Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (First sitting)

Alex Davies-Jones Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[The Chair]

Thank you, Minister. Before I move on to the official Opposition, I remind members of the Committee of the point I made before we started—that tea and coffee cannot be consumed during Committee hearings.

[Alex Davies-Jones (Pontypridd) (Lab)]

Q It is a pleasure to serve under your chairship, Mr Stringer. Mr Holder, I will come to you first, as the representative of the Committee on the Administration of Justice. The CAJ has done work in the past on the importance of the undelivered Good Friday agreement commitments and the role that, had they been implemented, they would have played in the stability of the Executive over two decades. Would you outline your thinking and your research on that?

Daniel Holder: Thank you very much. We have engaged both as CAJ and as part of the Equality Coalition, which represents a broad section of groups from across the sector. In 2013 we published a report called “Mapping the Rollback?” about the unimplemented commitments of the peace agreement, 15 years on from the Belfast agreement. It examined and produced a matrix of what had not been implemented and the problems that had caused in terms of a return to some of the patterns and practices—for example gerrymandering within housing—that had beset the previous, pre-troubles Stormont institutions.

We also produced in 2018, as a part of a coalition, what we call the “Manifesto for a Rights Based Return to Power Sharing,” which looked at the restoration of power sharing but in a manner that power sharing would not simply be restored only to collapse for exactly the same reasons that led to its implosion in 2017. That was largely beyond the renewable heat incentive issue; it was issues around rights deficits, sectarianism in decision making and a lack of safeguards to qualify Executive power in the way that the agreement originally intended.

This year, 23 years on from the agreement, we did a significant stocktake on the back of the “New Decade, New Approach” report. We again mapped the level of non-implementation of commitments in a matrix and pushed on a call to end this endless cycle where we have renegotiation and fresh agreements, then bodies reneging on the commitments and the agreements, and we end up going back into an almost endless cycle of renegotiation. We looked specifically at some of the decisions that had been instrumental in bringing down power sharing and how they could have been prevented, for example if the Bill of Rights had been in place.

[Alex Davies-Jones]

Q You mentioned the Bill of Rights, which is a reserved measure for Westminster. Why is it so important for the stability of the Assembly and the integrity of the Good Friday agreement?

Daniel Holder: I think the best way of answering that is to give a couple of examples. In 2017, when the Assembly collapsed, one of the straws that broke the camel’s back was what was called the líofa decision, from the Irish word for fluency. This was a decision made by the then Minister for Communities, who is currently the First Minister, to cut quite a small Irish language bursary scheme—I think it was around £50,000 —that enabled children from lower-income families to attend the summer gaeltacht schemes. That caused a huge outcry; the decision was widely seen as sectarian and it was one of the issues referenced in the Deputy First Minister’s resignation letter.

All we have to do is look back. In the same way that Ministers are very unlikely to breach the European convention on human rights because they know that would be unlawful, had the Bill of Rights been in place that decision would have been easily challengeable as unlawful. I am thinking about a Bill of Rights as in the advice of the Equality and Human Rights Commission that was delivered in 2008. A Bill of Rights that reflected that advice would have had a provision that outlawed discrimination, for example, on the basis of language. Given the background, such a Bill of Rights would have prevented such a decision from happening.

That was not the only Irish language decision that destabilised power sharing. There was a decision, again primarily by a number of Democratic Unionist party departments—the biggest impact was certainly from the Department of Education—to tear up a long-standing trilingualism policy that was in keeping with the United Kingdom’s human rights commitments under the European charter for regional or minority languages. That is the Council of Europe treaty that was signed as a result of the Belfast agreement, with specific provisions for the Irish language and the Ulster variant of Scots. The Bill of Rights would have made that enforceable in Northern Ireland, so decisions by DUP Ministers in, say, the Department of Education or the Department of Agriculture, to scrap those policies and introduce English-only policies would not have been compatible with the UK’s international human rights commitments and would have been directly enforceable through a Bill of Rights, so that would not have happened.

