Northern Ireland (Executive Formation etc) Bill - Second Reading

Part of the debate – in the House of Lords at 3:44 pm on 5th December 2022.

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Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip) 3:44 pm, 5th December 2022

My Lords, I was honoured and humbled to attend a service in Ballykelly yesterday to mark the 40th anniversary tomorrow of the heinous and depraved Droppin Well bomb, which killed 11 soldiers and six civilians in 1982. In working as a Government to build a stronger, shared future for Northern Ireland, we should never forget that all terrorism, then as now, was totally unjustified and unjustifiable. There was always an alternative to murder.

I reiterate this Government’s unyielding support for the historic 1998 Belfast agreement, to the constitutional principles it enshrines, to the institutions that it establishes and to the rights that it guarantees for all in Northern Ireland. I reiterate what I have said on previous occasions: the agreement is the bedrock of all the progress that has been achieved in Northern Ireland in recent decades and protecting the agreement will remain at the heart of everything that we do. This Government will not take risks with the hard-gained relative peace and stability that the people of Northern Ireland enjoy today.

Central to that agreement is, of course, a fully functioning Executive and Assembly, from which the other institutions in strands 2 and 3 of the agreement flow—an Assembly and Executive where locally elected representatives can address issues that matter most to those who elect them. This has not, however, been the case since February this year and in the period following the Assembly election that took place on 5 May. As I set out in my Statement in this House three weeks ago, it is a matter of profound regret that the Northern Ireland Executive had not been restored by 28 October, the deadline after which the Secretary of State would come under a legal obligation to set a date for a further election.

I think it is clear to most, however, that a further election in the immediate term would be unlikely to produce a significantly different result or resolve the situation that we currently face. The time has therefore come for the Government, and indeed noble Lords in this House, to take action in response to what can best be described as the governance gap that has emerged in Northern Ireland. That is what the Government’s Bill seeks to do.

Separately, I set out in a Written Statement on 24 November how the Government intend to respond to the extremely difficult budgetary issues that have arisen in Northern Ireland. The Government will bring forward a separate budget Bill where more detail will be provided on this; no doubt noble Lords will want to consider that carefully. This Bill, though, is about creating the conditions whereby some key decisions in Northern Ireland can continue to be taken, including on the implementation of that forthcoming budget.

I am sure noble Lords will be relieved to hear that I do not intend to speak at great length in this Second Reading; I know that many noble Lords will want to come in during the limited time available to us today. Before I briefly summarise the overall intention of this legislation, I offer my thanks to the House for considering this Bill at the pace required. I am very grateful to the noble Baroness, Lady Drake, for the very constructive approach of the Constitution Committee to this legislation. I assure her and other noble Lords that the Government do not take these steps lightly, and I am glad that there seems to be broad consensus on the need to consider this quickly.

I also welcome a very old friend of mine, the noble Lord, Lord Weir of Ballyholme, to his place in this House today. The part of Northern Ireland that forms part of his title I know extremely well, not least because I have close friends who live about five doors from the Esplanade bar in his former constituency, which he will know very well. He will be making his maiden speech today and, if he takes his cue from his noble friends in the DUP, as I am sure he will, he will no doubt bring to proceedings unparalleled expertise, as a former Northern Ireland Executive Minister, and a formidable eye for detail. I wish him well. The noble Lord will, I am sure, help to strengthen further the reputation of this House as the Chamber of Parliament that diligently scrutinises legislation and holds the Government of the day to account, while at the same time bringing together Peers who represent all the regions and nations of our United Kingdom.

Broadly, the Bill seeks to do three main things. First, it retrospectively extends the period for Executive formation for a further six weeks until 8 December, with a power to extend by a further six weeks after that until 19 January. That means, subject to the agreement of this House, that if an Executive is not formed within those timeframes, the duty placed on the Secretary of State to call an election will commence this week, on 9 December, or, if the second six-week extension is activated, on 20 January 2023.

