Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Empey Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Empey (UUP)]

My Lords, we have heard the suggestion of the noble Lord, Lord Adonis, that we have a mediator, but we are not comparing like with like. Going back to the time of George Mitchell, we have to remember that everything—the whole constitutional process, from scratch—was on the table. My fear is that if you appoint a mediator, they are not going to be able to confine their activities to the narrow issues that brought the Executive down. I believe Sinn Féin would want to completely open up the whole process, putting on the table the constitution, the principle of consent—all those things. I can see where people are coming from, but it seems to me that it is not beyond the ability of the parties to find a mechanism within themselves whereby talks could be held. To get a mediator to come in to deal with the Irish language Act and the RHI—the two things that brought the Executive down—does not seem particularly realistic.

The agenda would grow and grow, and the process could go on for years. Everything will end up on the table, including the constitution and the principle of consent. I do think we have to try to keep as open a mind as possible, but there may be a difference between a mediator and a facilitator, or a question as to whether the parties can find a mechanism among themselves; but bear in mind where this could go. If some people want to open up a process, there is no better place for Sinn Féin to be than in a process. They are serial negotiators; they want to continue to negotiate, which avoids having to take any tough decisions, particularly decisions in government. We have been warned by others that there are many who would take the view that Sinn Féin will do nothing until the Irish election is over. They do not want to have to take any tough decisions in government, which they would have to do because of the arithmetic, if nothing else.

Bear that in mind when considering the options before us. I would caution that that needs to be taken into account.

[Lord Adonis]

My Lords, the Committee is listening with great attention to the noble Lord. Would he care to elaborate on the distinction between a mediator and a facilitator?

[Lord Empey]

I am not personally advocating either, but a mediator is somebody who is negotiating between the parties. A facilitator may be somebody who simply organises the meetings, the paperwork, the breakout sessions and so on. A mediator is playing a Mitchellesque role in meeting the parties, negotiating, putting papers to them and so on. I see it as a step down, if you like, in those terms. I am not personally convinced. If people are not mature enough at this stage, after all these years, to arrange meetings among themselves—and we did have one, admittedly, that was an initiative by one party. I do not believe that we are so far down the road that we could not arrange meetings between ourselves. If the will to talk is there, surely it is not beyond the bounds of possibility that the parties can arrange that among themselves. We have an Assembly Speaker and we have Deputy Speakers. They could chair the meetings. All parties are represented, more or less. There are ways in which it could be done, but believe me, once you get into a process with a mediator, it could go on for years.

[Lord Adonis]

My Lords, I listened with great attention to the noble Lord, but I listened with equal attention to his speech at Second Reading in which he said that no progress was being made whatsoever in establishing an Executive, and that it was about time that some was made. If it has not been done by the process he has just suggested—the parties coming together—it is hard to see how some external stimulus could lead to a less advantageous situation than the current one.

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[Lord Empey]

I take the noble Lord’s point, which is pertinent. However, do not forget that if we keep to this three-stranded model, we have a Secretary of State and, where appropriate, an Irish Foreign Minister, and in the proper format there is no reason why they cannot be engaged. I am saying that maybe it would be an incentive if the Secretary of State made it clear that a process was starting and that the parties understood that if they were not prepared to participate in that, perhaps she and others would start to take decisions. I am not trying to be obstructive or rule anything out. I am simply saying, be careful. It sounds like a good idea, but bear in mind that people who are serial negotiators—they have been doing this for 25 or 30 years —will put things on the table and open the whole thing up. My only worry about this is that it just postpones the decisions even further, although I understand fully the noble Lord’s good intentions.

[Lord Murphy of Torfaen (Lab)]

I will intervene for a few seconds. The issue is that because the “talks” and “negotiations” have been notoriously unsuccessful over the last couple of years, there has to be some form of structure—although I agree with the noble Lord, Lord Empey, that it has to be on a very restricted number of issues, otherwise you go back to a Good Friday agreement mark 2, and we do not want that. You want to work within the agreement but have some sort of structure. If there is a person who could organise that structure and be acceptable to all the parties, I see nothing wrong with that. I understand that if you expand it beyond the current issues, that could be difficult. However, there are a number of issues beyond those the noble Lord, Lord Empey, mentioned—for example, the Irish language and equal marriage. All those things can be on the table, but it is about getting some form of structure which simply does not exist at the moment. Anything that could help that would be useful.

