Northern Ireland (Miscellaneous Provisions) Bill

Lord Alderdice Excerpts

Monday 3rd February 2014 Lords Chamber

[Lord Lexden (Con)]

My Lords, I attached my name to this important amendment readily and enthusiastically. I very much agree with my noble friend Lord Empey that a firm, statutory basis should be provided through this Bill for the creation of a formal Opposition with the appropriate rights and privileges if and when the Northern Ireland Assembly should wish to bring it into being. This proposal has been formulated by my noble friend, drawing on his deep knowledge of the Assembly in which he served and of the Executive, of which he was a distinguished Member. It has attracted widespread interest and no small measure of support in Northern Ireland, as recent comments in the Ulster press have indicated, comments to which my noble friend has referred. Within the Assembly itself, advocates of the need for an Opposition are making themselves increasingly heard. They do not believe that the Assembly should remain in perpetuity the only legislature in these islands in which the Government face no Official Opposition who could hold them publicly to account.

Speaking as a staunch Conservative and Unionist, I am convinced that my noble friend’s proposal should, through his amendment, be incorporated into this Bill. Over the years, I have always been inclined to back forward-looking measures proposed by members of the Ulster Unionist Party, with which my party was closely allied for the best part of 100 years until the relationship broke down after 1972. My noble friend, as chairman of the Ulster Unionist Party, has done much to encourage closer contact with Conservatives once again. Indeed, at the previous general election, Conservatives and Ulster Unionists in Northern Ireland stood on a common platform. It included the following statement:

“Over time we would like the institutions of Northern Ireland to evolve into a more normal system with a government and opposition. But we recognise that any changes are for the future and will only come about after full consultation and with the agreement of the parties in the Assembly”.

This amendment seeks to give effect to that Conservative and unionist commitment.

However, the amendment has not been brought forward in any narrow party spirit. My noble friend has made clear that it rests on a conviction that the prospects of political progress would be assisted in the longer term if the Northern Ireland Assembly had available to it the power to establish an Official Opposition on the basis of primary legislation passed in this Parliament. As he said, that would give any Opposition who are called formally into existence a greater independence and strength than one established under the Assembly’s current standing orders, as is perfectly possible. All the central elements of the Assembly, including the arrangements for the appointment of chairmen and deputy chairmen, and for the modus operandi of the committees themselves are enshrined in schedules to the Northern Ireland Act 1998. The role and functions of an Official Opposition are obviously no less important. They, too, should rest on a statutory basis.

I have stressed that the amendment reflects no narrow party political interest. I hope that it will attract support throughout the House as a measure which seeks to encourage a significant useful step forward in the government and law-making processes of Northern Ireland without in any way dictating to the Assembly or attempting to impose a timetable for change upon it. Should we not seek to give the Assembly firm, open encouragement to move in a direction that we believe to be right at a time that it believes to be appropriate?

During Northern Ireland’s first period of devolved government after 1921, Parliament at Westminster gave no advice and guidance and ignored Northern Ireland for more than 40 years, with disastrous consequences. We must not repeat that terrible error, as my noble friend Lord Empey has often reminded us. Here, in this amendment, lies an opportunity to offer a view on a crucial aspect of Northern Ireland’s political future and to provide the means by which progress towards it could be achieved. When my noble friend on the Front Bench comes to reply to the debate, I hope she will be able to indicate that the Government will give this amendment sympathetic consideration, paving the way for the incorporation of its extremely important objective in the Bill itself.

[Lord Alderdice (LD)]

My Lords, I should like to pick up on the latter part of the helpful speech of my noble friend Lord Lexden. He reflected on the fact that ignoring the problems of Northern Ireland from 1921 onwards turned out to be disastrous not just for Northern Ireland but, indeed, for the United Kingdom. Therefore, I support the notion put forward by the noble Lord, Lord Empey, my noble friend Lord Lexden and, indeed, the noble Lord, Lord Trimble, that the question of opposition within the Northern Ireland Assembly requires attention.

