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Section 1 begins: Other subsections follow that talk about Ministers not being able to interfere with judicial decisions through any special access to the judiciary. That is on top of the pledge that I have referred to from the Belfast agreement.

As I said at the outset, the underlying aim of embedding support for the rule of law into the political life of Northern Ireland is unquestionable: it is not questioned by me or by anyone in the Government. For the reasons that I have outlined, however, the Government are of the view that the existing arrangements under the 1998 Act and the Constitutional Reform Act 2005 are sufficient. We have made it clear, both here and in the other place, that if the parties want to make changes to the pledge of office, and if they can agree on a form of words in the context of a package on the other strand 1 issues, we stand ready to take such changes forward in legislation. I ask noble Lords not to push the amendment, for the reasons that I have given today and in Grand Committee.

Lord Tebbit: My Lords, what worries some of us is that we have seen in the papers recently that Sinn Fein activists have sought to justify the murder of a very decent and brave lady in Northern Ireland on the basis that she was an informer. Informers have been treated by Sinn Fein as lowly creatures but, surely, if justice is to be established, we have to have informers. If we had had more of them, perhaps there would have been fewer murders.

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Lord Rooker: My Lords, I do not want to go into the detail of that case, which I am aware of from the media, but the fact remains that we need more co-operation with the forces of law and order and the rule of law in order to create in Northern Ireland a normal civic society, which it is not at present.

Lord Glentoran: My Lords, I thank the Minister for what he has said. I do not believe that on this occasion my amendment would interfere at all with the pledge of office—I had dropped that amendment. This amendment is purely to make obvious failure to support of the rule of law, the judicial processes and the PSNI a reason for the removal of a Minister.

I felt that the Minister had some sympathy with that. His explanation of Section 4 of the 2005 Act was something that I had not heard before and need to brush up on; in fairness to him and other noble Lords, I should research it a little more. I think that the Government know what we are after here. However, there may be a way in which we can between now and Third Reading bring some provisions of Section 4 to the fore and strengthen the Bill.

As I said in my opening remarks, this is something that could be enacted only by the Assembly and which would require cross-community agreement because of the way in which voting takes place in the Assembly. So I shall do some research and probably bring back the amendment at Third Reading, but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No. 12:

(a) with the amendment or amendments specified under sub-paragraph (1B) incorporated into the draft Order in Council, or (b) with notice in writing to each House of Parliament of the Secretary of State's refusal to incorporate the amendment or amendments specified under sub-paragraph (1B) and the reasons for that refusal.

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The noble Lord said: This is on a very different subject. I thank the Minister for inviting me to discuss this measure—I believe that he had similar discussions with the noble Lord, Lord Smith of Clifton. To use the vernacular, I suppose that it is about anticipating a plan B. In tabling the amendment, we are trying to set up a democratic process that is both transparent and efficient and allows both Houses of this Parliament to operate cohesively. The current procedure is more akin to how the Colonial Office used to rule far-flung territories of the British Empire than it is to an acceptable method of government for an integral part of the United Kingdom.

The noble Lord, Lord Molyneaux of Killead, once referred to Ulster as an internal colony. Reliance on direct rule for the foreseeable future is unfortunately a very real possibility. The deadline set for November this year would be meaningless if it were not. Of course, the preferred option is that the Stormont Assembly will take over the handling of devolved matters, but we cannot gamble the future of democracy in Northern Ireland on that hope. It is now more than eight years since the Belfast agreement. If it is not possible to form a stable Government in that time, we must stop burying our heads in the sand and come up with an acceptable way to govern Northern Ireland from Westminster.

As the debate in Committee showed, we all appreciate the flaws in the current procedure. Current scrutiny of Northern Ireland Orders in Council is cursory, especially in another place. The closest thing to democratic accountability that the procedure allows is outright rejection by Parliament, with no possibility of amendment or improvement.

We have been challenged to come up with an alternative. I venture to think that the amendment will provide the basis for a workable procedure that will provide much greater scrutiny and accountability than what has gone before. Our previous amendment was challenged because of the potential for an irreconcilable clash between this House and another place. We have therefore returned with a new and improved version. The amendment allows both Houses to vote on suggested amendments to a draft Order in Council, which the Secretary of State would then consider and incorporate—or not, as he sees fit. The amendment would allow Northern Ireland Orders in Council to be subject to more effective and constructive scrutiny than before, without unduly wasting parliamentary time or establishing dangerous parliamentary precedents.

