Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (Third sitting)

Louise Haigh Excerpts

Committee stage
Tuesday 6th July 2021 Public Bill Committees

[Louise Haigh (Sheffield, Heeley) (Lab)]

As ever, it is a pleasure to serve under your chairmanship, Mr Stringer.

I appreciate the Minister laying out clauses 1 to 3 and his exposition of some of the issues raised on Second Reading, in particular on caretaker Ministers. As I made clear on Second Reading, we welcome these limited attempts to safeguard power sharing and to improve the sustainability of the Executive and the Assembly, which reflect commitments made in New Decade, New Approach. We believe that all parties to that agreement, including the UK Government, should fulfil all the commitments made in it. That is the basis of amendments that we will come on to.

On clause 1, I appreciate the Minister’s description of the safeguards to ensure that caretaker Ministers do not step beyond the bounds of what is reasonable. I want to tease some of that out, not to put it in statute but to make it clear on the record. On Second Reading, the Minister said that there were well-defined limits for caretaker Ministers and explained that they would be constrained by the ministerial code. Will he confirm that only the ministerial code constrains Ministers in that regard, and not the programme for government?

It will not have escaped the Minister’s attention that at the moment, there is no programme for government, so if there were to be an election and this scenario envisaged, in that situation there would be no programme for government to constrain Ministers. Also, the ministerial code is silent on powers in that situation. I will be grateful if he could make it clear which section of the ministerial code would constrain Ministers.

On the courts being able to step in to hold Ministers to account, exactly what would they hold them to account on—on what point of law, or on what code? Will he clarify that? How exactly do we stop Ministers taking decisions that are significant, controversial and cross-cutting in the absence of an Executive in that scenario? In evidence, Professor Jon Tonge posed questions that need an answer today. What ministerial decisions will be taken that are not significant, controversial or cross-cutting? Will the Minister give us examples of what does not fall in that description? In a caretaker capacity, will Ministers be able to take decisions with financial implications? The reality is that few decisions will fall outwith those scopes.

On Second Reading, we discussed the possibility of Ministers going beyond their mandate and their remit. The reality is that what we are constraining them with is potentially extremely limited. We might be in exactly the same situation as we found ourselves in during the three years of collapse, with Ministers able to take very few decisions. I will be grateful if the Minister explains how he envisages that working.

In the evidence session, Mark Durkan expressed concerns about the possibility of the Assembly being up and running for 24 weeks during this period, albeit a caretaker one, but with potentially no protection for the operation of the north-south institutions. The ministerial code is clear that Ministers are required to attend the north-south institutions, so I will be grateful if the Minister confirms that that would remain the case and that strand two of the Good Friday agreement would be respected equally in such a period, while the Assembly is up and running.

The clause also excludes the possibility of a six-week extension period for filling the offices of First Minister and Deputy First Minister if the Assembly passes a resolution to stop that extension. It further states “without cross-community support”. In evidence, concerns were expressed about exactly what cross-community support looks like in that scenario. What is his definition of “sufficient”?

Clause 3 gives effect to a point that was of some debate during the NDNA talks in late 2019 and early 2020: paragraph 3.15 of the sustainability annex to the agreement. It was aimed at ensuring that a caretaker Executive that might be in place for up to six months had

“sufficient representation to command cross-community confidence in the Assembly.”

That finds expression in the Bill at clause 3, with the authority for the Secretary of State to call an election

“if the Secretary of State considers that it is necessary to do so in order to give effect to the purpose underlying paragraph 3.15 of Annex C of Part 2 of The New Decade, New Approach Deal”.

That leaves open the possibility that all the Unionist parties or all the nationalist parties refused to continue as caretaker Ministers, but that there would not be cross-community support in the Assembly to call an election, so the caretaker Executive could limp on with only one community represented for the six months before an election had to be called, subject only to the judgment of the Secretary of State. It would of course be open to the parties to ensure representation by staying in the ministerial roles as caretakers. However, it is clearly a dilution of the safeguard and places it as much as possible in the hands of the Secretary of State.

