Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Murphy of Torfaen Excerpts

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

[Lord Murphy of Torfaen (Lab)]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Kilclooney, particularly because of the important role that he played 20 years ago at the time of the Good Friday agreement.

The Opposition will not of course oppose the Bill. It is very important in clarifying the position of civil servants and allowing important and urgent decisions to be made, but it imposes on them quite a considerable personal burden. The shorter the time they have that burden, the better, because they are not elected. At the same time, the law will now clarify the position regarding planning application issues in Northern Ireland. It is important too that public appointments are made, because until now hugely significant appointments for the people of Northern Ireland have been frozen. That is obviously a part of the Bill that we very much support.

However, the thrust of the Bill is about the restoration of the Executive and the Assembly in Belfast. Although I say that we do not oppose the Government, we are not very happy about the situation with the current negotiations, or lack of them, which would lead to the restoration of the Assembly and Executive. It seems to me that there has been little urgency over the last months. It also seems that, by putting a final 10-month limit on the talks, we are in a sense accepting the principle of delay. That lack of urgency and the lack of an incentive to ensure that we have an Assembly and Executive up and running much more quickly than is envisaged by the terms of this Bill are disappointing.

Interestingly, the noble Lord, Lord Lexden, made the point that, because local government is so limited in its powers in Northern Ireland, not only what a regional government do but what local government in England, Wales and Scotland do as well is without democratic accountability, and as a consequence huge strain is put on the Good Friday agreement and the agreements that followed it. It is not just about an Assembly and an Executive; it is about the north-south arrangements too, because they fall if the Assembly falls. The whole point of getting the two communities together over all those years was that you would balance on the one hand the importance of the north-south institutions, which are extremely important to the nationalists, and on the other hand the importance of devolution in Northern Ireland, as well as east-west relations—the British-Irish Intergovernmental Conference has not met properly until recently. All these strands of the agreement went together. You could not pick and choose the ones that you liked; you had to accept them all. That is the problem today in Northern Ireland in getting those institutions up and running.

Sinn Féin makes a great deal of the fact that it believes that the principles of the Good Friday agreement, particularly with regard to equality and human rights, are not being carried out in Northern Ireland. However, the agreement has also been breached by the Assembly not meeting. If Sinn Féin does not go into the Assembly and causes it not to function, that breaches the agreement too, and that is an important part of the negotiations that will follow this legislation.

The DUP should acknowledge that the RHI scheme caused much scandal in Northern Ireland. It should also acknowledge that the issues that Sinn Féin is complaining about, particularly with regard to the Irish language, can be resolved. If 20 years ago the whole apparatus and structure of the agreement that we all admire had depended on one single issue—the Irish language—it would not have happened. Far more significant issues than that had to be resolved at the time, but there are other ways in which you can restore the Assembly and still deal with the Irish language. Why can there not be an independent commission to make recommendations on the language? Why cannot people from Northern Ireland go to Wales and Scotland to see how the language legislation operates there? There are ways and means that can be examined but they have not been examined over the last months and years and they urgently need to be dealt with. The trouble is that you cannot legislate for trust—it is built up over years.

In Northern Ireland there is always a reason why you should not establish the Assembly at this time or that time. People say, “Oh, we can’t do it because of Brexit”, or “Ah, it’s not Brexit at all; it’s the general election in the Republic that will stop it”. And if it is not that, perhaps the local government elections in Northern Ireland will be a barrier. If we had listened to those sorts of arguments over 20 years, nothing would have been done in Northern Ireland, because there are always obstacles in front of us. There has to be a greater sense of urgency, and these obstacles, important though they are, have to be seen as part of the bigger picture.

I am glad that at the beginning of this rather long but interesting debate the Minister indicated that there are to be talks about talks, as they are not talking about talks at the moment. When they do talk about talks, perhaps they should think about a more imaginative way of holding them. They should be much more intense. They should be proper all-party talks, structured in the way that we have seen in the past—not the odd meeting in a party office here and there but proper talks around the table with everybody involved. There should also be an independent chair or mediator. That has been talked about for months now but there has been no movement on it. We would not have had what we did unless it had been for George Mitchell and his colleagues, and there are people who can be called upon to do that job.

