European Union (Withdrawal) Bill

Debate between Lord Hain and Lord Dunlop

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Dunlop (Con)]

My Lords, the hazard of speaking late in a debate is that, in the interests of brevity, you have to shred your speech; none the less, I hope that what I am about to say is still coherent.

It would be hard to deny that since 2010 significant powers have been devolved to Scotland, Wales and Northern Ireland. As more powers are devolved from Westminster, it becomes ever more important to attend to the glue—the institutions and arrangements that hold together the United Kingdom—and Brexit brings that imperative into sharper relief.

At the heart of the Clause 11 debate is an apparent tension: on the one hand, the powers of the devolved legislatures should not be changed without their consent and, on the other, one part of the UK should not have a veto over legislation to protect the interests of the UK as a whole. I accept that resolving that tension is not an easy matter. Therefore, Clause 11 addresses a very real issue that needs to be recognised and dealt with. The status quo ante cannot simply be asserted because there is no status quo ante. Our exit from the EU creates what the noble and learned Lord, Lord Hope, recently described in a devolution debate in your Lordships’ House as a “void”, and he spoke of the need to create something new. If that is the case, it seems entirely sensible to pause and put in place a temporary mechanism for avoiding legal and regulatory divergence while the void is filled and new frameworks are discussed and agreed. Indeed, if I read it correctly, our own EU Committee recommended something similar in its Brexit devolution report. That is what Clause 11 is intended to achieve.

Of course, the clause could have been handled differently, and I think the Government have tacitly accepted that by agreeing to amend it. As has been recognised on all sides of the Committee this evening, real progress has been made. It has already been mentioned that the Joint Ministerial Committee has agreed six principles for establishing where common frameworks are necessary. Last Wednesday’s Joint Ministerial Committee agreed that intergovernmental structure and the devolution memorandum of understanding should be reviewed to ensure that they are fit for purpose as we leave the EU. I think that everyone accepts that revision is overdue. The MoU was last updated in 2013 and has been under review since 2014, and some firm conclusions are now urgently required. I hope, therefore, that the Government and the Minister can help build confidence that this latest review will lead quickly to concrete results by going as far as they can to spell out the process and timetable for completing this work.

The other welcome development is the publication of the Government’s own analysis of where common legislative frameworks may be required. To date, this has been a theoretical political debate, and greater transparency can only help to stimulate a practical debate in Scotland, Wales and Northern Ireland, informed by real businesses and individuals whose livelihoods depend on trade across the UK.

The Government have now tabled their own amendments to Clause 11 and Schedule 3. Again, I welcome their willingness to go the extra mile to find a resolution. Those amendments are not just tweaks; they represent a significant rewriting of Clause 11. Yet the First Ministers of Scotland and Wales say that they still cannot give their consent to the Bill on the basis of the Government’s current amendments to Clause 11. They seek further amendments and reassurances. It is surely within the realm of possibility to bridge the remaining gap.

In the interests of striking a deal, what further reassurance can the Government provide to the devolved Administrations in the following areas? My noble and learned friend helpfully confirmed earlier that the Government anticipate that the existing consent conventions will apply for any subsequent legislation brought forward to implement common UK legislative frameworks where they engage devolved competence. Can he also confirm that the Government will observe what I might describe as a “self-denying ordinance” not to legislate pre-emptively for England in those areas where it is agreed that common UK legislative frameworks are necessary? To do otherwise would seem to defeat the objective of avoiding regulatory divergence and the very purpose of the Government’s “holding pattern”.

I ask the Government to look closely at the case that has already been made for applying a sunset clause of suitable length to Ministers’ regulation-making powers in Clause 11. This would allow sufficient time for the frameworks to be agreed while providing the devolved Administrations with the backstop safeguard against the risk of powers becoming stuck indefinitely in the holding pattern.

