Executive Committee (Functions) Bill: Final Stage

Executive Committee Business – in the Northern Ireland Assembly at 1:15 pm on 28th July 2020.

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Photo of Roy Beggs Roy Beggs UUP 1:15 pm, 28th July 2020

The Speaker has received a letter from the Secretary of State signifying that he is content to grant consent for the Bill to enter its Final Stage.

Photo of Gordon Lyons Gordon Lyons DUP

I beg to move

That the Executive Committee (Functions) Bill [NIA Bill 08/17-22] do now pass.

Photo of Roy Beggs Roy Beggs UUP

The Business Committee has agreed that there should be no time limit on the debate. I call the junior Minister to open the debate on the motion.

Photo of Gordon Lyons Gordon Lyons DUP

The Executive Committee (Functions) Bill will provide greater clarity for Ministers on the circumstances in which they must refer matters to the Executive Committee for agreement; in particular, it provides an exemption from referral to the Executive Committee for certain decisions taken by the relevant Minister under the Planning Act (Northern Ireland) 2011. The Bill is not concerned with the detail of the planning process but, instead, seeks to clarify who is responsible for making decisions.

Section 20 of the Northern Ireland Act 1998 states:

"The Executive Committee will provide a forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers".

Additionally, the Executive Committee has

"the function of discussing and agreeing upon ... significant or controversial matters that are clearly outside the scope" of the Programme for Government. Those functions are also reflected in the obligation placed on Ministers to bring certain matters to the Executive Committee under paragraph 2.4 of the ministerial code. It is important to note that the Bill would not change the obligations on Ministers to refer to the Executive Committee or the role of the Executive Committee in considering cross-cutting matters. However, it would address the implications of the Buick judgement, and it is informed by the legal advice of the Departmental Solicitor's Office (DSO) and the Attorney General, which, as Members will be aware, related to the decision of the Department for Infrastructure to approve a planning application for a waste disposal incinerator in Mallusk in 2017.

The Bill addresses the implications of the judgements in the following ways. First, the Bill fully protects and maintains the requirement of section 20 of the Northern Ireland Act that any matter that is "significant or controversial" must continue to be brought to the Executive. It further clarifies that that requirement is also on Ministers even if there is no Programme for Government in place. That means that the absence of a Programme for Government, for whatever reason, cannot be used as a reason for not referring a matter to the Executive Committee for a decision. That is the purpose of clause 1(2), and it not only protects but enhances the St Andrews Agreement.

In relation to the implications of the wider definition of "cross-cutting", this had been interpreted as applying only to matters that cut across the statutory responsibilities of two or more Ministers and did not encompass those in which they simply had an interest, although the matter might, as in this case, be supportive of other Ministers' aims or objectives. The judgement means that the range of matters that would require referral to the Executive could be widened substantially, with the inherent difficulty of measuring the extent and nature of the interest that another Minister might have in the matter. It could also undermine the executive authority of individual Ministers in their areas of responsibility. Specifically, it means that planning decisions that were considered the sole responsibility of the relevant Minister and were not referred to the Executive Committee for agreement would henceforth need to be, to remove the risk of legal challenge on the cross-cutting principle. That would make the Executive Committee the de facto planning authority rather than the Minister for Infrastructure, in whom the statutory power is actually vested. The Bill addresses that implication by providing that a Minister does not need to refer to the Executive Committee a matter where the effect on another Minister's statutory functions is only incidental; for example, a statutory requirement for one Minister to consult another would not be considered to affect the exercise of statutory responsibilities more than incidentally. That reflects the practical application of the cross-cutting requirement by the Executive since St Andrews but prior to the Buick case.

Finally, to place the responsibility for planning decisions beyond doubt, the Bill provides an exemption from referral to the Executive of certain decisions made by the Department or Minister for Infrastructure under the Planning Act (Northern Ireland) 2011 or regulations or orders made under the Act. Therefore, the Bill would bring into statute the implications of the Buick judgement in respect of the Programme for Government while providing much-needed clarification to Ministers on the extent of their obligations to the Executive Committee. That will preserve an appropriate degree of ministerial authority while placing reasonable limits on the extent to which ministerial decisions, including essential planning decisions, could be challenged on the grounds that they are cross-cutting. I commend the Bill to the House.

Photo of Christopher Stalford Christopher Stalford DUP 1:30 pm, 28th July 2020

I do not intend to detain the House for long, because the arguments around the Bill are well rehearsed and were discussed at length yesterday in the Chamber.

I think that everyone can recognise that the advances that were made at St Andrews represented an enormous improvement on how this part of the United Kingdom is governed. It was an important principle that the Government should function collectively and in a spirit of cooperation, and the changes that were made as a consequence of the efforts of the Democratic Unionist Party at St Andrews facilitated that positive change to how this part of our country is governed. This proposal is completely consistent with St Andrews, and it is important that that is noted.

We have had arguments thrashed out between differing interpretations. The Government act on legal advice given to them by, among others, the Attorney General and the Departmental Solicitor's Office. That is why they are there. That is one of the reasons why the office of the Attorney General exists and one of the reasons why the Departmental Solicitor's Office exists. In recent days, Members have questioned the advice that has been given by both those organs of the state. It is their right, in a democracy, to do that, but, if we question the validity of that advice, we are effectively saying that we should abolish those offices. What is the point of their existence, if we simply decide that we prefer the advice of someone else outside of —

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Christopher Stalford Christopher Stalford DUP

No — we prefer the advice of someone else —

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

Petrified.

Photo of Christopher Stalford Christopher Stalford DUP

I am not petrified of you, Mr Wells.

Photo of Christopher Stalford Christopher Stalford DUP

You believe that if you want to.

The consistent position of those who have opposed accelerated passage of the Bill —.

Photo of Christopher Stalford Christopher Stalford DUP

Speaking of which, I will give way to Miss Woods.

Photo of Rachel Woods Rachel Woods Green

I thank the Member for giving way. Will the Member agree with me that not all Members have had sight of the legal advice that he refers to?

Photo of Christopher Stalford Christopher Stalford DUP

Absolutely, and that is standard custom and practice in government. Even those who have served as Ministers will be able to attest to the fact that the legal advice that they are given is not publishable. I will accept criticism of the accelerated passage procedure from Miss Woods. I will accept it from Mr Carroll, from Mr Allister or from Ms Bailey, because they are the only four Members who have maintained a consistent position on the issue. They were opposed to accelerated passage from the very start, and I accept and acknowledge their right to be.

I give way to Mr Wells now.

Photo of Jim Wells Jim Wells DUP

Will Mr Stalford accept that the very same legal advisers gave advice to the Department of Enterprise, Trade and Investment on the renewable heat incentive (RHI) scheme and that the advice was found to be very wanting indeed?

Photo of Christopher Stalford Christopher Stalford DUP

If Mr Wells wishes to take to his feet in the Chamber and consistently denigrate the professionalism and the standards of the Departmental Solicitor's Office, that is his right. I am merely pointing out that the DSO and the Attorney General exist as organs of this state to advise Members.

The provisions that the junior Minister outlined actually strengthen the concept of collective responsibility, because they provide clarity around the areas that are defined as significant, controversial or cross-cutting. That is important, because this is an issue that, as Members will be aware, has been argued out in the courts on numerous occasions. If provisions are being put in place that provide clarity and mean that we do not have a situation where, as has had to happen in the past, Ministers in the same Executive end up on opposing sides in a court case, that should be welcomed. It encourages the smoother and more effective operation of our Government, it encourages Ministers to work together and it encourages people to act in a collaborative fashion. That was the vision of St Andrews: a collective Government.

It is also important to note that, under the provisions, Ministers will not be able — Members know this — to go off on so-called solo runs, as happened in the past. Under these provisions, for any decision that is deemed to be significant, controversial or cross-cutting, if a Minister unilaterally assumes the power to themselves to take such a decision, that decision is not valid. It has no standing, because of the provisions that have been outlined by the junior Minister.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

Let us envisage a situation, Mr Stalford, in which we have a pro-choice Minister of Health who exercises his authority in a way that is repugnant to many Members of the House. How do we bring his or her activities to the Executive? For it to be significant or controversial, the matter has to be clearly outside the ambit of the Programme for Government. Should it be cross-cutting, under the old law, it is very clear that it has to be brought to the Executive. However, under the new law, unless it affects significantly any other Department, it cannot be brought before the Executive. Now, abortion is a controversial issue, but it is difficult to see how it affects anything significantly in the work of the Department of Agriculture, the Department for Infrastructure or the Department for the Economy. Therefore, it fails those two tests. How do you bring something that many Members of the Assembly and in the Executive find utterly repugnant to the Executive under your legislation?

Photo of Christopher Stalford Christopher Stalford DUP

Because it also falls under the remit of the Department of Justice.

It is important that any decision —.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Christopher Stalford Christopher Stalford DUP

No. I have been very generous. The Member accused me of being terrified to give way to him. I think that I have given way three times; certainly twice. I was generous with him yesterday as well.

Any decisions taken by a Minister outside the scope of the provisions will not be valid and will not have force, and that is clear to anyone who reads them.

The arguments have been well rehearsed; indeed, to some of those who protested yesterday that there had not been enough scrutiny, I say that, for a three-clause Bill, one of which is the title, the Assembly has exercised a very decisive level of scrutiny of this legislation. The arguments have been thrashed out. It is important that we move forward together.

Photo of Pat Sheehan Pat Sheehan Sinn Féin

I agree with the Member who spoke previously that all the arguments have been rehearsed and ventilated in the Chamber in a number of debates. I will not detain the House long, but I will reiterate where we came from and how we have arrived at this point.

The Buick judgement, which no one expected, has made the potential of people bringing the Executive or Ministers to court an ever-present danger in its context. That needs to be changed. There is no point in having Ministers end up in court over practically every decision made. As has been pointed out, the Bill is short, but it recalibrates the legislation back to what, everyone believed, it was prior to the Buick judgement. The safeguards are there. If a decision is significant, controversial or genuinely cross-cutting, it is for the Executive to deal with. That seems to be absolutely clear.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Pat Sheehan Pat Sheehan Sinn Féin

The advice from the Departmental Solicitor's Office and the Attorney General is crystal clear.

I will give way.

Photo of Jim Wells Jim Wells DUP

Let us move to consider another situation. One of your Ministers is responsible for infrastructure. He decides to implement Irish language road signs throughout Northern Ireland. Clearly, that is entirely within the ambit of the functions of his or her Department. Unless there is a policy forbidding it in the Programme for Government, how does that policy go onto the Executive table? What is to stop his Minister simply proceeding to introduce Irish language signs throughout Northern Ireland?

Photo of Christopher Stalford Christopher Stalford DUP

Will the Member take an intervention?

Photo of Christopher Stalford Christopher Stalford DUP

That would arrive at the Executive because it touches on two Departments: Infrastructure and Communities.

Photo of Pat Sheehan Pat Sheehan Sinn Féin

Go raibh maith agat. Thanks for both interventions. Mr Wells's intentions are to spook the horses. They are simply that. The question was answered clearly, so I do not have to answer it.

We needed accelerated passage for the Bill. That has been an issue, and I accept that some Members here are opposed to accelerated passage as a general principle. I also accept that accelerated passage does not allow for the depth of scrutiny that would normally be the case. We are, however, in a crisis situation. We are in the middle of a pandemic that has, of course, affected the health of our citizens, but a consequence of that has been the damage done to the economy. We need to get the economy going, and one way in which we can do that is that through major infrastructure projects. They are sitting in the Infrastructure Minister's in tray, which is probably overflowing at the minute. We need to get those projects going, get people back to work and get the construction industry back to work. For that reason, I support the Bill.

Photo of Colin McGrath Colin McGrath Social Democratic and Labour Party

I continue to support the Bill. It is a sensible one that will allow, amongst other things, the Minister for Infrastructure to make decisions. They will not be small decisions. They will be about regional applications that will deliver jobs, boost the economy and get the North's economy moving again. We have coronavirus, and we have Brexit. The two combined have had a major impact on the economy, and, when the economy is in a bad way, our communities are in a bad way. Fewer jobs means less money in our communities, and that has ramifications that go beyond mere planning applications.

