Northern Ireland (Stormont Agreement and Implementation Plan) Bill

Mark Durkan Excerpts

Thursday 10th March 2016 Commons Chamber

[Mark Durkan (Foyle) (SDLP)]

In following my hon. Friend the Member for South Down (Ms Ritchie) in speaking to our amendment, I want to deal with a few of the points that have been made about this group of clauses on the independent reporting commission.

At the original Stormont House talks in late 2014, the SDLP proposed that the agenda should include paramilitarism and organised crime. It did not take the murders that subsequently happened to tell us that that was still a serious issue that should not be ignored in any serious negotiations. Unfortunately, we were not supported by other parties, who seemed to believe that that would somehow not be a problem. So we are now addressing an issue that other parties chose to ignore. Whenever the murders happened last year, a political crisis was created over issues that parties chose to ignore and then dramatically tried to advertise.

[Mr Jeffrey M. Donaldson]

The hon. Gentleman will forgive us if we take his comments as tongue in cheek, given that we were told after the Good Friday agreement in 1998 that these problems were all being dealt with, and the agreement was a comprehensive approach to resolving the issues relating to our conflict in Northern Ireland. We are still dealing with them 18 years later so he should not point the finger at those of us who warned in 1998 that the agreement was deficient in that regard.

[Mark Durkan]

Without getting drawn too far away from the subject of the Bill, none of us pretended that the 1998 agreement would absolutely solve the problems or dissolve any of the paramilitary organisations. We committed to a framework for decommissioning and a number of other changes. We consistently supported the existence of the Independent Monitoring Commission to deal with the questions of ongoing paramilitary activity. In this House, whenever the previous Secretary of State, the right hon. Member for North Shropshire (Mr Paterson), announced that the IMC was being wound up, some of us said, “You are taking away the monitoring commission because Sinn Fein has made a political issue of it, but the issue of paramilitarism has not gone away, and it will come back.” We pointed out that something like the IMC would end up being needed. That is exactly what happened last year.

Some of us have been consistent about recognising where there are problems and that they need to continue to be addressed. We were right about the questions arising when the IMC was wound up with no procedure to deal with ongoing concerns. We were right to say that the issue needed to be addressed in the Stormont House agreement. We were right in the proposals that my hon. Friend the Member for South Down has described when we said that we needed an enforcement approach and a whole community approach to secure an end to paramilitarism, as well as all the other changes that were needed to achieve a wholesome society. We were the only parties that advocated such proposals. To an extent, some of the sentiment of that is reflected in the agreement, but in a highly edited, partial and incomplete way, and that is why we have tabled our amendments.

We used to have an Independent Monitoring Commission that reported. Now we have an independent reporting commission. The legislation does not seem able to say “monitor”. The “Fresh Start” agreement refers to the term “monitoring”, but for some reason “monitoring” is not in the Bill. It is as though the legislation has carefully avoided saying anything that the commission will actually do. So we have to look at the “Fresh Start” agreement to see what the commission might actually do. For some reason, it is avoided in the lengthy clauses of the Bill.

The right hon. Member for Lagan Valley (Mr Donaldson) said that under the “Fresh Start” agreement the appointments, as well as the one appointment by the British Government and the one by the Irish Government, were to be made by the First and Deputy First Ministers. They were not. The hon. Member for Fermanagh and South Tyrone (Tom Elliott) is correct. The “Fresh Start” agreement said that the Executive shall nominate two members. Therefore, our amendment is consistent with what is in the “Fresh Start” agreement. It says that the appointment should be made, rather than by the First and Deputy First Minister, by the Justice Minister after consultation with the First and Deputy First Minister and in agreement with the Executive. So our amendment is more consistent with the “Fresh Start” agreement than the clause or the right hon. Gentleman’s amendment.

[Tom Elliott]

The hon. Gentleman is right that the “Fresh Start” document says that the Executive are supposed to make the appointment. Perhaps the Secretary of State or the Minister of State will tell us why the legislation did not say that the Executive as opposed to the First and Deputy First Minister were to make the appointment so that there could be a collective decision by the Executive rather than a decision by just two Ministers.

[Mark Durkan]

I fully accept the point, and I hope that the Secretary of State and the Minister have heard it. It would be useful if they addressed it.

It is unfortunate that, every time something is referred to as a role of the Executive it ends up becoming an appointment by the First and Deputy First Minister. With all that can be said about their acting jointly, people know that the habit has been that distinct and separate appointments have been made. There is not the trust in the appointments system. It is very like what Macaulay said about Disraeli and Gladstone. One of them is a charlatan and knows it; the other is a charlatan and doesn’t know it. So people do not have full confidence in the appointments system when something wider is required.

The “Fresh Start” agreement specifies that a number of things will be done by the Executive. The work towards an end of paramilitarism and a lot of other commitments in the “Fresh Start” agreement are put in the name of the Executive. I will be addressing the limitations of that in subsequent amendments and new clauses. We are meant to have an approach that is about all the parties, and all the parties may not be on the Executive. If this is about an all-party approach, we should be creating mechanisms that involve all the parties and we should not pretend that these issues will become the sole responsibility or property of the Executive. Nor should we pretend that the due responsibility of the Executive is discharged simply by the First and Deputy First Minister making appointments. I do not believe that any of that is adequate.

