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Northern Ireland (Miscellaneous Provisions) Bill — Report

– in the House of Lords at 3:18 pm on 25th February 2014.

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Amendment 1

Moved by Lord Empey

1: After Clause 7, insert the following new Clause—

“Opposition status in the Assembly

(1) Schedule 6 to the Northern Ireland Act 1998 (standing orders: further provision) is amended as follows.

(2) After paragraph 4(2) insert—

“(3) The standing orders shall include provision in relation to the allocation of the Chairmanship and Deputy Chairmanship of the Public Accounts Committee.”

(3) After paragraph 5 insert—

“Opposition status

6 (1) The standing orders shall provide for official opposition status to be allocated to any party with at least one seat in the Assembly which is not a part of the Executive.

(2) Official opposition status shall only be introduced under sub-paragraph (1) if approved by a cross community vote in the Assembly.

(3) For the avoidance of doubt, it shall not be possible for the Assembly to revoke the official opposition status accorded to members under the provisions of this paragraph without the consent of the Secretary of State.””

Photo of Lord Empey Lord Empey UUP

My Lords, perhaps I will be permitted a brief pause while your Lordships’ huddled masses leave.

As we discussed this topic in Committee and also had a significant debate on it at Second Reading, there will be no need to repeat many of the concerns that were expressed at that stage. However, the amendment approaches the matter from a different point of view. It was made clear that there was an anxiety that changing the effect of the 1998 Act through the miscellaneous provisions Bill could be seen as imposition of the idea of official opposition status over the head of the Northern Ireland Assembly. Under the amendment, the trigger for any action would be a request from the Assembly itself.

The noble Baroness will be well aware of my anxiety and that of a number of others that although of course the Assembly has powers to change its Standing Orders which could give effect to opposition status, the weakness in that argument is that what is given by the Assembly can be taken away by the Assembly. The danger is that, if an Opposition are established, it is on a grace and favour basis and will only have sufficient independence as long as that is the will of the other parties in the Assembly.

My purpose in moving the amendment, and that of my noble friend Lord Lexden, is to ensure that we move one step closer to providing additional accountability, so that the Executive can be held to account. Parties would have the option of achieving a status that will give them some additional speaking rights and supply day debates and provide for the very significant issue of the future chairmanship and deputy chairmanship of the Public Accounts Committee. In other jurisdictions within the United Kingdom, those offices are held by parties that are not in the Government, whereas under the current arrangements in Belfast, they are occupied by parties that are in the Government. So that issue is fairly self-explanatory.

One issue that has come to my attention is that some elements within Sinn Fein feel that if opposition status is granted to parties in the Northern Ireland Assembly, that might in some way encourage parties not to share power with them. Parties are not going to decide not to share power with Sinn Fein on the basis of whether or not they could have opposition status, they are going to make that decision on a bigger political picture, so that is an Aunt Sally of an argument. Nobody is going to refuse to share power with Sinn Fein simply on the basis that they could get opposition status, a couple of supply day debates and so on. That argument is not credible.

If your Lordships think that there is no need for looking at opposition status in the Bill, I draw your attention to the fact that last year, an attempt was made to take away powers of one of the Northern Ireland departments, the Department of the Environment. An eight-page amendment was introduced at the very last minute which had the effect of removing some powers from that department and moving it to another one. That was done without any consultation through the committee and at the very last minute, so therefore there was no opportunity to have proper scrutiny of that proposal.

In essence, that makes my case for me, because it is precisely to counteract that risk that I believe that we require to provide certainty and a guarantee that if the Assembly chooses to go down the route of providing for an Official Opposition, which I hope it does, that Opposition will be a proper, free-standing Opposition who will have certainty that they cannot find themselves hobbled later should they fall out of favour with the executive parties of the day. We must remember that we cannot look at this simply in the context of the current make-up of the Assembly. We are looking years ahead—that make-up may change over time. It is for those reasons that I believe we need to go a bit further than the Minister has indicated in the past. Will the Minister tell us if she agrees with the proposition? I believe, reading her response at the previous stage—in Committee—that she does, and that she believes that there is this issue, raised by some people, that, in the absence of a guarantee which is not confined to the Assembly, the opposition status would be left in a fairly weak position.

I have an open mind on the methods we might choose to deal with this. This is one proposal. If we look at the Northern Ireland Act, and Schedule 6 to that Act—which deals with the question of Standing Orders—there are indicative Standing Orders set out in relation to committees and other matters, so we are not proposing anything wildly different. I also re-emphasise that the trigger for this has to be the Assembly itself, so that we are not forcing something on the Assembly that it does not want. At the end of the day, we need to put in place a mechanism that ensures that, if an Opposition are formed, they are free, independent and not subject to pressure. I believe that that would be an extremely valuable element in improving accountability. I support the mandatory coalition arrangements—although one would like to see a day when that is not necessary, it is necessary and will be for the foreseeable future; I doubt very much that anyone in this House today will see the day when it is not necessary. We are not getting into the argument about whether we are trying to replicate the Westminster system—we are not. That argument should be set to one side. However, that does not mean that the system is not capable of being improved or evolving. I draw the attention of the House to some speakers at the previous stage who said, “Oh well, we cannot impose things and we cannot interfere”. Parliament has imposed and interfered, and in fact a later amendment in the name of the noble Lord, Lord Trimble, is a classic example of both interference and imposition. This Parliament has already interfered and imposed and it has done so with its eyes wide open. Indeed, in a debate in this House in 2006, the implications of pursuing the imposition were made clear—and that has proved to be correct.

Let us not hide behind the argument that you cannot look at an issue simply because it is not necessarily provided for in the current arrangements. Political deals have been done, and political deals have been imposed, and that is how the system works. We are not proposing that sort of methodology. As can be seen from this amendment, the trigger is the Assembly itself. It has to make the move, it has to ask, and it has to decide that it wants to go down this road. This amendment seeks to ensure that there is a guarantee and certainty that that Opposition, once established, will be free and able to pursue their objectives without let or hindrance from whichever happen to be the governing parties of the day.

Will the Minister comment in her response on how we can achieve these objectives, if she is not content with this proposal? I hope the Government understand that we are not here to impose; we are here to improve and to see the institutions evolve. I know that we are aware of the sensitive situation with regard to devolution throughout the United Kingdom. We know that eyes will be looking from Scotland at what we do here on this issue, and I understand fully that most of your Lordships do not want to give any hostages to fortune or provide any ammunition so that people in Scotland could say, “There you go. They are trying to impose something and if they’ll do it on Northern Ireland, they’ll do it on Scotland or on Wales”. I fully understand that argument, and the anxieties which those who hold those views feel over Scottish independence.

I do not want to provide ammunition to anybody in Scotland who seeks to break the union, but I repeat: the trigger for this has to be the Assembly itself, which takes it out of the realms of imposition. Between now and the next stage of the Bill, it ought to be possible to find a means of achieving these objectives without doing damage to the principle of non-interference. In that spirit, I beg to move.

Photo of Lord Lexden Lord Lexden Conservative 3:30 pm, 25th February 2014

My Lords, I supported my noble friend Lord Empey’s amendment in Committee and I support the current version of this valuable amendment with no less vigour. He has explained its aims and objectives fully and I have only a little to add from my own Conservative and Unionist perspective, which is identical to that of my noble friend, who is the chairman of the Ulster Unionist Party. The not unimportant constitutional issue which the amendment seeks to address is simple and straightforward. The Northern Ireland Act 1998, which created the devolved institutions through which the Province is largely governed today, made no provision for the establishment of an Official Opposition with the appropriate rights and privileges. My noble friend has explained the reasons for that omission and this amendment would fill that constitutional lacuna.

It contains, as my noble friend has emphasised, no element of dictation or compulsion. It makes soundly based constitutional provision for the establishment of an Official Opposition, while leaving the Northern Ireland Assembly entirely free to judge when it would be appropriate to invoke this valuable addition to the constitutional order under which it conducts its affairs. In other words, by inserting provision for an Opposition into the 1998 Act, this amendment would supply the one element which is missing from Northern Ireland’s remarkable constitutional dispensation that followed from the Good Friday agreement, and so complete that dispensation. It therefore has great significance but it would do something else of importance as well. It would signal this Parliament’s support and encouragement for the evolution of Northern Ireland’s devolved institutions in the direction that public opinion in the Province increasingly favours: towards a state of affairs in which the Government are challenged in detail, day by day, by an Opposition who fulfil the great constitutional function prescribed for them of providing,

“a standing censorship of the government, subjecting all its acts and measures to a close and jealous scrutiny”,

as one leading late 19th-century authority on the constitution put it in resounding language.

Is it not right—is it not indeed the duty of the Parliament which brought into being Northern Ireland’s unique constitutional order—to support and encourage its evolution so that the devolved institutions that operate under it can carry out their work with ever growing success as the years advance? Your Lordships might consider what beneficial effect an Official Opposition could have had if they had been in existence today. They could have prevented the restrictions that limit so worryingly the operations of the new National Crime Agency in Northern Ireland—a matter that aroused grave disquiet when we discussed it in Committee. An Official Opposition might also have made it unnecessary for us to hold the debate on defamation which is to follow shortly.

Some say, “Leave the Assembly entirely free to follow its own course. Do not trouble it with advice from Westminster. Do not disturb it by strengthening the constitutional basis on which it operates by making statutory provision for an Opposition and placing that provision at the Assembly’s disposal for its introduction”. That does not seem to me the right, constitutionally sound approach. As my noble friend has explained, the Assembly could establish an Official Opposition under its own Standing Orders. However, that, in his own striking phrase, would be a grace and favour Opposition, existing through the good will of the Executive with their commanding majority in the Assembly. To work well, an Opposition would need stability and confidence. If they rested on a statutory basis under this Parliament’s legislation they could not be removed precipitously or capriciously. Let us now take the Northern Ireland Act 1998 to the point that is now needed by adopting this amendment.

In replying to the debate in Committee the Minister said:

“It is important that a formal Opposition should have sufficient status if they are to be effective in holding the Executive to account. The Government will reflect on what has been said in the debate and we will certainly return to this on Report”.—[Hansard, 3/2/14; col. 22.]

I hope at the end of this debate my noble friend will be able to tell the House that the Government will either adopt this amendment or will bring forward something similar at Third Reading.

Photo of Lord Trimble Lord Trimble Conservative

My Lords, when the noble Lord, Lord Empey, tabled his amendment on this matter in Committee I added my name to it. I make clear that the absence of my name from this amendment today does not mean that I have changed my mind. I agree with what the noble Lord has said and I hope he gets a very positive response from the Minister.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, in Committee I made it clear that I was very supportive of the principle of establishing an Opposition in the Northern Ireland Assembly. I remain of that view. In fact, I think it could be a very helpful improvement and evolution of the constitutional arrangements. It is clear that Standing Orders in the Assembly can accommodate this. When the Assembly was first established it had a very flimsy little pamphlet of Standing Orders. It was very important that the Assembly on all sides agreed to a process of negotiating and ultimately passing Standing Orders with cross-community support in the Assembly. That meant that all Members of the Assembly felt they were their Standing Orders. I would prefer to try to find that way forward. I do not accept the proposition that the noble Lord, Lord Empey, referred to about this being an imposition. I agree with him that this is not about imposition; it is about facilitation. The dilemma is, as he described, that it requires the larger parties in the Assembly to buy into the proposition before his amendment, even if passed, would come into operation. It is a bit of a Catch-22 situation. To achieve the things he and the noble Lords, Lord Lexden and Lord Trimble, want to achieve will require a process of negotiation between the party or parties that wish to have the possibility of being an Official Opposition and the current parties of government. Of course, these things can change—they have changed since the agreement, with the size of parties and their influence and so on.

Is there any leverage? I think there is considerable leverage. For example the Ulster Unionist Party, which is no longer as substantial in this House as it once was, has a substantial number of Members of the Northern Ireland Assembly and indeed has ministerial positions. It would be possible to negotiate with the two largest parties in the Assembly on the basis that, as vacating ministerial presence on the Executive to take up opposition status would be to the advantage of the other parties, appropriate recognition as the Opposition would be sought in return.

This leads me to two areas where I feel some dissatisfaction with the specifics of this amendment. First, there is the suggestion that a party with one Member could become the Official Opposition. I would rather see a slightly higher bar than that in the Northern Ireland Assembly. The idea that a single Member could form a party of their own and have the status of Official Opposition seems unwise. There should be some more substantial number; it is going to be a bit arbitrary whatever it is, but one is both arbitrary and unwise. I can think of many individual Members of the Assembly who might choose to adopt that status and create merry hell for everyone, including themselves and the Speaker. I would rather that there were more.

The second is related to that: the special position that is accorded in the chairmanship of committees, as suggested in the amendment. Again, for a very small party of one or two people to be able to corral those significant positions seems unwise. However, I emphasise again that the principle that is being supported by the noble Lords, Lord Empey and Lord Lexden, and indeed the noble Lord, Lord Trimble, is one that anyone who wants to see the evolution of the Assembly should espouse, and if there are things that can be done by the Secretary of State and our own Minister here or by others in your Lordships’ House to move that forward, we should certainly do so. However, I remain to be persuaded that this amendment is going to take us in quite the direction and for quite the distance that its proposers might hope.

Photo of Lord McAvoy Lord McAvoy Opposition Whip (Lords), Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland)

My Lords, in Committee there was a broad consensus—that is the key word—that the creation of an Opposition, or the allocation of opposition rights to parties in Stormont, lay within the scope of the Assembly and could be achieved through its Standing Orders. That consensus is again confirmed today. The Assembly’s Standing Orders have the power to grant informal recognition to non-executive parties in the Assembly on a proportional basis. There was also unanimous agreement as to the value of opposition and the additional effectiveness that an Opposition would bring to scrutinising the Executive and holding it to account. In fact, “consensus” appears to be the key word in this discussion.

In Committee, several noble Lords raised concerns about the vulnerability of any arrangements that were determined solely by Stormont. Concerns were also raised about the efficacy of the Assembly’s committees, particularly the chairmanship and deputy chairmanship of the Public Accounts Committee. The current amendment represents an understandable attempt to overcome those anxieties. By placing the creation of Standing Orders that grant opposition status within the Northern Ireland Act 1998, and by making it impossible for the Assembly to revoke official opposition status, the independence of an Opposition would appear to be guaranteed. Through this amendment, any Opposition would not be dependent on the continued good will of the Assembly for their status and associated rights. Bearing in mind the word of the noble Lord, Lord Alderdice—“evolution”, which is particularly relevant—that might not be welcomed.

We all wish to see the continued normalisation of politics within Northern Ireland. Great strides have been made. It is a rocky road at times but it is still a great road to be on. However, as I have said before, the situation and structures in Northern Ireland are unique. It is for this reason that I and the Official Opposition share the doubts mentioned by the noble Lord, Lord Alderdice. Is this the way ahead? Unless you are sure about something, you should not support it in Northern Ireland.

After so much division, the 1998 agreement established an Assembly and Executive in Northern Ireland that would be inclusive and make decisions consensually. These very same principles apply to the creation of an Opposition within the Assembly today. It is not a case of hiding behind the mantra of devolution. Devolution has a capital “D”. It is not a mantra. It is an effective way of delivering power and devolving power down in a very centralised society, which the United Kingdom can be at times.

In June 2013 the Assembly and Executive Review Committee concluded that, as yet, no cross-community consensus had been reached. This followed a government consultation in 2012 that reached the same conclusions.

A consensus must be reached in Northern Ireland before we can accept thisamendment. This must precede legislation; it surely cannot be forged afterwards. While the principle of the proposed amendment—I again quote the noble Lord, Lord Alderdice—is one of which we, as Westminster politicians, see the benefits, the doubts that some have expressed show that the timing is not yet correct to accept it. If the Assembly were to pass Standing Orders to create an Opposition and the Executive were to ask the Secretary of State to consider legislation, then it would be right to give the proposed amendment serious consideration.

In the Assembly, John McCallister MLA is contemplating presenting a Private Member’s Bill on the issue of opposition in the coming months. This should be seized upon as providing a prime moment for a forward-looking discussion around this issue within Northern Ireland. This amendment acknowledges the powers of the Assembly regarding an Opposition, and behind it is an understandable concern to prevent the Assembly withdrawing anything it were to grant. However, I repeat that, unfortunately, this does not seem to be the time to accept this amendment. The Assembly must reach a cross-community consensus on the creation of an Opposition before Parliament can consider legislating in this way. The impetus to the creation of an Opposition within the Assembly must come from within Northern Ireland and cannot be imposed—yes, I am using that word—from here at Westminster. Consensus cannot be created retrospectively as this amendment would seek to do. It is for the Assembly to make the first moves towards creating an Opposition: only then can Parliament legislate on the basis of a request from the Assembly.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales 3:45 pm, 25th February 2014

My Lords, I am grateful to the noble Lords, Lord Empey and Lord Lexden, for tabling this amendment. As I have acknowledged previously, they have done us a service in raising the profile of this important issue and they are to be strongly commended for that. I think that we have agreement at the very least on one thing across the Chamber this afternoon: that is, an Opposition is an important part of democracy. The Government agree that the creation of an Opposition would be a welcome step on the road to rigorous scrutiny of the Northern Ireland Executive and an important part of the democratic development of Northern Ireland.

This afternoon several noble Lords—the noble Lord, Lord Alderdice, for example—emphasised the development of the Assembly as a democratic institution and the importance of that development. I myself, from my own experience as a Member of the Welsh Assembly, recall that the original Welsh Assembly as set up did not have a strong Opposition embedded within it. It did not have the institutions of an Opposition, and the positions to which the noble Lord, Lord Empey, refers in his amendment, were not necessarily there for the Opposition to take up.

