Northern Ireland (Executive Formation and Exercise of Functions) Bill - Second Reading

– in the House of Lords at 3:10 pm on 30th October 2018.

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Moved by Lord Duncan of Springbank

That the Bill be now read a second time.

Relevant Documents: 15th Report from the Constitution Committee, 36th and 37th Reports from the Delegated Powers Committee

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), The Parliamentary Under-Secretary of State for Scotland

My Lords, as I have said on many occasions, the Government remain emphatic in their support and advocacy of the Belfast agreement. The beating heart of the Belfast agreement is a devolved power-sharing Executive Government, and for that reason the restoration of a devolved power-sharing Executive is our top priority. Much to our regret, and despite our best efforts, there remains no devolved government in Northern Ireland. I believe we all share a common view that this is not good, particularly at this serious and important time. Let there be no doubt: the people of Northern Ireland need and deserve a devolved Government—a sustainable, stable, fully functioning and inclusive devolved Government.

I would much rather not be here—I suspect that many of your Lordships might share that sentiment—and that the Bill was not necessary. However, for reasons we have discussed before, sadly it is. As a Government we remain committed to taking those decisions necessary to provide good governance and political stability for Northern Ireland. This package of measures is a key staging post toward restoring a devolved power-sharing Executive and Assembly.

I do not doubt that the debate that follows will be wide-ranging. However, I shall state at the outset what the Bill seeks to achieve. The purpose is threefold. First, it will create a time-bound period for the intensive talks necessary to create an Executive. Secondly, it will ensure the functioning of the Northern Ireland departments during that period. Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers in the absence of Ministers, and will be underpinned by guidance that will help Northern Ireland departments judge whether those powers should be used in the absence of Ministers. Finally, it will seek to ensure that key public appointments are made.

I thank the Delegated Powers and Regulatory Reform Committee and the Constitution Committee of this House, and I put on record both my appreciation and that of my right honourable friend the Secretary of State for Northern Ireland for their hard work in scrutinising and publishing the reports on the Bill so very quickly. We accept the Delegated Powers and Regulatory Reform Committee’s recommendation that the power enabling the Secretary of State to add offices to the table in Clause 5(2) should be subject to the affirmative procedure. The Constitution Committee raised concerns about that procedure and the fast-tracking of the legislation. We agree that this should not become the norm and that it should not be considered to set a precedent.

On the specifics of the Bill, first, it extends the period provided for in the Northern Ireland Act 1998 for Northern Ireland Ministers to be appointed before the local elections in 2019. As your Lordships will be aware, because Ministers were not appointed by 29 June 2017, the 1998 Act requires a further election before an Executive can be formed. As set out in my right honourable friend the Secretary of State’s Statement of 6 September, an election at this time would neither be helpful nor improve the prospect of restoring the Executive. From our engagement with Northern Ireland parties, we believe that this view is widely shared. Nor is the prospect of direct rule an attractive one. The provisions of Clause 1 seek to create a period in which an Executive can be formed and talks can take place, by removing that current legal impediment to an Executive being formed for a defined period.

The Bill also provides, in Clause 2, that this defined period may be extended once, for up to five months, removing the need for further primary legislation in the event that, for example, a short extension is judged necessary to finalise an agreement and form an Executive. I assure noble Lords that we will not be waiting until March to bring the Northern Ireland parties together. Following the passage of this legislation, my right honourable friend the Secretary of State intends to meet party leaders to discuss the basis, process and timing for further talks. My right honourable friend will also welcome all efforts to improve and enhance the political dialogue between the parties in Northern Ireland—including Church leaders and Members of this House—to discuss how best to encourage meaningful political engagement towards the restoration of an Executive.

