Northern Ireland (Miscellaneous Provisions) Bill

Public Bill Committee, 16 July 2013.

(Except clauses 1 to 9)

Philip Hollobone (Conservative, Kettering)

Good morning. It is a very hot day, so Members may remove their jackets if they wish. Members of the public in the Gallery may do so as well.

Before we begin, some brief explanation may be useful to those who are relatively new to Public Bill Committees. The Committee will first be asked to consider the programme motion on the amendment paper; debate on that motion is limited to half an hour. We will then consider a motion to report written evidence. Then we will begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in this room; it shows how the amendments selected for debate have been grouped together for discussion. Amendments grouped together are generally on the same issue, or on similar issues. The Member who has put their name to the leading amendment in a group is called to speak on it first. Other Members are then free to catch my eye to speak on the amendments in the group. A Member may speak more than once in a debate.

At the end of a debate on a group of amendments, I will call the Member who moved the leading amendment again. Before they sit down, they will need to indicate whether they wish to seek to withdraw the amendment or to seek a decision. If any Member wishes to press any other amendment in a group to a vote, they need to let me know. Please note that decisions on amendments take place according not to the order in which amendments are debated, but to the order in which they appear on the amendment paper; that is just to keep us all on our toes. I will use my discretion in deciding whether to allow a separate stand part debate on individual clauses and schedules following debates on amendments to those clauses and schedules. Clause stand part debates begin with the Chair proposing the question. There is no need for anyone to move that a clause stand part of the Bill. I hope that explanation is helpful.

Clause 10 - Civil Service Commissioners for Northern Ireland

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to consider the following:

Clause 11 stand part.

Clause 12 stand part.

Mike Penning (Conservative, Hemel Hempstead)

It is a pleasure to serve under your chairmanship, Mr Hollobone. We took clauses 1 to 9 on the Floor of the House, and we had quite an extensive debate on them. As we move into this stage of Committee proceedings, we get more involved in technical matters. Clauses 10 to 12 amend the Northern Ireland Act 1998 to move functions relating to certain arm’s length bodies in Northern Ireland from the excepted matters in schedule 2 to a list of reserved matters in schedule 3.

Section 4 of the Act defines the legislative matters in Northern Ireland that may be excepted, reserved or transferred. Clause 10 will not change the current procedure for appointments to the Civil Service Commissioners for Northern Ireland—commissioners will continue to be appointed by the Crown—but it will make a minor amendment to the Act to provide legislative scope for the change to be made in future, should the Northern Ireland Assembly and the Government agree.

Similarly, clause 11 moves certain functions relating to the Northern Ireland Human Rights Commission from exempted to reserved. Clause 12 makes similar provision in respect of the District Electoral Areas Commissioner for Northern Ireland; hon. Members will be aware that those areas are set out slightly differently from how they are in the rest of the United Kingdom. This change will allow the Northern Ireland Assembly to rationalise the way in which local government electoral areas are set, subject to the consent of the Secretary of State.

In clauses 10 to 12, we are really trying to bring Northern Ireland as close as we can to the rest of the United Kingdom in regard to these measures. We are not completely there, but they allow us to have matters in hand, so that we can get on and make progress when the time is right. They move us closer to normalisation in Northern Ireland, which is something that I am sure the whole House would like to do.

Mark Durkan (Social Democratic and Labour Party, Foyle)

It is a pleasure to be under your chairmanship this morning, Mr Hollobone. Clauses 10 to 12, as the Minister said, will take a number of matters listed as excepted in the ’98 legislation into the reserved category, essentially bringing them further into the devolved sphere, subject to an approval power held by the Secretary of State. As an enthusiastic devolutionist, I always want to see more powers and functions being devolved. As someone who has an eye to good standards of probity, due merit in appointments, and inclusion, I think that we have to put on record some reservations about the character and quality of some of the appointments being made in the devolved sphere, and about the fairness and equity of some of the decisions made there.

Clause 10 deals with the Civil Service Commissioners for Northern Ireland, who have an important role that, thankfully, has not been controversial too often, though it has been decisive. At times, the commissioners have been decisive in making sure that senior appointments in the civil service were opened up to more public competition. They were obviously decisive in presiding over such appointments and bringing forward recommendations.

In my time as Deputy First Minister, there was the question of the appointment of the new head of the civil service. The then First Minister decided that he did not like anybody in the Northern Ireland civil service, and decided to take it entirely upon himself to march into Downing street and ask for the assistance of the Cabinet Office in finding a suitable civil servant in London who would take the job. There was no consultation with me, as Deputy First Minister, and no consultation whatever with any of the civil servants in Northern Ireland or his office. He was, of course, duly assisted by Downing street and Jonathan Powell, and was given a meeting with the head of the civil service here, who said that they would trawl for names and approach likely candidates.

We need to make sure that when we put anything in the devolved sphere, there are sufficient checks and balances to achieve the sort of norms and assurances that we would want. We also want to be assured that where powers are reserved to the British Government, they are actively exercised in a judicious way, and not on a whoever-comes-to-them, whatever-you’re-having-yourself basis. That is hugely important.

We got the matter of the civil service head sorted. When I confronted the First Minister, and when civil servants protested about the legal question mark that would have been created if he had got his way and the appointment had been made in that way, he complained to me that it was an awful pity that he could not have a private conversation in London any more. There could have been quite a number of challenges from eligible candidates for the post if there had been such a high-handed dismissal of their eligibility.

The Civil Service Commissioners, who presided over that appointment, have a sensitive position. It is important that people have a sense that they are not working simply on the basis of to whom they owe their appointment; they should not feel that they owe their appointment to the First and Deputy First Minister, or to the parties in the Office of the First Minister and Deputy First Minister.

Similarly, the Northern Ireland Human Rights Commission has an important role that should not be seen to be, and should not be, purely partisan. Unfortunately, over a number of years, many people have seen appointments to the Human Rights Commission, even by the Secretary of State, as being essentially on party lines, and along the lines of who will shore up whose confidence in the Human Rights Commission. That in itself would be an eligible consideration where there are doubts about the role of the Human Rights Commission, but when some of those people come on to the commission and appear to oppose its role, or question its fundamental purpose, more questions are raised about the nature of the appointments.

Again, if we see appointments in the devolved sphere as falling to the First and Deputy First Minister, we will have problems, because other parties will feel excluded, and many non-party interests will feel excluded or used, so we need to make sure that standards are being upheld as far as devolved appointments are concerned. That is certainly something that we should be at pains to establish on each occasion, with regard to the reserved powers of the Secretary of State.

When we negotiated the Good Friday agreement and established the institutions, many of the appointments were made on the basis that parties were consulted and allowed to nominate. Non-party interests and non-party nominations were sought as well. Under the management of Sinn Fein and the Democratic Unionist party, that has been less and less the case. For bodies that are fundamental to the agreement, such as those north-south bodies that have boards—the north-south implementation bodies—originally it was the case that all parties were allowed to nominate and were offered nominations, but that is no longer the case. Sinn Fein and the DUP do the nominations. Nobody else is consulted, invited or involved. It is just their show now.

People who served well on some of the bodies and would have been in a position to step forward to chair them, given their experience, found themselves completely discarded and replaced by others who came in with no real sense or knowledge of, or care for, the agenda of those bodies or work groups. We need to be very clear that we cannot simply say, “We trust you with all those appointments; just do what you want.” If this is going into the devolved sphere, we want to encourage it to be done on as inclusive and transparent a basis as possible.

Gregory Campbell (DUP, East Londonderry)

Does the hon. Gentleman agree that the situation that he is outlining, in a way that may be somewhat partisan, is fully open to rigorous scrutiny by the Northern Ireland Assembly? The entire process has been subjected to that scrutiny in the past, and I am sure it will continue to be subjected to it.

Mark Durkan (Social Democratic and Labour Party, Foyle)

It actually was not subject to that sort of scrutiny, because when people asked questions, they were told that the issue of appointments was protected as a confidential matter. They were not allowed to see who else was considered. The process has not been transparent, not least when it came to north-south bodies and suchlike. Those of us who tried to get some account of that were not in a position to do so, and found it hard to force the issue.

There is, of course, an additional consideration, given recent controversies about donations to parties and commercial influences that may have motivated decisions that Ministers made about contracts and the conduct of the affairs of public bodies. Those questions also pertain to the issue of public appointments. There have been controversies about public appointments; it has turned out that some of the people appointed were donors. People had not appreciated before the appointment that those people were donors to a particular political party.

There was a controversy with the Maze panel over the role of Terence Brannigan. Sinn Fein said that it did not know, when it agreed to a DUP nominee being chair of the panel, that it was someone who had become a significant donor to the DUP. We cannot wait for these things to spill out by accident. Again, it was hard to force that issue, because people were told, “Well, it’s a small enough place; it’s very hard to appoint people who are not donors, and you can’t only appoint non-donors.” I accept that we cannot appoint only non-donors, but there needs to be full transparency. Whenever that issue has been established, people have been able to absorb it and take it in, which proves that there was no need to avoid transparency in the first place.

Gregory Campbell (DUP, East Londonderry)

I thank the hon. Gentleman for giving way again. Does he agree that there is a world of difference between someone who is a member of a political party being appointed to chair a panel, and appointing someone who is a significant donor? I am sure that he understands the distinction I am making.

Mark Durkan (Social Democratic and Labour Party, Foyle)

There can be a world of difference, but there can also be a dubious blur of a difference, particularly when we do not have transparency in relation to donations. It is one thing to be on a definite path, and to know that at a particular point in the calendar, transparency will be there and will apply all around; the problem is that people are left in a twilight zone where it is hard to know the difference, or even whether there is a difference. With many of these things, it is like the old advert for soup: the difference is in the thickness. I accept that, but the point is that when there are doubts or concerns, it is an issue that we should not completely disregard as we deal with the three clauses before us.

Local government boundaries are already a transferred matter, and the Bill proposes to transfer more issues in the domain of how local government boundaries are composed into district electoral areas. DEAs are groupings of wards that, in effect, become the contested electoral area for councillors. A decision will be made on whether there will be three, four, five or six wards in a particular DEA. Obviously, the higher the number of wards in a DEA, the higher the number of councillors, because there is one councillor per ward. Furthermore, the higher the number of wards in a DEA, the greater the spread afforded to parties in terms of proportional representation. The lower the number of wards, the lower the spread, which is why the whole issue of boundaries, not least for Dáil Éireann, becomes quite contested. Many parties take issue when the Government there opt for three-seat and four-seat constituencies; they see it as an attempt to reduce things for other parties. Again, it becomes a sensitive issue. If the decision on the composition of boundaries becomes more and more a devolved matter, we must ensure that there are protections, so that there is not abuse to serve partisan interests.

Again, we have form on this, in this phase of devolution. When the devolved power relating to local government boundaries was being exercised a few years ago, the Local Government (Boundaries) Bill was introduced in the Northern Ireland Assembly, which appointed a Local Government Boundaries Commissioner. The Bill actually set the boundaries; it did not leave it to the Local Government Boundaries Commissioner to come up with boundaries, look at councils and say what would be a natural composition, what was a natural hinterland, and so on. It actually fixed the boundaries, so Sinn Fein and the DUP fixed the boundaries for 11 councils. They picked the number 11 between themselves.

Under the current dispensation, the proportion of the population that lives under a council that has a nationalist majority, and the proportion that lives under a council with a Unionist majority, are on a par with the Unionist and nationalist share of the population as a whole. Uncannily, the boundaries seem to reflect the population split in Northern Ireland. Of course, the new boundaries do not do that; they will take 100,000 people out of councils that are under overall nationalist control and put them into councils that are under overall Unionist control.

One might wonder, “Why would Sinn Fein go along with the sort of gerrymandering that puts more people under Unionist control and takes people from nationalist control, with absolutely none going in the other way?” It is simply because Sinn Fein wanted to fix the boundaries in the two main cities as best suited it, so that is what it did. It was an entirely expedient exercise of the power relating to local government boundaries.

With that experience, it is difficult to assure people that we do not have to worry about decisions regarding the district electoral areas. We need to ensure that the Secretary of State is alert to those sensitivities and is aware of what has happened in the past. I do not know whether she has listened to any of the points made on this subject in earlier stages of the Bill. However, if we are to take seriously the decision that we are making about moving these powers, it is important that we hear from the Government that the Secretary of State and the Minister—and their successors, in so far as the Minister can commit them—will be alert to such issues and sensitivities, and will seek due assurance at all times when the powers are exercised.

Mike Penning (Conservative, Hemel Hempstead)

I thank the hon. Gentleman for raising some important issues, even if we did debate some of them on the Floor of the House. One of the reasons why the Government continue to keep reserved powers in this area is so that we can do exactly what he suggests: keep a close eye on what is going on. We are committed to consulting extensively on when these matters can eventually be devolved to the Assembly. At the moment, as we know, all three bodies will remain under the reserved powers of the Secretary of State. She will keep a close eye on the issue, with my assistance, as will whoever replaces us, should that ever happen.

Clause 13 - Removal of requirement that canvass form must be prescribed form

Mike Penning (Conservative, Hemel Hempstead)

Since the introduction of individual electoral registration in Northern Ireland in 2002, Northern Ireland has used a different canvass form from the rest of the United Kingdom. The form itself, not just its core elements, needs to be enshrined in secondary legislation, which Parliament discussed only last week. That means that every time there is a canvass, secondary legislation is needed to ensure that the form is kept up to date.

With the introduction of individual electoral registration in Great Britain, there is an opportunity to bring the electoral registration systems in Great Britain and Northern Ireland closer together, which is what the clause will do. By making it possible for the Electoral Commission to have a role in the process—a point made by the hon. Member for Foyle earlier—we think that we will get much better scrutiny, and that will bring Northern Ireland much closer to what goes on in the rest of the United Kingdom.

Philip Hollobone (Conservative, Kettering)

I now call a Member whose sartorial discipline puts the rest of us to shame.

Steve Pound (Labour, Ealing North)

Actually, my shirt has no back to it. I rise to make a brief point on a matter that we discussed earlier. The inaccuracy of the register—there is a 20% level of inaccuracy—is of concern to many of us. Will the Minister indicate how that will be reviewed and kept under scrutiny? Will a mechanism to increase the accuracy be reported to the House, for obvious reasons?

Mike Penning (Conservative, Hemel Hempstead)

The shadow Minister makes a very good point, which we have discussed before. It is why I brought through individual registration this year, early: so that we can have door-to-door canvassing and a much better understanding of the situation.

The accuracy of the register is not the only big issue in Northern Ireland; there is also the big issue of having people on the register. As politicians, we go out and try to convince individuals to vote for us, but there is no point if they are not on the electoral register. That is an issue that the Electoral Commission and I will take forward, so that we can better educate the electorate on their rights. As I say, if people are not registered, they cannot vote.

Also, it is imperative to have an accurate register if we want democracy anywhere in the UK. That is why we will report to the House as to the accuracy of the register; that is a very important point. I will ensure that that takes place, but at the same time the accuracy of this year’s canvass will be very important. I urge all political parties in Northern Ireland to work together on that canvass.

Clause 14 - Registration as an elector: abolition of 3 month residence requirement

Mike Penning (Conservative, Hemel Hempstead)

Clause 14 is very important. Everybody has the right to vote, should they be within the United Kingdom, but a small group of people are excluded from voting in Northern Ireland, because they have not been resident there for three months before an election. Clause 14 will remove that situation and ensure that nobody loses their right to vote.

The plainly obvious example is people working in different parts of the United Kingdom. It is important that people can work wherever they can. For instance, if someone was working in London and they only went back to Belfast permanently 10 weeks before an election, they would be excluded from voting. This clause removes that issue and ensures that everybody has the right to vote. That is why it is particularly important.

Mark Durkan (Social Democratic and Labour Party, Foyle)

As the Minister has indicated, there are commendable aspects to this change, which will make it more convenient for people to get themselves properly established on the register, not least in advance of an election. Of course, people want to be on the register, not only so that they have a right to vote, but because a number of other services and issues are determined and influenced by reference to whether or not someone is on the electoral register.

Many people register either when they are coming back home to where they lived before in Northern Ireland, or when they are coming to Northern Ireland for the first time. Sometimes it suits people to get the electoral identity card, for which they are eligible once they are registered, so the ability to get the ID card is something that counts. It certainly counts a lot for young people, who may not otherwise have photographic ID in the form of a driving licence or passport. That is a particular reason for the change.

Another sensible aspect of the change is that we have had a bizarre situation where the electoral officers in Northern Ireland have been telling people who have presented themselves, “Well, we need proof that you have been resident for three months”, and if people are not in a position to produce historical utility bills and so on, they are told, “Sorry, no, we can’t put you on the register without proof.” Then the people say, “Well, how can we get proof?” The officers say, “If your MP writes to us saying that you have been resident for three months, that would be okay.” That puts MPs in the invidious position of basically being the gatekeepers of whether or not some citizens can be registered.

That gives MPs a difficulty. How would an MP satisfy themselves that the requirement had been met? I think that it has happened to Members of the Legislative Assembly as well. How would they satisfy themselves that someone had been duly resident for three months, so that they can give the necessary assurances? They are then in the invidious position of saying, “I can’t give an assurance that you have been resident here for three months.” It is important that that invidious anomaly—that strange position that electoral officers have taken—is removed.

However, there are other issues in relation to removing the three-month requirement. If we quickly come up to an election, and there is a sudden surge of added registration somewhere, that will cause its own issues, and I know that the Electoral Office for Northern Ireland will try to guard against that and show vigilance.

I know questions have arisen, and I certainly know that some of the parties in the south have asked questions about the amount of double registration in border constituencies either side of the border, and that the same people are registered north of the border as are registered south of the border. Obviously, when parties are campaigning on either side of the border, that could well be of particular advantage to them. There would be nothing to prevent people, if they were registered on both sides of the border, from voting on both sides of the border in the European elections next year. That would not be against the law, because they would be voting in separate elections, as with people voting in two by-elections on the same day in two different constituencies. That happened in 1986 in the by-elections called over the Anglo-Irish agreement. I know of a number of people who voted in more than one constituency because they were allowed to be registered in more than one constituency. That was legal, but we need to be alert to any possible abuse or temptation towards abuse. We need to be assured that the added convenience and straightforwardness of the change will not be open to any manipulation that might cause concerns or scandals should it arise.

