Northern Ireland (Executive Formation and Exercise of Functions) Bill

Nigel Mills Excerpts

2nd reading: House of Commons
Wednesday 24th October 2018 Commons Chamber

[Tony Lloyd (Rochdale) (Lab)]

May I begin by joining the Secretary of State in offering my condolences to the families of the victims of the Shankill bombing and, of course, to Lord Caine for his own loss?

From now on, there might well be less consensus on Northern Ireland, as it is very difficult to see how the Bill resolves the major issue Northern Ireland now faces. We operate on the basis of consensus, so we in the Opposition will not oppose the Bill’s passage through this House, but the Secretary of State is now straining the consensus that has existed on a bipartisan basis over the years, because the Bill is grossly inadequate for its purposes. We have now had 652 days of inactivity by herself and her predecessors in government. While I totally accept that she is perfectly able to say to others—particularly the leaders of the two major political parties in the Assembly—that they also share responsibility for that lack of action, real energy must be put into this; otherwise what this Bill will represent is simply an abject admission of failures of the past and a gross lack of ambition and hope for the future, and that cannot be acceptable.

There is a constitutional crisis in Northern Ireland. The public are now entitled to begin to lose faith in the political institutions established under the Good Friday agreement. The public lose faith when they see that those institutions fail to work, and there are many issues, which I will touch on later, where we must have concern about the impact on the lives of Northern Ireland’s citizens. This constitutional crisis is therefore also now developing into a human crisis, and that is the measure against which I say that this Bill is simply inadequate.

In the past, we had the political ambitions of John Major as Prime Minister, working with Albert Reynolds, and Tony Blair as Prime Minister, working with Bertie Ahern, and we had the ambitions of the David Trimbles of this world, alongside at that time John Hume, and later on of Dr Ian Paisley with Martin McGuinness, who were prepared to take risks, but so as well were Secretaries of State and Prime Ministers. David Cameron intervened during the Stormont House agreement process, to make sure the prime ministerial writ was there. We have not seen that level of activity from our Prime Minister. I accept that she is, rightly, preoccupied with Brexit, but Northern Ireland matters, and the constitutional situation of Northern Ireland also matters. We must establish that. That is why the Bill is so disappointing.

Let me address why the Bill has come before the House. It obviously has some merit, and we strongly support the need to appoint people to bodies such as the Policing Board. That is common sense and the right thing to do. The Secretary of State is right to say that we need to prioritise some important decisions and that decisions must be made here in Westminster where those decisions cannot be made in Belfast at Stormont. However, the simple fact is that there are many other areas of activity where we must see action, too.

One of the drivers in bringing this proposed legislation forward is the Secretary of State’s concern that she would be judicially reviewed because of the failure to call an election. Ironically, that refers back to the question asked by the hon. Member for North Down (Lady Hermon) on the Hart inquiry. Victims of institutional abuse could not judicially review questions about Hart, so they took the judicial review about the timing of elections. It is ironic that the Secretary of State brings this proposed legislation forward but can say nothing helpful about the need for compensation for the victims of sexual and institutional abuse that Hart did so much to unearth. We can take those remedies, and I hope that the Secretary of State will think long and hard about why we cannot also see this as the kind of priority that would serve to achieve a consensus across the whole of Northern Ireland.

Equally, the Buick judgment has caused real uncertainty, but it has placed limitations on the capacity of civil servants. We need to be very certain that we are not doing more and returning to the position where we are asking civil servants to make politically controversial decisions that should only be taken by elected politicians, possibly and best of all, of course, in the Stormont Assembly; but if that does not happen, some of those decisions might have to come to the Secretary of State and this House for us to resolve.

This is particularly true in the light of the extraordinarily long period that the Secretary of State has outlined, with no certainty of any movement until March next year and a further five months if that fails. Frankly, it beggars belief that the Secretary of State should have to tell the House that a further five months could be necessary just in case we are close to an agreement at the end of March. That really challenges all our imaginations. It does not seem a reasonable justification of time to say that five more months would be needed to get us over a hurdle if we were almost there. We are all well aware of the interesting calendar that Northern Ireland presents, but we can and must do better than this.

We need to see energy from this Government in bringing together the five-party talks. The Secretary of State told the House on 6 September:

“I have made no decisions about the right way to get talks restarted”.—[Official Report, 6 September 2018; Vol. 646, c. 350.]

That was after 550 days of inaction. Another 60 days have gone by since then. Has she now given any thought to how to get those talks restarted? We need to see some urgency in relation to those talks. We need to see the leaders of the five political parties get round the same table. If they do not come forward—if that is the challenge posed by DUP Members—let us test that. Let us see who does not turn up for those multi-party talks.