With regard to decision-making, during this period, in light of recent court judgments, Northern Ireland departments require certainty and clarity. Their decision-making powers in the absence of Northern Ireland Ministers have come under close scrutiny. The Bill makes clear that a senior officer of a Northern Ireland department may exercise departmental functions in the absence of Ministers during the period for forming an Executive, if the officer is satisfied that it is in the public interest to do so. The Bill also requires the Secretary of State to publish guidance on the exercise of departmental functions during this period, including the principles to which senior officers in Northern Ireland departments must have regard when deciding whether to exercise a decision-making function. A draft copy of this guidance has been published and placed in the library of the House.

The Bill stipulates that the Secretary of State must have regard to representations from Members of the Northern Ireland Assembly before publishing the guidance. Similarly, my right honourable friend would have regard to such representations should the need for revised guidance arise. We would also welcome representations from UK parliamentarians as well as MLAs on its content before a final version is published, something the Secretary of State intends to do shortly after the Bill receives Royal Assent.

The principle established by this Government’s interventions over the past year is that we will legislate where doing so is necessary to protect the delivery of public services and uphold public confidence in Northern Ireland. But let me be clear, while the NICS needs certainty in respect of decision-making powers, these measures do not set or change policy direction on devolved issues in Northern Ireland. That is for a restored Executive and Assembly.

The principles underpinning decision-making are set out in guidance rather than on the face of the Bill, as Northern Ireland departments need a degree of flexibility and discretion to enable them to reach appropriate and necessary decisions and ensure the continued delivery of public services in Northern Ireland. We have engaged closely with the NICS during the development of the draft guidance. The factual information provided by it has informed the approach we have taken.

This Government also recognise that, in the absence of an Executive, there will be some decisions that we, the UK Government, should take, such as setting out departmental budget allocations for approval by Parliament to ensure that public services continue to function.

Noble Lords will be aware of some new elements to the Bill since it has arrived in our House. There was a series of amendments to Clause 4. To be very clear, the clause requires the Secretary of State to issue guidance to Northern Ireland departments on how to exercise their functions in relation to Sections 58 and 59 of the Offences against the Person Act 1861 and Article 13(1)(e) of the Matrimonial Causes (Northern Ireland) Order 1978 and wider human rights. The Secretary of State would also be required to report guidance under this clause on a quarterly basis to the other place, and set out her plans to address the impact of the absence of Ministers on human rights obligations in Northern Ireland within three months of the day on which the Bill receives Royal Assent.

Photo of Lord Steel of Aikwood Lord Steel of Aikwood Liberal Democrat

I am most grateful to the Minister for giving way. He will recognise that Clause 4, which was inserted in the Bill in the other place, is quite modest in its objectives. During the Brexit negotiations we have been told we cannot have a line down the middle of the Irish Sea affecting trade differently in one part of the United Kingdom from the other. Yet we have a line down the middle of the Irish Sea, affecting the human rights of one part of the United Kingdom, compared with the rights of the rest of the United Kingdom. The Supreme Court in particular, in relation to abortion, said recently,

“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate … the present law clearly needs radical reconsideration”.

What are the Government going to do about that?

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), The Parliamentary Under-Secretary of State for Scotland

I hope that the noble Lord will allow me to expand on that later. However, in response to him directly on this issue, the Supreme Court judgment to which he refers was based on an absence of standing, which therefore created another technical issue—it was technical only, but it is important to stress that. We already have lines around our United Kingdom, because they are lines of devolution as well. The devolved settlements are important and have a role to play in this. I do not doubt that we will expand on that as certain amendments are discussed later today. However, I of course recognise the point that the noble Lord has raised and will report on it directly in due course, but perhaps he will allow me to continue.

The important aspect here is that, as the honourable Member who drafted the amendment has acknowledged, the new clause does not alter the law in Northern Ireland. This was not a clause that the Government sought but its inclusion was clearly the will of elected Members of the other place. I appreciate the sensitivities around the issues that the clause addresses. Abortion law and same-sex marriage have previously been subject to debate in this House and indeed in the Northern Ireland Assembly. As your Lordships know, these issues are devolved and should, rightly, be determined by an incoming Assembly. However, as I stated, the new clause does not change the law in respect of the wider legal framework in respect of either.

