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Lord Trimble: I thank the noble Lord for giving way. What sparked my intervention was the statement that it had not been applied. It was applied. The revised ministerial code was operated in practice for a long time before suspension.

Lord Rooker: The noble Lord was the First Minister and we now have an interesting period. As I am informed, the ministerial code was undergoing a review process prior to suspension and a revised version had been drafted by officials, although not agreed by the Executive. I do not think that the noble Lord contradicted that. He may have said that the Executive were operating it, but they had not agreed to it.

Lord Trimble: Formally, it was not agreed; it was being drafted. Officials were certainly taking a role in the drafting but a significant role was also being taken by the various political advisers who helped to service the Executive. In fact, they would be miffed at anyone thinking that they did not have the lead in the revision of the ministerial code. Formally, it was not signed off but—I think I am right in saying—there was consensus among the parties and it was being operated in practice.

Lord Rooker: I fully accept that and I am grateful for the elucidation because I do not think that there is a conflict between us. In spirit, there was a revised draft—clearly, the noble Lord was there and he and his colleagues were operating it. It had not been formally approved. Thank heavens I am not a lawyer, but I suppose that because it had not been approved, if there were any judicial review or anything like that, that may have been a problem.

Before I say anything further, because I do not think that there is a conflict between us, it is the sincere hope of the Government and the Secretary of State that the duty to impose a draft code will never be triggered anyway. We want the transitional Assembly. Parties have engaged in much valuable work over the summer, by the way. It is not as though they have not been talking to each other. They have been involved in the Preparation for Government Committee.

I hope that noble Lords share my hope that that engagement will continue in the transitional Assembly from Friday this week and that it will agree its own code before 24 March, negating the need for the Secretary of State to impose the code. But if it comes to that, notwithstanding what the noble Lord has just said, the only code that the Secretary of State should reasonably use as a model on which to base his code is the one agreed, applied and in legal being before suspension—although versions of that were applied in spirit, if not formally agreed.

I take on board what the noble Lord said. The Executive were doing their best to operate a new system under a new code, but it had not been legally promulgated. The Secretary of State could probably find himself in trouble if he went for a code that had not gone through that process. That is what we are seeking to cover, so that we are not in the courts. I

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understand that judicial review is frequently used in Northern Ireland. That is why I ask the Committee not to accept the amendment, although I fully accept the spirit of it and what the noble Lord said, which was important.

I congratulate the noble Lord, Lord Morrow, on his maiden speech this week. I am sorry that I was not present. I sincerely hope that he will make good use of this place. He asked about the status of the ministerial decision. First, a decision taken in contravention of the code, and therefore without ministerial authority under new Section 28A, would expose that Minister to existing procedures under the 1998 Act. Secondly, the noble Lord is right that any ministerial decision taken without ministerial authority is open to legal challenge. That is the formal legal position.

There will be a duty on the transitional Assembly—we sincerely hope there will be an Assembly after Thursday—to prepare and approve its own draft code before 24 March, as I said. It is our wish that it does so. It would be open to the Assembly to prepare and agree a code in the form of the code that the noble Lord, Lord Trimble, said was operated by the Executive although not formally agreed by them. That is completely within the gift of the transitional Assembly. We do not seek to impose one on it. That is the whole point of this. We want these decisions to be taken by locally elected politicians in Northern Ireland. They should come forward with their code, and if that code is based on the shadow code that has been formally operated, that is entirely up to the transitional Assembly. That is its choice. It must do so, however, before the said date: 24 March.

Lord Trimble: My apologies. My mind was on the next lot of amendments. I have listened to the Minister. I still have a few niggles in my mind about the matter, but I do not want to press the amendment to a vote. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 agreed to.

Clause 7 [Pledge of office]:

[Amendment No. 2A not moved.]

Clause 7 agreed to.

