Northern Ireland Finances

Lord Duncan of Springbank Excerpts

Tuesday 13th March 2018 Lords Chamber

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

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

“With permission, I would like to make a Statement about Northern Ireland finances. Last week, I laid a Written Statement in which I explained that the pressures on public services meant that it was imperative for the Government to take steps to provide clarity to enable planning in Northern Ireland for 2018-19.

With great reluctance, and in spite of my strong preference for a new Executive to set a budget, I set out in this Statement the resource and capital allocations which I considered to be the most balanced and appropriate settlement for Northern Ireland departments. I did this following intensive engagement with the Northern Ireland Civil Service—NICS—and consultation with all of the main Northern Ireland parties.

In the continued absence of an Executive, I have an obligation to take these and any other measures that are necessary to keep Northern Ireland functioning. But I will only take such measures where they are essential and limited in nature, and are part of a clear and consistent approach by the Government. This approach is based on a number of principles. First, we remain steadfast in our commitment to the Belfast agreement. All that we do will be with the purpose of protecting and fulfilling the agreement. But, secondly, we will take those decisions which are necessary to provide good governance and political stability for Northern Ireland, consistent always with restoring the Executive and local decision-making at the earliest possible opportunity. Thirdly, we will continue to implement our obligations under the agreement and its successors where possible, always working for the good of the community as a whole. Finally, we will continue to work with all the Northern Ireland parties, and with the Irish Government as appropriate, to remove the barriers to restoring the Executive and a fully functioning Assembly.

The principles at the core of the agreement and the political institutions it establishes continue to have our full and unreserved support. That means that we will uphold the principle of consent, consistent with this Government’s support for Northern Ireland’s place within the union and with maintaining the constitutional integrity of the United Kingdom. We believe in devolution and the imperative for local decision-making by local politicians. We support power-sharing on a cross-community basis, based on mutual respect and recognition. We will continue to support and facilitate north/south co-operation, including as we leave the EU, while always preserving the economic integrity of the United Kingdom. We will continue to work closely with the Irish Government in full accordance with the three-stranded approach. We will continue to act fairly and govern in the interests of all parts of the community in Northern Ireland.

The necessary steps, which I have taken and will continue to take, are consistent with all of these commitments. In addition to the steps I set out last week, there are several associated measures required to further secure public finances which I will be taking forward. As well as cutting costs, securing efficiencies and beginning to take the steps to transform public services, it is right to look at how income can be increased to protect the public services on which the people of Northern Ireland depend. I will therefore introduce legislation to set a regional rate, which will increase domestic rates by 3% above inflation. This will make an important contribution to sustainable finances in the long run, with the additional funding addressing urgent pressures in health and education. I also intend to act to extend the cost-capping of the current renewable heat incentive scheme in Northern Ireland, which the Assembly had put in place over a year ago. It would not be acceptable to put finances at risk by simply allowing that cap to lapse. I therefore propose to extend it for a further year from 1 April, the minimal possible step to protect the public purse. I will also confirm the final spending totals for the Northern Ireland departments for the 2017-18 financial year in legislation to set supplementary estimates.

I also believe that the time is right to address the ongoing public concern about MLA pay in the absence of a functioning Assembly. I thank Trevor Reaney, who was instructed by my predecessor to produce an independent view and recommended a 27.5% reduction to MLA pay. I will seek to introduce legislation to take a power to vary MLA pay. Further to that, I am minded to reduce pay in line with the Reaney review recommendation, but I would welcome full and final representations from the Northern Ireland parties before I make a final decision.

These measures—which I take reluctantly, but which are necessary in the absence of a functioning Executive and Assembly—will deliver the stability and the decisions to enable forward planning for the financial year ahead. But I am clear that they cannot provide the local input and fundamental decisions which are needed to secure a more sustainable future for Northern Ireland. My powers as Secretary of State for Northern Ireland are limited. The scope of this House to pass legislation on the devolved issues which matter for Northern Ireland is limited. This rightly reflects the devolution settlement which is in place and to which this Government are committed. But it does mean that, in the continuing absence of an Executive, there are fundamental decisions in Northern Ireland which cannot be taken, scrutinised and implemented as they should be.

This has been the situation for 14 months already and, in the continued absence of an Executive, it would be irresponsible for us not to consider how we might provide for different arrangements until such time as the devolved institutions are back up and running. Alongside this I also continue to keep under review my statutory obligation to call an Assembly election.

I would welcome the views and proposals of the Northern Ireland parties and others on how such arrangements—providing for local decision-making and scrutiny on a cross-community basis—might be achieved in the continued absence of an Executive; and how any such arrangements might work alongside the other institutions of the agreement. Let me be clear that this in no way affects my commitment to the Belfast agreement, nor my commitment to continue to work to remove the barriers to the restoration of devolution. As the 20th anniversary of the Belfast agreement approaches, I am clearer than ever that Northern Ireland needs strong political leadership from a locally elected and accountable devolved Government. That remains my firm goal. I commend this Statement to the House”.

--- Later in debate ---

[Baroness Suttie (LD)]

My Lords, I too thank the Minister for repeating yesterday’s Statement. However, there is a slightly wearying sense of déjà vu about it, and one cannot help but wonder at what point these sticking-plaster solutions will cease to be viable. Clearly, however, a return to direct rule is something that we all wish to avoid, and we continue to believe firmly that power-sharing devolution is vital to local democracy and representative decision-making. In that regard, the Secretary of State’s reassertion of the Government’s commitment to both the Good Friday Belfast agreement and to re-establishing functioning devolution in Northern Ireland is very much to be welcomed.

We on these Benches recognise the pressures on public services, meaning that these measures are essential to ensuring that the people of Northern Ireland do not suffer in the provision of vital services, and to ensuring that education and healthcare services can function and that peace and stability can be maintained by the PSNI. The Police Federation has warned that the 0.3% increase in the Ministry of Justice budget will inflict real damage on the PSNI. The PSNI is currently spending £125,000 a day on overtime to fill gaps in its workforce capacity. Can the Minister confirm that ensuring that the PSNI is able to carry out its work effectively remains a key priority for the Government? The Civil Service in Northern Ireland, as the noble Lord, Lord Murphy, has said, continues to do sterling service in keeping the system functioning but, without the direct input of Northern Ireland Ministers, much-needed long-term strategic planning for Northern Ireland becomes increasingly difficult.

In the Statement on 20 February, in reply to my question about the introduction of an independent mediator to chair the all-party talks and to attempt to bring new impetus to the drive to re-establish an Executive in Northern Ireland, the Minister said nothing was ruled out. Can he give an update on whether that is still an option that is being actively considered? Can he also outline what other initiatives are being actively considered to break the current impasse in the talks?

I note the ongoing discussions on MLA pay and the Reaney review. What representations has the Secretary of State had on this issue from political parties in Northern Ireland? In the Statement the Secretary of State says,

“it would be irresponsible for us not to consider how we might provide for different arrangements until such time as the devolved institutions are back up and running”.

Can the Minister confirm that this would involve options allowing Members of the Assembly to play an active role in ensuring that Northern Ireland’s voice is heard clearly in the Brexit negotiations?

[Lord Duncan of Springbank]

I thank the noble Lord and the noble Baroness for their contributions. It is important for us to stress again at the outset that we are all united in our belief that the Belfast agreement itself must be the foundation upon which we build all our progress. I think we are all of the same view. I am aware that we are experiencing a recurring sense of déjà vu—we certainly are with some of my Statements—but it is our ambition to secure the reformation of a functional and sustainable Executive in Northern Ireland.

I think it is important for me to answer the questions directly as they have been raised. On the question from the noble Lord, Lord Murphy, on how we came to the figures within the overall budget, he is right to stress that we have put a great deal of pressure and stress upon the Northern Ireland Civil Service, but it has been very important in determining departmental needs. That has been the first building block. The second is that, as he will be aware, a budget briefing was published just before Christmas. The Northern Ireland Office has reflected very carefully upon the responses that were received in the light of that briefing from the main parties of Northern Ireland, and they have been borne in mind. In addition, my right hon. friend the Secretary of State for Northern Ireland has undertaken a fairly extensive engagement with individual stakeholders —teachers, doctors, nurses, and police officers—to understand the challenges faced on the ground. It is important to reflect on how important that is.

The figures we are talking about are substantial, and I believe they will make a substantial difference. We have £80 million of support for immediate health and education pressures, £30 million to support programmes to address issues of mental health and severe deprivation, £100 million for ongoing work to transform the health service in line with broad-based consensus fostered by the Bengoa report, and a £200 million allocation in capital spending for key infrastructure projects.

That gives a sense of the scale of the investment. There is also a recognition, as we build that budget—we have spoken of this before—of trying to plot a trajectory from the point at which the previous Executive fell, and then trying to plot across. We have had to take that as a basis and build on it, and that is why £4 million has been allocated to prepare the ground for transformation and £100 million set out for health transformation, recognising again that these are part of the critical elements that are identified by departmental heads in the Civil Service and the main political parties.

On the question of MLA pay, I stress again that my right honourable friend the Secretary of State for Northern Ireland would like the views of others to make sure that in her determination and deliberation she can deliver exactly what is required. I am mindful of the point made by the noble Baroness, Lady Suttie, about the potential roles for the MLAs themselves—even without being part of a functional Executive. As I said in a previous Statement on a not dissimilar topic, we have not ruled anything out, and would welcome the thoughts of the noble Baroness, Lady Suttie on that point, to help us in our thinking. As for when we can anticipate the legislation, if I may be slightly non-specific, we will bring forward necessary legislation imminently to deliver against the budget as we have set it out.

The noble Baroness, Lady Suttie, raised the PSNI. Again, I can be very clear and specific and say that it remains a key priority of the Government, and we will do all we can to preserve that and deliver against it.

As to the question of an independent mediator, noble Lords will be aware that we are in an interregnum—the talks have ended but are not over—and that period of reflection has given all of us an opportunity to work out what additional aspects of engagement should be brought to the table. I am becoming a little repetitive, but I will say again that we are ruling nothing out. Anything we can do to take this forward must form part of that.

We also hope that the parties involved in the talks will take advantage of this period to reflect not just on what they wish to deliver for the parties themselves but for the wider communities they represent. That will be essential. If the talks are to deliver an outcome that is sustainable, meaningful and restores local government to Northern Ireland, we need to be able to depend on them. There are too many important issues unfolding right now, not just in our House, but affecting everyone in Northern Ireland. It is time that we heard those voices in an Executive and an Assembly.

[Lord Maginnis of Drumglass (Ind UU)]

My Lords, I am grateful to the Minister for repeating the Statement, and particularly grateful for the hands-on methodology that he has adopted since he became Northern Ireland spokesman in this House. It is refreshing.

I have two issues. Is the Secretary of State aware of the barely disguised efforts of Taoiseach Varadkar and foreign spokesman Coveney to interfere directly in the internal affairs of Northern Ireland? This callous activity goes as far as encouraging Sinn Féin not to progress the current talks towards a solution or the implementation of an effective power-sharing Executive. I furnished the Minister with that report from the Irish Times previously.

On the need for an urgent interim methodology, if, when an aspect of direct rule is required—and many of us think that it is required—I would press that a considerable number of those who achieved the Belfast agreement sit in this House. There are others here who have, when the Executive was functioning, been effective and experienced there.

I suggest, having been ignored—I might even say boycotted—by previous Secretaries of State, that the current Secretary of State, Secretary Bradley, will not allow herself to be intimidated but will look to those who have years upon years of experience, from 1994 until now. They have 24 years’ experience and may just be able to give some common-sense guidance.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Maginnis, very much for his trenchant intervention. The noble Lord is right to point out that, sitting in your Lordships’ House are a number of architects of the Belfast agreement, and that the knowledge contained within these four walls should be drawn on now as we begin to enter this phase of maximum danger, when we need to be able to deliver an outcome that works for the people of Northern Ireland.

I am reminded again of the remarks by the noble Lord, Lord Empey, on these issues the first time I stood here at the Dispatch Box. He said that it is very easy to walk down the steps of Stormont; it is very hard to walk back up. Of course, he was alluding to the challenge of direct rule.

We hope to—and we will do all we can to—bring a rapprochement, by whatever method we can, to the parties who are needful in delivering this particular serious outcome. In addition, I note that the noble Lord, Lord Maginnis, passed me information that I have taken away, and we will certainly look at that in greater detail. I may come back to that on a later occasion.

[Lord Reid of Cardowan (Lab)]

My Lords, I welcome the very definite commitment in this Statement again to the Belfast Agreement and to the principles that underpin it. It is worth reiterating that at every opportunity in view of some of the voices off, which I do not think have been particularly helpful. I ask the Minister to very much bear that in mind when it comes to the seemingly innocuous phrase:

“It would be irresponsible for us not to consider how we might provide for different arrangements until such times as the Executive is back”.


I am not opposed, nor would any Member of this House be opposed, to discussing how to move things forward, but I think, with the benefit of hindsight—some people, such as the noble Lord, Lord Empey, might say “with foresight”—that some of the changes we have made from time to time to the mechanics of the operations of the Executive have not always been conducive to encouraging the coherence and the spirit of the Good Friday agreement. There are risks and dangers in that innocuous phrase.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Reid, very much for again bringing his knowledge to the discussion. He is absolutely right to speak of the voices off and the noises off. We have to turn them off; it is unhelpful right now. We need to focus on what we believe we require, which is securing again the Belfast agreement at the heart of the restored institutions in Northern Ireland. I am happy to emphasise that again whenever I am called on to do so.

Again, it is telling that the noble Lord is willing to reflect on his own time in office. It is rather like lifting the bonnet of a car. I have no idea what happens under there. You start tinkering at your own peril. It is amazing what harm you can do when you have less experience of what is under there. That is not to say that we need not be careful about how we move forward. None the less, we should be progressive. The reason my right honourable friend was very clear in her Statement is that we need to recognise that, at this time of challenge, we must have a means of securing those voices in the essential and ongoing discussions. Noble Lords will be aware that in the next few days we shall return to a number of the devolved elements of the withdrawal Bill. When we talk about these essential issues here in our House, I am again minded of the deafening silence from the Executive, which does not sit, and the Assembly, which cannot speak. I am mindful of the warning from the noble Lord but at this moment we need to find ways to secure progress. As I have said, I do not believe we can take anything off the table.

[Lord Bew (CB)]

My Lords, I thank the Minister for repeating the Statement and thank him for the trenchant defence he has once again given this afternoon of the 1998 Belfast agreement. It is vital that he does so and that others recognise and listen to what he has to say.

I wish to press him on a point of detail in the Statement. I declare an interest as a former teacher in the two universities in Northern Ireland. The Secretary of State’s Written Statement of 8 March says that there is an increase in real terms in the education budget. However, on the current figures, there is no way of working out what is happening in that regard in the higher education sector as against the rest of the education sector. I do not wish to be churlish about this because this budget is tremendously important. The £10.4 billion is crucial to Northern Ireland and is a clear benefit of the union to the people of Northern Ireland. Tomorrow we will hear a lot about the European Union. I think its contribution is 1% of that, and that quite a lot of that 1% is recycled United Kingdom money.

I am grateful for this budget but we need a little more clarity on it, if possible. The Secretary of State’s Statement says that later in the year there will be more detail on it. I urge against the idea that giving us that kind of detail is a move towards what is now called in the lexicon “full-fat” direct rule. I think this could be done without raising these theoretical or ideological problems. I wish to press the Minister on this as there is great concern about it. For example, as regards higher education, there are many rumours in Northern Ireland that the Government are setting their face against postgraduate funding in the universities in Northern Ireland and envisage introducing major changes there. We cannot tell anything about that from the Secretary of State’s Written Statement. The noble Lord, Lord Murphy, also referred to issues on which the Government could give us a little more information. I hope they will do so later in the year.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Bew, very much for his intervention. I am trying to avoid full-fat anything at the moment and am looking for the semi-skimmed approach as far as I can. The noble Lord made a legitimate and appropriate request. I believe we will be able to furnish him with the appropriate information very soon. It is absolutely essential that the people of Northern Ireland are able to see how the money is crafted and allocated. I would much prefer to be wholly scrutinised by an Executive founded and operating sustainably in Belfast but, in the absence of that, I believe your Lordships’ House also needs to be able to scrutinise this issue adequately. I believe information will imminently be provided that will allow us to do that very thing.

