Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Lord Duncan of Springbank Excerpts

Wednesday 3rd April 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

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

Relevant document: 20th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B). Debated in Grand Committee on 25 March.

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

My Lords, the purpose of this instrument is to remove the legal requirement for Northern Ireland government and court buildings to fly the union flag to mark Europe Day after we leave the EU. While in Wales, Scotland and England the designated flag-flying days for government buildings are covered by guidance issued by the UK Department for Digital, Culture, Media and Sport, in Northern Ireland the rules concerning such flag flying are set in statute; namely, the Flags Regulations (Northern Ireland) 2000. The power to amend this regulation is contained in the EU withdrawal Act and, subject to the will of Parliament, it will be made only after the UK has left the EU.

In considering this order, a number of issues need to be borne in mind. The order relates primarily to the flying of the union flag, not the EU flag. Only where a building has two flagpoles is the EU flag flown. For information, none of the principal government or court buildings in Northern Ireland has two flagpoles. That includes headquarters buildings, such as Stormont Castle and Dundonald House, as well as the Royal Courts of Justice. Since our discussion in Grand Committee, my department has undertaken an investigation to determine how many relevant buildings have two flagpoles. Thus far, fewer than half a dozen have been identified. The withdrawal Act confers no powers to add to or adjust any other parts of the Flags Regulations (Northern Ireland) 2000. On that basis, I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, it is estimated that 3 million to 4 million people are currently watching BBC Parliament. I rather fancy that today their attention will be drawn to the other place, and that they will have to listen to our proceedings, as they generally do, at about 2 or 3 am. If those insomniacs—who occasionally include myself—switch on, they would I suppose be bewildered that we are discussing flags in the Chamber of the House of Lords while the whole world is collapsing around us because of what is happening on Brexit.

They would of course be mistaken, because flags are a hugely sensitive issue in Northern Ireland. The unfortunate author of the Explanatory Memorandum, which says that this is a “minor, technical change”, would have to listen to only the last hour in this Chamber to realise that it is a lot more than that. I recall thinking about a quarter of a century ago, when I first started going to Northern Ireland as a shadow Minister, that only the union flag and the Irish tricolour were flags of general interest and controversy in Northern Ireland. That was until I happened to see on one occasion the Israeli flag and the Palestinian flag also flying in parts of Belfast. I had no idea what the relationship was, but apparently unionist or loyalist areas would fly the Israeli flag and nationalist or republican areas would fly the Palestinian flag.

It is a huge matter, and my noble friend Lord Mandelson, when he was Secretary of State, introduced—as the noble Lord, Lord Deben, has told us—this important piece of legislation. I wonder—and the noble Lord, Lord Deben, referred to this also—whether sufficient consultation has occurred on this matter. Again, the Explanatory Memorandum says that:

“Consultation is not considered necessary”,


because this is a minor technical matter. It is necessary, because people have different views on flags. I am told by some that the last time the negotiators in Belfast talked about flags the discussions went on for 11 weeks just on that issue. Flags symbolise things in a very special way in Northern Ireland. They go to the heart of the issue of identity. They go to the heart of the problems that the other place is discussing today—the Northern Ireland/Ireland border and the issue of the backstop. All that is about identity, and flags symbolise it. It is an important issue.

These particular regulations of course refer to the union flag no longer flying on government buildings on the day commemorating the European Union. However, the noble Lord, Lord Bruce, and my noble friend Lord Touhig have eloquently told us that the flag is not simply that of the European Union—it is the flag of the Council of Europe as well, a much earlier institution. If we are trying to wipe the importance of Europe in the peace process from the public memory of Northern Ireland, we should remember that it brought much-needed funding through Objective 1 status and other schemes, and that the common membership of the European Union of the Republic of Ireland and the United Kingdom meant that we were able to be successful over 20 years in that peace process. We have been reminded tonight that a majority of people in Northern Ireland—in any event 56%—voted to remain in the European Union. If we think that taking away the right to fly the flag on 8 May also takes away the public memory of the benefits of being Europeans, we are gravely mistaken. No—the Government should think again. We have been given some interesting ideas. The noble Lord, Lord Empey, tells us, quite rightly, that we ought to think in terms of the whole of the legislation affecting flags in Northern Ireland in a fresh way, which would include the Council of Europe flag being flown. The noble Lord, Lord Alderdice, told us the same thing.

Cannot the Minister therefore just withdraw this Motion for the time being? It does not matter about this year, because it is extremely likely that on 8 May we will still be members of the European Union. The Northern Ireland Assembly and Executive should be deciding these matters—I hope, please God, that by this time next year, those bodies will be up and running and will be able to discuss this. Rightly and properly, it is for them to decide what happens on public buildings in Northern Ireland, and how important Europe is to them.

Therefore, there should be a rethink. People should understand the significance of the symbolism of flags and should remember what Europe, both in the form of the Council of Europe and the European Union, has done to make peace in that part of the world.

[Lord Duncan of Springbank]

My Lords, I will take your Lordships back a little further, to 21 March 1943; I suspect that many noble Lords were not here then. Sir Winston Churchill gave a speech on the radio and talked about peering,

“through the mists of the future to the end of the war”.

He spoke of the need for there to be a great council of Europe and said that it would be “a stupendous business”. He recognised its value. He saw the future not as one where we marshalled armies across the continent but where we marshalled arguments across a debating chamber. He recognised the value that came from discussions and was instrumental in founding the Council of Europe—indeed, its building is named after him.

Since its foundation, the Council of Europe has continued its important role, and it has, sometimes to its own frustration, been confused from time to time with the European Union. I have spoken with a number of members of the Parliamentary Assembly of the Council of Europe who are sometimes a little critical, saying, “No, no—we are different”. It is important to remember that they have different roles but common values, and the values of the Council of Europe and the European Union are important to us.

I spent several years as a member of the European Parliament, and, to be frank, I was always disappointed that on Europe Day it was hard to get anybody in the United Kingdom to notice. The fact that flags were flown on public buildings was not the reason why they noticed that there was a Europe Day to be celebrated at all. Noble Lords who have spoken of Europe Day as a symbol of peace and of recognition of what we have done and achieved are absolutely right—that is an important achievement. However, I am very conscious that we are now more aware of Europe Day because of where we are than we ever were during our membership either of the Council of Europe or of the European Union. That is a great sadness to me but it is a truth, and we need to reflect upon it carefully.

Across Europe, 9 May is an important day, because it is a recognition of what the EU has achieved. However, it is also important to recognise that this debate is not perhaps on its widest basis about Europe alone. It is, rather, about a situation in Northern Ireland, where, as we are fully aware, flags have made a difference and created a problem.

I will go through some of the issues which have been raised today. I will be able, I imagine, to critique them, to try to refute them and to do all those things, but that is not what matters today. What matters is perhaps the point raised by the noble Lord, Lord Empey, and my noble friend Lord Deben: a recognition again that in Northern Ireland, and across the whole of the UK, there may be a need in the future for us to recognise how important is our membership of the Council of Europe. It may well be that we should have a wider discussion on that point, and that in this House and in the other place we will do that very thing. I would not be in any way averse to that being a proper discussion, but that is for a future time when I hope we can do that and recognise the achievements of the Council of Europe; to be frank, sometimes they are not given due recognition. I am aware that a number of Members of this place are members of the Parliamentary Assembly of the Council of Europe and do sterling work. Therefore that point may come, but that is not what is before us this afternoon.

Forestry and Land Management (Scotland) Act 2018 (Consequential Provisions and Modifications) Order 2019

Lord Duncan of Springbank Excerpts

Thursday 28th March 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 11 February be approved.

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

My Lords, this order is necessary as a consequence of the Forestry and Land Management (Scotland) Act 2018, which received Royal Assent on 1 May 2018, having been passed by the Scottish Parliament on 20 March 2018. I will refer to this as the 2018 Act. Section 104 of the Scotland Act 1998 allows for “necessary or expedient” legislative provision in consequence of an Act of the Scottish Parliament. In this case, a Section 104 order is required in consequence of the 2018 Act. Both the UK and Scottish Governments have agreed to this order being taken forward, following an initial request from the Scottish Government.

The 2018 Act is the final stage in a programme of work to devolve responsibility for the management of forestry, which started with the Scotland Act 1998. The 2018 Act, which will commence on 1 April, provides for the powers and duties that are held by the forestry commissioners, in so far as they relate to Scotland, to be transferred to Scottish Ministers. Two orders must be laid by the Government following the 2018 Act to transfer the relevant powers. One order is subject to the negative procedure, and was made under Sections 90 and 93 of the Scotland Act 1998. The order we discuss today has been made under Section 104 of the Scotland Act 1998 and is subject to the affirmative procedure.

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

As the Minister knows, we have devolved other powers to the Scottish Government and Parliament, particularly over welfare. Having demanded these powers, and we having spent time considering and delegating them, they are not exercising them. They have said, “No, we cannot do it; we cannot carry out these powers because we just do not have the facilities or the ability to do it”. They have wasted our time, disillusioned the Scottish people and created tremendous problems. Can the Minister give us an assurance that the Scottish Parliament and Government are ready to deal with these forestry powers, because they certainly were not ready to deal with the welfare powers that we devolved to them?

[Lord Duncan of Springbank]

The noble Lord makes a point of some interest regarding the Scottish Government. One might almost say they could not see the wood for the trees—sorry, it has been a long day. I will come back to some related points once I have completed my opening speech.

Some functions will continue to operate across Great Britain in relation to forestry science and research, tree health, and common codes and standards. When the 2018 Act comes into force, the forestry commissioners will no longer have a role in Scotland. Management of forestry will instead become the sole responsibility of the Scottish Government. This order enables the 2018 Act to be implemented in full. It provides new powers to Scottish Ministers and makes several consequential amendments to UK legislation, with a particular focus on the Forestry Act 1967.

Articles 3 and 4, along with similar provision in the Section 90 order, will enable cross-border arrangements to be entered into between the Scottish Ministers, the forestry commissioners and various other bodies. While forestry functions and management of the national forest estate will be fully devolved, the order will allow Scottish Ministers to enter into arrangements with the other bodies so that each may deliver certain functions on the other’s behalf.

Article 5 will confer powers upon Scottish Ministers to promote, develop, construct and operate installations for or in connection with the generation, transmission, distribution and supply of electricity produced from renewable sources and to use electricity produced by virtue of those powers. These powers are currently exercisable by the Forestry Commission in Scotland. When the Forestry Act 1967 is repealed as it relates to Scotland, it will be necessary to transfer these functions to the Scottish Ministers to ensure they have the same powers as the forestry commissioners have under the current arrangements.

Finally, the order makes a number of consequential amendments to the Forestry Act 1967, related statutory instruments and other primary legislation to reflect the removal of the forestry commissioners’ functions in or as regards Scotland.

We have worked closely with the Scottish Government at all levels to ensure that this order makes the necessary amendments to relevant UK legislation in consequence of the 2018 Act. It represents the final stage of devolving forestry to the Scottish Government. I commend the order to the House, and I beg to move.

[Lord Addington (LD)]

My Lords, I will ask the Minister a few brief questions. First, what would be an example of practical co-operation on cross-border matters such as plant health or infection? What would be the practical steps? The Minister mentioned that steps would be taken for administrative connection—I think this was covered in the Commons. Could the Minister provide a little more clarity on the powers on electricity generation? There was also some discussion of this in the Commons, but exactly what sort of wood production or forestry by-products will be used in this generation? There was discussion about biomass; a little bit of clarification there would not hurt. Other than that, there is not much else to be said. The Commons took 21 minutes on this—let us see whether we can shave a moment off that.

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[Lord Davidson of Glen Clova (Lab)]

My Lords, the forestry sector is a significant contributor to the Scottish economy, to the extent of some £1 billion. It also imposes opportunity costs resulting from the tax treatment of forestry and from the externalisation of costs pursuant to the effects on the rural road network during harvesting. So an important responsibility is given to Scottish Ministers and, as my noble friend Lord Foulkes observed, it is important that this is exercised sensibly.

Article 3 deals with Scottish Ministers and cross-border arrangements. Given that there will be mixed responsibilities where, for example, a single forestry unit straddles the border, will the Minister identify the extent and distribution of responsibilities between Scottish Ministers and their English counterparts? As the noble Earl, Lord Kinnoull, identified, this may also affect other matters such as squirrels. I understand that a memorandum of understanding is envisaged, but what is to be the guiding principle for the division of responsibilities, and how would any differences between the authorities be resolved? One notes the reference to arrangements as between Scottish Ministers, Welsh Ministers and the Natural Resources Body for Wales. What is to be regarded as the content of any such arrangements, and how will arrangements with Northern Ireland be governed? There is already an allusion to that point.

In Article 4, on forestry commissioners and the cross-border arrangements, what is envisaged as being the new relationship between Scottish Ministers and the forestry commissioners? Specifically, what arrangements are envisaged? Given that the forestry commissioners’ functions will no longer be exercisable in Scotland, this may be a significant issue.

In Article 5, on renewable energy installations, the Scottish Ministers’ functions will extend to promoting electricity produced from renewable sources. There is concern in Scotland that biomass energy, which was originally hoped to be substantially dependent on forestry thinnings, has now become dependent on using mature trees as the raw material for pelletisation. Beyond the order, will there be any guidance or control that Scottish Ministers may deploy to discourage this practice? In the same context, will recently expressed concerns over the health effects of wood smoke be subject to Scottish Ministers’ guidance, so far as the Minister is aware?

[Lord Duncan of Springbank]

My Lords, I am very grateful for the detailed questions that have been asked today, and I will do my best to do justice to them.

I will start with the noble Lord, Lord Addington. On the question of what practical co-operation and co-ordination will look like—this also touches on the comments made by the noble Earl, Lord Kinnoull—the purpose here is not to undo established relationships, particularly at the research level and where the co-operation is based on intellectual engagement with the various challenges facing either the health of the forest or indeed the welfare of the forest inhabitants. There are established relationships, and it is not anticipated that these will be interrupted or disturbed. They will reach not just between—to be frank—the current commissioners and Scotland but also where information can be shared between Wales, Scotland and England. The noble Earl, Lord Kinnoull, asked whether this applies to Northern Ireland, and I have been told that the answer is no, it does not. It focuses only on Great Britain in that context.

The issue around renewables is important. The current powers exercised by the commissioners will transfer as they are. The noble and learned Lord, Lord Davidson, asked about guidance, particularly with reference to mature trees. I believe that he and I share exactly the same view—that we should not in any way be looking at mature trees for renewable electricity generation. Again, I hope that the current guidance will be operated in exactly the same fashion: namely, that mature trees should not form the basis of wood chips or wood pellets to create renewable electricity. That would defeat the purpose of the overall ambition. The guidance exists, and I hope that it will continue to be applied in that wider context.

The noble Earl, Lord Kinnoull, asked an important question about squirrels. I know that he is a passionate advocate of the red squirrel—I am fully aware that I come from a part of the country, in Perthshire, around Alyth, which has a well-established red squirrel population. The noble and learned Lord, Lord Hope of Craighead, knows what I am talking about—he knows the squirrels of Perthshire. Again, it is important that we recognise that we have established information about the squirrel communities, and we cannot lose that simply because we create different separations of powers. There needs to be a sharing of our understanding around squirrel movements, and we need to do that at the level of the island of Great Britain as a whole: that will remain absolutely essential to moving forward here.

We must be cautious—this touches on the points raised by the noble Lord, Lord Foulkes—that, as we move toward a new arrangement, it cannot be a diminution of where we are now: it must be an improvement, or certainly no worse. We must be cognisant of and attentive to each aspect, particularly where sharing relates to plant or tree health and where we have pests and various types of wood-borne disease. We cannot take any chances: our forestry estate is too important. Noble Lords will be fully aware of the challenges experienced just now with regard to ash trees, and the wider issue of contamination—how quickly it can spread if we are not careful. We must continue to co-ordinate and collaborate at a UK-wide level, because our forestry estate is too important not to.

The noble and learned Lord, Lord Davidson, touched on the issue of the rural road network. That is integral and the Scottish Government have the responsibility to take this matter forward sensitively and carefully. I hope that they will continue to do that, because it is critical to the well-being of often remote areas.

There is one block of forestry which straddles the border. It is currently managed as a block by Forest Enterprise England on behalf of Forest Enterprise Scotland, and it has been agreed that this block will continue to be managed by Forest Enterprise England on behalf of Forestry and Land Scotland—so the current arrangements will roll forward.