As the Opposition grew within the Welsh Assembly, one could see—day by day and month by month—the effectiveness of scrutiny growing within the Assembly. To my mind, therefore, there is no argument about the importance and desirability of an Opposition. The key thing we have here is a discussion as to whether that should be done, as the noble Lord, Lord McAvoy, suggested, through the internal standing-order processes of the Assembly—the noble Lord, Lord Alderdice, suggested the same approach—or whether it should be something that has safeguards imposed from outside. There we have the issue of the development of Standing Orders within an organisation.

The personal experience I just referred to includes being chair of the Welsh Assembly’s Standing Orders Committee, which I always regard as one of the more challenging roles that I have taken in politics. Clearly, as the organisation develops, the Standing Orders become more sophisticated and more difficult to overturn. If the approach within the Northern Ireland Assembly is taken via Standing Orders, that of course does not necessarily mean that they are likely to be overturned—although I recognise entirely the example given by the noble Lord, Lord Empey, of the challenge last year to the power of the Department of the Environment, and the point that there are unsettled moments in the development of Northern Irish democracy.

Therefore, as I set out in Committee and as has been referred to this afternoon, the Government previously consulted on the issue of an Opposition in the Assembly and concluded that there was a lack of broad support between the parties in the Assembly for changes to the current legislative framework.

Photo of Lord Kilclooney Lord Kilclooney Crossbench

The Northern Ireland Assembly is losing credibility across Northern Ireland and is passing very little legislation. I am very worried that the turnout at the next election will be poor. The Minister says—and the spokesman for the Opposition said the same—that the initiative must come from the Northern Ireland Assembly itself, but if all five main political parties are now in the Government, what incentive is there for any of those parties to resign from the Government and become the Opposition?

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

The noble Lord makes a very important point. However, because there may not immediately be an obvious incentive to do so, that does not necessarily mean that in other circumstances one or more of those parties might not find it appropriate to go into opposition. In the history of party politics in general, from time to time a party believes that the time has come to renew itself, and the party also might believe that the time has come for it to take a stronger role of scrutiny. It is important that we do not regard the current situation in Northern Ireland in terms of the balance of political parties as one that will necessarily exist in decades to come. There have been remarkable changes in Northern Ireland among the political parties since the establishment of devolution, so we should not think that the current situation will necessarily always continue as it is.

I return to the point I was making. Noble Lords will be aware that the Assembly can in effect facilitate an Opposition at present through its Standing Orders, as has been referred to here this afternoon. However, as I said earlier, I recognise the concerns that those Standing Orders could be overturned at the behest of the larger parties in the Assembly. In response to the question asked by the noble Lord, Lord Empey, the Government understand the desirability of sufficient protection being afforded to an Opposition against such a threat if it is to be truly effective in holding the Executive to account. It is important that the Opposition are enabled to do their work without feeling that their position is under threat. However, of course it is also possible to protect an Opposition internally, through Standing Orders.

However, as the noble Lord, Lord McAvoy, highlighted in Committee and again this afternoon, this is about the Assembly’s internal procedures. I disagree with the noble Lords, Lord Empey and Lord Lexden. It would not be appropriate for the Secretary of State to have authority over the Assembly’s internal affairs, as the amendment suggests. In the view of this Government, it is not appropriate for the Secretary of State to intervene internally in the processes of the Assembly. We also believe that it would be inappropriate to impose a requirement for the Assembly to make particular provision in this field. Indeed, we ought to show great circumspection, given that there has been no opportunity for consultation on these matters with the Northern Ireland Assembly in recent months. However, we will reflect further on the issue in the light of today’s debate. I make no promises of particular action, but we commit to considering whether there is more we can do within the constraints of the Government’s view that we should not intervene directly within the Assembly. Above all, I hope that the parties in Belfast are listening and will think carefully about amending Assembly arrangements in the light of what has been said today. With that in mind, I hope that the noble Lord, when he comes to reply, will feel able to withdraw his amendment.

Perhaps I might add a word about another issue, since otherwise we will not have an opportunity to consider it today. In Committee, concerns were expressed about the current provision in Clause 6 to make the reduction in the size of the Assembly a reserved matter. I would like to respond in more detail to some of the concerns debated in Committee. The current provision would enable the Assembly to legislate, with the Secretary of State’s consent, to reduce the number of Members returned to it for each Westminster constituency. The noble Lords, Lord Alderdice, Lord Empey and Lord Bew, expressed reservations about the current provision in that it did not provide sufficient protection, notably for smaller parties in the Assembly. In their view, the Secretary of State’s ability to withhold consent from such an arrangement was not a sufficient safeguard.

The Government recognise those concerns. There is a significant body of opinion that favours some reduction in the Assembly’s size, but it is certainly not our intention that it should become a radically smaller institution. When it was established, it was the intention that it should be a widely inclusive body, and that remains an essential element of the Northern Ireland settlement. Accordingly, we propose to bring forward an amendment at Third Reading that would limit any reduction in the Assembly’s size to five Members per constituency. The amendment would make clear that such a reduction would require cross-community support in the Assembly.

We will, of course, return to the detail of this amendment at Third Reading, but I hope that I have given a clear indication of the Government’s intentions and reassured noble Lords. Following my comments on this amendment and in the light of my reassurance that we will consider further the issue of our position in the Assembly, I hope that the noble Lord, Lord Empey, will feel able to withdraw his amendment.

Photo of Lord Empey Lord Empey UUP 4:00 pm, 25th February 2014

My Lords, I welcome the debate that we have had. As Members of this House will be well aware, when a miscellaneous provisions Bill passes your front door, a variety of things inevitably appear in it. Of course, at the end of the day the Government brought the Bill here, so it is their fault that all these issues are being raised.

Throughout this process we have been trying to raise the profile of this issue. Earlier, I made the point that changes have been made to the architecture of the

Assembly without the consent of the Assembly, without the consent of all the parties and, indeed, without any consultation with all the parties. It is against that backdrop and in that context that these amendments are being brought forward.

I am sure that I speak for my noble friend Lord Lexden when I say that we have no particular allegiance to this amendment vis-à-vis another. We are trying to achieve an objective, which is to allow the Assembly to evolve. I take the point made by the noble Lord, Lord Alderdice, that there is a Catch-22 situation. If you want the Assembly to have the trigger mechanism to seek an opposition status, to some extent you are giving it a veto. Equally, the only alternative to a veto is an imposition, but it has already been said around the House that that is not where we would seek to go.

I thank the noble Baroness for saying that she wishes to reflect further on the issue without commitment. We are open to finding a way to evolve the situation, whether that is through consultation with the parties, led by the Secretary of State, or by another mechanism or other means. All we want is to see progress.

The noble Lord, Lord Kilclooney, raises a very important point. I have been a lifelong supporter of devolution, as have many noble Lords here, but credibility is being lost. Sometimes things need to be refreshed and people need to see change and delivery. It is important that we do not confuse the facts. For instance, my noble friend Lord Lexden and I have brought forward this proposal but that does not mean that the party that I represent necessarily wishes to seek a status for itself now. It may very well be that other considerations, such as the stability of the institution, have to be taken into account. However, we have to look to the future and, as the noble Baroness said, the future generations of politicians need the best structure that we can give them.

With regard to the Minister’s point about the size of the Assembly and her intention to bring forward an amendment on that, I would just suggest that in the mean time she does an exercise on the impact that it would have had on the Assemblies that have been elected so far to see what it would have produced. The noble Baroness is a great advocate of proportional representation; her party sought to introduce it for this House and the other place. However, whenever people talk about it, I get the impression that they do not fully understand its implications. I suggest that people have a look at the figures to see what PR would have produced in the context of the Assembly elections in 1998, 2003, 2007 and 2011—what those elections would have looked like and what impact it might have had.

We had a proposal to reduce the number of constituencies in the United Kingdom Parliament. That would have been a perfect solution to the situation in Belfast because a reduction in the size of the Assembly would have been taken care of without the Assembly having to get involved; 12 seats would have disappeared and the Assembly would have gone down to a more reasonable size.

However, we are where we are and, on the basis of the noble Baroness’s assurances that she wishes to reflect without commitment, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 10: Civil Service Commissioners for Northern Ireland

Amendment 2

Moved by Lord Empey

2: Clause 10, page 9, line 7, at end insert—

“(3) Subsections (1) and (2) shall only enter into force after the remaining provisions of this section have been complied with.

(4) The Secretary of State shall establish a body corporate called the Northern Ireland Civil Service Commission (“the Commission”).

(5) The Commission must publish a set of principles to be applied for the purposes of recruiting persons on merit on the basis of fair and open competition.

(6) Before publishing the set of principles (or any revision of it), the Commission must consult the Secretary of State.

(7) Northern Ireland Civil Service management authorities must comply with the recruitment principles.”

Photo of Lord Empey Lord Empey UUP

My Lords, this is a very simple amendment. In Committee we discussed at considerable length the fact that we were seeking to ensure that the principles of merit and of equality of opportunity were always at the forefront of Civil Service recruitment. I take the point that in this case we have the anomaly that civil servants effectively are answerable to the devolved Parliament, whereas the Civil Service Commission is not. I believe, too, that if we cannot agree on the principles of merit and equality in terms of the Civil Service Commission, we are in severe difficulties.

I refer to the letter that the noble Baroness sent to us and to the fact that in Committee many people praised the Civil Service for its work in very difficult times over a prolonged period. Many civil servants conducted almost political negotiations on behalf of Ministers, in some cases at great risk to their personal safety. We owe them a debt of gratitude in that regard. The point was made that the situation in the 2010 Act gave the Whitehall Civil Service Commission one status, whereas the Civil Service Commission in Northern Ireland has a different one. The amendment was drafted to deal with that anomaly. I am interested to know how the Minister has reflected on these matters since Committee and whether she feels able either to support the amendment or to bring forward her own. I beg to move.

Photo of Lord Bew Lord Bew Crossbench

My Lords, I support the amendment. The shadow of history lies over it. When the Northern Ireland Civil Service was established in 1921-22, something like 60 appointments were made without any normal procedures of recruitment being applied. Over a period of time a struggle to achieve a professional Civil Service began. The time between 1925 and 1944 when Sir Wilfrid Spender was head of the Civil Service was key. In the memoirs of a Catholic civil servant, Patrick Shea, who reached the top of the Northern Ireland Civil Service, one can see the degree to which great efforts were made to institutionalise procedures that reflected what Sir Wilfrid thought were the best procedures in Whitehall.

That backdrop explains why, when direct rule came, Ministers of all parties—I do not just mean Conservative, Labour or Liberal Democrat Ministers who had dealings with the Northern Ireland Civil Service, but Ministers who leant to one particular side or the other in Northern Ireland—always found that the Northern Ireland Civil Service delivered excellent and objective advice. If one looks at the non-controversial nature of north-south relations, which is of particular importance at the moment, it is clear that the big political decisions in such a context were made by the noble Lord, Lord Trimble, who is in his place today.

It is also the case that the work done by the Northern Ireland Civil Service in looking at areas of viable co-operation between north and south is a very important reason why the settlement is so stable. As the noble Lord, Lord Empey, has said, we owe a debt of gratitude to the Northern Ireland Civil Service. As I have argued, that integrity and professionalism has been hard won. The pressures of localism do not go away: it is not 1921 anymore. At this symbolic moment, it seems to me that noble Lords who supported this amendment want to say that a stronger message is desirable in terms of defining the principle of merit and of fair and open competition. That essentially is the idea behind this amendment: that that signal should be sent in a firm way.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, whatever reservations I might have had with regard to the previous amendment I have none at all about putting my name to this one as it is very important. There was some talk in the debate on the previous amendment about the imposition of the will of the Westminster Parliament or Westminster Government on Northern Ireland. In a sense, this amendment and the next one refer to two clauses where it is almost as though the Westminster Parliament and Government are intentionally withdrawing their involvement and moving from excepted to reserved matters that were rather carefully put in the excepted category. Why? Many of us were conscious of the fact that over a substantial time in the historical period referred to by the noble Lord, Lord Bew, the United Kingdom Parliament and Government were less involved in that part of the United Kingdom than might have been advisable, and things went awry.

It does not seem to me that we have learnt from that. Indeed, some indications over the past two or three years are that people on this side of the water, relieved to some extent that Northern Ireland is less in the headlines than it was for 20 or 30 years, are just hoping that everything will go on all right. The noble Lord, Lord Kilclooney, has rung a warning bell that maybe things need attention, and I think he is right on that score. I have heard no demand in Northern Ireland for the issues referred to in this amendment or the next to be changed, so I am a little puzzled why these propositions have come forward in the first place. If they do proceed, they must be addressed properly.

I have two concerns. First, while I accord entirely with the positive remarks of the noble Lords, Lord Empey and Lord Bew, about the Northern Ireland Civil Service, and from my positive experience in most circumstances over some years, nevertheless, particularly as I was trying to get the Assembly up and running, it became apparent that many of the more senior civil servants were operating off a kind of Civil Service rulebook from 20 or 30 years before. They really had not kept up with the kind of developments of Civil Service culture on this side of the water. There was nothing malign about it but it seemed that things took rather a long time to get across the Irish Sea in terms of cultural change. So, one of my concerns is that if we simply offload and do not put appropriate rules in place, those cultural changes that take place on this side of the water may not be picked up as quickly back at home, and I do not want to see that.

Secondly, when appointing senior civil servants it is suggested that the Civil Service as a whole, and the basis on which it recruits, is entirely a devolved matter. That is clearly legally true. However, I ask my noble friend to consider—she may not be able to respond immediately—whether, if it became apparent that the merit principle did not apply and proper recruitment was not happening in Northern Ireland, would that not be a matter of concern to this Parliament? If it became apparent that there was discrimination, inappropriate appointments were being made or that the merit principle was not the key principle, is it seriously being suggested that this Parliament would have no locus, interest or legitimate concern, and that the Secretary of State who was responsible for negotiating the resources that those civil servants would spend, and who might have a legitimate concern for the propriety of appointments, could say nothing about it? I am not entirely persuaded that that argument stands up. I do not necessarily say that we would ever get to that position but if we talk ourselves into the notion that this Parliament and the Government have no say in the overwhelming majority affairs in Northern Ireland, that is a recipe for neglect, benign or otherwise. I do not want to contribute to that.

I support the amendment not only because, technically, I think it is important, and historically it is appropriate, but because it gives us the opportunity again—as the noble Lord, Lord Empey, said, they do not come by too often—to raise the issue of Northern Ireland and the responsibility of this place and the Government here on what is a devolved institution, not an independent one.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 4:15 pm, 25th February 2014

My Lords, in Committee the Minister sought to reassure me about why the opportunity was not being taken in this Bill to introduce the defences of Civil Service impartiality in Northern Ireland that exist for the rest of the United Kingdom under the 2010 Act. She said:

“It is the Government’s intention that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exists for England”.—[Hansard, 3/2/2014; col. 36.]

I take that to mean that that statutory enforcement would be introduced before devolution takes place. Can the Minister explain how that is to be done? Since the only further legislative move that is necessary before devolution takes place is a statutory instrument introducing it, is that the means by which she says the statutory defence of Civil Service impartiality will be introduced? That is my first question.

My second point is the reason why I support this amendment now. If and when that statutory instrument comes before the House, we will have a chance to vote only for or against the whole statutory instrument. That is a less satisfactory means for the House to deal with it than if we were able to debate this sort of amendment to the Bill before it comes into force.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I was not intending to take part in the discussion of this part of the Bill, but I would be grateful if my noble friend the Minister could clarify whether the existing legal regime in Northern Ireland forbids any form of discrimination within or by the Civil Service. It was my understanding that that was the position under the Northern Ireland Act as it stands. I know that in Northern Ireland there is some backwardness in amending equality law. It still has not, as we have done, produced a single Equality Act. That is most regrettable. It is true that it was Labour that first sought to initiate that reform. But in terms of the Civil Service and public administration, I understood that not only in common law but under the Northern Ireland Act any form of arbitrary discrimination, direct or indirect, would be unlawful. I would be very grateful if that can be clarified.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

My Lords, I suspect that the noble Baroness has a sense from the tone of this debate, as in Committee, of how strongly your Lordships’ House feels on this issue. The noble Lord, Lord Alderdice, made the point that we have devolution, not disengagement, and there is a responsibility here for your Lordships’ House.

The noble Lords, Lord Alderdice and Lord Bew, made the point about the differences—not just cultural but practical—between the Northern Ireland Civil Service and the Westminster Civil Service. As a Northern Ireland Minister, I was struck by the far higher profile that senior civil servants have in Northern Ireland than they do here in GB. This is partly because, particularly when the Assembly has been suspended or there have been different governance arrangements, it has often been a civil servant who has undertaken the role that Ministers have here in defending or promoting policies and engaging with the public. So the difference is cultural and practical.

The timing of the Minister’s letter on this issue to noble Lords, dated yesterday and which I received today, is rather unfortunate. I appreciate that we have just had a recess, but it would have been helpful to have had the letter earlier; it may well have informed more of the debate today and the amendment that is being put forward.

There are a couple of points in the Minister’s letter on which I would like some clarification. I think that there is some confusion about what has been devolved and what is excepted. In her letter, she mentioned the debate in Committee and said that,

“many of the points made in debate related to the impartiality of the Northern Ireland Civil Service as a whole, which is of course a transferred matter”.

But the reason why there was a debate around impartiality was that we were discussing the role of the Northern Ireland Civil Service Commission, which is not an excepted matter. It was the role of the commission that brought about that debate. I think that people fully understand that the Northern Ireland Civil Service is devolved, but it is the role of the commission and its responsibility in ensuring the independence and impartiality of the Civil Service.

The point of the amendment and the whole tone of the debate is that, when the Northern Ireland Civil Service Commission is transferred, it is with the statutory understanding that it retains its remit for ensuring impartiality in appointments to the Northern Ireland Civil Service. I do not think that there was any misunderstanding in the debate in your Lordships’ House about what was transferred or excepted, but the reassurance was required, which was not really explicit enough in the Committee debate, that before being a devolved organisation there would be statutory protection on its remit for impartiality.

