Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015

Lord Empey Excerpts

Wednesday 4th March 2015 Grand Committee

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, I beg to move that the Committee should consider the draft Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015, laid before the House on 29 January 2015. The main purpose of this order is to provide the Police Service of Northern Ireland with the ability to continue to use biometric data, including DNA, footprints and fingerprints, in the interests of national security and for the purposes of a terrorist investigation. The order also makes a transitional provision which permits the Chief Constable of the PSNI additional time to consider whether material held by the PSNI should be retained for an extended period for the purposes of national security, and makes some amendments to the Terrorism Act 2000 and to the Protection of Freedoms Act 2012. I shall refer to this as the 2012 Act.

The 2012 Act made new provision for the retention, destruction and use of biometric data taken in the course of a criminal investigation in England and Wales. The new provisions, which are now in force in England and Wales, require the destruction of biometric data of those individuals who have not been convicted of a criminal offence, subject to a number of statutory exemptions. Such new provisions were necessary in the wake of the judgment of the European Court of Human Rights in the case of S and Marper v the United Kingdom. In that case, the court ruled that the provisions in Part 5 of the Police and Criminal Evidence Act 1984, which at that time permitted the “blanket and indiscriminate” retention of biometric data from individuals who had not been convicted of a criminal offence, violated Article 8 of the European Convention on Human Rights. The equivalent provisions relating to Northern Ireland, contained in the Police and Criminal Evidence (Northern Ireland) Order 1989, were thus similarly considered to violate Article 8.

The 2012 Act did not provide for an equivalent new biometric retention framework for the police in Northern Ireland. While the Northern Ireland Department of Justice sought a legislative consent Motion from the Assembly for the inclusion of Northern Ireland-specific clauses within the 2012 Act, this was not granted. This was largely because the majority of the provisions to be made had by then fallen into the devolved space following the devolution of policing and justice to the Northern Ireland Assembly in April 2010. The devolved Administration therefore took forward a separate but broadly similar provision to that contained in the 2012 Act. This was done under the cover of the Criminal Justice Act (Northern Ireland) 2013. I shall refer to this as the 2013 Act. It was recognised, however, that the Northern Ireland Assembly did not have the legislative competence to make provision in the excepted field, in particular to permit the biometric data obtained under the PACE NI order to continue to be used for national security purposes and in terrorist investigations.

An order-making power was therefore inserted into Part 7 of Schedule 1 to the 2012 Act to allow the Government to make excepted provision regarding biometric data in Northern Ireland. This power was consequential on the devolved Administration making similar provision to that contained in the 2012 Act by the end of 2012. In the event, it was the following year before the devolved Administration’s Bill containing the equivalent provision received Royal Assent, in the 2013 Act. It was therefore necessary to amend the order-making power in the 2012 Act via primary legislation. That was done in the Northern Ireland (Miscellaneous Provisions) Act 2014, which received Royal Assent in March 2014.

An amendment to the 2013 Act is currently being taken through the NI Assembly via a separate Bill. The devolved Administration advises that this amendment is necessary to prevent the inadvertent requirement to destroy a large volume of material which was intended to be capable of retention. It is expected that that Bill will receive Royal Assent by this summer, following which the provisions in the 2013 Act will be commenced. This order will be brought into force on the same date that the provisions of the 2013 Act are commenced. That is in order to avoid any gap arising in the powers of the PSNI to retain biometric data for national security purposes or in terrorist investigations.

Following the approach for England and Wales in the 2012 Act, paragraph 6 of Schedule 1 to the 2012 Act provides for the making of a “national security determination” by the chief constable of the PSNI in respect of the biometric data of a given individual. That allows the material to be retained for up to two additional years for the purposes of national security. The order provides for a transitional period during which the new destruction regime will not take effect in respect of material identified as requiring consideration as to whether it should continue to be held for national security purposes. That is to allow the chief constable of the PSNI sufficient time to consider whether to make a national security determination in respect of such material. The provision permitting the chief constable of the PSNI to make the national security determination is not yet in force, but will be commenced by order later this year on the date identified for the commencement of the new destruction regime in Northern Ireland.

The Biometrics Commissioner, appointed under Section 20 of the 2012 Act, will have an important oversight function in that connection. The commissioner will have the power to review every national security determination made by the chief constable, and will be empowered to order the destruction of any material made the subject of such a determination if he concludes that it is not necessary for the material to be held on the grounds of national security.

Finally, the order makes two minor consequential amendments. First, paragraph 15 of Schedule 8 to the Terrorism Act 2000 is amended to ensure that the correct definition of the term “sample” is adopted in relation to the use of police powers under the Act. Secondly, the order removes some remaining references in Schedule 1 to the 2012 Act to samples and profiles which are redundant in consequence of the 2013 Act.

Part 7 of Schedule 1 to the 2012 Act provides my right honourable friend the Secretary of State for Northern Ireland with an important order-making power. With this order she duly exercises that power to ensure that the PSNI remains able properly to investigate terrorist offences and make use of biometric data in the interests of national security. Moreover, the provisions of the order are a vital part of the new legislative framework, which is necessary to secure the Government’s compliance with our obligations under the European convention. I commend the order to the Committee.

[Lord Empey (UUP)]

My Lords, the complicated nature of the order that the Minister just outlined to us illustrates that it operates at the twilight zone between the excepted and the devolved matters. Of course, the fact that both are going at a different pace makes matters even more complicated. Nevertheless, we understand that this flows directly from an ECHR ruling and we must deal with that.

Can the Minister assure us on one point? Many members of the public frequently become concerned if there is a risk that material that could subsequently find its way into the evidential process will be disposed of prematurely. We now know of cases emerging many years after offences were committed. We see that on a regular basis and, as the noble Baroness knows, the Historical Enquiries Team is about to commence more work—just as it has previously operated, going back over very difficult terrorist cases. Of course, sadly, in the current circumstances in the modern world, many risks to national security come from all sorts of directions, and not ones that we have been used to traditionally in this part of the world. Therefore, there is quite a significant issue here. I would like the Minister to assure the Committee that the risks posed to successful prosecutions will not be significant and that there are sufficient powers available to ensure that appropriate material is retained in the reasonable prospect that further evidence would justify a prosecution.

The Explanatory Memorandum also raises a number of issues that affect the Police Service of Northern Ireland, not least of which is cost. I refer to paragraph 10, on impact. It says that there is,

“a cost to the PSNI in configuring computer systems for their use in managing the new regime and in staff training”.

Are sufficient resources available to the PSNI to undertake this work? The Minister will know that the PSNI has faced a very difficult budget settlement. We understand the reasons for that but the work that must be undertaken by the PSNI is, far from reducing, at a very significantly high level. That is not simply because of the ongoing terrorism threat. There are other threats out there, for example through smugglers and illicit trade.

I am pleased that at long last, after a two and a half year delay, the National Crime Agency will function in Northern Ireland. However, there is clearly a cost and resource issue here. It is not only cost. Part of the problem that the PSNI faces is that it has so many people working on historical cases and also an ongoing terrorist threat level that the Chief Constable described as “severe”—it is certainly substantial. He will have to review every piece of evidence and that is a massive piece of work. If officers’ time is taken up with that, with training and so on, there is a resource implication. Can the Minister assure the Committee that the effectiveness of the PSNI is not going to be diminished as a result of the substantial workload that is going to be forced upon it?

I hope that the Minister will address one other matter. Can she explain in a little more detail paragraph 12 of the Explanatory Memorandum covering the monitoring and review process:

“An independent Biometrics Commissioner has been appointed to keep under review the retention and use by the police of DNA samples”?

Given the fact that the role of the commissioner is currently limited to the oversight of the making of national security determinations, can the Minister elaborate on how this process is going to operate under the new circumstances?

In summary, the necessity for this has been more or less forced upon us as a result of the court ruling, and of course even though the legislative framework is different in England and Wales from Northern Ireland, the case has the same effect as it would have under the different legislation that exists in Northern Ireland. Those are the issues and I would appreciate it if the noble Baroness would address them in her response.

--- Later in debate ---

[Baroness Randerson]

I thank noble Lords for their comments and their support in principle for the order. The noble Lord, Lord Empey, asked whether there was a risk that biometric data that could still lead to the conviction of those who have not yet been brought to justice for their crimes might be destroyed. The purpose of the order is to allow the PSNI to continue to use biometric data in the interests of national security or for the purposes of a terrorist investigation. It does not impose any destruction requirements on the PSNI.

The Criminal Justice Act (Northern Ireland) 2013, which was of course debated and approved by the Assembly, provides for the exemptions to the legal requirement to destroy an individual’s biometric data that have been introduced in response to the Marper judgment. During the Marper case, the European Court of Human Rights rejected the argument that the indefinite retention of biometric data was justified for the purposes of preventing crime. The court ruled that the blanket and indefinite retention policy of the UK did not strike the appropriate balance between public interest and the rights of the individual. The noble Lord will know that we are bound by that judgment.

Both the noble Lord, Lord Empey, and the noble Lord, Lord McAvoy, referred very rightly to the issue of resources. As the purpose of the order is to allow the PSNI to continue to use biometric data in the interests of national security or for the purposes of a terrorist investigation, no resource burden is imposed by virtue of the order that is before the Committee. However, the implementation of the new legislative regime for the retention of biometric data, provided for by the Criminal Justice Act (Northern Ireland) 2013, has of course created a significant resource burden, as is noted in the Explanatory Memorandum, which noble Lords have referred to. It has been necessary to allocate resource to reviewing all biometric data currently held by the PSNI, the configuration of IT for their use and staff training. This is an inevitable consequence of the ruling of the European Court.

The noble Lord, Lord Empey, asked about the mechanisms to be put in place to ensure the oversight of police retention of biometric data, which is not subject to the destruction requirements. The independent Biometrics Commissioner, to whom the noble Lord referred, will have the power to review the making of every national security determination, including those made by the chief constable of the PSNI. If the commissioner is not satisfied that the retention of any material is necessary on national security grounds, he can order the material to be destroyed. The Biometrics Commissioner’s first annual report was laid before Parliament in November 2014. In his report, the commissioner reveals that relatively few national security determinations relating to England and Wales, where his powers currently lie, have been received by his office to date.

I hope that those responses are helpful to noble Lords. I commend the order to the Committee.

[Lord Empey]

Will the Minister clarify one point for me? Is she saying that, if the chief constable designates a “sample” as one that is essential, in his or her view, for anti-terrorism or national security purposes, that protects the sample from the ruling of the court, subject to the oversight of the commissioner? Is that effectively where we are?

[Baroness Randerson]

The short answer is yes; that is the process. The chief constable makes the decision and it is reviewed by the commission.

Northern Ireland: On-the-Runs Scheme

Lord Empey Excerpts

Tuesday 27th January 2015 Lords Chamber

[Baroness Randerson]

I am sorry to disappoint the noble Lord. I really cannot comment on the details of a specific case.

[Lord Empey (UUP)]

My Lords, will the Minister explain what metaphysical forces were at work that allowed a member of Sinn Fein to deliver a letter to a person who he did not know at an address that he did not know? Will she also confirm to the House that no blank letters were given to Sinn Fein for it to distribute to persons of its choosing? Will she give a categorical assurance from the Dispatch Box that no letters of that character were issued at any stage?

[Baroness Randerson]

I understand the general concern that noble Lords are expressing about this scheme. I can say to the House only that, once we identified the scheme we brought it to an end in an orderly manner. We certainly are not of the view that the scheme has been operated in an efficient and acceptable manner. I once again refer the noble Lord to the Hallett report, which gave a very detailed description of the way in which those letters were issued and the way in which errors were made.

Wales Bill

Lord Empey Excerpts

Monday 24th November 2014 Lords Chamber

[Lord Empey (UUP)]

My Lords, following the decision to reduce the voting age in the referendum in Scotland, young people distinguished themselves during the campaign with their level of participation, and I will be very interested to hear the Minister’s response to the noble Lords, Lord Richard and Lord Rowlands, on the statistics. However, I share a lot of the views of the noble Lords, Lord Crickhowell and Lord Cormack, on the manner in which this issue is being dealt with. It is piecemeal and haphazard. There has been no systematic debate. Of course, the noble Lord, Lord Elystan-Morgan, made a point about the reduction from 21 to 18, and there will always be an argument. We all accept that. Why not 15? We can make any argument we want with justification of one degree or another. That is not quite the point that the noble Lord, Lord Cormack, was trying to make. The point was that it came out of left field from negotiations between Mr Salmond and the Prime Minister and is being reflected in the Bill. Of course, it would be a very brave person who came to the Dispatch Box and defended not putting it into the Bill in view of what happened just a few weeks ago in Scotland. What possible justification would there be? However, I ask the Minister to reflect and to pass back to her colleagues the fact that there is no process here. It is just random, along with a long series of other constitutional aberrations.

[Lord Morgan]

Can the noble Lord suggest any example of constitutional change since 1997 that has not been piecemeal or haphazard? We are following exactly same—he is quite right—unsatisfactory practice, so we are considering the merits of the case.

[Lord Empey]

I participated in a process that was anything but haphazard. It took two years to work out our settlement in Northern Ireland, which then came to Parliament to be debated and enacted. There was a process. As I understand it, the noble Lord’s party believes in a constitutional convention or a commission of some description, whatever we call it. We should not be precious about it. Those are all perfectly meritorious ideas. My point is that the change introduced by the Bill, which follows the process that happened in the Scottish referendum, inevitably has implications for the electorate more widely. We have a position whereby 18 year-olds will be voting next May and 16 years-olds will not, yet the decision that many 16 and 17 year-olds in Scotland took two months ago was very important. People could say it was of greater importance than a general election.

The point I am trying to make, which I ask the Minister to pass back to her right honourable friend, is on the concern that this is one further example of a haphazard attempt to change our constitution without any structured debate or rational process. I look forward to hearing her response to the noble Lord, Lord Richard, and the statistics. However, I will make another, tangential point, which applies whatever referendum takes place, whether on tax or anything else.

When the noble Lord, Lord Roberts of Llandudno, asked about transport and the roads, to some extent he hit the nail on the head. Scotland is, of course, an independent country which has shared its sovereignty with the rest of the United Kingdom; Northern Ireland is separated by sea from the rest of the United Kingdom, while Wales is not. You go from one side of the street to the other, from somebody’s back gate, and you are in Wales. Clearly, that means that unique issues need to be discussed when devolved powers are exercised. Again, there is no structure for that; there is no process or long-term debate, and we are basically making changes on the hoof. This process issue is a mistake.

[Baroness Gale (Lab)]

My Lords, we welcome the Government’s amendment, which would give powers to the Welsh Assembly to decide on whether 16 and 17 year-olds will be able to vote in the referendum on income tax. However, can the Minister say whether this is a government amendment, even though three Liberal Democrat Back-Benchers have put their names to it? There is cross-party support for this amendment, and I am sure that the Minister could have asked Peers from other parties to put their names to it as well. However, we welcome it.

To give the responsibility to this age group is a good step forward, which will eventually lead to all 16 and 17 year-olds having the vote in all elections in the United Kingdom. There is no longer any good reason for a delay. Labour will make a manifesto commitment at the general election to allow 16 and 17 year-olds to have the right to vote in all elections. Although some Peers have expressed their views that this is piecemeal, haphazard and so on, this is another step on the journey we are making with devolution. This is how it has been done since 1999—it has been a step-by-step approach—and when the Bill becomes an Act it will give more powers to the Welsh Assembly. However, we appreciate that this is not the Bill that will give universal franchise to 16 and 17 year-olds; that will be a United Kingdom decision, taken by the Westminster Government.

I was pleased that the Minister was able to refer in the amendment to the need to include,

“provision for the preparation and maintenance of a register of young voters”.

We understand that the responsibility for compiling the electoral register rests with local councils and is a devolved matter. The registration of young voters must be a priority and needs active and constant engagement. The noble Lord, Lord Roberts, in his enthusiasm, expressed his wishes; I understand that, and we support what he was saying. We therefore hope that when decisions are made on a referendum, the Welsh Government will give every encouragement to EROs in Wales to ensure that they prioritise the registration of young people through at least one visit to every school and college in Wales in enough time to ensure that all young people are fully aware of their right to vote in the referendum. We believe that to be of great importance. I am sure that the Minister will do all she can in her discussions with the Welsh Government to ensure that that happens. We thank the Minister very much for her commitment in bringing these amendments forward today.

