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

Colum Eastwood Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[Mr Walker]

Q How far do you feel this Bill goes to safeguard Executive stability and provide the civil service with the accountability mechanisms they require? Given some of the discussions we have had to date, both in the case of encouraging the Executive to stay together and to stay in place, but also in the case where you might have a First and Deputy First Minister step down and caretaker Ministers, as they have been described, remaining in place, how far do you feel the Bill creates the clarity needed for them to be able to carry out their role?

Sir Jonathan Stephens: I think it does a number of important things. First, it fills in what you might think of as a number of loopholes in the original design of the Northern Ireland Act 1998, which simply did not contemplate the sort of situation in which we found ourselves in 2016.

Secondly, and perhaps most importantly, it provides time and space for the Executive or for party leaders to resolve fundamental differences, if and when they arise. As you will know, the previous scheme provided only for periods of either seven or 14 days for the formation of the Executive and the appointment of the First Minister and the Deputy First Minister. We went through those early deadlines very quickly indeed in 2016. We were left in the unprecedented situation of having no means of restoring the Executive without fresh legislation at Westminster.

It is important to say that these changes provide a number of mechanisms that will help in the resolution of fundamental differences, if they arise again. They provide greater assurance for continuity of decision making, but, of course, nothing is perfect. I have always thought that if there is absolute determination to bring about the collapse of the institutions, or such a deep and fundamental breakdown in trust between the parties that they cannot be restored, then no amount of clever constitutional provisions will get over such a fundamental breakdown.

[Colum Eastwood (Foyle) (SDLP)]

Q It is a pleasure to serve under your chairmanship, Sir David. It is good to see you, Jonathan. I spent many long hours over that three-year period in your company, and thankfully we got there in the end.

Do you think it is fair to say that the New Decade, New Approach agreement was largely imposed by the two Governments at a very opportune moment in the political process? The three largest parties had had a difficult election. We had a nurses’ strike and then the two Governments struck, and got Stormont back up and running again. That goes to the heart of your point that if we do not have political parties willing to work the system and work together, no clever constitutional construct can stop them collapsing it. Do you think there is more that we could have done as part of those discussions? I am particularly thinking about the way in which the First Minister and the Deputy First Minister are appointed.

Sir Jonathan Stephens: I would not use the word “imposed” because, at the end of the day, it was the decision of all the main parties in Northern Ireland to re-form the Executive. Yes, it was on the basis of the proposals put forward in New Decade, New Approach, but each party was free to take its own decision on that. From my point of view, when the document was published there was no certainty as to how parties would react and whether it would provide a basis for forming the Executive. We very much hoped so, but there was no certainty.

It reflected extensive discussions, of which a number of people on the Committee will have close memories, over many years, but most recently over the period of months from the calling together of the most recent session of talks, following the tragic murder of Lyra McKee. Again, there was very strong input from the parties. Although the proposals were the proposals from the Governments, they reflected very considerably the input of the parties. They were our best judgment as to where agreement lay.

On the First and Deputy First Ministers, I am conscious that parties have a number of different views on that. There are a number of parties that think that the original arrangement under the Good Friday agreement for the election of the First and Deputy First Ministers on the basis of cross-community consent should not have been changed after the St Andrews agreement. Other parties who were critical of the St Andrews agreement formed and participated in devolved government on the basis of that.

The Good Friday agreement was now more than 20 years ago. It was designed with one situation and set of scenarios in mind. As ever, the world moves on and change comes. It is coming in Northern Ireland, and there will come a time when it will be right to look at some of the fundamental arrangements within that agreement and consider whether they still best serve the people of Northern Ireland and adequately reflect the current situation in Northern Ireland. However, that would be quite a major task to undertake, with possible renegotiation of key aspects of the agreement. It is not a task that, personally, I think is quite right for now.

[Stephen Farry (North Down) (Alliance)]

Q It is a pleasure to serve under your chairmanship, Sir David. A very warm welcome to you, Sir Jonathan. I will largely pick up on your answer to the questions posed by Colum Eastwood. You are one of the very rare officials with long experience of Northern Ireland over several different stints in office, so you have that wider perspective. You indicated that there might be a need to revise the rules around the institutions at some stage. Do you feel there is a danger of the Northern Ireland Office almost operating on a reactive basis after a problem has actually arisen and then trying to patch it up, amend it and move on for a few more years before going back to the next crisis? Is there not an argument for trying to be a little bit more proactive and anticipate where pressure points are likely to emerge, to assess how society is changing and to act accordingly? In that regard, should we look at some of the rules around the election of the First Minister and Deputy First Minister, particularly in the light of the democratic change that we are seeing in society?

Sir Jonathan Stephens: In a sense, I agree with you, Mr Farry. I was indicating earlier that there had been significant change in Northern Ireland. At the time of the Good Friday agreement, the assumption was that there was a Unionist majority community, a substantial nationalist minority community and a relatively small but steady component who did not identify with the others. Since then, the situation has changed. It is more like two substantial minorities with a much larger, more significant and growing number of people who choose not to identify with either.

Over time, I think that will mean that a number of the arrangements need to be looked at again and examined. I am just conscious, having participated in a number of those discussions over the years, that that is not an easy task. It takes up a huge amount of political energy. Yes, there is a lot to be said for anticipating, rather than reacting to, crises, but Governments across the world, not least in Northern Ireland, have a number of crises right now to respond to. I simply suggest that right now does not seem to me to be a good time to undertake that significant and mammoth task, but I would be surprised if at some point in the next 10 years it is not on the agenda.