Frankly, the two Prime Ministers and the two Governments have to do a lot more in getting people involved in the talks. The Minister will know that when talks were held in the past, the Prime Ministers from Dublin and London spent day in and day out, week in and week out, and month in and month out working to bring the parties together. In my view, there is no evidence that the two Prime Ministers, in dealing with what is, after all, an international treaty between our two countries, are dealing with it as they could. I know that they have the problems of Brexit, which will overshadow things, but that is intertwined with the restoration. There are two sets of negotiations that affect Northern Ireland—one on Brexit and the border and the other on the restoration of the institutions—and both are getting nowhere. There has to be a greater intensity in the weeks ahead.

There is another way. Time after time we have had what you might call “away weeks” in which the parties are brought together—at St Andrews, for example, which worked, and at Leeds Castle, which did not—but I have seen no evidence of new thinking on this. I hope that the Bill will herald new thinking, new imagination and new ideas about how to bring this matter to an end. Otherwise, we will drift inexorably towards direct rule.

We have said it many times: if you establish direct rule, it is a devil of a job to get out of it again. I was a direct rule Minister for five years in total. I did not like it, and I have said that to your Lordships before. I did not want to take decisions on behalf of the people of Northern Ireland. It is for the people elected in Northern Ireland to do that job. However, with issues such as Clause 4 and so on, the longer this goes on, the greater the chance that this Parliament and this Government will have to take decisions for the people of Northern Ireland, and that would be a disaster for the people of Northern Ireland. It is not an ordinary Assembly like the ones in Edinburgh or Cardiff; it is different. It is an integral part of the peace process as well as the political process. We cannot go back to where we were. The only way is forward, and that, I hope, will start after this Bill is enacted.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Murphy of Torfaen Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Empey]

I take the noble Lord’s point, which is pertinent. However, do not forget that if we keep to this three-stranded model, we have a Secretary of State and, where appropriate, an Irish Foreign Minister, and in the proper format there is no reason why they cannot be engaged. I am saying that maybe it would be an incentive if the Secretary of State made it clear that a process was starting and that the parties understood that if they were not prepared to participate in that, perhaps she and others would start to take decisions. I am not trying to be obstructive or rule anything out. I am simply saying, be careful. It sounds like a good idea, but bear in mind that people who are serial negotiators—they have been doing this for 25 or 30 years —will put things on the table and open the whole thing up. My only worry about this is that it just postpones the decisions even further, although I understand fully the noble Lord’s good intentions.

[Lord Murphy of Torfaen (Lab)]

I will intervene for a few seconds. The issue is that because the “talks” and “negotiations” have been notoriously unsuccessful over the last couple of years, there has to be some form of structure—although I agree with the noble Lord, Lord Empey, that it has to be on a very restricted number of issues, otherwise you go back to a Good Friday agreement mark 2, and we do not want that. You want to work within the agreement but have some sort of structure. If there is a person who could organise that structure and be acceptable to all the parties, I see nothing wrong with that. I understand that if you expand it beyond the current issues, that could be difficult. However, there are a number of issues beyond those the noble Lord, Lord Empey, mentioned—for example, the Irish language and equal marriage. All those things can be on the table, but it is about getting some form of structure which simply does not exist at the moment. Anything that could help that would be useful.

[Lord Adonis]

My Lords, I invited the Minister to set out the Government’s thinking, which he did, clearly, and I took him to say that they are minded to move towards some form of external mediation at some early date. I take that as a significant statement, and on that basis, I am content to withdraw the amendment.

--- Later in debate ---

[Lord Empey]

My Lords, I have Amendment 13 in this group. I am not quite sure that it sits precisely with Amendment 5. To follow up on what the noble Lord, Lord Bew, said, I asked whether senior civil servants were members of the First Division Association, the trade union for people in senior positions in the Civil Service, because these civil servants are being asked to do things that no other civil servants are being asked to do. There is a risk here that is not fully appreciated. We are taking it for granted.

The noble Lord, Lord Trimble, made the point about the law and the department being different. Here, the power is vested in the Secretary of State and back home it is vested in the department—we understand that—and a Minister’s role, when one is in place, is to direct and control the department. What we found when we had a period between devolution before—even though there was direct rule—was that civil servants ended up having to implement policies that they knew those of us who had been devolution Ministers and were again did not approve of. They were put in an embarrassing position when devolution was restored because they suddenly found they were having to work for somebody whom they had previously actively opposed. We have to understand that you cannot take a public institution such as this and simply mould it to whatever circumstances you find on a day-to-day basis. These people have a career. They do not want to get into a firefight with politicians but that is where we are pushing them. We have to be very careful.

