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Northern Ireland (Executive Formation etc) Bill

Volume 723: debated on Tuesday 29 November 2022

Considered in Committee (Order, this day)

[Dame Rosie Winterton in the Chair]

Clause 1

Extension of period for making Ministerial appointments by six weeks

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

With this it will be convenient to discuss the following:

Amendment 10, in clause 2, page 1, line 15, leave out “19 January 2023” and insert

“a date set out in regulations by the Secretary of State”.

This amendment gives the Secretary of State discretion to set a later deadline for the filling of Ministerial Offices.

Clause 2 stand part.

Amendment 13, in clause 3, page 2, line 25, at end insert—

“(5A) Guidance under subsection (4) must require senior officers of a Northern Ireland department who exercise a function in reliance on subsection (1)—

(a) to notify in writing members of the Northern Ireland Assembly and Members of Parliament representing constituencies in Northern Ireland on each occasion that they exercise such a function, and to set out their justification and rationale for exercising the function, and

(b) to make themselves available to answer expeditiously any questions regarding their exercise of the function put by members of the Assembly or Members of Parliament representing constituencies in Northern Ireland.”

Amendment 7, page 2, line 28, after “Assembly” insert

“and have due regard to the views of the First Ministers designate (the leaders of the two largest groupings elected to the Northern Ireland Assembly).”

This amendment would require the Secretary of State to have due regard to the First Ministers designate, defined as the leaders of the two largest groupings elected to the Northern Ireland Assembly, who are entitled to nominate the First Minister and the deputy First Minister.

Amendment 8, page 2, line 28, at end insert —

“(7) Any representations made by Members of the Northern Ireland Assembly under subsection (6) must be published by the Secretary of State, who must also place a written report of those representations in the library of the Northern Ireland Assembly.”

Clauses 3 to 9 stand part.

Amendment 1, in clause 10, page 5, line 22, leave out “may” and insert “must”.

The intention of this amendment is to require the Secretary of State to make a determination reducing the salary of Northern Ireland Assembly Members during a period in which the Northern Ireland Assembly is not functioning.

Amendment 2, page 5, line 24, leave out

“in respect of some or all of that period”

and insert

“with effect from 1 January 2023 (unless the Northern Ireland Assembly is functioning by then)”.

Amendment 3, page 5, line 28, at end insert—

“(2A) The first determination must reduce by 50 per cent the salaries of Northern Ireland Assembly Members payable during a period in which the Northern Ireland Assembly is not functioning.”

Amendment 4, page 5, line 40, leave out

“would have had were it not for”

and insert “have had under”.

The intention of this amendment is to link the pension entitlement of Northern Ireland Assembly Members to the salary they actually receive.

Clauses 10 to 15 stand part.

New clause 1—Report to Northern Ireland Affairs Select Committee

“(1) The Secretary of State must provide a written report to the Northern Ireland Affairs Select Committee of the House of Commons about the exercise of departmental functions under section 3 of this Act, no later than six weeks after the date on which this Act is passed, and thereafter at intervals of no more than six weeks until Ministerial appointments are made to the Executive.

(2) In this section ‘the Northern Ireland Affairs Select Committee of the House of Commons’ means the Select Committee of the House of Commons known as the Northern Ireland Affairs Select Committee or any successor of that committee.”

New clause 3—Consultation with First Ministers designate

“The Secretary of State must have due regard to the views of the First Ministers Designate (the leaders of the two largest groupings entitled to nominate First Minister and deputy First Minister) in issuing guidance under section 3 of this Act.”

New clause 6—Reports on progress towards forming an Executive

“(1) The Secretary of State must, on or before 8 December 2022, publish a report explaining what progress has been made towards the formation of an Executive in Northern Ireland (unless an Executive has already been formed).

(2) The Secretary of State must lay a copy of each report published under subsection (1) before each House of Parliament by the end of the day on which it is published.

(3) The Secretary of State must make a further report under subsection (1) on or before 19 January 2023.

(4) For the purposes of this section an Executive is formed once the offices of the First Minister, deputy First Minister and the Northern Ireland Ministers are all filled.”

In speaking in favour of clause 1 standing part of the Bill, I do not propose to go through the Bill clause by clause and elaborate on its purpose, because the Secretary of State has not long done that during the debate on Second Reading. I also sense that Members have already spoken to the content of many of the amendments, so I propose to conclude my initial remarks now and then come back to the amendments in detail at the end of the debate.