The Bill will also help the Executive to work better and help stop paralysis. Time and time again, doorstep after doorstep, election after election, the people told us, "Get up there and do your work". "Do your job" is what we were told. How many years have gone by in which people struggle to think of decisions that have been taken here that have truly and positively impacted on their lives?

There will be significant and controversial decisions — I have mentioned Brexit — and such decisions may create division. Different approaches will be difficult to unite, but the procedures are there to call in such matters and to help the Executive search for consensus and compromise to ensure that delivery takes place. To me and my party, the Bill is about action. It is about getting things done. It is about delivering for people and delivering for communities. Some may not like to cede a little power. Some may not like to devolve a little bit of decision-making. Some may whiff a few stray votes in the air, and that may be a little more what is happening here than having any problems with the Bill. I want to see action. I want to see activity. I want to see autonomy, where appropriate. I want to see this place delivering for people and truly serving people's needs by helping them and through us doing our job. I am happy to support the Bill and look forward to seeing it pass today.

Photo of Doug Beattie Doug Beattie UUP

It is a short Bill but a far-reaching one. We should not really look at how few pages or how few clauses it has but at the effect that it will have. I thought yesterday's was a good debate. It was an important debate, and people got their points across well. I will not rehearse any of the arguments from yesterday, because the outcome was clear and I accept what the outcome was.

However, during yesterday's debate, I had to bite my lip somewhat when I was accused of being insulting, when my moral integrity was questioned, when MLAs made the assertion that 11 minutes of scrutiny at a Committee was good enough and when MLAs questioned the whole planning part of the Bill but absolutely ignored my amendments. How dare I change my mind. How dare I, as an MLA, say, "Actually, I got it wrong, and I've changed my mind". How dare I question a Bill that is a carve-up between two parties. How dare I.

When I take part in debates on important matters like this, I genuinely try to hold the hand of friendship out to everybody here and listen to the points that they are trying to make. I genuinely try. Let me make it clear, however: do not confuse friendship with weakness. This Bill is bad legislation, and there are people in the Assembly who know that it is bad legislation and are still going to vote for it. Shame on them. It has not been scrutinised to the level that it should have been. MLAs have not had the opportunity to question all the experts about it. We do not know the effects of the legislation in the medium to long term. No idea.

It will create a combative Executive. When pretty petty decisions are made outside the Executive, it will allow other Ministers to participate in a pile on. That is dysfunctional government. It will allow Ministers to step outside of collective government to get themselves away from any controversial decisions that are being made.

The Bill is a U-turn by the DUP on the core argument that it made to its electorate for its being able to share office with Sinn Féin. At St Andrew's, the DUP said that it had fixed the Belfast Agreement, and stopping Ministers from going on solo runs was one of the core tenets for it saying that it had done so. Yet, here it is, doing a U-turn and backtracking on that very principle.

Section 2.4 of ministerial code of conduct is nearly a direct extraction from the St Andrew's Agreement — nearly a direct extraction — and yet section 2.4, which was designed to keep the bar low for cross-cutting measures, is going to be overturned. I am in no doubt whatsoever that, after the summer recess, we will have the ministerial code before the Assembly, and section 2.4 will have been changed.

The junior Minister's assertion that every Minister is stuck in a quandary because of the Buick judgement, which means that they have to bring all decisions before the Executive, is just not true. We have had an Executive for six months, and Ministers have not brought all the issues before the Executive. In fact, the Health Minister reduced the ban on gay and bisexual men giving blood from one year to three months. He did not bring that before the Executive, and not a single Minister raised an issue with it. That could be viewed as being controversial, as it was controversial enough for previous DUP Ministers to take it to court.

It is a fallacy to say that, for the past six months, we have been running contrary to the Buick judgement. That raises the prime question that has never been answered: why are we rushing this through? What is behind the rushing through of this legislation? Somebody needs to answer and say, "This is why we had to do it", because if we were able to operate for six months with Ministers making decisions outside the Executive, why do we now have to rush it through?

Photo of Doug Beattie Doug Beattie UUP

I certainly will.

Photo of Jim Wells Jim Wells DUP

That question was asked

[Inaudible]

in the Chamber yesterday, but it is the one question that —

Photo of Roy Beggs Roy Beggs UUP

Order. I ask the Member to speak in front of the microphone so that everyone can hear.

Photo of Jim Wells Jim Wells DUP

That question was asked by so many Members yesterday. It is the one question that was evaded on every occasion by the proponents of the Bill. What would be wrong with parking the Final Stage of the Bill until October to allow a cool-headed reflection of its implications? I am perfectly happy for Mr Lyons, Mr Stalford or anyone else to stand up and answer these questions. Why the rush? Why did it have to be handled this way? If they do not answer those questions, I am afraid that many of us have deep suspicions around what is going on.

There is silence.

Photo of Doug Beattie Doug Beattie UUP

I thank the Member for his intervention. It is a really important point, and I hope that the junior Minister can address it in the winding-up speech. It is incredibly important. I believe that this is a dangerous carve-up between the DUP and Sinn Féin, aided and abetted by some of the other parties, without looking into it in any depth. They are doing this because they want to distance themselves from some controversial issues that are about to come before the Executive.

Photo of Doug Beattie Doug Beattie UUP

No, I will not. Sit down and take your medicine.

I think that controversial issues are coming before the Executive, and they will try to distance themselves from them. For example, the armed forces commissioner, the Irish language commissioner and abortion legislation. Just watch and see people dive for cover when they start coming out, as they try to hide and distance themselves. There is not a chance that I will support this legislation, not a chance that my party will support this legislation, but there is every chance, in the future, that I will point out the folly of this legislation.

Photo of Andrew Muir Andrew Muir Alliance

My party will vote for the Bill today. The Bill gives the Minister for Infrastructure the power to make planning decisions, as was always the intention.

Photo of Christopher Stalford Christopher Stalford DUP

I am grateful to the Member for giving way. No matter how intemperate or ranting Mr Beattie chooses to be, the fact of the matter is that, when he says "aided and abetted by some parties", he needs to look at the result of the Division yesterday. I think it was 73 Members to 10. When Mr Beattie talks about aided and abetted by other parties, I suggest that he does some basic mathematics.

Photo of Andrew Muir Andrew Muir Alliance

I find Mr Beattie's argument — that it is a DUP/Sinn Féin carve-up to give power to other Ministers, including those from the three smaller parties — rather strange. That is something new and revealing, perhaps. The Bill allows Ministers to take decisions that are not cross-cutting, that are within their sole statutory authority and are not significant or controversial, without the need to bring them to the Executive Committee first. Without the legislation, Executive Committee would become the de facto planning authority for Northern Ireland. The Minister for Infrastructure only deals with regionally significant and called-in planning applications. Therefore, if all significant decisions have to come before the Executive Committee, it would follow that all the Minister's planning decisions would fall into that category. The Executive Committee being responsible for all regionally significant planning decisions would only make the current delays in the system worse.

Yesterday, Mr Wells stated that there is not a huge stack of applications waiting to be processed. To clarify, on 15 June, the Minister for Infrastructure confirmed with me that there were 38 applications still to be determined, with the top two stuck in the system for 698 weeks and 695 weeks.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

The Member is making a valid point that there are 38 applications in the system. How many of those would be determined before October? Given that we are in the COVID-19 crisis and in the middle of the holiday period, if we decided to halt the consideration of the Bill to allow for cool heads to sit down and think through its implications, would any of the 38 applications be affected if we had the temerity to sit down and have a long hard look at what we are about to do?

Photo of Andrew Muir Andrew Muir Alliance

I thank the Member for his intervention. It will be for the Infrastructure Minister to clarify what decisions can be made over the weeks and months ahead. After three years of no Government in Northern Ireland, and in the middle of an economic crisis, we can ill afford to wait even further. The people of Northern Ireland, as the other Member outlined, have been saying to us "Get back to work. Get decisions made." The message from today is to delay and think about it. We have done enough thinking about things here. We need to start taking decisions, The facts in relation to delays in planning applications and those needing to be determined speak for themselves.

It was always the intention that decisions would fall under the powers of the relevant planning Minister. It is my opinion that the legislation takes us back to the position that all parties had accepted before the Court of Appeal's judgement in the Buick case. As the judgement states:

"No previous Environment Minister or Infrastructure Minister had ever referred an individual planning application to the Executive Committee for agreement prior to its determination."

In addition, the legislation will go some way to allowing Ministers to make decisions that are neither significant nor controversial — decisions that are their sole statutory responsibility and which are not cross-cutting — without having to refer them to the Executive Committee. Legal opinions are just that: opinions. I have heard one opinion that the cross-cutting element will be largely unaltered as a result of the legislation, with the Infrastructure Minister again able to determine regionally significant applications. Essentially, pre-Buick, post-St Andrews. I have read other opinions on social media that are contrary to that opinion, but, ultimately, the decision to be made is whether this legislation is the best response to the Court of Appeal's Buick ruling.

I feel that it strikes the right balance between necessary collective decision-making and granting Ministers the power to make judgements. I know, from reading the Buick judgement, that failure to act would lead not only to unnecessary ministerial inertia but successful legal challenges that Northern Ireland can ill afford. We cannot afford to ignore Buick. We have to act.

However, I have raised the issue of the wording of the ministerial code, as it will need to be updated to reflect the provisions of the legislation. The ministerial code is a very necessary piece of the statute book, designed to hold Ministers to account for their actions. It is important that it be updated in line with the legislation, if passed today, so that it continues to be an active document that reflects the law of the land rather than being a set of alternative rules that add unnecessarily to legal uncertainty. However, I seek clarity from the Ministers in their response on whether planning decisions can be made before the code is updated.

How Ministers and the Executive act, individually and collectively, is the most important factor in whether these institutions can survive and regain the trust of the people of Northern Ireland. We need Ministers who will apply planning policy objectively when making their judgements. In the Executive, we need Ministers who work together collaboratively to deal with the significant and controversial issues that need to be tackled. That is what I believe today's legislation allows for. Ultimately, however, it will be up to Ministers to make it work.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

As many Members, particularly the Member for Upper Bann, have said, the length of the Bill is in inverse proportion to its importance. It is, first of all, worth saying, as all other Members have, that we need a legal remedy to the precedent created by the Buick judgement. That judgement created enormous uncertainty in our planning process, leading to stasis in our planning system, which added to a broader policy and decision-making stasis in our politics and public sector.

We need our planning process to work effectively in order to make decisions that will be vital to our economic recovery. That point was well and emphatically made by Members from multiple parties. In short, the Infrastructure Minister needs to be able to make decisions, and the Bill achieves that. Andrew Muir outlined the volume of decisions before the planning Minister.

However, that is not to say that the Bill, or the process surrounding it, has been ideal. Since re-forming the Assembly, we have been asked, more than once, to compress our scrutiny and to grant accelerated passage to legislation that, in normal times, would and should receive more attention, including multiple Budget Bills. Agreeing to accelerated passage for the Bill was far from ideal, and I say that in full recognition that I was not here to speak against it when it was first debated. Like Mr Beattie, I am happy to acknowledge where I should have spoken up earlier about a process not being ideal. I am happy to take anyone's criticisms today about not speaking up. I do not think that it is ideal that a Bill like this receives compressed scrutiny.

It is, however, welcome that, once passed, the legislation will enable planning decisions to be made promptly after years of uncertainty. For that reason, I and my party are supporting it, but, as I said yesterday, in doing so, I am keen to ensure that we have clarity from the Executive Office on one particular area of concern: the issue of Brexit and in particular the implementation of the Ireland protocol.

Proposed new subsections (8) and (9) have been the subject of particular controversy and appear to give much more sweeping power to individual Ministers to make decisions without reference to the Executive Committee. The Bill retains the provision that "significant or controversial matters" must be brought before the Executive. We do not yet have sight of the updated ministerial code that has been mentioned frequently. That document, as others have said, will need to provide real clarity on how the provisions in the updated Bill interact with the responsibilities of Ministers.

