Examination of Witness

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill – in a Public Bill Committee at 9:28 am on 29th June 2021.

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Lilah Howson-Smith gave evidence.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton 10:30 am, 29th June 2021

Q We will now hear oral evidence from Lilah Howson-Smith, a former special adviser at the Northern Ireland Office. For this session, we have until 11.25 am.

Could you introduce yourself, please?

Lilah Howson-Smith:

Hi. Good morning. My name is Lilah Howson-Smith. I was a special adviser in the Northern Ireland Office under Julian Smith, when he was Northern Ireland Secretary.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

I will go to the Minister to ask the first questions.

Photo of Robin Walker Robin Walker The Parliamentary Under-Secretary of State for Scotland, The Minister of State, Northern Ireland Office

Q Thank you, Mr Stringer, and it is good to see you again, Lilah. You were working as a special adviser to the Secretary of State for Northern Ireland during the period when the Executive was not functioning, from 2019 to 2020. Can you give us your views on the real-life impact that that situation had on Northern Ireland’s citizens, and the importance of putting in place some mechanisms to make sure that it does not happen again?

Lilah Howson-Smith:

Sure. I think that the most obvious impact was on public services delivery. You obviously had a situation where the civil service could authorise certain decisions, up to quite a low threshold, and authorise certain amounts of spending, but you basically had a situation where no new policy or structures could be pursued.

The way in which that impacted public services was basically most explicitly on the health service, with incredibly long waiting lists, but the impact also extended into education. We visited a number of schools, both at primary and secondary level, where there was just a sense of overall stasis. I think there was also a kind of frustration more widely about infrastructure issues, even extending to Belfast City Council, who we spoke to; they talked about issues around sewage that just had not been dealt with, because of the absence of Ministers.

So, I think it affected all aspects of life. It was very much the first thing that came up in all our meetings with civil society, business and border organisations throughout our time in Northern Ireland, before power sharing was restored.

Photo of Robin Walker Robin Walker The Parliamentary Under-Secretary of State for Scotland, The Minister of State, Northern Ireland Office

Q On Second Reading, Julian Smith stated that the Bill provides for a number of important and practical measures. What do you think are the practical benefits of this legislation?

Lilah Howson-Smith:

Particularly with regard to the measures around elections and the sustainability measures, as they were characterised in the original agreement, I think they give the Executive and Ministers space and time to resolve various issues around power sharing, in advance of any need to bring forward an election.

As it is, at the current moment in time there is very little capacity for Ministers to work through even quite basic issues, in terms of policy programmes, in advance of an obligation falling on the Secretary of State to bring forward an election. So, I think the intention was specifically to give greater space and time for them to resolve those policy issues and personnel issues, to build some relationships in advance of an immediate decision by the Secretary of State to hold an election.

I also think that the measures around the petition of concern were specifically about building greater trust between the parties, in terms of the mechanics of policy making, as some of the other witnesses have spoken about. There was obviously a sense in which the petition of concern had been used as a veto or blocking measure by particular parties. While the new measures are maybe not as extensive as some of the parties wanted during the negotiations, the intention clearly is that the petition of concern once again becomes a measure of last resort, restored to its original purpose as it was conceived in the Good Friday agreement, rather than being a kind of blocking mechanism on moral or social issues, or even party political issues, such as welfare.

Photo of Robin Walker Robin Walker The Parliamentary Under-Secretary of State for Scotland, The Minister of State, Northern Ireland Office

Q You just referred to the negotiations; obviously, they were pretty intense and, as you say, some of the parties pushed for things that they did not necessarily get. Was the issue of the border executive vetoes and other issues discussed in those negotiations? Did you have a clear view as to whether it would be acceptable to the parties to change that?

Lilah Howson-Smith:

Of the measures introduced as part of the Bill, the petition of concern measures were the most discussed in the talks. I do not think they were necessarily controversial, but there was a disagreement or divergence of views between the parties on how far they wanted to go on that. It was not necessarily about any single party having a strong view on how they conceived the petition of concern being used in future, but there was a broader acknowledgment that the petition of concern had been used too much in the past, there was a need to reduce its use and therefore a need to signal that as part of the agreement.

Where the agreement landed and where the Bill is representative of that agreement is roughly where there was the most agreement between the parties, in that it could not be used on Second Reading votes and on standards motions, and that there is now a 14-day cooling-off period. That was all about basically making parties and individual MLAs consider whether it was an appropriate use of the petition of concern and whether it was the best way to do policy making, in terms of building credibility and trust between the parties.

Photo of Robin Walker Robin Walker The Parliamentary Under-Secretary of State for Scotland, The Minister of State, Northern Ireland Office

Q The Government have been criticised by the Opposition for treating Northern Ireland as an afterthought. Would you agree with that claim? Does it reflect your experience in Government?