The Minister said in her letter that there would be further parliamentary scrutiny in both Houses, but the point made by the noble Lord, Lord Butler, is relevant here—it would be secondary legislation. But she also says that she intends to bring forward an amendment at Third Reading. I think that it is a great shame that we do not have the amendment before us today, because it would have been helpful to your Lordships’ House to be able to discuss it today. What we will seek from her today is to understand exactly what that amendment would say. If the earliest time we see that amendment is at Third Reading, it is rather late in the day, and I am disappointed that we do not have that government amendment before us today. If she could clarify exactly what it will say and what the process of debate and vote will be, that would be extremely helpful to your Lordships’ House and might allay some concerns. I hope that she is able do that—but, to put it on record again, it would have been helpful to have that amendment today.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

My Lords, I mean no disrespect to the shadow spokesman for the Opposition in speaking immediately after her. I hesitated to speak in the debate because I had played no part whatever in the proceedings so far, but I detected some mild anxiety in the exchanges between the government Front Bench and the advisers behind me. Therefore, I reckoned that uttering for a moment might provide enough time for any matters of that sort to be resolved with total confidence.

Like many in your Lordships’ House, I was alerted to this problem by the original letter expressing concern about the difference between Northern Ireland and the rest of the kingdom at the moment in these regards. For reasons that are in no remote sense the responsibility or fault of the Minister, I was unable to attend any of the briefing meetings that she very generously provided for people interested in this Bill. It is possible, because I have not taken any part, that I have not received correspondence that may have come to other noble Lords.

Having listened to the debate this afternoon and read the debate that occurred in Committee, I have a sense of unease. I do not have a sense of confidence that all is well. We are rather late in the proceedings of this Bill to be dealing with these sorts of concerns. I hope that my noble friend the Minister will be able to give a significantly clearer position of exactly where we are and why at this particular moment.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

My Lords, I thank the noble Lord for his amendment. I know from Committee, and this afternoon, that this issue gives rise to considerable debate, in which of course there is very wide interest. I am grateful to the noble Lord for bringing the matter back on Report.

The noble Baroness, Lady Smith, criticised the timing of my letter. My letter was dependent on knowing on which aspects I had not been able to satisfy noble Lords following the debate in Committee. There were a number of other issues of debate that have not come back to us because clearly the debate produced a satisfactory response to what I had said. I was therefore picking up those issues which had been raised in amendments by noble Lords or which had been raised with me directly in that noble Lords had told me that they intended to table amendments on those issues. Therefore, having got a picture of what noble Lords were interested in and concerned about, I wrote in the hope that, by giving some advance notice, I would enable your Lordships to prepare your points for debate with an eye to what I was planning.

Returning to the points made this afternoon, noble Lords will be aware that this amendment is the same amendment that the noble Lord tabled in Committee. As I outlined then, while we have much sympathy with the concerns that underlie it, to which the noble Lord, Lord Brooke, has just referred, the Government cannot accept it; first, on the basis that it is technically problematic; and, secondly, because it will pre-empt a public consultation on the future devolution of the Civil Service Commissioners.

It is worth emphasising again that Clause 10 is concerned only with the appointment of the Civil Service Commissioners and not the wider Civil Service. There have been a number of references today, as there were in the previous debate in Committee, to the issue of the Civil Service as a whole. That is, however, a devolved issue, and therefore it is important that we bear in mind that we are talking only about the appointment of the Civil Service Commissioners.

Clause 10 does not change the current procedure for the appointment of Civil Service Commissioners for Northern Ireland. Appointments are currently an excepted matter, and the Bill proposes to make them a reserved matter, as is currently the case with the commissioners’ functions and procedures. But the Bill opens the possibility of responsibility for the appointment of the commissioners and their functions and procedures to be devolved at a later stage.

I recognise that noble Lords have concerns that the principle of appointments to the Northern Ireland Civil Service should be made on merit and through open and fair competition, and that this should be protected, as is the case with the Home Civil Service here. In Committee I made it clear that the Government are certainly open to the possibility of new statutory safeguards being put in place in the context of devolution. But as I indicated previously, attempting to write them in now would pre-empt a consultation on the future devolution of the commissioners, not least in Northern Ireland itself.

In any event, we do not have the time to put in place provision on the complex issues involved during the remaining stages of this Bill. Some of these matters, as I have said, are anyway a devolved responsibility on which we should not legislate without the consent of the Northern Ireland Assembly. It is unnecessary to make such provision at present because the House, along with another place, would have the final say over whether devolution should take place when an order to that effect was proposed.

On the point made by the noble Lord, Lord Butler, about the opportunities for the House to vote on a statutory instrument prior to devolution and that it would be a yes or no vote, the process for this is that the Secretary of State would bring an Order in Council to the House and the House can decide whether there are sufficient safeguards in place. If there are not, presumably the House would vote against that order.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 4:30 pm, 25th February 2014

I am grateful to the noble Baroness but I am afraid that she is not assuaging my concerns. In Committee, she gave me a precise undertaking. Today she has said that the Government were open to the idea of introducing the same kind of statutory safeguards for the Northern Ireland Civil Service as exist in the rest of the United Kingdom. In Committee she went much further than that and said that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exist for England. Is that going to happen before devolution or not?

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

I hope to come to that in the latter part of my response. I was attempting to respond to the noble Lord, Lord Butler, on the specific issue of the process. Prior to the intervention I was saying that the House would have the final say on whether devolution should take place when an order to that effect was proposed. However, in responding to the comment of the noble Lord, Lord Butler, I should make it clear again that the Government are committed to protecting the independence of the Civil Service Commissioners and that we fully understand the concerns expressed about the future independence of the Northern Ireland Civil Service.

We recognise the significant and important role played by the Civil Service in Northern Ireland and, in the light of the concerns expressed, the Government propose to bring forward an amendment at Third Reading which would require the Secretary of State to lay a report before both Houses on the independence of the Northern Ireland Civil Service prior to bringing a devolution order. In her report the Secretary of State will be required to set out her view of the effect of devolution on the principle that persons should be selected for appointment to the Northern Ireland Civil Service on merit and on the basis of fair and open competition. That approach flags up the importance your Lordships attach to the question. We would wish the House to be reminded of that at a later date when and if a devolution order is brought forward.

The noble Lord, Lord Lester, asked whether discrimination is possible at this point in time in the Civil Service. There are extensive safeguards in Northern Ireland law and in the 1998 Act against discrimination in employment and, more generally, against discrimination by public authorities. I am sure that on this issue it would be more significant if I responded to the noble Lord in detail, possibly by letter, which I could place in the Library.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I am extremely grateful to my noble friend for her reassurance. I want to make it clear that my understanding, as a matter of law, is that if the commission were not to recruit on merit, on the basis of fair and open competition, that would already be unlawful both by statute and common law. The House may need that reassurance in considering whether the proposal now being made, for a report in the future, would be sufficient safeguard against abuse. If the Minister finds it more convenient to confirm that in writing, I would be grateful for that.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

As an issue of principle, my understanding is that that is the situation. However, in order that noble Lords might understand it in more detail, I will ensure that a letter is sent to my noble friend and a copy placed in the Library in order that we can make the current situation clear. As I listened to this debate and read the Hansard report of our previous one, it became clear that this is a complex issue in which we are, in practice, moving between the appointment of the Civil Service Commissioners on a fair, equal and open basis and the standards by which we would expect the Civil Service in Northern Ireland to operate. Some of these issues are devolved but it is important to be clear about which safeguards are already in place, at which level, and which points are devolved. I give way to the noble Baroness.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

I am grateful to the noble Baroness. She is trying to be very clear and I wish I could be equally clear at this point. The noble Baroness used two phrases that give me concern. At some points she talked about the independence of appointments to the Northern Ireland Civil Service Commission but in her letter, and at other times, she referred to the independence and impartiality of appointments to the Northern Ireland Civil Service for which the commission is, at some levels, responsible. That is where there is some confusion.

We are just a few days away from Third Reading and I would be very concerned if an amendment were tabled quite late in the day and the only discussion we had was on the Floor of your Lordships’ House. Would it be possible for the Minister, before tabling the government amendment at Third Reading, to discuss it with noble Lords who have raised concerns to ensure that they are content with its wording and feel that it does what they are asking for it to do? The noble Lord, Lord Brooke, is quite right. We are very late in the day to be at this stage with the matter not resolved. It would be very helpful if the Minister could agree to circulate the amendment and discuss it with noble Lords prior Third Reading.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

One our problems is that the Bill refers to the appointment of Civil Service Commissioners but the amendment goes beyond that because, as has been pointed out, this is a miscellaneous provisions Bill and things are put into it which add to its scope. In attempting to respond to the debate, we have all been discussing the qualities of the Civil Service in Northern Ireland—its free and open appointment and independence. We have therefore been ranging well beyond the point in the Bill. I am absolutely happy to organise a meeting with noble Lords who are concerned about this issue. It is essential to have a full discussion of any proposed amendment and ensure, as far as possible, that noble Lords are satisfied with the direction of the amendment.

As the noble Baroness has pointed out, there is an issue with timing. We have Third Reading next week so it is essential that we move on under a realistic timetable. The Government are absolutely committed to having public consultation before making fundamental changes to the appointment of the Civil Service Commissioners. We are not considering devolution of anything without wide public consultation and the agreement of the Assembly. We have a relatively limited period of time in which to produce an amendment that works within those parameters.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

I hesitate to intervene, but will my noble friend clarify something else? She talked about the importance of public consultation. I do not ask her to clarify this now, but perhaps she could do so in writing before the Bill’s next stage. The noble Baroness on the Opposition Front Bench said that culturally and socially there is a difference in the roles of the heads of the Civil Service departments in Northern Ireland. It is my recollection that there is a legal and constitutional difference from this part of the world as well. I recollect that the heads of Northern Ireland government departments are the civil servants, not the Ministers, which is a different position from that in the rest of the United Kingdom. I am not certain that all noble Lords are aware of the fact that it is a quite different position. Therefore, sensitivities that some of us have on these matters are all the more acute. I see my noble friend Lord Trimble nodding his head, and that ought to be confirmation sufficient for me, but I ask the Minister to confirm between now and the next stage precisely what is the position and, in particular, the status of heads of department as civil servants.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

My noble friend is correct in his general point, which is that the Civil Service in Northern Ireland has a different status from that in the rest of the country. The situation changed in 2010, when additional safeguards were introduced for the rest of the country.

I suggest that the best way in which I can deal with the detailed approach for which my noble friend is asking is to add it to the letter that I originally said that I would write to the noble Lord, Lord Lester, because it is very much in the same field and at the same level of detail. Then we can have the precise legal and historical background to the different situation that exists for the Civil Service in Northern Ireland. My noble friend makes an important point that we are looking historically at a different situation.

I draw your Lordships’ attention to my proposal of an amendment that the Secretary of State should bring forward a report. I think that our approach flags up the importance that your Lordships clearly attach to this very important question. Requiring a report will feed back into the consultation process that we have committed to undertake on the question of whether the responsibility should be devolved and in which circumstances. I hope that your Lordships will agree that such an amendment goes much further than the current clause. We will of course return to the detail of these amendments. It is obvious that we are going to have ongoing discussion on this and we will return to it at Third Reading. I hope that this will provide the noble Lord with the necessary assurances and that he will consider withdrawing his amendment.

Photo of Lord Empey Lord Empey UUP 4:45 pm, 25th February 2014

My Lords, when this amendment was tabled, I thought it was going to be a fairly simple, straightforward matter—but as very often happens, that has not proved to be the case at all.

The Northern Ireland Assembly has not asked for any powers to be devolved with regard to the Civil Service Commissioners. Indeed, as we look at the next amendment, it has not asked for any of those powers to be devolved either. Contrary to the rumours, the people on the Newtownards Road do not speak of little else. My point is that this proposal has come from the Government of their own volition. It has not been sought. I have never heard anybody raise the issue at all.

The noble Lord, Lord Brooke, referred to the letter that some of us received in January from the chief commissioner. If I may be permitted to quote a little from it, it says:

“We have a similar role to that of the UK Civil Service Commission chaired by Sir David Normington, which regulates appointments to the Home and Diplomatic Civil Service. However, unlike Sir David’s Commission, the Northern Ireland Commissioners do not have the benefit of formal legislative provisions”.

It goes on further:

“Rather, our role continues to be governed by a Prerogative Order in Council”.

The noble Baroness is suggesting new proposals. We know that there is a clash between what is devolved and what is not devolved, but what is not devolved is currently excepted. As the noble Lord, Lord Alderdice, said, a number of issues were deliberately left as excepted issues because they were potentially so sensitive. They went to the core of areas where people felt that things had not been well handled in the past, and it would be better for the long term to leave them to the one side.

The other point to bear in mind about the Civil Service in Northern Ireland is that the statutory role, function and power lies with the department, not the Minister. There is a complete difference. If the Minister is not there for whatever reason, the department can continue to apply policy that has already been decided. The law states that the Minister directs and controls the department, but in the absence of the Minister, the department itself has the power to continue implementing policy. That is a very distinct difference.

Photo of Lord Trimble Lord Trimble Conservative

I must apologise as my memory is not clear enough on whether the noble Lord was present at a discussion I am going to mention. However, he will recall the time when, for political reasons which are not relevant to this point, I had resigned and I was proposing that my other Ministers would also resign. There was a discussion of senior officials about what we do in this situation. I cherish the comment made by someone who I will not identify, who said, “We must be very careful because we don’t want people to find out that we can take decisions without Ministers”.

Photo of Lord Empey Lord Empey UUP

The noble Lord is perfectly correct. I recall being at a number of meetings where that issue was discussed. The law states that the Minister directs and controls the department when the Minister is there, but the power is vested in the department. That is why this is such a sensitive issue. We are in the House of Lords but the department Permanent Secretaries were known as the six barons in the direct rule years, because it was to them that people turned for resources and other things. There is a very distinct difference, and that is why this is such a sensitive issue. As I have said, the Civil Service Commissioners themselves clearly have anxieties. The Assembly has not asked for this but the Government, for their own reasons, have decided to bring it forward. If they were prepared to drop it, I am quite sure that Members here would be more than content. However, in view of what the Minister has said and in view of her letter, and the fact that she intends to hold further consultations, I believe it appropriate that I now beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Clause 11: Northern Ireland Human Rights Commission

Amendment 2A

Moved by Lord Alderdice

2A: Clause 11, page 9, line 8, at end insert—

“( ) In subsection (2) of section 68 of the Northern Ireland Act 1998 (The Northern Ireland Human Rights Commission), for “approved by the Secretary of State” substitute “nominated by the First Minister and Deputy First Minister and confirmed by a vote of the Northern Ireland Assembly”.

( ) In subsection (3) of section 68 of that Act, for “appointments” substitute “nominations”.

( ) In subsection (3) of section 68 of that Act, for “Secretary of State” substitute “First Minister and Deputy First Minister”.

( ) In subsection (2) of section 69 of the Northern Ireland Act 1998 (The Commission’s functions), for “Secretary of State” substitute “the Northern Ireland Assembly”.

( ) In subsection (3) of section 69 of that Act, for “Secretary of State and the Executive Committee of the” substitute “Northern Ireland”.”

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, this amendment follows on in a sense from many of the principles of the previous amendment, but there are also some significant differences. The question of human rights and how to maintain them has been a long-standing interest and concern of mine. My first formal involvement in the issue occurred in my late teens and early 20s when I was a youth representative in the human rights commission of the Irish churches. However, I have never been a human rights fundamentalist. I remember one of the senior clergy in that commission describing the question of human rights in a way that I have always found helpful. He said that “human rights” is an important and helpful disturbing notion. In other words, it is something which should always make us ask certain kinds of questions, but on its own it does not determine all human behaviour—in particular, the balance of human rights and human responsibilities.

As I say, human rights has always been a matter of concern to me. When I got involved with Liberal International, which is the worldwide organisation of liberal political parties, I found that its only standing committee—apart from the bureau, executive and congress—is the one on human rights. I got involved with that committee and became its chairman, and I was the chairman for some time. As I tried to help that organisation move forward, I thought that it would be a good idea to consult an old friend and colleague from Ireland, Mary Robinson, who at that point was the High Commissioner for Human Rights at the United Nations. When I went to discuss this in her office in Geneva she said, “If you’ve got an issue and you have a campaign, and if you are successful in your aims, you will have achieved success in one campaign; but if you can put in place a structure or an organisation, or an institution which has longevity and good people in it, then you will address not just one issue but one issue after another”. She encouraged me to encourage my colleagues in different parts of the world to set up parliamentary human rights committees, ombudsmen and, importantly, independent human rights commissions and institutions, and I spent quite a number of years trying to do that.

However, it is not just about human rights commissions but about independent human rights commissions. In particular, these commissions need to have an independence from the Executive in those countries. It is enough that they frequently find themselves dependent on the Executive for funding; it is even worse if they are wholly dependent for their nomination and appointment on the Executive. One of my concerns about this proposal to open up devolution of the Northern Ireland Human Rights Commission, with appointments made by the First Minister and Deputy First Minister, is that it would undermine this question of independence. I am puzzled about it because the other area of devolution that we are conscious of is not just Wales—with respect to my noble friend on the Front Bench—but also Scotland. What is the situation in Scotland? The Human Rights Commission there is responsible to the Scottish Parliament, not to the Scottish Government or Executive. I was completely unsurprised to find that when the Northern Ireland Human Rights Commission was asked to respond to the Northern Ireland Affairs Committee in another place, it said, “If the Government want to move ahead on this, that is all very good. But it would conform much more closely to the Belgrade principles if it were accountable to the Assembly and not to the Northern Ireland Executive”.