As I said yesterday, if any issue qualifies as fundamental, cross-cutting, significant and controversial, it is Brexit and the implementation of the protocol. The junior Minister helpfully confirmed to me yesterday that the Executive and their Brexit committee remain core to dealing with Brexit-related matters. Though I have been disappointed with and critical about the level of scrutiny the Assembly has been able to give to the subject of Brexit and specifically the implementation of the protocol — indeed, I was very frustrated — I was glad and grateful for that from the junior Minister. The 'New Decade, New Approach' document references the importance of Brexit by setting up a Brexit subcommittee. Indeed, that is now a straightforward Executive committee, with representation from all parties.

As we give our support today to the intentions the Bill, with my careful caveats about the frustration with accelerated passage and the acknowledgement that there are legitimate criticisms of the Bill and, indeed, while acknowledging much of what Mr Beattie and others have said, I would be grateful if one of the junior Ministers could today confirm again that nothing in the Bill undermines the decision-making power of the Executive as a whole in relation to Brexit or the implementation of the protocol, and nor does it give individual Ministers the right to take decisions about protocol implementation that are significant, controversial or cross-cutting. With that request, I will draw my remarks to a close.

Photo of Steve Aiken Steve Aiken UUP 2:00 pm, 28th July 2020

As I look around the Assembly, I am reminded, if we look back in history, of when RHI was being debated in the Assembly. Even though there are reduced numbers here due to COVID, the number of Members who have been able to take part in this debate on what is, quite frankly, bad legislation is particularly disappointing. I do not wish to make this into a moment where we harangue each other on particular issues, but there are some significant issues here. The first question, and we have not had the answer, is: why this legislation and, more particularly, why now?

Mr Lyons, thank you very much indeed for your very fulsome description and your briefing when we were talking about the amendments yesterday. You talked extensively about the legal opinion from the Departmental Solicitor's Office to the Executive and the views of the last Attorney General. We fully accept — it is a pity that Mr Stalford is not here — the fact that privileged information to the Executive is, indeed, privileged and should not be subject to further discussion. We do, indeed, welcome the offer that you made yesterday that the solicitors will be available to brief us in more detail. It is just a pity that, in the 11 minutes that the Committee for the Executive Office took to decide on the Bill, there was not the opportunity to get some more guidance and advice, particularly on the legal aspects.

We know that, because of the unique situation in Northern Ireland, our party is in a mandatory coalition. We also know that many of the reforms that were mentioned in and were supposed to be part of New Decade, New Approach have not yet been brought to the fore or actioned. Here we are in a situation where we are looking at a piece of bad legislation, with the impact that that will have. It will have an impact not just this year but next year and in the years to come. As some of the learned Members who have been here much longer than I said, we will be dealing with the implications of this not just in the short term but in the medium and much longer term. Many MLAs need to reflect on that.

Mr Lyons referred yesterday — this is quite important — to three key issues about the checks, balances and controls, and that is one of the main reasons why this is bad legislation. He mentioned the three Ministers rule and how that will be referred to in the ministerial code. However, we have been informed that there is going to be an update to the ministerial code. We are being invited to look at this legislation before we know what the changes to the ministerial code are going to be. Indeed, where New Decade, New Approach is concerned — like many others in the Chamber, I sat through hours and hours of turgid discussion behind the scenes in Stormont House and beyond — we still have not seen the updated ministerial code. Being asked to take this legislation through on the basis of something that we have not seen smacks again of the RHI inquiry and some of the issues to do with that.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

I was not involved in those turgid discussions, but he is right about New Decade, New Approach and, indeed, the ministerial code. Given that everybody in the House wants to see Brexit, including the implementation of the protocol, dealt with in a way that protects the Northern Ireland economy in the fairest way, does he agree that it is particularly important that we get clarity that because the implementation of the protocol and Brexit are such cross-cutting, fundamental and inherently controversial issues — that is why they were included in New Decade, New Approach — they will not be subject to ministerial solo runs?

Photo of Steve Aiken Steve Aiken UUP

I thank the Member from South Belfast. He must have been reading my notes, because those are, indeed, the very words that I was going to discuss now. Not only do we not have any view of what the updated ministerial code will be like, we need to understand clearly the definitions of the words "significant", "controversial" and "cross-cutting". We talk about improving clarity for Ministers, but when are we going to see this information so that we are able to assess whether it is appropriate to test whether this law is good law? We have not seen that. If we look back at some of the things that happened in the past and at some of the reasons why the Assembly did not sit for three years, we can see that that lack of scrutiny has been very clear.

I ask the First Minister and the deputy First Minister these questions: how does the Bill help to restore trust in the Northern Ireland Assembly? Does it restore openness and transparency? Does it address the democratic deficit? They should ask themselves very clearly whether any of those questions have been answered.

There was a note in one of the newspapers asking whether MLAs are "incurious" and "inept". I am quite insulted by that, because I am not incurious. I might be inept in some things, and I do not think that people in the Assembly would consider that to be the case. However, there is a real issue here. We have a precedent of legislation coming through the Assembly that has brought this place into disrepute, and, Members, we are doing that again.

How does the Bill respond to the challenges of our unique legislative system? This was introduced to sort out a planning issue in a series of planning issues. My honourable friend from South Down has said this on many occasions: what is the rush? Indeed, my honourable friend Mr Muir said that some planning applications have been in the system for more than 650 weeks. One of the great things about being a submariner is that I am quite good at mental maths, and that shows that these planning applications have been in the system since long before the Assembly was shut down for three years and long before Buick. There is something more fundamentally wrong with our planning system than was going on with Buick, and I am not sure that this legislation in any way is going to address those fundamental issues.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

The junior Minister Mr Lyons is obviously quite shy when it comes to me, because he has been offered many opportunities to come to his feet to explain the rush, and he has sat quietly, as has Mr Kearney, and we have —.

Photo of Roy Beggs Roy Beggs UUP

Could I again ask the Member to use the microphone?

Photo of Jim Wells Jim Wells DUP

Mr Lyons must be very reticent to speak when I am on my feet, because he has been given many opportunities through yesterday's debate and today's to explain the reason for the rush, the reason why less than 24 hours was given for amendments and why we are heading at breakneck speed down a road that may prove disastrous. He has not on any occasion been prepared to intervene when I have been speaking, so I am offering him the opportunity, since you have raised the question, to explain why we are doing this.

Photo of Steve Aiken Steve Aiken UUP

Thank you very much for that intervention.

Photo of Gordon Lyons Gordon Lyons DUP

Will the Member give way?

Photo of Steve Aiken Steve Aiken UUP

I shall indeed.

Some Members:

Hear, hear.

Photo of Gordon Lyons Gordon Lyons DUP

I am very grateful to the Member for giving way, although I will point out that I did give way multiple times yesterday to the Member. I have no problem in doing that, and I may even seek to make an intervention when he is speaking later on.

The Members want to know why it is that we are taking forward this legislation in the way that we are today. One issue has already been touched on, and that is the issue of planning. Regardless of the fact that some applications have been in for a long time, it is still important that we get the process right. The second issue that we want to make sure that we address is that the significant and controversial issues are not currently allowed to be used. The Member should be aware of that. Why? It is because we have no Programme for Government in place. So, without this Bill today, Ministers will be free to do things in their own Department that are significant or controversial, and it is important that we do something about that.

The third reason why we need to bring this Bill in is to make sure that there is clarity. I think that some are of the opinion that the judgement might mean that we will have to bring all these decisions to the Executive but they are saying, "Don't worry about it. We will just let that go. Just because it was the practice and custom previously, we do not need to bring it in now". That would be wrong because, as Mr Stalford has already said, if a Minister has to take something to the Executive, he cannot make that decision by himself. It becomes an invalid decision, and there is no legal certainty around that. Those are three reasons why we are bringing this Bill in.

Photo of Steve Aiken Steve Aiken UUP

I thank the Minister very much indeed for doing that, but his intervention continues to raise fundamental questions about why this is bad legislation and a bad law. I am sure that the junior Ministers, when they are briefing the Assembly at the end of this debate, will talk fairly clearly about the definitions that we require for significant, controversial and cross-cutting. Maybe we will also get an update on the proposed new ministerial code because, indeed, junior Ministers, we are being invited to agree this legislation before we even know what the proposed changes in the ministerial code are.

I will conclude fairly shortly. We do have a choice. We, as Members of the Assembly, can meekly accept bad legislation, which the Ulster Unionist Party will not be doing. Do we really seriously say that we will allow the so-called smartest lawyers in the room to set the agenda? This is all that I have heard. I have heard everybody say that we need to agree with this because the best legal minds, from the government lawyers to the Attorney General, tell us that it is the right thing to do. We do not have to go back very far in the Assembly to see the last time that we had lots of advice and guidance from departmental solicitors and where that led us to. That should be the touchstone that we look to as we go through.

Finally, how does the Bill actually give us clarity? I have not heard anything from any Ministers or from any of the more eloquent people from the Back Benches.

[Interruption.]

Christopher is very eloquent, and I quite enjoy his interventions.

Photo of Steve Aiken Steve Aiken UUP

No, eloquent. You are never getting "elegant".

The real issue, ladies and gentlemen, Members of the Assembly, is that this is bad legislation. In the future, when this comes back, which it will, and creates enormous problems, we will have to ask ourselves, with our conscience, whether we had the ability to stop this bad legislation at this stage. Or are we going to go through another whole rigmarole that is going to create all sorts of impediments to the future good governance of Northern Ireland? It will probably not even make sure that we get the York Street interchange built on time. We need to have good legislation. We need to have good scrutiny. We may not have made the amendments yesterday, but the Ministers still have an opportunity to delay this process so that we can look at the Bill properly.

Photo of Jim Wells Jim Wells DUP 2:15 pm, 28th July 2020

Mr Deputy Speaker, if you hear a hissing sound during my speech, it is me burning many bridges between me and my erstwhile party. I am fully aware of the consequences of what I am about to say, but it has to be said. I simply cannot stand by and watch the House take a decision that will have — could have enormous implications for the governance of Northern Ireland without at least standing up and warning of the consequences. It is often said that opposing the Executive is like jeering at a passing steamroller — that is probably about as much impact as I will have — but I want to be able to look the people of South Down in the face, maybe in 18 months' time, when this radically unravels, and say that, at least, I had the courage to stand up and say that we should not have done it.

Before I go into my speech, I say that I am glad that Mr Stalford is back. He answered a question that I raised about a rogue Sinn Féin Minister on a solo run wanting to inflict Irish-language road signs on the people of Northern Ireland. He stood up and said, "Oh, but that is cross-cutting, because it also impinges on the role of the Department for Communities".

Photo of Pat Sheehan Pat Sheehan Sinn Féin

On a point of order, Mr Deputy Speaker. Yesterday, we heard intemperate and inflammatory language from the Member who was speaking there. I see that, today, he is back at the same old lark, talking about "rogues" and so on. Is there any chance he could be asked to restrain his intemperate language, please?

Photo of Roy Beggs Roy Beggs UUP

I am sorry, I have not heard any intemperate language thus far today. I can assure the Member that, if I do, I will intervene.

Photo of Jim Wells Jim Wells DUP

I use "rogue" in the sense of someone who is totally out of control, rather than someone of doubtful moral background.

The point I am trying to make is that we have seen this, of course. Mr Conor Murphy introduced legislation to impose Irish-language road signs on the people of Northern Ireland. The reason that he got absolutely nowhere with that Bill was that it was pointed out to him that, under the existing legislation, it would get absolutely nowhere.

Now, I will give way to Mr Stalford on this point. He said, "Ah, but that affects the work of the Department for Communities". Now, if a Sinn Féin Minister or, indeed, an SDLP Minister for Infrastructure decided to have Irish-language road signs between Newcastle and Kilkeel, it would be difficult to argue that that is a genuinely cross-cutting measure that will have an impact on the Department for Communities. It will not really matter, because a court will decide that it has no real impact on the work of the Department for Communities.

