Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Duncan of Springbank Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the Bill be now read a second time.

Relevant Documents: 15th Report from the Constitution Committee, 36th and 37th Reports from the Delegated Powers Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, as I have said on many occasions, the Government remain emphatic in their support and advocacy of the Belfast agreement. The beating heart of the Belfast agreement is a devolved power-sharing Executive Government, and for that reason the restoration of a devolved power-sharing Executive is our top priority. Much to our regret, and despite our best efforts, there remains no devolved government in Northern Ireland. I believe we all share a common view that this is not good, particularly at this serious and important time. Let there be no doubt: the people of Northern Ireland need and deserve a devolved Government—a sustainable, stable, fully functioning and inclusive devolved Government.

I would much rather not be here—I suspect that many of your Lordships might share that sentiment—and that the Bill was not necessary. However, for reasons we have discussed before, sadly it is. As a Government we remain committed to taking those decisions necessary to provide good governance and political stability for Northern Ireland. This package of measures is a key staging post toward restoring a devolved power-sharing Executive and Assembly.

I do not doubt that the debate that follows will be wide-ranging. However, I shall state at the outset what the Bill seeks to achieve. The purpose is threefold. First, it will create a time-bound period for the intensive talks necessary to create an Executive. Secondly, it will ensure the functioning of the Northern Ireland departments during that period. Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers in the absence of Ministers, and will be underpinned by guidance that will help Northern Ireland departments judge whether those powers should be used in the absence of Ministers. Finally, it will seek to ensure that key public appointments are made.

I thank the Delegated Powers and Regulatory Reform Committee and the Constitution Committee of this House, and I put on record both my appreciation and that of my right honourable friend the Secretary of State for Northern Ireland for their hard work in scrutinising and publishing the reports on the Bill so very quickly. We accept the Delegated Powers and Regulatory Reform Committee’s recommendation that the power enabling the Secretary of State to add offices to the table in Clause 5(2) should be subject to the affirmative procedure. The Constitution Committee raised concerns about that procedure and the fast-tracking of the legislation. We agree that this should not become the norm and that it should not be considered to set a precedent.

On the specifics of the Bill, first, it extends the period provided for in the Northern Ireland Act 1998 for Northern Ireland Ministers to be appointed before the local elections in 2019. As your Lordships will be aware, because Ministers were not appointed by 29 June 2017, the 1998 Act requires a further election before an Executive can be formed. As set out in my right honourable friend the Secretary of State’s Statement of 6 September, an election at this time would neither be helpful nor improve the prospect of restoring the Executive. From our engagement with Northern Ireland parties, we believe that this view is widely shared. Nor is the prospect of direct rule an attractive one. The provisions of Clause 1 seek to create a period in which an Executive can be formed and talks can take place, by removing that current legal impediment to an Executive being formed for a defined period.

The Bill also provides, in Clause 2, that this defined period may be extended once, for up to five months, removing the need for further primary legislation in the event that, for example, a short extension is judged necessary to finalise an agreement and form an Executive. I assure noble Lords that we will not be waiting until March to bring the Northern Ireland parties together. Following the passage of this legislation, my right honourable friend the Secretary of State intends to meet party leaders to discuss the basis, process and timing for further talks. My right honourable friend will also welcome all efforts to improve and enhance the political dialogue between the parties in Northern Ireland—including Church leaders and Members of this House—to discuss how best to encourage meaningful political engagement towards the restoration of an Executive.

With regard to decision-making, during this period, in light of recent court judgments, Northern Ireland departments require certainty and clarity. Their decision-making powers in the absence of Northern Ireland Ministers have come under close scrutiny. The Bill makes clear that a senior officer of a Northern Ireland department may exercise departmental functions in the absence of Ministers during the period for forming an Executive, if the officer is satisfied that it is in the public interest to do so. The Bill also requires the Secretary of State to publish guidance on the exercise of departmental functions during this period, including the principles to which senior officers in Northern Ireland departments must have regard when deciding whether to exercise a decision-making function. A draft copy of this guidance has been published and placed in the Library of the House.