I have therefore tabled this amendment. It is not a complete amendment or an amendment which I intend to press—it is entirely a probing amendment. I urge colleagues not to get involved in finding flaws with it because that would be much too easy a job. I am simply setting down the principle that, if and when the Government move forward with this proposal—and perhaps my noble friend can even give me some encouragement that at Third Reading there might be an amendment that will address this question—the Northern Ireland Assembly is the key body to which the Human Rights Commission is accountable, and the Assembly and not just the Executive should have a say in the appointment of Northern Ireland Human Rights Commission members and chair. In practice, it may well be the Office of the First Minister and Deputy First Minister that makes nominations. In political terms, it is hugely important that the members are accountable to the Assembly, perhaps with a vote for their appointment and the tabling of an annual report to it.

There are many ways in which the Human Rights Commission already involves itself with the Assembly; for example, it advises the Speaker, when he requests it, on the human rights compliance of legislation before it comes to First Reading and before it leaves the Assembly. That is not the issue. It is the question of principle. If it is to be and to remain an independent body there should be a clear significance of that by it being accountable to the Assembly and not just to the Executive. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I support the object of my noble friend’s amendment and I want to explain why. I have practical experience in Northern Ireland. Between 1975 and 1977 I had the privilege of being the special adviser to what was then called the Standing Advisory Commission on Human Rights in Northern Ireland. At that stage the commission was examining the highly controversial question of whether the European human rights convention should be given direct effect in UK law or in Northern Ireland law. The Northern Ireland Office, like others within that Government, was strongly opposed to the idea of incorporation at that time. I regret that there was undoubted interference behind the scenes with the commission by the Northern Ireland Office. A member of the Executive was present throughout and reported back to them. At one stage there was an attempt to remove me because they saw the way that the body was going, and when we produced the report in November 1977 three members of the commission who had been—in my view—on the right side were removed summarily in a way that I thought was quite wrong.

I agree with my noble friend about the great importance of the independence of the commission from the Executive, and I wish that this was not a devolved function at all. I think that the commission would be better protected if it was not being devolved. However, given that it is to be devolved, and in accordance with the Paris principles and the Belgrade principles, it is vitally important that it is seen to be independent and properly buttressed. In supporting the amendment, I do not know whether the particular solution would be the right one because I can envisage a situation in which the Assembly might be guilty of improper interference. However, I am certain that the independence of this body is vital. The Joint Committee on Human Rights has been in frequent touch with the Human Rights Commission in Northern Ireland and we have been very concerned about the need for its independence to be properly protected.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My Lords, I had not intended to speak to this amendment. I have not been present in previous discussions on this Bill in your Lordships’ House. I simply wish to endorse all that the noble Lords, Lord Alderdice and Lord Lester, have said about the importance of the independence of the Northern Ireland Human Rights Commission. The separation of that commission from the Executive is profoundly important not least because it gives assurance to people that the commission itself will act independently. We still have very profound constitutional issues at stake in Northern Ireland and I urge your Lordships to support the noble Lord, Lord Alderdice, in this matter.

Photo of Lord Empey Lord Empey UUP 5:00 pm, 25th February 2014

My Lords, I have great sympathy with the point that the noble Lord, Lord Alderdice, has made. It is another of these proposals that have not been asked for but have been arbitrarily put forward. One could almost have the sense in the back of one’s mind that the department was pushing these things out just to get them off its desk and out of its file and pass them on, and that would be a mistake. As the noble Lord said at the outset of his remarks today, certain issues were deliberately not included, and this is one of them.

We know that the Executive and the Office of the First Minister and Deputy First Minister have had difficulties with the appointment of other commissioners. It set out to appoint one victims’ commissioner, I think it was, but after a prolonged period of time we ended up with four. At this stage, there is not a good track record.

My own personal view is that matters should be left alone. I do not know where the demand is for this; it is not there. To pile more pressure on the Office of the First Minister and Deputy First Minister over other sensitive issues at this time is not particularly helpful, to be honest. As it is, that office is struggling to get decisions out on a whole range of issues, and I cannot see any rational reason why we would deliberately add to that, particularly when no one has sought this power. It is almost the inverse of the argument that was being made in respect of opposition: we do not want to impose something, but here we are shovelling things out that have not even been asked for. The best solution to this would be to leave well alone.

I had the privilege of serving on SACHR for a couple of years. It was a wonderful forum at times when things were really difficult. Let’s face it, it is very difficult to separate the politics from the appointments, and especially to separate the two from the budget.

These are all things that come together. You know what people say: you get someone in the long grass. It might not be straight through the front door but there are other ways of doing it. I support the amendment and my personal opinion is that the Government should leave this alone; it is not worth the risk.

Photo of Lord McAvoy Lord McAvoy Opposition Whip (Lords), Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland)

My Lords, I understand the concerns that have led the noble Lord, Lord Alderdice, to table this amendment. The discussion of human rights has played an important part in the establishment of devolved structures within Northern Ireland. Today the Northern Ireland Human Rights Commission continues to play a key role in maintaining these institutions. Throughout the Assembly’s legislative process, the Human Rights Commission can intervene at any point to prevent the governing parties from creating legislation that does not conform to proper international standards of human rights. Given the importance of the commission to the legislative process, there is an understandable need to preserve its independence and impartiality.

The noble Lord, Lord Kilclooney, echoed by the noble Lord, Lord Empey, mentioned that there seems to be an air of lack of faith in the Assembly in Northern Ireland. There is certainly anecdotal evidence in conversations to justify that complaint, or at least to make a valid one. I urge all representatives from Northern Ireland and noble Lords and noble Baronesses here to use what influence they can to try to move things along. If the public start to lose faith in the Assembly, we are all in trouble, so we should all be trying to inspire faith in it. The noble Lord, Lord Kilclooney, was absolutely right to refer to that.

In Northern Ireland, the devolution of the relevant power to the Assembly would appear to offer a firm guarantee of the commission’s continued independence. While recognising the valid intent of the amendment, I think it would be a mistake to accept it at this time. As acknowledged by the noble Lord, Lord Alderdice, a very valuable service is being performed by having this discussion.

The actual powers concerning the Human Rights Commission have not yet been devolved. Prior to the actual devolution, the Government have committed to carrying out extensive consultation and encouraging debate within Northern Ireland. It will not be until after this that the actual form that the devolution of these powers will take will be decided. Only then will it potentially be necessary to consider an amendment such as this.

Everyone agrees about the fundamental importance of human rights to the exercise of devolved government in Northern Ireland. It is also agreed that this is ensured through the independence of the Human Rights Commission and the impartial nature of its work. The preservation of this impartiality will be foremost in discussion when we come to actually devolve these powers. However, since the precise model for the devolution of these powers has not yet been agreed—and it will only be agreed after consultation within Northern Ireland, which will hopefully include a large say for the public—I feel that at this time the amendment has been quite rightly described as a probing amendment and the Official Opposition cannot support it.

The noble Lord, Lord Alderdice, made a strong case that the devolution of these responsibilities should be to the Assembly, as is the case in Scotland. The point was made in Committee that the impartiality and independence of the commission is crucial and must be both retained and maintained. Therefore, we welcome the Government’s commitment to ensure that proper consultation and debate on this takes place in Northern Ireland before a vote is taken to devolve these responsibilities. I conclude by thanking once again the noble Lord, Lord Alderdice, for the service that he has provided the House.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

My Lords, I hear strong echoes in this debate of the concerns raised in the previous debate. The Government have a similar potential solution to assuage the concerns of noble Lords. I am grateful to my noble friend for tabling this amendment and I understand his concerns in relation to the independence of the Northern Ireland Human Rights Commission should it be devolved in future. I make that point to my noble friend Lord Lester: it is by no means a foregone conclusion that the Human Rights Commission will be devolved in the future. It will be subject, of course, to consultation and discussion.

Indeed, let me say at once that we share the concerns that several noble Lords have expressed today and we are clear that they must be addressed before devolution. For that reason we will propose amendments at Third Reading that will ensure that they are addressed, albeit not quite in the way suggested in my noble friend’s amendment. It is worth reminding the House that Clause 11 of the Bill moves certain functions relating to the commission from the excepted to the reserved category.

The Government made a commitment in their response to the Northern Ireland Affairs Committee’s pre-legislative scrutiny report on the draft version of this Bill to consult formally on any future devolution of responsibilities relating to the commission and the other arm’s-length bodies discussed, prior to any devolution taking place. I want to reiterate that commitment today. The concerns expressed in the debates here will obviously inform that consultation. We will also ensure that the commission retains its responsibility for the scrutiny of non-devolved matters relating to Northern Ireland—such as national security and terrorism—in the event of any future devolution of responsibilities for the institution.

My noble friend raised the issue of the Belgrade and Paris principles. The Government are fully aware of the huge significance of those principles and we are absolutely committed to the idea that they are fundamental to the future independence of the Human Rights Commission. Nothing we do in future will challenge that. We know the importance that the commission attaches to the high regard in which it is held internationally.

At this stage we are not considering in detail the model for how eventual devolution will look. The Bill would simply move certain policy areas from the excepted to the reserved field so that devolution could take place by order later. That would require a vote in the Assembly to accept the new powers. Ultimately it would be for the devolved institutions to determine the structures and lines of accountability they wanted in operation. However, it seems obvious that if there are already models in operation which seem to work well they could provide a suitable starting point when these issues are considered in detail. In Scotland, for example, the devolution is to the Scottish Parliament, which has proved to be a very successful model.

As I said, the model of devolution needs to be determined in the light of the public consultation. There are many detailed questions to be addressed about the devolved arrangements, if it is eventually decided to devolve. We obviously have to take the views of the Human Rights Commission itself into account, those of others in the community, those of the receiving institutions, the Assembly and the Executive. Your Lordships will have an opportunity to debate those detailed arrangements at a later stage. Any proposal to devolve requires a vote here, as well as in another place and in the Assembly. However, we believe that it would be right to put on record now the view of the House that those questions require close scrutiny.

The noble Lord, Lord Empey, expressed the view several times during the debate today and previously that the Government are deliberately pushing things off the desk. I say to him and to others who go along with his viewpoint that there is another way of looking at this. The Government see this as part of building a broader base for devolution in Northern Ireland. As the noble Lord, Lord McAvoy, said, it is part of moving things on in Northern Ireland and creating a more normal political model. It is hoped that by broadening the base of devolution in Northern Ireland it will be made firmer and stronger as a result. However, to noble Lords who expressed concerns about this, I acknowledge that the Government are very sensitive to the issues of timing and very much aware that the progress of devolution in Northern Ireland is not always as trouble-free and speedy as we would wish to see.

In recognition of the concerns expressed about that issue, the Government intend to put forward an amendment at Third Reading which makes clear that the future independence of the commission is something that needs to be guaranteed at the point of eventual devolution. Accordingly, the amendment will propose a requirement on the Secretary of State to lay a report in both Houses prior to bringing forward a devolution order. The Secretary of State would be required to set out in her report the effect of that devolution order on the commission’s independence.

We will of course return to this at Third Reading, but I hope that my noble friend is reassured that the Government take the matter seriously, and that he will be willing, as he has indicated, to withdraw his amendment.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat 5:15 pm, 25th February 2014

My Lords, I am very grateful to my noble friend Lord Lester, the noble Baroness, Lady O’Loan, the noble Lords, Lord Empey and Lord McAvoy, and my noble friend the Minister for their very constructive and positive contributions. Noble Lords may recall that in Committee I spoke in opposition to the Question that Clause 11 stand part of the Bill, so I started from the same position as my noble friend Lord Lester and the noble Lord, Lord Empey, that “‘twere better it weren’t here at all in the first place”. That did not find favour.

I have therefore brought forward a probing amendment to encourage the Government to do the right thing, which is at least to ensure that if this comes forward there will be very clear requirements. I welcome the assurance—perhaps even reassurance—from my noble friend the Minister that there will be an amendment at Third Reading. However, she said that it will not be the same solution as the one that I propose. Let me just remind the House of some of the things that the Belgrade principles actually set out. They include the principles that:

“Parliaments should ensure the financial independence of NHRIs”— national human rights institutions,

“by including in the founding law the relevant provisions”; that:

“NHRIs should submit to Parliaments a Strategic Plan and/or an Annual Programme of Activities”; that:

“Parliaments should take into account the Strategic Plan and/or Annual Programme of activities submitted by the NHRI while discussing budget proposals”; that:

“NHRIs should report directly to Parliament”,

not to the Executive; and that:

“NHRIs should submit to Parliament an annual report on activities, along with a summary of its accounts, and also report on the human rights situation in the country and on any other issue that is related to human rights”.

There is nothing about the Executive because it is about holding the Executive and others to account. The reference is to “Parliaments”.

The Belgrade principles are not something from the distant past; they were agreed in February 2012. NHRIs produced these principles along with academics from the United Kingdom, one of the 10 jurisdictions involved. It will not be good enough if we decide that these are good principles for other places but not for ourselves. I want to make it clear that, while reassurance will certainly be helped by a report from the Secretary of State, the problem about the approval of this House and another place, as was pointed out with regard to the previous amendment by the noble Lord, Lord Butler, is that it is a bit of a nuclear option. By the time it comes to the House, it is a question of voting yea or nay, and the House, quite properly, is very reserved about using that power. Therefore, it is either about sorting the matter out before it comes to this place or it is a real problem getting it sorted out.

I made it clear that this is a probing amendment and I look forward to the amendment that my noble friend will bring forward at Third Reading. But I should make it very clear that this is no marginal matter. The issue of human rights is a fundamental one in general terms, but in my part of the country it has very particular important resonances. Any sense of disengagement or diminution of importance of such an issue by making it subject to the whims and wishes of the Executive would be a serious error. I find it difficult to see how it would fit with the Belgrade principles if it were not made accountable to the Northern Ireland Assembly, much as is the case in Scotland between the Human Rights Commission there and the Scottish Parliament. However, with those concerns and reservations, and with genuine appreciation of the efforts of my noble friend and the amendment which she promises us at Third Reading, I beg leave to withdraw the amendment.

Amendment 2A withdrawn.

Amendment 3

Moved by Lord Lexden

3: After Clause 25, insert the following new Clause—

“Defamation

(1) Section 17 of the Defamation Act 2013 (short title, extent and commencement) is amended as follows.

(2) In subsection (2), after “Wales” insert “and Northern Ireland”.”

Photo of Lord Lexden Lord Lexden Conservative

My Lords, I brought forward this amendment in Committee. I am reintroducing it because of the immense importance of the issues that it seeks to address and because of the urgent need to make progress with regard to it in Northern Ireland. My interest in Northern Ireland is of very long standing, stemming from the days when I lived there while teaching at Queen’s University in Belfast in the 1970s.

On 1 January, a new Defamation Act came into effect in England and Wales. By common consent, it will confer great benefits. Those benefits were three years in the making, they have the full support of all three main political parties, they were subject to careful scrutiny by a Joint Committee of both Houses and a full public consultation took place across the whole United Kingdom. The new, widely welcomed libel law has perhaps been more carefully thought through than any other piece of legislation in recent years, and your Lordships will immediately think of many other pieces of legislation that could usefully have been thought through with the care given to the new Defamation Act.

There is practically universal agreement that the new law strikes the right balance between protecting individual reputations and upholding freedom of expression. The benefits of this major, far-reaching reform will be enjoyed fully throughout England and Wales but not in Northern Ireland. For the first time ever, Northern Ireland now has a different libel law—the old law, which belongs firmly in the past because it cannot provide properly for the needs of the present, let alone the future.

In this immensely important area of our law, which directly affects so many people and so many publications, Northern Ireland has been split from England and Wales. The union of our country has been weakened. A common jurisdiction has been divided into two—not after careful consideration of the effects of such a rupture but without any inquiry whatever into the consequences. Whereas the new law in force in England and Wales was prepared with great care, the old law has been retained in Northern Ireland without any explanation being offered by the Northern Ireland Executive, who are responsible for its retention there.

The Executive do not even seem to have held a collective discussion on the matter, despite its importance. It was only through the persistence of journalists, who finally emerged last year, that a single Minister was responsible for the Executive’s inaction because he had withdrawn a proposal that would have led to collective discussion in the Executive. Not a word of all this formally reached the Assembly, to which the Executive are accountable. It is an extraordinary state of affairs. I have the words of my old friend the noble Lord, Lord Kilclooney, about the danger of declining faith in the Assembly ringing in my ears.

The Northern Ireland Executive’s inaction is fraught with risk and peril for the community whom the Executive exist to serve. More than 6,000 people work in publishing and the broadcast media in this part of our country. Their jobs are now at risk. The costly hazards of the old law could drive out the media companies which provide those jobs. New investment by international companies at the cutting edge of the digital revolution—so badly needed to bring down unemployment and enlarge the Province’s shrunken private sector—will be seriously imperilled. The impact on ordinary people using the internet could be severe. The new defences to an action enshrined in the new law will not be available to our fellow countrymen and women in the Province. They could find themselves facing huge bills, long-running court cases and financial ruin for what they believe to be a piece of harmless content on the web.

Consider, too, the position of those who might have to use the law to protect their reputation. Fortunately, it is rare that people have to take out injunctions on grounds of a potential libel to protect their reputation, but it does happen and it can often mean the difference between protecting and destroying someone’s life. A man or a woman in Northern Ireland faced with such a prospect would, in order to make an injunction work, now have to take one out in four jurisdictions under very different laws: one in Northern Ireland under the out-of-date common law; one covering England and Wales with a modern regime; one covering Scotland; and potentially one covering the Republic of Ireland, where the law is different again. Failure to do so would mean that the injunction is not worth the expensive paper on which it is written. Such a prospect, and the huge costs involved, would be beyond the ability of most people other than the super-rich. Therefore the action—or rather, inaction—of the Northern Ireland Executive is, in effect, not only exposing ordinary people to great risk but removing the ability of ordinary people to use the law to protect themselves.

The old libel law that the Northern Ireland Executive has retained without explanation can have literally fatal consequences. Last July a senior NHS cardiologist told a committee of the Northern Ireland Assembly that a large American company had used the old law to prosecute him and suppress his research evidence that revealed serious problems with one of its products, used to close holes in the heart. He told the committee that while he was gagged by the old law some patients who had been forced to have faulty heart devices surgically removed had died as a result. He said that

Northern Ireland must ditch the old law to stop such outrageous instances of the suppression of freedom of speech.

