NORTH-SOUTH MINISTERIAL COUNCIL AND BRITISH-IRISH COUNCIL (Hansard, 18 November 1998)

HC Deb 18 November 1998 vol 319 cc1046-56 1046

§ .—(1) The First Minister and the deputy First Minister acting jointly shall make such nominations of Ministers and junior Ministers (including where appropriate alternative nominations) as they consider necessary to ensure—

(a) such cross-community participation in the North-South Ministerial Council as is required by the Belfast Agreement; and
(b) such cross-community participation in the British-Irish Council as is so required.

(2) It shall be a Ministerial responsibility of a Minister or junior Minister nominated under subsection (1)(a) or (b) to participate in the Council concerned in such meetings or activities as are specified in the nomination. (3) Without prejudice to the operation of section 19, such a Minister or junior Minister shall act in accordance with any decisions of the Assembly or the Executive Committee which are relevant to his participation in the Council concerned. (4) A Minister may in writing authorise a Minister or junior Minister who has been nominated under subsection (1)(a) or (b) to enter into agreements or arrangements in respect of matters for which he is responsible. (5) The First Minister and the deputy First Minister acting jointly shall, as far in advance of each meeting of either Council as is reasonably practicable, give to the Executive Committee and to the Assembly the following information in relation to the meeting—

(a) the date;
(b) the agenda; and
(c) nominations made under subsection (1) for the purposes of the meeting.

(6) A Minister or junior Minister who participates in a meeting of either Council by reason of a nomination under this section shall, as soon as reasonably practicable after the meeting, make a report—

(a) to the Executive Committee; and
(b) to the Assembly.

(7) A report under subsection (6)(b) shall be made orally unless standing orders authorise it to be made in writing. (8) The Northern Ireland contributions towards the expenses of the Councils shall be defrayed as expenses of the Department of Finance and Personnel. (9) In this section "participate" shall be construed—

(a) in relation to the North-South Ministerial Council, in accordance with paragraphs 5 and 6 of Strand Two of the Belfast Agreement;
(b) in relation to the British-Irish Council, in accordance with the first paragraph 5 of Strand Three of that Agreement.")

§ Mr. Paul Murphy
I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker
With this, it will be convenient to take Lords amendments Nos. 106 to 108 and 158 to 160.

§ Mr. Murphy
The amendments relate to strands 2 and 3 of the agreement, and respond to points made when the Bill was being considered in the House and to consultations with the Northern Ireland parties. Together, the amendments introduce new clauses to replace clauses 65 to 67 in the Bill as it left this House.
Amendment No. 105 deals with the participation of Ministers and junior Ministers in the North-South Ministerial Council and British-Irish Council. It incorporates a number of important points that I know have exercised the minds of many Northern Ireland Members. It requires the First Minister and Deputy First Minister to ensure that participation in each of the councils is that which is required by the Belfast agreement, including, specifically, that participation be on a cross-community basis, as set out in paragraph 30 of strand 1. That is an important safeguard in ensuring that the interests of all the people of Northern Ireland are taken into account when business is conducted in the councils.
1048 Throughout consideration of the clauses, an important dimension has been the authority and accountability of Ministers participating in the North-South Ministerial Council. Before we went into recess, I told the House, and I repeat, that as a Minister I understand the importance of accountability—of the authority of decision making resting ultimately with the House of Commons and, in Northern Ireland's case, with the Assembly. Therefore, we have responded to a number of concerns that were expressed by hon. Members and by parties.
10.15 pm
The new clause makes it clear that Ministers and junior Ministers must act in accordance with relevant decisions of the Assembly and Executive Committee. It also requires openness and transparency in the operation of the council—an important aspect of accountability. The Assembly will be given advance notice of the date, agenda and nominations for each meeting, and Ministers will be required by law to report back afterwards.
Furthermore, the new clause makes it clear that Ministers in the North-South Ministerial Council must act in accordance with paragraphs 5 and 6 of strand 2 of the agreement. Paragraph 5 sets out the various levels at which Ministers will participate in the council, and paragraph 6 outlines the authority for such participation. It states that each side is to be in a position to take decisions within the defined authority of those attending, and that each side remains accountable to the Assembly and Oireachtas respectively, whose approval would be required for decisions going beyond Ministers' defined authority. The clause puts it beyond any doubt that Ministers have authority to participate in the North-South Ministerial Council only to the extent that such participation is in accordance with paragraphs 5 and 6 of strand 2.
Amendment No. 106 ensures that the Assembly has power to legislate in respect of agreements or arrangements made in the North-South Ministerial Council and British-Irish Council. Under that part of the Bill, Ministers will be able not only to consult the Irish Government but, in relation to devolved matters, to conclude agreements and arrangements within the framework of the councils. The clauses do not confer the power to conclude treaties, or other agreements binding in international law. Where it is necessary for matters to be provided for in a treaty, that would be concluded by the British Government.
Amendment No. 106 also contains provision in relation to the accountability of the North-South Ministerial Council by making it clear that no agreement to establish a new implementation body shall come into operation without the specific approval of the Assembly, in line with paragraph 12 of strand 2.
Amendment No. 107 deals with the British-Irish intergovernmental conference and requires the First Minister and Deputy First Minister to ensure such cross-community attendance by Ministers and junior Ministers as is required by the agreement at meetings where excepted or reserved Northern Ireland matters are to be discussed.
It was a cause of some frustration that there was no involvement of the elected representatives of Northern Ireland when the British and Irish Governments previously 1049 came together in the Anglo-Irish intergovernmental conference. That is now being remedied in the new British-Irish intergovernmental conference.
Amendment No. 108 provides for the Secretary of State to make orders in respect of the initial north-south implementation bodies. The clause, as amended, applies only to the initial, agreed implementation bodies. Those bodies are to be agreed by representatives of the Northern Ireland Administration and the Irish Government, and established formally by international treaties concluded between the British and Irish Governments. They will then need to be given any requisite capacities and functions in domestic legislation in Northern Ireland and the Republic of Ireland. That is the purpose of the Secretary of State's power to make orders under the clause.
If further implementation bodies are agreed, it will be for the Northern Ireland Assembly to make the necessary legislation.
I believe that the new institutions have the potential to develop positive relationships and practical co-operation in the island of Ireland, and in these islands, in a way that will deliver real benefits to all the people. I commend them to the House.