There is a difficulty quantifying absolutely what would constitute sufficient cross-community representation in circumstances where, for example, the Deputy First Minister resigns and Ministers withdraw. The common-sense view is that it would be sufficient if either the Ulster Unionist Party or Social Democratic and Labour Party stayed on. I concede it is difficult to quantify in legislation, and would be grateful if the Minister could expand on that.

At a basic level, the safeguard could be strengthened by saying that the Secretary of State “will” rather than “may” call an election if there is not sufficient representation in the Northern Ireland Executive to command cross-community confidence in the Assembly. Is the Minister comfortable that the Bill reads the Secretary of State “may” rather than “will” call an election? Can he explain the circumstances in which the Secretary of State would not call an election, even in the absence of sufficient cross-community support?

[The Chair]

I make it clear to the Committee, before I call Members to speak, that the Minister spoke to the first three clauses of the Bill. We will vote on clauses 1 to 3 separately at the end of the debate.

[Claire Hanna (Belfast South) (SDLP)]

It is a pleasure to serve under your chairmanship, Mr Stringer. Apologies for my lateness. I was outside the Boothroyd Room, uncharacteristically on time, and am new to this process.

On the ministerial code, we welcome clause 4—

[Louise Haigh]

We are just doing clause 1 to 3 at the moment. We are not on to the amendments yet.

[Mr Walker]

I am grateful to the hon. Member for Sheffield, Heeley for her broad support for the principles of the Bill and for her questions. She asked important questions about the safeguards on what we have come to know as caretaker Ministers. It was agreed in New Decade, New Approach that Ministers will remain in office in a caretaker capacity to allow for greater continuity of decision making. The deal also stated that Ministers would be required to act within well-defined limits, including those set out in the ministerial code and the pledge of office, in accordance with the requirement for an Executive Committee to consider any decisions that are significant, controversial or cross-cutting. As appropriate, restrictions are put in place during the pre-election period.

Limits have not been defined in the legislation because we anticipate they will operate as a matter of convention, rather than a legal issue. This approach to drafting allows a degree of discretion for unforeseen circumstances. I reiterate the expectation that Ministers will act responsibly.

The NDNA deal also stated that Ministers would be required to act within well-defined limits, as set out in the ministerial code, to operate within the framework for government, as the hon. Lady says, agreed by the previously functioning Executive endorsed by the Assembly. Ministers will act in accordance with the statutory requirement, included within the ministerial code, that any decisions that are significant, controversial or cross-cutting are required to be considered by the Executive. As appropriate, restrictions are in place during the pre-election period, as I have said.

The point is that this is not a good situation to be in—we do not want caretaker Ministers to be required. We would prefer to have a fully-functioning Executive and the institutions of devolution up and running at all times. We are trying to put in place—this was agreed by all parties—is a preferable situation to leaving civil servants with no ministerial cover at all, which is important. We heard in the evidence session of the problems faced during that time.

The hon. Lady asks about the decisions Ministers will be able to take—an important question. They will be able to take decisions within their responsibilities and areas previously agreed by the Executive as a priority for their Department. That puts us in a significantly better place than the absence of devolution. She asks about the north-south institutions, and I confirm that those can operate in this scenario and Ministers will be free to take part within the broader constraints.

The hon. Lady asks about cross-community support and is right that this is important. We need to ensure that any Executive meets the requirements of power sharing. She will understand, as she set out in her explanation, why we have not written into legislation the full detail of how that could work, as there are all sorts of scenarios with different outcomes from elections and political crises that could emerge. Her example of only one party being represented in the Executive would clearly not be sustainable. We would want to ensure that the Executive represents more than one community. It is important that a Secretary of State has a degree of discretion, depending on the political circumstances, as to when to exercise that power.

