Northern Ireland: Executive and Assembly

Lord Duncan of Springbank Excerpts

Monday 25th June 2018 Lords Chamber

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

Northern Ireland officials maintain a regular dialogue with officials in the Northern Ireland Civil Service about the impact of the lack of devolution on Northern Ireland’s vital public services. That dialogue informs ongoing UK Government work as part of the Secretary of State’s commitment to ensure good governance and the continued delivery of Northern Ireland’s vital public services.

[Lord Dubs (Lab)]

My Lords, does the Minister agree that not having a functioning Assembly and Executive is detrimental to the interests of the people of Northern Ireland, who do not have a voice in the Brexit discussions, is damaging to the peace process, and means that key decisions are not being made? May I put this to the Government? Because the Government are so linked to one of the parties in Northern Ireland, they are not able to be a neutral umpire in this. Is it not time that they appointed an international figure of the same stature as Senator George Mitchell to bring the parties together and move the peace process onwards?

[Lord Duncan of Springbank]

My Lords, the answer to the first part of the question is yes. It is long overdue, and we need a fully functioning Executive for the very reasons raised by the noble Lord. Right now, we have two parties who are inching closer to some of sense of being back in the room. That is how we are making progress—not that we are getting an outcome from the room; we are just trying to get them back into the room. We will close off no doors in trying to ensure that we bring them back to the table and that they leave the table with a fully functioning, sustainable Executive.

[Lord Lexden (Con)]

How much additional funding will be supplied to the health service in Northern Ireland as a result of the Government’s 70th anniversary boost to the NHS, and who will be responsible for determining how that money is allocated within the Province?

[Lord Duncan of Springbank]

There will be a significant increase in the funding for the National Health Service in Northern Ireland. It has been deemed one of the areas that requires significant investment. To ensure that money is spent wisely, we will be relying on the Civil Service of Northern Ireland. I would much prefer that the answer to the question was not the Civil Service but rather politicians. If my noble friend will permit it, I will give him the exact figures in a written response.

[Lord Faulkner of Worcester (Lab)]

My Lords, the Minister will know that one of the sticking points for an agreement is the status of the Irish language. Is he not able to point out to the DUP that as minority languages are accepted as equals in Scotland and Wales, there is absolutely no reason why the Irish language should not be accepted in Northern Ireland?

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, if the answer was as simple as that, we might have been able to achieve some progress by now. Unfortunately, it is a little more nuanced and a little trickier, but I am fully aware that both sides recognise the value and vitality of the languages in the Province of Northern Ireland.

[Baroness Suttie (LD)]

My Lords, only 7% of pupils in Northern Ireland are currently in integrated education. In the absence of an Executive, what is the Government’s strategy on delivering new integrated schools? Does he agree that moving away from segregated schools plays a significant role in helping society move on from the past in Northern Ireland?

[Lord Duncan of Springbank]

The noble Baroness is right to raise such an important issue but, of course, this is a fully devolved matter. It should not be the Government of the United Kingdom who seek to impose such changes on the school structure in Northern Ireland. None the less, Northern Ireland’s Executive must grapple with these issues when they resume their role.

[Lord Hylton (CB)]

My Lords, political parties and Members of the Northern Ireland Assembly have failed to agree on devolution and power-sharing. Will the Government now consult the elected Northern Ireland MPs to see whether they can find a way forward?

[Lord Duncan of Springbank]

The Government are speaking to one and all in an attempt to reach that magical moment of bringing the key parties back to the table. No party can be left out. We shall listen to all who have something to say.

[Baroness Blood (Lab)]

My Lords, the Question asked was about the effect on the people of Northern Ireland. The Minister has just answered by saying that civil servants are civil servants. We have a practically non-functioning Civil Service in Northern Ireland, and an almost invisible Secretary of State. When will they ask the people of Northern Ireland about the effect that is having?

[Lord Duncan of Springbank]

I cannot give enough praise to the civil servants in Northern Ireland, who have been asked to stand above and beyond what they are expected to do. They are in regular dialogue, and we are in regular dialogue with them. The key issue now is that it does not matter how much dialogue you have, if you do not have a functioning Executive, what you hear cannot be taken forward in a meaningful way, and that silences the voice of the people of Northern Ireland.

[Lord Hayward (Con)]

My Lords, while acknowledging that progress is difficult without a functioning Executive and Assembly, will my noble friend take the opportunity to welcome the fact that some progress can be made: for example, the decision of Arlene Foster to meet LGBT representatives later this week?

--- Later in debate ---

[Lord Duncan of Springbank]

Yes, that is quite extraordinary. It is the beginning, not the end, of a journey. I shall be joining Arlene Foster in meeting them in Belfast on Thursday evening.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister is always an emollient voice on these issues, but we are in a serious situation. The courts have already made a judgment that civil servants exceeded their authority in decisions made. We have had the hyponatraemia case, which was a public inquiry that I set up in 2004. It did not report until 2018, and we do not know how many, if any, of the inquiry’s 96 recommendations—following the deaths of five children—will ever be implemented, because it has not been considered by elected representatives. We have the issue of abortion for victims of sex crimes and in cases of fatal foetal abnormality, and we have Brexit talks where there is no one from the Northern Ireland Executive representing Northern Ireland, although we have someone from the Scottish Executive and someone from Wales. How much longer can this be allowed to go on? More importantly, how many other cases and examples are there where Northern Ireland is suffering and not functioning because of a lack of elected representatives taking the positions they were elected to perform?

[Lord Duncan of Springbank]

I can be very frank and say that Northern Ireland will be suffering in the absence of an Executive; of that there can be no doubt. It is not for me to try to work out what is happening in the Province of Northern Ireland; it is for the elected representatives, who listen to the voices of Northern Ireland, to move forward. The issues raised by the noble Baroness are absolutely correct: there needs to be a voice for the political communities of Northern Ireland inside Brexit. The Government do all we can to reach out to all those elected parties, but there is no functioning Executive. Until we have that, we cannot make the progress required for the people of Northern Ireland. The noble Baroness asks how long we can go on. The reality is: not much longer.

Scotland: European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Thursday 14th June 2018 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 shall now repeat a Statement made by my right honourable friend the Secretary of State for Scotland in the other place. The Statement is as follows:

“I would like to make a Statement on the operation of the Sewel convention and its application to the European Union (Withdrawal) Bill in relation to Scotland. Mr Speaker, these are serious times and serious issues. I have come to the House today with respect and ready for constructive debate, and I hope that is the spirit of all sides.

Lord Sewel set out a commitment in 1998 that there should be a parliamentary convention to recognise that when the UK Parliament legislated in a devolved area it would,

‘not normally legislate without the consent of the Scottish Parliament’.

Throughout the passage of this Bill, the Government have demonstrated their commitment to the Sewel convention and the principles that underpin our constitution. We have followed the spirit and the letter of the devolution settlement at every stage.

The European Union (Withdrawal) Bill is about ensuring that the whole of the United Kingdom has a functioning statute book on exit day. It is about providing legal certainty to businesses and individuals up and down the country. From the outset we have been clear that, as a result of the UK’s exit, we would expect to see a significant increase in the decision-making powers of the devolved institutions. We have made it clear that exit would provide the opportunity to bring powers home from Brussels, not just to the UK Parliament, but to all of the legislatures of the United Kingdom. We must remember that the powers in question were handed to the European Union through our membership in 1972, long before devolution existed in Scotland. Exit was neither anticipated nor provided for in the Scotland Act or the structure of the devolution settlement. So it is certainly fair to say, as Mike Russell, the Scottish Government’s own Brexit Minister has said, that these are not normal times.

Nevertheless, we have sought to respect the devolution settlements at every turn and recognised the strength of feeling across this House, as well as within the devolved Administrations, that the original measures set out in the Bill did not meet aspirations. No one could deny this Government have come a long way from that original position. Discussions have been conducted at multilateral level through the JMC (EN) and the JMC (P) chaired by the Prime Minister, bilaterally between Administrations, and extensive official level engagement—and we have made significant changes to the Bill. These changes enabled the Welsh Labour Government to gain approval, and to gain approval of the other place.

These changes have seen the original clause turned on its head. Now, all decision-making powers returning from the EU that intersect with devolved competence will pass directly to Cardiff, Edinburgh and Belfast, unless explicit steps are taken to temporarily preserve an existing EU framework. The intergovernmental agreement underpinning the new clause set out how those steps should be taken, with an emphasis on collaboration and agreement. Together, this means we are emphatically delivering on our commitment to give significant further powers to the Scottish Parliament. The clause also provides in certain limited cases that the current arrangements we have under the EU will remain until we have implemented our new UK-wide frameworks. I want to stress that we have already agreed with the Scottish and Welsh Governments where this temporary preservation needs to be considered. The Governments are agreed that ‘freezing’ areas is likely in just 24 of the 153 areas of powers returning to the UK from the EU.

To anyone who has sought to present this as seeking to take back powers that the Scottish Parliament already has, I repeat again here that the Bill includes a specific provision that makes it clear explicitly that no decision-making powers currently exercised by the Scottish Parliament can be taken away. These amendments strike the right balance between ensuring that exit results in increased decision-making powers for the devolved legislatures, while continuing to provide certainty about how our laws will operate and protecting our internal market, a market so vital to Scotland’s businesses.

These amendments do not, and cannot, go as far as the Scottish Government want, because the Scottish Government want a veto over arrangements that will apply to the whole of the United Kingdom. However, as the noble and learned Lord, Lord Wallace, the former Deputy First Minister of Scotland set out when the Bill was being debated in the other place, that was not part of the original devolution settlement.

Our approach also helps to ensure the continued integrity of the UK internal market, which is so vital to people and businesses in Scotland. At every stage, the SNP has disregarded the need to preserve this market and ensure that there are no new barriers to working or doing business in the United Kingdom. The UK internal market is worth over four times more to businesses in Scotland than is EU trade, and we must make sure that it is preserved as we leave the EU.

We have reached a point now where, as the Welsh Labour Government have stated clearly, these arrangements reflect and respect how the devolution settlements operate. The devolved legislatures will have a formal role in considering where existing frameworks need to be temporarily preserved. That is what we have delivered. However, Scotland has two democratically elected Parliaments, and it is only this Parliament, the United Kingdom Parliament, that can speak for the United Kingdom as a whole. It is deeply regrettable that the First Minister of Scotland, Nicola Sturgeon, and her Government were unable to sign up to the compromise solution brokered by her and our officials and the officials from all the Administrations working together. However, as we all know, you can only reach agreement in a negotiation if both sides actually want to reach agreement.

The Scottish Government’s position from the outset was that they would be content with nothing less than a veto. However, such an unreasonable position would fundamentally undermine the integrity of the United Kingdom internal market. This would harm business in Scotland and the rest of the UK. Despite the numerous attempts to find compromise, and the fact one was reached with the Welsh Government, the SNP position has not changed. As a result, this Government, who represent the whole of the United Kingdom, could not responsibly accept their position.

We are now therefore faced with the reality that the Scottish Parliament has not given consent for this critically important legislation that provides certainty across the United Kingdom. This is not a situation any of us would have chosen. It is not, however, a crisis; nor is it unforeseen. While the devolution settlements did not predict EU exit, they did explicitly provide that, in situations of disagreement, the United Kingdom Parliament may be required to legislate without the consent of the devolved legislatures. In any situation, agreement is our aim, and we will continue to seek legislative consent, take on board views, and work with the Scottish Government on future legislation just as we always have done.

We on this side of the House have compromised. We have made every effort to reach agreement, and we have sought consent. Now we are legislating in line with the Sewel convention to ensure that the whole of the United Kingdom leaves the EU with as much legal certainty as possible. That is what the people and businesses in Scotland need”.

My Lords, that concludes the Statement.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for repeating the Statement. This House debated the vital issues of devolution over a number of hours and days during the passage of the EU withdrawal Bill. I pay tribute to noble Lords on all sides of the House for interrogating the Government on the issues with care and a wealth of knowledge. This House agreed a package of amendments to be sent back to the other place for their careful consideration. It is, frankly, remarkable that the Government provided less than 20 minutes for the elected House to debate the proposals in front of them on issues as fundamental to the union as devolution and the future of the Northern Irish border.

When this House gave the Bill its Third Reading, we expressed our regret at the absence of a legislative consent Motion from the Scottish Parliament and our hope that the UK Government would convene cross-party talks with the Welsh and Scottish Governments to look at ways forward. We are informed that requests for such talks, including by the shadow Secretary of State for Scotland, have been declined. This is, at the very least, disappointing.

The Government did not give enough thought to devolution in their drafting of the Bill, as in many other areas, and brought forward a flawed piece of legislation. The Government’s own Ministers conceded this point. A great deal of time and debate went into trying to address problems which are in part of the Government’s own making. It is unreasonable, at the next stage of that process, to claim that there is no time left for the other place to have a full debate on the new Clause 11 that it was promised.

We have repeatedly asked the Government to think more carefully about the devolution settlements, and the place they have in upholding our union and shaping the future of the Brexit negotiations. Are the Government actively considering Her Majesty’s loyal Opposition’s calls for the Joint Ministerial Committee to be put on a statutory footing, and have the minutes of its meetings published? We have a situation and there has to be a discussion, agreement and consensus, and I hope that the Minister can provide some hope in that quarter.

[Lord Wallace of Tankerness (LD)]

I thank the Minister for repeating the Statement. I am not sure whether to thank him for the name check, which was a fairly broad interpretation of a somewhat more complex legal point. However, clearly, the Statement was made in the other place in response to the failure to have an adequate debate on the Lords amendments and following on, too, from the stunt of the SNP walking out yesterday. However, anyone with even a limited knowledge of Scottish politics knows that the SNP is a grand master at cranking up the grievance machine. Can the Minister therefore say why the Government gave them a gift-wrapped grievance to exploit?

We must also ask about the role of the Secretary of State for Scotland. Let us recall that he promised the House of Commons that amendments to Clause 11—which was, by that stage, completely discredited—would be tabled in the House of Commons on Report. That did not happen. I think there was some forbearance, when the Bill came to this House, because we took the view that, if time was needed to get these amendments right, then time should be taken. Indeed, we had good debates in Committee and on Report and even some further debate at Third Reading. But that was done on the expectation that Scotland’s elected Members, not just the SNP Members but those from the Conservative Party, Labour Party and Liberal Democrats—and indeed Welsh and Northern Ireland Members, because it affects their constituents too—would have a proper and adequate opportunity to look at these amendments. They are a total recasting of the devolved situation post Brexit and the Government must really answer why they did not arrange the timetable in such a way as to allow that to happen. We are entitled to ask whether the Secretary of State for Scotland made representations for the timetable to be arranged in such a way for there to be adequate debate. If he did not, he was derelict in his duty and, if he did, I ask the Minister what conclusions can we draw about the weight he carries within government in as much as these representations were overlooked?

