Northern Ireland (Miscellaneous Provisions) Bill

Lord Trimble Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Lexden (Con)]

My Lords, I supported my noble friend Lord Empey’s amendment in Committee and I support the current version of this valuable amendment with no less vigour. He has explained its aims and objectives fully and I have only a little to add from my own Conservative and Unionist perspective, which is identical to that of my noble friend, who is the chairman of the Ulster Unionist Party. The not unimportant constitutional issue which the amendment seeks to address is simple and straightforward. The Northern Ireland Act 1998, which created the devolved institutions through which the Province is largely governed today, made no provision for the establishment of an Official Opposition with the appropriate rights and privileges. My noble friend has explained the reasons for that omission and this amendment would fill that constitutional lacuna.

It contains, as my noble friend has emphasised, no element of dictation or compulsion. It makes soundly based constitutional provision for the establishment of an Official Opposition, while leaving the Northern Ireland Assembly entirely free to judge when it would be appropriate to invoke this valuable addition to the constitutional order under which it conducts its affairs. In other words, by inserting provision for an Opposition into the 1998 Act, this amendment would supply the one element which is missing from Northern Ireland’s remarkable constitutional dispensation that followed from the Good Friday agreement, and so complete that dispensation. It therefore has great significance but it would do something else of importance as well. It would signal this Parliament’s support and encouragement for the evolution of Northern Ireland’s devolved institutions in the direction that public opinion in the Province increasingly favours: towards a state of affairs in which the Government are challenged in detail, day by day, by an Opposition who fulfil the great constitutional function prescribed for them of providing,

“a standing censorship of the government, subjecting all its acts and measures to a close and jealous scrutiny”,

as one leading late 19th-century authority on the constitution put it in resounding language.

Is it not right—is it not indeed the duty of the Parliament which brought into being Northern Ireland’s unique constitutional order—to support and encourage its evolution so that the devolved institutions that operate under it can carry out their work with ever growing success as the years advance? Your Lordships might consider what beneficial effect an Official Opposition could have had if they had been in existence today. They could have prevented the restrictions that limit so worryingly the operations of the new National Crime Agency in Northern Ireland—a matter that aroused grave disquiet when we discussed it in Committee. An Official Opposition might also have made it unnecessary for us to hold the debate on defamation which is to follow shortly.

Some say, “Leave the Assembly entirely free to follow its own course. Do not trouble it with advice from Westminster. Do not disturb it by strengthening the constitutional basis on which it operates by making statutory provision for an Opposition and placing that provision at the Assembly’s disposal for its introduction”. That does not seem to me the right, constitutionally sound approach. As my noble friend has explained, the Assembly could establish an Official Opposition under its own Standing Orders. However, that, in his own striking phrase, would be a grace and favour Opposition, existing through the good will of the Executive with their commanding majority in the Assembly. To work well, an Opposition would need stability and confidence. If they rested on a statutory basis under this Parliament’s legislation they could not be removed precipitously or capriciously. Let us now take the Northern Ireland Act 1998 to the point that is now needed by adopting this amendment.

In replying to the debate in Committee the Minister said:

“It is important that a formal Opposition should have sufficient status if they are to be effective in holding the Executive to account. The Government will reflect on what has been said in the debate and we will certainly return to this on Report”.—[Official Report, 3/2/14; col. 22.]

I hope at the end of this debate my noble friend will be able to tell the House that the Government will either adopt this amendment or will bring forward something similar at Third Reading.

[Lord Trimble (Con)]

My Lords, when the noble Lord, Lord Empey, tabled his amendment on this matter in Committee I added my name to it. I make clear that the absence of my name from this amendment today does not mean that I have changed my mind. I agree with what the noble Lord has said and I hope he gets a very positive response from the Minister.