Lilah Howson-Smith:

Not at all. Definitely Julian and I worked alongside all the officials in the Northern Ireland Office—worked extremely hard to restore the institutions. I frequently reflect that, in the absence of an Executive, the covid pandemic and the public health crisis that has happened since is unthinkable. It is really difficult to think how the civil service in Northern Ireland would have been able to handle that with the limited powers it had at that time. That is not a reflection on their abilities, but the absence of ministerial decision making would have made it unthinkable. The fact that those institutions were restored in advance of the covid pandemic represents the fact that the Government took that extremely seriously, and that went right up to the Prime Minister.

Photo of Robin Walker Robin Walker The Parliamentary Under-Secretary of State for Scotland, The Minister of State, Northern Ireland Office

Q Finally, as I want to give Members the opportunity to ask questions, you previously worked in the Chief Whip’s Office before coming to the Northern Ireland Office. What do you think are the benefits to introducing this legislation on non-emergency timings? Can you recall when we last had non-emergency legislation for Northern Ireland?

Lilah Howson-Smith:

It is exactly the point that you make in your question. We have had to rush bits of Northern Ireland-related legislation through, in part because of the absence of power sharing. You have the Executive formation legislation, which was always done on an incredibly tight timescale. I think rightly, some of the Northern Ireland parties objected to that, on the basis that perhaps there was not adequate scrutiny. More recent bits of legislation around victims’ payments and abortion, which we were involved in implementing, were also incredible difficult to implement because there was not broad consensus or buy-in from the other parties through a longer-term legislative process.

There is definitely an advantage to taking this bit of legislation through in slightly slower time, so that we can have discussions like this where we are able to discuss where things are missing or not clear, or can be clarified through implementation.

Photo of Alex Davies-Jones Alex Davies-Jones Shadow Minister (Northern Ireland)

Q Lilah, from your experience of the negotiations, was it envisaged that there would be ambiguity on what constituted sufficient cross-community representation in a caretaker Executive?

Lilah Howson-Smith:

I understand that perhaps there is not total clarity about what that means. I think the point was that it was supposed to be agreed by the Executive once the legislation was taken forward by Westminster. The fact that the legislation is being taken forward by Westminster reflects the fact that amendments have to be made to the Northern Ireland Act 1998 and that this part falls within a reserved area, rather than the fact that there will not be an active process, I assume, with the Executive to discuss what this means in reality. I think there was tacit or implicit agreement between all the parties that there would clearly need to be clarity around that, and that there would be checks and balances on the fact that Ministers obviously would not be able to take decisions in a caretaker capacity that went beyond the normal remit of perhaps the types of decision that might be taken during a purdah period.

Photo of Alex Davies-Jones Alex Davies-Jones Shadow Minister (Northern Ireland)

Q Are you concerned that the scope of powers is not clearly defined, allowing for an Executive, for example, to limp on without broad cross-community support but still be able to make significant decisions?

Howson-Smith:

The intention was never that they would be able to make—yes, it depends how you define significant decisions, but the intention was always that there would be sufficient checks either within the Executive or by the Secretary of State that would mean that there was not the kind of significant decisions that would have broader implications for the cross-community nature of those decisions. I am concerned that you have characterised it as limping on. I take your point, but the reality is that it was supposed to just provide that bit of additional flexibility to the Ministers and in forming the Executive, where those decisions have been difficult to make or have not happened because the time periods are so short and perhaps it was not in everyone’s political interest to form an Executive within that short period of time. So yes, obviously, there is a flip side to that, but clearly there is also opportunity to avoid the type of situation that we fell into in 2017, where an Executive just is not formed for a long period of time because there is an election and then there has to be a series of talks processes to get the Executive and the Assembly back up and running.

Photo of Alex Davies-Jones Alex Davies-Jones Shadow Minister (Northern Ireland)

Q Is there anything, from your experience, that did not make the cut in NDNA that you think would have been valuable in terms of the sustainability of the Executive?

Howson-Smith:

In terms of the petition of concern, I do have some worries that perhaps we did not necessarily go far enough in ensuring that, for example, petitions of concern are not tabled on Bills that are allowing the Northern Ireland Executive to take border legislation that is compliant with human rights. For example, petitions of concern were previously used—or were likely to be used—on issues around abortion and that was a concern for me, that perhaps those measures did not give adequate protection. On that specific issue, Westminster is taking forward legislation and we are now in a process of implementation. However, there were some suggestions about potentially having more oversight from human rights bodies in that petition of concern process. I do not think that that necessarily would have been a bad thing. I think that would be quite valuable, given the previous types of things the petition of concern has been used for. However, I hopefully think that the changes that are in there will make parties and MLAs think twice about using petitions of concern in that way again.

Photo of Alex Davies-Jones Alex Davies-Jones Shadow Minister (Northern Ireland)

Q Finally, as I also want to give other Members the opportunity to ask questions, what statutory provisions currently exist to prevent the misuse of powers available to caretaker Ministers?

Howson-Smith:

As far as I understand it, there are no statutory limitations.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

If there are no further questions from Members, I thank the witness for that interesting and valuable contribution.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

Adjourned till this day at Two o’clock.