FIRST MINISTER AND DEPUTY FIRST MINISTER (Hansard, 23 July 1998)

§ Mr. Peter Robinson
I beg to move amendment No. 71, in page 7, leave out lines 13 and 14.

§ The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)
With this, it will be convenient to discuss the following amendments: No. 72, in page 7, line 15, leave out 'Two candidates standing jointly', and insert 'Candidates'
No. 73, in page 7, leave out lines 26 to 28.
No. 99, in page 7, line 27, leave out from 'otherwise' to end of line 28 and insert 'the Secretary of State may by Order permit the other to continue in office for not more than seven days.'. No. 141, in page 7, line 27, leave out from 'shall' to end of line 28 and insert 'hold office as a caretaker for up to three months pending the election of a First Minister and Deputy First Minister'. No. 74, in page 7, leave out lines 29 and 30 and insert— '(7) Where the office of either the First Minister or the deputy First Minister is vacant, an election shall be held under this section to fill the vacancy.'. No. 142, in page 7, line 29, after 'Where', insert 'either'.
No. 143, in page 7, line 30, leave out 'to fill the vacancies'.

§ Mr. Robinson
The amendments are probing, as the Minister will recognise. It is remarkable that the principal 1311 position in the Assembly Executive will be held jointly. Will the Minister say whether there are any circumstances in which the First Minister can act independently of the Deputy First Minister? I see none.
Paragraph 9 of schedule 12 states: A reference to—

(a) the Prime Minister of Northern Ireland; or

(b) the chief executive member,
shall be construed as a reference to the First Minister and deputy First Minister acting jointly. There was a Prime Minister in the old Parliament in Northern Ireland and a Chief Executive under the power-sharing arrangement. Under the Bill, however, two people must at all times act jointly, but what will happen when it is physically impossible for them to do so?
It seems as though the First Minister and his deputy are joined at the hip; I doubt whether they can even go to the water closet without each other. The system seems most unworkable. Is the Minister prepared to add provisions to the Bill to allow the First Minister some independence, so that, at some stage, he can be his own man rather than the prisoner of his deputy?

§ Mr. Andrew Mackinlay (Thurrock)
I draw the attention of the Committee to amendment No. 99, which I tabled because I believed that the Bill contained a flaw: it does not provide for what would happen if—I hasten to add that I do not want this to happen—either the First Minister or the Deputy First Minister died in office. There is a problem about what would happen in what I call the interregnum between the expiry of the First Minister or the Deputy First Minister and the election of a successor. The Bill requires the Assembly to provide for the election of a replacement under its Standing Orders.
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If either the First Minister or Deputy First Minister dies, the other one no longer holds office and, I believe, the Ministry will fall or be in paralysis. Clause 18 states: The executive power in Northern Ireland shall continue to be vested in Her Majesty…As respects transferred matters, the prerogative and other executive functions of Her Majesty shall be exercisable on Her Majesty's behalf by the First Minister and the deputy First Minister acting jointly. I invite the Committee to consider that, if there is no First Minister or Deputy First Minister, power cannot be conveyed to subordinate Ministers, who, under clause 18(3), derive their functions from the First Minister and the Deputy First Minister acting jointly.
We must be sensible and provide for what would happen if the right hon. Member for Upper Bann (Mr. Trimble), the hon. Member for Newry and Armagh (Mr. Mallon) or their successors were suddenly to lose office—most likely by dying, although I hope that that does not happen. Northern Ireland needs a continuing Government; I do not have to remind the Committee that a lapse of Executive authority even for a few hours could be catastrophic. If either of the offices was vacant, it would clearly take some days for the vacancy to be filled under the Standing Orders of the Assembly.
Amendment No. 99 would allow the First Minister or the Deputy First Minister to continue in office for seven days—that would allow the Ministry to continue. I shall 1312 be interested to hear whether my hon. Friend the Minister believes that my contention is legally flawed. I do not think it is; I think that the flaw in the Bill is the problem.
If my suggestion of extending the power of the surviving office holder by seven days does not commend itself to the Minister, I hope that an amendment will be tabled in another place to provide for a list of automatic succession so that, if a vacancy occurs, a named or designated postholder in the Ulster Unionist party or the SDLP would click in for long enough to allow the parties to regularise the appointment.
I do not want to labour the point, although the matter does need to be resolved in Committee. The Minister may say—as was said to me sotto voce a couple of nights ago—that the matter is provided for in the Assembly Standing Orders. With respect, I do not believe that it can be—no matter how those Standing Orders are drawn up, a vacancy cannot be filled instantly. The vacancy may occur while one of the office holders is on holiday in another part of the world. Nevertheless, at that moment, the other Minister falls and, I believe, the whole Ministry will fall or be paralysed, as its powers derive from the First Minister and Deputy First Minister.
I hope that my amendment commends itself to the Minister. If not, I would like an undertaking that this void or flaw in the drafting of the Bill will be remedied in another place.