On the question of “will” or “may”, if a Secretary of State were in the position where they thought they were on the verge of a breakthrough in talks, they might need that discretion, but I cannot think of any other scenario in which they would not move towards calling an election if there were not that cross-community representation. I hope I have answered the hon. Lady’s key points.

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[Louise Haigh]

Will the Minister confirm that if a programme for government is not in place, as is the case in the current mandate, Ministers will not be able to take any decisions?

[Mr Walker]

I am not sure that is quite right because Ministers would be able to take decisions within their departmental remit, which are running-order decisions for their departmental business. Clearly, they would not be able to take decisions that are about making significant changes to policy. The offer of working together is also part of the pledge of office. It is an important part of power sharing and that is one of the things that they are constrained by in their activities. Where a programme for government is agreed, they will also be stuck within its limits and will be working forward with that.

As Sir Jonathan Stephens said, the fundamental protection in the case of caretaker Ministers is the absence of an Executive. If there is no First Minister and Deputy First Minister, significant, controversial or cross-cutting decisions cannot be taken by the Executive. In a resignation scenario, Assembly Committees will also continue to function for the Assembly’s duration and can continue to discharge their important duties of scrutinising Ministers and Departments and holding them accountable. Under the Northern Ireland Act 1998, Ministers cannot take any decisions that ought to have been taken by the Executive. We therefore believe there is no need to provide further statutory clarifications given that legal safeguards are already in place. We also know, and as we saw during the period of absence of an Executive, that the courts are prepared to step in if they feel that decisions are being taken beyond the remit of whoever is taking them. We have seen examples of that.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Clause 4

Ministerial Code of Conduct

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[Claire Hanna]

I thank the Minister. We appreciate that this flows from NDNA, but I am unclear whether there was a specific request for those particular provisions to be withdrawn. They existed before the New Decade, New Approach deal. Other aspects have been enhanced, and this one has been diluted. It is not clear to me why that would be the case—why it would have been weakened.

I will keep my powder dry, in order to perhaps push subsequent amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Louise Haigh]

I beg to move amendment 4, in clause 4, page 5, line 23, at end insert

“in accordance with the current Programme for Government drawn up in accordance with section 20(3) of the Northern Ireland Act 1998 and paragraph 20 of Strand One of the Belfast Agreement,”.

This amendment requires Ministers to pay regard to the statutory duty under the Belfast (Good Friday) Agreement for the Executive Committee to seek to agree each year, and review as necessary, a programme incorporating an agreed budget linked to policies and programmes, subject to approval by the Assembly, after scrutiny in Assembly Committees, on a cross-community basis.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 17, in clause 4, page 5, line 25, at end insert—

“(ba) seek in utmost good faith and by using their best endeavours to implement in full the Programme for Government in “The New Decade, New Approach Deal” as regards the transparency, accountability and the functioning of the Executive;”.

This amendment requires Ministers to implement the Programme for Government agreed in January 2020, as it relates to transparency, accountability and functioning of the Executive.

Amendment 18, in clause 4, page 5, line 25, at end insert—

“(ba) seek in utmost good faith and by using their best endeavours to implement in full any future deal on the operation of devolved government between the parties to “The New Decade, New Approach Deal” which may be approved by the Assembly;”.

This amendment requires Ministers to implement any future deal on the operation of devolved government in Northern Ireland.

Amendment 19, in clause 4, page 5, line 26, at end insert—

“(ca) abide by and implement in every respect Annex A to Part 2 of “The New Decade, New Approach Deal” as regards the transparency, accountability and the functioning of the Executive;”.

This amendment requires Ministers to strengthen and enforce the Ministerial Code and other codes including the Special Adviser Code of Conduct.

