NORTHERN IRELAND MINISTERS (Hansard, 23 July 1998)

§ Mr. Trimble
I beg to move amendment No. 144, in page 7, line 41, leave out from first 'the' to end of line 42 and insert 'Assembly'.

The First Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 145, in page 8, leave out lines 1 to 3.
No. 178, in clause 16, page 9, line 13, leave out 'of the Assembly'.
No. 147, in clause 18, page 9, line 30, leave out from first 'the' to the end of line 34 and insert 'Assembly'.
No. 77, in clause 18, page 9, line 30, leave out 'and the deputy First Minister acting jointly' and insert 'with the approval of the Assembly voting on a cross—community basis in accordance with section 4(5).'. No. 78, in clause 18, page 9, line 32, leave out 'those Ministers so determine' and insert— 'the First Minister so determines, with the approval of the Assembly voting on a cross—community basis in accordance with section 4(5),'. No. 149, in clause 22, page 10, line 38, after 'policy', insert ',the initiation of legislation, the approval of secondary legislation and such other matters as may be provided by Standing Orders'. No. 184, in clause 40, page 21, line 24, leave out 'First Minister and Deputy First Minister acting jointly' and insert 'Assembly'.

§ Mr. Trimble
The amendments give us the opportunity to continue the debate that was conducted under the previous group, as largely the same issues are involved.
The agreement contains some novel features, which are there to reflect the particular circumstances that exist in Northern Ireland. That is why we have the concept of both a First and a Deputy First Minister; there is symbolic importance in having two persons who are, by virtue of the arrangements in the agreement and in the Bill, closely related to each other.
There is no need for the hon. Member for Belfast, East (Mr. Robinson) to make such heavy weather of that. The same arrangements apply when coalitions exist: if there are two parties whose votes are necessary to provide an effective majority in an institution, the two party leaders are not necessarily in a very close relationship. In its essence, there is no great dissimilarity between such a situation and the situation provided for in the Bill.
My concern is that the Bill's draftsman has departed significantly from the agreement and given some precise functions to the First and Deputy First Ministers that are not given, or even hinted at, in the agreement. The agreement provides for them to be elected jointly, and that is clearly a joint function. It also provides that they are to preside over the meetings of the Executive Committee.
1319 Paragraph 18 of strand 1 says: The duties of the First Minister and Deputy First Minister will include…dealing with and co-ordinating the work of the Executive Committee and the response of the Northern Ireland administration to external relationships. Co-ordinating is a general function, rather than a precise executive function.
The only precise executive functions given in the agreement to the gentlemen in question is with regard to the civic forum in paragraph 34 and, under paragraph 2 of strand 2, with regard to making alternative arrangements for representation, although, by virtue of paragraphs 13 and 18, they have to co-ordinate general arrangements for representation with external institutions. Their role is symbolic and co-ordinating. I think that the draftsman has made a mistake in giving them so many precise executive functions.
The disadvantage is clearly shown by the matters covered in amendments Nos. 144 and 145, which deal with determining the number and functions of Northern Ireland Ministers. That point was covered in the Assembly's very first sitting, at the end of which it charged the First and Deputy First Ministers with a role: to consider the shape and structure of future administration and the arrangements to be made for both the British-Irish council and the north-south ministerial council. There are certain matters that have to be dealt with in accordance with the agreement.

§ Rev. Ian Paisley
rose—

§ Mr. Robert McCartney
rose—

§ Mr. Trimble
I shall choose the hon. and learned Member for North Down (Mr. McCartney).

§ Mr. McCartney
I am grateful to the right hon. Gentleman. As I understand it, he objects to the fact that certain functions have been given to him that were not spelled out in the agreement, but is not the real charge that the function that the Assembly gave the two Ministers was not the Assembly's choice but the result of a fixed agenda presented to it by the Secretary of State? The Assembly did not choose what to do: it was told what to do.

§ Mr. Trimble
The Assembly chose to do it when the Assembly passed the necessary resolution. The agenda was drawn up by the Secretary of State, but she did it after consultation.

