Clause 1 - Period for making Ministerial appointments

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill – in a Public Bill Committee at 9:25 am on 6th July 2021.

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Question proposed, That the clause stand part of the Bill.

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

It is a pleasure to serve under your chairmanship, Mr Stringer. If I may, I will speak to the first three clauses of the Bill, which do not have any amendments on the amendment paper.

Clause 1 amends the Northern Ireland Act 1998 to extend the period of time available to appoint a First Minister and Deputy First Minister after the resignation of either, or after the first meeting of the Northern Ireland Assembly following an Assembly election. Currently, the period for ministerial appointments is only 14 days from the first meeting of the Assembly after an election and seven days from the First Minister or Deputy First Minister ceasing to hold office. The Bill will extend the period for filling ministerial offices to six weeks, which is automatically renewed—unless the Assembly resolves otherwise on a cross-community basis—a maximum of three times, up to a total of 24 weeks. By extending these periods, the Bill will allow more time for discussions between the parties and for the Secretary of State to facilitate a resolution before they come under an election duty. It also allows Northern Ireland Ministers to remain in post, after an election, until the end of the period for appointing new Ministers. This change will allow greater continuity in decision making.

Under clause 2, Ministers will no longer cease to hold office after the election of a new Assembly. It provides for up to a maximum of 24 weeks after an election or for a maximum of 48 weeks since there has been a functioning Executive in place—whichever is the shorter—in which Ministers may continue to hold office, subject to those offices otherwise being filled, or if a Minister is not returned as a Member of the Assembly. This measure will ensure that institutions becomes more sustainable and resilient.

On Second Reading, concerns were raised about so-called caretaker Ministers. We are not discussing that matter at length today, but I do want to make the following points. While the Executive were not functioning, civil servants were left trying to maintain the machinery of government and to provide public services in the absence of ministerial decisions. Without the direction or control of Ministers, civil servants are significantly limited in respect of the powers that they may exercise. I want to reflect on the examples that we heard in evidence last week from Lilah Howson-Smith on public services. The health service was left to deal with “long waiting lists”; Belfast City Council was unable to resolve sewage issues; and in schools there was what Lilah described as

“a sense of overall stasis.”––[Official Report, Northern Ireland (Ministers, Elections and Petitions of Concern) Public Bill Committee, 29 June 2021; c. 21, Q24.]

Keeping Ministers in a caretaker position means that civil servants can continue to take direction and everyday issues can be resolved. Ministers will not be in post to take new decisions or implement new policy. The purpose of this measure is to ensure that Northern Ireland does not shut down in the way it did during the absence of devolved government. As Sir Jonathan Stephens said:

“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”.––[Official Report, Northern Ireland (Ministers, Elections and Petitions of Concern) Public Bill Committee, 29 June 2021; c. 31, Q40.]

Under the 1998 Act, Ministers cannot take decisions that ought to have been taken by the Executive. We therefore believe that there is no need to provide further statutory clarifications, given that legal safeguards are already in place. We also know that the courts are ready to step in, should Ministers act unlawfully.

Let me turn to clause 3. Currently, the Secretary of State is required to propose a date for an Assembly election in the following scenarios: when the Assembly resolves to dissolve itself or when the period for appointing Northern Ireland Ministers or the First Minister and Deputy First Minister expires without those offices being filled. Clause 3 allows the Secretary of State to certify or call an Assembly election at any point after the first six weeks in the period for filling ministerial offices, if the Secretary of State considers that there is not sufficient representation among Ministers to secure cross-community confidence in the Assembly. I commend clauses 1, 2 and 3 to the Committee.

Photo of Louise Haigh Louise Haigh Shadow Secretary of State for Northern Ireland 9:30 am, 6th July 2021

As ever, it is a pleasure to serve under your chairmanship, Mr Stringer.

I appreciate the Minister laying out clauses 1 to 3 and his exposition of some of the issues raised on Second Reading, in particular on caretaker Ministers. As I made clear on Second Reading, we welcome these limited attempts to safeguard power sharing and to improve the sustainability of the Executive and the Assembly, which reflect commitments made in New Decade, New Approach. We believe that all parties to that agreement, including the UK Government, should fulfil all the commitments made in it. That is the basis of amendments that we will come on to.

