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

Lord Caine Excerpts

Report stage
Wednesday 19th January 2022 Lords Chamber

I am interested to hear what the Minister has to say on this issue, because in terms of where Northern Ireland goes from here, it is quite clear from listening to the debate today that the situation is fragile. The Minister has a task ahead of him to ensure that he keeps open channels and that we can move things forward, rather than going back to a more difficult position, which nobody wants to see. The situation is fragile, and it requires the Minister to take a lead, engage in discussions and accept the different points of view that have been expressed here today. I thought the noble Baroness, Lady Ritchie, made a powerful case from her point of view, as did the noble Lord, Lord Empey, but the point has been made that this goes beyond what was envisaged. It would be helpful if the Minister could say something about how he sees engagement on these issues in the future.

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

My Lords, I am grateful to everybody who has spoken in this debate. If the noble Baroness, Lady Smith of Basildon, said one thing that is incontestable, it is that this has been a very wide-ranging debate indeed. Following the comments of my noble friend Lord Empey, I might try to do something which seems increasingly unfashionable in the House these days, which is to stick to the Standing Orders and confine my comments to the amendments before the House, and not repeat at length arguments and debates that have taken place in Committee and on Second Reading.

The issues covered in the amendments before us were debated at length in Committee on 13 December. As I made clear at the time, I am not without a great deal of sympathy for the amendments of the noble Baroness, Lady Ritchie of Downpatrick, and my noble friend Lord Empey. Indeed, I am on record over a number of years as saying that I prefer the 1998 model of appointing the First and Deputy First Ministers, which was subsequently changed at St Andrews. I do not for one second doubt the sincere motives of the noble Lord, Lord Hain, in seeking the agreement which he achieved in 2006 and implemented in 2006-07, but my personal preference is always for the parallel consent model of 1998.

As a number of noble Lords have said, a cardinal principle of the political process and the implementation of agreements in Northern Ireland since the mid-1990s has been the sufficient consensus rule. My noble friend Lord Dodds of Duncairn made that point very powerfully, as did my noble friend Lord Bew. The sufficient consensus rule means that any significant changes to or departures from those agreements require the support of parties representing majorities of unionism and majorities of nationalism. Indeed, that is how we got the Belfast agreement in the first place.

As some noble Lords have mentioned, this Bill is about implementing New Decade, New Approach. I was involved in a lot of the discussions between 2017, following the collapse of the institutions after the resignation of Martin McGuinness, and July 2019. In fact, to digress for just a second, I was very grateful to the noble Lord, Lord Hain, for his kind words absolving me of any responsibility for the actions of a number of Conservative Secretaries of State. He then made the exception of Julian Smith—who, of course, was the only one I did not work for, but I take his comments in the spirit in which I hope they were intended.

As I said, this is about New Decade, New Approach. During the discussions that formed the basis of that document, a number of these issues were raised. There was not sufficient consensus, and they did not appear in the final document.

I say to the noble Baroness, Lady Suttie, that none of this is to say that the Government have a closed mind to change in future. The Belfast agreement has not stayed set in stone over the years: there were changes at St Andrews and at Stormont House. Indeed, I was interested to hear my noble friend Lord Hannan say that one of the reasons he was opposed to the Belfast agreement was the lack of opposition. Actually, in the Stormont House agreement—the fresh start agreement—and subsequently in New Decade, New Approach, there are provisions to facilitate the functioning of a proper opposition within the Assembly. So, things do not always remain static. We are open to change so long as those changes are consistent with the underlying and enduring principles of the Belfast agreement, which have to be based around inclusive power-sharing government.

In asking the noble Baroness to withdraw her amendment and my noble friend Lord Empey not to move his, I will give a clear commitment from the Dispatch Box: these issues are not going to go away, and after the election, whatever the outcome might be, I and the Government are very happy to have discussions with the political parties to test the appetite for any further reforms along the lines suggested in this afternoon’s debate. In that spirit, I ask the noble Baroness, Lady Ritchie, to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank all noble Lords who have contributed to this rather omnibus, wide-ranging debate. It has referred to the contents of the amendments, and to matters of a very raw political nature that are outwith the responsibilities of this technical Bill, which nevertheless has great political implications for all of Northern Ireland.

In this wide-ranging debate we have had those who support the amendments and those who do not, but I would like to think that all of us in this House want to see peace, stability and reconciliation, and proper partnership government in Northern Ireland that delivers for all the people on education, health and the economy.