If one goes to the substance of the Statement, it says that:

“While the devolution settlements did not predict EU exit, they did explicitly provide that, in situations of disagreement, the United Kingdom Parliament may be required to legislate without the consent of the devolved legislatures”.


It is of course the case that, legally, Section 28(7) of the Scotland Act 1998,

“does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

That is a statement of the sovereignty of the United Kingdom Parliament. Section 28(8) goes on to state:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.


As the Supreme Court found in the Miller case, it is a convention and, therefore, it is a perfectly legal position that the United Kingdom Parliament can legislate. Can the Minister indicate—it may be that he has not had time to look back at exactly what Lord Sewel said—whether Lord Sewel explicitly said, as was claimed in the Statement, that in some way this would be used as a form of dispute or disagreement resolution? I would quite like to know where this explicit reference to that came from.

We know that this particular Bill is a forerunner to agreeing frameworks. The principles of the frameworks for the United Kingdom were agreed by all parties at the Joint Ministerial Committee on EU Negotiations back in October. Can the Minister indicate what steps have been taken to put some meat on to the frame of these frameworks? Has the position that has been taken by the Scottish Government—indeed the Scottish Parliament—in any way hampered these discussions in recent weeks, both at official level and at ministerial level?

For my final point I just return to the issue of dispute resolution because, if we are going down the road towards UK frameworks, it is important that we have a better form of dispute resolution than taking the sledgehammer to what has happened in the meantime. We want to know what thought has been given by the United Kingdom Government, in discussion with the devolved Administrations, to ensure that there is far better dispute resolution than we have had to date.

[Lord Duncan of Springbank]

My Lords, I thank both noble Lords for beginning what I think is a very necessary discussion on the functioning of the Sewel convention. If I may—to go in reverse order—I will address the question of the frameworks themselves and their functionality, because I think this is where we need to focus our attention. These have been the subject of extensive engagement at an official level. If we add up the number of hours that have now been spent with officials examining each of those frameworks, we are in excess of 100 hours of meetings specifically to look at the functioning of the frameworks themselves. A phrase that comes to mind is: “officials are smiling on it”, which we always widely interpret as things are going quite well—but officials smiling is not the same as Ministers themselves signing it off. One challenge that we have often had is that what appeared to be agreement at the level of the officials—where examination on the detail of the frameworks themselves appeared to be reaching consensus and agreement—did not always match and meet the next step of making sure that Ministers themselves were able to sign that off. That has been one of the greater challenges that we have experienced because, again, this is without precedent. We are trying to establish how we can repatriate laws that we have not had functional control over, and trying to do so within a devolved framework, which of course did not exist when those laws were first moved from the United Kingdom Parliament across to Brussels.

In terms of the events in the other place, time was given, but it might be argued that time was misspent. A great deal of time was spent on a number of elements in discussion, thereby precluding serious engagement on these specific aspects. There needs to be some soul-searching across a number of parties as to how it ended up that way. I do not think that we in this place—or indeed those in the other place—can legitimately say that there has not been substantive engagement on the devolved clauses, Clauses 11 and 15, on many different occasions, both here and through the various forums that exist for officials and for Ministers to examine them. There has been, I suspect, on this clause alone, more correspondence, engagement and meetings to try to bring about the necessary agreement. Clearly, we were able to secure that agreement with the Welsh Administration but not with the Scottish Administration.

The noble and learned Lord, Lord Wallace, raised the point that my right honourable friend in the other place said that he would bring agreed amendments on Report, but the key part is “agreed”. In order to achieve that, the two sides had to reach agreement. It was not for want of effort that that agreement was not found. The reality is very simple: if you are unwilling to accept that there needs to be some form of concessions to seek that agreement, then you are simply not going to get it. At each stage when we thought that we had moved far enough to change the structure of the clause in such a way that we would be able to get support, we found that the goalposts had shifted slightly further away from us. Clearly, we were able to deliver the support of the Welsh Government, but we were never able to secure the support of the Scottish Government. Even though the officials—and indeed certain Ministers in the Scottish Government—believed that we had made enough progress, unfortunately, when it came to the final sign-off, that was simply not the case.

I take the point from the noble Lord, Lord McAvoy, about the JMC and how it shall work. There are examinations now about how we shall create structures that will necessarily address the changing environment and changing reality. How that will evolve is yet to be determined, but I take on board the points that he has made; it is useful for us to be part of that engagement. There will need to be cross-party engagement on the functionality of what, in effect, is a new constitutional arrangement—one that we are still writing. That is part of the challenge that we are living through right now; we have not yet signed off the final chapter of what this will look like. It is therefore quite difficult, in one respect, to determine exactly how we, as the Government, shall address that—my word, that is very unusual handwriting on the note just passed to me; I will read and speak to it momentarily, but not right now.

To conclude my remarks on this particular point, the important thing is that the show is not over. We are trying, and continue to try, to deliver the outcome that is right, but there needs to be an acceptance of agreement, which has to be based upon at least some acceptance of a concession. At the moment, the Scottish Government’s view on this is so didactic, specific and unmoving that, in essence, we are placed in the invidious position right now of taking a journey that we did not set out to take but which is facilitated within the law. As the noble and learned Lord, Lord Wallace, has said, the Sewel convention does allow for this particular approach under not normal circumstances. We do not want to be taking this journey at all, but we are and we must, because the key thing is that, on day one after Brexit, the statute book must work, not just here in London but in Edinburgh, in Belfast and in Cardiff.

[Lord Forsyth of Drumlean (Con)]

My Lords, might I begin by saying to my noble friend the Minister, “I told you so” that, when the then Scotland Bill said that the Government would “not normally legislate”, it would become a future source of dispute? We should not be surprised that it is being used in this way by nationalists who wish to break up the United Kingdom. Having said that, I congratulate my noble friend on the efforts that were made—which satisfied the Welsh Government but not the Scottish nationalists—in order to deal with this difficult issue. But how can we take seriously Scottish nationalists whose position is that the powers should remain in Brussels, when they say that it will be a power grab when those powers come back to the United Kingdom and in turn will be devolved to the Scottish Parliament? Indeed, when all the SNP MPs walked out of the Chamber of the House of Commons yesterday, it was symbolic. Their position is that their Members in the House of Commons should have no say on agriculture, environment, fishing and other matters, while the Government, by leaving the European Union, are creating that opportunity for Scotland to have its proper say and to maintain the United Kingdom single market.

Will my noble friend therefore perhaps get a bit on the front foot, and instead of apologising for the difficulties that have been created, make it clear to the country that what is going on here is a stunt by people who wish to break up the United Kingdom and turn everything into a constitutional crisis? In their desire to have more legislation, it might be pointed out how little legislation has gone through the Scottish Parliament. Indeed, the most recent legislation has been illegal, or certainly ultra vires, as determined by their own Presiding Officer.

What happened in the House of Commons yesterday was a stunt which was not in Britain’s or Scotland’s interest, and it was certainly not in the interests of those farmers and fishermen in Scotland who wish to have a say in how their own affairs are treated in the future through their Scottish Parliament in this United Kingdom Parliament.

[Lord Duncan of Springbank]

I thank my noble friend Lord Forsyth. It is fair to say that he can to a certain extent legitimately say, “I told you so”, and he forewarned that this would be an outcome. None the less, the Government did all they could, trying in every possible way to secure agreement with the Scottish and Welsh Governments.

The walkout yesterday was—daft. That is the word. It was a situation in which four SNP MPs had questions to the Prime Minister and they decided that they would walk out and not ask them. One of the poor souls had been trying since 2015 to put a question to the Prime Minister, and he walked out. It may take another three years or he may never put another question to the Prime Minister, and if you are to try to hold a Government to account, that is your opportunity to do it. At the selfsame time, it looks as if the Speaker of the other place was ready to have a debate on the very issues which the Scottish National Party was so aggrieved by, but of course that did not happen, because the members of the SNP were hotfooting it out to the television cameras to say how disgraceful it was that they were in that situation. It is regrettable and it was unhelpful to their own cause. I believe that we should have as much discussion as is required on the issues to ensure that nobody feels that they are being silenced, quietened or ignored. However, there are conventions in the other place which would have allowed for that discussion to take place, but they were squandered by individuals who perhaps did not believe that those opportunities were adequate for them and their purposes.

I accept the points raised by my noble friend about the powers themselves. It is difficult to reconcile the views of the Scottish National Party; it believes that Brussels can retain all the powers, but even if there is the slightest hint that the United Kingdom could in any way have any touch of these powers, that is somehow bonkers. The sanity of that is questionable—but perhaps that is not for me to question.

[Lord Thomas of Gresford (LD)]

May I say that it is unhelpful for the Minister to use language such as “bonkers”, “daft” and so on, as was the tone of the speech of the noble Lord, Lord Forsyth? There is a problem to be addressed. The use of the word “veto” is also unhelpful. That suggests that the ultimate conclusion should be that one of the four entities that make up the United Kingdom should be able to block the other three. Can the Minister say whether any thought has been given to qualified majority voting on issues in setting up the framework? I would have thought that the people of Scotland would, even if they did not welcome it, be prepared to consider a proposal that had the support of England, Wales and Northern Ireland. For example, if it were 3:1, perhaps the Scottish people would feel that their views would be overruled by a majority. However, the problem at the base of it all is that Scotland and Wales, even though they have agreed to the settlement, and Northern Ireland, fear that they will be overruled by English interests.

I know that Wales was happy to be within the EU frameworks because they applied across the whole of Europe to all the EU countries. Therefore there was a certain parity, without the domination of English interests over Welsh or Scottish interests at that time. But when you bring it all back to the United Kingdom and consider that the United Kingdom Parliament is also the English Parliament, there is concern and fear to be addressed.

I suggest to the Minister that instead of using emotive language, even though he is supported by members of his own party, he should approach the issue much more calmly and seek a mechanism that would be acceptable. If, ultimately, other mechanisms are simply dismissed by the Scottish Government, perhaps the Sewel convention can come to the Government’s aid and they can pass this legislation without the consent of the Scottish Parliament. But they are building up trouble, not merely by going ahead with this Bill without the consent of the Scottish Parliament but by using the language like “veto”, “daft” and “silly” that is being used on the Conservative Benches. I urge the Minister to be more temperate in his use of language.

[Lord Duncan of Springbank]

I thank the noble Lord for his words of advice, but Scots are renowned for telling it like it is, and I assure him that I moderated my language a great deal when I chose those words. What I saw yesterday was scandalous, and I think anyone who saw it would agree. It was a dereliction of a democratic role. That level of theatrics may play its part—I do not doubt that—but there are other things that should be done in the other place.

On qualified majority voting, in the United Kingdom we have a degree of asymmetry. Attempts were made by the other party to address this through regional assemblies within England, but that was simply not supported by the public will. It is not easy to accept in such a small island archipelago such as we are, where one nation is so dominant in terms of population, that we should somehow simply divide the land into four parts and pretend that each is equal and should be considered as such. That would not be easily done. I do not think that the Government today are ruling anything out, but we have to be realistic—something else the Scots are renowned for.

[Lord Wallace of Tankerness]

My Lords, if no one else is rising to speak—we still have 12 minutes—I will ask a question. The Minister said in response to the questions I raised that time was taken up by Divisions, but can he confirm as a matter of fact that the Government could have arranged the timetable, given that it happened over two days, so that the issues on what became Clause 15 were taken first and were not truncated in the way they were? It is also part of the Government’s own timetable that time for Divisions is taken account of. Can the Minister confirm that it was a matter of the Government’s own judgment that they did not put this item in a place where it could be properly debated?

[Lord Duncan of Springbank]

I thank the noble and learned Lord for that point. I can confirm that the Government could have adjusted it, had they been minded to do so. However, the problem was that they did not anticipate what happened as the votes began to dominate and consume the speaking time. Part of the dilemma that was faced was therefore that by the time this was recognised, the time itself had elapsed. I do not doubt that yesterday, had the Scottish National Party not left the building and had lodged their request for a debate, there would have been a debate on that very point to allow each of these issues to be aired adequately.

[Lord Forsyth of Drumlean]

My Lords, as Front-Benchers are apparently allowed to use Back-Bench time, and as there does not seem to be anyone else who wants to speak, perhaps I may ask my noble friend to elaborate on the efforts made by the Government to get the Scottish nationalists on side. Would he like to comment on the press reports which suggested that the negotiators on behalf of the SNP had pretty well crossed the line but when they went back to Scotland they were told by the First Minister in no uncertain terms that this was not acceptable? Does that not underline what is going on here, which is that the First Minister of Scotland, Nicola Sturgeon, faced with declining popularity in the opinion polls and declining support for an independence referendum, and faced with a party that thinks there should be another referendum next week, is basically trying to create a grievance and a row to stir up support? Does my noble friend agree that the Scots people are wise enough to realise how much of their economy depends on the single market of the United Kingdom and that they will have no truck with this kind of divisive behaviour on the part of the Scottish nationalists?

The noble Lord, Lord Thomas, suggested that we should use moderate language. If you are faced with people who wish to destroy your country and the economy in Scotland, which is where I live, you do not moderate your language; you speak up for the majority, whose livelihood depends on that economy. In short, will my noble friend tell the House just how unreasonable the SNP has been? Does he agree that it was never going to agree because it wanted this as a source of grievance for its wider agenda?

[Lord Duncan of Springbank]

I was told before I arrived in this House that we did not really do politics, but perhaps we do in this instance. I shall try to find the right way to address those very trenchant points. A number of hours were spent trying to bring about a quite challenging change—taking the devolution clause as constructed and literally inverting it. I do not think that the United Kingdom Government have had enough credit for doing something unusual, which was to take their own proposal and, before it was too old, turn it around to try to find that compromise. They did a great deal of work. The officials of all the Administrations worked tirelessly to produce what ultimately was enough to satisfy the Welsh Government. Indeed, when the Welsh Minister responsible left London at that moment, he believed he was taking back views which he could get signed off by the First Minister of Wales. It was anticipated that the Scottish Minister was doing exactly the same thing, but that was not to be.