[Lord Foulkes of Cumnock]

Before the Minister concludes, I wonder whether he can help me. I should know the answer to this and apologise if it has been made public and I have missed it. What is happening to the staff in the Forestry Commission building in Corstophine and what is happening to the building itself? As I understand it, it has been the headquarters of the Forestry Commission for the whole of the United Kingdom, run from Corstophine in Edinburgh by some excellent staff. As I said, perhaps I should have known this or asked about it earlier, but I want to make sure that they are being looked after and that something sensible is being done with the building.

[Lord Duncan of Springbank]

The noble Lord speaks of Silvan House. He is absolutely right about the value of the work undertaken by the staff of the Forestry Commission in Scotland, and I understand that this will have no material effect on their well-being or conditions. I do not know about the building itself, but if the noble Lord will permit, I shall write to him once I have an answer, because I am not familiar with the situation there.

[Baroness O’Neill of Bengarve (CB)]

Before the Minister sits down, I want to ask him a little more about treating Northern Ireland separately from the rest of the United Kingdom in these matters. It is surely one thing to treat the Irish Sea as an effective border for the movement of animals, but that has not proved true for the movement of plant pathogens. When one looks at the map of the distribution of both ash dieback and phytophthora ramorum across the island of Ireland, one sees that it would be a fiction to regard Northern Ireland as separate from the rest of the UK.

[Lord Duncan of Springbank]

The noble Baroness makes an important point. It would be very difficult for us to look at the islands of the British Isles as a whole as anything other than one biogeographic unit. We cannot lose sight of that: the borders themselves are broadly meaningless, including the sea borders. I suspect, however, that that question requires a more detailed answer than I can give just now. If the noble Baroness will permit me, I will commit to writing with a very detailed answer to her question.

I am conscious that my opening remarks were slightly waylaid by the noble Lord, Lord Foulkes, asking a very sensible question: are the Scottish Government ready to exercise these powers? We have assurances that they are, but this House and the other place must be vigilant in our scrutiny of this: we cannot take our eye off it for a moment. We must make sure that there is no diminution whatever in the way that we treat our forestry estate and our forestry more widely. I am conscious that the noble Lord will remain vigilant, and we can rest assured that he will not let anything slip by. On that basis, I hope that noble Lords will allow this to move forward.

Motion agreed.

Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Lord Duncan of Springbank Excerpts

Monday 25th March 2019 Grand Committee

Moved by

[Lord Duncan of Springbank]

That the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019.

Relevant document: 20th 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, the purpose of this instrument is to remove the legal requirement for Northern Ireland government buildings and court buildings to observe Europe Day—9 May—as a designated flag-flying day after the UK has left the European Union.

Flag-flying from government buildings and court buildings in Northern Ireland is regulated by the Flags Regulations (Northern Ireland) 2000. These regulations provide that on certain designated days the union flag—and, in certain circumstances, other flags—may be flown on government buildings. For the purposes of these regulations, a Northern Ireland government building is defined as a building that is wholly or mainly occupied by members of the Northern Ireland Civil Service. In 2002, the flag-flying requirements in the 2000 regulations were extended to court buildings in Northern Ireland.

The instrument is being made under Section 8(1) of the European Union (Withdrawal) Act 2018, which makes provisions to deal with arrangements no longer appropriate after the UK leaves the EU. It is worth noting that Europe Day will cease to be a designated flag-flying day across England, Scotland and Wales following the UK’s exit from the EU. The Department for Digital, Culture, Media and Sport has already amended its guidance to that effect.

When this instrument was first laid, the Secondary Legislation Scrutiny Committee recommended that it should be upgraded to the “made affirmative” procedure so that it could be debated carefully. This is why we are here this evening. I also stress that the power to make these amending regulations under the EU withdrawal Act does not come into force until after exit day. Therefore, subject to the will of Parliament, these regulations will not be made until after exit day has passed. There is every possibility that Europe Day will be marked this year. I beg to move.

[Lord Bruce of Bennachie (LD)]

My Lords, the Minister may be disappointed and surprised to learn that we do not support this statutory instrument. We think it undesirable and unnecessary. None of us can deny that flags in Northern Ireland are a very sensitive issue. Our sister party in Northern Ireland suffered the consequences of the dispute in Belfast in 2012 when its offices were burned out.

This is about a specific flag—the Europe flag—and a specific day. I am very concerned that DCMS has issued guidance—which I presume is not legally enforceable—that, if we leave the European Union, we should no longer fly the Europe flag on Europe Day. This seems a total denial of where this flag came from and what it is supposed to celebrate, which is not the European Union. The flag is in fact much older than the European Union, or even the Common Market: it was, in fact, created in 1955 as the flag of the Council of Europe. It remains the flag of the Council of Europe and the UK will continue to be a member of the Council—for ever, I hope—although the Prime Minister gives the impression that she would like to leave that organisation as well. I would absolutely deplore, as that was one organisation of which we were a founder member.

It is also interesting to note, as a matter of design, that the design of the flag—12 stars against a sky background —represents symbols of perfection. It represents the 12 apostles, the 12 tribes of Israel, the 12 labours of Hercules and the 12 months of the year. It is a symbol of peace in Europe and Europe Day represents peace in Europe, originally foreshadowed by the Schuman declaration. I am pleased that the Minister said that, at least this year, the European flag may continue to fly; at least I think that is what he said, because this year is the 70th anniversary of the foundation of the Council of Europe and it would seem very regrettable then to remove the flag from public buildings in Northern Ireland or anywhere else in the United Kingdom.

I put two questions to the Minister. There is no need whatever for this to be passed, is there not? I am minded—indeed, I intend—to table a Motion to the effect that this statutory instrument should be abandoned and that any such decision as to which flags are flown should be left to the relevant authorities in Northern Ireland as and when they are able to do so. I would also like clarification of what the DCMS guidance means for public buildings in the rest of the United Kingdom where, it seems to me, the Europe flag should fly on Europe Day and other organisations should be allowed to make their own decisions. The only minor detail is whether you fly it on 5 May or 9 May. The European Union chooses to fly it on 9 May, while the Council of Europe flies it on 5 May because that was the date of the foundation of the Council in 1949.

I speak with some passion on this, having been privileged to have been a member of the Parliamentary Assembly of the Council of Europe for six years. I am a passionate believer that the Council of Europe has contributed hugely to the development of, and the sustaining of peace and democracy in, Europe and that the United Kingdom, which Ministers have consistently said may be leaving the European Union—I say may be—is not leaving Europe. I suggest to the Minister that this is a completely inappropriate statutory instrument, that the DCMS guidelines are also completely inappropriate and that the United Kingdom should continue proudly to fly the flag of Europe, not the European Union, on Europe Day.

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[Lord Murphy of Torfaen (Lab)]

My Lords, I think I support the noble Lord, Lord Browne of Belmont, on the situation in Northern Ireland itself. I assume the Government consulted on this issue with the Northern Ireland parties—at least, I hope so. If they did not, or indeed if they did, it has to be seen in the context of a very sensitive issue in Northern Ireland, as the Minister and others will know.

Today we have a specific issue in front of us about the European flag. I suspect that this instrument is both spiteful and flawed. The noble Lords, Lord Deben and Lord Bruce, and my noble friend Lord Touhig have given powerful reasons why it is spiteful, but I do not think the Government have actually thought of the implications of the flag also being the flag of the Council of Europe. There is no indication in the literature we have or in the debate held in the other place. It seems to me that the Government believed this was entirely about the European Union and completely forgot the issue of the Council of Europe and the fact that there are in Europe two separate days to celebrate Europe. Clearly 9 May, the European Union day, will no longer be celebrated in the way it has in the past, but 5 May still would be. Both Ireland and the United Kingdom remain strong members of the Council of Europe.

The other issue affecting the position of Northern Ireland in Europe is equally sensitive Some 56% of the people of Northern Ireland wanted to remain. I was European Minister for two years in Northern Ireland. I actually went to the Council of Europe to explain the Good Friday agreement to all the members and they played a big role, as indeed did the EU itself, not just with the peace money; the support that came to Northern Ireland during that period was immense.

We cannot go back over the issues affecting why it is that we are leaving Europe and the effect on Northern Ireland save to say that while our being members of the EU meant that the border on the island of Ireland was blurred and there was constant contact between Irish and British officials and Ministers because of our joint membership of the same club. Europe has played an enormous part in changing the way that Northern Ireland has operated over the past 20 years, and indeed in the Good Friday agreement. We cannot suddenly wipe away all that history in a few seconds, but this particular instrument seems to be trying to do precisely that. Symbolically, it is trying to say: “The European Union, the Council of Europe and indeed everything European had nothing at all to do with the development of Northern Ireland over the last 20 or 30 years”, when the contrary is the case. That is why it is spiteful.

It seems to me that it is up to the local authorities and the other public bodies in Northern Ireland if they wish to fly the Council of Europe flag on Council of Europe Day. What is wrong with that? No, this is a nasty little statutory instrument. It ignores the past, it forgets about the Council of Europe, and it should really be consigned to a dustbin.

[Lord Duncan of Springbank]

My Lords, this is a more controversial issue than might have been anticipated by those who do not know Northern Ireland well or indeed the passions of noble Lords here gathered; I think that is important to recognise. I shall try to explain why we are where we are, and then the Committee must reflect upon whether that is adequate to address the issues I have raised.

The first issue to stress relates to the point made by the noble Lord, Lord Bruce of Bennachie about the notion of what the flag represents—indeed, being the shared flag of the Council of Europe. This is primarily about flying the union flag in Northern Ireland. If there are two flagpoles then the second flagpole may fly the additional EU flag at a lower level, but if there is only one then it will fly the union flag. It is important to stress again, and the noble Lord many wish to inquire further into this, how many government buildings in Northern Ireland have two flagpoles. The answer is precious few. We are talking here about the flying of the union flag in almost every case.

[Lord Murphy of Torfaen]

Would that therefore mean that the union flag could not be flown on 5 May, which is Council of Europe Day, as opposed to 9 May, which is European Union Day?

[Lord Duncan of Springbank]

The noble Lord has pre-empted the question that I was about to answer, so I shall come straight on to that. Under this particular legislation, which of course follows on from the European Union (Withdrawal) Act, we are able to adjust the legislation to remove 9 May from being a flag-flying day. If we wish to switch the day to 5 May, though, we are precluded from doing so under this legislation. That is not available to us under this legislation. Therefore, in order for us to move forward, we have to go back to the original regulation, the Act dating back to the year 2000. In order for us to make any changes to that Act, noble Lords will be aware that there is a three-part process that wholly involves the Assembly in Northern Ireland. The Northern Ireland Assembly is consulted, it reports to the Secretary of State and, on that basis, changes can be made. In the absence of an Assembly there can be no adjustment from 9 May to 5 May, or to any other day, in that regard.

[Lord Deben]

I am wondering why we do not just leave it on 9 May. If you cannot change it—which I understand—we should leave it on 9 May and announce that this is a reference to our membership of the Council of Europe. If it is the union flag, or the two flags, then that is perfectly all right. Why do we have to take it away? It is much better to leave it. Otherwise, it says something different.

[Lord Duncan of Springbank]

The noble Lord makes a point which he has made on many occasions—I do not doubt it. Earlier in his remarks, he said that we could do it on 9 May, but it would be better to do it on 5 May because the Council of Europe has a day that we could celebrate as well. He is now reverting back to 9 May, thereby reversing the points that he made in his earlier speech, and I will therefore set them aisde.

Importantly, we are recognising that in Northern Ireland—as anywhere else in the UK—flags are a sensitive issue. They are heavily regulated. Failure to do so has led not only to mistrust but to civil unrest. We must treat the reality in Northern Ireland with caution. This is why the adjustment to flying the flags on different days, or recognising—as we have not been able to do in Northern Ireland—the additional members of the Royal Family who are entitled to certain flag flying days, cannot happen without the express involvement of the Northern Ireland Assembly. It is absolutely appropriate, given how sensitive this matter is.

We are conflating two issues: Europe and Northern Ireland. When we look back to the period 1998 to 2000 in Northern Ireland, we begin to recognise that the flags issue was not only live, but dangerous. Therefore, we have always tried to move this forward inside Northern Ireland with permission. In this instance, we are making a correction and ensuring that the whole United Kingdom is treated in the same manner.

This brings me to the point raised by the noble Lord, Lord Bruce of Bennachie. Guidance issued by one of the Whitehall departments is different because it is not bound by regulation, as these regulations apply to Northern Ireland. They are not needed here because they are not as controversial. There will be no restriction on the flying of the flag of Europe in many places at council level, wherever they wish to do so. The actual designation of official flag flying days is heavily regulated in Northern Ireland. We are only correcting for the reality that Europe Day will not be celebrated in Northern Ireland because it is the flag of membership of the EU and that will not be true thereafter.

[Lord Bruce of Bennachie]

I am not clear from the Minister’s initial remarks whether he is saying that the flag may be flown this year. First of all, if the longer departure date occurs, we will still be a member of the European Union on 5 or 9 May. I had the impression he said that, in any case, they could fly this year. If that is true, we can forget about this for another year anyway, by which time we can address all the other issues.

[Lord Duncan of Springbank]

I fear that the noble Lord has misunderstood my points. If I may, I will restate and re-emphasise them. I said that this regulation will come in only after we have exited the European Union. As the noble Lord will be aware, the point at which we exit the European Union is not yet clear. If that date is after 9 May, then the flag will fly this year because that regulation will not be amendable. This order amends it only after the point of exit. That is why for this year—I am being very frank—it is unclear whether the flag will fly as per the regulations within the amended 2000 order. Up until that point, I cannot give any greater clarity. We are doing this now because we are able to do it under the existing legislation in order to correct the situation following the European Union (Withdrawal) Act.

There may come a time when those in Northern Ireland wish to reflect on which flags they fly and when they wish to fly them—I have little doubt about that—but until the Assembly comes together to determine that, it will be unable to that matter forward. I note how important this matter has been and I state again, as carefully as I can, that Northern Ireland is the only part of this kingdom in which we have had to regulate the flying of flags. Nowhere else have we had to do so. Nowhere else at council level would we anticipate anything other than the flying of flags which people wish to fly, whether they be a union flag, a European Union flag or flags for other particular purposes. This will no doubt continue. Here we are talking about a very strict and specific piece of legislation which affects only Northern Ireland.

[Lord Deben]

I am sorry to interrupt my noble friend. If we changed this, we would have to go through a whole system. I understand that. It was a little unfair of him to complain that I was prepared to say that if he found that difficult, we might do it in a different way. It seems very odd that that we are removing this without going through that system. We have not asked all the people who have to be asked if we going to put something else in but we are unilaterally deciding to take this day out. I find that difficult.

I started off by saying that I have been through those debates and I know them perfectly well. I got into a lot of trouble with my unionist friends because I fought for what the Government wanted. I am perfectly aware of the difficulty in the north of Ireland, but is it acceptable to remove something without that process, when it is not acceptable to add or change something about that process? It seems unacceptable to do this unilaterally.

[Lord Duncan of Springbank]

The noble Lord, sitting as he does in a legislature, will appreciate the difference between making law and interpreting how you fly flags. At present, the difficulty he speaks of is not just a difficulty but an illegality: that we would not be able to move forward by adjusting the dates in Northern Ireland because of the restrictions of the law. What we might wish to do beyond that may be described as a difficulty, but what we seek to do here is to be legally correct in this instance. I am aware that the noble Lord has been passionate in his defence of the union flag and the union flag in Northern Ireland. I am also aware of how controversial that flag has been in Northern Ireland, for many different reasons.

The European Union flag we have flown on the ninth, which is flown across Europe, is primarily a flag of membership of the EU. We do not fly it in recognition of our membership of the Council of Europe because, most of the time—if I am being frank as a former Member of the European Parliament—people were rarely aware of the distinction between the Council of Europe and the European Council and the fact that one preceded the other by several decades. Even today, very few people marching on these streets will necessarily draw that distinction.