Various contentious issues were mentioned in this debate, such as the protocol, which we will come to later. Noble Lords also mentioned the past and legacy issues, which very much need to be resolved. We also mentioned cultural and Irish language issues. I am a Gaeilgeoir; I did Irish at school and attended the Irish college in Donegal in two separate summers, because my mother wanted me to. But I believe in that element of diversity, and I believe in respect for political difference, ethnic difference and racial difference. I would like to see that right across the community.

Therefore, I am pleased that the Minister has indicated he is not without sympathy for these amendments and that the Government intend to come back, post election, and have discussions with the parties in the Northern Ireland Assembly to further explore the appetite for these issues. But I offer a note of warning. Because the political situation is particularly fragile—as referred to by the noble Lord, Lord Hain, and others—my fear is that we may not have those political institutions in a way that is enduring, or capable of delivering for people in Northern Ireland in a post-election sense. That is because of all the turmoil, not necessarily but mostly around the protocol, and other political issues that have sought to threaten those very institutions.

It is very important that we do not walk away from these issues. In view of the Minister’s commitments at this stage, I beg leave to withdraw the amendment but point out that I will return to these issues. I hope that in those negotiations, although they relate to strand 1, the Irish Government—as the other co-guarantor of the agreement—are involved as well.

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Moved by

[Lord Caine]

3: After Clause 3, insert the following new Clause—
“Transitional provision
(1) The amendments made by sections 1(2), (3) and (5) and 2(2) do not apply in a case where section 16A of the Northern Ireland Act 1998 applies as the result of an Assembly being elected before this Act comes into force.(2) The new provisions relating to vacancies in the office of First Minister or deputy First Minister—(a) apply in relation to vacancies arising within the period of seven days ending when this Act comes into force, but(b) do not otherwise apply in relation to vacancies arising before this Act comes into force.(3) For these purposes “the new provisions relating to vacancies in the office of First Minister or deputy First Minister” means—(a) the amendment made by section 1(4),(b) the new section 18(A1)(c) to be inserted into the Northern Ireland Act 1998 by section 2(3), and (c) the new paragraph 3D(A1)(c) to be inserted into Schedule 4A to that Act by section 2(5).(4) The amendments made by section 3 do not apply where the duty of the Secretary of State under section 32(1) or (3) of the Northern Ireland Act 1998 arises before this Act comes into force.”Member’s explanatory statement
This new Clause makes transitional provision in connection with the provisions of the Bill about executive formation.

[Lord Caine (Con)]

My Lords, I hope that this group of amendments can be dealt with very briefly. Two of them are in my name and deal with the commencement clauses in the Bill.

At Second Reading and in Committee, I committed to going away and considering the strength of argument put forward by a number of noble Lords in regard to bringing forward the commencement date for the provisions in this legislation. As drafted, the provisions would come in two months after Royal Assent. Both here and in the other place, the Government have been clear that we would consider early commencement if the political situation in Northern Ireland were to warrant it. In debate on the previous group of amendments, a number of noble Lords referred to the delicate situation in which we currently find ourselves. In our judgment, the situation therefore warrants early commencement, which is why I have tabled an amendment to that effect.

As such, if the government amendment is accepted, the provisions in the Bill will come into effect on the day of Royal Assent. To ensure that there is no ambiguity over when the provisions of this legislation come into effect, should there be a First Minister or deputy First Minister resignation, thus triggering the seven-day executive formation period, and the legislation receives Royal Assent during that seven-day period, the provisions in this legislation will also apply. I hope noble Lords will agree that these amendments demonstrate that the Government have listened to the strength of argument put forward, in particular by the noble Baroness, Lady Suttie, and others, and will accept them.

At Second Reading and in Committee we also committed, in response to the noble Lord, Lord Coaker, who I am pleased to see here today, to considering what more the Government could do to promote and explain the commitments in, and implementation of, the New Decade, New Approach agreement. We had a lengthy exchange in Committee when the noble Lord did exactly what I would have done in his place, which was to trawl through the annexes of the document and pick out some of the more obscure commitments to try to catch me out. I think I had a fairly long list of commitments that had been implemented. I do not intend to read them out at this stage, on Report. If anybody who was not in Committee is interested, they are all in Hansard.

