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Grand Committee

Volume 707: debated on Wednesday 4 February 2009

Grand Committee

Wednesday, 4 February 2009.

Arrangement of Business


Before the Minister moves that the first statutory instrument be considered, I remind noble Lords that, in the case of each statutory instrument, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. I should make it clear that the Motion to approve the statutory instrument will be moved in the Chamber in the usual way.

Postponement of Local Elections (Northern Ireland) Order 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Postponement of Local Elections (Northern Ireland) Order 2009

I understand that the Order Paper states that both orders will be debated together. However, I intend to take them separately but consecutively.

The purpose of this draft order is to postpone the local government elections that are due to be held in Northern Ireland in May this year. Postponing an election is not something that a Government would wish to propose without very good reason. With that in mind, I hope that the Committee will find it helpful if I set out the background to why the draft order is needed.

In 2002, in light of the new tier of political representation brought about by the formation of the devolved Northern Ireland Assembly, the Northern Ireland Executive launched a review of public administration in Northern Ireland. The review was a comprehensive examination of the arrangements for the administration and delivery of public services in Northern Ireland, covering almost 150 bodies, including the 26 district councils there.

The review group reported in respect of district councils in 2006 and recommended a move from 26 to seven district councils. That was accepted by the then Secretary of State for Northern Ireland, who at that time had responsibility for those matters because the Assembly and Executive were suspended. Following restoration in 2007, the Executive, having resumed responsibility for policy in relation to the review, opted for an 11-council model, and legislation was introduced in the Assembly in 2008 to implement that.

During the passage of that legislation, the then Minister for the Environment in the Executive received a number of questions from Assembly Members on whether the local elections scheduled to take place in 2009 would still take place in light of the proposed restructuring. As elections are an excepted matter under the Northern Ireland Act 1998, responsibility for policy in relation to elections rests with the Secretary of State, and in April 2008 the Minister for the Environment wrote to the Secretary of State requesting the postponement of the elections until the 11-council model had been implemented fully.

The Secretary of State agreed that it would make sense for the next elections to be held in respect of the new council model, rather than have elections to the 26 councils, which would shortly no longer exist. However, he recognised that a number of steps needed to be taken before the new 11-council model could be fully implemented. In particular, new council wards and districts would need to be drawn up, and district electoral areas would need to be grouped for the purposes of proportional representation, which is used for all local government elections in Northern Ireland. Legislation would also be required to give effect to recommendations resulting from any boundary review process.

Following discussions between the Northern Ireland Office and the Department of the Environment in Northern Ireland, the Secretary of State was advised that it would be appropriate for the elections to be postponed for two years. For that reason, on 25 April 2008, the Secretary of State announced publicly that he would seek to postpone the elections until 2011. The announcement was generally well received as an exceptional but justifiable step in the circumstances. There were no objections from the political parties in Northern Ireland, and the Electoral Commission has also expressed its support for the postponement.

Article 2(2) of the draft order, therefore, amends Section 11(1) of the Electoral Law Act (Northern Ireland) 1962, so that the next local government elections in Northern Ireland will be held in 2011 and subsequent elections will take place every four years thereafter.

The effect of Article 2(3) of the draft order is to disapply Section 11(1A) of the 1962 Act, which would have provided for the next election to take place on the first Thursday in May of 2011. Instead, we intend to bring forward a further order in due course that would set the actual date of the election.

There are two key reasons for this taking this approach. First, although we expect the implementation of the new 11-council model to have been completed in advance of May 2011, we cannot be absolutely sure of the actual completion date at this time. Members of the Committee will no doubt be aware that it is difficult to be precise about how long a boundary setting or electoral area grouping process might take, particularly when inquiries are held and recommendations are challenged. We therefore cannot rule out the possibility that the implementation process will be completed either earlier or later than when we currently envisage.

Secondly, the Committee will be aware that Assembly elections are also scheduled to take place in May 2011 and that both Assembly elections and local government elections in Northern Ireland are held under the single transferable vote form of proportional representation, or PR-STV. Members of the Committee will be aware that counting in PR-STV elections is complex and we would wish to have detailed discussions with the Chief Electoral Officer and Electoral Commission in relation to a possible combined poll before providing for this in legislation.

For these reasons, we will bring forward a further order to set the date of the next election when we have a clearer idea of how the implementation of the move to 11 councils is progressing; and when we have had detailed discussions with the Chief Electoral Officer and Electoral Commission on the possibility of a combined poll, if required. However, although there are good reasons for not setting the date of the next election at this time, we believe it is important to signal that local elections will not be postponed indefinitely and that the next elections will indeed take place during 2011.

For this reason, Article 2 sets out explicitly that the next local election year in Northern Ireland will be 2011. Article 3 of the draft order makes the necessary consequential amendments to ensure that the terms of office of existing members are extended and that any vacancies arising between now and 2011 are filled in the usual way.

Before the draft order was laid, the Northern Ireland Office consulted with the Northern Ireland departments to ensure that postponing the date would not result in any adverse, unintended consequences for them. The Department of Agriculture and Rural Development informed us of the need to make consequential provision relating to appointments to the Drainage Council, which are linked to local election dates. Article 4 of the draft order therefore provides for appointments to the council to also be extended to 2011.

I again stress that any decision to postpone any elections for any length of time should not be made lightly. I am, however, confident that the current proposed postponement is an exceptional, but justifiable, step under the circumstances, and I hope that the Committee will agree. I beg to move.

I thank the noble Baroness for such a clear description of the order. In principle, I have no objections to it. I am fully conversant with the reasons behind it, but I am sorry that we are changing to 11 local authorities and not to seven. We fought over the numbers for some time, and the noble Lord, Lord Rooker, and I were very much on the same side. However, somehow we both managed to lose, which is a remarkable piece of parliamentary work.

The noble Baroness made a great deal of the postponement and the potential new date. I strongly support her comments and would go a stage further in asking for a marker to be put in the order, forcing the Government of the day to inform Parliament of progress. To reduce the number of local authorities in Northern Ireland from 26 to 11 is very complex. As the noble Baroness has said, there will be significant arguments, debates and disagreements. With the other things that go on in Northern Ireland, I can easily see this date slipping. Any slippage beyond the middle of 2011 would be a serious dent to democracy in the Province. Will the Government consider putting in a time mark to force the Government of the day to report to Parliament on what is happening and how close they are to meeting May 2011, which is the deadline that I have in my mind? Other than that, I am very content with this order.