I was going to wind up my remarks at this point, but I think that it is worth saying this. The Minister and the Secretary of State for Northern Ireland and his team are very anxious that no plan B should be considered feasible at this stage, but this proposal is not so important that it will affect parties’ decisions whether to accept the opportunity to devolve government and work together. I simply do not believe that having this process on the statute book, which will allow us to handle Northern Ireland legislation democratically and efficiently, will affect the decision-making process of any of the parties negotiating the future of devolution, and I strongly support a number of the Government’s policies, which may not be popular in the Assembly,

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and their wish to improve the economic structure in Northern Ireland, to improve and modernise the process of government in Northern Ireland, and to modernise local authorities and so on. With all that on option, I simply do not believe that a little administrative order or issue such as this will change the minds of Ian Paisley, Mark Durkan, Gerry Adams and Sir Reg Empey. I beg to move.

Lord Smith of Clifton: My Lords, a small number of Members of your Lordships’ House who follow Northern Ireland activities will know that, for two or three years now, I have been pressing for a change in the character of the executive order of much Northern Ireland business. That is not to say that there is no case for secondary legislation, but, as the noble Lord, Lord Glentoran, said, the take-it-or-leave-it character of orders and statutory instruments is extremely frustrating and frankly does scant justice to the Northern Ireland business that comes before Parliament.

I do not believe that it is beyond the wit of humankind—although after today it may be beyond the wit of the Northern Ireland Office, judging by what we have heard from it—to contrive to have a protocol that is susceptible to amendment. I say to the officials who continually brief Ministers that nothing can be done, and who come out with all this rigmarole about the conflict between two Houses, that those are British constitution A-level essay-type things. Frankly, they must get it into their heads that constitutional protocols are for humankind and that humankind is not for constitutional protocols. They must get their priorities right.

Much has been said in Grand Committee and by the noble Lord, Lord Glentoran, and I shall not delay your Lordships by repeating the arguments for determining Northern Ireland business more democratically. After all, this is not new. In the debates on the Legislative and Regulatory Reform Bill, there are signs that the Government have accepted that it would be wrong to push through primary legislation that would implement Law Commission recommendations by means of statutory instrument. I believe that Ministers from the Department for Constitutional Affairs are exploring, with opposition spokespeople, the best way in which to ensure that uncontroversial proposals are expedited with proper scrutiny. In Committee on that Bill, the noble Baroness, Lady Ashton of Upholland, said:

If it is possible for another government department to consider a new parliamentary procedure to satisfy such criteria, why is it not possible for the Northern Ireland Office to consider a similar procedure for dealing with Northern Ireland orders? This is very important.

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Speaking in support of the noble Lord, Lord Glentoran, I would add that it is extremely unlikely that having this measure as a safety net would somehow negatively influence the parties in Northern Ireland that are discussing whether or not to reconvene the Executive. This ought to urge the parties to get on with it and to re-establish the Executive at Stormont. While it helps as a prod to those discussions, it also gives us a fail-safe if, unfortunately, 24 November comes and goes with no restoration. We cannot then suddenly start considering what needs to be done. We need at this point to prepare for that eventuality. We should hope for the best, but we need to prepare for the worst.

4 pm

Lord Kilclooney: My Lords, it is refreshing to hear the words of the noble Lords, Lord Smith and Lord Glentoran. There has to be a plan B. Of course, Her Majesty’s Government have already announced such a plan because when the Prime Ministers of the Republic of Ireland and the United Kingdom met in Armagh City in May, they said that, failing the creation of an Executive on 24 November, the Dublin Government and Her Majesty’s Government would work more closely together in the administration of Northern Ireland. At the time, we saw what was in my opinion substantial decommissioning by one of the terrorist groups, the IRA. The other two main paramilitaries, the UVF and the UDA, were also moving towards decommissioning. But what happened? Following the announcement by the two Prime Ministers that Dublin was going to become involved in the administration of Northern Ireland should the Executive not be created on 24 November, the two loyalist paramilitary groups immediately announced that they were not proceeding with decommissioning.