Steve Pound (Labour, Ealing North)

With regard to the wise words of the hon. Gentleman, like most MPs, I would be delighted to choose who is allowed on the electoral register. However, we should probably not go down that road.

The hon. Gentleman referred to double registration. Will the Minister confirm whether there is to be a campaign in Northern Ireland when the provision is enacted, as I sincerely hope it will be, to draw attention to double registration? As I understand it, in the rest of the United Kingdom it is perfectly permissible for people to be registered in different constituencies, although obviously not to vote in different constituencies. Will advice be given to those registering under the new rule as to the propriety of being registered in another jurisdiction? Will such information be out there?

The provision will make a major change and the Minister is right to refer to the salience of the clause. We must make sure that everyone understands it thoroughly. No one in this room needs convincing that the potential for mischief in electoral registration is vast and limitless.

Mike Penning (Conservative, Hemel Hempstead)

I thank the hon. Members for Foyle and for Ealing North for their contributions to the debate. The clause is important. It will not take away the requirement for proof of address, but it will remove the requirement for someone to prove that they have to have been at that address for three months, thereby taking away the gatekeeping role, which I have heard a lot about during my short time as a Minister. Indeed, some of my electorate might find interesting the concept of accepting what a politician says rather than what someone else says.

Matters are moving on more and more, as we gently, gently move to as much normalisation as possible. There are risks, which were alluded to by the shadow Minister. Earlier, I referred to educating the electorate. Northern Ireland has a very sophisticated electorate, but in many ways there are things that they have not been fully informed about over the years. I passionately believe that the Electoral Commission will take hold of that role and move forward. However, it can do so only with the help of the public and all political parties. Difficult issues are involved, which I do not need to go into, and we must ensure that the electorate receive as much information as possible.

Double registration—and, in some cases, triple registration—has occurred around the United Kingdom for years. It does not seem to be a major problem within Great Britain, and Members of Parliament with two homes have the opportunity to vote for themselves or to vote elsewhere. I always use the word “normalisation”, which was used by Ministers long before my time. Normalisation is enormously important and part of the process, which is why the clause is so important.

Clause 15 - Registration as an overseas elector: declaration of nationality

Mike Penning (Conservative, Hemel Hempstead)

The clause, like all parts of the Bill, is important. The Belfast agreement recognised the birthright of the peoples of Northern Ireland to identify themselves and be accepted as Irish or British or both, as they may choose. All overseas electors are required to make a nationality declaration when they apply to vote. The clause will make that nationality declaration compatible with the Belfast agreement, which is an important change to the legislation.

The change is technical, but emotive. The clause does not expand the franchise beyond British citizens. Rather, it involves individuals who are already entitled to vote, but feel unable to exercise that entitlement because of the requirements of identity to identify themselves as Irish.

I accept that the issue is emotive. On paper, the changes are consequential, but the issue is felt much more strongly in Northern Ireland. However, the changes are an important part of ensuring that the Belfast agreement is recognised within the legislation.

Gregory Campbell (DUP, East Londonderry)

It is a pleasure to serve under your chairmanship, Mr Hollobone.

The Minister talked about the Government’s acceptance of the nationality of people living in Northern Ireland, whether they determine themselves to be Irish or British. That raises an exceptionally important point, which he knows I have raised on a number of occasions and will keep raising until we arrive at a satisfactory conclusion. Many thousands of people in Northern Ireland—the figure is certainly in the tens of thousands—were born in the Irish Republic after 1949, when the Irish Free State left the Commonwealth. People who were born in the Republic before that date had the right to British citizenship and a British passport, but anyone born in the Republic since 1949 who has moved to Northern Ireland does not.

There are therefore many thousands of people—the Speaker of the Northern Ireland Assembly is but one very prominent and eminent example—who, if they go along, as any other citizen in Northern Ireland does, to their local post office, can apply for an Irish passport and, having paid the required fee, get that passport, as they are deemed to be an Irish citizen. However, if those same people go along to the passport office in Belfast, or write to the one in London, they cannot get a British passport, despite the fact that they are a British resident, a British voter and a British taxpayer here in the UK.

Those people can get a British passport if they go through the complicated and expensive process of naturalisation, but they constantly tell me that, despite the demand for, as the Minister put it, equality of citizenship, whether Irish or British, those who want an Irish passport do not have to naturalise or pay an exorbitant fee. To get an Irish passport, they simply have to apply, and they receive one, because they are deemed to be Irish citizens.

That anomaly must be addressed. I have raised it on the Floor of the House and will raise it again if the Bill does not address it. Several years ago, I introduced a private Member’s Bill on the issue, and it will keep being raised until the anomaly is resolved. That group of people in Northern Ireland, who are proud British residents, voters and UK taxpayers, also want the pride of being British passport holders and British citizens. The Government must deal with that issue. If they do not do so in the Bill, they must address it in the very near future.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The clause centres on a person’s eligibility to be an overseas elector—that is the import. The provisions solve part of the problem, part of the way, but they leave a residual problem. The hon. Member for East Londonderry has spoken of how the issue, as he sees it, affects the people who are resident—quite often have been long resident—in Northern Ireland, but were born in one of the counties of the south, which makes them ineligible for a British passport.

Obviously, I am not here to address the issue of passport eligibility, but the group that the hon. Gentleman referred to will be caught by the clause. If Willie Hay, the Speaker of the Northern Ireland Assembly, or Sean Farren or Brid Rodgers, distinguished former Ministers in the Northern Ireland Executive—all of them long-standing participants in the democratic process in Northern Ireland—moved abroad for a short period, they would be ineligible to register as overseas electors because none of them was born in Northern Ireland. Therefore, the clause remedies the problem only for people who were born in Northern Ireland.

I want to lay down a marker that we need to consider making a further change to allow people to qualify to be overseas electors in Northern Ireland on the basis of having been on the register in Northern Ireland for a certain number of years. Such a measure would not necessarily have to go so far as to consider the length of time that a passport had been held, but it would at least remedy the problem by allowing people to qualify as a registered elector not only by virtue of their place of birth, but through their tenure as a registered elector in Northern Ireland. Therefore, if a person lived and worked abroad, they could continue to take an active interest in and to have an input to the democratic process in Northern Ireland.

The purpose of having overseas electors is to prevent people from becoming disfranchised and losing their involvement in the democratic affairs of their nation or their locality. Although the clause goes some way to bringing the overseas electorate qualifications in line with the Good Friday agreement, there is still an element of disfranchisement, which can reasonably be addressed by another route. However, I accept that that would require a further amendment, rather than those proposals available to us now.

Mike Penning (Conservative, Hemel Hempstead)

I thank the hon. Members for East Londonderry and for Foyle for their comments on the clause.

I do not want to deviate too much from the content of the clause. I believe the hon. Member for East Londonderry tried hard to table an amendment, but it was out of my hands. He raised an important issue, but it is not the responsibility of my Department. I have met the hon. Gentleman and his colleagues about this subject. I have spoken to the Immigration Minister and the Home Secretary, and this is very much a matter for them. I commend the hon. Gentleman on his vigilance and on going on and on about something he is passionate about. I have some sympathy with him, but the issue is not the responsibility of my Department and it is not part of clause 15.

I am pleased that the hon. Member for Foyle appreciates where we are going. We have not been able to introduce a clause that addresses all our concerns, but the clause goes some way towards alleviating some of his concerns, particularly about the way in which the Good Friday agreement has been implemented. The clause has been introduced a long time after the Good Friday agreement was implemented, but, as I said, I think it is important. I am pleased we have had a short debate on it, and I hope it will stand part of the Bill.

Gregory Campbell (DUP, East Londonderry)

Does the Minister agree that the point he made at the beginning of his comments on the clause, that the right of people in Northern Ireland to deem themselves to be either British or Irish, works both ways? If it works both ways, the anomaly has to be addressed at some point.

Mike Penning (Conservative, Hemel Hempstead)

I do think it works both ways, but I am not going to be drawn into that debate on this clause.

Clause 16 - Absent voting

Mike Penning (Conservative, Hemel Hempstead)

The clause addresses a small group of voters who could be disfranchised. I fully understand that the legislation is the way it is because of concerns about fraud in the electoral process. However, I think that it is wrong that someone who falls ill close to an election is disfranchised because they do not have an absent vote opportunity, which they would have in the rest of the United Kingdom. This is therefore an important move forward. I am sure the shadow Minister will agree that we have to be really vigilant, and that the Electoral Commission has to be absolutely vigilant that these provisions are not abused, but in the 21st century, we cannot have people being disfranchised because of their health. I therefore commend the clause to the Committee.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I simply underline the point that the Minister has made: people will want to make sure that this added facility to ensure that people can participate in elections by being able to obtain an absent vote at relatively short notice—more convenient notice than is available now—is not abused, particularly not in combination with the added facility for people to register. Someone will need to watch what sort of linkage there is between the numbers of late registrations overall or in any given area and the number of absent voting applications for those people who registered late.

We also want to ensure consistency of practice across district electoral offices. In relation to absent ballots in the past, people have compared anecdotes that suggested marked differences in practice as to whether volumes of postal vote applications or proxy votes were allowed or approved. There were question marks about the same names appearing as witnesses in different times or different ways—there were all those sorts of issues. It is important that the chief electoral officer keeps a weather eye on that and ensures that the district electoral offices are managing the new facility in a way that works for voters rather than in the organised interest of any one party or candidate, which would be untoward.

People will particularly want to see whether in practice any party tries to ramp up its position via the electoral register by combining a number of new provisions. That is not just something that the chief electoral officer would have to look at; the Electoral Commission, in its wider role, would also want to keep a weather eye on that.

Steve Pound (Labour, Ealing North)

There is something about spending part of a sweet summer’s morning actually doing good and tidying up. I concur with the Minister’s comments about the good sense of these measures. I can think of members of the armed forces in my constituency who have been posted abroad or away from their home base at very short notice, and who have not had the opportunity to vote.

I want to pick up the point made by the hon. Member for Foyle about consistency. Inevitably, clause 16 will have consequences for local government organisation. If a large number of people make applications close to polling day, there will be staffing, financial, organisational and structural consequences, and I think that consistency will be an issue. I do not wish to sound overmuch like a broken record, because I have confidence in the Minister, but could this matter at least be reviewed on an annual basis, as I am sure it will be by the inestimable Northern Ireland Office, if not the Assembly? That way, at some stage we can see whether late registration has had extensive consequences. If I may dare to attempt to speak for the whole Committee, I think that every single one of us will support late registration, but we just want to make absolutely sure that it does not engender any problems and proceeds smoothly and with consistency.

Mike Penning (Conservative, Hemel Hempstead)

I could not agree more with the comments by the shadow Minister. We will monitor the situation very carefully, not least because the Electoral Commission has indicated to me, as the Minister responsible, that the clause will affect a small group of people. If we suddenly find that a large group of people in a particular part of the Province—perhaps even in a particular estate—is registering late, alarm bells will ring. I have insisted that we have the capacity within the agency to make sure that we deal with that.

I completely agree that there were myriad groups that previously fell under this category. The shadow Minister mentioned the armed forces, and 20% of the deployed Territorial Army in Afghanistan come from the Province. I pay tribute to them; I was with 204 Royal Army Medical Corps Territorial Army only the other day to help present their Afghan campaign medals. Members of the TA in particular are posted at short notice and we would not want them to be disfranchised. Ensuring that members of the armed forces could vote was an emotive issue even when I served many years ago.

To respond to points made in the debate, absent votes will not be allowed unless proof of being in the armed forces is provided, but that would be evidential. This is an important measure that needs careful monitoring and we will provide that. We start from a zero base. There is an assumption of the need for this measure, but we and the Electoral Commission will monitor this carefully. Should there be a surge of applications, we will make sure that alarm bells start to ring.

Clause 17 - Electoral identity cards

Mike Penning (Conservative, Hemel Hempstead)

In Northern Ireland, photographic evidence is required for electoral registration. At the moment, the penalty for giving false information on identity is not the same as giving a false home address. That will be married up to make a similar offence for both. If someone commits one type of fraud, they will find that the penalty will be the same for electoral registration and applying for proof of identity. Clause 17 intends to close a loophole by making it a serious offence for a person to indicate fraudulently that they are not who they are.

Clause 18 - Chief electoral officer: duty to take necessary steps

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss clause 19 stand part.

Mike Penning (Conservative, Hemel Hempstead)

Members of the Committee will be aware that the way in which elections are administered in Northern Ireland is different from Great Britain. In Great Britain, registration and returning officers are employed by local authorities, whereas the chief electoral officer for Northern Ireland is a statutory appointee.

Clause 18 ensures that the chief electoral officer for Northern Ireland is subject to the same duty as registration officers elsewhere in the United Kingdom and I am sure that we would all agree with this measure. The Government monitor the performance of registration and returning officers in Great Britain and will do similarly in Northern Ireland.

These two consequential clauses are designed to move towards further normalisation in the Province so that the rules of the chief electoral officer in Northern Ireland will be similar to those of the returning officer in Great Britain. The Electoral Commission carried out a pilot in 2012 to 2013 of the process brought forward by this measure. I hope that the Committee agrees that clauses 18 and 19 should stand part of the Bill.

Clause 20 - Data sharing

Mike Penning (Conservative, Hemel Hempstead)

Individual electoral registration was introduced in Northern Ireland in 2002 as part of a package of measures to combat electoral fraud, which is something that we have already discussed this morning. With the introduction of individual electoral registration in Great Britain, there is an opportunity to bring the two systems closer together and increase consistency across the United Kingdom. The clause extends regulation-making powers created in schedule 2 to the Electoral Registration and Administration Act 2013 to Northern Ireland and repeals similar powers where necessary. We do not envisage that the powers will be used immediately. However, to avoid further divergence of the two systems, it is important that we put it on statute that the Secretary of State has the power to bring measures forward when she or he sees fit.

Clause 21 - Rules of court

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss that the schedule be the schedule to the Bill.

Mike Penning (Conservative, Hemel Hempstead)

The provisions have two purposes. The first, addressed in paragraphs 1 and 2 of the schedule, is to rectify an error in the provisions for making court rules to deal with an excepted matter in Northern Ireland following the devolution of policing in 2010. In other words, this is a tidying-up exercise.

The schedule’s second purpose is to make changes to the rule-making procedures for the magistrates court, county court and inquests to bring such procedures into line with the other court rule-making procedures. We expect the legislative consent motion to be secured before the Bill goes to the Lords.

Clause 22 - Equality duties

Jeffrey Donaldson (DUP, Lagan Valley)

I beg to move amendment 1, in clause 22, page 15, line 35, after ‘authorities)’, insert ‘—

‘(a) in subsection (1), after paragraph (d) insert—

“(e) between those who are victims and survivors of the conflict and those who are not; and

(f) between those who have been members of Her Majesty’s armed forces and those who are not.”.

(b) after subsection (1) insert—

“(1A) person is excluded from any benefit arising from this Act by virtue of (1)(e) if that person has been convicted of a serious criminal conviction.”

(c) ’.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss amendment 2, in clause 22, page 16, line 3, at end insert—

‘(1A) In subsection (5) of that Act insert—

““victim and survivor of the conflict” is defined as—

(a) any person who has suffered harm caused by an act related to the conflict in Northern Ireland, for which they are not wholly or partly responsible, that is in violation of the criminal law,

(b) any person who provides a substantial amount of care on a regular basis for a person as outlined in paragraph (a), where the harm suffered is a physical or psychological injury.

“serious criminal conviction” means a conviction, whether the person was convicted in Northern Ireland or elsewhere, for an offence for which—

(a) a sentence of imprisonment of five years or more was imposed,

(b) a sentence of imprisonment for life was imposed.”.’.

Jeffrey Donaldson (DUP, Lagan Valley)

I echo my hon. Friend the Member for East Londonderry in saying that it is a pleasure to serve under your chairmanship, Mr Hollobone.

The amendments are important to us. Section 75 is a key provision of the Northern Ireland Act 1998 and I would venture to suggest that it is the most often quoted section, because it places a statutory duty on all public authorities in the execution of their duties to give due regard to equality of opportunity to certain specified groups. The Equality Commission for Northern Ireland set it out that the duty places upon public authorities a requirement

“to have due regard to the need to promote equality of opportunity between: persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; men and women generally; persons with a disability and persons without; and persons with dependants and persons without.”

Amendment 1 would add two further groups to be specified under section 75 of the 1998 Act. The first additional group is the victims and survivors of the troubles in Northern Ireland and the second is those who have served in the armed forces. It is evident from section 75 that the measure is about promoting equality of opportunity, but it is also about identifying groups within society that are deemed potentially vulnerable and therefore merit special protection under the 1998 Act.

We believe, first, that victims and survivors of the conflict in Northern Ireland are deserving of that special protection. Secondly, we believe that, having regard to the military covenant and the desire to afford special support to those who have served our country, section 75 ought to be amended to include those who have served in our armed forces as a specified group.

Clause 22 already provides for some amendment to section 75, and we believe that our amendments merit consideration by the Government. Sadly, tens of thousands of people might be categorised as victims and survivors of the Northern Ireland conflict. Many of them have been disadvantaged through bereavement; that includes financial loss as a result of losing the main earner at a young age. There are many families in Northern Ireland who have suffered as a result of that. Others have a range of needs, particularly with respect to physical and psychological trauma or injury caused by the conflict. Indeed, people who have suffered injuries as a result of the troubles have made the case that their needs are not adequately being provided for.

Recently, the victims’ support group at the WAVE trauma centre produced a report, which I commend to all Members. It identified the great need in Northern Ireland for support for those who have suffered psychological trauma or have physical injuries as a result of conflict-related incidents. Indeed, an international report states that the level of trauma in Northern Ireland is higher even than that in, for example, Lebanon. Given that Northern Ireland has among the highest levels of post-conflict trauma of any region in the world, victims and survivors merit special consideration and protection under section 75 of the 1998 Act.

Amendment 2 defines what is a victim and survivor for the purposes of section 75, and members of the Committee will note that there are two specific exclusions. The first relates to an individual who is a victim as a result of their own act—in other words, someone who injured themselves as a result of being involved in unlawful activity, who cannot, for the purposes of this provision, be considered someone who will benefit from the Bill.