§ Mr. Robert McCartney
As the Minister will know, one of the great fears of the pro-Union community in Northern Ireland relates to the subject matter of these provisions, especially given that the Government of the Republic of Ireland hold, in their present constitution, that it is a constitutional imperative to act under paragraphs 2 and 3 of that constitution to create a united Ireland to include the territory of Northern Ireland.
The Minister will also know that it has been the policy of successive British Governments to stand by the declaration of disinterest made in the joint declaration of 15 December 1993, in which the then British Government declared that they had no strategic, economic or selfish reason for remaining in Northern Ireland.
The Minister will be aware that the majority—pro-Union—community in Northern Ireland fear that the arrangements are intended to effect, in accordance with the policies that I have mentioned, a factually and functionally united Ireland, and that the implementation bodies currently being put in place are but the forerunners, or the thin edge of the wedge, intended to ease Northern Ireland out of the United Kingdom as part of a transitional phase, recognised as such by one of the main participants in the agreement. I refer to Sinn Fein-IRA, which has repeatedly said that it views the agreement and the Bill as nothing more than a phase for the purpose of ensuring a transition to the ultimate objective of a united Irish socialist republic.
I do not have a copy of the Belfast agreement with me, but the Minister mentioned that under the terms of paragraph 6 each Minister would have power to make decisions within the limits of his authority. Under paragraph 6, would a Sinn Fein Minister appointed under the d'Hondt system with responsibility for, say, education, and acting according to a broad Government programme for the year, be entitled to enter into arrangements with his counterpart from the Dail and bind the Assembly, if he had made a decision within the limits of his authority? Or is the Minister saying that the provisions will ensure 1050 that, ultimately, the Assembly will have to give authority and approval to any decision made by the relevant Minister?
I am particularly concerned about subsection (3) of the new clause that would be inserted if Lords amendment No. 105 were agreed to. It states: Without prejudice to the operation of section 19, such a Minister or junior Minister shall act in accordance with any decisions of the Assembly or the Executive Committee which are relevant to his participation in the Council concerned. As the Minister will know, there is quite a distinction between a decision of the Assembly and a decision of the Executive Committee, but the proposed new clause suggests that either may give authority.
It is extremely important that the people of Northern Ireland should know whether the Assembly or the Executive will give ultimate approval, and if it is the latter, exactly what constitutes that "Executive"? Is it a Minister acting within the limits of his authority as part of the Executive? Is it a combined number of Ministers—the entire Executive, including the First Minister and Deputy First Minister? What exactly is meant by "the Executive" in those circumstances?