Wales Bill

Lord Empey Excerpts

Tuesday 11th November 2014 Lords Chamber

The noble Lord’s key point is rationality and he asked why this is happening in Wales and not in England. I am so old-fashioned in constitutional matters that I still believe in the self-determination of peoples. If people request democratic change, that is a test of whether it should be considered; it is also a test of its acceptability. I absolutely agree with the noble Lord, Lord Howarth, that incrementalism has worked in Wales, because the people of Wales have seen the gradual development of our devolution as something they can support, over successive polls and referenda. It is on that democratic basis that this has happened. It is not something that has come out of nowhere. In the United Kingdom, as we now call it—it has been called lots of things in its history, and may be called other things in future—the relations between the peoples and nations of this island have always been negotiated in this ad hoc way. It is not irrational, it is democracy.

[Lord Empey (UUP)]

My Lords, far be it from me to intervene in a discussion among the representatives of the people of Wales on their devolution, but I wanted to make an observation. As someone who was involved in negotiating a reserved powers model some years ago, I can tell noble Lords that it is not the Valhalla that they expect it to be; it has its downsides as well as its upsides.

I wanted to comment on some of the remarks from the noble and learned Lord, Lord Morris of Aberavon. First, on the consistency issue throughout the United Kingdom, I do not think that it will be achievable to have an entirely consistent model everywhere. Indeed, why should we necessarily have one? The famous vow issued immediately before the Scottish referendum had a section in it that almost supersedes devolution, by almost implying that the Scottish Parliament will be a totally free-standing and permanent institution that is not in future perhaps capable of being legislated over by this Parliament. That is one interpretation of the vow.

The noble Lord, Lord Deben, made a significant point when he said that the people of England may feel left out of the constitutional debate. There is quite a bit of substance in that, but I point out to him that it is the Government who have brought forward in this year alone the Northern Ireland (Miscellaneous Provisions) Act, which brought more powers to the Northern Ireland Assembly, as well as the Scotland Act, which gave more powers to Scotland—and now they are bringing forward the Wales Bill. Parliament can respond only to the legislation that the Government of the day bring on to the Floor of the House—and it is the Government who are bringing forward these Bills.

[Lord Deben]

The noble Lord is saying what I said—that this is how it is being approached and I think that it should be approached in a different way.

[Lord Empey]

The noble Lord will get no argument from me on that. How we are going about our business is a tragedy in many respects. Obviously, this Government have tried hard on the economic front, and so on, to help us recover, but their Achilles heel has been how they have dealt with constitutional matters. This is only part of it; there are other examples from the earlier days of the coalition Government, when things were brought forward that were not successful. So there is no question that we need to get a grip. There are those with much more parliamentary experience than me—and, whether it is through conventions or royal commissions, we have got to get a grip on this.

I see that the noble Lord, Lord Sewel, the Lord Chairman of Committees, is in his place. The question of how this Parliament relates to the devolved institutions has not been satisfactorily resolved. The Minister will know that on a number of occasions I have raised issues about the fact that the Sewel convention operates in a particular way; it was a product of its time. By removing this House from anything to do with the day-to-day running of the devolved regions is a mistake. It was a historic mistake in my own part of this country because, if Parliament had had some engagement between 1920 and the late 1960s, we might not have ended up in the position we were in. Noble Lords should not believe that it is not possible for something similar to happen in Scotland, Wales or any other form of devolution. This Parliament cannot absent itself, because it is voting on how the resource, in very large measure, will be dispensed by these devolved Administrations.

In our devolution debates, I said that there was a risk that the devolved institutions would become giant ATM machines, and that local people would see all this money flowing out and the local politicians all at it, cutting the tape. I am sure that the Minister has had her day of glory doing that, as did many of the rest of us who were devolved Ministers. The fact is, if we run out of money or do not have enough, as is the position at home, the evil Westminster Parliament is to blame. We cannot have our cake and eat it, so there is an issue to be resolved on how the people of England are dealt with. They are becoming frustrated and angry, which cannot be right. That cannot be good for the United Kingdom.

I also just observe on this amendment that, as the noble Lord, Lord Elystan-Morgan, has already conceded, the six-month deadline is neither practicable nor realistic. I am sure that he will bring forward proposals to amend that in due course.

The Government are continuing to introduce these Bills, and they are being brought forward in a totally independent process from looking at the wider constitutional issues. The more Bills on devolution, the less consistent the United Kingdom becomes. That only exacerbates the position of the people of England, which must be resolved. It is entirely inconsistent that the regions get these powers, if indeed that is what they want; if anybody thinks that the people of Northern Ireland are queuing up for more powers, with the sole exception of corporation tax, I have to say that that is not our position. On the idea that we have income tax powers devolved to Stormont, for instance, I do not particularly look forward to paying 99p in the pound. I think that is where we would end up. At the moment, I believe that the incremental process is the right model to follow. I hope that we get off the blocks, whatever we do in England, but things cannot be left as they are. I think that everybody knows that.

[Lord Hunt of Wirral (Con)]

My Lords, in declaring my interest as recorded in the register, I mention in particular my chairmanship of the Society of Conservative Lawyers. In an attempt to satisfy my noble friend Lord Deben, I refer him to a very detailed report on devolution as a result of a group headed by a senior barrister, Anthony Speaight QC, which concluded that the time has come to move from a conferred powers model to a reserved powers model in Wales. That should be put in the context of other necessary changes.

I greatly welcome the consensus which exists, and which I have heard in this House today for us to move forward on the reserved powers basis in Wales. I, of course, agree with my noble friends Lord Crickhowell and Lord Thomas of Gresford that the timetable set out here is unrealistic. I look forward to hearing from my noble friend how we should proceed. My message is simply that the time has come, and let us now move on.

Northern Ireland: National Crime Agency

Lord Empey Excerpts

Tuesday 4th November 2014 Lords Chamber

Asked by

[Lord Empey]

To ask Her Majesty’s Government when the National Crime Agency will be fully operational in Northern Ireland.

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, we continue to urge all parties in Northern Ireland to make progress on this issue. Justice Minister Ford has submitted a paper to the political parties which sets out enhanced accountability arrangements for the NCA. This paper should allay remaining concerns about the NCA’s role and allow all parties to support the full extension of the NCA to Northern Ireland without further delay.

[Lord Empey (UUP)]

My Lords, does the Minister feel it appropriate for Her Majesty’s Government to allow Sinn Fein to exercise a veto over the operation of the National Crime Agency? Is she aware that when debating Commons Amendments to the Crime and Courts Bill on 25 March 2013 the prospect of a Sinn Fein veto was anticipated? The noble Lord, Lord of Taylor of Holbeach, announced that in such circumstances,

“any Government of the United Kingdom will respond in a responsible manner”.—[Official Report, 25/3/13; col. 832.]

When will the Government override Sinn Fein’s veto, behave responsibly and fully establish the National Crime Agency in Northern Ireland right away?

[Baroness Randerson]

The noble Lord refers to the words of my noble friend Lord Taylor and to the Government responding with responsibility. It is important to remember that this is a devolved issue. In order to retain the confidence of the people of Northern Ireland across the communities every effort should be made to reach the decision within Northern Ireland. The Government believe that the efforts being made by David Ford as Justice Minister in Northern Ireland are working towards that end.

Northern Ireland: Haass Talks

Lord Empey Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Empey (UUP)]

My Lords, as other Members have stated, we are indebted to the noble Lord, Lord Dubs, whom we all regard as a good friend of Northern Ireland, both as a Minister and as a Member of your Lordships’ House.

Mention has been made of the budget. Never before, despite all the difficulties, have the Northern Ireland Executive failed to balance their books. While welfare reform is a significant part of the difficulty, it is much less than half the financial shortfall that the Executive are facing, so even if welfare reform were resolved, that would not be the solution in itself. Let us not get into the mindset that if this welfare reform issue had not arisen, we would be fine—we would not.

This is the first time ever that we have been in a position to have to come running in the way that the Executive did a few weeks ago. Ironically, the Chancellor of the Exchequer and the Treasury are now in the financial driving seat and conditions have been laid down. A budget for next year is to be agreed by the end of this month, and conditions apply. We describe it as a Wonga result for the Executive, so this is a very sad day.

With regard to the Haass talks, the noble Lord, Lord Patten, is not quite correct to say that a lot of these proposals came from Haass. Haass brought a lot of them together but a lot of them were indigenous proposals from different parties at the talks. I can tell him and the House that, had there been an agreement on the past at the Haass talks in January, a few weeks subsequent to that agreement we would have been left in the ludicrous position of learning about the on-the-runs issue and our credibility with the community would have been reduced to zero. So there is an absence of belief in frankness. There is an absence of belief that we know all that has been and is going on, which is a major consideration.

Of course, if we do not solve the financial problems it is rather irrelevant because devolution will not survive the absence of a financial resolve. That is common sense. Haass, however, in the proposals for a historic inquiries unit meant the establishment of a parallel police force outwith the control of the chief constable. This also meant a hugely costly, open-ended process whereby the state would always be at a disadvantage because it has the records and the paramilitary organisations do not. That imbalance is always there and has to be resolved before there will be any agreement. In the expectation that the Secretary of State’s process were to produce a result, or even not, can the Minister tell the House whether the Secretary of State is prepared to put her proposals to a referendum or to recommend another Assembly election to ratify anything that might emerge from the process?

--- Later in debate ---

[Baroness Randerson]

The parties represented at the talks are those represented within the Executive, and it is important to bear in mind that the talks are going ahead with the agreement of the parties concerned.

I must complete my remarks now. The noble Lord, Lord Empey, referred to the need for an election or a referendum on the outcome of the talks. I will ensure that his point is conveyed to the Secretary of State, but I would point out that there is an election coming up in the near future in any event.

[Lord Empey]

I did not ask for those; I just wondered whether the Minister would be prepared to hold them. I am not advocating them.

[Baroness Randerson]

In that case I misunderstood the noble Lord. I apologise for that. I will of course review the record of the debate, and if there are any outstanding questions that I have failed to answer, I shall ensure that I write to noble Lords on those issues. I thank them for raising such important points this evening.

Northern Ireland: National Crime Agency

Lord Empey Excerpts

Wednesday 16th July 2014 Lords Chamber

Asked by

[Lord Empey]

To ask Her Majesty’s Government when they expect the National Crime Agency to be fully operational in Northern Ireland.

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, we fully support the efforts of the Northern Ireland Justice Minister David Ford to secure the support of the parties for the full extension of the NCA’s remit to Northern Ireland. We want to see an early resolution of this issue to avoid serious gaps emerging in law enforcement in Northern Ireland in areas where there is deep public concern, such as drug enforcement, human trafficking and other forms of serious criminality.

[Lord Empey (UUP)]

My Lords, I rather suspected that the Minister would answer in those terms. Is she aware that the Northern Ireland Executive has not discussed the National Crime Agency this year? Is she further aware that the Police Service of Northern Ireland has neither the personnel nor the financial resources to fulfil the functions that should be carried out by the National Crime Agency, which is a matter of grave concern?

[Baroness Randerson]

My Lords, the Government are well aware of the impact on the PSNI and of the need for agreement to be reached as soon as possible. I understand the noble Lord’s concern. It is clear to us that the NCA in Northern Ireland obviously has less capability than elsewhere. However, this is a devolved matter and it is right that discussions are ongoing between the Justice Minister, the NCA and the political parties—but UK Government Ministers and officials remain fully engaged.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Empey Excerpts

Tuesday 4th March 2014 Lords Chamber

[Lord Empey (UUP)]

My Lords, two potential processes can affect the size of the Assembly. The noble Baroness has mentioned one process but, of course, there is a second, over which the Assembly has no control whatever—that is, if a future Parliament decides to reduce the number of seats in the House of Commons, as was the case in this Parliament. The net effect of that would have been to reduce the size of the Assembly by two constituencies, thereby reducing its membership by 12. If the Assembly decided to reduce itself to 90 Members, which would be the proposal if you reduced by one seat per constituency, it would have no control over the fact that it could subsequently be reduced to 80; that would be an entirely separate process over which it has no control. Incidentally, I do not accept that the size of the Assembly is exclusively a matter for the Assembly. The size was determined by agreement, and therefore is at this point in time not a matter exclusively for the Assembly.

I just make the point to the noble Baroness that there are two processes that can affect the Assembly’s size. The Assembly may have control of one, but it most certainly does not have control of the other. That needs to be borne in mind. While the noble Baroness has repeated to us on a number of occasions that there is no consensus on certain things and therefore we cannot proceed with them, I point out to her that there is no consensus on this in Stormont either. It is merely setting out a stall, and I think that she was trying to respond to some of the concerns that a number of us raised. I still think that it is a tricky issue, and I caution the fact that there could be a two-stage rocket here, and that the Assembly has no control over a reduction in the size of the House of Commons, which would have a subsequent effect on the size of the Assembly.

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Moved by

[Lord Empey]

4: After Clause 7, insert the following new Clause—
“Protection of opposition status in the Assembly
After section 41(2) of the Northern Ireland Act 1998 (standing orders) there is inserted—“(3) Following a request to do so arising from a resolution of the Assembly, the Secretary of State may amend this section by order to make provision for the Secretary of State’s consent to be required (in addition to cross-community support) prior to the repeal of any standing orders that provide for official opposition status to be allocated to any party which is not a part of the Executive.””

[Lord Empey]

My Lords, I did not in my remarks on the previous group of amendments make any reference to the issues pertaining to the on-the-runs and the general conduct of government. Given that, perhaps I may be permitted some latitude.

This amendment is an attempt to accept and acknowledge the concerns of the government and opposition Front Bench that earlier amendments on the subject of opposition status would interfere with the internal affairs of the Assembly, which already had powers at its disposal if it wished to have an Opposition. However, it was acknowledged by the Minister that there were anxieties and concerns that should the Assembly provide an Opposition, that Opposition’s powers would of course be open to change and amendment by the Assembly without any guarantees being provided for the people who sought that status. The amendment asks for guarantees to be provided only if the Secretary of State was asked to do so by the Assembly. Therefore no offence is done to Sewel, and no direct interference is done to the Assembly. Indeed, only upon a request being received would this amendment take effect.

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[Lord Morrow (DUP)]

I thank the noble Lord for giving way. He refers to the potential crisis that unfolded last week. I am sure he accepts that the crisis has not gone away; rather, I suspect that it has been suspended as a result of the Prime Minister’s intervention and his announcement of a judge-led inquiry into the matter. Should that not happen, and should the terms of the inquiry not be satisfactory, then we will go straight back to where we were.

[Lord Empey]

I think that there is an element of truth in what the noble Lord says, although huge issues relating to the Human Rights Act and the Data Protection Act surround some of the conditions that were attached by his colleagues to the First Minister’s potential resignation, such as the production of a list of names. Somebody else suggested that the letters be rescinded. They have not been rescinded and I do not believe that they will be. The possession of those letters is the issue. The people who possess them can always go to the court and those Acts will be their defence. I doubt whether a court will overrule that.

In her response to the previous amendment, the noble Baroness talked about people having letters and not being investigated. However, what happens if the evidence that existed when the person received the letter is subsequently capable of further interpretation either by scientific advance or other material? What impact is that going to have on those letters, and will it be a satisfactory defence for the people who hold them?

I return to the amendment. Without doing injury to the devolution settlement, we are trying to signal that, if requested to do so, the Secretary of State would positively respond to the Assembly by providing a guarantee that opposition status could not be arbitrarily changed by the activities of majority parties at some point in the future. The purpose of the amendment is very simple. I would encourage the Assembly to go down the road of creating an Opposition but it still needs that extra guarantee. The purpose of this amendment is to ensure that that guarantee is sought by the Assembly. It is much weaker than I would have liked but, nevertheless, it does what it says on the tin. It is a response to a request from the Assembly to the Secretary of State after a cross-community vote. Therefore, I believe that it is perfectly capable and compatible with the settlement that we have before us. I beg to move.

[Lord Lexden]

My Lords, I have supported my noble friend on previous occasions on which he has brought forward amendments designed to strengthen the constitutional basis on which an Opposition would be established in the Northern Ireland Assembly. As he has explained, this is a more modest, scaled-down version of the amendments that have gone before. It still seeks to give effect to the fundamental principle, which is extremely important, on constitutional grounds, as I have said previously. My noble friend and I have listened to the Government’s view. We have held discussions with the Secretary of State. We have sought to meet the points that have been raised to render this amendment as compatible as possible with the Government’s view of the position. I hope very much at this late stage that my noble friend will be able to indicate the Government’s support for it.

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[Lord McAvoy]

I take a slightly more optimistic view. Whether I have that view or not, the fact of life is that this is for the Assembly. As I mention that, I notice the noble Lord, Lord Lexden, has a smile of experience on his face. I hesitate to say this but it is not yet in the tradition of this Parliament, although I hope that we are on the road to it. Surely the latest stramash—the incident of last week—shows that we are not there yet. But we are on the road and we should be going there.