Yet the Northern Ireland Executive ignore such powerful evidence of the need for change. All they have been prepared to do is to seek a review by the Northern Ireland Law Commission, but all the relevant information is in the public domain already. A review could take a very long time. The Executive should back the Private Member’s Bill introduced at Stormont by the Ulster Unionist leader, Mr Mike Nesbitt, to replace the discredited old law with the new one. That they have so far failed to do. Freedom of speech, human rights and the integrity of the law itself: those three fundamental elements of our democracy and our free society stand at the heart of the crisis—I do not think that that is too strong a word—that my amendment seeks to address.

This issue cannot be evaded by maintaining, as the Labour Front Bench has sought to do, that devolution removes from the Government and this Parliament the duty or the responsibility to take action. My amendment is about freedom of speech above all. While devolution is a core value of modern British constitutionalism and the Sewel convention is the central principle within our current devolutionary arrangements, freedom of speech is an even more fundamental value of our constitution.

In conclusion, I have three questions for the Government and I would be grateful for my noble friend’s comments. First, will the Government secure from the Northern Ireland Executive a clear, public explanation of their inaction, which they have so far failed to provide? Secondly, will the Government establish and place on public record what, if anything, the Northern Ireland Executive now intend belatedly, to do? Thirdly, if the Executive prove unresponsive, what further action will the Government take? I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I was unable to be present for the earlier stages of the Bill, but I have read all the debates, including the discussion on 3 February about the amendment then moved by my noble friend Lord Lexden, with the powerful support of the noble Lords, Lord Bew, Lord Black of Brentwood and Lord Empey, and now moved again by my noble friend Lord Lexden, with my support and that of the noble Lords, Lord Black and Lord Pannick. I noted then the welcome support from the Minister for the aim of the amendment, even though she was unable to support the amendment itself.

I have a particular interest—I say this with some trepidation, as I sit opposite the noble Lord, Lord Carswell, in case what I am about to say in any way disturbs him—in that my experience as leading counsel for the Irish News in the Northern Ireland Court of Appeal in the Convery case brought home to me, as nothing else had, the importance of persuading Parliament to strike a fair balance between the right to protect a good reputation and the right to freedom of expression.

The Irish News was sued for libel for a review written by Caroline Workman, an experienced food critic. She was highly critical of the quality of the food, drink, staff and smoky atmosphere at the Belfast

Italian restaurant, Goodfellas. The owner, Ciarnan Convery, claimed that the article was a hatchet job, and the jury agreed. After a lengthy trial, he was awarded £25,000 damages and four times that amount in legal costs. Caroline Workman was subjected to detailed and lengthy cross-examination about the accuracy of her article. The experience was so traumatic that she gave up her profession as a journalist. Everyone at the trial was confused about the difference between truth, fact and honest opinion. We succeeded in the appeal but the state of the common law remained unsatisfactory. That is one of the factors that caused me to think that it was about time Parliament intervened.

I was therefore surprised to read a polemic by Mr Mick Hume in the Belfast Telegraph on 7 February under the headline:

“It may not be perfect but keep your oar out all the same”.

It continued:

“Northern Ireland’s libel law is an affront to freedom of expression. But the House of Lords should keep their fingers off plans to reform it”.

The article described the state of libel law in Northern Ireland as,

“an execrable affront to freedom of expression”,

but said that,

“it is none of the House of Lords’ business”.

Mr Hume is a British journalist and former editor of Living Marxism. He is also author of a book, There is No Such Thing as a Free Pressand We Need One More Than Ever, published in 2012 in response to the Leveson inquiry. It is a splendid polemic for the freedom of the press with which I largely agree. One might have expected Mr Hume to have welcomed the work done by the coalition Government, with support from the Opposition and Parliament, in scrutinising proposals to reform the common law of libel, which, as the noble Lord, Lord Lexden, explained, has historically applied to Northern Ireland as well as to England and Wales. As the noble Lord, Lord Lexden, said, that work was informed by wide public consultation. Newspaper editors, broadcasters and journalists all welcomed the Defamation Act 2014 that came into force on 1 January. Both Houses of Parliament include Northern Irish politicians. The Joint Committee on the Government’s draft Bill and my own Bill was chaired by none other than the noble Lord, Lord Mawhinney, and included the noble Lord, Lord Bew. It received evidence from right across the United Kingdom.

One might have expected the Northern Irish coalition of opposites—the Democratic Unionist Party and Sinn Fein, in particular—to have been keen to see the Defamation Act applied to Northern Ireland. The DUP is in favour of the union and Sinn Fein has good reason to support free speech. Years ago, I attempted unsuccessfully, with the noble Lord, Lord Pannick, to challenge the Home Secretary’s ban on Sinn Fein broadcasts. Alas, as the noble Lord, Lord Kilclooney, has said, there is a total political impasse in Northern Ireland, so one can expect nothing of this Government of opposites.

Free speech is the lifeblood of democracy. People are more ready to accept policies, decisions and ideas that go against them if they can seek to influence them. It is also a safety valve. It acts as a brake on the abuse of power by public officials, by exposing errors in governance and in the administration of justice. The press are public watchdogs—the eyes and ears of the public, informing them of matters of public interest and importance.

During the debate in Committee only the noble Lord, Lord McAvoy, shadow spokesman for Northern Ireland as well as Scotland, said that he was opposed to the amendment of the noble Lord, Lord Lexden. He said:

“We have devolution, and devolution is the principle that we have to go by”.—[Hansard, 3/2/2014; col. 70.]

That is not a very good principle: in this context it is flawed. Unlike in the United States, for example, we do not have a federal, overarching principle of free speech. In the United States, if the American Supreme Court says, as it has done, that the states of the union may not enact, nor may the common law declare, principles of libel law inconsistent with the First Amendment, all the states of the union and the courts must obey the federal rule.

Under the flawed devolution scheme, which is not federal, the only safeguards are the power of the Secretary of State to be able, under Section 26(2) of the Northern Ireland Act 1998, to require the Northern Ireland Government to take action because she thinks that it is necessary to comply with free speech under the European convention. There is a political override power in the flawed Northern Ireland Act that she could exercise, but she would no doubt hesitate long before doing so for fear of inflaming opposition.

Alternatively, it can in a particular case be left to the poor old courts—the Northern Ireland courts and, if necessary, the Supreme Court of the United Kingdom—to try to solve the following problem. What are they to do when a newspaper or other periodical is published across the United Kingdom and they find themselves confronted by an archaic, uncertain, unsatisfactory, chilling old common law of libel, of the kind that I exemplified in the Goodfellas restaurant case, applying to Northern Ireland, and meanwhile in England and Wales they find a modern, well balanced, new defamation code? What are the courts to do? It is unfair on the judiciary to leave it to solve the problem because Parliament will not solve it itself.

I understand why the Secretary of State is unwilling to use the power conferred in the Northern Ireland Act. But if freedom of speech is to be enjoyed in London and Cardiff to a greater extent than in Belfast—where the common law is unsuited, in another kind of example, to the internet—we have a ludicrous situation. This will lead to litigation, to which in principle I am opposed, even though my profession would no doubt be delighted by the opportunity for litigation.

The Minister may argue in her reply that the amendment of the noble Lord, Lord Lexden, would breach the Sewel convention. But that is just a convention. It is not enshrined in the Northern Ireland Act and has not been approved by Parliament. Parliament as a sovereign body retains full legal power to legislate on devolved matters. Normally the power would not be exercised in relation to a devolved matter without the consent of the Northern Ireland Assembly, but we are not dealing with a normal situation.

Since the Secretary of State will not use the power given by the Northern Ireland Act to require legislation on defamation to comply with the convention, it seems to me—the Minister will correct me in her reply—that the only course left is for Parliament to pass this amendment, or for the Northern Ireland authorities to do what they are supposed to do, which is to exercise their public powers in accordance with freedom of speech and the right to protect a good reputation.

Almost 50 years ago, when Parliament was debating the Race Relations Bill in 1965, two Conservative MPs tried to persuade the then Government to include religious discrimination in the Bill and to apply it to Northern Ireland. The Home Secretary—I think that it was Sir Frank Soskice—explained that the Northern Ireland Government had opposed the application of the Bill. Robert Chichester-Clark, the then Member for Londonderry, claimed that the safeguards against religious discrimination in the Government of Ireland Act 1920 were, in his words, “completely adequate”. Another Ulster MP, Captain Orr, insisted that Parliament had,

“set up a subordinate Parliament representing the people of Northern Ireland. Surely that is the place to test the matter”.—[ Official Report , Commons, 3/5/65; col. 971.]

I do not want to dig up unhappy memories of those 50 years and their consequences in the Province, but I suggest that we have to learn from that experience. If the Minister is unable to accept the amendment or to use the power conferred by Section 26(2) of the Northern Ireland Act, I would ask her to indicate what possible measure she proposes instead to guarantee the right to free speech as well as the right to a good reputation across the Irish Sea.

Photo of Lord Pannick Lord Pannick Crossbench 5:30 pm, 25th February 2014

My Lords, I have added my name to this amendment. I agree entirely with everything that has been said by the noble Lords, Lord Lexden and Lord Lester of Herne Hill. There may, of course, be some justification for the reluctance of Northern Ireland politicians to bring the law of libel into the 21st century; there may possibly be something unique about free speech and reputation in Northern Ireland that demands the retention of laws that purport to address communications but were developed before the internet, blogs and tweets and, in many cases, before the invention of radio and television—but I doubt it. No credible explanation has been provided as to why Northern Ireland law should remain in the dark ages. I very much doubt whether the Minister will be able to offer any substantive reason why changes in the law thought necessary across the House in relation to England and Wales are not equally necessary in Northern Ireland. In those circumstances, I am unimpressed by the argument that Parliament should do nothing because this is a devolved area. The Northern Ireland Executive and Assembly have had ample time to act and have done nothing.

In libel trials, counsel habitually refer to the biblical statement that a good name smells sweeter than the finest ointment. I have to say that I detect an unpleasant odour in the law of Northern Ireland, and I very much hope that the Minister will be able to tell the House that she is going to do something about it.

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative

My Lords, I must declare an interest in this subject as the executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

I have been involved in this issue throughout the process, since it first became apparent that there was a real problem in the debate that my noble friend led on this last summer, at the launch of the Private Member’s Bill by Mike Nesbitt in Belfast in September and in Committee on this Bill. Throughout that time, some powerful arguments have been put forward in favour of change, both here in Parliament and by civil society organisations in Northern Ireland, the media and academia among them. There have been strong arguments about the impact on jobs, to which my noble friend referred and about the impact on ordinary people who, in the phraseology of the mortgage adverts, could find their home at risk for something that they have simply written on Twitter or Facebook. There is the damage that could be done to the creative economy in Northern Ireland and to academic freedoms in higher education as well as the real dangers of media plurality.

We have heard many other arguments advanced today by my noble friend Lord Lester about the difficulties that the judiciary will face, and my noble friend Lord Lexden made reference to the difficulties that litigants will face, and those seeking to protect their reputation. So there have been many powerful arguments that in my view, given the gravity of the situation, should be met with equally strong ones as to why the new Defamation Act should not apply in Northern Ireland, particularly as this issue impacts on the most fundamental human rights—free speech. If there are arguments, we should hear them today, but all we have had is a deafening silence: silence from the Northern Ireland Executive and silence from the political establishment in Westminster, which I fear simply wants to shy away from the issue on the basis, as the noble Lord, Lord Pannick, says, that this is a devolved matter. In Committee, my noble friend the Minister majored on this point, comparing the situation in Northern Ireland with that in Scotland, missing the fundamental point that there is a different libel law in Scotland. That has nothing to do with devolution, but is to do with development of the common law that dates back many centuries. False comparisons such as that will not do. Deafening silences will not do, because freedom of speech for an important part of our United Kingdom is at stake.

Everyone respects the devolution settlement contained in the Northern Ireland Act 1998, and we all respect the logic of the Sewel convention, although it is, as the noble Lord, Lord Lester, said, just that—a convention, not a tablet of stone. Under the Northern Ireland Act, one of the excepted matters—those issues of extreme importance to the United Kingdom—is the constitution. This issue is at heart a constitutional matter because it impacts on the integrity of our legal system, on free speech—which is a fundamental constitutional right—on media plurality and on the ability of citizens to achieve redress of grievance. All those are undermined by the inexplicable actions of the Northern Ireland Executive.

Unless we recognise that point—that this is not a matter of legal arcana but an issue fundamentally about the integrity of policy and long-established freedoms—I fear where it will end. Already Northern Ireland is becoming an anarchic force in UK-wide media policy. It is opting out of defamation laws which in many ways will punish ordinary people and is clinging to an oppressive, outdated regime. It has, as we have heard, given no reasons for doing so. It has already opted out of the royal charter on press self-regulation, yet no reasons have been given. I can think of many reasons the Northern Ireland Executive might want to opt out of it, but no reason has been given by them.

A pattern of behaviour is appearing of a pick-and-choose approach to fundamental constitutional issues. I ask my noble friend the Minister what would happen if, when next we look at the issue of data protection, the Northern Ireland Executive decide not to adopt vital changes that have been made to that regime but instead legislate in a way which would undermine investigative journalism, on which democracy in Northern Ireland depends. Would the Government intervene at that point? What would happen if the Northern Ireland Executive decided to introduce a system of statutory press controls that would be wholly inimical to free speech? Would the Government intervene then?

I could continue with a list of these hypotheticals, but I think I have made the point that, by appeasing the Northern Ireland Executive on such a vital policy matter, the Government are sliding down a slippery slope that will help destroy Northern Ireland’s creative economy, destroy jobs and grievously undermine free speech. This issue is too important for the Government and, with respect, the Labour Party simply to say it is a devolved matter. If we maintain that approach, that will come back to haunt us in ways which we cannot imagine. The most regrettable thing of the lot is that it is the people of Northern Ireland who will pay the price.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP 5:45 pm, 25th February 2014

My Lords, defamation, in common with other civil-law matters, is a devolved area, so the law in Northern Ireland is indeed a matter for the Northern Ireland Assembly. As the Minister stated in Committee, it is essential that we all respect the devolution process—and part of that process is that you have different laws in different parts of the country.

Devolution in Northern Ireland permits the devolved legislature and Executive to develop policies that differ from those in the rest of the United Kingdom. Therefore it is only right and proper that the Northern Ireland Executive should have the opportunity to consult on whether or not the Defamation Act 2013 should apply to Northern Ireland. Indeed, the Minister of Finance and Personnel, Mr Simon Hamilton MLA, has already asked the Northern Ireland Law Commission to assess the Defamation Act 2013. The Northern Ireland Law Commission is an independent body and will undertake a complete public consultation on the issue so that the people of Northern Ireland will have an opportunity to contribute to the discussion. I am sure that noble Lords who have contributed to this debate will make a robust submission to the Law Commission.

As we have heard, currently Mr Michael Nesbitt MLA has said that he is to introduce a Private Member’s Bill. To date he has launched a consultation on the issue but as yet no detailed analysis of the responses he has received has been published. I understand that he is willing to pass these responses on to the Northern Ireland Law Commission. The law commission is a fully independent body and is not subject to the direction or control of the Assembly or Government. The Northern Ireland Finance Minister has made it abundantly clear that, as with any other law commission report, all recommendations will have to be thoroughly assessed with a view to making final policy recommendations.

It is only right and proper that the Northern Ireland Executive and Assembly be allowed time to receive this report and I trust that they will act in a responsible manner after receiving its findings.

Photo of Lord Carswell Lord Carswell Chair, Consolidation Bills (Joint Committee)

My Lords, the Defamation Act 2013 was wholly admirable legislation which righted and rebalanced the law of libel and slander in a thoroughly excellent way. It needed to be done and had been required for some time and I applaud the efforts of those who supported its enactment and who pioneered the hard work required to get it into legislation.

I cannot understand, and I can think of no sensible or acceptable reason, why the Northern Ireland Executive and Assembly have failed to adopt the Act and put it into effect. However, I have listened with great interest to what has been said today by the eloquent speakers who have supported the amendment and I have read what was said in Committee, when I was not able to be present, and I find myself in complete agreement with practically everything that has been said today about the desirability of Northern Ireland introducing the provisions of the Defamation Act.

I appreciate the kind sympathy that the noble Lord, Lord Lester of Herne Hill, has extended to the Northern Ireland judiciary, of which I was privileged to be part, although not in the litigation to which he referred in such affecting terms. I think it was after I had been translated to become a member of the Appellate Committee of your Lordships’ House and therefore I cannot speak about the rights or wrongs of that case or of any other particular litigation.

Notwithstanding all that I have said, I have concerns and reservations and I owe it to the House and to those noble Lords supporting the amendment to say why. This is a reserved matter, as the noble Lord, Lord Browne of Belmont, has reminded the House, and it is therefore devolved unless taken back by the sovereign Parliament. I accept—there is no doubt about it—that, in principle, this Parliament, as a sovereign Parliament, is entitled to override any part of the legislation and to enact this if it sees fit, if it thinks that it is a proper case to do so.

My concern is whether it is right, sensible or wise to intervene in this way with a reserved matter, however important or desirable it is that the amendment should be put into effect. Where are the limits to lie for the House taking such a step? Is it not dangerous precedence for us to do that, even with something as important and fundamental as this? I accept all that has been said about the importance of free speech and the subject matter of the amendment, but is it wise? Would it create danger; would it start a process? If we do this in relation to this Bill, where will it finish if other people try to press Members of either House to introduce similar legislation amending Northern Ireland law in reserved matters on less fundamental subjects?

I do not find it easy to answer such questions. I am concerned that, if we go down that road, it is difficult to see where it will take us. I would very much like to see the Northern Ireland Executive and Assembly adopting this without delay. It is time it was done briskly and expeditiously, but whether we should do it is another matter. It is with very real regret that I find it difficult to support the amendment, however important and desirable the result would be.