One of the great sins, I suspect, of this country—indeed, perhaps of our media—is how often we have been unable to explain in clear terms how the EU works, how our responsibilities within the Council of Europe work and the difference between the European Court of Justice and the European Court of Human Rights. We conflate these things constantly and I am fully aware that people right now will probably be unaware that the Council of Europe and in the EU, one heavily predating the other, have the same flag and, indeed, a shared anthem—and have had for some time, albeit that in the EU it is an unofficial anthem. All these things become conflated. The reality we face is simple: under the EU withdrawal agreement that we moved forward last year, this piece of legislation is uncontentious. It is important to stress that the European statutory instruments committee of this House said that, as a matter of policy, there is nothing contentious in the amendments proposed by this instrument.

[Lord Bruce of Bennachie]

It is wrong.

[Lord Duncan of Springbank]

It may be, and the noble Lord may wish to bring that up with that committee. It may well be that he wishes, on this occasion, to determine what flags shall be flown in Northern Ireland, to take that decision and move this in a particular direction. I would counsel against that for many different reasons, not least that, as we have said before, this issue is much more sensitive in Northern Ireland and we must be careful as we look at it in Northern Ireland, particularly as it primarily concerns the union flag. I stress again that it affects the union flag more than the flag nobly described by the noble Lord, Lord Bruce of Bennachie.

The challenges we face are straightforward. We may take this order and move it forward. The noble Lord may decide that is not something he wishes to do and he may wish to debate it further. If we are to debate this further, I suggest that we make sure that there are a number of Members in that debate who hail from Northern Ireland and are able to give their experience on the issue of flags because this is not primarily an issue about European flags but an issue about what flags represent in Northern Ireland. I suspect that he is not liking what I am saying but I fear I am going to have to move forward on that basis.

[Lord Bruce of Bennachie]

I seek guidance from the Chair. I have indicated that I am not happy and I do not wish this to be accepted. I know we cannot vote but I think it should be debated in the Chamber. We have a problem with the Chamber: I am sure that the Irish Members will turn up but we do not have a balanced representation in the Chamber. The second point I want to make is that Europe Day is about peace in Europe, not the European Union.

[Lord Duncan of Springbank]

I am very clear about what Europe Day represents, having been a Member of the European Parliament. I have spent a great deal of my life—10 years—in Europe representing the Scottish Parliament in Europe. I am fully aware of what Europe Day represents. I am also a Minister in the Northern Ireland Office, so I know what flags mean in Northern Ireland and I do not think we should be conflating the two in the manner the noble Lord suggests, but if he is minded to do so that is his prerogative and his right. I remind him only that this is a matter primarily about the union flag, not the European flag.

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

I clarify for the noble Lord that although we do not vote in Grand Committee, I will take the voices. The Question is that the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019.

Northern Ireland (Regional Rates and Energy) (No. 2) Bill

Lord Duncan of Springbank Excerpts

Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 19th March 2019 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the amendments in the names of my noble friends Lord Empey and Lord Rogan. I call them both my noble friends of over 20 years, despite the eccentric seating in place today.

This is a sorry business, all of it—a terrible mess. The whole situation in Northern Ireland for the last two years started with the collapse of this appallingly planned scheme. We cannot get away from that. Sir Patrick Coughlin is currently conducting an inquiry into the scheme, the courts are ready to pounce and the Northern Ireland Affairs Select Committee has been asked to look at it as well. The difficulties go back to the way the legislation first came to us. There should not have been a Bill that, on the one hand, decided the regional rate in Northern Ireland and, on the other, decided the details of the RHI.

Equally wrong was the length of time taken by the department in Northern Ireland to deal with its consultation process. As a result, apparently, all the details that we need to consider for the Bill did not arrive until January, even though it was known full well that the previous Bill put forward was sunsetted to end at the end of March. This meant there would be totally inadequate scrutiny of the Bill by Parliament. What is done is done, but it means that we are in a mess. The noble and learned Lord, Lord Mackay, referred quite rightly to the fact that some of the people who, in good faith and on the advice of the Government, went to their banks and decided to take out loans to deal with this issue are now in a terrible mess. What happens to them? The Government are in a dilemma—partly one of their own making, because of what I have just referred to with respect to process.

If we do not pass the Bill, there will be no regional rate in Northern Ireland and the scheme will collapse, so people who are currently benefiting from it, in whatever sense, will not have any money to deal with it. At the same time, in the other place, the Secretary of State welcomed the Select Committee on Northern Ireland looking at it. Perhaps she did not realise that, under the circumstances of the Bill, it would have just under two weeks to consider it, which of course is impossible.

The Government and the Minister in particular, who has been rightly praised by all sides of the House on this and other issues, have to come up with a solution that will satisfy my noble friends Lord Empey and Lord Rogan, and the rest of us, about what can be done. They to ensure that the rates are collected and that the scheme does not collapse but, at the same time, looks after the people who took part in this scheme in good faith. There may well be ways the department could look sympathetically at cases in Northern Ireland. There may also be a way, although I cannot see what it would be at the moment, for the Northern Ireland Affairs Select Committee’s recommendations to be taken into account after the legislation has been improved, unless further primary legislation could be brought before this House to amend the Bill we are considering—it may come to that.

A general point has to be made: so long as there is no devolution in Northern Ireland, with no Assembly or Executive, we cannot have Northern Ireland legislation coming to us in bits or as emergency legislation that denies proper scrutiny. The dilemma that all of us, and the Government in particular, are in today results from the fact that the business managers have not taken Northern Ireland legislation seriously. That has to change, until such time when the institutions are revived in Northern Ireland, which I hope will not be that long away.

These Benches will support a Division, if my noble friend Lord Empey calls one. I hope that can be avoided with what the Minister is about to tell us, because we want to ensure that the legislation goes ahead. However, we also want to ensure that the hundreds of people in Northern Ireland who are now in a sorry state because of this RHI can be dealt with in a proper, decent, humane manner.

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

My Lords, I will begin in a slightly eccentric way. I have to make a correction of one of my earlier statements. In the debate last week, I stated that,

“the scheme in Great Britain is a 20-year scheme, whereas that anticipated in Northern Ireland is a 15-year scheme”.—[Official Report, 12/3/19; col. 1009.]

Noble Lords will no doubt realise that I meant to say that the anticipated scheme in the Republic of Ireland, not Northern Ireland, is a 15-year scheme.

That was the easy bit. I will see what I can do to take us forward. Let me begin at the beginning. All the points made by noble Lords this evening on the amount of time and the manner in which scrutiny has been facilitated in this House have landed, and landed well. It is not acceptable that this House is treated like a rubber ball to be bounced gently into some sort of decision. I accept that. It should not happen. There needs to be proper scrutiny in this House and in the other place—now more than ever, in the absence of an Executive.

On combining the two elements of the Bill—namely, the regional rates and the heating incentive—there is no doubt that they do not fit comfortably together. There is also no doubt that, depending on your Lordships’ will this evening, the situation regarding the heating incentive will have an impact on the regional rates. These rates remain an important element of the overriding Northern Ireland budget. That combination was a mistake and I do not think we should ever find ourselves in a situation with two elements which clearly do not fit comfortably together. I need to reflect on that. There should be opportunities for this House to look at them separately and, where appropriate, give endorsement to that which it seeks to endorse, and criticism and understanding to that which requires further work.

[Lord Maginnis of Drumglass]

I apologise for interrupting the Minister. In reference to the mistake he just alluded to, would I be right in saying that this was not a mistake but a tactic which emanates from the Northern Ireland Office and which, despite the good offices of the noble Lord and others, has landed us in this situation?

[Lord Duncan of Springbank]

The noble Lord makes an interesting point. Unfortunately, I will not comment on it at this particular moment. The reason the noble Lord, Lord Empey, and I seemed to be scrambling to get in here at the beginning of this debate was because we were sitting next door trying to work out how we could find a way through some of the challenges encountered this evening. I am blessed that he managed to find his way to his place and that I did too.

--- Later in debate ---

[Lord Lexden]

When did the European Commission’s limit of 12% become known?

[Lord Duncan of Springbank]

Interestingly enough, this was always known; it was just never fully understood or applied. What the Government here have sought to understand is exactly what information the Northern Ireland Executive has been in receipt of. We have been very clear about pinning that down, because the 12% was always there; it was simply not used correctly, which allowed it to spiral massively, up to and in excess of 50%. We have had sight of correspondence from the European Commissioner that tells us very clearly that, were we to maintain the rate as it stands, we would be in breach of state aid rules. Civil servants in Northern Ireland—noble and diligent as they are—cannot move forward on the basis of an illegal rate. That is why we find ourselves where we are today.

I will touch on a couple of points made by the noble Lord, Lord Empey. He notes that this proposal really covers the medium-sized boilers. He is correct that it does not affect the larger boilers or the micro boilers. These matters were to be considered after we had settled this question, which covers the bulk of boilers in Northern Ireland. That said, the issue is a very simple one, and the noble Lord, Lord Cormack, put it very well: it is fairness, justice and equity. That is the issue we need to address tonight.

There is no question that the individuals who have emailed us, setting out their case and their distress in black and white, must get an adequate response. I am hopeful that I can put forward a proposal to the noble Lord, Lord Empey, and the noble Lord, Lord Rogan, that will help us move this matter forward, but your Lordships must be more of a judge of that than I am. My proposal is that the Department for the Economy in Northern Ireland—not on our instruction but because it believes it to be the right course of action—sets up a unit within the department, under independent chairmanship, that will be responsible for examining the case of every individual who has received funds from the RHI initiative and believes that they have experienced hardship. I propose that each element of their case is considered in thorough detail and with their participation, in order to understand exactly what that hardship looks like.

As a consequence of that, and with the Northern Ireland Affairs Committee inquiry running alongside that, those two elements should together help inform the part of the Bill that covers the issue of the voluntary buy-out. Currently, the voluntary buy-out is more or less a statement that lacks mechanical details. If we construct the buy-out to adequately and appropriately meet the needs of the farmers who rest within it, it could be adjusted in accordance with these elements. At the same time—and necessarily—the Northern Ireland Affairs Committee will consider future issues, and this should inform the overall functioning of this—not just the buy-out but the wider questions that rest within it.

Now, I will not try to sell your Lordships a pig in a poke, so what I will need to do to make this function properly is lay a written report before your Lordships’ House, so that your Lordships can see what this would look like in practice. There is no point in pretending that this can be achieved in a fortnight—there are too many cases that need a thorough and detailed examination. The point is, however, that we need to be in a situation where the compensation element is adequate and informed by these elements. If we can move forward on that basis, we can go some of the way towards meeting the issues raised by the noble Lord, Lord Empey.

[Lord Cormack]

My noble friend is obviously trying very hard to be helpful, for which we are grateful. Would it be possible, on Third Reading, to add a short schedule to the Bill that would refer to this proposal?

[Lord Duncan of Springbank]

I always like to be asked a question, and I turn my eye gently and think: I have no idea of the answer to that. I will, however, find out the answer and report back to the noble Lord in real time as soon as it is available.

The reason that I am putting this proposal before your Lordships’ House tonight is because it would be unfair to pretend that we can treat all those individuals as an average; we need to see each in their own terms, understand how their world fits together and how this invidious scheme has been constructed to their detriment. It is unfair of this or any Government to expect those acting in good faith to be penalised for that. We must also be cognisant of the draw on the public purse—there is no point pretending that there is a bottomless pit of money for our approach to this matter. The noble Lord and I have, however, had discussions about what moneys might be required.

It says here, “No to bringing back on Third Reading”. I am afraid, therefore, that the answer to the question from the noble Lord, Lord Cormack, is no. I can, however, put on record that we will need to understand the timing of this to be able to deliver it—without the timing there is a risk it will drift into the long grass. I give an assurance that we will be able to—

[Baroness Harris of Richmond]

While the Minister is looking at that for Third Reading, can he also indicate how much will probably need to be put aside for this independent review?

[Lord Duncan of Springbank]

The noble Baroness asks a question to which I once again do not have an adequate answer, but I think that it would be fair to say that appropriate funds must be set aside to address these issues. That might seem a vague assertion, but it need not be. I recognise that, where those hardships have been iterated and are evidence based, there should be support for the individuals concerned. I am afraid that I do not know what the overall sum would be; I know that the sum set aside under current arrangements is £4 million. Clearly, if there are to be adjustments to those arrangements, there will need to be adjustments to that figure, and I suspect that they would be in the upward and not the downward direction. As to the exact figure, I am afraid that I do not have that information. If I am to report back to the House in a Written Statement, I think that I will be able to put the figure to the House very clearly, because, by that stage, we would know exactly what this looked like.

I do not know whether that satisfies the noble Lord, who is sitting on the friendly Benches behind me, but I hope that it is. I hope that both he and the wider community recognise that we are seeking to ensure that we make progress.

A number of noble Lords have raised the issue about what happens with the grandfathering clause. The grandfathering clause of 1 April creates serious problems for us. Moving forward on that basis would mean that we were unable to ensure the functioning of the scheme full stop, let alone at any rate which noble Lords might wish to see or set. In addition, as we see the scheme moving forward, we need to make sure that it is fully compliant with the base of the law. We have also to recognise that expecting civil servants in Northern Ireland to act in a fashion which they know to be illegal is simply not possible nor a fair request of that service. It is for those reasons—and I am loath to say it—that we must move forward within the basic structure and parameters of the Bill but allow for the adjustments that I have outlined, which I believe will take us some way to address the genuine hardships which have been reflected to all here gathered.

[Lord Maginnis of Drumglass]

I apologise for interrupting the Minister again, but will not his solution lead to a divide-and-conquer situation? Do we have any idea of how many individuals will require to give evidence, what the length of time will be and whether that will again be manipulated to take us out of the time limits that have been placed on us?

--- Later in debate ---

[Lord Duncan of Springbank]

The noble Lord is correct to ask about the parameters. I cannot say with accuracy what the exact numbers are. I am aware of how many emails I have received—that number is 75—but I suspect that there are many more. I am not sure whether we are all copied into the same 75, so there may be considerably more even within this round, but there are a significant number. There will be those whose participation in the scheme is not subject to the various issues which we are taking forward today because they are functionally comfortable within the returns that they have been able to expect, but there will be those—the 75 may be a reflection of that figure, but it could be higher—who find themselves in the invidious and unpleasant position of being in financial constraint and hardship as a consequence of simply being faithful to the guidance given by Ministers and civil servants in Northern Ireland. It is to those we must turn our attention.

As many noble Lords will be aware, the scheme was such that there will no doubt be participants who have sought to benefit from a remarkably generous scheme. To those, the notion of hardship will not necessarily apply in the way that it does to those who have written to us setting out in some detail the pain and disaster they face as a consequence of this situation. I hope that there will be adequate time for this. We need to ensure that we move in a more appropriate fashion; we cannot allow this to be delayed.

--- Later in debate ---

[Lord McCrea of Magherafelt and Cookstown]

Can the Minister clarify the position on a question which I asked? Should the Northern Ireland Affairs Select Committee find that an injustice or inequality has been done, given the tariffs received by those in England or those in the Irish Republic under the state aid rules, will the department ensure that that will be rectified immediately and further repayment made accordingly?

[Lord Duncan of Springbank]

One of the challenges in trying to compare the schemes across these islands is that a like-for-like comparison of the various elements is hard. However, the rate of 12% is broadly the constraint within which all must operate, because that is the state aid rule. Were the NIAC to discover a particular inequity which breaches beyond that point, they would be compelled to act in that regard. However, the 12% being applicable to all should mean that there is fairness. The noble Lord should be aware that, because the earlier scheme in Northern Ireland set its returns at such an extraordinary rate—upwards of 50% —the challenge remains that any adjustment thereafter down to 12% on the basis of averages would take that 12% higher than it would otherwise be, had it been 12% at the outset. I do not wish to make any particular point about that issue, I merely note that the challenge is now to remain within the law as specified by the European state aid rules.

[Lord Kilclooney]

One of the problems with the Bill, which has already been underlined during the debate, and which the Minister has been honest enough to state himself, is that it is wrong to link rates—which is council tax in England—with this heating scheme. They are two totally separate subjects and should not be in one Bill. Should the Bill be rejected, would it then be possible to introduce urgent legislation for rates only?

[Lord Duncan of Springbank]

The noble Lord is right to raise that. I dearly hope that we do not reject the Bill now because, even if we were to act with a certain degree of urgency, it would still be a delay to what we need to deliver in terms of the rates themselves. If we are unable to address the rates question in real time, we are talking about a substantial loss to the revenue of Northern Ireland.