The term “grand masters of grievance” used by the noble and learned Lord, Lord Wallace, perhaps has a certain currency. It is important here that during these difficult times we do everything we can to ensure that there is safety first—making sure that our laws work and that the laws that keep Scots within a union that functions well for them work immediately after Brexit. That is what we are trying to deliver. However, it is not wholly clear right now what the Scottish Government are trying to achieve. They are content to have the EU administer in all these areas but they are in no way content to allow even a temporary freeze to determine how a UK framework can be created to allow the same responsibilities and roles to be undertaken by the United Kingdom Government. They seem to be slightly unwilling to accept that the UK Government have any role at all in the governance of the United Kingdom, and that is an unusual position to be in.

[Lord Griffiths of Burry Port (Lab)]

My Lords, perhaps as a Welshman I may step outside the Scottish matrix just for a moment. Certainly the laborious process that produced the intergovernmental agreement and the tireless work of officials in securing that agreement has been well alluded to and needs to be repeated from this angle, too. However, the mechanisms that were evolved to take this whole matter forward have not yet been referred to in this debate. Let us remember that we have found methods of dealing with 129 out of 153 of the contentious areas, or the areas where there will need to be a joint approach to problem solving, and that work is going on.

The remaining 24 were, at this stage, considered to need more work on them. It was anticipated that that work would take place within these frameworks, and, as I recall, a modus agendi has been incorporated into the way that those talks and areas of discussion will take place. It will not be a case of matters being brought to an institution that has both English and British dimensions to it; within those mechanisms small numbers of people will represent the issues one at a time for each of the devolved areas. It is hoped that with those small groups agreements can be reached and ultimately brought to our Parliament. If agreement is not reached, a Statement has to be made to the House which will be debated and decided upon at that stage.

It seems to me that everything that could have been done in areas where we have no precedent to appeal to has been done. Certainly that was the opinion of the Welsh negotiators—I was with the First Minister of Wales this morning and that is certainly his position. We went back to Cardiff feeling that this was an honourable thing. The gloves were off, although of course we did not use the word “daft”. In Wales we would not do that, as we are a temperate nation. We reserve fisticuffs for the rugby field, where due justice is given to the Scots and the English in turn. However, there are mechanisms for solving these problems. They are part of the agreements that have been reached and they now deserve to be given a chance to work.

[Lord Duncan of Springbank]

I thank the noble Lord, who was very helpful, very constructive and very sensible. He is absolutely right that the discussions were honourable, and the gentlemen who left those rooms believed that they carried with them agreement on issues that would resolve the very things that we are discussing.

I should also make reference to the officials from Northern Ireland, who have taken on a role far beyond their expectations and beyond what, one might argue, could sensibly be asked of them. They have done so with an extraordinary commitment, which has been very welcome in those discussions.

The frameworks will be as described and they will need to function. A lot of assertions were made. Some newspapers that I read suggest that the Scottish Government will be unable to do anything at all in the area of agriculture for seven years. But that is not even close to being accurate, and this is a time for avoiding—to use temperate language—fake news. We should be able to get to the stage where we discuss things as they are.

In those self-same groups, there will be serious discussions about the functionality of the frameworks, but we should bear in mind that the frameworks now function within an EU context. How then will they be translated, tailored, trimmed and made more effective and more efficient in a UK context? Whether it is food labelling or pesticides—issues which, by their nature, are traditionally not particularly controversial—these things will be debated and will, I hope, result in the delivery of an approach that works for everybody in the United Kingdom. That is the key thing: ensuring that everyone in the United Kingdom emerges from Brexit in a fashion that gives them opportunities to develop without risk.

[Lord McNally (LD)]

My Lords, I rise for two reasons. First, there is every danger that the noble Lord, Lord Forsyth, will intervene again if any time is left. Secondly, I put to the Minister a saying that was beloved of an old mentor of mine, Joe Gormley of the miners’ union. He said, “Don’t build platforms for malcontents to stand on”—but I fear that that is exactly what the Government are doing. It has been mentioned a couple of times that there were cleverer ways of doing this than the way used by the Government. If we are to get through this properly, they have to avoid the elephant traps which those who have no wish to see this union preserved will put in their way.

[Lord Duncan of Springbank]

My Lords—

[Lord McNally]

I am still within the time limit and I think that the Minister will have time to answer, so he should take no notice of those sitting to his left. I will leave him with one thought that worries me. It is the Conservative and Unionist Party that is overseeing the greatest threat to this union—and that should give some pause for thought.

[Lord Duncan of Springbank]

It seems I have a wee bit of time to answer. The one thing that I will note is that it is always disturbing to go into negotiations to which people have brought with them elephant traps. You would rather hope they were going into them in a much more evolved and sensitive manner to try to reach some sort of consensus. Anybody going into negotiations packing an elephant trap is probably not there for the healthiest of outcomes. I think we have managed thus far to try as best we can to deliver an outcome that will work—indeed, we have done so for Wales. I think we did so for Scotland, too: it is the Scottish National Party and the Scottish Government who decided that that was not the case.

Northern Ireland: Supreme Court Ruling

Lord Duncan of Springbank Excerpts

Thursday 7th June 2018 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 the response to an Urgent Question given by my right honourable friend the Secretary of State for Northern Ireland in the other place:

“I thank the honourable Member for Walthamstow for this Question and want to pay tribute to and recognise all the honourable Members who contributed to the debate on these issues in this House on Tuesday. I recognise the strength of feeling and the personal stories that lie behind this issue, many of which we heard on Tuesday. This is the case regardless of where people’s views lie. As I have said in this House before, abortion is an extremely sensitive issue and there are many strongly held views across all sides of the debate for reform right across the UK, including in Northern Ireland.

Members will be aware that this morning the Supreme Court issued its judgment in this case. The Government are carefully considering the full judgment and its implications. No formal declaration has been made by the court and the appeal has been dismissed, but the analysis and comments of the court on the issue of incompatibility will be clearly heard by this House and politicians in Northern Ireland. While the court made no formal declaration, a majority of judges stated their view that the laws of abortion in Northern Ireland are incompatible with Article 8 of the European Convention on Human Rights on the right to respect for private and family life in cases of fatal foetal abnormality, rape and incest. This is clearly a complex area of law and an extremely sensitive subject that raises a number of different issues to consider. The judgment, at over 140 pages in length, will need further consideration.

I am continuing to engage with parties in Northern Ireland, where these issues are understandably being raised and discussed. It is therefore important for all of us, including the people of Northern Ireland, to consider the judgment and to approach ongoing debate on this issue with due care and sensitivity. My urgent priority is to continue to engage with the parties in Northern Ireland to re-establish devolved government in Northern Ireland so that decisions can be taken there”.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for repeating the response today. The case today was in effect dismissed on a technicality because the Northern Ireland Human Rights Commission is an organisation, not an affected individual, but we are all too familiar with the individual cases and the individual women who have faced restriction under the current law, in extremely distressing circumstances in some of the cases that we have heard about, which has been harrowing for them and their families.

As the Minister said, a majority of judges found that the laws covering abortion in Northern Ireland are incompatible with Article 8 of the convention. The noble and learned Lord, Lord Mance, stated:

“Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible”.


There is some urgency now to ensure that the law is fit for purpose, as well as to debate the wider issues around decriminalisation and the accessibility of services across the UK. The ideal scenario, and I know the Minister agrees with this, would be for a devolved Assembly to take hold of this moment and debate changes to the law at Stormont. However, there is no functioning devolved Government in Northern Ireland. In the absence of a functioning Executive and Assembly, will the Government set out a clear timetable saying that if local parties are not prepared to come back to an Assembly then Westminster will have an obligation to act, on the moral and legal basis that UK law must be compatible with our convention obligations?

The wider issue here is that this case vividly highlights the importance of having a functioning devolved Assembly and Executive in Northern Ireland. Could the Minister please update the House on the Government’s most recent actions to bring this about? I do not at all underestimate his commitment, but we need to know what actions are being taken rather than hearing warm words such as “the Government want” and “it is a priority”.

[Lord Duncan of Springbank]

I thank the noble Baroness. I wish I could give more than warm words at this time. We have to consider the judgment very carefully; it is 140 pages long and came out only this morning. However, the early analysis suggests that the technicality that the noble Baroness and I have both touched upon will in due course be addressed by another case, and that technicality will be eliminated.

The issue is therefore how this matter shall be addressed in Northern Ireland. Clearly, as I have said on a number of occasions on a number of matters, we would prefer a devolved Administration—a devolved Executive—to take these issues forward. None the less, the last time that the Assembly in Northern Ireland debated this issue on a cross-party basis—on each occasion regarding each of the elements that were part of the judgment today: the fatal foetal abnormalities, rape and incest—the Assembly itself did not endorse progress on these matters. It is important that the issue is addressed with some urgency but also with some care, because there are a number of wide implications that we must take on board. That is why at this stage we will consider the judgment very carefully to ensure that we understand exactly what it is saying, so that we can appreciate how to take the next steps.

[Lord Wallace of Tankerness (LD)]

My Lords, this is obviously a very charged and sensitive issue. As the Minister and the noble Baroness, Lady Smith, have said, the judgment will require a lot of detailed consideration. None the less, it is clear that there was a majority in the Supreme Court who, but for the fact that there was no legal standing on the part of the Northern Ireland Human Rights Commission, would have found a declaration of incompatibility. Given that under paragraph 3(c) of Schedule 2 to the Northern Ireland Act 1998 human rights and the observance and implementation of our international obligations, including human rights obligations, are an excepted matter and therefore fall within the responsibility of the Westminster Parliament, and given that both the relevant United Nations committee and now a majority in the Supreme Court have said that the current law of abortion in Northern Ireland is lacking with specific regard to Article 8 of the European convention, is there not some responsibility on the UK Government to address this matter with a degree of urgency, as the noble and learned Lord, Lord Mance, encouraged?

I certainly agree with those who have said that it would be far better if this were dealt with by the Northern Ireland Assembly. Indeed, my colleague in the Alliance Party of Northern Ireland, David Ford, had already brought in a Bill before Stormont was suspended with regard to addressing fatal foetal abnormality in relation to abortion. While that is obviously the best route to go down, as long as the Northern Ireland Assembly is not functioning there is within the current devolved settlement a responsibility on the UK Government to do something.

[Lord Duncan of Springbank]

I thank the noble and learned Lord. He is absolutely right that the judgment itself, even on a cursory reading, does not allow us to escape the conclusions that have been drawn simply because there is a technical matter there. The obligation for us right now is to ensure that we are able to move forward on this matter. The challenge, however, is that we must ensure clarity from the parties and communities in Northern Ireland as to how. We do not wish to be seen as, in essence, trying to interfere from over the water deliberately to change what are clearly very deeply held views by a number of parties. None the less, the finding itself will need to be considered very carefully and we must do that in order to be clear that we are upholding our obligations, something that the Government will continue to do.

[Baroness Tonge (Non-Afl)]

My Lords, this is a strange situation where the judgment is a non-judgment. Are the Government aware that the current situation on abortion in Northern Ireland is considered to be gender-based violence by the United Nations Committee on the Elimination of Discrimination against Women? In the face of that, while we have effective direct rule in Northern Ireland, could we not, if the Government are reluctant to do anything before the Assembly reconvenes, at least insist that a referendum is held on this issue in Northern Ireland?

[Lord Duncan of Springbank]

I thank the noble Baroness. Abortion has been a devolved matter in Northern Ireland since long before the Executive. It is clear that the view across the communities in Northern Ireland when last tested in Stormont did not reach the position that she outlined. It is therefore important that we make progress in this matter on the basis of consent—that there is recognition within the communities of exactly what is going on. The idea that we would seek to act precipitately in this matter has wider constitutional implications. We need to spend a little more time considering the judgment, none the less recognising that elements within it need to be taken on board. I do not believe that a referendum is the way forward in this matter, particularly in the absence of the Stormont Executive and Assembly, but progress will need to be made. It is a question of how we do so.

[Lord Hope of Craighead (CB)]

My Lords, as the noble Baroness said, the judgment gives the appearance of being a non-judgment, but that is for a technical reason which is easily cured. There is no shortage of effective persons who could bring proceedings and, if they did, due to the way that judicial precedent works, the result would be perfectly obvious. Will the Government bear in mind very carefully the fact that the judgment is just a hair’s breadth away from a declaration of incompatibility at the instance of an effective person?

[Lord Duncan of Springbank]

The simple answer to the noble and learned Lord is yes.

[Lord Cashman (Lab)]

My Lords, human rights and our international obligations under human rights conventions are not a devolved issue. I therefore reiterate the point made by my noble friend Lady Smith of Basildon: it is imperative that the Government set out a timetable to re-establish devolved government. In the absence of meeting such a timetable, will the Government stop kicking the can of the human rights of women and others in Northern Ireland down the line in the hope that someone else will solve a problem that seems intractable?

[Lord Duncan of Springbank]

The can cannot be kicked down the road for ever. A solution needs to be found. We desperately and dearly hope that that solution is found by a new Executive recognising their responsibilities to deliver for the women and girls of Northern Ireland.

[Lord Thomas of Gresford (LD)]

My Lords, the judgment makes it clear that—

Northern Ireland: Devolved Institutions

Lord Duncan of Springbank Excerpts

Wednesday 23rd May 2018 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what progress they have made towards the restoration of devolved institutions in Northern Ireland.

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

My Lords, my right honourable friend the Secretary of State recently met Northern Ireland’s five largest political parties to explore how we might achieve restoration of devolved government. We also continue to reach out to the Irish Government to encourage support towards accommodation to restore the Executive. This is the Government’s top priority.

[Lord Lexden (Con)]

My Lords, we all wish the Government well in their endeavours to restore power-sharing devolution in Northern Ireland. In the prolonged absence of devolution, do the Government intend to consider the possibility of an interim arrangement by which Members of the Assembly could be involved in decision-taking on the major public services—particularly health and education—which are now entirely in the hands of civil servants, unaccountable to elected representatives in either Northern Ireland or Westminster? That has never before occurred in our modern history.

[Lord Duncan of Springbank]

It is our single most important priority to re-establish the Executive and Her Majesty’s Government are doing all they can to achieve that end. We pay tribute to those civil servants who have carried a much heavier burden than they would have anticipated, but our single most important priority remains to secure a functioning and sustainable Executive.

