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Furthermore, the Government have missed an opportunity to bind all the parties into a firm commitment to build a shared future, in order to counter the tendencies towards separation. That is why I ask the Government either to remove Clause 8, which would allow us to revert to the original position of a cross-community vote to confirm the First and Deputy First Minister, or to accept Amendment No. 5, which would provide for the Executive as a whole to be confirmed by a cross-community vote.

7.45 pm

Lord Glentoran: I put my name to Amendment No. 6 and wish to speak briefly in support of it. I find it staggering that we are in this situation and hard to understand how new Section 16C(6) comes to be there, particularly having listened to the noble Lord, Lord Trimble, about the past. It seems extraordinary that we find ourselves in a situation where the smallest grouping should be in a position, through a quirk of election numbers, to be able to appoint the First Minister. There must be a serious fault in there that should be corrected. It was not there in the past; the system has been proven in the past for appointing or electing a First and Deputy First Minister, so why are we messing about with it? If I am treading in the middle of strife and politics among the Northern Ireland parties, I have no intention of doing so but, from a purely pragmatic point of view, sitting where I do on this side of the House, I believe that the Government need to make a change.

Lord Rooker: The noble Lord, Lord Trimble, went out of his way to say that he would concentrate on Amendments Nos. 6, 7 and 8 and did not touch Amendments Nos. 3, 4, and 5. The noble Baroness did Amendment No. 5. Amendment No. 3 was moved, but if no one has spoken to Amendments Nos. 3 and 4 I could save the Committee a bit of time by not dealing with them, although I am happy to. I shall kick off with Amendment No. 5 and go through Amendments Nos. 6, 7, and 8, because those are the ones that we have actually debated.

Amendment No. 5 is in many ways similar to the model envisaged by the UK and Republic Governments in the proposals for a comprehensive agreement, which were published in December 2004. Those proposals were, as the Committee will be aware, the Governments' best call at that time of arrangements that would be likely to command sufficient support among the parties to enable there to be an agreement to go back into devolved government. Since then, my right honourable

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friends the Prime Minister and the Secretary of State have been engaged, along with colleagues from the Irish Government, in a series of discussions with the parties about the best way to move forward. The arrangement set out in paragraph 9 of annexe A to the St Andrews agreement, and provided for in Clause 8, represents our assessment in the light of those discussions about the best model to introduce.

I acknowledge that this does not provide an opportunity for Assembly Members to endorse the Executive's composition. However, it will in effect already have been endorsed by the electorate, since it is the people of Northern Ireland who determine through their voting the party strengths in the Assembly and therefore entitlement to sit on the Executive. That is of course an issue that the Bill envisages the Assembly, through the committee to be established under Clause 11, taking a closer look at in the years ahead. Our minds are not closed to the prospect of change; I want to make that absolutely clear. It is just that we do not feel that it is possible to go further now.

There is one change to the proposals made in annexe A of the St Andrews agreement which Amendment No. 6 seeks to nullify. The reason for the change is that, without it, on the current demographics, it would be impossible for there ever to be a nationalist First Minister. That is why the new Section 16C(6) provides that in circumstances in which the largest party in the largest designation is not in fact the largest party in the Assembly it should be the overall largest party that nominates to the office of First Minister. Without that we would signal that on the basis of current demographics we could never see a nationalist First Minister. I do not believe that that is what the Belfast agreement envisaged—far from it. I do not believe that it is what any right-thinking person would envisage either—that the system has that automatic check. It would deny the community the hope of ever having the opportunity to nominate a First Minister. It is very hard to defend a situation in which the largest party in the Assembly is prevented from doing so by a quirk of the arrangements.

This should not be portrayed as allowing a minority to dominate a majority or to receive preferential treatment. The offices of the First and Deputy First Ministers are equal offices, jointly held. Like the noble Lord, Lord Glentoran, I do not want to go down the road of what parties will say at the election; that is for the parties in Northern Ireland, which are best placed to make their arguments and present their manifesto at election time. We believe that Clause 8 is an appropriate means of delivering the commitment made in the St Andrews agreement and we cannot support the amendment.