My amendment covers audit office reports and, like everything else, these come regularly. Each year the auditor decides an agenda of what issues might come up. These reports are extremely valuable because they look at what is happening to taxpayers’ money. Incidentally, there is another big question. What happens when Sir Patrick Coghlin reports on his inquiry? Where does that go? It certainly will not go into the ether. Who will deal with it? Does the department prepare and publish a response? Will important lessons be learned from these audit office reports? We have to be careful that they do not just disappear because valuable lessons are learned from them here as well as everywhere else. I simply say to the Minister that reports should not just be in the ether, without our knowing what happens to them. It is taxpayers’ money at the end of the day and Parliament has an overall responsibility for that, even though it is devolved. I should like to think that departments will publish a response, even if it is merely to some of the technical matters that may be resolved.

I support the noble Lord, Lord Bew. Practically every week over the last couple of months, senior civil servants have been appearing in that inquiry and getting a hard time—some of them have been there for days—and coming back and revealing what has been going on. I have to say that, even though I knew things were not great, like most other people, I have been shocked by the extent of the abuses that have been allowed to take place and the culture that permitted it to happen. Huge issues need to be discussed here. In this case, I should like to think that responses to audit office reports can be published so that we can learn and, I hope, not repeat the mistakes.

[Lord Murphy of Torfaen]

My Lords, it has been a very interesting short debate. I think that it has to be dealt with in the context that this is a temporary arrangement. The issue at the end of the day is that if we have anything like an elaborate panel set up, it will give permanence to this totally unsatisfactory system where a part of our country is run by civil servants who are unaccountable in any way to the electorate.

My experience is that as a Minister you would have in the department a system by which you would consult civil society on various decisions that you have to make anyway—at least there should be consultation. Perhaps there is some method by which that could be made a little bit stronger, so that there is a sounding board for the civil servant. The danger always is that the civil servant will be very reluctant to take a decision that might be controversial but which is necessary. That is worth examining, but in the context that this has to be seen as a highly temporary arrangement. It also highlights how terribly unsatisfactory the whole situation is that we do not have a proper elected Government or Assembly in Northern Ireland.

[Viscount Younger of Leckie (Con)]

My Lords, I am grateful to the noble Lord, Lord Bew, for his thoughtful Amendment 5, and for giving us advance notice of it. I also note the support given to the amendment by the noble Lord, Lord Empey.

I say at the outset that I appreciate the intent—seeking to give Northern Ireland civil servants some further cover. I listened very carefully to the analysis of the noble Lord, Lord Bew, of the status quo, especially on the question of morale: that was very much taken note of. I want to assure the noble Lord that we have considered options for providing support in this way to the Northern Ireland Civil Service, and will keep them under review.

The decision-making provisions in the Bill are needed urgently, and while the case could possibly be made that there would be some merit in having advice from an external body such as an advisory panel, the challenges and time commitment associated with setting one up mean that we have opted to proceed without one at this particular stage. I should say also to the noble Lord that my noble friend Lord Duncan and I have spoken in this Chamber before about the burden on civil servants, and I add my voice to the understanding that has been given today about the genuine burden that falls on the Northern Ireland Civil Service.

The amendment, however, causes problems in terms of how such a panel, if mooted, would be constituted: under what authority; how it would operate; and what would happen if it could not agree a position. I am sure that the House will understand those questions and the difficulties involved, again alongside the need for speed and urgency today. We will continue to consider carefully whether Northern Ireland civil servants need further support, and, as the noble Lord, Lord Murphy, said, it would have to be temporary. For today I hope that the noble Lord will feel able to withdraw his amendment.

I turn to the second amendment in this group—Amendment 13, tabled by the noble Lord, Lord Empey—which seeks to direct departments to publish their responses to the Northern Ireland Audit Office. As the noble Lord, Lord Duncan, made clear in his opening speech, the Bill and guidance are not a move to direct rule. To include this amendment in the Bill would introduce a level of formality that we believe is not appropriate and runs too close to directing Northern Ireland departments. That goes against the spirit of the guidance, which is intended to assist departments in deciding whether exercising their functions is in the public interest but does not direct them to take specific actions.

