Northern Ireland (Regional Rates and Energy) (No. 2) Bill

Lord Duncan of Springbank Excerpts

Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 19th March 2019 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the amendments in the names of my noble friends Lord Empey and Lord Rogan. I call them both my noble friends of over 20 years, despite the eccentric seating in place today.

This is a sorry business, all of it—a terrible mess. The whole situation in Northern Ireland for the last two years started with the collapse of this appallingly planned scheme. We cannot get away from that. Sir Patrick Coughlin is currently conducting an inquiry into the scheme, the courts are ready to pounce and the Northern Ireland Affairs Select Committee has been asked to look at it as well. The difficulties go back to the way the legislation first came to us. There should not have been a Bill that, on the one hand, decided the regional rate in Northern Ireland and, on the other, decided the details of the RHI.

Equally wrong was the length of time taken by the department in Northern Ireland to deal with its consultation process. As a result, apparently, all the details that we need to consider for the Bill did not arrive until January, even though it was known full well that the previous Bill put forward was sunsetted to end at the end of March. This meant there would be totally inadequate scrutiny of the Bill by Parliament. What is done is done, but it means that we are in a mess. The noble and learned Lord, Lord Mackay, referred quite rightly to the fact that some of the people who, in good faith and on the advice of the Government, went to their banks and decided to take out loans to deal with this issue are now in a terrible mess. What happens to them? The Government are in a dilemma—partly one of their own making, because of what I have just referred to with respect to process.

If we do not pass the Bill, there will be no regional rate in Northern Ireland and the scheme will collapse, so people who are currently benefiting from it, in whatever sense, will not have any money to deal with it. At the same time, in the other place, the Secretary of State welcomed the Select Committee on Northern Ireland looking at it. Perhaps she did not realise that, under the circumstances of the Bill, it would have just under two weeks to consider it, which of course is impossible.

The Government and the Minister in particular, who has been rightly praised by all sides of the House on this and other issues, have to come up with a solution that will satisfy my noble friends Lord Empey and Lord Rogan, and the rest of us, about what can be done. They to ensure that the rates are collected and that the scheme does not collapse but, at the same time, looks after the people who took part in this scheme in good faith. There may well be ways the department could look sympathetically at cases in Northern Ireland. There may also be a way, although I cannot see what it would be at the moment, for the Northern Ireland Affairs Select Committee’s recommendations to be taken into account after the legislation has been improved, unless further primary legislation could be brought before this House to amend the Bill we are considering—it may come to that.

A general point has to be made: so long as there is no devolution in Northern Ireland, with no Assembly or Executive, we cannot have Northern Ireland legislation coming to us in bits or as emergency legislation that denies proper scrutiny. The dilemma that all of us, and the Government in particular, are in today results from the fact that the business managers have not taken Northern Ireland legislation seriously. That has to change, until such time when the institutions are revived in Northern Ireland, which I hope will not be that long away.

These Benches will support a Division, if my noble friend Lord Empey calls one. I hope that can be avoided with what the Minister is about to tell us, because we want to ensure that the legislation goes ahead. However, we also want to ensure that the hundreds of people in Northern Ireland who are now in a sorry state because of this RHI can be dealt with in a proper, decent, humane manner.

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

My Lords, I will begin in a slightly eccentric way. I have to make a correction of one of my earlier statements. In the debate last week, I stated that,

“the scheme in Great Britain is a 20-year scheme, whereas that anticipated in Northern Ireland is a 15-year scheme”.—[Official Report, 12/3/19; col. 1009.]

Noble Lords will no doubt realise that I meant to say that the anticipated scheme in the Republic of Ireland, not Northern Ireland, is a 15-year scheme.

That was the easy bit. I will see what I can do to take us forward. Let me begin at the beginning. All the points made by noble Lords this evening on the amount of time and the manner in which scrutiny has been facilitated in this House have landed, and landed well. It is not acceptable that this House is treated like a rubber ball to be bounced gently into some sort of decision. I accept that. It should not happen. There needs to be proper scrutiny in this House and in the other place—now more than ever, in the absence of an Executive.