Finally, the Bill contains provisions to address the urgent need for key appointments to be made in Northern Ireland and to certain UK government-sponsored bodies where those appointments would normally require the involvement of Northern Ireland Ministers. Clauses 5 to 7 ensure that key posts can be filled while minimising the extent of UK government intervention in what are, rightly, devolved matters. Clause 5 would allow the relevant UK Minister to make certain specified appointments, exercising the appointments functions already conferred on Northern Ireland Ministers. As my right honourable friend the Secretary of State set out in her Written Statement on 18 July, these posts are the most pressing and urgent appointments, as they are essential to the maintenance of good governance and public confidence in Northern Ireland. They include the Northern Ireland Policing Board, the Probation Board for Northern Ireland, the Northern Ireland Judicial Appointments Commission and the Police Ombudsman for Northern Ireland. The Bill takes this focused approach rather than conferring a blanket power on the Secretary of State.

It is also important that we provide for other vital offices which might unexpectedly become vacant. For this reason, the Bill includes provision to add to the list of offices by means of a statutory instrument allowing the relevant UK Minister to exercise Northern Ireland Ministers’ appointment functions in relation to additional specified offices. This power would be used only if the appointments were urgent and necessary, and my right honourable friend the Secretary of State would of course consult the main Northern Ireland political parties before bringing forward regulations.

A large proportion of appointment functions in Northern Ireland are conferred on Northern Ireland departments. The provisions that I outlined earlier dealing with departments’ decision-making powers would provide the necessary clarity to allow the Northern Ireland departments to be able to exercise those appointment functions conferred on them during the formation of the Executive. It does not transfer to them any appointment functions currently conferred on Northern Ireland Ministers.

The lack of an Executive has also affected appointments to UK-wide bodies, as a small number of these require Northern Ireland Ministers to be consulted or to agree an appointment made by a UK Minister. The most pressing example is the appointment by the Home Secretary of a new chair of the Disclosure and Barring Service. Similarly, joint appointments are made by UK and Northern Ireland Ministers. The Bill addresses such appointments by allowing them to be made in the absence of Northern Ireland Ministers but it retains the Northern Ireland input by requiring the UK Minister to consult the relevant Northern Ireland department. The powers given to UK Ministers under Clauses 5 to 7 would expire when Northern Ireland Ministers were appointed and an Executive formed.

The people of Northern Ireland deserve strong, locally elected, accountable individuals sitting in an Assembly, and they deserve a functioning, sustainable devolved Government. Achieving that is our priority, and we continue to be focused on achieving it. On that basis, I commend the Bill to the House.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland) 3:23 pm, 30th October 2018

My Lords, I thank the noble Lord for introducing the Bill before the House today, and I think we understand the reason for it. As he explained, the Bill has three clear and limited purposes: to extend the period to form an Executive; to clarify the functions of the Northern Ireland Civil Service at this time; and to ensure that important public appointments can be made.

We on these Benches do not disagree with the individual elements of the Bill, but the Minister will not be surprised to hear that we are deeply frustrated and disappointed, as I think he acknowledged he himself was, that it has been necessary to bring these measures forward at all. This is now the seventh or eighth piece of legislation that the Government have had to bring forward to Parliament to ensure that Northern Ireland continues to function on a day-to-day basis in the absence of the political parties being able to reach an agreement that would restore the devolved Executive.

The Minister can be in no doubt that this party has a long-established commitment to devolution, and in particular to the institutions in Northern Ireland established under the Good Friday agreement. I have a personal, abiding memory of the referendum, as the result was declared on the morning of my wedding, giving a particularly positive lift to an already happy day. Like, I hope, everybody else around this Chamber, I would hate to see that agreement put at risk, as it currently is because of the stalemate.