We fully recognise the importance of transparency, which is why the guidance published alongside the Bill seeks to build on the arrangements agreed with the Northern Ireland Civil Service as part of the budget. In addition to Northern Ireland Audit Office reports on budgetary matters, this guidance sets out that all reports and the respective departmental responses will be presented to the Assembly and shared with the Secretary of State, who will promptly lay these in Parliament. This effectively makes them available to the public. The Secretary of State will also now be writing to share these with the Northern Ireland political parties to encourage their scrutiny of all Northern Ireland reports and departmental responses.

The noble Lord, Lord Bew, raised the question of QC appointments. The Bill deals with the bodies that are currently considered to be the most pressing cases. Making the necessary appointments to those bodies is essential to the good governance of vital public bodies in Northern Ireland. The Bill enables the Secretary of State to extend this to other offices by regulation, and we will continue to monitor the situation and assess whether further offices—including QCs—should be included in regulation, which would then be debated by affirmative procedure.

The noble Lord, Lord Empey, raised a point about the RHI inquiry. As the noble Lord says, the inquiry is ongoing, so there is a limit to what I can say on this, as I am sure he will appreciate. However, the House will recall that it agreed legislation earlier this year for external cost-capping regulations to ensure that scheme continuity can be kept. This allows the Northern Ireland department to consult on a way forward to develop options for a longer-term solution.

I hope that this short debate will provide sufficient comfort for the noble Lord, Lord Bew, to withdraw his amendment on the basis that it is already provided for in what we are proposing.

--- Later in debate ---

[Lord Empey]

My Lords, there might be a couple of technical issues surrounding this. As I understand it—perhaps the Minister can confirm this—under the current law the first item of business when the Assembly meets is the election of a Speaker. The Assembly would refuse to do that under the current circumstances, so that would have to be addressed.

However, there is a wider point that I want to make. I am sure that the Minister or his predecessors have been saying for more than a year that they are prepared to think outside the box. However, this is a hermetically sealed box; it has a number of combinations on it but nobody knows what they are; and it has not been opened in the past year. Not a single idea has been brought forward. For months the noble Lords, Lord Alderdice and Lord Trimble, have been putting forward options—but they are talking to a brick wall, because the principal holy grail at the moment is, “Don’t upset the Shinners”. As long as that is the driving force, we will never move a yard forward.

So I hope that the Minister will, with the Secretary of State, genuinely be prepared to look outside the box. We will be sitting here having this conversation in several months’ time, and I do not know whether these are the right options but I think that they certainly merit discussion. The Northern Ireland Office has to start thinking outside the box. I understand that the Prime Minister and everybody else is Brexit focused. The noble Lord, Lord Adonis, rightly said that this is the biggest change that has happened to us in the last 20 years and we are out to lunch. Our voice is not being heard, yet the people of Northern Ireland will be the most directly affected. It is barking mad that we are in this position—so let us genuinely think outside the box.

I hope that when he winds up, the Minister will be able to refer back to Amendments 7 and 8, which I spoke to earlier, concerning the circumstances in which our health service and other matters could be addressed in the future. These are all parts of a bigger picture. I just hope that he will persuade his right honourable friend in the other place to start thinking outside the box, because we are trapped, it is wrong that we are trapped and people are hurting. This Parliament has a responsibility towards those people, and we are not doing our duty.

[Lord Murphy of Torfaen]

My Lords, I think that there is a case for putting this on the table as a matter for discussion in the forthcoming negotiations. Obviously the Good Friday agreement is a structure that means that all sorts of different organisations have to operate at the same time. You have to have an Assembly, an Executive, a north/south ministerial body and a British intergovernmental conference with the Republic of Ireland. However, the noble Lord, Lord Empey, is right: you have to think outside the box. There has to be imagination. The noble Lord, Lord Trimble, has been talking for at least a year about using what could have been the original Welsh model, when the Welsh Assembly was effectively a very large county council. It has changed considerably over the years—in my view, for the better. But that was an opportunity for elected people in Wales to get together. We have just under 100 Members of the legislative Assembly in Northern Ireland. They do not meet formally or informally. This would give them a chance to go to Stormont and talk about issues, and also talk among themselves—to start talking again—because this is all about talking in many ways.