Alarm bells started ringing right across Northern Ireland. It was seen as a compromise by Her Majesty’s Government that the Republic of Ireland would become involved in the internal affairs of Northern Ireland. Noble Lords may think that this is not important, but to the people who live in Northern Ireland it is very serious indeed. It is time that notice was taken of the danger of that statement. Whether you disagree with it or not, it was a plan B. The great news is that both the Liberal Democrats and the Conservatives are thinking of alternative plan Bs, but it is very important to recognise what is happening in Northern Ireland today. I do not believe that we will have a settlement by 24 November—I shall not go into the reasons why.

Yesterday we had our national holiday, and there is a holiday today as well. What was significant in Northern Ireland yesterday was that the Union flag was not flown as much as usual. Across Northern Ireland, the Ulster flag—the Northern Ireland flag—began to emerge as the main flag flown by the majority community. That is a warning to Her Majesty’s Government and to Parliament in London: things are beginning to move in Northern Ireland in very dangerous way. I do not want to exaggerate the situation, but I believe that the British majority in Northern Ireland is preparing for a major conflict. It is time that the Government addressed this problem before it overtakes them.

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Lord Rooker: My Lords, I realise the seriousness attached to the issue in the amendment and I hope that I have made it clear that the Secretary of State, along with the whole Northern Ireland team, shares those concerns. The current Order in Council process is not adequate in the long term, but while I do not want to revisit old battles, one has to admit that it has served Northern Ireland since, I think, 1972. I cannot believe that that was not looked at during the long years of Conservative Government to try to find a better system for more scrutiny in both Houses. Obviously, a solution was not found. We do not have one either at the moment though I suspect that every Member could find a way of doing it.

We take the concern seriously, but we may not be believed until we have put our solution on the table. At the moment the Government are not prepared to put a solution on the table. I am not saying that these issues are not thought about. We genuinely do not want plan B or plan C to interfere with plan A; we want the Assembly back. It is the duty of Northern Ireland politicians to get elected and to serve their people. Direct rule and inadequate scrutiny of Orders in Council have to be second best in any democratic process. If restoration of the Assembly is not possible, we would want to engage with Members of both Houses to find a way of making the system work better. We have had discussions in the past 12 months on that but we have not come up with a Northern Ireland-proof solution, specifically for it—though I accept that the amendment is—that does not spill over into the management of the business of secondary legislation across the Houses. The Secretary of State has asked and charged the Minister of State, David Hanson, to take this matter forward with the parties in due course if that situation arrives. However, we do not want to plan for failure.

For some, the present situation is very comfortable—direct rule, part-time commuting Ministers; it’s great for them. They love it because they do not have to grow up and take decisions themselves. They coalesce only in attacking the Government; it’s the one thing that unifies them. They don’t have to stand up and say what they would do, how they would fix the budget. They have no responsibility whatever. We want them to grow up and take adult decisions on behalf of those they seek to represent. But some people are comfortable with the status quo. I genuinely think that the amendment, though it may offer the seeds of a possible solution, could get in the way and help the prize slip from our grasp. We have some distance between now and24 November. I realise that there will be a Recess, but I think that the situation will hot up considerably towards the end of the September/October period. I do not want to say anything now that will cause problems in that period.

I want to put a couple of points to noble Lords. One of my colleagues in the other place, devaluing the argument somewhat, said to me, “I don’t understand what the Conservatives are complaining about. They are a party of government; they have been in government and aspire to be a Government, and the Lib Dems haven’t been there for 100 years or near enough, yet they come up with these solutions because they think it’s easy”. Well, it isn’t easy. If it was, we would have

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found a solution by now. In fact, we would have found a solution under the direct rule of the Conservative Administration.

Lord Smith of Clifton: My Lords—

Lord Rooker: My Lords, perhaps I can just make this point. Then I will give way to the noble Lord, obviously.

We have looked at the amendment, and I have had brief discussions during the week. If it were carried, we could not, for a start, use the Grand Committee process. We could not use the Grand Committee process in this House to discuss the draft of an amendment because it is rigidly organised to allow debate only on non-controversial matters and does not allow for changes or amendments. That does not apply to every order; many orders could be considered there. However, those orders could not go to a Grand Committee. They would have to be considered on the Floor of the House. We have to find ways of dealing with this—ways that have not been found in all the years since the Stormont Parliament was first set aside.