The fact that we needed to be back in Stormont House for talks on the negotiations after the crisis showed it was not sufficient that things were done between the First and Deputy First Minister. We had a crisis and needed all-party talks to bring us back from the brink. The First and Deputy First Minister’s positions and parties had brought us to the brink. Now we seem to be ending up with mechanisms that mean that everything will be done by the First and Deputy First Minister in future. So none of the lessons has been learned. None of the mistakes in the scoping of past negotiations, the scoping of the agenda or the politics of how these things are managed has been learned from.

I know that the amendment has been tabled by the Ulster Unionist party in respect of the role being conferred on the Policing Board. As the party which argued most in the Stormont House negotiations that the key roles in the Historical Investigations Unit should be appointed by the Policing Board, I do not agree with the amendment. After all, the HIU has a role which will involve constabulary powers. If there is a policing element to it, the evidence can be gathered, investigated and referred for prosecution. The role of the reporting commission is quite different. Nobody saw that there would be huge tension—apart from dealing with some of the cases that have already been looked at by the Historical Enquiries Team—between the role of the Chief Constable and the PSNI, and the role of the HIU.

There could, arguably, be difficulties between the reporting commission and the Chief Constable. For example, last year in the aftermath of the two murders, when the Chief Constable made an assessment that shared publicly the police’s working theories in relation to that murder, something of a political crisis was created and a panel was set up to look at those issues, including to say whether it accepted what the Chief Constable had said. It would be odd if the reporting commission, which was in part appointed by the Policing Board, had to look at issues that had been the subject of comment by the Chief Constable. That might be a dilemma for the Policing Board and might raise tensions. I do not believe that the Policing Board appointment answers the question.

[Tom Elliott]

Does the hon. Gentleman accept that his party was to the fore in proposing that the Policing Board would be instrumental in the appointment of senior members of the HIU? There could easily be a conflict between the HIU director or directors and the police. If the proposed arrangement will work for the HIU, I do not see why it should not work for the reporting commission.

[Mark Durkan]

I do not think the potential conflict would be the same. Obviously, there is the issue that was considered in the talks that some of the cases that had already been dealt with by the HET are currently the subject of PSNI investigation. Whether they will be referred to the HIU or reopened by the ombudsman is a factor in that. The prospect of any potential tension around the Chief Constable’s role was among the reasons why we said that appointment by the Policing Board would be a sensible way forward.

A different issue arises in relation to the role of the reporting commission. If we take the example of the controversies last year, the panel, which was a proto make-do version of the reporting commission, had to examine issues on which the Chief Constable had rightly spoken. Obviously, there was argument and tension about that.

[Nigel Mills (Amber Valley) (Con)]

I think the hon. Gentleman was arguing that in future the Executive may not consist of all five parties and there will be parties in Opposition. In that situation, would it not make sense for the commission, whose job is to hold the Executive and the two Governments to account, to have its members appointed by the Assembly and the Parliaments, rather than the Executive?

[Mark Durkan]

There is a wider possibility in that, which may take us further away from what was said in the Stormont House agreement. The hon. Gentleman is right. We need to ensure an all-party approach and we will address that problem in future amendments and new clauses, which I will not venture into now.

We believe that the way in which the Government have taken matters forward and the way in which the “Fresh Start” agreement has been framed do not recruit and keep engaged the span of cross-party interest that there should be both in the Assembly and beyond. It mistakenly shorthands too much to the Executive, then translates that as meaning simply First and Deputy First Ministers, with all the limitations and difficulties that that brings.

Furthermore, with the Commission appointed in that way by the Assembly, the process for doing that would become more complicated, and it is complicated enough at the Policing Board level. We think that appointment by the Justice Minister, following consultation—properly to give them their due—with the First and Deputy First Ministers, in agreement with the Executive, would be a way of reflecting some of the wider interests without creating difficulties for the Policing Board, adding to the list of appointments that it makes, and maybe creating tensions with some of its other appointment roles.

It should be recognised that the issues that have been highlighted by both the Ulster Unionist party and ourselves in respect of the appointments are not the only questions that should be asked in respect of the ill-defined role of the reporting commission, and how well that sits with the wider responsibilities that the hon. Member for Amber Valley (Nigel Mills) referred to. If we are serious about the whole community approach alongside the enforcement approach, there needs to be something much more collective and better defined than the Government have provided for in the Bill.

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[Mr Wallace]

I cannot answer for the Irish Government; we have to leave that up to them. Our purpose is to allow the commission to come up with a definition and to prosecute it in the pursuit of making its reports.

It is our clear intention to lay the treaty before Parliament before, or at the same time as, the regulations to be made under clause 4. As will be clear, the Bill sets out the broad framework for the commission. It references the functions in the “Fresh Start” agreement and sets out the key duties to which the commission will be subject.

Further details will be required in secondary legislation to give full effect to the international agreement. Clause 4(2) therefore provides such a power, which may be used to make provision about accounts and audit, for example, or about majority decision making, or other key aspects of the agreement. I recognise that that is a relatively broad power and that the regulations to underpin the new commission are likely to be of interest to hon. Members. The regulations will, therefore, be subject to the affirmative procedure.