Photo of Viscount Colville of Culross Viscount Colville of Culross Crossbench

My Lords, I declare an interest as a producer at the BBC. I support this amendment and add my concerns to those of other noble Lords at the refusal of the Northern Ireland Executive to implement the Defamation Act 2013. I was sorry not to have been able to attend Committee but I read, with regret, the Hansard report of the Minister’s speech, in which she said she could do little beyond offering some encouragement for this to go forward.

The failure to implement the Act is having a deleterious effect on free speech in Northern Ireland. Even before the Defamation Act 2013 was implemented in England and Wales, Northern Ireland was particularly blighted as a place where free speech could flourish. The conservative nature of the libel judiciary in Northern Ireland means that a judge has to decide that a jury would be perverse to decide a libel case in favour of one party or the other. This sets the bar very high for the prompt resolution of disputes and allows a plaintiff to say that matters must go before a jury. As a result, trials are lengthy and expensive, whereas, in England and Wales, the judge can, at an early stage, determine the questions of fact about whether a statement is defamatory on a simple balance of probabilities test, which considerably shortens the process.

The disadvantages facing authors in Northern Ireland have been fully exploited by both politicians and putative plaintiffs. The BBC is one of the few organisations big enough to defy the threats of those who want to chill free speech and stop investigative journalism. My indefatigable and courageous colleagues who work on Northern Ireland’s investigative programme “Spotlight” find themselves under attack in a way that is hard to believe in the rest of the UK.

I cite two recent cases. In October 2012 “Spotlight” broadcast a programme called “Belize Oil” which investigated the business affairs of Susan Morrice, a Belfast-born businesswoman, now based in Denver. She raised money for an oil exploratory company called International Natural Energy. Astonishingly, the company struck oil in Belize and made millions of dollars. However, the class B shareholders—many from Northern Ireland—who were not professional investors, did not receive a penny in dividends. They sued Ms Morrice, who was found guilty in a Caribbean court of having siphoned off thousands of pounds of company money for her personal use.

As the programme was being prepared for transmission, the journalists involved were bombarded with daily, sometimes hourly, threats of defamation. After transmission, a libel writ was issued against the programme. Tens of thousands of pounds of licence payers’ money was spent as BBC journalists and lawyers prepared the defence case, only for Ms Morrice to drop the case. This is the woman who has Northern Ireland’s gas and oil exploration rights.

Likewise, in July last year “Spotlight” transmitted a programme looking at the history of a housing maintenance company, Red Sky, which lost its contract with the Northern Ireland Housing Executive. The company had been accused of poor workmanship and charging for work that it had not done. Prior to a meeting of the housing executive to reconsider the ending of the company’s contract, a DUP member of the executive, Jenny Palmer, told BBC’s “Spotlight” that the DUP Social Development Minister Nelson McCausland’s special adviser had put pressure on her to change her vote at a key housing executive board meeting and to vote in favour of extending the firm’s contract.

“Spotlight” made public part of an e-mail from the leader of the DUP, the First Minister, Peter Robinson, which was sent to the BBC prior to transmission. The e-mail warned the BBC that if it went ahead and broadcast the criticisms levelled against him in the programme, he would instruct a lawyer to begin libel action against the BBC. The programme was transmitted and included criticisms of him, but he did not follow up on that threat. Yet again, thousands of pounds of licence payers’ money was spent to defend the threat of that libel action. All the people I have spoken to felt sure that the public interest defence in Clause 4 of the Defamation Act would have been a great foil against those threats. Newspapers in Northern Ireland publish some brave reporting, but they do not have the power and the money to be able to defend themselves against those threats in the same way as the BBC.

It is not just the big media organisations which suffer the chilling effect on free speech from the libel laws of Northern Ireland. I have spoken to lawyers who read books for small publishers in the country to advise on possible libel risk. They tell me that, in Northern Ireland, the threat of libel is so great that they raise many more points of libel risk than they would when advising on publication in the rest of the United Kingdom.

As noble Lords have pointed out, there is no substantial political opposition in Northern Ireland, so in no other part of the United Kingdom is it so important that the media scrutinise the actions of politicians, yet this is the very place where they find it so hard to do so. I say to the Minister: now is the time to ensure that the major provisions of the Defamation Act are implemented in Northern Ireland, in the interests of transparency and democratic accountability.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 6:00 pm, 25th February 2014

My Lords, I hesitated as to whether or not to intervene, as my experience of devolution is in regard to matters relating to Scotland, but I have also had experience in the UK Supreme Court of devolution matters relating to Wales. I think it is right that I add a word of caution in support of what the noble and learned Lord, Lord Carswell, said. The amendment seems to me to raise a constitutional issue not quite in the terms suggested by the noble Lord opposite. The issue is really how one balances the structure of the devolved legislatures powers between what is reserved and what is devolved.

In Scotland, the language is different. As noble Lords will know, the position is that matters open to any legislation are called reserved matters. In Scottish parlance, what we have been talking about here is a devolved matter, which would be a matter for the Scottish Parliament. It is well established by convention that it is not open for Westminster to enter into legislation relating to devolved matters unless there is a Sewel convention which permits that. It is arranged with the Scottish Parliament and a Motion is passed through the Scottish Parliament that approves of the measure that this House or the other place seeks to pass. That is well established and happens quite frequently. It helps one get over the difficulties of demarcation, if there be any.

I am certain that north of the border—I am talking about Scotland, on this side of the Irish Sea—to use the word alarm would be to put it rather softly. It would be regarded as quite offensive for Westminster now, having devolved matters, to tell the Scottish Parliament how it should deal with an issue such as this. I make absolutely no comment on the nature of defamation law in Northern Ireland; that is not the issue. The question is whether it is really properly open to this House to engage with the matter, given the nature of the devolution arrangement which both Houses have approved and which is in legislation. As was suggested, there are other mechanisms for bringing about reform of the law. It may be extremely frustrating that it would take so long, but the Law Commissions exist to take these matters on board. Unpalatable though it may be, I would respectfully suggest that the advice of the noble and learned Lord, Lord Carswell, is absolutely sound. It would be most unwise of this House to disregard it.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

Before the noble and learned Lord sits down, I wonder whether I could just ask this question. Given that the European Convention limits the powers of the devolved institutions in Scotland and Northern Ireland and given that it expressly empowers the Secretary of State to require action if inaction would lead to a breach, would it not therefore be the case that it is within the competence of the Executive in London, and if necessary the Parliament in London, to secure compliance with the convention rights to free speech and a good reputation?

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

The noble Lord is quite right that the powers of the Executive are controlled by convention rights. The legislative competence of the Parliament is controlled in the same way and it is open to a court to pronounce an affirmative order requiring a member of the Executive to do something. There are mechanisms, and these would be put into place through the existing devolved system. This is something that could be arranged, but that is quite different from what is being suggested here, which is, without that background and without that attempt being made, to simply legislate from this House. I underline the caution which is being properly urged on the House by the noble and learned Lord.

Photo of Lord Bew Lord Bew Crossbench

My Lords, I rise to support a central point made by the noble Lords, Lord Lester and Lord Black, concerning the way in which the current arrangements contain the possibility of great unfairness and difficulty for the Northern Ireland judiciary. I am a supporter of the Defamation Act 2013 and, as noble Lords have said, I served on the Select Committee of both Houses. Put aside for a minute the wisdom or otherwise of that Act—and I do believe it is a wise Act—the problem for the Northern Ireland judiciary is that it is now stuck with the interpretation of an antiquated law, while the rest of the United Kingdom, in particular the media, will be operating fundamentally according to a rhythm set by the Defamation Act 2013.

I want to make a further point concerning the issue of forum shopping, or, as it applies in the Defamation Act, libel tourism. The Northern Ireland judiciary in recent cases—I am thinking particularly of the ruling by Mr Justice Deeny in the Sean Quinn case on 10 January 2012—has clearly set itself against what we might call forum shopping. Mr Justice Deeny argued that that key, very important bankruptcy case was not suitable for Belfast on the grounds that Mr Sean Quinn had had his being and his residence in the Republic of Ireland for the previous 32 years. That is a clear indication of the broad thinking of the Northern Ireland judiciary on this question of forum shopping. In the case of the libel law, it is the issue we used to know as libel tourism, which the Act is designed to deal with. So we know to some degree where the thinking of the Northern Ireland judiciary is on this question.

There is a sense within European law in general that forum shopping is not something to be encouraged, and yet Northern Ireland is stuck with legislation—our old libel law—which actually encourages forum shopping. I am just trying to bring home to the House that the point made by the noble Lords, Lord Lester and Lord Black, is actually a profound one. The judiciary of Northern Ireland is being placed in an extremely difficult position by the current arrangements. I understand the point made by the noble Lord, Lord Browne. I have already been approached by the Law Commission and I assure him that I will give as full evidence as I possibly can to it.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My Lords, I hesitate to intervene in something on which such distinguished legal brains have been brought to bear but, briefly, as a layman in these matters, I am very impressed by the arguments made by the noble Lord, Lord Lexden, and the power of the argument about the desirability of uniformity in the application of defamation laws. The noble Lord, Lord Browne, said that the advantage of devolution is that we can all make different laws. However, as a good unionist he will know that it is very desirable that as a union we stick together as closely as we can and do not make a principle of establishing every different law that we can between the different parts of the United Kingdom.

As a loyal member of the United Kingdom, I think it is desirable that the Executive of Northern Ireland should look at these matters as it seems that they are likely on some occasions to significantly disadvantage some of their own supporters, who might find themselves caught up in some very unfortunate implications. Although there is the devolved power, that power should be exercised also with respect to the position of other parts of the United Kingdom, which may find from the illustrations given by the noble Lords, Lord Black and Lord Bew, that these are difficult matters.

I hesitate to deviate from the noble Lord, Lord Lester, as he and I have a bit of history as well in some areas, as anybody will know who remembers the broadcasting ban or the amazing events when the chief constable decided to deprive female constables of the right to carry arms. The noble Lord, Lord Lester, was active during my time in that area.

At the end of the day, I am not quite clear from the exchanges that have taken place whether this is just genuine inertia or whether there is a fundamental objection within the Executive to doing this, thinking it totally undesirable in Northern Ireland, and exactly what the background to this is. However, I am prepared to accept that it is the determination of the Executive to address this, although they are moving very slowly. That is the most preferable way to go in terms of what the noble and learned Lord, Lord Carswell, said, and not to get caught by being unnecessarily accused of trying to undermine the devolution proposal. The message should go out very clearly from this House that we think this is highly desirable and almost essential to do. We look to the Executive to do it as speedily as they can and bring this matter into line, without imposing it in the amendment as proposed.

Photo of Lord Trimble Lord Trimble Conservative

My Lords, the great advantage of this debate is that it has enabled a wide range of people across the House to express their views on the desirability of extending the modern defamation law to Northern Ireland. I very much hope that the Northern Ireland Executive will pay attention to the views that have been expressed here. There has been no argument presented in favour of retaining the old, outdated laws. I have not heard any and, from what has been said, I gather that nothing has been said by the Northern Ireland Executive to explain what is going on. The noble Lord, Lord Browne, referred to the decision inviting the Northern Ireland Law Commission to look at the matter. I hope that will happen quickly and that it indicates that action is being taken, rather than something being done just to fend off criticism. I hope that something happens there.

I must also attach significant weight to the hesitation and reservations that have been mentioned. The noble and learned Lord, Lord Hope, referred to what might happen in Scotland if this was to happen. That brought back to mind what happened in Northern Ireland in, I think, 1923, when on a certain measure London was indicating that it was likely to override the decisions being taken by the then Northern Ireland Ministers. I think it was suggested that they might seek to withhold Royal Assent from legislation that was going through Stormont, and the then Northern Ireland Prime Minister made a very robust response to that. It was of such a nature that the proposal disappeared and there was then no attempt to interfere with the exercise of devolved powers.

What also comes to mind in dealing with the question of the power of this Parliament to legislate on devolved matters, whether for Wales, Northern Ireland or Scotland, is that that power did exist with regard to the old Stormont under the Government of Ireland Act. I remember an article—do not ask me for chapter and verse on this—written maybe in the late 1950s or early 1960s by Francis Newark, professor of law at Queen’s University, in which he referred to this power to legislate, which was an expression of the sovereignty of this Parliament, as being a provision to be brought out only in an emergency.

That was before we had our Troubles and I rather suspect that looking at these provisions now one would see them as being applicable not just in an emergency but in other circumstances as well. The noble and learned Lord, Lord Carswell, was quite right to point out that this is something that needs consideration. It is my impression that this amendment has been put down in order to produce this debate in the hope that what is said will have an effect. However, the message should be taken back to the Northern Ireland Executive that if they are not going to act on this in a responsible way that maintains a broad measure of parity on matters—because the matters stretch across the whole of the country there is a need for parity—they are exposing themselves to the prospect of something happening.

I notice particularly the provision that the noble Lord, Lord Lester, referred to under Section 26 whereby the Secretary of State can require things to be done in order to secure adherence to the conventions. I urge the Minister to take back to the Secretary of State for Northern Ireland that there is quite strong feeling on this matter in this House and that she should seriously contemplate that power and how it might be used, even if only as leverage.

Photo of Lord Empey Lord Empey UUP 6:15 pm, 25th February 2014

My Lords, nobody could doubt that this debate has been very wide-ranging. The contributions from our noble and learned colleagues and others have made us realise that the matters we are discussing are of very great significance.

There are a number of easy solutions. Obviously, the Executive can act at a far greater pace than they are at the moment. However, there has been a change in the past few months with the change in Finance Ministers at Stormont. Mr Hamilton’s predecessor was very dismissive of any actions being taken in this matter; Mr Hamilton has asked the Law Commission to intervene. The Private Member’s Bill that Mr Nesbitt has before him has had his consultation and he has undertaken to share that consultation with the Law Commission. I believe he met it last week and reassured it that that would still be the case.

However, there has been a change in the pace at which this consultation is going. Originally we thought it would be brief and to the point because this issue has been consulted on time after time. However, I am now hearing stories that there is going to be a scoping study and then there will be a consultation by the Law Commission on top of the consultation that has already taken place in the Private Member’s Bill, on top of the consultation on the 2013 Bill. By my very rudimentary calculations, that would take the issue outside of the current Assembly’s mandate, which ends in 2016. What could be an easy solution could in fact simply kick the can down the road.

There is no question that those of us who have had the privilege of being in Stormont know that the issues raised by the noble and learned Lords, Lord Carswell and Lord Hope of Craighead, are important. By any stretch of the imagination, the easiest solution is for Stormont to deal with this itself. However, the noble Lord, Lord Lexden, and his colleagues point to the wider obligations of the United Kingdom Government and the issue of free speech and human rights. Of course, human rights have an international obligation, which is excluded from the devolution settlement and reserved to Westminster.

Pressure and sentiments have been expressed on all sides of this House. I hope that in their winding-up statements both the Government and the Opposition will encourage an early resolution to this, rather than simply going on and on with consultations for years. The truth is, and the noble Viscount, Lord Colville, made this point, that there are a few schoolyard bullies back in Belfast who regularly threaten people who speak their minds.

We have not mentioned today the other issue of academic publication, which is vital. Having had some responsibility for that, I know that there are many good researchers. We encourage research; indeed, we want to find even more money to put into research, only to find that the researchers could be prevented from actually publishing their findings. No one wants us to be in that place.

There is a simple solution to this, and I hope that the pressure from all sides in this House will direct us towards the solution, which is for the Northern Island Executive to encourage the Assembly to pass a legislative consent Motion. Alternatively, if that opportunity has now passed, the Assembly has the Private Member’s Bill in front of it; it could take over that Bill and introduce it very quickly. That is the course of action that I hope it will follow.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, I had not intended to speak in this debate, but when I heard the speech of the noble Lord, Lord Browne, and the reservations of the noble and learned Lords, Lord Carswell and Lord Hope of Craighead, I felt that it was important to address the question of devolution and what the devolution doctrine means. It does not seem to be admissible of an entirely legal constitutional interpretation. It does not seem to be a matter of saying, “We’re devolved; we don’t have to give any kind of explanation to anyone for what we do. We can simply make arbitrary decisions”. It was not ever intended for that purpose. It was intended in general terms, and in particular in

Northern Ireland, to ensure that decisions were made on a cross-community basis that ensured that the governance of Northern Ireland took into account the particular circumstances of Northern Ireland and its particular needs—domestically, within the United Kingdom, in relation to the Republic of Ireland and in relation to its relatively remote status. There are many areas where devolved government appropriately makes different decisions because, in terms of education, healthcare, transport or agriculture, the situation is different economically, practically, culturally, socially or whatever.

In certain circumstances, the notions adumbrated by the noble and learned Lords, Lord Carswell and Lord Hope, are completely correct, and their cautions in those circumstances would be well taken. The purpose of devolution is to enable that kind of differentiation. However, no reason has been given by the Northern Ireland Executive for this delay and for holding back. The noble Lord, Lord Browne, very appropriately supported his party in its decision on this matter, but even he did not give any good reasons why he should not fall in with the operation of the new Defamation Act in the rest of the United Kingdom. Nor, as far as I am aware, has there been any public debate at home in Northern Ireland, any indication that an agreement has been reached or any reasons adduced why we should not move forward—on the contrary, there has simply been an arbitrary decision that we are not going to go ahead on this. Then—and the noble Lord, Lord Browne, presented this in a very positive way—we will have this local consultation. That is fine if it is to ensure that there is real local difference, but it is not fine if the consultation kicks the issue into the long grass, and there is a suspicion that that is what it is all about.

On top of this, there are those circumstances where one can appropriately seal off Northern Ireland, as it were, to deal with particular issues. Animal health might be one. However, this issue cannot be dealt with in an isolated fashion. The whole point is that publication, whether digitally or in hard copy, cannot be isolated within Northern Ireland, and it puts everyone at risk if one tries to do that inappropriately.