The noble Lord, Lord Smith, talked about a failsafe. I say with due respect that, because we are serious about the date of 24 November, a failsafe will have to be seriously and urgently considered after that date. We do not want to do so beforehand, for the reasons I have explained.

I shall briefly address the point made by the noble Lord, Lord Kilclooney; it is not the first time that he has made it, and I made sure that those responsible for the issues were made fully aware of his point when he first made it. The tune changed slightly. It is not envisaged—it was never part of the plan—that the Government of the Republic of Ireland will in any way, shape or form be involved in the administration of Northern Ireland. We have no mandate as a Government for that and do not seek it, but I and colleagues have pointed out that the cross-border issues do not go away, given all the pressures of the economy and the position of the island of Ireland within both Europe and the world economy. For example, we have had questions in the House recently about a common corporation tax on the island of Ireland, specific to businesses both north and south. They can make a case that it ought to be different from Great Britain. That pressure comes not because of political forces, but because of the economic changes in the world. I am not saying that it will happen, but there will be areas of co-operation. Part of the Bill creates a wholesale electricity market; that is part of those pressures.

I was going to mention the subject of yesterday earlier, and have just been reminded of it; I was obviously not there. Yesterday was the most peaceful 12 July for 30 years. In fact, it was the first time in30 years that the Army was not deployed on 12 July. That is absolutely fantastic. I am still doing duty weekends in Northern Ireland, and I have seen the collection of the bonfires ready and all the paraphernalia that goes on which people want to celebrate. I know what has happened in the past as a result of that, whether it is hotheads or others just out

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to cause trouble. The atmosphere that we have at the moment, when 2006 is the first time in 30 years that the Army is not out on the street on the major holiday, has to be of major significance.

The noble Lord, Lord Kilclooney, made a point about flags; I cannot respond to it in detail. I look on it as maybe positive that other flags were used rather than the flags of the past, although I take the serious point—the implication of what he said—that the loyalist paramilitaries are keeping their arms ready to fight British soldiers. That threat is the implication of not disarming; he agrees. It is outrageous. We want them disarmed like the others. There is no excuse for the paramilitaries to keep their weapons. There is no selling out, to use the terms that people have used in the past. The Government of the Republic will not be involved in the administration and governance of Northern Ireland, but there will be north-south co-operation as there are areas of co-operation east-west, such as the health service. Citizens of the Republic can go into hospitals in Northern Ireland, particularly the north-west, where the hospitals are closer to them than those in the south. I am sure that such good areas of co-operation will continue.

That does not mean to say that the Government of the Republic will be involved in the administration of Northern Ireland. That is not a plan B. However, it is a natural consequence that if there is not a Northern Ireland Assembly, we as the UK Government will not mind the shop. We will push forward areas of reform—of public administration and of other areas in Northern Ireland—and, where it suits us both, particularly in economic co-operation, it makes sense to have those arrangements. However, that can in no way be construed as the Government of the south having a role as a threat over the non-Assembly. If the Assembly were up and running, I suspect that the same thing would happen, because the economic forces would drive north and south to do such things on a joint basis.

Lord Smith of Clifton: My Lords, will the Minister give way?

Lord Rooker: I will, my Lords, because I realise that once I sit down no one else can get up.

Lord Smith of Clifton: My Lords, the noble Lord’s peroration is part of his rhetorical repertoire to keep the momentum going, but I am afraid that I have to bring us back to a couple of his points. He said that the Conservatives did nothing about secondary legislation during their time of direct rule because, like the Labour Party, they are a party of Government, but that the Liberal Democrats have not been in Government for a long time. That reveals a mindset about executive government that erodes the role of the legislature and is all part and parcel of the modern cast of mind of Government. I do not find it a very convincing argument.

4.15 pm

Secondly, the noble Lord, as he does, showed very real sympathy. As I said in Grand Committee, I remember that in a previous incarnation the noble Lord was in

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the forefront of radical constitutional reform, and it is good to see the residues still there, although they are becoming less and less, I fear. We must look at this from the point of view of democratic accountability. The argument that it is not convenient at this stage to consider a plan B means that there is the danger that the parties in Northern Ireland will think that24 November is a moveable feast.