[Lord Empey (UUP)]

Is my noble friend aware that, in the High Court last Monday, Mrs Justice Keegan decided that a senior civil servant did not have the authority to sign off on the construction of a waste plant? As a consequence, all significant decisions hitherto taken by senior civil servants have now stopped. How can the Minister and the Government honour their commitments to ensure the effective and efficient delivery of public services to the people of Northern Ireland with the state of paralysis that has now ensued?

[Lord Duncan of Springbank]

The Government are studying that judgment very carefully. Its implications are significant; indeed, an appeal against it may be lodged. It is a reminder that we need a restored Executive because we cannot keep placing on the shoulders of civil servants such a heavy and onerous burden.

[Baroness Blood (Lab)]

My Lords, following on from the question asked by the noble Lord, Lord Empey, I understand that there will be an appeal, which will take six months, and then another appeal, which will take a further six months. Northern Ireland does not have that capacity; we do not have that time. We have an almost invisible Secretary of State. People on the ground believe that Westminster’s only interest in Northern Ireland is Brexit and the border. Given that, the one question being asked on the streets of Northern Ireland today is: who is actually running Northern Ireland?

[Lord Duncan of Springbank]

Brexit has been a focus of discussion in this House and elsewhere. The people of Northern Ireland deserve an Executive focused on the issues that matter to them: education, health, schools, farming and all the obvious stuff. We need to get the Executive back up and running; the parties need to do so. At the moment, the pilot light is on, but no one is twirling those knobs. We need to get the Executive restored.

[Lord Browne of Belmont (DUP)]

My Lords, the recent report from the Northern Ireland Affairs Committee makes some excellent proposals, which, if adopted by the Secretary of State, would go some way to helping restore devolved government in Northern Ireland. Is the Minister aware that the Democratic Unionist Party’s policy is very clear: it is willing to return to the Northern Ireland Executive tomorrow with no preconditions or partisan demands?

[Lord Duncan of Springbank]

I welcome those remarks in the spirit in which they were delivered. The report of which the noble Lord speaks is important and the Government will consider its findings carefully.

[Baroness Suttie (LD)]

My Lords, does the Minister agree that an additional consequence of the continued absence of an Executive is that important social issues remain unresolved, such as the reform of the 150 year- old, outdated abortion laws in Northern Ireland, which continue to cause such distress and are leading women increasingly to adopt the dangerous practice of self-medicating and purchasing abortion pills online?

[Lord Duncan of Springbank]

Abortion is of course a devolved matter. None the less, it is important to stress that there are issues of conscience that need to be considered—but, again, we should not be relying on a Victorian law. It is time for change.

--- Later in debate ---

[Lord Maginnis of Drumglass]

Are there not people in this Chamber who negotiated the Belfast agreement who could assist? Are there not some who served as chairmen in the Assembly? It is important that we face up to reality.

[Lord Duncan of Springbank]

There is a wealth of experience in this House, on which I hope we can continue to draw. My right honourable friend the Secretary of State for Northern Ireland flies above and below the radar.

[Lord Hain (Lab)]

My Lords, I respect the work that the Minister is doing, as I think does the whole House, but does he agree that the longer the Assembly and the Executive are down, the harder it is to get it back up? That is the lesson of the past, even after Good Friday. Will he look at what was done in the past, when there were stalemates of this kind? Then, a summit was convened, involving the Prime Minister—not on a fly-in, fly-out basis, and not seeing the parties for an hour here and an hour there—and the Taoiseach, and the parties were kept at that summit, as was done at St Andrews, Hillsborough and other places, until there was an agreement. I believe strongly that that is the only solution in sight.

[Lord Duncan of Springbank]

My right honourable friend the Prime Minister has engaged directly with the Taoiseach and others, but we need to think afresh and, as we progress in the next few months, we will need to visit a number of past experiences and try our best to navigate a much more challenging way forward. Nothing is off the table.

[Baroness Smith of Basildon (Lab)]

My Lords, the key question was that asked by my noble friend Lady Blood and alluded to by the noble Lord, Lord Empey: this court case and its decision basically says that the Civil Service was wrong to take a decision of such significance that it should have been taken to Ministers. With no Ministers in place now for more than 16 months, that calls into question any decisions on these issues taken by civil servants in Northern Ireland. I respect the Minister enormously; he says it is a top priority—the single most important issue for the Government— but he has to listen to my noble friend Lord Hain. The Government must get round the table and, if necessary, lock the doors until they come out with an agreement.

[Lord Duncan of Springbank]

I am sure there will be a lot of agreement to lock some people in certain rooms; there is no question of that. But the reality we must face is a simple one right now. That judgment is significant. In the past, the Government have sought to plot a trajectory from the policies and decisions taken by the previous Executive and not to stray beyond them. That cannot go on for much longer—the point of movement is too great—so there is now a necessity to find a way of restoring good governance to Northern Ireland. A number of options are available. The preferred option, the sensible option, the right option, is to ensure that there is an Executive that works in the interests of Northern Ireland, rather than people like me trying to work it out backwards.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Murphy of Torfaen]

No, no; I do not think for one second that this amendment refers to or is about joint authority. What it is about is the recognition that both the British Government and the Irish Government are joint guarantors in international law of the Good Friday agreement. That is what it is about. Also, the agreement itself set up the British-Irish Intergovernmental Conference, which meets from time to time in order to deal with matters of common concern.

To return to the amendment, it rejects a hard border. The word “hard” has been debated by a number of speakers. The Government themselves have attached the description to what they do not want. The Government do not want a hard border, the Opposition do not want a hard border, the European Union does not want one, the Government of Ireland do not and nor do any of the parties in Northern Ireland. None of them wants a hard border, and all this is doing is putting into the Bill what everybody actually wants.

The amendment protects the Northern Ireland Act 1998, which as it happens I steered through the Commons 20 years ago. That set up the Assembly and the Executive and dealt with rights and equality. The noble Lord, Lord Trimble, asked: should we not have the Good Friday agreement in the amendment rather than the 1998 Act? Of course, the 1998 Act incorporated a great deal of the agreement and was based on the principle of the consent of the people of Northern Ireland.

The other issue is that of the north/south arrangements. There is no question, in my view, that those are extremely important and need to be protected as a vital part of the agreement, and they actually deal with millions of pounds of European funding for cross-border projects. All the amendment is about is a guarantee that the integrity of the Good Friday agreement is enshrined in law and put into the Bill.

The actual, real threat to the agreement in Northern Ireland is the fact that there is no Assembly or Executive there. The institutions should be restored. Their absence is the real threat to the Good Friday agreement and one that I hope the Government will work intensely over the next weeks and months to resolve. As parliamentarians in both Houses, we need to protect one of the most successful peace processes of modern times, and I believe that the amendment goes a long way towards doing that.

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

My Lords, I had a five-page speaking note when I arrived here. I have now written more than 10 pages myself. I am not sure my speaking note will do the debate justice so I will set it aside.

I will try to capture the key elements of this discussion. I will turn, as I often do in matters concerning Ireland and Northern Ireland, to the noble and right reverend Lord, Lord Eames, who reminded us that we have heard the same words used many times about the Good Friday agreement, to the extent that earlier today we almost had to use a thesaurus to find a replacement for “steadfast” because we have said it so many times. As it happens, the word in the note is “unwavering”, if you are looking for a description of our support for the Good Friday agreement. But the noble and right reverend Lord is correct: we must give comfort and certainty to the people of Northern Ireland that they will not be abandoned, sacrificed, left behind, have their rights trimmed to suit a separate agenda or find themselves in a situation where what they thought they had they do not have at all. I had the pleasure of having a cup of tea yesterday with the noble and right reverend Lord and he spoke about what he called the Ballymena spade—where they call a spade a spade. We need to be clear that there can be no border down the middle of the Irish Sea. We simply cannot create a division between one part of our country and another.

Michel Barnier, the chief negotiator for the EU, has said that there needs to be some adjustment to particular rights and proprieties, that there needs to be some acceptance that we cannot have these things, and that some of the red lines themselves, as the Foreign Minister of Ireland has said, may need to be adjusted in the light of peace and prosperity. But they cannot be, that is the point. So if I was to give a message to Michel Barnier, it would be: “Ecoutez les deux communautés”—you must listen to the two communities in Northern Ireland. You cannot listen to only one of them. Both are integral to what we will be able to achieve on the island of Ireland, and any suggestion otherwise is fallacious and unhelpful. In truth, it risks creating greater uncertainty for this particular negotiation. I would advocate great caution on behalf of Michel Barnier in this regard.

[Lord Reid of Cardowan (Lab)]

The Minister knows the respect in which I hold him and the job he is doing. I have no wish to have a border which differentiates Northern Ireland from the rest of the United Kingdom. But will he accept that the problem was not created by Michel Barnier? The promise to have complete alignment between Northern Ireland and southern Ireland was not made by Michel Barnier, it was made by the British Government. Michel Barnier is doing no more than holding the Government to the promise they made to Europe in the initial agreement, and it is not his responsibility that outside that the Government also promised the DUP—correctly, in my view—that there would be complete alignment between Britain and Northern Ireland. That is the essential problem, because if you have alignment between Britain and Northern Ireland, between Northern Ireland and southern Ireland, and between southern Ireland and Europe, you automatically have alignment between Britain and the European Union; in other words, staying inside the customs union.

[Lord Duncan of Springbank]

I hear the noble Lord, Lord Reid. With the greatest respect, I recognise what he is saying, but the joint report did not have just one element in this regard, it had three elements. The important thing about the three elements is that each must be afforded the ultimate engagement to try to deliver a solution. If Michel Barnier has decided that the first and second are sacrificial elements and he must now focus only on the third, frankly, he is becoming part of a bigger problem.

[Lord Wallace of Saltaire (LD)]

Michel Barnier is negotiating for the other 27 member Governments. It is not a question of listening to the Northern Irish Catholic community but it is part of his job as negotiator to listen to the Irish Government, who are, after all, one of the 27 member Governments with whom we are negotiating. It is the Irish Government who—perhaps to the Minister—present the problem. We have to deal with the Irish Government, not just the two communities.

[Lord Duncan of Springbank]

If the negotiator Michel Barnier does not hear the people of Northern Ireland, he will be derelict in his responsibilities. He must hear both communities. He cannot listen only to one. It is for that reason that I say again to Michel Barnier: listen to both communities.

It is important to recognise where this journey began. I hope the noble Lord, Lord Patten, will forgive me for not beginning by thanking him for bringing this issue before us today. This is what the Government intend to do, as I am sure he will agree. Many of the elements of the amendment are exact statements of government policy, but the issue is very unusual and it needs to be iterated here. When we look at the lower elements of the amendment, the language is that of political statements, not legislative statements; they are not in the language of legislation. It is on those points that a number of noble Lords have been very clear that they leave a conspicuous ambiguity. It is important to recognise that it is the intention of the Government to return not with ambiguous statements which may or may not be subject to misinterpretation but to return in the appropriate Bill with the exact, detailed language which will give the absolute confidence that we must have in this law. That is why we are unable to support the amendment that the noble Lord, Lord Patten, moved so eloquently and passionately. Indeed, all the speakers today have spoken with that passion. Of that I have no doubt.

I was drawn in particular to the words of the noble Lord, Lord Alderdice. He was very clear in his assessment of those parts of the amendment I have spoken of. I know that a number of noble Lords have sought to correct him, but I do not believe that he needs correcting. Indeed, the noble Lord, Lord Bew, said simply that it has a flavour of a joint approach. However you want to look at it, if individuals who live in Northern Ireland are looking at the amendment and expressing their deep unease with it, I would hope that noble Lords would recognise what message that is sending. That is why we must be cautious in the messaging that we send.

In truth, there are two elements to the Bill: the optics and the mechanics. The mechanics of the Bill mean that the Bill must function and give absolute legal certainty. That is its job. The optics of the amendment are wholly commendable in many respects. They are an affirmation and a recitation of the Government’s intention, proposals and policy. But, again, this is not the place for them to sit sensibly and with legal certainty. That is one reason why we have a great problem with the amendment. As a number of noble Lords have asserted, as they begin to look in detail at those elements they are uneasy.

Talking once again of the optics, if the noble Lords in here who have looked at those self-same provisions feel uneasy, imagine then what the message will be on the front page of the Belfast Telegraph when these particular elements are looked at if they are presented in such a fashion that they could be misunderstood or misinterpreted. That is why we are seeking, as we have always sought, absolute and utter legal certainty. My right honourable friend the Prime Minister has been clear in all her utterances that we will deliver a borderless aspect on the island of Ireland but the point about this, and the reason why I emphasise it, is that this Bill is not where that will or can be delivered. I am almost channelling my inner Callanan when I say this but, in truth, this is not the right place to be doing that. There will be an opportunity to pick that up.

I shall return to some of the specific points raised. Once again the noble Baroness, Lady Lister, has raised a point which I will be happy to respond to in writing. I will make sure that that is absolutely delivered. I hope that I have been able to give words of respect and comfort to the noble and right reverend Lord, Lord Eames, so that he can take them away and be able to say to people that this is not a place where we can trim—where we can simply take out, manoeuvre or dispense with it.

I listened again to the noble Lord, Lord Hain, whose wisdom is welcome in this debate. He rightly described the fragility of the peace process, echoing the words of the noble and right reverend Lord, Lord Eames. It is in its infancy and we need to make sure that nothing whatever can interfere with that. However, I do not wish to see the two aspects here become entangled. That is why many noble Lords have spoken today about the impact these words can have when they are misunderstood—indeed, when they become weaponised in one fashion or another, so that where they land they cause destruction upon receipt. We cannot have that, for that in itself is ultimately destructive.

As I listen to the noble Lord, Lord Trimble, I am aware that there speaks an individual who helped to craft the Belfast agreement itself, as did a number of noble Lords who have spoken this afternoon. Each of them who spoke has echoed the same sentiment. That is worthy of pause and reflection because there is an element, in truth, in what all the Peers from Northern Ireland who have spoken today said: they are uneasy with this amendment. Whatever its optics or its intention, they are uneasy with its component parts.

[Baroness Altmann (Con)]

Can my noble friend reassure the House, then, that “no deal” is now off the table? In a no-deal scenario, WTO rules require a hard border. It is impossible to fulfil the Good Friday agreement if we crash out with no deal.