Clause 5 makes provision about the conclusion of the commission’s work. The “Fresh Start” agreement provides that the work of the commission will inform future Northern Ireland Executive programme for Government priorities and commitments through to 2021.

[Mark Durkan]

The Minister said earlier that the Government would encourage the First and Deputy First Ministers to consult the Executive when they exercise appointments to the commission. Clause 5 states that

“the Secretary of State must consult…the First Minister and deputy First Minister in Northern Ireland…the relevant Minister in the Government of Ireland, and…any other person the Secretary of State considers appropriate.”

Will the Minister give a guarantee that all the parties that were meant to be involved in the negotiations that brought about the creation of the commission will be consulted, rather than leaving it to just the First and Deputy First Ministers yet again?

[Mr Wallace]

I am sorry to disappoint the hon. Gentleman. We have decided that the First and Deputy First Ministers are the most appropriate officers to make the final decision. It is, of course, up to them, as the leaders of the Executive, to consult all their members, and more broadly, if necessary. The Government decided that the most appropriate officeholders are the First and Deputy First Ministers.

[Mark Durkan]

Clause 5(2)(c) mentions

“any other person the Secretary of State considers appropriate”,

so what is wrong with the Minister giving an assurance that that should include other party interests? That is hugely important if we are going to maintain the broad span of support to confront paramilitarism.

[Mr Wallace]

The clue is in the word “appropriate”. We want to set up the commission and make sure that it carries the momentum of public opinion to resolve the issue of paramilitary activity in Northern Ireland. Our view is that the best way to do that is to assign to two officeholders—the First and Deputy First Ministers— the authority to nominate two members of the four-member commission. That is the decision the Government have taken.

I have read the hon. Gentleman’s amendment 7. The First and Deputy First Ministers do not operate in isolation in the Executive; they consult and speak to Ministers on a daily basis. That may not be his experience, but it has certainly been mine since I was appointed. I want to place on the record my admiration for the current Justice Minister, David Ford, and what he has done over the past few years, and I am sad that he has said that he will not continue in that role. He is incredibly well respected in the Executive, and it is our view that the First and Deputy First Ministers do speak to him and regularly consult him. Perhaps they do not do so as much as the hon. Gentleman might like, but they would be unwise to not consult that office in any future debate.

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[Mr Wallace]

Before I move on, I refer hon. Members again to the word “appropriate”. The winding up of the commission is some years hence. What the commission looks like, how it behaves and the importance that is attached to it at the time of winding up will dictate the most appropriate people, office holders and agencies to consult in that winding up. I do not intend to restrict the Government to commitments about specific individuals other than those set out in the subsection about whom we must consult. It is clear that we would consult the First Minister and Deputy First Minister, and the relevant Minister in the Government of Ireland, because of the nature of the international treaty with the Irish Government. Indeed, the leaders of the Executive in Northern Ireland, the First Minister and Deputy First Minister, would have to be involved, given that they are involved in the set-up of the body.

However, when it comes to what is appropriate at the time, I do not think I should hold to hostage a future Government, a future Minister or anybody else on something that may or may not happen in five, six, seven, 10 or however many years’ time. That is why the Bill states quite clearly: as “appropriate”. If I were winding up the commission right now, I would consult a range of stakeholders, including the Justice Minister, but I am not going to prescribe in legislation individual people whom it may not be appropriate to consult in a few years’ time.

[Mark Durkan]

Will the Minister give way?

[Mr Wallace]

I want to move on. We have fought a bit, and I know that hon. Members are keen to get on to the next group of amendments. Clause 5 provides that the Secretary of State may make regulations to wind up the commission, as I have said. Before making such regulations, we will confer with all the stakeholders. The clause provides that regulations to wind up the commission may amend, repeal or revoke an enactment. Similar provision was included in the Act that founded the IMC, the Northern Ireland (Monitoring Commission etc.) Act 2003, which granted the Secretary of State the power to provide, by order, that key provisions of that Act would cease to have effect. That power was exercised in 2011, effectively winding up the IMC. The clause also provides that such regulations may confer functions on the Secretary of State or any other person, and may make provision about the destruction of information or records held by the commission.

The new independent reporting commission will fulfil an important role in tackling paramilitary activity, in furtherance of the Government’s commitment to challenging all paramilitary activity and associated criminality. I hope that the hon. Member for Fermanagh and South Tyrone will withdraw the amendment.

[Tom Elliott]

It is quite clear that neither the Government nor other parties support amendment 1, so it would be difficult for us to win a vote on it. I am disappointed that none of the parties has dealt with the implications of having a more independent appointment process, and moving away from the direct political appointment process. We are where we are with the Bill, however, and the UUP broadly supports it. We would like to have seen some changes, but by and large we want the process to move on.

[Mark Durkan]

Obviously, my hon. Friends and I believe that amendment 7 takes forward the terms of the agreement in a better spirit than does clause 1, but we do not want to press the point to a Division. I want to put it on the record that that does not mean that we are content with the proposals. Equally, we think there are some questions about the other clauses in the group, which the Government should continue to address. In his response to our points about the limitations of clause 5, the Minister did not reinforce the sort of encouragement that he has said the Government want to give the First Minister and Deputy First Minister about consultation. If the Minister had been more forthcoming, we might have believed in the worth of his encouragement to the First Minister and Deputy First Minister. On that basis, we do not intend to press the amendment to a vote.