Secondly, there is an exclusion in relation to those who have been convicted of a serious criminal offence. Members of the Committee might ask why we need to define a victim and survivor in such a way. The reality is that under the Victims and Survivors (Northern Ireland) Order 2006 a victim and survivor is defined as anyone who has suffered loss, either through bereavement or through injury or physical or psychological trauma, as a result of the Northern Ireland conflict. That means, in effect, that if someone was a member of a terrorist organisation, proscribed in law, and sustained an injury or loss as a result of the conflict, they can be defined as a victim. For my hon. and right hon. Friends on the Government side of the Committee, that means that, under the current definition, the perpetrators of the attacks that resulted in the murder of their colleagues, Airey Neave and Ian Gow, and the death of the victims of the Brighton bomb, are, if they sustained a loss or injury as a result of the troubles, equated with those whom they sought to kill.

It causes deep hurt and offence in Northern Ireland that perpetrators are equated with innocent victims. We do not believe it is right that special protection and status under section 75 are afforded to those who were engaged in acts of terrorism. Therefore, we have included these two exclusions to make it clear that a victim and survivor for the purposes of section 75 is not someone who was injured or sustained loss as a result of their own act, or someone convicted of a serious criminal offence. We define a serious criminal offence as one where a sentence of imprisonment for five years or more, or a sentence of imprisonment for life, was imposed.

The second group is the armed forces. The Minister will be aware that there is an issue around how Departments in Northern Ireland interpret their statutory duty under section 75 with regard to the implementation of the military covenant. The Select Committee on Northern Ireland Affairs is undertaking an inquiry on that very subject, and its report is due imminently.

I have had correspondence with Departments in Northern Ireland on behalf of veterans who are my constituents. For example, I have had a response from a Department stating that it is unable to provide my constituent with the support he needs because, under section 75, it is prevented from giving what it deems to be preferential treatment to members of the armed forces or to veterans.

I happen to believe that that is a misinterpretation of the military covenant, but, nevertheless, there is an issue around section 75 and whether it inhibits Departments in Northern Ireland from providing the support and benefits envisaged in the military covenant for those who have served our country. Our amendment would place that beyond doubt and clear the matter up by offering the clarity that Departments need: individuals who have served in the armed forces would be a specified group for the purposes of section 75.

We believe that individuals who serve our country and who come back to live in their homeland of Northern Ireland are entitled to the kind of protection afforded by section 75. That includes people who are not native to Northern Ireland, such as soldiers who served in the armed forces in Northern Ireland, met a local girl, got married and settled down in the Province. There are many of them and I have met them. The amendment would ensure full and proper implementation of the military covenant in Northern Ireland.

I commend the amendments to the Committee; they are worthy of support. People in Northern Ireland will understand why there is a need to afford the protections of section 75 to victims and survivors of the conflict and to those who have served our country in the armed forces.

David Anderson (Labour, Blaydon)

It is a great pleasure to serve under your chairmanship, Mr Hollobone.

I would like to make a number of points about what the right hon. Member for Lagan Valley said. For me, the issue of victims and survivors is one of definition. I would suggest that, to some extent, everybody on these islands is a victim of 40 years of state failure. The people in my part of the world are at a financial disadvantage because a lot money from taxpayers is going to fund the failure of the state in Northern Ireland, and it has done for the past 40 years. Therefore, to say that there is a group that is so tightly defined is missing the point altogether and it would be wrong to support that.

It was argued that terrorists should not receive the benefit of section 75, but surely the point is that a terrorist who has been convicted has served their time and therefore been punished. Is the right hon. Gentleman seriously suggesting that we should extend that punishment and exclude them from those rights? Yet again, I would argue that the terrorists on both sides of the argument were doing what they did because of the failings of the state and of us, collectively, in the House. The politicians in Northern Ireland did not resolve things in the political forums, which ended up with the discussions and disputes that we had for 40 years.

As the right hon. Gentleman said, the Northern Ireland Affairs Committee is considering how section 75 applies to the armed forces and the military covenant. I would be delighted if he sent to the Committee the correspondence that he has received from officials in Northern Ireland.

Jeffrey Donaldson (DUP, Lagan Valley)

I did.

David Anderson (Labour, Blaydon)

The evidence that we have seen clearly shows that the overwhelming feeling across the piece is that putting the armed forces into section 75 would, if anything, be a disadvantage.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Following the hon. Gentleman’s last point, people who have the interests of military and former military personnel close at heart have indicated to me that they want to leave well alone. They do not believe that such measures are the answer to any problems or inconveniences that they might help their friends or former members of the armed forces with. On the issue that will be the subject of the Northern Ireland Affairs Committee report, they have made it clear to me that they see no case for specifically including the military covenant by adding a reference to section 75. In fact, they think that doing so might create more administrative and other difficulties and tensions. They are concerned not only about unforeseen consequences, but about consequences that they consider to be fairly foreseeable and about which those involved are particularly worried.

The deeper issue with amendment 1 is the attempt to redefine victims and survivors and to insert them into section 75. Those associated with the affairs of the armed forces do not believe that including them as a specific group under section 75 will answer their questions, and similar feelings have been expressed to me by people who could unarguably be called victims and survivors. They do not think that the answer to their problems is to include them in section 75, because they are not necessarily convinced that section 75 will do all that it is expected to do.

Victims and survivors want to receive due consideration in much of what the state and public services do, not least when it comes to welfare reform measures. The so-called “karaoke” Bill—the Northern Ireland version of the Welfare Reform Bill—is currently before the Assembly. It has had to stick broadly to the terms of the legislation passed here, with very little room for discretion, although some discretion has been allowed for the different administrative structures in Northern Ireland.

Even as the Welfare Reform Bill was going through Westminster, my party tried to establish a special committee to look at the impact that such legislation would have on victims and survivors in Northern Ireland, but we were voted down. The right hon. Member for Lagan Valley has rightly pointed out the high number of victims and survivors, the high rates of trauma and the issues of mental ill health in Northern Ireland. Precisely to show due consideration of such matters in advance of the Assembly legislation, my party tried to get our proposal discussed at the Assembly, but the DUP voted it down. The DUP did not care about making sure that we duly considered the interests of victims and survivors in the change from disability living allowance to personal independence payments, and in the change to reviewing cases every three years with no exceptions whatsoever, no matter what the conditions and circumstances.

We were trying to say that surely victims and survivors should be treated differently if they were injured as a result of the troubles, rather than insisting that they retell their story afresh to some new official every three years and go through the trauma and difficulty again. Surely there is a way of giving some special and particular consideration to victims and survivors, just as the Prime Minister ensured would be the case for members of the armed forces. Members of the armed forces would not be subject to that sort of review by the Benefits Agency here or wherever; there were separate arrangements and funding lines made to guarantee that they are not subjected to that. We have been trying to say “Let something similar happen in Northern Ireland.” One would think that the people who tabled the amendment would be the first to back and support us in trying to get those sorts of special considerations and measures, but no.

There are other examples of very real issues for victims and survivors that need to be dealt with, whether housing, benefits, access to various services, including council services, all of which have been the subject of different cuts and shortcomings. Some of the measures that have existed to support victims have been reduced in recent years and lost out in funding, or have undergone restructuring in ways that mean that they are less accessible. There are real issues there in terms of how we support and serve the victims and survivors, but the answer to that is consideration in the planning and funding of services, and making those guarantees real, not creating a fig-leaf pretence by saying, “We’re adding you into section 75 after not having done as much for you as we should.”

An additional issue goes across amendments 1 and 2: redefining victims to exclude those who have been guilty of an offence. Of course, that means found guilty of an offence; there are many crimes in Northern Ireland for which no one has been convicted. Therefore, this is not an answer for those people who have gone through bereavement, serious injury and trauma and seen no one prosecuted or convicted. It is no answer for them.

We see things like the de Silva report and other reports from the past—even a police ombudsman report last week about the good samaritan bomb in my constituency back in 1988. Two people coming out of Mass were concerned about a neighbour whom they had not seen for a week, and they went to check the flat. There was a booby-trap bomb in that flat, and the police ombudsman report last week showed that the police knew all along that that bomb was there and that they were staying away from the area for days. They allowed a situation to develop where interested good samaritan neighbours lost their lives, simply for an act of concern or charity.

Three families are involved. Sean Dalton and Sheila Lewis died that day, and Gerard Curran died later of injuries. Their families are finding that, contrary to everything that they were told about no stone being left unturned to find the perpetrators, it turned out that, first, the police already knew in advance and no measures were taken to prevent such an atrocity from happening or to protect the public; and, secondly, according to the police ombudsman, after a flurry of activity at the start, the investigation was essentially switched off and nothing else proceeded. There are many victims who have many grievances, not just about the injury done to them, but around the fact that nobody was particularly pursued, prosecuted or convicted. We have a number of cases where there have been convictions, but the courts have now been overturning those convictions on all sorts of grounds, for example, concern around the circumstances in which the evidence was gained, the nature of interrogation methods, the quality of the confessions that were used, the character of the decisions that were made under the Diplock court and the strictures under which people worked.

Again, in circumstances whereby not only were many people not convicted, but even in many of those cases where there were convictions on the record that are now disposed of, the amendment would do nothing for any of the victims who are so affected. It pretends to solve a problem neatly, but actually it does not. Worse still, it possibly creates more of a problem because, while many victims are deeply concerned and vexed about their situation and that of other victims, many of them have also been working at various levels with other victims. When we addressed clauses last week downstairs, the shadow Secretary of State referred to recently attending the Theatre of Witness event at St Ethelburga’s in London.

That production from the Playhouse in my constituency was powerful. It was not portrayed by actors, but by people who were victims or combatants; they gave their own descriptions of themselves. They included a former British soldier who, as the right hon. Member for Lagan Valley said, has married a local girl, and now lives in my constituency. It also involved a young woman who was in the IRA in her youth, and another woman whose husband had been chained into a van to be a suicide bomber at the border checkpoint at Coshquin simply because he worked as a civilian at the Army base. His family were taken hostage and he was chained and lost his life, along with five British soldiers, when the van was detonated.

Another man spoke as a victim who had been in Belfast in his father’s car when a bomb had been planted in it. There were loyalists, republicans and people of all backgrounds giving very powerful testimony. Victims can define themselves and share their narrative with others without our starting to impose new, clumsy, difficult or arch definitions. It is all part of a wider narrative in that sense.

I have another point about amendment 1. Proposed new section (1A) of the 1998 Act would exclude somebody with a conviction from proposed new section 75(1)(e) but not from proposed new section 75(1)(f). Some might ask whether that is fair. Somebody is entitled to be in section 75 if they are a victim, but not if they have had a previous conviction. However, a conviction does not disqualify somebody from being eligible if they have been a member of the armed forces. Some people might say there is a discrepancy or inconsistency there. In fairness, the case can be made that often there are many people who have served in the armed forces, who, as a result of, for example, post-traumatic stress, find themselves running foul of the law in circumstances no one would have wanted.

Jeffrey Donaldson (DUP, Lagan Valley)

If the hon. Gentleman looks at section 75 as it is currently stands, there are already four categories. Someone could have been a soldier serving in Northern Ireland convicted of an offence, but happen to be male or disabled or have a certain sexual orientation or racial background. All that is currently provided for under section 75.

I take the hon. Gentleman’s point. We are seeking simply to ensure that those who have served in the armed forces are not disadvantaged, as they currently are in my opinion, in terms of the full implementation of the military covenant in Northern Ireland. If someone has a conviction, that is a matter that has to be taken into account if it relates to the service or the benefit that the individual is seeking to acquire. That does not invalidate the amendment.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The right hon. Gentleman has contradicted the point here. He has clearly given thought to ensuring that the victims and survivors covered by section 75 would exclude those with a conviction, but that would not be the case for members of the armed forces. He has specifically made the decision in the way in which the amendment is framed that he does not want to exclude former members of the armed forces because of a conviction, but that he wants to exclude victims and survivors because of a conviction.

Jeffrey Donaldson (DUP, Lagan Valley)

I thank the hon. Gentleman for giving way again, but I think he misunderstands what I am trying to do. I do not have to define who was or was not a member of the armed forces; that is a matter of fact. People either served in the armed forces or they did not. Therefore, for the purposes of the amendment, it is simply about definitions. It is not about saying, “They are not a person deemed eligible or ineligible by virtue of a conviction.” In an amendment relating to a victim and survivor, that has to defined, because, as we heard in an earlier intervention, everyone who lives in Northern Ireland could be defined as a victim and survivor of the troubles, if they lived through it, unless the definition is tightened up.

We have sought to make it clear in the definition who is and who is not a victim and survivor. The two cannot be equated: someone is either a member of the armed forces or they are not—that is clearly defined—whereas the definition of a victim and survivor has to be further explained, otherwise, as was said, it could be anyone living in, or who lived in, Northern Ireland during the troubles. So we have sought to make it clear who is or is not a victim or a survivor. I do not need to explain whether someone was or was not a soldier. If someone was convicted of an offence, it does not mean that they did not serve in the armed forces.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Again, the right hon. Gentleman and I are not necessarily going to reach agreement on this matter. The fact is that, by virtue of the amendment, he is seeking, first, to extend section 75 and, secondly, to disqualify people with convictions from one of the extensions that his amendment would make. It is clear that he wants to exclude people from being eligible for benefits as victims and survivors, but he does not feel so perturbed, worried, annoyed or aggrieved by someone with convictions who is a former member of the armed forces as to exclude them from a benefit. Again, it is because such invidious arguments end up being generated that many people associated with the armed forces do not want this amendment, or some of the other suggestions that have been made in respect of giving a particular profile to the military covenant in some new, bespoke and possible unworkable way in Northern Ireland. That is not the main issue that I have with the amendment, but I wanted to mention an inconsistency or contradiction.

My main point is that victims and survivors are owed a lot more by way of care, consideration and support. We need to do that daily and encourage those in charge of public services to do that. That was one reason why, when the institutions of the agreement were set up, as well as having the policy responsibility in relation to the past, with victims and survivors still resting strongly with the Secretary of State, the devolved Executive took the initiative to say that victims should be an issue for the devolved Assembly, too. That became part of the policy remit and responsibility of the Office of the First Minister and Deputy First Minister, not in terms of overall policy, necessarily, on victims and survivors, or even for the past, but to ensure that devolved services were being duly informed and were duly sensitive to the needs of victims and survivors in all they did: in the policies that they plan and the services that they manage.

We have much more to do in that regard, but it is difficult to claim that an easy short cut to that—the way of achieving all that—is a clumsy and potentially ineffectual change in section 75.

I oppose the amendments. We do not need to go in for such a change in definition. The DUP sought to introduce a Bill in the Assembly to change the definition of a victim and survivor, but it did not get the takers, such as us, that it hoped to get then—and it is not getting us as takers today, either.

Gregory Campbell (DUP, East Londonderry)

I rise to make a few brief comments, principally in relation to amendment 2. As we have seen in recent days, progress in Northern Ireland is somewhat halting. I do not wish to paraphrase a literary genius even more eloquent than the hon. Member for Ealing North, who talked about peace coming dropping slow, but we make progress in a halting way and we are trying to make further progress today during the course of the Bill.

I urge Members to recall that a couple of years ago a report came from Messrs Eames and Bradley. It dealt with the past and with victims. They took evidence and considered it for a long time. The entire project perished on the rock of a single consultation and the suggestion that an amount of money should be paid to those who would be regarded as “victims”, irrespective of who those people were and what they had done. The entire project perished on that single, simple proposal, because it did not differentiate between those who planted a bomb and those who suffered as a result, who were—as someone said in the Northern Ireland Assembly—at the wrong end of the rifle. In other words, they were the person who was shot, rather than the person who was pulling the trigger.

If we as a society do not make a straightforward, fundamental difference, we will for ever be condemned to repeat the defeat of the Eames-Bradley proposals. That is what the amendment is about.

Jeffrey Donaldson (DUP, Lagan Valley)

On that point, may I share with the Committee an extract from an unsolicited e-mail that I received yesterday? It is from a victim who is now well known in Northern Ireland: Ann Travers. Her sister was murdered by the IRA and they attempted to murder her father, who was a judge. She got wind of the amendment and sent me an e-mail, which states:

“It is bizarre that we equate the perpetrators of murder along with their victims in Northern Ireland. After our sister’s murder neither my brothers or myself chose to get revenge by joining an illegal organisation. To put it in the simplest terms, imagine the following scenario, my family is attacked by the IRA, the gunman shoots Mary in the back, an RUC Landrover pulls up and a policeman shoots the IRA...man...Is he a victim in the same sense as my unarmed sister? In my opinion, no, by his own free will and choice he created victims in both my family and his own.”

I think Ann Travers puts the point far more clearly than we could.

Gregory Campbell (DUP, East Londonderry)

I thank my right hon. Friend for that very powerful outline by Ann Travers.

We need to re-establish an equilibrium that never should have been unbalanced. No matter what the religious persuasion, political outlook or agenda-setting objective of any proponent of violence is, it is irrelevant. If they were a person who was a victim maker, they cannot under any circumstances, under any criteria, be described as a victim. It is as simple and as blunt as that. That is what the amendment is about.

The hon. Member for Blaydon talked about the universality of victimhood, but if we look at the demise of the Eames-Bradley proposals and at problems that have occurred in recent weeks and months, much of it can be traced back in Northern Ireland to the attempt by wider society not to differentiate between those who have deliberately gone out, whatever their background, to create victims, and those who ended in the coffin as a result of such actions.

The hon. Member for Foyle also mentioned welfare reform and particular issues that may arise as a result of designating certain people in that area. Many of us in the Northern Ireland Assembly were trying to make the number of designated groups as wide as possible, to ensure that as many people as possible would be sheltered from the hardship that some of the welfare reform proposals will bring. If we were to dig down even deeper and try to individualise those who may have been exempt, we would have been open to all sorts of accusations.

The reasoning behind amendment 2 boils down to that fundamental assessment. It is about distinguishing between those who are genuine victim makers—the people who point the gun or plant the bomb—and those others who die as a result of those actions.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is a pleasure to serve under your chairmanship, Mr Hollobone. I want to make a short contribution to this important debate.

