Northern Ireland (Executive Formation and Exercise of Functions) Bill

Viscount Younger of Leckie Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Murphy of Torfaen]

My Lords, it has been a very interesting short debate. I think that it has to be dealt with in the context that this is a temporary arrangement. The issue at the end of the day is that if we have anything like an elaborate panel set up, it will give permanence to this totally unsatisfactory system where a part of our country is run by civil servants who are unaccountable in any way to the electorate.

My experience is that as a Minister you would have in the department a system by which you would consult civil society on various decisions that you have to make anyway—at least there should be consultation. Perhaps there is some method by which that could be made a little bit stronger, so that there is a sounding board for the civil servant. The danger always is that the civil servant will be very reluctant to take a decision that might be controversial but which is necessary. That is worth examining, but in the context that this has to be seen as a highly temporary arrangement. It also highlights how terribly unsatisfactory the whole situation is that we do not have a proper elected Government or Assembly in Northern Ireland.

[Viscount Younger of Leckie (Con)]

My Lords, I am grateful to the noble Lord, Lord Bew, for his thoughtful Amendment 5, and for giving us advance notice of it. I also note the support given to the amendment by the noble Lord, Lord Empey.

I say at the outset that I appreciate the intent—seeking to give Northern Ireland civil servants some further cover. I listened very carefully to the analysis of the noble Lord, Lord Bew, of the status quo, especially on the question of morale: that was very much taken note of. I want to assure the noble Lord that we have considered options for providing support in this way to the Northern Ireland Civil Service, and will keep them under review.

The decision-making provisions in the Bill are needed urgently, and while the case could possibly be made that there would be some merit in having advice from an external body such as an advisory panel, the challenges and time commitment associated with setting one up mean that we have opted to proceed without one at this particular stage. I should say also to the noble Lord that my noble friend Lord Duncan and I have spoken in this Chamber before about the burden on civil servants, and I add my voice to the understanding that has been given today about the genuine burden that falls on the Northern Ireland Civil Service.

The amendment, however, causes problems in terms of how such a panel, if mooted, would be constituted: under what authority; how it would operate; and what would happen if it could not agree a position. I am sure that the House will understand those questions and the difficulties involved, again alongside the need for speed and urgency today. We will continue to consider carefully whether Northern Ireland civil servants need further support, and, as the noble Lord, Lord Murphy, said, it would have to be temporary. For today I hope that the noble Lord will feel able to withdraw his amendment.

I turn to the second amendment in this group—Amendment 13, tabled by the noble Lord, Lord Empey—which seeks to direct departments to publish their responses to the Northern Ireland Audit Office. As the noble Lord, Lord Duncan, made clear in his opening speech, the Bill and guidance are not a move to direct rule. To include this amendment in the Bill would introduce a level of formality that we believe is not appropriate and runs too close to directing Northern Ireland departments. That goes against the spirit of the guidance, which is intended to assist departments in deciding whether exercising their functions is in the public interest but does not direct them to take specific actions.

We fully recognise the importance of transparency, which is why the guidance published alongside the Bill seeks to build on the arrangements agreed with the Northern Ireland Civil Service as part of the budget. In addition to Northern Ireland Audit Office reports on budgetary matters, this guidance sets out that all reports and the respective departmental responses will be presented to the Assembly and shared with the Secretary of State, who will promptly lay these in Parliament. This effectively makes them available to the public. The Secretary of State will also now be writing to share these with the Northern Ireland political parties to encourage their scrutiny of all Northern Ireland reports and departmental responses.

The noble Lord, Lord Bew, raised the question of QC appointments. The Bill deals with the bodies that are currently considered to be the most pressing cases. Making the necessary appointments to those bodies is essential to the good governance of vital public bodies in Northern Ireland. The Bill enables the Secretary of State to extend this to other offices by regulation, and we will continue to monitor the situation and assess whether further offices—including QCs—should be included in regulation, which would then be debated by affirmative procedure.