[Lord Alderdice (LD)]

My Lords, in Committee I made it clear that I was very supportive of the principle of establishing an Opposition in the Northern Ireland Assembly. I remain of that view. In fact, I think it could be a very helpful improvement and evolution of the constitutional arrangements. It is clear that Standing Orders in the Assembly can accommodate this. When the Assembly was first established it had a very flimsy little pamphlet of Standing Orders. It was very important that the Assembly on all sides agreed to a process of negotiating and ultimately passing Standing Orders with cross-community support in the Assembly. That meant that all Members of the Assembly felt they were their Standing Orders. I would prefer to try to find that way forward. I do not accept the proposition that the noble Lord, Lord Empey, referred to about this being an imposition. I agree with him that this is not about imposition; it is about facilitation. The dilemma is, as he described, that it requires the larger parties in the Assembly to buy into the proposition before his amendment, even if passed, would come into operation. It is a bit of a Catch-22 situation. To achieve the things he and the noble Lords, Lord Lexden and Lord Trimble, want to achieve will require a process of negotiation between the party or parties that wish to have the possibility of being an Official Opposition and the current parties of government. Of course, these things can change—they have changed since the agreement, with the size of parties and their influence and so on.

Is there any leverage? I think there is considerable leverage. For example the Ulster Unionist Party, which is no longer as substantial in this House as it once was, has a substantial number of Members of the Northern Ireland Assembly and indeed has ministerial positions. It would be possible to negotiate with the two largest parties in the Assembly on the basis that, as vacating ministerial presence on the Executive to take up opposition status would be to the advantage of the other parties, appropriate recognition as the Opposition would be sought in return.

This leads me to two areas where I feel some dissatisfaction with the specifics of this amendment. First, there is the suggestion that a party with one Member could become the Official Opposition. I would rather see a slightly higher bar than that in the Northern Ireland Assembly. The idea that a single Member could form a party of their own and have the status of Official Opposition seems unwise. There should be some more substantial number; it is going to be a bit arbitrary whatever it is, but one is both arbitrary and unwise. I can think of many individual Members of the Assembly who might choose to adopt that status and create merry hell for everyone, including themselves and the Speaker. I would rather that there were more.

The second is related to that: the special position that is accorded in the chairmanship of committees, as suggested in the amendment. Again, for a very small party of one or two people to be able to corral those significant positions seems unwise. However, I emphasise again that the principle that is being supported by the noble Lords, Lord Empey and Lord Lexden, and indeed the noble Lord, Lord Trimble, is one that anyone who wants to see the evolution of the Assembly should espouse, and if there are things that can be done by the Secretary of State and our own Minister here or by others in your Lordships’ House to move that forward, we should certainly do so. However, I remain to be persuaded that this amendment is going to take us in quite the direction and for quite the distance that its proposers might hope.

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[Lord Empey]

My Lords, when this amendment was tabled, I thought it was going to be a fairly simple, straightforward matter—but as very often happens, that has not proved to be the case at all.

The Northern Ireland Assembly has not asked for any powers to be devolved with regard to the Civil Service Commissioners. Indeed, as we look at the next amendment, it has not asked for any of those powers to be devolved either. Contrary to the rumours, the people on the Newtownards Road do not speak of little else. My point is that this proposal has come from the Government of their own volition. It has not been sought. I have never heard anybody raise the issue at all.

The noble Lord, Lord Brooke, referred to the letter that some of us received in January from the chief commissioner. If I may be permitted to quote a little from it, it says:

“We have a similar role to that of the UK Civil Service Commission chaired by Sir David Normington, which regulates appointments to the Home and Diplomatic Civil Service. However, unlike Sir David’s Commission, the Northern Ireland Commissioners do not have the benefit of formal legislative provisions”.

It goes on further:

“Rather, our role continues to be governed by a Prerogative Order in Council”.

The noble Baroness is suggesting new proposals. We know that there is a clash between what is devolved and what is not devolved, but what is not devolved is currently excepted. As the noble Lord, Lord Alderdice, said, a number of issues were deliberately left as excepted issues because they were potentially so sensitive. They went to the core of areas where people felt that things had not been well handled in the past, and it would be better for the long term to leave them to the one side.

The other point to bear in mind about the Civil Service in Northern Ireland is that the statutory role, function and power lies with the department, not the Minister. There is a complete difference. If the Minister is not there for whatever reason, the department can continue to apply policy that has already been decided. The law states that the Minister directs and controls the department, but in the absence of the Minister, the department itself has the power to continue implementing policy. That is a very distinct difference.

[Lord Trimble]

I must apologise as my memory is not clear enough on whether the noble Lord was present at a discussion I am going to mention. However, he will recall the time when, for political reasons which are not relevant to this point, I had resigned and I was proposing that my other Ministers would also resign. There was a discussion of senior officials about what we do in this situation. I cherish the comment made by someone who I will not identify, who said, “We must be very careful because we don’t want people to find out that we can take decisions without Ministers”.

