Examination of Witness

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill – in a Public Bill Committee at 2:00 pm on 29th June 2021.

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Sir Jonathan Stephens gave evidence.

Photo of Sir David Amess Sir David Amess Conservative, Southend West 2:02 pm, 29th June 2021

We will now hear from Sir Jonathan Stephens, former permanent secretary at the Northern Ireland Office. Colleagues, we have until 2.30 pm. Sir Jonathan, I described you, but briefly please say something about yourself.

Sir Jonathan Stephens:

Certainly. I am Jonathan Stephens. I was permanent secretary of the Northern Ireland Office from 2014 until February 2020, having previously worked in the Northern Ireland Office over a number of years from the mid-1980s.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Thank you. Colleagues, it is over to you to start the questioning.

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

Sir Jonathan, it is very good to see you again. You were permanent secretary from 2014 to 2020, as we have heard, and that means you were at the heart of the Northern Ireland Office both before and during the period of the collapse of the Executive. In your view, how was the Northern Ireland civil service most hindered by the lack of ministerial accountability when the Executive was not functioning?Q33

Sir Jonathan Stephens:

Fundamentally, there were no Ministers available to give direction and take critical decisions. The Northern Ireland civil service was left in a wholly unprecedented situation, which I know from talking to many of them they found intensely challenging and was not at all what they sought. Civil servants are trained to work for and support the Government of the day and Ministers and provide their advice to Ministers, who take decisions that civil servants then implement. Our colleagues in the Northern Ireland civil service were left trying to maintain the machinery of Government and trying to provide public services in the absence of ministerial decisions, and they found that increasingly uncomfortable as time went on.

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

Q How far do you feel this Bill goes to safeguard Executive stability and provide the civil service with the accountability mechanisms they require? Given some of the discussions we have had to date, both in the case of encouraging the Executive to stay together and to stay in place, but also in the case where you might have a First and Deputy First Minister step down and caretaker Ministers, as they have been described, remaining in place, how far do you feel the Bill creates the clarity needed for them to be able to carry out their role?

Sir Jonathan Stephens:

I think it does a number of important things. First, it fills in what you might think of as a number of loopholes in the original design of the Northern Ireland Act 1998, which simply did not contemplate the sort of situation in which we found ourselves in 2016.

Secondly, and perhaps most importantly, it provides time and space for the Executive or for party leaders to resolve fundamental differences, if and when they arise. As you will know, the previous scheme provided only for periods of either seven or 14 days for the formation of the Executive and the appointment of the First Minister and the Deputy First Minister. We went through those early deadlines very quickly indeed in 2016. We were left in the unprecedented situation of having no means of restoring the Executive without fresh legislation at Westminster.

It is important to say that these changes provide a number of mechanisms that will help in the resolution of fundamental differences, if they arise again. They provide greater assurance for continuity of decision making, but, of course, nothing is perfect. I have always thought that if there is absolute determination to bring about the collapse of the institutions, or such a deep and fundamental breakdown in trust between the parties that they cannot be restored, then no amount of clever constitutional provisions will get over such a fundamental breakdown.

Photo of Colum Eastwood Colum Eastwood Social Democratic and Labour Party, Foyle

It is a pleasure to serve under your chairmanship, Sir David. It is good to see you, Jonathan. I spent many long hours over that three-year period in your company, and thankfully we got there in the end.Q

Do you think it is fair to say that the New Decade, New Approach agreement was largely imposed by the two Governments at a very opportune moment in the political process? The three largest parties had had a difficult election. We had a nurses’ strike and then the two Governments struck, and got Stormont back up and running again. That goes to the heart of your point that if we do not have political parties willing to work the system and work together, no clever constitutional construct can stop them collapsing it. Do you think there is more that we could have done as part of those discussions? I am particularly thinking about the way in which the First Minister and the Deputy First Minister are appointed.

Sir Jonathan Stephens:

I would not use the word “imposed” because, at the end of the day, it was the decision of all the main parties in Northern Ireland to re-form the Executive. Yes, it was on the basis of the proposals put forward in New Decade, New Approach, but each party was free to take its own decision on that. From my point of view, when the document was published there was no certainty as to how parties would react and whether it would provide a basis for forming the Executive. We very much hoped so, but there was no certainty.

It reflected extensive discussions, of which a number of people on the Committee will have close memories, over many years, but most recently over the period of months from the calling together of the most recent session of talks, following the tragic murder of Lyra McKee. Again, there was very strong input from the parties. Although the proposals were the proposals from the Governments, they reflected very considerably the input of the parties. They were our best judgment as to where agreement lay.