[Lord Duncan of Springbank]

I thank the noble Baroness, Lady Altmann, for her intervention. The clear thing here is, as I believe all sides in this discussion recognise, that if there is no resolution of the joint report’s component parts—A, B and C—then all will be the poorer and the weaker. All will suffer because of that, which is why the important thing here is to ensure that agreement is reached on those elements in the negotiation. It is absolutely essential that those parts are then returned to the other place and to this House for clear discussion and debate at that time. That will ultimately be the key to it.

As I listened to the noble and learned Lord, Lord Carswell, I was aware of him iterating the same issues once again. He brings his own experience to them, saying that particular elements of this amendment cause him unease. They cause him to see difficulties which might emerge. The last thing we need right now is for that to percolate through the situation in Northern Ireland, with all its incumbent troubles and all the difficulties which will be in play.

As I speak today, I am very conscious that we need to find the outcome that delivers for Northern Ireland and one that delivers for the Republic of Ireland. I listened to the noble Lord, Lord Howarth, expressing clearly the danger we have, however, in taking these important elements of where we need to seek agreement and somehow or other turning them into a threat—a method whereby we can seemingly upend or turn over the very things that we are all trying to achieve.

I think it is true to say that anyone who seeks to prognosticate on or forecast Irish politics will almost certainly always be disappointed. There are, no doubt, many greater minds in this Chamber than elsewhere who could do that but the point remains that irrespective of which Government are in power in Dublin, they have to be able to work to deliver an outcome which is good for the Republic of Ireland, just as we are able to deliver that self-same outcome for Northern Ireland, and indeed for ourselves. Listening to the noble Lord, Lord Bew, it was imperative that, as he put it forward, there are elements that need to be addressed now.

I also note the remarks of the noble Baroness, Lady Suttie, who asked whether I can explain how the technology will work on the borders. The truth is that I am a geologist, I am afraid, and I really cannot explain that. I am not knocking geologists; I am fully aware that they know many things. What I am clear about is that this must be returned to the other place, and to this House, to deliver the very things which noble Lords seek. If they are not delivered, I do not doubt that the House will vote it down. That is a clear thing which your Lordships do and it is a prerogative which you will have in this House. That is how it will ultimately work.

It will be important to ensure that the methods which we put forward are understood by all. I listened to the noble Baroness, Lady O’Neill, touch upon the issue of passports and I would like to write to her on those elements, because I believe that they are appropriate to be discussed. There are costs inherent in biometric passports and so forth. If noble Lords will forgive me, I will have an offline discussion to take through some of those elements. In some respects I am conscious, as the noble Lord, Lord Hay of Ballyore, said at the beginning, that this is indeed no laughing matter. I understand that but, in truth, we need to recognise that in each of these elements we must be able to deliver for the people of Northern Ireland and for the rest of the island of Ireland.

I also listened to the noble Lord, Lord Patten, when he spoke of Louis MacNeice’s father, Bishop MacNeice. I am a passionate supporter of Louis MacNeice and a great lover of his poetry. I am aware of the line where he said:

“My father made the walls resound,


He wore his collar the wrong way round”.

He was an extraordinary poet but if your Lordships will forgive me, I will bring to you the words which I believe in this instance might be slightly appropriate, although very cryptic. They are from the poem by Louis MacNeice called “Snow”, in which he was confronting two seemingly difficult and different things coming together: broadly, large flowers in a window and snow outside. He simply said:

“The room was suddenly rich and the great bay-window was


Spawning snow and pink roses against it

Soundlessly collateral and incompatible:

World is suddener than we fancy it.

World is crazier and more of it than we think,

Incorrigibly plural”.

In many respects, as we look at the island of Ireland we need to recognise its plurality. We need to recognise how that island will continue but also, none the less, that this Bill is not the place for that amendment. We remain passionate and unwavering in our support of the Belfast/Good Friday agreement. It is enshrined in more than nine pieces of primary legislation and there it will remain.

There will be a negotiation on the joint report—on those three elements—and, in that, I hope that Michel Barnier will be able to respect the views not just of the Irish Government but of the communities of Northern Ireland, whose voices must be and need to be heard. In many respects, I hope that it will be appreciated—

[Baroness Smith of Newnham (LD)]

The Minister keeps talking about Monsieur Barnier. Surely his job is to represent the views of the 27; it is the job of Her Majesty’s Government to represent the views of all communities across the United Kingdom, including the communities of Northern Ireland.

[Lord Duncan of Springbank]

The noble Baroness raises her point but I will be clear in my statement in response: it would be daft if he did not speak to both communities. Irrespective of whether he felt that he must speak to only one Government, the resolution in Northern Ireland will depend upon the two communities, not upon the will of two Governments ignoring those self-same communities. It cannot be done on that basis.

I return briefly to the point that we wholeheartedly agree on the sentiments underpinning my noble friend Lord Patten’s amendment. We recognise, however, that those elements towards its latter half are not workable in that form. They are political statements, which are not legally binding texts, but I must say one final thing. If the noble Lord decides to divide the House, I hope he will recognise that it must not and cannot be interpreted in any way such that either side is not willing to give its wholehearted support to the Belfast/Good Friday agreement, but rather only to this amendment as it has been defined. Let there be no doubt whatever that the Good Friday/Belfast agreement has our unwavering and steadfast support.

Northern Ireland Assembly Members (Pay) Bill

Lord Duncan of Springbank Excerpts

3rd reading (Hansard): House of Lords & Committee negatived (Hansard): House of Lords
Tuesday 27th March 2018 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the Bill be now read a second time.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time, and passed.

Northern Ireland (Regional Rates and Energy) Bill

Lord Duncan of Springbank Excerpts

2nd reading (Hansard): House of Lords & 3rd reading (Hansard): House of Lords & Committee: 1st sitting (Hansard): House of Lords
Tuesday 27th March 2018 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, with the leave of the House I shall speak to all three Motions standing in my name on the Order Paper.

The UK Government take seriously our responsibility to uphold our commitment to govern in the interests of all parts of the community in Northern Ireland. To that end, there are three Bills before the House that represent a series of necessary steps now required to protect and preserve public services, ensure good governance and increase public confidence in Northern Ireland’s political institutions. We have deferred action on these measures for as long as possible in the hope that a restored Executive could take this legislation forward. That is now not possible. So, with the greatest reluctance, it is important that we proceed with the Bills.

With the leave of the House, I will discuss each Bill in turn, starting with the Northern Ireland Budget (Anticipation and Adjustments) Bill. Members of the House will recall that, last November, Parliament approved the Northern Ireland Budget Act 2017. This was a step we took reluctantly. This Act gave the Northern Ireland Civil Service the clear legal basis required to manage resources and perform the important work it continues to do in the absence of an Executive. The Northern Ireland Civil Service has continued since then to assess where pressures lie across the system, taking decisions to reallocate resources as required. It has also requested since then to draw down £20 million in 2017-18—of the £50 million of support arising from the financial annexe to the confidence and supply agreement—which the Government committed to releasing for 2017-18 to help address immediate health and education pressures. The remainder of that £50 million will form part of the resource totals available in 2018-19.

Noble Lords will want to be reassured that the additional funding for 2017-18 was confirmed in the Supply and Appropriation (Anticipation and Adjustments) Act 2018, which received Royal Assent on 15 March. These changes to the financial position approved in the Northern Ireland Budget Act 2017 in November must now be placed on a legal footing for the Northern Ireland Administration as we approach the end of the financial year, and that is what this Bill does.

In addition, the Bill will provide for a vote on account in the early months of next year to give legal authority for managing day-to-day spending in the run-up to the estimates process. This will avoid the unorthodox need for the Northern Ireland Civil Service to rely on emergency powers set out in Section 59 of the Northern Ireland Act and Section 7 of the Government Resources and Accounts Act (Northern Ireland) 2001 to issue cash and resources. For 2018-19, we do not consider it would be appropriate if we did not provide the usual vote on account facility to the Northern Ireland Civil Service—a facility provided to the UK Government departments through our own spring supplementary estimates process.

To be very clear, this is not a forward-looking budget for the year ahead. The Bill does not seek to set out in legislation the departmental allocations of the Secretary of State’s Budget Statement on 8 March, nor does it seek to vote any new moneys for Northern Ireland. The totals to which it is related are either locally raised or have been subject to previous votes in Parliament, most recently in the Supply and Appropriation (Anticipation and Adjustments) Bill.

Instead, the Bill looks back to confirm spending totals for 2017-18 to ensure that the Northern Ireland Civil Service has a secure legal basis for its spending in the past year. As such, it formally allocates the £20 million of confidence and supply funding already committed for 2017-18; it is not concerned with any of the £410 million set out in the 2018-19 Budget Statement, which will be a matter for the UK estimates in the summer and for a Northern Ireland budget Bill thereafter.

I will turn briefly to the content of the Bill, as it largely rehearses what I set out to your Lordships in November when bringing forward the Northern Ireland Budget Act 2017. In short, it authorises Northern Ireland departments and certain other bodies to incur expenditure and use resources for the financial year ending 31 March 2018.

Clause 1 of the Northern Ireland Budget (Anticipation and Adjustments) Bill authorises the issue of £16.1 billion out of the Consolidated Fund of Northern Ireland. 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 £18 billion in the year ending 31 March 2018 by the Northern Ireland departments and other bodies listed in Clause 2(2).

Clause 3 sets revised limits on the accruing resources, including both operating and non-operating accruing resources in the current financial year. These are all largely as they appeared in the Northern Ireland Budget Act 2017, and the revised totals for departments appear in Schedules 1 and 2 to the Bill.

Clause 4 does not have a parallel in that Act. It sets out the power for the Northern Ireland Civil Service to issue out of the Northern Ireland Consolidated Fund some £7.35 billion in cash for the forthcoming financial year. This is the vote on account provision that I have already outlined. It is linked to Clause 6, which does the same in terms of resources. The value is set, as is standard, at around 45% 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 45% of the previous year.

Clause 5 permits some temporary borrowing powers for cash management purposes. As I have already noted, there is no new money contained within the Bill; there is simply the explicit authority to spend in full the moneys that have already been allocated and locally raised.

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

Noble Lords may already be aware from the Library that, alongside the Bill, a set of supplementary estimates for the departments and bodies covered by the budget Bill have also been laid as a Command Paper. These estimates, which have been prepared by the Northern Ireland Department of Finance, set out the breakdown of their resource allocation in greater detail. This is a different process from that which we might ordinarily see for estimates at Westminster, where the estimates document precedes the formal budget legislation and is separately approved. That would also be the case at the Assembly, but as was the case in November, the Bill provides that the laying of the Command Paper takes the place of an estimates document laid and approved before the Assembly, again to enable public finances to flow smoothly.

This Bill is very much a technical step as we approach the end of the financial year to provide a secure legal footing for the Northern Ireland Civil Service. It looks backwards rather than forward, although it avoids the use of emergency powers for the forthcoming financial year. It is on that platform that the Secretary of State’s 2018-19 Budget Statement of 8 March builds. It is worth making it clear that the 2018-19 Budget Statement will need to be the subject of formal legislation later in year. I am sure that noble Lords will share the hope that this will be taken forward by a restored Executive. However, I should highlight to your Lordships that this is something that the UK Government would be prepared to progress if required as we uphold our responsibilities to the people of Northern Ireland.

Before we reach such a point and in addition to the technical steps of this Bill there are some further pressing steps proposed in the Northern Ireland (Regional Rates and Energy) Bill that need to be taken now to build on the Government’s efforts to safeguard public services and finances in Northern Ireland. I ask the House also to give a Second Reading to the Northern Ireland (Regional Rates and Energy) Bill.

Clause 1 of the Northern Ireland (Regional Rates and Energy) Bill addresses the collection of the regional rate, which represents more than 5% of the total revenue available to the Northern Ireland Executive. With a devolved Government in place, this would be set via an affirmative rates order in the Assembly, enabling bills to be issued in 10 instalments, providing certainty to ratepayers and allowing various payment reliefs to be applied. It would not be acceptable to allow uncertainty to linger in the absence of an Executive to set its own rates and begin collection from ratepayers. So while we are clear that this is a devolved matter, we are also clear that only the UK Government and Parliament can take this action to secure the interests of individuals and businesses in Northern Ireland.

This Bill therefore sets out rates, in pence per pound terms, for both domestic and non-domestic properties. For non-domestic properties, this reflects a 1.5% inflationary increase. For domestic properties, the rate will be raised by inflation plus 3%, as set out in the Secretary of State’s 2018-19 Budget Statement on 8 March. In deciding on these levels we have reflected on conversations with the parties and stakeholders more broadly; considered the budget consultation launched by the Northern Ireland Civil Service in December, which discusses rises in regional rates of as much as 10% above inflation; considered the pressures on key services and the need to balance any increase to rates at the right level.

We have concluded that it is fair that we ask households to pay a little more—less than £1 per week for the average household—to help address pressures in health, education and elsewhere. In order to keep a focus on the growth that Northern Ireland needs to see, holding business rates in line with inflation is the right approach. This rates income, along with the flexibilities set out in the Secretary of State’s Statement, will represent an important contribution to delivering a sustainable budget picture for 2018-19, upholding the UK Government’s responsibilities to uphold good governance in Northern Ireland. Yet the Bill also makes clear that nothing we do cuts across the continuing right of a restored Executive to set a rate by order in the usual way.

The second element of the Bill concerns the administration of Northern Ireland’s renewable heat incentive scheme. The scheme was established in 2012 to support efforts to increase the uptake in the use of renewable energy. However, errors in the administration of the scheme led to substantial excess payments. Over the 20-year lifespan of the scheme, the projected overspends were well over £500 million, with £27 million of overspend in the 2016-17 year alone, putting the sustainable finances of the Northern Ireland Executive at significant risk. The administration of the scheme and the circumstances which led to the errors in its administration are subject to an ongoing public inquiry.

One of the last acts of the previous Executive was to make regulations in January 2017 that put robust cost controls in place. These made sure that the costs were sustainable, but they were put in place for one year only, to allow for a longer-term consideration of the scheme as a whole. They are now due to expire. If they are allowed to expire, there will be no legal basis not only for maintaining the current cost cap but also for paying all those who receive payments under the scheme and whose installations were accredited before November 2015. Neither of these would be acceptable outcomes. Nor would it be suitable for the Northern Ireland Civil Service to administer payments on an extra-statutory basis, which would create unnecessary legal uncertainty for all concerned. That is why Clause 2 will ensure that the present cost controls and the legal basis for payments can continue for the 2018-19 financial year. These are sunsetted for a year, as it is right that the longer-term approach is one for a restored Executive to decide. In the meantime, I am assured that the Northern Ireland Civil Service will undertake the detailed analysis to enable a new Executive to consider the right course for the future.