Equally, many discussions have sapped energy out of the Executive discussion, because we have an endless cycle of very basic things that are present elsewhere in the UK being blocked. An example would be single equality legislation. There are big gaps in the equality law framework in legislation to prevent age discrimination against children, for instance, or provisions around harassment in the workplace on the basis of sexual orientation. These types of things have been endlessly argued about and endlessly vetoed, yet they would have had to already be in place by virtue of the Bill of Rights. It would have taken contentious issues off the table and enshrined them in what would essentially be equivalent in other countries to a constitutional framework, or the equivalent to what the Human Rights Act provides for convention rights. We think that would have provided a much more solid basis for power sharing, where a lot of these misuses of power could not have taken place.

[Alex Davies-Jones]

Q Thank you. This is my final question to you. NDNA is just the latest agreement that is easier to achieve than it is to implement. Should Ministers be accountable for implementing the agreements that act as the scaffolding for the peace process?

Daniel Holder: Yes, we need mechanisms that ensure implementation, whether they are legal mechanisms, dispute-resolution mechanisms and so on. As the two exercises that we conducted show, both in 2013 and more recently, we end up in the endless cycle where agreements are made, significant provisions are reneged on and not implemented, and we have to return to another negotiation, usually to water down what was originally agreed in a previous negotiation. It is incredibly frustrating and makes the institutions unworkable and dysfunctional.

[Alex Davies-Jones]

Q Thank you, Mr Holder. Professor Tonge, I will come to you next. The briefing accompanying the Bill says that Ministers in the caretaker Executive would be operating within well-defined limits, but those limits are not outlined. Is that a concern? Are there examples of how those limits could be better identified?

Professor Tonge: Yes, I think that is a serious concern. New Decade, New Approach refers to “caretaker Ministers” but that term does not appear in the explanatory notes to the Bill. During the debate on Second Reading, the only definition of powers afforded to caretaker Ministers were those

“set out in the ministerial code and in accordance with the requirement for an Executive Committee to consider any decisions that are significant, controversial and cross-cutting.”—[Official Report, 22 June 2021; Vol. 697, c. 821.]

That is an Executive Committee, please note. That definition begs far more questions than it answers. First, what ministerial decision is insignificant? That is an obvious question to ask. Secondly, the formation of the Executive Committee is a moot point. It is far from clear in the Bill whether there would simply be a collection of individual Ministers, remnants from the previous Assembly and Executive, left in place for up to 24 weeks after the election, but d’Hondt is not run to re-establish those Ministers post-election. Obviously, the composition of the Executive Committee may change substantially if there is a change in party fortunes at that election.

Let us assume that the pre-election Ministers are left in place for up to 24 weeks. First, there is a democratic element: is that correct, given that the electorate might have spoken in a different way? More substantively, in terms of powers, is the question you asked: which ministerial decisions will they be able to take that are significant, controversial or cross-cutting? Will they be able to take decisions with financial implications in a caretaker capacity? I would seek clarification of those points from the Minister, because I am far from clear. The right hon. Member for East Antrim used the phrase “lame duck Ministers” during that 24-week period. It would be interesting to see what specific powers they will be able to use during that period of up to 24 weeks.

[Alex Davies-Jones]

Q The purdah restrictions for local government operate under the Local Government Act 1986. They prevent the local authority from publishing

“any material which, in whole or in part, appears to be designed to affect public support for a political party.”

The rules governing purdah in the UK Government are outlined in the Cabinet manual, and civil servants inform their permanent secretaries if any requests by Ministers raise issues. Do you think that the Bill will provide civil servants with enough legal scope to push back on Ministers making inappropriate requests during a caretaker Administration?

Professor Tonge: Yes, I am comfortable about the Bill’s provisions in that respect. Actually, I think the most comprehensive part of the Bill is the updating of the ministerial code. It makes clear the need for the separation of party political from ministerial matters. In that respect, I am quite sanguine about the Bill doing exactly what you suggest.

[Alex Davies-Jones]

Q Do you think that the Bill should set out how the code of conduct should be enforced?

Professor Tonge: Therein lies a much bigger area: how the code of conduct will actually be enforced, what will happen and whether we will simply see the traditional divide on party lines over its implementation.

There is one phrase in the code of conduct that slightly alarms me:

“Ministers must…operate in a way conducive to promoting good community relations”.

No further definition is offered. What would constitute promoting bad or offensive community relations, as distinct from good community relations? To give one example, would a Minister who criticised Irish language provision while still implementing it be in breach of the code of conduct? Similarly, if a nationalist Minister praised aspects of a paramilitary campaign of the past, would that be seen as non-conducive to good community relations, and would sanctions against that Minister be available? It is far from clear, partly because it is ultimately a matter for the Assembly and the Executive to decide how to impose sanctions.