Amendment 6, in clause 4, page 5, line 28, at end insert—

“(da) comply with paragraph 2.11 of the Northern Ireland Executive Ministerial Code in relation to the inclusion of ministerial proposals on the agenda for the Northern Ireland Executive, with areas for resolution to be recorded in the list of “Executive papers in circulation” against those papers still outstanding after the third meeting, in accordance with paragraph 62(c) of Section F of the Fresh Start Stormont Agreement and Implementation Plan;”.

This amendment implements a commitment further to the Fresh Start Agreement providing that an item may not be blocked for more than three meetings of the Executive through lack of agreement on the agenda.

Amendment 3, in clause 4, page 6, line 8, at end insert—

“(1A) ‘Key performance targets and objects’ include commitments made in the Belfast Agreement (1998), the Hillsborough Agreement (2010), the Stormont House Agreement (2014), the Stormont House Fresh Start Agreement (2015) and the New Decade, New Approach Deal (2020).”

This amendment makes it a requirement of the Ministerial Code of Conduct that Ministers are accountable to the Assembly and the public for fulfilling the Belfast (Good Friday) Agreement and subsequent Agreements.

[Louise Haigh]

I shall speak to amendments 4 and 3, and in support of amendments 17, 18 and 19 that appear in the name of my hon. Friend the Member for Belfast South.

Amendment 4 seeks to address an issue that was discussed in the earlier debate—an issue that we see with the current absence of a programme for government. As hon. Members know, the programme for government is drawn up in accordance with section 20(3) of the Northern Ireland Act 1998 and paragraph 20 of strand 1 of the Belfast/Good Friday agreement. It provides Ministers and the public with a clear mandate and agenda and a basis for decision making. As we have discussed, any issue that a party in the Executive deems significant or controversial that is outside the programme for government can be referred for approval by the full Executive. Since New Decade, New Approach, that mechanism has been used on at least six occasions.

Despite the draft programme for government having been published in New Decade, New Approach, no programme has been adopted in the current mandate. The amendment would make Ministers accountable under the code of conduct for agreeing a programme for government, providing an additional layer of accountability. It would also be important for sustainability. In the absence of the powers of a caretaker Executive being codified in the Bill, the Committee is being asked to rely, in essence, on a programme for government to limit those caretaker ministerial powers. The amendment is therefore an additional safety mechanism, requiring Ministers to agree a programme for government. I would be grateful if the Minister could explain why he chooses not to accept it, if indeed he does not.

I will allow my colleague to speak on amendments 17, 18 and 19 more comprehensively, but the broad thrust of them is absolutely right and we wholeheartedly support them. Agreements made must be honoured, and too often elements of agreements made in the past—from the Belfast agreement through to the St Andrews agreement and, indeed, too much of New Decade, New Approach—have not been honoured. That has damaged trust in the operation of the Assembly and the perception of its ability to effect change. The amendments in the names of the hon. Members for Foyle and for Belfast South simply codify agreements that have already been reached. For that reason, we are very happy to support them.

[Mr Walker]

To respond to amendment 4, the Committee will know that clause 4 substitutes a revised ministerial code of conduct, setting out expectations on the behaviour of Ministers, including provisions around the treatment of the Northern Ireland civil service, public appointments and the use of official resources and information management. We are legislating to update the ministerial code of conduct in accordance with the requests made by the then First Minister and Deputy First Minister following agreement to revise the code by the Executive Committee. The changes, as I said, have not come from the UK Government but from the Executive themselves, to reflect what the parties agreed in the NDNA deal.

We do not think that the amendments are, in any event, necessary, as the pledge of office already requires Ministers to participate with colleagues in the preparation of the programme for government, and to operate within the framework agreed within ExCo and endorsed by the Assembly. We therefore feel that amendment 4 is not necessary, and I ask the hon. Member for Sheffield, Heeley to withdraw it.

[Louise Haigh]

I am grateful to the Minister for placing it on the record that the provisions in the pledge of office will constrain Ministers. I am therefore happy to withdraw the amendment.