I hope noble Lords will agree that this is a modest Bill, doing two very discrete but necessary things in the interests of safeguarding public finances: setting a regional rate and extending the cost controls of the RHI scheme.

The third and final Bill before the House today is the Northern Ireland Assembly Members (Pay) Bill. Where the other Bills focus on increasing clarity and confidence in Northern Ireland’s finances, this Bill looks to increase public confidence in Northern Ireland’s political institutions. The continued payment of full salaries for Members of the Northern Ireland Assembly, when the Assembly has not met for over a year and there has been no Executive for 14 months, is a matter of considerable public concern in Northern Ireland and there is a broad desire for action. The Bill will grant the Secretary of State the power to vary pay and allowances for Members of the Northern Ireland Assembly, the MLAs.

MLAs’ salaries and allowances are rightly a devolved matter. In 2011, the Assembly appointed an independent body, the Independent Financial Review Panel, to set MLA pay and allowances by means of determinations. Its last determination was made in March 2016, before the election in May that year. As no members have been appointed since the first panel’s term of office ended in 2016, however, there is presently nobody with the power to change MLA pay to reflect the current extraordinary circumstances. The Bill would allow the Secretary of State to do that; that is, to vary the pay and allowances of MLAs by means of a determination. One important difference from the panel’s powers is that, while the panel also makes determinations on pensions, the Bill includes an explicit protection for MLAs’ pensions so that they are not affected by any changes to pay under this Bill.

Under the panel’s most recent determination, an automatic £500 per year inflationary increase in MLAs’ salaries is due on 1 April. It is simply not appropriate for this increase to apply in the present circumstances, and my right honourable friend the Secretary of State intends—if granted the power by this Bill—to stop that increase from being applied. Support for this action comes in the advice on MLA pay and allowances that Trevor Reaney, a former Clerk to the Northern Ireland Assembly, gave to the then Secretary of State in December 2017. It also comes from the Assembly Commission, whose chair, the Speaker of the Assembly, wrote to the Secretary of State earlier this month. There was also widespread support for it in the other place when this Bill was debated there last week. I hope that noble Lords across the House will agree that this is a suitable step to take in the current circumstances.

More broadly, Mr Reaney’s advice provided an independent assessment of what action should be taken on MLA pay and allowances in the current circumstances, taking account of all of the important work that many Members continue to do in the absence of an Assembly. These recommendations included a 27.5% reduction in MLAs’ salaries. The Secretary of State has been clear that she is minded to follow Mr Reaney’s recommendations, with the exception of the proposed cut to the staff costs allowance. As the Secretary of State has said,

“The position of”,


MLAs’ staff,

“should not be prejudiced by what is happening with their political masters”.—[Official Report, Commons, 21/3/18; col. 339.]

Before making her final decision, however, she has asked for final representations from the political parties. This is a sensible approach that I hope noble Lords will support.

This Bill would not itself alter MLAs’ pay or allowances. It simply creates the power to make a determination during the current period without an Executive. Once an Executive is formed, the power to make a determination would return to being entirely a devolved matter. A future panel would, of course, be free to make a new determination as it sees fit, including to cover periods without an Executive. This determination would supersede any made by the Secretary of State under this Bill. To ensure that we do not again find ourselves in the situation where MLAs remain on full pay when there is no Executive and no panel determination covering the situation, the Bill allows a determination made by the Secretary of State in the current period to apply again should that situation arise. To be clear, it is the determination that would apply again: the power to make a new determination would in that situation remain devolved.

Overall, the focus of this Bill is narrow, and I consider that taking the power to set MLA pay is a necessary step to uphold public confidence in Northern Ireland in the absence of an Executive and sitting Assembly.

I recognise the extent of the ask of the House in considering all three Bills in one day. As I conclude, I would like to reaffirm that the Government have considered very carefully the necessity of and timing required for this legislation. We are doing this reluctantly in order to put Northern Ireland finances on a legal footing for the financial year 2017-18; to provide more certainty and a sustainable footing for the financial year 2018-19, in the interests of protecting public services; and to ensure good governance and uphold public confidence in Northern Ireland. I believe that these Bills reflect our approach of intervening only as necessary, and only at a point when it is critical that the measures are taken forward. I hope noble Lords will agree that it is important we now make progress to see the measures of each Bill passed into law. I beg to move.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, this has been a very wide-ranging discussion, as it always is when we confront the serious issues we encounter in Northern Ireland. I am struck by the remarks of the noble Lord, Lord Hay of Ballyore, who spoke of the Belfast city deal and the Derry/Longdonderry city deal. Would it not be great if that was all we were talking about today: the UK Government’s contribution to a deal determined by an Executive in Northern Ireland which was about jobs, growth, employment and prospects? Would that not be something that we could celebrate?

However, we are not doing that, and more is the pity. I do not detect any dispute among noble Lords today that we must take forward these three Bills. I recognise that we are doing so in an expedited manner, and for that I apologise on behalf of the Government, but that is what we must do today. I am conscious that a number of the issues that have been raised today are about future spend, and it is important to stress that the Bills before us here today are, in effect, about regularising the 2017-18 spend, the spend that we are currently engaged in delivering. A separate Bill will be brought before another place and this House with regard to specific provisions of future spend inside Northern Ireland. That will be an opportunity again to touch upon a number of these issues as we go forward.

Before I delve into the budget itself, it is important to talk a little about future talks and the future status as a number of noble Lords have raised those matters—I thank the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, for doing so. We are in a period of reflection. That is sometimes used euphemistically, but it means to look inside and ask yourself what is going on and what should be going on. This period will be short, I hope. It is also important to stress that during the talks progress was made. We did not get to the other side of the chasm, but we made substantial progress, and it is on that basis that my right honourable friend the Secretary of State for Northern Ireland continues to emphasise that she is of the view that we will find the means of bringing about an agreement upon which we can build and which will, I hope, supersede all that we do here today.

As we consider the various elements that might help us move forward—the noble Lord, Lord Murphy of Torfaen, has raised a number of these points—we welcome Senator George Mitchell to our shores. We pay tribute to the service he rendered our country in helping bring about that agreement in the past. As I have said on more than one occasion, we are not ruling out an independent referee, to use that term. If I may be frank, I would welcome noble Lords’ thoughts in that regard. Nothing can be ruled out. We need to be conscious of that.

It is important for me to emphasise that my right honourable friend the Prime Minister has been very active in this regard, and I do not doubt that she will continue to be active. Indeed, as we mark and celebrate the Belfast agreement—the Good Friday agreement—the Prime Minister will be in Belfast taking part in those celebrations, marking that important moment and meeting participants at that time.

The core point raised by the noble Baroness, Lady Suttie, was the notion of what model we can look at to see this afresh. Part of the challenge for anyone who listened to or read of the outcomes of the two recent conferences of the two principal parties in Northern Ireland is that it is clear that there is no alternative model ready to be pulled off the shelf. I am sad to say that, but it is a simple statement of fact. If there was, I believe we would have done so already. That does not mean that it cannot be found, but it certainly means that we have not yet found it. It is sad, but I must reflect upon that point.

If I may touch upon the Bills themselves, I am struck again by some of the very useful remarks made by the noble Lord, Lord Empey—they always are useful. I will not go into the details of the Historical Institutional Abuse Inquiry, which I suspect are well known in our House, but it remains our overriding priority to see devolution restored—I cannot, frankly, say that often enough—so that a new Executive can take decisions on a range of strategic issues and respond directly to Sir Anthony’s report. For anyone who has read it and recognised what it contains, it makes challenging reading. Of that there is no doubt. The courage and dignity of those who have taken part in that particular inquiry are to be commended. I acknowledge the frustration so many feel about the lack of progress, particularly in the absence of an Executive to consider that particular report. But I welcome the preparatory work being taken forward by the Executive office to enable action to be taken swiftly once an Executive is restored.

As to the matter of the wider question of legacy, we do have a very clear duty to survivors and victims to bring forward proposals to address the legacy of the past. There is broad agreement among victims and survivors that the legacy institutions, as they are currently set up, are not working. That is a sad admission in itself. We continue to seek the implementation of the legacy institutions in the Stormont House agreement as the best way to provide better outcomes for victims and survivors. We believe that the institutions have the potential to provide better outcomes. We believe that very strongly. The proposed Stormont House legacy institutions would be under legal obligation to be balanced, proportionate, transparent, fair and equitable. The next phase is to consult publicly on the details of how the new institutions will work in practice. A public consultation will provide everyone with an interest the opportunity to see the proposed way forward and contribute to the discussion on the issues. The Government want to begin that consultation soon with the aim of building support and confidence in the new legacy institutions from across the community. We are obliged to move forward so that the victims and survivors are able to see progress—not just hope that it will occur in due course. We continue to support reforms of the legacy inquest system to provide the best way to address this. We are also committed to provide £150 million—

[Baroness Harris of Richmond (LD)]

Could the Minister give us some indication about how long the consultation process will be?

[Lord Duncan of Springbank]

That was a question I did not anticipate. I thought you might ask when it would begin, but not how long it would be. On that basis, I will write to the noble Baroness with the specific duration, as I do not have that information to hand.

If I may turn my attention to the harrowing remarks of the noble Lord, Lord Hain, who opened the debate today. There are complex issues. A number of noble Lords have touched upon this. I have in front of me a very clear statement of the Government’s position, which I will read out. We will work to seek an acceptable way forward on the proposal for a pension for severely physically injured victims for a restored Executive to take forward. I hope a new Executive might bring forward a pension proposal that has the support of and meets the need of victims and survivors in Northern Ireland. I know that does not respond adequately to the points he raised in his remarks. If he will forgive me, might I suggest we meet after this point to discuss this further? That would be useful and important.

[Lord Hain]

I am grateful to the Minister for his positive response. May I ask him to reflect before we meet—and I am grateful for that invitation—on the fact that we do not know how long it will take to restore the Executive? This Government and this Parliament have responsibility ultimately for legacy matters. There is no reason why the small cost could not be proceeded to at least rectify one injustice while the wider question of the legacy issues is addressed.

[Lord Duncan of Springbank]

I thank the noble Lord for that point. Yes, I will reflect before we meet, and I hope we can meet soon.

If I may touch upon some of the wider issues raised, a number of noble Lords made the point about the question of particular meetings taking place without minutes being taken and so on. I thought I had better seek guidance from the wise people in the Box. They have come back simply saying it would not be appropriate for me to comment on the actions of the Northern Ireland Civil Service nor the ongoing public inquiry. What I can say in my own personal capacity is that minutes matter and should be taken.

I am conscious that a number of points were raised about the RHI question. There is an inquiry exploring how the scheme itself was constructed and put together, and I invite all noble Lords who contributed today to take the opportunity to make their points very clearly to that inquiry. I am aware, however, that the Bill before us today has a very specific purpose, which is to allow an extension of one year only to the current arrangements with a sunset clause. I am conscious that a number of individuals will be concerned about this initiative, and we need to find a way to bring some comfort to them as they contemplate what that will mean. I hope there will be a welcome outcome. I have specific notes here saying that there will be a 12-week consultation period—helpfully, this time I have the exact duration—between April and June, when these views can be put. We are working against the deadline of 31 March for the longer-term solution. There is a recognition that there needs to be a longer-term solution to address these aspects.

The noble Lord, Lord Maginnis, described himself as blunt. I think we can all endorse that view. The points that he made are none the less important. Specifically, he questioned how the Northern Ireland scheme compares to the scheme in the rest of the UK. If he will forgive me, I will write to him on that point so that we can set out in greater detail how the two schemes measure against each other. There are a number of technical aspects that I hope will be able to be addressed in that letter.

I emphasise again that the purpose of moving this forward for one year is not to enshrine this approach for ever but rather to provide an opportunity for the incoming Executive to focus quickly and carefully on what I believe are a number of the well-established flaws in this approach and to address them head-on. We have, I hope, time in which we can do that, and the notion that we are creating primary legislation in this instance should be no impediment to that because of the manner in which the Bills themselves are drafted. I hope that will help the noble Lord to address this.

I am aware that on more than one occasion the noble Lord has raised the point about the wisdom that is contained within this House. I too am grateful for that, even during today’s debate. I believe that, as the talks and discussions are ongoing, that wisdom should be drawn upon. I welcome again the meeting that took place between my right honourable friend the Secretary of State for Northern Ireland and some of your Lordships earlier today. I would like to see that happen with greater frequency so that we can ensure that, as the ideas begin to coalesce and crystallise, the views in this House are taken forward.

The noble Lord, Lord Bew, raised the issue of how we can understand the breakdown of the data. After the last time when we spoke on this matter, I am aware that I promised to give him that breakdown of the data but I fear that I may not have done so as yet. The noble Lord is right: it is important that we not only understand what we are doing at the moment but see it as part of a longer trend so that we understand exactly what is happening in Northern Ireland and interrogate the data where there appear to be things that on the surface do not look as if they are comparable with anywhere else. I would much rather see the five-year rolling cycle of data that can be fully interrogated. I commit again to breaking down the data with regard to the educational question, and I hope to be able to give some greater clarification in that regard.

As to the notion of the Commonwealth games, I am happy to give a personal commitment on that matter. I would like to think that the Government would join me in that commitment; that is an initiative that would be well worth taking forward.

I am conscious that the noble Lord, Lord Browne, raised an interesting point regarding the continuity of the business rate support scheme. Helpfully, the little note that I got back from the Box simply contained the word “Yes”, so I believe that that particular scheme will indeed be continuing. If the noble Lord requires further details, I can provide them as well.

I shall touch on some of the matters raised by the noble Lord, Lord Empey. I am aware that we have squeezed this debate into a very short time, and for that I apologise. I would much prefer a Northern Ireland Executive to take as long as they felt they needed to interrogate all this. I would much prefer that Executive to be dealing with it because they are living it, rather than sitting on burgundy Benches, but we are not quite there yet. I hope I have addressed the issues about the minutes to the noble Lord’s satisfaction—or as best I can. I am aware of the concern he raised about the heating initiative and I hope we can make some progress to give certainty there.

As for the wider questions of legacy, support for victims and so on, the noble Lord is absolutely correct: this needs to be above politics. It is humanitarian; it is not and should not be a matter for partisan division, and I hope we can take it forward on that basis. Progress will need to be made on that sooner rather than later.