On the First and Deputy First Ministers, I am conscious that parties have a number of different views on that. There are a number of parties that think that the original arrangement under the Good Friday agreement for the election of the First and Deputy First Ministers on the basis of cross-community consent should not have been changed after the St Andrews agreement. Other parties who were critical of the St Andrews agreement formed and participated in devolved government on the basis of that.

The Good Friday agreement was now more than 20 years ago. It was designed with one situation and set of scenarios in mind. As ever, the world moves on and change comes. It is coming in Northern Ireland, and there will come a time when it will be right to look at some of the fundamental arrangements within that agreement and consider whether they still best serve the people of Northern Ireland and adequately reflect the current situation in Northern Ireland. However, that would be quite a major task to undertake, with possible renegotiation of key aspects of the agreement. It is not a task that, personally, I think is quite right for now.

Photo of Stephen Farry Stephen Farry Alliance, North Down

It is a pleasure to serve under your chairmanship, Sir David. A very warm welcome to you, Sir Jonathan. I will largely pick up on your answer to the questions posed by Colum Eastwood. You are one of the very rare officials with long experience of Northern Ireland over several different stints in office, so you have that wider perspective. You indicated that there might be a need to revise the rules around the institutions at some stage. Do you feel there is a danger of the Northern Ireland Office almost operating on a reactive basis after a problem has actually arisen and then trying to patch it up, amend it and move on for a few more years before going back to the next crisis? Is there not an argument for trying to be a little bit more proactive and anticipate where pressure points are likely to emerge, to assess how society is changing and to act accordingly? In that regard, should we look at some of the rules around the election of the First Minister and Deputy First Minister, particularly in the light of the democratic change that we are seeing in society?Q

Sir Jonathan Stephens:

In a sense, I agree with you, Mr Farry. I was indicating earlier that there had been significant change in Northern Ireland. At the time of the Good Friday agreement, the assumption was that there was a Unionist majority community, a substantial nationalist minority community and a relatively small but steady component who did not identify with the others. Since then, the situation has changed. It is more like two substantial minorities with a much larger, more significant and growing number of people who choose not to identify with either.

Over time, I think that will mean that a number of the arrangements need to be looked at again and examined. I am just conscious, having participated in a number of those discussions over the years, that that is not an easy task. It takes up a huge amount of political energy. Yes, there is a lot to be said for anticipating, rather than reacting to, crises, but Governments across the world, not least in Northern Ireland, have a number of crises right now to respond to. I simply suggest that right now does not seem to me to be a good time to undertake that significant and mammoth task, but I would be surprised if at some point in the next 10 years it is not on the agenda.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

Good afternoon, Jonathan. I will reflect on the question from the hon. Member for North Down. Of course, the Assembly and Executive Review Committee is the sort of place where you would ordinarily think these discussions at the moment should occur. Going to the NIO and expecting the Government to sort these issues out should be the last resort; it should be something that is foreseen and considered among parties.Q

I do not know whether you had the opportunity to hear the evidence session this morning. Some questions were raised about the lack of detail in the Bill as to what safeguards are in place if Ministers are in position and there is a difficulty in forming an Executive. You will know that the discussions during the negotiations focused on safeguards for issues that are significant, cross-cutting and controversial, which would ordinarily therefore go to the Executive, but with no Executive sitting, those decisions could not be made. It appears in one sense that there needs to be further detail in the Bill on what the pitfalls might be. One aspect that did not come out in the evidence this morning was the fact that Ministers normally operate after having gone through a process of reaching consensus on a programme for government. Any Minister without an Executive could therefore continue to bring forward decisions on that basis, and perhaps juxtapose that with an inability for Ministers to act and the difficulty that the Northern Ireland civil service found itself in during that three-year hiatus.

Sir Jonathan Stephens:

The fundamental position is that the Bill essentially provides for a form of caretaker Administration in the absence of the formation of a full Executive. Without an Executive Committee or an Executive meeting—there cannot be an Executive without a First and Deputy First Minister—as you say, Mr Robinson, decisions cannot be taken on issues that are cross-cutting, significant or controversial. That in itself will be a significant constraint. During the absence of Ministers, cases were brought before the courts arguing that decisions had been reached without the required authority, and the courts policed that quite robustly. No doubt they will police these provisions equally robustly.

Although there might not be an Executive Committee meeting in place, there is likely to be agreement on a programme for government, even if it was of the previous Administration. That will provide an overview, as it were, of the direction of the Government under which a caretaker Administration would be able to continue to operate. I think there are protections in place, but I continue to come back to the point that no system is perfect, and there should be no doubt that the absence of a properly functioning Executive for the periods of time that could be possible under the Bill would itself have serious consequences, but at least we would not be in a situation where there was no direction and no decision making at all.