[Lord Empey]

I thank the noble Lord. I just get the impression that he is looking at a different amendment. The first line states:

“Following a request to do so arising from a resolution of the Assembly”.

Whether there is a consensus currently or not is irrelevant. Such a request could come only when there is consensus. The amendment refers to “following a request” from the Assembly. Therefore, it can come only when such a consensus is reached.

[Lord McAvoy]

The noble Lord is taking great care to quote me but I must remind him of the sentence that I used; namely, that consensus cannot be treated retrospectively, as this amendment would seek to do. It deals with a situation that has not yet been created. I hope that we are still on the road to a continued normalisation of politics.

[Lord Empey]

The noble Lord has just said that we do not want retrospectively to accept something. We have just passed an amendment anticipating something that the Assembly might do in the future; that is, decide to reduce its size. It is the same thing.

[Lord McAvoy]

It is a matter of judgment as to whether one takes that point of view or not. I do not share the noble Lord’s point of view. I still insist that the United Kingdom and Northern Ireland are not ready yet. I am repeating myself, although I was trying not to. Last week, I referred to the fact that we are still on that rocky road. This amendment does not have the support of the Opposition.

[Baroness Randerson]

I thank the noble Lord, Lord Empey, for his introductory speech. I want to deal briefly with the points he made about the letters that were sent. Perhaps I may say yet again that because these were purely factual letters, they were of course non-statutory. Therefore, they were not the subject of any formal transfer provisions in the legislation that accompanied devolution in 2010. The noble Lord asked questions about further evidence and how it would be treated. I refer him to my earlier answer to the noble Baroness, Lady O’Loan, because it is important we remember that this is the subject of part of the inquiry.

As I have said previously, the noble Lord, Lord Empey, and my noble friend Lord Lexden, have done us a great service in raising the profile of this issue through the various amendments that have been tabled. At Report, I indicated that the Government would consider the matter further and set out their position at Third Reading. I am sorry to disappoint the noble Lords but we will not be supporting this amendment. As I have said previously, the creation of opportunities for responsible opposition in the Assembly would be a progressive step. As a Member of the Government here in Westminster I know only too well how much an Opposition can keep us on our toes. I think that noble Lords have illustrated that point very effectively during the passage of this Bill. It would be a welcome development if similar arrangements were put in place in Northern Ireland. I believe that the Assembly’s reputation would be enhanced if that were to happen.

We are, however, talking about the Assembly’s internal procedures and it is important that we do not make changes to those without, at the least, having consulted the Assembly. I know that I have mentioned this previously but the Government consider that it is important that the Assembly should be consulted. “Consulted” implies that one would take account of their expressed view.

In previous debates, it was noted that the Assembly could provide for an Opposition through its existing standing orders. It was also noted that the rights accorded to an Opposition created in this way could be revoked at the behest of the largest parties in the Assembly. It is right and proper that any Opposition in the Assembly should have the ability to carry out their functions without fear of losing their status by virtue of having challenged the Executive. It is also right that opposition parties should have sufficient status if they are to be truly effective in holding the Executive to account. To the noble Lord, Lord Kilclooney, who asked what incentive there was to become a member of the Opposition, I say that the original amendment of the noble Lord, Lord Empey, envisaged the potential status that would come to opposition parties: that would be part of the incentive.

The noble Lord’s amendment attempts to offer a safeguard in the shape of the Secretary of State’s involvement. I pay tribute to the effort that the noble Lord has expended in refining his successive amendments to the Bill. However, we still do not believe that this amendment is the appropriate means of ensuring more effective opposition. We believe that it would be inappropriate in any circumstances for the Secretary of State to have such a direct role in the internal procedures of the Assembly, as envisaged in the amendment—the more so when the Assembly, as I said, has not been consulted.

The noble Lord will point out that his amendment would allow no role to the Secretary of State unless the Assembly took the first step. Even so, given that the Assembly has not been consulted, our taking this step now could be misunderstood by at least some in Belfast as hostile interference in the Assembly’s procedures. The consequences of that would be negative for the long-term prospects of facilitating opposition. As the noble Lord, Lord McAvoy, said, there has been discussion of this in recent years in the Assembly, and there was no consensus. I will add that we also see technical difficulties with this amendment. I would not normally draw attention to them, but we are now at the stage where such difficulties cannot be remedied.

I welcome the comment in Committee of the noble Lord, Lord Browne, that his party was willing to support additional resources and speaking time for genuine opposition. I hope that his party will deliver on this commitment and that other parties in the Assembly will share that view. I am also encouraged by the Private Member’s Bill brought forward by Mr John McCallister in the Assembly, and I hope that it will spur more debate. I hope that the Assembly, when it debates the Bill, will take cognisance of the various points that have been raised here.

In the mean time, the Government will impress on the parties in Northern Ireland their desire to see an effective Opposition in the Assembly and will consider ways in which we might do so. I hope that noble Lords will feel reassured that this is an issue that the Government take seriously and on which we hope to see real and meaningful progress in future. I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Empey]

My Lords, it is almost as if one is answering a debate on an amendment that one has not actually tabled. The amendment is based on the assumption that the Assembly is the initiator. That was to ensure that no harm would be done to the convention. The Minister also said that of course the Assembly has not been consulted. That is a fair point. However, neither has it been consulted—to my knowledge —about reducing in size to 90. It has not been consulted —nor did it seek to be—on the content of the next two amendments. It appears that we have a law for one process and a totally different law for another.

That is hardly surprising, and dare I say to the Minister—although it is not her responsibility—that the one big thing that the Assembly was not consulted about was what was going on behind its back. That is the elephant in the room, and has been since last week. One can be very picky about what one decides to use as a mechanism for saying that one does not want to do something, but I have to say that the Minister’s arguments were not convincing.

On the technical aspects of the amendment, I accept that there is an issue. One understands that those of us in your Lordships’ House have only limited resources to table amendments; we do not have the power of the Government. The Minister made it very clear in her closing remarks in Committee that she and the Government acknowledged that there was a genuine concern that an Opposition born exclusively out of the Assembly changing its standing orders would be vulnerable. I feel that that point at least has come across. On whether this is the right mechanism to deal with the issue, we have an open mind.

The Minister also indicated that the Government were going to set out ideas on how the matter could be addressed. So far, those have not been set out. I hope that the Minister will shortly be in a position, through the Secretary of State, to set out the Government’s proposals. Like so many other things regarding change, they are all stalled and going nowhere.

If we have done nothing else, we have raised the profile of the issue. It will not go away. I think that the necessity to have a guarantee that an Opposition cannot be abused by a majority in the Assembly has been accepted by the Minister. Of course, I acknowledge that there are technical issues, to which she correctly drew attention. On that basis, and not on the basis that the amendment does any harm or ill to the Assembly, I beg leave to withdraw it.

Amendment 4 withdrawn.

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[Lord Alderdice]

My Lords, I, too, thank my noble friend. In Committee and on Report I put my name to an amendment which was originally piloted by the noble Lord, Lord Empey, because of our concern about the impact at home in Northern Ireland. A number of things that my noble friend has said, and which are in the amendment, are extremely helpful. First, there is the fact that the Secretary of State would be required to produce a report. The contents required to be in the report are also spelt out, as is the fact that it would have to be done three months beforehand. Furthermore, my noble friend has given undertakings that if we find ourselves in that situation, the Government will facilitate the opportunity for debates on the report in this House and in another place, and will take account of the content of those debates. That is a very helpful undertaking.

I think that my noble friend has also indicated something which goes a little further and which I really welcome—that any expectation that the Northern Ireland Executive might have that such legislation will be passed here will to some extent depend on whether there has been demonstrable progress on the Northern Ireland Civil Service rules and bringing them up to date with the arrangements on this side of the water. I am rather encouraged by that because one of the concerns that I expressed at a previous stage was that the Civil Service in Northern Ireland—for which I have enormous respect—has not necessarily kept up with some of the progress on this side of the water as quickly as it might have done. My noble friend has indicated—not just in the amendment but in her undertakings and her description of the amendment—that this could be a very helpful lever if we come to a time when the Northern Ireland Executive were eager to make progress in the direction of the amendment and this clause in the Bill.

Not only have the Minister and her officials listened, taken account of what was said and obviously consulted the Secretary of State but there has been a very positive response. I welcome that and I certainly support her amendment.

[Lord Empey]

My Lords, I am glad that we brought this matter forward for discussion. There is no doubt that the proposals in front of us are infinitely better than the ones that were in the Bill as originally drafted. However, I am still not clear what the driving force behind this is. It was left as an excepted matter quite deliberately and for very good reasons, and in my opinion those reasons are as valid today as they were then. It would be impossible for me to avoid pointing out to the noble Baroness that there has been no consultation with the Assembly on this, and it is not an issue that has any traction except within the small group of people who are directly affected. But the proposals in front of us today are a lot better than what was there before. Some protections have been put in. I am quite sure that reference to the 2010 Act could very well have been the mechanism to sort the whole thing out at the end of the day. Nevertheless, I thank the noble Baroness for listening to us and for acting on what has been said. At least we have put in some protections that were not there before and, I hope, will be of benefit in the long term. On that basis, I support the amendment.

[Lord Brooke of Sutton Mandeville (Con)]

My Lords, I was greatly encouraged by the Minister’s offer when we previously debated this matter to have conversations with those of your Lordships who had taken part in the earlier debate on this subject. It is perfectly clear that, unlike with Amendment 1, we are not talking about a secret deal. There has clearly been openness in discussing this. It has obviously been extremely constructive. I infer that there is approval of where we now are.

I have only one tiny niggle. I hold no proxy whatever for the noble Lord, Lord Butler, but those who have been taking part in these debates will recall that, in our most recent discussion of this subject, he raised the question of why the Government appear to have resiled from the position that the Minister had expressed in Committee. Is the Minister confident that the noble Lord, Lord Butler, is now satisfied—or would have been satisfied, had he been here—by what she said in moving the amendment?

Northern Ireland (Miscellaneous Provisions) Bill

Lord Empey Excerpts

Tuesday 25th February 2014 Lords Chamber

Moved by

[Lord Empey]

1: After Clause 7, insert the following new Clause—
“Opposition status in the Assembly
(1) Schedule 6 to the Northern Ireland Act 1998 (standing orders: further provision) is amended as follows.
(2) After paragraph 4(2) insert—
“(3) The standing orders shall include provision in relation to the allocation of the Chairmanship and Deputy Chairmanship of the Public Accounts Committee.”
(3) After paragraph 5 insert—
“Opposition status6 (1) The standing orders shall provide for official opposition status to be allocated to any party with at least one seat in the Assembly which is not a part of the Executive.
(2) Official opposition status shall only be introduced under sub-paragraph (1) if approved by a cross community vote in the Assembly.
(3) For the avoidance of doubt, it shall not be possible for the Assembly to revoke the official opposition status accorded to members under the provisions of this paragraph without the consent of the Secretary of State.””

[Lord Empey (UUP)]

My Lords, perhaps I will be permitted a brief pause while your Lordships’ huddled masses leave.

As we discussed this topic in Committee and also had a significant debate on it at Second Reading, there will be no need to repeat many of the concerns that were expressed at that stage. However, the amendment approaches the matter from a different point of view. It was made clear that there was an anxiety that changing the effect of the 1998 Act through the miscellaneous provisions Bill could be seen as imposition of the idea of official opposition status over the head of the Northern Ireland Assembly. Under the amendment, the trigger for any action would be a request from the Assembly itself.

The noble Baroness will be well aware of my anxiety and that of a number of others that although of course the Assembly has powers to change its Standing Orders which could give effect to opposition status, the weakness in that argument is that what is given by the Assembly can be taken away by the Assembly. The danger is that, if an Opposition are established, it is on a grace and favour basis and will only have sufficient independence as long as that is the will of the other parties in the Assembly.

My purpose in moving the amendment, and that of my noble friend Lord Lexden, is to ensure that we move one step closer to providing additional accountability, so that the Executive can be held to account. Parties would have the option of achieving a status that will give them some additional speaking rights and supply day debates and provide for the very significant issue of the future chairmanship and deputy chairmanship of the Public Accounts Committee. In other jurisdictions within the United Kingdom, those offices are held by parties that are not in the Government, whereas under the current arrangements in Belfast, they are occupied by parties that are in the Government. So that issue is fairly self-explanatory.

One issue that has come to my attention is that some elements within Sinn Fein feel that if opposition status is granted to parties in the Northern Ireland Assembly, that might in some way encourage parties not to share power with them. Parties are not going to decide not to share power with Sinn Fein on the basis of whether or not they could have opposition status, they are going to make that decision on a bigger political picture, so that is an Aunt Sally of an argument. Nobody is going to refuse to share power with Sinn Fein simply on the basis that they could get opposition status, a couple of supply day debates and so on. That argument is not credible.

If your Lordships think that there is no need for looking at opposition status in the Bill, I draw your attention to the fact that last year, an attempt was made to take away powers of one of the Northern Ireland departments, the Department of the Environment. An eight-page amendment was introduced at the very last minute which had the effect of removing some powers from that department and moving it to another one. That was done without any consultation through the committee and at the very last minute, so therefore there was no opportunity to have proper scrutiny of that proposal.

In essence, that makes my case for me, because it is precisely to counteract that risk that I believe that we require to provide certainty and a guarantee that if the Assembly chooses to go down the route of providing for an Official Opposition, which I hope it does, that Opposition will be a proper, free-standing Opposition who will have certainty that they cannot find themselves hobbled later should they fall out of favour with the executive parties of the day. We must remember that we cannot look at this simply in the context of the current make-up of the Assembly. We are looking years ahead—that make-up may change over time. It is for those reasons that I believe we need to go a bit further than the Minister has indicated in the past. Will the Minister tell us if she agrees with the proposition? I believe, reading her response at the previous stage—in Committee—that she does, and that she believes that there is this issue, raised by some people, that, in the absence of a guarantee which is not confined to the Assembly, the opposition status would be left in a fairly weak position.

I have an open mind on the methods we might choose to deal with this. This is one proposal. If we look at the Northern Ireland Act, and Schedule 6 to that Act—which deals with the question of Standing Orders—there are indicative Standing Orders set out in relation to committees and other matters, so we are not proposing anything wildly different. I also re-emphasise that the trigger for this has to be the Assembly itself, so that we are not forcing something on the Assembly that it does not want. At the end of the day, we need to put in place a mechanism that ensures that, if an Opposition are formed, they are free, independent and not subject to pressure. I believe that that would be an extremely valuable element in improving accountability. I support the mandatory coalition arrangements—although one would like to see a day when that is not necessary, it is necessary and will be for the foreseeable future; I doubt very much that anyone in this House today will see the day when it is not necessary. We are not getting into the argument about whether we are trying to replicate the Westminster system—we are not. That argument should be set to one side. However, that does not mean that the system is not capable of being improved or evolving. I draw the attention of the House to some speakers at the previous stage who said, “Oh well, we cannot impose things and we cannot interfere”. Parliament has imposed and interfered, and in fact a later amendment in the name of the noble Lord, Lord Trimble, is a classic example of both interference and imposition. This Parliament has already interfered and imposed and it has done so with its eyes wide open. Indeed, in a debate in this House in 2006, the implications of pursuing the imposition were made clear—and that has proved to be correct.

Let us not hide behind the argument that you cannot look at an issue simply because it is not necessarily provided for in the current arrangements. Political deals have been done, and political deals have been imposed, and that is how the system works. We are not proposing that sort of methodology. As can be seen from this amendment, the trigger is the Assembly itself. It has to make the move, it has to ask, and it has to decide that it wants to go down this road. This amendment seeks to ensure that there is a guarantee and certainty that that Opposition, once established, will be free and able to pursue their objectives without let or hindrance from whichever happen to be the governing parties of the day.

Will the Minister comment in her response on how we can achieve these objectives, if she is not content with this proposal? I hope the Government understand that we are not here to impose; we are here to improve and to see the institutions evolve. I know that we are aware of the sensitive situation with regard to devolution throughout the United Kingdom. We know that eyes will be looking from Scotland at what we do here on this issue, and I understand fully that most of your Lordships do not want to give any hostages to fortune or provide any ammunition so that people in Scotland could say, “There you go. They are trying to impose something and if they’ll do it on Northern Ireland, they’ll do it on Scotland or on Wales”. I fully understand that argument, and the anxieties which those who hold those views feel over Scottish independence.