[Lord Browne of Belmont (DUP)]

My Lords, I welcome the budget Statement. It enables the hard-pressed public services in Northern Ireland to continue to operate and gives the Stormont departments certainty for the next financial year. I particularly welcome the £410 million extra new money for Northern Ireland as part of the confidence and supply agreement with the Democratic Unionist Party. It will provide much-needed support for health, education and infrastructure and will benefit all the communities right across the Province.

While I welcome the Secretary of State’s willingness to look at arrangements to provide for local decision-making and scrutiny on a cross-community basis, does the Minister agree that it is vital that the Government intensify their efforts to restore devolved government to Northern Ireland so that decisions can be made by locally elected and locally accountable Ministers?

[Lord Duncan of Springbank]

I thank the noble Lord for his intervention. The £410 million will do good across the communities. I believe that it will be spent wisely and will address a number of the challenges that have been experienced in Northern Ireland, which will be good to see. However, I want to be very clear that we need to be in a situation where these matters are addressed at a local level—not just in terms of the allocation but, more importantly, in terms of scrutiny. There must be full transparency and full confidence in the manner in which this money is constructed and allocated, and spending overseen. We must have great confidence in that; it will go some way to restoring confidence in governance in Northern Ireland, not just in what we are trying to do to bring about a stable and sustainable Executive.

[Baroness Blood (Lab)]

My Lords, I will ask the Minister a brief question and a direct one: We welcome the extra money going into Northern Ireland, especially around health and education, but who will make the decision about where that money will go? Last year, in James Brokenshire’s Statement, £50 million of the confidence and supply money was given to mental health. To this day, not one penny of that £50 million has been spent, simply because there is no local Minister to sign it off. Will we be tied by the same regulations, for instance around the infrastructure money? Who will make up their mind who will get the money and where it will go? Will it come direct from Westminster? What is the position?

[Lord Duncan of Springbank]

I thank the noble Baroness for her intervention. Money allocated and unspent does not do any good. It is as simple as that. We must be in a position to ensure that the money allocated is spent. We believe this is best achieved through the departmental structure that exists in Northern Ireland. The determination of the overall scale of spend has already been achieved through direct consultation with civil servants in Northern Ireland. They will be responsible also for the delivery of that money into the various, clearly set out projects. It will be necessary not only for the money to be spent but for it to be transparent and clear. The people of Northern Ireland must be able to see that and recognise what good the money is doing to meet challenges that are now well established and well recognised. The noble Baroness will be aware of several of these challenges in the areas of health and education. But I stress again that the money and responsibility will rest with the departments. We will ensure that it is spent in a transparent manner that will give confidence to those who see the money and, hopefully, see the good it will achieve.

[Lord Empey (UUP)]

My Lords, surely the Minister accepts that there is a need to do things differently. We have come to a series of Statements of this nature over the last 14 months and there is little or no prospect of any immediate resumption of devolution. In fact, people are now talking in terms of “post Brexit”. Members will know the effect of a vacuum in Northern Ireland and who is likely to fill that vacuum—and it is not going to be the good guys. The reality is that the principal parties of government—whatever the ebb and flow of the agreement that never was—have run the institutions into the ground. That is the fact. Mention has been made of confidence and supply money. Will the Minister tell us when this will be approved by Parliament? At the moment it is effectively an undated cheque, and the departments need to know when they will be able to take it into account.

A second point raised concerned the RHI cap. While that catastrophe has yet to completely unfold, a lot of people out there legitimately took the Government of Northern Ireland at their word and got these boilers installed, and some are now facing financial ruin. Their bankers were encouraged by ministerial letters from Mrs Foster to lend them money to get these boilers, and now the premiums they were getting on the original business plan have been slashed. So those people are in severe difficulty and I ask the Minister to bear that in mind.

I turn to the alternative arrangements, which I think we were all interested in. I thank the noble Lord, Lord Reid of Cardowan, who I think is the first senior politician even to hint that some tweaks and changes made over the years have not necessarily worked out as planned. Can the Minister tell us exactly to what extent the Government have an open mind on these matters? There are a lot of ideas around the House that could be fashioned and used, and I believe we are willing and able to help in working towards a constructive solution—but I repeat that a vacuum is the worst possible situation. It leaves the pitch open for players to come back on when we thought we had them suppressed. This is a golden opportunity for these people and we should all stand up against them.

[Lord Duncan of Springbank]

The noble Lord, Lord Empey, has made three useful points. I note again that the noble Lord, Lord Maginnis, spoke about the fact that there are a number of architects of the Belfast agreement in your Lordships’ House—although in some respects they are not architects but mechanics. We have not built an edifice that just has to stand; it is an engine that has to work.

In response to the third point raised by the noble Lord, Lord Empey, we have an open mind and we need to think afresh about anything that can help us to move this matter forward. Of course, we recognise that we are facilitators of the dialogue. We cannot insist on or thrust forward what we wish to see happen—but we hope that, by providing a safe space in which to negotiate, we can bring it about.

In response to the noble Lord’s first question, the confidence and supply component of the budget will be dealt with as part of the overall allocation. As I said in response to the noble Lord, Lord Murphy, that is imminent—so I hope we will be in a position to discuss that seriously very soon.

With regard to the wider question of boilers and the RHI scheme, I stress again that my right honourable friend the Secretary of State for Northern Ireland is very aware of the challenges that it represents and will be very careful in taking the matter forward.

[Viscount Brookeborough (CB)]

My Lords, perhaps I may ask a question about the policing or Department of Justice budget, which may be £36 million. How much of that will go to front-line policing, bearing in mind what the noble Lord, Lord Empey, said about the various problems with filling a void? There is another point. Policing is not just about crime that is being committed today and nor is it just about terrorism; it affects every community and every person. The fear of crime is a very big issue—but I do not mean simply that individuals are afraid of crime. It is the Government’s responsibility to protect the community. Without a doubt, the level of resources for policing has gone down and that adds to the feeling of hopelessness in the community: “We have not got an Executive—and sometimes local policing is not very effective”. We used to have a lot of community policing, which was all part of the Patten proposals—I declare an interest in that I was on the Northern Ireland Policing Board at the time—but we really do not have that now. We have mobile police stations, but that is not community policing. It is not keeping your finger on everything and it does not reassure the population. The lack of certainty from a government point of view has a very big effect on people’s outlook.

[Lord Duncan of Springbank]

The noble Viscount, Lord Brookeborough, makes an almost philosophical point about the purpose of a police force and about the fear of crime. In many respects, the best possible police force is the one that you never see because you never need to, as it works so effectively that you are safe, secure and sound without ever seeing any intervention. I stress again that my right honourable friend the Secretary of State for Northern Ireland is very aware of this challenge. I do not know the answer to the noble Viscount’s specific question; if he will forgive me, I will write to him setting out the proportion of the police budget that is for front-line services.

[Lord Kilclooney (CB)]

My Lords—

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Gale (Lab)]

My Lords, we have had a really good debate on equality and women’s rights, and I am pleased to support the amendments in this group. Amendment 40, which inserts a new clause, was moved so ably by my noble friend Lady Lister, who explained in detail why it would be very useful to have it in the Bill. It is a very good amendment, which would require the Minister to report to Parliament whenever there are new or amended EU laws in the area of family-friendly employment rights, gender equality, and work/life balance for parents and carers, which would have amended provisions in domestic legislation if the UK had remained a member of the EU, and the Minister would have to consider whether or not to incorporate these provisions into domestic law.

There could be a danger that the UK will fall behind the EU on gender equality and women’s rights when we do not automatically have to follow EU laws. The amendment means that Parliament will at least be informed of new EU laws and that consideration will be given to whether or not to incorporate them in UK law. This is not anything new, really. We do look at other countries and see what they are doing. If one thinks of the devolved nations, the UK Government have learned from the example of the Welsh Assembly, where we had a children’s commissioner—the first one in the UK—and then the UK Parliament decided that there would be one for England. There are other examples I could go into where we have learned from other countries. There is no problem in looking to see what works in one area or one country and then incorporating it into our laws. That is the importance of the proposed new clause.

Amendments 89A, 129A and 157A, spoken to by my noble friend Lady Drake, would ensure that regulations will not weaken our rights relating to maternity or paternity, or adoptive parental rights, or the rights of pregnant or breastfeeding women. We know that even today regarding our gender equality rights, which have been hard fought for, there is ample evidence that employers do not always adhere to the law. In recent weeks we have heard of employers who seem to disregard the laws around maternity and pregnancy. The Equality and Human Rights Commission, as my noble friend Lady Drake mentioned, said recently that many businesses were “decades behind the law” and,

“living in the dark ages”.

This followed a survey which showed that a third of those working for private companies thought it was reasonable to ask women during the recruitment process about their plans to have children in the future, whether they were pregnant and whether they had small children. This type of questioning is against the law and one wonders why it still goes on.

In December, the Prime Minister failed to rule out scrapping the working time directive, the agency workers directive and the pregnant workers directive, even though she was asked several times to give that assurance. The pregnant workers directive is of great value to women and gives much-needed protection in the workplace. So we need to ensure that delegated powers cannot be used to weaken maternity, paternity, adoption or parental rights. One can see why, after that long fight for equality, it has still has to go on. We want to make progress all the time but there are grave concerns about the Bill.

I hope that the Minister will be able to give guarantees tonight in relation to these amendments. Equality rights do not just stand still; they have to progress all the time. That is why it is so important that we look to see what the EU is doing and then see whether it is something that we would want to incorporate into our laws. We really need that reassurance from the Government that the equal rights we have fought for, hard and over many years, will not be watered down at all. These are sensible amendments that would continue to ensure the protection of women in the workplace, as well as ensuring that women’s equality rights do not fall behind those of future EU laws. I hope that the Minister can give assurances that he will look seriously at these amendments, because they are good and sensible ones.

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

My Lords, I am grateful to the noble Baronesses, Lady Lister, Lady Altmann, Lady Greengross, Lady Burt, Lady Drake and Lady Gale for their contributions, and for bringing this debate alive tonight. It is right and proper that that debate should be here.

I would like to make a few points, which are necessary this evening. First, on the day after Brexit, the rights which we have worked so hard while within the EU to create will be brought back. We have been a partner in the framing of those rules and we will return them to the United Kingdom. There will be no dilution. There will be no weakening or regression. These rules will come back and they will stand here. I emphasise that as members of the EU, we have never been bound by those rules as anything more than a foundation upon which we can build greater adherence to those rights. It is important to stress that.

The EU pregnant workers directive requires 14 weeks of paid maternity leave. In the UK we offer 52 weeks, 39 of which are statutory maternity pay. Our maternity entitlements are nearly three times greater than the minimum within the EU. We have given fathers and partners statutory rights to paternity leave and pay—an entitlement which the EU is only now starting to consider in its proposed work-life balance directive. In light of the comments of the noble Baroness, Lady Lister, she will be aware that the work-life balance directive is still only at the Commission proposal stage. We have not yet heard, or had a report, from the European Parliament or begun the necessary dialogue to determine what exactly will form the final elements of that directive. It is important to stress that the process of negotiation is right and proper. We have always taken part in that and will continue to do so. Exactly when it will reach the stage of clarity remains yet to be determined.

We have given the parents of all children up to the age of 18 a right to take up to 18 weeks of unpaid parental leave, while the parental leave directive requires only four months and applies only to the parents of children up to the age of eight. Again, we have sought to go further. It is important to stress that when we look at our ability to deliver against these EU expectations, we have never seen them as limiting us. We should be able to go beyond them.

Importantly again, it is not simply enough to enact these proposals; they must also be adequately enforced. That is why looking at the EU’s enforcement scoreboard is particularly important. At that point we begin to understand how successful it has been not just in transferring the law into the statute book but in making the law a reality because it is by those instruments and the reality of that law becoming functional that we adhere, advance and create functional rights.

[Baroness Drake]

The Minister’s reference to enforcement is very important. Is he giving an assurance that there are no government plans to cap compensation in discrimination cases when we leave the EU?

[Lord Duncan of Springbank]

The noble Baroness will recognise that that is part of a discussion for another time. We have already touched on it on more than one occasion. If I may, I will focus primarily on the amendments before us today.

It is important that we recognise that the rights we have cannot be undone. That must be the fundamental guidance. For those who ask whether I can give a categorical assurance that there shall be no erosion of the working time directive, the answer is yes, I can give that assurance. We will not be eroding these rules as they come back or after they come back. It is critical that these rules become and remain functional as we begin to develop our own rulebook. It is right that we should be cognisant of the advances in the evolution of rights whether it be in the EU or elsewhere. We have heard this evening about a number of these rights which we have seen emanating from the UN. We should not be limited in that regard. Time and again we have found ourselves in the vanguard of particular rights. As we consider this suite of amendments, I do not think we should lose sight of the fact that in more than one area on more than one occasion we have pushed rights far further forward than had been the case of the median rights within the EU as a whole.

[Lord Wallace of Saltaire (LD)]

The Minister just made an extremely significant statement. He will appreciate that part of the problem many of us have with the Bill is how far we trust the Government to have the very extensive delegated powers which are granted by the Bill and the chatter one hears, including from Ministers, about a desire to loosen EU regulations, in particular to loosen EU labour regulations. If the statement he has just made represents the Government’s considered view, that puts a number of minds at rest, although it may upset a number of people within his own party.

--- Later in debate ---

[Lord Duncan of Springbank]

I hope I can put the noble Lord’s mind at rest.

It is important that we recognise how these functional rights are developed and ongoing. The day after Brexit, our rulebook will be safe. The rights which we have will be incorporated and we will build on them as a foundation. They are not a ceiling. It is right and proper that both this Chamber and the other place are instrumental in taking forward the enhancement of these rights. We have to recognise that over the past 30 years our understanding of what is a necessary family right has entirely evolved. As the vice-chair of the LGBTI group in the European Parliament, I recognised how far we could push things within the European Parliament, but I was very clear about how far we could not push them within the European Parliament because of the inability of certain member states to move forward with us. In that regard, in terms of equalities, on not one occasion have we ranked lower than third in the whole of the EU—indeed, in the whole of the continent of Europe. We have pushed forward those rights far faster, deeper and more surely than many of the other member states, so we should not lightly shake them off. We will remain what we have been, I hope, all the way through: a deliverer of these rights, not just on paper, because that is not a functional right, but in functioning and working in the workplace and elsewhere. It is absolutely right that we do so.

In response to a number of the questions raised, I am conscious that there is unease and a certain regard that the Government today will take the first opportunity to cast these rights aside, to scrape the barnacles off the boat to allow the ship to move faster. I assure the Committee that they are integral parts of the engine of the ship and we shall not be discarding them. That is how important they shall remain.

[Baroness Ludford (LD)]

If that is the case, and we are all very impressed by this unexpected and thorough assurance from the Minister on behalf of the Government, why can he not accept some amendments in this area and some others to put that in the Bill?

[Lord Duncan of Springbank]

The noble Baroness makes an interesting point as to why people have not been able to hear these points, but I am iterating what the Prime Minister, and a number of other Ministers in the Government, have said as regards this, and am pleased if I have been able to cut through some of the hubbub that has surrounded it. We are and remain a Government committed to ensuring that on day one after Brexit there is no diminution whatever in the rights which are and have been enjoyed through our membership of the EU. It is important to stress that. I hope I have been able to give noble Lords some reassurances this evening and some confidence that they will be able to set aside these amendments on this occasion.