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[Lord Empey]

My Lords, my Amendment 6 is in this group. The argument is the same. This is not the first discussion we have had on the Hart report. It has been raised whenever we have dealt with budgetary matters, and we have had two budgets. To put it in context, there is one complication in that the funds are not exclusively a government responsibility because presumably the people who operated the institutions have insurance. We have seen examples, particularly in the United States and elsewhere, where insurers have had to contribute. I am totally in favour of that but it should not paralyse us and prevent us moving forward.

The other characteristic of this proposal is that there is all-party support in Northern Ireland for it. There is not a single, solitary MLA in Stormont who is opposed to it, so there is no reason to say that there is a political issue here. There is no political issue with regard to support. There is unanimity—a rare commodity in Northern Ireland. The victims came to the other place to lobby—I met them in the Public Gallery—and spoke to Members of Parliament. This is a very similar demographic to that referred to by the noble Lord, Lord Hain, including people who were traumatised more than 40 years ago. This is not just a Northern Ireland issue; it applies right across the board, as the noble Lord, Lord Bruce, indicated.

Where do the funds come from? As of yesterday there are unhypothecated Barnett consequentials of £320 million. Where Barnetts are concerned, the money that comes from London does not have to go to particular subjects, such as education or roads; it can go to whichever department the previous Executive directed it to. It would not be difficult to check again whether there is unanimity for this, which I believe there is. I understand the Minister’s dilemma—is this creeping direct rule?—but there is a different dimension here, just as in other amendments that we will come to shortly. There is compassion. There is time. There is the degree of suffering that people endured. Is it right that we add to that when there is no financial, political or any other rational reason for doing so?

I just do not believe that the ordinary person in the street back home, whatever their view of devolution or Stormont, would be that upset if these people who have suffered for so much of their lives receive redress and we deal with this on humanitarian grounds. That is the best approach. There is unanimity of support, there is a humanitarian issue and I believe the resources are available. On those three issues, I hope the Minister will see fit to give us a positive response.

[Baroness O'Loan]

The people affected by the historical institutional abuse inquiry were also affected by the Troubles. Many of them ended up in residential institutions because of the Troubles. Billy McConville, the son of Jean McConville—who was abducted and murdered by the IRA—died before the payments recommended by Hart were made. I support the proposal and hope that the Government will find some way of dealing with this in the interests of those victims.

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[Lord Empey]

My Lords, I have Amendment 13 in this group. I am not quite sure that it sits precisely with Amendment 5. To follow up on what the noble Lord, Lord Bew, said, I asked whether senior civil servants were members of the First Division Association, the trade union for people in senior positions in the Civil Service, because these civil servants are being asked to do things that no other civil servants are being asked to do. There is a risk here that is not fully appreciated. We are taking it for granted.

The noble Lord, Lord Trimble, made the point about the law and the department being different. Here, the power is vested in the Secretary of State and back home it is vested in the department—we understand that—and a Minister’s role, when one is in place, is to direct and control the department. What we found when we had a period between devolution before—even though there was direct rule—was that civil servants ended up having to implement policies that they knew those of us who had been devolution Ministers and were again did not approve of. They were put in an embarrassing position when devolution was restored because they suddenly found they were having to work for somebody whom they had previously actively opposed. We have to understand that you cannot take a public institution such as this and simply mould it to whatever circumstances you find on a day-to-day basis. These people have a career. They do not want to get into a firefight with politicians but that is where we are pushing them. We have to be very careful.

My amendment covers audit office reports and, like everything else, these come regularly. Each year the auditor decides an agenda of what issues might come up. These reports are extremely valuable because they look at what is happening to taxpayers’ money. Incidentally, there is another big question. What happens when Sir Patrick Coghlin reports on his inquiry? Where does that go? It certainly will not go into the ether. Who will deal with it? Does the department prepare and publish a response? Will important lessons be learned from these audit office reports? We have to be careful that they do not just disappear because valuable lessons are learned from them here as well as everywhere else. I simply say to the Minister that reports should not just be in the ether, without our knowing what happens to them. It is taxpayers’ money at the end of the day and Parliament has an overall responsibility for that, even though it is devolved. I should like to think that departments will publish a response, even if it is merely to some of the technical matters that may be resolved.

I support the noble Lord, Lord Bew. Practically every week over the last couple of months, senior civil servants have been appearing in that inquiry and getting a hard time—some of them have been there for days—and coming back and revealing what has been going on. I have to say that, even though I knew things were not great, like most other people, I have been shocked by the extent of the abuses that have been allowed to take place and the culture that permitted it to happen. Huge issues need to be discussed here. In this case, I should like to think that responses to audit office reports can be published so that we can learn and, I hope, not repeat the mistakes.

