Northern Ireland (Executive Formation and Exercise of Functions) Bill

Debate between Gavin Robinson and Mike Penning

2nd reading: House of Commons
Wednesday 24th October 2018 Commons Chamber

[Gavin Robinson]

I am grateful to my right hon. Friend for his comment. I think it fair to say that there are a range of views on this issue, and some accord with the description that he has outlined. There are civil servants in the Northern Ireland civil service who have been incredibly courageous during the time that we have not had democratically accountable Ministers.

But there is the rub—the Bill relies solely on the willingness of a senior departmental official who is impervious to direction and impervious to the views of politically mandated, democratically elected representatives and who can decide whether or not they wish to proceed. The guidance is there, but if we go through that guidance fairly, I think we could decide that something is within the public interest or outwith it at our own discretion, and that is a fault.

[Sir Mike Penning (Hemel Hempstead) (Con)]

I will expand more on this in my speech, but this is a critical point to do with the civil service. We can all criticise civil servants. There are good ones and bad ones. But, particularly in Northern Ireland—I experienced this when I was the Minister—the fear of judicial review in the civil service will not be addressed by the Bill. Bravery is fine, but if this Government do not back civil servants, there will still be fears, not about public opinion, but about whether they will be dragged through the courts, which we have seen so many times in the Province.

[Gavin Robinson]

That is a key consideration. The Bill does not insulate civil servants from the prospect of judicial review. We know from our experience in the courts in Northern Ireland, compared with England and Wales, that ultimately it is easier to progress a judicial review in Northern Ireland. Whether for unaccountable civil servants acting in the best interests of the country or democratically elected Ministers serving the people who elect them and the people of Northern Ireland, the challenges in the courts are still there.

The Bill seeks to replicate the understanding that was there prior to the Buick decision. I remember saying a year ago to the Minister of State that the Departments (Northern Ireland) Order 1999 empowers senior departmental officials to take decisions. Ultimately, it was considered by the courts, and the one fundamental ruling they made was that a decision of such regional significance that was controversial and/or significant should be considered by an Executive Committee. The Bill might seek to address that, but it does not absolve anyone from the legal requirement inserted through the Northern Ireland (St Andrews Agreement) Act 2006, which amended the Northern Ireland Act 1998, for consideration over and above the individual Department.

That was a significant safeguard injected into the legislative framework arising out of the Belfast agreement on controversial or significant decisions. In that sense, the Bill empowers civil servants to a greater level than a democratically elected and accountable Minister. That is difficult. That is my reading of clause 3(5), and it is constitutionally a troublesome step. I have to accept the position that the Northern Ireland Office has adopted, which is that it will not provide an overarching mechanism and it cannot empower officials to replace what would have been the Executive Committee, but the Bill is deficient in that regard. I am not sure that the Secretary of State or the Minister of State will be able to answer or provide any solace on that issue.

Some consideration has been given to clauses 1 and 2, on the timescales for the re-formation of an Executive. I will put on record clearly for the hon. Member for North Down (Lady Hermon), in response to the question that she raised, that never once during any of our discussions with departmental officials in the Northern Ireland Office was a date discussed. No date was discussed, and it is not politically driven. Timescales were discussed, but no specific date was ever discussed.