[Baroness Lister of Burtersett]

My Lords, I am grateful to noble Lords who have spoken from across the Committee in support of this amendment—with one exception of course, the noble Lord, Lord True. I cannot help but point out that there is a certain irony that the longest speech came from the noble Lord who complained that we were wasting time. He took, I think, nearly a fifth of the non-ministerial time in order to tell us we were wasting time.

Northern Ireland Border

Lord Duncan of Springbank Excerpts

Wednesday 28th February 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 would like to repeat the Answer given by my right honourable friend the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster in response to an Urgent Question asked in the other place today. The Answer is as follows:

“This Government have been consistent in their commitment to Northern Ireland as the United Kingdom leaves the European Union. First, we will never accept any solutions that threaten the economic and constitutional integrity of the United Kingdom. Secondly, we will not accept a hard border between Northern Ireland and Ireland, which would reverse the considerable progress made through the political process over recent decades. That position has been consistent, from the Prime Minister’s Article 50 letter through to our position paper published last summer and the PM’s Florence speech last autumn.

Most recently, the Government enshrined both those commitments very clearly in the joint report we agreed with the European Union in December. That set out very clearly our,

‘commitment to preserving the integrity of’,

our,

‘internal market and Northern Ireland’s place within it’.

It also included our,

‘guarantee of avoiding a hard border’,

between Northern Ireland and Ireland, including any related checks and controls. These commitments were agreed collectively by the entire Cabinet and I believe they have wide support across the House. These commitments have not changed, nor will they”.

[Lord Collins of Highbury (Lab)]

I thank the Minister for repeating the Statement and I appreciate his comments about the Good Friday agreement, which were very clear. Certainly the Minister was very clear last week, too. Although he is clear, I am afraid that the Government appear less so, and certainly the bizarre comments from the Foreign Secretary have not helped the matter. Although we may find it amusing that he drew a parallel between London boroughs and the border between the Republic and Northern Ireland, it is simply not helpful. It is not a joking matter; it is serious.

In addition to the Foreign Secretary’s comments, we have his private memo to the Prime Minister, in which he says that,

“it is wrong to see the task as maintaining no border”,

and that the Government’s task is to stop the border “becoming significantly harder”. He goes on to say:

“Even if a hard border is reintroduced, we would expect to see 95% + of goods”,


pass the border without checks. Just what are the Government considering here? Can the Minister tell us on what basis the figure of 95% was reached? What analysis was undertaken, and why are the Government considering this if, as the Minister repeated today, they are committed to the Good Friday agreement and a soft border?

It is also hard to understand why the Government are so critical of the EU’s proposals for a common regulatory area. The EU has been absolutely clear that this is a backstop if the Government fail to deliver on their very clear promise of no hard border. Does the Minister accept that most of us are struggling to understand how, without a customs union with the EU, the current border arrangements and the GFA can be maintained? Will he enlighten us? Will he be able to tell us how he can square this circle?

[Lord Duncan of Springbank]

I thank the noble Lord very much for his question. The United Kingdom Government’s support for the Belfast agreement is unwavering, certain and clear. My right honourable friend the Prime Minister has iterated and reiterated that on more than one occasion. The memo written by my right honourable friend the Foreign Secretary is, I do not doubt, one of many papers that circulate at that level containing a number of ideas. That memo does not—I repeat, does not—represent the United Kingdom Government’s position and therefore it should not be seen as such. The position remains unchanged in this regard, and it is part of what I would like to term the joint report: that is, the agreement reached by the United Kingdom Government and the EU in December remains fixed at where we are today.

Noble Lords will be aware that there were three options in the joint report which were core and key. The UK and Irish Governments were very much of the view that they wish to see the border allow freedom of movement across it in a manner that does not fetter and is not restrictive. That remains the position of the United Kingdom Government. It is hoped that through the negotiations, which are ongoing and will continue into the near future, we will be able to bring about an agreement around what I would term “option A” of the joint report agreed by the EU and the UK Government in December of last year.

[Lord Howard of Lympne (Con)]

My Lords, is my noble friend aware of the report commissioned by the European Parliament, no less, and produced by Mr Lars Karlsson, the very distinguished former head of the World Customs Organization? It makes it very clear in some detail that technology solutions are available which make it completely unnecessary to have a hard border on the island of Ireland. Is it not the case that the European Union and, I regret to say, several Members of your Lordships’ House are wilfully closing their minds to these solutions as they attempt to exploit fears of a hard border on the island of Ireland in their misguided and misconceived attempts to thwart the wishes of the British people and keep the United Kingdom within the customs union?

[Lord Duncan of Springbank]

I thank my noble friend Lord Howard for his intervention. He is quite right to draw the House’s attention to the report written by Lars Karlsson and published by the European Parliament. We are living in an age when technology is becoming far more widespread and we should not lightly set aside the available options. I commend all elements of that report to the House, as it is worth reading. However, I return to the point that I made before, which is that, through our negotiations, it is our intention in the next phase to secure agreement on that joint report and move this matter forward so that we can maintain a seamless border to allow trade to move north and south.

[Lord Campbell of Pittenweem (LD)]

My Lords, I shall do my best to maintain the same level of objectivity as the noble Lord, Lord Howard, in these matters. This is a seminal moment, is it not? The publication of the withdrawal document and the Government’s robust response to it highlight that the Government’s position is to adopt mutually inconsistent objectives: no hard border, no customs union and, indeed, no full alignment, as the withdrawal document sets out. On the matter of electronic borders, let us remember that cybercrime is something against which we are obliged to take as many precautions as we possibly can. If you want to cause mischief in Ireland with an electronic border, you should embark on the kind of activity that allowed people to get into the Pentagon. If they can get into the Pentagon, they will undoubtedly be able to cause mayhem in any electronic arrangement for the border. My point is that, on the face of what is said in the withdrawal document and the Government’s response, we are heading for a hard Brexit. How would the Government fulfil their obligations under the Belfast agreement if there were a hard Brexit?

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Campbell of Pittenweem. With regard to the notion of the cybercrimes that we have all been threatened with over the last few years, I note again that much of the movement of goods that come into the EU is dealt with through electronic consignment. The risks that are already established for all trade are real risks, and we must take them into account as we seek to address all the challenges as we go forward.

With regard to the question about the nature of the border, the issue I come back to again is that when we reached that agreement between the EU and the United Kingdom Government in the joint report of December, it was based upon a mutual understanding that we wished to see a border in name alone to allow movement to continue. That is the position of the United Kingdom Government and, importantly, also the position of the Government of Ireland—the two principal interlocutors in this matter. We must never lose sight of the fact that they are the most affected, and we must find and secure an agreement that suits both sides. On that basis, they form the principal component parts of the negotiation elements that will unfold in the coming months. It remains the objective of the Government to deliver a seamless border, as we have promised and as has been promised by the Taoiseach himself.

[Lord Trimble (Con)]

My Lords, reference has been made to the need to preserve the Belfast agreement, with which I am wholly in agreement. However, I draw noble Lords’ attention to the December paper, which made reference to regulatory alignment but did so in the context of cross-border arrangements under the Belfast agreement. That is the only part of the Belfast agreement relevant to this discussion: namely, the cross-border co-operation that exists and through which there is a good case for saying that there has to be regulatory alignment for a body that is operating on both sides of the border.

What is happening now is something quite different. Those minor provisions in the December paper have been exaggerated into something that, in effect, would mean that Northern Ireland was still in the European Union, and thus left behind as Britain moves out of it. That runs contrary to and undermines the main plank of the Belfast agreement: that arrangements and constitutional matters were to be based on consent. The papers that have come forward—I hope that the Minister agrees on this—deal with issues that are moving into constitutional areas and should, if Dublin and Brussels wish to push the matter further, invoke an endorsement in a referendum. But we are not and should not be in that territory, and I hope that the Government will stand firm on this matter.

[Lord Duncan of Springbank]

I thank my noble friend Lord Trimble for his intervention. He is absolutely right to draw attention to the components of the joint report that emerged in December of last year. As we have stressed, the Belfast agreement must remain at the heart of our agreement. The challenge we face is that the publication by the European Union today and the remarks of Michel Barnier are, one might argue, unhelpful in that regard because they are a cherry picking of the joint report. One element of that report has been selected but there were three component parts, labelled a, b and c. The European Union has chosen to latch on only to part c. The point is that each must be a component part of the ongoing negotiations and any attempt to cherry pick risks undermining the Belfast agreement, which is at the heart of the positions accepted by the United Kingdom Government, the Irish Government and, indeed, the EU itself. I thank my noble friend for using the word “consent”. Consent must be at the heart of the approach to this, otherwise we run the risk of unravelling the very agreement which has done so much to bring stability to Northern Ireland.

Transparency of Donations and Loans etc. (Northern Ireland Political Parties) Order 2018

Lord Duncan of Springbank Excerpts

Tuesday 27th February 2018 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 23 November 2017 be approved.

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

My Lords, this statutory instrument, the Transparency of Donations and Loans etc. (Northern Ireland Political Parties) Order 2018, will provide for the full publication of donations and loans received by Northern Ireland political parties and other regulated donees or participants on or after 1 July 2017.

The current regulatory framework already provides for information on political donations and loans to Northern Ireland recipients above relevant thresholds to be reported to the Electoral Commission. However, the commission is forbidden by law from publishing or revealing this information to anyone, other than in very limited circumstances. This contrasts with the position in the rest of the United Kingdom, where information on donations and loans to political parties is published quarterly.

Party funding regulations were introduced across the United Kingdom by the Political Parties, Elections and Referendums Act 2000. However, these arrangements did not apply to Northern Ireland at the outset due to concern about the risk of intimidation of donors, which remained a major concern at the time. The Northern Ireland (Miscellaneous Provisions) Act 2006 provided for the 2000 Act requirement to report donations to the Electoral Commission to extend to Northern Ireland, but with provisions in place to prohibit their publication. The Electoral Administration Act 2006 made UK-wide provision for the reporting and publication of loans to political parties, similar to that already in place for donations. The Electoral Administration Act 2006 (Regulation of Loans etc. Northern Ireland) Order 2008 extended the 2006 Act provisions to Northern Ireland—but again with modifications to prohibit publication of details relating to loans for political purposes.

The donations and loans confidentiality provisions were always considered to be temporary, and public support for transparency has remained strong and consistent throughout the period that the provisions have been in force—and this Government have consistently made clear their desire to increase the transparency of Northern Ireland political loans and donations.

In January 2017, the then Secretary of State for Northern Ireland wrote to the Northern Ireland political parties to seek their views on moving to full transparency. For the first time—I stress—all parties that responded agreed that the time was right to introduce transparency to Northern Ireland. The Secretary of State also asked the Northern Ireland parties for views on a date from which transparency should take effect. Of the parties that responded at the time, the Alliance Party was alone in suggesting that publication should be backdated.

The issue was further discussed as part of the political talks that followed the Assembly election in March 2017. Again there was consensus that transparency should be introduced, and again only the Alliance Party suggested that publication of donations and loans should be backdated. The Secretary of State subsequently announced that the Government would bring forward secondary legislation to introduce transparency, and I am pleased to bring this important legislation before noble Lords today.

In light of the responses received from the political parties in Northern Ireland on the date from which transparency should take effect, and to ensure consistency with the Electoral Commission’s quarterly reporting schedule, the order will provide for the publication of details relating to all donations and loans received on or after 1 July 2017. I am aware there has been some criticism of the fact that the order does not provide for backdating of transparency to January 2014. However, the important point to note here is that when the decision was made, it was made on the basis of broad support among the Northern Ireland political parties. With the exception of the Alliance Party, the parties did not suggest backdating. Indeed, the opposition spokesperson on Northern Ireland in the other place was quoted as actively welcoming the decision not to backdate transparency to 2014 as the best decision because it had the support of the majority of the Northern Ireland parties.

In addition, much has been made of the position of the Electoral Commission. I hope that all noble Lords have had an opportunity to see the latest briefing note issued by the commission last week. The briefing made it clear that the commission fully supports this piece of legislation. It recommended that the Government bring forward a second, additional order that would see the provisions backdated to 2014—but again I stress that the commission continues to press for this order to be brought into force and implemented as soon as possible.

Although the primary objective of the order is to provide for publication of donations and loans from 1 July 2017 onwards, it also contains provisions to address a range of related issues, particularly in relation to the operation of the Political Parties, Elections and Referendums Act 2000. It may be useful if I now summarise these technical provisions.

Noble Lords will wish to be aware that the Northern Ireland (Miscellaneous Provisions) Act 2014 does not permit provision to be made in this or any other order allowing for information on donations or loans made or entered into before 1 January 2014 to be published. The Political Parties, Elections and Referendums Act 2000 provides for details of donations and loans received over the calendar year by a recipient from the same source to be published when their aggregated total exceeds the reporting threshold. Articles 2 and 3 of the order therefore provide for the publication of details about a donation or loan received before 1 July 2017 if it is aggregated with a donation or loan received on or after 1 July 2017, provided it is within the same reporting year.

Loans, unlike donations, may not be one-off events, and changes to a loan may be made over time. Certain changes to a loan, such as a change in the value or rate of a loan, a change of the repayment term, a change to the parties to a loan or the loan coming to an end, must be reported to the Electoral Commission. Article 3 provides for reportable changes taking effect on or after 1 July 2017 to be published if the loan was entered into on or after 1 January 2014. The effect will be that a change to such a loan which takes effect on or after 1 July 2017 will result in the publication of all details relating to that loan, including from the pre-1 July 2017 period. However, the order provides that such publication will not take place if the change to the loan is simply the repayment of the whole of the debt, or all of the remaining debt under the loan.

The prohibition on commission officials disclosing information relating to Northern Ireland political donations and loans is supported by a criminal offence. This will remain the case in relation to information about donations and loans unless that information is permitted to be disclosed by this order.

Articles 2 and 3 also provide that the commission will not act contrary to the prohibition on disclosure if commission officials publish information relating to a donation or loan received after 1 January 2014 and before 1 July 2017 if the relevant donation or transaction report does not state that the donation or loan was received before 1 July 2017 and commission officials believed that the donation or loan was received on or after 1 July 2017 and were reasonably entitled to hold that belief.

Your Lordships may be aware that the Political Parties, Elections and Referendums Act 2000 permits donations and loans from certain Irish citizens and bodies to Northern Ireland recipients. In such cases, additional information must be provided to the Electoral Commission in respect of these donors in order for them to confirm their identity. This includes passports and statements of naturalisation. It would clearly be inappropriate for the commission to publish sensitive personal information such as passport and naturalisation documentation, so Article 5 provides that such sensitive personal information will not be published by the commission. However, I can assure the House that all other information, such as names and addresses, relating to Irish donations and loans received from 1 July onwards will be published in the normal way.

Articles 6, 7, 8 and 9 of the order require political parties and regulated donees or participants to provide the dates on which donations or loans are received, particularly those received before 1 July 2017. This will minimise the risk of pre-1 July 2017 donations and loans being published in error.

Articles 10 and 11 ensure that the current verification steps undertaken by the commission to verify Northern Ireland donations and loans will continue to apply to Northern Ireland donations and loans received on or after 1 July 2017.

The Political Parties, Elections and Referendums Act 2000 provides for reports to the commission to be submitted and published at different times, depending on whether the recipient is a political party or a regulated donee or participant. Article 12 provides that the first publication of regulated donee information can take place only at the same time or after political party information has been published.

I hope that this brief summary of the provisions of the order has been helpful and not too confusing.

The Electoral Commission will have responsibility for implementing the arrangements set out in the order. Your Lordships will want to be assured that the Government have fulfilled their statutory obligation to consult the commission in respect of the order, and I would like to place on record my thanks to the commission for its close co-operation and constructive input into the drafting process. Once again I emphasise that the Electoral Commission has made it perfectly clear in its public statements that it fully supports the order and is keen to see it in force as soon as possible.

