Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Dunlop Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Dunlop (Con)]

My Lords, I rise to support this Bill—the fifth piece of fast-track Northern Ireland legislation this Session. I confess that I do so with a slightly heavy heart, because legislating this way is far from ideal, as the Constitution Committee— of which I am a member—points out in its report. However, I sympathise with the Government’s predicament. Last year, as a Minister in the Northern Ireland Office, I brought before your Lordships’ House a fast-track Bill to extend the limit for creating an Executive to 108 days. Going the extra mile to try to restore devolved government in Northern Ireland is clearly right. By all accounts, as has already been pointed out, the DUP and Sinn Fein came within a whisker of an agreement in February. Further extending the time available is an understandable impulse, but will the sense of urgency to strike a deal diminish with each deadline passed and then extended? What happens if stalemate persists at the end of extra time, when there is no political equivalent of a penalty shootout to break the deadlock? These nagging questions remain.

All that said, in the circumstances I believe that the Bill is the least-worst option judged against two pretty unattractive alternatives. Those are either that there will be another Assembly election that changes little, with a campaign that might unhelpfully raise the political temperature; or that the spectre of direct rule returns. No one wants that; history has shown that it is not easy to escape from—it took nearly five years the last time.

That is why the current state of affairs is so frustrating. Between the end of direct rule and the dissolution of the Assembly in January 2017, Northern Ireland enjoyed the longest unbroken period of devolved government since the dissolution of the old Stormont Parliament in 1972. That was nearly 10 years in which there were real and positive steps forward in Northern Ireland, and it is a more peaceful and prosperous place today as a result. Yet, just at the moment that Northern Ireland should be driving forward and building on the progress of the last two decades, it has languished for 22 months without Executive Ministers. If negotiations go to the wire allowed for by this Bill, the vacuum could in theory persist for another 10 months. That is nearly three years without an Executive developing policy and being held to account by a fully functioning Assembly.

This is a troubling democratic deficit that our UK Parliament could never hope to make up. However, if further legislation is required, or fresh guidance from the Secretary of State, I hope the Government will be mindful of the need to provide as much time as practical for this Parliament to scrutinise and debate what is proposed.

It is, of course, the Buick judgment in July that has forced the Government to act now. The court judged that decisions normally for a Minister to approve lie beyond the competence of a senior civil servant in the absence of a Minister. However, the court offered no definitive view on where the dividing line should be drawn. Matters that are significant, controversial or engage more than one department would normally be a collective Executive decision, and therefore are clearly beyond a senior civil servant’s competence, in even these exceptional times.

The Bill still leaves a very large grey area. In the absence of this Bill and in the face of a heightened risk of further legal challenges, one can well imagine how there might be a chilling effect on Civil Service decision-making. The Bill seeks to fill that void. However, the lines between policy and administration are never clear cut. The scheme set out in Clause 3 and draft guidance attempts to strike a balance that is difficult, if not impossible to achieve—balancing sufficiently wide scope of administrative discretion with the controls on how that discretion is exercised, without normal accountability mechanisms. The Constitution Committee’s report highlights a number of constitutional issues, including the breadth of conferred powers, lack of clear lines of accountability and the retrospective effect of Clause 3. However, the committee accepts that exceptional times require an exceptional response, while expressing concern that the Bill’s exceptional and constitutionally challenging provisions are not taken as precedents for future legislation.

Whatever our concerns about the Bill, we must not lose sight of the bigger picture. In the absence of fully functioning devolved institutions, decisions crucial to the future prosperity and security of the people of Northern Ireland are simply not being taken. Devolved corporation tax designed to give a boost to Northern Ireland’s economy is stalled; £2 billion of critical economic infrastructure, such as the north/south electricity interconnector and the new Belfast transport hub are in a holding pattern. Recommendations from the Hart report into historical institutional abuse are unimplemented. A strong elected voice representing Northern Ireland’s interests in the Joint Ministerial Committee discussions to prepare for Brexit is absent, not to mention the pressures facing schools and hospitals. Nothing in the Bill will directly change this state of affairs. One can only hope that the Bill provides a space to facilitate a political resolution.

My last official engagement as a Northern Ireland Office Minister was on 7 June last year, on a windswept ridge in Flanders, at the ceremony to commemorate the centenary of the Battle of Messines. The battle has great symbolic significance for the island of Ireland. Soldiers from the 36th (Ulster) and 16th (Irish) Divisions fought together for the first time during the First World War. Unionists and nationalists set aside political differences to unite in a common cause. Their story and sacrifice made a powerful impression on all those there, nationalists and unionists alike. The example of those servicemen echoes down the years and stands as a rebuke to those who have not—after nearly two years—resolved their differences. As we approach our own national day of remembrance, I hope that Northern Ireland’s political leaders will reflect on the example set by those soldiers, rise to the same heights of leadership and do right by the people of Northern Ireland by restoring the devolved government they clearly want, urgently need and so richly deserve.

European Union (Withdrawal) Bill

Lord Dunlop Excerpts

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

[Baroness Randerson]

I resist the idea that I ever deliberately misrepresent anything. However, I am very aware that, although the numbers are different, the principle has always been that the devolved Ministers press the UK Government to require their agreement to a stance that the UK Government take in the Council of Ministers rather than simply consult them. That is not new.

I want to move on to the Minister’s statement in support of his amendments and shall speak, first, about the principle of consent. I believe that consultation is inadequate and that what is needed is consent from the legislatures, not from the Administrations. It is important that the power should lie with the legislatures and not just with the Governments in the devolved Administrations. It is also essential that the list of powers where legislative competence is to be constrained is defined in the Bill. Those powers are not specified in these amendments. The Government must know what powers they have in mind. I accept that there is perhaps some work to do in turning them into a tidy list but they need to be specified.

I I support the calls that have been made for a sunset clause. The Minister said that this is a temporary situation but he also said that he could not be specific about the timescale. A sunset clause would certainly be realistic in that context. Such clauses appear elsewhere in the Bill and there is no reason why the Government should not specify what they regard as a reasonable period in which to deal with this issue. We need the effective powers specified in the Bill as a schedule, as the noble Baroness, Lady Finlay, said.

I I have a question for the Minister—and here I agree with the noble Lord, Lord Forsyth. Where does England fit into all this? We are speaking at great length about introducing a pause on most of the devolved powers of the devolved Administrations, but will there be a parallel pause in relation to England or will things go ahead there on a different timescale?

Finally, I turn to putting frameworks into law. In principle, in the absence of agreement on the future framework for, let us say, agricultural support, the UK Government could seek to enact a framework and argue that, because agricultural support has been specified by regulations as being outside devolved competence, the devolved legislatures’ consent is not required. I believe it should be made clear in the Bill that the specification of areas of retained law as being temporarily beyond devolved competence does not remove the application of the Sewel convention to new primary legislation. Is that interpretation the same as the Minister’s?

I ask the Government to discuss this issue again with the devolved Administrations. I believe that real progress has been made and I am very pleased to see the amendments, but I believe that a further step is needed.

[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.