I wish to speak to the amendments in my name and those of my party colleagues. I have a sense from the way in which some colleagues have gathered that they are interested in an accelerated conclusion to proceedings, but I know that nobody would want to deny us the opportunity to talk to important matters that affect the Province and governance in Northern Ireland.

I suspect that the conclusion to our consideration of amendment 13 will be positive and allow Members to retire gracefully from the Chamber. Until we get there, however, it is important to say that I hope that Members were able to discern on Second Reading that there is agreement across the parties on the content of a whole range of amendments—some in scope, some out of scope —tabled for Committee. A number of the amendments are remarkably similar in intent and import. Whether we are Members of the Social Democratic and Labour party, the Alliance party or the Democratic Unionist party, there is common ground to be had among all of us in this Committee stage and in other areas that fell outside consideration. If there is any encouragement to be taken from these proceedings, that should be it.

Amendment 13 is important, given that what we have in governance at the moment is suboptimal. There are ways in which we can enhance the governance oversight and democratic accountability of decisions taken through this Bill. We are asking that the Northern Ireland Office consider incorporating and involving Members of Parliament and Members of the Legislative Assembly in the decisions taken and in notifying us accordingly. That is the import of amendment 13.

I know that the Minister has considered amendment 13 and that he has published helpful guidance, which he may wish to address now.

Yes, we published the guidance as my right hon. Friend the Secretary of State was making his opening remarks. I draw the House’s attention to paragraph 15 of the draft guidance, which says that records should be kept of decisions that have been taken by officials. It goes on to say:

“A monthly summary report of decisions taken using the Guidance should be prepared by NI Departments and shared with the Secretary of State. The Secretary of State will promptly make these reports available to Parliament.”

We will be very happy to append “and MLAs”, and I hope that the guidance, as we aim to amend it, meets the aims and intentions of the hon. Gentleman’s amendment.

We are almost there. I am very grateful to the Minister for that clarification. Clearly, the guidance says that the reports will be made available to Parliament. In our normal understanding, that would mean laying those reports in our Library. If we are incorporating MLAs, I think it would also be appropriate for relevant MPs who have expressed an interest in the passage of this Bill and who are from Northern Ireland to be able to get access to those reports. That means making them available in the Libraries of the House of Commons and the House of Lords, and to the Northern Ireland Assembly and relevant representatives.

Dame Rosie, you can see that there is a willingness and desire to move things along. I am very grateful to the Minister and to the Secretary of State for their engagement. That is a helpful clarification on the guidance.

As I mentioned tangentially during an intervention I made on Second Reading, a number of amendments that were tabled fell outside the scope of the Bill, but I hope that the Northern Ireland Office will engage with us and colleagues across the House pragmatically over the next few weeks, because these issues are not going to go away and need to be resolved.

I rise to speak, Dame Rosie, while trying to maintain my composure, having been rejected by the Minister of State, but I am sure that both he and I will cope.

I wish to speak in support of the clauses in my name and the name of my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), although I will not be pushing them to a Division. Let me take a moment to underscore the underlying principle of these amendments and to address front and centre the erroneous assertions of the hon. Member for Strangford (Jim Shannon) and the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson): these are not bullying tactics. I am pretty certain that most people who have an interest in this area will have been receiving emails and other communications from people across the divide and across the communities in Northern Ireland making a very simple point—a point that is underpinned by these amendments. The point is that no other employee in the public sector would say that they were prepared to do 50% of the job, but that they want 100% of the pay. Nobody who says that they are prepared to do 50% of the job but still want 100% of the pay would also then expect to get the full whack on the pension as well. If the pay is reduced, there should be a concomitant reduction in pension. It may well be that pension law precludes that, and the Minister of State might have suggested that that is the case.

We all know that there are powers in statute law, and clause 10 (1) says:

“During a period in which the Northern Ireland Assembly is not functioning, the Secretary of State may make a determination”.

Amendment 1 says that he “must” make a determination. The Secretary of State may make a determination not to do anything at all, but I want him to confirm that he will be looking at this issue, commissioning the evidence, coming to a conclusion and sharing it with this House and others. It is an important principle. We are all recipients of taxpayers’ money, and taxpayers’ money is always a precious commodity, and never more so than at a time of economic uncertainty, heightened prices, inflation and rising interest rates.

