Northern Ireland (Ministerial Appointment Functions) (No. 2) Regulations 2019

Motion to Approve

Moved by

That the draft Regulations laid before the House on 11 July be approved.

Relevant document: 57th Report from the Secondary Legislation Scrutiny Committee.

My Lords, this Government are committed to the Belfast agreement. As I have said on many occasions, restoring a power-sharing Executive remains our key priority in Northern Ireland. Northern Ireland needs the fully functioning political institutions of the Belfast agreement and its successors. That being said, in the absence of devolved government, the UK Government continue to have a responsibility to ensure good governance in Northern Ireland and that public confidence is maintained.

In November last year, legislation was brought forward, which among other measures addressed the need for urgent appointments to be made to a number of public bodies. At the time, the Secretary of State gave a commitment to make further appointments that may arise in the absence of an Executive. A statutory instrument was subsequently approved by the House in February 2019 which added six further offices to the 2018 Act. This new instrument specifies further critical offices to be added.

In preparing this instrument, my officials have worked closely with the Northern Ireland Civil Service to identify those appointments that will arise between now and the end of the year. This instrument would add to the list in Section 5 of the Act, thereby enabling the Secretary of State—as the relevant UK Minister—to exercise Northern Ireland Ministers’ appointment functions in relation to the following offices: the board of the Northern Ireland Council for the Curriculum, Examinations and Assessment, the board of the Consumer Council for Northern Ireland, the board of the Northern Ireland Transport Holding Company or Translink, the Drainage Council for Northern Ireland, the Agricultural Wages Board for Northern Ireland, the board of National Museums Northern Ireland, the Historic Buildings Council for Northern Ireland and the Arts Council of Northern Ireland. The instrument would also enable the Lord Chancellor to make Queen’s Counsel appointments. These are necessary and time-critical and, on that basis, I beg to move.

My Lords, all our debates, such as this one on the Northern Ireland (Ministerial Appointment Functions) (No. 2) Regulations, are in the context of the continuing absence, as the Minister acknowledged at the start, of an Assembly and the Executive. Although he has repeated his determination to get it up and running and we support him in that object, the increasing and alarming prospect is, instead, of a calamitous no-deal Brexit. In my view, that will lead inevitably to direct rule, not least to provide the necessary civil contingency and security powers which the civil servants currently administering Northern Ireland simply do not possess. That is shown by there regulations. They do not have the power, without us passing this secondary legislation, to make these appointments; they are certainly not going to have the power to deal with problems around the border of the security and civil contingency kind. Indeed, I heard the former Deputy Prime Minister David Lidington say recently on the BBC Radio 4 “Today” programme that there would have to be direct rule in advance of 31 October in order for Northern Ireland to function properly. In their own small way, these regulations are a dress rehearsal.

I believe that direct rule would be little short of disastrous for Northern Ireland and the progress that has been made since the Good Friday/Belfast agreement. One of the great achievements of that agreement was to dilute, if not completely remove, the toxicity of identity politics in Northern Ireland. It also helped cement relations between the UK and Ireland. Citizens of Northern Ireland could be Irish or British or increasingly Northern Irish as they chose and the invisible nature of the border was central to that, particularly for nationalists and, above all, for republicans. That is changing and a DUP-backed right-wing British Government exercising direct rule may not take us back to the violence of the past—I certainly hope not—but it will immeasurably damage the prospects for long-term stability and reconciliation. The notion that this can be a cosy domestic arrangement between the DUP and the Government is in itself absurd.

I say this not to make a political point but very seriously as the Secretary of State through the last period of direct rule in the 2000s. I thought I was the last direct rule Secretary of State and said so on the record. How wrong it looks I was. It was a difficult and delicate time during which we all learned that once you go into direct rule it is very hard to come back out of it. To do otherwise would put at risk the progress that has been made since the parties and the two Governments came together in that historic agreement in 1998. I say to my friends in the DUP—and I have lots of friends in the DUP—who say that they would welcome direct rule, as I heard Jeffrey Donaldson say, again on the “Today” programme recently, they need to be careful what they wish for. They may well find that English nationalists—that is who we seem to have in power under Boris Johnson at the moment—are no more sympathetic to their cause than Irish nationalists in the long term. They must know that the proof of this came earlier this year when the then Back-Bench MPs, Boris Johnson, Jacob Rees-Mogg and Dominic Raab—now in the Cabinet—among others, broke personal promises to the DUP and voted for Theresa May’s Brexit deal the third time it was put to the other place. As the now leader of the House Jacob Rees-Mogg draped himself over the Front Bench as if he were back in the common room at Eton, you can be sure that he was not thinking about the impact of his kamikaze Brexit on sheep farmers in Fermanagh.