[Lord Murphy of Torfaen]

My Lords, it has been a very interesting short debate. I think that it has to be dealt with in the context that this is a temporary arrangement. The issue at the end of the day is that if we have anything like an elaborate panel set up, it will give permanence to this totally unsatisfactory system where a part of our country is run by civil servants who are unaccountable in any way to the electorate.

My experience is that as a Minister you would have in the department a system by which you would consult civil society on various decisions that you have to make anyway—at least there should be consultation. Perhaps there is some method by which that could be made a little bit stronger, so that there is a sounding board for the civil servant. The danger always is that the civil servant will be very reluctant to take a decision that might be controversial but which is necessary. That is worth examining, but in the context that this has to be seen as a highly temporary arrangement. It also highlights how terribly unsatisfactory the whole situation is that we do not have a proper elected Government or Assembly in Northern Ireland.

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Moved by

[Lord Empey]

7: Clause 3, page 3, line 7, at end insert—
“( ) The guidance must direct the Department of Health in Northern Ireland to take all reasonable action, within the existing legal framework, to prepare to—(a) reduce waiting times and waiting lists for the provision of all health services;(b) improve the timeliness and quality of cancer treatment services, including a new cancer strategy; and(c) implement the recommendations of the Strategy for Suicide Prevention in Northern Ireland (“Protect Life 2”).”

[Lord Empey]

My Lords, I have raised issues pertaining to health in Northern Ireland before. I think I quoted figures before that show that, out of a population of 1.8 million, we have 280,000 people waiting for their first consultant-led out-patient appointment. Of those, approximately 90,000 are waiting over 12 months. At the end of June this year, a further 83,746 patients were waiting for admission to hospital. Of these, 18,000 had been waiting longer than a year. For performance figures for A&E, sadly we are at the bottom of the table for the whole of the United Kingdom again—not meeting any targets, but in fact at a worse level than any other part of the United Kingdom. Whichever way you look at it, this crisis in health has been building up for some time. Its origins date from before the Executive ended, because the trend had already been established, but it has now accelerated. These figures refer to the summer, and we have not even begun to get into the issue of winter pressures.

I have drawn your Lordships’ attention before to the fact that I believe that the Government should take control of health back here to Westminster on humanitarian grounds, on a temporary basis. Bear in mind that it happened with welfare reform—the decisions were taken and then the powers were sent back to Stormont. That happened because there was a political disagreement. These figures may mean a lot to somebody or they may mean nothing to anybody, but I can assure Members that what we are seeing here is real harm done to a significant number of people. That is why we really need to take action.

The problem we have at the moment with the absence of a Minister is that nobody can take long-term financial decisions. We are taking decisions within a very short timescale, and anybody who knows anything about health knows that you cannot do that. It requires time and planning and it is very inefficient if it is all done at the very last minute. A Minister could enter the scene and take decisions on even mid-term financial planning. Immediately an Executive is formed it can be taken back to Stormont. Some people say that there is a risk of creeping direct rule. I am not in favour of direct rule; I believe in devolution, but we are dealing with a magnitude of something here. There are 5,600 vacancies. Last week, I visited a hospital. One of the bays in the ward had to be closed because there were not sufficient staff.

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[Viscount Younger of Leckie]

My Lords, these two amendments in the name of the noble Lord, Lord Empey, seek to direct the Northern Ireland departments regarding health issues and public sector pay. As we have consistently said, the proposed legislation is not a move to direct rule, and decision-making must remain within the remit of Northern Ireland departments. To use this guidance to direct individual decisions would therefore go against this principle.

It is important that senior officers are able to apply the principles in the guidance in determining whether it is in the public interest to exercise functions. I understand the concern to ensure that effective decisions are made on the important issues of health, such as waiting lists, and public sector pay—as the noble Lord, Lord Empey, pointed out. However, as we have heard today, these are certainly not the only important—I stress that word—issues in Northern Ireland. Prioritising certain functions in the guidance could suggest that they should be followed at the expense of others. We are confident that the draft guidance as it stands allows Northern Ireland departments to exercise functions such as those raised in this amendment, although whether and how to exercise functions must remain a matter for Northern Ireland departments.

The Department of Health is already working intensively to respond to increasing demands on the Northern Ireland health service, and will continue to do all it can to uphold its duties in the public interest in this interim period. We of course recognise, however, that there are some decisions not enabled by this Bill. The Bill and guidance simply seek to enable senior officers in Northern Ireland departments to take a limited range of decisions using existing powers where it is in the public interest to do so now rather than wait for Ministers. That is in the context of providing the space and time for political talks to help restore devolved government, an issue that has been much discussed today in the Chamber.