§ Mr. Peter Robinson
This group of amendments constitutes not so much a group of amendments as a completely new Bill. The Minister is proposing to leave out the original clause 43 and to insert substantial new clauses, thereby demonstrating that the Bill is being entirely re-written. He could therefore assist the House by providing more details on this group of amendments than he has provided on previous groups.
Specifically, the wording of the amendments make it clear that the participants in both the North-South Ministerial Council and the British-Irish Council will be cross-community participants. I expect that the Minister will be able to confirm that that is to ensure that we do not have a Sinn Fein Minister going down on his or her own and taking decisions on his or her own. However, I have not read anything in the Bill saying that Northern Ireland Ministers must be unanimous in decisions on whether to agree provisions formulated with their counterparts in the Irish Republic.
The First Minister and Deputy First Minister—to take the example given by my hon. and learned Friend the Member for North Down (Mr. McCartney)—might take along with them an Education Minister who might well be from Sinn Fein, so that two nationalists and one Unionist would be attending. Will a majority be sufficient to make a decision—or is that matter yet to be played for, in the Assembly's standing orders or in other provisions regulating Ministers' behaviour at those meetings? It is important—it is essential—that the matter be clarified.

§ Mr. Öpik
Is not the matter resolved by subsection (4) in Lords amendment No. 106, which states: No agreement or arrangement to which this section applies entered into for the establishment after the appointed day of an implementation body shall come into operation without the approval of the Assembly."? Does not that mean that the Assembly will have to approve all the matters about which the hon. Gentleman is concerned?

§ Mr. Robinson
I was dealing not with implementation bodies but with the North-South Ministerial Council. They are quite separate structures. I hope that I shall be able shortly to deal with implementation bodies. 1051 My hon. and learned Friend the Member for North Down mentioned his concerns about subsection (3) of Lords amendment No. 105, which can be read in many different ways. I can see nowhere within the provision a requirement that the Assembly's agreement be given beforehand or its approval be given afterwards.
The provision certainly allows for such approval to be given, and certainly requires Ministers to act if agreements have been reached. However, nowhere does it say that a Minister cannot act in reaching agreements in the north-south body unless the Assembly has reached a decision on such agreements. Neither does it say that a Minister must come back and seek the Assembly's approval. If there is to be accountability to the Assembly, there must be such requirements. Will the Minister explain his views on where accountability lies in the new clause?
I am mindful of the fact that, in the Ulster Unionist party manifesto, the party leader expressly stated that he and his party would secure two specific elements in an agreement on north-south councils. One was that north-south bodies would be accountable. The second was that they would be consultative, not executive. If they have implementation roles, they are executive, not merely consultative. To that extent, the leader of the Ulster Unionist party has broken his election commitment.
I want to find out whether the other election commitment on accountability has also been broken. The issue is not that accountability should be allowed under certain circumstances, but that there should be accountability under all circumstances in the Assembly.

10.30 pm

§ Rev. Ian Paisley
I should like the Minister to look again at the new clause in amendment No. 105, which says: Without prejudice to the operation of section 19, such a Minister or junior Minister shall act in accordance with any decisions of the Assembly or the Executive Committee which are relevant to his participation in the Council concerned.
The hon. and learned Member for North Down (Mr. McCartney) has rightly pointed out that there is a difference between a decision made in the Assembly and a decision made in the Executive Committee. Not all Members of the Assembly would necessarily know of a decision made in the Executive Committee. Will a Minister have the power to act unilaterally with his colleague in the Dublin Government on a matter that has been agreed with the Northern Ireland Executive Committee rather than with the Assembly?
The new clause also says: A Minister or junior Minister who participates in a meeting of either Council by reason of a nomination under this section shall, as soon as reasonably practicable after the meeting, make a report". There is a great difference between making a report and asking the Assembly to approve what has been done.
The new clause also says that the report will be made orally—not even in writing. There is no requirement for it to be agreed by the Assembly. There is a great difference between reporting something that has taken place and that matter taking place solely under the authority that the 1052 Assembly has ratified. That causes us grave concern. I should like the Minister to tell us what he understands about those two issues.

§ Mr. Peter Brooke (Cities of London and Westminster)
I shall be very brief. I am conscious of the fact that the time for the debate is limited, and we are dealing with very complicated matters. The hon. and learned Member for North Down (Mr. McCartney) will remember that, on one occasion earlier in the proceedings, he quoted me, did not give way to me, said that he would give way later in his speech, forgot and then kindly came up to apologise to me. I am claiming the injury time that derives from that moment.
On this occasion, I am wholly on the side of the hon. and learned Member for North Down and the hon. Members for Belfast, East (Mr. Robinson) and for North Antrim (Rev. Ian Paisley). I recognise the sensitivity of the issues that we are discussing. I noticed the Minister wince and look at the clock when he was asked for a fuller explanation. The time that we have to debate the amendments is wholly the fault of the Government. Unlike the three previous speakers, who oppose the agreement, I support it. I should be greatly in the Minister's debt if he gave a fuller account than has been given so far.