Indeed, if one looks back at the period up until the breakdown of Stormont, I think it is true that in the whole of that period only one person occupied an executive position who was not a member of the Ulster Unionist Party. That was the right honourable David Bleakley from the Northern Ireland Labour Party, who was for six months the Minister of Community Relations in the very late stages of that unionist Administration. That represents the problem. Those who wanted to be in government were denied that opportunity and were kept in permanent opposition. This was very much to the fore in the minds of everyone during the negotiations on the Good Friday agreement—how to make sure that those who wanted to be in government but had a permanent minority status could participate in the Government and share responsibility. It was not in the minds of anyone at that time to insist that people had to be in government; the problem was the blockage as regards getting into government.

There were many other things that were not clear in the minds of some of those involved. For example, I think it is probably the case—I see that the noble Lord, Lord Trimble, is not yet in his place—that the leadership of the Ulster Unionist Party and of the SDLP, which were the two largest parties within unionism and nationalism, scarcely at that time conceived that they might not continue to be the two largest parties. Of course, the situation changed dramatically. When the new institutions were constructed, instead of bringing people together across the community divide, they promoted strength within the two sections of the community. Not only did they not provide for an official status for an opposition but they did not provide for a proper status for those who did not want to describe themselves as unionists and nationalists. Instead of the cross-community voting system being as I and my colleagues tried to promote, with a need for a two-thirds majority to form an Executive, it was decided that they needed a majority within both the unionist and nationalist communities and a majority of the whole. That made it very difficult for people to appeal across the community divide and to have a proper and reasonable status for those who did not want to consider themselves either unionist or nationalist. Once one moved down that road one created a real problem for any formal opposition status.

What the noble Lord, Lord Empey, said about the absence of an Official Opposition being a problem is true. He is right to raise it and I support the fact that he has raised it. I hope that my noble friend the Minister will be able to indicate to us that the Government will take this matter seriously as we go through the remaining stages of the Bill. Does this way of addressing the problem achieve what the noble Lord, Lord Empey, and his colleagues want? First, the noble Lord has rightly said that it would be perfectly possible under standing order arrangements to be made in the Assembly for there to be a position for the Opposition. That is the situation in this Parliament and it would be perfectly possible. However, he made the point that the two largest parties as they are at present probably have little motivation to support such a thing. That is quite true but that is also true of the amendment before us as it requires the two largest parties with the majority in the Assembly to sign up for this. It does not give the Secretary of State the opportunity to push it. I understand why the noble Lord does not want in any sense to suggest that there should be imposition from outside. The people of Ireland, north and south, respond particularly badly to being pushed in any direction at all, even one they would agree with if left to themselves. Nevertheless, the great vulnerability of the proposition he puts forward is that it does not take us much forward beyond what the Assembly could do itself if it chose to do so.

My erstwhile colleagues in the Alliance Party tried to play a role as an Opposition when they did not have sufficient support to get a ministerial position. Undoubtedly, they felt that the speeches they made and the stances they took were constructive. However, the observation they made is exactly the one that the noble Lord, Lord Empey, makes—that there is no official position and that is a substantial weakness. Would it be possible for a party at present simply to go into opposition? Yes, it would. It simply means that during the running of d’Hondt the nominating officer of a particular political party does not put a name forward. The party is then automatically not in the Executive and therefore is in opposition. The problem is that it would not have any further status without some kind of negotiation.

I was encouraged, as I know the noble Lord, Lord Empey, was encouraged, by the editorial in the Irish News as it suggested that not only had we presently a cross-community basis for government but that it was possible that we might have a cross-community basis for opposition. The SDLP and the Ulster Unionists might come together on this and make a presentation to the Assembly that said, “Together, we think it would be more constructive for us to go into opposition”. There is a bit of a tendency in Northern Ireland to say that the Government over here should sort out the problem. However, I would urge that not only do my noble friend and Her Majesty’s Government here take this issue seriously, but the noble Lord, Lord Empey, and his colleagues in the Ulster Unionist Party should take it seriously in discussions with the SDLP. A cross-community presentation that said, “Let’s have an opposition and we will form that together by volunteering not to take executive positions”, would be a very powerful political position to take. Along with some legislative encouragement of the kind the noble Lord suggests, that might begin to make a difference.