I, too, thank the noble Baroness for introducing the Postponement of Local Elections (Northern Ireland) Order 2009. She will no doubt be aware that the Liberal Democrats were very critical of the decision to reduce the number of local councils in Northern Ireland from 26 to seven. We raised concern that seven councils, rather than the alternative options of 15 or 11, could lead to the Balkanisation—the word that we used at that time—of Northern Ireland with the inevitable imbalances in political composition. Councils could emerge as strongholds for the political representatives of different sections of the community, which could act as a disincentive for moves to create genuine cross-community power-sharing across the entire region.

We still have those concerns. But, as the noble Lord, Lord Glentoran, has noted, we voted against that order in both Houses of Parliament, and both Houses chose to pass it. That is not an argument that I wish to reopen today, but I simply wanted to restate the position that the Liberal Democrats have on this issue.

We have also spoken out in the past about the postponement of elections in Northern Ireland. In 2003, elections to the Northern Ireland Assembly were delayed twice before finally going ahead on 26 November. We objected in principle to the delaying of elections, as we believe that that undermined the democratic process and the credibility of local politicians in the eyes of the electorate as their mandate was effectively redundant. We still are distinctly uncomfortable about such moves and, therefore, we are uneasy about the measure before us.

However, we recognise that in practical terms a decision has been taken by the Government to postpone the local elections until 2011. Therefore, operations on the ground in Northern Ireland are moving accordingly. We appreciate the difficulties in trying to reverse this decision. As the noble Baroness has explained, the boundary review and the review of district electoral areas are under way but have yet to be completed. Will she update the Committee on the progress of these reviews to date?

As we have said before, we are uneasy that no date is specified in the order for the next set of local elections, other than that they will be in 2011, but I hear what she says about that. Finally, I should like to ask again whether the noble Baroness can give an indication of when she intends to return to this House with a proposed date.

I thank the noble Baroness for her introduction of this order. I should like to make a few comments.

First, it is a blow to local democracy in Northern Ireland to suspend the local elections. It was introduced by the Clerk as a suspension, yet the order refers to the “Postponement”. There is a difference between the words “postponement” and “suspension”. Postponement implies a fixed date when there will be local elections; suspension could mean that there will not be any elections for a long time. It needs to be clarified whether this is a postponement or a suspension, as both words have been used so far in this discussion.

Secondly, local government in Northern Ireland no longer reflects political opinion in Northern Ireland. How many years is it since the previous elections? What will be the period between the previous local elections and 2011, if they even take place in 2011? It will be a considerable period. By then, the existing members of local government will be quite elderly. This is a denial of the younger people in Northern Ireland to have a voice in local government for quite a period of time, and that is damaging.

It is also true that political opinion in Northern Ireland has shifted considerably since the previous local elections. If we had a local election this year, as we were supposed to be having, we would have different complexions in the local government councils than we have at the moment. For those reasons, I am concerned about some of the aspects of the order.

Finally, if the local elections are definitely going to take place in 2011—I think that that is what the noble Baroness requires—assuming that there is no agreement on the boundaries of the 11 new local government areas; does that mean that we will have local elections on the existing boundaries? If so, why do we not have them now?

I thank the noble Baroness for introducing the order. I declare two registered interests that arise in relation to the debate, namely that I am an elected Member of the Northern Ireland Assembly for East Belfast and I am a councillor for the Victoria district electoral area within Belfast City Council.

I welcome the order as a necessary intervention to extend the term that local councillors will serve from their election in 2005. I hope that it will fit comfortably within the overall provision for the review of public administration in Northern Ireland, which is currently under way. The new boundaries and reconfiguration of councils in the Province will reinvigorate their image, streamline services and offer ratepayers an efficient model of local authorities that should serve them well into the future.

One key request from the Minister for the Environment to the Northern Ireland Office when seeking this legislation was a provision to ensure that vacancies that arise from May 2009, when existing mandates are currently due to end, until 2011, which is the date of extension, would be filled through phased co-option. Northern Ireland political parties and the electorate as a whole seek the end of dual mandates across the existing political institutions, thus increasing representation and allowing individual public figures to dedicate themselves to one primary forum and the issues that are raised at that level.

Rather than encourage an unseemly array of local by-elections, and to ensure the maintenance of the political balance as expressed at the previous local government elections, will the noble Baroness confirm that such a provision for co-options is in this legislation? Is it intended? Is it part of the Government’s overall legislative plan?

Will she further outline what steps, if any, the Government intend to take for the financial resettlement of long-serving local councillors, many of whom served through very difficult periods and do not wish to be considered for election to the new authorities in 2011?

First, I warmly welcome the noble Baroness to the Northern Ireland part of her extensive and weighty portfolio; Northern Ireland will benefit from her interest.

I would like to speak in the same tone as those noble Lords who have raised questions about how democratic we are actually being here. There is nothing now to be done about this; there are strong reasons why this is occurring, and it is not only supported by the local parties but by the electoral office. The reorganisation of local government has, in a sense, brought us to this point.

That having been said, there are real democratic problems with what is happening. I will give just one example to bring this home. Since 2006, there have been five co-options to the Dunmurry ward of Lisburn City Council, two in the case of one party following the tragic death through cancer of Michael Ferguson of Sinn Fein, a former student of mine, who has been replaced twice. The Dunmurry ward now has four co-opted members who have not been in any contact with the electorate. By 2011, there is a fair chance that that ward in that city council will be as unelected—I dare say—as this House. That cannot be good for democracy in Northern Ireland.

I am impressed by the way in which so many noble Lords, including the Minister, have said that this is quite exceptional, but we need reassurance that this is not going to drift further. This is an uncomfortable situation for democracy in Northern Ireland; we must hope that we will have a final date to bring this unhappy situation to an end.