On clause 1, I appreciate the Minister’s description of the safeguards to ensure that caretaker Ministers do not step beyond the bounds of what is reasonable. I want to tease some of that out, not to put it in statute but to make it clear on the record. On Second Reading, the Minister said that there were well-defined limits for caretaker Ministers and explained that they would be constrained by the ministerial code. Will he confirm that only the ministerial code constrains Ministers in that regard, and not the programme for government?

It will not have escaped the Minister’s attention that at the moment, there is no programme for government, so if there were to be an election and this scenario envisaged, in that situation there would be no programme for government to constrain Ministers. Also, the ministerial code is silent on powers in that situation. I will be grateful if he could make it clear which section of the ministerial code would constrain Ministers.

On the courts being able to step in to hold Ministers to account, exactly what would they hold them to account on—on what point of law, or on what code? Will he clarify that? How exactly do we stop Ministers taking decisions that are significant, controversial and cross-cutting in the absence of an Executive in that scenario? In evidence, Professor Jon Tonge posed questions that need an answer today. What ministerial decisions will be taken that are not significant, controversial or cross-cutting? Will the Minister give us examples of what does not fall in that description? In a caretaker capacity, will Ministers be able to take decisions with financial implications? The reality is that few decisions will fall outwith those scopes.

On Second Reading, we discussed the possibility of Ministers going beyond their mandate and their remit. The reality is that what we are constraining them with is potentially extremely limited. We might be in exactly the same situation as we found ourselves in during the three years of collapse, with Ministers able to take very few decisions. I will be grateful if the Minister explains how he envisages that working.

In the evidence session, Mark Durkan expressed concerns about the possibility of the Assembly being up and running for 24 weeks during this period, albeit a caretaker one, but with potentially no protection for the operation of the north-south institutions. The ministerial code is clear that Ministers are required to attend the north-south institutions, so I will be grateful if the Minister confirms that that would remain the case and that strand two of the Good Friday agreement would be respected equally in such a period, while the Assembly is up and running.

The clause also excludes the possibility of a six-week extension period for filling the offices of First Minister and Deputy First Minister if the Assembly passes a resolution to stop that extension. It further states “without cross-community support”. In evidence, concerns were expressed about exactly what cross-community support looks like in that scenario. What is his definition of “sufficient”?

Clause 3 gives effect to a point that was of some debate during the NDNA talks in late 2019 and early 2020: paragraph 3.15 of the sustainability annex to the agreement. It was aimed at ensuring that a caretaker Executive that might be in place for up to six months had

“sufficient representation to command cross-community confidence in the Assembly.”

That finds expression in the Bill at clause 3, with the authority for the Secretary of State to call an election

“if the Secretary of State considers that it is necessary to do so in order to give effect to the purpose underlying paragraph 3.15 of Annex C of Part 2 of The New Decade, New Approach Deal”.

That leaves open the possibility that all the Unionist parties or all the nationalist parties refused to continue as caretaker Ministers, but that there would not be cross-community support in the Assembly to call an election, so the caretaker Executive could limp on with only one community represented for the six months before an election had to be called, subject only to the judgment of the Secretary of State. It would of course be open to the parties to ensure representation by staying in the ministerial roles as caretakers. However, it is clearly a dilution of the safeguard and places it as much as possible in the hands of the Secretary of State.

There is a difficulty quantifying absolutely what would constitute sufficient cross-community representation in circumstances where, for example, the Deputy First Minister resigns and Ministers withdraw. The common-sense view is that it would be sufficient if either the Ulster Unionist Party or Social Democratic and Labour Party stayed on. I concede it is difficult to quantify in legislation, and would be grateful if the Minister could expand on that.

At a basic level, the safeguard could be strengthened by saying that the Secretary of State “will” rather than “may” call an election if there is not sufficient representation in the Northern Ireland Executive to command cross-community confidence in the Assembly. Is the Minister comfortable that the Bill reads the Secretary of State “may” rather than “will” call an election? Can he explain the circumstances in which the Secretary of State would not call an election, even in the absence of sufficient cross-community support?

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

I make it clear to the Committee, before I call Members to speak, that the Minister spoke to the first three clauses of the Bill. We will vote on clauses 1 to 3 separately at the end of the debate.

Photo of Claire Hanna Claire Hanna Social Democratic and Labour Party, Belfast South

It is a pleasure to serve under your chairmanship, Mr Stringer. Apologies for my lateness. I was outside the Boothroyd Room, uncharacteristically on time, and am new to this process.

