Select Committee on Northern Ireland Affairs First Report

1 Introduction

1. This report reviews our work since our last Annual Report in 2002. Our progress is discussed under headings which reflect the 'core tasks' for select committees issued by the Liaison Committee in 2002. Inevitably, a significant influence on our work in the past year has been the continuing suspension of devolved government in Northern Ireland: this is reflected in many of the comments below.

Inquiries

2. In the past twelve months we have worked on eight inquiries, of which we have completed four. The classification of these inquiries (in accordance with the core tasks) is set out in the table below:

	Implementation of legislation/major policy initiatives	Follow-up to previous inquiries	Pre-legislative scrutiny	Scrutiny of associated public bodies
The control of firearms in Northern Ireland and the draft Firearms (Northern Ireland) Order 2002			(Report published January 2003)
Forensic Science Northern Ireland				(Report published January 2003)
The illegal drugs trade and drug culture in Northern Ireland	(Interim Report published May 2003; final Report November 2003)
PEACE II	(Report published June 2003)
Electoral registration in Northern Ireland
Introduction of the Aggregates Levy in Northern Ireland: one year on
The separation of paramilitary prisoners at HMP Maghaberry
The Compensation Agency

Policy inquiries

3. Scrutiny of Government policy and its implementation remains the primary focus of our work as a Committee. The main policy inquiries of the year were those into the illegal drugs trade and drug culture in Northern Ireland, and the European structural funding programme, PEACE II. Following the suspension of devolved government, we decided we should expand the remit of our drugs inquiry to cover government policy in relation to the devolved issues of drug treatment and rehabilitation services, as well as the reserved areas of enforcement, and the treatment of drug users within the criminal justice system. In our report we were able, consequently, to provide a much clearer and more substantial overview of the drug culture in Northern Ireland than would otherwise have been the case. We made significant recommendations about the urgent need to improve needle exchange and substitute prescribing services for drug users, as well as highlighting the growing threat to Northern Ireland from cocaine and crack cocaine: the Government's response is due in January 2004.

4. Our attention was drawn to the PEACE II programme during a private meeting with community representatives in late 2002. They told us that the funding provided by the programme was vital to the success of many important community and voluntary sector initiatives, but that gaining access to the money was also very difficult. Our inquiry exposed a number of problems with the administration of the programme. Most significant was the discovery that, under European spending rules, up to £56 million intended for the support of peace and reconciliation projects could be forfeited as a consequence of the delays in rolling out the programme. We obtained a firm commitment from the Government that the money would be saved for Northern Ireland. We intend to revisit this inquiry during the coming year to ensure the money has been spent and is fully accounted for.

5. During the suspension we have been fortunate to be able to call upon the resources of the Northern Ireland Assembly as additional support for our work. A Clerk from the Assembly has worked on two of our inquiries (the illegal drugs trade and drug culture in Northern Ireland and the Compensation Agency) and we also received considerable technical support from the Assembly's Research and Library Services section in relation to our inquiry into PEACE II. We are very grateful for this assistance, and in particular for the considerable insights which these staff were able to provide into the work of the Executive.

Suspended inquiries

6. Two of our inquiries have been suspended. During the previous Parliament, the Committee looked into electoral malpractice in Northern Ireland:[1] the report was followed by the Electoral Fraud (Northern Ireland) Act 2002 which implemented various measures to deter fraud, such as the creation of electoral identity cards. In view of these developments, we began a new inquiry into electoral registration in Northern Ireland, intending to conduct evidence sessions—looking at the registration process and, in particular, reviewing the practicality and effectiveness of the new anti-fraud measures—both before and after the Assembly elections scheduled for May 2003. Since the elections were postponed, it has not yet proved possible to finish our intended programme of work. We have published the minutes of evidence from our initial hearing on our website, at www.parliament.uk/parliamentary_committees/northern_ireland_affairs.cfm and hope to conduct a further evidence session or sessions during the coming year.[2]

7. We also sought to follow up our first inquiry of the current Parliament, which focused on the introduction of the aggregates levy in Northern Ireland. The aggregates levy was introduced by Government across the UK in April 2002 as an environmental tax, intended to discourage quarrying and encourage aggregate recycling. The success of the levy hinged on the fact that aggregates are heavy, and bulky, and tend to be sourced close to the point of use: consumers would therefore have a restricted choice between paying the levy (set at a level intended to reflect the environmental cost of quarrying), or recycling, which would remain tax-free.