The Bill stipulates that the Secretary of State must have regard to representations from Members of the Northern Ireland Assembly before publishing the guidance. Similarly, my right honourable friend would have regard to such representations should the need for revised guidance arise. We would also welcome representations from UK parliamentarians as well as MLAs on its content before a final version is published, something the Secretary of State intends to do shortly after the Bill receives Royal Assent.

The principle established by this Government’s interventions over the past year is that we will legislate where doing so is necessary to protect the delivery of public services and uphold public confidence in Northern Ireland. But let me be clear, while the NICS needs certainty in respect of decision-making powers, these measures do not set or change policy direction on devolved issues in Northern Ireland. That is for a restored Executive and Assembly.

The principles underpinning decision-making are set out in guidance rather than on the face of the Bill, as Northern Ireland departments need a degree of flexibility and discretion to enable them to reach appropriate and necessary decisions and ensure the continued delivery of public services in Northern Ireland. We have engaged closely with the NICS during the development of the draft guidance. The factual information provided by it has informed the approach we have taken.

This Government also recognise that, in the absence of an Executive, there will be some decisions that we, the UK Government, should take, such as setting out departmental budget allocations for approval by Parliament to ensure that public services continue to function.

Noble Lords will be aware of some new elements to the Bill since it has arrived in our House. There was a series of amendments to Clause 4. To be very clear, the clause requires the Secretary of State to issue guidance to Northern Ireland departments on how to exercise their functions in relation to Sections 58 and 59 of the Offences against the Person Act 1861 and Article 13(1)(e) of the Matrimonial Causes (Northern Ireland) Order 1978 and wider human rights. The Secretary of State would also be required to report guidance under this clause on a quarterly basis to the other place, and set out her plans to address the impact of the absence of Ministers on human rights obligations in Northern Ireland within three months of the day on which the Bill receives Royal Assent.

[Lord Steel of Aikwood (LD)]

I am most grateful to the Minister for giving way. He will recognise that Clause 4, which was inserted in the Bill in the other place, is quite modest in its objectives. During the Brexit negotiations we have been told we cannot have a line down the middle of the Irish Sea affecting trade differently in one part of the United Kingdom from the other. Yet we have a line down the middle of the Irish Sea, affecting the human rights of one part of the United Kingdom, compared with the rights of the rest of the United Kingdom. The Supreme Court in particular, in relation to abortion, said recently,

“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate … the present law clearly needs radical reconsideration”.

What are the Government going to do about that?

[Lord Duncan of Springbank]

I hope that the noble Lord will allow me to expand on that later. However, in response to him directly on this issue, the Supreme Court judgment to which he refers was based on an absence of standing, which therefore created another technical issue—it was technical only, but it is important to stress that. We already have lines around our United Kingdom, because they are lines of devolution as well. The devolved settlements are important and have a role to play in this. I do not doubt that we will expand on that as certain amendments are discussed later today. However, I of course recognise the point that the noble Lord has raised and will report on it directly in due course, but perhaps he will allow me to continue.

The important aspect here is that, as the honourable Member who drafted the amendment has acknowledged, the new clause does not alter the law in Northern Ireland. This was not a clause that the Government sought but its inclusion was clearly the will of elected Members of the other place. I appreciate the sensitivities around the issues that the clause addresses. Abortion law and same-sex marriage have previously been subject to debate in this House and indeed in the Northern Ireland Assembly. As your Lordships know, these issues are devolved and should, rightly, be determined by an incoming Assembly. However, as I stated, the new clause does not change the law in respect of the wider legal framework in respect of either.