I conclude by saying that there are two sides to every agreement and I hope the devolved Administrations will play their part by showing a willingness to compromise as well. A number of noble Lords have tabled amendments requiring Ministers to obtain the consent or secure the agreement of the devolved Administrations before exercising their regulation-making powers under Clause 11. This seems a step too far and, as the Minister set out so clearly earlier, to go beyond the current devolution settlements. It risks turning the Sewel convention from a political commitment into a legal obligation. Let us not forget that the Sewel convention has been faithfully observed for 20 years. This would represent a significant constitutional change and would surely have implications for the sovereignty of this Parliament. It would also seemingly cross another important constitutional line, namely, as the Minister said, that one devolved institution could exercise a veto over the development of legislation affecting other parts of the United Kingdom.

I welcome the efforts the Government are making to secure a deal. Clearly, there is a balance to be struck here. All parties to the framework negotiations need similar incentives to reach agreement. Of course the devolution settlements need to be respected, but the unique responsibility of the UK Government and the UK Parliament is to guard the interests of Scotland, England, Wales and Northern Ireland—not just individually, but taken as a whole. That needs to be respected too.

[Lord Hain]

My Lords, I think that many in your Lordships’ House will welcome the interesting and constructive contribution of the noble Lord, Lord Dunlop. I welcome the stance adopted by the Minister in his speech; it has made for a very different debate, as others have observed.

As the author of the 2006 Government of Wales Act, when I was the Secretary of State, I have been deeply alarmed by the Government’s high-handed approach—hitherto at least. It seems to risk reversing the deepening of devolution, which the Government have progressed in their recent legislation, ironically. The principle at stake, which I hope the Minister and the Secretary of State, David Lidington, will adopt and take forward, is that the Government must not legislate in this area, provoked by Brexit, without the consent of the Welsh Government and the Scottish Government, in the sad absence of a Northern Ireland Government. I know that my noble and right reverend friend Lord Eames shares that frustration and sadness, as do my noble friends who represent the DUP. There is a serious crisis in Northern Ireland, which sometimes this Parliament takes too casually, to be perfectly frank, but that is another matter. If consent is not obtained, we face a real constitutional crisis, which should not be underestimated. The noble Lord, Lord Lang, spoke about the Scottish nationalists. The problem with the Government’s approach until now—I welcome the fact that it seems to have changed—is that it feeds the separatist appetite.

I observed in the first incarnation of this Bill, and to some extent in the amendments on the Marshalled List, what I saw as Secretary of State for Wales, even under the last pro-devolution Labour Government, which was what I would call the “virus of Whitehall-itis”. It was especially the case in the Home Office, but one saw it in other departments as well. The default position was that, when a new piece of legislation involving devolution was brought forward, there was a sense of needing at the official level to resist any real progression of the devolution process. As I say, that was the default position and it has crept into this Bill as well.

Northern Ireland: Political Developments

Debate between Lord Hain and Lord Dunlop

Tuesday 28th March 2017 Lords Chamber

[Lord Dunlop]

The funding of these voluntary bodies and the public services is absolutely at the heart of why we need to make quick progress and why this process cannot go on indefinitely. Measures are in place that allow the Permanent Secretary of the Department of Finance to allocate cash, but political choices need to be made and that is why we require a fully functioning Executive to be in place.

[Lord Hain (Lab)]

My Lords, I support the Secretary of State in avoiding—almost at all costs—direct rule, because it would be a massive and possibly irreversible setback. Equally, I support there being no second election, because everybody agrees that that would solve absolutely nothing. In common with my noble friend Lord Murphy of Torfaen, who is unable to be here this afternoon, I remain puzzled as to why there has been no direct prime ministerial involvement—a point raised by my noble friend Lord McAvoy. The Minister hinted that the times are very different. They may be in one sense but in another they are not. The truth is that at times in the past the Prime Minister’s direct involvement, calling a summit at Hillsborough Castle or wherever it may be together with the Taoiseach, has been crucial in breaking the gridlock and bringing parties together, enabling them to find a solution they were not able to find on their own. I put that again to the Minister. The Prime Minister may be busy on other things such as Brexit but I suggest that there is nothing more important on her agenda than keeping the peace process in Northern Ireland moving forward. If it stalled and in any sense went into reverse, that could be very dangerous.