8. In our original report we pointed out that the Government had failed to take account of the unique third choice aggregates users have in Northern Ireland, which is to source aggregates levy-free from the Republic of Ireland. We forecast that this would severely undermine the levy's effectiveness as a recycling instrument, while the local disparity in tax regimes would upset the balance of competition within the island's aggregates industry. The Government conceded that Northern Ireland might experience particular problems and, following our intervention, made arrangements for the levy to be phased in over a longer period in Northern Ireland than in the rest of the UK.[3]

9. One year on it was apparent that, in spite of the Government's concession, the effects we had predicted in our 2001 report were indeed taking place. We re-opened our inquiry in the summer of 2003 and, at the very outset of our meeting with the Economic Secretary to the Treasury on 5 November 2003, were told by him that he now accepted the levy was unlikely to meet its environmental objectives in "the specific circumstances in Northern Ireland": we were delighted to hear that he was therefore looking at options "for further reform and relief" of the levy there.[4] We shall continue our inquiry when we have the detail of the preferred options.

Pre-legislative scrutiny

10. In 2002 we conducted a major exercise of pre-legislative scrutiny which resulted in the publication, in January this year, of our report on the proposed draft Firearms (Northern Ireland) Order. Given our previous comments on the difficulty we have experienced in obtaining sufficient notice of draft legislation from the Northern Ireland Office,[5] we should record our gratitude for their co-operation in this case. Having taken several months to re-draft the proposed Order in the light of our report, the Minister agreed to provide us with an advance copy of the new draft before it is formally laid before the House. Significant changes in the proposed legislation which have arisen from our scrutiny include:

• Applicants for a firearms licence in Northern Ireland will now be able to present character references from individuals resident anywhere in the UK, rather than from Northern Ireland only.
• The 'competency' provision has been dropped. The Government had proposed that individuals wishing to possess a firearm should have their competency with it certified before a licence would be granted. Our examination of this proposal demonstrated that it was insufficiently developed—for example, there was uncertainty within the NIO itself as to whether to test competency in the use, or simply the handling, of the firearm in question. The test of competency would have to vary depending upon the nature of the firearm. There was also a real concern that the proposal would create conflicts of interest for the firearms dealers whom the Government expected to carry out the certification process. The proposal has now been replaced with a much simpler provision, allowing the Chief Constable to attach a condition to a firearm certificate requiring that, for a specified period, the holder be supervised whenever he has the firearm in his possession.
• The provisions in the draft Order relating to supervision have been strengthened. Where currently any individual over 18 years of age can supervise a young person with a firearm, in the new draft not only has the minimum age been raised to 21, but it is also specified that the individual must have held a certificate for the type of firearm concerned for a minimum of three years.

With advance sight of the new draft we have also been able to pursue a number of minor and technical corrections which the Government had previously accepted in principle, but which had been omitted from the text. The correspondence arising from our review of the second draft has been placed in the Commons library and published on our internet site (see paragraph 6 above). We have no doubt that the Government, and others who were consulted on the proposed legislation, would agree that the draft Firearms (Northern Ireland) Order is considerably more coherent, and accurate, a piece of legislation as a result of our involvement in the scrutiny process.