§ Mr. Trimble
The hon. Member for Thurrock (Mr. Mackinlay) makes a good point. It is, as he says, very much a Committee point, and there is a certain sense of relief at getting down to some real Committee points in this Committee. It is a pity that we have the ghastly programme which does not give us time to look at all the Committee points in the Bill. However, the hon. Gentleman is absolutely right in his contention.
The way in which the exercise of Executive functions is provided for in the Bill is a mess. All I can say in defence of the draftsmen is that the hon. Member for Thurrock should have seen the earlier draft—it was a worse mess. I do not know how many more drafts there will be, or how long it will be before we get something that is workable. However, what we have at the moment has clearly not been thought through, and some provision has to be made.
I am not sure that the absence of a Government is truly catastrophic. There is a lot to be said, in certain circumstances, for minimal government. There is a tendency for those in government to think that they should always be doing things.

§ Dr. Norman A. Godman (Greenock and Inverclyde)
Like giving themselves decent holidays.

§ Mr. Trimble
I am certainly thinking of the holidays which I hope to have within the next few days, and which I hope will be decent.
The seven-day continuation contained in the amendment tabled by the hon. Member for Thurrock is inappropriate. If either the First Minister or Deputy First Minister resigns, we have a crisis. There might be a different situation if either stepped in front of the proverbial bus. Some of the police officers on duty here have reproved me for jumping off buses before they stop, 1313 but that is by the way. If there is a resignation, we will have a crisis. It is optimistic to assume that that crisis will be resolved that quickly.
That is why our amendment contains the provision for the survivor, if I can use that term, to continue on a caretaker basis for a period. Using the term "caretaker" in the Bill may be inappropriate, and the draftsman may wish to reflect on that. The amendment suggests a period of three months, but that is just picking a term. That matches with the provisions in amendments that we have tabled which we shall debate later.
If there is a resignation—and therefore a crisis within the Administration which may or may not be resolvable—we could have a deadlock. Something will have to be done to resolve the deadlock, and the obvious thing is to provide for an election. However, we are dealing with a body with a fixed term. While there might be circumstances which might precipitate an election—or in which an election becomes inevitable—it should not be an easy option.
If it is an easy option, that undermines the concept of a fixed-term Assembly, and it becomes an Assembly with a maximum term of four years which can be terminated earlier than that. We need a period so that people are under some pressure to try to find a way of resolving the crisis. Amendments Nos. 141, 142 and 143 deal with that situation, but there is a need to provide for a vacancy and for Executive functions to be discharged on a better basis.
I have said to the Minister that the best way to do that is to follow what is done in the Government of Wales Bill, where Executive functions are vested in the Assembly as a whole. We then provide for those functions to be exercised in accordance with standing orders in the Assembly as a whole to reflect the fact that we will not have in the Northern Ireland Assembly a Cabinet or Executive bound by collective responsibility.
We are not analogous to Scotland. We will have a looser form of Administration and vesting the matter in the Assembly, subject to it being exercised in accordance with standing orders, preserves the safeguard for minorities which exists with the need for standing orders to be approved on a cross—community vote. We will deal with the problem flexibly, but we must still take account of the need to protect minorities.
The hon. Member for Belfast, East (Mr. Robinson) made some points in a characteristic fashion, and he had a substantial point. Repeatedly in the Bill, functions are conferred on the First Minister and Deputy First Minister jointly. As has been made clear, the Bill's purpose is to carry into effect the agreement, and it is important that we stick to the agreement. I defy anyone to find in the agreement any significant functions that are to be exercised in the way envisaged in the Bill. A couple of minor functions are to be exercised jointly by the First Minister and the Deputy First Minister, but general governmental functions are not.
The hon. Member for Belfast, East made a useful point, but he chose the wrong clause on which to make it. The election of the First Minister and Deputy First Minister is the clearest point in the agreement. The agreement says that that is to be done jointly. It is consistent with that principle that the death or resignation of one should call into question the position of the other. We then have to 1314 look at the practicalities of providing for the continuation of the Administration and for re-election. However, the basic principle—that, as the First Minister and Deputy First Minister have been elected jointly, the survivor cannot continue indefinitely if there is a death or resignation—is clearly right. That it is clear in the agreement.
I believe that my amendments deal with the practicalities better than the amendment tabled by the hon. Member for Thurrock. However, the Minister may have a better way, and we wait to hear what he has to say. The practicalities have to be dealt with, but the general point raised by the hon. Member for Belfast, East must be addressed. As I said on Monday, it seems to me that, every time the draftsman encountered a difficulty, he decided to dump it on us. That is not appropriate. I would prefer to dump it on the Assembly as a whole.