[Tom Elliott]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2

Exercise of functions

Amendment made: 3, page 2, line 17, leave out “or Ireland”.—(Mr Wallace.)

This amendment limits the Secretary of State’s duty to give guidance about the exercise of the Commission’s functions in relation to disclosures of information which might prejudice national security. As amended, the duty will cover only the national security interests of the United Kingdom.

Clause 2, as amended, ordered to stand part of the Bill.

Clauses 3 to 5 ordered to stand part of the Bill.

Clause 6

Extension of period for appointment of Ministers

Question proposed, That the clause stand part of the Bill.

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[Mr Jeffrey M. Donaldson]

We support amendment 6, which was tabled by the hon. Member for North Down (Lady Hermon). There is much merit in what she says. When we ask Members of a legislature to give an undertaking that they will behave in a certain way and abide by certain principles, surely there should be some sanction when they breach those principles and their undertaking. We are not asking hon. Members—neither is the hon. Lady—to prescribe what the sanctions should be. We merely want to ensure, as is our duty as the sovereign Parliament, that the Standing Orders of the Northern Ireland Assembly reflect the need for such sanctions. It is our duty to legislate for this element of the Stormont agreement, and we believe that what the hon. Lady has proposed is sensible and prudent. This is a question of not just the politics of all this, but public confidence in the Northern Ireland Assembly, its operation and those who are elected to it.

We talk about a fresh start. We have Assembly elections on 5 May. The Members who will be elected to the Assembly for the first time after that election will be required to make this undertaking. I think that that is the appropriate moment when the Assembly should be saying that we can have no more of a situation in which some people may have been ambivalent in their attitude towards paramilitarism in the past. Everyone has to be very clear about where they stand and it is important to have the undertaking. It is also important, for public confidence and for the accountability of our public representatives, to have a sanction. It is for the Assembly to prescribe that sanction, but it is for this House to ensure that the requirement for that is in Standing Orders. We will support the hon. Lady’s amendment.

[Mark Durkan]

As my hon. Friend the Member for South Down (Ms Ritchie) said, the SDLP has tabled several amendments on this issue. I take on board what the Minister said in an attempt to give a “prebuttal” of our amendments, and I will come on to amendment 6, which was tabled by the hon. Member for North Down (Lady Hermon), when I speak to clause 8.

We have tabled amendments 8 to 12 to clause 7. The Minister tried to say there would be no tension in interpretation between different parts of the proposed pledge of office. Proposed new sub-paragraphs (cf) and (cg) of schedule 4 to the Northern Ireland Act 1998—

“to work collectively with the other members of the Executive Committee to achieve a society free of paramilitarism”

and

“to challenge all paramilitary activity and associated criminality”—

could well find themselves in tension with another Minister’s understanding of proposed new sub-paragraph (cj), which is to

“support those who are determined to make the transition away from paramilitarism.”

My hon. Friend the Member for South Down described the situation in which she found herself. She tried, as stated in proposed sub-paragraph (cf), to

“work collectively with other members of the Executive…to achieve a society free of paramilitarism”,

and she was told at that time, “No, it’s in your Department. You do your own thing. You make that decision.” She then acted on the basis of, as in proposed sub-paragraph (cg), challenging

“all paramilitary activity and associated criminality”

only to find herself undermined by other members of the Executive, who said that they were actually discharging the requirement of proposed sub-paragraph (cj) as supporting

“those who are determined to make the transition away from paramilitarism”.

That issue ended up in the courts, so there is already proven experience of exactly the contradictions and tensions that can exist between these things when they are different bullet points that can be quoted separately. This is a recipe for confusion, nonsense and obfuscation.

We also need to recognise that people will interpret various parts of the pledge differently. Will the Minister tell us whether denying something as paramilitary activity breaches the line in the pledge to

“challenge all paramilitary activity and associated criminality”?

When someone turns around and says, “Oh no, so and so is not engaged in paramilitary activity or associated criminality; they are a good republican,” does that mean they are in breach of proposed sub-paragraph (cg)? Is that a failure to challenge? Is denial a failure to challenge, or can denial exist alongside the commitment to challenge all paramilitary activity, because someone can say that as paramilitary activity and associated criminality is not defined by anybody else, it is what anybody wants to define it to be? This touches on a point made earlier by the hon. Member for South Antrim (Danny Kinahan) on the earlier group.

Clause 7 is wide open for misinterpretation and misapplication, which will lead to people being scandalised. It will not avoid us being in exactly the sort of crisis situation we had last year. In the aftermath of a horrible crime and comments that the Chief Constable could not avoid making, we then had political difficulties. The terms of the pledge of office and the undertaking are meant to avoid our being back in that situation, but they will clearly fail to do so. That is why we have tabled our amendments.

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[Sammy Wilson]

Does the hon. Gentleman accept that, where Standing Orders set standards, the Assembly commissioner has something to work on, so if a complaint is made about whether someone has breached the pledge, there is at least a basis on which an investigation can take place?