In summary, there remains widespread support for full transparency among the people of Northern Ireland. There has been a welcome recognition by the political parties of the importance of transparency to the broader political process, and the Electoral Commission has placed on record its support for this order. While there is much work to be done in re-establishing the Executive in Northern Ireland, I hope that this order will help strengthen confidence in and support for the democratic process of Northern Ireland more generally. I hope that noble Lords will support the order. I commend it to the House and I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, I thank your Lordships for their wide-ranging contributions to the discussion this afternoon. I begin by thanking noble Lords for the support for the order before us, which will establish transparency from 1 July 2017. I believe we all welcome that particular feature—we can agree on that part.

I will address the question of backdating head-on. When the then Secretary of State consulted the political parties in Northern Ireland, he asked them when they wished the order to commence. In response, the parties themselves were quite explicit. The Alliance Party, as we have heard, wished to see the order backdated to 1 January. The DUP and the UUP both explicitly wanted it to be a forward order from the point at which it was agreed in 2017. The SDLP and Sinn Fein did not address this specific question in their responses. It is important also to stress that since that consultation, we have received no further update from those main political parties on the backdating question. I put that as a matter of record.

On the issue raised by the noble Lord, Lord Tyler, many of these questions cannot have been germane to the decisions of last year, for one very simple reason. Although the Electoral Commission was gathering the data at the point, it was not able—indeed, it would have been illegal—to release that data to the United Kingdom Government, whichever party held office. It could not therefore have been part of those ongoing discussions. We have heard at least one noble Lord today make reference to the details of that donation, and that is now a matter of public record. But it is a matter of public record as a consequence of other elements, not of its registration during the electoral gathering of data. It is important to stress that. That is why many of the questions raised by the noble Lord, Lord Tyler, fall at that point.

It is important again to recognise that we have an opportunity here in looking at establishing transparency. Right now, we are not ruling out the re-examination of the period that precedes 1 July 2017. Indeed, the draft order will allow consideration of it, once we have had an opportunity both to bed in the transparency order and to examine the details reflected therein. We will not rule anything in or out on that point. I stress that. It is important that we recognise it.

It is also important to recognise that the data has been gathered from that period in 2014—the data exists. Those who believe that it will be for ever concealed need fear nothing; there is nothing to be seen here and we can move along. In truth, that data will remain there. If it is determined that we should examine that in greater detail going forward, there is an opportunity for us to revisit this item. We should not lose sight of that fact.

As for the donations and loans that come into Northern Ireland from outside, from the southern part of the island of Ireland, I assure both the noble Lords, Lord Browne and Lord Bew, that there will be full transparency of those donations and loans. There must be—there can be nothing but that. That is why, again in relation to Irish citizens, the prescribed condition is that at the time of making a donation to a Northern Ireland recipient, the individual must be eligible to obtain one of the following documents: an Irish passport, a certificate of nationality or a certificate of naturalisation. There will be a full gathering of all the data of moneys coming into the electoral process in Northern Ireland. It is important that we recognise what that means.

[Lord Kilclooney (CB)]

We just heard a definition of “certain Irish citizens”. Does that definition apply to Irish citizens in the United States of America? Let us be fair, when the IRA was active, it was not the southern Irish who gave it the most finance; Irish citizens in the United States of America were the major financers of the IRA terrorist regime. I hope that such people in the United States will not be able to finance elections in Northern Ireland.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Kilclooney, for his intervention. Again, I stress this point. As a frequent visitor to North America, I have discovered many people who invoke their affinity to the homeland. I have met many Scots—who may indeed be fourth or fifth-generation Scots—who proudly wear their tartan as frequently as they possibly can. I do not fault that; I celebrate it. That is true for citizens of whichever homeland might be in question.

However, in terms of their rights and abilities to donate money to Northern Ireland, they must hold a valid Irish passport—not an Irish passport held by their grandparents, which might entitle them to play for Ireland—or a certificate of nationality or naturalisation. The order does not allow someone simply to invoke Irish heritage to be able to donate. One would hope that the transparency revealed by the order will help us to be attentive to the risks raised by the noble Lord, Lord Kilclooney. If any failings become apparent as the data is gathered, the Electoral Commission will be able to draw those to our attention and they can be examined in the cold, hard light of day. That will be very important.

The noble Lord, Lord Murphy, made a number of important context-setting remarks, which I endorse. We are at a delicate time and there is no better time for transparency than right now. There should be no escape from that transparency. As many noble Lords have heard me say more than once, we need to establish a sustainable Executive in Northern Ireland. I believe that the order will go some way to ensuring that the people of Northern Ireland have the utmost confidence in the electoral process. The order is right and timely.

I recognise that the issue of backdating will remain sensitive. If, on consideration of the data as it is gathered, ascertained and seen, there are deemed to be issues that need to be examined further, the Government will consider them at that point. We are ruling nothing in and nothing out. On that basis, I commend the order to the House.

[Baroness Suttie]

My Lords, I thank all noble Lords who have taken part in this short, but extremely important and valuable, debate. I also thank the Minister for his characteristically courteous, detailed and open response.

I stress that we on these Benches will continue to press the Government to live up to their earlier commitment on backdating these provisions to 2014—I welcome some of the Minister’s comments in that regard—and to follow the advice of the Electoral Commission in bringing forward another order at the earliest convenience to make this possible. I also agree with the suggestion of the noble Lord, Lord Murphy, that, at the very least, following changes in circumstance, we should discuss again with the political parties in Northern Ireland and hear their views on backdating to 2014.

On this occasion, however, it would be inappropriate to test the opinion of the House. We do not want to see further delays to the order. I therefore beg leave to withdraw the amendment.

Northern Ireland: Devolved Government

Lord Duncan of Springbank Excerpts

Thursday 22nd February 2018 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what progress has been made in discussion with political parties in Northern Ireland on the re-establishment of devolved government in the province.

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

My Lords, over recent weeks there have been talks involving the main political parties in Northern Ireland to see whether there is a basis for re-establishing the Executive. Those talks made progress, but unfortunately reached their conclusion without an agreement last Wednesday. The UK Government remain committed to restoring power-sharing devolution in Northern Ireland. I gave a full update to the House on this matter on Tuesday and refer the House to that Statement.

[Lord Lexden (Con)]

A draft agreement document is now in the public domain. Do the Government believe that the proposals in it for language and cultural diversity legislation represent the best way forward on those contentious issues? As regards same-sex marriage, would it not be best to introduce legislation in this place rather than at Stormont? Above all, has the time not come for the Government to show leadership and take firm action in a way that accords fully with the Good Friday agreement, to which Members of this House attach the utmost importance, as they have demonstrated overwhelmingly in the past few days?

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Lexden, for his question. There were a number of elements within the discussions, not least the question of culture and language. Progress was made; there is no question about that. Indeed, it appeared at one point that we were within a hair’s breadth of reaching the promised land of an agreement, but we did not secure that agreement. It is important to stress again that the UK Government are a facilitator of a dialogue between the two principal parties. Those two parties themselves must be able to find that extra energy to create the right circumstances to deliver that agreement. That is what the people of Northern Ireland want, that is what the people of Northern Ireland need and that is what the people of Northern Ireland deserve. As to whether this House should bring forward legislation on the same-sex marriage question, I believe that this is a matter best taken forward by a newly established Executive in Belfast who are best able to reflect upon each of the elements of the communities to ensure that they are able to contribute to that important, serious and necessary piece of legislation.

[Lord Hain (Lab)]

My Lords, it is no criticism of the Minister, but is it not the case that his predecessors have told this House repeatedly over the past 15 months or so that an agreement is about to be achieved and that anybody who knows the situation in detail has doubted that? I and my Labour predecessors as Secretary of State are deeply concerned that this whole thing is unravelling. We have a Conservative former Secretary of State attacking the Good Friday agreement—I am pleased that the Government have rebutted that—and a political view coming from the Government that does not seem to understand that the whole Good Friday process before Tony Blair became Prime Minister, under John Major and even before that, took years to achieve, and it is all unravelling in front of us. That is what concerns us.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Hain, for his comments. The Good Friday agreement is the cornerstone of the UK Government’s position. I am very happy to reiterate that plainly and clearly and to distance ourselves from those comments made by others. It is very easy to knit a jersey and it is very easy to unravel it at the other end—far too quickly can we lose that which we have spent so long trying to put together. I am aware that on more than one occasion I have come before this House to say that we are hopeful that there will be an agreement, and I do not doubt that noble Lords in this Chamber today will share the frustration. In truth, this agreement must be delivered by the parties at the table. We believe that they were within a hair’s breadth of achieving that just the other day. We do not believe that we are at the end of this process; we cannot be at the end of this process; we need to have an Executive. The alternatives are not satisfactory, particularly against the issues which will face the people of Northern Ireland in coming months. We believe that the parties need to get together once again. I appreciate that noble Lords may be experiencing an element of déjà vu. That is not my intention, but the same ambition and the same need are there. They have not changed. Those two main parties and the other parties in Northern Ireland need to be part of an agreement which is sustainable and can command confidence. If we can achieve that, we will have done an extraordinary thing, but we are not there yet.

[Baroness Suttie (LD)]

My Lords, three weeks ago in Belfast, when giving evidence to the Lords EU Select Committee, Sammy Wilson MP said that he and his DUP MP colleagues,

“meet Brexit Ministers almost on a weekly basis”.

Given the continued absence of a power-sharing Executive in Northern Ireland, and given the Government’s role as co-guarantor of the Good Friday/Belfast agreement, does the Minister agree that similar access should be granted to all parties in Northern Ireland?

[Lord Duncan of Springbank]

I thank the noble Baroness for her question. I believe that all the parties in Northern Ireland need to be part of this dialogue, but I reiterate that to develop a power-sharing Executive, it is the two principal parties that must broker that deal. The Government are content to ensure that no party is left in the dark as to our ambitions and intentions, particularly as we go forward into some of the challenging times that have yet to come.

[Lord Cormack (Con)]

My Lords, as my noble friend said on Tuesday, as the 20th anniversary of the Belfast agreement approaches, the celebrations will ring very hollow indeed. Should we not continue to say firmly but quietly to both the DUP and Sinn Féin that they must not sacrifice what their predecessors helped to create?

[Lord Duncan of Springbank]

In response to my noble friend I will happily say that the Belfast agreement is an imperative, essential element of the Government’s policy, and I have no desire for that celebration to fall without an Executive.

[Baroness Smith of Basildon (Lab)]

My Lords—

--- Later in debate ---

[Lord Browne of Belmont]

My Lords, it is clear that in the coming weeks, regrettably, Northern Ireland will not have a functioning Assembly or Executive at a time when decisions will have to be made on the details of managed divergence between trade regulations in the UK and the EU. Can the Minister assure me that, given the absence of local political representation, the Government will arrange for discussions as soon as possible with representatives of the business and farming community in Northern Ireland to ascertain their concerns and, if possible, take steps to address them?

[Lord Duncan of Springbank]

I thank the noble Lord for his comments. I have already put in place meetings with the NFU in Northern Ireland and with various fishing interests. No voice can go unheard at this important time, and we must ensure that those voices ring crystal clear in the decisions which the Government must take.

Northern Ireland Update

Lord Duncan of Springbank Excerpts

Tuesday 20th February 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 now repeat a Statement made by my right honourable friend the Secretary of State for Northern Ireland in the other place. The Statement is as follows:

“With permission I should like to make a Statement about the current political situation in Northern Ireland. Over recent weeks, there have been talks involving the main political parties in Northern Ireland, particularly the two largest parties, the Democratic Unionists and Sinn Féin, to see if there is a basis for re-establishing the Executive. The UK Government have facilitated and supported these intensive negotiations. We have been in close touch with all the parties, and responded to requests for advice and support.

The Irish Government have also been involved in accordance with the well-established three-stranded approach. I would like to place on record my appreciation of the contribution made by the Irish Foreign Minister, Simon Coveney, and his team. In addition, my right honourable friend the Prime Minister has been consistently and closely involved, speaking to party leaders and visiting Belfast last Monday. I have continued to give her up-to-date reports as the talks have progressed.

The aim of those talks has been very clear: to bring about the re-establishment of inclusive, devolved government at Stormont, which Northern Ireland has effectively been without for over 13 months. In so doing, we have been able to build on the progress made by my predecessor, my right honourable friend the Member for Old Bexley and Sidcup, who I warmly welcome back to this House today”.

I share that welcome. The Statement continues:

“In the Government’s view both the DUP and Sinn Féin participated in discussions seriously and in good faith, and we believe that progress towards reaching agreement on all the key substantive issues has been made. It became possible in the light of this progress to identify a basis for a possible agreement to allow an Executive to be formed, embracing how the parties ensured the Executive was sustainable and how they reached a balanced and fair accommodation on the difficult issues of language and culture and how this was reflected in a package of legislation. Many other issues were addressed too, if not always resolved. Unfortunately, however, by last Wednesday it had become clear that the current phase of talks had reached a conclusion, without such an agreement being finalised and endorsed by both parties. As I said then, it is important for everyone to reflect on the circumstances which have led to this and their positions, both now and in the future.

What is important today is for me to give some direction as to next steps. First, as our manifesto at the last election set out, this Government believe in devolution under the terms of the 1998 Belfast agreement. We want to see local politicians taking decisions over local matters accountable to a local Assembly. We need devolved government to help deliver a stronger economy, to build a stronger society and to ensure that Northern Ireland’s voice is properly heard as we leave the European Union. In addition we want to see all of the other institutions of the agreement operating in the way that was intended.

I cannot reiterate too strongly that devolved government is in the best interests of all the people of Northern Ireland because it ensures that their interests and concerns are fairly and equitably represented. It is also in the best interests of maintaining and strengthening the union, to which this Government remain fully committed, consistent with the principle of consent. So we will continue to explore with the parties whether the basis for a political agreement still exists, and, as my right honourable friend the Prime Minister has reaffirmed, we stand ready to bring forward the necessary legislation that would enable an Executive to be formed at the earliest opportunity. That is this Government’s clear hope and desire, and something that I believe is shared widely across the House.

Secondly, however, things in Northern Ireland cannot simply remain in a state of limbo. A number of challenging decisions will have to be taken. Ultimately, the Government have a responsibility to ensure good governance and the continued delivery of public services. In particular, as the head of the Northern Ireland Civil Service has made clear, there needs to be certainty and clarity about a budget for Northern Ireland for the next year as soon as possible. I intend to take steps to provide clarity on the budget and I will update the House as soon as I am in a position to do so. This is clearly not where I want to be, but in the absence of an Executive in Northern Ireland, I will have no other choice.

Over the longer term, the Government will not shirk our responsibilities to take whatever steps are necessary to provide certainty and stability for the people of Northern Ireland while maintaining our commitment to govern with rigorous impartiality in the interests of all the people of Northern Ireland. But we will do that only once we are sure that all other viable options designed to restore devolved government have been properly considered, including my current statutory obligation to call an Assembly election.

In the absence of devolution it is also right that we consider the issue of salaries for Assembly Members. At the end of last year, my right honourable friend the Member for Old Bexley and Sidcup received recommendations on this from Mr Trevor Reaney, a former Clerk to the Assembly. The Government will need to decide shortly on the next steps. I acknowledge the public concern that while a number of Assembly Members continue to carry out constituency and representative functions, current salaries are being maintained while the Assembly is not meeting.

On the issue of addressing the legacy of Northern Ireland’s past, the Government have manifesto commitments to consult on the implementation of the bodies set out in the 2014 Stormont House agreement and to support the reform of inquests. I would much prefer to do this in the context of an agreement that sees the restoration of a devolved Executive, but I am conscious of the Government’s responsibilities to make progress in this area to provide better outcomes for victims and survivors, the people who suffered most during the Troubles. We will continue to proceed toward a full consultation as soon as possible so that everyone can have their say.

