Consideration of Bill, as amended in the Public Bill Committee
New Clause 1
Appointment of First Minister and Deputy First Minister
‘(1) The Northern Ireland Act 1998 is amended as follows.
(2) In section 16A (Appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election), in subsection 4, omit the words “of the largest political designation”.
(3) For subsection (5) of that section, substitute—
(4) In section 16(B) (Vacancies in the office of First Minister or deputy First Minister), in subsection (4), omit the words “of the largest political designation”.
(5) For subsection (5) of that section, substitute—
“(5) The nominating officer of the second largest political party shall nominate a member of the Assembly to be the deputy First Minister.”
(6) In section 16C (sections 16A and 16B: supplementary), omit subsection (6).’—(Stephen Farry.)
This new clause provides that the deputy First Minister can come from the second largest political party without prescribing that the post be filled by a member from the second largest designation.
Brought up, and read the First time.
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Stephen Farry (North Down) (Alliance)
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following:
New clause 2—Appointment of Joint First Ministers—
‘(1) The Northern Ireland Act 1998 is amended as follows.
(2) In subsection 16A (appointment of Ministers following Assembly election), leave out subsections (4) to (7) and subsection (9), and insert after subsection (3)—
“(3ZA) Each candidate for the office of Joint First Ministers must stand for election jointly with a candidate for the other office.
(3ZB) Two candidates standing jointly shall not be elected to the two offices without support of two thirds of members present and voting.
(3ZC) The Joint First Ministers—
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and
(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Ministers.”
(3) In subsection (3)(a) the reference to “subsections (4) to (7)” is replaced by a reference to “subsections (3ZA) to (3ZC)”.
(4) Any reference in the Northern Ireland Act 1998 to the First Minister or deputy First Minister is to be taken as a reference to the Joint First Ministers.’
This new clause provides for the joint election of First Ministers, and further prescribes a weighted majority vote in the Assembly, without the use of designations, for this purpose.
New clause 3—First Minister and deputy First Minister to be referred to as Joint First Ministers—
‘The First Minister and deputy First Minister elected under the Northern Ireland Act 1998 are to be referred to as Joint First Ministers, and all references in that Act (other than to their election) to the First Minister and deputy First Minister are to be read as references to the Joint First Ministers.’
Stephen Farry
At the outset, I take the opportunity to pay tribute to Sir David Amess and pass on my condolences to his family. I also reference his personal connection to the Bill, in that he was one of the Chairs in Committee. True to his character, he handled proceedings professionally, efficiently and with huge impartiality. May I also say, for those MPs who are still new to this place and are still swotting up on procedure, that he was very generous and understanding in that regard? I also welcome formally the new Minister of State to his role, in the Northern Ireland Office. I am sure we all look forward greatly to working with him in the coming months. I also thank the House of Commons staff, and the Bill Clerks in particular, for the rapid turnaround of amendments in the past week.
The amendments in my name fall into four broad categories: the election or nomination of First Minister and Deputy First Minister; reforms to petitions of concern; the operation of the Executive; and the commencement date. On the nomination and election of the First Ministers, frankly the current system does not work. The First Minister and Deputy First Minister are identical in terms of status, powers, responsibilities and duties. That one small distinction in wording takes on disproportionate importance—indeed it is only symbolic—and turns our elections into the politics of fear. That risks crowding out consideration of important economic, social and environmental issues during election campaigns. They are often about keeping the other side out, and yet, in the past, the so-called victorious party has gone on to share power in the same joint office with the largest party from the other designation.
There is speculation that Sinn Féin could emerge as the largest party after the next Assembly election and we have two Unionist parties unwilling to make clear whether in such circumstances they would serve as Deputy First Minister. That is hugely destabilising and a selective application of the rules of democracy as they stand. That could lead us into a difficult situation after the next election. People should clearly adhere to the rules, but that does not preclude us from seeking support for reforms to make the system work more effectively.
It is important to note that there will be issues on which we can find agreement. There will also be issues and amendments before us today on which we cannot find agreement. However, importantly for these proceedings, does the hon. Member agree that, as we discussed in Committee, the Bill fairly reflects what was agreed in New Decade, New Approach and that, unless and until we get joint agreement on a range of issues through another forum, we should not be tinkering around with too many amendments?