I should like to ask the noble Baroness a few questions; she may be kind enough to write to me if need be. It is 20 years since I left Northern Ireland, but I took some slight interest in what the noble Lord, Lord Kilclooney, said, particularly on two aspects that he raised. Would the noble Baroness be kind enough to confirm that the impact of the two orders seems to be as clear as a bell on elections and councillors, but that one or two aspects, particularly in the postponement order, might have some impact on aspects of agriculture in Northern Ireland?

I spent six summers with what is now the Department of Agriculture and Rural Development. I noticed that Sections 10 and 11 of the Act state that there will be no impact on business, charities and so on. Also Section 11(1) does not apply to small businesses. I do not want to get on to a pinhead dance on the size of the businesses. I am curious as to whether the orders and the powers and activities of the local councils will have any impact on agriculture, rural affairs, forestry, fisheries and other aspects of the countryside, which I took pride in serving in Northern Ireland for five and a half years. I am curious about that; I am sure that she will be able to advise me.

I am also interested in the relation of the Drainage (Northern Ireland) Order 1973 to the first order. The noble Baroness was pretty clear in her remarks, but will she write to me on various other aspects—not necessarily drainage—where agriculture or allied activities might be involved in the democratic changeover that she referred to? I think of the happy Foyle Fisheries Commission in the north-west, which had some representation from the Republic of Ireland. I doubt if there is any particular aspect of the activities of the Foyle Fisheries Commission involved in either order before us today. She might be kind enough to let me know in writing in due course.

Finally, either she or her department had the wonderful idea—I direct her attention to page 35 of the second order—of having the wonderful examples of bird life in Northern Ireland as the examples of the names in the list. The noble Lord, Lord Kilclooney, will remember that a gentleman in a village in his constituency used to take a lion for a walk—

I apologise; I had the wrong animal. I wondered why the wonderful Northern Ireland Office is always pointing out all the avian creatures in County Down and not ranging wider in the Province. Also, why has it not indicated some of the more interesting animals that the noble Lord, Lord Kilcooney, has found and which I have found in my career there?

However, I am grateful for the clear way in which the noble Baroness has presented the orders today. Can she confirm, first, details about the Drainage Council and, secondly, whether there is any other impact on what she has presented, particularly with Foyle fisheries or anything else?

I am grateful for the general welcome given to the order, and to the noble Lord, Lord Glentoran, for his support. He and the noble Baroness, Lady Harris, mentioned that we will have 11 councils, not seven. Clearly, seven was the preferred number when these matters were debated in the House of Lords. However, the Northern Ireland Executive is responsible for review policy, and the Executive determined the number of councils. That is devolution in practice, something that we warmly welcome.

The noble Lord, Lord Glentoran, asked if the Government would come back to Parliament to report progress on these matters. As I stated in my introductory remarks, we intend to have elections in May 2011. Should that not be possible for whatever reason, although we hope that it will, we will of course come back to Parliament in good time to ensure that it is informed of any problems with this. However, the order categorically states that the next local elections in Northern Ireland will be held in 2011.

The noble Lord, Lord Kilcooney, asked about the use of the words “postponement” and “suspension”. It is absolutely clear that this is not a suspension, it is a postponement. I am pleased to put that on the record.

The noble Baroness, Lady Harris, expressed concern—as all Members of the Committee rightly have—about the fact that we are postponing these elections, but we are not taking this matter lightly. It is best for the people for Northern Ireland. She also asked about boundaries. The Local Government Boundaries Commissioner is currently drawing up the boundaries for the 11 new local government districts, and aims to complete that work by June 2009. The District Electoral Areas Commissioner will then be tasked with grouping electoral wards for the purpose of PR-STV elections. This will be followed by legislation to create the new boundaries for which local government boundaries will be passed by the Assembly and for which district electoral areas will be passed by Westminster. There is potential for these timescales to change. We are therefore putting 2011, but not stipulating May. We will come back to this issue as and when it is necessary.

The noble Lord, Lord Browne, mentioned that he hoped that this process will fit comfortably into the current review. Naturally, the Government also hope so. The noble Lord, Lord Bew, asked about co-options. There are currently no plans to amend the method for filling vacancies—that is, co-options. The current co-options system has operated effectively for many years, and provides for by-elections to be avoided in a way that reflects and maintains the local emphasis that is important for district councils. Having said that, however, I accept that this is not an ideal situation and I am grateful to the noble Lord, Lord Bew, for so graphically illustrating why that is so. It is a consequence of the postponement more generally, and it is widely accepted in Northern Ireland as being an acceptable but justifiable move in the circumstances.

In answer to the noble Lord, Lord Lyell, all Northern Ireland departments have been consulted on any consequential amendments. They will continue to be consulted, but it is now a matter for the Northern Ireland Executive. If there is anything more that I could or should have said, I shall write to him. In respect of tigers, although I have never heard of them in Northern Ireland, it is a delight to know that they have indigenous tigers and other exotic animals. I look forward to hearing more about such things during my visits to the Province.

Before the Minister sits down, I want to raise two or three points. First, we had a Celtic tiger in Ireland but it is now dead. Secondly, on local government, co-options take place if it is the unanimous decision of the councillors. If one councillor objects, there cannot be a co-option and there must be a by-election. Will that continue to be the procedure between now and 2011? Will a co-option take place only if it is unanimously agreed in the existing council; and if one person objects, will there still be by-elections from now to 2011?

Thirdly, I do not think that the Minister answered my question about elections in 2011. She said that there will be elections in 2011—that is accepted—but if there is no agreement on the new boundaries, will we definitely have local elections under the existing boundaries?

It is absolutely clear that the current system of co-option will continue. There will therefore be by-elections, as there are now, and there will be no changes. If by 2011 we do not reach a conclusion that enables us to have elections under the new boundaries, I understand that the Government will come back to Parliament and postpone the elections until it is possible to have them. I am wrong—perhaps I may seek advice.

We will have to decide in due course whether the elections will be held under new or old boundaries when we have a clearer idea of progress. We will keep Parliament informed of that progress. I beg you Lordships’ pardon for being misleading. In 2011, if there has been no conclusion to the discussions, we will take a view on whether the elections should take place under the old boundaries. We will review the situation then.