The Secretary of State has already been asked about having an independent chair, which has worked in the past. It is difficult to find an independent chair who would be acceptable to all the parties, but it is not impossible. It was not impossible in the past, and it should not be now. If taking that step could begin to unlock this logjam, we must look at taking it. I have also said to her on a number of occasions that we need to re-institutionalise the use of the British-Irish Intergovernmental Conference, which has fallen into disrepute. It is part of the Good Friday institutions, and it has not disappeared. It has not in any sense been abolished. It met once in London, but I understand that the agenda was so slimmed down that it had little merit other than to reintroduce Ministers from either side of the Irish sea to one another. We have to do better than that. We have to get the next meeting in Dublin tabled, with an agenda that will be helpful in moving us all forward.

We need to see a change of gear and a change in energy, because this matters enormously in regard to the sorts of things that will not be done. People have already asked the Secretary of State about matters that they hold dear in their constituencies, such as the airport in Londonderry, the York Street interchange, the dualling of the A5 and the A6, and the introduction of proper broadband connections across Northern Ireland. Those are important issues, and I agree with her that they could be delivered through the capacity of the Northern Ireland civil service under the Bill. However, there are issues that go beyond that capacity and that the civil service would struggle to address. I want to talk about a number of those issues, because they are massively important. I also want to quote the Secretary of State again. She said that, in the absence of a Northern Ireland Assembly,

“the UK Government will always deliver on their responsibilities for political stability and good governance in the United Kingdom.”—[Official Report, 9 July 2018; Vol. 644, c. 757.]

Northern Ireland is part of the United Kingdom, and we are now entitled to see this Government beginning to deliver on those issues.

I want to raise some topical issues. A court judgment in Belfast today involves a woman whom I have met, Sarah Ewart. That judgment allows her to take forward her case that the decision to refuse her an abortion in Northern Ireland was outwith the law. I congratulate Sarah on her bravery in taking her case forward. If she were to win it, where would the remedy lie? The Minister of State is a lawyer, and I hope that he will tell us the answer to that question when he responds to the debate. We know that if Sarah has to fight her case all the way through to the Supreme Court, as has happened in a previous case, the chances are that the Supreme Court will make the identical judgment and say that its judgment is binding because it relates to a named individual. In those circumstances, the Supreme Court will make it absolutely clear that the remedy lies not in Stormont but here in Westminster, because the judgment is about the conformity of the United Kingdom, not just Northern Ireland, with the European convention on human rights. Ministers over here have to think about this, because it is an important human issue.

The hon. Member for Edinburgh West (Christine Jardine) has tabled a helpful amendment relating to the Hart inquiry, and I hope that the House will reach a point at which this issue can be resolved. I repeat to the Minister the pleas that we heard from my hon. Friend the Member for Pontypridd (Owen Smith), the hon. Member for North Down and others about ageing victims. I have met some of the victims, and they are no longer young people. Some of those affected have now passed away over the passage of time, so we have to bring the question of institutional abuse to a conclusion. We have to do what we can to implement the Hart judgment, and we cannot wait until August next year or beyond if the Secretary of State’s ambitions do not come to fruition.

We must also look at what the Secretary of State can do here at Westminster. Again, she needs to show some urgency in trying to resolve the kinds of things that have held up the agenda in Northern Ireland in the past. For example, why is the historical enquiries unit not being set up? There is also the question of pensions for victims of the troubles. These are the kinds of things that can be, and should be, done here. The consultation has taken place, and we need to see definitive action now. We need to see a road map of how the Secretary of State will put urgency into these different processes.

The Secretary of State has said that the Bill deals with important issues, and that is true, but there are still issues of enormous importance that will not be affected by the legislation. There are things that the civil servants will not be able to resolve, but they will still affect the lives of the people living in different parts of Northern Ireland. One issue that I have raised before in the House is the benefits system. The Stormont Assembly was able to provide some mitigation against the impact of Government cuts to welfare spending. Ironically, those cuts are affecting my own constituency and those of Ministers here in England, but the protections afforded to people in Northern Ireland through Stormont are already beginning to expire, and they will have done so by next March. Nothing in the Bill will allow those mitigations to continue, even though they were consensually built in by the Stormont Assembly. That kind of decision needs to be made.

On a different level, we have heard today that coaching is now being cut back. That includes the coaching of young people through the Gaelic Athletic Association and the Irish Football Association. This might seem small in the bigger scheme of things, but these small things make a material difference to people’s way of life. We also know that Harland and Wolff is looking for decisions about training programmes. Such programmes would enable the company not to import welders from the Baltic states because it would have the capacity to train people from the Belfast constituencies. That would make a huge difference to individual lifestyles there.

I also want to touch on the crucial question of the Northern Ireland health service, which is now in a very bad state. We know that it no longer has the ability to hit the targets that it has established for itself. For example, the target of seeing most people within nine weeks and none over 15 weeks is now being massively breached. There are people with spinal conditions who have waited more than 155 weeks to be seen in Northern Ireland, and that is simply unacceptable. There is a story of a young girl who needs a spinal correction to allow her to lead a normal life. She cannot wait 155 weeks for that kind of treatment and nor should she have to, so we need a real review of what the health service is doing. Looking at waiting lists across the piece, 1,500 people in England wait for over a year, but the figure for Northern Ireland is 64,000. I almost cannot find the right word to describe that situation. It is so grossly unfair as to challenge all our imaginations, and we simply cannot say that it is okay to wait for reform.