Clause 8 [First Minister, deputy First Minister and Northern Ireland Ministers]:

Lord Trimble moved Amendment No. 3:

Page 7, line 8, leave out “shall” and insert “may”

The noble Lord said: For the sake of expediting our procedures, I shall focus on Amendments Nos. 6 to 8 in my name. The amendments cover quite diverse issues. Amendment No. 6 would omit subsection (6) from the new Section 16C, which Clause 8 will insert into the 1998 Act. In order to explain this and my reason for focusing on it, it is important to set out the background. It concerns the election of the First Minister and Deputy First Minister. Under the agreement, they were to be jointly elected by a special majority of the Northern Ireland Assembly. Then in the negotiations that led to the abortive proposals

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which the Government published in December, there were suggestions for a different form of election of those Ministers. These were developed further into clauses that were circulated by the Government and that provided for a mechanism for nominating the First Minister and Deputy First Minister and ending the joint election. That is now embodied in new Section 16A, also inserted by Clause 8.

The procedure in new Section 16A is that the nominating officer of the largest political party of the largest political designation is to nominate the First Minister and the nominating officer of the largest political party of the second largest political designation would nominate the Deputy First Minister. If, as is likely, the elections produce a majority of unionists, the leader of the largest unionist party will nominate the First Minister and then the leader of the largest nationalist party will nominate the Deputy First Minister. There would not then be a joint election. Those were the proposals we expected to see in this legislation until the very last minute. But at the very last minute in came new Section 16C(6), which I propose should be deleted. Subsection (6) would reverse the arrangements. It states:

“If at any time the party which is the largest political party of the largest political designation is not the largest political party”,

the nomination is to be made by the nominating officer of the largest political party.

What that would mean in effect is that if we had the Assembly election and a majority of the Assembly Members returned were unionists, but the unionist vote was spread over several parties with the result that one nationalist party had more Assembly Members than any one of the unionist parties, that nationalist party would nominate the First Minister. So, having set out a process in new Section 16A whereby the First Minister will come from the largest designation—the largest group as between unionists and nationalists—it is now suddenly turned on its head if, in the vagaries of the election, one nationalist party gets more Assembly Members than any one of the unionist parties. To put it crudely, and I am sorry to have to do so, it seems that this is a simple fix. It was probably done at the behest of Sinn Fein and the DUP, the result of which will enable the DUP to go around Northern Ireland saying “Vote for us or else you’ll get Martin McGuinness as First Minister”, and will enable Sinn Fein to go around the country saying “If all nationalists vote for us there’s a chance we’ll get Martin McGuinness as First Minister”. It is a crude device which people will say is the result of the law, and it will be used to polarise the electorate. You can imagine the effect that that is going to have on politics.

It is quite inappropriate. The original proposals were better. Indeed, best of all were the provisions in the Belfast agreement which provided for a joint election of the First and Deputy First Ministers. That meant that there had to be agreement between the relevant unionist and nationalist parties on who would be elected. As a consequence, it meant that we would have had a say. It was my intention, bearing in mind the options it offered, that if we had a situation where Sinn Fein got more seats than the SDLP so that the Deputy First Minister would come from Sinn

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Fein, I would have used the influence given by the joint nomination to ensure that the individual who was nominated by Sinn Fein was someone likely to command respect across the community as a whole and thus able to carry out his functions effectively. That was the advantage of the original provisions.

Having said that, the original proposals the Government were first going to go with—those set out in Section 16A(4) and (5), where the nomination would be made by the largest political party of the largest political designation—had some advantages, but worst of all is the position we may end up with if circumstances trigger Section 16C(6). That is why I have tabled Amendment No. 6 to take it out.

7.30 pm

Amendment No. 7 relates to a very important issue and I beg the indulgence of the Committee because it needs some explanation. When I was drafting the amendment we considered in the previous group of amendments which sought to delete the provision that a Minister has no ministerial authority to take any decision in contravention of a provision of the ministerial code, I was reminded of the question: who does take decisions in Northern Ireland?

The law in Northern Ireland with regard to statutory functions and Ministers is radically different from the law in the rest of the United Kingdom and the practice that has developed from the experience of this House and elsewhere. Here, statutory functions are vested in Ministers; in Northern Ireland, statutory functions are vested in departments—it is not the Minister who decides. The Minister may meet his permanent secretary and say “I think we should do X”, and the permanent secretary may say, “Very good, Minister, we will do X”. But the person who legally takes the decision is the permanent secretary because he has the power; the Minister does not.