In order to clarify my mind, perhaps I may ask a further question. Does that mean that even if there is no agreement on the new boundaries, we will still definitely have local elections in Northern Ireland in 2011? If so, they must be on the basis of the existing boundaries. Is that the position?

That would seem logical. However, for the moment, I must say that before too much of 2011 elapses, we will look at the reviews, consider the progress and come back to Parliament. At this time, it would be wrong for me to say whether that would mean that elections would take place under the old boundaries. It is too soon to say.

Motion agreed.

Northern Ireland Assembly (Elections) (Amendment) Order 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Northern Ireland Assembly (Elections) (Amendment) Order 2009

I am sure that Members of the Committee have noticed that this order is lengthy, and I hope it will assist the Committee if I set out the legislative background and explain why it is necessary. The Northern Ireland Assembly (Elections) Order 2001 governs the conduct of elections to the Northern Ireland Assembly. It applies to Assembly elections, with the necessary modifications, provisions on the conduct of parliamentary elections contained in various pieces of electoral legislation, most notably in the Representation of the People Act 1983 and the Representation of the People (Northern Ireland) Regulations 2008.

The Committee may be aware that both of those pieces of legislation on parliamentary elections have been amended recently. The 1983 Act was amended by the Electoral Administration Act 2006, and, following that, consequential changes were required to the secondary legislation governing parliamentary elections. These were set out in the 2008 regulations. As the 2001 Assembly order applies to both pieces of legislation, we also need to make the appropriate changes to it.

Therefore, the main purpose of the draft order is to update the 2001 order to ensure that the framework for administering elections to the Northern Ireland Assembly is consistent with the legislative changes recently made in respect of parliamentary elections. It is for this reason that the order is such a sizeable one and I can assure the Committee that the vast majority of provisions within it are technical or merely make the necessary updates to which I have referred.

However, although the main purpose of the order is to update the legislative framework for Assembly elections more generally, bringing forward this legislation also provides an opportunity for other changes to be made. For that reason, in July 2008, the Northern Ireland Office launched a full public consultation entitled, Improving the Administration of Elections to the Northern Ireland Assembly. The consultation paper discussed a number of areas where legislative reform might be considered worthwhile. Responses to the consultation were received from, among others, the four largest Northern Ireland parties, the Chief Electoral Officer and the Electoral Commission.

As a result of the consultation, the order also includes some substantive provisions that I wish to draw to the Committee’s attention. The first relates to filling vacancies in the Assembly that arise during the term. Assembly elections are held under the single transferable vote form of proportional representation. It is widely recognised that by-elections to replace members in a PR system may result in parties being disproportionately represented in a constituency.

At PR elections, several seats are usually available for each constituency and they are allocated proportionately to candidates who receive enough votes to meet the quota for that constituency. If one of those seats becomes vacant and there is a by-election, the seat is likely to go to a candidate from the strongest party in that constituency, even if it had previously been filled by a candidate from another party, thus distorting the careful balance that would have previously existed. For this reason, the 2001 order provides for candidates to submit a list of up to six substitutes ranked in order of preference when delivering their nomination papers. This list is then used to fill any vacancy arising should that seat be vacated because, for example, the member has died or resigned during the course of an Assembly term.

Although this system has been effective in reducing the possibility of by-elections in a PR system, a number of practical problems have been identified in relation to it. For example, those designated as substitutes at the time of the election may be unable or unwilling to fill a vacant seat at the time the vacancy actually arises. They may have assumed other responsibilities during the course of the Assembly term or other factors may have emerged that did not exist at the time the person was first listed as a substitute, such as illness or family commitments, or they may have changed or withdrawn their membership of a political party since then. For these reasons, the consultation paper proposed an alternative process for filling vacancies, which is set out in Article 6 of the draft order.

Under the new system, if a seat becomes vacant, the nominating officer of the party that the member belonged to at the time he or she was elected will be asked to nominate a replacement MLA to fill that seat. For independent MLAs, a slight variation of the current system will continue. However, rather than provide a list of substitutes at the time they are nominated as a candidate, they may do so only once they are elected. An independent MLA may modify this list during the Assembly’s term, providing proper notice is given to the Chief Electoral Officer. The consultation revealed that there was strong support for the proposed new method from most respondents, including the four largest Northern Ireland parties.

The draft order also includes other minor amendments to the 2001 order that received widespread support from respondents to the consultation, which I will set out briefly. Currently, at an Assembly election, the returning officer may suspend the count between 7 pm and 9 am, but only if the counting agents agree. Assembly election counts rarely finish before 7 pm due to the use of the single transferable vote system. Although it is normal practice for the counting agents and the returning officer to agree to suspend the count if it appears unlikely that the count will be concluded that evening, in a number of constituencies during the 2007 Assembly election agreement could not be reached to suspend. This resulted in the counts continuing well into the night with the last constituency declaring in the early hours of the following day.

Counting in an STV system is a complex exercise. It is important both for the welfare of counting staff and for the integrity of the count itself for the count to be suspended, if necessary, at a reasonable time. For this reason, the draft order provides for the count to be suspended at 11 pm unless the counting agents and the returning officer agree otherwise. This is the practice at local government elections in Northern Ireland, which are also held under the single transferable vote system.

The draft order also provides for an extension of the period in which nominations can be made, in light of the increased number of candidates at Assembly elections compared to parliamentary elections. In addition, it provides for a party’s emblem to be included on a ballot paper at the request of a party nominating officer rather than by the candidate, as is currently the case. It is hoped that these administrative changes will greatly assist the Chief Electoral Officer and party officials at what is usually a busy period for all concerned.

In summary, the order is essential to ensure that the legislative framework for administering elections to the Northern Ireland Assembly is consistent and up to date with developments in electoral law across the UK. I hope that Members of the Committee will also agree that the current system for filling vacancies in the Assembly requires reform, and that the proposed new method is the most suitable under the circumstances and is widely supported by the political parties in Northern Ireland. I beg to move.

Again, I thank the noble Baroness for that lengthy but clear description of the contents and purpose of this statutory instrument. Having not sought election myself in the past, other than on the one occasion that allows me to be here, I am not an expert in the details and minutiae of parliamentary elections but others here are.

