Northern Ireland (Miscellaneous Provisions) Bill

Debate between Lord Empey and Lord Alderdice

Tuesday 4th March 2014 Lords Chamber

[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.

Northern Ireland (Miscellaneous Provisions) Bill

Debate between Lord Empey and Lord Alderdice

Tuesday 25th February 2014 Lords Chamber

[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.

Northern Ireland (Miscellaneous Provisions) Bill

Debate between Lord Empey and Lord Alderdice

Monday 3rd February 2014 Lords Chamber

[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.

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[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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[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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[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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[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.

Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2011

Debate between Lord Empey and Lord Alderdice

Monday 4th July 2011 Lords Chamber

[Lord Alderdice]

My Lords, I am grateful to my noble friend for outlining the background to the order. I should like to pick up one or two of the comments. Like other noble Lords, of course I regret the fact that it is necessary for this order to come forward again. Perhaps, particularly today, noble Lords might expect me to say that such a thing should not be necessary. In the final IMC report published today, we have said again that it is time for peace process institutions to pass into history and for the proper administration of politics and the rule of law to take place under Northern Ireland authority by Northern Ireland elected representatives.

I and my colleagues very much stand by that but it does not necessarily mean that the particular process to which we are referring today should be set to the side immediately. I want to take that a little further. It is clear that there are those in Northern Ireland on the republican side—we sometimes call them dissident republicans—who simply are not persuaded that political arguments should not be made through threat or actual use of violence. They continue to believe that. For a very long time there have been people who have taken that view in Ireland, north and south as well as elsewhere.

As the noble Lord, Lord Maginnis of Drumglass, said, it is also clear that there are those in the loyalist community who continue to use violence. With regard to them, I see little evidence that there is any political agenda at all. It is very much about self-aggrandisement and crime. In some cases it is a kind of incipient attack on the police and the historic inquiries team, because some of them simply do not want their past crimes to catch up with them. They want to foment violence, trouble and sectarianism within their own loyalist community.

My difficulty, and I think my noble friend will agree, is that despite the fact that the previous Government indicated that a more substantial process would take place, the consultation was very limited. It seems to me that, the next time round, there needs to be a much more substantial consultation at a much earlier stage. Over the past number of years the majority of people—and I say this from my experience in the IMC—have been increasingly prepared to come forward to give evidence and material, to participate in juries and so on. However, I am not wholly sure that we will get to a place in the next two years, or perhaps even a little longer than that, when there will be no fear and no reason for fear in the community.

It seems to me that there is something fundamentally unsatisfactory about telling ourselves that in two years it will be fine; in two more years it will be fine; and in another two years it will be fine. We know how long the provisional can stay and that it can become rather permanent. I do not think that that is satisfactory. I wonder whether the notion of non-jury trials is such that they will have to be with us for quite some time. They are not for widespread use—we are talking about only a dozen or perhaps two dozen individuals over a period of 12 months. However, it is still a significant number.

I come back to a matter that I and colleagues in the Alliance Party have spoken about in the past—that in such non-jury trials a number of judges might sit together, not on the basis of a two-year order but perhaps on a longer-term basis in circumstances where it proved necessary. We have seen such circumstances in the Megrahi trial, for example, which was a three-judge court, with appeal to a five-judge court.

In the past, the argument made by the judicial authorities in Northern Ireland when there were a very large number of cases was that it was completely impossible as the number of judges required would make it completely impractical. There was some force in that argument. However, where we are talking about a very small number of cases it does not seem unreasonable to believe that the judiciary in Northern Ireland might be able to sustain the numbers required. In theory the Diplock courts were unsatisfactory; in practice complaints about justice during the Troubles were more about perverse outcomes such as the Birmingham Six and the Guildford Four, which were jury trials, rather than the actions of judges in Northern Ireland. It says a great deal about the calibre of the judges in Northern Ireland over many years that there were not an enormous number of complaints. In principle it was not satisfactory but in practice there was relatively little complaint.

[Lord Empey]

I want to make sure that I understand what the noble Lord is saying. Is he saying that instead of coming back in two years’ time for another renewal, which in theory could go on indefinitely, we move to a transition proposal? As Dr Johnson said, there is nothing as permanent as the temporary. In other words, would this become a transition period rather than simply coming back in two years for renewal? Was the noble Lord saying that his proposal for multi-judge courts would be a transition to where we would all want to be with jury trials?

[Lord Alderdice]

As ever the noble Lord is alert and well ahead of the argument. There is a case that, rather than waiting for two years, when we would have little opportunity but possibly a modest consultation and a repeat of the order, perhaps after only one year there could be a much more serious consultation process that would look at the question of whether a more substantial change might be made. For example, a more permanent arrangement which had three judges sitting in such non-jury cases might be considered. I say “after only one year” because quite clearly it would require substantial primary legislation that would require serious consultation and thought. However, I feel that it would not be good for us to get into a position where every two years we repeated this because we could not think it through properly. It is much better to come back for a proper consultation, not with just 11 returns but with a more substantial debate which gave time for proper primary legislation. I fear—from my own experience and I rather suspect that of other noble Lords with experience in Northern Ireland—that those on the loyalist side and the republican side who may be prepared to threaten juries and otherwise use threats and intimidation may not disappear in two years or four years or six years. Some of the cases of violence in the last little while will take quite a while through the process.