I do not want to provide ammunition to anybody in Scotland who seeks to break the union, but I repeat: the trigger for this has to be the Assembly itself, which takes it out of the realms of imposition. Between now and the next stage of the Bill, it ought to be possible to find a means of achieving these objectives without doing damage to the principle of non-interference. In that spirit, I beg to move.

--- Later in debate ---

[Lord Empey]

My Lords, I welcome the debate that we have had. As Members of this House will be well aware, when a miscellaneous provisions Bill passes your front door, a variety of things inevitably appear in it. Of course, at the end of the day the Government brought the Bill here, so it is their fault that all these issues are being raised.

Throughout this process we have been trying to raise the profile of this issue. Earlier, I made the point that changes have been made to the architecture of the Assembly without the consent of the Assembly, without the consent of all the parties and, indeed, without any consultation with all the parties. It is against that backdrop and in that context that these amendments are being brought forward.

I am sure that I speak for my noble friend Lord Lexden when I say that we have no particular allegiance to this amendment vis-à-vis another. We are trying to achieve an objective, which is to allow the Assembly to evolve. I take the point made by the noble Lord, Lord Alderdice, that there is a Catch-22 situation. If you want the Assembly to have the trigger mechanism to seek an opposition status, to some extent you are giving it a veto. Equally, the only alternative to a veto is an imposition, but it has already been said around the House that that is not where we would seek to go.

I thank the noble Baroness for saying that she wishes to reflect further on the issue without commitment. We are open to finding a way to evolve the situation, whether that is through consultation with the parties, led by the Secretary of State, or by another mechanism or other means. All we want is to see progress.

The noble Lord, Lord Kilclooney, raises a very important point. I have been a lifelong supporter of devolution, as have many noble Lords here, but credibility is being lost. Sometimes things need to be refreshed and people need to see change and delivery. It is important that we do not confuse the facts. For instance, my noble friend Lord Lexden and I have brought forward this proposal but that does not mean that the party that I represent necessarily wishes to seek a status for itself now. It may very well be that other considerations, such as the stability of the institution, have to be taken into account. However, we have to look to the future and, as the noble Baroness said, the future generations of politicians need the best structure that we can give them.

With regard to the Minister’s point about the size of the Assembly and her intention to bring forward an amendment on that, I would just suggest that in the mean time she does an exercise on the impact that it would have had on the Assemblies that have been elected so far to see what it would have produced. The noble Baroness is a great advocate of proportional representation; her party sought to introduce it for this House and the other place. However, whenever people talk about it, I get the impression that they do not fully understand its implications. I suggest that people have a look at the figures to see what PR would have produced in the context of the Assembly elections in 1998, 2003, 2007 and 2011—what those elections would have looked like and what impact it might have had.

We had a proposal to reduce the number of constituencies in the United Kingdom Parliament. That would have been a perfect solution to the situation in Belfast because a reduction in the size of the Assembly would have been taken care of without the Assembly having to get involved; 12 seats would have disappeared and the Assembly would have gone down to a more reasonable size.

However, we are where we are and, on the basis of the noble Baroness’s assurances that she wishes to reflect without commitment, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Empey]

2: Clause 10, page 9, line 7, at end insert—
“(3) Subsections (1) and (2) shall only enter into force after the remaining provisions of this section have been complied with.
(4) The Secretary of State shall establish a body corporate called the Northern Ireland Civil Service Commission (“the Commission”).
(5) The Commission must publish a set of principles to be applied for the purposes of recruiting persons on merit on the basis of fair and open competition.
(6) Before publishing the set of principles (or any revision of it), the Commission must consult the Secretary of State.
(7) Northern Ireland Civil Service management authorities must comply with the recruitment principles.”

[Lord Empey]

My Lords, this is a very simple amendment. In Committee we discussed at considerable length the fact that we were seeking to ensure that the principles of merit and of equality of opportunity were always at the forefront of Civil Service recruitment. I take the point that in this case we have the anomaly that civil servants effectively are answerable to the devolved Parliament, whereas the Civil Service Commission is not. I believe, too, that if we cannot agree on the principles of merit and equality in terms of the Civil Service Commission, we are in severe difficulties.

I refer to the letter that the noble Baroness sent to us and to the fact that in Committee many people praised the Civil Service for its work in very difficult times over a prolonged period. Many civil servants conducted almost political negotiations on behalf of Ministers, in some cases at great risk to their personal safety. We owe them a debt of gratitude in that regard. The point was made that the situation in the 2010 Act gave the Whitehall Civil Service Commission one status, whereas the Civil Service Commission in Northern Ireland has a different one. The amendment was drafted to deal with that anomaly. I am interested to know how the Minister has reflected on these matters since Committee and whether she feels able either to support the amendment or to bring forward her own. I beg to move.

[Lord Bew (CB)]

My Lords, I support the amendment. The shadow of history lies over it. When the Northern Ireland Civil Service was established in 1921-22, something like 60 appointments were made without any normal procedures of recruitment being applied. Over a period of time a struggle to achieve a professional Civil Service began. The time between 1925 and 1944 when Sir Wilfrid Spender was head of the Civil Service was key. In the memoirs of a Catholic civil servant, Patrick Shea, who reached the top of the Northern Ireland Civil Service, one can see the degree to which great efforts were made to institutionalise procedures that reflected what Sir Wilfrid thought were the best procedures in Whitehall.

That backdrop explains why, when direct rule came, Ministers of all parties—I do not just mean Conservative, Labour or Liberal Democrat Ministers who had dealings with the Northern Ireland Civil Service, but Ministers who leant to one particular side or the other in Northern Ireland—always found that the Northern Ireland Civil Service delivered excellent and objective advice. If one looks at the non-controversial nature of north-south relations, which is of particular importance at the moment, it is clear that the big political decisions in such a context were made by the noble Lord, Lord Trimble, who is in his place today.

It is also the case that the work done by the Northern Ireland Civil Service in looking at areas of viable co-operation between north and south is a very important reason why the settlement is so stable. As the noble Lord, Lord Empey, has said, we owe a debt of gratitude to the Northern Ireland Civil Service. As I have argued, that integrity and professionalism has been hard won. The pressures of localism do not go away: it is not 1921 anymore. At this symbolic moment, it seems to me that noble Lords who supported this amendment want to say that a stronger message is desirable in terms of defining the principle of merit and of fair and open competition. That essentially is the idea behind this amendment: that that signal should be sent in a firm way.

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[Lord Empey]

My Lords, when this amendment was tabled, I thought it was going to be a fairly simple, straightforward matter—but as very often happens, that has not proved to be the case at all.

The Northern Ireland Assembly has not asked for any powers to be devolved with regard to the Civil Service Commissioners. Indeed, as we look at the next amendment, it has not asked for any of those powers to be devolved either. Contrary to the rumours, the people on the Newtownards Road do not speak of little else. My point is that this proposal has come from the Government of their own volition. It has not been sought. I have never heard anybody raise the issue at all.

The noble Lord, Lord Brooke, referred to the letter that some of us received in January from the chief commissioner. If I may be permitted to quote a little from it, it says:

“We have a similar role to that of the UK Civil Service Commission chaired by Sir David Normington, which regulates appointments to the Home and Diplomatic Civil Service. However, unlike Sir David’s Commission, the Northern Ireland Commissioners do not have the benefit of formal legislative provisions”.

It goes on further:

“Rather, our role continues to be governed by a Prerogative Order in Council”.

The noble Baroness is suggesting new proposals. We know that there is a clash between what is devolved and what is not devolved, but what is not devolved is currently excepted. As the noble Lord, Lord Alderdice, said, a number of issues were deliberately left as excepted issues because they were potentially so sensitive. They went to the core of areas where people felt that things had not been well handled in the past, and it would be better for the long term to leave them to the one side.

The other point to bear in mind about the Civil Service in Northern Ireland is that the statutory role, function and power lies with the department, not the Minister. There is a complete difference. If the Minister is not there for whatever reason, the department can continue to apply policy that has already been decided. The law states that the Minister directs and controls the department, but in the absence of the Minister, the department itself has the power to continue implementing policy. That is a very distinct difference.

[Lord Trimble]

I must apologise as my memory is not clear enough on whether the noble Lord was present at a discussion I am going to mention. However, he will recall the time when, for political reasons which are not relevant to this point, I had resigned and I was proposing that my other Ministers would also resign. There was a discussion of senior officials about what we do in this situation. I cherish the comment made by someone who I will not identify, who said, “We must be very careful because we don’t want people to find out that we can take decisions without Ministers”.

[Lord Empey]

The noble Lord is perfectly correct. I recall being at a number of meetings where that issue was discussed. The law states that the Minister directs and controls the department when the Minister is there, but the power is vested in the department. That is why this is such a sensitive issue. We are in the House of Lords but the department Permanent Secretaries were known as the six barons in the direct rule years, because it was to them that people turned for resources and other things. There is a very distinct difference, and that is why this is such a sensitive issue. As I have said, the Civil Service Commissioners themselves clearly have anxieties. The Assembly has not asked for this but the Government, for their own reasons, have decided to bring it forward. If they were prepared to drop it, I am quite sure that Members here would be more than content. However, in view of what the Minister has said and in view of her letter, and the fact that she intends to hold further consultations, I believe it appropriate that I now beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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[Lord Empey]

My Lords, I have great sympathy with the point that the noble Lord, Lord Alderdice, has made. It is another of these proposals that have not been asked for but have been arbitrarily put forward. One could almost have the sense in the back of one’s mind that the department was pushing these things out just to get them off its desk and out of its file and pass them on, and that would be a mistake. As the noble Lord said at the outset of his remarks today, certain issues were deliberately not included, and this is one of them.

We know that the Executive and the Office of the First Minister and Deputy First Minister have had difficulties with the appointment of other commissioners. It set out to appoint one victims’ commissioner, I think it was, but after a prolonged period of time we ended up with four. At this stage, there is not a good track record.

My own personal view is that matters should be left alone. I do not know where the demand is for this; it is not there. To pile more pressure on the Office of the First Minister and Deputy First Minister over other sensitive issues at this time is not particularly helpful, to be honest. As it is, that office is struggling to get decisions out on a whole range of issues, and I cannot see any rational reason why we would deliberately add to that, particularly when no one has sought this power. It is almost the inverse of the argument that was being made in respect of opposition: we do not want to impose something, but here we are shovelling things out that have not even been asked for. The best solution to this would be to leave well alone.

I had the privilege of serving on SACHR for a couple of years. It was a wonderful forum at times when things were really difficult. Let’s face it, it is very difficult to separate the politics from the appointments, and especially to separate the two from the budget. These are all things that come together. You know what people say: you get someone in the long grass. It might not be straight through the front door but there are other ways of doing it. I support the amendment and my personal opinion is that the Government should leave this alone; it is not worth the risk.

[Lord McAvoy]

My Lords, I understand the concerns that have led the noble Lord, Lord Alderdice, to table this amendment. The discussion of human rights has played an important part in the establishment of devolved structures within Northern Ireland. Today the Northern Ireland Human Rights Commission continues to play a key role in maintaining these institutions. Throughout the Assembly’s legislative process, the Human Rights Commission can intervene at any point to prevent the governing parties from creating legislation that does not conform to proper international standards of human rights. Given the importance of the commission to the legislative process, there is an understandable need to preserve its independence and impartiality.

The noble Lord, Lord Kilclooney, echoed by the noble Lord, Lord Empey, mentioned that there seems to be an air of lack of faith in the Assembly in Northern Ireland. There is certainly anecdotal evidence in conversations to justify that complaint, or at least to make a valid one. I urge all representatives from Northern Ireland and noble Lords and noble Baronesses here to use what influence they can to try to move things along. If the public start to lose faith in the Assembly, we are all in trouble, so we should all be trying to inspire faith in it. The noble Lord, Lord Kilclooney, was absolutely right to refer to that.

In Northern Ireland, the devolution of the relevant power to the Assembly would appear to offer a firm guarantee of the commission’s continued independence. While recognising the valid intent of the amendment, I think it would be a mistake to accept it at this time. As acknowledged by the noble Lord, Lord Alderdice, a very valuable service is being performed by having this discussion.

The actual powers concerning the Human Rights Commission have not yet been devolved. Prior to the actual devolution, the Government have committed to carrying out extensive consultation and encouraging debate within Northern Ireland. It will not be until after this that the actual form that the devolution of these powers will take will be decided. Only then will it potentially be necessary to consider an amendment such as this.

Everyone agrees about the fundamental importance of human rights to the exercise of devolved government in Northern Ireland. It is also agreed that this is ensured through the independence of the Human Rights Commission and the impartial nature of its work. The preservation of this impartiality will be foremost in discussion when we come to actually devolve these powers. However, since the precise model for the devolution of these powers has not yet been agreed—and it will only be agreed after consultation within Northern Ireland, which will hopefully include a large say for the public—I feel that at this time the amendment has been quite rightly described as a probing amendment and the Official Opposition cannot support it.

The noble Lord, Lord Alderdice, made a strong case that the devolution of these responsibilities should be to the Assembly, as is the case in Scotland. The point was made in Committee that the impartiality and independence of the commission is crucial and must be both retained and maintained. Therefore, we welcome the Government’s commitment to ensure that proper consultation and debate on this takes place in Northern Ireland before a vote is taken to devolve these responsibilities. I conclude by thanking once again the noble Lord, Lord Alderdice, for the service that he has provided the House.

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I notice particularly the provision that the noble Lord, Lord Lester, referred to under Section 26 whereby the Secretary of State can require things to be done in order to secure adherence to the conventions. I urge the Minister to take back to the Secretary of State for Northern Ireland that there is quite strong feeling on this matter in this House and that she should seriously contemplate that power and how it might be used, even if only as leverage.

[Lord Empey]

My Lords, nobody could doubt that this debate has been very wide-ranging. The contributions from our noble and learned colleagues and others have made us realise that the matters we are discussing are of very great significance.

There are a number of easy solutions. Obviously, the Executive can act at a far greater pace than they are at the moment. However, there has been a change in the past few months with the change in Finance Ministers at Stormont. Mr Hamilton’s predecessor was very dismissive of any actions being taken in this matter; Mr Hamilton has asked the Law Commission to intervene. The Private Member’s Bill that Mr Nesbitt has before him has had his consultation and he has undertaken to share that consultation with the Law Commission. I believe he met it last week and reassured it that that would still be the case.

However, there has been a change in the pace at which this consultation is going. Originally we thought it would be brief and to the point because this issue has been consulted on time after time. However, I am now hearing stories that there is going to be a scoping study and then there will be a consultation by the Law Commission on top of the consultation that has already taken place in the Private Member’s Bill, on top of the consultation on the 2013 Bill. By my very rudimentary calculations, that would take the issue outside of the current Assembly’s mandate, which ends in 2016. What could be an easy solution could in fact simply kick the can down the road.

There is no question that those of us who have had the privilege of being in Stormont know that the issues raised by the noble and learned Lords, Lord Carswell and Lord Hope of Craighead, are important. By any stretch of the imagination, the easiest solution is for Stormont to deal with this itself. However, the noble Lord, Lord Lexden, and his colleagues point to the wider obligations of the United Kingdom Government and the issue of free speech and human rights. Of course, human rights have an international obligation, which is excluded from the devolution settlement and reserved to Westminster.

Pressure and sentiments have been expressed on all sides of this House. I hope that in their winding-up statements both the Government and the Opposition will encourage an early resolution to this, rather than simply going on and on with consultations for years. The truth is, and the noble Viscount, Lord Colville, made this point, that there are a few schoolyard bullies back in Belfast who regularly threaten people who speak their minds.

We have not mentioned today the other issue of academic publication, which is vital. Having had some responsibility for that, I know that there are many good researchers. We encourage research; indeed, we want to find even more money to put into research, only to find that the researchers could be prevented from actually publishing their findings. No one wants us to be in that place.

There is a simple solution to this, and I hope that the pressure from all sides in this House will direct us towards the solution, which is for the Northern Island Executive to encourage the Assembly to pass a legislative consent Motion. Alternatively, if that opportunity has now passed, the Assembly has the Private Member’s Bill in front of it; it could take over that Bill and introduce it very quickly. That is the course of action that I hope it will follow.