In a personal vein, I have never been a supporter of proportional representation. It complicates things enormously. However, we are where we are in Northern Ireland, and it is probably the best form of electoral system. Everyone involved in the administration of elections there deserves congratulations. Since I have been doing this job, over quite a number of years, we have moved miles to remove fraud, improve efficiency and get all sorts of lists and dates up to date. The system for administering elections in Northern Ireland is now way ahead and far more secure than that of the rest of the United Kingdom. It is high time that the United Kingdom Government got themselves together and got a more open, clear, honest, straightforward and well managed electoral system.

Having said that, I leave it to others who are rather more experienced than me to comment on proportional representation and whatever else. I support the order.

I, too, thank the noble Baroness for presenting the order, the schedules of which are indeed complex. However, it is useful to have the consolidated provisions, particularly of Schedules 1 and 2, reflecting all the changes made by the Electoral Administration Act 2006. It will certainly make things simpler for political parties and others to have all the relevant information in one place, rather than constantly cross-referencing with previous orders.

We on this side of the Committee particularly welcome the provisions of Article 4, which reinforce that an elector can vote only once at an Assembly election. We hope that the unambiguous language in the order will serve to reinforce existing legislation to combat electoral fraud in Northern Ireland. As the noble Lord, Lord Glentoran, has graphically demonstrated, Northern Ireland is now leading the way in elections.

On the appointment of replacement members of the Assembly when a seat becomes vacant, have the Government given consideration to the importance of democratic transparency? Do they believe that it is important that those who are nominated to fill vacancies are known to the electorate at the time of the original election and that they are subject to scrutiny? On independence, we are very pleased to see that an order of preference will be indicated in the substitutes list; otherwise it would be impossible to know how to choose between the substitutes. Having said all that, generally we welcome the provisions of this order.

I, too, support the Northern Ireland Assembly (Elections) (Amendment) Order 2009. It appears to be a progressive advancement in the transparency of the representation of the people of Northern Ireland. Previously, it appeared to be a bizarre and truly undemocratic situation whereby a candidate for the Northern Ireland Assembly could personally appoint five unknown individuals who would be able to fill the seat should a vacancy arise during the four-year term. Therefore, it is entirely appropriate, as set out in Article 6, that such a vacancy should rest with a party’s nominating officer until such time as the electorate is able to express its full wish for the six-seat constituency on a proportional basis.

However, one anomaly that appears to arise is that such a system of secret personal nominees will continue to pertain for independent members who are elected outside a previously established political party. Worse still, the current legislation proposes that rather than making the nomination before election, candidates will only have to do so if and when elected. Surely, it would be democratically preferable if such a process not only happened before the election, but that the list of individuals was published so that the electorate in any particular constituency would be aware of the likely replacement if a vacancy were to arise. Could the noble Baroness explain whether consideration was given to that at any time and why does it not feature in the legislation as currently outlined?

Finally, I would be very grateful if the noble Baroness could outline whether consideration was given to those candidates who stood at the Assembly Election in 2007 and stood in more than one constituency. I wonder whether such blanket candidacy should be banned and, if not, what should occur if a candidate were successfully elected to more than one constituency?

I know who the noble Lord is getting at there. I also thank the noble Baroness for her very clear presentation of this order. I welcome it. I declare an interest as a recipient of a pension from all the Assemblies and Parliaments that have existed at Stormont since 1965. Over the past 40 or so years, I have seen it all.

I welcome the fact that elections will continue to be on the basis of proportional representation. Education in Northern Ireland is good: we understand proportional representation and we have no difficulty whatever in exercising it. It gives a much fairer political representation across the Province than the first-past-the-post system would. I welcome proportional representation. I live in the west of the Province and if it were not for proportional representation, there would be very few pro-British members elected to the Northern Ireland Assembly in the western part of Northern Ireland. It is a formula for fair representation.

I agree with the noble Lord, Lord Glentoran, that Northern Ireland elections are very fair and free, and set an example, compared with the cheating which goes on in England. I trust that the authorities here will look at the subject more closely in future elections.

On vacancies, I agree entirely that the nominating officer should be the leader of the party that was elected in the first instance. For example, someone could be elected as a member of the Democratic Unionist Party—the largest party in Northern Ireland—and could subsequently leave the Democratic Unionist Party to join some other funny party. If that person were then able to nominate his successor, that successor would no longer represent the views of the electorate in the constituency. It is very wise to change the system to one whereby the leader of the party to which the member was elected at the original election continues to be the nominating officer for a subsequent vacancy to be filled.

The Northern Ireland Assembly (Elections) (Amendment) Order 2009 is, technically, a very accomplished piece of work. However, we should recognise that the immediate effect of both orders before us is slightly to shift power from the electorate to the political elites and to the political class in the north in a very small way. I do not want to overstate that. Like my noble friend Lord Kilclooney, I want to look again at Article 6: it makes a new provision about the circumstances which will follow when Assembly seats become vacant. When an elected MLA is not a member of a registered political party, they have to provide a list of six persons in rank order to succeed him or her in the event of a vacancy. More importantly, when a vacancy occurs in a registered political party, the nomination is in the hands of the party nominating officer or leader, even if the individual creating the vacancy does not continue to be a party member. My noble friend Lord Kilclooney has just referred to such a possibility.

There is one lacuna in the order: it does not explain the Government’s thinking on this point. It may be exactly as my noble friend Lord Kilclooney has expressed it, but there is no actual explanation about why this route has been chosen. In her introduction, the noble Baroness made the point that in PR elections a by-election can distort the balance in a constituency. None the less, many countries in that circumstance go ahead and hold an election and, as it were, take the risk of consulting the electorate. It is not always the case that the countries operating the PR system choose to say that they will nominate in order to preserve the existing party balance.

I am asking for some clarification of the Government’s thinking. It may be the same as that of my noble friend Lord Kilclooney. It is perfectly reasonable to think that it should be done that way, but nothing in the order explains why the Government have come to that conclusion.

