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

Lord Caine Excerpts

2nd reading
Monday 29th November 2021 Lords Chamber

Moved by

[Lord Caine]

That the Bill be now read a second time.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, before I move to Bill itself, I first thank noble Lords from across the House for their good wishes on my appointment. I am pleased to see in the Chamber this evening a number of noble Lords with whom I go back many years.

It is also a great pleasure to stand across the Dispatch Box from the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Coaker. The noble Baroness was a very popular and highly regarded Minister during a difficult period of direct rule in Northern Ireland, while the noble Lord served two distinguished terms as shadow Secretary of State. I look forward to working with them both, as I do the noble Lord, Lord Murphy of Torfaen, on his return to this House, and the noble Baroness, Lady Suttie, for the Liberal Democrats. Whatever differences we might occasionally have on points of detail, I am committed to maintaining a bipartisan approach, which has served Northern Ireland so well over many years and under successive Governments.

I also place on record both my own personal support and that of Her Majesty’s Government as a whole for the 1998 Belfast agreement, the constitutional principles it enshrines, all the institutions it has established and the rights it guarantees across the whole community. I first became directly involved in the affairs of Northern Ireland some 33 years ago and well remember the misery, death and destruction caused by totally unjustified and unjustifiable terrorist campaigns, and of course the security response that they necessitated. I for one will always salute the heroic service and sacrifice of the men and women of the Royal Ulster Constabulary and our Armed Forces.

The fact that those dark days are now mercifully almost a quarter of a century behind us is in large part down to the success of the 1998 agreement and its successors. It has been the bedrock of the progress achieved in Northern Ireland over recent years, and protecting it must be at the heart of everything we do. This Government will not take any risks with the hard-gained relative peace and stability ushered in by an agreement that remains an inspiration for so many across these islands and the wider world.

While of course that agreement is not beyond change and improvement, as has occurred a number of times through successor agreements and with further changes in this Bill, its principles are enduring. Not least of those is the consent principle, which guarantees Northern Ireland’s integral place within this United Kingdom for so long as that is the wish of a majority of those living there—a constitutional position that I, as a Conservative and a unionist, strongly support and on which I will never be neutral.

To strengthen the stability and effective functioning of the devolved institutions established by the 1998 agreement is the core purpose of the Bill before the House. It does so by implementing a number of the commitments made by Her Majesty’s Government in the New Decade, New Approach document of January 2020: extending the period for the appointment of Ministers in the Northern Ireland Executive following an election; enabling Ministers to remain in office and carry out functions for a period after the First and Deputy First Minister have ceased to hold office or following an Assembly election; reforming the use of the petition of concern in the Assembly; and updating the code of conduct for Executive Ministers in accordance with a request from the Northern Ireland Executive and in line with the recommendations around transparency and accountability in New Decade, New Approach.

That document was, of course, arrived at in the weeks immediately following the decisive general election result of December 2019, in which voters in Northern Ireland made very clear their desire to see Stormont return. The document was instrumental in securing the restoration of devolved government in Northern Ireland. Yet the document itself was the product of almost three years of painstaking negotiations under three successive Secretaries of State following the resignation of Martin McGuinness in January 2017 and the subsequent collapse of the institutions. They were three years in which Northern Ireland was effectively left in a state of political limbo, with no functioning Executive or Assembly and with civil servants able to take only limited decisions.

I know from personal experience just how deeply frustrating a period it was, including many late nights, long hours and false starts. Many of the measures in New Decade, New Approach, and subsequently in this Bill, are designed to avoid a repeat of this. As a result, the Bill is fairly narrow in scope, though I appreciate that noble Lords in this House with a vast wealth of experience in Northern Ireland might want to make some broader points that go beyond the confines of the legislation before us.

I turn to the clauses of this short Bill. Clause 1 amends Sections 16A and 16B of the Northern Ireland Act 1998 by extending the time available to appoint a First or Deputy First Minister following the resignation of either, or after the first meeting of the Assembly following an election. Currently, the period for ministerial appointments is only seven days after the First or Deputy First Minister ceases to hold office, or 14 days after an Assembly election, after which the Secretary of State is by law bound to set a date for another election within a reasonable timeframe.

The Bill extends the period for filling ministerial offices to a six-week period that is automatically renewed, unless the Assembly resolves otherwise on a cross-community vote, for a maximum of three times up to a total of 24 weeks. This is designed to allow more time for discussions between the parties and to facilitate a resolution of issues and avoid the need to rush headlong into another election. It will also give some parties the opportunity to reflect on whether they wish to be in the Executive at all or, alternatively, to go into opposition.