The best solution for Northern Ireland remains devolved government and a well-functioning Assembly. However, we are deeply concerned that the real challenge of restarting the talks and restoring an Executive is not being faced up to. As far back as 2017, the then Secretary of State for Northern Ireland, James Brokenshire, stated that the current situation—which is continuing—was “not sustainable” in the long term. We are now almost one year on from that statement, and fast approaching two years since the collapse of the Executive. This really is a shameful indictment of this Government, as well as the parties.

The noble Lord the Minister has more than once talked of “a new impetus” being needed in the talks process—we agree, but when will we see this, and what are the Government doing to spur it on? Although he mentioned that the Secretary of State will follow this legislation through, it would be good to hear in his response precisely what the Secretary of State is going to do to try and break the impasse. It has been eight months since there was any real attempt by the Government to restart talks between any of the parties in Northern Ireland. My understanding is that the recent attempts to encourage discussions were led by Naomi Long, the leader of the Alliance Party, in a separate meeting convened by church leaders at the end of September. The Government really do need to be visible and present.

For Northern Ireland to function properly, we need much more than this. While we welcome the clarity given by the Bill and by guidance to the Northern Ireland Civil Service, enabling officials to take key decisions is not enough. It lacks democracy and proper accountability, as I think the Minister has acknowledged. It is in no way comparable to normal politics, where politicians drive change through committees, departments, the Assembly and the Executive. In the end, devolution is the only credible and democratic way forward, and we must surely exhaust every possible initiative to ensure accountable, local government is back in place.

For quite some time, we on these Benches and others have called for an independent mediator to be appointed to manage a fresh talks process. I would contest that now, more than ever, is the time that an independent facilitator must be appointed. The nature of the breakdown of the talks in February, the subsequent dispute over the status of negotiations, and the damage caused to political relationships make the appointment of an independent facilitator absolutely crucial, and emphatically in the Government’s own interests. In addition to building internal confidence in any talks process, there is also a pressing need to give the public confidence that everything possible is being done to restore the institutions. This means that any talks process needs to be inclusive, with all five parties around the table, and transparent.

As far back as the Stormont House agreement in 2014, there has been recognition that the petition of concern system in the Assembly has not been working as it was originally intended. Since then, we have seen times when it has been used to block progressive social reforms. Indeed, many of the issues that are currently in deadlock between the parties could be resolved democratically on the floor of the Assembly if the ability of some to use, and abuse, the petition of concern was removed. Rather than going back into talks and simply repeating the dynamics of past failures, can the Minister say whether the Government are giving any consideration to reforming the petition of concern? There is a possibility that future-proofing the Assembly to deal with social policies and equality issues, and preventing any single party being able to frustrate the will of the electorate in the future, could change the pitch and nature of the talks process. Does the Minister agree that such a change could be very helpful in achieving an outcome, and restoring an Executive with the capacity to address issues of current concern across the Province?

I have tabled and am supporting amendments to address some important policy issues for Northern Ireland that are currently not being resolved as there is no Executive and Assembly in place. I will address these in detail in Committee, but I place on record my strong personal support for Clause 4, which I am sure is shared on these Benches, which was inserted by a free vote in the Commons. Recent polls have shown support of up to 76% for equal marriage. There is also a huge amount of public support in Northern Ireland to reform the law on abortion: a recent poll showed that some 80% of people now believe that a women should have the choice of abortion if her health is at risk; 80% also feel that the same choice should be there in cases of rape or incest; and 73% of those surveyed in Northern Ireland agree that a woman should have the choice of abortion in cases of fatal foetal abnormality. A figure that the Minister should consider most carefully is that 65% of those surveyed in Northern Ireland think that Westminster should reform the law in the absence of a devolved Government. Across the UK, surveys suggest that as much as 75% of UK citizens believe that the law should be changed and that the UK Government should take responsibility for doing it. I suspect that very high figure reflects discomfiture in knowing that British citizens do not have equal rights across the United Kingdom, something which my noble friend Lord Steel drew attention to in his intervention.