[Lord Dunlop]

First, I agree with the noble Lord about the importance of maintaining the forward momentum of the peace process. As the Statement says, and as the Secretary of State said in the House of Commons, we do not detect any appetite for a second election—the issues would remain to be resolved and it would merely prolong a period of uncertainty and disruption. On the involvement of the Prime Minister, as I have already said, she is actively involved and engaged, dealing directly with the Taoiseach. She and the Taoiseach have mandated my right honourable friend the Northern Ireland Secretary and the Irish Foreign Minister to take forward supporting and facilitating the discussions with the parties. That will happen over the coming hours and days as we seek a resolution to these issues.

European Union (Notification of Withdrawal) Bill

Debate between Lord Hain and Lord Dunlop

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Dunlop) (Con)]

I thank all noble Lords who have taken part in the debate on this amendment, relating to the right of the people of Northern Ireland to identify themselves as British or Irish or both, under the Belfast agreement. It is always a pleasure to follow two former Secretaries of State who have so much experience of this issue. I also mention the eloquent contributions from, among others, the noble and right reverend Lord, Lord Eames, and the most reverend Primate the Archbishop of York.

The noble Lord, Lord Hain, referred to the current political context. The whole House is very conscious of the political situation in Northern Ireland and the need to provide support to the parties there. The recent Assembly election produced a high turnout, and my right honourable friend the Northern Ireland Secretary said in a statement on Saturday:

“This election has demonstrated the clear desire by the overwhelming majority of people in Northern Ireland for inclusive, devolved Government … Everyone now has a shared responsibility to engage intensively in the short period of time that is available to us, to ensure that a strong and stable administration is established”.


I make it absolutely clear that the Government take that responsibility very seriously and are totally committed to the resumption of strong and stable devolved government, which is so much in the interests of the people of Northern Ireland. We all want to see the forward momentum of the peace process maintained.

The amendment in the name of the noble Lord, Lord Hain, seeks an undertaking to support the right of the people of Northern Ireland to claim Irish citizenship, as set out in the Belfast agreement. The Government’s commitment to the Belfast agreement is absolutely rock-solid, including to the principles that recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they so choose, and their right to hold both British and Irish citizenship. As the noble Baroness, Lady O’Neill, and the noble Lord, Lord Empey, made clear, this birthright predates the Belfast agreement. The United Kingdom’s departure from the EU will not change this commitment. However, the question of who can or cannot claim Irish nationality and citizenship is not something that would be dealt with through the Article 50 process.

Citizenship and nationality are matters of exclusive member state competence. The right to Irish nationality and citizenship is therefore a matter for Ireland, in line with its own commitments under the Belfast agreement. The Taoiseach has repeatedly made clear that the Irish Government remain committed to this agreement. In response to the point made by the noble Lord, Lord Hain, and the noble Baroness, Lady Suttie, EU citizenship is enjoyed by the citizens of all EU members. Therefore, any Northern Ireland resident who takes Irish citizenship will have EU citizenship. This is a matter of EU law, so no guarantees are required from the UK. It does not require special status. There are, after all, 3 million EU citizens currently in the UK. The noble Lord, Lord Reid, and the noble and right reverend Lord, Lord Eames, raised the issue of the border. The Government are committed to a frictionless border. How that is achieved is a matter for negotiation.

In conclusion, although the Government agree with the core sentiment behind this amendment—namely, unwavering support for the Belfast agreement—there is no need for its inclusion in the Bill in order to achieve the effect the noble Lords are seeking. Therefore, I respectfully ask the noble Lord not to press his amendment, as he indicated he would not.

[Lord Hain]

My Lords, I am grateful to the Minister and will respond briefly to him in a moment. However, the happy consensus which we have enjoyed this evening will be destroyed over the weekend when Wales play Ireland—at least in the case of my noble friend Lord Murphy and me.

