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.