I am grateful for the wide support for this order. I note the disparate views which have been expressed about the system of election in Northern Ireland. Like the noble Lord, Lord Glentoran, I thank all those who have been involved in the organisation of elections in Northern Ireland and I congratulate them on enabling free and fair elections. They have done a very fine job.

The noble Baroness, Lady Harris, correctly pointed out that the order will make things much simpler for the people of Northern Ireland. All the information that they require on elections will be in one place. It is particularly important that it is clearly stipulated that an elector can vote only once.

On transparency, which is very important, we believe that generally it is the case that when electors vote for representatives of political parties they do so because they support that party's position on certain matters in line with the manifesto of that party. We therefore believe that it makes sense for the party to decide who should fill that seat. We have of course reflected on transparency.

I am grateful for the strong support of the noble Lord, Lord Browne, and I hear what he says about the anomaly, as he sees it, on independence. However, issues relating to that were set out in the consultation paper and it was widely supported. It is a difficult issue, but as the people of Northern Ireland support the proposal, we believe that it is the right thing to do.

The noble Lord, Lord Kilclooney, has an extraordinary record of service to democracy in Northern Ireland. It is remarkable in that since 1965 he has been involved in so many parts of the democratic system there. I, too, think that Northern Ireland should be very proud that it has fraud-free elections.

The noble Lord, Lord Bew, suggested that a certain amount of power was being transferred from the people to the political elite. I can see why he has arrived at that view, but we believe that this process is the best way forward. In some countries, there are by-elections under a system of proportional representation. However, we think that this is the best way forward in Northern Ireland, where it is important to have political balance and where all such things are taken into consideration.

I am grateful for the support of all Members of the Committee.

Motion agreed.

Welsh Ministers (Transfer of Functions) (No. 2) Order 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Welsh Ministers (Transfer of Functions) (No. 2) Order 2009.

The draft order seeks to effect the transfer of functions under the Prisons Act 1952 from UK Government Ministers of the Crown to the Welsh Ministers. It will help to improve the quality and relevance of the learning undertaken in the prison estate in Wales.

The duty to promote the education of the people of Wales contained in Section 10 of the Education Act 1996 was transferred to the National Assembly for Wales in 1999 under National Assembly for Wales (Transfer of Functions) Order 1999, SI (1999/672), along with the majority of functions in the Education Acts. These functions are now exercised by the Welsh Ministers by virtue of the Government of Wales Act 2006. Responsibility for education of persons detained under order of a court is excluded from the scheme of the Education Acts.

The responsibility for education in Welsh prisons currently lies with the UK Government, under the National Offender Management Service, NOMS, acting on behalf of the Ministry of Justice, in conjunction with the Department for Innovation, Universities and Skills. Education is provided in prisons in pursuance of rules made under Section 47 of the Prisons Act 1952. The function of making rules, which include those relating to offender learning and the provision of library services in prisons in Wales, under that section is exercisable by the UK Government.

From April 2006, the former Department for Education and Skills and now the Department for Innovation, Universities and Skills, funded NOMS Cymru for the delivery of prison education and training and the commissioning responsibilities for offender learning and skills provision in Wales. The Welsh Assembly Government have a Memorandum of Understanding with NOMS Cymru. The two organisations will continue to work together throughout 2008-09 on commissioning arrangements for educational provision in Welsh prisons for the period following the proposed transfer of functions on 1 April 2009.

Welsh Ministers will be responsible for making prison rules in relation to the provision of education, training and library services to those who are held in prisons in Wales. Welsh Ministers already have powers under the original transfer of functions order made in 1999—SI(1999/672)—in relation to education policy for those serving sentences in the community in Wales. Those people fall within the mainstream education system.

It is not a practical proposition to seek powers in respect of prisoners from Wales serving sentences in England. This transfer of functions would apply to the existing public prisons at Swansea, Cardiff, Usk and Prescoed, the private prison at Parc and any new prisons built in Wales. From the date of the transfer of functions, the budget will move from the UK Government—DIUS—to the Welsh Assembly Government. The Welsh Assembly Government would also work with NOMS Cymru, to ensure that there is a consistent approach to delivering education and training across all prisons in Wales, including HMP/YOI Parc, with which it contracts.

The agreed transfer of resources to the Welsh Assembly Government is projected to be £2,656,000 for 2009-10 and £2,733,000 for 2010-11. This is an appropriate transfer of resources. The Welsh Minister for Children, Lifelong Learning and Skills has consented to the proposed transfer of functions from the UK Government.

Assurances have been given by the Secretary of State for Innovation, Universities and Skills, the Secretary of State for Children, Schools and Families and the Secretary of State for Justice that if a new prison was built in Wales, or if an existing prison was expanded, the current process for securing additional funding from the UK Government for education, training and libraries would apply. The Welsh Assembly Government would also work with NOMS Cymru on the business case to the Treasury for funding for prison expansion, to be covered in the winter or spring supplementary budget. The UK Government have also provided assurances that consequential funding for prisoner funding in Wales will be provided for 2011-12 onwards.

The transfer of these functions should enable the Welsh Assembly Government to take a strategic planning and management role, linked to their wider skills and social justice agenda. This will provide a consistent level of service across the prison estate in Wales, including in the contracted HMP/YOI Parc.

It will integrate prison education in Wales within mainstream education and training, helping to provide co-ordinated learning for offenders before, during and after their sentences. It will develop local solutions for the training and education needs of prisoners by utilising a diverse range of local providers.

The Apprenticeships, Skills, Children and Learning Bill has been introduced in the other place today, and it will have provisions which will enable Welsh Ministers to place a legal duty on local authorities to provide education for young offenders in Wales. It is appropriate that Welsh Ministers exercise this function for prisoners in Wales, as education and training are devolved matters. It will allow all prison education to be fully integrated with current Welsh Assembly Government policies on education, training and lifelong learning.

I commend the draft order to the House.

I thank the Minister for his thorough explanation of what this order does—or attempts to do. I have to say, although we are in Grand Committee, that we do not think that the order will achieve what the Government are setting out to achieve, and I will try to show the holes in it.

When Ministers of the former Department for Education and Skills decided to make planning and funding prison education part of the Learning and Skills Council’s responsibility from July 2006, responsibility for prison education in Wales was raised as an issue for the Welsh Assembly Government to consider.