Several of us are wearing Macmillan Cancer Support badges today because we know the importance of cancer treatment. In Northern Ireland, the cancer targets that were established in 2009 have never been met and people are waiting months to be seen. We know that any delay in the first exchanges with doctors can delay treatment and that delayed treatment causes death. I therefore have to say to the Secretary of State that the failure to deal with health reform in Northern Ireland is causing premature deaths among the people of Northern Ireland, and that problem is just as important as seeing people on the Northern Ireland Policing Board—important though that is.

[Nigel Mills (Amber Valley) (Con)]

I agree with the hon. Gentleman that we would all like to see action on those important issues. He has listed actions for probably about half the Northern Ireland Departments, but what solution should the Government adopt? Yes, we would all like to see the Assembly administered, but if we cannot get that, is he suggesting that we should have direct rule so that we can take such decisions, or does he have some creative solution?

[Tony Lloyd]

In the past, previous Northern Ireland Secretaries have taken specific action from Westminster—not direct rule, but specific action—in areas of great urgency, such as social care. Looking for specific actions now would show not only that we are taking this constitutional crisis seriously, but that we are taking the human crisis seriously, too. I think that matters, and I hope that the Secretary of State will reflect long and hard on that. We have a few days between now and this Bill going through its stages in the House of Lords, so I hope that the Secretary of State can reflect in that time on what can be done—what ought to be done—to begin to consider some of the issues being raised.

Labour strongly supports the need to appoint people into the right official positions. That is certainly one of the reasons why the Bill has to go through the House today—I hope that no hon. Member would want to see it delayed—but we are worried about the operation of the new powers for civil servants. It must be made clear that they are not politicians and have no mandate to make new decisions. The Secretary of State said that at the Dispatch Box, and I respect her intentions and do not doubt that she meant what she said, but the letter of the law gives enormous power to civil servants, so we need transparency around their decision making and clear and binding guidance to ensure that there can be no excessive action.

In the end, the responsibility for the things that I have discussed—health in particular—should be with the Stormont Assembly and the Executive, but if that cannot happen, it will have to come to this House. I have spoken to the Secretary of State in private about this, but I do not think that I will be breaching her confidence to say that my worry lies with the length of time that is built into the Bill. When the original discussions took place across this Chamber some months back, we were talking about a fairly limited operation, but that has now expanded enormously, with the first knife coming at the end of March and the second in August. That is an awful long time. We have already had 650 days of no change, and we face half as much again if we reach that August deadline. That is not acceptable for the people of Northern Ireland; it is not acceptable constitutionally; and it is certainly not acceptable for the people who need better from this Government.

[Nigel Mills (Amber Valley) (Con)]

I am grateful to be called in this important debate and am happy to support this Bill. The measures within represent a sensible compromise, but this is like trying to find the least bad of all the really bad options. We would all agree that by far the best situation would be to have an Assembly and to have Ministers of the Executive in place taking such decisions, but that is not the situation that we are in, and it is not one, based on the dates set in this Bill, that I suspect we are going to see in the next six, eight or even 10 months. The question now is about what we should do here for the people of Northern Ireland to try to get important decisions taken to deliver public services as best as they can be delivered, to try to improve the economy in Northern Ireland, and to try to improve the lives of ordinary people.

There are no easy options here, and the most extreme would probably be to appoint direct rule Ministers from this Parliament to take such decisions. That would lead to sensitivities in the relationship with the Irish Republic and the nationalist community, which is sadly not represented in this House—at least not by any nationalist MPs. That is a radical decision that the Government are not keen to take. However, we could have been pursuing other possibilities to try to get a bit nearer to a situation in which we could take some of the decisions that need to be taken. The Northern Ireland Affairs Committee published a report that discussed how we could at least have a shadow Assembly or allow the committees to meet just to get some local engagement and local scrutiny to allow some decisions to be taken from here that have some level of accountability in Northern Ireland.

[Sammy Wilson]

The hon. Gentleman is making some interesting suggestions as to how there could be some democratic accountability even in the absence of a functioning Executive. However, just as Sinn Féin has blocked the formation of the Assembly and the introduction of direct rule, it has also made it clear that it would not even accept that level of accountability. That is where the real problem lies. Sinn Féin—the boycotters—have been pandered to for far too long.

[Nigel Mills]

I accept what the right hon. Gentleman says and do not pretend that any of the solutions are easy. Such issues were tested by the Select Committee, but it would have at least been worth trying to see whether we could have some sort of cross-community committees or assemblies. Even if Sinn Fein boycotted them, hopefully the other parties in the Assembly would have been willing to attend. There is a real prize here. There are decisions that need to be taken that would be of great benefit to Northern Ireland, but they will not be taken, even with the powers we are discussing here. If we could have found a compromise that got at least some of those things moving forward, it would not in any way have been a perfect solution, but it would have been better than what we have here.