[Lord Empey]

The noble Lord is perfectly correct. I recall being at a number of meetings where that issue was discussed. The law states that the Minister directs and controls the department when the Minister is there, but the power is vested in the department. That is why this is such a sensitive issue. We are in the House of Lords but the department Permanent Secretaries were known as the six barons in the direct rule years, because it was to them that people turned for resources and other things. There is a very distinct difference, and that is why this is such a sensitive issue. As I have said, the Civil Service Commissioners themselves clearly have anxieties. The Assembly has not asked for this but the Government, for their own reasons, have decided to bring it forward. If they were prepared to drop it, I am quite sure that Members here would be more than content. However, in view of what the Minister has said and in view of her letter, and the fact that she intends to hold further consultations, I believe it appropriate that I now beg leave to withdraw the amendment.

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[Lord King of Bridgwater (Con)]

My Lords, I hesitate to intervene in something on which such distinguished legal brains have been brought to bear but, briefly, as a layman in these matters, I am very impressed by the arguments made by the noble Lord, Lord Lexden, and the power of the argument about the desirability of uniformity in the application of defamation laws. The noble Lord, Lord Browne, said that the advantage of devolution is that we can all make different laws. However, as a good unionist he will know that it is very desirable that as a union we stick together as closely as we can and do not make a principle of establishing every different law that we can between the different parts of the United Kingdom.

As a loyal member of the United Kingdom, I think it is desirable that the Executive of Northern Ireland should look at these matters as it seems that they are likely on some occasions to significantly disadvantage some of their own supporters, who might find themselves caught up in some very unfortunate implications. Although there is the devolved power, that power should be exercised also with respect to the position of other parts of the United Kingdom, which may find from the illustrations given by the noble Lords, Lord Black and Lord Bew, that these are difficult matters.

I hesitate to deviate from the noble Lord, Lord Lester, as he and I have a bit of history as well in some areas, as anybody will know who remembers the broadcasting ban or the amazing events when the chief constable decided to deprive female constables of the right to carry arms. The noble Lord, Lord Lester, was active during my time in that area.

At the end of the day, I am not quite clear from the exchanges that have taken place whether this is just genuine inertia or whether there is a fundamental objection within the Executive to doing this, thinking it totally undesirable in Northern Ireland, and exactly what the background to this is. However, I am prepared to accept that it is the determination of the Executive to address this, although they are moving very slowly. That is the most preferable way to go in terms of what the noble and learned Lord, Lord Carswell, said, and not to get caught by being unnecessarily accused of trying to undermine the devolution proposal. The message should go out very clearly from this House that we think this is highly desirable and almost essential to do. We look to the Executive to do it as speedily as they can and bring this matter into line, without imposing it in the amendment as proposed.

[Lord Trimble]

My Lords, the great advantage of this debate is that it has enabled a wide range of people across the House to express their views on the desirability of extending the modern defamation law to Northern Ireland. I very much hope that the Northern Ireland Executive will pay attention to the views that have been expressed here. There has been no argument presented in favour of retaining the old, outdated laws. I have not heard any and, from what has been said, I gather that nothing has been said by the Northern Ireland Executive to explain what is going on. The noble Lord, Lord Browne, referred to the decision inviting the Northern Ireland Law Commission to look at the matter. I hope that will happen quickly and that it indicates that action is being taken, rather than something being done just to fend off criticism. I hope that something happens there.

I must also attach significant weight to the hesitation and reservations that have been mentioned. The noble and learned Lord, Lord Hope, referred to what might happen in Scotland if this was to happen. That brought back to mind what happened in Northern Ireland in, I think, 1923, when on a certain measure London was indicating that it was likely to override the decisions being taken by the then Northern Ireland Ministers. I think it was suggested that they might seek to withhold Royal Assent from legislation that was going through Stormont, and the then Northern Ireland Prime Minister made a very robust response to that. It was of such a nature that the proposal disappeared and there was then no attempt to interfere with the exercise of devolved powers.