As the House will recognise, this April marks the 20th anniversary of the historic Belfast agreement. That agreement, along with its successors, has been fundamental in helping Northern Ireland to move forward from its violent past to a brighter, more secure future, and this Government’s support for the agreements remains steadfast. There is no doubt that Northern Ireland has taken huge strides forward in the past 20 years. In my short time as Northern Ireland Secretary, I have seen a place full of wonderful talent and huge potential, yet any commemorations this year will look decidedly hollow if Northern Ireland still has no functioning Government of its own. So everyone needs to continue striving to see devolved government restored and to build a Northern Ireland fit for the future. That remains the clear focus and determination of this Government”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Baroness Suttie (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. On these Benches, we add our voice to those who feel a sense of deep disappointment, and indeed some bewilderment, at this latest failure to reach a workable agreement.

Just over one week ago, when the Taoiseach and the Prime Minister went to Stormont, we were led to believe that a deal was possible. That a positive outcome has once again proved elusive inevitably leads us to ask questions about the structure, participants and transparency of the negotiation process. As Naomi Long, the leader of the Alliance Party in Northern Ireland, has said, there was a degree of inevitability that,

“without a more structured approach, we would not see a successful outcome”.

This latest failure is a missed opportunity and yet again leaves the majority of ordinary people in Northern Ireland feeling deeply frustrated and without a democratically elected voice at this critical time.

Much-needed decisions have to be taken about how to ensure effective public services for the people of Northern Ireland—decisions about long-term provision for education, health and infrastructure development—and how to build the shared society that we all want. As the noble Baroness, Lady Smith, has just said, civil servants have played an excellent and vital role in the past 13 months during this political vacuum—and we should pay tribute to their professionalism—but without an Executive in place there remain inevitable questions about democratic legitimacy.

Three weeks ago, on a visit to Northern Ireland with the EU Select Committee, I was struck by the excellent and imaginative work being carried out by so many people in the business community, as well as in local government and civil society, to strengthen the Northern Irish economy, most particularly at this time with the additional and complex challenges of Brexit. However, their deep frustration that many of their plans were on hold because of the absence of an Executive in Stormont was palpable.

On these Benches, we continue to believe firmly that power-sharing devolution is vital to local democracy and representative decision-making. It must be possible to find creative solutions to the current impasse. In that regard, can the Minister say whether thought is now being given to bringing in an external mediator to chair the negotiations? I appreciate the difficulties in identifying such a person given the sensitivities, personalities and challenges involved, but the events of last week show that such a person is now needed more than ever. In the light of last week’s failure, will Government consider making the talks all-party rather than just two-party as they are at present?

In the new circumstances, I repeat an earlier question that I put to the Minister: in the continued absence of an Executive, will the Government now give serious thought to the creative proposals put forward by the noble Lords, Lord Alderdice and Lord Trimble, among others, for allowing the Assembly to play a role in ensuring that the views of the Northern Irish people can be heard during the next few months, most especially during the Brexit negotiations?

Given what the Minister has said on inquests in the Statement, will the Government release funds for inquests into historical deaths, as was promised by David Cameron when he was Prime Minister?

It is vital that the hard-won gains of recent decades are not discarded without exploring all the options and alternatives. Northern Ireland and its political leaders have in the past overcome seemingly insurmountable problems, but this situation requires a degree of leadership and flexibility and a spirit of compromise that, sadly, seem all too absent at present. Short-term party-political gain must not be allowed to jeopardise two decades of progress.

[Lord Duncan of Springbank]

I thank the noble Baronesses for their insightful questions. I welcome the support—I think from all sides of this House—for trying to move this matter forward. It is true that the sense of déjà-vu is to some degree palpable. We have been speaking of the closeness between the parties involved. Indeed, that closeness brought about such proximity that it was anticipated that we would be making a very different Statement today, but we are not. We are instead making a statement, I suspect, of regret that we have not been able to bridge those gaps. The important thing to stress here is that the UK Government have acted in good faith to try to bring together the two key parties that will be instrumental in forming a functioning, sustainable Executive. We have done all we can to facilitate that dialogue.

I shall answer the specific questions raised. The noble Baroness, Lady Smith, put her finger on it when she reflected on the inquiry she set up all those years ago and recognised that it is important that we are able to deliver, but it is, in truth, the people of Northern Ireland who must deliver, and it is an Executive who must deliver. There is no substitute—we are not a substitute and nor is the other place—for that functioning Executive and it is right that the civic society of Northern Ireland must feel a degree of frustration that this has been going on for so long. My right honourable friend the Secretary of State for Northern Ireland has been clear that nothing will now be taken off the table: all aspects of the negotiations will be moved forward as best we can to try to bring about some sense of movement.

Again, let me move on. I recall the remarks of the noble Lord, Lord Empey, who spoke about direct rule being like walking down the steps of Stormont: it is easy to tumble down but very hard to claw your way back up. Direct rule, indeed, cannot be taken off the table but nor should it be a priority or a single focus. There are too many other avenues that we must explore. I am conscious, again, that we must recognise that the Belfast agreement and the successor agreements are all part of and core to what we will use to go forward. I welcome the remarks of the noble Baroness: the Opposition need to hold us to account and make sure that we do not slip in any way from our clear commitment to deliver, on an impartial basis, a functioning Executive in Northern Ireland. Progress has been made; the problem, of course, is that an agreement has not been reached. The bilateral discussions have taken place; the question is whether that information should be made public. At the moment, the parties themselves would prefer that information not to be made public and we would prefer to allow that to continue on that basis.

Turning to external mediation, nothing is off the table from this point onward. Again, my right honourable friend the Secretary of State for Northern Ireland will consider every possible way of taking this matter forward. Indeed, the issues raised by the noble Lord, Lord Alderdice, and my noble friend Lord Trimble will be part of all consideration to make sure that every possible means we have to bring about a rekindling of this spark, to allow these talks to deliver an Executive, will be used. Nothing is off the table; indeed we have high hopes that there will be an opportunity for the parties to reconvene and to once again seek to bridge the ever-diminishing divide between the sides. This is what I believe all in this House, the other House and all the people of Northern Ireland so clearly and needfully desire at this moment.

[Lord Reid of Cardowan (Lab)]

My Lords, the Minister is working, through no fault of his own, in some very dangerous circumstances. I think they are even more dangerous than some of the experiences my noble friend Lady Smith outlined. Let me put it this way: will he now take the opportunity to respond to the question contained in my noble friend’s opening remarks and distance himself, unequivocally, from any sympathy or support—even any understanding—for those who have called in the past few days for the unravelling of the Good Friday agreement, or the Belfast agreement? I say this because, without casting any aspersions, if one of the parties causing the deadlock is also now, apparently, calling for direct rule by the British Government and is the same party that is propping up the British Government, and has now gone further with some of its members calling the Belfast agreement “unsustainable”, there cannot but be suspicions that this had an effect on the conduct of these negotiations. Will he therefore make it absolutely plain that the Good Friday agreement, which has now been in place for two decades and resolved problems of tragic conflict in the island of Ireland that lasted for several centuries, will be maintained, in the spirit and the letter, by this Government?

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Reid, for his question. He is right to raise it once again. I will be unequivocal and as plain as I can be: this Government do not support any of the remarks made by those who believe that the Belfast agreement is in some way dispensable, erodible or dismissible. It is not. It is the cornerstone of our approach and of bringing about a restored Executive. I am happy that the noble Lord has given me an opportunity to make that point very plain.

[Lord Rogan (UUP)]

My Lords, I also welcome the Statement but I am slightly disappointed by some of the content. We all want a devolved Administration in Northern Ireland. I will be pessimistic: I cannot see it happening in the near future. In the absence of devolved government in Northern Ireland, we urgently need ministerial decisions in many, many departments, none more so than on a budget for Northern Ireland. For some 400 days now, senior civil servants have been coping without ministerial direction. When will the Minister begin to take day-to-day decisions on the affairs of Northern Ireland and, especially, when will a budget be set? Civil servants wanted it to be by 8 February. Today is 20 February.

[Lord Duncan of Springbank]

I thank the noble Lord for his question. My right honourable friend the Secretary of State has made it plain that she will now begin serious discussions on a budget and she will return to the other place by the end of March to deliver on that commitment. We cannot continue to kick the can down the road. That is why these deliberations will need to be much more far-reaching than the discussions we had what seems only a few months ago, when we brought the previous Northern Ireland budget through this place. I thank the noble Lord, Lord Rogan, for his comments.

[Lord Cormack (Con)]

My Lords, as one who was present at many meetings with the late Ian Paisley—Lord Bannside—when he was breathing new life into the Good Friday agreement, Mrs Foster’s statement last week brought a chill to my heart. Will my noble friend pursue with vigour the suggestion contained in the comments and questions of the noble Baroness, Lady Suttie, and look with real, earnest and urgent seriousness at the Trimble-Alderdice suggestions? The people of Northern Ireland deserve no less than that their Assembly, which they elected, should meet, even without an Executive, much as we would like to see that established at the earliest possible date.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Cormack, for his comments. As I said, nothing now can be off the table. The Trimble-Alderdice suggestions will be given due consideration. We owe it to the people of Northern Ireland to deliver better government than we have thus far managed to achieve.

[Baroness O’Loan (CB)]

My Lords, I ask the Minister whether the issues that actually matter to the people of Northern Ireland—the economy, Brexit, dealing with the past, health, education—have been discussed at all between the parties in the 400 days since we ceased to have a representative Government, or is it that for these past 400 days there has been discussion of same-sex marriage, the Irish language Act and the Ulster-Scots language Act? If it is, we are going nowhere. He has just said that there are too many avenues to explore to move to direct rule. I am not advocating moving to direct rule but the people of Northern Ireland think that ultimately there are two outcomes to this: one is devolved government, which we need, and the other is direct rule. Are there other options? Northern Ireland has become more and more divided over the past 12 months. This sectarian division has got worse and worse. I do not think re-establishing the Assembly but with non-executive powers—no powers to make decisions—would improve that situation; I think it would make it worse.

[Lord Duncan of Springbank]

I thank the noble Baroness, Lady O’Loan, for her comments. The discussions inside the room remain inside that room. I suspect that we are quite familiar with the points at issue; they stem from the questions of sustainability, culture, language and respect. But when you talk to the people of Northern Ireland, I suspect that other issues dominate their concerns, not the least of which are health, education, wider economic growth and the questions of Brexit. This is a time when the voice of an Executive is required—in fact, it is overdue—in those discussions and, again, the people of Northern Ireland are the ones who are losing out because of that situation. There is no doubt that all options are to be considered—but, at heart, we must recognise now that the people of Northern Ireland deserve a functioning Executive and that it is beholden on all the parties to deliver it. The United Kingdom Government remain committed to facilitating that dialogue in any way that they can, but we need to get off the spot and make progress.

[Baroness Randerson (LD)]

My Lords, with the background of Brexit, does the Minister recognise that the potential long-term damage to the peace of Northern Ireland is particularly acute at this time? I want to state my concern at the suggestion of a return to direct rule. I share the concern expressed around the Chamber. Does the Minister agree that it is imperative in the short term that the Prime Minister takes a more positive and visible lead in these events, as John Major, Tony Blair and David Cameron each did in their time? Does he share my concern at the comment of Arlene Foster that the Prime Minister’s involvement last week was a distraction?

[Lord Duncan of Springbank]

I thank the noble Baroness, Lady Randerson, for her remarks. Direct rule is not a panacea or a solution—and, as she has already said, once the toothpaste is out of the tube it is very hard to get it back in. I can assure the House that the Prime Minister has been intimately involved in these ongoing discussions. Her commitment is without question and her actions of late have always been mindful of trying to deliver a sustainable Executive who will deliver for the individuals who live in Northern Ireland. Going forward from here, I do not doubt my right honourable friend the Prime Minister’s continued commitment and that she will continue to act in the best interests of the people of Northern Ireland to try to bring about a dialogue that delivers an outcome that works for them. I believe that is in the interests of all the parties there.

[Lord Hay of Ballyore (DUP)]

My Lords, I too welcome the Statement this afternoon. I also welcome the fact that Her Majesty’s Government are now to set a budget for Northern Ireland—especially to help our public services, which are going through a very difficult time. I heard the comment about an independent chair. However, knowing the politics of Northern Ireland and having been Speaker of an Assembly that lasted almost 10 years, I think that they would probably spend some time arguing over who that person might be—so I do not think we should add fuel to a very difficult situation.

At this moment in time, Northern Ireland is not in a good place. It gives me no pleasure to say that, so we all have to be careful with our words and actions while we see whether we can resolve the last remaining issue of the project. Does the Minister agree that political progress can be built only on an accommodation that can be supported by the whole community, and which is shared, fair and balanced? Despite the setbacks over the last few days, we as a party are determined to secure devolution for Northern Ireland. I say clearly in this House today that we will leave no stone unturned to try to resolve this issue. Can the Minister assure the House—and settle unionist nerves as well—that Dublin will not be involved in the internal affairs of Northern Ireland? The Minister needs to clarify that important point if we are to settle everybody down and get back to trying to resolve what I believe is the last remaining issue.

[Lord Duncan of Springbank]

I thank the noble Lord, Lord Hay, for his intervention. It is in the interests of all the people of Northern Ireland that we achieve good government. Now more than ever, good government will be delivered by devolution—by a functioning Executive—but at heart it will have to be delivered for Northern Ireland no matter what happens, because we cannot keep kicking the can down the road. The three-stranded approach will be at the heart of our ongoing discussions with all parties, but I am happy to confirm to the noble Lord that no joint approach to the administration of government between the United Kingdom and Ireland is on the cards.

[Lord Empey (UUP)]

My Lords, the noble Baroness, Lady Smith, talked about transparency. We have a “she said/she said” argument at home over what was and was not on the table, which I believe will be settled only when those documents are in the public domain. I seem to recall the late Lord Bannside talking many times about secret documents; well, now there is a chance to make secret documents public. Let us see what was on the table.

The Minister said in his Statement:

“First, as our manifesto at the last election set out, this Government believe in devolution under the terms of the 1998 Belfast Agreement”.


No, they do not, because the terms of the 1998 Belfast agreement are not what we have today. It was butchered in 2006 when the guts were taken out of it, after years of negotiation. The partnership at the centre of that Government, with each community having its hand on the steering wheel and the First and Deputy First Minister being identified jointly in the Assembly by a vote of the elected Members, was torn out to suit two parties, neither of which negotiated their part of the agreement in the first place. If the Minister is thinking outside the box and nothing is off the table, may I put back on to the table the 1998 Belfast agreement, as it was voted on by 71.2% in the north and over 90% in the Republic? If we are leaving the European Union on the basis of 52%, in all fairness we are entitled to have the vote that we made honoured and implemented as it was voted on in 1998.

[Lord Duncan of Springbank]

The noble Lord, Lord Empey, makes a very forceful intervention. The details of the discussions that took place between the two principal interlocutors will not be made public. At present the parties agree that, were they to be made public, they might continue to prolong the challenges that they face in trying to secure ongoing agreement. We will honour that approach.

On the broader question of the Belfast agreement and its successor agreements, at their heart is, I hope, a recognition of respect from all the participants—not just the two principal parties but the other parties in Northern Ireland as well. That is why my right honourable friend the Prime Minister, in her ongoing dialogue with the two principal parties, recognises very clearly that there are others to be taken into account when we make these positions clear. I hope—I desperately hope—that we can make progress going forward and work on a basis of respect. With the good will that I know exists across Northern Ireland, the urgency brought about by Brexit and the reality of the challenges faced by the various communities in Northern Ireland—whether that be on the economy, education or health—this is the time to deliver an Executive, now more than ever.

