Northern Ireland (Executive Formation and Exercise of Functions) Bill

Debate between Nigel Mills and Gregory Campbell

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

[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.