On the ministerial code, we welcome clause 4—

Photo of Louise Haigh Louise Haigh Shadow Secretary of State for Northern Ireland

We are just doing clause 1 to 3 at the moment. We are not on to the amendments yet.

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

I am grateful to the hon. Member for Sheffield, Heeley for her broad support for the principles of the Bill and for her questions. She asked important questions about the safeguards on what we have come to know as caretaker Ministers. It was agreed in New Decade, New Approach that Ministers will remain in office in a caretaker capacity to allow for greater continuity of decision making. The deal also stated that Ministers would be required to act within well-defined limits, including those set out in the ministerial code and the pledge of office, in accordance with the requirement for an Executive Committee to consider any decisions that are significant, controversial or cross-cutting. As appropriate, restrictions are put in place during the pre-election period.

Limits have not been defined in the legislation because we anticipate they will operate as a matter of convention, rather than a legal issue. This approach to drafting allows a degree of discretion for unforeseen circumstances. I reiterate the expectation that Ministers will act responsibly.

The NDNA deal also stated that Ministers would be required to act within well-defined limits, as set out in the ministerial code, to operate within the framework for government, as the hon. Lady says, agreed by the previously functioning Executive endorsed by the Assembly. Ministers will act in accordance with the statutory requirement, included within the ministerial code, that any decisions that are significant, controversial or cross-cutting are required to be considered by the Executive. As appropriate, restrictions are in place during the pre-election period, as I have said.

The point is that this is not a good situation to be in—we do not want caretaker Ministers to be required. We would prefer to have a fully-functioning Executive and the institutions of devolution up and running at all times. We are trying to put in place—this was agreed by all parties—is a preferable situation to leaving civil servants with no ministerial cover at all, which is important. We heard in the evidence session of the problems faced during that time.

The hon. Lady asks about the decisions Ministers will be able to take—an important question. They will be able to take decisions within their responsibilities and areas previously agreed by the Executive as a priority for their Department. That puts us in a significantly better place than the absence of devolution. She asks about the north-south institutions, and I confirm that those can operate in this scenario and Ministers will be free to take part within the broader constraints.

The hon. Lady asks about cross-community support and is right that this is important. We need to ensure that any Executive meets the requirements of power sharing. She will understand, as she set out in her explanation, why we have not written into legislation the full detail of how that could work, as there are all sorts of scenarios with different outcomes from elections and political crises that could emerge. Her example of only one party being represented in the Executive would clearly not be sustainable. We would want to ensure that the Executive represents more than one community. It is important that a Secretary of State has a degree of discretion, depending on the political circumstances, as to when to exercise that power.

On the question of “will” or “may”, if a Secretary of State were in the position where they thought they were on the verge of a breakthrough in talks, they might need that discretion, but I cannot think of any other scenario in which they would not move towards calling an election if there were not that cross-community representation. I hope I have answered the hon. Lady’s key points.

Photo of Louise Haigh Louise Haigh Shadow Secretary of State for Northern Ireland

Will the Minister confirm that if a programme for government is not in place, as is the case in the current mandate, Ministers will not be able to take any decisions?

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

I am not sure that is quite right because Ministers would be able to take decisions within their departmental remit, which are running-order decisions for their departmental business. Clearly, they would not be able to take decisions that are about making significant changes to policy. The offer of working together is also part of the pledge of office. It is an important part of power sharing and that is one of the things that they are constrained by in their activities. Where a programme for government is agreed, they will also be stuck within its limits and will be working forward with that.

As Sir Jonathan Stephens said, the fundamental protection in the case of caretaker Ministers is the absence of an Executive. If there is no First Minister and Deputy First Minister, significant, controversial or cross-cutting decisions cannot be taken by the Executive. In a resignation scenario, Assembly Committees will also continue to function for the Assembly’s duration and can continue to discharge their important duties of scrutinising Ministers and Departments and holding them accountable. Under the Northern Ireland Act 1998, Ministers cannot take any decisions that ought to have been taken by the Executive. We therefore believe there is no need to provide further statutory clarifications given that legal safeguards are already in place. We also know, and as we saw during the period of absence of an Executive, that the courts are prepared to step in if they feel that decisions are being taken beyond the remit of whoever is taking them. We have seen examples of that.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.