I therefore want to emphasise that, although I appreciate the reasonable cautions, it does not seem to me that devolution is meant to enable the local devolved Executive to make arbitrary decisions without explanation or clarity, or decisions that are simply inappropriate to the circumstances. Then the question comes of how we deal with this. Do we deal with it by simply slamming something through this evening in your Lordships’ House and leaving somebody else to pick up the pieces—political or legal? I think not, but my noble friend Lord Trimble has pointed in the right direction. That is to say, whatever the limited remaining powers and opportunities of the Secretary of State for Northern Ireland, one of the opportunities she has is to take the messages from this Palace to the Stormont Administration and say to them, “Do you realise how strongly people in the rest of the United Kingdom feel about this? They are not terribly accepting of the notion that you are going to take a whole lot of time to deal with this. If you want to take a little time to tweak it or for your own particular reasons, that may well be acceptable”. However, I would be assured and reassured by the Minister, not if she were to say that she was going to accept this—because I am sure that she is not going to be in a position to do that—but if she were able to say to us that the Secretary of State, her right honourable friend, will take seriously what has been said in your Lordships’ House tonight, convey that to the Northern Ireland Executive at the most senior levels, and ensure that the matter is taken seriously and expeditiously.

Photo of Lord McAvoy Lord McAvoy Opposition Whip (Lords), Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland)

My Lords, this has been a wide-ranging debate with speeches of quality. It further justifies the existence of this place, where such a measured debate can be held. The noble Lord, Lord Lexden, cited journalists as one of the main reasons why he was bringing this forward. I could think of many other occupations that have inspired more sympathy and understanding than journalists, but I take the point that he made. On a totally irrelevant point—and it is a good job that there is not a Lord Speaker to rule me out of order—I noticed that the noble Lord, Lord Lexden, invariably sits in a seat below the coat of arms of a former stadholder of Holland, better known as William III. I am sure it is entirely coincidental, but it many ways it is quite appropriate.

This is the second lengthy discussion we have had on this issue and I am sure I will be shot down in flames with my intervention, but there we are. I will repeat the point I made in Committee—that the extension of the Defamation Act is a devolved matter. I know that the noble Lord, Lord Alderdice, made a powerful point about the nature and state of devolution as a principle, and it is a principle. Nevertheless, I place on record immediately that the Labour Opposition favour the introduction of the Act as quickly as possible and will seek assurances from the Minister as to how she intends to pursue that matter.

It is clear that the extension of the Defamation Act 2013 to Northern Ireland stands firmly in the competence of the Stormont Assembly. It is through the Assembly’s passing of a legislative consent Motion, not an Act of Parliament, that the Defamation Act 2013 will come into force in Northern Ireland. The noble Lord, Lord Lester of Herne Hill, said, if I am picking him up right—and, as a former forklift truck driver in a factory, I hesitate to cross legal swords with him—that devolution was a flawed principle. As a lay person, I do not understand the concept of attacking it on that basis. A free Parliament passed that law; a free Parliament passed devolution and a free Parliament has a right to make mistakes and will make mistakes, as the noble Lord, Lord King, knows well. The principle of devolution was passed by a free Parliament, and we in the Opposition recognise that and are very reluctant to get involved in laying down the law to a devolved Assembly. The noble and learned Lord, Lord Hope of Craighead, quite rightly mentioned the reaction in Scotland if London—in parentheses, England—tried to “dictate” to the Scottish Parliament on a devolved issue. We can have legal debates and highly principled debates here but, if we do not understand the nature of the political impact of the things that we try to do, that would be a flawed approach.

I state again clearly that we would push to see the Defamation Act 2013 extended to Northern Ireland. Those wishing to see the extension of the Act should be heartened and encouraged by the level of debate here because, quite rightly, no one has attacked the principle of the Defamation Act being applied to Northern Ireland. There will always be different laws in different parts of the United Kingdom, which is surely its strength, and devolution is part of that.

Certainly the Executive who or Assembly that completely ignored the reasoned, well made points made here in favour of pursuing this would be very foolish. It is absolutely right that the noble Lord, Lord Browne of Belmont, reminded us of devolution. It was useful to have that reminder, because it shows that local reaction to dictation from London is seen as dictation from England. The noble and learned Lord, Lord Carswell, also indicated the need for caution in going about these things. It is very important that that was local opinion being brought to bear on this debate.

Reference has been made, as it should be, to Mr Mike Nesbitt’s Private Member’s Bill. There are accusations that the consultation is being deliberately delayed. The message should go out from here: “We want to see you get on with it”. The consultation garnered over 200 responses—a large number—of which around 90% were positive. It was also mentioned that the current Northern Ireland Finance Minister, Mr Simon Hamilton, has also asked the Northern Ireland Law Commission to examine the issues surrounding defamation law within Northern Ireland. While some have expressed concerns over the timetabling, surely that shows that clear and active consideration is now being given to the extension of the 2013 Act.

Several noble Lords, including the noble Lord, Lord Bew, gave illustrations of why the introduction of the law in Northern Ireland would be good. The noble Lord, Lord Empey, confirmed that as well. If we have an influence—and I believe we do—it is that your Lordships’ House is a House of Lords that tries to influence opinion within the United Kingdom. The Assembly that and Executive who ignored that would be a very brave one, because discussion here does reflect public opinion in Northern Ireland. That also builds on the reference that the noble Lord, Lord Kilclooney, made to growing dissatisfaction and disillusionment with the Assembly. The message is clear: listen to the people and act in their interests.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales 6:30 pm, 25th February 2014

My Lords, I know that the concerns expressed so eloquently by my noble friends Lord Lester and Lord Lexden are shared widely across the House. That has been obvious from the debate today. There can be no doubt, either in Westminster or in Stormont, about the strength of concern felt by many noble Lords about the failure so far to reform the law on defamation.

Many organisations and individuals have also highlighted concerns about the possible effects of there being differences in the law between Northern Ireland and England and Wales. For example, the noble Lord, Lord Bew, referred to the problems for the judiciary in trying to deal with an out-of-date law and the noble

Lord, Lord Black, and other noble Lords referred to the impact on the media. As we have heard, there has been an active campaign in Northern Ireland involving civil society organisations, academics, the media and some political parties. It is not quite true, as the noble Lord, Lord Pannick, implied, that nothing has happened since the Defamation Act was passed here. Things have moved on in Northern Ireland. There have been responses; they just have not been very fast or gone very far. It is not true to say that nothing has happened, because the campaign has certainly had an impact. The noble Lord, Lord Browne, outlined that there is action now in the Assembly, both by Mike Nesbitt and with reference to the Law Commission. Some scepticism has been expressed about whether this will lead to a result or whether it is just a delaying tactic by the Executive. I will not speculate on that, but I put it to noble Lords that the Law Commission is a well-respected, expert institution and if there were any intention to use the commission to avoid the issue, it seems to me that that would be likely to backfire. We have also heard about the consultation and the Private Member’s Bill brought forward by the leader of the Ulster Unionist Party, Mike Nesbitt. Undoubtedly his consultation produced some valuable responses and information. These are real changes and developments that have happened in Northern Ireland since the Defamation Act was passed here.

As I have said on previous occasions, the Government believe that the Defamation Act makes some very important improvements to the law that was previously in place. It introduces a tougher serious harm test to discourage trivial claims and a single publication rule so that a publisher cannot be repeatedly sued about the same material. It addresses libel tourism and prevents claims being brought in the English courts where the parties have little connection to this country. It provides simpler and clearer defences to those accused of defamation—for example, the creation of new statutory defences of honest opinion and truth and a new statutory defence for publications on matters of public interest. The Act also takes specific action to help encourage robust scientific and academic debate. It is important that those improvements and advantages are emphasised time and again as that is the way in which the Executive in Northern Ireland will be encouraged to develop their own legislation on this and to adopt the Defamation Act for themselves.

The noble Lord, Lord Lexden, asked some specific questions. It seems a very long time ago now but it is important that I respond to them. In response to his first question on whether the Government will secure a public explanation from the Executive of their inaction, I repeat that this is a devolved issue and it is important that we respect that devolution. However, that does not mean that the UK Government have not asked the question and would not appreciate an explanation.

Photo of Lord Lexden Lord Lexden Conservative

Assuming that the question has been asked, should the House draw the inference and the conclusion that no answer has been given to the Government—no answer to the people of Northern Ireland, no answer to those in this House who have raised the question, and no answer to the Government either?

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

It has been said several times this afternoon—more times than I can count—that the Northern Ireland Executive have not given any explanation. Of course, the most important group to which the explanation is owed is the people of Northern Ireland.

The second question asked by the noble Lord was whether we would establish what the Executive intend to do. I repeat that it is for the Assembly and not the Government to hold the Executive to account, and it is for the Assembly to seek an explanation. That goes along with my comment that the people of Northern Ireland are those to whom the Executive should be explaining themselves in the first instance.

In response to the third question put by the noble Lord, Lord Lexden, we have of course set out to the Executive what we see as the benefits of the Act and we will continue to discuss the issue. When my noble friend Lord McNally was Minister for Justice, he wrote to the Executive commending the Act, and I am absolutely sure that the Executive will in due course become aware of our debate this afternoon.

Therefore, the Government have been active in encouraging the Executive to consider the need for change. Prior to the introduction of the Defamation Bill before Parliament, there was contact at official level to establish whether the Executive wished to seek the approval of the Assembly to a legislative consent Motion. Following completion of the Bill’s passage, as I said, my noble friend Lord McNally wrote commending it to the Executive.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My noble friend has emphasised the importance of the Law Commission in Northern Ireland. Can she correct my misunderstanding, if that is what it is? My understanding is that the Northern Ireland Law Commission consists of a part-time commissioner and a chief executive, and that is it. Am I wrong about that?

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

I am not aware of the exact size of the Law Commission. However, I am aware that the Law Commission’s reputation is not affected by any issue regarding its size, in that it is clearly a body with a good reputation. If the commission is as small as my noble friend indicates, that might explain why it will take it some time to consider this issue. However, I am not able to give a precise answer to his question.

I wish to remind noble Lords that the civil law of defamation is of course a devolved matter, and under the Sewel convention decisions on whether legislation in transferred areas should apply to Northern Ireland usually fall to the devolved Administration. A number of noble Lords have set out why they believe the Government should consider breaching the Sewel convention. I urge them to consider the wider ramifications of doing so for our relations with all the devolved legislatures in the United Kingdom. I welcome the words of the noble and learned Lords, Lord Carswell and Lord Hope, in this regard. It is important that we respect devolution. It is not just in respect of Scotland that we should be wary of breaching the Sewel convention; I believe that it would be destabilising in Northern Ireland if we were to pick and choose which bits of devolution we decided to observe. My noble friend Lord Lester has eloquently explained the weaknesses of our non-federal system of devolution, but I urge noble Lords who are of the mind that we should breach the Sewel convention to look at this from the viewpoint of the nations of the UK. We should be considering what it looks like from Scotland, Wales and Northern Ireland if we pick and choose which aspects of devolution we observe.

I turn now to the comments of the noble Lord, Lord Black, who asserted that this was a constitutional issue and hence not devolved. I fear that the problem cannot be defined out of existence in this way: the issue is clearly a devolved one, as part of the civil law. The fact that it raises significant rights issues does not change that. We recognise the concerns involved, but we cannot abandon the principle of devolution just because we deplore the decisions of the devolved Administration concerned. I will return to that in my response. I say also to the noble Lord, Lord Black, that the Data Protection Act is a reserved matter and not devolved, so the Assembly can only legislate with our consent. We carefully consider the content of Assembly Bills in the reserved field.

My noble friend Lord Lester raised issues connected with human rights, namely the power in Section 26 of the Northern Ireland Act 1998. I urge noble Lords not to assume that the previous law breached the European Convention on Human Rights. It might not have been good law, but it did not necessarily fail on the human rights test. I believe that the new Act will be very beneficial; but that does not mean that the previous legal framework necessarily was in breach of international standards on freedom of expression. Even if that were the case, the Secretary of State does not have any general power in the Northern Ireland Act 1998 to make the Assembly or the Executive do something on human rights grounds. Under Section 26(2), she may order a Northern Ireland Minister to do something to implement international obligations. However, if noble Lords refer to Section 98 of the same Act they will see that “international obligations” means,

“any international obligations of the United Kingdom other than obligations to observe and implement Community Law or the Convention rights”.

I turn now to other points made in the debate. As we have heard this evening, there is considerable activity in Stormont and some reason to be optimistic about the chances of legislative change. To the noble Lord, Lord King, I say that the issue we face is to decide at the start what is to be devolved and then make sure we adhere to that decision; otherwise, we are picking and choosing and chopping and changing. It may or may not be appropriate to have devolved the issue of defamation, but it is devolved and we need to observe that now. The reason why I say that it might or might not be appropriate is that, as the noble Lord, Lord Alderdice, has pointed out, we cannot seal Northern Ireland off on this issue. When one analyses the devolution settlements, it is often the case that aspects have been devolved which clearly involve an interaction with neighbouring countries. However, once it has been decided, we have to observe that.

Devolution is sometimes frustrating, as the noble Lord, Lord McAvoy, said. The noble Lord, Lord Alderdice, noted earlier this afternoon that social change comes slowly in Northern Ireland. It is important to bear in mind that although change sometimes comes slowly, it does come in the end. Devolution means that there are different laws in different parts of the country. We must respect that, but that does not mean that we are not entitled to make our views known. I believe that the Government have made their views very clear on this issue. Noble Lords have certainly made their views known today, and I hope that they have been heard by the Northern Ireland Executive.

I can tell the noble Lord, Lord Trimble, that the Secretary of State takes a close interest in our debates on this Bill. I have absolutely no doubt that she will convey the content of our debate and the views expressed today to Members of the Northern Ireland Executive. I know that she is in very frequent contact with both the First Minister and the Deputy First Minister and that she will wish to pass on the views expressed here today.

Photo of Lord Kilclooney Lord Kilclooney Crossbench 6:45 pm, 25th February 2014

Very briefly, I agree with everything that the noble Baroness has said about caution in dealing with the devolved Assembly. She has mentioned the Deputy First Minister, but what has been ignored in this debate is that he is in fact a Sinn Fein Deputy First Minister. Sinn Fein is the second largest party in the Assembly and has absolutely no time or respect for the House of Lords. To think that it is paying any attention to what is being said in this House would be misleading.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

However, as was pointed out earlier this afternoon, Sinn Fein has a considerable interest in promoting free speech in Northern Ireland. I believe that my noble friend Lord Lester referred to the noble Lord, Lord Pannick, in that regard, as the two of them had worked together in relation to the broadcasting of Sinn Fein. It has an interest in the issue, but that probably goes beyond our debate.

I welcome the continued efforts made by the noble Lords, Lord Lester and Lord Lexden, on this issue. I am pleased that we have been able to continue our debate on this matter but regret to say that the Government are unable to support the amendment. I therefore urge the noble Lord to withdraw it.

Photo of Lord Lexden Lord Lexden Conservative

My Lords, this has been a tremendous debate and I am deeply grateful to all those who have taken part in it with such vigour and authority. I reassure the noble Lord, Lord McAvoy, that it is purely a matter of coincidence that I so readily sit under the arms of the House of Orange. I must say at once that the views of certain members, particularly of the monarch of the House of Orange in the 17th century, played no part whatever in the views that I have formed.

The noble and learned Lord, Lord Carswell, in his particularly powerful speech spoke for us all when he urged the Executive to adopt the Defamation Act, and to do it quickly. Our debate was also enriched by his cautionary words, and those of the noble and learned Lord, Lord Hope, on the Sewel convention. Clearly that needs to be borne carefully in mind. As my great friend, the noble Lord, Lord Empey, said, the Government must be mindful of their wider obligations. That is the note on which we need to end.

My final question is this: if the Northern Ireland Executive fail to pursue this matter properly, what further action will the Government take? That is the note on which we should end. I have constituted myself into a kind of watching brief on this matter and I shall seek opportunities, by one means or another, to raise this fundamentally important issue from time to time in the House. I hope that we shall be able to note progress: it is extremely important that we keep a watching brief on it. On that note, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by Lord Trimble

4: After Clause 25, insert the following new Clause—

“Election of the First Minister

(1) The Northern Ireland Act 1998 is amended as follows.

(2) Omit sections 16A (appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election, 16B (vacancies in the office of First Minister or deputy First Minister) and 16C (sections 16A and 16B: supplementary).

(3) Before section 17 (Ministerial offices) insert—

“A17 First Minister and deputy First Minister

(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and deputy First Minister.

(2) Each candidate for either office must stand for election jointly with a candidate for the other office.

(3) 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.

(4) The First Minister and 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.

(5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office—

(a) during any absence or incapacity of the holder; or

(b) during any vacancy in that office arising otherwise than under subsection (7)(a); but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding six weeks.

(6) The First Minister or the deputy First Minister—

(a) may at any time resign by notice in writing to the Presiding Officer; and

(b) shall cease to hold office if he or she ceases to be a member of the Assembly otherwise than by virtue of a dissolution.

(7) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other—

(a) shall also cease to hold office at that time; but

(b) may continue to exercise the functions of his or her office until the election required by subsection (8).

(8) Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.

(9) Standing orders may make provision with respect to the holding of elections under this section.

(10) In this Act “the pledge of office” means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4).””

Photo of Lord Trimble Lord Trimble Conservative

My Lords, we have reached the final strait and I shall try to get round the track as quickly as possible, and not delay those who are coming to debate other matters later.

I tabled Amendment 4 for the Committee, but unfortunately when it sat I was out of the country and unable to express my views on that occasion. However, I am delighted to see that the noble Lord, Lord Empey, made an excellent exposition of the issues involved, so I will not go back into that history. I want to focus more on what might be coming up in the future. Before moving on to that, it is important to remind noble Lords of the position as it was under the Belfast agreement—the Good Friday agreement—and as it was changed later, not as part of the St Andrews agreement but in some other way.

