Northern Ireland (Miscellaneous Provisions) Bill

Lord Empey Excerpts

Tuesday 4th March 2014 Lords Chamber

[Lord Empey (UUP)]

My Lords, two potential processes can affect the size of the Assembly. The noble Baroness has mentioned one process but, of course, there is a second, over which the Assembly has no control whatever—that is, if a future Parliament decides to reduce the number of seats in the House of Commons, as was the case in this Parliament. The net effect of that would have been to reduce the size of the Assembly by two constituencies, thereby reducing its membership by 12. If the Assembly decided to reduce itself to 90 Members, which would be the proposal if you reduced by one seat per constituency, it would have no control over the fact that it could subsequently be reduced to 80; that would be an entirely separate process over which it has no control. Incidentally, I do not accept that the size of the Assembly is exclusively a matter for the Assembly. The size was determined by agreement, and therefore is at this point in time not a matter exclusively for the Assembly.

I just make the point to the noble Baroness that there are two processes that can affect the Assembly’s size. The Assembly may have control of one, but it most certainly does not have control of the other. That needs to be borne in mind. While the noble Baroness has repeated to us on a number of occasions that there is no consensus on certain things and therefore we cannot proceed with them, I point out to her that there is no consensus on this in Stormont either. It is merely setting out a stall, and I think that she was trying to respond to some of the concerns that a number of us raised. I still think that it is a tricky issue, and I caution the fact that there could be a two-stage rocket here, and that the Assembly has no control over a reduction in the size of the House of Commons, which would have a subsequent effect on the size of the Assembly.

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Moved by

[Lord Empey]

4: After Clause 7, insert the following new Clause—
“Protection of opposition status in the Assembly
After section 41(2) of the Northern Ireland Act 1998 (standing orders) there is inserted—“(3) Following a request to do so arising from a resolution of the Assembly, the Secretary of State may amend this section by order to make provision for the Secretary of State’s consent to be required (in addition to cross-community support) prior to the repeal of any standing orders that provide for official opposition status to be allocated to any party which is not a part of the Executive.””

[Lord Empey]

My Lords, I did not in my remarks on the previous group of amendments make any reference to the issues pertaining to the on-the-runs and the general conduct of government. Given that, perhaps I may be permitted some latitude.

This amendment is an attempt to accept and acknowledge the concerns of the government and opposition Front Bench that earlier amendments on the subject of opposition status would interfere with the internal affairs of the Assembly, which already had powers at its disposal if it wished to have an Opposition. However, it was acknowledged by the Minister that there were anxieties and concerns that should the Assembly provide an Opposition, that Opposition’s powers would of course be open to change and amendment by the Assembly without any guarantees being provided for the people who sought that status. The amendment asks for guarantees to be provided only if the Secretary of State was asked to do so by the Assembly. Therefore no offence is done to Sewel, and no direct interference is done to the Assembly. Indeed, only upon a request being received would this amendment take effect.

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[Lord Morrow (DUP)]

I thank the noble Lord for giving way. He refers to the potential crisis that unfolded last week. I am sure he accepts that the crisis has not gone away; rather, I suspect that it has been suspended as a result of the Prime Minister’s intervention and his announcement of a judge-led inquiry into the matter. Should that not happen, and should the terms of the inquiry not be satisfactory, then we will go straight back to where we were.

[Lord Empey]

I think that there is an element of truth in what the noble Lord says, although huge issues relating to the Human Rights Act and the Data Protection Act surround some of the conditions that were attached by his colleagues to the First Minister’s potential resignation, such as the production of a list of names. Somebody else suggested that the letters be rescinded. They have not been rescinded and I do not believe that they will be. The possession of those letters is the issue. The people who possess them can always go to the court and those Acts will be their defence. I doubt whether a court will overrule that.

In her response to the previous amendment, the noble Baroness talked about people having letters and not being investigated. However, what happens if the evidence that existed when the person received the letter is subsequently capable of further interpretation either by scientific advance or other material? What impact is that going to have on those letters, and will it be a satisfactory defence for the people who hold them?