Photo of Christopher Stalford Christopher Stalford DUP

The Member will also be aware that it has section 75 implications and equality implications. If people object to such provision, as, I am sure, they would — he mentioned the town of Kilkeel, where, I am absolutely sure, they would — they have recourse to the law. Ministers have to act within the statute. Ministers are creatures of statute. They also have to act within the law, and the parameters of the law are clear around the specific issue that the Member has raised. This is becoming a pattern with the Member: setting up theoretical examples that are designed to frighten people. It is becoming boring.

Photo of Jim Wells Jim Wells DUP

Gosh, Mr Deputy Speaker. I have been described as many things in my life, but never "boring". I say to the Member that the people of South Down already have experience of this, because the district council has imposed Irish-language signs throughout the district and all attempts to invoke section 75 have failed miserably. The council has full authority to impose those on communities that do not want them, so I wish the Member well in trying to stop Irish-language road signs within similar restraints.

The Member says that I am throwing up, in a rather boring fashion — I will really have to up my ante, if I am being boring — false alarms about situations where people will feel worried and concerned, but my 22 years' experience in the Assembly has shown that such situations do arise. There will be maverick — I will use "maverick" rather than "rogue" — Ministers on the nationalist side who will attempt —.

Photo of Jim Wells Jim Wells DUP

I certainly will.

Photo of Andrew Muir Andrew Muir Alliance

Will the Member accept the Equality Commission's finding in relation to Paul Givan's decision to cut Líofa funding? That was another way in which the legal system found in relation to decisions made by other Ministers.

Photo of Roy Beggs Roy Beggs UUP

Order, Members. I remind everyone that this is not a debate about the Irish language. I draw everyone back to the Bill that we are considering today.

Photo of Jim Wells Jim Wells DUP

My point is that a court could well decide that a Sinn Féin or SDLP Minister or even an Alliance Minister who wished to impose Irish-language road signs on the people of Northern Ireland would have the power to do that under the Bill, because it is not cross-cutting. Unless there was a clause in the Programme for Government expressly forbidding that, the Minister would be well within his powers to proceed with that policy, which would be anathema to a large proportion of the people of Northern Ireland. They do not want Irish-language road signs.

The Bill purports to update the legislation to reflect the Buick case. Everybody here knows the significance of the Buick case, but, over the last 24 hours, I have received many hundreds of emails from individuals, from people who are even concerned about giving the Minister for Infrastructure the power to unilaterally make a decision on controversial planning applications. I am sure that other Members have also received emails, for instance from the group opposed to the Dalriadan gold mine application in west Tyrone or the application for a similar development in Armagh.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

I am grateful to the Member for giving way. Several Members have issues with proposed subsections (8) and (9), and several Members have had issues with accelerated passage. I can understand those. He now seems to be drawing a broader issue with the Infrastructure Minister having the ability to make such decisions. Does he have a fundamental problem with the idea that the Infrastructure Minister should have, post-Buick, a clearer ability to make planning decisions?

Photo of Jim Wells Jim Wells DUP

I am saying that the Bill has caught many people in Northern Ireland unawares, and many people would like to have had an input to a proper consultation on it through the Committee. I presume that Mr McGrath's Committee would have been the appropriate Committee to deal with this. They have been denied that opportunity. The Bill has gone from the printer's to ratification and, presumably, Royal Assent in less than a month. There have been 11 minutes of consultation about it in the relevant Committee. Members were given less than 24 hours to submit amendments. I sat in the Chair, Mr Deputy Speaker, and had to read out to Members that, if they wished to table amendments, they had to be in by 9.30 the following morning. That is highly irregular.

I thank Mr Lyons for the fact that, at last, he has explained the need for the rush, but can he tell me of one decision that would definitely have to be made between now and the first week of October? Mr — the gentleman from North Down, I have forgotten his name. I am awfully sorry. The new Member for North Down — somebody remind me.

A Member:

Mr Muir.

Photo of Jim Wells Jim Wells DUP

Mr Muir listed 38 planning applications that were sitting in the system, but what he did not say and what nobody said is that, on planning application A, we want to make a decision in August, and, on planning application B, we will definitely need to make a decision in September. I suspect that the reality is that, when we come back in October, there will still be 38 planning applications sitting there, because that, unfortunately, is the way that things work in the system at the moment. I will give Mr Lyons the opportunity to name me the applications that are so urgent that they have to be processed over the next 8 weeks.

Photo of Gordon Lyons Gordon Lyons DUP

I am happy to take up the offer of an intervention. The Member has not addressed my other two points yet; I hope that he will. Surely, the Member believes that it is right that we have the proper processes in place and that we have the legal certainty that the decisions that we make are made in the right way?

Photo of Jim Wells Jim Wells DUP

Yes, if that is what he is doing, but he has not convinced me that he is. I gave him the opportunity to say that application A and application B will have to be processed between now and the first week of October. If he is saying that there is no prospect of that happening, what would be wrong — he has not answered this point — in allowing the Assembly, the community groups that have been caught unaware, the general public and the legal profession an opportunity to have a few weeks — I mean "a few weeks" — to sit down and to consider the Bill more carefully? Nothing could be lost. However, what if he is wrong and Mr Stalford is wrong? The implications for the governance of Northern Ireland are immense, because it could lead to judicial review and a legal situation where Ministers can prove that, under the legislation, they have a right to proceed in whatever way they jolly well like. When things are being done and Ministers are out of control, it will be difficult for them to meet members of our community and say that they sat in the Chamber and allowed themselves to be whipped to vote for something that they did not approve of.

Having been a member of the DUP for 46 years, I am aware of the internal workings of the party. I know that there was no consultation on the Bill in the largest political party in the Chamber until yesterday morning. There was no discussion on it until one prominent member of the party pleaded with the Chief Whip to have a meeting. That was denied. It was only when several members of the party pleaded for a meeting that a meeting was held yesterday morning at 10.30. Please feel free to contradict me, if that is not true. At that meeting, a lot of concern was expressed, as a lot of concern has been expressed to me by Members from across the board. In the absence of someone much more capable, in the form of Mr Allister, unfortunately, they have had to turn to an obscure Back-Bencher. "Obscure Back-Bencher": is that unparliamentary, Mr Deputy Speaker?

Photo of Roy Beggs Roy Beggs UUP

I want to draw the Member back to the Bill rather than the internal workings of a political party.

Photo of Jim Wells Jim Wells DUP

Mr Deputy Speaker, I think that most Members are fascinated to hear about the internal affairs of the DUP, but they have turned, I am afraid, to an obscure Back-Bencher marooned in the desert, who, unfortunately, is today ensuring that he will remain in that desert for a long time.

There was an intense discussion. Assurances were given by those involved that, legally, the Bill was an enhancement rather than a weakening of the St Andrews Agreement. On the basis of that verbal assurance, people have allowed themselves to be whipped to go into the Lobby to vote for something with which they are extremely unhappy but are scared to say so, apart from saying it to me. There are many people out there this afternoon whose names are on a piece of paper held by the Chief Whip, who will stand in that Lobby and shout out those names, when many of those people are very unhappy with being asked to vote for the Bill.

Mr Deputy Speaker, may I suggest that I have unlimited time because this is legislation?

Photo of Roy Beggs Roy Beggs UUP

The Member is right: there are no time limits. However, I gave the Member some direction to move on from the internal workings of a political party and to refer to the Bill.

Photo of Jim Wells Jim Wells DUP

Mr Deputy Speaker, Members are still assuring me that they are hanging on my every word, so it cannot be that boring. However, I will not wander any further into the internal machinations of any political party in the Chamber, but I note that none of the Members to my left has stood up to contradict anything that I have said.

Following yesterday's debate, there has been a huge adverse reaction from the community on what happened. Many people have put pen to paper, either on social media or in newspapers, to indicate that they are deeply concerned. Most significantly, one of those is Mr Richard Bullick. There was concern yesterday that we quoted Mr Bullick so often. Frankly, I have enormous respect for the judgement of Mr Richard Bullick. The fact that he has now gone public on three occasions to express his concerns about what we are doing holds a lot of water as far as I am concerned. No one in the Chamber has really answered his concerns. Many of the younger Members — there are people who were not born when I first sat in the Chamber; not you, Mr Deputy Speaker, I assure you — will not be aware of the significance of Mr Bullick; in fact, people have asked me, "Who is Mr Bullick?". I can assure you, from my experience of St Andrews, even though I was not there, that Mr Bullick played an absolutely crucial role in the negotiations at St Andrews to establish the protections that have served the Assembly so well; indeed, it is noticeable that what was agreed at St Andrews has saved our community from some really strange proposals, many of which still sit in a store in the Executive Office. We know that, under the St Andrews Agreement, they have absolutely no prospect of seeing the light of day. That has given us protection for 13 or 14 years. When the author — the person who was so instrumental in the drafting of that document — says that he is still extremely concerned, despite the eloquent defence by Mr Lyons yesterday at the end of the debate. Mr Kearney was remarkably quiet, but Mr Lyons has been given the job of defending this document. Having listened carefully, as many did, to Mr Lyons, I feel that there is still an element of concern. The issue is so important to me and the people of Northern Ireland, that, even if I harbour a 10% doubt as to the effectiveness of the legislation, I think that we need to have another look at it.

I plead with Mr Lyons, who exercises a powerful position in the Executive Office, not to go over the cliff this afternoon or to go beyond the point of no return but to accept, as Mr Stalford said yesterday, that there is conflicting legal advice. That is the only thing that we agreed on yesterday; there is that conflicting advice. If there is that element of doubt that all the MLAs I have spoken to have, what would be wrong in allowing this item to be rolled over to the first sitting day of the new session?

I will gladly give way to Mr Lyons, Mr Stalford, Mr Dunne or Mr Harvey to tell me what could go wrong by doing that to allow us to forensically examine the comments of those opposed to the Bill, to see if they hold water. I believe they do, but maybe they do not. Would there be massive planning applications that have to go through by the first week of October?

I am waiting, Mr Stalford or Mr Lyons.

Photo of Gordon Lyons Gordon Lyons DUP 2:30 pm, 28th July 2020

I appreciate the Member giving way. Perhaps I can issue a challenge to him to set out why he believes that what we have in front of us is in any way a move away from the St Andrews Agreement. We have talked about three main issues. The first is that an issue might be controversial, and that remains. Something might be significant, and that remains. In fact, those two are enhanced, because, after the Bill is passed, not only will they apply when a Programme for Government is in place, they will apply when one is not in place. That is important. In terms of the cross-cutting issue, we have moved to what was clearly the position back at St Andrews. It is not whether we cut across the interests of other Ministers — I do not know, by the way, how you measure that — but their responsibilities. That is important because "responsibilities" is the key word. It is found not only in the St Andrews Agreement and the ministerial code but in the words of the then Member for East Belfast, Mr Peter Robinson, when, during a debate in the House of Commons, he talked about issues "beyond a de minimis level" — more than incidental — that are:

"regarded as cutting across the responsibilities of two or more Ministers."

Can the Member explain how the Bill is a move away from St Andrews?

Photo of Jim Wells Jim Wells DUP

The honourable Member for South Down, who probably just about has CSE woodwork, is not the person to comment on that. The point is that, when Mrs O'Loan from Tughans, Mr Jim Allister QC and Mr Richard Bullick, who is the author of the protections that we are debating, have considered all he said yesterday and all the comments from other Members and are still alarmed, that doubt comes into my brain.

If this was the District Council Dog Fouling Bill or the Litter Picking Bill and we got it wrong, it would not be the end of the Earth. However, this is so fundamental to how we govern Northern Ireland that, if we allow it to go through, when many of us still have doubts, and it all unravels, we will never retrieve the situation. One thing is certain: the Members to my right will never agree to an amendment. It is like the definition of victims. We can never amend that definition. We are stuck with it, and it requires cross-community support to bring it back to something that people are comfortable with.

In a few minutes' time, if the honourable Member for East Antrim, the junior Minister, moves the Bill to a vote that, of course, he will win because of the Whip system — there are scars on the backs of all the Back-Benchers who have dared to oppose it — he will have a list of, I assume, 26 names that will be called out, and people will be dutifully registered as voting for something with which many of them feel uncomfortable. If he goes over that cliff and I am right and he is wrong, there will be a terrible consequence of what is about to happen.