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Moved by

[Lord Trimble]

4: After Clause 25, insert the following new Clause—
“Election of the First Minister
(1) The Northern Ireland Act 1998 is amended as follows.
(2) Omit sections 16A (appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election, 16B (vacancies in the office of First Minister or deputy First Minister) and 16C (sections 16A and 16B: supplementary).
(3) Before section 17 (Ministerial offices) insert—
“A17 First Minister and deputy First Minister
(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and deputy First Minister.
(2) Each candidate for either office must stand for election jointly with a candidate for the other office.
(3) Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.
(4) The First Minister and deputy First Minister—
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister.(5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office—
(a) during any absence or incapacity of the holder; or(b) during any vacancy in that office arising otherwise than under subsection (7)(a);but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding six weeks.(6) The First Minister or the deputy First Minister—
(a) may at any time resign by notice in writing to the Presiding Officer; and(b) shall cease to hold office if he or she ceases to be a member of the Assembly otherwise than by virtue of a dissolution. (7) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other—
(a) shall also cease to hold office at that time; but(b) may continue to exercise the functions of his or her office until the election required by subsection (8). (8) Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.
(9) Standing orders may make provision with respect to the holding of elections under this section.
(10) In this Act “the pledge of office” means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4).””

[Lord Trimble]

My Lords, we have reached the final straight and I shall try to get round the track as quickly as possible, and not delay those who are coming to debate other matters later.

I tabled Amendment 4 for the Committee, but unfortunately when it sat I was out of the country and unable to express my views on that occasion. However, I am delighted to see that the noble Lord, Lord Empey, made an excellent exposition of the issues involved, so I will not go back into that history. I want to focus more on what might be coming up in the future. Before moving on to that, it is important to remind noble Lords of the position as it was under the Belfast agreement—the Good Friday agreement—and as it was changed later, not as part of the St Andrews agreement but in some other way.

The key thing for noble Lords to bear in mind about the provisions in the Good Friday agreement is that there was a provision for the joint election of First Minister and Deputy First Minister, which means that a ticket had to be formed. There had to be an agreement on who would stand. A six-week period for this to happen was provided, but because it was a joint ticket and there were six weeks in which to do it, there was the opportunity for the largest party on the nationalist side and the largest party on the unionist side to interact; they had to come to an agreement. There were opportunities for views to be expressed about who might be the nominees.

In 2006 we had provisions that swept that away and provided for a mechanistic provision whereby the various provisions rather obscurely expressed in the legislation would apply, and it would be possible to identify immediately who should be First Minister and Deputy First Minister. This was to be done within a matter of days; I think that a week was provided for it. It was to go through automatically. I will not discuss what the motivations for that might have been.

I will look at the future and pick up the very important point made by the noble Lord, Lord Kilclooney, that because of the way in which the Administration has carried on there is widespread dissatisfaction and disillusionment, and, in my interpretation of what he said, that is likely to have an impact when we next have an Assembly election. Participation rates in Assembly elections have been dropping. They will continue to drop. The drop will be felt most among people who feel dissatisfied about inaction. There are those who are feeling sore because they believed in the Democratic Unionist Party when it attacked the agreement and who then felt disgruntled after it decided that it was going to implement the Belfast agreement with merely cosmetic changes, as well as the significant change in identifying the First Minister and Deputy First Minister.

This opens up a very serious possibility, which I think that we need to be on guard against. It is possible that, as a result of declining participation, especially by working-class unionists, we will find that the unionist vote drops to a point where Sinn Fein becomes the largest party. The DUP will do what it has done before, running a campaign that says, “Vote for us, or else you will get a Sinn Fein First Minister”. It has done that several times—so often that it is not likely to carry much weight anymore. People can see that they were given this argument and then saw the results from the elections, which showed that the argument had no substance to it. So I am afraid that “Wolf” has been cried too often on this.

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[Baroness Randerson]

My Lords, I want to preface my response by referring specifically to comments made by the noble Lord, Lord Maginnis. Noble Lords have been in the Chamber this afternoon and may not be aware that I have issued a Written Statement that deals with that issue. I do not feel that it is appropriate to try to tackle it in this Chamber at this time, because it is not part of this debate.

I turn to the amendment. The noble Lord, Lord Trimble, will be aware that the Government opposed amendments on this issue both in Committee in the other place and in Committee in this House. Despite the eloquence of the noble Lord, Lord Empey, we retained our opposition here. Again, we will maintain that position to this amendment on this occasion.