Those of us on the Committee who do not represent constituencies in Northern Ireland need to approach this debate with considerable humility and great care. Those of us who have had the privilege of having an involvement in Northern Ireland will always remember our engagement with the victims of the conflict there. I am thinking of meetings that I had with families of the disappeared or with the widows of police officers who had been murdered. The trauma, pain and heartbreak those people have suffered is beyond the comprehension of many who do not live in Northern Ireland and have not been part of that difficult story. We need to approach this matter with considerable humility.

Frankly, I think that however well-intentioned they are, the amendments give the Committee an almost impossible task. I want to set out why I think that is the case. The right hon. Member—my right hon. Friend—for Lagan Valley wants to make section 75 clearly applicable to the victims of the conflict and to members of the armed services. He has explained his reasons why, but, of course, in doing that, he has to define what is meant by a victim of the troubles. He has put forward what to those of us who are not from Northern Ireland seems to be a very reasonable point of view: he wants to exclude those who have been convicted of terrorism offences and has put that provision in the amendments.

However, my hon. Friend the Member for Foyle has also put forward a very reasonable argument by asking, what of those who, it is well known, were involved in terrorist activity but were never actually convicted of a terrorist offence? Indeed, what of those who were convicted of terrorist offences whose cases have been referred by the Criminal Cases Review Commission to the Court of Appeal and whose convictions have been quashed? That does not mean to say that they have been found innocent of the charges against them; it simply means that the verdict has been declared unsafe by the Court of Appeal.

Suddenly, we see an immediate difficulty for the Committee. The truth is that the issue of who is a victim of the conflict in Northern Ireland cannot be determined in a technical way by a Committee sitting in the House of Commons. It can only be determined as part of a comprehensive process of dealing with the past—a process of reconciliation.

The hon. Member for East Londonderry mentioned the Eames-Bradley report. I well remember its publication: all the headlines and the controversy centred on the issue that he mentioned, which was the recommendation of a payment of £12,000 to the families of anybody who was a victim. That would have included people who were paramilitaries in the past, which was wholly unacceptable to many in the community.

It was unfortunate that that was the only recommendation from the report that received any publicity or consideration. There were other recommendations, including, crucially, that there be no amnesty—a very important recommendation, in my view; there should never be anything of that kind—but also recommendations for a reconciliation forum, a legacy commission, a review and investigation unit, and an annual day of reflection and remembrance. There were some very good recommendations that unfortunately got very little consideration because of the most controversial one. However, that report was an attempt by the previous Government to get a process under way that could assist the people of Northern Ireland in dealing with such difficult, almost intractable problems relating to their past. It was a genuine effort.

That responsibility still remains a crucial, key, core responsibility of Her Majesty’s Government. We now have a different Government, but it is important that they give priority to the need for a process that deals with the past, and that can deal with the victim of the conflict as well as many other issues. I hope that the Minister will deal with such matters in his response. Those who tabled the amendments have done so for legitimate reasons, but such provisions present us with an almost impossible task, a point that I hope will be subject to reflection.

Steve Pound (Labour, Ealing North)

I hope that the Committee will indulge me when I point out that the lead signature on the amendment is that of the right hon. Member for Belfast North (Mr Dodds). We all send our very best wishes to a man who was doing the job of good constituency MP, and who suffered for it. I understand that he is now out of hospital.

In many ways, what happened underscores the sensitivity and the contemporary relevance of what we are discussing. Sometimes, we need to be reminded that more than 3,000 people lost their lives during the troubles. Many more were injured. Some people lost their lives. Some people lost their limbs. All of us with experience of Northern Ireland have met those who have lost something not quite so visibly obvious. Those people have lost hope. They have lost the ability to operate, and to live a decent life. The number of people who suffer psychological damage is immense and terrifying. There cannot be a subject that is more sensitive than the one we are discussing. We have to approach it not only with humility, as my right hon. Friend the Member for Wythenshawe and Sale East said but, above all, with an awareness of the fact that many of us think we know about life in Northern Ireland, when very few of us do.

Next month, I will have the honour of representing my party in Omagh at the 15th anniversary of the appalling bomb. There can be no doubt as to the nature of the victims who suffered on that day. But victimhood is an intensely difficult subject to analyse and to define precisely. My right hon. Friend referred to the need for a wider examination, a comprehensive and inclusive process to deal with the past. That is still the policy of the Opposition.

Who could not have sympathy with the emotions behind the amendment? Who could not be aware of the subtlety and sensitivity? But were the amendment to be agreed, it would be prescriptive upon any attempt to finally come to terms with that much, much wider issue: the inclusive process of dealing with the past. It is with reluctance that I must place on record the position of Her Majesty’s Opposition. We have immense sympathy with the motives of those who tabled the amendment, but we cannot support it on this occasion.

Mike Penning (Conservative, Hemel Hempstead)

I shall address the very technical clause 22 first and then respond to the amendments. The amendments would amend the power of the Secretary of State under section 75 of the Northern Ireland Act 1998 to designate persons as being subject to the statutory duty to promote equality of opportunity.

I agree with the right hon. Member for Wythenshawe and Sale East that we must understand that those of us who may have visited Northern Ireland or who may have served in Northern Ireland have absolutely no idea of what it is like not only to represent a constituency in Northern Ireland, but to live there now or during the main part of the troubles.

I wish to associate myself with the comments of the hon. Member for Ealing North with regard to the right hon. Member for Belfast North. As someone who got a brick on his head many years ago, I know how enormously painful it is. Perhaps it was less painful for me than it was for the right hon. Gentleman as there is less inside to damage. He was doing his job. He was with his constituents. I also pay tribute to the police force in Northern Ireland, which came under what can only be described as a barrage of attacks, and to the mutual aid officers who came from Great Britain to assist the police force in Northern Ireland, some of whom were seriously injured in the violence, particularly on Friday night.

I completely agree with the hon. Member for Ealing North. Regarding the amendments, I have discussed both issues with the right hon. Member for Lagan Valley and, following Second Reading, I expected that his ingenuity would lead to amendments to some part of the Bill—I was not expecting that it would be clause 22 —regarding victims and section 75 of the Northern Ireland Act 1998. I passionately believe, however, that this is not the forum to debate such an important issue.

This is a technical Bill that addresses many of the anomalies within the legislation and tries to normalise legislation in Northern Ireland. That does not mean that there should not be an ongoing debate about victims and the past. It is the Government’s policy to have such a debate, but it must happen in an enormously sensitive way and with the consent of the political parties and people of Northern Ireland. I have meetings on a regular basis with victims in Northern Ireland and many such meetings are not dissimilar to the debate that we have had in Committee today. One side passionately feels that they do not want to raise the issue again; they want to put it behind them and do not want it revisited. Others, however, want to discuss what is meant by “victim”. This debate has shown just how emotive the subject is, but it is a discussion that we need to have, although in both my opinion and that of the Government, outside the context of the Bill.

When I first became Minister—I met the right hon. Member for Lagan Valley at the time—I was convinced by some of the arguments that were put to me, not least by the right hon. Gentleman, that there was an issue to do with the military covenant. Over the past nine months, however, with the permission of the Prime Minister—not permission; in fact, he told me to go and do it—I have investigated extensively whether the military or ex-military in Northern Ireland are being adversely affected by section 75. I will not pre-empt the Select Committee’s report, which I have not seen—although I can take a subtle hint from the earlier comments of the hon. Member for Blaydon, who sits on the Select Committee—but I actually found the covenant to be operating better in Northern Ireland than in my constituency. I said that to the Select Committee and I passionately believe it. The way that charities work together on Northern Ireland is much better than it is in many parts of Great Britain.

I do accept, however, that there is more work to be done, in particular around post-traumatic stress, which we are working on now. I created a specific senior civil servant role in the Northern Ireland Office after I set up the contact group, which is chaired by Brigadier Thompson when I am not there, to ensure that when Members of Parliament who are Members of the Legislative Assembly are written to by constituents who say, “I fell through the net here and I am not being helped,” that can come directly to the Department. We are in the process of writing to all Members of Parliament, MLAs and local councillors in Northern Ireland to provide them with that point of contact through an e-mail address and a phone number, so that we can be the impartial side of the covenant.

I was pleasantly surprised when I met all the political leaders in Northern Ireland by the support that I received from them for the military covenant. There was no indication at all that former or serving servicemen and women had been adversely affected by section 75 and I do not think that it is right to alter it. Sadly, I will be opposing the three amendments.

Jeffrey Donaldson (DUP, Lagan Valley)

I thank all hon. Members who have contributed to this discussion. I also thank the hon. Member for Ealing North and others who made reference to my friend and colleague, the right hon. Member for Belfast North. I am pleased to report that he is making a good recovery; I spoke to him yesterday and he is in good spirits.

We all do well to remember that some Members of this House have to cope with circumstances that most do not have to cope with in their day-to-day responsibilities, or even on special occasions. When I read all the negative things that are written about Members of Parliament on an almost daily basis, I wish some of the people who write such things would come and spend a little time in Northern Ireland in order to understand the kind of task that Members of Parliament from all sides have to undertake there in sometimes holding the line in very difficult circumstances. I would be happy to convey the best wishes of the Committee to my right hon. Friend.

The hon. Member for Blaydon sought to explain why young men and women became involved in terrorist activity—we will have to agree to differ on that. I can do no more than refer again to the words of Ann Travers, who said that despite the fact that she witnessed the murder of her sister, that did not inspire her to go out and seek to take other people’s lives. Sometimes, in seeking to understand and explain the actions of those who engaged in terrorism in Northern Ireland, we too easily forget that there were many who in their own mind might have had the same justification for engaging in such activity, but who chose the path of peace.

We must stand with those people who, like Ann Travers, would support an amendment to the current definition of a victim because they find it deeply offensive that they are equated with those who engaged in acts of terrorism. Imagine the outrage there would be in this country if the 7/7 bombers were equated in law, by definition, with their innocent victims in those bombings on London buses and in underground stations. That is what happens in Northern Ireland. The people who exploded bombs in our towns and cities—who engaged in mass murder—are equated with the people who they killed. As I said earlier, and not because I want to score a cheap point on right hon. and hon. Members on the Government Benches, I find it offensive that the man who planted the bomb in Brighton, who sought to murder the Prime Minister of our country, is regarded as a victim in the same way as the people he killed with the bomb he exploded in the Grand hotel. I find it offensive that the people who planted the bombs under Airey Neave and Ian Gow’s cars are regarded as victims.

I hope that the Committee understands why we seek every opportunity to press home this point. I accept and understand the points made by the right hon. Members for Wythenshawe and Sale East and for Torfaen, who I wish to pay tribute to. They both made an invaluable contribution to building peace in Northern Ireland, and they continue to take an interest in and support the peace process. I therefore respect deeply what the right hon. Member for Wythenshawe and Sale East said about the amendment perhaps being pre-emptive or premature, or needing to be part of an overall process. However, the difficulty is that this is the sovereign Parliament. This is the Parliament that defines equality of opportunity in Northern Ireland and applies that to all Departments of the Government in Northern Ireland. It is the Northern Ireland Act 1998 that does that. We are seeking to ensure that protections afforded by section 75 of that Act are extended to two groups that we believe to be particularly vulnerable.

I heard what the Minister said about the military covenant, but I have seen cases where there is evidence of discrimination by officials in Departments of the Government in Northern Ireland against former members of the armed forces. We have made complaints, but unfortunately they are not protected under section 75. Therefore, although I made reference to the military covenant, our desire to afford them protection goes well beyond implementing that. The Minister is entitled to his view that, after investigation, he believes that the military covenant is being fully implemented—

Mike Penning (Conservative, Hemel Hempstead)

I am sure that the right hon. Gentleman would have clarified this, but, categorically, I did not say, and I have never said, that the military covenant is being fully implemented. It is being implemented in Northern Ireland better, in some cases, than in other parts of the United Kingdom; I have written to the Northern Ireland Affairs Committee with evidence that states that about 93% of the covenant is being delivered in the Province.

I fully understand what the right hon. Gentleman said. Such behaviour takes place in other parts of the United Kingdom as well, but where that takes place, we must stamp that out. To do that, however, we need evidence. He said that he has some evidence, so I say to him: send it to me. I am the Minister responsible and the Prime Minister has asked me to deal with that. However, I do not want to throw the baby out with the bathwater, which, unless we are careful, is what will happen with this amendment.

Jeffrey Donaldson (DUP, Lagan Valley)

I of course accept the point the Minister made on full implementation, but I do not accept that offering special protection to our armed forces or veterans through section 75 would in any sense throw the baby out with the bathwater or undermine the implementation of the military covenant. To afford additional protection is surely something which we should desire.

I am happy to share with the Minister examples of the difficulties faced by members of the armed forces. Contrary to what the hon. Member for Blaydon said, I wrote to the Select Committee and provided it with evidence; in particular, I provided a letter sent to me by the Department of Health stating clearly, in black and white, that it could not make the provision that I was requesting for my constituent in line with the military covenant because section 75 prevented it from doing so.

What we are merely trying to do through the amendment is provide clarity. It will not alter the law in Northern Ireland or the manner in which we seek to implement the military covenant; it simply ensures that Government Departments understand that section 75 does not in any way inhibit their ability to deliver on the military covenant. I cannot see the difficulty in affording that protection; frankly, if it is right to afford that to gay people, people with disabilities and people with an ethnic or racial background, why is that not appropriate for those who have served our country in the armed forces? I am at a loss to understand why there is a principled objection to affording section 75 protections to those who put themselves on the front line, whether in Northern Ireland or in other parts of the world and why they are less deserving of that level of protection than the other categories already covered. I have not heard an explanation from the Government on why that is the case.

On the hon. Member for Foyle’s comments, I have already had some exchanges with him on the question of a definition and we will have to agree to disagree. I take the point he made on convictions, which was echoed by the right hon. Member for Wythenshawe and Sale East. However, amendment 2 defines clearly who is a victim and who is a survivor. They concentrated on the exclusions. The amendment sets out a broader definition, but we are not talking about anybody and everybody.

Although I am disappointed that both the Government and the Opposition have indicated that they cannot support the amendment, I am especially disappointed that Government Members cannot support the amendment, which defines victims and survivors, and excludes people who are engaged in acts of terrorism. I am at a loss to understand why they are reluctant to do so, so we will press the amendment.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move amendment 5, in clause 22, page 16, line 3, at end insert—

‘(1A) After subsection (2) of section 75 (Statutory duty on public authorities) of that Act insert—

(2A) A public authority shall not interpret its obligations under subsection (2) in a way that is incompatible with measures taken on the basis of objective need.”.

(1B) In subsection (5) of section 75 of that Act insert—

“good relations” shall be interpreted in line with international obligations and, in particular, with regard to—

(a) tackling prejudice, and

(b) promoting understanding.”.’.

We know from the previous debate that the clause makes changes to the Northern Ireland Act 1998. I will give the background that the amendment seeks to address. The Good Friday agreement provided for a statutory equality duty with equality impact assessments. That was translated into section 75 of the Northern Ireland Act 1998, which included a good relations limb in the duty. Although the 1998 Act contained a provision for equality impact assessments, it did not contain a provision for good relations impact assessments because there were concerns at the time that equality initiatives based on objective need might be derailed by good relations considerations. Therefore, Parliament subordinated the good relations duty to its equality counterpart in that legislation.

Tribute has already been paid to the right hon. Member for Torfaen. I do not want to pay tribute to him just for his role in the negotiation of the agreement and in chairing the strand 1 talks; I am also conscious of the role he played in piloting the details and provisions of the 1998 Act through Parliament.

The Committee on the Administration of Justice recently published a report called “Unequal relations?” Its research highlights that problems have arisen in the context of impact assessments. It gives examples of good relations considerations being brought forward in ways that stifle and qualify equality and rights-based initiatives.

Since 2007, the Equality Commission has recommended to public authorities that good relations considerations should be part of equality impact assessments. However, in the absence of better definition and more balanced safeguards, there is a risk that impact assessments that take good relations on a par with equality issues will lead to subjective political interpretations of what is needed to maintain good community relations. There is a danger that arguments based on maintaining good community relations can provide a vehicle for blocking initiatives that are based on objective need, because people can argue, “If you meet the objective need in that way in that area, it will lead to community tensions.” People should not be allowed to stifle equality-driven measures on the basis that they jeopardise good relations if their only argument for the prejudice to good relations is based on prejudice against another community. There have been examples of that happening.

I hasten to add that the amendment would not prevent measures that are designed to protect and promote good relations from being taken in an, arguably, unequal way. That would include an example from my constituency, the Fountain estate, which is a small Unionist enclave on the west bank of the river. Elected representatives supported a new school being provided for that estate several years ago. It did not meet any of the objective criteria, but it supported the community, wider shared relations and the wider shared city, so it was supported by all representatives.

I stress that the emphasis on objective need in the amendment would not prevent the sort of special measures that were taken in the Fountain. Measures were taken not only in relation to the location of the school. Another Government Department went beyond its policy remit and continued to provide money to ensure that there was school transport, so that the school could be supported by people from other parts of the city. As someone who supported those special measures for community relations, I want to stress that the amendment would not in any way reduce the capacity for such measures.

Neither the 1998 Act nor the equivalent legislation passed in Great Britain at the time defined good relations. In Great Britain the gap was remedied by the Equality Act 2010, whose section 149 provides for a public sector duty to foster good relations, with particular regard given to tackling prejudice and promoting understanding. The absence of a similar definition of good relations in section 75 of the 1998 Act, to draw out the main intended characteristics of the concept, continues to risk some subjective interpretations, giving rise to contention and frustration in Northern Ireland.

Issues about good relations are raised in objection to policies aimed at tackling disadvantage. A report by the Committee on the Administration of Justice found that the correct good relations response in line with the above definition would be for public authorities to tackle prejudice and to promote understanding of policies and the issues behind them, for example by explaining that they are based on objective need.