I return to the amendment. Without doing injury to the devolution settlement, we are trying to signal that, if requested to do so, the Secretary of State would positively respond to the Assembly by providing a guarantee that opposition status could not be arbitrarily changed by the activities of majority parties at some point in the future. The purpose of the amendment is very simple. I would encourage the Assembly to go down the road of creating an Opposition but it still needs that extra guarantee. The purpose of this amendment is to ensure that that guarantee is sought by the Assembly. It is much weaker than I would have liked but, nevertheless, it does what it says on the tin. It is a response to a request from the Assembly to the Secretary of State after a cross-community vote. Therefore, I believe that it is perfectly capable and compatible with the settlement that we have before us. I beg to move.

[Lord Lexden]

My Lords, I have supported my noble friend on previous occasions on which he has brought forward amendments designed to strengthen the constitutional basis on which an Opposition would be established in the Northern Ireland Assembly. As he has explained, this is a more modest, scaled-down version of the amendments that have gone before. It still seeks to give effect to the fundamental principle, which is extremely important, on constitutional grounds, as I have said previously. My noble friend and I have listened to the Government’s view. We have held discussions with the Secretary of State. We have sought to meet the points that have been raised to render this amendment as compatible as possible with the Government’s view of the position. I hope very much at this late stage that my noble friend will be able to indicate the Government’s support for it.

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[Lord McAvoy]

I take a slightly more optimistic view. Whether I have that view or not, the fact of life is that this is for the Assembly. As I mention that, I notice the noble Lord, Lord Lexden, has a smile of experience on his face. I hesitate to say this but it is not yet in the tradition of this Parliament, although I hope that we are on the road to it. Surely the latest stramash—the incident of last week—shows that we are not there yet. But we are on the road and we should be going there.

[Lord Empey]

I thank the noble Lord. I just get the impression that he is looking at a different amendment. The first line states:

“Following a request to do so arising from a resolution of the Assembly”.

Whether there is a consensus currently or not is irrelevant. Such a request could come only when there is consensus. The amendment refers to “following a request” from the Assembly. Therefore, it can come only when such a consensus is reached.

[Lord McAvoy]

The noble Lord is taking great care to quote me but I must remind him of the sentence that I used; namely, that consensus cannot be treated retrospectively, as this amendment would seek to do. It deals with a situation that has not yet been created. I hope that we are still on the road to a continued normalisation of politics.

[Lord Empey]

The noble Lord has just said that we do not want retrospectively to accept something. We have just passed an amendment anticipating something that the Assembly might do in the future; that is, decide to reduce its size. It is the same thing.

[Lord McAvoy]

It is a matter of judgment as to whether one takes that point of view or not. I do not share the noble Lord’s point of view. I still insist that the United Kingdom and Northern Ireland are not ready yet. I am repeating myself, although I was trying not to. Last week, I referred to the fact that we are still on that rocky road. This amendment does not have the support of the Opposition.

[Baroness Randerson]

I thank the noble Lord, Lord Empey, for his introductory speech. I want to deal briefly with the points he made about the letters that were sent. Perhaps I may say yet again that because these were purely factual letters, they were of course non-statutory. Therefore, they were not the subject of any formal transfer provisions in the legislation that accompanied devolution in 2010. The noble Lord asked questions about further evidence and how it would be treated. I refer him to my earlier answer to the noble Baroness, Lady O’Loan, because it is important we remember that this is the subject of part of the inquiry.

As I have said previously, the noble Lord, Lord Empey, and my noble friend Lord Lexden, have done us a great service in raising the profile of this issue through the various amendments that have been tabled. At Report, I indicated that the Government would consider the matter further and set out their position at Third Reading. I am sorry to disappoint the noble Lords but we will not be supporting this amendment. As I have said previously, the creation of opportunities for responsible opposition in the Assembly would be a progressive step. As a Member of the Government here in Westminster I know only too well how much an Opposition can keep us on our toes. I think that noble Lords have illustrated that point very effectively during the passage of this Bill. It would be a welcome development if similar arrangements were put in place in Northern Ireland. I believe that the Assembly’s reputation would be enhanced if that were to happen.