On combining the two elements of the Bill—namely, the regional rates and the heating incentive—there is no doubt that they do not fit comfortably together. There is also no doubt that, depending on your Lordships’ will this evening, the situation regarding the heating incentive will have an impact on the regional rates. These rates remain an important element of the overriding Northern Ireland budget. That combination was a mistake and I do not think we should ever find ourselves in a situation with two elements which clearly do not fit comfortably together. I need to reflect on that. There should be opportunities for this House to look at them separately and, where appropriate, give endorsement to that which it seeks to endorse, and criticism and understanding to that which requires further work.

[Lord Maginnis of Drumglass]

I apologise for interrupting the Minister. In reference to the mistake he just alluded to, would I be right in saying that this was not a mistake but a tactic which emanates from the Northern Ireland Office and which, despite the good offices of the noble Lord and others, has landed us in this situation?

[Lord Duncan of Springbank]

The noble Lord makes an interesting point. Unfortunately, I will not comment on it at this particular moment. The reason the noble Lord, Lord Empey, and I seemed to be scrambling to get in here at the beginning of this debate was because we were sitting next door trying to work out how we could find a way through some of the challenges encountered this evening. I am blessed that he managed to find his way to his place and that I did too.

--- Later in debate ---

[Lord Lexden]

When did the European Commission’s limit of 12% become known?

[Lord Duncan of Springbank]

Interestingly enough, this was always known; it was just never fully understood or applied. What the Government here have sought to understand is exactly what information the Northern Ireland Executive has been in receipt of. We have been very clear about pinning that down, because the 12% was always there; it was simply not used correctly, which allowed it to spiral massively, up to and in excess of 50%. We have had sight of correspondence from the European Commissioner that tells us very clearly that, were we to maintain the rate as it stands, we would be in breach of state aid rules. Civil servants in Northern Ireland—noble and diligent as they are—cannot move forward on the basis of an illegal rate. That is why we find ourselves where we are today.

I will touch on a couple of points made by the noble Lord, Lord Empey. He notes that this proposal really covers the medium-sized boilers. He is correct that it does not affect the larger boilers or the micro boilers. These matters were to be considered after we had settled this question, which covers the bulk of boilers in Northern Ireland. That said, the issue is a very simple one, and the noble Lord, Lord Cormack, put it very well: it is fairness, justice and equity. That is the issue we need to address tonight.

There is no question that the individuals who have emailed us, setting out their case and their distress in black and white, must get an adequate response. I am hopeful that I can put forward a proposal to the noble Lord, Lord Empey, and the noble Lord, Lord Rogan, that will help us move this matter forward, but your Lordships must be more of a judge of that than I am. My proposal is that the Department for the Economy in Northern Ireland—not on our instruction but because it believes it to be the right course of action—sets up a unit within the department, under independent chairmanship, that will be responsible for examining the case of every individual who has received funds from the RHI initiative and believes that they have experienced hardship. I propose that each element of their case is considered in thorough detail and with their participation, in order to understand exactly what that hardship looks like.

As a consequence of that, and with the Northern Ireland Affairs Committee inquiry running alongside that, those two elements should together help inform the part of the Bill that covers the issue of the voluntary buy-out. Currently, the voluntary buy-out is more or less a statement that lacks mechanical details. If we construct the buy-out to adequately and appropriately meet the needs of the farmers who rest within it, it could be adjusted in accordance with these elements. At the same time—and necessarily—the Northern Ireland Affairs Committee will consider future issues, and this should inform the overall functioning of this—not just the buy-out but the wider questions that rest within it.

Now, I will not try to sell your Lordships a pig in a poke, so what I will need to do to make this function properly is lay a written report before your Lordships’ House, so that your Lordships can see what this would look like in practice. There is no point in pretending that this can be achieved in a fortnight—there are too many cases that need a thorough and detailed examination. The point is, however, that we need to be in a situation where the compensation element is adequate and informed by these elements. If we can move forward on that basis, we can go some of the way towards meeting the issues raised by the noble Lord, Lord Empey.

[Lord Cormack]

My noble friend is obviously trying very hard to be helpful, for which we are grateful. Would it be possible, on Third Reading, to add a short schedule to the Bill that would refer to this proposal?

[Lord Duncan of Springbank]

I always like to be asked a question, and I turn my eye gently and think: I have no idea of the answer to that. I will, however, find out the answer and report back to the noble Lord in real time as soon as it is available.