§ Rev. Ian Paisley
With whom?

§ Mr. McCartney
indicated dissent.

§ Mr. Trimble
I cannot say. The Secretary of State consulted me, and I am sure that she consulted other people. The agenda did not appear out of the blue, but that is a peripheral issue.
At the end of its first sitting, the Assembly passed a resolution charging the First Minister and the Deputy First Minister with making studies, considering matters including the shape of the future Northern Ireland Administration, the British-Irish council and the north-south ministerial council, and bringing proposals to 1320 the Assembly, as we hope to do in the autumn. The Assembly will be able to debate those proposals, to amend them or to tell us to go back and think again. It may decide to ask for someone else's proposals. The decision rests with the Assembly, and the First Minister and Deputy First Minister will merely offer proposals.
The practical reality underlying that is that the Assembly requires an effective majority if it is to function. As matters stand, and as we see them in the future, that majority will be provided by a form of coalition between the Social Democratic and Labour party and the Ulster Unionist party. If proposals to the Assembly are approved by the leadership of those two parties, it is likely that the Assembly will endorse them. The Assembly can also endorse proposals on a cross-community basis, as cross-community voting can be invoked in particular circumstances. The right way to proceed is to focus on the Assembly, and to create an effective majority in the Assembly, which will make us work closely together.
Clause 15 is the wrong way round. It says that the First Minister and the Deputy First Minister are to act together but without the Assembly to make a determination that the Assembly will have to approve. That puts the cart before the horse, suggesting that power rests essentially with the First Minister and the Deputy First Minister. Their decision may be vetoed by the Assembly, but decisions will not be taken properly. The same point arises in a different context in relation to amendment No. 147.
The right way to proceed is to give the power to make a determination to the Assembly, with its ability to take decisions on a cross-community basis when that is necessary. To give too many precise functions to the First Minister and the Deputy First Minister will tend to lead to a joint presidency, and that was not the intention of the agreement. We need the draftsman to rethink the clause to bring it closer to the agreement.

§ Dr. Godman
Clause 15 allows the First Minister and the Deputy First Minister jointly to determine the number of Ministers and their functions. Presumably, their determination will then be presented to the Assembly, which is a coherent and realistic approach. That is in effect Cabinet government, under a Prime Minister, and I expect the Scottish Parliament to work that way. The First Minister in Scotland may head a coalition Government, and he will have to negotiate who his Ministers are to be and what their functions will be before he presents his decision to the Scottish Parliament. Surely the same holds true for the Northern Ireland Assembly.

§ Mr. Trimble
There is a clear difference between arrangements for Northern Ireland and Scotland. The Scottish arrangements are based on normal British parliamentary practice, so Scotland can have normal Cabinet government. If no one wins an overall majority, there may have to be a coalition, but there will basically be a normal British parliamentary system. That is not the case in Northern Ireland. The d'Hondt formula and the principle of proportionality will mean that there will not be a Cabinet. There will be an Executive, but it will not operate as a Cabinet.
I thought that the hon. Member for Greenock and Inverclyde (Dr. Godman) was going to refer to the conflict between clauses 15 and 17. I have not tabled any 1321 amendments on that, not because I approve of it, but because my time is limited. Clause 15, even with my amendment, provides that the functions to be exercised by Ministers are to be determined by the First and Deputy First Ministers. That offers them the temptation to rig the d'Hondt formula's operation by moving functions between Departments so that all the politically sexy functions are in the Departments that they obtain. Perhaps they might even be tempted to manipulate the total number of Departments. Far be it from me to suggest that such ideas will be at the forefront of their minds, but they are exposed to that temptation.
That runs counter to clause 17, however, as it states: the Northern Ireland departments existing on the appointed day shall be the Northern Ireland departments for the purposes of this Act. (2) Provision may be made by Act of the Assembly for establishing new Northern Ireland departments". There is an existing power under subordinate legislation for the transfer of functions from one Department to another. That is not being abolished, and there is a consequent conflict between clauses 15 and the existing body of law.
My main point is that functions should be determined by the Assembly. I am not moving away from the concept of partnership arrangements in saying that it would be a mistake to give those functions to the First Minister and the Deputy First Minister.
I am puzzled about why amendment No. 149 is grouped with amendment No. 144, because it raises quite different issues. It deals with the functions of committees as provided for in clause 22. The draftsman has not taken account of all the functions given to committees in the agreement, which are listed in paragraph 9. The draftsman could reconsider the clause to bring it into conformity with the agreement.