I hope that noble Lords will recognise that the endeavours this evening have been solely for the purpose of trying to address the genuine hardships experienced by those in the scheme. The purpose of the Bill is to make sure that nobody is considered to be part of an average and that each individual is seen as such. That data will then be used to inform the development of an appropriate element of the overall bill which will then be determined and placed before noble Lords in written form, so they can see it. There is no attempt on my part to mislead the Committee or to sell noble Lords something in a poke that you cannot put your hand into.

I hope that this is adequate for my noble friend Lord Empey. I know how much effort he, and all the Northern Ireland Peers, have rightly put into this matter. It concerns them on their doorstep, but it concerns all of us in these islands. Equity, fairness and justice must be the cornerstone of any Government. I hope that we have been able to reflect this evening on what this Government can do, within the constraints of state aid rules and the wider timing question. I hope that, on that basis, the noble Lord will be able to withdraw the amendment.

[Lord Empey]

My Lords, I am grateful to the Minister for his contribution. I also thank the noble Lord, Lord Murphy, from the Labour Party, and the Liberal Democrat Benches, for supporting these amendments alongside other colleagues on this side of the House. I just want to repeat my interpretation of what I think the Minister is saying, because if you withdraw amendments at a point such as this, it is your last throw of the dice and you lose control of the whole process.

First of all, the Minister is not in control of the Northern Ireland Department for the Economy; that is a fact. Therefore, in the Budget, £4 million was set aside in each of the next three financial years to deal with the buyback or buyout scheme. If that was simply looking at the individual burner in isolation, I could understand why such a sum of money might be payable. But, of course, many users used the profit on the boiler, perfectly legitimately, to lever out additional borrowing to do other things. The point that my noble and learned friend Lord Mackay of Clashfern has made all along is perfectly true: there is a moral issue. There is also, of course, a legal issue, but that will follow its proper course.

If I recall correctly, the facts, according to the Minister, are these. One point I understood him to make is that, as of 1 April, there is no ability for the state to pay subventions for these boilers—the point made, I believe, by the noble Lord, Lord Browne of Belmont. On the European issue, I would argue that the scheme has been ultra vires state aid for a long time, not just now. It has been wrong from the very beginning, when payments in excess of a 12% return were made. As my noble friend Lord Lexden said, the 12% figure was set in the original letter in 2012 by the European Commission, approving the scheme in the first place. From that point, the 12% was always there but, of course, it went astray.

Let us get back to the point of fairness, justice and equity, because that is the key to all of this. We want to ensure that people get fairness, justice and equity, bearing in mind that the taxpayer has a big stake in this as well. Originally, a compensation or buyout scheme was planned. This is my interpretation of what the Minister is saying; if he disagrees with anything, perhaps he will let me know. He is saying that the status of that group will be upgraded to the point where it will not be an internal issue within the department but will be chaired by an independent, outside person who is not a member of the Northern Ireland Civil Service. He is saying that he will put forward, in writing to this House a Statement setting out the terms of reference. The question I need to ask him is: how does he do this when he is not in charge of the department? At the end of the day, my anxiety is that if we let the thing go, it will slither away, and somebody somewhere will say, “Well, I’m not doing that. The Minister can give an undertaking to the House of Lords, but he doesn’t rule me”. There is a genuine opportunity here to ensure that what is taken into consideration is not only the cost of the boilers versus the revenue that they would now be getting, but the leverage they used to ensure that the borrowings they undertook for further activities on the strength of that. That is the key issue, which was missing—if I may say so—from the original suggestions.

Can the Minister confirm those two points? Can he also reiterate for our benefit the answer that he gave—either to the noble Lord, Lord Browne, or the noble Lord, Lord McCrea of Magherafelt and Cookstown—about the legality and so on? I do not worry about the state aid issue because, in my view, we have been wrong on that from the very beginning, and it has gone on for years without any legitimacy. But could he just clarify those points before I conclude?

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, I thank the noble Lord for affording me the opportunity to make some points of clarification. He is absolutely right to say that I am not in charge of that department. My comments are based on conversations earlier today with senior officials in the department. I cannot instruct them, but the discussions led to that proposal, which I believe would be a step forward for noble Lords this afternoon and this evening, on that basis—not my instruction but rather an acceptance on their part that this would be the right way to move this aspect forward. On the terms of reference, yes, these need to be very clearly understood. Financial hardship must be understood in all its manifest forms and I believe it would be incumbent on all those who are investigating and considering to ensure that all aspects of financial hardship, whatever their source or their cause, are examined in detail to ensure that there is a fair and equitable understanding of the situation. So I think the answer to that is yes.

As for what happens on 1 April if we have not made progress, it is very simple: we will not be able to move forward on this scheme, because as a number of noble Lords noted, we have grandfathered in the clause to end on 1 April. At that point, irrespective of our desire to be able to offer or afford support, without the legal underpinnings we will not be able to do so.

On state aid, there has clearly been a kerfuffle, for want of a better word, in Northern Ireland over what that rate should be, but the one thing that has been clear throughout is that the European Union Commission has had no dubiety about what it should be: it has been very clear that it should be 12%. That this has been, one might argue, misinterpreted by certain individuals in the Province is the reason we are having this wider discussion tonight and why there is a particular scandal being investigated across in Northern Ireland. None the less, we are still bound by that rule—namely, state aid at 12% return—and we cannot move away from that.

I hope those points of clarification help the noble Lord to move forward.

[Lord Mackay of Clashfern]

I should like to be absolutely certain that there is nothing in the Bill that damages any legal right that people had in Northern Ireland as a result of dependence on the action of the Northern Irish Government taken on behalf of that Government by authorised officials or Ministers. Because that is the fundamental matter: if that is not affected by the Bill, the way in which matters should be brought forward to encourage that is perfectly reasonable as a way forward. The fundamental point is that the legal rights of those who may have been damaged by their contract with the Northern Irish Government, through Minister or official, would not be touched.

[Lord Duncan of Springbank]

My noble and learned friend makes a useful point. I can happily confirm that this will not affect the legal rights or standing of any of those who have been affected by the scheme thus far.

[Lord Empey]

I thank the Minister for those points of clarification. He will be aware that everybody who spoke in this debate was basically on the same page: we want to help these boiler operators and owners. We want, as he put it, fairness, justice and equity. I have to say to him that if we accept these assurances—if I withdraw the amendment—and we were to find subsequently that these conditions were not being honoured, in spirit as well as in letter, there would be a great deal of anxiety and angst in this Chamber. The Minister needs to be very clear about that, because there are more people in this room tonight than I have seen here on a Northern Ireland issue for years. He knows, and his colleagues in the Northern Ireland Office and in the Department for the Economy who are watching this know. I had the honour to be Minister for the two departments that were merged into this department, so, to coin a phrase, I know who they are and I know where they live.

We are talking about the livelihoods of good, honest, decent people and it is the will of this House to see that justice, equity and fairness is delivered to those people. If there is any variation or moving away from that, there will be a lot of very angry parliamentarians. On that basis, I beg leave to withdraw the amendment.

Northern Ireland (Regional Rates and Energy) (No. 2) Bill

Lord Duncan of Springbank Excerpts

3rd reading (Hansard): House of Lords
Tuesday 19th March 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the Bill do now pass.

[Lord Cormack (Con)]

My Lords, I want to speak very briefly to reiterate something that we said last week at Second Reading and touched on again earlier this evening in Committee. When there is no Northern Ireland Executive and no Assembly in session, it is quite wrong for Bills touching the lives of virtually every citizen in Northern Ireland to be disposed of so unnecessarily quickly in this House. I know my noble friend has some sympathy with this point of view—if I may say so, he was magnificent in Committee. I would be grateful if he discussed it yet again with the powers that be through the usual channels. I am delighted to have seen the most senior representative of the usual channels, take a place—not his place—while I have been speaking.

There is one other point I would like to make. At Second Reading last week, my noble friend said that he would try to come back when we were dealing with the Bill today with any further information on the plea that many of us have made for the Assembly to be called into being and on the desirability—which I think we all share—of having some mediator figure to convene the various parties in Northern Ireland. It is now well over two years since we had an Executive or an Assembly. People in Northern Ireland have been short-changed by their politicians.

It is also deeply unfortunate that, when the real stumbling block over Brexit has been the border, we have had no opportunity to hear what the politicians elected to the Assembly in Northern Ireland think or for them to put anything into the debate. Although none of us knows whether this would have made any significant difference, given the fact that 56% of Northern Ireland voted to remain in the European Union and none of the elected representatives in the Westminster Parliament take that view, it would have been an opportunity that might just conceivably have produced some interesting ideas. So for every possible reason—and I am glad to see the noble Lord, Lord Murphy, nodding assent—I hope, as we all do, that we have an Assembly and Executive in being before long; but that we devote more time in this Chamber, where so much responsibility does and should lie, in the absence of a devolved Administration. I look forward to my noble friend’s response in due course.

[Lord Bruce of Bennachie (LD)]

My Lords, like other Members, I was somewhat compromised by the early business and not able to be here in time for the start of it. I do not wish to repeat the debate. I want to show appreciation for the amendment in the name of the noble Lord, Lord Empey; the fact I was not able to speak to it was for no reason other than that, although I supported it, I wanted to observe the courtesies of the House—which I noticed not every other noble Lord did.

In those circumstances, I want to say two or three things. First, this Bill presents this Chamber with a choice between a rock and a hard place. Most of us are, I think, very unhappy about the fact that rates and the renewable heat incentive scheme were lumped together in the Bill. While the Minister did not acknowledge that that was a tactic, he did say it was something he did not approve of and hoped would not happen again.

My second concern is that we were faced with the situation—it probably determined why the noble Lord, Lord Empey, withdrew his amendment—that if we passed the amendment, there was a danger people would receive no payment on 1 April, which is a consideration. At this stage, it is important to acknowledge that the Minister has clearly presented a constructive compromise—but, as the noble Lord, Lord Empey, pointed out, one he does not have the authority to guarantee. The House has accepted that in good faith but with real concerns as to where it might lead us. Had we supported the amendment from the noble Lord, Lord Empey, the consequences might have been difficult.

Like most other Members, I have received emails from a number of different businesses across Northern Ireland—not all of them farmers—expressing their angst and concern. I have engaged with them, responded to the emails and forwarded them all to the Minister. I do not need to repeat it, but we need to acknowledge that we are passing a Bill that effectively—how can I put this?—gives authority to the denial of ministerial responsibility for giving guarantees and assurances on which people relied and on which they have been betrayed. I am not comfortable with giving a Bill that does that a Third Reading, and I do not think your Lordships should be either.

The thought that has occurred to me throughout the whole process around the renewable heat incentive scheme is this: the 12% return was known from the beginning, as the Minister acknowledged. I find it difficult, if not impossible, to believe that on two separate occasions the Northern Ireland Executive introduced tariffs which could not conceivably have come close to representing a 12% return on the investment and which were, as anybody providing any objective analysis would very quickly have observed, in breach. That raises the most fundamental questions of propriety, honesty and integrity, of both politicians and, I am afraid, civil servants too. My instincts, however, are that civil servants did not understand what they should have, but I do not think that lets them off the hook.

People will look for a price to be paid, and the two prices to be paid are these. First, will the people who genuinely relied on this and suffered get compensation? Secondly, in the process of doing that, are we in danger of compensating people who took advantage of the system and who could get an extra twist out of it? That, I suggest to the Minister, is something that we need to avoid.

Having said all that, we have no choice but to pass this Bill tonight. However, we should record that it is being passed under duress, at speed, without adequate consultation and with consequences to follow both in the courts and in the political arena that will probably haunt Northern Ireland for many years to come.

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

My Lords, perhaps I may touch upon the remarks of my noble friend Lord Cormack. My team will reach out to him very shortly on the question of the Assembly and what we might well be able to do to go forward. There is no doubt that there are lost voices in Northern Ireland. Perhaps now more than ever those voices would have been appreciated and might well have been instructive, and they must be heard. I will return to my noble friend in the next few days, I hope, but certainly very soon.

The noble Lord, Lord Bruce, and my noble friend Lord Cormack talked about the notion of being bounced into this situation. In the absence of a Northern Ireland Executive, we must ensure adequate scrutiny in this place and the other place of issues that have a significant impact on the lives and livelihoods of the people of Northern Ireland. Of that, there is no doubt. We must ensure that we, the Government, do better at allowing for that scrutiny and at allowing time for questions to be asked. I fully appreciate that. I accept every point that has been made. I will take them away and do all that I can to change the way in which we do business, which is inadequate for this moment and for the times that we are in.

As the noble Lord, Lord Bruce, pointed out, we are between a rock and a hard place—between a deadline and a necessity. We are between the hardships that we have witnessed through the emails and letters that we have received, and the reality of the challenge of an impending grandfather clause that would place everyone else who is in that situation in a far worse predicament. Therefore, I accept again that this is ill timed.

The noble Lord, Lord Bruce, is right to point out that I cannot give a guarantee on behalf of the Northern Ireland Executive—I am not equipped to do so, constitutionally speaking—but I could not in good faith return to this House if I were not able to live up to the statement that I have made today. I hope that noble Lords will accept that statement and the intent with which it has been given. I hope they will recognise that it has been given on my word of honour, and I will not come back here unless we can live up to the statements that I have made.

Today, as in every situation when we look at Northern Ireland, we have to tread as carefully as we can. On one hand, we are bound by state aid rules, which place upon us a responsibility. On the other, we are bound by the realities faced by many individuals who have written to us about the hardship they are experiencing. I hope that the noble Lord, Lord Empey, who is now in his correct place, will recognise that his efforts and labours on behalf of those individuals have been well landed and well understood. I also hope that, on the basis of the withdrawal of his amendment and my promissory note about what we can do, we will be able to move forward to achieve that fairness, equity and, ultimately, justice.

Bill passed.

Northern Ireland: Devolved Government

Lord Duncan of Springbank Excerpts

Monday 18th March 2019 Lords Chamber

[Lord Dubs]

To ask Her Majesty’s Government what progress they have made towards restoring a functioning Executive and Assembly in Northern Ireland.

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

My Lords, what progress has been made? Not enough. The Secretary of State continues to work closely with the main political parties in Northern Ireland to restore devolved government. The Secretary of State met the five main political parties and the Irish Government on 15 February to discuss a further phase of talks to restore devolution, and held further bilateral discussions with the parties on 1 March.

[Lord Dubs (Lab)]

My Lords, will the Minister confirm that it is over two years since there was a functioning Executive and Assembly at Stormont? Since that time, key decisions have been made by civil servants that cannot be challenged—and they are normally on the cautious side, given that they do not have ministerial backing. Is it not time that the Government got a move on? Inertia is no recipe. They are betraying the Good Friday agreement and the people of Northern Ireland. Can we not have something more than talks? For example, can we go back to the original idea of appointing a neutral person to bring the parties together and make some progress? At the moment, nothing is happening.

[Lord Duncan of Springbank]

I am happy to confirm the first point the noble Lord made; it has been far too long since there was an Executive in Northern Ireland. The noble Lord will be aware that over the past year we have set out guidance that can be issued to civil servants to allow them to act beyond what would traditionally be accepted by the Civil Service. All we are doing just now has a single objective in mind: to restore an Executive. We have not made enough progress, and responsibility rests not just with the Government but with many other parties as well.

[Lord Naseby (Con)]

My Lords, I declare an interest as a former PPS in Northern Ireland for two years. Against that background of experience, is it not clear, as the noble Lord, Lord Dubs, has said, that one way or another we need to find an external catalyst to pull together these difficult, challenging people in Northern Ireland, who have little trust in each other? Does this not suggest that you need the experience of some external party or other?

[Lord Duncan of Springbank]

My Lords, the Government have not ruled out using an external facilitator. Indeed, they are actively considering that point. However, it is important to stress that circumstances at this moment may also be a factor affecting that role just now.

[Baroness Smith of Basildon (Lab)]

My Lords, while the Prime Minister is repeatedly failing to get her Brexit deal through Parliament, she has shown less determination in trying to secure the return of a functioning Executive and Assembly in Northern Ireland. Today, we are hearing rumours of a last-minute “Stormont lock”, and other negotiations, to try to win the backing of the DUP for the Prime Minister’s deal. I have two questions. First, if there is a “Stormont lock”, given that there is no functioning Executive or Assembly, would it be the DUP or the unelected civil servants making decisions that would affect the whole of the United Kingdom? Secondly, what assurances can the Minister give to convince this House that the Government’s approach to Northern Ireland and the UK constitution is being driven by something more encouraging than political expediency and the short-term goals of Mrs May and No. 10?