Unfortunately there are examples of public authorities being urged to pursue alternative policies to equality-motivated measures on good relations grounds. A high-profile example is the 2011 decision by the Department of Social Development regarding the site of Girdwood barracks. The current Minister cited good relations considerations as a basis for reversing the decision to build around 200 homes on the site. The sensitivity was that, because of the location of the site, it was deemed, on the basis of objective need, that most of the 200 houses would have been allocated to Catholics. Here we had a Minister citing good relations as grounds for trumping an equality-driven measure and a sound extension of social housing in an opportunity site transferred by the Government, as other former military sites have been transferred.

Another example is the response to proposals by the Department of Education in Northern Ireland in 2010 that suggested that entitlement to free school meals could be used as a priority indicator for admissions to post-primary schools. The Department was told that, in the context of higher numbers of Catholic children being in objective need and hence qualifying for free school meals, the Department needed to consider the good relations implication of the proposal and think about alternatives. Again, that is not something that was intended when we created the equality commitments in the Good Friday agreement, or when section 75 was taken through this House.

The good relations duty has regularly been interpreted as being incompatible with treaty commitments that the UK has entered into, for instance those to take steps to support the Irish language. As well as the provisions of the Good Friday agreement, relevant international obligations, for example human rights treaties entered into by the state—in this context I should mention particularly the Council of Europe, the European charter for regional or minority languages and the framework convention for the protection of national minorities—are in effect being frustrated by reference to the good relations duty.

The problem arises even at the level of district councils. Councils trying to promote positive Irish language measures in accordance with the European charter now meet opposition that that will be bad for good relations. Good relations impact assessments can, ironically, block the implementation of treaty-based commitments that the UK has entered into. Therefore, the sound concept of good relations can become a mechanism whereby prejudice against the language becomes the basis of policy, rather than the international obligations and commitments to promote respect, tolerance and understanding in relation to that language.

The Council of Europe bodies that oversee compliance with such treaties have already raised concerns in their reports about good relations being used as a justification for not implementing our proposed policies. I hope that with those examples I have been able to demonstrate that there is a live issue here. This is not a contrived tension or question that I am raising. This Parliament has seen fit to make good the deficit through the changes it made in section 149 of the 2010 Act. My amendment essentially gives the Committee the opportunity to say that the same sort of adjustment and clarification as regards good relations and equality commitments should now be made through section 75 of the Northern Ireland Act.

Steve Pound (Labour, Ealing North)

The hon. Gentleman makes an elegant, comprehensive and compelling case. Most members of the Committee would agree with it in principle. I particularly endorse his reference to the CAJ report, “Unequal Relations?” which should be compulsory reading. We can return to the issue on Report. It should be considered by a wider group of people. The suggestion is significant and positive and one to which the Opposition are extremely sympathetic. We would like to see this achieved. We are not entirely convinced that this is the correct forum for that achievement, but it is certainly something we will return to on Report.

Mike Penning (Conservative, Hemel Hempstead)

I apologise to the hon. Member for Foyle for saying earlier that I would oppose the amendment. I will, but I was a bit premature. I am not opposed in principle. Like the shadow Minister, I share some frustrations. Before we brought the draft Bill forward and went to pre-legislative scrutiny in the Select Committee, we consulted extensively on the changes to section 75.

Unusually, I disagree with the shadow Minister: I do not think Report would be the right time. We would need to consult with all the parties in Northern Ireland, some of which are not represented in Committee. Even though I share the frustration and understand the objectives of the amendment, because it did not go through pre-legislative scrutiny and because the relevant parties were not consulted, sadly, I have to oppose the amendment.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I do not accept the Minister’s rationale that an amendment of this character—or almost, by that logic, any amendment—could not be accepted because it had to be subject to all sorts of consultation with all the parties. When we discussed the Bill in the Committee of the whole House last week, my colleagues pointed to some clauses that they did not agree with and which our party did not endorse and we were told that 70% of the Assembly is good enough. It seems that in some things we have to have complete consensus before the Government move and on other things if they can grab the agreement of a few parties they can go with it.

Mike Penning (Conservative, Hemel Hempstead)

I will not respond to those somewhat cynical comments. I was referring to section 75 and the sensitivities of that. That is why I was so specific that we needed to consult on section 75 before we made any further changes.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister’s answer is almost “There’s a hole in the bucket, dear Liza.” The exact reason why there would not be agreement on amending section 75 in the terms I have suggested is that some people want to be able to use the “good relations” argument to trump equality meeting objective need as a basis for policy. That is the problem, so it is almost QED, which suggests that there does need to be an amendment regarding section 75.

Some of these issues will go to court and be subject to judicial review. The courts will question why, when Parliament has been alerted to the issue and passed close to equivalent legislation in Great Britain, it did not do so in Northern Ireland, in circumstances where there is a more compelling case for defining and qualifying the issue of good relations in the interpretation of the 2010 Act.

I do not accept the basis on which the Minister has rejected the amendment. However, I will not press it to a Division. I am heartened by what the hon. Member for Ealing North has said about recognising the issue and the need for further consideration and deliberation—perhaps by the House as a whole, not least given the fact that it was the House that previously legislated with the 2010 Act. I look forward to Report, when I hope to see this or a better version proposed by the Opposition.

I beg to ask leave to withdraw the amendment.

Clause 23 - Extension of powers to make secondary legislation about elections etc

Mike Penning (Conservative, Hemel Hempstead)

The clause is a technical one, increasing the flexibility and technical scope of the Secretary of State’s order-making powers under the 1998 Act. I will give an example of why that needs to be done. Should we want to bring in a pilot on electronic counting in Northern Ireland, the Secretary of State at the moment would not technically have the powers to bring that in. This measure would extend the powers to do so under section 34 of the 1998 Act. I hope the Committee will agree that technical measure.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I am conscious that a colleague from Northern Ireland has tabled amendments to clause 23. I think the amendments from the hon. Member for Belfast East (Naomi Long) were intended as probing amendments to seek assurance. Can the Minister assure us that the pilots permitted on different methods of registration would not include any differential in the voting age in relation to the register?

Steve Pound (Labour, Ealing North)

May the record show that the hon. Member for Belfast East is in Westminster Hall discussing a Bill at the moment? I appreciate my comment is somewhat an abuse of my position here, but I think it is important that the record show that.

Philip Hollobone (Conservative, Kettering)

We are grateful.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I thank the hon. Member for Ealing North for advertising that point. Some of us would have liked to be in Westminster Hall as well, because the bill of rights is an important part of the Good Friday agreement and long overdue. I am taking the opportunity to ask the Minister because the question has been raised. I have separately tabled a new clause to try to get the Assembly to be allowed the power to lower the voting age for Assembly and local government elections. However, I certainly would not want the Assembly to have the power to lower the voting age in some places on a pilot basis and not in others. The franchise would have to remain equal in all constituencies.

Mike Penning (Conservative, Hemel Hempstead)

I must address that straight away. The clause is for the Secretary of State to have the power for a pilot. It would have absolutely nothing to do with voting age.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I wanted, belt and braces, to get it on the record that the clause would not in any way affect pilots allowing differential qualification for voting in terms of age in different constituencies.

Clause 24 - Regulation of biometric data

Mike Penning (Conservative, Hemel Hempstead)

The clause basically deals with biometrics. It will allow us to take forward, by order, the changes in the reserved and excepted fields on the new biometric framework that the Northern Ireland Department of Justice could not legislate for within the Criminal Justice Bill, which received its Royal Assent on 25 April this year.

Clause 25 - Amendment of Northern Ireland Assembly Disqualification Act 1975

Mike Penning (Conservative, Hemel Hempstead)

Believe it or not, this will be even shorter. This is a tidying-up provision that will disqualify the Civil Service Commissioner for Northern Ireland from being a Member of the Northern Ireland Assembly.

Clause 26 - Amendments that could have been made under existing powers

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss clauses 27, 28 and 29.

Mike Penning (Conservative, Hemel Hempstead)

If it is okay with you, Mr Hollobone, I will not take up a huge amount of the Committee’s time on these final four consequential amendments; they are very much a tidying-up provision towards the end of the Bill.

Clause 27 sets out the exceptions to this provision modifying enactments with a different extent, and those with the same extent as the enactments are being modified —if anybody understands that, they are a better person than I am. The legislation brought forward by a previous Administration needs to be tidied up. I am not a lawyer, but that is what it says here. These are really just technical tidying-up exercises on these clauses, and I hope that we can agree those and then move on to the new clauses.

New Clause 2 - Analysis of PSNI Historical Enquiries Team material

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move, That the clause be read a Second time.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss new clause 6—Annual report on activity relating to Northern Ireland’s past —

‘(1) The Secretary of State shall lay a report before Parliament in respect of each year as soon as possible after the end of the year to which it relates.

(2) The Secretary of State may appoint a person or persons to produce the report required under subsection (1).

(3) A report laid under subsection (1) shall contain in relation to the year to which it relates—

(a) a summary of the work of the Historical Enquiries Team of the Northern Ireland Police;

(b) a summary of the work of the Police Ombudsman for Northern Ireland insofar as it relates to Northern Ireland’s past;

(c) a summary of the work of other public bodies which, in the opinion of the Secretary of State, relates to Northern Ireland’s past;

(d) a summary of responses made by Her Majesty’s Government or any other Government or body to any of the work covered by the report; and

(e) a clear indication where the findings of any work summarised in the report contradict remarks recorded in the Official Report of the House of Commons or House of Lords, especially by a Minister of the Crown.

(4) After a report under subsection (1) has been laid before Parliament the Secretary of State shall provide a statement to Parliament which shall contain references to—

(a) the comparative standard of enquiries conducted by the Historical Enquiries Team during that year;

(b) the progress made during the year in dealing with Northern Ireland’s past;

(c) any apologies that have been given by any Government or public body in relation to the work summarised in the report; and

(d) any other relevant issues or concerns as they relate to Northern Ireland’s past.

(5) Any existing provision prohibiting publication of the material to be summarised under subsection (2)(a) shall, subject to subsection (6) below, not apply for the purposes of this section.

(6) No personal information shall be included in the report as laid before Parliament without the permission of the person concerned or, if they are dead, of their relatives.’.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Both new clauses touch on the Historical Enquiries Team, but obviously new clause 6 is more expansive in terms of dealing with issues from the past. It makes reference not just to the work of the Historical Enquiries Team but to the work of the police ombudsman as it relates to the past, and also in relation to any other reports of enquiries that relate to Northern Ireland’s past.

In March this year, I paid tribute to the role of the right hon. Member for Torfaen in relation to the Good Friday agreement and, of course, the 1998 Act. As Secretary of State, he played a decisive role in framing some of the commitments that were made towards having the Historical Enquiries Team. Clearly, it was an emerging issue for the police service in relation to issues of the past.

My party had sought to ensure that the police ombudsman was able to investigate complaints and issues from the past, and that was regularly done. However, there were many other issues from the past that were not directly about police conduct, or might have been about police conduct only in relation to investigating crimes committed by others.

The commitment was made to have a facility whereby historical inquiries could be conducted, under the authority and remit of the Police Service of Northern Ireland. It was designed to avoid creating any tension with the commitment that the PSNI was able to make or a situation in which many new recruits to the PSNI would find themselves investigating a lot of historical cases, as it was felt that that would create a lot of untoward difficulties. Everyone agreed that that situation needed to be avoided.

Not everybody was as vocal as I was, as a party leader at the time, in seeking that facility and trying to commend that argument to the Secretary of State; however, people did at least agree that if a facility was being created, it had to operate in a way that did not affect or detract from the working commitment of the PSNI for policing the present and the future. The arrangement settled on was the setting up of the Historical Enquiries Team. The right hon. Member for Torfaen made budget commitments in that regard and reached agreement with the then Chief Constable, Hugh Orde. The arrangements finally took shape in 2005.

At the time, perhaps for reasons similar to those that the Minister stated earlier, it was decided not to legislate for the Historical Enquiries Team as such. We have often heard about different norms that apply to its work, or that there are various strictures and restrictions about what it can and cannot do; however, as it turns out, there is not a statutory basis that touches specifically on the work of the team itself.

The new clauses would not seek to provide the whole statutory scheme that might apply to the Historical Enquiries Team; they would pick up some of the lessons, issues and frustrations that are out there, and would look to help to remedy those in future, by having a statutory standard to inform the work and the role of the Historical Enquiries Team, and indeed other investigations relating to Northern Ireland’s past.

During the course of an investigation, the Historical Enquiries Team develops a strong and committed relationship with the family of the victim in each particular case. The team notifies the family as the investigation progresses and talks to them prior to its report. When the report is made, it is made through that family—it is the property of the family.

Many of us were under the impression that there was some statutory basis for that or a statutory prohibition on the Historical Enquiries Team from publishing the report itself or handing it to anybody else. In fact, there is not, but it has been good practice, and I would not want a change in legislation to say that the HET should publish all reports and name people, regardless of the feelings of families. That is why both new clauses are qualified in that regard.

However, the current situation creates some difficulties. When a report is given to a family, that family then find the onus is on them to publish it. Some families find that harder to do because they are not sure that they necessarily want to expose themselves to the media in that way. Some have been able to use the offices of good organisations such as the Pat Finucane Centre and Relatives for Justice, but others find that they do not have access to that sort of assistance when it comes to publishing the report.

The current situation also creates a requirement on MPs, for instance, to try to advertise what has emerged in a report of the Historical Enquiries Team and to try to find some time in Parliament to reflect what has emerged, if we have been requested to do so by the family concerned. In my own constituency, I dealt with a case dating back to 1971: Billy McGreanery was shot by the Grenadier Guards in Derry in September 1971. It was stated that he was a gunman—that was the version given at the time.

(Except clauses 1 to 9) - New Clause 2 - Analysis of PSNI Historical Enquiries Team material

Katy Clark (Labour, North Ayrshire and Arran)

I remind the Committee that with this we are considering new clause 6—Annual report on activity relating to Northern Ireland’s past —

‘(1) The Secretary of State shall lay a report before Parliament in respect of each year as soon as possible after the end of the year to which it relates.

(2) The Secretary of State may appoint a person or persons to produce the report required under subsection (1).

(3) A report laid under subsection (1) shall contain in relation to the year to which it relates—

(a) a summary of the work of the Historical Enquiries Team of the Northern Ireland Police;

(b) a summary of the work of the Police Ombudsman for Northern Ireland insofar as it relates to Northern Ireland’s past;

(c) a summary of the work of other public bodies which, in the opinion of the Secretary of State, relates to Northern Ireland’s past;

(d) a summary of responses made by Her Majesty’s Government or any other Government or body to any of the work covered by the report; and

(e) a clear indication where the findings of any work summarised in the report contradict remarks recorded in the Official Report of the House of Commons or House of Lords, especially by a Minister of the Crown.

(4) After a report under subsection (1) has been laid before Parliament the Secretary of State shall provide a statement to Parliament which shall contain references to—

(a) the comparative standard of enquiries conducted by the Historical Enquiries Team during that year;

(b) the progress made during the year in dealing with Northern Ireland’s past;

(c) any apologies that have been given by any Government or public body in relation to the work summarised in the report; and

(d) any other relevant issues or concerns as they relate to Northern Ireland’s past.

(5) Any existing provision prohibiting publication of the material to be summarised under subsection (2)(a) shall, subject to subsection (6) below, not apply for the purposes of this section.

(6) No personal information shall be included in the report as laid before Parliament without the permission of the person concerned or, if they are dead, of their relatives.’.

Mark Durkan (Social Democratic and Labour Party, Foyle)

It is a pleasure, Ms Clark, to resume under your chairmanship.

When we adjourned, I was telling the Committee about a case in my constituency that was investigated by the Historical Enquiries Team. Billy McGreanery was shot by a Grenadier Guard in September 1971. At the time, the Army stated that he was a gunman, and that version of events was spread by the authorities and was reflected in various parliamentary accounts and elsewhere. Billy’s family never accepted that, nor did those who were present with Billy that evening.

The HET found that the local Royal Ulster Constabulary commander, Frank Lagan, had recommended prosecution for murder. After examining the material from the investigation, he did not accept the soldier’s account. That position was subsequently endorsed by RUC headquarters, which passed the papers, with the recommendation for prosecution, to the prosecuting authorities.

The HET was able to establish that the Attorney-General for Northern Ireland ruled in respect of that case—it became a general ruling—that there could be no prosecution of soldiers for anything they did in the line of duty. That took on significance, because it happened only a couple of months before the events of Bloody Sunday.

While the case is significant because of those implications, the family had received the clear finding by the HET, which questioned the soldier who had been involved. The family shared the report with the Ministry of Defence, because the HET does not send reports to any Department, including the Northern Ireland Office and the MOD; it seemed to be the private property of the family.

The family subsequently received a letter from the Army’s chief of staff, offering an apology. They asked me to have that apology acknowledged by Ministers on the parliamentary record, but that was refused. We were told, “No, it is not policy to reflect such apologies in such instances,” and that there was no need for it to be on the parliamentary record, even though some of the previous—and false—versions of the case were on the official record, either here or at the Northern Ireland Parliament of the time.

I then had to apply for an Adjournment debate in Westminster Hall, whereupon the Minister for the Armed Forces vocalised the apology, and did so fulsomely, which was well appreciated by Billy McGreanery’s niece and nephew, who were present to hear it. That demonstrates the gap whereby the HET can do good work and make clear findings, which are sometimes a comfort and provide satisfaction to families, giving them a bit more knowledge, and perhaps on the back of which they get some apology, but that does not seem to join up with anything more widely.

That is one example of why new clauses 2 and 6 are needed. We must do more in respect of the work with the HET. There are many issues, questions and concerns about its work. People question whether it has the necessary capacity and budget, and it is facing new budget strains because of decisions taken in the context of devolution.

Also, Her Majesty’s inspector of constabulary recently produced a pretty damning report that found that, while conducting cases involving the Army causing deaths, the HET adopts a different approach from that used in any other cases that it investigates. Indeed, HMIC said that the difference, which is obvious, is unlawful. The report also points out that no such case has been referred for consideration for prosecution, unlike other cases that the HET has investigated.

I hope that my new clauses, particularly new clause 6, take some account of the issues of concern. New clause 6 provides for the Secretary of State to make an annual statement, alongside a report, which they could have either their officials or a person or persons prepare. Part of the report would consider the work of the HET in that year, which would reflect the issues, points and patterns that had emerged. Accompanying the report would be a statement from the Secretary of State, which could include a comparison of the standards being exercised by the HET in various cases. Therefore, Parliament could receive from the Secretary of State assurances that concerns of the sort that are now markedly obvious were being taken account of and addressed.