[Mark Durkan]

Yes, I fully accept that, and the clause says that Standing Orders will lay down provision on how the undertaking is made. That is why it was nonsensical of the Minister to argue that we should not set things down in the Assembly’s Standing Orders, when that is precisely what the clause will do. The hon. Member for East Antrim seems to assume that the Assembly Commissioner for Standards would deal with the complaint, so perhaps he sees merit in our amendment that would ensure that someone could receive, consider and assess a complaint. Certainly, the more that those standards are explicit either in the Bill or in Standing Orders, the better; that is fine.

Of course the Assembly Commissioner for Standards does, among other things, address standards of public life. That is one reason why we have tabled amendment 15, to make it clear that the precepts and commitments in the undertaking would in effect be read alongside the Nolan principles, as part of the general standards of public life in Northern Ireland, so that MPs and councillors would be held to that standard. Let us remember that the commissioner deals with those issues separately and that we do not want to create inconsistencies where parties face allegations that their members said one thing at a council meeting and did something else as MLAs and MPs. We would then get into all sorts of confusion about who is amenable to what standards. Let us create consistency and clarity of standards.

In previous debates, Members have raised issues about what councillors from my party have done in different instances, and we have raised instances about what other people have said or done, or who they have consorted with in other situations. This is about trying to get us all beyond that and trying to ensure that everyone in all parties knows what standards are required of them and then adheres to those standards. That is why we have tabled that series of amendments to make good serious deficiencies.

The other rich argument that came from the Minister was that he said that there should be no question of our trying to deal with breaches either of the undertaking or the pledge. In one instance, he said that, after all, the Assembly has the power to censure Ministers; but of course any attempt to censure Ministers on any grounds in the Assembly so far has ended up being vetoed under the petition of concern. He therefore points us to an alternative that is something of a dead end.

If we are serious about trying to resolve these issues and about trying to ensure that no untoward incident triggers the sort of crisis that had the institutions teetering on the brink, as they were in the later part of last year, we need to do better than the Bill, and the Minister needs to do better than come up with humbug, shallow arguments about the degree of consensus about the “Fresh Start” agreement, when it is already clear, even from what has been said from these Benches, that everyone knows that that is very limited.

[Danny Kinahan (South Antrim) (UUP)]

I will try to be as quick as possible because we are trying to get through a lot. As a party, we fully support trying to move the Stormont House agreement forward and we support the principles in the Bill, and we totally abhor the paramilitaries, so we know where we are trying to go; but although we want to get there as quickly as possible, we have rushed this too quickly. We have two major problems that run through the amendment. The one that we have discussed at great length is the lack of sanctions, and the other is the lack of a definition of “paramilitaries”.

To answer the question that the hon. Member for Amber Valley (Nigel Mills) asked about other paramilitaries worldwide, when we go to the Falls Road, look at a wall there and see Basque and Colombian terrorists, Palestinians and others all being fêted, we realise that this is larger than the sovereignty of this Parliament, and that this Parliament needs to use its sovereignty to do its best. We need to look at those matters.

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Draft Budgets

[Mark Durkan]

I beg to move amendment 18, page 5, line 42, at end insert—

‘( ) Statements laid before the Assembly under this section must include information on—

(a) how the total figures in the statement have been calculated,

(b) the application of any funding formula used by Her Majesty’s Government in determining the amount of UK funding for that year as notified to the Minister by the Secretary of State,

(c) the extent to which Her Majesty’s Government’s spending plans, on which the funding formula is based, have been informed or affected by statutory requirements or obligations, including specific clarification on—

(i) the consequential budgetary effects of any primary legislation resulting from Bills brought before the House of Commons after 22 October 2015, which related exclusively (in whole or in part) to either England and Wales, on matters within the devolved competence of any or all of the Northern Ireland Assembly, the Scottish Parliament or the. National Assembly for Wales, with indications on how these have been factored into the funding formula.

(ii) any Regulations or other secondary legislation laid before the House of Commons after 22 October 2015, which related exclusively to either England or England and Wales, on matters within the devolved competence of any or all of the Northern Ireland Assembly, the Scottish Parliament or the National Assembly for Wales, with indications on how these have been factored into the funding formula .

(d) the ring-fencing of funding by Treasury for bespoke purposes,

(e) UK wide or non-devolved funding measures for which services, enterprises or persons in Northern Ireland may be eligible, and

(f) the impact of any relevant implications for Northern Ireland arising from the Charter for Budget Responsibility.

( ) The Minister of Finance and Personnel must lay before the Assembly further timely statements providing additional information on the effect on funding for the Northern Ireland Assembly‘s budget of—

(a) other spending decisions or announcements by the Treasury or the Secretary of State which might have implications for the devolved spending remit by either adding to or subtracting from previously announced or approved plans,

(b) the ring-fencing of funding by Treasury for bespoke purposes,

(c) any legislative changes affecting the totals of spending by or on behalf of the UK Government and

(d) UK-wide or non-devolved funding measures for which services, enterprises or persons in Northern Ireland may be eligible.”

This amendment requires transparency in statements laid with the budget, to show how figures were calculated, the application of the Barnett formula and the consequences of legislative changes made where EVEL applied; and requires additional statements on the consequences for Northern Ireland of other legislation and spending decisions.

[The Temporary Chair (Sir Edward Leigh)]

With this it will be convenient to discuss clause stand part.