§ Dr. Godman
I was struck by what the hon. Member for Belfast, East (Mr. Robinson) said about the two roles seeming to be "joined at the hip", and I listened carefully to the right hon. Member for Upper Bann (Mr. Trimble), who referred to the First Minister in the Welsh Assembly.
I would like to ask Ministers a question. Paragraph 18 of strand 1 of the agreement says: The duties of the First Minister and Deputy First Minister will include, inter alia, dealing with and co-ordinating the work of the Executive Committee and the response of the Northern Ireland administration to external relationships. The term "inter alia" can be used liberally.
Let us put away such terrible things as people falling under buses. What happens if the First Minister is absent from Northern Ireland? Can I assume that the Deputy First Minister takes on the role in his absence? If any emergency arises, would he have the right to deal with everyday matters and any critical matters that might arise?
The right hon. Member for Upper Bann mentioned the Welsh Assembly, but I wish to refer to the Scottish Parliament. Clauses 42 to 44 of the Scotland Bill provide for the appointment and term of office of the First Minister and the Ministers, and that is entirely different from what is proposed here.
The right hon. Gentleman and the hon. Member for Belfast, East have raised critical questions, as has my hon. Friend the Member for Thurrock (Mr. Mackinlay). Can I assume that a deputy would deputise and take on the role of First Minister in his colleague's absence? It might be worth looking at the appropriate clauses in the Government of Wales Bill and clauses 42 to 44 of the Scotland Bill, which may provide the means by which those questions can be answered sensibly and democratically.

§ Mr. Öpik
First, I must echo the practical concerns about what would happen should one of the positions become vacant. The Northern Ireland Assembly is not comparable with the Welsh Assembly, and the difficulties are not the same. In the former, indivisibility is there for a purpose, and a sensible purpose at that. As the agreement is absolutely clear, we do not need to debate that matter. As the right hon. Member for Upper Bann elucidated, we are discussing a practical question and, far from decoupling the two positions, we want to maintain some continuity should one or other of the individuals disappear from the role.
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Can the Minister give us some assurance that continuity in the event of a vacancy will be considered during the summer, perhaps as a drafting amendment? One thing is sure: if a crisis leads to the resignation of the First Minister or Deputy First Minister for whatever reason, that crisis would be exacerbated if both roles became vacant at once. The intent of the amendments tabled by the right hon. Member for Upper Bann (Mr. Trimble) and the hon. Member for Thurrock (Mr. Mackinlay) is to prevent a crisis from deepening because of poor planning for the continuity of the two roles.

§ Mr. Robert McCartney
I shall be brief. Much of the difficulty arises because of the looseness of the terminology. To describe as First Minister and Deputy First Minister the roles designated to the two Executive officers is a misnomer. Clearly, the hon. Member for Newry and Armagh (Mr. Mallon) is in no sense the deputy of the right hon. Member for Upper Bann (Mr. Trimble). They are joint consuls, as in imperial Rome, each with the power to stop the other.

§ Mr. Trimble
Like Rome perhaps, but not imperial Rome.

§ Mr. McCartney
We will leave Caligula and Nero out of it for the moment and concentrate on the consuls rather than the emperor.

§ Mr. McNamara
And the hon. Gentleman is one of the vestal virgins.

§ Mr. McCartney
I do not think so. As the father of four children, even in a male sense I do not think that there is any justification for that remark.
The concept of a deputy is that, if the principal is, for any reason, unable to discharge his functions, the deputy will assume the executive role of the principal. In the Assembly, the deputy would immediately have to leave office should anything happen to his principal, and vice versa.
The terminology is indicative of the louche way in which the Bill has been drafted. It is meant to feed the Unionist electoral majority with the idea that, the leader of the largest party is in some way a First Minister and the leader of the nationalist Social Democratic and Labour party—the second largest party—is in some way a deputy. That is the image that the language is intended to project, which is completely out of kilter with the essence of the provisions.
We talk about introducing democracy, but there is no democracy as it is popularly understood in the arrangement. Such is the distrust, or mistrust, that, if one of the joint consuls is incommoded in any way—whether by falling under a bus, or becoming of unsound mind, memory or understanding—the whole thing is scuppered. It is unreal nonsense.

§ Mr. Trimble
I hope that what I am about to say is accurate and I am sure that I will be corrected if it is not, but I think that the hon. Gentleman will be relieved to know that there is no provision to remove either Minister on the basis of his being of unsound mind.

§ Mr. McCartney
I am prepared to accept the right hon. Gentleman's assurances, but the test may ultimately become objective rather than a subjective demonstration of any weakness of the mind.
1316 The issue is that the language used in the Bill in no way reflects the reality of the situation. Some people would say that it is another manifestation of the Government's obsession with making form much more important than substance.