[Mr Gregory Campbell]

The hon. Gentleman is making some constructive suggestions, some of which have been made by some of us before. We have an education crisis at the moment, and many schools deplore the current funding position. Does he agree that if MLAs from across the divide in Northern Ireland were to convene in Stormont to discuss a way forward and to make representations to the permanent secretary, they may find that they have much in common and may eventually say, “Why aren’t we back in here taking the decisions, rather than letting one party block everyone else from doing things?”

[Nigel Mills]

That was roughly what I was alluding to in my response to the previous intervention. If we can find some way of having cross-community meetings and engagement and some sort of agreement that can then allow a decision to be taken here, that would be real progress. However, there would still need to be some Minister in this Parliament to take such decisions with the cover of that level of consent or agreement from Northern Ireland. The Bill does not provide for that.

I am pretty torn about what I would have had as my priority for this Bill. We want decisions to be taken, but we are so far from when the Executive last met that it is unlikely that most of the decisions that we want to have taken will have had any clear steer from the Executive. We therefore need some level of political decision making here when we cannot rely on previous guidance, and we would all want such things to be done by Ministers with some level of accountability and some public scrutiny, not behind closed doors.

My other concern about the Bill is whether Parliament has gone too far. We are now giving huge power to civil servants, and huge power to the Secretary of State to issue guidance that those civil servants have to follow. We are in danger of allowing a situation that we would never normally allow in England. We would all be up in arms if the Government introduced such a Bill for our constituents in the rest of the UK, saying, “We don’t really want to have Parliament scrutinising and deciding all these things. We are going to give the Secretary of State far more power to issue directions to the civil service to take really important decisions.” We would say it was completely unacceptable and undemocratic, that it weakened Parliament and that there was no public scrutiny or public accountability. We would never agree to it.

With this Bill, in effect, we have been forced to find a compromise between those two extremes of wanting decisions but not wanting to have too much power in the hands of civil servants. We have found a compromise: the Secretary of State has to issue certain guidance and the civil servants have to have regard to it. We all know what “have regard to” means. It means that civil servants have to do it unless there is very good reason not to do it.

I am probably in the same place as the Government, and I reluctantly accept that the only way to balance those competing objectives is to have this halfway fudge of advancing a little further, of pushing at the boundaries of what civil servants can decide. We get there by having guidance from an elected Secretary of State. She can encourage, advise and guide civil servants to do certain things, giving some cover from court cases. That is about as far as we can get without appointing direct rule Ministers.

Parliament should be careful to make sure the Bill contains all the protections we want to see. We may or may not have much time to debate the amendments in Committee, but some of the amendments would be helpful, because there is nothing in the Bill, for example, to stop the Secretary of State revising the perfectly reasonable and sensible draft guidance she has published to stick in some important decisions she would like to see taken. At no point in the next six, eight or 10 months —however long this period lasts—would any of us, including the Secretary of State, want to be in a situation where difficult, conflicting, controversial decisions are directed through such guidance because there is no other way of making them.

None of us would like to see hospitals being closed in Northern Ireland through guidance issued by a Secretary of State with no public scrutiny. Such things could be done through guidance, and those decisions could arguably be in the public interest if civil servants felt they were consistent with the best delivery of health services. We could see all manner of difficult things being done, consistent with this Bill, that we would not normally allow.

It would be a constructive step forward if there were a provision saying that, if the Secretary of State wanted to change the guidance she had already published, the new guidance had to be published in draft so it could be scrutinised by the Select Committee to make sure it contained nothing to which this House would not have agreed in advance of this Bill.

The Bill does not say what happens at the end of March or August, whatever period we end up with. Are we saying that this really is the last chance and that, if an Executive cannot be formed by the end of March or August, there has to be an election? We have stretched the wording of the Northern Ireland Act 1998, on the Secretary of State’s duty to propose an election date, for some 350 days. If we get beyond the period for which we are legislating, we cannot stretch it any further. There would have to be an election pretty much forthwith to give the people of Northern Ireland a chance to choose one or more different parties that may be more constructive in their discussions.

I would have liked the Bill to make clear the intentions of this Government and this House. The Northern Ireland Act was agreed between the parties and legislated for by this House, and the consequence of an Executive not being formed is that an election date should be proposed. We do not yet have an election date, which is the right call. An election probably would not have made any great difference over the past few months, as the same two parties would have been put back in the same position, but surely we cannot let this continue forever.

If we get to the end of March or August, is it the Government’s policy that there would then be an election and, as everyone probably thought was the case, we revert to keep trying elections until something else happens? What happens if that still fails? Would we say, “After the election there will be a period for talks, and if you cannot form an Executive by the deadline, it has to be direct rule”? Is that the Government’s plan, or do they plan to limp through until the end of March or August and revert to the position we have been in for the past 350 days?