The reason that I am putting this proposal before your Lordships’ House tonight is because it would be unfair to pretend that we can treat all those individuals as an average; we need to see each in their own terms, understand how their world fits together and how this invidious scheme has been constructed to their detriment. It is unfair of this or any Government to expect those acting in good faith to be penalised for that. We must also be cognisant of the draw on the public purse—there is no point pretending that there is a bottomless pit of money for our approach to this matter. The noble Lord and I have, however, had discussions about what moneys might be required.

It says here, “No to bringing back on Third Reading”. I am afraid, therefore, that the answer to the question from the noble Lord, Lord Cormack, is no. I can, however, put on record that we will need to understand the timing of this to be able to deliver it—without the timing there is a risk it will drift into the long grass. I give an assurance that we will be able to—

[Baroness Harris of Richmond]

While the Minister is looking at that for Third Reading, can he also indicate how much will probably need to be put aside for this independent review?

[Lord Duncan of Springbank]

The noble Baroness asks a question to which I once again do not have an adequate answer, but I think that it would be fair to say that appropriate funds must be set aside to address these issues. That might seem a vague assertion, but it need not be. I recognise that, where those hardships have been iterated and are evidence based, there should be support for the individuals concerned. I am afraid that I do not know what the overall sum would be; I know that the sum set aside under current arrangements is £4 million. Clearly, if there are to be adjustments to those arrangements, there will need to be adjustments to that figure, and I suspect that they would be in the upward and not the downward direction. As to the exact figure, I am afraid that I do not have that information. If I am to report back to the House in a Written Statement, I think that I will be able to put the figure to the House very clearly, because, by that stage, we would know exactly what this looked like.

I do not know whether that satisfies the noble Lord, who is sitting on the friendly Benches behind me, but I hope that it is. I hope that both he and the wider community recognise that we are seeking to ensure that we make progress.

A number of noble Lords have raised the issue about what happens with the grandfathering clause. The grandfathering clause of 1 April creates serious problems for us. Moving forward on that basis would mean that we were unable to ensure the functioning of the scheme full stop, let alone at any rate which noble Lords might wish to see or set. In addition, as we see the scheme moving forward, we need to make sure that it is fully compliant with the base of the law. We have also to recognise that expecting civil servants in Northern Ireland to act in a fashion which they know to be illegal is simply not possible nor a fair request of that service. It is for those reasons—and I am loath to say it—that we must move forward within the basic structure and parameters of the Bill but allow for the adjustments that I have outlined, which I believe will take us some way to address the genuine hardships which have been reflected to all here gathered.

[Lord Maginnis of Drumglass]

I apologise for interrupting the Minister again, but will not his solution lead to a divide-and-conquer situation? Do we have any idea of how many individuals will require to give evidence, what the length of time will be and whether that will again be manipulated to take us out of the time limits that have been placed on us?

--- Later in debate ---

[Lord Duncan of Springbank]

The noble Lord is correct to ask about the parameters. I cannot say with accuracy what the exact numbers are. I am aware of how many emails I have received—that number is 75—but I suspect that there are many more. I am not sure whether we are all copied into the same 75, so there may be considerably more even within this round, but there are a significant number. There will be those whose participation in the scheme is not subject to the various issues which we are taking forward today because they are functionally comfortable within the returns that they have been able to expect, but there will be those—the 75 may be a reflection of that figure, but it could be higher—who find themselves in the invidious and unpleasant position of being in financial constraint and hardship as a consequence of simply being faithful to the guidance given by Ministers and civil servants in Northern Ireland. It is to those we must turn our attention.

As many noble Lords will be aware, the scheme was such that there will no doubt be participants who have sought to benefit from a remarkably generous scheme. To those, the notion of hardship will not necessarily apply in the way that it does to those who have written to us setting out in some detail the pain and disaster they face as a consequence of this situation. I hope that there will be adequate time for this. We need to ensure that we move in a more appropriate fashion; we cannot allow this to be delayed.

--- Later in debate ---

[Lord McCrea of Magherafelt and Cookstown]

Can the Minister clarify the position on a question which I asked? Should the Northern Ireland Affairs Select Committee find that an injustice or inequality has been done, given the tariffs received by those in England or those in the Irish Republic under the state aid rules, will the department ensure that that will be rectified immediately and further repayment made accordingly?