Photo of Gordon Lyons Gordon Lyons DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

Yes, certainly.

Photo of Gordon Lyons Gordon Lyons DUP

I appreciate the Member giving way again. Is the Member saying that, right now, he is comfortable being in a position where there is no Programme for Government and Ministers are free, until the Bill passes, not to have to bring controversial or significant issues to the Executive?

Photo of Jim Wells Jim Wells DUP

I am suggesting that the present legislation has served the Assembly and the community well. He has not answered the question: will anything drastic happen between now and the first sitting of the Assembly in October? He has power to delay the Final Stage of the Bill for a very short period to enable Members to have a good, long, hard look at it. He has it within his power to do that today. I am pleading with him not because I am a dissident DUP Back-Bencher or because I have an axe to grind with the party or, indeed, any other party in the Chamber. I say, "Let us make certain that we have got this absolutely right before we go beyond the point of no return". I am not asking him to concede the merits of the Bill. I am not asking him to accept any amendment to the Bill. I just ask him whether, given the extraordinary way in which it has been handled, the total lack of scrutiny that it has enjoyed, the widespread community concern about it and the issues that have been raised long after the Bill was dealt with and published by the Committee for the Office of the First Minister and deputy First Minister, he will consider a short — I mean "very short" — delay to enable cool heads to sit down and get this absolutely right. Those are my comments: I hope that they have not been dull.

Photo of Rachel Woods Rachel Woods Green

Earlier, Mr Stalford kindly gave way to me, and I was able to mention not having had sight of the legal advice from the DSO and the Attorney General, like the majority of Members. It is difficult for my party colleague and me to see the merits of this accelerated legislation, so I will take some time, despite having spoken on the Bill and the amendments yesterday, because this, for us, is important legislation.

I, along with others, have asked why the Executive are intent on pushing the legislation through at this time and asked whether consideration has been given to what this means for the powers of the Executive. Certainly, there is still no clarification of the timing issues and no reason given why we must have the legislation for the summer. The issue has been continually raised, and I will continue to ask, like Mr Wells and Mr Beattie, "What is the rush?".

We are told that the Bill is necessary to clarify the circumstances in which a Minister is required to refer a matter to the Executive Committee where that matter may be cross-cutting, significant or controversial. We are also told that it is about planning. Now, we are also told that it is about getting clarity, of which I see none here. Who decides what is cross-cutting, significant or controversial? Will that be set and clarified? Is there an appeal mechanism? What, in this case, is "more than incidental"? What is an "interest"? How does this relate, for example, to climate commitments and our environment? Would an impact on climate and the environment be considered a cross-cutting matter requiring a decision to be taken by the Executive rather than one Minister? Planning decisions that have significant climate impact would naturally cut across many departmental interests and across their statutory duties, such as the Agriculture, Environment and Rural Affairs Committee and Minister, and the Economy, Finance, Infrastructure and Health Departments. One can make the argument that all planning decisions on our built environment can have climate impacts. Where does that lead to in the context of the Bill? What about the Aarhus convention?

On 6 July, we were told that a number of significant planning decisions are expected during the remainder of this year that could lead to significant investment and employment opportunities that are being deferred or lost because of the Bill not being enacted, but is there any information on what they are? Do they actually lead to employment opportunities, which is how this has been sold to us, and for whom? The Bill is being proposed as necessary to help government to function quicker and more efficiently. However, without an agreed Programme for Government, all potentially controversial decisions will still have to go to the Executive for approval. What if one of those controversial decisions is on a planning matter? Would it still be within the remit of the Minister for Infrastructure to take that decision on their own? That was famously and controversially invoked five years ago over the Belfast metropolitan area plan (BMAP), yet that planning policy is still waiting for Executive approval and is now out of date.

The process is here yet again. Accelerated passage has been sought for legislation that has had limited scrutiny and no consultation. That has been a recurring pattern over the past few months with regard to mostly coronavirus-related legislation. Now, we are told that, if it is not resolved quickly, that could have important consequences for the economy and, particularly, the pressing need to promote investment in our infrastructure. We are told that the Committee agreed the need for accelerated passage in part because of the current COVID-19 pandemic. If that is so and the Bill is that important for investment in our infrastructure, why was it not brought forward as soon as the Executive were reformed earlier this year? Why is it being brought forward now, during what is supposed to be recess, and we are here attempting to pass the Bill with no time for scrutiny?

On the surface, the Bill is about planning decisions. It has been stated that it stems from the Buick judgement on the incinerator. However, could the passage of the legislation open up unintended consequences? Has that been considered? As I said, when Mr Stalford was kind enough to give way to me, we have no information. I cannot make a judgement on that because I have not seen the legal advice.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

As a former Minister, I accept what Mr Stalford has said: Ministers do not normally release the legal advice that they have been given. However, does the Member accept that not only have we not been given the legal advice but we have not seen the wording of the ministerial code or many of the definitions that are crucial to the Bill's implementation? We are being asked to vote for the Bill blind, and the important bits will come along afterwards. That could create chaos. Again, surely, that is an argument for a slight delay.

Photo of Rachel Woods Rachel Woods Green

I thank the Member for his intervention. I accept that we do not have the legal advice, as he already knows, and that the code is crucial. It seems to be a case of putting the cart before the horse. I am sure that the Member would agree.

Does it deepen the silo mentality and silo decision-making by Ministers and their Departments? Many Members commented at Second Stage on the need for quick decisions to be made on planning applications that are in the system and those currently on the Minister's desk. However, are quick decisions the best decisions, especially when it comes to the planning system and developments of the scale, size and impact that we are discussing?

Photo of Gerry Carroll Gerry Carroll People Before Profit Alliance

I am sure that the Member shares the concerns that I and others have that the planning process often excludes people and ignores their voices.

Photo of Rachel Woods Rachel Woods Green

I thank the Member for his intervention. I absolutely share those concerns about the planning process. There are too many barriers for people, not enough consultation and not the right sort of consultation. Certainly, my party would push for equal rights of appeal in the planning process.

I will continue. The Bill is not actually about the planning process. We have a lot to do on that. Yes, we have experienced long waits for planning applications through the system. Mr Muir has outlined some specifics that are currently with the Minister for Infrastructure. Most Members will have experience of other issues with the Planning Service, of which there are many. However, the Bill will not change that. Mr Wells is correct. It is probably the first time that I have agreed with him in the Chamber. What major planning applications will be made in the next few weeks that could not wait until after the summer recess? Are the Executive telling us that hugely important planning applications are waiting to be signed off by the current Minister for Infrastructure that cannot be done without the legislation?

Photo of Christopher Stalford Christopher Stalford DUP

I appreciate the Member's giving way. In yesterday's debate, Mr Wells referenced the Casement Park development. I am sure that the Member would agree that what happened in that case was not that a ministerial decision was made but that local residents, in conjunction with their Assembly Member, campaigned and used the planning system to prevent a bad application going ahead? Therefore, the suggestion that a Minister could simply impose such a decision is not valid.

Photo of Rachel Woods Rachel Woods Green

I thank the Member for his intervention. Mr Wells can reference whatever he wants, as we know, and has already done so. I do not have the specifics on Casement Park, even if it is part of the elusive list that is on the Minister's desk.

Just to reiterate, if it was so important for all these long-standing applications to be progressed and for the legislation to be passed, why was it not one of the first pieces of legislation brought by the Executive in February? Why was it not in New Decade, New Approach? I see no reference to it there.

The role of the House is to scrutinise legislation and take decisions that need to be taken throughout these so-called unprecedented times. We have been denied our full scrutiny role through the use of accelerated passage. Now, some legislation needed to be enacted quickly over the past few months. However, I do not see the urgency of this Bill being needed in the same way as the Private Tenancies (Coronavirus Modifications) Act was needed to ensure that people were not evicted during the COVID-19 pandemic and lockdown. That was an immediate and very real threat faced by many people here as we implemented the health protection regulations. This has, again, been presented as a technical Bill that is only about planning issues, but —.

Photo of Steve Aiken Steve Aiken UUP 2:45 pm, 28th July 2020

I thank the Member for giving way. As the debate has gone on, one of the key things that we have seen is that it is about the planning process. The planning process needs to be —.

Photo of Roy Beggs Roy Beggs UUP

I ask the Member to address the Chair.

Photo of Steve Aiken Steve Aiken UUP

Sorry. My apologies. The planning process is the problem. It is not about giving ministerial authority for it; it is about the planning process. Why are we introducing bad legislation that will not even deal with the problem?

Photo of Rachel Woods Rachel Woods Green

I thank the Member for his intervention, and I agree that the planning process does need to be completely reformed. I look forward to any engagement on that and any input that I can make to that.

Again, the legislation has been posed as being about planning issues, but, in my opinion, it opens up a very big can of worms down the line that we might not be seeing now.

The Bill will change the Northern Ireland Act, yet we have little detail on what the consequences of it might be, apart from it being painted as a great opportunity for future employment, which is highly questionable and raises more than a red flag. Is that it? What else does it do? Through the Bill, if the Executive have reduced cross-cutting to mean only when there is a significant impact on another Department's statutory responsibility, what does that mean for previous legal obligations to work together, such as on the Children's Services Co-operation Act? What impact at all, outside planning, has been looked at and adequately tested legally? Have unforeseen circumstances been correctly thought out?

As I stated yesterday when speaking on the amendments, we should be encouraging better collective and collaborative working, not giving Departments cover to plough ahead with working in silos. 'New Decade, New Approach' stated:

"parties are committed to working together ... This will reflect new ways of working that ensure the Executive is transparently and collectively accountable to the Assembly and to citizens."

However, for me, that is not what this legislation is an example of. This is bad government, and bad policy will flow from it. We have had no time to consider the full implications that this might have. It is supposedly to prevent the Executive from becoming de facto a decision-making body for planning applications, so why was the entire Bill not limited to planning. This is bigger than it has been made out to be, and we need time to properly consider it. There is still no justification for accelerated passage.

The Green Party does not support the Bill. There are too many questions and far too few answers.

Photo of Gerry Carroll Gerry Carroll People Before Profit Alliance

I am not going to repeat the many concerns that I have raised repeatedly about the Bill. However, at Final Stage, it has to be stated that it is very concerning that not only is the Bill being proposed but it was debated at breakneck speed and is likely to be passed. The junior Minister stated, or certainly indicated, that controversial planning decisions will still be heard at the Executive Committee, and, much like my colleague Miss Rachel Woods, I do not believe that this question has been answered: who determines what is controversial and therefore properly discussed by the Executive?

Since yesterday, I and many other Members, I assume, received a lot of emails from groups and individuals — some have been referred to already — who have concerns about this Bill. It is notable for two reasons. First, so many people are raising serious concerns with their MLAs about the environment, and the skipping over of an element of the scrutiny process has also raised concerns about the Bill. Secondly, that so many people have contacted me before the Final Stage of a Bill is no accident. To me, that indicates that the public —.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Jim Wells Jim Wells DUP

Does the Member accept that, in many of those emails, the Aarhus convention was cited, and yet, in none of their contributions has Mr Lyons or Mr Stalford actually sought to deal with that issue? Are we in contravention of the Aarhus convention by doing what we are about to do? I would be very interested to hear whether Mr Kearney or Mr Lyons will answer that fundamental point at the end of this debate.

Photo of Gerry Carroll Gerry Carroll People Before Profit Alliance

I thank the Member for his intervention. They did. I do not claim to be an expert on the convention, to be frank, but it was raised with me, and the question needs to be asked: are we in breach of that convention if we pass the Bill? Many people raised that concern, and it needs to be directly answered by the junior Minister.

I refer back to my point before the intervention. The fact that so many people contacted MLAs the day before the Final Stage of the Bill, indicates to me that most of the public did not understand the content or the ramifications of the Bill. Even some MLAs have stated honestly that they did not understand the full ramifications of the Bill, and fair play to them for being honest. There are serious concerns, and the fact that people are raising so many the day before Final Stage should be a warning sign to MLAs.