§ Mr. Paul Murphy
Any wincing or looking at clocks was entirely due to tiredness on my part, rather than any discourtesy intended to any hon. Members.
Some interesting points were made in Committee, on Report and during consultation. The issue is of considerable importance, particularly to the Unionist community. I shall do my best to address the concerns.
The part of the Bill that deals with such matters is now much bigger than it was before the summer; that is a direct consequence of consultation. I believe that the various points that I mentioned earlier go a long way towards addressing hon. Members' concerns.
Let me briefly reiterate some of those in general terms. Northern Ireland participation must be on a cross-community basis. That is vital, and it is written into strand 2 of the agreement. It means that, in any participation, a Unionist and a nationalist must take part, and there must be agreement between them before any decisions are reached.
Let us look at what we mean by decisions. Members asked about the role of the Executive Committee vis-a-vis the Assembly. We put into the Bill a specific reference to the various paragraphs of the agreement, such as paragraphs 5 and 6 of strand 2. Paragraph 6 is especially significant, because it refers to "defined authority" and the arrangements in place for co-ordination of executive functions within each jurisdiction". Clearly that is a reference to the Executive Committee.
Hon. Members will know that decisions that require any money, for example, must go back to the Assembly, because it is the Assembly that votes the money. Decisions that require any legislative action must also go back to the Assembly, because it is the Assembly that passes the laws and must therefore decide.
Hon. Members will also know that any new implementation body—that is a possibility, of course—has to be approved by the Assembly. Is it not also true 1053 that any Minister worth his or her salt knows that, if he or she cannot carry the Assembly—on a cross-community basis, Unionists and nationalists—ultimately there will be no support for the proposal?
The north-south bodies and the implementation bodies that go with them—

§ Mr. Peter Robinson
Is the Minister saying that the extent of accountability depends on the grace and favour of a Minister and whether he or she is, in the Minister's words, "worth his or her salt"? If the requirement is not legislative and if there is already money in the Minister's budget, there is no requirement for the Minister to go back and obtain the approval of the Assembly.

§ Mr. Murphy
There are other ways in which the Assembly itself can determine the methods by which Ministers will report back to it. For example, it is open to the Assembly, through its Standing Orders Committee, to authorise Ministers to report to the Executive Committee and the Assembly in writing. That is the purpose of Standing Orders. We do not put everything in the Bill—

§ Mr. Robinson
Will the Minister give way?

§ Mr. Murphy
No, I shall not, for a moment. I shall finish my point first; then, by all means, the hon. Gentleman may intervene again.
Of course the Assembly, as it develops its own way of working, will ensure that those things happen and that there is accountability. I also think—

§ Rev. Ian Paisley
rose—

§ Mr. Murphy
The hon. Gentleman's hon. Friend has already asked to intervene. Who wants to speak first? I give way to the hon. Member for Belfast, East (Mr. Robinson).

§ Mr. Robinson
The Minister well knows the issue at stake. If a Minister has to be accountable to the Assembly, the Minister will have to bring his or her proposal there and gain cross-community support for it. That requires any proposal to be one that will enjoy the support of both Unionists and nationalists. If, on the other hand, it is up to the Assembly to pull the Minister into line, a Unionist, for instance, would have to get nationalist support to stop a nationalist Minister doing something pro-nationalist.

§ Mr. Murphy
There is a limit to how far we can build into legislation the way in which Ministers will operate. However, the new arrangements that we have made refer specifically to the agreement, which, after all, was voted on by the people in Northern Ireland. We also have a reference to the fact that laws cannot be passed or money spent without approval, and ultimately the Assembly, through its Standing Orders arrangements, can work out how best to set up the report-back procedures. The notice to be given to the Assembly is there, too. It is clear that people must act in accordance with the wishes of the Assembly. That is there in black and white in the Bill.
We were talking about outer space earlier, and anyone who came down from outer space to look at the provisions in the Bill and asked, "Does that mean that Ministers can go out and do what they like, willy-nilly?" would realise that 1054 the answer was no, of course it does not. Ministers are properly accountable to the Assembly, but they must also take into account the cross-community aspect in terms of the North-South Ministerial Council and the Assembly.

§ Rev. Ian Paisley
Will the Minister give way?

§ Mr. Robert McCartney
Will the Minister give way?

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Order. Perhaps I could adjudicate on who the Minister is giving way to. I call the hon. Member for North Antrim (Rev. Ian Paisley).