We are trying to give certainty to the civil service and to the people of Northern Ireland about the position. It would be good to have some certainty on the consequences if no deal can be reached.

My final comments are on appointments. It has to be right that we cannot have important bodies in Northern Ireland and elsewhere not meeting and not functioning because we have not been able to appoint people to them. It makes sense to find a way to make consensual appointments with which all sides of the debate are happy, but those decisions are meant to be taken on a cross-community and cross-party basis in Northern Ireland, and they now have to be taken—I accept with consultation—by the Secretary of State in Westminster. Allowing some form of public scrutiny on the most senior proposed appointments would be helpful in giving confidence that the right people for those jobs are being appointed. Allowing pre-appointment hearings by the Select Committee for key appointments would be a positive step in showing the people of Northern Ireland that the right people are being entrusted with those important functions.

There are ways to improve the Bill but, in the current situation, it is a sensible compromise and it is the best way to achieve the competing objectives. I happily support Second Reading.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Nigel Mills Excerpts

3rd reading: House of Commons & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Wednesday 24th October 2018 Commons Chamber

[Nigel Mills]

I beg to move amendment 15, page 1, line 16, at end insert—

‘(4A) If the period mentioned in section 16(A)(3) of the Northern Ireland Act 1998, as modified by subsection (1), ends without the Ministerial offices having been filled section 32 of the Northern Ireland Act 1998 has effect as if for subsection (3) there were substituted—

(3) The Secretary of State shall within 7 calendar days of the end of the period mentioned in in section 16(A)(3) set a date for the poll for the election of the next Northern Ireland Assembly. The date set shall be no later than 3 calendar months after the end of the period mentioned in section 16(A)(3).’

This amendment would require elections in Northern Ireland to be called if Ministerial offices are not filled by 26 March 2019.

[The First Deputy Chairman of Ways and Means (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 1, in clause 2, page 2, line 20, leave out paragraph (b).

This amendment would prevent the Secretary of State from extending the deadline for appointment of Northern Ireland Ministers without the approval of Parliament.

Clause 2 stand part.

Amendment 22, in clause 3, page 3, line 2, at end insert—

‘(1A) In the absence of Northern Ireland Ministers, senior officers of Northern Ireland departments, giving due regard to advice from the Northern Ireland Commissioner for Victims and Survivors, shall prepare a scheme to provide a pension to those who are regarded as seriously-injured arising from an incident associated from the conflict in Northern Ireland.’

This amendment would in the absence of Ministers create a duty for a scheme to be created to provide financial support for those people who have suffered life-limiting injuries and impairment due to incidents related to the Northern Ireland conflict.

Amendment 21, page 3, line 5, at end insert

‘and must also make a formal statement before each House of Parliament following the publication of such guidance.’

This amendment would require the Secretary of State to make a statement to Parliament on any guidance issued to Northern Ireland Departments on the exercise of their functions in the absence of Northern Ireland Ministers.

Amendment 2, page 3, line 7, at end insert—

‘(3A) The guidance must direct departments to take action on the following areas—

(a) implementing the recommendations of the Historical Institutional Abuse Inquiry (the Hart Report),

(b) instigating any research, consultations or planning required for post-Brexit policy,

(c) designing and implementing devolved post-Brexit functions in relation to Northern Ireland fishing and agriculture that would normally fall to the Northern Ireland Executive,

(d) taking decisions on infrastructure planning and projects that will benefit Northern Ireland.’

This amendment highlights four key areas where guidance must be issued.

Amendment 17, page 3, line 7, at end insert

‘which must include guidance to meet the requirements of section (Guidance on exercise of departmental functions: credit unions).’

This amendment is linked to NC4 with the intention of requiring Northern Ireland Departments, in the continued absence of Northern Ireland Ministers, to promote credit unions in Northern Ireland.

Amendment 18, page 3, line 7, at end insert

‘which must include guidance to meet the requirements of section (Guidance on exercise of departmental functions: energy co-operatives).’

This amendment is linked to NC5 with the intention of requiring Northern Ireland Departments, in the continued absence of Northern Ireland Ministers, to promote energy co-operatives in Northern Ireland.

Amendment 19, page 3, line 7, at end insert

‘which must include guidance to meet the requirements of section (Guidance on exercise of departmental functions: housing co-operatives).’

This amendment is linked to NC6 with the intention of requiring the Northern Ireland Department for Communities, in the continued absence of Northern Ireland Ministers, to promote housing co-operatives in Northern Ireland.

Amendment 3, page 3, line 34, after ‘Assembly’ insert ‘and Members of Parliament’.

This amendment would require the Secretary of State to have regard to representations from MPs as well as MLAs before publishing guidance.

Amendment 4, page 3, line 34, at end insert—

‘(9A) If the Secretary of State wishes to revise or amend the guidance, they must write to the Northern Ireland Affairs Committee at least 30 sitting days before the revised guidance is issued to seek its views on the proposed changes.’