Stephen Farry
I am grateful to the hon. Member for his comments. I agree partially. The Bill does accurately reflect the New Decade, New Approach agreement, but it is worth referencing that that was made back in January 2020. I pay tribute to the former Secretary of State, the right hon. Member for Skipton and Ripon (Julian Smith), for his endeavours in that regard. I also welcome formally the new Minister of State to his role in the Northern Ireland Office. I am sure we all look forward to working with him in the coming months. However, we have had many political developments since then. One of my great frustrations as a Member of this place and previously as a Member of the Northern Ireland Assembly is that we often respond to the last crisis and fix the rules to address what has already happened rather than trying to look ahead, anticipate where crises are likely to happen and put measures in place that will make the world operate more easily.
That brings me to new clause 1, in my name, which seeks to address anomalies in the current system. At present, the largest party regardless of designation is entitled to the position of First Minister. However, the Deputy First Minister must come from the largest party from the largest remaining designation. I do not want to get too far ahead of myself as a member of the Alliance party, but it is conceivable that, one day—perhaps after the next election or at some time in the future—a party that is not Unionist or nationalist may be the second-largest party in Northern Ireland and yet it would not be automatically entitled to that position. That would create a certain crisis of legitimacy in terms of the institutions and the First Minister and Deputy First Minister team. With that small measure, we could address that problem.
Secondly, I turn to new clause 4 in in the names of the hon. Member for Foyle (Colum Eastwood) and the hon. Member for Belfast South (Claire Hanna) of the Social Democratic and Labour party, which would essentially return to the Good Friday agreement model and the first iteration in the Northern Ireland Act 1998 by providing for an election of a joint team of FM and DFM. That would have two advantages: Assembly endorsement of the team; and reinforcement of the point of collective responsibility from being part of a joint office, not two individuals pursuing separate agendas.
My one reservation is that that relies on the current cross-community voting system, which is fundamentally linked to the designation system. As hon. Members will know, MLAs are required to sign in as Unionist, nationalist or other. I used to be an “other”, which is a wonderful way to describe one’s identity. The system perpetuates the two communities model in Northern Ireland rather than reflecting the diversity that existed in 1998 and that which exists today. There are people with open, mixed and multiple identities, and there are people from different backgrounds who have come to live in Northern Ireland and are not properly reflected in how we frame the operation of the Assembly. That needs reform.
1:30 pm
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This new clause provides that First Minister and deputy First Minister be referred to as Joint First Ministers reflecting their identical status, powers and responsibilities.
New clause 4—Appointment of First Ministers—
‘(1) The Northern Ireland Act 1998 is amended as follows.
(2) In subsection 16A (appointment of Ministers following Assembly election), leave out subsections (4) to (7) and subsection (9), and insert after subsection (3)—
“(3ZA) Each candidate for the office of joint First Ministers, must stand for election jointly with a candidate for the other office.
(3ZB) Two candidates standing jointly shall not be elected to the two offices without one or more of the following measures of representational support—
(a) the support of a majority of members, a majority of designated Nationalists and a majority of Unionists; or
(b) the support of 60 per cent of members, 40 per cent of designated Nationalists and 40 per cent of designated Unionists; or
(c) the support of two thirds of members.
(3ZC) The First Minister and the deputy First Minister—
(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and
(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Ministers.
(3) In subsection (3)(a) the reference to “subsections (4) to (7)” shall be replaced by a reference to “subsections (3ZA) to (3ZC)”.’
This new clause would restore the Good Friday Agreement provision for joint election by the Assembly of the joint First Ministers.
Amendment 8, in clause 4, page 5, line 22, after “Assembly” insert “users of services,”
This amendment would ensure that Ministers and Departments are accountable and responsible to users of services, as well as to the Assembly and the public.
Amendment 6, page 5, line 25, at end insert—
“(ba) actively support the adoption and implementation of a Bill of Rights for Northern Ireland that is faithful to the stated intention of the 1998 Agreement”
This amendment requires Northern Ireland Ministers to support actively the adoption of a Bill of Rights for Northern Ireland as envisaged in the Belfast (Good Friday) Agreement 1998 and in paragraphs 5.26 to 5.29 of Annex E (Rights, language and identity) to The New Decade, New Approach Deal 2020.
Amendment 9, page 5, line 25, at end insert—
“(ba) ensure all reasonable requests for information from the Assembly, users of services and individual citizens are complied with; and that Departments and their staff conduct their dealings with the public in an open and responsible way;”
This amendment would ensure that the principles of transparency and openness, as well as a duty to comply with requests for information, as outlined in Strand One, Annex A of the Good Friday Agreement, are maintained within the Ministerial Code of Conduct.