The only power the Minister has by virtue of being a Minister is to direct the department. We have had experience of that; it produces some classic “Yes Minister” situations. If the permanent secretary does not like what is being proposed, he will gently and respectfully suggest so. But it has on occasion reached a situation where the permanent secretary has said to the Minister, “You are acting against the advice of the department and we will not do this unless you issue a formal direction”.

My close colleague, Reg Empey, had experience of this; when he was a Minister he had to issue a direction to the department. He told me that they made a tremendous paraphernalia about it. Teeth were sucked, tongues were clucked, everybody gathered together very solemnly, and so on, and a document was drawn up whereby my colleague had to formally direct his department to do something that the department thought should not happen. The issue concerned—I find this most amusing—was a proposal to build a north-south gas pipeline, which the department said should not be done and which a unionist Minister insisted be done. Indeed, he had negotiated a very good arrangement with his Irish counterpart, which resulted in his Irish counterpart

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investing money and financing the pipeline within Northern Ireland. We have benefited from that and everyone will benefit from the assurance of supply that exists through having that network. The issue is not important. It is just ironic in the context that this was the issue on which my colleague had to issue a direction because the power was not in him; he had only the power to direct.

A further illustration occurred when, in 2001, because of the failure of the republicans to decommission, I was arranging for our Ministers to resign as a means of putting pressure on them. This, incidentally, worked because they started to decommission within a week or two of the final step of a process I had been operating over some months to bring pressure on them. In the discussions about the resignations—it involved not only my resignation, about which the officials were quite relaxed, but also the resignation of other Ministers who had statutory functions to discharge—there was a point where a senior official said, “We do not want the public finding out that we can take decisions without Ministers”. That is the position in Northern Ireland.

It is most anomalous. No one knows quite where it comes from. It does not come from any plot that Governments have thought of over the past 20 years; it comes from the Government of Ireland Act 1920. The draftsman of that Act—a gentleman who rejoices in the name of Quekett—was the one who did it, but no one knows why. It is thought it has something to do with the practices and procedures in the local government board in Dublin, but I do not know what they are. I do not know why no one noticed this as the Act went through Parliament in 1920, although I have to confess I have not gone to the point of researching the parliamentary debates on the Government of Ireland Act 1920 to see whether the matter was ever raised. Perhaps a little legal essay could be written on that aspect of the matter. But it is anomalous. It is a matter that I raised within the process in Northern Ireland, as First Minister, on a number of occasions.

If you link what I have said with the previous clause about the decisions of Ministers, there will be a little gap legally because, strictly speaking, the decision is not taken by the Minister. But the situation would be better than it was: it would improve accountability as well as improving the self-respect, power and authority of Ministers if the statutory functions were vested in them. I think that Amendment No. 7 is important and hope that the Minister will find the opportunity to reflect seriously on it.

The origins of Amendment No. 8 lie in the fact that the Bill will repeal the Northern Ireland Act 2000 under which the Government took the power to suspend. The history is hugely important: it arose out of discussions we were having with the Government and with other parties in 1999. In order to achieve devolution and see the agreement implemented—there were a whole lot of things in it that I considered would be hugely beneficial for the community and the party—we had to get devolution working. While we very much wanted IRA decommissioning to take place before taking office, it was clear that we were not going to achieve that. It was also clear that there

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was the possibility that we could achieve it very soon after taking office. Indeed, republicans went out of their way to encourage that belief. But before moving on that, I decided we had to have a safety net. That was negotiated with the Government and became the Northern Ireland Act 2000, under which the Government had the power to suspend, which they exercised a couple of months later when republicans failed to deliver. That was hugely important to us; we would not have moved without it. We regarded the existence of the suspension pact as our fallback guarantee throughout the time of devolution because it gave us leverage over republicans.

The repeal of the Act leaves things somewhat, although not entirely, up in the air. In the Northern Ireland (Monitoring Commission etc.) Act 2003, which provided for the Independent Monitoring Commission, provision was made for the exclusion of Ministers by the Secretary of State in the event of the commission recommending that that be done. That remains a significant safeguard which should not be underestimated. The range of sanctions is limited but there is the major sanction of exclusion, which the monitoring commission can recommend, and that is hugely important.