I have a further specific question for the Minister on the detail of the Bill. I would be grateful if he could address this in his remarks at the end of the debate. Clause 3 contains six initial subsections that allow senior officials to take decisions that may have previously been the preserve of Northern Ireland Ministers. However, subsection (7) then states:

“Subsections (1) to (6) have effect despite anything in the Northern Ireland Act 1998, the Departments (Northern Ireland) Order 1999 … or any other enactment or rule of law that would prevent a senior officer of a Northern Ireland department from exercising departmental functions in the absence of Northern Ireland Ministers”.

While the latter part of this sentence appears to qualify this power only to circumstances whereby senior officials are exercising power in the absence of Ministers, it is drafted in a fairly ambiguous way. That is an ambiguity that we could do without, given the length of time since we had a functioning Executive.

Therefore, could the Minister reassure the House that this cannot and will not be used as a justification for not abiding by some key equality and human rights safeguards in the Northern Ireland Act when any such decisions are taken? Specifically, Section 24 of the Act prevents departments “doing any act” that is incompatible with rights under the European Convention on Human Rights or discriminates against a person or class of person on the ground of religious belief or political opinion. Section 75 places procedural requirements to equality screen and to equality impact assess policy decisions. Section 76 prohibits discrimination on sectarian grounds by public authorities. Will the Minister give a categorical assurance that these important protections will not be undermined by the Bill? After all, the UK Government are the legal signatory of the European Convention on Human Rights and, I would argue, have a responsibility to protect and to promote these human rights.

It is abundantly clear that issues of vital importance that are in the public interest are not being addressed in Northern Ireland. This is of concern not just to people in Northern Ireland, but to a majority of the people of the United Kingdom. Rather than what we would hope for—the vibrant, progressive and shared society that we want to see—Northern Ireland is being allowed at best to drift and at worst to stagnate. It is imperative that the Government take urgent action to inject momentum into the talks and to end the ongoing political impasse. The people of Northern Ireland deserve nothing less, but it is the responsibility of the Government, as well as the parties of Northern Ireland, to break the deadlock, bring about change and get normality back.

Photo of Lord Morrow Lord Morrow DUP 3:33 pm, 30th October 2018

My Lords, those who spoke before me, albeit just two, have committed themselves to devolution in Northern Ireland. That is something that I and my party are strongly in favour of. Indeed, records will show that we are the only party that has not dallied with other ideas for Northern Ireland over the past 30 or 40 years. We are strong believers in devolution. We believe that devolution is the way forward. We believe that it serves Northern Ireland well and that the people of Northern Ireland should be making those decisions.

However, I have some concern when I hear some Members past and present speak who want to cherry pick things that London should be deciding and then maybe Northern Ireland politicians can decide other things if and when devolution returns. We will strongly oppose any attempt to cherry pick and decide what should or should not happen in Northern Ireland. However, if—and I know that the Minister has not said this—it is the opinion that direct rule should return, then let it return in full, not piecemeal, because that gives everybody the worst of both worlds.

We stand here today ready to go back into a Northern Ireland Assembly tomorrow, with no ifs, ands or buts, and no preconditions. It has to be said here, loud and clear, that it was Sinn Féin members who brought down the Northern Ireland Assembly—and I suspect that, if it were to be restored again, they would do the same all over again at their own timing. That is the way they work.

There are aspects of this Bill about which we have great concerns. I have great concerns about Clause 4. I do not want to get into technical, legal arguments that I know others will want to address: I will save my contribution on that for Committee. I simply want to point out that some others do not want to point out that abortion is a devolved matter. Legislation in Northern Ireland is the most up-to-date in any part of the United Kingdom, having been decided in 2016 on a cross-party vote. There was no petition of concern, but it was decided on a simple, straightforward majority that the law should remain as it is.

Photo of Lord Adonis Lord Adonis Labour

My Lords, will the noble Lord explain to the House what the Parliament of the United Kingdom is supposed to do where a matter is devolved and there are no devolved institutions?