Operation of the Northern Ireland Acts 1998 and 2000

11. Pre-legislative scrutiny of Northern Ireland Orders in Council remains tremendously important as their substance is equivalent to English or Scottish primary legislation. However, they are treated procedurally as secondary legislation with the consequence that they may not be amended—only accepted or rejected in their entirety—by the House. As we noted in our last annual report, we have been concerned that bills prepared by the Northern Ireland Executive, which ordinarily would have been subject to a full scrutiny process by the Northern Ireland Assembly, have been put through at Westminster as Orders during the suspension, often in as little as two or three weeks.

12. A further concern for us over the past year has been the treatment of reserved matters during a suspension. 'Reserved matters' under the Northern Ireland Act 1998 ('the 1998 Act') are policy areas which are currently retained by the Government for handling at Westminster but which it expects to devolve to the Assembly at a future date: they include criminal justice and policing.

13. During a suspension, the Government uses the provisions of the Northern Ireland Act 2000 ('the 2000 Act') to put legislation on devolved matters, which would ordinarily have been handled by the Northern Ireland Assembly, through Parliament as Orders in Council. We were concerned to discover in the early months of this year that the Northern Ireland Office had also decided to use powers under this Act to process Orders in Council on reserved matters (for example, the draft Criminal Justice (Northern Ireland) Order 2003), rather than using the procedure under s85 of the 1998 Act which would otherwise have been used.

14. The difference between the procedures under the 1998 and 2000 Acts rests on pre-legislative scrutiny. Under s85 of the 1998 Act proposals for draft legislation on reserved matters—such as the proposal for a draft Firearms Order[6]—must, except in cases of emergency, be presented both to Parliament and to the Northern Ireland Assembly for a statutory two-month consultation period prior to being formally laid. Under the 2000 Act procedure there is no such requirement. The 2000 Act procedure therefore allows Government, if it so chooses, to put Northern Ireland legislation through the UK Parliament without either consultation in draft or any opportunity to amend a draft Order once it has been formally laid.

15. We sought an explanation from the Northern Ireland Office as to why it had taken this route for matters reserved to Westminster as well as for those provisions which had previously been under consideration by the Assembly. We learned that officials had concerns about the operation of the 1998 Act procedure, with its provision for consultation on reserved matters, during a suspension. While the 2000 Act made provision to disapply references in the 1998 Act to the Northern Ireland Assembly during a suspension, it failed to make explicit provision cancelling the Assembly's right of reply on consultations on reserved matters. Officials therefore believed the 1998 Act procedure to be technically flawed and thus unavailable for use during a suspension.

16. We remain unsatisfied both by this explanation and by the solution the NIO has adopted. The 2000 Act also, in our view, appears to be flawed as a mechanism for dealing with reserved matters because it is only available for handling matters which are within the Assembly's legislative competence. Reserved matters—which, as we have noted above, are matters which it is anticipated will be transferred to the Assembly at a future date—are only within the Assembly's legislative competence if the Secretary of State has agreed to them being so handled. Therefore, for the 2000 Act procedure to work for draft Orders on reserved matters, the Secretary of State has in each case to consent to the Assembly assuming powers to determine the provisions in question.

17. We recognise that the Northern Ireland Office perceives the argument to be a technical one in the current situation. But the apparently casual redesignation of reserved matters as items it is appropriate for the Assembly to handle, for administrative convenience, potentially has considerable political implications. The question of when, and if, certain areas of policy should be devolved continues to be a cause for argument both in Northern Ireland and at Westminster. The Government has demonstrated its awareness of the issue's sensitivity: during debate on the draft Criminal Justice (Northern Ireland) Order 2003 (which, although exclusively concerned with reserved matters, was put through Parliament under the 2000 Act procedure in April 2003), the then Parliamentary Under-Secretary of State went so far as to emphasise that the provisions within the instrument were not currently within the competence of the Assembly and Executive, although they "could be transferred in future".[7]

18. From a Parliamentary point of view the 1998 Act procedure, with its guaranteed period of pre-legislative scrutiny, is clearly preferable. We acknowledge that during the current suspension the Government has been careful to provide periods of consultation on its proposals wherever possible, although it need not have done so. Under the 1998 Act Parliament has—except in cases of emergency—statutory rights of consultation on these matters, while under the 2000 Act Parliament is wholly reliant on the Government's good will for its opportunity to comment and suggest alterations to the same proposals.