We need to make sure that those who seek election—nobody forces us to take up the burden and the privilege of public service—are prepared to shoulder that full burden, to put their shoulders to the wheel, to work as hard as we damn well can in order to address the needs of all of our constituents wherever they may happen to reside, and to discharge our duties, whether it be in Stormont or in this place, to the benefit of the wider community outside the narrow boundaries of our constituencies.

I am grateful to my hon. Friend for outlining the amendments that I support. Does he think that there seems to be some misunderstanding by DUP Members about the amendments that we have tabled? Amendment 9 could be argued to be somewhat discriminatory when it comes to various Members of the Legislative Assembly, but the amendments that we have tabled in my hon. Friend’s name do not seek to discriminate in any way at all.

I agree with my right hon. and learned Friend. We have sought to be equal across the piece. On a personal note, I have some considerable sympathy with those MLAs who have made representations to me over these past eight, nine or 10 hours. They say, “We want to be there. We want to be addressing the issues of health, housing, transport, infrastructure, encouraging inward investment, growing the economy, and making sure that the prosperity dividend of the peace process is felt across the communities of Northern Ireland. Why should we be held up from doing so because of one party?” Indeed, the artist, Sara O’Neill, sent me a message this morning to say that, as the protocol—the principal, legitimate concern of the DUP—is reserved to this place, and nothing to do with Stormont, would it not make more sense for the DUP to boycott Westminster and not Stormont?

I will not give way, because I want to be quick.

That is the principle underlying these amendments. I hope the Secretary of State will use his powers and use them speedily, because a message must be sent to the taxpayers of Northern Ireland that, if no one else is on their side, this place is.

I rise to speak to new clause 6 in my name and that of the shadow Secretary of State. I will not repeat too much of what was said on Second Reading; the Labour party has accepted the need for this legislation and, as its measures are so time limited, we do not think it needs significant changes. The Government have been clear that they have used previous Executive Formation Acts as the basis for this Bill. Our probing amendment has taken the same approach and is based on a section the Government put into the Northern Ireland (Executive Formation etc) Act 2019.

New clause 6 would simply require the Secretary of State to publish a report explaining what progress has been made towards the formation of an Executive in Northern Ireland if the deadlines in the Bill are passed without one being formed. As my hon. Friend the Member for Hove (Peter Kyle) has set out, we need to hear from the Government how they will use the extra time this Bill gives them.

During the oral statement at the beginning of this month, the Secretary of State made several commitments at the Dispatch Box in response to Labour suggestions. We are really happy to work constructively with the Government on how we approach Northern Ireland. He said he would be happy to convene multi-party talks and request that the Foreign Secretary brief the Northern Ireland parties on protocol negotiations. He will know that those would be very constructive steps, but it is not clear if they have been taken yet.

As these debates have shown, there is a wealth of history to learn from on how the Government can move things forward. In the other place, my good friend Lord Murphy, who was very involved in the peace process, had this advice for the Government:

“The one thing I would stress in what I ask the Minister is that the negotiations themselves should be very different from what has occurred over recent months. First, there should be a proper process and plan, and there should be a timetable and a structure. There has been ad hocery, if you like, over recent months”.—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 760.]

The deadlines in this Bill mean there is no more room for ad hocery. In 2019, when there was no Executive, the Government convened more than 150 meetings in a nine-week period. Similar ambition is needed now, and the House must be kept updated.

I had not intended to speak, but I really cannot allow the comments made by the Chair of the Select Committee to go without challenge. For someone who has chaired a Committee specifically on Northern Ireland for a number of years to state to this House that the protocol has nothing to do with the Northern Ireland Assembly is frankly amazing. The Northern Ireland Executive are responsible for implementing key elements of the protocol. The Assembly has a legislative role in relation to elements of the protocol and a four-year duty to decide whether the provisions of the protocol are to continue or not. For someone who ought to know better to suggest that the Assembly has nothing to do with the protocol is amazing.

I said the Assembly had nothing to do with the negotiation of the protocol. That is reserved to Ministers in this place. On the implementation, of course, the right hon. Gentleman is absolutely right, but the negotiations are reserved to the United Kingdom Parliament. That is the point I made; it was not about the implementation.