We heard from Pat Sheehan about the economy needing to get going. In abstract, that sounds correct, and, in abstract, there is no problem with it, but you cannot rip out an important aspect of accountability when decisions are made by Ministers. We have to emphasise the fact that there are fundamental problems with planning, and some have been referred to already.

The main problem with planning is that people are excluded from the process time and time again. Objections are often ignored or not addressed properly, and the Bill does nothing to deal with those issues. Residents are often ignored. Casement Park residents for one. Environmental campaigners are often ignored and dismissed as well, and the Bill compounds that problem and does nothing to address it.

What I am hearing from some in this debate is make building decisions, build things, and if there are concerns, so be it, or, best case scenario, we will deal with them after. That is not good enough for making decisions around planning or anything else. Somebody once said, "Never waste a good crisis". It seems that Stormont has not wasted the opportunity to use a health pandemic to remove an important aspect of scrutiny when it comes to big decisions. For those reasons, I oppose the Bill.

Photo of Roy Beggs Roy Beggs UUP

I call on the junior Minister, Declan Kearney, to conclude the Final Stage of the Bill.

Photo of Declan Kearney Declan Kearney Sinn Féin

I acknowledge and thank the Assembly for its willingness to consider the Bill by accelerated passage. It is certainly not the preference of the joint heads of government to progress legislation in this way. However, due to the urgency of the need for decisions on planning applications in particular, it has been necessary to bring the Bill forward in a much faster time than would be ideal or desirable. Even in that short timescale, a number of important issues have been debated, and Members have been given the opportunity to voice both concern and support.

This final debate will bring to a close the Assembly's consideration of the Bill, which remains unamended following yesterday's proceedings. In so doing, it will help to enable the appropriate decision-making by the Minister for Infrastructure on planning applications that, as others have pointed out, will aid our economic recovery from the midst of the health emergency caused by —.

Photo of Declan Kearney Declan Kearney Sinn Féin

If you just let me finish my sentence. It will aid our economic recovery from the midst of the health emergency caused by COVID-19.

Photo of Steve Aiken Steve Aiken UUP

I thank the junior Minister for giving way. He has alluded to planning decisions that are in the process of coming through. Many Members have asked for guidance from either him or the other junior Minister on what some of those planning decisions may be. Will he give us some information on that, which may help us to make up our minds around the debate?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for that intervention. I will take it at face value that it was a genuine question, and I was intending to revisit those issues as I respond to his intervention and those of other Members who have spoken during the debate.

I thank all Members who have taken the opportunity to speak. Gabhaim buíochas leis na Comhaltaí ar fad a ghlac páirt sa díospóireacht seo. I am grateful to you all, regardless of what position you took in relation to the issue, for your contribution. A Leas-Cheann Comhairle, déanfaidh mé léargas ar an méid a dúirt Comhaltaí. I will take this opportunity to briefly address a number of comments that were made by Members during the debate.

Christopher Stalford commenced the debate and stated that the legislation that has been brought before the House is consistent with the St Andrews Agreement. He affirmed the legal opinion that has been received. I agree with you that Members are entitled to challenge and critique; that is the challenge function of the Assembly. I also agree that the legislation provides clarity and has the potential — I believe that it will be seized as potential — to increase collaboration in our five-party, power-sharing Executive. I would go further. The legislation will be enabling in that respect, and if all five parties who have seats at the Executive table — most of them are represented in the Chamber today — take that opportunity in a positive, constructive way, the legislation can assist in that process. Mr Stalford also observed that all the relevant arguments have been made and that, in his view, scrutiny has been achieved.

Pat Sheehan spoke next. He began by highlighting the consequential legal hazards that were created as a result of the Buick ruling. In his view, the Bill recalibrates the legislation, and I agree with him in that respect. However, as many other Members on both sides of the debate said today, particularly Mr Beattie, there are limitations to accelerated passage. He noted the limitations of that. In the circumstances that we face, it is a necessary position to adopt.

Photo of Jim Wells Jim Wells DUP

Will the honourable Member give way?

Photo of Jim Wells Jim Wells DUP

Does the honourable Member accept the points made by Mr Carroll that, for hundreds of community groups —.

Photo of Roy Beggs Roy Beggs UUP

Order, I ask the Member again to ensure that he stands beside a microphone.

Photo of Jim Wells Jim Wells DUP

Sorry, Mr Deputy Speaker. I keep making the same fundamental error. Does the honourable Member accept the information given by Mr Carroll that, for hundreds of community groups throughout Northern Ireland, the first that they were aware of the legislation was when they turned on their TVs yesterday and heard the debate on it? They have been caught totally unawares and have had no opportunity whatsoever to have an input into this vital piece of legislation. How can he defend his premise that there has been adequate consultation?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for his intervention. The point that I made was that Mr Stalford had opined that we had subjected the legislation to substantive scrutiny, notwithstanding the fact that we are operating with a system of accelerated passage. I remind the Member that we are all representatives. We are all constituency MLAs and all have a duty, not only to be accountable to our constituents but to inform them. Given the fact that the legislation has been in the making for weeks, we have all, individually, collectively and as parties, had ample opportunity to apprise our constituents of the pending legislation.

Colin McGrath spoke next. He began by reminding us of the multifaceted nature of the emergency and the need for us to reboot our economy by finding stimulus measures, particularly large-scale capital infrastructure projects, which we hope will have the desired effect of creating much-needed and new employment as we move through the torrid times that we have been living through. He believes, as I indicated earlier, that the legislation will help the Executive to work better, but he emphasised the importance of action and of the Executive being seen to deliver for the benefit of wider society. On that basis, he indicated his willingness to support the Bill.

Doug Beattie spoke next. I want to affirm his opening remarks. He noted the quality of yesterday's debate, to which he made a very substantial contribution. He expressed offence at some of the comments that were made yesterday, which he felt were personalised. He suggested that the Bill was a carve-up between the two largest parties in our Assembly.

I know that Mr Beattie will accept my response in the fraternal matter in which it is intended, but I remind him that our power-sharing Executive and Government are made up of five parties of which his party is one. All Ministers supported the Bill as it proceeded through the Executive and all Ministers had sight of the advice that was provided to the Executive on how to deal with the issues that are required to be remedied.

He did however say that —.

Photo of Christopher Stalford Christopher Stalford DUP 3:00 pm, 28th July 2020

I appreciate the junior Minister giving way. Will he return to the comments that he has just made? In the debate yesterday, it was implied, if not stated directly, that one Minister in the Executive was not in agreement with the Bill. Is the junior Minister stating now that there was unanimity in the Executive about the Bill coming before the House?

Photo of Declan Kearney Declan Kearney Sinn Féin

Certainly, I can. With respect to the confidentiality of Executive business — I would not betray any such confidences — I have no record of any discord or rancour within the Executive relating to discussions on these matters.

Photo of Steve Aiken Steve Aiken UUP

This is important. We have already had discussions about the internal workings of the Northern Ireland Executive. We have already had discussions about privileged Executive information — legal information — that we do not have sight of. Are we in a situation whereby two parties are trying to use the situation to demonstrate that they will use the internal information of the Executive, which is supposed to be confidential, for this debate, when the conventions are that they must not do that? For clarity and the record: it is a mandatory coalition. It is not a normal democratic situation. The Ulster Unionist Party has a seat in the Northern Ireland Executive because of the Belfast Agreement. That is why we are there. That is why.

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for his intervention, and, on that point, we will depart. I am pleased to be a member of our power-sharing Government. My party is pleased to be sharing power with other parties. Clearly, the leader of the Ulster Unionist Party has some qualification, reservation or doubt about the issue of power-sharing and the logic for our having power-sharing and doing politics on a consociational basis. I hope that it does not telegraph an intention on behalf of his party in maintaining the collegiality of our power-sharing Government.

To return to Mr Beattie's comments, he said that, in his view, it is bad legislation. He expressed a concern that, if the Bill is passed, it will create a situation where the Executive and their business may become more combative. On that point, I seek to reassure him that with the commitment of all the Ministers and all five parties with seats at the Executive table, I believe that power-sharing works.

Making our power-sharing Government work is not so much about whether we pass the legislation or not — although I believe that it will have an enabling function — but about the will and the spirit that Executive members bring to the Executive table to try to map out a better future for our society. It is on that basis, on many occasions over recent months, that the Minister from the Ulster Unionist Party has stated that he appreciates the level of collegiality, support and assistance — from all other Executive Ministers, within and outside Executive meetings — that has been provided to him in his important work in leading the fightback against COVID-19.

Photo of Doug Beattie Doug Beattie UUP

I thank the Member for giving way, especially because he has given way quite a few times already.

I take at face value his belief that the legislation will keep that collegiate Executive, and I accept that in good faith. Our Executive have been doing a good job, but they have been underpinned by a ministerial code that is quite expansive. The cross-cutting issue is quite expansive in there. The junior Minister must agree that, when the Bill is passed, paragraph 2.4 will have to be changed to be less expansive, and its being less expansive, may lead to more conflict in the Executive. That is the point that I was trying to make.

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for his intervention and I thank him for taking what I have said at face value. I can reassure him and his party that it is my resolve and intent, and that of my party, to seek to continue to work in a collegiate way with other members of the Executive, including his party colleague, the Minister of Health.

I intended to address the ministerial code later in my remarks. Yes, there are matters pertaining to the ministerial code and, yes, the ministerial code will be required to be amended. The ministerial code cannot be amended until the legislation completes its passage. An example of how we will address the ministerial code and the required amendment, consequential to the passage of the legislation, relates, for example, to functions. We will need to amend the functions in the Executive to ensure that that is reflected in the statutory functions.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Declan Kearney Declan Kearney Sinn Féin

Just let me finish, please.

It is, in the context of this discussion and with regard to a Minister's adherence to the ministerial code, for Ministers to make their assessment of what is deemed controversial and significant. The First Minister and deputy First Minister will determine whether an issue is significant and they will retain, in the context of the legislation, the capacity and the prerogative to call matters in.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Declan Kearney Declan Kearney Sinn Féin

Yes, briefly, please.

Photo of Jim Wells Jim Wells DUP

The honourable Member for South Antrim, the junior Minister, should not be concerned about there being numerous interventions because this is such a crucial issue.

He made a couple of points. First, he said that the First Minister and deputy First Minister could make the decision but, of course, they would have to agree jointly to make the decision to call a matter in. They could not disagree on the issue. So, in other words, if one party decides that it is not appropriate to bring it in, it will not happen.

Secondly, he made a point that I found somewhat surprising. He said that it is essential that the legislation is passed — I presume that he means today — in order for there to be discussion on the ministerial code. What would be wrong in delaying the final implementation of this legislation to allow the revised ministerial code to be published, and also for the definitions, which are so important to this legislation, to be out for public consultation? Neither he nor Mr Lyons has answered that fact, and nobody has produced the mythical planning applications that have to be dealt with between now and October. Will he answer why it is inappropriate to have a short delay to allow more scrutiny of the legislation?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for that intervention. At no stage did I imply that I was concerned or frustrated about the number of interventions at all, I simply suggested that it might be helpful to be brief in order that I could finish making my remarks in response to Mr Beattie. However, he is absolutely right: there is a requirement for us to use every opportunity in the process of the legislation's passage to subject issues to the appropriate scrutiny and debate. This is an opportunity for additional scrutiny, and I absolutely agree with him on that point.

Returning to Doug Beattie, he and Steve Aiken raised the issue of timing and the fact that we are using accelerated passage, and, to that extent, this point refers back to one of the elements of the last intervention. I think that we have to set all of this into the context of the last period of months. Our power-sharing Executive was re-established in the second week of January, and we are now at the end of July. Within a matter of weeks, the new Executive, the new power-sharing Government, were engulfed with the scale of managing COVID-19. The consequence of that was that 'New Decade, New Approach' and all the provisions in that document, to which every party in the Chamber made a contribution, has effectively been placed on ice. We have not yet had the space to design a Programme for Government. That also has been effectively placed on ice. The existential catastrophe of COVID-19 has effectively absorbed the focus and the attention on a whole-of-government basis. I say that with respect to the fact that every Member elected to the Assembly, on the basis that they are constituency representatives, has also been absorbed with the scale of demand arising from COVID-19.