[Lord Duncan of Springbank]

One of the challenges in trying to compare the schemes across these islands is that a like-for-like comparison of the various elements is hard. However, the rate of 12% is broadly the constraint within which all must operate, because that is the state aid rule. Were the NIAC to discover a particular inequity which breaches beyond that point, they would be compelled to act in that regard. However, the 12% being applicable to all should mean that there is fairness. The noble Lord should be aware that, because the earlier scheme in Northern Ireland set its returns at such an extraordinary rate—upwards of 50% —the challenge remains that any adjustment thereafter down to 12% on the basis of averages would take that 12% higher than it would otherwise be, had it been 12% at the outset. I do not wish to make any particular point about that issue, I merely note that the challenge is now to remain within the law as specified by the European state aid rules.

[Lord Kilclooney]

One of the problems with the Bill, which has already been underlined during the debate, and which the Minister has been honest enough to state himself, is that it is wrong to link rates—which is council tax in England—with this heating scheme. They are two totally separate subjects and should not be in one Bill. Should the Bill be rejected, would it then be possible to introduce urgent legislation for rates only?

[Lord Duncan of Springbank]

The noble Lord is right to raise that. I dearly hope that we do not reject the Bill now because, even if we were to act with a certain degree of urgency, it would still be a delay to what we need to deliver in terms of the rates themselves. If we are unable to address the rates question in real time, we are talking about a substantial loss to the revenue of Northern Ireland.

I hope that noble Lords will recognise that the endeavours this evening have been solely for the purpose of trying to address the genuine hardships experienced by those in the scheme. The purpose of the Bill is to make sure that nobody is considered to be part of an average and that each individual is seen as such. That data will then be used to inform the development of an appropriate element of the overall bill which will then be determined and placed before noble Lords in written form, so they can see it. There is no attempt on my part to mislead the Committee or to sell noble Lords something in a poke that you cannot put your hand into.

I hope that this is adequate for my noble friend Lord Empey. I know how much effort he, and all the Northern Ireland Peers, have rightly put into this matter. It concerns them on their doorstep, but it concerns all of us in these islands. Equity, fairness and justice must be the cornerstone of any Government. I hope that we have been able to reflect this evening on what this Government can do, within the constraints of state aid rules and the wider timing question. I hope that, on that basis, the noble Lord will be able to withdraw the amendment.

[Lord Empey]

My Lords, I am grateful to the Minister for his contribution. I also thank the noble Lord, Lord Murphy, from the Labour Party, and the Liberal Democrat Benches, for supporting these amendments alongside other colleagues on this side of the House. I just want to repeat my interpretation of what I think the Minister is saying, because if you withdraw amendments at a point such as this, it is your last throw of the dice and you lose control of the whole process.

First of all, the Minister is not in control of the Northern Ireland Department for the Economy; that is a fact. Therefore, in the Budget, £4 million was set aside in each of the next three financial years to deal with the buyback or buyout scheme. If that was simply looking at the individual burner in isolation, I could understand why such a sum of money might be payable. But, of course, many users used the profit on the boiler, perfectly legitimately, to lever out additional borrowing to do other things. The point that my noble and learned friend Lord Mackay of Clashfern has made all along is perfectly true: there is a moral issue. There is also, of course, a legal issue, but that will follow its proper course.

If I recall correctly, the facts, according to the Minister, are these. One point I understood him to make is that, as of 1 April, there is no ability for the state to pay subventions for these boilers—the point made, I believe, by the noble Lord, Lord Browne of Belmont. On the European issue, I would argue that the scheme has been ultra vires state aid for a long time, not just now. It has been wrong from the very beginning, when payments in excess of a 12% return were made. As my noble friend Lord Lexden said, the 12% figure was set in the original letter in 2012 by the European Commission, approving the scheme in the first place. From that point, the 12% was always there but, of course, it went astray.