However, not only for that reason is there merit in having an annual report and a statement from the Secretary of State, as those could also take account of findings from the police ombudsman as they related to the past, or indeed of any other investigation or inquiry. That could include, for instance, some of the lessons in the de Silva report or issues that emerge from other past reports or investigations, whether those were set up publicly and officially or semi-publicly. There is a proposal for a panel of inquiry on the Ballymurphy killings. The results and observations of any such inquiry could be picked up in the annual report commissioned by the Secretary of State.

I suggest in new clause 6 that the report reflecting on the work of the HET in a given year, and that of the police ombudsman in relation to the past, could give clear indications as to how previous events that were investigated were treated by Parliament, because many were the subject of quite different accounts on the parliamentary record from what is emerging in the context of those inquiries. It should not be for the families to get MPs to busk around and try to create a situation in which the record may be corrected.

During my Adjournment debate, the MOD said, “We will not do a written ministerial statement to record the fact that we have made an apology in given cases.” If people do not want to do that case by case at that level as those cases arise, we should at least have a device such as an annual report, with a statement from the Secretary of State, to reflect when such apologies have been made, even if by other Departments. That would put it on the record that an open Government apology had been made.

New clause 6 would not only give some better reflection of the work that is going on, but allow the Secretary of State to make a statement on other activities and the progress made in relation to the past. I hope that the Haass talks and other efforts might get us to a position where we can make more progress on those wider issues.

The scope of the report or reports that may be commissioned by the Secretary of State would be inclusive rather than exclusive. The Secretary of State could commission somebody—it might be the HET—to prepare the bones of the report on its work for the year. It might be the police ombudsman, or others, who is asked to prepare a report on their work for the year. That is not prescriptive or restrictive, but it would, I hope, be done by people who have the confidence of many of the people still burdened with the problems of the past.

New clause 2 provides for a different kind and style of report from the annual report. Alongside criticisms, we often hear people acknowledge that they have heard expressions of satisfaction and comfort from many families regarding what they have received from the HET. However, we do not seem to be able to turn that into anything of cumulative value. There is no collective or authoritative analysis of some of the patterns and issues that are more apparent in various HET reports.

There are some misgivings, of course. People say that reports from the HET on deaths caused by the state seem to get a lot more airplay and more media profile than HET reports on atrocities or murders by the IRA, for instance, and that those by loyalists get more media treatment because of the issue of collusion. There is no reason why the Secretary of State could not use the power that I envisage in new clause 2 to ask for someone to produce a report that draws together a lot of the cases that the HET has looked at, perhaps involving, specifically, the IRA in overall terms or in particular areas.

There are many victims of IRA violence who feel that their loved ones were shot not just because they were part-time members of the Ulster Defence Regiment, but because they were part-time members of the UDR who happened to be the first sons in farming families. That was seen as part of a land war with a sectarian dimension. In the HET report on the Kingsmill massacre, which I do not think has received sufficient acknowledgement or recognition even in the House, the inherently sectarian nature of that vicious violence was apparent. Many people try to tell me—particularly young people who did not live through the troubles—that loyalist violence was sectarian but IRA violence was not. It is as if the IRA somehow conducted a clean war—everybody else was in a dirty war, but the IRA was clean.

There is value in the work of the HET if, like me, people get the opportunity to see some of the individual reports, but nowhere are they put together as a resource and drawn upon to bring out some of those wider lessons and issues. The Secretary of State should be enabled to do that—to commission that sort of work—so that people can be made more aware of the broader value of the HET. We are all behind the pillar on so many different HET reports, but we should not join those taking the line that absolutely nothing is being done about the past or for any victims.

Notwithstanding the criticisms of some aspects of the work of the HET, if there is good work being done that is helpful to families, communities and society overall, we should be trying to capitalise on that value through a report, which would be available under new clause 2, if deemed appropriate, and an annual report, which would be available under new clause 6.

The report under new clause 2 would mean that the various annual reports and the reports that went into them could be translated into a more substantive record of value, interpretation and understanding. I can see limits in having only an annual report available. How would we build up the patterns, the body of evidence and the consideration? That is why I propose two different new clauses, which offer different styles and scope of report, but are all about ensuring due standards.

At this stage in the life of the HET, perhaps we ought to say that we have picked up on some of the issues, that we want to see the value of the good work that has been done and that we want to provide sufficient statutory underpinning and standards to ensure that that happens. That is what my two new clauses aim to do.

Paul Murphy (Labour, Torfaen)

It was a great pleasure to serve under your chairmanship in the Chamber last week, Ms Clark. It is also a great pleasure to follow my hon. Friend the Member for Foyle. I have been following his speeches for 17 years and they are always significant and to the point in dealing with the deep problems that Northern Ireland has had for many decades.

I was interested in the characteristically powerful speech of the right hon. Member for Lagan Valley this morning on the important issue of victims. My hon. Friend the Member for Foyle widened the debate by referring to how we deal with the past. It was a great tragedy that the Eames and Bradley report was marred by a single recommendation, because it contained some interesting ideas, as was mentioned earlier.

When I was the Secretary of State for Northern Ireland, one of my jobs was to try to cope with the issue of dealing with the past. I went, for example, to South Africa to see how the peace and reconciliation process worked there. I do not think that what it did could be picked up en bloc and applied to Northern Ireland, but there were lessons to be learned. Sir Hugh Orde, the Chief Constable of the Police Service of Northern Ireland, and I agreed that there should be a Historical Enquiries Team, to which my hon. Friend the Member for Foyle referred. The past is not an easy issue, not least because dealing with it is costly; it must compete with the other important issues the Governments in Belfast and Westminster face. However, we cannot go forward without dealing with the past, as sensitive as it is.

I support new clause 6, but I am not convinced by new clause 2. New clause 6 is important because it keeps the issue boiling. I am not saying that we necessarily need to legislate for that, but in my view the Secretary of State and the Northern Ireland Executive have a duty to ensure that dealing with the past is an issue that is kept alive.

Reporting to Parliament every year on the activities of the Police Service of Northern Ireland, the Historical Enquiries Team, Government Departments, the Northern Ireland Office and the Northern Ireland Executive with regard to this issue ensures that it is not forgotten. I am not suggesting for one second that the Minister or his colleagues believe that it should be forgotten. However, with all the pressures that are on the Government, such as spending, health, education and everything else that needs to be dealt with, including the problems in Northern Ireland over the past few days, it is easy to forget that it is still an important issue.

I do not know whether Richard Haass will have a remit to cover this issue—he is, incidentally, an extremely good man, who played a vital part in bringing about an agreement in Northern Ireland in the political and peace fields—but perhaps he can have a look at it. The issue of reporting, which my hon. Friend the Member for Foyle raised, is significant. There might be problems with new clause 2 because of the sensitive material that inevitably has to be used in those cases. However, I support the thrust of his argument, which is that we should not forget this issue, and Parliament should be kept aware of it either through a report or another mechanism.

Steve Pound (Labour, Ealing North)

May I make unanimous our gratitude for your chairmanship this afternoon, Ms Clark? To hear my right hon. Friend the Member for Torfaen give us his unrivalled insight into the very heart of the matter—he is as proximate to it as it is possible to get—is a real privilege. I hope that we all appreciate it.

My hon. Friend the Member for Foyle raised some extremely important points. None of us would doubt that he has raised issues of great significance. He raised them well, and he made his points extremely strongly. The confidentiality of documents, and the current prohibition of certain documents is an issue of intense sensitivity. Like many people, when the de Silva report was published, I was pleasantly surprised to see how little documentation had been redacted. I appreciate that the argument could be made that we did not see the whole story, but a great deal of information came out.

The Historical Enquiries Team—my hon. Friend the Member for Foyle quite rightly referred to this issue—has a problem with its widespread acceptance within Northern Ireland. I am sure that quite a few members of the Committee have done as I have and have actually visited the HET. One thing that is quite extraordinary—almost stunning—is seeing the warehoused documents stock. Although I do not wish in any way to criticise my right hon. Friend the Member for Torfaen or anyone else involved in the establishment of the HET, it may be that we drew the terms for it a little too widely.

One point that is always made to me when I visit is that cases do not have to be referred by the family concerned, or indeed by anyone. A classic example is the case of a farmer who died just outside Forkhill and had no living relatives; that case is being investigated by the HET even though no one has asked for that investigation. It is taking place simply because the HET is carrying out a comprehensive investigation of all the deaths during the troubles. Perhaps we drew the terms of reference a little too widely, but at the time we had no choice—we simply had to do that. However, it could well be that my hon. Friend the Member for Foyle has indicated a method of travel that could increase public confidence in the HET.

At present, given the sensitivity of the issue and some of the other aspects that have been referred to, the Opposition do not intend to vote for or against new clause 2; were there a vote, we would abstain. New clause 6, however, is a magnificently, exquisitely crafted, superbly jewelled and structured new clause—the Fabergé egg of new clauses—so all we need do is stand back and admire it. Her Majesty’s Opposition will be unequivocal in our support for new clause 6.

I was saddened to hear someone say on the Floor of the House a few hours ago that the Secretary of State was not rolling up her sleeves enough and getting stuck in. The comment was made by a Government Member that she spends all her time with her sleeves rolled up, getting stuck in. New clause 6, tabled by my hon. Friend the Member for Foyle, would give the opportunity or the platform—the bully pulpit—for her to come to the House once a year and list all the things she has rolled up her sleeves and achieved. That can only be a good thing. It would show that the urgency that everyone referred to is being translated into action. I cannot imagine anybody possibly objecting to that.

My hon. Friend the Member for Foyle has done not just the Committee but the House—and, ultimately, his constituents and the people of Northern Ireland—a great service by tabling new clause 6. It gives me great pleasure to say, on behalf of the Opposition, “We’re with you, people of Foyle, and will be supporting your MP on this one.”

Mike Penning (Conservative, Hemel Hempstead)

Follow that! We have had a sensible debate, informed by the extensive knowledge of the former Secretary of State who brought in the HET. As for the HET itself, I know the shadow Minister said that it was perhaps a bit looser than it should be, but we are where we are with it. We also have to say—I often do, and am often criticised for doing so—that we have to let devolution work in Northern Ireland. The HET is a devolved matter, to be resolved within the devolved Administration.

I think that this matter is something that Haass could look at. That is a sensible compromise. We went through full pre-legislative scrutiny in the Northern Ireland Affairs Committee. The measures in the new clauses were not recommended by that Committee, unlike the measures in other clauses. I am afraid that I will therefore oppose new clause 2 and new clause 6, if it comes to it. It is important that the community comes together under Haass to look at this matter. If, as a result, we get agreement, the Government can move on that; however, we have to have community agreement.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I welcome Members’ contributions on the new clauses. I can understand some of the reservations that have been expressed about new clause 2. On reflection, if such a power was given to the Secretary of State, it would allow her to commission various sorts of reports, such as reports that covered more than the work of one year, or that looked at particular types of cases. They could also extend to the work of the police ombudsman in so far as it relates to the past—an issue that is covered in new clause 6. It is an idea or concept that is there to meet a gap; I do not think that it does so perfectly, but it was a genuine effort to try to solve the conundrum that is there because of the lacuna around the statutory authority for the HET and the other restrictions on how it works. We need to try to devise ways around that, and rather than trying to reinvent the wheel or create some completely new instrument, there is a way of harnessing more of the good that the HET already does in the sort of work that new clause 2 mentions.

New clause 6 is about recognising not just that there is value in the work that the HET undertakes, but that there are concerns about it. There are concerns that some of the findings that emerged from the HET, from the police ombudsman and from other inquiries perhaps need somewhere better to go with each other. In particular, there is a role for Parliament in this regard, because although the Minister says that these matters are now devolved, many of these issues in the past were not devolved. Many of the periods under report and the issues that would be the subject of investigation would have been the subject of very particular accounts during the years of direct rule, and those are now often seen to be very misleading accounts.

It is not just that incidents did not necessarily happen in the way that soldiers or policemen at the time said that they did, but that many assurances were given to the House at the time. Particular concerns and allegations from party colleagues of mine such as John Hume and Seamus Mallon were dismissing with “No, there is no collusion; all intelligence is fully shared and followed, and we intercept and intervene in all cases to protect life.” It is now clear that all the assurances that were given, including on the parliamentary record, were bunkum. Many insinuations were made against the character of my colleagues because of the concerns that they were raising about shoot-to-kill policies and other issues.

We cannot just say that, because the HET falls under the Police Service of Northern Ireland, which is devolved, it is not our problem as a Parliament. In many ways, it is here that the record should be set right. Parliament can also give the lead and encouragement to the parties trying to move forward in other ways in relation to the past. It can particularly help to make good the sense, which I still hear from many people, that there is an unevenness and an inequality in relation to the past. I referred to the fact that people are saying that the media seem to be more interested in headlining one type of case that emerges from an HET report than another. Parliament can ensure that it is not open to that accusation by ensuring that there is a reflective, comprehensive annual report, and that it is the job of the Secretary of State not just to table that report as a combined narrative but to address Parliament on the issue of whether all the due standards that Parliament and the public interest would require are being met.

I particularly appreciate the strong expression of support from my right hon. Friend the Member for Torfaen, as well as from the shadow Minister, in respect of new clause 6. I am always tempted to test any support that I can get from wherever I can get it. However, I am also mindful that I have not heard in this debate from other colleagues in the region, least of all from the Democratic Unionist party. If I sought a vote because of the support expressed by the Opposition, I would not want to create a situation in which the DUP felt, for whatever reason—perhaps because of a lack of consideration and exchange between ourselves, or a lack of consultation with victim groups—compelled to vote tactically against the measure in a way that might prejudice its giving the idea a fairer wind and wider consideration in future.

I am hugely tempted, because it is not often that the hon. Member for Ealing North offers such profuse support for anything that I propose, least of all a new clause of this order. However, in an attempt to ensure that we build agreement and understanding, and avoid division or tit-for-tat tactics in relation to issues in the past, I have decided that discretion may be the better part of legislative initiative. I welcome the Minister’s indication that the Government are not opposed in principle to variants of my idea if they emerge from wider conversations, and I hope that he will encourage others as he has encouraged me. On that basis, I beg to ask leave to withdraw the clause.

New Clause 3 - Pledge of Office by First Minister and Deputy First Minister

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move, That the clause be read a Second time.

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss new clause 4—Cross-community election of First Minister and Deputy First Minister —

‘In section 16A of the Northern Ireland Act 1998 (Appointment of First Minister, Deputy First Minister and Northern Ireland Ministers following Assembly election)—

(a) subsections (4) to (7) and (9) (which relate to the appointment of the First Minister and Deputy First Minister) shall cease to have effect;

(b) after subsection (3) there shall be inserted—

“(4) Each candidate for the office of First Minister or Deputy First Minister must stand for election jointly with a candidate for the other office.

(5) Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.

(6) The First Minister and the Deputy First Minister—

(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and

(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and Deputy First Minister.”.

(c) in subsection (3)(b) the reference to subsections (4) to (7) shall be replaced by a reference to subsections (4) to (6).’.

Mark Durkan (Social Democratic and Labour Party, Foyle)

New clauses 3 and 4 relate to the position of First and Deputy First Minister in the Assembly. Although new clause 3 appears first on the amendment paper, I would first like to address new clause 4, which would simply restore the factory settings of the Good Friday agreement in the Northern Ireland Act 1998. The Good Friday agreement provided for the joint Office of the First Minister and Deputy First Minister, and provided that the First Minister and Deputy First Minister would be elected jointly.

As I understand it, when the Bill was going through Parliament, the shorthand for the Office of the First Minister and Deputy First Minister became the jointlies, because of all the clumsy references to things that the First and Deputy First Minister acting jointly could or should do. Everything about the office was to be joint: their powers, their purposes and their nomination and election. That was a deliberate and important concept, not least when we were negotiating the agreement, particularly in Strand 1 under the chairmanship of my right hon. Friend the Member for Torfaen.

Some people had the idea of appointing an Executive by a system such as d’Hondt or Sainte-Lague, and we settled on d’Hondt. People wondered where the accountability would be if Ministers were appointed simply on the basis of their own party’s mandate, by their own party, without vetting or vetoing from anybody else. There was also the question of where the Assembly’s clout would come from in terms of overall accountability and authority. Those of us who came up with the idea of the joint Office of the First Minister and Deputy First Minister sought to answer that partly by ensuring that the First and Deputy First Minister would be elected by the Assembly on the basis of cross-community support, and would be nominated jointly.

That was hugely important and symbolic. It was not an idea that my party had particularly pursued or developed throughout the negotiations. To be quite honest, the idea of the joint office occurred to me on the back of the pictures of David Trimble and Seamus Mallon going to Poyntzpass after the murders of Philip Allen and Damien Trainor. We saw the leader of Unionism and the leader of nationalism almost literally standing together and binding the wounds of the community, only a month out from the agreement. My right hon. Friend the Member for Torfaen will remember the shocking impact of that double murder of two friends, Catholic and Protestant, whose friendship was a parable for the way Northern Ireland should be and could be.

The way that Seamus Mallon and David Trimble dealt with that—Poyntzpass was right on the border of their two constituencies—inspired the thinking that helped to answer the problems we were having in the talks about whether someone who gets the first appointment under d’Hondt should become First Minister and whether the post of Deputy First Minister should just go to the next party. In that case, there could be two Unionists or two nationalists, so there was a question of cross-community balance. There was also the question of cross-community support for voting. A number of issues and problems were resolved.

There was also the question of whether the First Minister would be responsible for co-ordinating the internal affairs of the Government of Northern Ireland and whether the Deputy First Minister would be responsible for co-ordinating external affairs and lateral relationships north-south and east-west and with Europe and America, and so on. People were not sure how well that would work in practice, so the answer to everything was to go for joint office. It was hugely important that the First Minister and Deputy First Minister should be jointly elected by the Assembly.