I think that what is contained in the Bill is very laudable in updating the ministerial code, but the devil will be in the detail of implementation. Whether implementation is actually possible in terms of sanction against a Minister who is seen to be in breach of the ministerial code—I think that that is where the difficulty will lie. I am not convinced that Westminster can necessarily resolve that difficulty.

[Alex Davies-Jones]

Q Under the current wording,

“the Secretary of State may”—

only “may”, rather than “must”—

“issue a certificate”

outlining the date for a poll, even if the conditions for cross-community representation are not met. Do you think that that is a mistake? Is there a risk of undermining the principles of the Good Friday agreement if an Executive drawn from one community is able to limp on at the behest of the Secretary of State?

Professor Tonge: I think that there has been a lot of limping on in the Assembly and Executive over the years, and there has been an arbitrariness about when a poll should be called. We have had, in effect, two pieces of emergency legislation by previous Secretaries of State to prevent an election from being called and to update the rules because an election was due.

In a broader sense, I welcome the fact that the current time periods of either seven days or 14 days are being extended to either 24 weeks or 48 weeks, to keep the show on the road. You simply cannot afford another collapse. I understand the principles behind the Bill, so I do not think that we need to be too formulaic about giving the Secretary of State some discretion in that respect. The main purpose of the Bill is clear here: to allow greater cooling-off periods before another election is called. If that means giving the Secretary of State greater flexibility, so be it.

[Alex Davies-Jones]

Q A final question, Professor Tonge. At the moment, the First Minister and the Deputy First Minister must be drawn from the two traditions: Unionist and nationalist. Do you believe that this integral feature of the Good Friday agreement is at risk of becoming outdated if a party representing neither achieves sufficient support? What do you think could be done to remedy that?

Professor Tonge: I think it is outdated. It may soon look very outdated, depending on the performance of Alliance in the Assembly election that has to take place by 5 May next year.

The communal designations more broadly are period pieces; they were of their time, and they were necessary in their time. Is the Assembly ready for the complete abolition of communal designations? It would be a bold step, but it would probably be laudable. You could still build in protections. The obvious way forward, if you get rid of communal designations, is to have qualified majority voting, where, for example, any controversial measure would have to be passed by 70% of the Assembly as an entirety. There is something horribly reductionist in requiring parties in the “centre ground” to designate as “Other”; I know that Alliance refuses to use the term “Other”, as reductionist, and use that term as a “community first” label.

Have the communal designations served their purpose? Yes, over time, but I think there is now a clear case for a fundamental review of Assembly rules to see whether it is still necessary to have those Unionist and nationalist designations. Particularly if you got to the position after the next Assembly election in which you had a First Minister from the largest party and the largest designation who may be nationalist, but for example, Alliance was to be the second largest party, but because it was not from the next largest designation it was not able to provide a Deputy First Minister, the case—which is already mounting—for a reappraisal of the rules would become quite overwhelming.

You can make the case against that by saying, “If you look at the recent Assembly elections, you’ve got 85% of voters still voting for Unionist or nationalist parties”, or certainly in excess of 80%. However, if you look at the electorate as a whole, when we have done the last four Northern Ireland election surveys, the largest single category of elector now—as distinct from voter—is a person saying they are neither Unionist nor nationalist. The life and times survey from two different universities shows exactly the same. That is the largest single category: bigger than the Unionist category, bigger than the nationalist category. The Assembly rules as they are are in denial of that.

You might say, “Well, the percentage of actual voters who are still Unionist or nationalist is still high”, but in terms of the electorate as a whole, there is a case for reform of the rules, and the fact that you have those communal designations is a deterrent to people voting in Northern Ireland who say they are neither Unionist nor nationalist. When we ask non-voters the question, “Why didn’t you vote in the last election?”, those communal rules come across loud and clear as one of the most significant deterrents to people participating in the electoral system, so in terms of the health of the body politic, I think there is a growing case for getting rid of the communal designations. Whether Unionist or nationalist politicians would concur with that is a very moot point.

[Alex Davies-Jones]

Thank you, witnesses; thank you, Chair. No more questions from me.