[The Chair]

There was no debate on amendments 17, 18, 19, 6 and 3. I probably should have explained this at the beginning. We were debating amendment 4. I said at the beginning that it would be convenient to debate the other amendments at the same time. I think the hon. Member for Belfast South probably did not understand that. With the Committee’s indulgence, I will listen to the points that she wishes to make.

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[The Chair]

As the Opposition do not wish to press amendments 4 or 3, I call Louise Haigh to withdraw amendment 4.

[Louise Haigh]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We can now go back to the correct order.

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[Stephen Farry]

Everyone appreciates that politics in Northern Ireland is extremely fluid—that is probably a massive understatement. We never know what political crisis is around the corner.

This is an excellent Bill, and I am keen to see it implemented as quickly as possible following Royal Assent. I am not conscious of what the reason is for the two-month delay in commencement after Royal Assent, so I would be very grateful if the Minister outlined the Government’s thinking in that regard. I am conscious of the laws of unintended consequences, and while this otherwise excellent piece of legislation is sitting on the statute book, about to be implemented, a situation could emerge to which the implementation of one or another aspect of the Bill was very pertinent. We could have the bizarre situation where these good measures could not be deployed because of the two-month delay. Obviously, New Decade, New Approach was not specific about commencement dates, so it is in the gift of this Committee and subsequently the Chamber to look at them further.

[Louise Haigh]

I rise briefly to speak in support of the amendment in my name and that of the hon. Member for North Down. Recent events could scarcely have proven more how important this legislation is. Because it is clearly the will of this Committee and the House to support the measures in this Bill, it is important that they commence as soon as possible. It is baffling that it has taken 18 months to get here. As I said on Second Reading, covid is not a good enough excuse for why it has taken this long. If it progresses as quickly as it has so far, it will still not be in place until Christmas, which would be two years since NDNA was signed. That is just not good enough, as that will be approaching the end of the mandate for the May Assembly elections. We have made it very clear that we are prepared to do anything we can to help speed up the passage of the Bill and would welcome movement from the Minister on the commencement date.

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[Stephen Farry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

New Clause 1

Report on implementation of The New Decade, New Approach Deal

“(1) The Secretary of State must lay a report before each House of Parliament and before the Northern Ireland Assembly no later than six months after the date on which this Act is passed.

(2) The report under subsection (1) must set out —

(a) whether, and how, each provision of this Act has been implemented, and

(b) what plans the Government has to bring forward further legislative proposals to implement the remainder of The New Decade, New Approach Deal.”. —(Louise Haigh.)

This new clause requires the Government to report on what parts of The New Decade, New Approach Deal have been achieved under this Act, and what plans the Government has to implement the remainder of the deal.

Brought up, and read the First time.

[Louise Haigh]

I beg to move, That the clause be read a Second time.

I thank you, Mr Stringer, for chairing us through the speedy but proper scrutiny of the Bill this morning.

On Second Reading and this morning, the importance of all political parties abiding by commitments that are made in forming the Northern Ireland Assembly and Executive has been discussed at length. The Government have made that very clear on important elements of NDNA. If it is true for the Northern Ireland political parties, it must be true for the UK Government as well, as one of the co-signatories, just as it holds true for the Irish Government.

The provisions of annex A of NDNA outline a financial commitment that the Government were prepared to provide about 18 months ago. Much of that has still not been delivered, by the Government’s own admission—£1.5 billion of the funding set aside has yet to be delivered. I know the Minister will have figures on how much has been given for covid, but it still remains that much was promised to be delivered on public policy to support the mandate set out in NDNA.

The standstill budget for Northern Ireland when covid support is removed means the 7,500 police officers promised is little more than a pipe dream. Indeed, the Police Service of Northern Ireland has confirmed that it will cut numbers if that budget remains at a standstill this year. That also apples to the investment in transforming public services, such as the health service, which has been repeatedly mentioned because of the appalling waiting times in Northern Ireland, and infrastructure delivery.