19. As we agree our Report the immediate future of devolved government in Northern Ireland remains subject to review. This is no mere academic question. We are already aware of the Government's intention to introduce early in 2004 a further draft Order in Council under the 2000 Act procedure, to deal with racial and other crimes of hatred. If the political situation in Northern Ireland does not change, there will be others.

20. It remains wrong in principle that Parliament should lose its statutory rights of consultation over matters it has for the time being reserved to itself, simply because of a minor technical flaw in the Northern Ireland Act 2000. As a result of the suspension of the Assembly, and the Government's decision to use one marginally flawed procedure rather than another, legislation is being pushed through Westminster which, if it related to England or Scotland, would be subject to the full process of Parliamentary scrutiny; and on which, if the Assembly were not suspended, there would be no question about the Government's duty to consult. While the substitution of the 2000 Act procedure has provided the NIO with an administratively convenient solution in the short term, we are concerned that this action sets an unfortunate precedent both for Parliament and, potentially, for the Government itself. If the flaw in the 2000 Act indeed makes the procedure under s85 of the 1998 Act inoperable during a suspension of devolved government, the error must be corrected without delay.

Scrutiny of the work of the Northern Ireland Executive

21. Since the suspension of the Assembly in October 2002, we have had additional responsibilities to scrutinise the work of the departments of the Northern Ireland Executive. Aside from the routine work which led us to focus on policy in the Department of Health, Social Services and Public Safety (through our drugs inquiry) and in the Department of Finance and Personnel (PEACE II), we have pursued a range of questions through written correspondence. Some, relating to devolved matters scrutinised during earlier suspensions, are dealt with in our annual review of recommendations (see paragraph 24 below). Others have resulted in the production of memoranda by the Executive, which we have published on our website.[8] These have focused on:

• The Resource Accounts of each Department;
• Progress on implementing the Executive's Programme for Government, including progress on Public Service Agreement targets;
• The accounts of the Child Support Agency, the Roads Service and the Sports Council of Northern Ireland; and
• The Executive's draft priorities and budget 2004-07.

22. Inevitably it has been impossible within our limited resources to scrutinise the Executive to a degree comparable with that of the Assembly: its restoration is urgently needed to secure full Government accountability. Nonetheless we hope that the scrutiny we have undertaken on these fundamental aspects of the administration will prove a useful source of reference for the Assembly when it is restored. We acknowledge the support given by the Committee Office Scrutiny Unit in carrying out this additional work.

Departmental administration and expenditure

23. As last year, we have this year also carried out our examination of the Departmental Annual Report (2003) by correspondence. We were pleased to see some helpful innovations in this year's Departmental report, such as an introductory chapter clearly describing the structure and functions of the department and a glossary of financial and accounting terms. However, the presentation of the report was again marred by a lack of careful proof-reading, particularly in respect of financial tables. We noted the following problems:

• As last year, we found errors in the financial tables which on occasion made them extremely difficult for a lay person to understand. For example, in one table the year indicators (2001-02, 2002-03) and the associated figures were misaligned; in another, a line was omitted in error; while in a third figures were recorded as millions of pounds when they were in fact thousands.
• Changes in the department's targets under its Public Service Agreements (PSAs) from 2000 to 2002 were poorly explained, and presented in such a way that it was difficult either to identify the changes, or to determine the department's progress in pursuit of its targets. The situation was again confused by poor proof-reading, which left targets attributed to the wrong PSA.
• While some entries—particularly that by Forensic Science Northern Ireland—were clear and informative, there was considerable variation in the quality and quantity of the information provided by the NIO's offices, agencies and executive NDPBs for insertion in the Departmental Report. The NIO told us that it was difficult to ensure consistency in these entries because "the Agencies and the other executive NDPBs … may have their own Boards of Management and often provide extensive Annual Reports in their own right."[9] Nonetheless we believe that it should be possible to agree a basic template requiring these organisations to report a brief summary of their role, their objectives, their actual performance against key targets and the financial outturns. Some of the agencies set out clearly where readers might obtain further information about their work; it would be helpful if this practice could also be adopted across the board.