We are, however, talking about the Assembly’s internal procedures and it is important that we do not make changes to those without, at the least, having consulted the Assembly. I know that I have mentioned this previously but the Government consider that it is important that the Assembly should be consulted. “Consulted” implies that one would take account of their expressed view.

In previous debates, it was noted that the Assembly could provide for an Opposition through its existing standing orders. It was also noted that the rights accorded to an Opposition created in this way could be revoked at the behest of the largest parties in the Assembly. It is right and proper that any Opposition in the Assembly should have the ability to carry out their functions without fear of losing their status by virtue of having challenged the Executive. It is also right that opposition parties should have sufficient status if they are to be truly effective in holding the Executive to account. To the noble Lord, Lord Kilclooney, who asked what incentive there was to become a member of the Opposition, I say that the original amendment of the noble Lord, Lord Empey, envisaged the potential status that would come to opposition parties: that would be part of the incentive.

The noble Lord’s amendment attempts to offer a safeguard in the shape of the Secretary of State’s involvement. I pay tribute to the effort that the noble Lord has expended in refining his successive amendments to the Bill. However, we still do not believe that this amendment is the appropriate means of ensuring more effective opposition. We believe that it would be inappropriate in any circumstances for the Secretary of State to have such a direct role in the internal procedures of the Assembly, as envisaged in the amendment—the more so when the Assembly, as I said, has not been consulted.

The noble Lord will point out that his amendment would allow no role to the Secretary of State unless the Assembly took the first step. Even so, given that the Assembly has not been consulted, our taking this step now could be misunderstood by at least some in Belfast as hostile interference in the Assembly’s procedures. The consequences of that would be negative for the long-term prospects of facilitating opposition. As the noble Lord, Lord McAvoy, said, there has been discussion of this in recent years in the Assembly, and there was no consensus. I will add that we also see technical difficulties with this amendment. I would not normally draw attention to them, but we are now at the stage where such difficulties cannot be remedied.

I welcome the comment in Committee of the noble Lord, Lord Browne, that his party was willing to support additional resources and speaking time for genuine opposition. I hope that his party will deliver on this commitment and that other parties in the Assembly will share that view. I am also encouraged by the Private Member’s Bill brought forward by Mr John McCallister in the Assembly, and I hope that it will spur more debate. I hope that the Assembly, when it debates the Bill, will take cognisance of the various points that have been raised here.

In the mean time, the Government will impress on the parties in Northern Ireland their desire to see an effective Opposition in the Assembly and will consider ways in which we might do so. I hope that noble Lords will feel reassured that this is an issue that the Government take seriously and on which we hope to see real and meaningful progress in future. I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Empey]

My Lords, it is almost as if one is answering a debate on an amendment that one has not actually tabled. The amendment is based on the assumption that the Assembly is the initiator. That was to ensure that no harm would be done to the convention. The Minister also said that of course the Assembly has not been consulted. That is a fair point. However, neither has it been consulted—to my knowledge —about reducing in size to 90. It has not been consulted —nor did it seek to be—on the content of the next two amendments. It appears that we have a law for one process and a totally different law for another.

That is hardly surprising, and dare I say to the Minister—although it is not her responsibility—that the one big thing that the Assembly was not consulted about was what was going on behind its back. That is the elephant in the room, and has been since last week. One can be very picky about what one decides to use as a mechanism for saying that one does not want to do something, but I have to say that the Minister’s arguments were not convincing.

On the technical aspects of the amendment, I accept that there is an issue. One understands that those of us in your Lordships’ House have only limited resources to table amendments; we do not have the power of the Government. The Minister made it very clear in her closing remarks in Committee that she and the Government acknowledged that there was a genuine concern that an Opposition born exclusively out of the Assembly changing its standing orders would be vulnerable. I feel that that point at least has come across. On whether this is the right mechanism to deal with the issue, we have an open mind.