§ Mr. Paul Murphy
This has been an interesting debate and I shall deal with one of the least contentious points first. Hon. Members referred to the prerogative powers mentioned in clause 18, which are a tiny proportion of all the powers. Ministers will continue in office with full powers. In that case, prerogative powers merely encompass public holidays and a few other specialist powers.

§ Mr. Mackinlay
I hesitate to intervene, but although I think that I understand what prerogative powers are, clause 18(2) also mentions other executive functions of Her Majesty", and it would seem that everything and anything that a Minister in the Northern Ireland Assembly does is derived from that subsection. With the greatest respect, I hope that the Government will reflect on that.
I apologise to my hon. Friend the Minister if I am wrong, but it seems to me that, if both the First Minister and the Deputy First Minister posts are vacant, Ministers will be denied the capacity to exercise their statutory functions, and there would be paralysis in the Administration. They might say, "That's only convention. We can skip over that." However, any actions that they took, or that were taken on their behalf, in the interregnum would then be subject to the vulnerability of challenge in the courts.

§ Mr. Murphy
The vast majority of Ministers' powers derive from statute and not from clause 18. My hon. Friend the Under-Secretary of State will deal with the later clauses and may be able to elaborate on that. The points about vacancies are important, and I will deal with them in a moment.
On the more general aspects of the First and Deputy First Ministers, I must admit that it is not the most elegant of language, but that is what was decided in the talks and in the agreement and that is what people voted for. As for the concept of having a First Minister and a Deputy First Minister, to reflect the top parties' electoral mandate and success in the Assembly elections—effectively, the largest nationalist and the largest Unionist party as reflected in membership of the Assembly—that effectively means that co-operation and consensus between the two traditions in Northern Ireland are reflected in those offices. That was one of the great attractions of the whole agreement. Of course there were contentious issues, but I think that hon. Members who were involved in the referendum campaign will agree that that issue did not exercise people or cause controversy, because it is a good idea in itself.
Of course, the arrangement is nothing like a joint presidency. I know the First Minister and the Deputy First Minister well, and I do not have the slightest doubt that they will exercise their independence in many circumstances, but the idea of having those two Ministers was in the agreement, and I believe was supported by those who voted in the referendum.

§ Mr. Robert McCartney
The Minister has made constant reference to what people agreed to in the 1317 referendum, but he knows well that the focus groups ordered by his Department produced some important information about the number of people who had read the agreement, the number who had read it completely and the number who had only skimmed through it. To suggest that every word of it was endorsed in the referendum is a flight from reality.

§ Mr. Murphy
The hon. and learned Gentleman would not disagree that, when people elected him to represent North Down in the House of Commons, they did not read his manifesto carefully. When they voted for him, they voted for what was in that manifesto, just as the referendum was based on what was in the agreement. The Government cannot construct a Bill based on an agreement on the assumption that people did not read it.
The concept of having a First and a Deputy First Minister representing the two largest parties—effectively, the largest Unionist and the largest nationalist party—was an attractive concept that people liked, and it was written into both the agreement and the Bill.

§ Mr. Peter Robinson
It was neither in the agreement nor in the Bill. Anyone can be nominated. Candidates do not have to be from the largest party of either designated tradition. Two Unionists could be nominated.

§ Mr. Murphy
Yes, of course, but that was not the reality, and everyone knew that it would not be. The agreement is based on co-operation between both traditions, and if that had not been the case, the referendum majority would not have been as big as it was.
There are areas in which the First and Deputy First Ministers must act jointly, according to the agreement, but other areas are not so significant. When we have further consultations here and in another place, we will be able to examine those areas carefully.
Some valid points have been made about vacancies, by my hon. Friend the Member for Thurrock (Mr. Mackinlay), the right hon. Member for Upper Bann (Mr. Trimble) and others. We need to have another look at that part of the clause, and in the summer I will consult the parties in both Northern Ireland and Westminster, with a view to adding some clarification in another place. I hope, as a consequence, that the hon. Member for Belfast, East (Mr. Robinson) will withdraw the amendment.

§ Mr. Peter Robinson
My purpose was to seek a list of those occasions when the First and Deputy First Ministers could act independently. I did not get one suggestion from the Minister as to any such occasion. I suppose that the only circumstance in which they could act independently would be if they were to take another ministerial post in the Executive, which of course they would be entitled to do. It is perfectly clear that the two of them must at all times act together. The amendment raised the issue and will let people see that we have, effectively, joint First Ministers in Northern Ireland, and that each is a prisoner of the other. On that basis, I beg to ask leave to withdraw the amendment.