When the legislation was going through, the Liberal Democrats pointed to the need to have a power that could be exercised in exceptional circumstances. The Government accepted a Liberal Democrat amendment which appears in Section 8 of the 2003 Act; it gives a limited emergency power but can operate only in very narrowly drawn circumstances. Contemplating the repeal of the 2000 Act and the limited range of powers under the 2003 Act, I thought that a gap needed to be filled to deal with emergencies. I regard this as something that would be used only where there was an emergency. The difficulty was how to draft it. I ended up throwing several drafts into the wastepaper bin. When you cannot quite envisage the circumstances that might trigger this need, you have problems drafting legislation.

I have ended up taking my cue from the old saying that the British constitution lies in procedure rather than formal structures. I decided to create a procedural route which, by its nature, would be used only in extreme circumstances. That is why I have suggested that Her Majesty could exclude a Minister on the advice of the Prime Minister. That will not be done except in very extreme circumstances. I cannot define what the circumstances might be; if I could I would have included them in the amendment. But I feel that there is a need to have emergency rations that can be used if we have unforeseen circumstances. Given the nature of what we are dealing with in Northern Ireland, nobody can put their hand on their heart and say that everything is guaranteed to run smoothly.

There is a need for a safety net. This is a very limited safety net which it is desirable to have. I commend all three amendments to the Committee. I beg to move.

Baroness Harris of Richmond: I support Amendments Nos. 6 and 7 of the noble Lord, Lord Trimble. When speaking to Amendment No. 7, he brought to our

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attention an extraordinary state of affairs. The Committee should thank him most sincerely for having managed to winkle out what has been going on in Northern Ireland all these years. The fact that Ministers can only give a direction to permanent secretaries, and permanent secretaries have a power to do almost anything they want, is quite extraordinary. The Minister should look carefully at this situation and tell us how it can be sorted out. We would be enormously grateful to him were he to do so. Who takes the decisions in Northern Ireland needs to be made absolutely clear.

I shall speak to Amendments No. 5 and the Question whether Clause 8 should stand part of the Bill, which are in my name and that of the noble Lord, Lord Smith of Clifton. Before doing so, I give notice that I intend to reserve my right to test the opinion of the House on the Question whether Clause 8 should stand part of the Bill, but I will listen to the remarks of the Minister before I decide.

Clause 8 removes the need for a cross-community vote of the Assembly to confirm the nominations of the First Minister and Deputy First Minister. Before the St Andrews talks began, it was proposed that this requirement would be replaced by a vote to confirm the whole of the Executive. We even received a draft clause from officials to put this in place. Our Amendment No. 5 would insert the relevant parts of that clause into this Bill. We have amended slightly the definition of cross-community consent, which we shall discuss later this evening, to ensure that the votes of all Members of the Assembly have equal weight. Even this proposal has now disappeared and no vote will be required to confirm any of the Ministers in their positions in the Executive. This is very bad for the effective government of Northern Ireland.

Under the 1998 Act, the First Minister and Deputy First Minister are required to act jointly on a number of specific occasions. They should act jointly. This is surely the whole point of what we are trying to achieve in Northern Ireland; namely, a Government where local politicians act together for the good of all the people of Northern Ireland. When the Assembly exercised devolved power in the few years in which it was operational before suspension, there was very little—in fact, no—collective responsibility in the Executive. Ministers acted individually; power-sharing was already weak under the Good Friday agreement. This was evidenced by the poor relationship between the UUP and the SDLP. While some minor improvements have been made, these are not sufficient to take into account the increased political polarisation and the ascendancy of the DUP and Sinn Fein.

How do the Government expect this situation to improve when there is to be no indication that the Assembly confidently expects the Executive, including the First and Deputy First Ministers, to work together? The removal of the need for any vote, for either the joint election of First Minister and Deputy First Minister or for the Executive as a whole, is a major flaw. The need for government parties formally to recognise each other’s mandates and legitimacy in having a share of power and responsibility has been

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undermined. There is a danger that the only way in which the DUP or Sinn Fein could operate or coexist within the same Government is through creating more and more separation. At present, the DUP and Sinn Fein do not appear to be talking to one another. It is a big leap to see them effectively running a regional Government in partnership in four months, hopeful though we might be of it. Northern Ireland could end up with government by memorandum, with civil servants acting as messengers between various Ministers who are not prepared to talk to one another and are not required to do so by the system.

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