In principle the noble Lord is right. The Belfast agreement was a good agreement but not a perfect agreement. The noble Lord pointed to one of the things that is imperfect—an imperfection that will become clearer as time goes on. My uncertainty is not about the principle or the value, but the delivery. This gentle nudge might help to push us in the right direction or show that something further is necessary. I hope that my noble friend, the Secretary of State and others in the Government will take the principle seriously to see whether through this amendment, another amendment or by another process it is possible to move our politics in Northern Ireland forward.

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[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.

[Lord Butler of Brockwell (CB)]

My Lords, I was one of those contacted by the chairperson of the Northern Ireland Civil Service Commissioners about this matter and I support the amendment. As the noble Lord, Lord Empey said, this is a simple matter. It really should be straightforward and I cannot see that there can be a serious objection to the amendment that the noble Lords, Lord Empey and Lord Alderdice, have tabled.

In the Constitutional Reform and Governance Act 2010, the provision was made to enshrine in statute the obligation of the Civil Service Commissioners that appointment to the Civil Service should be on merit following fair and open competition. We have always taken that as a constitutional principle of our Government. That Act did not apply to Northern Ireland—not that it was deliberately excluded for any particular reason, but it simply did not apply. However, exactly the same principles should apply, and I think everybody would want them to apply, to the Northern Ireland Civil Service. Indeed, because of the divided history of the Northern Ireland community there is a particularly strong reason why they should apply.

I was very pleased to hear what the noble Lords, Lord Empey and Lord Alderdice, said, because over many years I worked with members of the Northern Ireland Civil Service, as it were from the inside rather than working with them from a political perspective. My experience was exactly the same as theirs, as I would have expected: that members of the Northern Ireland Civil Service were politically impartial and appointed on merit. It took 150 years before these principles of fair and open competition were embodied in statute in Britain, following the Northcote-Trevelyan report. Once they have been embodied in statute, it seems to me that the same thing should be done for Northern Ireland, and before a question of devolving this function should take place. I strongly support the amendment. I hope the Government will say that they see no objection to it.

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Debate on whether Clause 11 should stand part of the Bill.

[Lord Alderdice]

My Lords, this clause deals with the potential for devolution of certain aspects of the Northern Ireland Human Rights Commission. Human rights is a particularly important and sensitive issue in all jurisdictions, not just those in which there are conflicts. It takes on particular characteristics where there is communal and intercommunal conflict. I well remember discussions at a very early stage among the political parties and the two Governments, well before those with which George Mitchell and colleagues were involved—right back to the days of Sir Ninian Stephen, whom some of your Lordships will probably have forgotten. It was very interesting because at that stage four political parties and the British and Irish Governments were involved. It was fascinating that the four political parties could all agree that we needed robust human rights protections. It is generally not that difficult to get people, particularly opposition parties to agree. In those days, all the parties in Northern Ireland were opposition parties. If you say, “Do you want the rights of your people to be protected?”, they say, “Yes, of course”. If you say, “Do you want the rights of everybody else to be protected?”, it is difficult to say, “No, I just want our rights protected”.

The four parties involved at that stage all agreed and those who found it most difficult were the British and Irish Governments. They could see the implications of embodying this in statute and setting up human rights commissions, and so on. What is important about that is that when people are in government they have a very different perspective on human rights from when they are in opposition. This is why I have a real anxiety and wonder how much thinking there has been about the question proposed in Clause 11. I would be interested to know from the Minister who exactly has asked for this; certainly the Northern Ireland Human Rights Commission has not asked for it. If the Northern Ireland Government have asked for it, I am particularly suspicious—not because of the occupants of those offices but because, in principle, the point of human rights commissions is to speak truth to power and to challenge.