I recognise the noble Lord’s views on the matter, and he clearly has a close personal interest in the issue. However, as the noble Baroness, Lady Smith, highlighted in Committee and again just now, the St Andrews agreement, which led to this mechanism, ultimately led to the re-establishment of devolved government in Northern Ireland. It would be, to say the least, an unhelpful step if we were to start to unpick certain aspects of it.

I acknowledge the noble Lord’s views on whether the revised method for electing the First and Deputy First Ministers at Stormont was discussed at St Andrews. It is certainly the case that the noble Lord, Lord Empey, made that point in Committee. However, the revised method was enacted through the legislation which followed the St Andrews agreement in 2006. That legislation was endorsed and passed through this House. Whatever the merits of the amendment in the abstract, it would command limited support in Northern Ireland. Very probably, it would get virtually no cross-community support. It would provoke serious opposition and potential instability.

The current Northern Ireland settlement is imperfect, but it is what we have. I welcome the support of the noble Baroness, Lady Smith, and her party on this issue. Her words echo my thoughts.

The noble Lord, Lord Bew, made some very important points. In response, I would say that the Government are acutely aware of the tensions and difficulties in Northern Ireland and within the Executive. That is one reason why we do not want to destabilise the settlement either by changing or attempting to change the mechanism for selecting the First Minister and Deputy First Minister or by involving ourselves in the devolution settlement on issues that are devolved. It is important that we do not disturb the situation. That does not mean that we are sleepwalking, or allowing Northern Ireland to sleepwalk, into any unravelling of the current situation. I agree strongly with the views of the noble Baroness. With every month that passes, the institutions of Northern Ireland become more firmly established in the country and as part of the politics, and it becomes less likely that they will hit the sort of problems that occurred soon after devolution was established.

As I highlighted in Committee, reopening old debates of this nature is liable to create a distraction that would shift the focus of Northern Ireland politics away from the pressing challenges that Northern Ireland faces—issues such as community division and economic renewal. I hope the noble Lord would agree that those issues should take precedence at this time and, in doing so, will be willing to withdraw his amendment.

[Lord Trimble]

I thank noble Lords who have taken part in this little debate, which has gone on longer than I had hoped. As the noble Lord, Lord Browne of Belmont, said, these are issues that I have dealt with before. I remember certainly the first time I dealt with them in 2006. I divided the House, and I was very happy to have the support of the noble Lord, Lord Browne of Belmont, in doing so. He has changed his position somewhat since then. I merely mention this from the point of view of spreading news on the matter.

I note the statement of the noble Baroness, Lady Smith of Basildon, who said that if one was to make a change, the change would require cross-community support. She is right. That is how the agreement was made. The agreement was made based on a broad support —a “sufficient consensus” as we called it—and the majority of unionists and the majority of nationalists supported it in the talks. If you are going to make a change to it—although no express provision has been made as to how changes should take place—then the noble Baroness is quite right to say that the changes would be legitimate if they were made by the same procedure by which the agreement was made in the first place.

That is not what happened in 2006. I was finding it somewhat difficult to follow what the Minister was saying at some points, but I think it is absolutely clear that the change to the identification of First and Deputy First Ministers was not actually in what is called the St Andrews agreement. It came into the legislation to implement it, but it only popped up at the last minute without any coherent explanation of where it came from, and with no indication that there was the sort of cross-community support that ought to have been sought for it. People say going back would be a bad thing to do. The Minister says that going back would have limited support in Northern Ireland. The original agreement had a referendum, and it was supported by an overwhelming majority; that referendum is ignored. It has been said many times in this debate that we should not upset the devolution settlement. The devolution settlement was upset, peremptorily. That is undeniable. Consequently this is something to which we will return, until we get things sorted out on this. We have at present a bad system which may have bad consequences; I hear what the Minister says about not sleepwalking and I hope that that is the case. We shall see. Let us make sure that we do what we can to ensure that there is no sleepwalking. I think I can guarantee the Minister and the Northern Ireland Office that we will return to this aspect of this issue, to try and ensure that people are on top of this. We have a rotten system which may turn round to bite us. This is not the time to press the matter further. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.