Finally, the Bill contains provisions to address the urgent need for key appointments to be made in Northern Ireland and to certain UK government-sponsored bodies where those appointments would normally require the involvement of Northern Ireland Ministers. Clauses 5 to 7 ensure that key posts can be filled while minimising the extent of UK government intervention in what are, rightly, devolved matters. Clause 5 would allow the relevant UK Minister to make certain specified appointments, exercising the appointments functions already conferred on Northern Ireland Ministers. As my right honourable friend the Secretary of State set out in her Written Statement on 18 July, these posts are the most pressing and urgent appointments, as they are essential to the maintenance of good governance and public confidence in Northern Ireland. They include the Northern Ireland Policing Board, the Probation Board for Northern Ireland, the Northern Ireland Judicial Appointments Commission and the Police Ombudsman for Northern Ireland. The Bill takes this focused approach rather than conferring a blanket power on the Secretary of State.

It is also important that we provide for other vital offices which might unexpectedly become vacant. For this reason, the Bill includes provision to add to the list of offices by means of a statutory instrument allowing the relevant UK Minister to exercise Northern Ireland Ministers’ appointment functions in relation to additional specified offices. This power would be used only if the appointments were urgent and necessary, and my right honourable friend the Secretary of State would of course consult the main Northern Ireland political parties before bringing forward regulations.

A large proportion of appointment functions in Northern Ireland are conferred on Northern Ireland departments. The provisions that I outlined earlier dealing with departments’ decision-making powers would provide the necessary clarity to allow the Northern Ireland departments to be able to exercise those appointment functions conferred on them during the formation of the Executive. It does not transfer to them any appointment functions currently conferred on Northern Ireland Ministers.

The lack of an Executive has also affected appointments to UK-wide bodies, as a small number of these require Northern Ireland Ministers to be consulted or to agree an appointment made by a UK Minister. The most pressing example is the appointment by the Home Secretary of a new chair of the Disclosure and Barring Service. Similarly, joint appointments are made by UK and Northern Ireland Ministers. The Bill addresses such appointments by allowing them to be made in the absence of Northern Ireland Ministers but it retains the Northern Ireland input by requiring the UK Minister to consult the relevant Northern Ireland department. The powers given to UK Ministers under Clauses 5 to 7 would expire when Northern Ireland Ministers were appointed and an Executive formed.

The people of Northern Ireland deserve strong, locally elected, accountable individuals sitting in an Assembly, and they deserve a functioning, sustainable devolved Government. Achieving that is our priority, and we continue to be focused on achieving it. On that basis, I commend the Bill to the House.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, to use the term “wide-ranging” for today’s debate would be an understatement. I shall try to do justice, as best I can, to each of the points that have been raised. I hope that noble Lords will forgive me if I miss any points, as that will not be deliberate, and there will be an opportunity to pick them up later.

I begin with the obvious statement that it is now 22 months since there has been a functioning Executive. If we are successful and secure the passage of the Bill today, and it takes the full five plus five months, it will be 32 months since there has been a functioning Executive. That is an extraordinary period of time without functioning government, and I am drawn in particular to the remarks of the noble Lord, Lord Dunlop, who reminds us that while much is going on in Northern Ireland, much is now stuck in limbo. Whether it be corporation tax, questions of the north-south interconnector, the implementation of the Harper report, even the functioning of the joint ministerial committees, all are stuck in limbo, all are a loss for the people of Northern Ireland and this is a negative, not a positive. We cannot lose sight of that reality.

Of the three parts of the Bill, the first is designed to address this very issue. The noble Lord, Lord Murphy, paints a very clear picture: “What on earth are you going to do differently now? Otherwise, you run the risk of simply repeating that which has gone before”. So we do need to be moving forward, and on the question of an independent mediator, we are exploring that. There needs to be change, and that is one example. In terms of how we configure the meetings, their frequency and intensity, whether it be home or away, or however we seek to do it, there needs to be a new momentum. This is now—I have said this before—the last point at which we can move this forward. It is not an easy thing to stand here; I listened with a wry smile when the noble Lord, Lord Empey, said I have an ability to say nothing with great conviction. That would be quite a talent, but I hope I can give a little bit more of something rather than nothing today.