It is my view there is no such thing as a good Brexit, either economically or politically, for the people of Northern Ireland. However, a no-deal Brexit threatens everything that successive British Governments worked for up until the Cameron Administration foolishly decided to revert to the hands-off policy that helped get us into this catastrophic mess in the first place. I call on the Government to redouble their efforts to restore devolution, but twice of very little is not enough. It will take much more than that but the first essential step is to stop a no-deal Brexit before it is too late. I hope that the noble Lord will confirm that he will give due credence to the British-Irish Intergovernmental Conference in the event of direct rule and that regulations such as this will be consulted on through that process, and that the appointments he is going to make under these regulations will also be consulted on to ensure that there is buy in and cross-community support.

My Lords, the appointments being added to the list include such things as the Drainage Council for Northern Ireland. If the noble Lord, Lord Hain, is seriously saying that the Irish Government need to be consulted about that, that amounts to joint authority. It is not a requirement of any of the treaties or the 1998 Act. The two Governments can consult at a council that can meet periodically. That is fair enough but we must be well aware of the three-stranded process. Its integrity is the core of the agreement.

I join the noble Lord, Lord Hain, in expressing concern about the direction of travel. I had been given the impression that talks were going at white-hot pace during the summer but that is not the case. If my information is correct, the last all-party meeting was on 5 July, which was before we left this place for the summer. I stand to be corrected, and if the Minister does so I will be more than happy to withdraw that point, but that is my understanding. There have been one or two relatively casual meetings of working parties on programmes for government and so on, but certainly in the last two weeks of August there was one interaction in one week and one in the other.

It is true that there have been some bilateral talks between the DUP and Sinn Féin but I repeat that there is no proper process, although I stand to be corrected on that also by the Minister. The two meetings on 5 July and 9 September are sufficient evidence that there is a lack of urgency, drive and ambition. Although I have no particular issues with any of these appointments—I do with some of the recent appointments but that will come up in a later debate—I say to colleagues that devolution will not be restored unless there is a proper process that is organised, timetabled and properly run. This ad hoc approach—we will meet now; we will meet again; maybe we will, maybe we will not—will not deliver. During our debates before the recess on the Executive restoration Bill, a number of us said that some of the proposals in that legislation would not assist the process of restoring the Executive, and so it has proved. We are now closing up shop until the middle of October but there are two other things that need to be borne in mind.

My Lords, I have listened with great care and interest to the speeches of the noble Lords, Lord Hain and Lord Empey. If either noble Lord has any magical formula to restore Stormont, I will certainly be very glad to hear it. However, there seems to be no magical formula because Sinn Féin, with the collaboration of this House, has been handed the keys of Stormont.

Let us make no mistake: same-sex marriage and abortion, as debated and legislated for recently, were two of the key demands of Sinn Féin. This House agreed to them, and if Stormont were not returned by 21 October, the legislation would be enacted. This House and the Government were warned that, in so doing, they were keeping the doors of Stormont closed because Sinn Féin has no reason to allow them to open. If Stormont returns, these issues can be debated. I know that on abortion there is a genuine desire across the political divide to see the changes in the legislation that came before the other House and this House. Rather than blame everyone else, this House has to accept part of the blame because it handed to Sinn Féin the reason for not returning to Stormont. It is therefore not good enough for people to do a pilot Act, wash their hands and suggest that the parties in Northern Ireland are responsible for the present hiatus.

The noble Lord, Lord Hain, mentioned and warned about the DUP being in cahoots with this Government, influencing and collaborating with them. I remind the noble Lord that the leader of his party collaborated with Sinn Féin—the IRA Army Council—when they were in the midst of terrorist activity, against honourable Members of this House and others in our friend and family circles who were murdered and injured. To suggest that there is somehow a great danger in the Government and the Democratic Unionist Party working together and not see the danger—what the people of Northern Ireland witnessed in their darkest days—of the then Government collaborating with Sinn Féin was certainly very hard for any democrat to take.

I am very grateful to the noble Lord, with whom I worked very closely in the past as Secretary of State, as he will acknowledge. I understand the specific point he has just made. I was simply making the point that the British Government have to be an honest broker to do this job properly. I would make the same point if it were the UUP or the SDLP—if it had any representation any more—in an alliance with the Government. You cannot be an honest broker if your majority depends on one particular party. That is the point I was making—not an anti-DUP point but one about an honest broker.

I thank the noble Lord for his remarks. However, I cannot see how this House—never mind the Government—was an honest broker when it handed two of Sinn Féin’s major demands to it on a plate to ensure that the doors of Stormont would remain closed until after the deadline in October. These two major social issues were the responsibility of the elected representatives of the people of Northern Ireland. This was accepted by all, even the courts.

I certainly want to see the return of devolved government in Northern Ireland. However, I ask the Minister to confirm that the appointments to the various bodies being discussed are internal matters for the people of Northern Ireland and the Government of the United Kingdom and that the internal affairs of Northern Ireland are therefore not the responsibility of the Irish Republic. I have no doubt whatever that there should be the closest co-operation between Her Majesty’s Government and the Government of the Irish Republic—I welcome it—but they should not interfere in the internal matters of the people of Northern Ireland.