Amendment 10, page 5, line 25, at end insert—
“(ba) seek in utmost good faith and by using their best endeavours to implement in full the Programme for Government in “The New Decade, New Approach Deal” as regards the transparency, accountability and the functioning of the Executive;”
This amendment requires Ministers to implement the Programme for Government agreed in January 2020, as it relates to transparency, accountability and functioning of the Executive.
Amendment 11, page 5, line 25, at end insert—
“(bb) seek in utmost good faith and by using their best endeavours to implement in full any future deal between the parties to “The New Decade, New Approach Deal” which may be approved by the Assembly;”
This amendment requires Ministers to implement the any future deal on the operation of devolved government in Northern Ireland.
Amendment 12, page 5, line 2, at end insert—
“(ca) abide by and implement in every respect Annex A to Part 2 of “The New Decade, New Approach Deal” as regards the transparency, accountability and the functioning of the Executive;”
This amendment requires Ministers to strengthen and enforce the Ministerial Code and other codes including the Special Adviser Code of Conduct.
Amendment 2, page 5, line 28, at end insert—
“(da) comply with paragraph 2.11 of the Northern Ireland Executive Ministerial Code in relation to the inclusion of ministerial proposals on the agenda for the Northern Ireland Executive, with areas for resolution to be recorded in the list of “Executive papers in circulation” against those papers still outstanding after the third meeting, in accordance with paragraph 62(c) of section F of the Fresh Start Stormont Agreement and Implementation Plan;”
This amendment moves from guidance to statute a commitment in the Fresh Start Agreement providing that an item may not be blocked for more than three meetings of the Executive through lack of agreement on the agenda.
Amendment 7, page 5, line 32, at end insert—
“and by supporting the establishment of the consultative Civic Forum established in pursuance of paragraph 34 of Strand One of the Belfast Agreement and by obtaining its views on social, economic and cultural matters;”
The intention of this amendment is to require Northern Ireland Ministers to support the reestablishment of a consultative Civic Forum for Northern Ireland to enable the Assembly to obtain views on social, economic and cultural matters as envisaged in the Belfast (Good Friday) Agreement 1998.
Amendment 13, in clause 5, page 7, line 12, at end insert—
“(5A) When a petition of concern is lodged against a measure, proposal or a decision by a Minister, Department or the Executive (“the matter”), the Assembly shall appoint a special committee to examine and report on whether the matter is in conformity with equality and human rights requirements, including the European Convention on Human Rights and any Bill of Rights for Northern Ireland.
(5B) Consistent with paragraphs 11, 12 and 13 (Strand 1) of the Belfast Agreement, a committee as provided for under subsection (3) may also be appointed at the request of the Executive Committee, a Northern Ireland Minister or relevant Assembly Committee.
(5C) A committee appointed under this section—
(a) shall have the powers to call people and papers to assist in its consideration; and
(b) shall take evidence from the Equality Commission and the Human Rights Commission.
(5D) A committee appointed under this section shall—
(a) report in terms that reflect evidence regarding human rights and equality assessments relating to the matter; and
(b) identify relevant clarification, adjustments and amendments (in the case of legislation) and/or other assurances which would address the stated concerns.
(5E) The Assembly shall consider the report of any committee appointed under this section and determine the matter in accordance with the requirements for cross-community support.
(5F) In relation to any specific petition of concern or request under subsection (5B), the Assembly may decide, with cross-community support, that the procedure in subsections (5A) and (5C) shall not apply.”
This amendment provides for a petition of concern to lead to a special procedure, described in paragraphs 11-13 of Strand One of the Belfast Agreement, whereby a special committee shall consider the stated concern(s) relating to equality requirements and/or human rights. Such a special committee could also be appointed at the request of the Executive Committee, a Northern Ireland Minister or relevant Assembly Committee.
Amendment 3, page 7, line 19, at end insert—
“(aa) make provision for the minimum period under (a) to be reduced in prescribed circumstances to be determined by the Assembly;”
This amendment gives the Assembly the discretion via its Standing Orders to reduce the timescales in relation to Petitions of Concerns in circumstances to be determined by the Assembly.
Amendment 14, page 7, line 27, at end insert—
“(ca) specify the size, timescale and terms of reference for such a committee; and
(cb) specify procedure(s) to allow for subsection (5E).”
This amendment is consequential on Amendment 13 and would further clarify how standing orders should make due provision for the working terms for the sort of special committee/ procedure in respect of stated human rights or equality concerns as outlined in paragraphs 11-13 of Strand One of the Good Friday Agreement.
Amendment 4, page 7, line 31, at end insert—
“(e) make provision to allow petitioners to withdraw a petition of concern at any stage in the process.”