That is why in Scotland, it is not the Scottish Government but the Scottish Parliament that addresses these issues. I want to explore whether we are talking about devolution to the Executive—to government—of more control of the Northern Ireland Human Rights Commission, about which I would have considerable anxiety, or whether we are talking about the possibility that it might be devolved to the Northern Ireland Assembly, where a whole range of the community is represented by elected representatives. There is a sort of reason for this. One of roles and responsibilities of the Speaker of the Northern Ireland Assembly is that every piece of legislation, before it comes to First Reading, must have the Speaker’s approval that it conforms to the European Convention on Human Rights. Before the legislation leaves the Assembly, in case any amendments have been passed that change that, it must have approval again. At various stages, the Northern Ireland Human Rights Commission can intervene in the legislative process precisely to make sure that the governing parties cannot of themselves put into legislation things that do not conform to proper international human rights requirements.

I would be interested to find out where the drive has come from for this particular change. Is it a question of giving more power to the Northern Ireland Executive to control those who are supposed to hold them to account, or is it possible that we might look at devolution to the Northern Ireland Assembly? That would at least ensure that it was not those in government appointing those who scrutinise government, but rather that it was the Assembly as a whole. At least that would be some form of protection.

[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.

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[Baroness Randerson]

My Lords, I thank noble Lords for their contributions on such an important topic. My noble friend Lord Alderdice emphasised the fundamental importance of human rights to the successful establishment of devolved government in Northern Ireland. I shall deal first with the bread-and-butter issues for the clause to stand part of the Bill.

Clause 11 moves certain functions relating to the Northern Ireland Human Rights Commission from the excepted to the reserved category. Human rights issues have long been politically sensitive in Northern Ireland and at the time of the 1998 Act it was considered that functions relating to the new commission should remain in the Secretary of State’s hands. In the context of stable devolved institutions and of their development in the future, it may become desirable in due course to devolve responsibilities relating to the NIHRC if the Northern Ireland political parties so wish and if the Secretary of State considers that the Northern Ireland institutions are better placed than the Government to carry out the functions concerned. Clause 11 will mean that the appointment, functions, procedures and funding of the NIHRC will be reserved.

The Government made a commitment, in their response to the Northern Ireland Affairs Committee’s pre-legislative scrutiny report on the draft version of this Bill, to consult formally on any future devolution of responsibilities relating to the NIHRC and the other arm’s-length bodies discussed prior to any such devolution taking place. I reiterate that commitment today. We will also ensure that the NIHRC retains its responsibility for the scrutiny of non-devolved matters relating to Northern Ireland such as national security and terrorism in the event of any future devolution of responsibilities for the institution.

We understand the concerns that have been expressed both in this Committee and elsewhere that in the course of devolution the independence and freedom of action of the NIHRC should not be compromised. Indeed, not only do we understand those concerns, we fully share them. The independence of the commission is essential to its effectiveness. Its international standing is high and reflects that independence. We are well aware of the importance to the commission itself of the Belgrade and Paris principles, and it is essential that those are abided by. I also ask noble Lords to consider the benefits of devolution. I understand the concerns, but I ask them to consider the benefits. We believe that if it can be accomplished without compromise to the independence and important international standing of the commission, it would be a good thing. It would show that the institutions have matured. After all, in 2010, we accepted that they should take responsibility for sensitive matters such as policing and justice. It is not outrageous, therefore, to suggest that they should be capable of accommodating the independent oversight of institutions, as indeed they already do in various areas such as that of the police ombudsman, with due respect for propriety. So we do not believe that it is unthinkable that, at some point soon, the devolved institutions in Northern Ireland should take on responsibility for the NIHRC, but we are not asking for decisions at this point. All that the Bill does is to make it possible for such decisions to be reached and for effect to be given to them at a later date. If that happens, it will be after full consultation, because these issues need debate in Northern Ireland, of which we have had very little so far. Devolution would require votes in the Assembly by cross-community support and in both Houses here, so we shall certainly come back to these issues before any act of devolution.