Before I call Mr Durkan, I should say that these proceedings have to finish by 3.45. It is of course up to Members how they progress, but we do not have a great deal of time. Short speeches would be appreciated.

[Mark Durkan]

The Government have included clause 9 in the Bill in the name of transparency. I am certainly all for transparency in Budgets, be it here or in the Assembly, and I say that as a former Minister of Finance and Personnel in the Assembly.

Amendment 18 would make the transparency more articulate when the Minister of Finance lays a new statement before the Assembly to reflect the sum allocated to the Executive under the Barnett formula. It should not be just about a figure; it should explain how the figure was reached and the formula that was used to arrive at it.

The amendment is also about making good concerns expressed by parties not just in Northern Ireland but in other devolved areas that legislation passed in this House that conditions the overall plans in the Budget has consequential impacts on the Barnett formula. The Government deny that that is so. Many of us in the devolved parties believe that it is so. The best way of knowing is exactly by having the sort of transparency that amendment 18 would provide.

The transparency is also about avoiding the confusion around Budget announcements. Sometimes the Chancellor will talk about money that is available to Northern Ireland going directly to the Executive under the Barnett formula. Other times money will come from UK-wide funds or it is challenge funds that Northern Ireland is eligible for. Other money is also allocated to Northern Ireland on a purely ring-fenced basis. Often there is confusion about the different sums. Hon. Members are confused when we ask questions during Budget procedures. Members of the Assembly are confused and of course, the public, whose money we are talking about, are completely confused. So if there are to be benefits to transparency, let us make sure that the transparency is complete and articulate. That is what amendment 18 is about.

[Mr Wallace]

Clause 9 delivers the commitment, set out in the “Fresh Start” agreement, that the Government would legislate to promote increased transparency in the setting of Executive budgets. The clause amends section 64 of the Northern Ireland Act 1998. It requires the Northern Ireland Finance Minister to lay a statement in the Assembly specifying the amount of UK Government funding available for the financial year, as calculated by the Treasury and notified by the Secretary of State. The Finance Minister’s statement must be laid at least 14 days in advance of the introduction of a draft Executive budget.

Upon laying the draft budget, the clause also requires that the Finance Minister issues a further statement showing that the amount of Government funding required by the draft budget does not exceed that specified by the Secretary of State. The clause also makes provision for a similar process to be followed if there is any change in the level of Government funding provided to the Executive. If this occurs, the Secretary of State can notify the Finance Minister of the change in funding. Within four months, the Finance Minister must inform the Assembly of this notification and specify the revisions to expenditure proposals required as a result of the Secretary of State’s notification. In providing for greater transparency around Executive finances, this clause will encourage affordable and sustainable budgets going forward.

I do have some sympathy with the aim of amendment 18, which is to bring about further transparency in the budgetary process—that is what I think clause 9 already achieves. I understand there to be two main purposes behind the amendment to the provisions in the Bill which deal with the draft Budgets presented to the Northern Ireland Assembly.

To deal with subsections (a) and (b) in the amendment, the inner workings of the Barnett formula are sometimes unfairly characterised as opaque. In fact all of the information which underlies the calculations and therefore the calculation of the block grant is set out in the Treasury publication known as the “Statement of Funding Policy”.

As will once again be evident when the Chancellor presents his Budget next week, the Barnett consequentials for Northern Ireland relating to funding decisions taken by the Treasury will be communicated to the Northern Ireland Executive almost instantly upon the Chancellor taking his seat. It is the intention behind the provisions in this Bill to make it possible for Assembly Members—and parliamentarians in this House who take an interest— to more easily work out what is going on under the surface to deliver the Executive’s budgetary allocations from the Treasury. I want to reassure hon. Members that the Northern Ireland Office is working closely with the Treasury and the relevant Northern Ireland Departments to determine the format of the new statement that the Finance Minister will be obliged to lay in the Assembly. The statement will necessarily include information on the application of the Barnett formula and its outcomes.

We do not believe the provisions set out in paragraphs (a) and (b) of the amendment will achieve the aims intended, or that they are necessary. In fact, a statement which simply said that “the amount of UK funding included in this statement was calculated by the Treasury with reference to the statement of funding policy” would be technically compliant with the amendment. I do not believe that that is the intent. I ask hon. Members to take it that we will ensure that the statements, when made, are more informative on a voluntary basis than such legislation would compel them to be.

Paragraph (c) of the amendment is of a rather different character, and the Government cannot accept the logic behind it. Indeed, matters related to this subject were debated at some length when the House considered the proposals for English votes for English laws. It is not possible to calculate changes to the block grants on a Bill-by-Bill basis.

The block grant allocations to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly are calculated at spending reviews and adjusted following decisions taken at fiscal events such as Budgets or autumn statements on overall Whitehall departmental budgets. Approval from Parliament to pay funds into the respective devolved Consolidated Funds is granted through the Supply estimates process—itself not subject to EVEL.

Even when a Bill’s impact assessment identifies extra spending or savings, implicitly or explicitly through a money resolution, in many cases this decision may not impact on the size of the block grant at all. So the intent which I understand to be behind the amendment would have no practical effect. The relevant part of the Finance Minister’s statement would say, every time he or she made it, that no effects of the type specified in the legislation has been identified.