Clause 2 will enable existing Ministers to remain in post following an election until the end of the 24-week period for appointing new Ministers, rather than ceasing to hold office automatically on polling day as at present, or for a maximum of 48 weeks since a functioning Executive was in place. This is designed to provide for greater stability and sustainability of the devolved institutions and for continuity in decision-making, thus avoiding the scenario I have described following the effective collapse of the institutions in January 2017, when Northern Ireland was left with little or no governance.

Clause 3 amends Section 32 of the 1998 Act which currently requires the Secretary of State to propose a date for an Assembly election in two scenarios: first, where the Assembly resolves to dissolve itself by a two-thirds majority, and, secondly, where the existing period for appointing all Executive Ministers, including the First and Deputy First Ministers, expires without those offices being filled. This Bill places the Secretary of State under a duty to propose an election date as soon as is reasonably practical and within 12 weeks of either scenario having taken place. This provides greater legal certainty over the date of an election than at present. Clause 3 also allows the Secretary of State to certify or call an Assembly election at any point after the end of the first six-week period for appointing new Ministers if he considers that there is not sufficient representation among Ministers to secure cross-community confidence in the Assembly.

Clause 4 substitutes a revised ministerial code of conduct which sets out expectations for the behaviour of Ministers, including provisions around the treatment of the Northern Ireland Civil Service, public appointments, the use of resources and information management. This is an excepted matter and, as such, exclusively for Parliament, and follows a request from the former First Minister and Deputy First Minister, with Executive approval.

Clause 5 reforms the petition of concern in the Assembly to reduce its use and restore it to its original intention in the 1998 agreement. The Bill keeps the existing threshold for triggering the petition at 30 Assembly Members but introduces a requirement that they must be from two or more parties. Once lodged, any petition will have to be confirmed after a period of 14 days’ reflection. The Bill limits the matters in which a petition can be lodged and prevents the Speaker and deputies from signing.

Finally, Clauses 6 to 9 deal with repeals, extent and commencement.

Nobody claims that the Bill will be a panacea should we again be in the unfortunate situation in which the devolved institutions come under severe political strain. It does, however, contain important safeguards against a situation arising in which one party can simply crash the institutions and leave Northern Ireland effectively with limited or no governance at all.

The Bill faithfully implements the commitments of the UK Government as set out in New Decade, New Approach to make the devolved institutions more resilient and more sustainable, so that they can continue to focus on delivering for the benefit of the whole community in Northern Ireland.

Successive surveys and the 2019 general election demonstrate—I think conclusively—that inclusive, power-sharing devolution within the United Kingdom is the preferred form of governance for most people in Northern Ireland. That is also the Government’s preference, and we are determined to do whatever we can to make devolution work in order to build a brighter, stronger and more prosperous Northern Ireland—a Northern Ireland where politics works, the economy grows and society is more united. This short Bill takes a number of steps to help us on that course and, in that spirit, I commend it to the House.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I am incredibly grateful to all noble Lords who have contributed to such an excellent and well-informed debate this evening and, if I may say so, for giving a new Minister such a warm welcome—so much so that I was thinking of inviting the noble Lord, Lord Rogan, to do some of my PR in future. I am also grateful to the noble Baroness, Lady Suttie, for reminding me of some of my misspent years in the Red Lion public house during the 1990s. As part of my approach to this role, my door is always open to noble Lords on all sides of the House. Whatever concerns, issues or queries they have about Northern Ireland, however big, however small, they should always feel free to contact me and to come to see me and talk about matters.

The quality of the contributions this evening on all sides of the House is testimony to the expert knowledge and interest that so many Members of your Lordships’ House have in the affairs of Northern Ireland. I am, of course, very grateful for the general welcome of the Bill and its provisions. I welcome many of the comments made and look forward to discussing a number of them in greater detail and at greater length, no doubt, in Committee and during the passage of the Bill through the House.

As we heard, the Bill implements a number of the commitments set out in the New Decade, New Approach deal/agreement/document—however you want to describe it—made in January last year. It will improve the sustainability of the devolved institutions. It is not just on legislative commitments that the Government have been delivering through New Decade, New Approach. There are other areas outside the scope of the Bill, which include the appointment of a Northern Ireland Veterans Commissioner for the first time, legislation to enshrine further the Armed Forces covenant in law, UK Government contributions to the creation of a new graduate-entry medical school in Londonderry/Derry and funding to promote Northern Ireland as a cybersecurity hub, which are all commitments in New Decade, New Approach.