This amendment would require the Secretary of State to consult the Northern Ireland Affairs Committee before changing the guidance.

Amendment 5, page 3, line 38, at end insert—

‘“Northern Ireland Affairs Committee” means the Northern Ireland Affairs Committee of the House of Commons and—

(a) if the name of that Committee is changed, is to be treated as a reference to that Committee by its new name, and

(b) if the functions of that Committee (or substantially corresponding functions) become functions of a different Committee of the House of Commons, is to be treated as a reference to the Committee by which those functions are exercisable.’

This amendment defines the Northern Ireland Affairs Committee of the House of Commons for the purpose of Clause 3.

Clause 3 stand part.

Government amendment 23.

Amendment 6, in clause 4, page 4, line 26, at end insert

‘, publish the advice received and write to the Northern Ireland Affairs Committee to notify the Committee of the appointment decision prior to the appointment being made.’

This amendment requires the relevant Minister of the Crown to notify the Northern Ireland Affairs Committee of the House of Commons before exercising an appointment function in relation to a specified office.

Amendment 16, page 4, line 26, at end insert—

‘(5A) Before exercising an appointment function in reliance on subsection (1) in relation to a role with an annual salary of £100,000 or more the relevant Minister of the Crown must refer their recommendation for the appointment to the Northern Ireland Affairs Committee of the House of Commons for a pre-appointment scrutiny hearing.

(5B) The Minister of the Crown may not proceed with the appointment referred to in subsection (5A) for a period of 30 calendar days from the date of referral to the Northern Ireland Affairs Committee of the House of Commons.

(5C) Any reference in this Act to the Northern Ireland Affairs Committee of the House of Commons—

(a) if the name of that Committee is changed, is to be treated as a reference to that Committee by its new name, and

(b) if the functions of that Committee (or substantially corresponding functions) become functions of a different Committee of the House of Commons, is to be treated as a reference to the Committee by which those functions are exercisable.

(5D) Any question arising under sub-paragraph (5C) is to be determined by the Speaker of the House of Commons.’

This amendment would require the more highly-paid public appointments to be subject to scrutiny by the Northern Ireland Affairs Select Committee of the House of Commons.

Clause 4 stand part.

Amendment 7, in clause 5, page 4, line 36, at end insert

‘, publish the advice received and write to the Northern Ireland Affairs Committee to notify the Committee of the appointment decision prior to the appointment being made.’

This amendment requires the relevant Minister of the Crown to notify the Northern Ireland Affairs Committee of the House of Commons before exercising an appointment function which normally require consultation with, or the consent of, Northern Ireland Ministers.

Clause 5 stand part.

Amendment 8, in clause 6, page 5, line 7, at end insert

‘, publish the advice received and write to the Northern Ireland Affairs Committee to notify the Committee of the appointment decision prior to the appointment being made.’

This amendment requires the Secretary of State to notify the Northern Ireland Affairs Committee of the House of Commons before exercising an appointment function which is normally exercisable by Northern Ireland Minsters acting jointly with the Secretary of State.

Clause 6 stand part.

Amendment 9, in clause 7, page 5, line 34, at end insert—

‘“Northern Ireland Affairs Committee” means the Northern Ireland Affairs Committee of the House of Commons and—

(a) if the name of that Committee is changed, is to be treated as a reference to that Committee by its new name, and

(b) if the functions of that Committee (or substantially corresponding functions) become functions of a different Committee of the House of Commons, is to be treated as a reference to the Committee by which those functions are exercisable.’

This amendment defines the Northern Ireland Affairs Committee of the House of Commons for the purposes of Clauses 4 to 6.

Government amendment 24.

Clauses 7 to 10 stand part.

New clause 4—Guidance on exercise of departmental functions: credit unions—

‘(1) The guidance published under section 3(2) must include guidance on credit unions.

(2) Guidance under this section includes, but is not limited to, guidance to —

(a) senior officers of the Department for Communities in the exercise of the functions in relation to—

(i) promoting and protecting the interests of children, older people, people with disabilities, and other socially excluded groups, and

(ii) providing emergency financial assistance; and

(b) senior officers of the Department of the Economy in the exercise of the functions in relation to—

(i) business regulation including consumer affairs services,

(ii) mutuals policy, legislation and operations, and

(iii) the social economy.

(3) Guidance under this section must include the promotion of credit unions in Northern Ireland to combat organised crime, to reduce financial exclusion, to assist the social inclusion of marginalised groups and to promote financial well-being in all parts of Northern Ireland.’

The intention of this new clause is to require Northern Ireland Departments, in the continued absence of Northern Ireland Ministers, to promote credit unions in Northern Ireland.

New clause 5—Guidance on exercise of departmental functions: energy co-operatives—

‘(1) The guidance published under section 3(2) must include guidance on energy co-operatives.