[Lord Duncan of Springbank]

I am unaware of any Stormont lock and cannot comment upon that. On the question of where we stand as a country, the constitution must be respected, as must devolution. That is why we have sought to restore devolved government in Northern Ireland by every means possible over the past period. Without it, direct rule from here would be a terrible retrograde step.

[Lord Bruce of Bennachie (LD)]

My Lords, does the Minister not acknowledge that the longer this stalemate goes on, the more polarised politics in Northern Ireland becomes and the more dangerous the situation is? Will he not follow up things he has suggested before, including making the Assembly active while positive measures are taken to restore the Executive, rather than determining to get an Executive before the Assembly comes together, so that politicians at least meet each other?

[Lord Duncan of Springbank]

The noble Lord is correct: polarisation is a great risk in Northern Ireland. As we have said before, we are making every endeavour to restore the Assembly and are exploring every possible way. On my previous time at the Dispatch Box, I said that I would sit down with noble Lords who have an interest, hopefully to take this matter forward.

[Lord Lea of Crondall (Lab)]

My Lords, is the Minister aware of the statement made by the secretary of the senior Civil Service union that civil servants in Northern Ireland who are now taking decisions are becoming public figures? It is worrying for them that they are exposed to the normal cut and thrust of politics. It is very important to bring about a situation with the political parties in Northern Ireland so that civil servants do not feel vulnerable through having to take high-profile political decisions.

[Lord Duncan of Springbank]

The role of the Northern Ireland Civil Service is vital to the functioning of the situation in Northern Ireland as we understand it. In reality, civil servants have been placed in an invidious position. Without their work we would be in a much worse position. However, the reality remains that serious political decisions cannot really be taken by the Civil Service. That is why we require a restored Executive now.

[Lord Lexden (Con)]

My noble friend referred to consideration being given to the appointment of an independent chairman and for the calling together of the Assembly. When can we expect some decisions to be taken?

[Lord Duncan of Springbank]

As soon as we are in a position to make that announcement, we will do so.

[Lord Anderson of Swansea (Lab)]

My Lords, the Minister spoke of the increasing danger of polarisation in Northern Ireland. Does he agree that part of that danger arises from the fact the DUP purports to speak here on behalf of the people of Northern Ireland, but in fact the majority in Northern Ireland were for remaining? Therefore, it clearly does not speak on behalf of the majority in Northern Ireland.

[Lord Duncan of Springbank]

No single party can claim to speak for any area whatever. There is a diversity of opinion in Northern Ireland and we must respect that diversity in every one of its manifest forms.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, could the noble Lord say a little about the discussions taking place with the DUP at the moment? Frequent meetings are taking place with the Prime Minister. Is this topic on the agenda?

[Lord Duncan of Springbank]

I am afraid I do not know the answer to that question.

[Lord Browne of Ladyton (Lab)]

My Lords, has the Prime Minister met with the leaders of any other parties in Northern Ireland to discuss Brexit in the same timescale as she has met with the DUP? All important decisions in Northern Ireland according to the Good Friday agreement require cross-community agreement. What efforts are the Government making to get cross-community agreement for the people of Northern Ireland?

[Lord Duncan of Springbank]

Brexit is Banquo’s ghost at every meeting the Secretary of State for Northern Ireland undertakes in Northern Ireland—of that I can be absolutely certain. The important thing is to ensure that all those in those discussions are heard and that their voices are not ignored. We are not yet in a position to bring them together to deliver the Executive that we would wish to see restored.

Northern Ireland (Regional Rates and Energy) (No. 2) Bill

Lord Duncan of Springbank Excerpts

2nd reading (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the Bill be now read a second time.

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

My Lords, I will speak to both Motions standing in my name on the Order Paper. When I last brought forward a budget Bill for Northern Ireland, I stated that it would be the last time. Events have made a liar of me. I apologise for that.

In the absence of devolved government in Northern Ireland, the UK Government have a responsibility to ensure good governance and to safeguard public services and public finances. I therefore ask your Lordships to give a Second Reading to two pieces of necessary legislation.

The Northern Ireland Budget (Anticipation and Adjustments) (No. 2) Bill will have all its stages in your Lordships’ House today. However, following engagement with a number of noble Lords, the regional rates and energy Bill will have only its Second Reading here today. All further stages will take place on 19 March, primarily to allow time for further discussion and reflection.

With your Lordships’ permission, I will discuss each Bill in turn, The Northern Ireland Budget (Anticipation and Adjustments) (No. 2) Bill would put Northern Ireland finances for the 2018-19 financial year on a legal footing and enable Northern Ireland’s departments to continue to deliver public services into the first half of 2019-20. Your Lordships will recall that the UK Government legislated for the 2018-19 budget for Northern Ireland last year. This legislation was necessary to provide a clear legal basis to Northern Ireland departments, enabling them to manage their resources. The resulting Northern Ireland Budget Act 2018, which passed in July, did not direct any spending but rather allocated funds to departments to be spent by the Permanent Secretaries according to departmental commitments. As we approach the end of the financial year, those spends need to be placed on to a legal footing, as is standard practice in any budgetary process. That is what this Bill does.

In addition, the Bill provides for a vote on account for the first half of next year, which will give legal authority for managing the day-to-day spending in the run-up to the main estimates process. This year, following discussion with the Northern Ireland Civil Service, the Bill provides a higher than normal level of vote on account, some 70%. This is in recognition of the known increased spending pressures and the lack of Ministers in place to react and respond to emerging or escalating pressures. It also recognises the uncertainty of the political situation in Northern Ireland in the coming months. A higher level of vote on account funding is prudent, providing the practical and legal certainties to protect public services in any and all circumstances up until the point that legislation on the Northern Ireland budget for 2019-20 is taken forward.

Your Lordships will recall that my right honourable friend the Secretary of State for Northern Ireland published a draft budget for 2019-20 in February. It is important to recognise that this budget Bill does not legislate for that budget position. Those allocations will require their own legislation later this year. The vote on account in this Bill and the draft Northern Ireland budget position for 2019-20 provide the necessary clarity and certainty to Northern Ireland departments to enable them to plan and take decisions in the coming year.

I will briefly turn to the Bill’s contents. In short, it authorises Northern Ireland departments and certain other bodies to incur expenditure and use resources for the financial year ending 31 March 2019. Clause 1 authorises the issue of £16.8 billion out of the Northern Ireland Consolidated Fund. The allocation levels for each Northern Ireland department and the other bodies in receipt of these funds are set out in Schedule 1, which also states the purposes for which these funds are to be used. Clause 2 authorises the use of resources amounting to some £20 billion in the year ending 31 March 2019 by the Northern Ireland departments and other bodies listed in Clause 2(3). Clause 3 sets revised limits on the accruing resources, including both operating and non-operating accruing resources, in the current financial year. Clause 4 sets out the power for the Northern Ireland Civil Service to spend from the Northern Ireland Consolidated Fund some £11.8 billion for the forthcoming financial year. This is the vote on account provision I outlined earlier. It is linked to Clause 6, which does the same in terms of resources. The value is set at around 70% of the sums available in both regards in the previous financial year. Schedules 3 and 4 operate on the same basis, with each departmental allocation simply set at 70% of the previous year. Clause 5 permits certain temporary borrowing powers for cash management purposes.

The Bill would ordinarily have been taken through the Assembly. As such, at Clause 7, there are a series of adaptations that ensure that the Bill will be treated as an Assembly Budget Act once approved by this Parliament, enabling Northern Ireland public finances to continue to function notwithstanding the absence of an Executive.

Alongside the Bill is a set of supplementary estimates for the departments and bodies covered by the budget Bill, which was laid as a Command Paper in the Library of the House on 28 February. These estimates, prepared by the Northern Ireland Department of Finance, break down the resource allocation in greater detail. For those who wish to delve in, they are thoroughly set out in the document of which I have a copy here. As your Lordships will recall, this process is different from estimates procedure at Westminster, where the estimates document precedes the formal Budget legislation, and is separately approved. However, this would also be the case were the Assembly in session.

I also ask the House to give a Second Reading to the Northern Ireland (Regional Rates and Energy) (No. 2) Bill. This Bill would deliver two essential measures: it will enable the collection of regional rates in Northern Ireland, and will ensure fair and appropriate tariffs and cost-capping measures are in place for the renewable heat incentive scheme in Northern Ireland. The bills are not without their controversies, as noble Lords will be aware. However, the measures are necessary.

The first clause of the Bill addresses the issue of regional rates. In the absence of an Executive, the UK Government have set this rate for the past two years. My right honourable friend the Secretary of State for Northern Ireland intimated the rate—an increase of 3% plus inflation on the domestic rate and an inflation-only increase on the non-domestic rate—in her budget Statement of 28 February.

The second section of the Bill, specifically Clauses 2 to 5, concerns the administration of Northern Ireland’s renewable heat incentive scheme. I need to be clear that this is a devolved matter. We are taking forward legislation at the behest of the Northern Ireland Department for the Economy. Without legislation, there will be no legal basis to maintain the payments to participants in the scheme.

The tariff levels set out in this legislation are based upon analyses of the additional costs and savings of operating a biomass boiler in Northern Ireland following extensive consultation, assessment and analysis under- taken by the devolved Department for the Economy and through detailed discussions with the European Commission. These rates are significantly lower than previous tariffs. The European Commission is clear: the tariff rate cannot deliver a return higher than 12% per annum. For participants with lower usage needs or higher capital costs who have returns below 12%, the Bill introduces a voluntary buy-out scheme.

As I have said, these tariffs, and indeed this scheme, are not without controversy; I appreciate the desire of noble Lords to consider this significant and complex subject in more detail. There will be a Committee stage, on Tuesday of next week, where these proposed RHI measures and the amendments that noble Lords have tabled can be addressed separately. I will ensure in the intervening period that my officials, together with officials from the Northern Ireland Civil Service, are available to engage directly with issues that your Lordships may wish to raise on this matter. In addition, my officials will issue a detailed question-and-answer script addressing commonly asked questions; this note will be distributed to interested Peers shortly.

In conclusion, I hope your Lordships will recognise the necessity of the actions that I have presented today. On that basis, I beg to move.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, no matter how much homework I do before I come here, I am always confronted by new questions, so I will try as best I can to do justice to all of the questions that have been presented this evening. I also stress that the opportunity next week to examine in greater detail the renewable heat incentive will give us a further opportunity to discuss that issue.

I start on a positive note and I will try to weave my way through all of the other questions. A number of noble Lords mentioned the medical centre in Derry. Derry/Londonderry will secure significant funding through the city deal initiative. Noble Lords will be aware that the Belfast city deal has been set at around £350 million. There will be substantial funds going into Derry/Londonderry and into the medical centre. If it is able to secure the correct construction of its bid, that is exactly the sort of thing that the city deal should be able to move forward. I am not across the details, but I will be, and I will report back when I have more to say. It is a useful initiative to take forward.

The common theme from noble Lords this evening was to ask why we always seem to do this at the last moment and at short notice. It is important to place this in context. The Bills before us are, in a sense, a reconciliation of the moneys broadly spent in the financial year soon to close. The budget for that was set before and we are now reconciling it. It is happening now because we had to wait until the figures were available, and that happened only within the last month. That is why we are doing this today.

On the question of the rates, again, noble Lords were right to flag up that this could have been examined at a different time, but the two issues have been put together in this package. The heating initiative concept also falls into this debate because we face a time limit of the deadline by which we must introduce an adjustment to the scheme because of the grandfather clause that will bring it to an end.

The point noble Lords are making is different: if this is how we are doing things, why are there not more opportunities for further scrutiny by different parts of this House and others, either through committees or elsewhere? I am going to take that away from the discussion this evening because I agree. We should be looking at how to move that forward in a fashion that does not rely on the methods we have used thus far. I do not think they are adequate. When we are spending such sums of money, there should be thorough, careful and detailed scrutiny—not in one evening, not even spread over the two opportunities we have—to ensure that those who are tasked with examining these things are capable of doing so.

I will try to move forward on several of these smaller but important questions. I have had several meetings with the noble Lord, Lord Hain, about pensions. I recognise how important this is and that we need to move forward for the very reasons that a number of noble Lords have struck upon this evening, not least the noble Lord, Lord Murphy. These people are ageing and dying off. We are awaiting the information from the Victims Commissioner. We believe that it will come very soon and hope that we will be able to move forward on this initiative once we receive that. I will come back when I have more details and am in a better position to do so.

The noble Lord, Lord Bruce of Bennachie, raised the wider question of the Hart inquiry. I wanted to get the exact wording, so forgive me if I read it out. My right honourable friend the Secretary of State for Northern Ireland has made it clear that, in the absence of an Executive, she will consider the next stages when she receives advice from the Northern Ireland Executive. We need to move this forward—I recognise how urgent and important it is—and we will do so when we have received that information. Even if there is no Executive, we will not let this settle. We need to make progress now.

I will touch on one of the other, bigger issues, the role of an Assembly, not necessarily as a generator of legislation but as a place where debate and discussion can take place. There is no impediment to the Assembly meeting. It would have to select and elect its own Speaker and its own Presiding Officer, but it could do so. One noble Lord flagged up one of the difficulties: to be an appropriate place for this discussion to take place, it would need to bring together all of those parties. I am aware of the challenge that that may represent. Perhaps noble Lords here gathered can do something to help. On a cross-party basis, they could write to each of the MLAs and ask if they would be willing to sit and meet in such an Assembly now.

There is no doubt that the noble Lord, Lord Murphy, has flagged up an important point. Just along the corridor in the other place, an extraordinary event has unfolded. It has centred on Northern Ireland, yet the voices of Northern Ireland have been remarkably quiet in this process. It is not just about flags outside but voices in here. Any small progress will be a step in the right direction.

[Lord Alderdice]

I am very grateful to the Minister, but it feels as if he is giving a veto to one party. When Lord Prior was Secretary of State, an Assembly was able to meet for some years without any nationalist representation at all. We are not talking about that in this situation. I understand what he is saying very well. The Government would be very ill advised to hand out a veto in that kind of way.

[Lord Duncan of Springbank]

The noble Lord is absolutely correct. That is why I am trying to be very careful in putting this forward.

[Lord Cormack]

I am most grateful. I would like to follow up: I think we see this as one. I appreciate the suggestion that we might take part in some way. However, I would ask that the Secretary of State herself writes to every single elected Member, saying that there will be a meeting on a particular day and inviting them to come. It would be wrong to allow any single segment or group to veto that initiative. It has to be taken at the highest level, by the Prime Minister or Secretary of State.

[Lord Duncan of Springbank]

I accept the words of my venerable and noble friend. I am trying to find a way of moving this forward as best I can. I wonder whether there might be an opportunity for us to meet collectively in a different forum to discuss that very thing. I do not think I will be able to resolve it on my feet. I do not doubt that in a few moments or so I will be getting little notes from my assistants in the Box.

[Lord Hay of Ballyore]

To follow the remarks of the noble Lords, Lord Alderdice and Lord Cormack, has there been any discussion on the idea of a shadow Assembly within the talks at any time? Has it been put by the Secretary of State to the parties? What has their reaction been, if any at all?

[Lord Duncan of Springbank]

The noble Lord raises a question to which I do not have the answer, I am afraid; I do not have it to hand. That is why if we are in a position at a date soon hereafter to sit down and explore some of these issues in an effort to move them forward as best we can, that would not be a bad initiative. Let us revisit that. I am not trying to park it in any way.

I hope noble Lords will forgive me for being a little disorganised: I seem to have an awful lot of papers spread in front of me. I will try to take the points raised by each noble Lord in turn. The noble Lord, Lord Bruce, asked about the RHI situation and how it compares with other parts of the United Kingdom. We are broadly agreed that the scheme in Northern Ireland was not well constructed; we can probably all accept that. The unfolding inquiry into that will set out clearly exactly what has gone on. In response to the question from the noble Lord, Lord Alderdice, yes, we can have that debate should your Lordships desire to have one at the stage when a report emerges; I am happy to say that.