The issue we are facing now is that we need—several noble Lords mentioned this—something which is not mechanical. I have spoken often about this agreement as being like an engine or a machine that involves engineers and mechanics. There is also a spirit inside it, and that spirit of co-operation needs to be there. I noted that one noble Lord said, “You cannot legislate for trust”. You cannot legislate for spirit either, but without it, you cannot get the engine working. That is the most telling thing of all.

The Government continue to invest in Northern Ireland. There are ambitious projects going forward. Yesterday’s Budget was a revelation regarding where we can see money going forward—both into the Belfast city deal and the Derry/Londonderry deal. To the noble Lord, Lord Kilclooney, I say, get Armagh to write to me now as they need to be part of the widest possible deal. The whole mosaic of Northern Ireland should be captured inside the city deal framework.

I say to the noble Lord, Lord Dubs, that the £320 million released under the Budget for co-operation within education is available now and will be spent in the time available. It is absolutely right that it should be so, but there is no point in pretending that this is a substitute for local decisions made by locally elected individuals. There must be a functioning and sustainable Executive who can carry with them the trust and certainty the people of Northern Ireland deserve.

The noble Lord, Lord Eames, reminds us that we have a near unique society which has gone through the Troubles in the widest and darkest possible sense, and that there are wounds to be healed. Those wounds cannot simply be healed by putting money into the Province—that is not where they come from. It is about a trust and belief that the institutions of Northern Ireland can function and deliver the outcomes the people deserve. Without that, there is almost no purpose in having the Executive at all.

There are three parts to the Bill before us. The first, although difficult to realise, is straightforward in one sense: it is creating a window of opportunity for those negotiations. The second is a challenge, and there is no point pretending otherwise: how do we ensure that the civil servants are able to function in such a way that they have confidence in taking decisions? One of the questions asked by a number of noble Lords is: what is the urgency for this Bill to go through so quickly? One of the answers is that there is now a backlog of decisions in Northern Ireland, which have not been taken because civil servants do not have the confidence to take them. Those are not decisions that usurp the authority of Ministers. It is the quotidian, daily functioning decisions that must be taken to ensure good governance inside the Province. That is why we are issuing clear guidance—this is not an attempt to do direct rule lite. We have lodged the guidance in the Library, and noble Lords can read it and see where it is coming from.

We are ensuring that all those decisions taken by civil servants are fully transparent and are recorded and lodged each month, so we can see exactly what they are and understand what they are trying to do. Let us be frank about it: it will not allow civil servants to take bold, grand decisions which do not rest upon a solid foundation. We cannot ask those civil servants to display that level of courage. It is not appropriate to do so. That must rest with an elected Executive. A whole range of questions that we are all too familiar with will require that level of activity. I say to the people of Northern Ireland that the great shame right now is that this will not help those decisions to be taken. It will help the daily decisions to be taken with some confidence, but the bigger decisions await the arrival of a functioning Executive. That in itself is a serious challenge.

I have no desire to be critical of the Northern Ireland Civil Service; it is doing an extraordinary job in difficult circumstances. I note the circumstance that the noble Lord, Lord Maginnis, has raised once again, but the wider question of where that Civil Service stands is to be broadly applauded.

On the third part of the Bill, we have been very careful not to try to give a blanket power to my right honourable friend the Secretary of State to create appointments without due recourse to the affirmative procedure, which allows full scrutiny. We have tried to put on the face of the Bill only those appointments which are urgent and pressing and need to be made now. However, there are now other means whereby, in extremis and emergency, we can move forward under that approach.

Those are the three component parts of the Bill, but there is another part, which arrived in the other place. That was not at the behest of the UK Government, who did not seek that amendment. However, it was put forward, there was a vote, and that amendment has now come to us. It has not come through some illegitimate means, but through a proper means. One can debate what it is intended to achieve—and sometimes the interpretation granted by the media is a little unhelpful—so let me be as clear as I can be. I listened to the noble and learned Lord, Lord Mackay of Clashfern. The clause in question does not confer new powers within the established procedure. It does not allow, in the guidance which will be issued, the civil servants to upset, ignore or run in contravention to the law.