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[Lord Dodds of Duncairn (DUP)]

My Lords, I too thank the noble Lord, Lord Coaker, for tabling this amendment in Committee, and I think we had a very useful debate there about the Government’s commitments under NDNA—because there were many. I also thank the Minister for his commitment to a regular written statement and I share the view of the noble Lord, Lord Lexden, that hopefully we can have a debate on those issues from time to time. I also have no issue with the earlier commencement date, as tabled by the Minister in Amendment 9.

On Amendment 3, I want to ask the Minister, since this is a new amendment, to clarify its intention. It is very technical and complicated; it is to do with the transitional arrangements if things were to happen before Royal Assent of the Bill. I would like to be clear, so that the Minister has it on the record, what exactly this clause will do. It talks about events happening

“within the period of seven days ending when this Act comes into force”.

But, if we do not know exactly when the Act is coming into force, things could happen that are caught, but there is no idea at the time that they would be caught, because suddenly Royal Assent happens. It is a very vague formulation. I wonder why it is there and what it is intended to capture—as opposed to saying, for instance, that the Act will apply after a certain date. I would be grateful if the Minister could clarify, in winding up, the import of the clause.

[Lord Caine (Con)]

My Lords, I am grateful to noble Lords for the responses they have made to these amendments. I assure the noble Lord, Lord Coaker, the noble Baroness, Lady Ritchie, and my noble friend Lord Lexden, that it is my intention to make these reports as comprehensive as possible while, as the noble Baroness, Lady Ritchie of Downpatrick, mentioned, respecting the boundaries of devolution. I will take away her comments, and those of my noble friend and the noble Lord, Lord Coaker, to try to ensure that the reports are as far reaching and detailed possible. I also reassure my noble friend Lord Lexden, with whom I go back many years, that I am totally committed to recognising and upholding the sovereignty of the United Kingdom Government, and of this House, with respect to Northern Ireland. It is part of the United Kingdom, and he knows well that this is a situation that I wish will endure for ever.

[Lord Empey (UUP)]

I welcome the amendment of the noble Lord, Lord Coaker. In his capacity of spokesperson on the union, can the Minister give us an assurance that he will be able to give us similar six-monthly reports and debates on what is happening in Scotland and Wales?

[Lord Caine (Con)]

I am grateful to the noble Lord for his intervention. I think that is a matter that I will have to raise with my noble friends in the Scottish Office and the Welsh Office.

The noble Lord, Lord Dodds of Duncairn, mentioned the transitional arrangements. If I can put it as plainly as possible, under the current rules, if either the First Minister or Deputy First Minister were to resign, there would be a seven-day period by which there would have to be a renomination before an election was triggered. If that were to happen up to seven days before Royal Assent was given, it would apply retrospectively once Royal Assent had been given, and the provisions of this Bill would kick in.

Amendment 3 agreed.

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[Baroness Smith of Basildon (Lab)]

My Lords, when this amendment was first tabled at short notice in Committee by the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, as I know it had to be, I have to say that I struggled to understand how it was in scope, and I still feel that it is slightly outwith the Bill. Having said that, I am really pleased that we have had this debate, which has been extremely powerful. I also thank the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, for taking the time to speak to me and my noble friend Lord Coaker about their concerns on this issue.

As I say, it has been a very powerful debate and I hope the Minister understands the strength of feeling around the House. I always felt that the situation was tough on Northern Ireland. During the debate on Brexit, when the Prime Minister had his “£350 million a week for the NHS”, I do not recall many people paying attention to what the situation would be in Northern Ireland. Northern Ireland can rightly feel aggrieved that its interests did not seem to be very high on anyone’s agenda, a point made by the noble Lord, Lord Empey.

I am particularly grateful to the noble Lord, Lord Bew, for the points he made and for the extremely thoughtful way in which he addressed some of the issues. I do not support the amendment being in the Bill—that is quite a difficult stretch to make—but the Government have to listen to what has been said here. I made a similar comment earlier on the amendment proposed by the noble Baroness, Lady Ritchie. The scope of this Bill is around the New Decade, New Approach issues. The Bill’s approach is very narrow; it is looking for agreement in areas where there is cross-party agreement, which we have been discussing. The amendment goes outside that.