The noble Lord, Lord Empey, raised a point about the RHI inquiry. As the noble Lord says, the inquiry is ongoing, so there is a limit to what I can say on this, as I am sure he will appreciate. However, the House will recall that it agreed legislation earlier this year for external cost-capping regulations to ensure that scheme continuity can be kept. This allows the Northern Ireland department to consult on a way forward to develop options for a longer-term solution.

I hope that this short debate will provide sufficient comfort for the noble Lord, Lord Bew, to withdraw his amendment on the basis that it is already provided for in what we are proposing.

[Lord Bew]

I am happy to withdraw my amendment.

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I appreciate the Minister’s dilemma on this and the political issues surrounding it. However, just like the Hart issue and the pension issue, this is a step above and beyond a simple matter of politics. People’s lives will be blighted by these waiting lists and they are getting longer and longer. I respectfully ask that the Minister recognise the significance of this. I can imagine nobody objecting to having a proper Minister appointed, on a short-term basis, to deal with these matters. I beg to move.

[Viscount Younger of Leckie]

My Lords, these two amendments in the name of the noble Lord, Lord Empey, seek to direct the Northern Ireland departments regarding health issues and public sector pay. As we have consistently said, the proposed legislation is not a move to direct rule, and decision-making must remain within the remit of Northern Ireland departments. To use this guidance to direct individual decisions would therefore go against this principle.

It is important that senior officers are able to apply the principles in the guidance in determining whether it is in the public interest to exercise functions. I understand the concern to ensure that effective decisions are made on the important issues of health, such as waiting lists, and public sector pay—as the noble Lord, Lord Empey, pointed out. However, as we have heard today, these are certainly not the only important—I stress that word—issues in Northern Ireland. Prioritising certain functions in the guidance could suggest that they should be followed at the expense of others. We are confident that the draft guidance as it stands allows Northern Ireland departments to exercise functions such as those raised in this amendment, although whether and how to exercise functions must remain a matter for Northern Ireland departments.

The Department of Health is already working intensively to respond to increasing demands on the Northern Ireland health service, and will continue to do all it can to uphold its duties in the public interest in this interim period. We of course recognise, however, that there are some decisions not enabled by this Bill. The Bill and guidance simply seek to enable senior officers in Northern Ireland departments to take a limited range of decisions using existing powers where it is in the public interest to do so now rather than wait for Ministers. That is in the context of providing the space and time for political talks to help restore devolved government, an issue that has been much discussed today in the Chamber.

Intervening in individual areas in this manner would be tantamount to direct rule—the noble Lord, Lord Empey, used the expression “potential creeping direct rule”—and would undermine our commitment to devolution and the Belfast agreement. The Prime Minister and the Conservative and Unionist manifesto are crystal clear that we will uphold our obligation to the people of Northern Ireland to ensure that their vital public services are protected. We have always said that we do not rule out further legislative intervention if it is necessary. I realise that my response will disappoint the noble Lord, Lord Empey—he will probably not be too surprised—but on the basis of these points I hope that he will feel able to withdraw his amendment.

[Lord Empey]

Before the Minister sits down, I want to say that he is not quite clear as to the Government’s exact position. He is saying that senior officers should be able to take certain decisions. Of course, this could be seen as direct rule. Look, folks, this is life—this is people’s lives here. We are not talking about a road junction or something casual. We are talking about people not being treated within any guideline that currently exists on these islands. In other words, these are to be sacrificed because of some political ideal of devolution versus creeping direct rule, or “Who are we going to annoy? We are going to annoy Sinn Féin. We are going to annoy this party or that party”.

Think of the people affected by this. This is not going to go away. It is getting worse. The statistics have been going like this not just recently, but for a long time. The suicide strategy is another one where there is total agreement. It is a big problem back home and it has not been addressed, yet everybody agrees that it should be addressed. What does it take?

I ask the Minister to clarify what he means. He thinks the guidance will allow officers to take decisions, yet on the other hand they are afraid that this would be seen as creeping direct rule. This is a qualitatively different subject matter, and it is on humanitarian grounds that I put this forward, not on a political platform.