During the long period of suspension after 2002, particularly following the Assembly elections that took place during suspension in 2003, the negotiations involving the two Governments, Sinn Fein and the DUP led to the idea that we could not have the First Minister and Deputy First Minister appointed by election in the same way unless we forced other parties to vote for the First Minister and Deputy First Minister. In what was called the comprehensive agreement in December 2004 that was meant to involve Sinn Fein, the DUP and the two Governments but fell apart over sackcloth and ashes, the lack of photographs and all the rest of it, the proposal was that in future parties would only be able to appoint Ministers under the Good Friday agreement if they had first voted for the First Minister and Deputy First Minister.

Whereas the DUP was able to oppose David Trimble and Seamus Mallon as First Minister and Deputy First Minister and still get its Ministries, when it voted against David Trimble and myself as First Minister and Deputy First Minister and still got its Ministries it was changing the law for everyone else—no do unto others as you would have them do unto you. Similarly, Sinn Fein, which had been able to abstain on the election of the First Minister and Deputy First Minister the first time, although it did vote for David Trimble and myself the second time, also wanted to change the rules. The rest of us had to bow to the two parties under that rule.

We defied that rule, and the Social Democratic and Labour party made that very clear. I have seen accounts saying that I used very bad language to Tony Blair, but I do not have any memory of that—my memory is normally good on such things, but he certainly would have been aware that I hoped to have the same political values when I used those four-letter words in very blunt terms, but I certainly do not recall doing so. I did make it very clear that we would not be voting for Sinn Fein and the DUP for First Minister and Deputy First Minister simply as the price of our admission to office.

I resent the idea that potentially the first party to be excluded under the terms of the Good Friday agreement would be a party such as the SDLP simply for exercising the democratic right to abstain; it was not even a case of voting against. Thankfully, it was in a Committee Room along this corridor on the morning of the St Andrews talks in 2006 that the DUP clearly got the message from us, because that remained the intention and the understanding of the two Governments, Sinn Fein and the DUP between 2004 right through to the commencement of the St Andrews talks in 2006. Because of the resolution we were able to show to the DUP delegation we met that morning before travelling to St Andrews, and because Reg Empey, as leader of the Ulster Unionist party, had permitted me to say that the UUP was in the same position, the DUP went to St Andrews saying, “We cannot do joint elections because we do not want to be in the Lobby on our own with Sinn Fein voting for Ian Paisley and Martin McGuinness as First Minister and Deputy First Minister.”

I do not know why the DUP did not take us up on our threat, because it would have achieved voluntary coalition, albeit with Sinn Fein, not with the SDLP and other Unionists. In essence, that is what it would have been. The only argument we heard for making that change was, “That’s the way it’s done in other places. Other people wouldn’t be in government unless they voted their confidence in the Head of Government and the Cabinet.” Those are arguments for voluntary coalition.

Sinn Fein and, particularly, the DUP were not in a position simply to go into the Lobby alone to vote in Ian Paisley and Martin McGuinness, so the agreement was changed. The joint election was done away with, and a new provision was made that the First and Deputy First Ministers would be nominated separately and would get separate letters of nomination from their respective party leaders. That is how it was done.

My argument since then has been that while people said that that was a deviation necessary to get devolution established and a First and a Deputy First Minister appointed, I see no reason to stay with it. On many occasions, Sinn Fein and the DUP have been happy to go into the Lobby, together or on their own, to vote down the rights and interests of and the concerns expressed by other parties. They no longer seem to be embarrassed or to have any difficulty in doing that, so they have overcome their hang-up.

We also have the provision that the Justice Minister is not appointed by d’Hondt as per the agreement, but is instead appointed by a cross-community vote. Many people in Sinn Fein and the DUP argued that there is particular value in having the First and Deputy First Ministers elected by a cross-community vote, but I would say that the same value applies, perhaps even more so, to the position of the First and Deputy First Ministers, and we should go back to what was provided for in the agreement.

Although I am tempted to press the measure to a Division—Members would have the choice of voting for or against something in the Good Friday agreement—I do not want to put them in such a bind as to be voting against the Good Friday agreement again. I hope people see that this option should be considered, encouraged and made available.

New clause 3 does not rest on new clause 4 being agreed to, and it would apply in any event in relation to the First and Deputy First Ministers, whether jointly elected as required by the agreement and as new clause 4 provides, or whether appointed by separate letters, as happens at the minute. Given that the First and Deputy First Ministers have particular roles in relation to the overall workings of the institutions and the wider representation of Northern Ireland—not just in relation to the Government here and the North South Ministerial Council, but with the EU and the United States and at wider international level—when they take the pledge of office they should do so in full, in the hearing of the Assembly.

When we wrote the idea of the pledge of office into the agreement, it was our understanding and intent that the pledge would be read out and that people would hear it. We talked about it being a useful bit of political liturgy, with people hearing the Ministers taking office in those new institutions making the pledges that we were writing into the agreement.

As the person who drafted the pledge of office, I am very conscious of the fact that we made deliberate decisions on such things as

“to serve all the people of Northern Ireland equally”.

There would not be the ambiguity of serving all the people equally or serving people equally, or of not saying “Northern Ireland”, thereby avoiding the issue. Once the Progressive Unionist party, which was pretty agnostic on whether there should be a pledge of office, saw the terms that we were putting into the pledge, it became very enthusiastic, not least because it liked

“all the people of Northern Ireland”

being specifically and unambiguously referred to and those words being key to the pledge of office that all Ministers would take. Ministers would not serve their own definition of “the people” and the words “all the people” would be there explicitly. For those reasons, we always believed that there was value in the full pledge being recited, particularly by the First and Deputy First Ministers, given that their responsibilities go much wider than their departmental remit.

In many ways, the significance of the pledge was added to via St Andrews and elsewhere, where ideas that some of us had put forward about expanding the pledge of office to include clear commitments to support the police, respect the courts and operate all the institutions and so on were considered. If those commitments had been added to the pledge of office, I believe that it would have been helpful for people to hear the pledge of office vocalised in that sort of way.

I have taken the opportunity of considering this Bill to put forward again that idea for improvement. It is to follow through on what was the intent—the excellent intent—when we drafted the agreement. We did not intend that Ministers taking office would simply read out a form of words that said, “I affirm the pledge as set out in section such and such of the Northern Ireland Act 1998.” We had intended there to be something with a bit more grace and a bit more meaning than that.

Again, I stress that this new clause is essentially an “advertising amendment”. I make that point very clearly; I do not intend to trouble people with a Division on this issue. However, this is an important matter for those of us who take the agreement, and the offices of First Minister and Deputy First Minister, seriously. I take the office of Deputy First Minister seriously, not least because I held it. I accept that I suffered the curse of the architect who had to live inside his own design and try to work with it. Nevertheless, that joint office is important—it is important now just as it was important in the past—and I want to see that importance underpinned by the sort of changes that I am suggesting in the new clause, although I do not want to press it to a Division.

Paul Murphy (Labour, Torfaen)

My hon. Friend refers to “vocalising”; I think that I was present at that meeting with Tony Blair and my hon. Friend used robust but not obscene language. He made his point very well.

There is no question that what the new clause proposed by the SDLP and my hon. Friend refers to reflects what was, in fact, agreed around the table at the time of the Good Friday agreement. It was also reflected in the 1998 Northern Ireland Bill, which I steered through the House of Commons. So there is no doubt that that was the case and there was good reason for it. The reason was that the widest possible collegiality, collectivity and pluralism, if you like, of the people who represented the parties at that table would be reflected in the way in which the First Minister and the Deputy First Minister would be elected, and it was jointery. My hon. Friend was a very fine Deputy First Minister and indeed played a huge role in bringing about peace in Northern Ireland—there is no question about that.

However the issue is, of course, that by 2002 the edifice had collapsed, for all sorts of reasons that we do not have to go into today. So it was hugely significant that further progress had to be made. I pay tribute to the DUP, who of course were not signatories to the Good Friday agreement but nevertheless came in and were signatories to the St Andrews agreement and other agreements after that. That meant, as my hon. Friend has said, that that original joint approach to selecting the First Minister and Deputy First Minister was effectively abandoned. However, it was abandoned with good reason, in the sense that there probably would not have been any progress without such an abandonment.

The issue that my hon. Friend refers to is whether, having got to a situation where all parties in Northern Ireland take part in the governance of that place, we should now go back to the original wording of the Good Friday agreement, or of the 1998 Act, and have that joint support for the First Minister and Deputy First Minister. I can see some merit in it, for the reasons it was agreed in the first place, not least that the people in Northern Ireland and, indeed, the Republic, voted for that. However, it comes down to the big issue and big principle that have run through not only our Committee proceedings, but Second Reading and other debates, of how far we change those things—and how we do it if we want to change them—in the next few months and years.

My purpose during the negotiations, and that of the British Government and the Irish Government, was to make politics in Northern Ireland as boring as they are in the rest of the United Kingdom and the Republic, so that politicians in Northern Ireland would have to make decisions, which are often not very exciting, on health, education, local government and planning in the way that we do. Those decisions are challenging, but not necessarily as exciting as the high politics of making an agreement. Consequently, with the establishment of the Assembly and the Executive, politics are becoming—I will not say boring—ordinary, in the sense of having to act like any other parliament or Government. That rightly takes time, money and energy. The people of Northern Ireland expect their representatives here and in the Assembly to tackle issues that reflect their everyday life—their health, education and so on.

However, from time to time, because it is Northern Ireland, issues such as those that we have experienced in the past three days—parading, whether the flag should be flown from the top of City hall in Belfast, the dissident IRA—show that, inevitably, the deep-rooted problems are still there.

How do we deal with them? My hon. Friend the Member for Foyle is right not to press the new clause. He put me on the spot because he and I drew it up. However, he is right, because there is a way in which its purpose can be achieved. That means over to the Minister, the Secretary of State and, of course, the First and Deputy First Ministers in Northern Ireland. They, with the Irish Government, are guarantors of the Good Friday and St Andrews agreements.

Today, the House has been chock-a-block with Northern Ireland business: the Northern Ireland Bill of Rights in Westminster Hall, the ten-minute rule Bill of the right hon. Member for Lagan Valley and what we are doing in Committee, not to mention the statement about the past few days. The day has been dominated by issues that affect Northern Ireland and that are still important.

How do we tackle them? I believe that a Committee in the Assembly already deals with how to look at the institutions of government in Northern Ireland and the Good Friday agreement. There is a similar Committee in the Republic of Ireland. It therefore behoves the Government, in the form of the Northern Ireland Office, to help in that process. That can sometimes mean considerable proactivity, but the issues are sensitive.

However, just because people have very different views, that does not mean that we cannot get resolution. If we had said that, there would be no agreement. When Sir John Major started talks before the Labour Government took office, no one believed that anything would happen, but neither he nor his successors gave up. Sometimes, if the issue is worth it, one has to seek consensus in a positive way.

I therefore believe that my hon. Friend the Member for Foyle is right not to press the new clause, and to draw the Committee’s attention—and, I hope, that of the Northern Ireland Assembly—to the fact that the problems have not gone away, that they need to be addressed, but that they can be tackled only by proper consensus among the parties.

Steve Pound (Labour, Ealing North)

When my hon. Friend the Member for Foyle moved his previous new clauses, all was amity, and I do not in any way seek to break those bonds of fraternity. However, a small cloud drifts across the sun on this occasion because, although no one could be anything other than sympathetic to the intentions behind the motion, the fact that my right hon. Friend the Member for Torfaen has already referred to the Assembly and Executive Review Committee, which is currently sitting to discuss the matter, as well as the north-south aspect, means that it is probably not appropriate to make a decision at this stage.

There is also an important point of principle. It may not appeal to every member of the Committee, but certainly the Opposition are reluctant to put ourselves in a position whereby Westminster legislates on matters relating to the Assembly’s internal operations, unless the Assembly’s express wishes are made available to us.

My hon. Friend the Member for Foyle is seldom wrong, and seldom less than positive, helpful and forward looking. He speaks from a wealth of experience, particularly of the unfortunate architect. However, on this occasion, the people who should consider the matter are doing so, in the place where it needs to be considered. On that basis, I am delighted that we will not be in the position of having to make an awful, painful decision were a vote to be taken. Fortunately, not for the first time, my hon. Friend has spared us the pain.

Mike Penning (Conservative, Hemel Hempstead)

I am grateful to the hon. Member for Foyle for expressing his views so articulately, but indicating that he would not press the amendments to a vote, not least for the reasons alluded to by the shadow Minister, which was exactly the same position as when we were in opposition and the Labour party in government—we gave them support for those same reasons. It is crucial that we wait for the several reports, not least from Northern Ireland, but also from the south. Her Majesty’s Government, with the help of Her Majesty’s Opposition, will then work with the First and Deputy First Ministers, which is massively important, to move the agenda on, based on what they would use. On that basis, I am pleased that the hon. Member for Foyle has aired his views and that he is not minded to press the amendments.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I thank hon. Members for their compliments, even with the barbs in some of them. I have a couple of points to make in reply.

First, we have again had reference to the Government and the House only legislating on the basis of things that all the parties have agreed in Northern Ireland, but I make the point that, when the change was made in the St Andrews agreement to alter the Good Friday agreement requirement that the First and Deputy First Ministers should be jointly elected by the Assembly, there was not all-party agreement; two parties agreed with that change. There seems to be one rule for certain changes, and another rule for other changes. Governments will claim the exigencies of the political moment, that that is what has to be done, but if changes can be mounted on the back of the requirements of two parties, for no better reason than they did not want to be seen in the Lobby on their own together—that was the only reason why that significant change ended up being made—it seems realistic to seek something different.

Also, not everything that has supposedly been looked at in the Assembly and Executive Review Committee is something that the various members of that Committee will say has been actively and seriously looked at. Let us not fool ourselves that that Committee is on the threshold of delivering something substantive on the issues, so that we should not usurp or disturb it in any way.

Mike Penning (Conservative, Hemel Hempstead)

I completely accept the point that the hon. Gentleman is making, but we have got to give the Committee that chance. He sits on that Committee—

Mark Durkan (Social Democratic and Labour Party, Foyle)

I do not.

Mike Penning (Conservative, Hemel Hempstead)

Sorry, I apologise. If we do not give the Committee that chance now, it will never make a decision, so let us see what comes out of the review.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The point of advertising the amendments in this Committee is partly to give some encouragement, prompting and questions from outside. I am no longer in the Assembly, nor on the Assembly and Executive Review Committee, but I know that it is not the case that those things are under live and imminent consideration in that way. I am indicating that, having heard what I have said, if there are bad arguments, I will be a hit man against bad arguments whenever they are heard—I am doing that in this instance.

I also make the point about the difference, although some people might not think that there is not much of one, between the First and Deputy First Ministers being nominated simply by letter from their respective party nominating officers and by the Assembly. I believe, however, that that can make a difference. Certainly, when I was Deputy First Minister, I was particularly conscious of having been elected Deputy First Minister by the votes of Unionists as well as nationalists, so when it came to the death of the Queen Mother, I was there at the recall of the Assembly, which took place to pay respects. Similarly, I went to the funeral—it was a bit of a surprise to the First Minister that I was going, and I do not know if he particularly wanted me to go. As far as I was concerned, I was Deputy First Minister for the whole community, elected on a cross-community basis, so I owed respect to those in my community and those they particularly respect and have a loyal affinity to—for example, the Queen Mother and the Queen. We received the Queen in the institution of the Assembly, a decision for which I was attacked by Martin McGuinness and others at the time. A hoarding was unveiled in Bogside, and I was teased for my support for policing and for having met the Queen. I was glad that subsequently Martin McGuinness discharged a requirement of his office when he met the Queen. I do not see why it had to be contrived to take place in some other premises under some other auspices. I see no reason why it should not have happened in the institution of Assembly, as for my meeting.

The joint mandate of the Assembly encourages and allows the First Minister and the Deputy First Minister to act as more than cheerleader and champion for their own community or their own political identity. It allows, and in many ways compels, them to reach that bit further. That is relevant in dealing with a shared future and various symbolic issues. I want to use our debate on these advertising clauses as a prompt to colleagues at home and others to consider some of those issues. There are things in the way the Assembly works that we can take forward.

I have made criticisms of the parties that currently hold the office of First and Deputy First Minister for the way they dealt with local government boundaries and the interests and concerns of other parties on a number of matters. There is a danger that parties are encouraged to treat those offices as their respective party properties. That should not be the case. The appointments should come from the Assembly voting jointly. There is also symbolism in the Ministers reciting the pledge of office in the presence of the Assembly as a whole and on the public record.

I do not wish to press the new clause to an awkward Division. I thank Members for their consideration, and I beg to ask leave to withdraw the motion.

New Clause 5 - Reduction in voting age to be a reserved matter

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move, That the clause be read a Second time.

The clause relates to a reduction in the voting age, a matter that the whole House has discussed a number of times. I have voted for the reduction of the voting age in amendments to various Bills, and I have supported private Member’s Bills on the subject. The option is always to reduce the voting age to 16, but the Committee may have noticed that the chosen band in the new clause is between the ages of 16 and 18. I have chosen that band because I am conscious that in the south of Ireland the Constitutional Convention recommends amending the Irish constitution to reduce the voting age to 17. There will probably be a referendum next year.

I will not rehearse all the reasons why I believe in reducing the voting age, but if the age was 16 in the north and 17 in the south, some people might be happier to support the same age for north and south. The reason the proposal is to reduce the age to 17 in the south, rather than 16, is that the age of consent in the Republic is 17. In opting for 16 the Constitutional Convention did not want to be seen as opening up the issue of reducing the age of consent, as it felt that the arguments might get conflated and create tactical opposition to reducing the voting age to 16. People might have felt that the age of consent could similarly be reduced as well, and that 16 would then become the going rate, as it were. That is why the recommendation has been made for 17 in the south. I am still comfortable with the fact that I voted in this House for 16 as the voting age, because that is on a par with other things. However, I am conscious that under Northern Ireland’s particular circumstances, some may say that if they were to accept the option of reducing the voting age, they would not necessarily want the only option to be to reduce it to 16.