Secondly, the Bill clarifies the decisions that civil servants in Northern Ireland government departments can take in the absence of Northern Ireland Ministers, meaning that decisions in crucial areas can continue to be taken.

Thirdly, the Bill provides for powers that allow the Government to take action to amend the pay of Members of the Northern Ireland Assembly when they are unable to conduct the full range of the functions expected of them.

The Bill also provides for a number of other measures; namely, making provision for certain public appointments to be made in the absence of an Executive and conferring on the Secretary of State a power to set regional rates in Northern Ireland for the financial year ending 31 March 2024.

No doubt we will speak to each of these provisions in greater depth as proceedings continue but, taken together, these measures will help to plug the governance gap that has emerged. However, I cannot stress enough that the Bill is not intended to be a long-term solution to the issues that Northern Ireland is facing.

I will briefly go through the Bill’s clauses. Clause 1 makes provision for an extension of the period for filling ministerial offices, as set out in the Northern Ireland Act 1998 and amended by the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022. It retrospectively introduces a further six-week period during which an Executive can be formed, to 8 December. Clause 2 provides for a further power to extend the Executive formation period by a further six weeks.

On decision-making, Clauses 3 to 5 clarify decisions that Northern Ireland civil servants can take in the continued absence of an Executive. The Government have broadly mirrored the approach that the previous but one Administration took in 2018 with regard to these powers, largely replicating the relevant provisions in the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018.

Northern Ireland civil servants will therefore be provided with the necessary certainty to take a limited set of decisions where it is in the public interest to do so. To assist them, the Secretary of State published draft guidance on 29 November on taking decisions in the public interest and the principles to be taken into account in deciding whether or not to do so—again, mirroring the previous approach. I think I am right in saying that guidance has gone to Members of the Legislative Assembly, who have until 8 December to make representations. However, as I have said previously, we recognise that this is not a long-term solution and civil servants cannot be left to take decisions indefinitely. That is why these provisions will last for six months or until an Executive is formed, whichever is sooner.

On public appointments, Clauses 6 to 9 make provision for certain public appointments that would normally have to be made by Executive Ministers or require their approval to be made. Again, this mirrors previous legislation and is another sensible step to take to ensure that key appointments that are necessary to maintain governance and public confidence in the institutions in Northern Ireland can still be made.

Clause 10 will allow the Secretary of State to take action when it comes to the pay of Members of the Assembly. These clauses will therefore allow the Secretary of State to amend MLAs’ pay in this and any future period of inactivity, drawing on Sections 47 and 48 of the Northern Ireland Act 1998. We anticipate that any determination made once these provisions come into force will take into account the independent analysis produced in the previous political impasse between 2017 and 2020.

The Secretary of State will retain the power to set MLAs’ pay in future instances where the Assembly is unable to elect a speaker and deputies following an election. The power would then go back to the current arrangement when these roles are filled and the Assembly is able to conduct business.

Clause 11 confers on the Secretary of State a power to set the regional domestic and non-domestic rate in Northern Ireland for the financial year ending 31 March 2024 by regulations. These rates must be set for every financial year. Clauses 12 to 15 are minor and consequential.

No Government would want to be in the position in which we find ourselves today. It is clearly not a satisfactory state of affairs. In response, although this Bill will provide some short-term cover, so to speak, it is clearly not a long-term solution. Such a solution remains primarily for a newly reconstituted Northern Ireland Executive and Assembly, working in partnership with the United Kingdom Government, to tackle. I assure noble Lords in this House that we will continue to work tirelessly during the timeframe set out in the Bill to create the conditions that will enable those institutions to be re-established at the earliest possible opportunity.

During my Statement to the House on 14 November, I reflected upon the upcoming 25th anniversary of the Belfast agreement and made the point that we should be marking the progress that Northern Ireland has made since that historic agreement. I sincerely hope that this will be the case. Meanwhile, we have little option but to pass this necessary but regrettable legislation. On that note, I beg to move.