Intervening in individual areas in this manner would be tantamount to direct rule—the noble Lord, Lord Empey, used the expression “potential creeping direct rule”—and would undermine our commitment to devolution and the Belfast agreement. The Prime Minister and the Conservative and Unionist manifesto are crystal clear that we will uphold our obligation to the people of Northern Ireland to ensure that their vital public services are protected. We have always said that we do not rule out further legislative intervention if it is necessary. I realise that my response will disappoint the noble Lord, Lord Empey—he will probably not be too surprised—but on the basis of these points I hope that he will feel able to withdraw his amendment.

[Lord Empey]

Before the Minister sits down, I want to say that he is not quite clear as to the Government’s exact position. He is saying that senior officers should be able to take certain decisions. Of course, this could be seen as direct rule. Look, folks, this is life—this is people’s lives here. We are not talking about a road junction or something casual. We are talking about people not being treated within any guideline that currently exists on these islands. In other words, these are to be sacrificed because of some political ideal of devolution versus creeping direct rule, or “Who are we going to annoy? We are going to annoy Sinn Féin. We are going to annoy this party or that party”.

Think of the people affected by this. This is not going to go away. It is getting worse. The statistics have been going like this not just recently, but for a long time. The suicide strategy is another one where there is total agreement. It is a big problem back home and it has not been addressed, yet everybody agrees that it should be addressed. What does it take?

I ask the Minister to clarify what he means. He thinks the guidance will allow officers to take decisions, yet on the other hand they are afraid that this would be seen as creeping direct rule. This is a qualitatively different subject matter, and it is on humanitarian grounds that I put this forward, not on a political platform.

[Viscount Brookeborough (CB)]

It may appear that, because the noble Lord, Lord Empey, is leading this on his own, he may not have support. I think he has support from everybody. I declare an interest in that I have had cancer of the throat. This sort of thing does not just affect the people. It affects their families and dozens of other people; it affects their friends. I feel that it affects their friends and families more because they are so worried that they cannot do anything to help, and yet the state, in the form of the National Health Service, is not helping them. Therefore, I cannot conceive that this is not in the public interest, yet the Minister is almost saying that if a senior civil servant thinks it is in the public interest he may come out in support of it.

The other point is that, on another amendment, on the PSNI, we have just spent five or six hours debating the fact that the primary aim of the Government is to restore the Assembly. Policing is absolutely vital to that, and we cannot see the police force denuded of pay or resources to achieve this end. I am afraid that all afternoon, whenever we have talked about any other part of it, the Government have been saying, “Our primary aim is to restore the Assembly”. We will not restore it without enabling our security forces, the police, to manage the day-to-day situation. The Minister should give a slightly more reassuring answer than, “We’ll post it back and see what they think about it”.

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[Lord Alderdice (LD)]

My Lords, I have listened carefully to what colleagues from Northern Ireland said. I am no particularly strong supporter of the Government but it seems that, in a way, this debate demonstrates a kind of learned helplessness, not just of politicians in Northern Ireland but of the Civil Service. If there is a problem, it is someone else’s responsibility—such as the Government’s—to sort it out. The Bill is clearly handing power back to civil servants in Northern Ireland and saying, “You’re covered for making any kind of reasonable decision; that’s not a legal problem now. And by the way, if the politicians in Northern Ireland would get their act together and go back, that would rather help things as well”.

What I am hearing is people trying to pass it back and say, “Come and sort the whole thing out but, by the way, we know that that will disrupt all kinds of agreements we have reached—the Good Friday agreement and so on”. I say to colleagues, in fairness, what the Government are trying to do is to give people the legal cover to do what is necessary. That includes senior civil servants in Northern Ireland, who have not covered themselves in glory over the RHI scheme or anything else. This is a chance for them to take responsibility and actually do the governing work that they need to do, and that we all need them to do. To that extent, I hope we can move on with some acceptance of what the Government are trying to do, albeit that it is not as satisfactory as we would all like it to be.