I shall respond to some of the points made by noble Lords. The noble Baroness, Lady O’Neill, referred to the current lack of a chair of the commission. In fact the position will be advertised in the immediate future, so this temporary situation will be rectified in the near future. The noble Lord, Lord Bew, referred to the issue of timing. We shall come back to this, because it is the topic of an amendment later in these proceedings.

My noble friend Lord Alderdice asked who had initiated this, and the noble Baroness, Lady Smith, made a similar point. The Government have had discussions with various Northern Ireland political parties about possible devolution of the commission. Officials have also discussed the matter with the chair and the chief executive of the commission, and I discussed it with them a couple of weeks ago. I emphasise that the Government believe that it is important above all that there is broad support across the community for devolution before it takes it place.

[Lord Alderdice]

My noble friend may be able to help me and the House with one question of information that I asked, on whether what we are being asked to do is devolution only to the Executive, or whether it would open the possibility of devolution to the Executive or to the Assembly.

[Baroness Randerson]

I apologise to my noble friend for omitting that. We are not looking at a precise model of devolution at this moment, because that, of course, is to be effected after consultation. However, we are well aware that devolution in Scotland has been to the Parliament and that that is a very successful model of devolution. It is sensible to follow successful models where they exist rather than to apply a different model. However, the details will be subject to further consultation and will become obvious after there has been full consultation.

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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 Shutt of Greetland]

My Lords, I see that this amendment has been reprinted on another sheet of paper and described as Amendment 4(rev). I have looked at the amendment on the main document and I see that “Civil” has become “Civic” I am rather in favour of a civic forum being civil as well. However, I turn to the substance.

The business of having a civic forum was set out in paragraph 34 of strand 1 of the Belfast agreement. Earlier today we heard the Minister say that the principles of the Belfast agreement are fundamental. The Civic Forum was then enshrined in Section 56 of the Northern Ireland Act 1998. The problem is that, in terms of that Act, it is almost an aspiration, or something that may happen between now and infinity.

A Civic Forum was established in October 2000 but it was suspended, alongside the Northern Ireland Assembly, in 2002. That is now 12 years ago and the Civic Forum is still not functioning. We must realise why it was put there in the first place. When the Belfast agreement came to pass, there were tremendous numbers of people in civic and civil society in Northern Ireland egging on that there was an agreement and they wanted to be part of it. There is a sense that we are all in this together, but there are those who cannot bring themselves to be part of political parties. We know what has happened throughout our kingdom with membership of political parties. There are plenty of people who are interested in the political process and civicness but cannot bring themselves to be associated with political parties. An opportunity arises, under the Belfast agreement, for such people and those in non-governmental bodies, quangos and everything else to be involved in this forum. It will bring people together. We hear about there being a “shared future”—a splendid phrase—in Northern Ireland. The establishment of the Civic Forum will hold the political parties to making certain it is a shared future and not a shared-out future.

In 2013 the Northern Ireland Assembly passed two resolutions that the Civic Forum should be reconstituted. The amendment in my name is gentle but firm. It is gentle because it suggests there is time—up to 12 months—to re-form the Civic Forum and that there is further consultation. This is not putting it into legislation with a heavy hand. I hope we can, by legislation, make certain that the Civic Forum happens and is effective and that the principles of the Belfast agreement are fundamental. I beg to move.

[Lord Alderdice]

My Lords, I commend my noble friend Lord Shutt of Greetland and support his amendment. We have been discussing a number of amendments which go way beyond what was agreed by the Northern Ireland parties and the two Governments in the Good Friday agreement. There is some space for debate and discussion on those issues, but at least one of the parties which supported the agreement had the mantra that it has to be in the agreement; the Belfast agreement has to be fully implemented. Here, in one hugely significant element, the Belfast agreement is not being implemented.