The Prime Minster, who could not build a bridge when he was Mayor of London from one side of the Thames to the other, seems more concerned with one that will not be built from Scotland to Belfast, than delivering commitments the UK made just 18 months ago on urgent infrastructure requirements. The Stormont House agreement, recommitted to New Decade, New Approach, seems further way than ever, with the Government unilaterally rewriting it in briefings to newspapers.

The establishment of a Northern Ireland hub in London is nowhere to be seen, neither is the connected classroom initiative. Little wonder that the NDNA review panel has met just twice, as the Minster confirmed on Second reading, when it was supposed to meet quarterly. The Government would clearly rather not review their progress on their commitments.

The new clause is important because it requires the Government to report on which aspects of NDNA have yet to be delivered, especially when there is little time left of this mandate. It would provide an important parliamentary mechanism for Members across the House to keep to their side of the bargain, just as we ask all Northern Ireland political parties to keep to theirs.

[Mr Walker]

Before I comment on the new clause, I want to correct an error I made in my closing speech on Second Reading on this issue, when I stated that the Government have released £556 million of £2 billion-worth of funding agreed in the NDNA deal. I want to put on record that to date, the Government have released over £700 million of the £2 billion funding agreed over a five-year period.

The Government made good progress on the delivery of commitments under the New Decade, New Approach deal. We provided support for the resolution of the nurses’ pay dispute by securing the advance drawdown of funding. The revision of immigration rules governing how people in Northern Ireland bring family members to the UK took effect from August 2020. The appointment of a Veterans Commissioner took effect in September 2020. The launch of the programme for the centenary of Northern Ireland in 2021, supported by £1 million from the shared history fund, and regulations to bring Union flag-flying days in line with guidance in the rest of the UK, came into force in December 2020.

I am grateful to the Northern Ireland Affairs Committee, which has been scrutinising NDNA delivery closely, and we continue to welcome that. In “New Decade, New Approach Agreement: Government Response to the Committee’s Second Report of Session 2019-21”, the Government were supportive of the Committee’s recommendations to produce an annual report and offered to explore this further with the joint board. The Secretary of State also offered to attend a one-off oral evidence session before the Committee to discuss implementation of the New Decade, New Approach deal.

Given the commitments the Government have already made to bring forward reports and offer further discussions on implementation, as well as the existing scrutiny function in NIAC, we do not consider it necessary at this stage to lay a further report on the NDNA agreement. I ask the hon. Lady to withdraw her amendment.

[Louise Haigh]

Will the Minister confirm that £1.3 billion has still yet to be made available to the Northern Ireland Executive to fulfil the Government’s NDNA commitments? Can he confirm when the annual report will be published?

[Mr Walker]

On the first point, those commitments were made over a period of years. Much of the financial commitment has been front-loaded, and is why £700 million has already been brought forward in the first year. It is certainly the case that the commitments from NDNA will continue over that period of years. On the second point, I cannot give the hon. Lady a specific date, but am happy to write to her when that has been agreed with NIAC.

[Louise Haigh]

On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 2

Appointment of First Minister and Deputy First Minister

“(1) The Northern Ireland Act 1998 is amended as follows.

(2) In section 16A (Appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election), in subsection 4, omit the words “of the largest political designation“.

(3) For subsection (5) of that section, substitute—

“(5) The nominating officer of the second largest political party shall nominate a member of the Assembly to be the deputy First Minister.”.

(4) In section 16(B) (Vacancies in the office of First Minister or deputy First Minister), in subsection (4), omit the words “of the largest political designation“.

(5) For subsection (5) of that section, substitute—

“(5) The nominating officer of the second largest political party shall nominate a member of the Assembly to be the deputy First Minister.”.

(6) In section 16C (Sections 16A and 16B: supplementary), omit subsection (6).”—(Stephen Farry.)

Brought up, and read the First time.

[Stephen Farry]

I beg to move, That the clause be read a Second time.