The implementation is the problem. The negotiation, hopefully, will deliver the solution. Therefore, we cannot divorce the Assembly from the impact the protocol is having, and it is simply unrealistic to do so.

It is surprising that the Chair of the Select Committee has so little knowledge of something that we would expect him to be able to talk about with some degree of clarity. Does my right hon. Friend accept that it would be totally unreasonable to ask Unionists—who are opposed to the protocol and who believe it damages the constitution and their position in United Kingdom and hurts the economic standing of every citizen in Northern Ireland—to implement the thing to which they are so opposed?

Does that mandate extend to the former Minister at the Department of Agriculture, Environment and Rural Affairs who, while government was being withheld from people, was writing to UK Government Ministers asking for portions of the protocol to be retained, to benefit financially farmers such as himself?

Actually, that is not what the former DAERA Minister said. He recognised that the protocol is not working and is harming agriculture. Our farmers cannot bring seed potatoes from Great Britain into Northern Ireland, and there are many other restrictions on the movement of livestock and so on. The point he was making was that there should be no restriction on state aid support for farmers in Northern Ireland as a result of the protocol Bill—not as a result of the protocol.

We can go around in circles on all this. We can train-spot on MLA pay all day long, but the reality is that we are missing the train coming down the track. And the train coming down the track is the lack of consensus enabling the political institutions to function properly. That is what we need to resolve. The Bill allows more time for the solution to be found, and that is what we need to happen. We need the solution.

Members will be pleased to know that I will be extremely brief. I will touch on a few points.

First, I will not repeat the arguments for amendment 10 given that I mentioned them on Second Reading, but I invite the Secretary of State or the Minister to respond to the substance of it when they wind up. I hope they will reflect on what I and the shadow Secretary of State, the hon. Member for Hove (Peter Kyle) have said about not boxing themselves in for what lies ahead.

Beyond that, I stress that there is a need for some degree of ad hoc scrutiny in what happens over the coming weeks and months. With respect to my DUP colleagues, amendment 13, taken literally, is somewhat onerous, but there is also an elephant in the room: our best means to scrutinise decision making in Northern Ireland is to have a fully functioning Assembly.

First, I thank Members opposite for being constructive in dealing with Northern Ireland issues while also holding us to account. They are holding us to account on new clause 6 in particular, and have asked us to provide reports. We propose instead to make statements to Parliament, including oral statements. Those Members know that they are very welcome to be in touch with us with suggestions. Clearly, we do not want to be in here every day—nor would we need to be—but we would wish to make statements so that Parliament is properly informed. The Secretary of State and I are fully committed to working constructively with the House.

Turning to amendment 10 on indefinite extension, it is not the intention of the legislation to create indefinite or undefined extensions to the Executive formation period. We are deeply aware that the previous political impasse dragged on for three years, and we cannot allow that to happen again.

My hon. Friend is absolutely right. We are in the last-chance saloon. We have all seen that political decision making on public services is required now. There is a short period, I would argue, for a negotiation on the protocol, and then we need to get back to an Executive. All these amendments are fine, but the only thing we have to achieve is a deal with the EU that allows our colleagues in the DUP to get back into the Executive.

I wholeheartedly agree with my right hon. Friend. Getting that deal will require us, as we have said several times, to respect the legitimate interests of our negotiating partners while also delivering on the legitimate interests of Unionists. I am extremely grateful to him for his support.

I want to press the Minister on that point. I fully accept his point that the legislation being open-ended is not desirable in any sense, but, equally, we are seven weeks away from the 18 January deadline. If he is genuinely telling us that he believes we will have a full outcome in that period, that is great, but surely he recognises that that may not be the case and that it would be best not to box himself in entirely.

I certainly recognise that we may not reach a deal, and that is why the Northern Ireland Protocol Bill continues its passage in the other place, but the reality is that we cannot allow ourselves to drag on with indefinite extension. The people of Northern Ireland deserve good government, and that is why the legislation is drafted to create a short, straightforward and defined extension to the period for Executive formation. I very much hope that we will conclude an agreement, reform the institutions and then move forward.