My noble and right reverend friend Lord Eames spoke, as always, with moving eloquence. I am grateful for his generosity to me and to my noble friends Lord Reid and Lord Murphy. He said, very aptly, that Northern Ireland was affected by Brexit more than any other part of the UK. Scotland may be making the most noise but he is right that Northern Ireland, potentially, will be more seriously affected.

The noble Viscount, Lord Slim, referred to my mention of soldiers being prosecuted. To ensure that he understands my point of view, which is shared by my noble friends Lord Reid and Lord Murphy, we did indeed try to draw a line under the past. I introduced the Northern Ireland Offences Bill, which fell because its principle was that it applied to everybody. You had to treat people equally, whether they were a British soldier or a former paramilitary: that principle is vital. I can well understand why the families of soldiers who are now in their 70s and are being prosecuted for offences that they are said to have committed have a grievance that this may be one-sided.

You have to do these things even-handedly—and I return to what my noble and right reverend friend Lord Eames said. I do not wish to detain the House because it is not strictly appropriate to this amendment, but it is part of the context. You have to deal with this whole question in an entirely different way from pursuing continuous prosecutions going back 30, 40 and more years. Forensic evidence in those cases is either non-existent or, if there is forensic and other evidence, it is often more easily captured under former serving soldiers, where records were kept, than it is under former paramilitaries. So long as the parties turn their backs on an even-handed approach and so long as government is unable to pursue that matter, we will continue to have these grievances and they will multiply.

My noble and right reverend friend Lord Eames was the co-author, with Denis Bradley, of a very authoritative and excellent report on the past. There was one particular recommendation on compensation which perhaps was not ideal and attracted a lot of controversy. However, the rest of the report showed how it was possible to address this issue. The people of Northern Ireland and their politicians should return to it.

Northern Ireland: Devolved Powers

Debate between Lord Hain and Lord Dunlop

Wednesday 18th January 2017 Lords Chamber

[Lord Dunlop]

My Lords, first, I take this opportunity to wish John Hume a happy 80th birthday today. As the House will know, he, along with my noble friend Lord Trimble. was awarded the Nobel Peace Prize for his role in the 1998 Belfast agreement. My noble friend Lord Lexden raises an important point. I can confirm that the Government remain fully committed to the Belfast agreement, including the principle of consent governing Northern Ireland’s constitutional position. It is on that basis that Northern Ireland is, and remains, a full part of the United Kingdom. Clearly, any form of joint authority would be incompatible with the consent principle. The Government’s priority remains to work intensively to ensure that, after the Assembly elections, strong and stable devolved government is re-established in Northern Ireland.

[Lord Hain (Lab)]

Why is it that the Government give the distinct impression of being hands-off rather than hands-on during this escalating crisis? Clearly, the parties, since their relations have deteriorated so terribly, are not going to sort this out on their own, even after an election. It is vital that the Secretary of State and the Prime Minister convene meetings—whether summits or other gatherings—to bring the parties together, and that they do so with the Taoiseach as well. Regardless of joint sovereignty arguments, which are irrelevant in this, the Irish Government are very influential, must be brought in, and are a partner in the Good Friday agreement.

[Lord Dunlop]

I do not accept the premise of the noble Lord’s question. Both the Prime Minister and the Secretary of State for Northern Ireland have been very actively engaged in talking to the Taoiseach and the parties in Northern Ireland. We will continue to leave no stone unturned to ensure that we are in the best possible position after the election to re-establish a fully functioning Executive.

Northern Ireland Assembly Election

Debate between Lord Hain and Lord Dunlop

Tuesday 17th January 2017 Lords Chamber

[Lord Dunlop]

Of course the Government agree that it is absolutely essential that we establish the facts and where accountability should lie around the renewable heat initiative scheme. As the Secretary of State made clear earlier in another place, clearly this is a devolved matter and we are firmly of the view that the best approach is that an independent inquiry should be established by the devolved institutions. It is absolutely vital that any inquiry needs to command the acceptance of all the political parties in Northern Ireland and provide widespread confidence across the community. Of course, the Secretary of State will continue to explore options during the election.