[Lord Bew (CB)]

My Lords, I thank the Minister for the Statement and the rather elegant balance he has achieved between a ringing defence of the Belfast agreement and some wise and sensible words about the immediate future. Does he agree that it is even more important to defend the Good Friday agreement of 1998 at this point, because of the deal that we reached with Europe on 8 December? If paragraphs 49 and 50 of it mean anything, they require a viable working of the institutions and the agreements reached in 1998. It has therefore become the fate of the institutions in Belfast to be caught up with the wider question of the transitional agreement that was reached with the European Union at the beginning of December, so that is an even further reason for the ringing defence that the Minister has offered for the institutions of 1998. I say this knowing that the policy department of the European Parliament has just published an excellent report by Lars Karlsson, the Swedish customs expert, saying that it is possible to avoid a hard border on the island of Ireland as there are technical means which will allow that to happen, even without any political settlement. Even so, and despite that important intervention from Europe on this sometimes exaggerated issue, it is vital at this point, because of what our Government said on 8 and 9 December, that the agreement works.

[Lord Duncan of Springbank]

The noble Lord, Lord Bew, puts his finger upon it. The Good Friday agreement has to work. We are in challenging times right now; there is no question about that. It is right that during this time the voices of Northern Ireland are heard loud and clear and are allowed to speak for themselves. The last thing the people of Northern Ireland need is me speaking for them. They need to be able to articulate the concerns and issues that they live with on a daily basis. The transition agreement is going to be negotiated in coming months. It is right and proper that their voices are heard. Whether they are heard through an Executive, which we hope and pray will be reformed, or whether through individual councillors and MLAs, with all the communities represented, we cannot ignore the voices of those who will stand on the border between ourselves and the European Union. We would be short-sighted and foolish if we did. As I emphasised earlier, I hope that it will be through a reformed Executive, chastened by the 13 months in which they were absent but recognising right now that the clock is ticking and that the voices of Northern Ireland must be part of the ongoing Brexit negotiations.

[Baroness Blood (Lab)]

My Lords, I have listened carefully to what the Minister has said and I cannot understand it. He tells us in one part that it is about the people, and in another part that the people really have nothing to do with all these secret talks and that they cannot be told what is going on. I do not understand that. I do not understand why some form of what happened cannot be put to the people of Northern Ireland to let them decide. People in the street will tell you that they want to know what happened. There is no point in having another election as the same thing would happen. We have to put it to the people. I am very surprised at the Conservatives: they had no problem putting the Brexit referendum to the people when they wanted it. The Good Friday agreement came about through a referendum and I fail to understand why this cannot be put to the people in a form that is easily understood. Let us take it from there. I have to tell the Minister that we are never going to get any real agreement with what is going on at the moment.

[Lord Duncan of Springbank]

I thank the noble Baroness for her contribution. I would draw a distinction between democracy and representative democracy. The demos—the people—have chosen particular political parties. The Belfast agreement recognises those parties and their role in delivering what I hope will be a fully functioning Executive. The people will hold their representatives to account, and they must do so in whatever way they feel to be appropriate, given the situation that Northern Ireland finds itself in. The key thing that I hope I leave with noble Lords today is that this Government remain fully committed to facilitating the ongoing dialogue. We were tantalisingly close, and we owe it to the people of Northern Ireland to continue to reach across that divide. If we do not, Northern Ireland will be the poorer spiritually, economically and in its contribution to the ongoing and important Brexit discussions. Please be assured that this Government will do all they can to bring about a fully functioning Executive. I thank all noble Lords who have made clear today that there is a commitment across this House to deliver a fully functioning Executive.

Brexit: Devolved Administrations

Lord Duncan of Springbank Excerpts

Thursday 25th January 2018 Lords Chamber

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

My Lords, I thank the noble Lord, Lord McAvoy, for his generous donation of further time to allow me to answer all these questions. I also congratulate him, of course, on his elevation to Chief Whip. I look forward to hearing much more from him in that capacity.

There are, I suspect, a number of challenges that lie ahead for all of us in trying to grapple with the issues we have touched upon today. A number of noble Lords have reflected on the fact that our union is an extraordinary thing and in many respects we sometimes take it for granted. Indeed, all too recently it almost slipped through our fingers. Yet here we are now. We often talk about our constitution, both written—in several documents—and of course unwritten, but in fact, from 1979 through to 1997 and beyond, the sheer volume of change, evolution and, indeed, in some cases near revolution in the way we administer power within the United Kingdom was fundamental. It is important to recognise, again, how flexible our system can be to allow that sort of change to happen without there being a great deal more angst and unease.

I begin by delving straight in to the question of the repeal Bill, since many noble Lords touched upon it. Clause 11 needs to be amended: it is not going to work in its present form. The important thing to stress is that it was not for want of effort on our part—the noble and learned Lord, Lord Hope, was quite correct—to secure a form of words that would allow the two devolved Administrations and the UK Government to reach a consensus on that point. The key thing, and this is why I stress the point, is that this is part of the respect agenda: we must find a form of words with the devolved Administrations to secure progress going forward. As all have noted and accepted, if we do not secure that form of words, the legislative consent motion we will need will not be made available. Then, a constitutional crisis, to use that slightly hackneyed phrase, will be upon us. That is why every effort is being made to ensure that we can find that form of words with the Ministers from Scotland and Wales—always recognising that we are also reliant upon the civil servants in Northern Ireland—who must give us guidance on how we are going to take this matter forward. I wish I could tell noble Lords right now that we have that form of words: I cannot, but I know that discussions are ongoing and all are aware that the time for those words to be agreed is slipping gently away. I believe that on all sides there is now a recognition that we must secure these words if we are to make the progress we would like to make.

The wider question has been asked about the common frameworks and the nature of the laws, and how they will move and migrate. Is work going on to establish exactly what the common frameworks will look like and whether there will be clarity? I assure noble Lords that that is indeed happening. It is being done under the slightly euphemistic term, “the deep dive”: in each of the policy areas a deep dive involves all those involved in the devolved Administrations—Wales, Northern Ireland and Scotland—as well as the UK Government.

The purpose of those deep dives is to identify exactly the areas where there is no need for a common framework—indeed, those roles would then be fully devolved—recognising which ones must one must remain fully reserved and teasing out the complexities in the middle ground. The noble Lord, Lord Lang, mentioned that very point. This is where it becomes a little bit more complicated, but it can be resolved; that is the purpose of the deep dives. Take, for example, a subject that is very dear to my own heart and to a number of noble Lords here today: fishing. At present, fishing is wholly devolved—there is no way round that; it is a clear statement of fact—but it is devolved within the framework established by the common fisheries policy. At present, every aspect of fisheries is broadly administered by the Scottish Government, on the basis of the established framework. Going forward, the question is, what should replace that framework? In many instances, the answer is that there need not be a common framework and these matters will be fully devolved. For example, issues around what I would term technical measures, such as the mesh size of nets, will continue to be taken forward by the Scottish Government in exactly the same manner as now.

Let me revert to other, perhaps broader questions about quotas and quota management. Here, different questions must be resolved. That is the purpose of the deep dive: not to tell the devolved Administrations what the answer or the UK Government position is, but to ask what will work best for our fishermen up and down the land. No fisherman fishes simply on their own little bit. We have a much more mobile fleet; the distant water fleet fishes all across our territorial waters, as well as those of other countries, including Norway and EU countries. We need to find a way to make that work. That is why, in this instance, oddly enough, the term “deep dive” is probably appropriate. We need to find a way to make sure that we can deliver on that.

Deep dives will take place across all policy areas. In the lead, necessarily, are those that are closely connected to Defra and focus on fisheries, agriculture and the environment. However, a number of others are happening as well—though not quite in lock-step—to secure answers, because these are the key points that will allow the devolved Administrations to have confidence that we have taken their concerns on board and intend to move this forward in a manner that respects both sides.

[Lord McConnell of Glenscorrodale]

On that specific point, we all understand that there is complexity in these policy areas and that there is a difference between the administration of policy and the agreement, implementation and legislation of that policy, whether it be in fishing quotas or anything else. Do the UK Government understand that the key point of principle is not whether there should be a common framework but whether one should be imposed from the centre—or whether the agreement to have a common framework and commit to it should be voluntary on the part of the three devolved Governments and the UK Government representing England?

[Lord Duncan of Springbank]

I thank the noble Lord, Lord McConnell, very much for his intervention. The respect agenda is at the heart of the answer to that question. The deep dives are vital for each of the participants to recognise that the solution needs a common framework to address the particular challenges. There will be tensions—I do not doubt they will exist—where there is disagreement, where one of the Administrations say, “Actually, in this particular area, we believe this and the other one disagrees with it”.

Part of the bigger challenge is the movement of rules coming back from the EU, where there are—as the noble and learned Lord, Lord Wallace of Tankerness, pointed out—111 laws that directly affect Scotland. For Northern Ireland, it is more than 140; for Wales, it is around 60. Of course, because of the devolved settlements, the rules are different; so again, the point is to try to find areas of common consensus. In truth, representatives of the various individuals who are part of the stakeholder community will each have to be able to defend their points to the stakeholders, to explain to them why they are arguing one way or another. Those stakeholder communities must also lend their acceptance to this particular point, because upon the hearing the outcome of these discussions, they cannot—and should not—rise up in arms and say that it is an absolute travesty and a scandal. They should be satisfied that this is the best and right way of doing things. The important thing to emphasise is that this is not in any way an attempt by the UK Government to demand certain concessions from the devolved Administrations. That is not the ambition at all.

On the wider question of the institutional arrangements whereby the various parties come together and meet, there have been challenges. There is no point in pretending otherwise. I have a very helpful list somewhere. Noble Lords have asked very thorough questions so I have many pieces of paper; I am now hunting for the right one. We had a hiatus between February and October 2017 for one particular reason: the election. That slowed things down quite considerably. The important thing to stress is that for a very long period, the JMC’s arrangement had been all but moribund: it had not been a functional part of the engagement between the devolved Administrations and the UK Government. Recognising that that was no longer fit for purpose, the UK Government have sought to expand the number of forums by which we have agreement under the JMC, as well as recognising that the frequency of those must therefore be driven by the necessity of the particular issues. That is why what would have been the traditional ongoing European legislation—which was the most important forum for the focused issues before the devolved Administrations—is, if anything, the quieter forum. The negotiations forum is now absolutely critical, as is trying to make sure that there are opportunities at those meetings for a free and frank discussion. There are, and I can assure noble Lords that the discussions are very free and very frank.

There are challenges. I am reminded of the words of the noble Lord, Lord Bruce of Bennachie. At the outset, one of the challenges in this area was that it was very hard to reconcile the demands of the different Administrations because they were not bridgeable in simple terms. So, the notion and the paper put forward by the Scottish Government could not be easily reconciled with the reality of what the UK Government believed they had to deliver after the referendum. That caused a lot of the political tensions. It is very hard to meet on common ground when one party is on one side of the chasm and one is on the other; you end up falling to the bottom like Wiley Coyote, with your arms flailing in the air. We were trying to avoid that outcome. It is bridge building that gets us across the chasm, I hope.

We need to give some consideration to the situation in Northern Ireland. Many noble Lords have rightly mentioned that there is a void in Northern Ireland. We cannot pretend otherwise. I can assure noble Lords that my right honourable friend the Secretary of State for Northern Ireland is actively pursuing facilitating the dialogue required to develop a functioning Executive. On more than one occasion, I have said from this Dispatch Box that Northern Ireland is ill served without an Executive. Although the civil service there can do a great deal to help in many different areas, they cannot do everything. That is why it is important to recognise again the need for a realistic and functional dialogue. Those talks are ongoing; we hope that those around the table will recognise the importance of securing agreement on this occasion but we recognise the challenges that we face.

On the question—again, raised by a number of noble Lords—of the agreement reached by the UK Government and the EU before Christmas, which touched on Northern Ireland and the border question, it is important to recognise that that is but one step toward a larger agreement between the UK and Northern Ireland. Without that agreement, there will be significant challenges for both sides. That is why, in this instance, the ongoing negotiations again seek to address the challenges. One would hope that through that, the negotiations will deliver the Northern Ireland question as part of a bigger settlement. Those negotiations are ongoing. I believe—this is where it becomes important—that we often find ourselves, particularly when following certain newspapers, caught up in an almost daily crisis of one sort or another, with the narrative driven forward in that fashion. However, if we step back and think about it, just before Christmas the UK Government managed to deliver on what they said they wished to do: secure agreement on these three key areas, to allow negotiations to begin shortly thereafter. They achieved that. From some of the reporting, you would have thought that they had failed, but they did not. They moved things forward in that fashion.

The time ahead will not be straightforward. I realise that we will have plenty of opportunities to discuss further the questions that underlie the repeal Bill. I am sure that many of the contributions made today will help inform the Government as they begin to think about how best to approach the investigations into the repeal Bill and its functionality. But we will have to resolve those questions here in such a fashion that we can return those amended clauses to the House of Commons to allow them to deliver upon that. I believe that we will make a difference and, indeed, do what this House always does: seek to make things better. I think the Government will appreciate the work done here in that area.

We have to recognise that the union is perhaps something larger than just the moment of Brexit and the discussions that surround it. A number of noble Lords have pointed out today that immediately after the referendum on Brexit, there was a great fear that our union would itself begin to experience some of the challenges but in truth, there has been a degree of resilience. As we witnessed through the, shall we say, unexpected general election last year, the parties that had perhaps anticipated doing better, certainly in Scotland, did not do so on the basis of what they offered the people. That should be a salutary reminder to anybody who believes that they have the people behind them: it is always worth looking over your shoulder, just to make sure they are still there. You cannot take the people for granted in this regard. The result of that election was a useful reminder to us all to focus on what the people want, whether that be the people of Scotland, the people of Wales or, I hope soon, the people of Northern Ireland.

We in this House must recognise that we have a role to play in ensuring that our union works, and works well. That is why I am indebted to my noble friend Lord McInnes for bringing before us today an opportunity to discuss and explore these issues. It is timely because next week, we will be knee deep in thorough discussions on the questions before us regarding repeal. As I try to answer the questions, I am aware how useful that will be to my colleagues in facilitating, I hope, the right sort of dialogue as we go forward. But I am also aware that there is heavy lifting to be done and we have not yet resolved these issues. On the question of Clause 11 as it affects the devolution settlement, we need to be able to bring before your Lordships a workable amendment that can deliver exactly what it says on the tin—and when we tell your Lordships that we have it, we are telling you that other people in Edinburgh, Wales and, through consultation, Northern Ireland agree that this is the way forward. That should allow us to make that necessary step.

When I began my remarks, I pointed out that in some respects we have been through a revolution, as only Britain can do, in the way that our powers have moved. But we have done so in a piecemeal fashion; again, a number of noble Lords made this point. We need now to refocus on trying to ensure that we are not making stumbling progress but have a clear objective: to make sure that the devolved Administrations fit into a sensible and workable government structure for the United Kingdom. People have to recognise that whether they are in Edinburgh, Wales or Northern Ireland, they have two Governments, not just one. It is important to stress that. Again, we need to be better at explaining to people what the Governments are doing and what their actual responsibilities are. Quite often there is sheer confusion on these points.

[Lord Wallace of Tankerness]

I generally agree with the point the Minister is making but, as part of that better integration, will he respond to the suggestion I made, based on the Canadian experience, that Northern Ireland officials and Scottish and Welsh Ministers might also be involved at the table in the forthcoming phase 2 negotiations?