However, I find it absolutely extraordinary that, when the Government were debating and discussing Brexit with the EU, nobody from Northern Ireland was in the room as part of those discussions. I saw the noble Lord, Lord Frost, wander in earlier, but he left before this debate, which is a great shame, given that he is the architect of the protocol; it would have been useful had he remained and perhaps given us some explanation of how we reached this point. I have to say that the Government have let Northern Ireland down in the handling of the protocol, which was debated, discussed and agreed by this Government. Unless those with a stake in the economy and business of Northern Ireland are directly engaged in those discussions and negotiations, it will be very difficult to reach an agreement and conclusion that can satisfy and benefit Northern Ireland. The noble and learned Lord, Lord Mackay, made a very important point in his brief contribution when he talked about the way forward for negotiations and to find an agreement. If the people of Northern Ireland are not included in those negotiations, that will be extremely hard to do.

Many of us recall—I am sure noble Lords from Northern Ireland recall—the film of the Prime Minister speaking to a business group in Northern Ireland and saying, “There’ll be no checks, no borders, no tariffs and no forms to fill in. If you get a form, send it to me—give them my home number and I’ll deal with it.” They were the Prime Minister’s rules, as my noble friend Lord Hain said, and we know that the Prime Minister does not always know what is in his own rules—that has been established already today. But on something of this importance, it is extraordinary that the Government were so careless with Northern Ireland. So I understand the depth of feeling on this issue, and I am grateful to the noble Baroness and the noble Lord for allowing this debate today, even though it seems to be outwith the Bill.

There are further negotiations to come and they must focus on the talks, but the Government have to be on notice on this if they do not include Northern Ireland in those negotiations. Why not have one of the meetings in Northern Ireland? Go to Northern Ireland and talk to businesses and to people who live with this, day in, day out, and there might be a better conclusion. That process has to run its course, which is why we cannot support the amendment. But let no one be under any illusion that we do not understand the problems that this Government have caused.

There is an ongoing court case, as has been mentioned, and a number of issues have to be addressed. I look forward to the Minister’s response, but I have to say to him: get a grip, because this cannot continue in this way. It has direct implications for political stability in Northern Ireland. The noble Lord, Lord Empey, made the point—my noble friend Lord Hain made a slightly different one—that it was the UK’s decision to leave the EU. When the constituent parts of the UK were looked at, Northern Ireland was one of the areas that voted against leaving the EU, yet it is facing some of the harshest consequences of that decision, which is unfair. I hope the Minister can say today that this issue will be looked at seriously and Northern Ireland will be involved in the decision-making process. It may not be a matter for the Bill today, but it is certainly not going to go away.

[Lord Caine (Con)]

My Lords, my noble friend Lord Empey referred to “mission creep”, and the noble Baroness, Lady Smith of Basildon, referred to the scope of the Bill. I confess that when I started the Bill in your Lordships’ House, little did I suspect that I would probably spend more time discussing the Northern Ireland protocol, which does not form part of the Bill, than any of the provisions that do form part of it. So I congratulate the noble Baroness, Lady Hoey, and my noble friend Lord Dodds of Duncairn on their ingenuity in bringing this matter before the House through this amendment. Of course, following the comments of the noble Baroness, Lady Smith of Basildon, I completely understand the strength of feeling in Northern Ireland on aspects of the protocol. Indeed, before I assumed my role on the Front Bench, I think I gave expression to some of them myself. I completely understand the sincerity with which the noble Baroness and my noble friend have brought their case today.

In one area, I will slightly disappoint the noble Baroness, Lady Hoey. When she brought this to the Committee, I referred to the fact that a number of the issues she raised on the compatibility of the protocol with the Belfast agreement and the Act of Union, on which the noble Lord, Lord Bew, made some interesting and pertinent comments, are currently the subject of a court case. These arguments are being considered by the Court of Appeal in Belfast so I am to some extent limited in what I can say. We expect the judgment shortly; I cannot put a date on it, obviously, but we await the outcome of that case with huge interest.

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[Baroness Smith of Basildon (Lab)]

I accept that point. It was a huge detriment to Northern Ireland that the Assembly was not meeting at that time. However, there were still businesses and elected representatives. It would have been so helpful if the Government had just been a bit more thoughtful about Northern Ireland during those negotiations.

[Lord Caine (Con)]

I appreciate the noble Baroness’s sentiments. To give one example, I recall that, in the aftermath of the referendum, the then First Minister, Arlene Foster, and the then Deputy First Minister, Martin McGuinness, wrote a letter to the then Prime Minister setting out the Northern Ireland Executive’s priorities for the negotiations. Of course, shortly thereafter, for reasons that we are all too familiar with, the Assembly and the Executive went into abeyance for three years, but I take the point. I was there for a good deal of that period, and there was a lot of engagement going on, but we lacked the formal mechanism of the Executive.