In June 2007, the Welsh Assembly Government formally proposed that the responsibility for prison education in Wales be devolved to the Welsh Ministers. Education is provided in prisons pursuant to rules made under Section 47 of the Prison Act 1952 and functions under that section are exercisable by the UK Government. Since April 2006, the Department for Innovation, Universities and Skills has funded the National Offender Management Service in Wales—NOMS Cymru—for the delivery of prison education and training.

It is clear also from the Explanatory Memorandum that the Welsh Assembly Government have a memorandum of understanding with NOMS Cymru in respect of the commissioning arrangements for educational provision in Welsh prisons. The Explanatory Memorandum makes clear that the transfer of functions would apply to the existing public prisons at Swansea, Cardiff, Usk and Prescoed and any other new prisons that may be built in Wales. The transfer would not, however, apply to prisons in the private sector which contract with NOMS Cymru. That means that Parc prison at Bridgend would be excluded from the transfer of functions order, although the Welsh Assembly Government would continue to work with NOMS Cymru, as at present, to ensure that there would be a consistent approach to the delivery of education and training across all prisons in Wales.

We take the view that there are considerable dangers inherent in the proposed transfer of functions order. At present, there are 2,392 places for adult male prisoners in Wales. There are currently no places for female prisoners in Wales. According to a Parliamentary Answer from the Ministry of Justice dated 26 January 2009, as at 30 November 2008 there were 2,259 adult male prisoners detained in Welsh prisons. An Answer dated 19 January 2009 makes it clear that as at the same date, 30 November 2008, 1,199 prisoners were detained in Parc, one of the prisons not covered by this order. This means that only approximately half of the adult prisoners in Wales were detained in prisons which would be subject to the transfer of functions order. While the Explanatory Memorandum indicates that the Welsh Assembly Government would seek to work with NOMS Cymru with a view to maintaining consistency of service across the prison estate in Wales, it is an unacceptable paradox that the Welsh Ministers’ functions would relate only to prisons capable of containing half of the Welsh prison population.

In June 2007, the Welsh Affairs Select Committee published its report, Welsh Prisoners in the Prison Estate. In it, the committee expressed its concern as to the generally low levels of educational attainment of prisoners. The committee identified education and training as a key component of the rehabilitation process undertaken with offenders in prison. A particular concern identified by the committee was the fact that the transfer of prisoners between establishments as they progress through the system can interrupt training and educational programmes: a lack of consistency.

The committee noted that the Prison Service was struggling to implement the effective transfer of educational assessment data between prisons and between prison and community-based education providers. It noted that:

“The ineffective transfer of information on educational achievement can mean that individuals are repeatedly reassessed when transferring between prisons or into community settings”.

The report urged,

“NOMS to promote consistency in education and training qualifications between prisons so that prisoners are able to continue their programmes if transferred”.

There is consequently a need for consistency in education and training provision in prisons throughout the whole of England and Wales. Prisoners should have the opportunity to pursue courses based upon a consistent syllabus wherever in the country they happen to be detained. If a prisoner is moved to another establishment, his records should follow him and his new prison should be able, and indeed required, to ensure that the prisoner follows the same course at his new prison. That will not happen if a distinctly Welsh syllabus is pursued in prisons in Wales.

A further difficulty arises in that many Welsh prisoners, indeed all female Welsh prisoners, are detained in prisons outside Wales. Similarly, many prisoners detained in Welsh prisons are not ordinarily resident in Wales. A Parliamentary Answer dated 19 January 2009 indicated that the latest available data, from September 2008, showed that there were 433 prisoners held in prisons in Wales with a home address outside Wales. Educational and, more particularly, training qualifications differ considerably between England and Wales. Given that some 20 per cent of the Welsh prison population is not ordinarily resident in Wales, it would appear paradoxical that such prisoners will be expected to follow courses prescribed by Welsh Ministers.

We consequently oppose the proposed order. It would apply to only approximately half of the Welsh prison population. We consider the current arrangement, whereby NOMS Cymru works closely with the Welsh Assembly Government, to be superior, in that it permits the Welsh Assembly Government to continue to have input into the educational and training courses pursued in Welsh prisons, while ensuring that NOMS Cymru retains overarching responsibility for education and training and can provide courses that are equally relevant to Welsh and non-Welsh prisoners. Before this order goes to the Chamber for approval, I sincerely hope that Her Majesty’s Government will rethink it.

I apologise for being about a minute late coming in; I had thought that the Northern Ireland business would go on a little longer.

The points made by the noble Lord in his opposition to the devolution of functions have some force, in my view, but not overwhelmingly so. I am concerned by the statistics that have been cited this afternoon, particularly the fact that women prisoners are not catered for within Wales. I have a different angle to the noble Lord on some of these issues.

First, this statutory instrument, which affects Wales so far as the education of prisoners is concerned, is a result of the Government of Wales Act 2006. I believe that that legislation was a halfway house on matters of this kind. It points to a situation that needs further reform. In my view, and in the view of many people living in Wales, it would be better if we had an overall legal system and policing that would cater in the round for some of the anomalies that have been pointed out here this afternoon.

In principle, we welcome the provision for the transfer of these functions to Welsh Ministers; there is no doubt about that. The practical outcome is somewhat different. I shall go through one or two points to illustrate some of the things that happened previously which are not entirely satisfactory either. The Welsh Minister for Education rightly asked that prison education in Wales be devolved. As we have heard, the statutory instrument affects that transfer and provides for the transition, which, importantly, includes skills provision. Many occupants of the four prisons in Wales—Swansea, Cardiff, Usk and Prescoed—will benefit from such training to enable them to get into employment. Parc Prison, Bridgend, is in the private sector and its young offenders section carries out a very important function in Wales.

For many years, the provision of prisons in Wales has been a sore point. Fortunately, recently, this has improved. It would be good to know more about the statistics, which we have heard today. For example, it would be very interesting to know how many prisoners who are resident normally in Wales are in prisons in England. It is impossible to compare statistics without having proper comparisons for the reverse situation. I speak as a former Member of Parliament for Brecon and Radnorshire. Young offenders used to go to Bristol where they were isolated from their own communities. There are many tales of very unhappy young offenders being sent to prisons far from Wales, which means, taking cultural matters into consideration, as some primarily Welsh speaking young offenders are placed in an alien environment. Sadly, one or two of them have committed suicide as a result of being in that situation.

