of the law. On that basis, I commend the order to the House.

Motion agreed.

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2019

Lord Duncan of Springbank Excerpts

Wednesday 10th April 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 25 February be approved.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, it is necessary to bring forward this order to confirm the regulation-making powers of the Scottish Ministers under Section 2(2) of the European Communities Act 1972. This order is made under Sections 30 and 63 of the Scotland Act 1998 and seeks to confirm the powers of the Scottish Ministers regarding environmental impact assessments on certain public and private projects—I shall call these EIAs. These assessments are carried out in relation to renewable electricity generating stations located in the Scottish part of the renewable energy zone under regulations that implement an EIA directive.

The UK Government and the Scottish Government have agreed to take this order forward following an initial request from the Scottish Government. The order specifies functions which are to be treated as exercisable in or as regards Scotland and transfers these functions to the Scottish Ministers. While the generation, transmission, distribution and supply of electricity are reserved matters, since 1999 functions relating to electricity have been transferred to the Scottish Ministers. This order provides confirmation that the Scottish Ministers have EIA regulatory functions in respect of the Scottish part of the renewable energy zone, thus confirming that the UK meets its obligations to transpose the 2014 EIA directive.

The Government have worked closely with the Scottish Government at ministerial and official level to ensure that the order confirms the current legal position of the Scottish Ministers. On that basis, I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I do not think that anyone could possibly object to this order or indeed the order which the Minister will bring before us as the final business today. However, I should like to pay tribute to the procedures which have brought it before the House.

Some 21 years ago, I was dealing with the Committee and Report stages of the 1998 Scotland Bill in this Chamber. It was a very carefully drafted statute, and it is of great interest to me to see the way in which the various provisions in the latter part of that Act and in the schedules are brought together, both in this order and in the one that follows it, to allow necessary little corrective steps to be taken without any delay or disruption to the devolution system which was laid down.

We are told in the head note to this order that it is to be approved by the Scottish Parliament as well as by each House of the United Kingdom Parliament, and that is as it should be. However, it is worth paying tribute to the draftsmen of the 1998 Act that the procedures are available both for a draft statutory instrument as well as for an order to be laid under the other provisions which are referred to in the regulatory reform order that we will consider later. These are working out to the good of the system.

Beyond that, I welcome the order and I am glad that the Minister has been able to introduce it so briefly.

[Lord Davidson of Glen Clova (Lab)]

My Lords, I thank the Minister for his exposition of the order. As the noble and learned Lord, Lord Hope, has said, no one could disagree with it.

We are coming up to the 20th anniversary of the creation of the Scottish Parliament and of Scottish Ministers. At some point, it might be interesting to hear the view of Her Majesty’s Government of the performance of the devolved Executive over the past two decades, with some focus on its delivery in devolved areas such as education and health. That might be both interesting and instructive.

As for the order, the noble Lord, Lord Bruce, has raised a good and sensible point. Concurrency of Scottish Ministers and the Secretary of State in relation to the functions raises the possibility, although it may be remote, of differences of view and possibly a dispute. Do Her Majesty’s Government envisage that any disputes might arise and how, if they arose, they might be resolved?

I have asked a question about resolution of disputes. As the Minister may recollect, I asked a similar question when the forestry order came up, but I do not recall getting an answer—perhaps matters will alter. It may simply be—this is to a degree foreshadowed by the observations of the noble Lord, Lord Bruce—that this is an area where Her Majesty’s Government do not detect the possibility of differences arising between Scottish Ministers and the Secretary of State.

[Lord Duncan of Springbank]

My Lords, it is right that we as a Government reflect on the success of devolution. Devolution working is inherently a good thing, and in this order—and, I hope, the one to follow—we see how the nuances of that can work. Whisper it not, but the Scottish and UK Governments really do get on remarkably well at official level and at ministerial level—only occasionally are buns thrown. That is necessary within the devolution settlement. The noble and learned Lord, Lord Davidson, is right to say that we as a Government should perhaps do more to reflect on the successes and, indeed, some of the shortcomings of devolution to date. I know that, in the various discussions we have had in this House, challenges have been expressed by the Scottish Government about certain elements of future policy. We will need to cast our eye to the horizon and give consideration to how devolution—which is, of course, a process—can continue.

On this order, I am happy to echo the words of the noble and learned Lord, Lord Hope, when he talks of the skill and quality of the draughtsmanship and the drafters themselves of the original Scotland Act 1998. It is a good Act that has stood the test of time; the fact that we are here is testament to that. I am very happy to make that statement.

The noble Lord, Lord Bruce, asked a question about concurrent powers. I asked that question too. I will give noble Lords an answer—they may or may not decide that this is a good answer, but it is the answer I have. There are no known intentions for UK Ministers to exercise any functions relating to this order on behalf of Scottish Ministers. This is almost like the unknown unknowns and the known unknowns of the former US Secretary of Defense. As things presently stand, it is not anticipated that that will be an issue, but the noble and learned Lord is quite correct that that does not mean it will never be an issue. I say only that, should that arise, I do not doubt that it would need to be taken forward through the proper channels between the two Governments to ensure that it does not become a constitutional problem or a constitutional crisis. The Government today do not anticipate that, and nor do I.

I will go back and read Hansard to check what I did not answer last time. I will make sure that the noble and learned Lord, Lord Davidson, gets an answer; I would not like to leave anything hanging there. On that basis, I beg to move.

Motion agreed.