[Lord Duncan of Springbank]

The noble and learned Lord, Lord Wallace, makes an important point. As a Member of the European Parliament many years ago—no, last year; time is just slipping through my fingers here—I am very conscious that the discussion was always about who sits at the top table and therefore represents the United Kingdom. I was always of the view that the table in London, where all the devolved Administrations argued these things through, was as important as the seat at that top table. Determining the UK position in this instance will be exactly the same. We must deliver a UK position which is part of the respect agenda and delivers for the peoples of Scotland, Wales and Northern Ireland that which is right, workable and appropriate. I can assure your Lordships that those will be dingdong discussions around the tables in London, where the heaviest lifting will be done. As to the point the noble and learned Lord makes, to be frank I do not know the answer, but the important table is the one where we bring together all these individuals to make sure that we are positioned to deliver on behalf of the people we represent.

I am conscious, again, that I am perhaps overstaying my welcome. On this day of Robert Burns, we are conscious that we celebrate that across the globe. So perhaps I might close with some words of Burns, which I thought were slightly appropriate:

“O let us not, like snarling curs,

In wrangling be divided,

Till, slap! come in an unco loun,

And wi' a rung decide it!

Be Britain still to Britain true,

Amang ourselves united;

For never but by British hands

Maun British wrangs be righted!”.

Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Duncan of Springbank Excerpts

Wednesday 10th January 2018 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 13 September 2017 be approved.

Considered in Grand Committee on 29 November 2017.

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

My Lords, the order before the House has been made to ensure that the policy set out in the Criminal Justice (Scotland) Act 2016 can be fully implemented.

That Act contains a number of provisions which arise from Lord Carloway’s review of Scottish criminal law and practice. These include reforms of arrest and custody laws designed to provide flexibility for police in conducting investigations while ensuring fairness for suspects. It will also allow suspects access to a lawyer whether or not they are to be interviewed by the police. In addition, the Act specifically states that the police have a duty not to deprive people of their liberty unnecessarily.

As a consequence of some of these measures it is necessary either to amend the law elsewhere in the United Kingdom or to make provision in relation to Scotland, where the reforms apply to reserved matters. Making such amendments is not within the competence of the Scottish Parliament, so it is necessary for this order to be laid before the United Kingdom Parliament. It is made under Section 104 of the Scotland Act 1998, which allows the UK Government to make legislative changes which are necessary or expedient in consequence of an Act of the Scottish Parliament.

The order makes provisions about arrests effected both in Scotland, and outside Scotland, in connection with crimes committed in Scotland and the investigation of Scots law crimes and extradition matters in Scotland. The draft order was previously considered in Grand Committee on 29 November. At that time, the noble Lord, Lord Foulkes of Cumnock, raised some concerns. Specifically, he was troubled by the impending merger of the British Transport Police with Police Scotland—a position I might add that was shared by many in this House. The noble Lord declared the move to be,

“dangerous, reckless and ought to be stopped”.—[Official Report, 29/11/17; col. GC 9.]

That brings us to the amendment this evening. There is always a danger in seeking to anticipate the remarks of the noble Lord, Lord Foulkes, before he has made them, but it is important to recognise that while this order touches on the British Transport Police tangentially, it is not its principal focus. In so far as the British Transport Police operates across the United Kingdom, the order will have no impact whatever on the ongoing merger of the policing of Scottish railways. It is for that reason I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord McAvoy (Lab)]

My Lords, if I say anything, I will only be repeating some of the things that have already been said a lot more eloquently. It only remains for me to say that we fully support and congratulate my noble friend Lord Foulkes of Cumnock on his determination and persistence in this matter. He has made a reasonable request. I know from previous experience that the Minister is a serious and flexible man, and I am quite sure that he will respond in a positive manner.

[Lord Duncan of Springbank]

My Lords, I congratulate the noble Lord, Lord McAvoy, on his brevity. I was hoping for a longer intervention so that I could just gather together some more of my papers before I began—they are piling up around me.

I begin by thanking the noble Lord, Lord Foulkes of Cumnock, for initiating this debate. The sheer number of contributions, and their quality and breadth, is testament to the need for this discussion. It is important for me to stress, however, that this debate was born of a particular order but, having heard several noble Lords, much of the discussion has not focused on the order itself. If your Lordships will forgive me, I will touch on the order at the outset because it is important to stress why it is before us tonight. I will then spend most of my time talking about the issues that have been raised.

I turn, first, to the purpose of the order. It has been laid simply to ensure that the measures contained in the 2016 Act that affect the law elsewhere in the UK, which apply to reserved matters in Scotland, can be amended as required. The Scottish Parliament cannot do that and we have to do it. That is the purpose of the order. It makes provisions about arrests effected both in Scotland and outside Scotland in connection with crimes committed in Scotland that are being investigated under Scots law or where extradition to Scotland has been necessary. In response to the noble and learned Lord, Lord Hope, this is the aspect that allows the British Transport Police to reach beyond and equalises the ability of the police to act in each other’s jurisdictions. That is already contained in the order.

These provisions are important because they are part of the ongoing devolution settlement. The process for developing such an order is in itself important, both by the manner in which the two Governments co-operate and collaborate and by the means by which they are adopted and introduced in your Lordships’ House and the other place. It is simply a way of ensuring that devolution works effectively.

In response to the noble and learned Lord, Lord Wallace of Tankerness, I should also stress that further orders affecting the British Transport Police will be coming. He will be aware of Sections 90 and 104 of the Scotland Act 1998, which touch on the transfer of people, assets and liabilities from the British Transport Police and the ability to make any consequential provision. Further orders will be made specific to this—

[Lord Maxton]

Will there also be orders relating to the different legal systems in Scotland and England? That is relevant to any discussion on British Transport Police.

[Lord Duncan of Springbank]

I thank the noble Lord for his intervention. The orders, when they arrive, will be constructed through the collaborative process between the two Governments, which I touched on a moment ago. In any order, they will bring forward proposals that comply with both Scots law and the broader law of England and Wales. We should be able to have that before us.

It is important to stress, as several noble Lords have, that the Smith commission and the legislation by which its conclusions were enacted are important elements of the continuing Scottish devolution process.

[Lord Forsyth of Drumlean]

I apologise to my noble friend but am I being stupid? When he said that there will be further orders in connection with the British Transport Police, is he saying that the Government intend to support the break-up of the British Transport Police?

[Lord Duncan of Springbank]

To be clear, in this instance, the Smith commission and the rules that it contained devolved to the Scottish Parliament the right to take this matter forward. The Scottish Parliament has determined how it shall do so. Today’s discussion is about how it has interpreted the clauses. At present, it is anticipated that we must make sure that the ongoing British Transport Police continues to function. I will come to the points raised in a manner that will, I hope, satisfy noble Lords—

[Lord Foulkes of Cumnock]

I want to pick up on what the noble Lord, Lord Forsyth, said, because he has cottoned on to something important. The Minister said, I think, that one of the orders would relate to the transfer of property, which I mentioned. I hope that order will not be laid until such time as any action that he proposes to take as a result of this debate is concluded.

[Lord Duncan of Springbank]

Again, the noble Lord, Lord Foulkes, has anticipated what I will say shortly. Perhaps noble Lords will allow me to make some progress on the broader position.

I emphasise again that whatever reservations noble Lords may have about this approach, we must recognise and respect the agenda of the Scottish Parliament. That is part of the ongoing Smith agreement. However, let me turn to the matter that has most exercised the noble Lords here today—

[Lord Berkeley]

My Lords—

[Lord Duncan of Springbank]

Perhaps the noble Lord will allow me to make some progress. I may have time to give way to him later.

[Lord Berkeley]

I want to ask the Minister about what he has just said before he moves on to the next point. He mentioned that under Article 6(b) the British Transport Police will be able to go north of the border. But will he respond to my question? Will Scottish police be allowed to go south of the border or will they be seen as foreigners and so not allowed in?

[Lord Duncan of Springbank]

The noble Lord has again pre-empted what I am about to say. To be very clear, the purpose of the order is to ensure that criminals can be pursued in either direction. It seeks to equalise the ability of the transport police to function in both jurisdictions, and it delivers that.

I come back to the remarks made by the noble and learned Lord, Lord Wallace of Tankerness. The functions of the British Transport Police in Scotland will be a devolved matter. However, in the previous debate, the noble and learned Lord went on to say that that is slightly different from saying that British Transport Police itself will be devolved. It is, therefore, a matter of some interpretation. We have heard a number of points thus far from noble Lords on why that interpretation does not meet the test of good policing within the wider infrastructure of the United Kingdom.

Recent press reports of morale in the Scottish division of the British Transport Police show that up to two-thirds of officers are unsure whether they will transfer to Police Scotland following the merger, and only one-third of officers have declared that they definitely intend to do so. That should give pause for thought and concern. It is also worth stressing that, importantly, British Transport Police has, throughout its history, been a success. Since 2005, it has reduced crime on Scotland’s rail network by 56%, an achievement that compares favourably with an overall reduction of crime in Scotland of 38%. That is no mean feat and certainly worthy of praise. We should recognise that here.

The ultimate test of the merger under discussion is whether it makes the policing of Scotland’s railways better. As a former Member of the European Parliament, I recall how important it was that, before substantive changes were made to legislation, serious impact assessments were undertaken to ensure that the outcome would be delivered by the means chosen. That important element is missing from some of the discussions being put forward. I say that as a member of the travelling public and in recognition of the concerns that have been expressed by a number of the agencies and bodies cited this evening.

Before I conclude, I will touch on some of the substantive points made. I begin with the confusion that may have arisen around what will happen next. We need to put at the fore of our minds that this involves police officers who have delivered for the betterment of our country. The merger is not due to any failing of theirs and at no point should it be recognised as such. Nor is it a failing of British Transport Police in any element of its operation.

Some of the issues raised tonight need to be dealt with in great detail, but I will touch on what the noble Lord, Lord Clark of Windermere, said. He talked about the inclusion of the Civil Nuclear Constabulary and the Ministry of Defence Police. It is important to stress that the Smith commission did not at any point intend to devolve these aspects. Therefore, although they are touched on in the order, at no point will these functions be onward devolved to the Police Scotland operation. That is particularly important.

To make this move work, a joint programme board has been created. That board is particularly focused upon where the points of friction rest and how they can be addressed going forward. I will come back to its role in delivering the outcomes that noble Lords here today would like to see.

The noble Baroness, Lady Liddell, touched upon one of the most fundamental questions—terrorism—and how we can assure there is no diminution in our preparedness, our scope, our ability to operate and our attention to the issues before us. There are pre-existing protocols between Police Scotland and the various agencies and constabularies south of the border. These will continue to deliver against that outcome. It is important, however, that they are tested to make sure that they are fit for purpose in that regard.

This is not only about Scotland—it is important to stress that. The British Transport Police covers the whole of our country, not only one part of it. Further, we have to recognise that the threats to our country are not specific to one nation or region but, rather, in many instances are a threat to us all. We must recognise, therefore, that there will be responsible agencies which will take these matters forward.

Let me touch on where we can make serious progress. To address the challenges of the onward devolution of the policing of the railways in Scotland, the two Governments have established a joint programme board. The board is currently working to achieve an orderly transfer and to provide affected officers and staff with clarity at the earliest opportunity. The board has sought to address the findings of the recent report on devolution conducted by Her Majesty’s Inspectorate of Constabulary in Scotland, which has been cited by a number of noble Lords today. Its principal purpose is to ensure that each of those issues is addressed head on.

Therefore, minded as I am of the remarks of the noble Lord, Lord Foulkes, and other noble Lords, following this debate I will secure a meeting with the UK Government co-chair of the joint programme board. At that meeting I will take the salient points from this debate and put them before it. I will ask the board to produce a report, which I anticipate will form the basis of a formal discussion between the Government of the United Kingdom and the Government of Scotland. Thereafter I will write to the noble Lord with the result of that discussion and place a copy of that in the House. The next meeting takes place on 30 January 2018.

I stress again that there are two further Scotland Act orders pertaining to the British Transport Police. I will report back before these orders are laid.

[Lord Forsyth of Drumlean]

When the British Government’s representative—the Minister responsible for this—attends that board, what will his policy be? Will it be to maintain the British Transport Police or to allow it to be broken up?

[Lord Duncan of Springbank]

The noble Lord, once again, puts his finger on the issue. Our purpose will be to ensure that the answers which come from the board are satisfactory. If they are not satisfactory, then opportunities will be provided for this House and others to move forward in a different way. Oh, I heard someone say, “What does that mean?”, which is a helpful remark. I was trying to be cryptic in one sense. I am basically saying that this is not the end of the story. I hope that we will receive satisfactory answers at the programme board which will allow us the clarity to establish that we are satisfied that policing on our railways is not affected to the point of detriment.

[Lord Foulkes of Cumnock]

I think I understand what the Minister is saying and I agree with him. The Minister or the representative to the programme board is going to go to the board, express the points of view that have been made here—which have come from the unionists, the Conservatives, the Cross Benches, the Liberal Democrats and Labour—and report back to us. If we are not happy about the outcome, then there are two more orders which may or may not be laid and which we may or may not pray or move against. That will give us the opportunity after the programme board to know whether we are happy and whether or not the House and the Minister want to go ahead with those two further orders.

[Lord Duncan of Springbank]

The noble Lord may well say that but I stress again that the important thing is that the salient points raised by noble Lords today are considered in all seriousness by the programme board. I hope there will be an opportunity for that board to respond and to satisfy all the questions raised today. I have noted them down. To put them in context, we need to know that terrorism and security issues are addressed head on—there can be no diminution in these. We must recognise that this involves real police officers and that there can be no impact upon their well-being, their morale or their situation, and that they must be treated with respect throughout this process. We must be cognisant of the no-detriment principle. Where there are costs, we must understand how those costs will be allocated fairly and appropriately. We must also recognise that they should not be unfairly or inappropriately placed elsewhere.

[Lord Wallace of Tankerness]

On the question of costs and the no-detriment principle, is this a matter for the joint programme board to sort out or do the United Kingdom Government have a view as to how any detriment to the British Transport Police in England and Wales should be addressed?

[Lord Duncan of Springbank]

We want to make sure that a no-detriment principle is adopted throughout, so there should be no impact on parts of the United Kingdom as a consequence of this which would have to be met by those who are affected by it.

It is important to note the other issues that we need to be very clear about. The British Transport Police is a specialist constabulary, not a traditional one. It focuses on particular aspects of enforcement which are important and cannot simply be substituted by officers from other traditional constabularies. We must not lose sight of that. Any risk that there may be flight from the particular integrated elements would in itself be a problem for the overall functioning of transport policing in Scotland. There can be no diminution in the quality of the service. We also have to recognise that throughout this area there is an issue of being respectful to the Scottish Parliament. The Scottish Parliament itself, through the Smith commission and onwards, is the principal interlocutor in addressing this matter. We cannot lose sight of that fact because it is also important.

Perhaps I may be a little more bold and say that in some respects this is one of those issues where one can see the difference between a unicameral and a bicameral Parliament. Perhaps if the Scottish Parliament had a second Chamber, some of these matters might have been addressed in a slightly different way. However, that might be a little bit provocative.

Let me conclude with a quotation which I am sure will be familiar to noble Lords, but perhaps they do not necessarily know its source. When I say the name Thomas Bertram Lance, I suspect that there will be blank stares. He was the director of the Office of Management and Budget in Jimmy Carter’s presidential Administration. In 1977 he coined the maxim,

“If it ain’t broke, don’t fix it”.


In some respects, we should always recognise the importance of that particular dictum. However, I should stress that that conclusion must be determined by the Scottish Parliament as a matter of course. It is that Parliament’s responsibility to hold to account the Scottish Government, who have moved this matter forward.

I appreciate that I have not had time to touch on all the issues raised in the debate but I hope that I have been able to give the noble Lord, Lord Foulkes, some comfort in my remarks so that he will not be regretful and therefore not press his amendment to the Motion. I hope that this has been a satisfactory response to our debate.