It has only been in recent weeks that, with the imminence of the transition period for Brexit coming to a conclusion — I refer back to a point made by Mr O'Toole — the Executive have managed to start to address the scale and complexity of issues relating to withdrawal from Europe; five months before the transition period concludes.

The Minister for Infrastructure brought this matter to the Executive a couple of months ago as an issue that she believed required attention for remedy. She made the point that it was essential that legal clarity was obtained and the Executive discussed that matter, and, in turn, the Executive commissioned the legal opinion that was required in order to try to position ourselves to have the clarity and the ability to address planning issues with the Minister for Infrastructure. As Mr Muir pointed out, there were 38 applications in her in tray, some of them obviously being of greater imminence and significance.

As I have said already and said previously, using accelerated passage is not the ideal way of doing government, but it is the mechanism that exists to assist government in trying to navigate and manoeuvre circumstances created as a result of unintended consequences, and, for that reason, accelerated passage was commended, with a view to ensuring that the legislative basis existed, and specifically to avoid a situation where planning issues would drift into next year.

That takes me to Mr Muir's contribution, during which he pointed out that almost 40 applications are sitting parked with the Department for Infrastructure at this point, along with so many other elements of government that we have not had the capacity or the ability to address as a result of everything that has impacted us over the last four to five months. Mr Muir pointed out that we cannot afford to wait any longer on this matter. He made the point, echoing what was said by earlier contributors, that this legislation goes back to pre-Buick and post-St Andrews Agreement. I agree with him that it strikes the correct balance between the role of Ministers and the collective and collegiate basis of how the Executive should do their business. I have already touched on this matter, but he raised the issue of the ministerial code, and I can assure him that, yes, it will be updated. However, on his question as to whether planning issues can proceed prior to the amendment of the ministerial code, the answer to that is no. The ministerial code must be adjusted in order for the planning issues to proceed.

When we factor in time frames and timescales to how we are trying to do our business here, there is a process that we are following

[Interruption.]

There is a process that we are following, which is an attempt to try to get things expedited but mindful of the point that there are a number of steps that need to be taken. The danger in not proceeding with accelerated passage is that the can is kicked up the road until later in the year and we are left with the prospect, in 2021, of only then having the ability to deal —.

Photo of Jim Wells Jim Wells DUP

Will the Member give way?

Photo of Declan Kearney Declan Kearney Sinn Féin

When I have finished my sentence, Mr Wells, if you do not mind.

Photo of Jim Wells Jim Wells DUP

It is a very long sentence.

Photo of Declan Kearney Declan Kearney Sinn Féin

If you keep interrupting me, Mr Wells, I will forget what sentence I am trying to articulate. Please.

We will end up with a situation, in 2021, where we have not advanced any of the planning issues that we hope to address.

Photo of Jim Wells Jim Wells DUP

The honourable Member has let the cat out of the bag. The Member has said that planning applications cannot be considered until the new ministerial code has been adopted. Therefore, there is no rush. Obviously, it will take significant time to devise, publish and consult on that, so there is no reason why we cannot have a delay in the passage of the Bill to enable adequate consultation and public debate on it and analysis of the various legal opinions. At the end of the day, pushing it through today will not facilitate any planning application because it has to run in tandem with the new ministerial code. Why can he not allow the issue to be discussed again in the first week of October?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member, once again, for his intervention, but he misses the point. The legislation must be passed and adopted in order for us then to make the necessary adjustments to the ministerial code. On the basis of making the adjustments to the ministerial code, when we have concluded that process, we are in a position to start to address a number of the planning issues coming through from the Department for Infrastructure.

Photo of Andrew Muir Andrew Muir Alliance

This place came back at the beginning of January this year. If the Bill is passed, the ministerial code will have to be updated, and that will then have to be passed. Some Members talk about delaying things and the passage of the legislation until October. Does the Minister agree that it would be a damning indictment of this place if, for the whole year of 2020, the likelihood was that not one regionally significant planning application would be passed?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for his intervention. He makes an entirely valid point, which is the point that I have been trying to make. I have attempted to respect the issues raised by Members in relation to timing and accelerated passage. Some have asked, "Why the rush?". The Member makes the point that, when the amendments are made to the ministerial code, they will be put to the Assembly for scrutiny and potential amendment, which further adds to the process that we are involved in to get us to the stage at which we are, in fact, on a fit-for-purpose basis, in a position to deal with a number of the planning issues that remain extant.

Matthew O'Toole expressed caveats about accelerated passage. I have already indicated that I agree that it is not the best and ideal way of doing business. He also raised a question about the Irish protocol and whether it, in turn, also carried cross-cutting implications. He asked whether the legislation would impinge on the collective decision-making process relative to the Irish protocol. I think that the Member has raised that point before and perhaps he has received a response to it. The Executive deal with Brexit in a collective format. All the issues relating to withdrawal are brought to the attention of all Ministers in the Executive. We deal with them on the basis that it is an issue that requires the collective focus of all Ministers. Notwithstanding differences in the Executive in relation to withdrawal or otherwise, Brexit or otherwise, the reality is that we are where we are. We have the Irish protocol that needs to be implemented. It has cross-cutting ramifications, and the Executive are focused on dealing with those discussions collectively.

Steve Aiken began by expressing his concern that the legislation is bad and has long-term consequences, in his view, on the basis that, if bad legislation is passed, there can be unforeseen circumstances with negative results. He expressed doubts about what changes to the ministerial code would entail. I have attempted to address that issue with regard to remarks made by other Members. I make the point again: we are not in a position to amend the ministerial code, which will require amendment, until we have changed the law. As I said a short while ago, however, our Assembly will have the ability to approve the amendments.

Photo of Doug Beattie Doug Beattie UUP

I thank the Minister for giving way. I guess that the ministerial code is becoming quite an important part of this. If you look at section 28A(3) of the Northern Ireland Act 1998, you will see that there is nothing in there that states that you have to wait for legislative change before you can amend the ministerial code. You can change the ministerial code now. You can put a draft before the Assembly to allow Members to see what it will look like. Doing that would add to the Bill. Can you see the concerns? The more we dig into this, the more that it smacks of there being more scrutiny required, if we are pulling out things like that.

Photo of Declan Kearney Declan Kearney Sinn Féin

Yes, I accept that the Member has his own specific concerns about the legislation. He has made that clear. You made fulsome contributions yesterday. You tabled your amendments. Regrettably, from your point of view, those amendments were not agreed, because they did not secure the majority required. You did not persuade Members that the amendments would be of benefit to the quality or the substance of the Bill.

Photo of Jim Wells Jim Wells DUP

I am sorry to be awkward, junior Minister, but we have homed in on an absolutely vital issue here. You have said and Mr Lyons has said that you cannot amend the ministerial code without passing the Bill. There is no legal advice and no law that says that you cannot amend the ministerial code, regardless of what you do with the Bill. What is also important to note, however, is that, if you amend the ministerial code, that has to be approved by the House. That will, obviously, not be done until the autumn. There may well be amendments. There will be several stages to that. The main rationale therefore for you rushing the Bill through now, which is to get planning applications, falls in its place, because you cannot do so without an amended ministerial code. That cannot be done until the autumn, so why can you not allow the Bill to be scrutinised further and bring it back at the stage that you are dealing with the ministerial code?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for his intervention. Again, he misses my point. We are attempting to create a situation in which we are in a position come the autumn and early winter to address the extant planning issues that have been congesting the Department for Infrastructure. Amendments to the ministerial code need to be brought to the Assembly for agreement. They must reflect the law, Mr Wells; otherwise, they will have no standing. You, in fact, are attempting to take the cart and put it before the horse.

Photo of Declan Kearney Declan Kearney Sinn Féin

No, Mr Wells. I want to continue with my response to Mr Aiken.

Mr Wells's intervention was on the very point on which I left off. The examples that will require to be addressed in the context of changes to the ministerial code relate, for example, to those statutory functions and specifically to the provision of the exemption of certain planning decisions from the cross-cutting issues affecting the Executive. Mr Aiken, echoing what Doug Beattie said, was emphatic about seeking further delay to the legislation. Like Mr Wells, he suggested that there was no valid basis for not allowing further delay.

Photo of Steve Aiken Steve Aiken UUP

The crux of the discussion so far has been about the ministerial code. If you have gone to the bother of rushing through this Bill via accelerated passage, there must be a draft ministerial code out there that you are expecting to come through. Can the Minister therefore publish that draft ministerial code so that all MLAs can have a look at it and decide where this needs to go? From what we have heard today, that is something that we at least need to see from the Executive.

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank Mr Aiken for his intervention. I have instanced two of the examples that will require amendment and will be subject to discussion and will need to brought to the Assembly for its assent. In the event that Members feel that there is a requirement for a more expansive amendment to the ministerial code, the opportunity will exist through scrutiny and debate in the Chamber for that to be done.

Jim Wells then spoke and conflated his concerns about the legislation with the potential for a Sinn Féin, SDLP or Alliance Minister to erect Irish-language signage without community support. Once again, he raised the haste of the Bill's passage. I absolutely respect his democratic right to do so.

Photo of Declan Kearney Declan Kearney Sinn Féin

Excuse me, Mr Wells. You have an awful habit of trying to make an intervention when I am halfway through a sentence.

I was trying to say that he once more raised his concern. as he has done throughout this debate and as he did yesterday, about the haste of the Bill's passage and expressed misgivings about the manner in which that is happening.

Photo of Jim Wells Jim Wells DUP

The Minister is articulate, but he uses long sentences, so it can be difficult at times to ascertain when he is about to finish a sentence. It is not my intention to disrupt his flow of thought, as it were.

He raised the point that I alluded to about a Minister wanting to inflict Irish-language road signs on a community without its support. That has happened already in South Down with the district council. Mr Stalford said that a solo run could not be done on that because it was also an issue for the Department for Communities. He did not answer adequately how exactly that was significant to the Department for Communities or any other Department or how in court it would stand up as being significant and how we could stop a Minister doing that. The Minister now has a good opportunity to explain how my concerns and those of many unionists in South Down can be assuaged and why that could not happen because of this legislation. I just do not see it, and nor do many other legal experts.

Photo of Christopher Stalford Christopher Stalford DUP

Before the Minister resumes, may I respond?

Photo of Christopher Stalford Christopher Stalford DUP

The Member referred to road signs and then to the experience of his constituents. He knows that he is comparing apples with oranges. He is referring to the corporate marketing used by the council. That is a council decision. They are not the directional road signs. The sign that points people to Kilkeel is not in two languages. The Member knows that, and he is conflating one with the other.

Photo of Jim Wells Jim Wells DUP

That does not answer my point.

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank both Members for their interventions. Go díreach chun seo a rá mar Ghaeilgeoir agus mar Ghael leat, ionas go bhfuilimid ar an aon leathanach amháin. Ní ghlacaimse ar chor ar bith gur cheart go gcuirfí suas comharthaí sráide ná comharthaí bóithre in áit ar bith nuair nach bhfuil an pobail áitiúil toilteanach glacadh leis na comharthaí sin. Go díreach chun sin a rá leat. I will briefly translate: as a Gaeilgeoir, for not one moment would I countenance the notion of erecting Irish-language signs or bilingual signage in locations where they would be against the will of the local community, so it is entirely fallacious for you to conflate your concerns about the Bill with the issue of Irish-language signage. It betrays more about the approach that you have brought to the debate than about any serious thought or consideration to ensuring that we have good legislation. In fact, you are not too bad yourself, Mr Wells, at making long-winded statements and filibustering. You made a fair good fist of filibustering your way through yesterday and, by the appearance of things, today.

The context of the legislation has been set out. You will also know, due to your concerns and criticisms about the use of accelerate passage, that the scheduling of the Bill is a function of the Assembly of which you are a Member. Characteristic of your approach to the debate was your suggestion that some members of the DUP preferred to speak to you instead of their party officers. People will make of that statement what they will, but it is absolutely immaterial to this discussion. You repeated the view that the Bill should be parked because you are persuaded by the legal opinion of some. Of some.