In relation to paragraph (d) of the amendment, there is no reason why the statement to be made by the Finance Minister should not clarify any elements of ring-fenced funding being made available to the Executive. However, given the reservations that I explained earlier about the need to prescribe every aspect in legislation, I ask again that hon. Members accept that we will work closely with the Finance Minister to ensure that sufficient detail is made available to permit proper scrutiny and understanding of the various funding sources available to the Executive.

On paragraphs (e) and (f) of the amendment, I am afraid that we are unclear precisely what is intended by the proposed provisions. The Executive’s block grant does not generally include non-devolved elements of funding, and the charter for budget responsibility sets out obligations for the UK Government, not for the Northern Ireland Executive.

Finally, much of what is provided for in the final proposed subsection, which would require the Finance Minister to lay “further timely statements”, is already achieved by the existing provisions. New subsection 64(1C) to (1E) will compel the Finance Minister to lay new statements to the Assembly under certain circumstances if notified of changes to the level of UK funding available. The new statements will not, however, be any more able to deal with the questions of changes provoked by legislative provision at Westminster than as explained previously in relation to English votes for English laws.

I urge hon. Members to withdraw their amendment.

I beg to move that clause 9 stand part of the Bill.

[Mark Durkan]

I am not persuaded by any of the Minister’s arguments in respect of the quality of the amendment, but I can assure him that I will not press it to a Division.

The Minister said he was not sure that paragraphs (e) and (f) were needed. Paragraph (e) relates to the Chancellor’s own statement. Often there is confusion about whether the money made available to Northern Ireland is in the Northern Ireland budget or not. The aim was to ensure greater clarity for Members in this House, Members of the Assembly and the public.

Paragraph (f) refers to

“the impact of any relevant implications for Northern Ireland arising from the Charter for Budget Responsibility.”

The charter for budget responsibility is becoming increasingly important. Like other measures, it was probably bubble-wrapped as a neutral budgetary tool originally, but neutral budgetary tools end up being cuts weapons in the hands of the Treasury. The aim of the amendment was to ensure that that is understood. Let us remember that the welfare cap is part of the charter for budget responsibility. We want to ensure three-dimensional transparency in relation to budgetary matters.

I am glad that there are some aspects of the amendment the Minister would want to see reflected in the further outworkings of clause 9 and that he feels confident they will be. I do not share that confidence, but I will not tax the House with a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Clause 10

Regulations

Question proposed, That the clause stand part of the Bill.

[The Temporary Chair]

With this it will be convenient to discuss the following:

Amendment 2, in clause 11, page 6, line 25, leave out “section 10” and insert “sections 10, (Victims and survivors), (Election of the First Minister)”

This amendment provides for NC1 and NC2 to come into force on the day on which this Bill is passed.

Clause 11 stand part.

New clause 1—Victims and survivors—

In Article 3 of the Victims and Survivors (Northern Ireland) Order 2006, at the end insert—

“(3) In this Order references to victim and survivor shall not include an individual appearing to the Commission to be any of the following—

(a) someone who is or has been physically or psychologically injured as a result of or in consequence of their undertaking a criminal act in a conflict related incident;

(b) someone who was in whole or in part responsible for an unlawful conflict related incident if that person took part in all or any of the planning or execution of that unlawful act.””

This new clause provides that persons injured as a result of criminal acts in conflict related incidents cannot be treated as victims or survivors if they were themselves responsible for those criminal acts.

New clause 2—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 two 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).””

This new clause provides for the First Minister and deputy First Minister to be elected jointly by the whole Assembly, provided that the joint candidates for those posts also have a majority among both the designated Nationalists and the designated Unionists voting in the election.

New clause 3—Appointment of First Ministers—

In Section 16A of the Northern Ireland Act 1998 (Appointment of First Ministers and Northern Ireland Ministers following Assembly election)—

(a) subsections (4) to (7) and (9) shall cease to have effect,

(b) after subsection (3) there shall be inserted—

“(4) Each candidate for the joint office of First Ministers must stand for election jointly with a candidate for the other office.

(5) 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.

(6) The First Ministers—

(a) shall not take up office until each of them has affirmed the terms of the pledge of office before the Assembly; and

(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Ministers.

(c) in subsection (3)(b) the reference to subsections (4) to (7) shall be replaced by a reference to subsections (4) to (6).””

This new clause provides for the First Ministers to be elected jointly by the whole Assembly, provided that the joint candidates for those posts also have a majority among both the designated Nationalists and the designated Unionists voting in the election, rather than appointed by the nominating officers of the largest political parties of the largest and second largest political designations. This would revert to provisions of the Good Friday Agreement and the Northern Ireland Act 1998.

New clause 4—Implementation and Reconciliation Group—

‘(1) An Implementation and Reconciliation Group will be established to oversee progress on, and adherence to, commitments in the Stormont Agreement and Implementation Plan and other relevant agreements.

(2) The Implementation and Reconciliation Group, serving as a forum of joint purpose for reconciliation and normalisation involving Assembly parties and both governments, may receive and make reports and offer advice and recommendations.

(3) The Implementation and Reconciliation Group will have eleven members, including a chair.

(4) Publicly elected representatives will not be eligible for appointment as members of the Implementation and Reconciliation Group.