§ Rev. Ian Paisley
The Minister has made a point about the Standing Orders. If the Minister, under such circumstances, makes an arrangement, must he get the approval of the Assembly? Will that be in the Standing Orders?

§ Mr. Murphy
The Assembly itself will decide its own Standing Orders after devolution. The hon. Member for North Antrim (Rev. Ian Paisley), the hon. and learned Member for North Down (Mr. McCartney) and the hon. Member for Belfast, East (Mr. Robinson) are all Members of the Assembly. They will have an important role to play when the Standing Orders are approved by the full Assembly—or, indeed, when the Committee dealing with Standing Orders devises ways in which such matters can be expressed in detail.
We have made various changes to the Bill to ensure that the Minister acts in accordance with the Assembly or the Executive Committee, and acts in accordance in respect of finance and law making. In addition, the fact that a Unionist and nationalist Minister must attend such councils will provide plenty of opportunity to ensure that there is compromise and understanding between both sides, and accountability.

§ Mr. Robert McCartney
Will the Minister crystallise the issue? Let us say that a Minister from the Northern Ireland Assembly goes down and meets his opposite number from the Dail—in whatever circumstances—and takes a decision that, under paragraph 6 of the Belfast agreement, he is entitled to do within the limit of his authority or remit. Having taken that decision and returned to Northern Ireland, is the Minister required to obtain the ratification of the Assembly for that decision, or does he merely have to report it and leave it to one or other of the two community parties to seek cross-community objection or support for it? Will the Assembly have the last word on a decision taken by a Minister within the limit of his authority, as prescribed by paragraph 6 of the Belfast agreement?

§ Mr. Murphy
Everything is in accordance with the Belfast agreement, and that is why paragraph 6 was so carefully worded. It states: Each side to be in a position to take decisions in the Council within the defined authority of those attending, through the arrangements in place for co-ordination of executive functions within each jurisdiction. Each side to remain accountable".
First, he or she is not necessarily going down—they could be coming up in the North-South Ministerial Council. [Interruption.] That is a significant point. All this business about "going down" ignores the fact that 1055 this will be a proper North-South Ministerial Council, reflecting interest north and south of the border—and, I hope, of benefit to people north and south of the border.
Similarly, meetings—wherever they are held—will be held on a cross-community basis. We are not talking about a single person. We are talking about people going together. It is clear to me—as, I am sure, it is to hon. Members—that, if people are going together, things will not be decided in contradistinction to one side or other of the Assembly. In addition, major—and not so major—decisions will require the finance that must be voted on by the Assembly. It could mean that the Assembly would have to vote on a law, or the decisions could be relatively minor and a law would not be necessary, but decisions could nevertheless be made within that defined authority. Ultimately, Ministers will have to report their actions to the Assembly and, if any Member decides to question that report within the rules that the Standing Orders of the Assembly lay down, it can debate the issues, as we can in the House.

10.45 pm

§ Mr. McGrady
On that point, will the Minister confirm that paragraph (1) of amendment No. 106 states: This section applies to any agreement or arrangement entered into by a Minister or junior Minister participating, by reason of a nomination under section (North-South Ministerial Council and British-Irish Council)"? Paragraph (4) of the amendment clearly states: No agreement or arrangement to which this section applies entered into for the establishment after the appointed day of an implementation body shall come into operation without the approval of the Assembly. Is that not a self-evident requirement for the Assembly to approve any such actions?

§ Mr. Murphy
That certainly reinforces my arguments—[Interruption.] I am not sure whether we will ever persuade Ulster Democratic Unionist party Members that accountability is theirs. They have got it into their heads that it is not, and they will not be persuaded. We are doing all that we can to ensure that such accountability is provided for in the Bill, as far as it is congruent with the agreement. In addition, the Assembly has the matter in its own hands. By virtue of its Standing Orders and debates, it can ensure that such accountability is present. I see no problems with it.
The hon. and learned Member for North Down said that the provision will lead to a united Ireland and that it is all a slippery slope. Undoubtedly, a number of people in the Unionist community in Northern Ireland fear that. I think that they are misguided, because the whole basis of the agreement, for which people voted by a large majority, is consent. It is the consent of the people of Northern Ireland, within Northern Ireland, that will determine whether there is any such movement, not the provision under discussion. It will be decided not by the implementation bodies, or the North-South Ministerial Council, but by a vote of the people in Northern Ireland 1056 to decide what they want to do. That is the very bedrock of the agreement and that is why people in Northern Ireland, whether Unionist or nationalist, need not fear anything from the agreement or the Bill.

§ Lords amendment agreed to.

§ Lords amendments Nos. 106 to 108 agreed to.