[Lord Alderdice]

My Lords, I had not intended to speak in this debate, but when I heard the speech of the noble Lord, Lord Browne, and the reservations of the noble and learned Lords, Lord Carswell and Lord Hope of Craighead, I felt that it was important to address the question of devolution and what the devolution doctrine means. It does not seem to be admissible of an entirely legal constitutional interpretation. It does not seem to be a matter of saying, “We’re devolved; we don’t have to give any kind of explanation to anyone for what we do. We can simply make arbitrary decisions”. It was not ever intended for that purpose. It was intended in general terms, and in particular in Northern Ireland, to ensure that decisions were made on a cross-community basis that ensured that the governance of Northern Ireland took into account the particular circumstances of Northern Ireland and its particular needs—domestically, within the United Kingdom, in relation to the Republic of Ireland and in relation to its relatively remote status. There are many areas where devolved government appropriately makes different decisions because, in terms of education, healthcare, transport or agriculture, the situation is different economically, practically, culturally, socially or whatever.

In certain circumstances, the notions adumbrated by the noble and learned Lords, Lord Carswell and Lord Hope, are completely correct, and their cautions in those circumstances would be well taken. The purpose of devolution is to enable that kind of differentiation. However, no reason has been given by the Northern Ireland Executive for this delay and for holding back. The noble Lord, Lord Browne, very appropriately supported his party in its decision on this matter, but even he did not give any good reasons why he should not fall in with the operation of the new Defamation Act in the rest of the United Kingdom. Nor, as far as I am aware, has there been any public debate at home in Northern Ireland, any indication that an agreement has been reached or any reasons adduced why we should not move forward—on the contrary, there has simply been an arbitrary decision that we are not going to go ahead on this. Then—and the noble Lord, Lord Browne, presented this in a very positive way—we will have this local consultation. That is fine if it is to ensure that there is real local difference, but it is not fine if the consultation kicks the issue into the long grass, and there is a suspicion that that is what it is all about.

On top of this, there are those circumstances where one can appropriately seal off Northern Ireland, as it were, to deal with particular issues. Animal health might be one. However, this issue cannot be dealt with in an isolated fashion. The whole point is that publication, whether digitally or in hard copy, cannot be isolated within Northern Ireland, and it puts everyone at risk if one tries to do that inappropriately.

I therefore want to emphasise that, although I appreciate the reasonable cautions, it does not seem to me that devolution is meant to enable the local devolved Executive to make arbitrary decisions without explanation or clarity, or decisions that are simply inappropriate to the circumstances. Then the question comes of how we deal with this. Do we deal with it by simply slamming something through this evening in your Lordships’ House and leaving somebody else to pick up the pieces—political or legal? I think not, but my noble friend Lord Trimble has pointed in the right direction. That is to say, whatever the limited remaining powers and opportunities of the Secretary of State for Northern Ireland, one of the opportunities she has is to take the messages from this Palace to the Stormont Administration and say to them, “Do you realise how strongly people in the rest of the United Kingdom feel about this? They are not terribly accepting of the notion that you are going to take a whole lot of time to deal with this. If you want to take a little time to tweak it or for your own particular reasons, that may well be acceptable”. However, I would be assured and reassured by the Minister, not if she were to say that she was going to accept this—because I am sure that she is not going to be in a position to do that—but if she were able to say to us that the Secretary of State, her right honourable friend, will take seriously what has been said in your Lordships’ House tonight, convey that to the Northern Ireland Executive at the most senior levels, and ensure that the matter is taken seriously and expeditiously.

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That is the sum of what I wanted to say this evening. I have said it as quickly as I can and I shall listen with interest to whatever the Minister might say.

[Lord Empey]

My Lords, I made the point in Committee that this was an imposed process, without consultation. It offended every point that has been made in this House this afternoon in respect of respecting the settlement and tore up a key part of the settlement that was voted on by a referendum. It was literally a backstairs deal, in the worst tradition of backstairs deals, so let us not give it any credibility that it is some kind of dramatic move forward. It has created a sectarian headcount format for elections even though there is no difference in the powers that can be exercised by the First and Deputy First Minister. They both have the same powers and there is no hierarchy in that regard.

I would say to the Minister that, when she stands up to defend the devolution settlement, she will understand that it rings a bit hollow to some of us when it was the Government who broke that settlement and did so without consulting those who made the settlement—and, it must be said, the noble Lords, Lord Trimble and Lord Alderdice, and others who were there at the time to make the deal. There is a Scottish saying—the noble Lord, Lord McAvoy, will know this—“Eaten bread is soon forgotten”. Had it not been for people like the noble Lords, Lord Trimble and Lord Alderdice, and others, there would be no Assembly for these people to sit in. A lot of people take it very badly that a deal that was done—a referendum that was passed—was swept aside in some kind of backstairs deal without even the courtesy of a phone call to say, “This is the line we are proposing to take”. Some of us learnt about it when we saw the draft of the 2006 St Andrews agreement Act. That is why, when I hear people defending the principle of devolution, it rings a bit hollow for some of us who have been around these things for some time.

I have, however, made my point. I support the noble Lord, Lord Trimble, in his amendment. It is that sort of thing that has been undermining. The potential for a six-week negotiation was the reason that Sinn Fein went to Tony Blair to get the thing changed; it was afraid that, if it put forward a particular candidate, that person would be negotiated out. It wanted certainty that whoever it was would go in. That coincided with the political changes that meant that, on the unionist side at that stage, it was much more convenient not to have to put your name on a ticket with a Member of Sinn Fein to get elected as First and Deputy First Minister respectively. It just happened to suit people at that time.

There is no noble principle involved in the 2006 amendment. It was, by any stretch of the imagination, a dirty deal.

[Lord Kilclooney]

My Lords, I do not want to be preaching more caution or to be more alarmist, but I find myself in total agreement with the analysis by the noble Lords, Lord Trimble and Lord Empey, of the situation within the Northern Ireland Assembly and the appointment of the First Minister and Deputy First Minister, and the way in which this could be received by the community at large in Northern Ireland.

With the possible decline of unionist—I use the word with a small “u”—interest in the future of the Northern Ireland Assembly and with the possible lower turnout by unionist voters, under the new system that was introduced in St Andrews we could have a Sinn Fein First Minister in Northern Ireland for the first time. Can your Lordships imagine the reaction of what has been termed earlier in this debate the loyalist working class who had not bothered to vote and then find a former battalion commander of the IRA as their First Minister? I fear it would bring about the total collapse of the Northern Ireland Assembly.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Empey Excerpts

Monday 3rd February 2014 Lords Chamber

Moved by

[Lord Empey]

1: After Clause 5, insert the following new Clause—
“Opposition status in the Northern Ireland Assembly
(1) The Northern Ireland Assembly may, at any time after the passage of this Act, request that the Secretary of State introduce opposition status and rights for members of the Assembly, subject to the provisions of this section.
(2) Within six months of receiving a request from the Northern Ireland Assembly, the Secretary of State shall, by regulation, introduce the following rights for Assembly members with opposition status—
(a) speaking rights;(b) supply days; and(c) chairmanship and deputy chairmanship of the Public Accounts Committee, and shall make clear that these rights are to be allocated to members with opposition status in a manner that is proportionate to their relative number in the Assembly.(3) It shall be for the Speaker of the Northern Ireland Assembly to determine what is proportionate under subsection (2) and to set this out in the Assembly’s Standing Orders.
(4) For the purposes of this section, opposition status shall apply to any party with at least one seat in the Northern Ireland Assembly which is not a part of the Executive and which has notified the Speaker in writing of its desire to be accorded opposition status.”

[Lord Empey (UUP)]

My Lords, the purpose of the amendment is very simple. Basically, Members will recall that in 1998, in the Act that implemented the Belfast agreement, a rather complicated form of mandatory coalition Government was introduced to provide for the return of devolution to Northern Ireland. Let me say at once that, while it is a complicated and unusual system, I support that system and that nothing in the amendment before the House alters it in any way at all. In other words, if parties achieve at the election sufficient support to entitle them to sit in the Northern Ireland Executive and exercise executive powers and occupy ministries, then that is entirely a matter for them. At present, if a party decides not to sit in the Executive or does not have sufficient numbers to qualify for a seat in the Executive, it has the option either of not taking its seat in the Executive or of remaining on the Back Benches. However, the missing link here is that those who are not in the Executive have no status as regards the Assembly’s proceedings.

Amendment 1 seeks to give the option to allow the Assembly, should it so wish, to apply to the Secretary of State, who would respond. That would allow the Assembly to draw up Standing Orders, under characteristics that she would determine, which would provide parties that wish to seek opposition status with the opportunity to seek that status from the Speaker. That would give people who took that position basic rights such as speaking rights, where the Speaker would call a member of the Opposition in response to a government amendment or a government proposal, but in proportion to the size of the parties. It would give the opposition the power to have supply day debates, which I think would be accepted in any reasonable jurisdiction. Finally, it would ensure that someone not from a Government-supporting party chaired the Public Accounts Committee and occupied the deputy chair of that committee. We must be the only jurisdiction in these islands where government party representatives also chair the Public Accounts Committee; that is a severe weakness of our current system.

Much has been made of the Assembly perhaps already having sufficient powers to create an Opposition, and there is no doubt that there are Standing Orders that the Assembly could make which could provide for such a facility. However, what the Assembly gives, the Assembly can take away. The main purpose of doing this through London is to ensure the independence of that Opposition and that it is not dependent on the good will of whichever parties happen to dominate the Assembly at any point in time, so that it does not have to rely on other parties for its supply days, speaking rights or any resources that might be made available. That would be one small step on the road to a more normal political set of arrangements. Given the fact that the vast majority of the 108 MLAs in the Stormont Assembly are supporters of the Government in one form or another, we do not believe that this is anything but a minor step in the road to making the Executive more accountable for their actions or inactions.

Some folk have said, “Would we be interfering in any way with the current arrangements and the rights and entitlements of parties under the Belfast agreement?”. The answer is an emphatic no. The time is neither right nor appropriate for any significant change in how the Executive are constructed, albeit I am sure that many of us wish to look forward to a day when we have a more normal arrangement for a Government, such as we have in Scotland or Wales. However, we are not there and perhaps will not get there during the lifetimes of most of us in this Chamber. We can, however, make one small step to give those who do not occupy positions in the Government the opportunity to hold that Government to account. No rights would be removed; I see this as an additional right that currently does not exist.

When this amendment was tabled a number of comments were made at home in the local press. I must say that I have not yet heard anybody come out and say that they are opposed to the concept of an Opposition. It is a very hard thing to stand against. I noticed in the Irish news that on 24 January, a spokesman for the Social Democratic and Labour Party said that the SDLP believes that the British Government should make provision for legislation for opposition in the next mandate in a way that protects partnership working under d’Hondt and is in line with the spirit of the Good Friday agreement. That is precisely what this amendment is designed to achieve, and it sums up clearly exactly what I and my colleagues wish to see.

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[Lord McAvoy (Lab)]

My Lords, the noble Lord, Lord Empey, makes, and has made in discussions with us, a reasonable case for this principle. Like the noble Lord, Lord Alderdice, we can see where the pressure for this is coming from. Words such as “unique” have been used several times to describe the situation in Northern Ireland, and that is still the abiding mantra that we need to take into account. However, devolution is devolution, and this is a matter for MLAs to consult and decide upon. Should any newer reforms be proposed which require necessary legislation to be brought before this House, we should fully consider them.

The issue of an Opposition is not mentioned within the Northern Ireland Act 1998. It is therefore a devolved matter that can and should be dealt with at Stormont. Despite the Irish News, and despite positive statements that have been made, there is no detectable overall consensus among MLAs on a move towards a formal opposition model such as exists here at Westminster. The point has been made that the Assembly is the only legislature not to have these powers, but there are people here who know better than me and who have more experience of the situation in which the 1998 agreement came about. It divided a society. As was so eloquently put by the noble Lord, Lord Alderdice, the problem of a permanent Opposition was that it never had a chance of getting power and felt it had no say. The Belfast agreement was designed to deal with exactly that situation.

In June 2013, the Assembly and Executive Review Committee concluded that it was possible to grant informal recognition to non-executive parties in the Assembly on a proportional basis. As has been mentioned, this could be achieved through additional speaking rights, recognition of non-executive status in the order of speaking and the allocation of time for non-executive party business. All this lies within the purview of the Assembly; it requires no legislation in Westminster. There has been a widespread desire expressed to see a situation such as this come about. Surely the true test will be when the Assembly brings forward a unanimous recommendation along these lines and takes action within the powers that it already has. The structure of the committees within the Assembly already provides a vehicle for regular accountability. They are organised so that Ministers face a committee within their jurisdiction which is headed by a representative of another party.

The 1998 agreement established an Executive in Northern Ireland which would be inclusive. In the same way, the responsibility for accountability must be exercised in an inclusive manner. The committees of the Assembly already allow the Executive to be held to account, commensurate with the fundamental principle of inclusivity. Furthermore, there is a broad consensus about giving non-executive parties informal recognition. This could be given by the Assembly itself. It would have much more power behind it if it came about in that way. There does not appear to be a full consensus among MLAs about reforming the structure to create an Official Opposition. It is essential that all the structures within the Assembly operate in an inclusive manner and are supported by broad cross-party consensus. The question is: do these conditions exist or not? It is the responsibility of MLAs to consult and agree upon newer structural reforms for an Opposition. This is an ongoing process. If, once consensus is reached, it is necessary for legislation to be brought before the House, we shall fully consider it.

We are very responsive to and aware of the sentiments that have been expressed, but the Assembly is on a journey. Unfortunately, we do not yet seem to have reached the stage where it can take the next step, but we believe that it is getting there and the move must come from there, although at present the necessary conditions do not seem to exist. For this reason, although we understand the amendment of the noble Lord, we cannot support it.

[Lord Empey]

My Lords, perhaps I may first respond to the noble Lord, Lord Alderdice. He made the point that he felt the amendment would not achieve the purpose being advocated for it. I understand that, but there is a clash between the issue of imposition and the issue of consent. While the mandatory coalition has been set out in statute, during those negotiations we did not set out in statute proposals for an Opposition because, to be honest, the main objective at the time was to get agreement on devolution. That was seen to be the way we could move on from where we were, in those bad dark days, to where we wanted to be. But, as the noble Lord, Lord McAvoy, has just said, it is a journey.

I am not, and I know that my noble friend Lord Lexden is not, totally wedded to the language of the amendment, but perhaps I can elaborate on why we feel that something needs to be done here as opposed to leaving it to Belfast alone. The reason is simple: we have to remove ourselves from the current political arrangements and look ahead a number of years. If we are going to establish an institution or see it modified, we cannot confine ourselves to the current politics; we have to look at the long term. I will tell the Committee, and in particular the noble Lord, Lord McAvoy, why we feel it is necessary to have a dimension of this set out here. First, we happen to have a legislative vehicle in front of us, and that does not often occur. The second reason is this. The noble Lord, Lord Browne, mentioned that the First Minister had said that he would be happy to facilitate any party at Stormont that wished to take up the opposition role. However, that is not the point I am getting at because it would apply only if a particular party, at this point in time, wanted to fill that role. Of course it would be up to any party to say so, but so far no party has said that it wants to. The point, though, is that it would be at the grace and favour of whoever was in place at the time, and that is the difficulty.

I can give an example that happened last year in the Assembly. At a very late stage in the Planning Bill, at the very last moment an eight-page amendment came in from the First Minister and the Deputy First Minister which would have had the effect of taking power away from the existing Minister. The amendment had not gone through the Committee procedure because it came in late. It was bounced on to the Floor of the Assembly at the last moment and it was put through. It failed to be implemented only because of legal activity by the Minister and it has not come into effect, but the example illustrates why it is necessary to have an element of independence. For instance, as my noble friend Lord Lexden said, under Schedules 3, 5 and 6 of the Northern Ireland Act 1998, even a simple body like the NI Assembly Commission, dealing with property issues, grass cutting and appointments of staff, is set out in statute. Standing orders are indicated so that they set out the characteristics of the committees. It is not impossible, therefore, to marry these two things.

I accept entirely the point made by the noble Lord, Lord Alderdice, that the weakness lies in the fact that you still have to get consent, but I feel that having the trigger at Stormont to implement something that is enabling—this is an enabling amendment—and thus having it on the stocks so that it is ready to go, would shorten the time the Assembly would require to move forward and take the next step. There would be no imposition.

I still think that this is the best way forward, albeit I accept that there could be a stalemate. The fact is that the Assembly and Executive Review Committee has been sitting for years. It has talked about everything, but nothing has actually emerged. For that reason, I believe it is necessary to move forward with these proposals. I would certainly request the Minister to consider them, that we should have discussions with the Opposition and the other parties between now and the Report stage, and that we should see whether we can find a mechanism to square this circle and achieve our objectives.