Let us get back to the point of fairness, justice and equity, because that is the key to all of this. We want to ensure that people get fairness, justice and equity, bearing in mind that the taxpayer has a big stake in this as well. Originally, a compensation or buyout scheme was planned. This is my interpretation of what the Minister is saying; if he disagrees with anything, perhaps he will let me know. He is saying that the status of that group will be upgraded to the point where it will not be an internal issue within the department but will be chaired by an independent, outside person who is not a member of the Northern Ireland Civil Service. He is saying that he will put forward, in writing to this House a Statement setting out the terms of reference. The question I need to ask him is: how does he do this when he is not in charge of the department? At the end of the day, my anxiety is that if we let the thing go, it will slither away, and somebody somewhere will say, “Well, I’m not doing that. The Minister can give an undertaking to the House of Lords, but he doesn’t rule me”. There is a genuine opportunity here to ensure that what is taken into consideration is not only the cost of the boilers versus the revenue that they would now be getting, but the leverage they used to ensure that the borrowings they undertook for further activities on the strength of that. That is the key issue, which was missing—if I may say so—from the original suggestions.

Can the Minister confirm those two points? Can he also reiterate for our benefit the answer that he gave—either to the noble Lord, Lord Browne, or the noble Lord, Lord McCrea of Magherafelt and Cookstown—about the legality and so on? I do not worry about the state aid issue because, in my view, we have been wrong on that from the very beginning, and it has gone on for years without any legitimacy. But could he just clarify those points before I conclude?

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, I thank the noble Lord for affording me the opportunity to make some points of clarification. He is absolutely right to say that I am not in charge of that department. My comments are based on conversations earlier today with senior officials in the department. I cannot instruct them, but the discussions led to that proposal, which I believe would be a step forward for noble Lords this afternoon and this evening, on that basis—not my instruction but rather an acceptance on their part that this would be the right way to move this aspect forward. On the terms of reference, yes, these need to be very clearly understood. Financial hardship must be understood in all its manifest forms and I believe it would be incumbent on all those who are investigating and considering to ensure that all aspects of financial hardship, whatever their source or their cause, are examined in detail to ensure that there is a fair and equitable understanding of the situation. So I think the answer to that is yes.

As for what happens on 1 April if we have not made progress, it is very simple: we will not be able to move forward on this scheme, because as a number of noble Lords noted, we have grandfathered in the clause to end on 1 April. At that point, irrespective of our desire to be able to offer or afford support, without the legal underpinnings we will not be able to do so.

On state aid, there has clearly been a kerfuffle, for want of a better word, in Northern Ireland over what that rate should be, but the one thing that has been clear throughout is that the European Union Commission has had no dubiety about what it should be: it has been very clear that it should be 12%. That this has been, one might argue, misinterpreted by certain individuals in the Province is the reason we are having this wider discussion tonight and why there is a particular scandal being investigated across in Northern Ireland. None the less, we are still bound by that rule—namely, state aid at 12% return—and we cannot move away from that.

I hope those points of clarification help the noble Lord to move forward.

[Lord Mackay of Clashfern]

I should like to be absolutely certain that there is nothing in the Bill that damages any legal right that people had in Northern Ireland as a result of dependence on the action of the Northern Irish Government taken on behalf of that Government by authorised officials or Ministers. Because that is the fundamental matter: if that is not affected by the Bill, the way in which matters should be brought forward to encourage that is perfectly reasonable as a way forward. The fundamental point is that the legal rights of those who may have been damaged by their contract with the Northern Irish Government, through Minister or official, would not be touched.

[Lord Duncan of Springbank]

My noble and learned friend makes a useful point. I can happily confirm that this will not affect the legal rights or standing of any of those who have been affected by the scheme thus far.

[Lord Empey]

I thank the Minister for those points of clarification. He will be aware that everybody who spoke in this debate was basically on the same page: we want to help these boiler operators and owners. We want, as he put it, fairness, justice and equity. I have to say to him that if we accept these assurances—if I withdraw the amendment—and we were to find subsequently that these conditions were not being honoured, in spirit as well as in letter, there would be a great deal of anxiety and angst in this Chamber. The Minister needs to be very clear about that, because there are more people in this room tonight than I have seen here on a Northern Ireland issue for years. He knows, and his colleagues in the Northern Ireland Office and in the Department for the Economy who are watching this know. I had the honour to be Minister for the two departments that were merged into this department, so, to coin a phrase, I know who they are and I know where they live.

We are talking about the livelihoods of good, honest, decent people and it is the will of this House to see that justice, equity and fairness is delivered to those people. If there is any variation or moving away from that, there will be a lot of very angry parliamentarians. On that basis, I beg leave to withdraw the amendment.