Again, this is a situation where, given the scope of the Bill in other parts, I thought that it was relevant to raise the issue. I will not rehearse all the arguments for and against voting at whatever age. Others can do so if they want, but again, the proposals lay down a marker indicating that many people support a reduction in the voting age. The Northern Ireland Assembly has voted with a majority for a reduced voting age, so the Assembly has expressed a will in that regard. I have been told, in relation to other amendments, that we have to be duly sensitive to the Assembly, that we have to take account of things that might be considered there, and that we have to consider the wishes of the institutions and the other parties, but I reflect that the Assembly has voted on this matter. I am not saying that it was overwhelming, or that the vote did not have its own divisions, but in that regard, we in this House essentially have a working prompt from the Assembly that it is open to the voting age being looked at. The new clause is a reply to that expression of interest on the Assembly’s part.

Mike Penning (Conservative, Hemel Hempstead)

I know that that is the hon. Gentleman’s view, and I am aware of the vote that took place in the Assembly, but the Government do not feel that it is a matter for this Bill; it is a matter for United Kingdom legislation. No other part of the UK—the devolved Assemblies—would have the powers to reduce the voting age from 18. I agree that further debates are needed, but elsewhere and not on this Bill. With that in mind, if the hon. Gentleman does not withdraw the amendment, we will oppose it.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I am very tempted not to withdraw for once, but overall, I think it would be sensible to do so, simply because I do not want to put hon. Members on the spot or in any difficulty. I know that other hon. Members have found other ways to give, express and record their views in relation to other Divisions that have taken place on private Members’ Bills and other initiatives over the years. I do not wish to detain the Committee on the matter, which is why I did not get into all the arguments on the merits of reducing the voting age.

However, I make the point that the Assembly would have the power only in respect of Assembly elections and local government elections, but nothing else. Given the significant powers that we are entrusting to people on the possible future fixing of boundaries and other very sensitive electoral matters, I do not see that it is a particular jump to give the Assembly latitude over the voting age. The House has previously given latitude over the voting age to the Scottish Parliament, for instance, for the referendum in Scotland. I do not see that it is a big jump from that point of principle, to allowing devolved democratic institutions some latitude to widen their franchise, particularly for younger people.

I believe that younger people voting would be a very positive addition in Northern Ireland. Think of the positive impact, the visuals and the very clear statements that came from so many of the young people who gathered to hear President Obama, yet the vast majority of them would not have a vote. They might have more of an impact on political life in Northern Ireland and a more beneficial influence on the political parties and the political process if they were equipped with a vote earlier. They could make a bigger and better difference to our politics if they had the vote, but I will not to press the new clause to a Division to secure a negative or a discouraging result for those many young people in Northern Ireland who would like the voting age lowered.

I beg to ask leave to withdraw the motion.

New Clause 7 - Petitions of concern

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move, That the clause be read a Second time.

New clause 7 is another motion about getting back to what was intended by, and is in the Good Friday agreement. A petition of concern is a provision in the agreement to try to answer a concern that many people were raising: if Ministers are appointed by d’Hondt—by their own parties—and if they have executive authority, they could take decisions that many people might have issues with, and find inimical to their identity and pernicious to their interests. People need to be able to challenge that in some way, because not all the powers and decisions of Ministers, particularly Executive decisions, are necessarily subject to statements or procedures in either the Assembly or an Assembly Committee.

Equally, the point has also been made that when legislation is proposed, there must be ways of taking account of arguments over the equality impact or rights being potentially prejudiced. At the same time as we were developing proposals for the Assembly and its ministerial and Committee structures, under the chairmanship of my right hon. Friend the Member for Torfaen, we were also scoping out the equality and human rights provisions of the agreement—not least a Bill of Rights.

At the level of joined-up protections, we had the idea that a petition of concern could be used to flag up concerns about human rights and equality issues. A given number of Members of the Legislative Assembly, in signing that petition could say, “Right, the measure has to be frisked for equality and human rights considerations” rather than just proceeding by majority vote in the normal way for most everyday decisions in the Assembly. The petition of concern was designed to provide such a pause break on measures that people felt should be examined. The petition of concern is covered in the Good Friday agreement, in paragraphs 11, 12 and 13, but when it came to giving life to it in the Northern Ireland Act 1998, there was no reference whatsoever to those paragraphs in the first draft of the Bill. Although there were provisions in respect of the Bill of Rights, the Assembly and voting mechanisms, and the role of the Human Rights Commission and the Equality Commission, there was no specific reference to a petition of concern and what would flow from it, as outlined in the agreement.

In meetings with my right hon. Friend the Member for Torfaen and Mo Mowlam, the Secretary of State at the time, we pointed out the gap, and were met—perhaps not best met—by the inclusion of a provision in the Bill that simply said that Assembly Standing Orders would provide for the sorts of procedure outlined in the agreement in paragraphs 11,12 and 13. When it came to it, Assembly Standing Orders either did not make that provision or did not do so accurately.

Instead, we have ended up, not with the procedure that is carefully outlined in the agreement, but petitions of concern being used and played like political jokers, to be complete dead-end vetoes, to kill issues and the effect of votes—permanently, if that is the will of whoever has wielded the petition of concern. That was never what the petition of concern was intended to do.

Only last week we saw the petition of concern used in the Assembly simply to protect a Minister who had serious questions to answer. The petition of concern was never meant to be used to protect a Minister from accountability or scrutiny, or to prevent the Assembly from setting up a proper inquiry into matters of public concern, at which any Minister should be happy to account for and acquit himself of any allegations against him, his party or party donors. That is how the petition of concern was used last week, just as petitions of concern have been used and abused in other cases. When parties are able to resort to it as a free veto on anything they feel like, or as a tit-for-tat veto against somebody else’s, unfortunately they will do it. They will lift the tool and use it in that unintended and unplanned way.

With new clause 7, I have tried to reflect what is in those paragraphs in the agreement, in the Act, and to permit the Standing Orders of the Assembly the necessary latitude around how a special committee might be composed on the back of a petition of concern.

For the record, I want to say the agreement states about petitions of concern. Paragraph 11 reads:

“The Assembly may appoint a special Committee to examine and report on whether a measure or proposal for legislation is in conformity with equality requirements, including the ECHR/Bill of Rights.”

That was the intended Bill of Rights for Northern Ireland. That paragraph continues:

“The Committee shall have the power to call people and papers to assist in its consideration of the matter. The Assembly shall then consider the report of the Committee and can determine the matter in accordance with the cross-community consent procedure.”

Paragraph 12 of the Good Friday agreement reads:

“The above special procedure shall be followed when requested by the Executive Committee, or by the relevant Departmental Committee, voting on a cross-community basis.”

Paragraph 13 reads:

“When there is a petition of concern as in 5(d) above, the Assembly shall vote to determine whether the measure may proceed without reference to this special procedure. If this fails to achieve support on a cross-community basis, as in 5(d)(i) above, the special procedure shall be followed.”

The point of the petition of concern, as it applied to votes in the Assembly, proposals to the Assembly or measures brought forward in the Assembly or by Ministers under their departmental authority, was not that it was a permanent show-stopper, but that it would create a position whereby those who said that they had concerns or objections would have to put up or shut up.

They would have to prove in front of this special committee that there was an equality issue or a human rights concern. The committee would obviously have the power to take evidence and the intention was that a special committee set up on the back of a petition of concern could take evidence from the Equality Commission for Northern Ireland, the Human Rights Commission or anybody else with valid or worthwhile evidence to give.

That committee would then report and if it turned out that the concerns were not that material or could be addressed by amendments that were already coming forward from the Minister or someone else, the vote could be taken to let the matter proceed in the normal way. It was never the case, however, that the measure was to be used as an entirely free and permanent veto.

We have an added difficulty in the way in which things work or sometimes do not work in Northern Ireland. We have got into a gridlockracy whereby the fact that one party is in a position to present a petition of concern creates an anticipative block on what another party or another Minister might bring forward. Often measures and issues that need to be tabled for wider discussion do not get tabled simply because people—Ministers and parties—are afraid that they will be hit with a petition of concern early on.

That is why matters such as the school transfer procedure have not been committed to legislation. A legislative solution would be in the interests of parents, teachers and children in Northern Ireland so that they would know, at least with a broad certainty for a generation or so, what the transfer system for moving from primary to secondary school will be like. Ministers cannot legislate on that because they feel that, as soon as they table legislation, they will be hostage to a petition of concern. Instead, they rely simply on doing things by ministerial guidance. If we get changes of Ministers and changes of parties and changes of guidance, there is then uncertainty.

That was not what we intended when we negotiated the agreement and certainly when we campaigned for the agreement and got people to support it. We argued that it would be better than ad-hocracy at one level, with another wee fix here and another one there, or gridlockracy at another level. Petitions of concern do not even have to be tabled any more. They just have to be anticipated to have the effect of a predictive veto. The predictive veto means that we are not getting the level or quality of public discussion on serious issues that we should. These things are then seen to be the private property and the private problem of somewhere in the bowels of Government, quite frequently in the Office of the First Minister and Deputy First Minister. Frankly, the rest of us should not have the luxury of heaping the blame there. We should have to take the responsibility of addressing these issues in a wider public arena through the Assembly or elsewhere.

That is really what new clause 7 is about. It takes the opportunity to say that the petition of concern, as it is provided for in the Standing Orders of the Assembly, is not the petition of concern as was written in the Good Friday agreement. I can fully understand why the decision was made for legislative economy in 1998: just leave it to the Standing Orders of the Assembly to do it. The fact that Standing Orders have failed to do it and to do it right has also meant that it causes deeper problems in relation to the democratic governance of Northern Ireland. Parties are now complaining about the veto being used in that way.

We recently had the 15th anniversary of the Good Friday agreement and I was particularly struck by the fact that Martin McGuinness as Deputy First Minister said in an interview that one of the things that needed to be looked at was the way the veto was working and the petition of concern.

Similarly, at the implementation of the Good Friday agreement committee in the Oireachtas, Francie Molloy, previously Principal Deputy Speaker of the Assembly, now the hon. Member for Mid-Ulster—apologies, Ms Clark, for the name reference—made the point that he felt that the petition of concern was being used too much as a weapon of first resort, that too many things were being stymied and that perhaps it should be reviewed. Again, before the Minister or the shadow Minister says it, I know that these matters will and should be discussed at the level of the Assembly and Executive Review Committee.

However, given that the first problem was perhaps that this House was not as thorough as it could have been when legislating for the precise intent of the petition of concern in the ’98 Bill, it is entirely valid for those of us in this House to own up and say that there is a gap in the legislation that could have been filled better, and to do that in a way that encourages others to address the issue. As long as the petition of concern continues to be used as it currently is in the Assembly, it will discredit the democratic reputation of the institutions: it is seen as a bar on transparency and accountability.

The petition of concern is used in ways that put people under pretty invidious pressure. Recently, Sinn Fein tried to put pressure on the SDLP to make up their numbers on a petition of concern in respect of the Civil Service (Special Advisers) Bill. If the petition of concern led only to proper consideration of a measure to examine equality and the human rights implications of something, people would not be tempted to use it in that way and put others under partisan pressure in the way that Sinn Fein did on that occasion. Some of us would find it easier to sign a petition of concern if we thought it would have that proper effect, instead of it meaning that someone does not want to hear anyone else’s concerns but wants to use it as a veto on the part of one party.

Jeffrey Donaldson (DUP, Lagan Valley)

I shall be very brief. The points that were made earlier suggest that perhaps some of the amendments that have been tabled are premature in so far as other processes are under way that need to be given due regard. On the voting mechanisms of the Northern Ireland Assembly, my party would be reluctant to pre-empt the work that is going on in the Assembly to review its working and all the political institutions by introducing such a measure. I was present when the hon. Member for Foyle made a speech several years ago and talked about removing the ugly scaffolding of the Good Friday agreement. I fear that he is still a scaffolder rather than someone seeking to pull things down by removing some of the props that inhibit our progress towards normalisation in Northern Ireland.

In principle, we favour greater normalisation, but not this bit-by-bit approach. We must take a comprehensive approach. If changes are to be made to the safeguards that are built into the system, we must look at the totality of the system holistically so that people are reassured that doing certain things is offset by other things. It is about negotiation, so we do not want the new clause because it is isolated from other changes that need to occur to make the Assembly more normal, efficient, accountable and responsive in its functioning. The hon. Gentleman seeks that, but I do not think this partial approach is the way forward.

Mike Penning (Conservative, Hemel Hempstead)

The Government will oppose new clause 7, not least because of the arguments we made in relation to many previous new clauses. The Assembly and Executive Review Committee has said specifically that it is looking at petitions, and I do not think it right to use the Bill in the way proposed in this new clause and some of the previous ones. There has to be a collective agreement in Northern Ireland and the devolved Administration for normalisation to continue to take place. I agree with the right hon. Member for Lagan Valley: it cannot be drip, drip, drip. There must be a coming together, or one side may believe that it is getting more than the other side. They need to come together. The Assembly and Executive Review Committee is specifically looking at the measure among many others. With that in mind, I hope that the hon. Member for Foyle will withdraw his new clause.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I note the arguments against the new clause. The right hon. Member for Lagan Valley said that amendments such as this cannot be made piecemeal but that the approach must be holistic. That is not what we heard earlier in relation to his amendments.

Jeffrey Donaldson (DUP, Lagan Valley)

It is a bigger issue.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Yes it is bigger issue, and it requires a much more holistic approach than a piecemeal change to the definition or a qualification on the definition of “victims”. The issue of the past is much bigger and wider, and of course the issue of victims’ needs and rights is also much bigger.

The Minister referred to the fact that the Assembly and Executive Review Committee will look at the matter again. I simply make the point that the Assembly and Executive Review Committee has looked at a lot of things. At times, there is a limit and nothing is agreed until everything is agreed. If we end up with no changes and adjustments until something comprehensive is done, we end up with no movement.

There are difficulties with petitions of concern, which are being used in ways that were not intended—as permanent and predictive vetoes even to prevent issues from being tabled. The intention was that they would ensure that when issues were tabled, people did not feel that they were rushed into decisions, or that decisions were imposed on them without due scrutiny, and that decisions would be properly scrutinised and checked. Given that the default was originally in legislation in the House, I do not think that it would be completely untoward for the House to remedy that default, particularly as the Assembly had several chances to correct Standing Orders fully and properly and has not always done so. Although Standing Orders have improved in respect of providing for the idea of a special Committee, they still are not in perfect rhyme with what was laid down in the agreement.

We went through the procedure painstakingly when negotiating the agreement, and the right hon. Member for Torfaen might recall that the now Lord Alderdice, leader of Alliance party, was particularly actively involved, because he was concerned that our proposals for a petition of concern could lead to open-ended vetoes and could encourage tit-for-tat vetoes. He wanted more qualification of what a petition of concern could do. We developed another procedure, which at the time he described as elegant, that would mean that those putting forward petitions of concern would have to stand over their concerns, and those appointed to give special consideration to the equality issues, such as people in the Equality Commission or the Human Rights Commission, would have to give authoritative evidence. Indeed, it would be a platform for them to give authoritative evidence to a specially appointed Committee as well. That was what was intended at the time of the agreement. We should never think it untoward or behind anybody’s back to try to get back to some of the first principles, and some of the first and best promise, of the agreement itself.

Of course, as with the other new clauses, I will not foolishly put this one to a Division. Again, in that sense it is another advertising new clause, precisely to advertise one of the points that I made in a speech in Oxford in 2008, which the right hon. Member for Lagan Valley mentioned, when I was asked by the British-Irish Association to reflect on the agreement, 10 years on, and to look forward 10 years. I said that a problem we had was the entirely negative veto effect of the petition of concern. Rather than being there to prevent decisions that would abuse people, it was being used simply to prevent decisions and to prevent initiatives from even being tabled, and that was not right or proper. I said that we intended quite a number of the aspects of the protections that we built into the agreement to be biodegradable: as the environment changed, we would be able to rely less on some of those plastic protections built into the agreement, with the undue emphasis on community designation and other things. As the person who drafted the section of the agreement about designation, I know that it is not the most graceful thing, but it is there and I defend it. I just think we need to rely less and less on such provisions in an active way in the Assembly, or any other institutions, now or in future.

We can grow and go forward. The new clause suggests that we can do that partly by going back and keeping faith with what we initially provided in the agreement. On some of this stuff, we have gone off-road from the agreement and got into difficulties because of it. We should be trying to get on to the right road. If the right hon. Member for Lagan Valley really does believe in more transparency and more accountability, he would join me in disapproving of the way in which that petition of concern was absolutely abused last week. On that basis, I beg to ask leave to withdraw the motion.

Mike Penning (Conservative, Hemel Hempstead)

On a point of order, Ms Clark. May I record my personal thanks to you and Mr Hollobone for the pragmatic way in which you have chaired the Committee today? I thank the Clerks, the Hansard reporters, and the doorkeepers, whom we have managed not to trouble, which is excellent news. I thank members of the Committee for their participation both on the Floor of the House and here today. I particularly thank my Parliamentary Private Secretary, my hon. Friend the Member for Elmet and Rothwell; the Secretary of State’s PPS, my hon. Friend the Member for Folkestone and Hythe; and the shadow Minister, the hon. Member for Ealing North, for the pragmatic and helpful way in which they have helped us to scrutinise the Bill. We have completed the scrutiny process in good time, so the Committee has had a great opportunity for line-by-line scrutiny of the legislation. I look forward to seeing it on Report and at Third Reading.

Steve Pound (Labour, Ealing North)

Further to that point of order, Ms Clark, when you rule on that point of order, would you indicate to me how it might be possible for Opposition Members to associate ourselves wholeheartedly with the generous, warm and very welcome comments made by the Minister? May I add my thanks to the Ministers, past and present, and also to our good colleague, the hon. Member for Foyle, who has made an invaluable contribution throughout the afternoon. I appreciate that this may be pushing the boundaries of a point of order, but this has been an extremely well organised and well run Committee in which important business has been done. It has been conducted expeditiously and in good spirit, and that is in no small way thanks to you and Mr Hollobone.

Katy Clark (Labour, North Ayrshire and Arran)

The hon. Gentlemen have made their points.

Mike Penning (Conservative, Hemel Hempstead)

Rule him out of order.

Steve Pound (Labour, Ealing North)

He was out of order first.

Katy Clark (Labour, North Ayrshire and Arran)

Order. I suspect that both hon. Gentlemen are regularly out of order.