I shall deal with Amendment No. 8 before discussing Amendment No. 7. It deals with a related issue of how Ministers, once approved, may be removed from office. The amendments in the name of the noble Lords, Lord Trimble and Lord Glentoran, would amend the 1998 Act to provide a discretionary power for the Crown to exclude a Minister or a junior

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Minister from office if the Prime Minister were to advise that it was in the national interest. I am aware of the concerns that noble Lords might have. Should there be adequate mechanisms to exclude Ministers from office where appropriate? Those concerns were voiced eloquently and at length yesterday, when the Bill was debated in the other place.

We recognise that noble Lords remain apprehensive about what provisions may be made in relation to, among other things, a potential return to violence by the Provisional IRA. Those are heart-felt fears and we respect them, but we believe wholeheartedly that Northern Ireland has undergone a complete transformation. We remain convinced that the amendment is unnecessary and that it goes too far. Ultimately, it is procedurally beyond the scope of the Bill and outwith the gift of this House.

I hope that noble Lords will allow me to offer some reassurance on the safety mechanisms already in place on ministerial conduct, because that goes to the heart of the amendment’s concerns. The pledge of office that all Ministers must make before taking up office requires a number of commitments that are clearly intended to protect the national interest and that of the Assembly and the electorate, including a commitment to non-violence and exclusively peaceful and non-violent means.

This Bill strengthens the pledge, adding four further commitments which Ministers are obliged to make, including the commitment to uphold the rule of law based on the principles of fairness, impartiality and democratic accountability, including support for policing and the courts. While the pledge of office sets out the standards for ministerial conduct, Sections 30, 30A and 30B of the 1998 Act ensure that wide-ranging powers are already available for the Assembly or the Secretary of State to exclude Ministers from office when those standards set out in the pledge have been breached.

Comprehensive mechanisms already exist to exclude a Minister from office where appropriate, so the amendment is unnecessary. However, there is a quirky, technical issue that the noble Lord may not have been aware of when he drafted the amendment. The conventions and process that must be followed when the Queen’s consent is sought are that the Palace should naturally be given as much time as possible for consideration, and the guidance states that that should never be fewer than 14 days. So procedurally it would not be appropriate for such a measure to be brought forward by emergency legislation and the amendment is therefore beyond the scope of the Bill. That is a hell of a good argument. I could have used it to start with, but I wanted to save it, because the Committee deserved and needed the other explanation. It was no good my trying to kill it with a technical issue because we are not here to debate technicalities; there are important political issues behind the amendment. The amendment would make provisions superfluous to the needs of the smooth functioning of the Assembly.

I turn to Amendment No. 7. In Northern Ireland, as the noble Lord has said, although the position is not quite as he explained it, most statutory functions

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are vested in departments rather than in their Ministers. That arrangement dates back to the establishment of Northern Ireland itself, which was not put together in the last few years. Originally there were six departments, which for devolution were divided up into 11. They were created as corporate bodies in law, on which statutory functions were conferred. However, that does not subordinate ministerial authority in any way. The Departments (Northern Ireland) Order 1999 makes it clear that the functions of a department shall at all times be exercised under the direction and control of the Minister. The departments are not acting independently of the Minister. Consequently the noble Lord’s amendment is unnecessary, as it would not have any practical effect.

The situation has been different with direct rule over the past 30-odd years, with Ministers coming and going, and sharing three or, as in my case, four departments. We are described as the commuting, part-time direct rule Ministers. It is not the same as Whitehall. You leave an awful lot of the day-to-day work to others, but you, as the Minister, are responsible.

The issue that the noble Lord raised about Northern Ireland departments possibly refusing to follow a Minister’s direction is not unique to Northern Ireland. In the United Kingdom civil servants operate under the Civil Service code, and if they believe they have been asked to act improperly they can seek a direction from the Minister. At that point such a direction can be given, and that is normally the case. It is set out in writing; copies are sent to the Treasury, and I believe they are also sent to the Public Accounts Committee, so the direction is placed clearly on the record. The difference in Northern Ireland is that the departments were created as corporate bodies back in 1922, but there is no surprise about that.