On engagement, my understanding is that the Minister for Europe is due to be in Northern Ireland tomorrow to meet a number of business organisations and individual businesses. He has held meetings with Members of your Lordships’ House in the past few days. This morning, along with the Secretary of State for Northern Ireland and the Europe Minister, I attended a regular meeting with the First and Deputy First Ministers of Northern Ireland; that will be an ongoing process. We recognise the need for strong engagement on these matters.

I want to go back to the reasons for urging the noble Baroness to withdraw the amendment. The noble Baroness, Lady Ritchie, and my noble and learned friend Lord Mackay of Clashfern, in a very wise contribution, emphasised the ongoing nature of the discussions and the fact that we need to try to give those discussions breathing space to reach a successful conclusion.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for taking my intervention. In his wind-up, will he give us his estimation, following discussions today, of a date for the implementation of these negotiations or for their conclusion? They are absolutely vital because we do not want to see them impinge—although many believe that they will—on the election itself.

[Lord Caine (Con)]

The noble Baroness, Lady Ritchie of Downpatrick, attended the meeting with the Minister for Europe yesterday at which I was present. I think that issue was raised then, and he was unable to put an absolute timeframe on this. If he cannot do so, I do not think I can answer that question directly from the Dispatch Box other than to say that the Government are seized of the urgency of this matter and the need to come to a resolution as expeditiously as possible. I take on board what the noble Baroness said and the comments in this respect from a number of Members from Northern Ireland behind me from the Democratic Unionist Party and the Ulster Unionist Party, and from the noble Lord, Lord Bew.

My final point relates to the nature of the amendments, which effectively would ask Parliament unilaterally to change an existing agreement between the United Kingdom and the European Union as set out in the unilateral declaration, the protocol and the withdrawal agreement. While negotiations are going on with the EU, it would not necessarily be helpful to those negotiations if we were to change an existing international agreement with the EU. That does not strike me as probably the most helpful way forward in negotiations. With those comments, I urge the noble Baroness, Lady Hoey, to consider withdrawing the amendment.

[Baroness Hoey (Non-Afl)]

My Lords, I thank everyone for their contributions. This has been a thoughtful and useful debate on a part of the United Kingdom that gets far too little attention at any time other than when there is trouble. I will briefly address a couple of points that were raised.

I get tired of people going on about how the protocol is all about Brexit. Northern Ireland voted as part of the United Kingdom, and we voted as the United Kingdom to leave. Let us be realistic. What happened then is that Northern Ireland has not left the European Union. We are in the internal market for all sorts of aspects, and we are now seeing that working through in the constitutional issue which is part of this debate tonight: the question of consent.

I thank the noble Lord, Lord Hannan, for his short speech of support. As someone who was a long-time Member of the European Parliament, perhaps he more than anyone here realises, when we say, “We are waiting for these negotiations and so we cannot talk about this, vote on it or do anything now,” just how very unlikely it is that the European Union will cave in and give back what should never have been signed away. I am not interested in who made the bad decisions, who is blaming who in Northern Ireland, or in which Government did it; I am interested now in sorting it. The only way we will do that is to stand up for our country—for a United Kingdom—and not use the excuses that have always been made about why we have a protocol.

When do we get a vote on this? The noble Lord, Lord Caine, talks about the legal action. Will we get a vote after that? I believe that all the other arguments used to explain why there cannot be a vote tonight are just procrastination. The people of Northern Ireland are fed up with this place and the other place not really ever accepting that they are part of the United Kingdom. I wish people would be honest. There are Members in this House who do not want Northern Ireland to be part of the union but they will not say it. Behind the scenes, we in Northern Ireland do not believe that we have the total support of Peers in this House and Members of Parliament in the other House. I believe that we should be voting on this tonight, but I am aware that there are Members here who have said to me that they genuinely do not think that this is part of this Bill—that it should not be in it. I do not agree with them, but I know that they will use that as their reason—understandably and perhaps genuinely honestly—not to support it.

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Moved by

[Lord Caine]

9: Clause 8, page 8, line 11, leave out from “force” to “the” on line 12 and insert “on”
Member’s explanatory statement
This amendment provides that the default position is for the Bill to come into force on the day on which it is passed (rather than two months later).