The key thing for noble Lords to bear in mind about the provisions in the Good Friday agreement is that there was a provision for the joint election of First Minister and Deputy First Minister, which means that a ticket had to be formed. There had to be an agreement on who would stand. A six-week period for this to happen was provided, but because it was a joint ticket and there were six weeks in which to do it, there was the opportunity for the largest party on the nationalist side and the largest party on the unionist side to interact; they had to come to an agreement. There were opportunities for views to be expressed about who might be the nominees.

In 2006 we had provisions that swept that away and provided for a mechanistic provision whereby the various provisions rather obscurely expressed in the legislation would apply, and it would be possible to identify immediately who should be First Minister and Deputy First Minister. This was to be done within a matter of days; I think that a week was provided for it. It was to go through automatically. I will not discuss what the motivations for that might have been.

I will look at the future and pick up the very important point made by the noble Lord, Lord Kilclooney, that because of the way in which the Administration has carried on there is widespread dissatisfaction and disillusionment, and, in my interpretation of what he said, that is likely to have an impact when we next have an Assembly election. Participation rates in Assembly elections have been dropping. They will continue to drop. The drop will be felt most among people who feel dissatisfied about inaction. There are those who are feeling sore because they believed in the Democratic Unionist Party when it attacked the agreement and who then felt disgruntled after it decided that it was going to implement the Belfast agreement with merely cosmetic changes, as well as the significant change in identifying the First Minister and Deputy First Minister.

This opens up a very serious possibility, which I think that we need to be on guard against. It is possible that, as a result of declining participation, especially by working-class unionists, we will find that the unionist vote drops to a point where Sinn Fein becomes the largest party. The DUP will do what it has done before, running a campaign that says, “Vote for us, or else you will get a Sinn Fein First Minister”. It has done that several times—so often that it is not likely to carry much weight anymore. People can see that they were given this argument and then saw the results from the elections, which showed that the argument had no substance to it. So I am afraid that “Wolf” has been cried too often on this.

I am very concerned that we could find a situation where, because of the fall-off, particularly in working-class unionist votes, a Sinn Fein First Minister is automatically catapulted into office in a matter of days, with no opportunity for people to stop and think or consider where they have got to. Then you will find that working-class unionists who did not vote will express themselves in other ways. People talked earlier about things that might destabilise Northern Ireland—well, look at this. The possibility is there. That is what I want to draw to the attention of the Minister and the House. Because of the structures put in place in 2006, there is a very real danger looming.

One will do what one can to avoid it, by pointing out that in Assembly elections it is important for people to vote down the ticket and express their preferences as they wish, but nevertheless to vote for a wide range of candidates so as to minimise the impact that there might be of this. It would be better still if people could be persuaded to vote—but I am afraid that persuading people to vote is not all that easy in some circumstances. We have all encountered that. That is particularly the case if, as is likely, the Northern Ireland Executive continue to deal with issues with the same degree of expedition with which they have dealt with the Defamation Act. I hope that tomorrow our Select Committee on the Inquiries Act will sign off a report that will draw attention to another extremely dilatory procedure by the Northern Ireland Executive and Assembly whereby they have wasted two years on what they said was a hugely important matter, and wasted them on going through completely unnecessary procedures. But that is just giving a little taster of something to look at when that report is published.

That is the sum of what I wanted to say this evening. I have said it as quickly as I can and I shall listen with interest to whatever the Minister might say.

Photo of Lord Empey Lord Empey UUP 7:00 pm, 25th February 2014

My Lords, I made the point in Committee that this was an imposed process, without consultation. It offended every point that has been made in this House this afternoon in respect of respecting the settlement and tore up a key part of the settlement that was voted on by a referendum. It was literally a backstairs deal, in the worst tradition of backstairs deals, so let us not give it any credibility that it is some kind of dramatic move forward. It has created a sectarian headcount format for elections even though there is no difference in the powers that can be exercised by the First and Deputy First Minister. They both have the same powers and there is no hierarchy in that regard.

I would say to the Minister that, when she stands up to defend the devolution settlement, she will understand that it rings a bit hollow to some of us when it was the Government who broke that settlement and did so without consulting those who made the settlement—and, it must be said, the noble Lords, Lord Trimble and Lord Alderdice, and others who were there at the time to make the deal. There is a Scottish saying—the noble Lord, Lord McAvoy, will know this—“Eaten bread is soon forgotten”. Had it not been for people like the noble Lords, Lord Trimble and Lord Alderdice, and others, there would be no Assembly for these people to sit in. A lot of people take it very badly that a deal that was done—a referendum that was passed—was swept aside in some kind of backstairs deal without even the courtesy of a phone call to say, “This is the line we are proposing to take”. Some of us learnt about it when we saw the draft of the 2006 St Andrews agreement Act. That is why, when I hear people defending the principle of devolution, it rings a bit hollow for some of us who have been around these things for some time.

I have, however made my point. I support the noble Lord, Lord Trimble, in his amendment. It is that sort of thing that has been undermining. The potential for a six-week negotiation was the reason that Sinn Fein went to Tony Blair to get the thing changed; it was afraid that, if it put forward a particular candidate, that person would be negotiated out. It wanted certainty that whoever it was would go in. That coincided with the political changes that meant that, on the unionist side at that stage, it was much more convenient not to have to put your name on a ticket with a Member of Sinn Fein to get elected as First and Deputy First Minister respectively. It just happened to suit people at that time.

There is no noble principle involved in the 2006 amendment. It was, by any stretch of the imagination, a dirty deal.

Photo of Lord Kilclooney Lord Kilclooney Crossbench

My Lords, I do not want to be preaching more caution or to be more alarmist, but I find myself in total agreement with the analysis by the noble Lords, Lord Trimble and Lord Empey, of the situation within the Northern Ireland Assembly and the appointment of the First Minister and Deputy First Minister, and the way in which this could be received by the community at large in Northern Ireland.

With the possible decline of unionist—I use the word with a small “u”—interest in the future of the Northern Ireland Assembly, with the possible lower turnout by unionist voters, under the new system that was introduced in St Andrews we could have a Sinn Fein First Minister in Northern Ireland for the first time. Can your Lordships imagine the reaction of what has been termed earlier in this debate the loyalist working class who had not bothered to vote and then find a former battalion commander of the IRA as their First Minister? I fear it would bring about the total collapse of the Northern Ireland Assembly.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP

My Lords, this is an issue that the noble Lords, Lord Trimble and Lord Empey, have returned to on several occasions in the past, and I am sure that they will keep doing so in the future. However, as I pointed out in Committee, no other ministerial appointments, with the exception at present of the Justice Ministry, require cross-community support. It seems inappropriate that this requirement should be applied to the appointment of the First Minister and Deputy First Minister.

In Northern Ireland we are currently experiencing the longest period of stable government in a generation. What is detailed in the amendment simply moves us backwards and returns us to the position that existed in Northern Ireland pre-St Andrews. When we look back at Northern Ireland under the devolved institutions prior to the St Andrews talks and compare it with the stable Province we now have as a result of an extended period of devolved government since 2007, we see a remarkably different country.

As noble Lords will be aware, and as I mentioned in Committee, there is a legal requirement placed upon the Northern Ireland Assembly to provide a report on how the Assembly structures can be improved. My party, the Democratic Unionist Party, would be reluctant to pre-empt the work ongoing in the Assembly to review its functions and those of all the political institutions by supporting amendments such as this. It is my firm belief that it is inappropriate to simply unpick some parts of the relevant legislation. This amendment would simply divert attention from the important issues and challenges that Northern Ireland and its politicians face every single day. If changes are to be made we must look at the totality of the system of devolved government.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

I am encouraged by some of the things the noble Lord has said. I would be encouraged even more if he was able to give an undertaking that his party will also adhere to its commitment to this way of forming the First Minister and Deputy First Minister portfolios whatever the outcome of the Assembly elections in 2016. It would be a real reassurance not only to this House but to others if he was able to give an undertaking that his and his party’s commitment to this way of working is not only for when they have the First Minister but for whichever party has the First Minister.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP

I am not in a position to speak for the Executive or for my party in the Assembly. However, I am sure that they would wish to progress in a way that they believe will serve the people of Northern Ireland best.

I oppose the amendment and I hope that we will be able to proceed with the elections in Northern Ireland. Unlike the Ulster Unionists, I am not pessimistic about the outcome; I am very optimistic.

Photo of Lord Bew Lord Bew Crossbench

My Lords, I support the amendment. It is not the least of the distinctions of the noble Lord, Lord Trimble, that he is a former First Minister of Northern Ireland. He is not the only former First Minister of Northern Ireland in this House, but he is the only one who can say that he was supported by a

majority of both communities in the process of election. We have lost something in the structures of the Assembly and the way it operates simply by the absence of that process and that type of affirmation for the First Ministership.

However, I do not want to dwell on the past. A number of points have been raised today about the future and possible destabilising trends—some of which might or might not eventuate—and it is important that we do not sleepwalk into this possible crisis with the Executive and the institutions. The noble Lord, Lord Alderdice, asked a profound question, and one way of considering the implications of the question is that some of the parties, at least, to the current arrangements may no longer have precisely the same investment in those arrangements that they once had. If possible, there should be a dialogue or discussion in the Assembly with a view always to maintaining the stability of Northern Ireland, because there is a possibility, for the reasons mentioned by the noble Lords, Lord Kilclooney and Lord Trimble, that we are sleepwalking into a crisis with these institutions. The noble Lord, Lord Browne, is right: these institutions have delivered a form of stability for some years now, but that does not mean that they will continue to do so. I would like reassurance that the Government are keeping the matter under review and are not sleepwalking.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Independent Ulster Unionist

My Lords, first, I apologise for intervening at this late stage and for not having been here, as one might have expected, at the beginning of the debate. I was detailed to find out some information about a serious event that took place in 2006. I have only just received the information that the person who was suspected of the Regent’s Park bombing many years ago was arrested by the Metropolitan Police some time past and was able to pull out of his pocket a letter dated 2006 which said that he would no longer be deemed a terrorist. Over the past few months, a court case, held virtually in secret, has revealed that 187 terrorists were given that letter in 2006, saying that, although they were terrorists, they would no longer be deemed to be so. How can we vote with any assuredness on this Bill when we discover belatedly that, subsequent to the St Andrews agreement, this sort of behind-backs, underhand deal was carried out by the Government at that time?

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs) 7:15 pm, 25th February 2014

My Lords, this debate has been interesting, as was the one in Committee, although that was without the wisdom of the noble Lord, Lord Trimble; I say his name carefully. We have benefited enormously from the experience of noble Lords here this evening: this is the value of debates in your Lordships’ House on this issue.

Clearly, we all want to ensure that governance in Northern Ireland is based on a strong cross-community partnership. I readily accept that there is no system for electing the First and Deputy First Ministers that we all would consider perfect. Indeed, the current system may not be perfect. Let us not forget where Northern Ireland had been during the four and a half years leading up to 2006. It was a major step forward to have the institutions up and running again after being suspended for that time. That was the purpose of the St Andrews agreement, the ongoing discussions which came from it and the legislation subsequently passed by your Lordships’ House and the other place. For three and a half of those four and a half years I was a Minister in Northern Ireland, and it was a difficult, tense time, as noble Lords here tonight will know better than I. When I flew out to Belfast on my first day, I was told I should expect to be a Minister for about six months. When I left three and a half years later, the Assembly was still not restored. It was a very serious and difficult time.

Since the St Andrews agreement changed the arrangements, we have had the longest period of stable government in Northern Ireland in a generation. That is not to be underestimated or dismissed lightly. Many positives proceeded from that agreement. I understand why this amendment has been brought forward and the reasons for it, but it takes apart one part of the agreement that was agreed in your Lordships’ House and the other place through legislation. We have heard very eloquently from the noble Lord, Lord Trimble, why the popular 1998 agreement for electing First Ministers and Deputy First Ministers required the direct involvement of the Assembly. He and others welcomed that very clear demonstration of cross-community support. If we were to return to the pre-St Andrews system at this stage, it would have to be done by cross- community consensus and agreement, and I really do not think that we have achieved that at present. I understand the reason for tabling the amendment, but at the moment we do not have the agreement and cross-community support necessary to achieve it. We have to understand the reasons why that came about.

In this debate and others that we have had today, wider issues have been raised by several noble Lords, including the noble Lords, Lord Bew and Lord Trimble, about the disengagement of local people in Northern Ireland. We have talked about it in terms of the Assembly, but there is also the wider political context. That is not peculiar to Northern Ireland, but I understand the concerns about it relating to Northern Ireland. I think that the noble Lord, Lord Bew, referred to it as a destabilising trend. All sides of your Lordships’ House want confidence in the system and the Assembly. We want the stability of the Assembly to be entrenched and enhanced. That will not be done just by the institutions or the apparatus of democracy; it is far deeper than that. Perhaps there may be an opportunity for further discussion in your Lordships’ House—I do not think that tonight is the time—to address those issues to bring the entrenched stability that I think we all want.

We do not support the amendment at this time, while understanding the reasons why it has been proposed.

Photo of Baroness Randerson Baroness Randerson Lords Spokesperson (Northern Ireland Office), The Parliamentary Under-Secretary of State for Wales

My Lords, I want to preface my response by referring specifically to comments made by the noble Lord, Lord Maginnis. Noble Lords have been in the Chamber this afternoon and may not be aware that I have issued a Written Statement that deals with that issue. I do not feel that it is appropriate to try to tackle it in this Chamber at this time, because it is not part of this debate.

I turn to the amendment. The noble Lord, Lord Trimble, will be aware that the Government opposed amendments on this issue both in Committee in the other place and in Committee in this House. Despite the eloquence of the noble Lord, Lord Empey, we retained our opposition here. Again, we will maintain that position to this amendment on this occasion.

I recognise the noble Lord’s views on the matter, and he clearly has a close personal interest in the issue. However, as the noble Baroness, Lady Smith, highlighted in Committee and again just now, the St Andrews agreement, which led to this mechanism, ultimately led to the re-establishment of devolved government in Northern Ireland. It would be, to say the least, an unhelpful step if we were to start to unpick certain aspects of it.

I acknowledge the noble Lord’s views on whether the revised method for electing the First and Deputy First Ministers at Stormont was discussed at St Andrews. It is certainly the case that the noble Lord, Lord Empey, made that point in Committee. However, the revised method was enacted through the legislation which followed the St Andrews agreement in 2006. That legislation was endorsed and passed through this House. Whatever the merits of the amendment in the abstract, it would command limited support in Northern Ireland. Very probably, it would get virtually no cross-community support. It would provoke serious opposition and potential instability.

The current Northern Ireland settlement is imperfect, but it is what we have. I welcome the support of the noble Baroness, Lady Smith, and her party on this issue. Her words echo my thoughts.

The noble Lord, Lord Bew, made some very important points. In response, I would say that the Government are acutely aware of the tensions and difficulties in Northern Ireland and within the Executive. That is one reason why we do not want to destabilise the settlement either by changing or attempting to change the mechanism for selecting the First Minister and Deputy First Minister or by involving ourselves in the devolution settlement on issues that are devolved. It is important that we do not disturb the situation. That does not mean that we are sleepwalking, or allowing Northern Ireland to sleepwalk, into any unravelling of the current situation. I agree strongly with the views of the noble Baroness. With every month that passes, the institutions of Northern Ireland become more firmly established in the country and as part of the politics, and it becomes less likely that they will hit the sort of problems that occurred soon after devolution was established.

As I highlighted in Committee, reopening old debates of this nature is liable to create a distraction that would shift the focus of Northern Ireland politics away from the pressing challenges that Northern Ireland faces—issues such as community division and economic renewal. I hope the noble Lord would agree that those issues should take precedence at this time and, in doing so, will be willing to withdraw his amendment.

Photo of Lord Trimble Lord Trimble Conservative

I thank noble Lords who have taken part in this little debate, which has gone on longer than I had hoped. As the noble Lord, Lord Browne of Belmont, said, these are issues that I have dealt with before. I remember certainly the first time I dealt with them in 2006. I divided the House, and I was very happy to have the support of the noble Lord, Lord Browne of Belmont, in doing so. He has changed his position somewhat since then. I merely mention this from the point of view of spreading news on the matter.

I note the statement of the noble Baroness, Lady Smith of Basildon, who said that if one was to make a change, the change would require cross-community support. She is right. That is how the agreement was made. The agreement was made based on a broad support —a “sufficient consensus” as we called it—and the majority of unionists and the majority of nationalists supported it in the talks. If you are going to make a change to it—although no express provision has been made as to how changes should take place—then the noble Baroness is quite right to say that the changes would be legitimate if they were made by the same procedure by which the agreement was made in the first place.

That is not what happened in 2006. I was finding it somewhat difficult to follow what the Minister was saying at some points, but I think it is absolutely clear that the change to the identification of First and Deputy First Ministers was not actually in what is called the St Andrews agreement. It came into the legislation to implement it, but it only popped up at the last minute without any coherent explanation of where it came from, and with no indication that there was the sort of cross-community support that ought to have been sought for it. People say going back would be a bad thing to do. The Minister says that going back would have limited support in Northern Ireland. The original agreement had a referendum, and it was supported by an overwhelming majority; that referendum is ignored. It has been said many times in this debate that we should not upset the devolution settlement. The devolution settlement was upset, peremptorily. That is undeniable. Consequently this is something to which we will return, until we get things sorted out on this. We have at present a bad system which may have bad consequences; I hear what the Minister says about not sleepwalking and I hope that that is the case. We shall see. Let us make sure that we do what we can to ensure that there is no sleepwalking. I think I can guarantee the Minister and the Northern Ireland office that we will return to this aspect of this issue, to try and ensure that people are on top of this. We have a rotten system which may turn round to bite us. This is not the time to press the matter further. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.