The scheme set out a 12% return; that was at the heart of what was meant to be achieved by the initiative. It is indeed 12% in Great Britain itself; the scheme that we anticipate in the Republic would be 8%. One of the reasons that we end up with different figures is that there are different ingredients going in. For example, the scheme in Great Britain is a 20-year scheme, whereas that anticipated in Northern Ireland is a 15-year scheme. Some of the capital costs involved in the scheme depend on when the emergent technology became more cheaply available. The scheme in Northern Ireland that commenced in earnest in 2015—although it opened earlier—contrasts quite clearly with the scheme which opened in Great Britain in 2012, during which there were significant cost reductions.

The scheme construction also differs significantly between Great Britain and Northern Ireland, not least the element of “tiering” which exists in British schemes but not in Northern Ireland and the digressive component. I will not go into greater detail on that; we will have an opportunity to do so next Tuesday evening. In the intervening period, I recommend that any of your Lordships who are minded to find further details meet my officials so that those who have serious concerns can have them addressed.

To put this into context, the 12% return that we talk of is the needful part within the state aid rules. The scheme in Northern Ireland as it initially emerged had a return rate of 55%—noble Lords will see the contrast between 55% and 12%. It is not difficult to see how those individuals, who, through clear guidance, accepted a scheme with its various component parts and invested on that basis, now find themselves in the invidious position of all their calculations being blatantly wrong, based as they were on incorrect information. It is important for me to stress that those who were responsible for the wrongness of that scheme, I do not doubt, will emerge from Patrick Coghlin’s report; we will have an opportunity to discuss that further.

I stress that those within the Northern Ireland Civil Service undertaking the work on the current proposals are not the same people. This has been conducted in a very different fashion, based on significant investment in looking at the actual data rather than forecast data. Rather than trying to anticipate what the figures will be, the report itself and the consultants who examined it looked at the actual data. Again, it might be worth getting into the detail of that at an opportunity that will be provided by my officials and by others, because noble Lords will be surprised how quickly this moves from a high-level discussion into extraordinary technicalities.

I have written at the top of this page: “still a Minister”. I think that must reflect on what was going on down the Corridor. I will check when I leave, obviously.

[A noble Lord]

It is only 9.05 pm.

[Lord Duncan of Springbank]

The night is still young, exactly.

Returning to the remarks of the noble Lord, Lord Empey. In stressing the notion of the cancer strategy, he placed his finger on one of the more important questions: in the previous Act we set out our ability to offer guidance to civil servants in Northern Ireland but at what point does a civil servant in receipt of information feel he is comfortable to implement it or not? There is no doubt in my mind that there is a strong difference between a civil servant who feels so empowered and a Minister who wishes to move things forward, and there is no point pretending that one is the same as the other. I recognise that a cancer strategy is only as valuable as it is implemented in all its manifest forms, and I also recognise how important that will be.

The noble Lord asked about turning capital funding into resource funding. In the current arrangements there will be £130 million of that, and he is absolutely right that the Treasury has in the past not been overly fond of this approach. This particular approach is one method of trying to balance out that budget, but I recognise that there will be other challenges. He rightly points out that there are enough capital projects in Northern Ireland to keep Northern Ireland busy for some time, which is again why there will be £200 million from the confidence and supply arrangements, focused primarily upon infrastructure. That should in some sense help to recognise how we can balance out these particular aspects.

My noble friend Lord Lexden was very critical, and I accept his criticisms in the spirit in which they were given. We deserve some criticism in this area. We should be doing better, so I will take that on board. Again, he flags up the vital role undertaken by the Northern Ireland Affairs Committee, which should have a stronger role in all the things which we are discussing. There is no point in having a Northern Ireland Affairs Committee if the only thing it does not discuss is what you are up to in Northern Ireland in this context, so I shall take that on board. He was right also to remind us of the role of Airey Neave, and the tragic circumstances in which he died. There is much to learn from that period about how we can move things forward.

The noble Lord, Lord Kilclooney, asked several questions. The first one, which he has touched upon previously, was: has the reform of the council structure had any benefit? I do not have an answer to that but I am going to find one and report it to him directly. He also asked what the role of state aid will be after the point at which we depart. The reality is that the state aid approach will be adopted broadly by a UK-based entity called the Competition and Markets Authority, which will apply common rules. I will write to him with more detail so that I can set out at greater length the information which I am here slightly gliding over the top of.

I hope I have answered the questions raised by the noble Lord, Lord Alderdice, so I will glide over the top of those and move on.

The noble Lord, Lord Morrow, like many others, raised the very serious point of scrutiny. I hope we can find a way of doing this differently. This time last year, I somewhat foolishly made a bold promise, which I will not be doing it again, as I have discovered that Northern Ireland is not the place to make bold promises—certainly not as far as I am concerned. However, I believe we need to find a different way of scrutinising. It is right and necessary that the people of Northern Ireland have faith and confidence in the way that their money is being administered, and that is going to be done only if they have genuine confidence. The notion of using expedited or emergency powers creates this sense of emergency, which in itself is self-defeating, so we want to move away from that as best we can.

The noble Lord, Lord Maginnis, asked certain questions on proxy voting. I will chase up the responses tomorrow and ensure that the noble Lord gets them. He read into the record one of the letters from the responsible devolved Minister, reminding us again that all those individuals who have written to each of us about the RHI scheme did so on the basis of very clear, simple, straightforward guidance. They did the right thing, and so it is important that is on the record and part of the wider discussions that, I do not doubt, will follow on from the report which will be published. That echoes the points raised by my noble friend Lord Cormack, and I am pleased he was able to raise the issue of pensions on behalf of the noble Lord, Lord Hain, which we should be able to move forward on, once we are receipt of that information from the victims’ commissioner.

The noble Lord, Lord Bew, asked about how much the Scappaticci affair cost. I do not know, but I will find out and report back to him. I hope I was able to give him some comfort on the Derry medical school.

[Lord Bew]

I am also interested in whose budget it comes from.

[Lord Duncan of Springbank]

I will make sure the letter covers that point as well. On the housing association aspect, I have assurances from my right honourable friend the Secretary of State for Northern Ireland that we will find time, and this will move forward as quickly as we can. Whether it will be by the summer will slightly depend upon events, but there will be an ambition to move forward quickly. The longer we delay in moving this aspect forward, the greater the cost to the Exchequer, as the noble Lord will know. If we do not make progress by the end of the financial year, it will have cost us £45 million, which is money we could better spend on a thousand different areas.

The noble Lord, Lord Rogan, reminds us of the challenges we face if we are not able to deliver, and he is right to point out the challenges of a vacuum, and who will fill it. It is a stark reminder, and we are living through that reality now. We need to make sure we can make some progress, because it is too important an issue for it to fall into that particular abyss, from which it will be harder and harder to extricate ourselves.

The noble Lord, Lord Murphy, as ever, brought forward a useful summary, and trenchant criticism, which lands upon us as the Government. It is important that we recognise the issues we have tried to take forward, and how we can improve the way we do business. He asked a specific question about the small towns initiative, to which I do not have an answer, but I will get an answer and I will write to him, lodging my answer in the Library for those who wish to have that information at their disposal.

The noble Lord, Lord Bruce, posed a question on scrutiny, and the noble Lord, Lord Empey, touched on this. The actual spend is scrutinised by the Northern Ireland Audit Office, but there is a difference between scrutinising post facto spend and the other way around. I take that on board, as I hope he will understand. The noble Lord, Lord Bruce, also asked why the flaws in the RHI scheme were not caught earlier. It is a good question, and there have been attempts throughout the process to ameliorate what has become a significant problem. When the scheme was set up, the figures being discussed were in the £20 million range, but when we look at the simple costs now for this scheme, were it to have run the full distance, we would already be at £500 million, which is a significant overshoot. The reason why the judicial review, which is going to appeal and will report soon, found that there should be reform of this is because we need to balance the commitments we make to individual participants in this scheme, and the wider sense of common good and public finances, which are challenging in this regard.

The noble Lord, Lord Maginnis, also raised proxy voting. It is important that we get clarity on this, and I will write to him and will share that information with others.

I think I have answered all the questions I can. If I have not answered particular questions, noble Lords should grab a hold of me, and I will answer them. If I cannot do that, we will arrange a meeting where I can answer properly.

Bill read a second time.

Local Elections (Northern Ireland) (Election Expenses) Order 2019

Lord Duncan of Springbank Excerpts

Tuesday 5th March 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

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

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

My Lords, this statutory instrument will make two minor but positive improvements to the local election rules in relation to the election expenses that can be incurred by a candidate at a local election in Northern Ireland. The provisions will bring the rules for local elections into line with those of other elections in the United Kingdom. I will now explain the details of each of these changes in turn.

The first change will exclude expenses that are reasonably incurred and reasonably attributable to a candidate’s disability from their electoral expenses spending limits, mirroring the recent changes made for UK parliamentary and Northern Ireland Assembly elections in the Representation of the People (Election Expenses Exclusion) (Amendment) Order 2019. Currently, disability-related expenses count towards a disabled candidate’s spending limit.

The matters excluded from the definition of election expenses are listed in Part 2 of Schedule 3B to the 1962 Act. Article 4 amends Schedule 3B so that any expenditure that is both reasonably incurred and reasonably attributable to the candidate’s disability is excluded from the definition of election expenses. This proposal will help to level the playing field between disabled and non-disabled candidates and enhance equality of opportunity for disabled candidates.

Examples of disability-related expenses may include the cost of providing transport support for mobility-impaired candidates, sign language interpretation for hearing-impaired candidates and the transcription of campaign material into Braille for visually impaired candidates. This list is not exclusive. Importantly, I can assure noble Lords that candidates will not be required to disclose any disabilities and there will be no legal obligation for them to report their disability-related expenses.

The second change deals with the personal election expenses of candidates. The aim here is to bring the policy for local elections in Northern Ireland into line with the rest of the United Kingdom. Unlike in other elections in Northern Ireland and Great Britain, the personal election expenses of candidates at local elections are currently included in the limit on the amount of election expenses that they can incur or that can be incurred on their behalf.

Following the restructuring of local government in Northern Ireland in 2014, which reduced the number of councils from 26 to 11, a number of electoral areas are now considerably larger in size. This proposal will remove potential barriers to campaigning for candidates standing in geographically larger electoral areas, as the costs of travel and accommodation will not count towards their spending limit. Although personal expenses will not be included in the limit on election expenses, candidates will still report them to the chief electoral officer as part of their personal expenses in their expenses return.

These provisions bring local elections into line with other elections in Northern Ireland in respect of the personal expenses changes. The chief electoral officer and the Electoral Commission confirm that they fully support the changes within the instrument.

In order that candidates at the forthcoming local elections can benefit from these improvements to the rules, we have chosen to move as quickly as we can to try to achieve this, rather than delay the order until after the local elections. If the order is approved, it will come into force on the day after it is made. The Electoral Commission will publicise the changes to the rules and update its guidance to candidates in advance of the regulatory spending period for the 2 May local elections.

I hope that your Lordships will support this order. I commend it to the House and beg to move.

[Baroness Harris of Richmond (LD)]

My Lords, these Benches welcome the order. We support Articles 2 and 3, which will bring local election rules into line with those for other elections in Northern Ireland, as we heard from the Minister.

We especially welcome and support Article 4, to exempt disability-related expenses from the definition of “election expenses”. This is an important move to help to close the gap between disabled and non-disabled candidates. The Liberal Democrats have always championed diversity and we are keen to ensure that those elected at all levels reflect the wider population they represent.

One of our successes in coalition was the introduction of the Access to Elected Office Fund for disabled candidates to help with the extra costs of standing for office. We have been disappointed, therefore, to see the reluctance of the Conservative Government since 2015 to continue funding this.

Overall, the provisions of the order are important in furthering equality and transparency. However, as the Minister will be aware, although progress has been made to secure full transparency of political donations in Northern Ireland, there is still a significant gap. We welcomed the Transparency of Donations and Loans etc. (Northern Ireland Political Parties) Order 2018 when it was brought before Parliament last year, which allowed the Electoral Commission to publish information about loans and donations given to Northern Ireland political parties dating back to July 2017—I remember speaking in that debate—but we were deeply disappointed that the order did not provide for the backdating of information to 2014, as the Northern Ireland (Miscellaneous Provisions) Act 2014 allowed.

At the time the order was made, the Electoral Commission recommended that another order be brought forward to allow for full transparency dating back to January 2014, as the 2014 Act had anticipated. The Electoral Commission is already in possession the relevant data to allow this. Responding to the debate on that order, the Minister, said:

“Right now, we are not ruling out the re-examination of the period that precedes 1 July 2017. Indeed, the draft order will allow consideration of it, once we have had an opportunity both to bed in the transparency order and to examine the details reflected therein. We will not rule anything in or out on that point ... I recognise that the issue of backdating will remain sensitive. If, on consideration of the data as it is gathered, ascertained and seen, there are deemed to be issues that need to be examined further, the Government will consider them at that point. We are ruling nothing in and nothing out”.—[Official Report, 27/2/18; cols. 623-625.]


Have the Government had the opportunity to give further consideration to this important matter? If so, what are their conclusions? I end by restating our firm support for the provisions in the order before the House today, and I look forward to the Minister’s response.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, the noble Baroness, Lady Harris, and others have referred to the transparency of election donations. I hope that the Minister can give an answer—whether he sings it or says it.

One issue before us, in respect of local government in Northern Ireland, is on giving disabled people the opportunity to stand for election to local authorities— obviously, these Benches completely support the Government on that. The other issue concerns the exclusion of personal expenses from election expenses. Again, we very much support that. It brings the law into line with that in Great Britain.

The issue, though, begs a wider question—two questions, in fact. The first, regarding local government, concerns the fact, as I mentioned last week in the House, that we are in a strange position in Northern Ireland. Some years ago, Northern Ireland had the most sophisticated democratic system in Europe, as a result of the Good Friday agreement, with the Assembly, the Executive, the north-south bodies and all the other aspects of the agreement. Now, its local government is the least democratically run part of the United Kingdom or, indeed, of the European Union. Here in this Parliament there is no nationalist voice in this House or, of course, in the House of Commons. There is no Assembly and no Executive, so the only democratic institutions in Northern Ireland are the 11 local authorities. They will have elections fairly soon. Those elections, of course, will be keenly fought by all the parties in Northern Ireland, and my guess is that they will not be fought entirely on local issues either; they will be fought possibly on Brexit but certainly on politics of a wider nature in Northern Ireland. So the 11 local authorities, although they do not have the same powers as local authorities in Great Britain, have a hugely important role as a forum for political and democratic discussion in Northern Ireland.

It should not be like that, of course. The point made by the noble Lord, Lord Cormack, and others about the restoration of the institutions of the Good Friday agreement in Northern Ireland is critical, and he is absolutely right to raise it every time Northern Irish business is debated in this Chamber. There will, of course, be an opportunity next week, when legislation comes before us regarding the budget and other issues in Northern Ireland, and I hope that that becomes a debate about where we are in the political situation at this moment. Frankly, it is a disgrace that we are in this position: to go well over two years without any Assembly or Executive in Northern Ireland is totally unacceptable. It is linked heavily with Brexit, and I am sure we will have an opportunity to debate that as soon as we can, but noble Lords ought to understand that at the end of May there are two deadlines: one deadline for Brexit and another for extending the role of the Assembly in order to have further negotiations. On 25 March, that deadline closes. In neither case, it seems to me, is anything happening at the moment.

So today is a mini-debate, perhaps, on this issue and I hope that next week will be a major one, but we welcome the order. It is important, but the fact that it has to be brought in this Parliament rather than in the Assembly in Belfast is a tragedy for us all.

[Lord Duncan of Springbank]

My Lords, I thank noble Lords very much for their constructive engagement on this issue. I welcome the support from all sides of the House for the changes in the orders we are bringing forward today. I think they will extend opportunity across Northern Ireland and that that will be welcomed by all in Northern Ireland. It will bring Northern Ireland into alignment with the rest of the United Kingdom. As often happens in debates on Northern Ireland, we had a small amount on the issue on the Order Paper and then we segued quite quickly into a broader discussion. If noble Lords will allow me to pick up some of those pieces, I will do so.