[The Chair]

Thank you. James Sunderland, and could you state which of the witnesses your question is to, or whether it is to both of them?

--- Later in debate ---

[Mr Walker]

Q Finally, as I want to give Members the opportunity to ask questions, you previously worked in the Chief Whip’s Office before coming to the Northern Ireland Office. What do you think are the benefits to introducing this legislation on non-emergency timings? Can you recall when we last had non-emergency legislation for Northern Ireland?

Lilah Howson-Smith: It is exactly the point that you make in your question. We have had to rush bits of Northern Ireland-related legislation through, in part because of the absence of power sharing. You have the Executive formation legislation, which was always done on an incredibly tight timescale. I think rightly, some of the Northern Ireland parties objected to that, on the basis that perhaps there was not adequate scrutiny. More recent bits of legislation around victims’ payments and abortion, which we were involved in implementing, were also incredible difficult to implement because there was not broad consensus or buy-in from the other parties through a longer-term legislative process.

There is definitely an advantage to taking this bit of legislation through in slightly slower time, so that we can have discussions like this where we are able to discuss where things are missing or not clear, or can be clarified through implementation.

[Alex Davies-Jones]

Q Lilah, from your experience of the negotiations, was it envisaged that there would be ambiguity on what constituted sufficient cross-community representation in a caretaker Executive?

Lilah Howson-Smith: I understand that perhaps there is not total clarity about what that means. I think the point was that it was supposed to be agreed by the Executive once the legislation was taken forward by Westminster. The fact that the legislation is being taken forward by Westminster reflects the fact that amendments have to be made to the Northern Ireland Act 1998 and that this part falls within a reserved area, rather than the fact that there will not be an active process, I assume, with the Executive to discuss what this means in reality. I think there was tacit or implicit agreement between all the parties that there would clearly need to be clarity around that, and that there would be checks and balances on the fact that Ministers obviously would not be able to take decisions in a caretaker capacity that went beyond the normal remit of perhaps the types of decision that might be taken during a purdah period.

[Alex Davies-Jones]

Q Are you concerned that the scope of powers is not clearly defined, allowing for an Executive, for example, to limp on without broad cross-community support but still be able to make significant decisions?

Howson-Smith: The intention was never that they would be able to make—yes, it depends how you define significant decisions, but the intention was always that there would be sufficient checks either within the Executive or by the Secretary of State that would mean that there was not the kind of significant decisions that would have broader implications for the cross-community nature of those decisions. I am concerned that you have characterised it as limping on. I take your point, but the reality is that it was supposed to just provide that bit of additional flexibility to the Ministers and in forming the Executive, where those decisions have been difficult to make or have not happened because the time periods are so short and perhaps it was not in everyone’s political interest to form an Executive within that short period of time. So yes, obviously, there is a flip side to that, but clearly there is also opportunity to avoid the type of situation that we fell into in 2017, where an Executive just is not formed for a long period of time because there is an election and then there has to be a series of talks processes to get the Executive and the Assembly back up and running.

[Alex Davies-Jones]

Q Is there anything, from your experience, that did not make the cut in NDNA that you think would have been valuable in terms of the sustainability of the Executive?

Howson-Smith: In terms of the petition of concern, I do have some worries that perhaps we did not necessarily go far enough in ensuring that, for example, petitions of concern are not tabled on Bills that are allowing the Northern Ireland Executive to take border legislation that is compliant with human rights. For example, petitions of concern were previously used—or were likely to be used—on issues around abortion and that was a concern for me, that perhaps those measures did not give adequate protection. On that specific issue, Westminster is taking forward legislation and we are now in a process of implementation. However, there were some suggestions about potentially having more oversight from human rights bodies in that petition of concern process. I do not think that that necessarily would have been a bad thing. I think that would be quite valuable, given the previous types of things the petition of concern has been used for. However, I hopefully think that the changes that are in there will make parties and MLAs think twice about using petitions of concern in that way again.

[Alex Davies-Jones]

Q Finally, as I also want to give other Members the opportunity to ask questions, what statutory provisions currently exist to prevent the misuse of powers available to caretaker Ministers?

Howson-Smith: As far as I understand it, there are no statutory limitations.

[The Chair]

If there are no further questions from Members, I thank the witness for that interesting and valuable contribution.

Ordered, That further consideration be now adjourned. —(Scott Mann.)