(2) Guidance under this section includes, but is not limited to, guidance to —

(a) senior officers of the Department of the Economy in the exercise of their functions in relation to—

(i) energy policy and legislation;

(ii) sustainable energy, including energy efficiency measures;

(iii) assistance to the gas and electricity industries;

(iv) Renewable Heat Incentive Scheme and associated costs;

(v) the social economy; and

(vi) making certain payments to the Department of Business, Energy and Industry Strategy; and

(b) senior officers of the Department for Infrastructure in the exercise of their functions in relation to energy matters.

(3) Guidance under this section must include the promotion of energy co-operatives in Northern Ireland to combat fuel poverty and to encourage the safe, sustainable, affordable and efficient production and consumption of energy in all parts of Northern Ireland.’

The intention of this new clause is to require Northern Ireland Departments, in the continued absence of Northern Ireland Ministers, to promote energy co-operatives in Northern Ireland.

New clause 6—Guidance on exercise of departmental functions: housing co-operatives—

‘(1) The guidance published under section 3(2) must include guidance on housing co-operatives.

(2) Guidance under this section includes, but is not limited to, guidance to senior officers of the Department for Communities in the exercise of their functions in relation to—

(a) loans for certain home improvement loans;

(b) housing led regeneration;

(c) regulation of the NI Housing Association sector;

(d) urban regeneration including services such as property maintenance and events;

(e) community and voluntary sector;

(f) grants to district councils in support of local services and transferred functions;

(g) built heritage; and

(h) grants and grants-in-aid.

(3) Guidance under this section must include the promotion of housing co-operatives in Northern Ireland to combat poverty, family breakdown and social exclusion and to encourage the provision safe, sustainable, affordable and energy-efficient homes in all parts of Northern Ireland.’

The intention of this new clause is to require the Northern Ireland Department for Communities, in the continued absence of Northern Ireland Ministers, to promote housing co-operatives in Northern Ireland.

New clause 7—Equal rights for people of Northern Ireland (No. 2)—

‘(1) In the absence of Northern Ireland Ministers to address the matters identified by recent, current and future court proceedings in relation to the human rights of the people of Northern Ireland, the Secretary of State must issue guidance to senior officers of all Northern Ireland departments which will specify how to exercise their functions in relation to—

(a) the incompatibility of the human rights of the people of Northern Ireland with the continued enforcement of sections 58 and 59 of the Offences against the Person Act 1861 with the Human Rights Act 1998, and

(b) the incompatibility of the human rights of the people of Northern Ireland with the continued enforcement of section 13(e) of the Matrimonial Causes (Northern Ireland) Order 1978

where they pertain to the provision and management of public services in Northern Ireland.

(2) The Secretary of State shall report guidance under this section on a quarterly basis to the House of Commons and set out her plans to address the impact of the absence of Northern Ireland Ministers on human rights obligations within three months of the day on which this Act is passed.’

This new clause would increase accountability of the Secretary of State and senior officers of Northern Ireland departments for their role in ensuring human rights compliance in Northern Ireland, in the absence of Northern Ireland Ministers, by requiring them to address incompatibilities between legislation applied in Northern Ireland and human rights obligations.

[Nigel Mills]

May I first apologise for being a little late for the wind-up speeches on Second Reading? I was sorry to miss the speech by the hon. Member for Ealing North (Stephen Pound), the shadow Minister, as his speeches are usually entertaining and informative.

Amendments 15 and 16 are efforts to probe the Government on the future direction of policy in certain areas and perhaps to improve the Bill, but I will not seek to press them to Divisions. Amendment 15 is an attempt to discover the Government’s plan if—heaven forbid—we reach the end of the period for the formation of the Executive and we still do not have one. Effectively, what would happen in law without any further clarification is that we would default back to the present situation—the Secretary of State would have a duty to consider setting an election date. The present interpretation seems to be that she has no duty to call an election for any particular date. The House of Commons and the people of Northern Ireland have been very patient for the past 650 days—that was the count we heard earlier—in not pressing the Government to clarify the meaning of the words on considering the date for an election in the legislation of a decade ago.

We may fairly say that if we manage to get to late August 2019—I cannot calculate the number of days, but I suspect it will be well over 800 days since an election by that point—without a Government being formed, the only solution might well be to have another election and see whether the people of Northern Ireland wished to express a different view from the one they expressed 650 days ago. If we get to that stage, I would argue that an election would be unavoidable unless we really believed that another few days would tip a deal over the line.

I also venture to suggest gently that having clarity in the law about the consequences for the parties if they cannot reach a deal by that point may be of some assistance in the negotiations. It is probably fair to say that the Northern Irish parties are not great respecters of deadlines. Indeed, deadlines in this process seem to come and go without provoking much action. If a deadline were set in law, it would be clear throughout the discussions that an election would be called if the parties could not reach an agreement by the end date of late March, or late August or somewhere in between that the Secretary of State sets.