Turning to the decision-making amendments, I will say some general things. The Bill includes provisions for pressing public appointments and the requirement to set the regional rate. The Bill does not confer powers on the Secretary of State to direct civil servants in respect of specific policies—rather, the Bill intends to clarify the powers available to Northern Ireland Departments to enable them to deliver in the public interest in the absence of Northern Ireland Ministers. The Secretary of State is required to provide the supporting guidance, which we have now published in draft. That recognises that some decisions should not be taken in the absence of Ministers, but it helps to guide the use of powers in that context.

I had the great privilege a little while ago of being the Advocate General for Northern Ireland, and I recall in the same situation the Chief Justice of Northern Ireland saying to me that there was a serious problem in the appointment of Northern Ireland barristers to the rank of King’s counsel. Can my hon. Friend give me the assurance that he and my right hon. Friend will be in close touch with the Chief Justice of Northern Ireland and that there will be no impediment to the appointment of King’s counsel in the province? It is very important from the point of view of judicial appointments generally that that first rung on the ladder is not obstructed or delayed.

The Secretary of State is well aware of the issue that my right hon. and learned Friend raises. I am grateful to him for putting it on the record, and we will certainly take up the point that he makes.

We do not think we can anticipate all the decisions that civil servants will need to take, so this House should not try to start prioritising some decisions over others. We are clear, however, that we want to restore the Executive with locally accountable politicians taking those political decisions. Amendment 13 concerns reporting on decisions taken. In my intervention on my friend the hon. Member for Belfast East (Gavin Robinson), we reached a conclusion on what we will do through the guidance in paragraph 15, and I look forward to amending the guidance when it is published in its final form.

On amendment 7 and new clause 3 and having “due regard” to the views of the First Minister designate and the Deputy First Minister designate, the essential issue is that the Belfast/Good Friday agreement does not recognise any position of First Minister designate or deputy First Minister designate, nor a joint office of First Ministers designate, so it would not be appropriate to refer to those positions, which do not exist in this expedited legislation. There is also no reference in the Belfast/Good Friday agreement to leaders of groupings.

Clause 3 as drafted already requires the Secretary of State to have regard to representations made by any MLA, and that will allow views from across the political spectrum to be put forward, including but not limited to the leaders of the largest parties in the two largest designations within the Assembly. On other occasions, Members have conceded that the Secretary of State and I have been engaging widely with Members, and we will be glad to continue doing so.

Amendment 8 and new clause 1 are about publishing representations of MLAs and providing a report to the Northern Ireland Affairs Committee. I can assure the hon. Members for Foyle (Colum Eastwood) and for Belfast South (Claire Hanna) that the Secretary of State will treat the duty with all the seriousness it deserves as we provide guidance to senior officers on the exercise of departmental functions in relation to clause 3(1). We do not think that publishing representations from MLAs themselves is a proportionate or necessary step. I would also make the same point about the hon. Members’ new clause 1, which would require a specific report to the Northern Ireland Affairs Committee on decisions taken. As we discussed earlier, reports will be made available through the Secretary of State to MLAs, Members of Parliament and through Libraries, as we discussed earlier.

We have already had a fairly wide-ranging discussion of MLA pay, but what I would say to my hon. Friend the Member for North Dorset (Simon Hoare), the Chair of the Select Committee is that my right hon. Friend the Secretary of State has a real zeal for this issue. He will need to make a determination, and I know that he will consider the current evidence base, but also I am confident that he will instruct officials to look for further evidence on the level of remuneration that MLAs should receive while they are not sitting and carrying out their full duties. We have heard some reasonable arguments about what that will mean for people who are less well off, and I know that my right hon. Friend will bear all of that in mind when he makes his determination. However, I should like to reassure my hon. Friend the Chairman of the Northern Ireland Affairs Committee about all of his amendments and say that his zeal is matched at least by that of my right hon. Friend.

My hon. Friend the Member for North Dorset mentioned pension entitlements. Although it is perfectly reasonable to raise that, and we have considered the issue, the amendment would have a number of unintended consequences, which we do not have the powers to mitigate. We have therefore legislated to avoid those consequences.

I am extremely grateful for a wide-ranging and constructive debate. We have addressed a wide range of amendments to this short Bill, and they are all constructive. I am grateful to hon. Members above all for their forbearance on the compressed timescale that has been necessary for these measures.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 to 15 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

King’s Consent signified.

Bill read the Third time and passed.