My noble friend Lord Lexden raised an important issue about mental health. I can confirm that there will be £10 million in the budgetary cycle of 2018-19 to address those specific and serious issues, which I believe will be necessary.

Commenting on the remarks of the noble Lord, Lord Murphy, we too, on this side, regret the departure of Owen Smith. He was an asset to the ongoing discussion and leaves behind a void. I am sorry to see that.

In conclusion, the noble Lord, Lord Murphy, pointed out that he was not the right person to take forward direct rule in Northern Ireland. Nor am I. I am no better equipped—frankly, far less equipped—than he is.

[Lord Maginnis of Drumglass]

Before the Minister sits down, I draw his attention to one thing that he and the noble Lord, Lord Murphy, said: perhaps it would be a good idea to have a second-generation George Mitchell. We do not want another George Mitchell. Much as we loved him, much as we worked under him and much as we sought to achieve an agreement, that agreement was voted on north and south. I have nothing more to concede as an Ulster Unionist, and I hope noble Lords will remember that.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Maginnis, who makes his point clear, as always. I understand exactly what he is saying.

On that basis, I hope your Lordships will accept that this is not what we want to do, it is not how we want to do it and it is not when we want to do it, but it is what we must do.

[Lord Empey]

Before the noble Lord sits down, I ask him to reflect on the Judge Hart inquiry. If I picked up him correctly, he indicated that this would await the return of an Executive. I point out to him that every solitary MLA I am aware of supports the implementation of that inquiry. Other parties represented here can say no if they disagree. Every party supports it. Some of the material in the report is very harrowing. One lady started off in the system at four years old. She is now 87. How much more do we have to put these people through? I therefore ask the Minister to discuss with his colleagues and reflect on that.

Secondly, on the RHI scheme, although I appreciate that this is a renewal, it was originally based on no substantive information. I suggest that the Minister again consult his colleagues and ensure that a proper working party is established to alleviate this, because people are losing their livelihoods as a result of this botched scheme.

[Lord Hay of Ballyore]

Just before the Minister gets to his feet, I should like to say that I broadly agree with what the noble Lord, Lord Empey, said. There is no doubt that all the political parties in Northern Ireland want this issue resolved. The issue I raised earlier was that the institutions that carried out the abuse should be made to pay for some of that abuse and repent for all of it. I do not think there is an issue in resolving this, but it would be totally wrong if only taxpayers’ money was used to resolve it.

[Lord Duncan of Springbank]

I thank both noble Lords for their interventions, and I will reflect on them.

As to the RHI scheme, there will be an opportunity to feed in about past failings. The key thing now is to ensure that its future workability is also examined in some detail. These are matters on which I hope we can move forward on that basis. Therefore, I beg to move.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time, and passed.

Northern Ireland Budget (Anticipation and Adjustments) Bill

Lord Duncan of Springbank Excerpts

3rd reading: House of Lords & Committee negatived (Hansard): House of Lords
Tuesday 27th March 2018 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the Bill be now read a second time.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time, and passed.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Wednesday 21st March 2018 Lords Chamber

The Minister has been clear on his commitment—which I do not doubt—to the Good Friday agreement, but I doubt that we have what the House and the legislation needs: the legislative certainty on the issue that gives us the confidence that the commitment will be not just in words but in deeds and legislation.

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

My Lords, this has been a wide-ranging debate and I begin by thanking the noble Lord, Lord Patten of Barnes, for facilitating it. It will be almost impossible for me to respond without some form of repetition, I am afraid, and I am nearly certain that I cannot do it within one minute—I am very aware of that. Last week, too, we had a wide-ranging debate that touched on a number of issues and I hope that noble Lords will have an opportunity to examine some of the answers and discussions. I will try to be as focused as I can in the time available.

One of my first repetitions—one that I cannot make often enough—is that the Belfast agreement is the cornerstone of the UK Government’s policy and so it will remain. It is important to stress that the United Kingdom Government and the Ministers in the devolved Administration are already bound in statute and treaty under international law as an obligation of that Belfast agreement. That binds not just the United Kingdom Government but also the Irish Government, so this matter rests comfortably in that space.

Amendment 261, in the name of the noble Lord, Lord Patten of Barnes, would require both Ministers and Northern Ireland departments to have regard to the Belfast agreement and the wider principles when making any provision under this Bill that affects Northern Ireland. Those wider principles have been mentioned a number of times, not least by the noble Lord, Lord Alderdice.

Subsection (3) would require the Secretary of State to refuse consent to reserved provisions under devolved legislations unless the provision was necessary only as a direct consequence of the UK’s exit from the EU. This would place a much greater constraint on a provision that could be made for Northern Ireland compared to the rest of the UK, even in circumstances where there was no impact whatever on the Belfast agreement. In the same vein, the Secretary of State would be prevented from making any consequential provision affecting Northern Ireland beyond the minimum strictly required only as a direct consequence of exit. That would substantially constrain what could be done to update the statute book in Northern Ireland, putting the jurisdiction at a disadvantage compared to the rest of the UK. That is why we would not be able to move forward on the amendment as it has been tabled.

I am conscious as we approach the 20th anniversary—the noble Lord, Lord Murphy, stressed this—that we wish to see major progress, not least in the formation of an Executive. However, the noble Lord and other noble Lords raised wider issues, not least criminal proceedings and the European arrest warrant. In this context, I am conscious of the “beasts” of the noble Baroness, Lady O’Neill. Each of these elements will form part of the ongoing sector-specific elements which we will be discussing and which will come before your Lordships’ House for that thorough examination.

Amendment 316, tabled by the noble Lord, Lord Bassam, relates to an issue that has also been raised by your Lordships’ Constitution Committee. I say to the noble Lord that we will take on board his thoughts and give due consideration both to the committee’s report and to the issues that he has raised. We are conscious of that as a factor.

As to the Charter of Fundamental Rights, the noble Baroness, Lady Lister, has raised this wider issue on a number of occasions, as she reminded us, and I feel ill-equipped compared to those who responded to the point in the past. I will make two statements in direct response. The noble Baroness mentioned that next week there will be a delegation from Northern Ireland. I will be very happy to meet them, if that can be facilitated. I also give a commitment that I will take away her remarks from today and give them due consideration.

I could be repetitious at this point and say the lines that noble Lords have previously been given in response. I can give them again, but I think that noble Lords will appreciate that they will broadly stand where they did in the past. However, I am happy to engage directly with the noble Baroness and the noble Lord, Lord Cashman, on these matters going forward. I hope that that will give some comfort, if not contentment, on this matter.

I am always aware of what the noble and right reverend Lord, Lord Eames, brings to the debate. I think that he has captured the mood of the Committee as I do not doubt he has captured the mood of the entire island of Ireland in the past. His points are none the less correct. There is no doubt that the issues that we are facing now on Ireland will be the crux of the ongoing discussion. It is right that the noble Baroness, Lady Smith, should have raised these points again in her remarks. She is absolutely correct when she says that we have a responsibility to tell this House what we will be moving forward. We will fulfil that responsibility. It will not be in the withdrawal Bill per se. The purpose of the withdrawal Bill is to create a functional statute book for day one after Brexit. However, for each of the elements that has been raised, not least those that are sector-specific, we will come back to the House with clear statements, which all noble Lords will have the opportunity to address. I hope that we can make that point going forward as best we can.

I am aware that a number of other noble Lords have raised important issues, not least my noble friend Lord Cormack, the noble Lord, Lord Jay of Ewelme, and the noble Baroness, Lady O’Neill of Bengarve. This has been a wide-ranging debate. I hope that there will be some comfort in my words, but I appreciate that they may not be as comfortable as the Committee would like them to be. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

[Lord Patten of Barnes]

The Minister began his remarks last time by speaking from the heart. He spoke on that occasion without doing what I fear he did on this occasion, which was to deal as rapidly as possible with the “it says here” part of his brief. I commend the Brexit department for producing it, although I did not agree with the argument, which seemed to be more or less that if we accepted the amendment we would be treating Northern Ireland differently from the rest of the country. What does he think the Good Friday agreement is? The Good Friday agreement is about the fact that Northern Ireland unfortunately has been a casualty and a victim of our inability to share these islands peacefully together for centuries. I assure the Minister, whom I much admire, having seen him at the Dispatch Box being charming and on the last occasion reasonably convincing, though I think not on this occasion, that when we get to Report, Deo volente, if we are here, many of us will want to come back to this subject and, I hope, take it as far as a vote. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been an excellent debate. Here we have a successful and innovative industry with lots of SMEs involved, but their very future is at risk because of the approach that the Government are taking to Brexit. We need to be clear about this. The noble Lord, Lord Empey, talked about CE marking and the notified body. What is crucial is that the CE marking is a logo placed on medical devices to show that they conform to the requirements of the various EU directives. The notified body is an organisation that has been designated by an EU member state to assess whether manufacturers and their medical devices meet the requirements set out in legislation. As part of our being within the EU, the Medicines and Healthcare products Regulatory Agency is the designated competent authority in the UK. That sets out the legal position and why it is so important in terms of both patient safety and the ability of UK companies to do business in the rest of the EU and market some of the most extraordinary machines, devices and developments that have been seen in the world.

Here we come to the point where there is such a risky position for our companies. To take the point of the noble Lord, Lord Deben, we should look at Mrs May’s Mansion House speech, where she referred to the fact that the Government,

“want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”—

and she mentioned the European Medicines Agency by name, although, extraordinarily, not Euratom, which we will come to debate later this evening and tomorrow. She went on to explain why we should be seeking associate membership of the European Medicines Agency and the other agencies named. She said:

“First, associate membership of these agencies is the only way to meet our objective of ensuring that these products only need to undergo one series of approvals, in one country. Second, these agencies have a critical role in setting and enforcing relevant rules … Third, associate membership could permit UK firms to resolve certain challenges related to the agencies through UK courts … Fourth it would bring other benefits too. For example, membership of the European Medicines Agency would mean investment in new innovative medicines continuing in the UK, and it would mean these medicines getting to patients faster as firms prioritise larger markets when they start the lengthy process of seeking authorisations”.


If ever I have heard a convincing case for remaining a member of the EU, the Prime Minister set it out in her Mansion House speech. The point is the one that the noble Lord, Lord Deben, made. We are going to beg for associate membership. As the Prime Minister said, we will follow the rules and pay the cost, but we will have no say in the rules that are being set. At the moment, the MHRA is one of the most effective negotiators in the EU, so when it comes to medicines safety or devices, the UK has a huge influence. That means a big advantage for UK companies, because it has in mind the interests of the UK as a whole.

We are to throw all this away and be supplicants at the altar of those agencies, because the Government have woken up to the fact that they cannot let those industries go down, so they will have to negotiate associate membership. It will be on EU terms, because they are a lot bigger than we are. We will have to abide by their rules but no longer will we have any say in how those rules are developed. As the noble Lord, Lord Deben, said, we are trying to negotiate the least worst option, but it is a worst option.

It is a wholly depressing picture: this Government seeking to destroy so many of our innovative industries through their obdurate and ignorant approach to the way industry, the UK and the EU work. The noble Lord, Lord Empey, has done us a great service tonight by letting us debate this important issue. It would be nice, would it not, to hear a proper response from the Government to show that they recognise the problems that they are now causing for British industry?

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

My Lords, this medical device amendment has been deemed a probing amendment, and I can tell the noble Lord, Lord Empey, that I feel well and truly probed by the comments made across the Chamber this evening.

The noble Lord, Lord Deben, made a number of sweeping statements, which of course are accurate, about the response that I must give at this point. He will not be surprised to know that. We have agreed today the beginning of a journey with regard to the transition. I sought confirmation again that medical devices and the CE framework are included in that transition, and indeed they are, so I can give that assurance just now. The noble Lord, Lord Deben, will also be aware that the matters that we have discussed this evening must necessarily be a matter for negotiation. I am sure he will understand why that is so, also.

Were I to stop there, the Committee would rightly be disappointed. This has been a wide-ranging debate touching on a number of points. The noble Lord, Lord Hunt, in summation, raised the Mansion House speech delivered by my right honourable friend the Prime Minister. That speech is a recognition of the importance of mutual recognition, what it means and why it will be important after we leave the European Union.

As a Member of the European Parliament, I sat on the Environment, Public Health and Food Safety Committee when the medical devices and in vitro question was being debated, and I was aware how important that forum was for determining particular standards. I am also aware of the importance of the United Kingdom’s innovation in medical devices. It is global in its reach and import and is extraordinary in what it can achieve. I am aware that, as we exit the European Union, we must secure mutual benefit to both sides. I do not accept the assertion that this is a moment when big means right. We are seeking an outcome that is right for those who would seek the comfort and necessity of what those medical devices must be and can achieve for them.

[Lord Hunt of Kings Heath]

Will the Minister explain to noble Lords what effect mutual recognition would have? Can he explain how the UK will have as much influence on those rules in the future, outside the EU, as it does now, as a key member of it? Or does it mean that, in effect, we will simply have to follow the rules set by the EU?

[Lord Duncan of Springbank]

I thank the noble Lord for his question. I am again reminded of the importance of the United Kingdom’s academic sector and the academic excellence which it creates, not just in the wider area of science but specifically in medical science. I am aware of how important that innovation is and believe that, right now, it should be able to speak for itself in the negotiations and discussions in terms of the wider recognition and import of what they represent.

I am conscious that, as we embrace the challenges which lie ahead—

[Lord Bassam of Brighton (Lab)]

Will the Minister answer the point made by my noble friend Lord Hunt? It sounds to me that he is unable to do so. If that is the case, he should tell the House so. It is clear to me that he has not answered the question, which is highly pertinent and relevant to the direction of the debate.

[Lord Duncan of Springbank]

I am sorry if I have misled noble Lords. I am unable to answer the question. That will be a matter for the negotiations and I cannot comment upon them. This is the point made earlier by the noble Lord, Lord Deben. I wish I could, but I cannot. I am sorry if my response misled the noble Lord as well. Determining exactly how that mutual recognition will work in practice will be a matter for the ongoing negotiations. I hope that it will work on both sides in a common-sense way which recognises that, at the heart, we are talking about the health and well-being of individuals. We are not talking about constitutional matters or anything other than ensuring the best health for the people of the continent of Europe that we can achieve.

[Lord Wallace of Saltaire]

My Lords, the Government have talked about completing the negotiations by October 2018. Is this one element that they hope to have completed negotiations on by then, or will it have to be put off into the transitional period?