[Lord Empey]

Perhaps I may raise one point with the noble Lord. Where is the national interest in all of this? The Scottish Parliament cannot reflect it. A programme board is made up of two halves, one half of which is the Scottish Parliament and the other the UK Government. That board cannot have a national responsibility because it is made up of one part which does not have such a responsibility. My concern in all this is that the national security interest is going to fall between two stools. I would like an assurance from the Minister that that is not the case.

[Lord Duncan of Springbank]

I believe that I can give that assurance. The very fact that the comments made in this debate shall be summarised and transmitted very clearly to the programme board means that the views of noble Lords will not be lost. I also believe that those views represent the entire breadth of concern expressed, certainly in this instance throughout Scotland but also beyond. That must be reflected on by all those who take as their responsibility the forward movement of the British Transport Police and its future policing policy.

[Lord McAvoy]

Could I ask the Minister to convey the answers that he has not been able to give in this debate to the various noble Lords who asked those questions, and to distribute those responses?

[Lord Duncan of Springbank]

Yes, I am very happy to do that. We have a note of the questions and I have several responses in handwriting that I cannot quite read. That is one of the reasons I have not been as fluent as I might have been on some of the points. Where noble Lords have not received an adequate response, I will do my utmost to ensure that the answers are conveyed to them.

[Lord Foulkes of Cumnock]

My Lords, first I thank the Minister for his courtesy and sympathy in the run-up to this debate. He has been really helpful. I should also thank my noble friend Lord McAvoy for turning the screw on him on our behalf. My understanding is that he is mindful of the very great strength of feeling on all sides of the House and in every party and that that will be conveyed to the programme board. He is going to report back to us and that report will come before any further orders might be put forward in relation to the British Transport Police. I can assure him that we will remain vigilant and look carefully at what progress, if any, is made by the programme board, although we hope that it will be. We will keep an eye on it and we may return to these issues at a later stage. Meanwhile, in the light of what he has said in his response, I do not wish to press my amendment to the Motion to a vote.

Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) (Amendment) Regulations (Northern Ireland) 2017

Lord Duncan of Springbank Excerpts

Wednesday 6th December 2017 Lords Chamber

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

My Lords, I thank noble Lords for their contributions this evening, and I thank the noble Lord, Lord McAvoy, for bringing this Motion before the House. I will attempt to address each of the points that has been raised as best I can, but I will make a few general points to begin.

As part of the fresh start agreement, the two main parties in Northern Ireland agreed that the UK Government would legislate for a number of welfare reforms. As my noble friend Lord Patten reminded us, the ambition was to restore parity with the rest of the United Kingdom. That was agreed by the Northern Ireland Assembly, and that is why we are here today. Social security is a devolved matter, so the implementation of universal credit is being led by the Northern Ireland Civil Service. It is important to stress that, as my noble friend Lord Patten said, the Northern Ireland Civil Service has had a great deal of challenge placed on its shoulders in the past few months. It is important to recognise the work it is doing in the absence of an Executive.

I shall say a little bit about universal credit. I know it has been much discussed in this House and in the other place. At heart, it is, as the noble Baroness, Lady Lister, would have invoked, an attempt to restore a sense of fairness between claimants and those who support themselves solely through work. It is recognised that there are consequences which must be taken into account as families are grown, and that applies to both groups. The other underlying principle is that all those who are entitled to support are able to secure it. It is important to stress that.

The key issue that has come up today differentiates the discussion in Northern Ireland from the situation in the rest of the United Kingdom. The noble Lord, Lord McAvoy, put his finger on it at the beginning of this debate. It concerns Section 5 of the Criminal Law Act (Northern Ireland) 1967 and the requirement it imposes upon individuals in Northern Ireland to disclose information about any offences which they know or believe have been committed unless they have a reasonable excuse for not doing so. I want to say a few things that I hope noble Lords will understand. There has been much talk about the fact that over the past 50 years there have been no prosecutions of victims of rape. We cannot deal with this by precedent in Northern Ireland’s criminal law. I shall go further than that: I assure noble Lords that I will bring the remarks made in this debate to the attention of the Northern Ireland Civil Service in order that it may reflect upon the concerns raised. Given the prominence of this debate in recent months, I assure the House that I will bring these remarks to the attention of a restored Northern Ireland Executive, which I hope is not too far from returning.

I think all noble Lords will agree that these are matters which are best addressed by the Northern Ireland Executive, and we are doing all we can to facilitate their restoration. There are a number of issues which are best addressed by those who are most affected by them. We will do all we can to bring that about. We are also preparing for every eventuality should that not be the case. I stress that just as I hope to draw these remarks to the attention of a restored Executive, should that Executive not be restored, I will be very cognisant of the remarks that were made this evening.

I shall address some of the other points that have been raised as best I can. The two-child approach tries to ensure that those who are entitled to benefits are able to secure them. That is why we have not relied solely on the criminal justice system as a means of securing any sense of progress on any of these matters. That is why a means was sought to secure a method whereby those who have been the victims of particular crimes and have suffered as a consequence are able to find third parties to take that matter forward.

Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Duncan of Springbank Excerpts

Wednesday 29th November 2017 Grand Committee

Moved by

[Lord Duncan of Springbank]

That the Grand Committee do consider the Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017.

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

My Lords, the draft order laid before the House is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient provision in consequence of an Act of the Scottish Parliament. The order is being made to ensure that the policy set out in the Criminal Justice (Scotland) Act 2016 can be fully implemented. It was passed by the Scottish Parliament on 8 December 2015.

The 2016 Act contains a number of provisions which have been developed from the recommendations of Lord Carloway’s review of the Scottish criminal law and practice, which reported in November 2011. This review followed a UK Supreme Court decision in the case of Cadder that gave suspects a right to legal advice before questioning by the police in Scotland. In this context, the review aimed to modernise and enhance the efficiency of the Scottish criminal justice system, and its recommendations have led to a number of the provisions in the 2016 Act.

These include reforms of arrest and custody laws designed to provide flexibility for police in conducting investigations while ensuring fairness for suspects. It will also build on 2010 reforms to allow suspects access to a lawyer whether or not they are to be interviewed by the police. In addition, the Act specifically states that the police have a duty not to deprive people of their liberty unnecessarily. As a consequence of some of the measures introduced by the Act, it is necessary either to amend the law elsewhere in the United Kingdom or to make provision in relation to Scotland where the reforms apply to reserved matters.

Making such amendments is not within the competence of the Scottish Parliament, so it is necessary for this order to be laid before the United Kingdom Parliament. It is made under Section 104 of the Scotland Act 1998, which allows the UK Government to make legislative changes which are necessary or expedient in consequence of an Act of the Scottish Parliament.

The order makes provision about arrests effected both in Scotland and outside Scotland in connection with crimes committed in Scotland and the investigation of Scots law crimes and extradition matters in Scotland. Provisions in Schedule 1 will ensure that cross-border enforcement and assistance continues to work effectively. Where a Scottish warrant is executed in England, Wales or Northern Ireland, provisions in the 2016 Act on arrest procedure and rights of suspects will apply.

Schedule 2 covers the effects of the 2016 Act on “reserved forces”, namely the Ministry of Defence Police, the British Transport Police and the Civil Nuclear Constabulary. Schedule 3 relates to the impact of the 2016 Act on immigration, HMRC officers, designated customs officers and the National Crime Agency. Schedule 4 covers the application of the 2016 Act on persons subject to service law. Schedule 5 makes provision regarding a person arrested in connection with extradition proceedings.

Reserved forces exercising the powers and privileges of a police constable in Scotland will also be bound by a stop-and-search code of practice issued under Section 73 of the 2016 Act. The order amends the 2016 Act to ensure that the UK Government and reserved bodies subject to the terms of the code are fully consulted when any amendments to the code are being considered. The order also refers to a code of practice that will apply to investigative bodies reporting criminal offences in Scotland to the Crown Office and Procurator Fiscal Service.

This is a particularly wide-ranging and complex order that has required close working between the UK and Scottish Governments, Ministers and officials. As such, it shows how Scotland’s two Governments can co-operate effectively to make the devolution settlement work. I beg to move.

[Lord McAvoy (Lab)]

My Lords, I again thank the Minister for his very full explanation of the order. As we have heard, it provides legislative changes in consequence of Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 as passed by the Scottish Parliament. Again, we are content to support the order.

As has been stated, the Act follows, some years later, a review of criminal law and practice in Scotland undertaken by Lord Carloway, and has been subject to detailed scrutiny by Members of the Scottish Parliament. Provisions include changes to police powers, rights of suspects while in police custody, criminal procedure and provisions regarding powers of stop and search. These are wholly within the devolved competence of the Scottish Parliament.

The order is made under Section 104 of the Scotland Act 1998 to make consequential legislative changes regarding arrests effected in Scotland and outside Scotland in connection with crimes committed in Scotland, police custody in Scotland, the investigation of Scottish law crimes and extradition matters in Scotland. I ask the Minister: where these provisions affect officers outside Police Scotland, including police officers across UK forces outside Scotland, immigration and customs officials, NCA officers, the Civil Nuclear Constabulary and other forces covered by the order, has any assessment been made of any additional training or resource needs that might arise from these provisions? If so, who would be responsible for funding any such additional needs identified? I look forward to the Minister’s reply.

--- Later in debate ---

[Baroness Donaghy (Lab)]

My Lords, my point is much narrower. I would like clarification on Schedule 1. A constable of the Police Service of Scotland can arrest someone in England, Wales or Northern Ireland without a warrant in connection with a Scottish crime in certain circumstances. A constable of a police force in England, Wales or Northern Ireland can arrest a person in Scotland—it does not mention a warrant—in certain circumstances. Is there a difference? One says without a warrant; one does not mention it. What are the implications? What are the circumstances that are mentioned there? Later on it talks about deserters and refers to certain limited circumstances. I can understand that; obviously, that is a much more complicated issue. But it would be extremely useful to have some clarification about what that cross-border responsibility would be.

[Lord Duncan of Springbank]

I was hoping that there would be another question to give me a minute or two longer. In the absence of that additional question, I will try to answer the questions that I can. First, I welcome the support from the noble Lord, Lord McAvoy, and other noble Lords and recognise the dissent from the noble Lord, Lord Foulkes. I will come back to that point.

In answer to the question from the noble Lord, Lord McAvoy, about the training and the costs of training, the reserved forces operating in Scotland have been trained through existing budgets. Police Scotland has assisted in this by carrying out training courses for those reserved bodies operating in Scotland. It has also continued supporting partner agencies to adjust to the Act. So there should be no additional costs. However, the noble Lord is quite right to raise the question. We need to make sure that we keep an eye on this. Offering training once and believing that that is all is not enough. We need to make sure this is ongoing training and that it is delivering. It is important that we make sure that we are auditing the outcome and output of the training.

In response to the noble Lord, Lord Bruce, who has asked some serious questions about human rights, noble Lords will recall that the Cadder case originated from a human rights issue. That was the reason why the Government were very keen to move forward.

On stop and search, noble Lords will be aware that this is an operational matter, which limits my ability to comment specifically. However, I note again that where there are issues such as this, they can and should be addressed directly through organisations in Scotland. I note that the noble Lord, Lord Foulkes, welcomed, Susan Deacon, the new chair of the oversight body. I believe that that appointment will be a useful addition to the overall oversight matter. These issues need to be addressed directly through that point. If violations of human rights occur, they can be raised and escalated through the different strata. In the first instance, it would be a matter for the Scottish Government to address.

I will come back in a moment to the more complicated question on the British Transport Police. However, in answer to the first question from the noble Lord, Lord Foulkes, the European arrest warrant is still a subject for negotiation, so we do not yet have clarity on exactly what that will mean. If noble Lords will forgive me, I will postpone answering that question until I have an answer to it. That is probably the sensible thing to do.

The noble Lord has made a passionate point about the British Transport Police. I think not a single person on these Benches does not share his concern about some of the issues which seem to be unfolding, not for the sake of better policing or for better serving the people, but rather for a narrower, more factional agenda. I think we all have a certain degree of unease about that particular aspect. The important thing for me to note at this point is that the Smith commission recommended by consensus that powers over this would be devolved back to the Scottish Parliament and to the Scottish Government. In this instance, the Scottish Government are operating within their competence to do so. I share some of the noble Lord’s unease and I am sure that this will not be the end of the matter.

[Lord Foulkes of Cumnock]

On the Smith commission, with no disrespect to the noble Lord, Lord Smith, for whom I have great respect, or to the other members of the commission, it is possible they did not get everything right. They were rushed. They had to do things very quickly and were under a lot of pressure from the SNP in particular. At the end, John Swinney, having signed up and agreed to the Smith commission, said at the press conference that he did not accept the recommendations —an astonishing situation. If they can do that, we have the right to think again as well.

I may be wrong on procedure, but I think that if we do not agree this today, it goes to the House at a later date. That will give the Minister time to think and to consult. In that case, he might be able to consult not only David Mundell and Ruth Davidson but—can I go higher?—even Theresa May about this, because there is genuine concern. I have expressed it strongly, but it is expressed even more strongly by some leading Conservatives as well as other people in my own party. I hope we can have a pause in this statutory instrument. I do not think it would delay it unduly. It would give the Minister time to go back and say, “Look, I as a Minister faced this furore”. Although they have not got to their feet, all the people round the Committee Room were nodding when I was making this point. The Minister has made the point himself and substantially agreed with me. This would give the Minister time to go back and perhaps find a way to get the matter reconsidered.

[Lord Duncan of Springbank]

I will, I hope, be guided on points of procedure regarding the noble Lord’s exact question. However, I know that whatever we agree here today, the order must then move to the Floor of the House, at which point there will, I imagine, be an opportunity for this point to be made in the Chamber and for a Division to be called on the point.

[The Deputy Chairman of Committees (Lord Rogan) (UUP)]

I think that is the case, yes.

[Lord Duncan of Springbank]

That might be the opportunity for that pause. I appreciate some of the points which the noble Lord is making, but he will need to find support in the House. I am not sure whether I can comment on that at the moment, but I recognise the passion with which he makes the point, which is that issues are now unfolding. I stress that this matter was devolved to the Scottish Parliament and the Scottish Government; I do not believe that we can now revisit it in the fashion which the noble Lord would like, if I am being frank. I hope that that gives some answer to that.

I have one more answer to give to the noble Baroness, Lady Donaghy. She will be pleased to know that I will write to her, because she asked quite a technical question which requires a technical response. If she will allow me, I will write to her in due course with that information, and will happily share that with everyone else in the Room.

[Lord Tunnicliffe (Lab)]

Perhaps I can help the Minister. I believe that whatever happens today, provided that my noble friend indicates to the Government Whips that he intends to debate the order on the Floor of the House when it is called, they will seek to make time so that there can be a proper debate.

[Lord Duncan of Springbank]

Helpfully, apparently that is a matter for the usual channels, and I am not one of them, so I hope that that will be resolved in due course and that the noble Lord, Lord Foulkes, will find his satisfaction through that.

[Lord McAvoy]

I thank the Minister for giving way before he sits down. The Smith commission proposals were supported. There was a lively discussion and the situation of the British Transport Police was brought up, but it has been devolved. I wonder whether, not to alleviate the concerns of my noble friend Lord Foulkes but to address them, it would be procedurally possible for the Minister to undertake to raise this specific debate with his counterparts in the Scottish Parliament’s Government.

[Lord Duncan of Springbank]

That is a very good point indeed. I believe that I will be able to raise this very point both behind the scenes and with my counterparts north of the border, and then it will be discussed more fully in due course.

[Lord Foulkes of Cumnock]

I am grateful for the assurances of the Minister and, even more, of my noble friends, both of whom are part of the usual channels in one way or another. I feel no less strongly about it, but I understand the procedure that should be followed.

[Lord Duncan of Springbank]

I am very happy for that. Again, I will do all I can to take this forward in the manner in which we have discussed over the past few moments.

Motion agreed.