§ The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Tony Worthington)
It is interesting to hear the views of the First Minister designate, the right hon. Member for Upper Bann (Mr. Trimble), in respect of the exercise of these powers. He is right to say that the agreement, in the remarkable time in which it did what it did, could not possibly have solved all the problems that relate to any Bill.
What we have been trying to do is to interpret the spirit of the agreement. In respect of the setting up of the Departments, we referred the matter to the First Minister and the Deputy First Minister, which is in fact what the Assembly did. That seemed to us to be a sensible way of proceeding.
The right hon. Gentleman says that the Assembly should do it, but the Assembly cannot do it en masse; it would then have to refer the matter to someone or to some organisation to accomplish that end. That is what has occurred. We are quite willing to look again at the issue, but that seems to be the sensible way to deal with the bringing into existence of the Assembly, its Ministers and its Committees. However, we shall reconsider the matter and see whether there is an alternative way to proceed.
I should clarify a point raised several times during this debate and the previous one, which is the question of prerogative powers. I assure hon. Members that the 1322 prerogative powers referred to are extremely limited, covering matters such as the organisation of the civil service, public holidays, action in civil emergencies, the honours list and so on. They sound like an enormous matter, but the powers are in fact marginal to the affairs of the Assembly. The bulk of the power that people will have is statutory power, which will go with Ministers in the carrying out of their duties.
To clarify another point that has been raised, so that it does not dominate our discussions later, I should explain the reference to "other executive functions". Again, that sounds like a major part of the work of the Assembly and of Ministers. It refers to the powers that the Government or a Department can exercise in the same way as a normal citizen; the best example of that would be the power to make contracts. However, the great bulk of the Assembly's powers will be statutory.
With the assurance that we shall look again at how we go about the business of setting up the Committees and the functions of the Assembly, I ask the right hon. Member for Upper Bann to ask leave to withdraw his amendment.

§ Mr. Trimble
I am glad to hear that the Minister will look again at the matter. I trust that, in doing so, he will consult me and others who are directly involved. I realise that the Bill had to be drafted very quickly and that that limited the opportunity for consultation beforehand, but, had we been given the opportunity, we should have been very happy to elucidate for the Minister the real meaning of the agreement. I beg to ask leave to withdraw the amendment.

§ Mr. Peter Robinson
I beg to move amendment No. 163, in page 8, line 31, at end insert— '(9A) If the number of seats in the Assembly which are held by members of one or more political party, reduce or increase, for any reason to such an extent that it alters the number of Ministerial offices entitled to be held by a party, then the procedure set out in subsections (4) to (9) shall be reapplied.'.

The First Deputy Chairman
With this, it will be convenient to discuss amendment No. 164 in page 9, line 12, at end add— '(16) In this section the number of seats in the Assembly which are held by the political party is determined by calculating the number of members designated as being in membership of that party when signing the Assembly register and a member of the Assembly may alter his party designation in the Assembly register.'.

§ Mr. Robinson
Again, the amendment is designed to give the Government an opportunity to clarify their thinking and the intention of the legislation in respect of possible changes in the numerical strength of political parties in the Assembly. Clearly, it can take only a few Members to require a change in the number of ministerial posts to which a political party is entitled. For example, a significant transformation could be achieved by a couple of extra DUP Members and the fall-off of a couple of SDLP Members—perhaps some SDLP Members will join the DUP.

§ Mr. McGrady
Me?