As a result of this statutory instrument, I believe that they will be able to plug into education and training, and relate to their own culture. This tool will be invaluable in helping to overcome the education and skills deficit. In the prison sector, nothing is more important than turning around the employment prospects of offenders. Good education and skills will improve their job prospects, enable offenders to turn their lives around and help them to gain their self respect and become responsible citizens.

Vitally, it will help to prevent them from reoffending. This transfer of functions will assist the fight against the loss of human potential. The noble Lord, Lord Glentoran, has drawn attention to some important anomalies which should be put right as soon as possible. None the less, we need to know the whole picture. If we did, the reasons why the Minister with responsibility for education and skills wants the Assembly to have these functions would become clearer. This legislation, in principle, should be warmly welcomed as an important step in helping to create a more civilised society in Wales.

I am very grateful to both Members of the Committee for the work that they have done on this order and for their contributions today. I am slightly more grateful to the noble Lord, Lord Livsey, than I am able to be to the noble Lord, Lord Glentoran. I very much appreciate the support of the noble Lord, Lord Livsey, for the general principle which underlies this position. It reflects the fact that it is intelligent to seek to promote the education and training programmes, and strategy, and to place that with those Ministers who are responsible for these issues in the wider community. After all, they have to develop these abilities and make provision, which is why we locate, and have located in the past, prison education with its responsibilities for provision across the country.

While I am somewhat shocked at the strength with which the noble Lord, Lord Glentoran, opposes an order which makes a relatively marginal, but nevertheless beneficial, effect on the prison system, nearly all his criticisms—

The Minister may have misjudged me. I was dissatisfied as I felt that this order could have been improved significantly before it came to us and that it does not necessarily do what it says it does. It does not improve the situation, which we all agree needs improvement.

Yes, but the noble Lord’s major criticisms of what will obtain under the new provision, obtain under the existing provision. If he is extolling the fact that under the new arrangements prisoners may face a discontinuity in training and education if they move from Wales to other parts of the United Kingdom, that is a constant complaint about provision in England. There is exactly that difficulty of sustaining a coherent programme of training when prisoners are moved with greater frequency than we would wish. They are moved for all sorts of reasons, such as the utilisation of the prison estate, where inevitably priorities on how that space is used apply and the consequences are often the disruption of prison education and training.

I do not see why this arrangement can be castigated for that. After all, does the noble Lord think that in Wales there will be compulsory teaching of the Welsh language to English prisoners, or does he think that the Welsh will engage in Latin or Greek? They will not. The Welsh prisons will provide programmes that are pretty close to the basic programmes provided in English prisons. I hate to state the obvious, but a very high percentage of the people in prisons are illiterate and innumerate. Those basic skills have to be addressed. In our society, there is a great deal of disadvantage to people who are illiterate and innumerate, even if they are law-abiding citizens, as regards obtaining jobs. To come out of prison and to be in that category is a double disadvantage and provides a real problem in terms of their ability to earn an honest living after they have paid their dues to society.

The Welsh provision will be very similar to the English provision, because it has to concentrate on the real needs of prisoners. An added dimension to literacy which we have to address today is computer literacy. Prisoners and those in wider society who are not computer literate suffer very significant disadvantages when they apply for jobs.

On the idea of transfers being the responsibility of those who have a wider education, training and skills responsibility in Wales and leading to some distorted curriculum, which will mean that any transfer of prisoners between England and Wales would be to their disadvantage, it would be no more to their disadvantage than the constant transfer of people from England to Wales and through all the major establishments in England. That is a well-known and historic problem. It receives insufficient attention across the whole of the prison estate, especially if we are serious about how we prepare prisoners for earning a living once they have discharged their responsibility to the wider society.

I assure Members of the Committee—I would not have been prepared to present the order if I had not been assured myself—that Welsh Ministers, seeking to improve the quality of learning and therefore employment opportunities of prisoners when they eventually leave, will of course need to achieve consistency with England through a core curriculum. This is partly because of the facts that the noble Lord mentions. I freely recognise that for a high percentage of prisoners in Wales, their only connection with Wales is that they are in a Welsh prison; they are English and have lived in England. That also works the other way around, of course: well over 1,000 Welsh people are in English prisons. Unless we get elements of co-ordination in the development of skills under the new arrangements we would be creating an unfortunate disadvantage to prisoners, but the Prison Service is well aware of that under its present UK operation. The devolution to Welsh Ministers will offer them the ability to concentrate on a strategy that ensures that what they provide for Welsh people in Wales will also feed into the work done in the prisons for which they are responsible.

The noble Lord also raised the question of the Parc private prison at Bridgend. It is important because it takes a substantial percentage of the prison population in Wales; I do not underestimate its significance. However, although Welsh Ministers will have to work somewhat differently with a private prison because of its corresponding independence, they will be able to influence learning provision in Parc in line with the other four public prisons. The noble Lord will appreciate that Parc might be private, but it does not isolate itself from the wider prison provision for obvious reasons.

A proportion of the budget transferred to Wales will be used to fund the costs for learning, the costs for the library service and the salary for the learning and skills manager posts in Her Majesty’s Prison at Parc. The needs of Parc, considered within a framework of resources necessary for adequate education and training, are taken into account. Resources will be specifically allocated to Parc in those terms.

I will reflect on what the noble Lord, Lord Glentoran, said. I reflect whenever he is critical of me. I would not say that I have sleepless nights, largely because he usually attacks me during the day and I have time to recover before it gets late. Nevertheless, whenever he is critical, I am concerned. However, I hope that he will also reflect on my remarks and rejoinders. I would not be prepared to put this order forward if I thought that it was just an arbitrary transfer to Wales. It is a consistent, applied policy in which Welsh Ministers enjoy the power to exercise their due authority and influence in Wales. It is properly applied in this case.

Motion agreed.

Committee adjourned at 5.14 pm.