Baroness Farrington of Ribbleton: My Lords, I remind noble Lords around the House—and I look at those to whom it applies on my left and right—that interventions when the Minister is speaking on Report are for points of elucidation, not for continuing and expanding on the debate.

Lord Rooker: My Lords, I take the noble Lord’s chastisement.

I do not want to speak on the basis that executive Government know all; I am not saying that. I am with noble Lords on this; so is the Northern Ireland team—Peter Hain and the rest of them. The present arrangements for degrees of scrutiny under direct rule are unsatisfactory, and we must find another solution. However, we are not in an isolated area; we are a few months away—and the House has passed the legislation—from trying to get up and running an Assembly that would carry out that legislation,. It is not a question of simply saying that we are in a period where nothing is going to happen. We want to focus on getting the Assembly up, not by threats or blackmail but, if you like, by a bit of cajoling and some encouragement, and not too much slagging them off; they do not like that. Northern Ireland people deserve better from Northern Ireland politicians than what they have been getting, and they know that.

The money for the Assembly Members is a token, but the Assembly will disappear on the 25th; the Assembly will be gone. The status quo will not simply carry on. There is the Review of Public Administration, and the changes to local government do affect central government in Northern Ireland; they are bound to. The idea is to move powers from the Government of Northern Ireland in Belfast to local councils. That means that we will be looking at the ministries and the way in which they are structured. If anyone is thinking, “Oh, in a few months’ time we will pop back and all the d’Hondt ministries will still be there”—as one noble Lord said to me earlier in the week—they may not be there.

We are pushing forward changes in the health service and in local government. We have said that we will push the reform programme forward, and we are not going to ease off on that. Indeed, the Secretary of State has said that he will speed it up if the Assembly is not there. That is our position, and that is why we concentrate and focus exclusively on getting plan A, which is the best option, of a devolved Administration back in Northern Ireland, and at the same time admitting that we are mindful of the deficiencies of the present system and admitting that if the Assembly is not back we cannot carry on as we have been for the past eight—or indeed the past 30-odd—years in direct rule.

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Lord Kilclooney: My Lords, I have a point of elucidation. We did have, let’s face it, a plan B following the meeting in Armagh city of the two Prime Ministers. I do not believe that Her Majesty’s Government recognise how badly that message went down across Northern Ireland. If the Government do have a plan B that was announced in Armagh, why are they not prepared to consider an alternative plan B, which would be a greater democratic system for the administration and government of Northern Ireland?

Lord Rooker: My Lords, for the reasons that I explained. If we did that in great detail now, there are too many people who would say, “Thanks very much; there is direct rule and there is a plan B; we do not need an Assembly. Why bother?”. We believe the best option is an Assembly in Northern Ireland with Northern Ireland politicians.

I repeat, finally, that whatever may have been said about it, the Prime Minister did not have a plan B on that day and there is no plan B today. We have got plan A, and that is what we are concentrating on.

Lord Glentoran: My Lords, I accept what the noble Lord has said. I accept that there is no plan B and I accept that the Government do not want a plan B. But, as I said in my opening remarks, I do not see this amendment as providing a plan B. I support the Government totally in their wish to see Stormont back in being and back at work. I see the amendment as using this miscellaneous provisions Bill—an opportunity which is often difficult to find for major legislation for Northern Ireland—as a means of ensuring that I do not have to come back here at the end of October, or whenever we get back after conferences and so on, with clearly no agreement in sight and having to go back to the old grind. Soon we will have the Northern Ireland budget coming up for the next year. I do not want to go through that; I do not want to see all of that again. I want a more efficient, more democratic, more open process of governing Northern Ireland. I beg leave to take the opinion of the House.

4.21 pm

On Question, Whether the said amendment(No. 12) shall be agreed to?

Their Lordships divided: Contents, 148; Not-Contents, 113.

Division No. 5


Addington, L.
Alderdice, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Blaker, L.
Bowness, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Cavendish of Furness, L.
Chadlington, L.
Colwyn, L.
Cotter, L.
Crickhowell, L.
Cumberlege, B.
Darcy de Knayth, B.
De Mauley, L.
Dean of Harptree, L.

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Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eames, L.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkner of Margravine, B.
Flather, B.
Fookes, B.
Fowler, L.
Freeman, L.
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