Baroness Harris of Richmond: The example given to us by the noble Lord, Lord Trimble, was anything but out of the ordinary. It was a straightforward indication that, while he was First Minister, one of his departmental heads had wanted something to be done and his civil servants effectively tried to bar him.

Lord Rooker: I cannot comment on the example, but on a matter of mere policy the Minister would have to have his way because he is in charge of the overall direction of the department. If it were another issue, maybe relating to the financial arrangements, where advice was given—as it would be given in a Whitehall department, by the way, if there were a financial arrangement—the accounting officer function would come into play. That is a normal process. The Ministers are not the accounting officers; the civil servants, chief executive or permanent secretary would be the accounting officer, and they would rightly take an accounting officer’s view—although I am not saying that was the case in the example. The difference is that, on a policy issue, the department operates under the direction and control of the Minister, so it is not acting independently.

The noble Baroness also spoke to the Question whether Clause 8 should stand part. I can say a few words on that, and I hope to carry the House with me. Clause 8 puts in place a new arrangement for appointing

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a new First and Deputy First Minister in the Northern Ireland Executive, in line with paragraph 9. It inserts three new sections into the Northern Ireland Act in place of the existing Section 16, and is in effect to provide, as required by the St Andrews agreement, that the offices should be filled by nominations, rather than by election as at present. Normally the office of First Minister is filled by the largest party within the largest political designation, and the office of Deputy First Minister is to be filled by nomination from the largest party within the next largest designation. Based on the current party strengths in the Assembly, there would be a DUP First Minister and a Sinn Fein Deputy First Minister.

The proposed new Section 16A makes clear that this nomination process, together with the subsequent running of d’Hondt, would normally take place within seven days of the first meeting of the Assembly. As we have discussed, however, if the Assembly is restored in March next year, the process needs to be completed in a single day. I mention that because it is important that Members are clear that we are focusing here on the normal arrangements that would apply under these new provisions in the 1998 Act.

Proposed new Section 16B deals with the arrangements for filling vacancies in either of the two offices. As at present, if one part of the pair resigns or otherwise ceases to hold office, the other technically does so, though they may continue to carry out the functions of the office until the positions are filled again in accordance with the St Andrews agreement process. Proposed new Section 16C is intended to help clarify how to measure party size and designation size. It also deals with the arrangements that should apply where one of the parties that are entitled to nominate has had its members excluded from holding ministerial office. In effect, their nominating rights would pass to the next largest party within the same designation. This clause is clearly necessary to give full effect to the St Andrews agreement. I hope that the clause will stand part of the Bill in due course.

8 pm

Baroness Harris of Richmond: My Lords—

Lord Trimble: I want to reply to the Minister’s comments on Amendments Nos. 6, 7 and 8—

The Deputy Chairman of Committees (Baroness Turner of Camden): Is Amendment No. 3 withdrawn?

Lord Trimble: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

Lord Trimble moved Amendment No. 6:

The noble Lord said: I apologise that I am not familiar enough with the proceedings here. I was a bit confused. I take it that I can speak only to Amendment No. 6, and I cannot reply on Amendments Nos. 7 and 8.

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Baroness Farrington of Ribbleton: You need to move your amendment if you wish to speak to it. If it would help you and the Committee, you can speak to the subsequent amendments in reply to the Minister. That should speed everything up. But first you need to move Amendment No. 6.

Lord Trimble: I will say a few words about Amendments Nos. 7 and 8 also. I am not impressed by the procedural point that the Minister made about 14 days. We do not have 14 days because the Minister has not allowed that period for the debate on this Bill. The point that he is relying on is not one that he should be proud of. I take the points that he made about the other safeguards. It has to be said that the other safeguards have their limitations, and it is because of those limitations that we have had crises in the past. I hope that we do not have them in the future. There is a certain element of risk that ought to have been provided for. I suggested a way of providing for it, but it has not found favour with the Minister, so I will not press Amendment No. 8.

On Amendment No. 7, there is an analogy with the situation here, and permanent secretaries are accounting officers in Northern Ireland as well. I referred to the department’s order under which the Minister can direct and control the department; but there is a significant difference. The power of decision does not rest with the Minister and the information that comes from him is different. Admittedly, when the power is vested in the Minister, in practice he delegates a lot of that power to officials; but it is delegated, which means that he remains in control. When the power is invested in the department, the Minister’s position is different and a lot of information does not flow up, because there is no need for that. There has been no delegation and the function is elsewhere.