The Minister also indicated that the Government were going to set out ideas on how the matter could be addressed. So far, those have not been set out. I hope that the Minister will shortly be in a position, through the Secretary of State, to set out the Government’s proposals. Like so many other things regarding change, they are all stalled and going nowhere.

If we have done nothing else, we have raised the profile of the issue. It will not go away. I think that the necessity to have a guarantee that an Opposition cannot be abused by a majority in the Assembly has been accepted by the Minister. Of course, I acknowledge that there are technical issues, to which she correctly drew attention. On that basis, and not on the basis that the amendment does any harm or ill to the Assembly, I beg leave to withdraw it.

Amendment 4 withdrawn.

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[Lord Alderdice]

My Lords, I, too, thank my noble friend. In Committee and on Report I put my name to an amendment which was originally piloted by the noble Lord, Lord Empey, because of our concern about the impact at home in Northern Ireland. A number of things that my noble friend has said, and which are in the amendment, are extremely helpful. First, there is the fact that the Secretary of State would be required to produce a report. The contents required to be in the report are also spelt out, as is the fact that it would have to be done three months beforehand. Furthermore, my noble friend has given undertakings that if we find ourselves in that situation, the Government will facilitate the opportunity for debates on the report in this House and in another place, and will take account of the content of those debates. That is a very helpful undertaking.

I think that my noble friend has also indicated something which goes a little further and which I really welcome—that any expectation that the Northern Ireland Executive might have that such legislation will be passed here will to some extent depend on whether there has been demonstrable progress on the Northern Ireland Civil Service rules and bringing them up to date with the arrangements on this side of the water. I am rather encouraged by that because one of the concerns that I expressed at a previous stage was that the Civil Service in Northern Ireland—for which I have enormous respect—has not necessarily kept up with some of the progress on this side of the water as quickly as it might have done. My noble friend has indicated—not just in the amendment but in her undertakings and her description of the amendment—that this could be a very helpful lever if we come to a time when the Northern Ireland Executive were eager to make progress in the direction of the amendment and this clause in the Bill.

Not only have the Minister and her officials listened, taken account of what was said and obviously consulted the Secretary of State but there has been a very positive response. I welcome that and I certainly support her amendment.

[Lord Empey]

My Lords, I am glad that we brought this matter forward for discussion. There is no doubt that the proposals in front of us are infinitely better than the ones that were in the Bill as originally drafted. However, I am still not clear what the driving force behind this is. It was left as an excepted matter quite deliberately and for very good reasons, and in my opinion those reasons are as valid today as they were then. It would be impossible for me to avoid pointing out to the noble Baroness that there has been no consultation with the Assembly on this, and it is not an issue that has any traction except within the small group of people who are directly affected. But the proposals in front of us today are a lot better than what was there before. Some protections have been put in. I am quite sure that reference to the 2010 Act could very well have been the mechanism to sort the whole thing out at the end of the day. Nevertheless, I thank the noble Baroness for listening to us and for acting on what has been said. At least we have put in some protections that were not there before and, I hope, will be of benefit in the long term. On that basis, I support the amendment.

[Lord Brooke of Sutton Mandeville (Con)]

My Lords, I was greatly encouraged by the Minister’s offer when we previously debated this matter to have conversations with those of your Lordships who had taken part in the earlier debate on this subject. It is perfectly clear that, unlike with Amendment 1, we are not talking about a secret deal. There has clearly been openness in discussing this. It has obviously been extremely constructive. I infer that there is approval of where we now are.

I have only one tiny niggle. I hold no proxy whatever for the noble Lord, Lord Butler, but those who have been taking part in these debates will recall that, in our most recent discussion of this subject, he raised the question of why the Government appear to have resiled from the position that the Minister had expressed in Committee. Is the Minister confident that the noble Lord, Lord Butler, is now satisfied—or would have been satisfied, had he been here—by what she said in moving the amendment?