[Viscount Brookeborough (CB)]

It may appear that, because the noble Lord, Lord Empey, is leading this on his own, he may not have support. I think he has support from everybody. I declare an interest in that I have had cancer of the throat. This sort of thing does not just affect the people. It affects their families and dozens of other people; it affects their friends. I feel that it affects their friends and families more because they are so worried that they cannot do anything to help, and yet the state, in the form of the National Health Service, is not helping them. Therefore, I cannot conceive that this is not in the public interest, yet the Minister is almost saying that if a senior civil servant thinks it is in the public interest he may come out in support of it.

The other point is that, on another amendment, on the PSNI, we have just spent five or six hours debating the fact that the primary aim of the Government is to restore the Assembly. Policing is absolutely vital to that, and we cannot see the police force denuded of pay or resources to achieve this end. I am afraid that all afternoon, whenever we have talked about any other part of it, the Government have been saying, “Our primary aim is to restore the Assembly”. We will not restore it without enabling our security forces, the police, to manage the day-to-day situation. The Minister should give a slightly more reassuring answer than, “We’ll post it back and see what they think about it”.

[Viscount Younger of Leckie]

I hope the noble Viscount does not think I said that. First, I am left in no doubt about the passion of the arguments presented by the noble Lord, Lord Empey, and by the noble Viscount in supporting him. However, I think the Committee will appreciate that there is an extremely difficult line to take. We have said that we do not wish to go down the line, whether it is creeping or not, of direct rule. On the other hand—perhaps this is what I really want to say—the reassurance has to be given from this Dispatch Box that upholding our obligation to the people of Northern Ireland is a high priority, as is ensuring that vital public services are protected. This includes the issues raised on health. We are not afraid to step in, if or when we think it is right, and we have said that we will not rule out further legislative intervention. If that is not clear enough, I have to say that this is very much a subjective decision and constantly under review. I cannot say anything more. Finally, I clarify that the Bill enables the Department of Health to take these decisions, and if the UK Government intervened to step in, it could easily be construed as direct rule. I cannot go any further to clarify that point.

[Baroness O’Loan]

I do not want to hold the Committee up, but I am having some difficulty. The aim of the legislation is to enable the continuity of the delivery of services, yet vital services such as our health service do not receive that attention. I do not understand what is covered by the Bill if things such as this are not.

[Viscount Younger of Leckie]

I hope I have made the point that health is very much a priority. I cannot say anything more. I have also attempted to define the line that we have to take, which is an extremely difficult one in the circumstances that we have been presented with. With that, I hope the noble Lord will agree to withdraw his amendment.

[Lord Elton (Con)]

My attention is not quite as close as it was earlier today and I did not hear my noble friend’s reply on the question of paying the police. Am I confused? I understood that Amendment 8 would enable the payment of the sums due and already agreed. I did not hear his reply to that; he may have given it, but I did not hear it.

[Viscount Younger of Leckie]

I am not sure I gave it, but in the interests of time, I will look over what I said and write to my noble friend to give a succinct answer.

[Lord Hay of Ballyore]

My Lords, we have all sympathy with what the noble Lord, Lord Empey, is trying to achieve; when it comes to health, we would all like to see waiting lists reduced in Northern Ireland, and there is cancer care and health as well—there are so many issues within health. This is putting the Minister in an awkward position. I have sympathy with what has been said in the Committee. However, I could also make a strong case for education. If you speak to many principals of schools in Northern Ireland, they will tell you that they are suffering because of the lack of budget and cannot deliver the service they want to deliver. They are even asking parents to pay for some things in their schools. Do we appoint an Education Minister temporarily? Then you will have other departments saying, “I think we need a Minister temporarily”, and you end up with direct rule. Is that what we want?

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[Lord Bruce of Bennachie]

My Lords, I am very grateful to the noble Baroness, Lady Smith, who brings her first-hand experience to this amendment, which I have also tabled, and has given us in detail the history of this very sad set of circumstances involving children who appear to have died in circumstances of negligence within the health service. The fact that it took so many years is in itself a problem, but I do not need to reiterate what has been said.