One might ask why, if there was sufficient enthusiasm to get it into the agreement, it fell into disarray so quickly. One could look at the forum itself and whether it performed to its maximum; one could, perhaps, say the same thing about the Assembly. However, there was a dynamic there which may not be familiar to the House. During the long period of direct rule, the Government here at Westminster—the Secretary of State and members of the Northern Ireland Office—wanted to find some way to relate with the Northern Ireland community. There was great difficulty in relating with elected representatives who were, in any case, elected either to the other place or to local authorities because there was not an Assembly. It was very common to invite people from NGOs and civil society generally to drinks at Stormont and Hillsborough, and to discuss with people who were running sometimes very commendable NGOs what would be a good way of spending money locally, how things should be organised and who might be appointed to bodies.

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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.

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I therefore put it to your Lordships that we have here a gap in our defences as a country. I partly understand the reasons why the agency is not there. First, Sinn Fein will never agree to anything that is done on a national basis, particularly in this area—I might be wrong about that, and I hope that I am. The other party that objected to it has other reasons, and I hope that it will be possible to address them. However, at the end of the day, our objective must be to have the best security and anti-crime prevention that we can put in place. To have this gap in Northern Ireland creates a vacuum, which will be filled over time if it remains. However, I will hold the Government to the commitment that they made through the noble Lord, Lord Taylor of Holbeach, when he said that if circumstances arose in which there was a clear risk to the United Kingdom as a whole the Government would act responsibly. The question is: when will that time arise? I beg to move.

[Lord Alderdice]

My Lords, I have spoken on this issue before on a number of occasions. I did so right from the beginning, when the legislation first came forward, when it became apparent to me that there needed to be discussion not just with parties of Northern Ireland but with the Government of the Republic of Ireland, because we have a land border with them.

One of my concerns at home in the last little while has been that a new generation of people, including politicians, have come forward who do not know what had to be done in the past to reach the agreements. They do not understand the language and the choreography that was necessary. That is not just a matter for Northern Ireland. It is apparent to me that on this side of the water there are people in senior positions in government who do not realise what had to be done to reach accommodations in the past. For example, it was unthinkable, even in those days, that a Government—in which the noble Lord, Lord Hurd, who is no longer in his place here, served—would have embarked on a key issue of security policy that involved the border area without any discussion with the Government of the Republic of Ireland, and that was long before many of the agreements with which the subsequent political progress was made. The Labour Administration, particularly under Tony Blair, would never have engaged in some kind of agreement on security issues without discussing it with the Government of the Republic of Ireland. The Taoiseach and the Prime Minister had a very close relationship.

When I raised the question of whether there had been serious discussions between the Home Office and the department of justice in the Republic of Ireland—and I am talking about the Bill team stage, not after the legislation had been passed—I was astonished, because I was looked at as if it was an extraordinary question. Yet the responsibilities of the NCA will include border regions, and there is only one land frontier in the United Kingdom. I have raised that again and again, and I must say that from time to time Secretaries of State and Ministers—in particular I mention in dispatches David Ford, the Justice Minister—have worked extremely hard to try to ensure that the Irish Government were brought in to assist us in getting the agreement of some of the parties in Northern Ireland that find it most difficult to agree on those kinds of things. Therefore there have been efforts from within elements of the British Government here and from within the Northern Ireland Executive, but it is also clear that at some very senior levels there is no appreciation that you cannot simply take these things for granted within that part of the United Kingdom.

I support the noble Lord, Lord Empey, in raising this question, not because I think it should be dealt with in this particular piece of legislation, but—as he said earlier on, and it is true—because it is not every day that a piece of legislation relating to Northern Ireland comes forward without being governed by emergency provisions of some description and rushed through the two Houses. In fact, this is probably the first time in 16 years that we have had a piece of Northern Ireland legislation that has not come through under emergency provisions of some description. Therefore, it gives us an opportunity to raise these kinds of matters.