--- Later in debate ---

[Gavin Robinson]

Q Perhaps just one final question from me, Sir David, if you have a rake of colleagues now hoping to jump in. Questions have been raised around the lack of detail on safeguards for Ministers who find themselves remaining in position where the Executive is not fully functioning. Do you have any concerns about the provisions as drafted in the Bill, or do you feel that the safeguards from the St Andrews agreement around significant, cross-cutting and controversial decisions are sufficient in the circumstances?

Emma Little-Pengelly: I think that Northern Ireland have found themselves in this position on previous occasions, and in fairness, on those occasions all Ministers have respected that an Executive is not in place, and largely abided by and operated under the decisions previously agreed by it. I agree completely with what Sir Jonathan Stephens said on the safeguard of the courts, but as we know, the court process is long; it requires somebody to take a challenge and often ends up in Ministers taking legal challenges against Ministers.

I would have thought, though, that there is an additional safeguard in that Ministers in Northern Ireland are required to operate lawfully—they cannot step outside of that. If a Minister wanted to take a decision that was significant or controversial or cross-cutting, it is very clear from both the jurisprudence and the legal cases on this, and in terms of what was said at the time of the passing of the Northern Ireland (St Andrews Agreement) Act 2006, that a Minister has no power—there is no vires for a Minister to take a decision that ought to have come to the Executive under the terms of the St Andrews Act amendments. Therefore, a Minister could not take a decision on a significant, controversial or cross-cutting matter, unless that had already been agreed by the Executive.

In the situation that you have outlined, Gavin, there would be no way to form an Executive. Without the First Minister and Deputy First Minister, you cannot have an Executive meeting and therefore those decisions cannot be decided on because an individual Minister does not have the power or the vires to do that. Therefore, he would be operating ultra vires. I presume that the permanent secretary or the accounting officer of that Department would advise the Minister of that, and that the Minister could not proceed because that would be unlawful under those circumstances.

[Colum Eastwood]

Q Thanks for your evidence, Emma. You are absolutely right that the Democratic Unionist party pushed very hard for a lot of the provisions around sustainability during the negotiations, and some of us had some concerns about it, but I absolutely agree with you that there have to be some mechanisms for keeping the show on the road. Nobody should be threatening to pull down institutions. Of course, it was Sinn Féin that walked out the last time. Does that go as well for the DUP when it comes to issues like the protocol?

Secondly, you and I will disagree about the purpose of the petition of concern and when it should be used and so on. You have said, now that Unionism is no longer a majority, there are moves to take away safeguards like the petition of concern. What did you think, then, when Arlene Foster suggested removing it as a mechanism altogether during the negotiations?

Emma Little-Pengelly: First, to be fair to the Democratic Unionist party, I should make it clear that I am not here as a spokesperson for the DUP, so I cannot comment on the particular issues of the current situation. What I can say is that the DUP, along with many others, has, over the years since the Belfast/Good Friday agreement, pushed for a better form of government, as you will be aware, very much around trying to put better democracy in that and a better system that is not so slow or difficult to try to get agreement through.

There is a real issue around protections and safeguards. It is notable that the petition of concern is in the safeguard section. It does apply to all key decisions. That is the system that was set up—purposely difficult, I suppose, one might say—to ensure that there was maximum buy-in. What we are rapidly seeing is that people now have a particular policy proposal, they get the majority for it and they want to push that forward, against the will of significant sections of the other community.

People need to get back better to fundamental consensus policy making. Potentially we have lost that over the years. As I said, it is slow but there is a benefit to that. When you look back to the original point about intent, it is important to point out that equality and human rights are very well protected, cooked in right across the system.

If you look back to the narrative around the Belfast/Good Friday agreement, including the discussions and the debates in the House of Commons on those matters, you will see that the key safeguards lay with the establishment, under the agreement, of the Equality Commission for Northern Ireland and the Human Rights Act, which at any time can give advice or perhaps even take a legal challenge against a Department or the Northern Ireland Assembly—certainly give advice on that.

Importantly, the Northern Ireland Assembly is set up but it does not have competence to deal with matters that would be in contravention of the European convention on human rights or equality legislation. I understand that your evidence will go on next to the Speaker. The Speaker will have a legal team, so it is not even a case of a discretion. The Northern Ireland Assembly, certainly even set down in the agreement and the Northern Ireland Act, emphasised and safeguarded even further in the Human Rights Act 1998, has no power to legislate in a way that is in violation of that. A piece of legislation should never be introduced where there is a decision by the Speaker’s legal panel that is in contravention of that.

What we have seen subsequently is that people will have a range of views about whether something is a breach of human rights, which is very different from whether it is legally a breach of human rights. Of course, that is an evolving issue. There are safeguards there already, but I would also point out that the party of which Mr Eastwood is a member did not raise any concerns about the scope of the petition of concern at the time of the passing of the Northern Ireland Act, nor in the first decade of the Northern Ireland Assembly’s operation, and the operation of the petition of concern. This is an issue that has emerged over the past number of years, on the briefing from the likes of CAJ and others. There was no indication on the record—Hansard or elsewhere—that there was a concern about this.

To go back to the Belfast/Good Friday agreement, the obligations under strand 1 5(d) are completely separate from the obligations under strand 1 5(c). They are severable. Of course, they can be linked through the special process, which has already been outlined to you, but they are separate. It is very clear from both the spirit and the detail of the Belfast/Good Friday agreement that cross-community consensus was to apply to all key decisions.

[The Chair]

If there are no further questions, I will bring in the Minister again.