The substantive point raised by the noble Baroness, Lady Harris, is an important one. I gave some undertakings the last time I was at this Dispatch Box. I am always loath to hear my words quoted back to me, but she is absolutely correct. I had a note in my briefing that I felt, when I read it, was not adequate in response to her point, so I solicited further information from my assistants in the Box. They are telling me now that the issues we are talking about, these reforms, have not had a chance to go through a complex election. A complex election is coming in May. I give an undertaking that we shall revert to this issue after that point, when I hope we will be in a better position to move this forward. I appreciate that she would like the answer now, but if she will forgive me I will bring this back after that complex election, when I hope we will be in a position to take this matter forward. I appreciate that it is a complex issue—

[Lord Tyler (LD)]

The Minister was very generous in his contribution on this issue in February of last year, and I endorse what my noble friend has said. But that was 12 months ago, and it is precisely because these elections are important that this issue of transparency remains so clear in our minds as something that needs to be cleared up as soon as possible. Of course we know that the transparency is there for the future, but clearing up what has happened in the past remains a very important political issue for a number of the reasons that have been given. In the context of the constitutional crisis of the next few weeks, to which the noble Lords, Lord Cormack and Lord Murphy, have referred, in which Northern Ireland—where there is such a democratic deficit—is so central, the need for clarity and transparency is all the greater. I understand what the Minister is saying, but coming 12 months after he gave an undertaking that progress would be made on the issue of transparency of election funding, it is, frankly, not good enough to say that we will postpone it a bit longer because there is another election coming up. It is not good enough, and it adds to the feeling that Northern Ireland is being treated in a way which is not in alignment with the rest of the United Kingdom at a time when it is extremely sensitive. The Minister himself says that the purpose of this order is to bring Northern Ireland into alignment with Great Britain. Here is another area where it should have happened long ago.

[Lord Duncan of Springbank]

I will accept the criticism. I will not try to defend myself on that point either. We should be able to make progress on this matter, and I hope we can do so, but at this moment I cannot give an undertaking that progress will be made in the short term. For that I apologise.

If I may move on to some of the other issues raised in this particular debate, my noble friend Lord Lexden asked why it has taken so long. In actual fact, although we are reforming an Act which dates to the 1980s, the reform itself was not instituted in the 1980s. We are bringing ourselves into alignment not that long, broadly speaking, after the rest of the United Kingdom, and I hope that we will be able to make that progress today. My noble friend is also correct in looking at how the reorganisation has worked in Northern Ireland. As the noble Lord, Lord Kilclooney, has also pointed out, we do not yet have enough information to be able to assess that accurately and in the detail which we would require, but we will have to do so to make sure there was some value in undertaking the revision and reconstruction of those particular wards.

I note also the points raised by the noble Lord, Lord Kilclooney, on how larger wards by their nature tend to create a greater distance between the individual constituents—if you will—and those who represent them. I was the former MEP for the whole of Scotland. Frankly, I was widely unknown everywhere in Scotland, but none the less I recognise that the shortening of the proximity between those who do the electing and those who do the response is a challenge. It is greater challenge for those with a larger constituency, particularly if that constituency is a rural one where there will, by its nature, be greater challenges. I accept that on the whole.

My noble friend Lord Cormack is right, as the noble Lord, Lord Murphy, has also pointed out, that we should use every opportunity to flag up where we are on the wider question. Two weeks ago, I hoped to be able to report on greater progress from the first meeting of the political parties in Northern Ireland. I was disappointed that I could not do that at the time. My right honourable friend the Secretary of State for Northern Ireland continues to meet them, and we are hopeful that we will be able to bring about the gathering which needs to take place as a precursor toward establishing the Assembly in a meaningful way with an Executive drawn therefrom.

We have not yet made that progress, but in truth we will have an opportunity to look at this in greater detail when the Executive formation extension element moves the deadline of 26 March to five months hence. I will bring back that very point to your Lordships’ House for a full debate. We can open that window of a further five months only if we have progress to report. Otherwise noble Lords will legitimately ask us, “What has changed? Why can we move forward at all?”. Noble Lords will say that to me, and I hope to bring forward on that occasion far more detail than I will give them today. At that point, I will explore exactly what we have done to try to bring those parties together.

There is no point in pretending that Brexit is not a part of it—I would sound very foolish if I pretended that—but we have to recognise that we are where we are, and it is against that backdrop that we must make progress. We do not get to choose the timing of these issues; we have to work with what we have before us.

I thank the noble Baroness, Lady O’Neill of Bengarve, for raising the important report, which I have read in part. The issue of transparency is absolutely at the heart of Northern Ireland. There needs to be that confidence, which is why the point of the noble Baroness, Lady Harris, needs to be made; we need to have confidence not just in going forward, but also in the past. We need to have that. We need it as quickly as I can bring it back here, and I will bring it back here as quickly as I can.

I am conscious that the noble Lord, Lord Murphy, flagged up an important debate next week on the wider budget, and we will have longer to discuss in some detail the functioning of the Northern Ireland Civil Service and the delivery of services, and each of the challenges which go with it. I know that we will have a thorough discussion on that occasion.

The restoration of the institutions is important. My noble friend Lord Cormack asks, “Why cannot the Assembly meet again? At least get one of the institutions sitting to explore these issues”. I will take that away again for further consideration, but I do not believe that it should be ruled out of hand. Every possible avenue needs to be explored at this point.

[Lord Cormack]

I am exceptionally grateful to my noble friend for what he has just said. Nobody is criticising him personally, but if, in the rather more substantive debate next week, he could report back specifically on that issue, I think we would all be extremely grateful.

[Lord Duncan of Springbank]

Yes; I will report back at greater length on that very point.

I hope, looking at my notes, that I have covered all the aspects. I thank all noble Lords for their support for the two changes themselves, which I believe will be important when they will be brought in. This will bring about a greater diversity in Northern Ireland; we need as many voices as we can possibly have in Northern Ireland, both at local government elections and beyond, when that moment comes. On that basis, I commend the order to the House.

Motion agreed.

Northern Ireland (Ministerial Appointment Functions) Regulations 2019

Lord Duncan of Springbank Excerpts

Monday 18th February 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Regulations laid before the House on 9 January be approved.

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

My Lords, this Government are committed to the Belfast agreement. At the heart of that agreement is devolved power-sharing executive government. Restoring the Executive remains our priority. Northern Ireland needs the political institutions of the Belfast agreement and its successors to be fully functioning. However, in the absence of devolved government, the UK Government must ensure the maintenance of good governance and public confidence in Northern Ireland.

In November last year, my right honourable friend the Secretary of State for Northern Ireland brought forward legislation which, among other things, addressed the need for urgent appointments to be made to a number of public bodies. The initial phase of appointments under the Act has enabled the reconstitution of the Northern Ireland Policing Board, which recently met for the first time in its fully constituted form. This has also allowed: the recruitment of a new chief constable for Northern Ireland to be initiated; the replacement of the outgoing chair and board members of the Probation Board; appointments to the Northern Ireland Judicial Appointments Commission; and the initiation of a recruitment process to appoint a new Police Ombudsman for Northern Ireland.

Under the 2018 Act, the Secretary of State also committed to make further appointments that are required in the absence of an Executive. The purpose of this instrument is to specify which further offices require appointment. In preparing this instrument, my officials have worked closely with the Northern Ireland Civil Service to identify those critical appointments that will arise soon. This instrument would add to the list in Section 5 of the Act, enabling the Secretary of State, as the relevant UK Minister, to exercise Northern Ireland Ministers’ appointment functions in relation to the following offices: the Northern Ireland Commissioner for Children and Young People; the Northern Ireland Local Government Officers’ Superannuation Committee; the Northern Ireland Housing Executive; the Attorney-General for Northern Ireland; the Livestock and Meat Commission for Northern Ireland; and, finally, the Commissioner for Victims and Survivors. These are important offices for which the exercise of appointment functions in the coming months is vital for the continued good governance of Northern Ireland. I beg to move.

[Lord Empey (UUP)]

My Lords, the Minister has brought forward a further list of appointments to public bodies. Although I have no objection to those in principle, I want to put on the record the difference between the Government’s approach to, say, the appointment of a member of the Livestock and Meat Commission and to an issue which I have raised in this House many times: the mess and crisis in our health service. Is the Minister aware that, against a target of 95%, only 62% of patients are being dealt with in emergency departments? The comparable figure in England and Scotland is 89%. English doctors recently put out a statement saying that they believed people were dying as a direct result of those figures. Yet our figures are infinitely worse and are getting worse every quarter. Time and again I have raised the more than 280,000 patients waiting for consultant-led appointments. Nearly 100,000 of those are waiting for longer than 12 months.

The Minister has said that his right honourable friend in the other place is taking the initiative and that meetings with the parties have been called. I welcome that, although it does seem somewhat ill prepared. We are a few weeks before a set of elections, so whether we can expect a positive outcome is open to question. The Minister will also shortly be returning to this House with further pieces of legislation, including a budget for Northern Ireland—the third one that the Minister has proposed—even though there is now no prospect of using the former Executive’s spending plans as a template because they are so out of date. He will also be coming forward with the second portion of the legislation under which this set of appointments has been made, because it has to be looked at again after five months.

There is a set of priorities here, but the priorities coming from the Government seem to be the wrong ones. I would have thought that people’s lives and welfare were a higher priority than some of the things in these regulations, albeit that I am for them. I have no objection to them, but they are being done against a background of hoping that if we pull the blankets over our heads the problem will go away. It will not. The Minister may find that in the talks that are being initiated next week, I believe, we will all be proved wrong, a massive amount of good will will flow and we will get devolution back—I hope that that takes place. If I am not surprised and pleased by that—if we find that it is not the case and things drift on—what will the Minister and his colleagues do? Are they just going to leave these health figures to get worse and worse, or are we actually going to do something?

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, this debate has been short but important. This statutory instrument is not about Brexit. It is not a dry, uninteresting, bureaucratic instrument that needs to be passed on the nod—although of course we on this side will support it. But it is symbolic of what is wrong in Northern Ireland. Of course, the instrument is important; these ministerial appointments must be made, otherwise things in Northern Ireland will go wrong—so I repeat that we will support it.

Government and democracy in Northern Ireland have collapsed because of the absence of the institutions of the Assembly and the Executive. There is no representation of nationalism in either Chamber in Parliament. The Assembly does not meet and has not done so for more than two years. Of course, as the noble Lord, Lord Lexden, said some months ago, that means that the only people operating in Northern Ireland are members of local authorities, which have very limited powers. So Northern Ireland is the least democratic part of our United Kingdom—which is ironic given that 21 years ago we spent a great deal of time building up the Good Friday agreement to make Northern Ireland the most sophisticated democratic part of not only the United Kingdom but probably the world. That has also meant that decisions on important issues such as health and education are being made by civil servants. In effect, institutionalised bureaucracy is running Northern Ireland at the moment. It is a terrible state of affairs.

Worse, the absence of these institutions threatens the Good Friday agreement considerably. Over the past few months, we have argued that Brexit is a major threat to the agreement—which I believe it is—but this is a major threat, too, because central to that agreement was the establishment of the Assembly, the Executive and the north-south ministerial bodies. They were all agreed on in a very sophisticated peace process, but they have been gone for two years now.

One of the Brexit issues affecting this—a point which I think the noble Lord, Lord Trimble, was hinting at—is that, had there been an Assembly or an Executive, it is likely that those bodies would have resolved the issue of the backstop, because nationalists and unionists would have come together to try to work things out. That is the purpose of the arrangements in Northern Ireland. What has occurred there is a tragedy. Every Member who has spoken in the debate echoes those sentiments and the need for the Government to change tack and become much more urgent in trying to restore those institutions.

Of course this is happening against the backdrop of the current Brexit negotiations. I cannot imagine the Prime Minister or the Taoiseach going to Belfast in the next few weeks when all these other things are happening. Incidentally, they could have gone there more frequently in the past; both Governments are to blame for the fact that they have not done so. Once again, Members of your Lordships’ House have referred to the need for an independent chair or facilitator, such as George Mitchell, and to the fact that proper all-party talks should take place, with every party represented there and a proper structure. Based on what we are seeing at the moment, there is even a case for taking the parties away somewhere like they did in the past, when they took parties to various parts of the United Kingdom and locked them up in rooms for weeks on end until they came to an agreement. These things can happen—it has been done before—but there seems to be no urgency in all this, even though there is a deadline, as there is for Brexit. Nothing is happening.

It is worth reminding the parties in Northern Ireland, including Sinn Féin—which is not represented in Parliament even though its members were elected to it—that by not having these institutions, they are breaking the provisions of the Good Friday agreement which people in the north and south of Ireland voted on. I hope that in a few moments’ time, the Minister will tell your Lordships’ House that we will make those ministerial appointments and also give us an indication of a change of direction, a greater sense of urgency and more structured talks to ensure that we make progress in Northern Ireland. If it does not happen, this drift will end in direct rule—and when you are in direct rule, it is the devil’s job to get out of it.

[Lord Duncan of Springbank]

My Lords, as with other debates on Northern Ireland, this is one of two halves. I will focus on the first half, which concerns the instrument itself and some elements of it, and then move on to the wider issues which have been raised.

My noble friend Lord Lexden asked a number of questions to which I will attempt to provide answers. The first thing to emphasise is that the appointments have been identified by the Northern Ireland Civil Service. The principal criterion for that identification was obviously timing. My noble friend is absolutely right to say that this should have been brought before the House earlier, but we have to bring all the measures together. I accept my noble friend’s first point and apologise to him: they should have come forward earlier.

The second point concerns when the broad functioning elements of the boards become, if you like, out of kilter with the membership. There needs to be a recognition of the balance of the members on the individual boards themselves. A number of the appointed chairs and vice-chairs have reached the end of their terms, which in itself creates the need to move forward. Some have indicated their intention to accept an extension, and that is the likely outcome. However, again, the key aspect has been identified by the Northern Ireland Civil Service, not by Ministers in the Northern Ireland Office. It is our intention to do so only as far as the legislation allows, in order to move the situation forward in that regard, following the detailed advice we have received. There may be other information I can provide and if so I will make sure that it is conveyed to my noble friend directly and shared more widely. I have no desire to keep secrets on this issue.

My noble friend is also correct to say that there will be others unless we resolve this matter. In answer to the question, “Which others?”, it will be all the others, frankly, unless we can get this moving. Every appointment will be done in this way until we actually have a functioning Executive. I am not trying to exaggerate the case or make it seem worse than it is, but that is the reality of where we are. Until there is an Executive, this legislation will allow us to move forward with each appointment that is required. While it is true to say that we may think that some are more important than others, all of them are important to the good functioning of governance in Northern Ireland, be it those I have iterated today or those that will be need to be iterated in the future, should we not make progress on an Executive. Perhaps that is a rather dispiriting answer, but it is the correct one.

Before I turn to the broader elements, I should say that I welcome the support of the House for the instrument, which is a necessary one and will help in the functioning of these bodies. I was anticipating a broad discussion, so perhaps I may say this. On Friday of last week all the parties gathered together in Northern Ireland. It was the first time that that had happened in more than a year and it was an attempt to move things forward in a fashion which would ultimately lead to the creation of a sustainable Executive. Noble Lords may have read about the outcome of that meeting. It was not wholly supported by the Sinn Féin party, which has made its points very clear in the newspapers, which your Lordships are more than at liberty to read. I was saddened to read those reports but they are a matter of public awareness. That is not good and there is no point in pretending otherwise.

The Northern Ireland Office had hoped that, using this, we would be able to see the steps which could be taken to bring about the very things that the noble Lord, Lord Murphy, has put to us. He mentioned the notion of an independent facilitator. Like my noble friend Lord Cormack, I do not like the term either, but I accept that it is one we are using at the moment. I also recognise the need to think outside the traditional, such as, “Let us always meet in the same office space”; rather, we should be thinking of new places. I had hoped that out of these gatherings a clear timetable would emerge to bring about those very things, and to be able to stand before noble Lords today repeating a Statement from the other place on what we all hoped would happen. We did not make the progress we had hoped for, and for that I am sad and sorry. That does not mean that we stop or that this is the end of the journey, but it has not led to the breakthrough I hoped to see. That is a simple statement of fact.

None the less, we cannot in good conscience fail to address the issues raised by the noble Lord, Lord Empey. He is correct to say that noble Lords will be seeing a bit more of me over the next few weeks, I am afraid, because I will be bringing forward further legislation. Not the least will be the Northern Ireland Budget, and I do not doubt that the noble Lord will make the points that need to be made on the health service, the wider education service and so on.