This is a serious issue: it is not going to go away; it has the potential to become more serious; and, unless the British Government relate with the Irish Government in trying to assist parties in Northern Ireland to achieve an outcome, I do not think it is going to be successful. I warned about this at the time and it did not seem to register, so it is no surprise that we are in the difficulty that we are in. People did not take the advice at the time; they did not think it was necessary. I hope they have learned and begin to take action. As I said, this does not fall in the lap of either the current or the previous Secretary of State for Northern Ireland because they actually realised the problem, but it was not in their bailiwick at the time. It was in that of another government department. They worked very hard, as did the Justice Minister, David Ford, but I hope the warning that the noble Lord, Lord Empey, has cited will be heard again and reverberate until we get a proper outcome for this.

[Lord Browne of Belmont]

My Lords, I am pleased to support the amendment of the noble Lord, Lord Empey, in relation to the National Crime Agency. Failure to extend the full operation of the National Crime Agency to Northern Ireland seriously jeopardises security in the province. Failure to extend the work of the agency to cover every part of the United Kingdom is the equivalent of putting up an “open for business” sign over the Province.

In the Police Service of Northern Ireland, we have one of the most accountable police forces in the world, with constant checks and balances, scrutiny and high-level review. With the introduction of the National Crime Agency, this high level of scrutiny would continue. The head of the National Crime Agency, under statute, would appear in front of the Northern Ireland Policing Board once every year. Significantly, the NCA could not operate in devolved matters at all without the instruction of the chief constable. Despite these control mechanisms, some politicians in Northern Ireland have constantly blocked attempts to allow the full operation of the NCA. That leaves those involved in all levels of organised crime in a much better position than they were previously. A fully operational National Crime Agency would be a vital tool in tackling serious and organised crime such as human trafficking and the illicit drugs trade and in preventing terrorist attacks. At a time when my noble friend Lord Morrow is working tirelessly to stamp out human trafficking in Northern Ireland, it is vital that an operational agency is in place that can support this work. Therefore, I support this amendment.

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[Lord Alderdice]

My Lords, I agree with the noble Lord, Lord Empey, that the issue of victims and survivors is a very difficult and delicate matter, and one that needs attention, but I do not feel able to go along with him on this amendment. There are many reasons, but at this time of the evening I shall restrict myself to a couple.

First, in discussing the needs of victims and survivors, two different issues have been mixed. I think this affected the Haass process as well. The first issue is the welfare, treatment, counselling and all that is involved in helping individuals who have suffered as victims—people who have been in bombings, shootings or attacks, or have observed them, or who have been affected through their families. These individuals need to receive appropriate care and attention, which has not been happening. This has never been given proper attention. I remember quite some time ago putting two Written Questions to the Secretary of State asking if had there had been any exploration of the sort of funds and resources that were required in other countries to deal with these kinds of things. The answer was no, it had not even been looked at.

There is no question that the care that individual victims need has not received the attention that it ought to have had. The health service, perhaps even more than the voluntary organisations, has not had the resources it ought to have had. I say that as someone who set up and ran a centre for psychotherapy to try to deal with a range of problems, including some of these difficulties. However, that is a separate issue from how a community as a whole deals with the impact of violence upon itself. That is different in kind. The two things are confused all the time, which is one of the reasons why we have not got anywhere with addressing this issue. I do not want to say more because it is a major, complicated and difficult issue, but I am quite clear that there are two separate questions. One question is in many ways not frightfully contentious, so it is surprising that so little attention has been paid to it, but the other is more complex and difficult. This amendment does not sufficiently distinguish between them.

The second reason is that there is a kind of black and white clarity in the amendment. That certainly applies in respect of certain individual circumstances; there is no doubt about that. You can point to particular circumstances in which it is clearly an iniquity that matters are dealt with in the way that they are. However, big cases of that kind do not necessarily make good law, because many smaller circumstances would be swept into an amendment like this. Because someone breaks the law—not necessarily in a major way—it does not mean that there should be no possibility of any kind of recognition of their situation.