§ Mr. Robinson
Who knows? The invitation is there for the hon. Member for South Down (Mr. McGrady).
1323 There is a clear possibility that a small shift in numbers would entitle a political party to an additional ministerial post, or require a political party to lose a ministerial post. The legislation, on the face of it, does not appear to deal with that eventuality. It is possible that the Minister will tell me that Standing Orders could deal with the issue, but I think that it is so important that it is necessary for it to be in the Bill, so that, expressly, if the number of seats in the Assembly held by a political party increased or decreased to the extent that it should cause a change in ministerial numbers, the formula outlined in the Bill in subsections (4) to (9) would be reapplied.
The second amendment, No. 164, deals with the determination of who is a member of a political party. Currently, that is self-evident: when Members went into the Assembly, they were asked to sign a register, one of the columns of which indicated the political party to which they belong. However, nowhere in the legislation does it say that that is the determining factor in deciding whether somebody is or is not a member of a political party; nor does the Bill say what happens if a person resigns from a political party. If a person resigns from a political party, does the party still hold to the number that it had when that person was elected as a member of that party? The Bill is silent on all those matters.
I have no doubt that, within four or five years, such problems will arise. It is proper that we face up to them now and amend the Bill to allow them to be dealt with in an efficient and effective manner.

§ Rev. Ian Paisley
I am sure that the Minister knows that, when we were registering, there was some controversy in respect of the Women's Coalition, whose members wanted to be one thing one day, something else the next day, and something else the day after that. There was a ruling against that by the pro tem Presiding Officer, the person appointed by the Secretary of State. They thought that they could be nationalists when they wanted to be nationalists to get the consensus vote; Unionists when they wanted to be Unionists to get the Unionist vote; and nothing when they wanted to be what they really were. That was what took place.

§ Mrs. Fyfe
Will the hon. Gentleman give way?

§ Rev. Ian Paisley
No. I am simply saying that that is what the members of the Women's Coalition told us they were during the talks. They said that they were nothing—not Unionist, not nationalist, just themselves. That is what they wanted to be sometimes, but when it suited their voting purposes, they wanted to be Unionists or nationalists. That was not permitted after the ruling from the chair, but what is going to happen in future when people want to change party?
What happens then, and when voting takes place? What happens if, as my hon. Friend the Member for Belfast, East (Mr. Robinson) says, Members resign from one party and join another? It could change even the Executive if two Members who had resigned from one party joined another party that needed only two more Members to get a third or a fourth seat on the Executive. What would happen then? I think that the Minister needs to be clear when he replies, and to tell us his thinking on those issues. Will he deal with those matters in the Bill?
I am glad that the House is now learning that the Bill cannot be a replica of the agreement. We have heard Members argue strongly today that the Bill can include 1324 nothing except what is in the agreement, but the Minister admitted that it would have to contain points that were not in the agreement.

§ Mr. Worthington
The hon. Member for North Antrim (Rev. Ian Paisley) must not take my appearance at the Dispatch Box as evidence of a new reasonableness.
We ask hon. Members to resist the amendments but to acknowledge that there is an issue to be considered. It is important, as we work through the implications of the d'Hondt procedure, that we think of all possible consequences. In the case that has just been mentioned, it would be wrong to deny Members the opportunity to cross the Floor. In any democracy, there are circumstances in which people wish to reclassify themselves, and it would be wrong for us to state in legislation that a person who was elected with a particular designation had to keep it for ever. We therefore resist the thinking behind the amendment.
I pay tribute to the people who have drafted the Bill. What has happened over the past few months is simply remarkable. I think of my background as a Member of Parliament for a Scottish constituency and how we have been talking about devolution all my adult political life. Devolution will happen in Scotland—there will be an election next May and the Parliament will sit a year later. We seek, in this Bill, to set up an Assembly in Northern Ireland by early next year. What we are achieving is remarkable.
I return to d'Hondt and the difficulties that we shall have to tackle later in the proceedings on the Bill which are linked to the points made by the hon. Members for Belfast, East (Mr. Robinson) and for North Antrim. What should happen if parties are excluded from the Parliament? Should we then return to the d'Hondt principles? What will happen when parties amalgamate? Again, there may be a need for recalculations.