I would like to say a little bit about this debate. First, I very much agree with what my noble friend Lord Hain said. I do not need to repeat it.

I have enormous sympathy with the campaigning for the health service of the noble Lord, Lord Empey. It is a really crucial issue. I give him full credit for having raised it on numerous occasions. I am not sure that the matter is not too urgent for a Private Member’s Bill in the next Session—that is the only thing I would say. It is such an important point and a sign of the political vacuum in Northern Ireland.

I turn to the noble Lord, Lord McCrea. We will have a chance to talk a bit about abortion in a later debate this evening. He says that something has been handed to Sinn Féin on a plate, but it took years before Sinn Féin came around to supporting abortion. It is a fairly recent thing. I think it did it only because it realised that public opinion in the Republic was in favour of it. I certainly never saw abortion as an issue that the Sinn Féin people from Northern Ireland were keen on. I used to talk to them about it when they came here for their many lobbying activities. I do not think it is quite as the noble Lord said, but I agree that its policy then changed and it is now in favour of abortion.

Does the noble Lord not realise that it was one of the demands that Sinn Féin made—one of the red lines that it drew to attention—before Stormont could be returned?

I am not sure how many red lines there were. Sinn Féin must be asked somewhere else to speak for itself, I suppose. It is not for me to try to quote what I thought was wrong with its policy. All I am saying is that my sincere understanding was that it was not keen on abortion over a period of years. I used to say to the Sinn Féin people who came over, “What about your party being as progressive as it claims to be and taking a stand on abortion?”, and they did not. It has been only a fairly recent thing, since the Irish referendum got momentum. I am not sure how relevant that is to the debate here now.

We of course accept the need for these appointments to take place and regret the necessity of it being done in this way. I ask a question of the Minister which has been referred to recently. My memory of when I was a junior Minister there many years ago—it was a long time ago—was that the Government in Dublin could put forward their suggested people to be considered for public appointments in Northern Ireland. It did not mean that we took notice of it or appointed the people, but it was simply one other contribution to the mix of possible candidates we looked at for particular jobs. I wonder whether that is still the case.

Are we simply rubber-stamping reappointments of people already in posts, or are there some new appointments listed in these regulations? If so, is there an appraisal process—in other words, an equal opportunities system for interviewing and appointing people—if we are not reappointing people who would normally expect to have a second term in office?

Some of these bodies are quite important. I had involvement with several of them in my time as a Minister. I was particularly interested in the Historic Buildings Council. If I may digress slightly from the main point here, when I got to Northern Ireland, there was a mentality of, “Get rid of these old buildings. Let’s just bulldoze them away and put up new ones”. This was a long time ago and I hope that I am totally out of date. I think that the people who argued like that—some of them did—did a total disservice to Northern Ireland. It was a job to resist the pressure to get rid of listed buildings because people said, “We’ve got to do that. They’re standing in the way of progress”. For people who support historic buildings, the skill is to say, “We’d better be clever and find a proper use for historic buildings so that they can be maintained in their historic beauty and yet are economically viable in their new situation”.

My Lords, I thank the Minister for introducing this statutory instrument. As we have seen, with the lack of any operational Executive in Northern Ireland for the last two years, it is now necessary for Ministers here to make those key appointments to offices in Stormont and to make strategic legislative interventions to ensure good governance once again in Northern Ireland; this should have been exercised by the Executive themselves and we hope it will be again as soon as possible.

At this point, I make note of the comments of the noble Lord, Lord Empey, about the health service in Northern Ireland. It is indeed quite shocking that so many vacancies exist; we really must do something to help the situation. We have been here before. Back in February we approved the appointment functions of several key offices: the Attorney-General for Northern Ireland; the Commissioner for Children and Young People for Northern Ireland; member of the Commission for Victims and Survivors for Northern Ireland; member, chair or vice-chair of the Northern Ireland Housing Executive, et cetera. This statutory instrument adds nine other offices to those in which the appointment functions of the Northern Ireland Minister can now be exercised by the relevant UK Minister.

My noble friend Lord Bruce of Bennachie, who is unable to be present in your Lordships’ House this evening, and who spoke on these matters at the time, said that,

“effectively we are going on and on in this limbo of democratic nihilism … having to institute ad hoc measures as and when necessary to fill the gap in the absence of real political initiatives”.

He asked what practical steps the Government would take to ensure that we would not get to the end of August without having reached a position where functioning decision-making by the elected representatives of the people of Northern Ireland could return. He added that,

My Lords, I want to speak only briefly as I hope to contribute to the later, main debate. I just want to take up the last point made by the noble Baroness, Lady Harris of Richmond. Even had we had the so-called Conference Recess, we would have been sitting throughout this week, up to and including Thursday, which would have given us time for a whole day on Northern Ireland. Would that be too much when we have the ultimate responsibility in this Parliament during the continued and deeply regrettable absence of an Executive and Assembly in Northern Ireland?