Our questions to the NIO on the Departmental Report, and their response, are reproduced at Appendix 1.

Review of recommendations

24. In our review of the Government's performance on our past recommendations, we this year decided to focus on matters arising from our past inquiries on devolved policy. We received a helpful memorandum from the Northern Ireland Office covering a number of areas including policy on special educational needs; electricity prices; and inward investment. Since the original reports on these subjects did not all include specific recommendations it is not possible in every case to make a direct comparison between performance at the time, and subsequent progress. Nonetheless we are pleased to note the evidence provided of policy development in these areas, particularly with regard to special educational needs (where new draft legislation is being prepared) and recent work on a new energy strategy. The Government's memorandum is printed as Appendix 2.

Other

Debates

25. Our 2002 report on The financing of terrorism in Northern Ireland was debated in Westminster Hall on 10 July 2003. In view of the Government's announcement on the reclassification of cannabis, in May we published an interim report in connection with our drugs inquiry which focused on the specific impact of the cannabis trade in Northern Ireland, and its links with organised crime. This report, and the Government's response, were cited on the Order Paper in connection with the reclassification proposal when it was finally debated in the House on 29 October 2003.[10]

Informal meetings

26. This year we have conducted a number of private and informal meetings in addition to our formal evidence sessions. Some of these meetings were conducted in the course of our visits, both within the UK and to the Netherlands and Dublin. Others were conducted at Westminster. They have been particularly helpful in relation to our inquiry into the drugs trade, in which we received some information which was too sensitive to place on the public record. We have also found value in adopting a more relaxed approach for some meetings—for example, conducting introductory briefings with officials in a seminar format has allowed for a more challenging and wide-ranging exchange of views than the normal structured process of question-and-answer.

Appointments

27. One of the tasks set by the Liaison Committee is to carry out 'appointment' hearings for major public appointments. We have not yet considered it appropriate to carry out such a hearing formally in public but we have nonetheless made it our practice, wherever possible, to meet individuals appointed to key positions privately at an early stage. This year we had a very valuable meeting with staff of the new Assets Recovery Agency. We are very grateful to them and to others we have met informally for their willingness to discuss their plans and priorities fully and frankly.

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1   Northern Ireland Affairs Committee 1997-1998, Second Report, Electoral Malpractice in Northern Ireland Back

2   HC 619-i Back

3   First Report 2001-02, Introduction of the aggregates levy in Northern Ireland, HC 333 Back

4   Introduction of the Aggregates Levy in Northern Ireland: one year on, Evidence presented by John Healey MP on 5 November 2003. The transcript of the uncorrected minutes of evidence is available on the Committee's website at http://www.parliament.uk/parliamentary_committees/northern_ireland_affairs.cfm  Back

5   Second Report 2002-03, Annual Report 2002, HC 271 Paragraphs 12-13 Back

6   See paragraph 10 above. The proposal for a draft Firearms Order was laid before Parliament and the Northern Ireland Assembly under the 1998 Act in July 2002 Back

7   Official Report, Second Standing Committee on Delegated Legislation, 1 April 2003 c16 Back

8   http://www.parliament.uk/parliamentary_committees/northern_ireland_affairs.cfm Back

9   See Appendix 1, Question 13 Back

10   Sixth Report and Sixth Special Report 2002-03 on The illegal drugs trade and drug culture in Northern Ireland: interim report on cannabis, HC353 and 935 Back

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Prepared 15 January 2004