§ Dr. Godman
I can understand the object of the amendment, but surely, if the legislation to set up a finely balanced Assembly cannot comfortably accommodate people who wish to transfer from one party to another, an alternative democratic view is that such Members should have the honour to resign and cause a by-election.

§ Mr. McNamara
My point follows that of my hon. Friend, with whom I disagree. The nature of the elections, which are based on a proportional system for the constituencies, means that communities within constituencies are represented. Therefore, if Members cross the Floor or change their position, they deny that community element the representation that it had within the complicated community and constituency-based system. That brings us to the question whether there should be a by-election at all or whether a person should, in those circumstances, resign and be replaced by another party member. There is a world of difference between an Assembly elected for a fixed period and proportional representation, and what happens in this House, where Governments can change if a vote of confidence is lost. That will never happen under the present Administration, I am happy to say.

§ Mr. Worthington
In his elegant way, my hon. Friend the Member for Hull, North (Mr. McNamara) has demonstrated the complexities that lie behind the 1325 amendment. Over the summer months, we need to work out the circumstances in which there would need to be a rerun of the d'Hondt principles. I am not committing myself to what those circumstances might be, but as we consider the Bill, it becomes clear that we need further to explore this matter. I ask the hon. Member for Belfast, East not to press his amendment, and I assure him that we recognise that the Bill needs further work in that respect.

§ Mr. Robinson
I welcome the Minister's remarks. There was confusion in the debate between party affiliation and community designation. We are dealing with party affiliation in the formula for allocating ministerial posts. The hon. Member for Hull, North (Mr. McNamara) referred to the possibility of a community being robbed of one of its Members if he or she were to cross the Floor. It is unlikely that a Member would cross from the nationalist community to the Unionist or vice versa in the middle of an Assembly term, but it is theoretically possible.
The difficulty in sustaining the hon. Gentleman's argument is that we were not required, or indeed entitled, to state our community designation at the time of the election. I argued that every person who stood should then state their community designation so that people knew what that would be when Members entered the Assembly and could vote accordingly.

§ Mr. McNamara
How Jesuitical the hon. Gentleman is regarding the Alliance party. A Member may not necessarily cross the Floor from nationalist to Unionist or vice versa. There is the question of the separate non-aligned groups—if I may use that United Nations term—some of whose Members might join other organisations.

§ Mr. Robinson
I take the hon. Gentleman's point, but under the Bill, a move does not have the same effect if Members remain within the same community designation. Most of the voting in the Assembly will be based on community designation, so if Members remain in the same community designation, it does not matter which group they sit with. The impact of changing from one political party to another principally has an effect on the number of ministerial posts that that party will have.
The position is not unlike that in this House. The hon. Member for Hull, North has colleagues who were elected as something other than Labour Members. It is not uncommon for Members of the House to change their affiliation without going to the electorate for a ballot.

§ Mr. McNamara
I take the hon. Gentleman's point about community designation, but there would be a problem if a Member moved from the Alliance party and declared himself nationalist or Unionist, depending on the particular brand of Unionism to which he became affiliated and how that affected the party balance under the d'Hondt system. The problem would still arise in that case.

§ Mr. Robinson
The hon. Gentleman would have a point if there was something to stop Members changing 1326 their community designation tomorrow if they so wished. As it is, they can go into the Assembly today and change their community designation. There is nothing to stop them.
It is entirely wrong that people can change their community designation overnight just for the sake of the voting impact that it may have in the Assembly. It makes a farce of the way in which the Assembly operates. However, until such time as community designation is tied down, the hon. Member for Hull, North does not really have a point, because the Alliance party members could change that anyway.

§ Mr. McNamara
We are not disagreeing.

§ Mr. Robinson
In that case, let us end the debate very quickly on that, by way of concord.
I am pleased that the Minister has undertaken to look at the matter again. In terms of the practical operation of the Assembly, it is essential that we look at it again. I shall examine the Government's response closely when we have it. I beg to ask leave to withdraw the amendment.