The noble Baroness, Lady Bennett of Manor Castle, mentioned some of the economic issues in Northern Ireland. The Government are supporting the Northern Ireland economy through the levelling-up fund, the community renewal fund, the community ownership fund and, of course, the spending review that delivered the largest funding settlement for Northern Ireland since the start of devolution in 1998-99. Taken alongside the more than 360,000 jobs protected as a result of government schemes during the pandemic, this underlines to many noble Lords the strength and security that Northern Ireland gains as part of the world’s fifth-largest economy.

Turning to the debate itself, most of the contributions fell into one of three categories: those relating directly to the narrow provisions of the Bill, those dealing with possible broader reforms of the devolved institutions—what might be deemed other strand 1 issues—and those more generally about the situation in Northern Ireland, notably, as the noble Lord, Lord Hain, talked about, legacy, and of course contributions from across the House that dealt with the Ireland/Northern Ireland protocol.

I shall try, in the time available, to respond to as many of these points as I can, beginning with a number of issues that were raised by the noble Baroness, Lady Smith of Basildon. She, along with many other noble Lords, highlighted the importance of the institutions established under the Belfast/Good Friday agreement. As I outlined in my opening speech, I remain very personally committed to those institutions. I have worked in the Northern Ireland Office during periods of direct rule, which I have to say were very unsatisfactory, as has the noble Baroness. Like her, I think that the institutions are far easier to collapse and dismantle than they are to bring back together. They were down between 2002 and 2007 for five long years, and we just experienced the lack of functioning institutions from 2017 to 2020, very much to the detriment of Northern Ireland.

I agreed with a number of the comments of the noble Baroness, Lady Ritchie of Downpatrick, about the beauty of the architecture of the agreement. For me, one key aspect of that is the way in which the agreement is able to accommodate difference, but in ways that allow us all to work together. I think that is terribly important.

A number of noble Lords referred to the commencement clauses in the Bill—I shall deal with those straightaway—and to the speed with which the Bill had been brought forward, or the lack thereof, in the view of the noble Baroness. The reality is that the provisions in the Bill were only ever intended to be made in relation to the next Assembly mandate—so never necessarily in the context of this Assembly—and the commencement date does follow the conventional “two months after Royal Assent”. However, if the political situation changes dramatically, that is something that the Government will be prepared to look at during the passage of the Bill through your Lordships’ House; noble Lords have my assurance on that.

A number of noble Lords raised what were described as unfulfilled commitments from New Decade, New Approach and from previous agreements. A Bill of rights is an issue that has obviously been around since the 1998 agreement. The agreement itself, as somebody pointed out, is actually quite ambiguous in its wording around a Bill of rights. The issue has always been around consensus, or lack thereof. New Decade, New Approach does contain provision for an ad hoc Assembly committee to look at this, and we look forward to seeing work on that.

On language, it is important to stress that what the Government are proposing to bring forward is not just around language, but a balanced package that covers identity culture and language, and we will do so as soon as parliamentary time allows.

The noble Baroness, Lady Smith, and the noble Lord, Lord Dodds, referred to caretaker Ministers and the powers they would have. We would expect, as New Decade, New Approach sets out, that Ministers who are still in office would have regard to the Administration’s previous programme for government. There would be constraints: cross-cutting issues would still have to go to an Executive for executive approval. If we were in a scenario where there was no First Minister and Deputy First Minister, the Executive could not meet, so those cross-cutting issues could not be agreed anyway.

There are clear limitations on which issues caretaker Ministers could take decisions on, but the principle that there is continuity of decision-making in Northern Ireland is very important. The alternative could well mean just going back to the situation that we endured between 2017 and 2020, which nobody found satisfactory and is one of the reasons for the Bill.

The noble Lord, Lord Dodds, talked about Clause 3 and sufficient representation in the Executive. New Decade, New Approach does not define what is meant by that, and the Bill essentially follows that document. As the noble Lord, with his long experience of Northern Ireland affairs, will know, there are some areas where it is sometimes advantageous to give the Secretary of State some leeway and discretion on these matters, which is why it is not defined more clearly in the legislation.