I note the useful and important comments made by the noble Lord, Lord Alderdice, about how guidance can be used in a sensible way to understand the law as it is today. As someone who comes from part of the kingdom which has a fully functioning devolved Government, I stress again that these decisions must be taken by the devolved Administration in the north of Ireland. There is no point in pretending we can usurp democracy in that fashion, simply because devolution is not to our liking. Devolution must function even when it is not as we would like to see it, but rather, how it must be.

Let me also be clear that it is not the desire of the Government to push this to a vote in any sense at all, but rather to recognise that which is here with us today. The guidance itself will not in any way seek to undermine the functionality or reality of the law. It is important we understand what it will do. It is not our desire to move into an issue of conscience—this must rest with the individual Peers gathered in this House today, should it come to a vote.

We come to a very simple point, raised by the noble and learned Lord, Lord Mackay: irrespective of what emerges from the Supreme Court decision, which I do not doubt will emerge very soon, there will be a simple question of what that ruling means for the law. Ultimately, that new law will have to be made by the elected representatives of Northern Ireland, fully recognising all aspects of the community and that all individual voices need to be heard. It is not for us today to do that.

I turn briefly to the remarks made by my noble friend Lord Hayward. I am not unsympathetic to the point he makes about being able to send a message. Sometimes a message does indeed need to be sent, and sometimes it needs to be received too. I am not unsympathetic to that, but it is slightly different from what we must do here as a functioning legislature in that regard. I hope that will help us move that forward.

There are some other elements that we need to touch on very briefly. The question of the petition of concern has been raised. We are not averse to this being re-examined, resting broadly upon the principle of full engagement with all parties to ensure we can move it forward into a new but none the less fully supportive form. We would not be averse to that; how to achieve it is certainly something we can think about.

I listened with interest to the noble Lord, Lord Alderdice, who again raised some very interesting points that I would like to discuss with him further so that we might have an opportunity to fully explore some of those aspects. If he will forgive me, I would like to have that meeting afterwards. I will happily produce a note of that meeting so that it can be shared with all. I am not trying to keep secrets from the rest of your Lordships here gathered.

I say to the noble Lord, Lord Bruce, that I am very much aware of the questions that arise in Clause 3(7) regarding the functioning of the advice and guidance. It is not the ambition or intention to undermine or erode any aspect of the functioning of the human rights legislation as it applies to Northern Ireland. I am happy to give that categorical assurance right now, on the record.

I am also aware, as I look across the Benches, of the points raised by the noble Lord, Lord Dubs. I am conscious that we will not seek to eliminate the salaries of MLAs, who have a very real and serious function. They will be adjusted, as per earlier discussions that we have been party to, but it is not the ambition to remove them, nor to eliminate the salaries that rest on the assistants of those individuals. That will also be a very important part. If he will forgive me I will write to him directly on the question of fostering refugees because I do not have the answer at my fingertips.

I am aware of the points raised by the noble Lord, Lord Alton of Liverpool, and I understand exactly where he is coming from. That is why I said earlier that this matter must be addressed by the people of Northern Ireland.

On the comments made by my noble friend Lord Trimble, I await with interest his amendment to understand what he intends. On the remarks of the noble Lord, Lord Adonis, I hope that I have given some measure of comfort on the question of mediation, and that we will be able to move forward. The question of a wider mechanism might well rest on something similar that is in the mind of my noble friend Lord Trimble. Let us see what emerges. We are not averse to looking at new methods to try to move these issues forward.

I could go on, but given the hour and that this is not the last time your Lordships will hear from me today, I will close. I say again that we hope that this can move forward in a sensible way and that we do not divide the House. If there are any issues that noble Lords wish to raise with me between Second Reading and Committee stage, I will be available for any discussions they might like to have. On that basis, I beg to move.

Bill read a second time and committed to a Committee of the Whole House.