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[Baroness Randerson]

The noble Lord is absolutely correct. He is emphasising the point that I made that the Government are well aware that there should be no direction from outside. It is absolutely fundamental that the Assembly itself reaches this agreement. The Government see their role as that of facilitating the operation of the opposition parties within the Assembly when the Assembly reaches that decision for itself.

There will clearly be views on this from well beyond this Chamber today, including from Members of the Northern Ireland Assembly, and I emphasise that the Government are interested in hearing those views. I hope that, in view of the indications that I have given, the noble Lord will agree at this point to withdraw his amendment.

[Lord Empey]

My Lords, I am grateful to the Minister for her decision that the Government will reflect on this. It is interesting that everyone around the Chamber agrees the basic principles. Perhaps we should invite Mr Richard Haass to come in and help us between now and Report. Failing that, if the Minister and other parties—

[Lord Alderdice]

My Lords, if cross-community agreement were the key element in reaching an Executive, some kind of cross-community negotiation of those parties that could reasonably be expected to be in opposition might be a very fruitful way forward for consideration.

[Lord Empey]

I do not think that it would be appropriate to turn down any suggestion. However, we must not look at this purely in the current context of who happens to be around at this point in time. We must look years ahead. This is a structural issue. The Minister got the main points in her summing-up. The tensions here are that, first, we do not want to impose and, secondly, we must be consistent with the Belfast agreement. However, if you have to ask somebody for the right to be in opposition then there is a flaw. That is why one further step is required. Nevertheless, on the basis of the Government’s announcement that they will reflect on these issues and, I hope, discuss them with those who have participated in this debate today, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Baroness Randerson]

I thank the noble Lord, Lord McAvoy, for his amendment. It is always worth considering whether the arrangements in place for devolution are as effective as they might be and whether there is anything we can do to improve the way in which we work with devolved Administrations.

The noble Lord referred to the role of the Secretary of State and to the Haass talks. I reflect back to his speech on the previous amendment, in which he made it absolutely clear—and rightly so—that it was vital that we respect devolution and that the Government do not intervene where it is a matter for the devolved Assembly. I remind the noble Lord that the Government on occasions walk a narrow line between encouraging and leading in relation to the development and the firming-up of devolution in Northern Ireland. They walk a narrow line between that and interfering.

As noble Lords have already pointed out, interfering is a major mistake. The Secretary of State is very aware of this, in relation to the Haass talks in particular, because those talks were convened by the leaders of the political parties in Northern Ireland. It is a sign of the development and firming-up of politics and political institutions in Northern Ireland that these leaders felt confident enough to put hugely complex and difficult issues—the most difficult ones they face—into the discussions led by Dr Richard Haass. I am delighted to see that those discussions are still going on, with two meetings of the leaders of the political parties scheduled for this week. It is therefore absolutely essential, at this moment, that we trust them to take those issues forward and avoid the temptation to interfere. That does not mean that the Secretary of State is not watching this moment by moment and day by day or that she is not anxious for the Haass talks to succeed and for there to be progress on those difficult issues.

The noble Lord made it clear that this was a probing amendment, but it is essential that I address the details of it. Amendment 2 relates to ministerial functions. It is already the case that, if the Assembly wants to legislate to alter the functions of a UK Minister, or confer functions on a UK Minister, all it needs to do is ask for the Secretary of State’s consent. The formal consent process takes about 10 days. The amendment would, therefore, have a very limited impact because it would only remove that consent process in a small number of cases specified by the Secretary of State in advance.

The current process is not onerous and there have been no complaints from the Northern Ireland parties about the way that procedures have operated in this area to date. It is also notable that the consent process is very rarely used. Only one Assembly Bill—the marine Bill—has so far required the Secretary of State’s consent since the current Assembly was elected in 2011. Consent in relation to that Bill did not relate to ministerial functions, so it would not have been affected by the proposed amendment. Although I am grateful for the opportunity for debate that this amendment has brought, I do not believe that we should legislate for a problem that does not exist. I hope that the noble Lord will withdraw his amendment.

[Lord Empey]

My Lords, before the Minister sits down I apologise: I should have been in a moment earlier. I want to reflect on the amendment in the name of the noble Lord, Lord McAvoy. Clause 6 deals with the reduction in size of the Assembly being a reserved matter. There is a general view that, at 108 Members, the Assembly is too big. Compared with the Welsh and Scottish assemblies it is proportionately far bigger, but the reason for this was a deliberate decision to try and make it as inclusive as possible. Some two years ago we thought that a solution would be brought upon us with the change in parliamentary constituencies, because reducing the number of parliamentary constituencies would automatically reduce the size of the Assembly—QED. However, one or two people around your Lordships’ House and in other places had different views, and consequently that did not come to pass. However, it would have been an important step.

I have to caution the House that the Assembly deciding on how to reduce its numbers is as important as actually reducing the numbers. Using the existing system, if you reduced the numbers and left the existing constituencies the same, it would be perfectly possible to have a major political impact. It is a bit like the American states: the winning party then determines the boundaries of the new congressional districts, and so it goes on. This is a similar type of issue, and we have to be very cautious as to how we deal with it.

There is a general sense overall that the operation of the Northern Ireland institution is far too complicated and expensive, and everyone has the general view that it should be reduced. How you do that is very important and can have a significant political outcome, so I caution your Lordships that if we agree to this, it will hand the ability to whoever happens to be in charge when this happens to draw up the numbers to suit themselves, because proportional representation under the single transferable vote is very sensitive to the number of seats in each constituency that are contested.

[Lord Alderdice]

My Lords, I spoke to this question at Second Reading. I have a concern about the question of the reduction in the numbers of Members of the Assembly. I do not share the view expressed by the noble Lord, Lord Empey, and others in other places that the Northern Ireland Assembly is too big. I think that there is a certain minimum size; I hear from colleagues in Wales that the Welsh Assembly is too small, and that it is actually very difficult for it to accommodate all the requirements for committees to scrutinise Ministers, for internal committees and to do all the necessary things. There is a certain minimum size below which it is difficult to address all the required functions. Of course, in the case of Northern Ireland, unlike in Wales and Scotland, there is a very significant cross-border responsibility that is present in dealing with another state, which is not something that has to be done in quite the same way by other devolved institutions.

I am not convinced about the question of the reduction of the size of the Assembly, particularly since, after the Belfast agreement, there has been a decision to bring a major reduction in the number of local authorities and the number of elected representatives. We are going to move from a substantial number of elected local representatives to a much smaller number, while at the same time talking about a possible reduction of Assembly Members. I am not persuaded by that.

The second issue is the question that the noble Lord, Lord Empey, picked up: the people who will deliver on a decision will be the majority. In the old days the majority was from one side of the community, and the manipulation of electoral boundaries and votes was not at all unknown—in fact, it was quite a significant issue. One of the problems that I find, looking back at it from this side of the water, is that people over here sometimes assume that if major parties on both sides of the community agree, that is all you need to know. It is perfectly possible for two large parties, one on either side of the community, to agree to do something that is a major and inappropriate disadvantage to minority parties on both sides of the community or from neither.

There is a real danger that if this became a reserved matter, the two largest parties, one on either side of the community, could come forward with an agreed set of proposals that would advantage them electorally and politically in a way that was inappropriate but would be very difficult to resist because of, if we take the argument that the Minister made, the danger of a Secretary of State or people from this side of the water imposing their will. What does that mean? It means that if the two largest parties in the Northern Ireland Assembly came forward with a proposal, it would be rather difficult for a Secretary of States to withstand it and not be accused of inappropriately affecting affairs when there would be a cross-community agreement to move on that front. So there is a real danger, and I have to say that I am not at all enthusiastic about giving powers to the two large parties in the Assembly—that is what this amounts to—to affect the number of elected representatives per constituency. That would have a major impact, and we could live to rue the day if it were able to proceed.

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Moved by

[Lord Empey]

3: Clause 10, page 9, line 7, at end insert—
“(3) Subsections (1) and (2) shall only enter into force after the remaining provisions of this section have been complied with.
(4) The Secretary of State shall establish a body corporate called the Northern Ireland Civil Service Commission (“the Commission”).
(5) The Commission must publish a set of principles to be applied for the purposes of recruiting persons on merit on the basis of fair and open competition.
(6) Before publishing the set of principles (or any revision of it), the Commission must consult the Secretary of State.
(7) Northern Ireland Civil Service management authorities must comply with the recruitment principles.”

[Lord Empey]

My Lords, I know that a number of your Lordships have been contacted by the Civil Service Commissioners for Northern Ireland. While the commissioners do not oppose the devolution of their functions, they are very concerned that they at present do not have the benefit of formal legislative provisions. This distinguishes them from their counterparts here in Whitehall. Civil servants generally are sometimes, like politicians, the butt of jokes, and I am sure many a cartoonist has made a living out of it, but the Northern Ireland Civil Service over many difficult years ensured a degree of civilisation where proper governance continued, despite threats, both personal and real. It is important that its impartiality in serving whatever Administration it happens to serve is maintained.

I see one distinguished former Secretary of State in his seat. He will know the importance of having that impartial advice available. I believe that the Civil Service Commissioners want to ensure that that remains the case. They would like the Constitutional Reform and Governance Act 2010—it puts the Home Civil Service Commission on a statutory footing and enshrines in law the requirement that selection of appointment to the Civil Service should be on merit, following fair and open competition—to apply to the Northern Ireland Civil Service. I think that they are very anxious that devolution of this function should not take place until that is achieved.

That is not a very difficult issue. We have seen in the past 24 hours what can happen when people have to say things about public appointments. Given the circumstances which we come from, and the history, background and substantial achievements of the Northern Ireland Civil Service under difficult circumstances, it is important that we take any and every measure we can to ensure that that impartiality is guaranteed, is in statute, that there is no ambiguity and that no political influence could subsequently be brought to bear were attempts to be made over the years to try to interfere in who was appointed to which posts.

This is a sensitive issue throughout the United Kingdom. The amendment is just another small step in attempting to ensure that that impartiality is guaranteed long into the future, and that it, and the respect in which the Civil Service is widely held in Northern Ireland, is retained. I beg to move.

[Lord Alderdice]

My Lords, I was happy to put my name to the amendment which the noble Lord, Lord Empey, pioneered. I support many of the things that he said.

I will give two examples; a modest one, and one perhaps more substantial and persuasive. This question of maintaining the non-partisan stance and community appreciation of the Northern Ireland Civil Service is of enormous importance. Quite a lot has been written about the peace process in Northern Ireland, and most of it concentrates on negotiations between politicians, the people who are brought in from outside to assist, the role played by the Prime Minister and the Taoiseach and, in some cases, the impact of the United States, the European Union, the NGOs and so on. Very few of those papers point up the importance of civil servants in the Northern Ireland Civil Service, yet they were absolutely critical. A few of those civil servants—nominated by the Secretary of State and his successors—basically spent all their time engaging with politicians right across, and in some cases beyond, the spectrum to keep the process alive. Whether Governments changed, whether leaders of the political parties changed, with all the ups and down of elections those civil servants continued to meet. They would make minutes. They would ensure that meetings were held. They would keep people in touch with each other.

Very little is written about it. It was absolutely essential. As I have involved myself in peace processes in various other parts of the world, I have come to realise how important it was. In many places, almost right across the Middle East, for example, this is not a tradition in the civil service. It is difficult to make peace processes work in some of these places precisely because there is no civil service there of that kind—no non-political, non-partisan civil service.

I give another example. One of the problems I had when I became the first Speaker of the Assembly was how to staff it. Nobody had been there for decades, running, as clerks or other officials, an Assembly. There was only one body of people who could be called upon in sufficient numbers: the Northern Ireland Civil Service. People, particularly on the nationalist and republican side, were very anxious about this. They had come to a view, for particular reasons, some of them based on experience and some of them on suspicion, that the Northern Ireland civil servants would be biased towards unionists. We had a lot of negotiation about it, but we all came to the conclusion that there was no alternative, so the agreement was that we would take these people in—however, on only a three-year contract. During that period, there would be open advertisement, and people would come in from other places in society and outside Northern Ireland. There would have to be this transitional process.

The fascinating thing was this: as that period of three years went on, it became increasingly apparent to nationalists and republicans that the concerns they had had about the non-partisan nature of the Northern Ireland Civil Service were actually pretty groundless. As we came near the end of the time, people from those communities wanted to keep on many of the staff who had proved themselves perfectly capable of being loyal to a power-sharing cross-community Executive and Assembly. That was the quality of people and, to some extent, the culture, which was a more non-partisan one than was realised.

I have a real anxiety—in this situation, I do not think that examples on this side of the water are necessarily perfect—that Members of the Government on both sides in Northern Ireland might well be tempted to influence the appointment of some senior civil servants in a way that would not ultimately be in the interests of any of us in Northern Ireland. I ask the Minister to take very seriously the amendment put forward in the name of the noble Lord, Lord Empey, and myself, and to take it away and look at whether it is possible to accommodate the very legitimate concerns—not concerns about devolution of the function but about protection of the devolution of this function from adverse and partisan impact.

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[Baroness Randerson]

It is the Government’s intention that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exists for England. I hope that satisfies the noble Lord.

[Lord Empey]

My Lords, when we started out on this amendment, I thought it was a very simple matter that would not be at all controversial. It just shows you that you never can tell around these parts. First, nobody in Northern Ireland has asked for this. The Assembly certainly has not made an approach. To some extent, the issue has come as a bit of a surprise. As I said—I think there is widespread acceptance round the House—the Northern Ireland Civil Service did a good and impartial job. There are a number of former Ministers in their places to confirm that, including the noble Baroness on the Opposition Front Bench, who ran a number of departments and has many years of experience. I accept that there may well be technical deficiencies in the amendment that the noble Lord, Lord Alderdice, and I have tabled. We are very happy for the amendment to be taken away and those technical deficiencies resolved. However, the Minister referred on a number of occasions to consultation. It is not clear to me what the consultation is on—whether it is the principle of devolution or not. To have a consultation on the merit principle would take us back to ground zero. If we do not or cannot accept that, we will pretty well have thrown in the towel.

I suggest that the Minister should look at this before Report because it is an issue to which we may well have to return. Everybody in the Chamber agrees, so it ought to be possible to resolve it. In that spirit, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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[Lord Bew]

My Lords, I support the concerns expressed by the noble Lord, Lord Alderdice. Clause 11 embodies a significant step towards the devolution of function in relation to the Northern Ireland Human Rights Commission.

I do not want to leap ahead to the amendment in my name and the names of the noble Lords, Lord Lexden and Lord Black. That will be discussed in its own time. There is, however, a particular irony here. The key issue in that amendment is the continuing reluctance of the Northern Ireland Assembly to accord to the citizens of Northern Ireland the same level of freedom of expression that exists in the rest of the United Kingdom since the recent passing of the Defamation Act 2013. It seems a heavy irony that we should be proposing to devolve functions related to human rights precisely at the same time as we have a denial by the same Assembly of what is a pretty sensitive question in this particular respect. I do not want to anticipate a later discussion but it is relevant to the points made by the noble Lord, Lord Alderdice. The timing of this seems at least a little odd.

[Lord Empey]

My Lords, I have some sympathy with the points made by the noble Lord, Lord Alderdice. This kept coming up time and again in the Haass process—and I am sorry that I did not have the opportunity to sell tickets for it at an earlier stage; I know it would have been a sell-out for many noble Lords. It goes to the core of what people feel about their cultural identity and how they express that identity. Everybody talks about human rights in that context. What might seem a relatively modest administrative change does have significant consequences, and it could not have been put better than by the noble Lord, Lord Bew.

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Debate on whether Clause 12 should stand part of the Bill.

[Lord Empey]

My Lords, there is no question that, from an administrative point of view, having the district electoral areas dealt with by the same commissioner who deals with each individual ward makes sense. However, as has been mentioned in the context of other issues, this is a very significant development under proportional representation, because the drawing up of district electoral areas out of wards has two consequences. The decision on how many seats to award for each district electoral area has consequences under proportional representation, and which particular wards make up that DEA is also an extremely sensitive issue. There are grey areas in many respects.

You cannot of course go around in life with a conspiracy theory always at the front of your mind, but I have to say that current experience—within the past couple of years—is not encouraging. I refer to the recent reorganisation of local government, which I have previously referred to elsewhere. The recommendation of the commissioner was overruled in one case. In my opinion, a scandalous gerrymander has occurred in the city of Belfast, and barely a word is said. I have absolutely no confidence that the time is right for this particular function to be considered for devolution. A lot of people say they want the single transferable vote system of proportional representation but fewer people perhaps have had full experience of it. We have had 40 years of experience and understand the significance of deciding on the number of seats. For each local government area, you have a number of district electoral areas, each of which is a collection of wards. Those areas can include, in our case, five, six or seven; in the Irish Republic it could be four or three. Those decisions on the number are very significant. Equally, deciding which particular group of wards form the DEA is also significant.