I am very pleased that my noble friend Lord Godson referred to Sir John Chilcot, who was my first Permanent Secretary when I walked through the door of the Northern Ireland Office 30 years ago next month and a very wise and good man. My noble friend made a number of important points about the lack of an Executive during the Brexit process and about the protocol. I commend the work of my noble friend and Policy Exchange, which has consistently taken an interest in this issue and put forward a number of suggestions on the protocol and so on. Those points were reinforced by the noble Lord, Lord Bew.

I think back to the summer of 2016, shortly after the referendum, when Arlene Foster and Martin McGuinness, as First Minister and Deputy First Minister, signed a joint letter setting out the priorities for the Northern Ireland Executive throughout the Brexit process. It is a great tragedy that, as a result of the collapse of the institutions in January 2017, the voice of the Northern Ireland Executive was simply not heard. That is something we should remember and not go back to. The Bill is designed to try to avoid that kind of collapse and political limbo.

The nobles Lord, Lord Hain and Lord Coaker, and the noble Baronesses, Lady Ritchie and Lady Suttie, all mentioned legacy. It was the main focus of the speech of the noble Lord, Lord Hain. Before I respond on legacy, I pay tribute to his work on victims’ payments over the past couple of years. They are now open for application, and I know that he stays in very close touch with groups such as the WAVE Trauma Centre and our mutual former colleague, Dennis Godfrey.

Legacy is an issue that has eluded successive Governments ever since 1998. It was not part of the 1998 agreement. The Labour Government made efforts to deal with it through the Eames-Bradley commission. This time seven years ago, I was permanently based in Stormont House during the discussions that led to the Stormont House agreement, but that was seven years ago. For better or worse and for whatever reasons, the bodies envisaged in Stormont House have never seen the light of day.

The Government are committed to bringing forward legislation to try to deal with this subject, and I hope very soon. It will focus on providing better outcomes for victims and survivors, principally through looking at information recovery but also, importantly, ending the endless cycle of reinvestigations and possible prosecutions of former members of the Armed Forces. I cannot give a precise date for when this will be introduced, but I hope it will be very soon.

A large number of noble Lords mentioned the Northern Ireland protocol. I am slightly limited as to what I can say on that issue, but, in response to the noble Lord, Lord Coaker, I assure him that I will discuss these matters with my noble friend Lord Frost and keep in very close contact with him on this crucial subject.

The reality is that the construction and implementation of the protocol has increased burdens on businesses, disadvantaged consumers, diverted trade and contributed to some of the political instability we have seen in Northern Ireland over recent months. An agreement or protocol deemed to be essential for upholding and supporting the Belfast agreement has now had the unintended effect of undermining confidence in and support for that agreement. Therefore, it is very important that the Government iron out the difficulties that are apparent.

Our clear preference, as my noble friend Lord Frost has said many times from this Dispatch Box, is to resolve these issues through agreement and negotiation with the EU. That is very much our preference, but we cannot rule out having to take measures should that agreement not be forthcoming. I remember years ago John Major wringing his hands at a press conference and saying, “Like me or loathe me, don’t bind my hands when it comes to negotiations with Europe.” I think that is very sensible. My noble friend is continuing those important discussions. I agree with the comments of noble Lords behind me from the unionist Benches and elsewhere across the House: it is vital that we resolve this, to ensure that Northern Ireland’s place within our United Kingdom and our internal market is absolutely secure.

The noble Lord, Lord Bew, referred to the code of conduct, the Nolan principles and the Committee on Standards in Public Life. It will not surprise him to hear that I am not completely across the detail of those decisions, but I undertake to go back to the department, look into that issue in some more detail and come back to him. On the code of conduct, I think the noble Baroness, Lady Smith, asked me a rather specific question about who polices the code. That would be the Commissioner for Standards in the Assembly, and the Assembly itself would look into breaches and bring forward whatever sanctions there are.

My noble friend Lord Dodds—he is my noble friend —referred to the petition of concern and where its original purpose is set out. My understanding is that that is contained in strand one, section 5, under the heading “Safeguards”, in the original Belfast agreement, but, not having a copy to hand, I will undertake to give him a fuller response in that respect.

I am conscious of time and the hour. I have endeavoured to deal with a number of the issues raised this evening. If I missed any glaringly obvious ones, I trust noble Lords will forgive me, on this my debut at the Dispatch Box, but I commit to follow up in writing any that I have missed. In the meantime, it just remains for me to thank noble Lords once again for their contributions. I look forward to working very closely with Peers from across the House during the remaining stages of the Bill. On that note, I comment the Bill to the House.

Bill read a second time and committed to a Grand Committee.