With regard to the issue about the border, the Government are absolutely clear that they do not want a return to the borders of the past. As we heard in the previous Statement, we are looking at all the practical options and solutions that will deliver the outcome that the Government want—the maintenance of the common travel area and frictionless trade across the border in the island of Ireland.

[Lord Hain (Lab)]

As my friends in all the parties in Northern Ireland will confirm, I hold no brief for any of them or I would not have been able to negotiate the settlement that we achieved in 2007, especially between the DUP and Sinn Fein. But just as unionists found in the Good Friday architecture comfort from the fact that a referendum protected their ambition to stay within the union, would the Minister accept that republicans and nationalists also found in that architecture that their legitimate political—not terrorist—ambition to reunite both halves of the island of Ireland was also protected? I believe that the current situation is very serious for the future. If republicans above all believe that, either through Brexit and the uncertainty over the border, whatever the Government say, or through the failure to show good will over issues important to them, such as the Irish language and equality issues, there is no progress on those questions, I fear that you could see an unravelling of the consensus that has been so painfully established over decades of negotiation. That is the danger that we face. Do the Government understand that?

[Lord Dunlop]

First, I acknowledge the role that the noble Lord has played in the past in helping to set up the situation in which we have had the longest unbroken period of devolved government. Yes, of course, the Government are very alive to the seriousness of the situation, and it is absolutely clear that there has been a breakdown in the relationship between the two main governing parties. That is why we must use all the period between now and the election to maintain the lines of communication so that, in that three-week period that emerges following the election, we can create the conditions in which we stand the best chance of putting together a fully functioning Executive.

Northern Ireland: Political Developments

Debate between Lord Hain and Lord Dunlop

Tuesday 10th January 2017 Lords Chamber

[Lord Dunlop]

The legacy bodies that were envisaged by the Stormont House agreement do potentially provide a viable, balanced and proportionate way forward, recognising, as I said, that the status quo is very unsatisfactory. I am sorry for repeating this again, but the reason why the Secretary of the State is so focused on using this period to talk to all the parties to see whether there is a way through these very challenging issues is precisely that we need a functioning Executive to deal with these issues such as the legacy of the past, which has proved so difficult in allowing Northern Ireland to move forward. It has been a priority for the Secretary of the State and he has been in intensive discussions with all the parties to see whether we can build that consensus. He is very conscious that we will get only one chance to do this properly and we need to build that consensus.

[Lord Hain (Lab)]

My Lords, as a former holder of the post, I give my full support to the Secretary of State in every step that he takes to try to ensure that this does not end in the sad and tragic way that it could. It is almost by default, through political incompetence, Civil Service bungling and party posturing in Northern Ireland, which has led us to a situation where 10 years of devolved government since the historic settlement we negotiated in 2007, and 10 years of Good Friday negotiations prior to that, could be destroyed. As he has mentioned Brexit, will the Minister tell us how, if the Supreme Court rules that the devolved legislatures should, as they all requested, be consulted on Article 50, that can be complied with if there is no Northern Ireland Government?

[Lord Dunlop]

At the risk of repeating myself again, that is the focus of the activity that the Secretary of State will be involved in over the coming hours and days during this seven-day period, to see whether we can find a way through. The noble Lord is absolutely right: we need a functioning Executive to deal with all the very pressing issues that will be of huge importance to Northern Ireland. Yes, there are challenges with Brexit, but there are opportunities as well, and we need to ensure that we exploit those. But be in no doubt that the voice of Northern Ireland will be heard loud and clear and will be at the heart of preparations for these negotiations. The Northern Ireland Office, the Secretary of State and myself have been engaging widely in Northern Ireland to pin down the key issues that need to be at the forefront of our minds as we approach those negotiations. However, as I said, the noble Lord is absolutely right: a fully functioning Executive will be of assistance in that process.