In many respects, that can lead to putting the cat in charge of the cream, to be perfectly blunt. At this stage, I feel that this is not an appropriate thing to do. Recent experience, as I said, is not encouraging and we could start to create the particular problem which, as referred to, was a problem in the past. Do we really want to go back down there again? It is not a big deal—I have to tell noble Lords that the people on the streets are not talking of little else—and not a source of difficulty, so why move to a position where that could happen? The point might well be made that we have done our local government DEAs—we have just passed the order today—so this is not something that will arise in the near future. That is indeed true, but so what? If it will not arise, and will not be necessary right now or in the foreseeable future, we can wait. Whenever it does come round, and when is needed, we can hope things will have sufficiently matured politically so that anxieties such as the ones I am expressing today are no longer held by individuals. It is for that reason that I put down this proposal.

[Lord Alderdice]

My Lords, the noble Lord, Lord Empey, suggested that this is not a matter that is talked of every Friday and Saturday night in the pubs of Belfast. He is right about that, at this point, because it is not an issue. However, I have found in conversations with political friends and colleagues in the United States that districting is very much a matter of debate, because it is actually in place. You do not need to be a particular student of Northern Ireland history to know that manipulation of electoral boundaries and arrangements was a fundamental problem which led to many of our difficulties. I am a little puzzled as to why this has come up at this stage. I am delighted that we are 15 or 16 years on from the agreement, but we are not 15 or 16 years more mature than at the time of the agreement and it is quite clear that it is very difficult to reach agreement on a whole raft of issues in the Northern Ireland Assembly. I would feel much more relaxed about this if, over the past 15 or 16 years, we had passed a whole series of constructive pieces of legislation in the Northern Ireland Assembly and agreed on all sorts of community initiatives that had to be done, and if the walls of partition were coming down in the city of Belfast and the word “dissident”—whether loyalist or republican—was consigned to history and so on. In that case, I would probably not be standing up here.

However, I am not persuaded that the situation has changed so dramatically. If issues of flags, parades and the legacy of the past are bringing people out onto the streets, I fear that applying districting to Northern Ireland could well become a matter of enormous contention. I am not persuaded that adding this to the pot at the moment assists the parties in Northern Ireland in reaching agreement. It adds a further complexity and difficulty, and I am not persuaded that we need or could benefit from that at the moment.

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While we can understand where this important element of the agreement was not implemented beyond 2002, it seems that there could be a change that may well make it possible to bring it back into play. The Civic Forum will never be any kind of emulation of your Lordships’ House, but it may nevertheless be able to perform not a governmental, parliamentary or legislative function but still a useful one. In any case, we should all be trying to ensure the full implementation of the Good Friday agreement, because that is what most of the progress of the past 15 or 16 years has been based upon.

[Lord Empey]

My Lords, there is no doubt that the noble Lord, Lord Shutt, is correct that the Civic Forum was and is in the agreement. It fell into disuse in part because of the resentments that the noble Lord, Lord Alderdice, referred to. People said that many of these individuals were usurping the role of elected representatives, and that feeling persists. The other reason, though, was that it did not get off to a terribly good start. It did not distinguish itself during the relatively short period of its existence. That does not rule out having a look at it again, but I suspect that that was the reasoning.

Another issue, and we will be coming to this in the next amendment, is that if the agreement had been left as it was agreed, there would be strong pressure on those who signed up to it in principle to follow it. However, as we will be referring to in the next amendment, the Government unilaterally changed the agreement in 2006, so therefore a lot of people do not feel as obligated to the full agreement as they would have done prior to that happening.

Another point is that people are getting a constant stream of criticism about the costs of the Northern Ireland Assembly and its complications, and they felt, “Well, here we have another layer. Were we right to agree to this in the first place? Is it going to be too expensive? Do we really need it? With 108 MLAs representing the people, do we need this?”. That is the kind of argument, but there is no question of doubt about the fundamental point that the noble Lord Shutt, makes: it is in the agreement. It is not the only thing that is not implemented—I hear a sound from a sedentary position that I know may well emerge in a moment or two from this chrysalis and bring blinding light to the House. Those are some of the reasons why we are where we are.

[Lord McAvoy]

My Lords, once again the Labour Front Bench will come to the rescue of a Minister who is under siege from her own side of the House. I do not usually see myself as a knight in shining armour coming to the rescue of a Conservative Government, but there is always hope for sinners repenting.

I will be repeating a familiar refrain. The Civic Forum is a matter for the Northern Ireland Assembly and does not require legislation in this House. The 1990 Act gave responsibility for the creation of the forum to the Office of the First Minister and Deputy First Minister, and gave them the responsibility for scrutinising the body as well. Provisional arrangements for the Civic Forum were created and approved in this manner. These arrangements also established that there would be a review of the forum after one year of its operation. This was deferred until 2002, but unfortunately the suspension meant that that was not completed.

Since 2007 the Civic Forum has once again been under review, and surely a six-year to seven-year review tells a story of its own. The review was initiated by the Office of the First Minister and Deputy First Minister. This decision and the review have rightly been approved, scrutinised and debated by the Assembly. The transitional Assembly’s Committee on the Preparation for Government concluded that a review of the mechanism for civic society to promote its views was necessary. Here, sad to say, the opinions expressed by the noble Lord, Lord Empey, about the role in society of quite a large Assembly raise necessary doubts. It serves some nebulous cause to have a good thing in operation, but on the other hand we have to be professional and sharp about things and not just have bodies just for the sake of them. Anyway, as I said before, this comes under the aegis of the Assembly.

The best way in which to engage with the community in the political process is surely a matter for the Assembly and Northern Ireland politicians to decide upon. There are indications that there is a nationalist/unionist split—I use the terms roughly—about the worth of the forum and whether it should be reinstituted. As the noble Lord, Lord Empey, said, in this era of austerity the costs of an extra, subsidiary body have resulted in some doubts about it as well. Once again, though, I say that the initiative must come from the Assembly. This is devolution in practice.

I regret that I have not been able to support the noble Lord, Lord Shutt, because he has a respectable record on Northern Ireland issues. No one doubts his concern about the Northern Ireland situation or his anxiety to contribute to that process. I respect his record on Northern Ireland and genuinely regret that we have not been able to support his amendment on this occasion.

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Moved by

[Lord Empey]

5: After Clause 25, insert the following new Clause—
“Election of the First Minister
(1) The Northern Ireland Act 1998 is amended as follows.
(2) Omit sections 16A (appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election, 16B (vacancies in the office of First Minister or deputy First Minister) and 16C (sections 16A and 16B: supplementary).
(3) Before section 17 (Ministerial offices) insert—
“A17 First Minister and deputy First Minister
(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and deputy First Minister.
(2) Each candidate for either office must stand for election jointly with a candidate for the other office.
(3) Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.
(4) The First Minister and deputy First Minister—
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister. (5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office—
(a) during any absence or incapacity of the holder; or(b) during any vacancy in that office arising otherwise than under subsection (7)(a);but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding six weeks.(6) The First Minister or the deputy First Minister—
(a) may at any time resign by notice in writing to the Presiding Officer; and(b) shall cease to hold office if he or she ceases to be a member of the Assembly otherwise than by virtue of a dissolution.(7) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other—
(a) shall also cease to hold office at that time; but(b) may continue to exercise the functions of his or her office until the election required by subsection (8).(8) Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.
(9) Standing orders may make provision with respect to the holding of elections under this section.
(10) In this Act “the pledge of office” means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4).””

[Lord Empey]

My Lords, a few moments ago we were talking about the Belfast agreement and the obligation of those parties who supported it to uphold it. Undoubtedly, if you make an agreement you might subject it to a referendum, a subject regularly discussed in your Lordships’ House. We are getting in the mood now for all sorts of referendums. We had a referendum in 1998 and the agreement was agreed. However, that is not where it ended. One of the reasons we have difficulty is that that agreement was worked out after many months—in fact, years—of delicate negotiations. At the core is the concept of a partnership, which is the point that the noble Lord, Lord Alderdice, made earlier. I understand his point about designation and that he has an issue, but at the core was the concept of a partnership. That partnership was such that those at the top of the Government each had a hand on the wheel. That obviously made decision-making much more difficult but it was the only way that we could figure of getting people to consent to the re-establishment of devolution.

The noble Lords, Lord Kilclooney and Lord Alderdice, and others, sat at the table when these matters were discussed; the noble Lord, Lord Maginnis of Drumglass, sat there with the rest of us. We looked at these issues and came to a conclusion. We set out, as was set out clearly in the 1998 Act, how we were going to identify the First Minister and Deputy First Minister. These are the people who are charged with the responsibility of oversight and for steering the business of the devolved Assembly. They jointly chair the Executive.

In legal terms, the two personages are absolutely equal; there is no distinction between them. I know that clearly because, when I occupied the post for a short time with Seamus Mallon, the first issue we had to agree was the notepaper: you could not send out a letter from the department without both signatures. Because Seamus Mallon was the Deputy First Minister and I was coming in in place of the noble Lord, Lord Trimble, who was the First Minister, he assumed that his name would go to the left-hand side of the notepaper, and that mine would go to the right-hand side. I said, “No. I am not substituting for you; I am substituting for him”. Consequently, we were unable to send a letter out for a week. The settlement was that I went on the left-hand side as Minister for Enterprise, a post which I held in parallel with First Minister, and his name stayed where it was. That was a classic case. The point is that it is a partnership.

Unilaterally, and behind our backs in 2006, this process was torn up. In the original agreement, the First and Deputy First Ministers’ names had to go before the Northern Ireland Assembly in a joint Motion that they both be appointed to their respective positions. That meant that the Northern Ireland Assembly had to agree, by cross-community consent, who the First and Deputy First Ministers would be. The Northern Ireland Assembly now has no say in that. That was removed at a stroke and replaced by the current system, which is that whichever party is the largest from one designation and whichever is the largest from the other designation between them occupy the two posts. The Assembly is not involved.

What has happened? This turns all subsequent elections into sectarian headcounts. People go around the country saying, “If you don’t vote for me, Martin McGuinness will be First Minister”. Somebody else says, “If you vote for me, I can put Peter Robinson out”. The fact that there is no difference in the powers that either of them exercises is set aside. If we made any mistake in 1998, perhaps the titles that we chose for these two offices were wrong. We have created a hierarchy where no hierarchy exists.

However, that is how the system works. How it came about is another bone of contention. The agreement was agreed by all parties sitting around the table with Senator Mitchell. On this change, which radically altered the dynamics of devolution, my party was not consulted, the Social Democratic and Labour Party was not consulted and I suspect that the Alliance Party was not consulted. It may have applied to others, too. It was just done, and appeared in the draft of the Bill. It was not part of the St Andrews agreement; while it was part of the St Andrews agreement Act, it was not dealt with at St Andrews. It came out of nowhere; it was just produced as a deal and appeared in the Bill. When I saw it, I knew exactly what was happening and why. It was a major mistake, and people say to us that every part of the agreement should be implemented, when a part of the agreement that was implemented in good faith was simply torn up before our eyes, without our consent or knowledge.

I cannot say how strongly many of us feel about this, and it has contributed very much to the stalemate that we have. I understand that the Government were doing their best to get the show back on the road. I do not impugn the motives of the Prime Minister of the time who did this. However, it was a significant and unfortunate course of events, first, to create a row over nothing—when there is no difference between the powers of the two persons elected—and, secondly, to change the dynamics of electoral politics in Assembly elections much more in favour of sectarian headcounts than ever was the case before. Under the original proposals in the Belfast agreement, you would not have had a situation where the First and Deputy First Minister were elected without the consent of the Assembly.

Once you lose the link between the Assembly and the First and Deputy First Minister, they inevitably feel less obligated. That is a mistake. It is interesting that, in the Irish Parliament, the Taoiseach is elected by the members of the Dáil. You might say that if that is the case, it is the very last thing that I would want in Northern Ireland but it is not, because the partnership principle is paramount. If we made a mistake, we did so in the titles of the two positions. However, who could have foreseen that somebody would go behind your back eight years later, without consulting you or participating in any process whatever, and just produce a clause in a Bill out of nowhere? I hear so many speakers—the noble Lord, Lord McAvoy, and others—saying today, “Oh, this is the Assembly and we cannot do anything—it was part of the agreement”, or, “It was up to Stormont”, or whatever. That is true, but whenever it suited the Government they just made a change like that without a by-your-leave.

That is the rationale for the amendment. It is also almost, to the word, the same position that was adopted by the noble Baroness, Lady Harris of Richmond, who is not in her place at the moment. She pioneered a similar amendment in 2006, when the St Andrews agreement Bill was going through this House. She opposed the introduction of this proposal on the same grounds and I think that the then Opposition took the same view. That is the background, and why the amendment is before your Lordships.

[Lord Alderdice]

My Lords, I do not think that the noble Lord, Lord Empey, expects the amendment to be passed. He is raising it to make an important point.

I will briefly take his point from a slightly different angle, which is particularly important for people looking into Northern Ireland from outside. Everyone is familiar with the fact that the history of the 20th century in Northern Ireland was one in which a substantial minority felt that it was not fairly involved and a significant majority was constantly in control. That is largely true. However, from that came an assumption that if you could get an agreement that had support from the majority on the two sides of the community, it must be a good thing and should simply be accepted without too much argument.

That is a serious mistake. It is wholly possible to create an environment in which a majority rule in two sections of the community can be, if not as bad, certainly not very commendable. When we look at the majority in the community as a whole, we realise that that, on its own, is not satisfactory in a divided community. This is an issue way beyond just Northern Ireland. When people look into divided communities, whether in Syria, Israel/Palestine or other areas, they should not assume that just because you get a majority on each side that you have a satisfactory outcome. It may be more satisfactory than getting a majority from only one side, but it is not of itself a satisfactory outcome. When noble Lords look not just at this Bill but at other Bills, it is important to think about the implicit warning of the noble Lord, Lord Empey: solving the problem is not just a matter of satisfying a majority within each of the two pillars. On that, and on the principle behind it, he is right and not just for Northern Ireland.

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[Baroness Randerson]

I accept of course that the Belfast agreement was voted on on both sides of the border and, as the noble Lord has pointed out, the St Andrews agreement is in a different category. As the noble Baroness pointed out, it was a response to an urgent and difficult situation. It was not an agreement dealing with things as one would ideally wish them to be, but an agreement dealing with a very difficult situation. However, I take issue with the noble Lord that there has not been progress. I understand frustration at lack of progress—I think everyone who is involved with and visits Northern Ireland might feel that frustration—but there is progress. When I look back at what the Northern Irish devolved Government was like in about 2000, maybe 1999, they have moved on significantly in that time. With every year that passes, they become more secure. As the noble Lord, Lord Browne, pointed out, this is the longest period of stable government we have seen in a generation.

At the moment, it would reopen old debates, risk destabilising politics in Northern Ireland and divert attention from the important challenges that Northern Ireland faces, if we were to revert to the old method for electing the First Minister and the Deputy First Minister. I should like to concentrate noble Lords’ minds for a moment on the new challenges that Northern Ireland faces, which are the importance of rebalancing the economy, reducing social division and building a properly shared future. Therefore, I ask the noble Lord if he would be willing to withdraw his amendment.

[Lord Empey]

My Lords, I thank the Minister but may I say several things because there is an issue of fact that needs clarity here? The current method of electing or identifying the First Minister and the Deputy First Minister does not come from the St Andrews agreement. It was not discussed at St Andrews—let us be very clear about that—but emerged after a deal between Sinn Fein and the Prime Minister of the day. I want to make it absolutely clear that it was not dealt with at St Andrews. Therefore, if we are to talk about unpicking, the unpicking was the removal of the process that was voted on by the people in 1998. However, it was never part of the St Andrews agreement, which was an agreement between two Governments, not between the parties. I want to make that absolutely clear, because if that is the case, it makes a major difference. It emerged as a deal subsequent to St Andrews.

[Lord Lexden]

Can the noble Lord say whether the current arrangements were debated at any stage by the Northern Ireland Assembly itself? If it held such a debate, did it endorse that which now exists, or did it reach some other conclusion about them?

[Lord Empey]

I cannot recall a debate of that nature, but other noble Lords are present who were Members of the Assembly then. Perhaps they can jog my memory, but I do not recall it.