Actually, whether to call an election would not be a matter for the Secretary of State’s discretion: it would be a matter of law that the election had to be called unless she thought that she could get a new piece of legislation through Parliament to delay or remove that obligation. If a deal were about to be reached and some legislation here were needed to bring it about, I do not think that we would have any problem in agreeing to it. We would all be grateful to do anything we could to bring the Executive back. But a line would be drawn in the sand to make it clear that if the parties do not agree by a certain date, the Secretary of State has no option but to call an election to ask the people their opinion on resolving the situation.

I ask the Government to consider at least clarifying the consequences of the period for Executive formation lapsing without success and the Government’s policy in that regard. Setting out clearly in a way that will not be ignored this time that an election would have to follow might offer some assistance in the negotiations.

My other proposed amendment, amendment 16, concerns the appointment of individuals to certain key bodies in Northern Ireland. Ideally, that would be a decision for the Northern Ireland Executive and the Assembly and there would be some cross-community involvement. It would be a joint decision, effectively. The Bill quite rightly takes the power to make those appointments, but effectively leaves the decision to the Secretary of State without the need for any real consultation with Parliament or the public on those decisions. I accept that we do not need to have that level of parliamentary involvement for every appointment that might be needed, but what I am trying to do through the amendment is ask whether for the most senior and important posts we could in some way have some parliamentary scrutiny of the individual whose appointment is recommended. This is not a novel process. Many Departments allow Select Committees to hold scrutiny hearings for proposed senior appointments, so it would merely replicate that process.

Attempting to get the amendment in order, I suggested that the definition of seniority could come with a salary of £100,000, but I would not be particularly committed to how we define the cut-off. However, if we were to have this process for sensitive appointments, I think that that level of salary would catch a new Chief Constable, if for some reason one was needed, or perhaps the chair of the Office of the Police Ombudsman for Northern Ireland.

For those very sensitive and senior posts for which there is cross-party concern about the individual who is appointed, having a parliamentary scrutiny process in which questions could be asked of the individual to discuss any past roles they have had or comments they have made and to seek their views on how they would carry out their burdensome responsibilities would give both Parliament and the people of Northern Ireland some comfort that the right person had been found and that they would discharge those responsibilities in a responsible manner.

Even if the Secretary of State is unwilling to accept what I have proposed, I urge her to give serious consideration to whether it would help those individuals to have the full confidence of Parliament and the trust of the public in discharging their roles if she allowed some public scrutiny and accountability in the process of appointing them.

[Gavin Robinson]

Does the hon. Gentleman realise that that is not what would happen if there were a functioning devolved Assembly and that putting some of those positions through that political prism brings some difficulties with it in the Northern Ireland context? If an appointment were rightly made to the Policing Board, it would be for the board to assess and judge any individual going for the Chief Constable role. With the police ombudsman, there is no public scrutiny role like that which we have seen through the process for US Supreme Court judges available at the moment. That role does not exist at the moment; it did not exist when the Assembly sat, so is it really the road we should go down on this interim basis?

[Nigel Mills]

I said that I was not necessarily fixed on how we define the roles, but we are not in a normal situation. We do not have the Executive or the Assembly to make those appointments; what we will end up with is a Secretary of State over here, with no accountability and no cross-community input, simply making that decision. I was suggesting that this would be a way to provide at least some scrutiny and accountability for these important appointments. The Bill to which we have just given a Second Reading actually specifies that the Secretary of State can effectively make those appointments herself. I accept that we cannot replicate every process that the Executive would have followed, but I am attempting at least to find some way to improve the situation over that which we have in the Bill.

Perhaps I can make a few remarks on the amendments tabled by the Chair of the Select Committee, my hon. Friend the Member for South West Wiltshire (Dr Murrison). It seems a bit discourteous to talk about his amendments before he has had a chance to discuss them, but this is my only chance so I guess I will do it anyway. Amendment 2 suggests some items that could be included in the Secretary of State’s guidance to the civil servants on which we really ought to see them take some action. As I said on Second Reading, ideally what we would get from this process would be some decisions that could not be taken before now because there has been no ministerial direction.

In terms not only of the items that my hon. Friend has suggested in amendment 2 in relation to the Hart report, which we have discussed at some length, but of all the various Brexit-related issues, we need as a House to be assured that in the event that any important decisions need to be taken as a consequence of wherever Brexit goes over the next few months, there is a process in place whereby decisions can be taken for Northern Ireland.

--- Later in debate ---

The third issue I wish to raise is workability. As has been mentioned, new clause 7 attempts, through guidance, to change the law. As the Secretary of State has clearly said, guidance cannot do that. Any change in the law in Northern Ireland will require legislative change, so this provision is asking the Secretary of State to ask officials to do something that is simply impossible in law. That would be explored in much more detail, and in adequate detail, if we had more time to scrutinise the new clause. That in itself proves to me that this is the inappropriate vehicle for this, regardless of the substantive issues involved. I urge everybody in this Chamber to consider this matter, give it the appropriate time at a later stage and reject new clause 7 now.

[Nigel Mills]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.