Of course, as has been said throughout today, yesterday and previously, everyone is entitled to their opinion, including lawyers. You have posed many questions, but, notably, you have not answered the question relating to the logic of the legislation in the absence of a Programme for Government, which, I explained earlier, was part of the context that led us to the invidious situation where we were absent the legislation that was required to ensure that we could, in fact, proceed with the planning issues that remain extant.

Rachel Woods spoke and, as she has done before, reiterated her concerns about accelerated passage; she did so in a very succinct and clear way. I agree that climate issues are, and can be, of a cross-cutting nature. The sentiment of that is reflected in New Decade, New Approach. For the first time, we are seeing a whole-of-government focus on the climate crisis that affects our society and our global village. She asked "why now?" for this legislation and not at an earlier stage. With the indulgence of Rachel Woods, I hope that she accepts that I have tried to address that. She raised the issue of the ministerial codes and amending it subsequent to the legislation being passed. As I explained for a number of Members, it is not possible to make amendments to the ministerial code unless and until the amendments are consistent with the nature of the law that they are designed to reflect.

Photo of Rachel Woods Rachel Woods Green

I thank the Minister for giving way. The junior Minister stated earlier that all parties in the Chamber had input to the 'New Decade, New Approach' document, which is incorrect. Not all parties were part of that.

To get back to the matter at hand and the comments made by Mr Beattie, Mr Wells and Mr Aiken, what is the basis or advice to the Executive stating that this legislation must be enacted before the ministerial code is amended? Given that no application can actually progress without this, what happens if the ministerial code is not changed in the way that is needed for further scrutiny of the House, given that a change in the code can be subject to amendment?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for the intervention and she is right, but, again, I made the point that the issue of amendment to the ministerial code will be required to be subject to scrutiny by the Assembly, and that provides Members with an opportunity to assess whether those amendments are, in fact, robust and effective or require further alteration.

Photo of Steve Aiken Steve Aiken UUP

Can the two junior Ministers assure the Assembly that, when this revision of the ministerial code comes forward, there will not be any form of accelerated passage on the discussions?

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for his intervention. I am sure that his own Minister, in our power-sharing Government and under the advice of his party leader, will ensure that those remarks are passed on to the Executive to be heard collectively.

Rachel Woods suggested that the legislation is not about planning and she criticised the planning process. I agree with her. I am on record as saying, in the Chamber and outside, that every aspect of our governmental process, including planning, which is so essential, needs to be further democratised and subject to greater levels of transparency and scrutiny. The point is to overlook the fact that the scrutiny process to which the Minister for Infrastructure will be subject, on any issues that he or she brings forward at any time in the future, including addressing the extant issues in their inbox.

I point the Member again to the context of recent months; that is not camouflage, that is reality. Everybody here has lived it, and it has put a cart and horse through our normal approach to good government and how we make decisions.

Photo of Declan Kearney Declan Kearney Sinn Féin

No, I will not, Mr Wells.

Miss Woods is right to emphasise the need for better and more collaborative working Even though her party is not a member of the Executive, it has a challenge function to perform in these institutions to ensure that that better, collaborative working is continuously maximised and achieved, and, to that extent, I draw a correlation to Mr Beattie's position, because, while we disagree, I absolutely affirm and agree with his right, whether as an individual MLA or on behalf of his party, to provide the challenge function in this debate. However, I agree —.

Photo of Declan Kearney Declan Kearney Sinn Féin

No, Mr Wells, I will not give way. I am trying to bring the debate to a conclusion. You have had a fair crack of the whip several times.

I disagree with the Member that this is going to incentivise —.

Photo of Jim Wells Jim Wells DUP

On a point of order.

Photo of Declan Kearney Declan Kearney Sinn Féin

That this is going to —.

Photo of Jim Wells Jim Wells DUP

On a point of order.

Photo of Declan Kearney Declan Kearney Sinn Féin

That this is going to incentivise silo working in the Executive.

Photo of Roy Beggs Roy Beggs UUP

Point of order, Mr Wells.

Photo of Jim Wells Jim Wells DUP

On a point of order, Mr Deputy Speaker. Throughout the debate, the Minister has failed to produce the advice that he has received that states that this legislation must be passed before the ministerial code can be amended. Will he produce that advice? It is an absolutely crucial aspect of the debate.

Photo of Roy Beggs Roy Beggs UUP

The Member ought to know that that was not a point of order.

Photo of Declan Kearney Declan Kearney Sinn Féin

I understand the Member's concerns about silo working. That is something that the Executive, on a collaborative basis, need to ensure does not happen. I believe that the legislation, if it is embraced in the correct spirit, will go some way to ensuring that we do not revert to silo working.

Gerry Carroll was the last Member to speak in the debate. He pointed out multiple concerns that had been raised with him over the past 24 hours about the imminence of final decision-making in relation to the legislation. He said that he does not believe that the Bill remedies the lack of transparency in our planning process. I have already made the point that we always need to do better in respect of scrutiny and transparency in planning issues — and much more. He suggested that the pandemic was being used to camouflage some sort of sleight of hand. I disagree with the Member on that. I do not see where he is coming from. We will agree to disagree politically, but, on this particular point, I just do not understand his logic. However, he does raise —.

Photo of Gerry Carroll Gerry Carroll People Before Profit Alliance

I appreciate that we disagree on that point, but I would like to ask the Minister whether he has any concerns that health decisions could be taken down the line that are not considered significant or controversial, but which could be, and that such decisions may not be discussed at the Executive Committee and that his party would not have the chance to disagree with those decisions, vote against them or challenge them. I am not privy to the inner workings of the Executive, but it is a concern that has been flagged with me.

Photo of Declan Kearney Declan Kearney Sinn Féin

I thank the Member for his intervention. I am content that the clarity that will be introduced on cross-cutting issues will provide the reassurance that I hope that the Member will be content with.

He also asked a question about the Aarhus convention, which requires consultation on a range of environmental matters. This Bill reaffirms the position of decision-making on planning pre-Buick.

I want to conclude by commending all Members for their contribution to the debate. I hope that my fellow Minister and I have done our best to allay concerns, provide additional information and persuade Members that this is the correct position to take. I appreciate the fraternal manner in which the debate has taken place. Mar gheall air sin, molaim-se an Bille don Tionól.

Photo of Jim Wells Jim Wells DUP

On a point of order, Mr Deputy Speaker. I believe that, unlike my last intervention, this actually is a point of order. Can you explain the ramifications of what is about to happen? Is it possible for the Bill to be put on hold and a final decision delayed until October? Are we putting ourselves on a trajectory that means that, if we go to a vote now, there is no way back and this Bill will become law? To put it another way, is it possible for the two junior Ministers to adopt a procedure that would enable us to come back to this in eight weeks' time?

Photo of Roy Beggs Roy Beggs UUP

The Member should be aware that, at the start of the debate, the motion was moved. Given that it was moved, we now face a decision, and Members have to take their decision accordingly. I am not aware of a procedure to stop a vote once a motion has been moved.

Question put.

Some Members:

Aye.

Some Members:

No.

Photo of Roy Beggs Roy Beggs UUP

Clear the Lobbies. The Question will be put again in three minutes. I remind Members that they should continue to uphold social-distancing measures and that those who have proxy voting arrangements in place should not come to the Chamber.

Before I put the Question again, I remind Members that it would be preferable if we could avoid a Division.

Question put a second time.

Some Members:

Aye.

Some Members:

No.

Photo of Roy Beggs Roy Beggs UUP 3:45 pm, 28th July 2020

Before the Assembly divides, I remind Members that, as per Standing Order 112, the Assembly has proxy voting arrangements in place. Members who have authorised another Member to vote on their behalf are not entitled to vote in person and should not enter the Lobbies. It is important that, during a Division, social distancing in the Chamber continues to be observed. In order to facilitate that, I ask the following: any Members in the Chamber who are not due to vote in person should consider leaving the Chamber until the Division has concluded. Those Members who wish to vote in the Lobbies on the opposite side of the Chamber to which they are sitting should leave the Chamber via the nearest door and enter the relevant Lobby via the Rotunda. Those remaining Members who are sitting closest to the Lobby doors should enter the Lobbies first. Any Member who has voted may then wish to leave the Chamber until the Division has concluded. Any Member who needs to vote in both Lobbies should not leave the Chamber.

I remind Members of the need to be patient at all times, to follow the instructions of the Lobby Clerks and to respect the need for social distancing.

The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 58; Noes 13

AYES

Ms Anderson, Dr Archibald, Ms Armstrong, Mr Blair, Mr Boylan, Ms S Bradley, Mr K Buchanan, Mrs Cameron, Mr Catney, Mr Dickson, Ms Dillon, Mrs Dodds, Ms Dolan, Mr Dunne, Mr Durkan, Ms Ennis, Ms Flynn, Mrs Foster, Mr Gildernew, Mr Givan, Ms Hargey, Mr Harvey, Ms Hunter, Mr Irwin, Mr Kearney, Ms C Kelly, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lynch, Mr Lyons, Mr Lyttle, Mr McAleer, Mr McCann, Mr McCrossan, Mr McGlone, Mr McGrath, Mr McGuigan, Mr McHugh, Ms McLaughlin, Mr McNulty, Ms Mallon, Mr Middleton, Mr Muir, Ms Mullan, Mr Murphy, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Mr Poots, Mr Robinson, Ms Rogan, Mr Sheehan, Ms Sheerin, Mr Stalford, Mr Weir

Tellers for the Ayes: Mr Harvey, Mr Sheehan

NOES

Dr Aiken, Mr Allen, Mr Allister, Ms Bailey, Mrs Barton, Mr Beattie, Mr Butler, Mr Carroll, Mr Chambers, Mr Nesbitt, Mr Stewart, Mr Wells, Miss Woods

Tellers for the Noes: Mr Carroll, Mr Wells

The following Members voted in both Lobbies and are therefore not counted in the result: Ms P Bradley, Mr T Buchanan, Mr Buckley, Ms Bunting, Mr Clarke, Mr Easton, Mr Frew, Mr Hilditch, Mr Humphrey, Miss McIlveen, Mr Storey

The following Members’ votes were cast by their notified proxy in this Division: Ms Armstrong voted for, Mr Blair, Mr Dickson, Mrs Long, Mr Lyttle and Mr Muir. Mr Beattie voted for Mr Allister. Mr K Buchanan voted for Mrs Cameron, Mrs Dodds, Mr Dunne, Mrs Foster, Mr Givan, Mr Harvey [Teller, Ayes], Mr Irwin, Mr Lyons, Mr Poots, Mr Robinson, Mr Stalford and Mr Weir. Mr Butler voted for Mr Nesbitt. Mr McGrath voted for Ms S Bradley, Mr Catney, Mr Durkan, Ms Hunter, Mrs D Kelly, Ms Mallon, Mr McCrossan, Mr McGlone, Ms McLaughlin, Mr McNulty and Mr O’Toole. Mr O’Dowd voted for Ms Anderson, Dr Archibald, Mr Boylan, Ms Dillon, Ms Dolan, Ms Ennis, Ms Flynn, Mr Gildernew, Ms Hargey, Mr Kearney, Ms C Kelly, Mr G Kelly, Ms Kimmins, Mr Lynch, Mr McAleer, Mr McCann, Mr McGuigan, Mr McHugh, Ms Mullan, Mr Murphy, Ms Ní Chuilín, Mrs O’Neill, Ms Rogan, Mr Sheehan [Teller, Ayes], and Ms Sheerin. Miss Woods voted for Ms Bailey.

Question accordingly agreed to. Resolved:

That the Executive Committee (Functions) Bill [NIA Bill 08/17-22] do now pass.

Photo of Roy Beggs Roy Beggs UUP

Before I put the Question on the Adjournment, I remind Members that it is anticipated that the next plenary sitting of the Assembly will be on Monday 7 September. The Business Committee will meet on Wednesday 2 September, after which the Order Paper will be issued. During recess, meetings of the Ad Hoc Committee on the COVID-19 Response may be scheduled. Should that occur, Members will be notified in advance in the usual way.

Adjourned at 4.07 pm.