I repeat: this was never part of the St Andrews agreement. I understand and accept that Governments were faced with a terribly difficult situation: they had to get restoration. However, we must remember why there was instability in the first place. We still had people who were prepared to threaten us with terrorism, and other people who opposed the very agreement that established the Assembly. Leaving that to one side, the original unpicking was done by the removal of the original process in the agreement, and it was never part of the St Andrews agreement.

However, I have made my point. I welcome the longevity of the current Assembly, of which I was part, and I know that we are all glad that it has survived. That is not a mean achievement, and I would not take it away from anybody; it is a very significant achievement, which I welcome. However, survival is one thing but good governance is another, and we have to balance the two. With that, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Moved by

[Lord Empey]

6: After Clause 25, insert the following new Clause—
“Amendment of Crime and Courts Act 2013
(1) The Crime and Courts Act 2013 is amended as follows.
(2) In section 61 (short title, commencement and extent), for subsection (18) substitute—
“(18) Part 1 of and Schedules 1 to 4 to this Act extend to Northern Ireland.”
(3) Omit Schedule 24 (the NCA: Northern Ireland).”

[Lord Empey]

My Lords, during the passage of the then Crime and Courts Bill through this House I asked the noble Lord, Lord Taylor of Holbeach, who was answering that evening, what he would do in circumstances where the National Crime Agency did not extend to Northern Ireland. What would the Government do if they identified a national threat in the event that the National Crime Agency did not apply to Northern Ireland? His answer to me was that he would “act responsibly”. Quite a lot of time has passed, and I know that the Northern Ireland Office is in discussions with the Home Office and that they are working in consultation in Stormont with the parties that are objecting. I wish them well; I understand that it is a very delicate matter. However, let us be absolutely clear about the downstream consequences of this.

Not a large amount of time has passed since the establishment of the National Crime Agency, but to replicate the services that would be needed would cost the PSNI resources that it simply does not have and never will. Even if it was able to do that, it would lack the connectivity and intelligence that would be required in order for it to act effectively. I therefore put to your Lordships that while everybody has been prepared to be patient, to encourage and to wish the negotiations well—I hope that they are progressing—I would be very interested if the Minister could tell us what progress has been made. Are we any nearer to getting this dealt with? Just as we will deal with another amendment shortly, where Northern Ireland is becoming a vacuum as regards other issues, we cannot afford for it to become a vacuum where crime can establish itself and from which it can operate with impunity. I know that Customs officers and others have power to act and that they do, and that the border agency can act on the relevant matters—and that is fine. However, there are still whole areas outwith what the border agency and other intelligence services can deal with. It cannot be satisfactory to say that we have a National Crime Agency that is not national.

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[Baroness Randerson]

I thought I had done my best to answer that question but I will, of course, examine the record tomorrow and if I can provide noble Lords with further information I will be very happy to write and provide further detail.

[Lord Empey]

My Lords, like most amendments at this stage in a Bill, this is a probing amendment. However, as I pointed out, this is a miscellaneous provisions Bill, and therefore noble Lords will seek to insert measures in it as the opportunity is available to do that. I think that is the tradition of the House and I am merely following in that wake.

In regard to this specific amendment, I will have to look at Hansard tomorrow but the Minister said, if I heard her correctly, that we could not, or would not, overrule the Northern Ireland Executive. Let us be very clear—Parliament can overrule any devolved Administration. Devolution means that part of our functions and powers are devolved, but it also means that they can be undevolved. We have a convention to which we normally stick, and I understand that. However, if the Minister is saying that the Government will not introduce any legislation on this matter in Northern Ireland, she is effectively giving Sinn Fein a veto over a crime issue. That is a very disturbing comment. I will check the record tomorrow and, if necessary, return to the issue at a later stage. However, when the noble Lord, Lord Taylor of Holbeach, answered my question on the Crime and Courts Bill, the clear implication of what he was saying was that, if progress was not made, the Government would have to take the national interest into account. That was the inevitable implication of what he said to me. If that is not the case and we are saying that whatever happens we are not going down this road, that in practice is a veto for Sinn Fein, which is not a very good thing to do in the interests of national security.

I hope that the Minister is listening. I wish the discussions that are taking place well. Those holding the discussions have not perhaps been dealt the best hand, and comment could fairly be made on that. However, let us not be under any illusions—the fact that we have an underperformance in this area in Northern Ireland, which is an inevitable outcome of the agency not operating totally and without limits, must mean, ultimately, that crime, like anything else—like nature itself—will fill a vacuum. We have enough people in Northern Ireland with certain skill sets. I need hardly finish the sentence as noble Lords know what I mean, but let us not encourage them. If there is no prospect whatever of our doing anything in this regard, that is not much of an incentive to those involved in the negotiations as we are throwing away their hand.

[Lord Maginnis of Drumglass]

Is the reality not that by resisting this amendment and the suggestions in it, there is again—I choose my words carefully—a behind backs hope and ambition that strand 1 of the Northern Ireland agreement will, by necessity, be infringed? Is that not the inevitable outcome? It has not happened yet.

[Lord Empey]

I know my noble friend Lord Maginnis is very sensitive that these matters have not been involved in negotiations. It just goes to show the interconnectivity between these different issues and how sensitive they are.

My objective here is not to make life more difficult for those holding the negotiations. I want them to succeed because I believe in the national interests. It is in the interests of everybody in the United Kingdom that they succeed. However, let us not throw away or indicate that under no circumstances would the United Kingdom Government take certain measures. If you do that you are giving people a guarantee that if they dig their heels in they can prevail. On that basis, and on the basis of checking the report and reflecting on what has been said, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

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If Mike Nesbitt’s Private Member’s Bill does not proceed—and it seems that the Northern Ireland Executive and some of their friends in the Northern Ireland legal establishment will always find ways to kill it—then we will have to take legislative action here in order to avoid the very real dangers that will be done to media plurality in a part of our country that desperately needs it. I know that that sort of action is unprecedented, but not to take action would be a deeply irresponsible act in itself. I support the amendment.

[Lord Empey]

My Lords, briefly, I support the amendment in the names of my noble friends Lord Black, Lord Bew and Lord Lexden. This will come as no surprise. I believe that the consultation had more than 200 responses, which those familiar with this process will know is a big response. It was not only the quantity, but the quality and variety of those who responded that was very significant. The Minister has spoken about consultations today. I think the responses to the consultation on Mike Nesbitt’s Bill were greater than to the national consultation, because the penny has dropped and people have realised what the implications are. Some very serious players responded.

There has been a development in Northern Ireland which, on the surface, I welcomed at first. The Minister of Finance has asked the Law Commission to have a look at this. However, it has emerged that the timetable that the Law Commission is considering could take us into years. It is talking about another consultation, scoping studies, and so on. This could go on literally for years. In fact, it could supersede the lifetime of the current Assembly. In those circumstances, I think there is a lot of food for thought in this amendment, which I support wholeheartedly.

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Moved by

[Lord Empey]

8: After Clause 25, insert the following new Clause—
“Junior Ministers
In section 19 of the Northern Ireland Act 1998 (junior Ministers), after subsection (1)(b), insert—“(c) that any department exercising any of the functions specified in paragraph (b) shall do so under the direction and control of the junior Minister.””

[Lord Empey]

My Lords, I shall be brief. The power to appoint junior Ministers in Northern Ireland already exists. Junior Ministers are appointed by the First Minister and the Deputy First Minister and, while only two have ever been appointed in each Assembly and they have always exclusively been in one department, the Department of the First Minister and Deputy First Minister, that does not preclude them being in other departments. Indeed, it does not prevent the appointment of more than two. What I feel is lacking is that while junior Ministers could be appointed to more than one department simultaneously, I want to try to achieve in Northern Ireland the same thing as is available here, and even in Dáil Éireann. You can have a Minister who serves in more than one department, as we have in this House. The noble Lord, Lord Green of Hurstpierpoint, worked in the Department for Business, Innovation and Skills and the Foreign Office, and his successor does the same. Moreover, there are other examples in the Government.

The one thing that a junior Minister does not have is any executive authority. The junior Minister works exclusively for the Minister whose department he or she happens to serve in. What I am hoping to achieve is that, with the agreement of the relevant Minister, some power could be devolved to the junior Minister—they might be called a deputy Minister—so that that person can carry out a specifically indicated function. I shall give an example of what I am driving at. Years ago, we set up what was called the West Belfast and Greater Shankill Task Force, which was set up to deal with areas of deprivation. The thinking was that if you could prove to people in such an area that devolution worked, you would encourage support for it and you would improve the social and economic circumstances of that community. Invariably, a number of departments were involved. Two departments appointed the task force, one for which I was responsible and one for which, I think, Mr Nigel Dodds was then responsible. It meant that several departments were involved. What we had was a ring-around-the-roses of all these people being involved with the task force. While, obviously, the political situation over devolution did not help, the fact was that even after all those years, we were not able to get the outcome that we all wanted.

I thought it would be a good thing to be able to appoint a junior Minister in more than one department and, with the consent of the departmental Ministers, have some executive power in and of him or herself. Currently, such power is not available to a junior Minister. Executive power flows through the departmental Minister where the person is based. I want to find a practical solution by having someone in charge of tackling underachievement in particular areas, and for that individual to be able to deliver that responsibility rather than have it spread over a whole range of departments with different budgets, funding priorities and so on. I am sure that, having been there, the noble Baroness will know what I mean. That is the purpose of this amendment. I beg to move.

[Baroness Randerson]

I thank the noble Lord for his amendment and I recognise the importance of cross-government co-operation in addressing certain challenges in which several departments have a role. Indeed, as he has just said, there are several examples here in Westminster such as the Minister of State for Policing, Criminal Justice and Victims and the Minister of State for Trade and Investment. It is plausible that we should consider a similar approach in Northern Ireland, and the noble Lord has already highlighted some of the areas in which it could be most effective.

The noble Lord will recall that this issue was debated when he was First Minister in the Assembly in 1999, and a determination was made to appoint the junior Ministers in the Office of the First Minister and Deputy First Minister. Section 19 of the Northern Ireland Act 1998 already provides for what his amendment is intended to achieve. The section permits the First Minister and Deputy First Minister to issue a determination to appoint junior Ministers. It is conceivable that, in that determination, the First Minister and Deputy First Minister could specify that the junior Minister is appointed to lead on a particular issue and across more than one department. That determination could, for example, specify that a junior Minister would work alongside the Ministers for Regional Development, the Environment and Agriculture on issues such as—to take a very topical example—flooding.

Section 19 also provides sufficient safeguards around the appointments of junior Ministers. Subsection (4) requires that any determination on the part of the First and Deputy First Ministers be approved by a vote of the Assembly. As the Government read it, the amendment may open the way to encroachment by junior Ministers on the authority of departmental Ministers. That would be a significant departure from existing structures. As to junior Ministers contributing in other ways to the working of the Executive, the noble Lord’s points will have been heard. I hope that the noble Lord will agree that this is a debate that should now be taken forward in the Assembly. I hope that he will consider withdrawing his amendment.

[Lord Empey]

I thank the noble Baroness for her response. Of course I want this to be debated in the Assembly, but I take issue with the substance of her point that what we have currently does what I seek to achieve. The point on which we differ is that you cannot unilaterally give departmental power to a junior Minister. Each departmental Minister has certain functions, and they cannot and should not be usurped. An example is the attempt last year to usurp the functions of the Minister for the Department of the Environment. It would have to be clearly spelt out that no encroachment could be made on the powers of a departmental Minister unless that Minister consented, because the politics of this are very important. You cannot have a Minister from one party come into a department and take part of the departmental Minister’s powers away. That would be very dangerous. So I interpret things slightly differently from the noble Baroness.

All I am trying to do is to find a solution to a problem that I have identified. I accept that the debate should move to Stormont but I wanted to highlight it because a problem exists. It is easily solved. Flooding was an excellent example, but I think that the noble Baroness, Lady Smith, knows that the departmental system at home is very rigorous and substantial in number. Therefore, in trying to resolve some of these cross-cutting issues, we have to look for innovative and creative decisions. That is the rationale for my proposals. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Moved by

[Lord Empey]

8A: After Clause 25, insert the following new Clause—
“Victims and survivors
In Article 3 of the Victims and Survivors (Northern Ireland) Order 2006, at the end insert—“(3) In this Order references to victim and survivor shall not include an individual appearing to the Commission to be any of the following—
(a) someone who is or has been physically or psychologically injured as a result of or in consequence of their undertaking a criminal act in a conflict related incident;(b) someone who was in whole or in part responsible for an unlawful conflict related incident if that person took part in all or any of the planning or execution of that unlawful act.””

[Lord Empey]

My Lords, this is a more sensitive issue. We have had much discussion on the fate of victims and survivors, and one theme has transcended virtually all attempts to resolve it: that many victims and survivors feel that a victim is almost equated with a perpetrator. This amendment seeks to make it clear that any person who has been,

“physically or psychologically injured as a result of or in consequence of their undertaking a criminal act in a conflict related incident”,

is not a victim. It is not clear that that is the present position. Similarly, somebody who was involved in the planning of a conflict-related incident is guilty of an unlawful act and therefore should not be treated as a victim.

From the experience of the Haass process in recent months, and in particular towards the end of last year as we came to the close of the process, it is clear that a huge constituency of people feels, after all this time, that they see on their screens relentless pressure for inquiries, for the state to explain its actions and for the security forces to explain their actions and be accountable for them. Yet the average individual who has been a silent victim feels that they are not valued accordingly. For example, recently some Sinn Fein figures who were actively engaged in the terrorist campaign said, “Well, we are not terrorists or guilty of terrorism”. The implication was that the fact that they shot somebody—as some of them openly admitted they did—does not mean that they were terrorists. I do not accept that. There is a fundamental divide on that issue.

I believe that if somebody voluntarily engaged in a conflict-related act of violence or was involved in the planning of such an act, they cannot be classified or regarded as a victim. This amendment seeks to make that absolutely clear. It is a very modest proposal to set out that there is a difference between those who were actively involved in terrorism as perpetrators and those who were the victims. I beg to move.

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[Baroness Randerson]

I think that noble Lords might agree with me when I say that the noble Lord, Lord Empey, has saved the most complex and intractable issue until last. In a sense, all the other issues we have discussed here today flow from the problems associated with the issue of victims.

The amendment moved by the noble Lord, Lord Empey, relates to the definition of a victim in the context of the role of the Commissioner for Victims and Survivors. Many noble Lords here today will have far more direct knowledge than I about the impact of the conflict in Northern Ireland on people’s lives over more than three decades. I recognise that those of us who do not have personal experience of the conflict must approach this debate with considerable humility and great care. I recognise the concerns that the noble Lord is making clear here today. Like the noble Baroness, I have met people in Northern Ireland who have explained to me the nature of the impact that the Troubles have had on their lives and the result of the conflict in terms of the damage that it has done to them. These are people who still suffer today.

Noble Lords will be aware of the recent talks chaired by Dr Richard Haass, where the right approach to dealing with Northern Ireland’s past was debated in detail. A key element of the approach taken during those talks was that victims and survivors should be central to any efforts to deal with the past. The Government commend the progress made by the parties in Northern Ireland in dealing with these issues during the Haass talks and I hope that progress will continue to be made in the future. As I said earlier in this debate, there are still meetings going on between the party leaders, and the Government remain hopeful that progress will be made.

The noble Lord, Lord Empey, has made a moving argument. However, the Commissioner for Victims and Survivors is the responsibility of the First Minister and the Deputy First Minister. Any change to the definition would require cross-community support in the Assembly. The Government are particularly anxious not to cut across the initiatives in the Haass talks. To address the issue here, in this Bill, might have a negative impact on the ability of the parties in Northern Ireland to develop an inclusive process of dealing with the past. I am sure that noble Lords will agree that the all-party talks, building on progress made by Dr Haass, still represent the best chance of making progress on these matters. In the mean time, I hope that the noble Lord will consider withdrawing his amendment.

[Lord Empey]

My Lords, I take the point that the noble Lord, Lord Alderdice, made about the differences between the recognition of the individual and the provision of services that can be made available to that person as a victim. However, there is a growing recognition that that has been an issue. My party leader, Mike Nesbitt, proposed at the end of last year a new mental health initiative where we could perhaps teach the rest of the world the expertise that we have developed in treating people because, sadly, we will all be facing the downstream consequences of the trauma caused by Iraq and Afghanistan. That will be coming before us and I do not think that, as a country, we have any grasp as yet of the scale of what people will face. Even now, 30 or 40 years after they were involved in the conflict, people, including those in the security forces, are still presenting with trauma. The noble Lord, Lord Alderdice, is a professional in this area and knows perfectly well what I mean.