I noted that on Friday the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, said that it was “shocking” and “appalling” that the inquiry recommendations could be fully implemented because of the lack of an Executive in Northern Ireland. In particular, legislation is needed to introduce a legally enforceable duty of candour—a key recommendation of the inquiry. In light of our debates, I wonder how many times politicians in this House or in Northern Ireland are going to be saying to the public in Northern Ireland, their constituents and voters,“We can’t do anything because we don’t have an Executive”, and at what point the people themselves will say, “When on earth are you going to do something for us?”. They are living in a democratic and political vacuum, with no time limit. I take the point about direct rule, but it is heartless to say to people that we had an inquiry, we got recommendations, but because of political incompetence—the mildest way you could describe it—there is nothing we can do. I hope that the Minister can give some reassurance that this vacuum can be at least partially filled.

[Viscount Younger of Leckie]

My Lords, when I knew I was going to give some relief to my noble friend Lord Duncan in responding, I wanted to look up what hyponatremia actually means, and what happens to your body when it is low on sodium. I wanted to add a little to what the noble Baroness, Lady Smith, said. Low blood sodium hyponatremia occurs when you have an abnormally low amount of sodium in your blood, or when you have too much water in your blood. Signs and symptoms of hyponatremia can include altered personality, lethargy and confusion. Severe hyponatremia can cause seizures, coma and even death—so I am left in no doubt about the seriousness of this particular matter.

Amendment 9 in the name of the noble Baroness, Lady Smith, and Amendment 12 in the name of the noble Lord, Lord Bruce, provide that the guidance should require Northern Ireland departments to update the Secretary of State to implement the recommendation of an important inquiry into hyponatremia that reported earlier this year. As has been said, the proposed legislation is not a move to direct rule. Northern Ireland departments are not subject to the direction and control of the Secretary of State. As a consequence, to have this requirement on the Northern Ireland Department of Health to report to the Government in such a way on the face of the Bill is not consistent with the aim and intention of the guidance, which is to provide guidance as to the exercise of functions in the public interest, not to direct specific action. To use this guidance to direct individual decisions or to seek to introduce formal reporting mechanisms would therefore go against this principle.

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[Baroness Smith of Basildon]

I am grateful to the noble Viscount. I was rather surprised that he answered; I had expected the noble Lord, Lord Duncan, to respond as the letter is from him. Could I have one clarification? In the letter to me from the noble Lord, Lord Duncan, he said that he would be writing personally. The noble Viscount, Lord Younger of Leckie, said that the Government will write. This has to be done at ministerial, not official, level. Will he confirm that to me?

[Viscount Younger of Leckie]

I can give a complete reassurance to the noble Baroness on that basis. It might be a good idea if I can commit that my noble friend Lord Duncan will write to her. I will also put my name on that letter.

[Baroness Smith of Basildon]

No, the noble Lord, Lord Duncan, has already written to me and I am happy with the letter he sent. I want to confirm that the letter to the Department of Health in which the noble Lord, Lord Duncan, will seek at six-monthly intervals to get an update, which the Minister has said the Department of Health will respond to, will be a letter from a Minister, not an official.

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[Viscount Younger of Leckie]

My Lords, for clarity, we should allow the noble Lord, Lord Adonis, to finish his speech. There have been a number of interventions and I am sure other Peers will have a chance to intervene afterwards.

[Lord Adonis]

My Lords, my response to the noble Lord, Lord Alton, is that of course the devolved institutions are not even sitting in Northern Ireland at the moment, so we face two issues in this respect. The first is that the Northern Ireland Assembly should be given an opportunity to address this matter. Clearly, it does not have that opportunity at the moment because it is not sitting. The Bill seeks to ensure that the Northern Ireland Assembly does sit and is sustaining an Executive by the end of next March. The second point concerns the situation if the Assembly is not, even when it is sitting, able to address this issue, I do not believe it is consistent with the poll that the noble Lord has just cited that the people of Northern Ireland would regard it as satisfactory for the Assembly in Northern Ireland not to address this issue of fundamental rights. One way or another, in a short time, this issue must be resolved. It will not be satisfactory either for the Assembly in Northern Ireland to fail to address this issue or for this Parliament to allow fundamental breaches of civil rights to take place in a substantial part of the United Kingdom. I beg to move.