[Lord Empey]

My Lords, I know the noble Lord, Lord Hay, mentioned education—we could all mention that—but there is a qualitative difference between something affecting life and something affecting bad administration. I need to read Hansard—I am not particularly clear on what the Minister means by his decisions—but I will read it. I assure him that if things continue to deteriorate in that area as they have been, I will certainly be holding his feet to the fire. There will be other opportunities; I am not going to let this drop. Having said that, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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[Lord Adonis]

My Lords, I have Amendments 14 and 15 in this group. I think the noble Lord, Lord Trimble, undersold his own amendment. It seems to me that he was raising a very important principle: it should be possible for the Assembly to meet in the absence of an Executive. As somebody who looks at this from outside, it has always seemed strange to me that, because of the architecture of the Good Friday agreement, the Assembly cannot meet if it has not sustained an Executive. I do not know whether the noble Lord can tell me if it legally cannot meet. It certainly has not met in the absence of the Executive. It seems, in terms of seeking to engage the elected representatives of Northern Ireland, and encouraging them to create a context in which an Executive can be formed, what the noble Lord has proposed is extremely constructive. The Minister will be able to tell us whether legally it is possible to proceed in the way the noble Lord, Lord Trimble, has proposed. My amendments facilitate a meeting of the Assembly for the specific purpose of discussing Brexit, given that that is one of—not the only, but one of—the most important decisions that will be taken affecting Northern Ireland over the next six months. It seems highly detrimental to the people of Northern Ireland that their voice is not being taken account of in any formal way, apart from the impact that they are able to have through their elected representatives in the House of Commons. If it were possible to bring the Assembly together for the purpose of discussing Brexit in the absence of Ministers, I cannot see any good reason why that should not happen.

I understand the point that the noble Lord, Lord Alderdice, has made, which is that summoning the Assembly purely for the purpose of discussing one issue—a contentious issue—may not be the best way of proceeding. Enabling the Assembly to meet to discuss a wider range of issues and issues of immediate local concern, including many that were raised at Second Reading, such as infrastructure, public services and so on in Northern Ireland, could help to inform the decisions that officials take. That would seem to be an eminently sensible way forward, and it appears to be what the noble Lord, Lord Trimble, has in mind. However, if it were legally possible for the Assembly to meet in the absence of Ministers, I would have thought that that would be an excellent way of proceeding, and my amendments would simply include Brexit among the issues that should be discussed by any such meetings of the Assembly.

[Lord Empey]

My Lords, there might be a couple of technical issues surrounding this. As I understand it—perhaps the Minister can confirm this—under the current law the first item of business when the Assembly meets is the election of a Speaker. The Assembly would refuse to do that under the current circumstances, so that would have to be addressed.

However, there is a wider point that I want to make. I am sure that the Minister or his predecessors have been saying for more than a year that they are prepared to think outside the box. However, this is a hermetically sealed box; it has a number of combinations on it but nobody knows what they are; and it has not been opened in the past year. Not a single idea has been brought forward. For months the noble Lords, Lord Alderdice and Lord Trimble, have been putting forward options—but they are talking to a brick wall, because the principal holy grail at the moment is, “Don’t upset the Shinners”. As long as that is the driving force, we will never move a yard forward.

So I hope that the Minister will, with the Secretary of State, genuinely be prepared to look outside the box. We will be sitting here having this conversation in several months’ time, and I do not know whether these are the right options but I think that they certainly merit discussion. The Northern Ireland Office has to start thinking outside the box. I understand that the Prime Minister and everybody else is Brexit focused. The noble Lord, Lord Adonis, rightly said that this is the biggest change that has happened to us in the last 20 years and we are out to lunch. Our voice is not being heard, yet the people of Northern Ireland will be the most directly affected. It is barking mad that we are in this position—so let us genuinely think outside the box.

I hope that when he winds up, the Minister will be able to refer back to Amendments 7 and 8, which I spoke to earlier, concerning the circumstances in which our health service and other matters could be addressed in the future. These are all parts of a bigger picture. I just hope that he will persuade his right honourable friend in the other place to start thinking outside the box, because we are trapped, it is wrong that we are trapped and people are hurting. This Parliament has a responsibility towards those people, and we are not doing our duty.

[Lord Murphy of Torfaen]

My Lords, I think that there is a case for putting this on the table as a matter for discussion in the forthcoming negotiations. Obviously the Good Friday agreement is a structure that means that all sorts of different organisations have to operate at the same time. You have to have an Assembly, an Executive, a north/south ministerial body and a British intergovernmental conference with the Republic of Ireland. However, the noble Lord, Lord Empey, is right: you have to think outside the box. There has to be imagination. The noble Lord, Lord Trimble, has been talking for at least a year about using what could have been the original Welsh model, when the Welsh Assembly was effectively a very large county council. It has changed considerably over the years—in my view, for the better. But that was an opportunity for elected people in Wales to get together. We have just under 100 Members of the legislative Assembly in Northern Ireland. They do not meet formally or informally. This would give them a chance to go to Stormont and talk about issues, and also talk among themselves—to start talking again—because this is all about talking in many ways.