This amendment would allow for a Petition of Concern to be withdrawn and to enable the affected matter of business to proceed without waiting for any statutory timetable to be concluded.
Amendment 5, page 7, line 37, at end insert—
“unless prescribed circumstances to be determined by the Assembly to reduce this period, apply”
Amendment 1, in clause 8, page 8, line 8,a leave out—
“at the end of the period of two months beginning with”
and insert “on”.”
This amendment enables the Bill to be commenced with Royal Assent.
Thirdly, new clause 2, in my name, would return to the Good Friday agreement model but with the distinction that we end up with a purely weighted majority vote—set at two thirds—without reference to any designations whatsoever. That is the fairest and an ideal way to address the issue. It would avoid some anomalous outcomes and inflexibility. Both new clauses on the second and third options would take the opportunity to acknowledge in law and change terminology to confirm and reinforce that the First Minister and Deputy First Minister are identical in status, powers, responsibilities and duties.
New clause 3—my final amendment in the group—would reinforce that point about the equality of the First Minister and Deputy First Minister in all those respects but outside the context of the nomination or election process. We may not be able to find consensus on that during the Bill’s remaining stages. However, we should take the opportunity outwith that to reflect in law that the FM and DFM are entirely equal, to try to take the heat out of the fairly stupid, meaningless contrast that is made and creates huge tension in our election campaigns. Unfortunately, we would need to make one exception and say that that would not apply to the First Minister and Deputy First Minister election process, because, until we change the system, someone must be put in place first, and someone else second.
I turn to petitions of concern, which have been a source of huge controversy in the past 20 years in Northern Ireland. Petitions of concern have been used and abused well beyond their original intention. They have brought huge discredit, and indeed tension, to the Assembly. It is worth noting that virtually no human rights or equality legislation has been passed by the Assembly. Instead, it has been done either through various periods of direct rule or through the direct intervention of Westminster, notably through the Northern Ireland (Executive Formation etc) Act 2019 in recent times. I welcome the reforms in New Decade, New Approach, but the Alliance party is sceptical about whether they go far enough. People may say that there have not been any petitions of concern since the Assembly’s restoration. That is true, but we have also not had much legislation or any equality or human rights pieces before the Assembly. We must therefore remain vigilant.
I want to test two points with the Government. The first lies in the 14-day timeframe for a petition of concern to be considered, which may turn out to be a straitjacket. There may well be situations in which a matter must be considered urgently, such as a legal responsibility or some other deadline that must be met in response to a legislative consent motion. I therefore think it is worth clarifying that the Assembly has the ability within its Standing Orders to vary that 14-day timeframe if the circumstances warrant it. In a similar light, a petitioner or set of petitioners could withdraw their support for a petition if they feel that the issues they were concerned about have been addressed otherwise, rather than having the clock continue. In Committee, the Minister of State’s predecessor did give such reassurances, and I hope that the incumbent will be happy to do the same today.
I turn briefly to the operation of the Executive. Amendment 2 would move the “three meetings rule” from guidance to statute. At present, we have much concern in relation to the petitions-of-concern issue in the Assembly, but it is not as commonly understood that there are mutual vetoes in the context of the Executive. They must also be addressed. One such veto relates to the formation of the agenda. At times, Ministers have sought to put papers on the agenda but been blocked persistently. The three meetings rule is therefore of particular importance.
I appreciate that others are keen to speak so, finally, I want to talk about the commencement timeframe. Comments about such timeframes may be unusual on Report, but this is an important point in this particular context. It is unusual to have a Northern Ireland Bill moving through Parliament at the normal pace of a Bill—most tend to be matters of urgency.
The ethos of the New Decade, New Approach agreement was to ensure that the institutions worked better, that we have sustainability and that we try to avoid crises, whether that is collapse of the Assembly or difficulty in forming a new Executive after an Assembly election. It is two years since New Decade, New Approach was agreed, but we are only now putting this into legislation, and we meet in the midst of a potential crisis of non-delivery of other aspects of New Decade, New Approach, with tensions emerging around the protocol and the unrealistic demands made in that regard—the Democratic Unionist party of colleagues sitting in front of me has made threats that it may withdraw its Ministers from the Executive in the near future—as well as speculation about what might happen after the next Assembly election. It would therefore be seen as absurd if we had a crisis when the measures in the Bill could to some extent have been helpful in managing that crisis. However, the Bill might still be in the process of going through Parliament or, even worse, it might have received Royal Assent but, because of the two-month commencement period, we would not be in a position to deploy the measures that might have helped the situation.