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

It is a pleasure to serve under your chairmanship, Sir David. Sir Jonathan, thank you for joining us this afternoon. Given your experience from the negotiations, are you Q concerned that the scope of powers is not clearly defined in the Bill and an Executive could essentially limp on without any broad cross-community support, but still would be able to make significant decisions?

Sir Jonathan Stephens:

I think that is where the provisions in the Bill for the Secretary of State to call an election in the event that he judges that there is no longer broad cross-community support are critical. That underpins the whole basis of government in the Good Friday agreement, which is that Government should have broad cross-community support. If one ended up in a situation in which there were Ministers of only one party, that would be very unlikely indeed to command broad cross-community support, and you would expect the Secretary of State to step in. I think there are protections against that.

I have also identified the fact that if there is no Executive Committee meeting, because there is no First or Deputy First Minister, the ability of Ministers to take significant, controversial or cross-cutting decisions is heavily constrained. They cannot take such decisions, and the courts have already demonstrated their readiness to step in if they think that that boundary has been crossed. So this sets up a mechanism in which this is a caretaker Administration keeping the business of government and public services going, but unable to take it in new, strategic directions. So I think there are protections in place.

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

Q On that point, Sir Jonathan, the Bill provides for up to 24 weeks for the appointment of new Ministers before the obligation to call an Assembly election is triggered. What assessment do you make of the potential effectiveness of those time provisions?

Sir Jonathan Stephens:

I think they are likely to be more effective than the existing provisions, which are seven days or 14 days respectively. As I indicated, where a fundamental disagreement arose, that was almost inadequate time even to get discussions going. Once that deadline was busted, there was nothing to fall back on. Of course, you may encounter a disagreement that is so fundamental that whatever amount of time you provide for it is inadequate, but the negotiations on the Stormont House agreement and the fresh start agreement both lasted roughly 12 to 16 weeks. I think that sort of period of time provides a reasonable window in which to seek to resolve fundamental disagreements, but at the end of the day it depends upon a willingness among the parties to get together to discuss, seek to understand and resolve those differences. More time helps, but it is not the complete answer

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

Q Finally, what statutory provisions exist that you are aware of to prevent the misuse of the powers available to caretaker Ministers?

Sir Jonathan Stephens:

The fundamental protection is the absence of an Executive if there is not a First Minister or a Deputy First Minister, meaning that significant, controversial, cross-cutting decisions cannot be taken by Ministers, as well as the readiness, as demonstrated already, of the courts to step in and rule that decisions are ultra vires—not valid—if they break that boundary.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

If there are no other questions from colleagues, let me bring the Minister in again.

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

Q Thank you very much, Sir David, for your chairmanship. Sir Jonathan, you were permanent secretary at a time when, because of the political situation and the absence of an Executive, serious thought had to be given to the possibility of direct rule. Do you agree that we are in a much better situation to be legislating for a deal, rather than agreeing and implementing policy directly for Northern Ireland, and could you expand for the Committee on some of the risks and challenges that we would have faced had we not been able to get the NDNA deal in place?

Sir Jonathan Stephens:

Without the deal in place, although of course at the time we had no awareness that covid was just around the corner, it is absolutely inconceivable that Northern Ireland civil servants without ministerial direction could have responded to the covid crisis. I think it would have driven direct rule inevitably. Much of my career in the Northern Ireland Office has been about trying to find the basis on which devolution can be restored and leaders from within Northern Ireland can take decisions for Northern Ireland. I believe that that is a far better system of government for Northern Ireland, allowing Northern Ireland’s unique interests and concerns to be reflected by its own politicians and leaders.

Of course, over many years in the Northern Ireland Office I experienced direct rule, and direct rule Ministers from Westminster made the best of trying to take decisions for Northern Ireland, but I know they felt deeply uncomfortable at times taking decisions for a part of the UK from which they were not elected and where they did not reflect the local community. I do not think that I ever saw a Minister who did not believe that local politicians should be taking decisions for local matters in Northern Ireland.

The concern always was that, once direct rule were reinstituted, if it ever were, it would be enormously difficult and time-consuming to restore agreed institutions again. That would mean that there were real questions about the nature of Northern Ireland, how its society was reflected in its Government, and I think that would also be very bad for Northern Ireland. Although we did not know it at the time, it was incredibly fortunate timing that the agreement was reached just in time before covid hit, and meant that Northern Ireland was trying to respond to that crisis but with its own leaders and politicians, conscious of its own challenges and unique characteristics.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Sir Jonathan, were there any final remarks you wanted to make before we finish your evidence session and wish everyone well?

Sir Jonathan Stephens:

No, thank you.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Thank you for our time; we are very grateful and it will help with our later deliberations. There will now be a 30-second break while we test the sound.

The Committee deliberated in private.