Under direct rule, officials have expanded their power considerably. Devolution may result in a bit of claw-back, but once practices are established it becomes extremely difficult to change them. The Minister, or at least other Ministers, may want to reflect on that as people who are politically accountable, because that is a weakness of the position of existing Northern Ireland Ministers. The Minister wants to say something. I beg to move.

Lord Rooker: I was seeking to intervene, not to stop the noble Lord. In some ways, what he referred to has become custom and practice. There were examples in the year that I was a direct rule Minister when the Secretary of State, myself and other Ministers were told by officials, although I will not go into the issues, “We have decided that this is what is to happen”. We reminded them that we were the Ministers and that we made the decisions because ultimately we were accountable. That was not a criticism, but it was a culture that had grown. When, as is the case under direct rule, you do not have day-to-day hands-on Ministers in departments, you rely on civil servants to get on with the job. The business of government has to carry on so that citizens are not disadvantaged. That is why we want direct rule to finish and to have a team of local Ministers in charge of those departments. That is the reality and that is what this is about.

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Lord Trimble: We want that to happen on a sound legal basis. I know the difficulties that the Minister sometimes has in coming to Northern Ireland, but he comes from a culture here where there is no doubt about his power in his department. He has famously asserted himself on certain issues about which direct rule Ministers were not always invited to take decisions. Indeed, devolved Ministers were not invited to take decisions during devolution. However, he did so because he comes from this political culture, which is accustomed to the power of Ministers.

The devolved Ministers that we had and those that it is hoped we will have have grown up within the culture that has been developed under direct rule. They very much look to their officials for advice and guidance about what they do and how they do it, and that perpetuates this not terribly healthy culture. I therefore think that a change in the legal basis would also help to change the culture in a healthy way. That is why I said to the Minister that he and his ministerial colleagues might like to reflect on this point, thinking as politicians and elected representatives rather than from an official point of view. However, this is not a matter that I wish to press at this stage.

On the other hand, I should like to press Amendment No. 6, which would leave out lines 35 to 42 on page 9. I was most unimpressed by the Minister’s explanation that the provision has been introduced because the demographics mean that there will never be a nationalist majority and a nationalist First Minister. That has been the position for centuries and it will certainly exist for a long time. Suddenly feeling a need to introduce the provision now begs questions and, with all due respect to the Minister, I prefer my explanation for the reasons for its introduction. It is a matter that I should like to press. Before doing so, I cannot resist the temptation of mentioning the fact that the Minister talked about the First Minister and Deputy First Minister being joint and equal and so on. I have always regarded the First Minister as first—I have no doubt about that. However, we feel strongly about Amendment No. 6 and I should like to test the opinion of the Committee.

8.09 pm

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 106.

Division No. 2


Addington, L.
Ballyedmond, L.
Bridgeman, V.
Brookeborough, V. [Teller]
Browne of Belmont, L.
Burnett, L.
De Mauley, L.
Ferrers, E.
Gardner of Parkes, B.
Glentoran, L.
Greenway, L.
Harris of Richmond, B.
Henley, L.
Jones of Cheltenham, L.
Kirkwood of Kirkhope, L.
Laird, L.
Livsey of Talgarth, L.
Luke, L.
Maginnis of Drumglass, L. [Teller]
Mar and Kellie, E.
Mayhew of Twysden, L.

22 Nov 2006 : Column 399

Monson, L.
Montrose, D.
Morris of Bolton, B.
Morrow, L.
Norton of Louth, L.
O'Cathain, B.
Park of Monmouth, B.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Roper, L.
Tebbit, L.
Teverson, L.
Thomas of Winchester, B.
Trimble, L.
Tyler, L.
Ullswater, V.
Wallace of Saltaire, L.
Walmsley, B.


Adams of Craigielea, B.
Adonis, L.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Bilston, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kinnock, L.
Lea of Crondall, L.
Leitch, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
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