[Lord Duncan of Springbank]

It is the Government’s intention to complete all negotiations by that point.

I think that all noble Lords agree that UK notified bodies have a strong reputation in the EU. We have heard it more than once this evening. The notified bodies assess a disproportionate number of medical devices. According to a recent independent assessment of the market, UK notified bodies make up the first, third and fourth largest share of assessors. Furthermore, we estimate that UK notified bodies oversee between 50% and 60% of all the highest-risk devices on the EU market.

As I stated earlier, the UK has played a leading role in the negotiations of new regulations for medical devices in general and, specifically, for in vitro diagnostic medical devices. I believe that these innovations will make a significant difference. As the Government have made clear, whatever the outcome of negotiations, the principles which underpin our approach remain: that patients should not be disadvantaged; innovators should be able to access the UK market as quickly and simply as possible; and the UK will continue to play a leading role in both Europe and the world in promoting public health.

At the heart of much of this is the notion stressed by the noble Baroness, Lady Finlay. Inside the EU, there are a number of means by which research is supported, not least of which is the Horizon 2020 fund. We have been blessed by punching above our weight in securing funds from this resource. I believe that in future it will be an asset for the entire EU and this will be negotiated in the next few years. It has yet to be made clear exactly how it will be determined. I remind noble Lords that the last time this was negotiated the EU top-sliced a substantial amount of money away from the fund, to the detriment of the overall Horizon 2020 reach.

--- Later in debate ---

[Lord Tunnicliffe (Lab)]

My Lords, I declare my interest as a recreational boater and I thank the noble Lord, Lord Fox, for proposing the amendment of my noble friend Lord Berkeley. Everything that he said seemed entirely reasonable and I am sure that the whole House awaits the Minister’s concession on this point.

[Lord Duncan of Springbank]

My Lords, in moving this amendment, the noble Lord, Lord Fox, said that it may not be at the front of everyone’s minds. But as often happens in these circumstances, this particular issue is almost the nexus of all the key issues affecting withdrawal from the EU, whether it be our mutual recognition of certain types of goods for the purposes of customs duty, the precise arrangements and procedures for ensuring cross-border security or the mutual recognition of professional qualifications. So in truth, one might argue that this is a key amendment in many respects. The noble Lord, Lord Fox, is right to remind us of the significance of this sector. It is a substantial contributor to the Exchequer and a major employer. It is also, as a number of noble Lords have noted, a source of much pleasure, and we should not lose sight of that.

In responding to this debate it is important that I am very clear, so perhaps I may turn directly to the specific question raised by my noble friend Lady McIntosh. She asked whether we will continue to align with future legislation within the EU. I am afraid that that is a commitment I cannot give at this moment because it will be determined by the ongoing negotiations and our future relationship at that point. However, it is important to stress that we are in very regular contact with the British marine sector and are attentive to the issues that it is raising. I hope that in saying that, my noble friend will recognise that it is our intention to be very careful as we take this matter forward.

--- Later in debate ---

[Lord Tunnicliffe]

The noble Lord started by saying that this is the nexus of the issues virtually across the piece. He is painting a very dull picture of the future if he cannot assure us that in this area we are able to achieve the objectives of the amendment.

[Lord Duncan of Springbank]

I thank the noble Lord for his probe in this regard. This is, if you like, the epitome of the challenges we are facing, but unfortunately it is larger than the individual amendment can recognise and what it seeks to do, which is to have Ministers place before us a single report setting out both the current arrangements and thereafter the arrangements that we secure through negotiation. The arrangements we secure through negotiation will be detailed for this House and will be iterated so that we understand what they are, and they will emerge from that negotiation. It is not our intention to downplay the significance of these issues, but we must recognise that they play a part in a wider question, in particular when it comes to the customs issues. On that basis, I still hope that the noble Lord will be able to withdraw his amendment.

[Lord Fox]

My Lords, I thank the Minister for demonstrating his sensitivity to this issue, which will be reassuring to some extent for boat owners and boating businesses around the UK, so there may be some solace in that. The amendment is not seeking a running commentary on the negotiations. The Minister is correct to say that this goes to the nub of the customs and free movement issues as they unfold, but providing a promise of some kind to keep the industry informed about what is going on is very important. Obviously we will look at the Minister’s response in detail in Hansard, and with that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, this has been an interesting debate, and we have identified some of the challenges that we face in public health: air quality, environmental standards, food standards, accidents, infectious diseases and, indeed, huge health inequalities. I listened with interest to the noble Baroness, Lady Oppenheim-Barnes. Overall, I disagreed with her. Of course, you can pick out some regulations from the EU with which one might disagree or think that they do not go far enough, and she identified an issue around labelling. Overall, however, the EU has been generally helpful and a force for improvement in public health. I mention in particular air quality, because that is one clear example where it has pressed this country hard on our very poor performance. Governments have started to do something about it only because of the fines we face. There are other examples as well.

The fear expressed so well by noble Lords—I too pay tribute to the Faculty of Public Health for its briefings on this—is that without EU law, and in the context of already significant reductions in public health budgets, we will see a gradual erosion over time of our important public health legislation. The noble Baroness, Lady Finlay, and others mentioned food safety as an example. The Minister will no doubt tell us that he cannot say anything substantive because of the process of negotiations; he has said that a few times before. However, one of the fears clearly is that in the Government’s haste to negotiate a deal with the US—they are desperate to do so, for obvious reasons—when it comes to it, things like some of the food standards we have at the moment will go by the board. We know that that will happen because they have to produce a US trade deal; they have no option but to do it. They are so weak compared to the US in terms of the negotiation that it is quite likely that some of those standards will have to be thrown away.

That is why this amendment has been brought forward tonight. Ministers have helpfully discussed this amendment in meetings with some stakeholders. I know Ministers may say that the Secretary of State already has the powers set out in the amendment. However, as the noble Lord, Lord Warner, said, the amendment would place a duty on the whole of the Government to do no harm. That is a very important distinction. Importantly, it would also place a duty on other public authorities, including the devolved nations, so I believe that it goes further than current legislation. It is relevant to the European Union (Withdrawal) Bill, not just to a theoretical health and social care Bill which may be introduced at some point.

Other noble Lords have talked about the Lisbon treaty and the impact upon it. The amendment essentially seeks to ensure that there is a legal precedent and interpretive guidance on which to draw when determining the meaning of the proposed new clause, but, as I understand it, it does not seek to preserve EU law and regulation. Therefore, it would be for the British courts, on the basis of our doctrines of parliamentary sovereignty, to decide the future interpretation of the law.

This has been a very important debate. The Minister has to recognise that there is real concern that the Government’s desire to negotiate agreements with other countries will lead to them having to agree to reduce some of our essential public health standards. This amendment seeks to provide a guarantee and assurance that this will not happen. We should very much welcome it.

[Lord Duncan of Springbank]

I thank the noble Lord for his comments. I will start where he finished: no, we are not going to do that. I am afraid that is not the Government’s purpose. There will be no rollback of these standards because they are at the heart of what we believe to be right and proper. A number of noble Lords have implied that what has been proposed will be the case. I assure them that is not the case.

My noble friend Lady Chalker is right to stress the leadership role that the United Kingdom has long had in the area of public health. Indeed, that leadership role has been a beacon to not only the EU but its member states. As someone who currently lives in Edinburgh, I recognise the role that Scotland has had in pushing forward boundaries which are only now being adopted in certain parts of the world. It is important to stress that we are not in any way diminishing our regard for public health. Indeed, in bringing across the corpus of European law, those matters will rest in our statute book and will therefore be removable only by the other place and by this place.

Before I address some of the more substantive points, it is important once again to look at the EU itself, mostly in the area of public health. The noble Lord should be aware that public health has not been a core competence of the EU. Indeed, many of the aspects of public health have rested elsewhere within the statute books. Noble Lords will be aware that we have known about the pernicious and deadly impact of tobacco for many years, yet it is only in the last five years that the EU has phased out subsidies for tobacco growers.

I was a member of the European Parliament and sat on the environment committee. I also sat on the committee that investigated a scandal that came to be known as “dieselgate”. Noble Lords will be aware of exactly what that represented. At the heart of the EU, a major organisation installed cheap devices in vehicles that were specifically intended to undermine the core air quality standards. We should again remember that that was uncovered by an American public body, not by the EU’s body, which is in itself a borderline scandal. Further, we must also recognise that Volkswagen has compensated car owners in the US but has not in any way compensated car owners in the EU.

I am reminded also of the traceability of food and the horsemeat scandal, which riddled the EU. High standards are important only if they are met, and they must be met in each and every instance. Far too often we have found across the EU some of the most rigorous standards on paper that there could ever be, yet their enforcement is dreadful and woeful. Indeed, I am nearly certain that when we leave the EU the mean standard of public health will fall in the remaining states, so important is the contribution that we make to the wider question of public health.

When we look at the role of global standards and something like the recent Ebola outbreak, it was not the EU that pushed at that standard but France and the UK. They recognised an obligation to deliver against that pernicious pandemic. I believe we also need to recognise that the UK has been at the cutting edge of driving forward public health.

The noble Lord, Lord Warner, said that I might suggest that his amendment was vague. It is not vague; it simply duplicates exactly what the Government—indeed, not just this Government but every Government—have long said and long held to be dear. At the heart of good government must be the preservation of public health. It must be a cornerstone not just in the UK Government but in the Governments of the devolved Administrations, which in some respects have been brought into the ambit of the report. We need to recognise that.

Perhaps I may touch upon some of the other issues that have been brought into this wide-ranging debate. I reiterate that many of the aspects that we are touching on here will necessarily be part of ongoing negotiations, but I assure noble Lords that it is this Government’s intention to secure the highest possible engagement on matters of wider public health. I thank the noble Lord, Lord Patel, for bringing up a number of the areas that I believe the Government need to look at carefully—how we continue our collaboration, how we ensure that we can co-operate and how we can maintain that high standard. We can do so by sharing practice on both sides, because we both have a great deal to contribute and each will be the poorer for the absence of that collaboration.

It important for me to stress that the Secretary of State for Health and Social Care has a statutory duty under the National Health Service Act 2012 to protect the health of the public. A number of noble Lords have raised that, as indeed has the briefing from a number of sources, not least the Royal College of Physicians of the United Kingdom. Of course we are going to argue that the Secretary of State for Health and Social Care already has these powers, and it is his intention to hold them to the highest possible standard. I stress that, although there is an equivalent duty under the NHS—

[Lord Warner]

Can I make it clear that the Minister is saying that the powers and duties of the Secretary of State are as wide as the powers and duties in this amendment?

--- Later in debate ---

[Lord Duncan of Springbank]

I am stressing once again that the powers and duties that rest upon a Secretary of State for Health and the health department are high enough and wide enough to capture the intent of this amendment, and that is why the Government will not support the amendment on this occasion.

[Lord Warner]

That was not my question. Can the Minister say whether the current powers extend to the devolved Administrations, the other public bodies and the whole of government, as covered by the amendment?

[Lord Duncan of Springbank]

No, for one very simple reason. As the noble Lord knows, we cannot impose on the devolved Administrations by this mechanism. I am afraid that that is a simple statement of where the law and the devolution settlement rest.

[Lord Hope of Craighead (CB)]

My Lords, there is another way of approaching this, and that is to ask whether the provision in the treaty on which my noble friend Lord Warner has based his amendment is part of retained EU law. If it is, then it has a place in the statute and will be applied by the courts if necessary. Is the noble Lord able to answer that? Is it part of retained EU law?

[Lord Duncan of Springbank]

In this instance, it is not part of EU retained law, but that is not the point. We are saying that the powers that already rest in the Secretary of State’s hands are equal to the powers that would come through this amendment.

[Lord Deben]

If it is not part of this Bill, why not? The Government said that they were going to take this into the legislation. Why is it excluded? That is why people are frightened—because the Government have not put it in the Bill.

[Lord Duncan of Springbank]

Because it is superseded by the power that rests in the hands of all good Governments to deliver at that particular level. That is the purpose, and that is the point that I raised just now. If I may, I will make some progress.

It is important that I stress that we are committed to continuing co-operation not just within the EU but more broadly. That is why we are an active participant in the World Health Organization and in various other elements of global public health. My noble friend Lord O’Shaughnessy, the Parliamentary Under-Secretary of State for Health and Social Care, who is sitting beside me this evening, has committed to continuing the UK’s leading role in promoting and ensuring public health, in Europe and beyond. This commitment builds upon the principles set out by my right honourable friend the Secretary of State for Health and Social Care last July on a post-Brexit regulatory system where patients are not disadvantaged and patient safety remains at the heart of our endeavours. It is the Government’s intention, as stated in the future partnership papers, to continue collaboration with the EU to safeguard resilience. This of course will be determined as we move through the engagement on this matter.

I stress that the values and principles which have underpinned our National Health Service for the past 70 years—and which are not to be traded away with the US or any other trade partner we might have—will continue to guide us, just as they have contributed to the development of health and social care services across the EU. That is why, in this instance, I ask the noble Lord to withdraw his amendment.

[Lord Warner]

My Lords, I am grateful to everybody for their contributions in this debate. My score-card shows 14 in favour of the amendment and two against, including the Minister, and that was across the Benches. I am glad that he has moved on from saying that the amendment is vague—that is a bit of progress from what Ministers said before to the Faculty of Public Health.

The Minister seems to be setting up the EU as a straw-man villain to criticise. I never claimed in the past that everything that the EU did in this area was perfect and for all time. What I was trying to do in this amendment was take a principle in the Lisbon treaty, which this country has signed, and apply it to the jurisprudence of the future. If I may, I remind him of the quotation from the High Court judgment, which he needs to read carefully. It makes it very clear that the courts found it useful to apply this principle and put it at the “epicentre”—the word of the judgment, not mine—of public health. It was used in coming to a judgment that actually helped the Government’s position on tobacco policy.

I have heard nothing from the Minister which suggests that the Government have got the same breadth and width of coverage as this amendment provides in this legislation. As the noble Lord, Lord Deben, said, I cannot see why on this issue the Government cannot put in the Bill what they claim to be their policy. It would reassure a very large number of people and help with the exit from the EU. I can guarantee the Minister that I shall return to this issue on Report.

I would be very happy to have a meeting with him, if he feels some flexibility coming upon him, as would many of my colleagues. However, if he does not, I think he can expect a rerun of this on Report. In the meantime, I beg leave to withdraw my amendment.