(5) The chair of the Implementation and Reconciliation Group must be a person of independent and international standing, nominated jointly by the First Ministers.

(6) The other appointments to the Implementation and Reconciliation Group will comprise eight members nominated to reflect the party proportions among the elected members of the Northern Ireland Assembly, one member nominated by the Secretary of State and one nominated by the Government of Ireland.”

This new clause would establish a group comprising of nominees of Assembly parties, whether represented in the Executive or not, and nominees of both governments to appraise progress on agreed objectives and plans in pursuit of reconciliation and normalisation.

New clause 5—Equality duty—

‘(1) Section 75 (statutory duty on public authorities) of the Northern Ireland Act 1998 is amended as follows.

(2) In subsection (1), after paragraph (d) insert—

“(e) between those who are victims and survivors of the conflict and those who are not; and

(f) between those who have been members of Her Majesty’s armed forces and those who are not.”

(3) After subsection (1), insert—

“(1A) A person is excluded from any benefit arising from this Act by virtue of (1)(e) if that person has been convicted of a serious criminal conviction.”

(4) In subsection (5), insert at the appropriate places—

“serious criminal conviction” means a conviction, whether the person was convicted in Northern Ireland or elsewhere, for an offence for which—

(a) a sentence of imprisonment of five years or more was imposed,

(b) a sentence of imprisonment for life was imposed;

“victim and survivor of the conflict” is defined as—

(a) any person who has suffered harm caused by an act related to the conflict in Northern Ireland, for which they are not wholly or partly responsible, that is in violation of the criminal law,

(b) any person who provides a substantial amount of care on a regular basis for a person as outlined in paragraph (a), where the harm suffered is a physical or psychological injury.”

This new clause provides for a change to section 75 of the Northern Ireland Act 1998 to add to the list of exemptions victims and survivors of the conflict and members of Her Majesty’s Armed Forces. It also provides a definition of victims and survivors of the conflict.

--- Later in debate ---

[Mark Durkan]

Following the right hon. Member for Lagan Valley (Mr Donaldson), I want to make it clear that my party has not set out to oppose the Bill, but in the talks we worked for a better and fuller agreement than we have ended up with in the “Fresh Start” agreement. We also wanted one that was more competent and more cogent, and we feel similarly in terms of the legislation.

In opening Third Reading, the Secretary of State talked about the purposes of the pledge and the undertaking and said they were unequivocal commitments, but contrary to what she said, the debate on the amendments showed that the pledge and the undertaking are actually going to prove equivocal, ineffective and inert. So they will not even be fit for the purpose for which they have been offered, and that is bad legislation on our part. We regret the fact that Ministers remain tied to the idea that the terms of the “Fresh Start” agreement are themselves somehow adequate when it comes to legislation. The fact is that Ministers are pretending that the tyre is only flat at the bottom when they try to say that this is sufficient. The fact is that there are clear difficulties; there are clear gaps. This will not be fit to meet any of the bumps and challenges that we are going to meet in the road ahead, and we can point to experience to prove that.

On the new clauses that could not be fully debated, just as the right hon. Member for Lagan Valley has addressed new clause 5, which his party tabled, to answer some of what the Minister said, I want to make it clear that our aim was never to pre-empt the legislation that is necessary in relation to the past. That is why we would not have supported any amendment on the definition of victims or anything else.

On trying to make provision to establish an implementation and reconciliation group, our new clause did not venture into any of the possible roles that that group might have in respect of the past. It did not trespass on any of the understandings or discussions so far, but it tried to offer what we offered in the talks, consistent with our advocacy of a whole-community approach to achieving a wholesome society and of having a tied-in approach by all the parties to taking responsibility for ending paramilitarism and overcoming sectarianism and for moving forward on flags, emblems and all those other issues that the agreement is meant to cover but that are not properly carried forward, unless people think that they are all just stuck in a sin bin to be parked at the office of the First Minister and Deputy First Minister.

One of the inadequacies of the latest version of the Stormont agreement is that too many of the issues that should have been the subject of cross-party approaches and commitments now end up named as Executive approaches and commitments at precisely a time when we are possibly looking at fewer parties being in the Executive. So the effort was made to get a cross-party agreement, but we end up with something that is expressed in the language of the Executive. We do not want a situation where parties not in the Executive in future can disown their leadership responsibilities on these key issues and somehow make a prosecution case against the First Minister and the Deputy First Minister or the parties that occupy that office for the failure to deliver on principles and precepts to which we were all meant to be setting our hand in the Stormont House talks and, indeed, the Haass talks before then.

Some of us have tried to offer broader bandwidth to the implementation and reconciliation group because we want a bigger, better, fuller and more meaningful agreement. We really do fear that some of the parties that support the limited terms of the agreement will be the very people who complain about its inadequacy, as we have heard today. More has been said on some of the issues today than I heard said in our negotiations during the weeks and weeks at Stormont House. It is really is a bit much when parties use this place to table amendments to try to show their difference but condemn the rest of us whenever we are consistent with our arguments in the talks. We are being absolutely consistent with those arguments in our amendments today, and in telling the Government to listen to everything that they have heard in the debate and everything that they will hear beyond it and to try to ensure that we have something that is broader, more sufficient and fit for purpose.