You might recall that this time last year, when I spoke of that Budget, I said it was getting ever more difficult to plot the trajectory from the point of the outgoing Executive and their spending ambitions to where we are now. It is getting considerably harder. Last year I said that that would be the last time I would make that point, and events have made a liar of me: it was not the last time. I hope the one coming will be the last time, but the noble Lord rightly raises his eyebrows, and I take that on board. There is also the issue of the five-month extension window, anticipated in the Act of last year, within which we can look at delivering the Executive. The noble Lord, Lord Empey, is quite correct that that will necessarily have to be brought forward in the next few weeks as well. He is right to flag these things up.

I struggle to find new ways to tell noble Lords the same thing. I do not wish to sound complacent as I do so, but finding new ways to say this is proving difficult. Ultimately, the only way we will be able to move this forward is for the parties themselves to recognise the need for progress. Until that happens, the Government themselves will be unable to create the “eureka” moment. It is not wholly in their gift.

[Lord Bruce of Bennachie]

The Minister is making a powerful and practical point, but why cannot the Government proceed with some kind of independent mediator? Exactly as others have said, the perception of a Government who are parti pris does not help and makes it much easier for Sinn Féin to do and say the things it does. I am not naive—I am not saying that it would not say that to an independent mediator—but why are the Government finding it so difficult to move forward on that?

[Lord Duncan of Springbank]

The noble Lord is right to raise that point. There are only so many times I can talk about the box metaphor and thinking outside it before noble Lords become tired of that. We had hoped, through those discussions last week, to get some coherent agreement on moving things forward on that basis, and we were not able to do so. We now have to think afresh. We have to think whether that can be done without the support of all the parties involved. These things need to be thought through again. I am not trying to postpone answering the noble Lord’s question, but I am aware that we have not been able to resolve it in the fashion I would like. That remains at the heart of the problem.

[Lord Lea of Crondall (Lab)]

My Lords, I hope I will be forgiven for reverting to a point made five minutes ago: the DUP being the only actor in London on the backstop question. Many other things could have been said and could have led to more constructive engagement if there had been discussions on that question between all the parties in Northern Ireland. I do not know what the agenda, the scope or the protocol was for last week’s discussions, but is it not rather intriguing that such a remark can be made at this critical moment without putting any flesh on the bones of that scenario?

[Lord Duncan of Springbank]

The noble Lord, Lord Lea, raises a slightly cryptic question, and I am not wholly sure I can answer it in the manner I would like. The UK Government, Ministers and civil servants have been engaged in a series of bilateral discussions with all parties—it has been ongoing for quite some time—to find the means by which we can bring people into the same room to have appropriate discussions, out of which will emerge the structures and necessary elements for talks that will lead to the formation of a sustainable Executive. That is not a secret; that is our ambition—it always has been—and we have been doing it for quite some time. It is appropriate to put the point that the noble Lord, Lord Murphy, made at the end of his speech, which the noble Lord will perhaps accept as an answer of sorts. Had there been a fully functioning Executive and an Assembly discussing the Irish backstop, they may well have come up with an answer. Just let that sink in. But for many different reasons, the political parties in Northern Ireland have not been able to find the right means whereby the Executive can be restored, and that voice has been silenced. There is no point in pretending otherwise.

There has been debate in Northern Ireland; it just has not been taking place in Stormont. There has been serious engagement, but mostly through the pages of the media. Politicians have been involved, but not sitting in a forum such as this where they have a particular, structured debate. So voices are being raised, but the Executive themselves and the function they represent have been missing in action. When the history books come to be written of this moment, I do not doubt that a great omission in Northern Ireland will be seen, especially on the issue of the backstop. Above all others, this is the time when we need a fully functioning Assembly and Executive in Northern Ireland to thrash out, backwards and forwards, all the issues.

[Lord Lexden]

Is there any reason why all the parties should not be brought together specifically to discuss the backstop?

[Lord Duncan of Springbank]

That is an interesting issue. I suppose the question is whether they are brought together in the form of an Assembly, which has certain logistical elements, or in a different configuration. I would like to see the parties brought together to have a serious discussion on the backstop, now more than ever. This is the time when we need to make sure that the voices of those people who live in Northern Ireland, for whom the border is a real issue, are heard. Far too many experts on Northern Irish issues have suddenly appeared over the past few weeks and months—which has been somewhat resented, I think, by the people of Northern Ireland.

[Lord Cormack]

I do not want to labour the point, but surely what my noble friend has just said illustrates the good sense of getting the Assembly together. It could be done. That could be the item on the agenda. It cannot put us back, but it could possibly take us forward.

[Lord Duncan of Springbank]

That is constructive advice, as indeed all noble Lords have given today. I will take it away and make sure that it is heard by those who need to hear it. I would dearly like to make progress on that; I am tired of giving the same speech over and over again, and noble Lords are tired of hearing it. If we can get to the stage where we can move on to new ground and new issues—where we simply applaud the good governance in Northern Ireland—what a great step forward that would be. The noble Lord, Lord Empey, would stop raising his eyebrows at me when he mentions health issues, and I would be much happier in those moments. However, here we are—again.

I was trying to find a way to describe the events of Friday. It was not easy to find a positive way to do it, but I did find one way, which noble Lords may or may not find useful. Many noble Lords will be of an age that they can remember Angela Lansbury in her prime in “Bedknobs and Broomsticks”. She sang a song—

[A noble Lord]

Sing it!

[Lord Duncan of Springbank]

I will.

“After all it’s a step in the right direction


It’s a step in the right direction after all”.

The rest of the song, I will not sing. I merely note it is a reminder that even small steps, as long as they are taken in the right direction, can make us go forward. I hope that the step taken on Friday is a small step in the right direction and will lead to some serious movement.

I must return to the matter at hand: the regulations. I have a form of words that I have to say—I have it in a bundle somewhere.

[Lord Empey]

While the noble Lord is looking for his music score, I will say that it is good that we can have a moment of humour on an issue like this. But the question was asked about the backstop and the role that Northern Ireland could play. When we asked what input people from Northern Ireland would have into the whole Brexit debate, we were told repeatedly that there would be consultations and so on. It did not happen that way.

In my view, instead of the Belfast agreement being used as an obstacle, parts of it could be the solution. The noble Lord, Lord Wigley, referred to the other parts of the agreement. We are forgetting that the agreement is a complicated mixture. Even at this late stage in the process, I ask the Minister: what alternative thinking is going on in the NIO as to how we might replace Stormont? I have not had an answer to that, either today or on other occasions when it was raised. The bits and pieces of the jigsaw are all on the table, but nobody is putting them together in the right way.

Trade flows across the Irish border represent 0.1% of European trade flows. How is it that, as a nation and as a continent, we are in such a state over that when we are ignoring the very institutions that are a part of the solution? Will the Minister reflect on this and consult with his right honourable friend in the other place? Perhaps he should serenade her, as he has a talent for it.

[Lord Duncan of Springbank]

I thank the noble Lord for giving me a moment or two to find my place in my notes and for the reminder that these are serious issues. He is correct, I did not give him an answer to his question. He will be aware that I was not able to find the right answer to give—and that is part of the challenge, to be frank.

I am also aware that I have not appropriately answered the question of the noble Lord, Lord Trimble. I will reflect upon that, come back to him on it and share the answer more widely with other Members of the House. I am conscious that the noble Lord, Lord Wigley, made the point about seeing this not simply through the lens of Northern Ireland but through a broader sense of the devolution settlements. He is absolutely right. We cannot lose sight of that fact, either.

However, I have found my form of words, which are: I beg to move.

Motion agreed.

Northern Ireland: Devolution

Lord Duncan of Springbank Excerpts

Thursday 14th February 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 repeat in the form of a Statement the Answer given by my right honourable friend the Secretary of State for Northern Ireland to an Urgent Question in the other place. The Statement is as follows:

“As the House is aware, the Government remain steadfastly committed to the Belfast agreement and its successors. I am continuing to work tirelessly towards my absolute priority of restoring fully functioning devolved government in Northern Ireland. This is a very sensitive matter that requires careful handling.

I last updated the House at my department’s Oral Questions on 30 January. I have no further update at this stage, but as soon as I have anything to add, I will of course come to the House at the earliest opportunity. I hope that will be soon”.

[Lord Murphy of Torfaen (Lab)]

My Lords, the failure to restore the political institutions in Northern Ireland is a catastrophe. It is catastrophic for the people of Northern Ireland, British-Irish relations, the Good Friday agreement and Brexit. Had the Assembly and the Executive been restored, between them they could have dealt with the backstop issue. I ask the Minister, and hope he answers positively: is there a plan to deal with the restoration of those institutions in the coming months—a plan that would involve the Irish Government, of course, through the British-Irish Intergovernmental Conference; a plan that might well ask for an independent chair for the talks, such as George Mitchell; and a plan that also involves all the political parties coming together round the table in Stormont to try to resolve these issues? If we drift any longer, we will jeopardise both the peace and the political processes in Northern Ireland.

[Lord Duncan of Springbank]

The noble Lord makes valid points, as would be expected from someone of his experience. He is correct to use the word “catastrophe” in his description of the situation in Northern Ireland. The voices of that Province have been silenced during this important time, not least in the Brexit process but elsewhere as well. He asked the important question of whether there is a plan. Yes, there is. My right honourable friend the Secretary of State for Northern Ireland has been working to bring together all parties, representing all parts of the community. As we have said in the past, we have not taken off the table any suggestion of an independent chair to facilitate what I hope will be ongoing discussions. During that period which we have opened up to deliver a functioning Executive—which, noble Lords will recall, closes on 23 March—we hope to make progress.

[Lord Bruce of Bennachie (LD)]

My Lords, the absence of the Assembly in Northern Ireland has disastrously aggravated the polarisation of politics in the Province, as Assembly Members have simply retreated to their own communities and disengaged from the political process. Does the Minister recognise that there is now a requirement on the UK Government to take a positive initiative to try to bring people back into the political process—for example, by reconvening the scrutiny committees and by appointing an independent mediator who can bring the parties together to find a solution—and in the process perhaps releasing the Government from their captivity by one minority party in Northern Ireland?

[Lord Duncan of Springbank]

I assure the noble Lord that we are not held captive by any party in Northern Ireland.

[Noble Lords]

Oh!

[Lord Duncan of Springbank]

I say that because we cannot be; this is too important. We are now at a critical stage of making sure that we are able to bring the parties back together. As I said in answer to the previous question, I do not doubt that we have missed the valuable voices from that area. It is important that we use the time which we have now before 23 March to demonstrate that we have through our work delivered an outcome which is bringing the parties back together. Whether we are able to achieve a fully restored Assembly before that point remains to be seen, but your Lordships will recall that there is a second five-month window if we have made sufficient progress in the first five months. Bringing back sustainable government to Northern Ireland remains the steadfast policy of this Government.

[Lord Browne of Belmont (DUP)]

My Lords, no Assembly or Executive has been in place for more than two years, but there is a real desire in both communities to restore them so that vital services such as housing, health, education and policing can be effectively delivered. Does the Secretary of State have any new initiatives to bring both or all the parties together so that we can have this restoration, or are we travelling fast down a road to the appointment of direct-rule Ministers?

[Lord Duncan of Springbank]

We are not travelling fast down a road toward direct rule, but it remains one of the options if we are unable to deliver what we believe is the most important outcome: a sustainable Executive. Good governance is clearly the most important aspect of this whole function. On whether my right honourable friend the Secretary of State for Northern Ireland has initiatives, she has been actively and tirelessly engaged in discussions to try to bring about the early stages of these talks. It has not been easy, but I hope that we will have some progress within the period—I want to correct myself from earlier: it is 26 March and not 23 March. Forgive me.

[Lord Bew (CB)]

My Lords, yesterday in the other place the Secretary of State said that on 26 March the context changes. One respect it changes is the possibility of calling an election. The Secretary of State has talked quite a lot recently about a border poll and has successfully annoyed the DUP on that point. However, rather oddly, since the Brady amendment was passed, the DUP and the Government are in the same place as to the way forward in Northern Ireland. Does the Minister accept that one of the prizes if we move in any way successfully on the Brady amendment is that it opens the way for calling an Assembly election in a different context, in which there will clearly not be a hard Brexit? At this point, with the prospect of that, it is too risky, but does he accept that, after 26 March, if things go well in another sphere, serious consideration should be given to the calling of an Assembly election?

[Lord Duncan of Springbank]

I thank the noble Lord for his thoughtful contributions. There is a lot on in that week of 26 March and I am fully aware of how important it will be that we make progress before 22 March on the key aspect of delivering a functioning Executive. He is of course correct that after that point, if we have made progress and are moving through the Brexit process, the world will look quite different, and that is something that I hope will be to the positive endeavour of all the parties in Northern Ireland. He will be aware that the local government elections in May will represent the first test of public opinion, outside of polling, and may give some indication of exactly what we can expect in Northern Ireland.

[Lord Hain (Lab)]

My Lords, will the Minister accept that what I am about to say is not a criticism of him? I think we all agree, across the House, that he does an outstanding job. However, I have recently had discussions with leading members of the DUP and the Ulster Unionist Party, who told me in terms that the Secretary of State does not put creative ideas on the table for solving the impasse; that it is, in a sense, a dialogue of the deaf. I report to the House only what I have been told sincerely and out of frustration by those leading figures. Is there not a case—I say this with sympathy, having done the job—for the Secretary of State and the Prime Minister to be more proactive in cracking this problem? There is always a solution to impasses such as this through negotiations, as we showed over the years. There should be a very high-level summit and people should not be allowed to leave that summit until they have agreed a way forward.

[Lord Duncan of Springbank]

The noble Lord brings valuable experience to the discussion: I have welcomed many contributions from him in the past. I assure him that my right honourable friend the Secretary of State for Northern Ireland has been active. One of the challenges will often be that the activity is not seen: sometimes, like a swan on a lake, it is the feet under the water that are doing the flapping, rather than the bit above. That is probably not the best analogy I could have come up with—I am sorry about that. The point remains, none the less, that she is remarkably active in this area and we do have an opportunity up until 26 March. We must not lose that opportunity: she will be judged, as I will be judged, if we fail to deliver.

[Lord Cormack (Con)]

My Lords, I echo what the noble Lord, Lord Hain, said about my noble friend’s contribution. For two years now, he and his admirable predecessor have come to that Dispatch Box and said, “We do not rule anything out”, and “We are making progress”, but will he give me answers to two questions? First, many of us, including the noble Lord, Lord Trimble, have suggested that the Assembly could be called without having an Executive. Secondly, many people have said that it would be a good idea to have an independent adjudicator, and every time my noble friend has said, “We do not rule those things out”. Is it now time to rule them in?

[Lord Duncan of Springbank]

My noble friend is asking questions that are getting much more specific, which I welcome. On his first point, regarding the Assembly, we are now seeking to pull all aspects of the community together through bilateral dialogue, but we cannot lose sight of the fact that the Assembly is an entity that we will need to use in the future. On the question of a facilitator or an adjudicator, he is quite right that I have said many times that nothing is off the table. I do not want to repeat myself, because I will become tedious, but we believe that this aspect has a part to play. It may not be a part at the outset, but we do see that this needs to be part of our ongoing consideration.

[Lord Alderdice (LD)]

My Lords, in the past we found that when we dealt with the big political questions it was very difficult to get anywhere, but if we got down to some practical issues it was often possible to get engagement. I suggest that the Minister puts it to the Secretary of State that addressing agriculture and the agri-food business on a cross-border basis, and energy requirements, particularly electricity, are practical issues that do not frighten the horses and might provide a way forward for Her Majesty’s Government in engaging with the Irish Government, but with the backing of the parties in Northern Ireland, rather than with a completely non-functioning polity in the Province.

[Lord Duncan of Springbank]

The noble Lord is correct: it is very hard to climb a mountain in one step, we need to begin in the foothills. He brings up the issues of agriculture, food and electricity and I assure him that these are areas where we have had significant discussions, not least because they are directly affected by the outcome of the Brexit process—a needful, correct situation needs to be there after Brexit on these areas. We continue to look at this as being like doing a jigsaw by tackling the edges first before putting the pieces into the middle. That is what we are trying to do. I do not think that we can solve the big picture in one step, but we need to make sure that the right people are in the room to deliver the outcome that I know we all wish to see.