Photo of Lord Morrow Lord Morrow DUP

I simply point out again to the noble Lord that it is a devolved matter—but he consciously ignores that. I would respect him more if he would have more respect for what the people and the elected representatives of Northern Ireland have said quite recently. Furthermore, it is not going to help us to get power-sharing back. That surely should be the aim and the goal of this House: the restoration of devolution, as the Minister has already stated.

Polling of 1,013 adults in Northern Ireland conducted between 8 and 15 October showed that 64% of people do not think that Westminster should interfere in this issue but should leave it to the Northern Ireland Assembly. I agree with those 64%. The figures rise to 66% of women and 70% of 18 to 34 year-olds. The same polling also shows that 47% of people in Northern Ireland believe that intervention by Westminster would undermine devolution; only 30% disagree.

Furthermore, I understand that Amnesty has also done some polling on this same question, reaching different conclusions. However, I note, first, that it was conducted by an organisation that is not a member of the British Polling Council. Secondly, it did not release the polling tables for this question; and, thirdly—inexplicably—it left out the “don’t knows” and the “prefer not to says”. This inevitably distorts the outcome. Had the polling I cited been done, the proportion of Northern Ireland citizens saying that Westminster should not intervene would be more than 70%.

Of course, I accept that all polling has its limitations. The country vote on which we can depend was the election of the Northern Ireland Assembly, of which I was then a Member, by the women and men of Northern Ireland. This Assembly determined, by a simple majority vote and without reference to a petition of concern—I emphasise that—not to change abortion law in any way on 10 February 2016. Of course, if at some future point the Supreme Court issued a declaration of incompatibility with respect to any aspect of our law, the Northern Ireland Assembly would respond appropriately.

Photo of Lord Empey Lord Empey UUP 3:40 pm, 30th October 2018

My Lords, I said when the Bill was first mooted that it was a smokescreen for failure, and that is exactly what it is. It is before us only because the Government have been forced by various actions pending in the courts. One action would have forced the Secretary of State to call an election. The noble Lord, Lord Alderdice, referred some months ago to the fact that the Government had been acting ultra vires for quite a long time. The provocation for it, of course, was when a decision by a senior official in the Department for Infrastructure was struck down over a waste incinerator, of all things. The Government realised then that the civil servants who had been taking decisions could no longer do so and were not prepared to do so. I fully understand their position.

In many cases we are using the Civil Service in Northern Ireland as a football—as an excuse, in some respects, for not taking other decisions. As long as it is prepared to take decisions and keep things running, everybody can stand back and say, “Things are ticking over okay, there is no urgency”.

I also want to deal with the appearance that some form of political talks process and action is happening. There is not. Every fortnight, the Secretary of State rings up the party leaders, she speaks to them for a few minutes, asks a number of questions—probably off a list—and that is about the height of it. There is no formal process and there has not been one for months. There is nothing happening in that area at all.

The Minister has brought several pieces of legislation before us over the past year and we have had this conversation many times. He has said that we cannot continue with this, we cannot let this go on any longer, there is only so far we can push it. I have to say to the Minister that he has developed the ability to say nothing with great conviction and compassion. I do not believe that if he was put in the spotlight he could actually defend what is being done here. On the formation of an Executive, the dogs in the street know that there is not going to be an Executive this side of Brexit. Everybody knows that. Secondly, of course, in the last formal process between the parties, which ended in February, while there was no agreement between the parties at that stage, there was clearly a set of understandings that were to be put to the respective parties for their approval. That blew up in their faces at that time. So getting that process going again with the existing personnel in place is going to be extremely difficult.

The other thing that has happened is that support for devolution and for the Assembly is withering. The behaviour of the last Administration was absolutely outrageous by any standards. Anybody who has paid the slightest attention to the inquiry conducted by Sir Patrick Coghlin into the RHI would be shocked and appalled at the attitude and the culture that were operating in that Executive, where spads, paid enormous sums of money—between £85,000 and £92,000 a year—were able to effectively run departments. That applies to both the DUP and Sinn Féin. Sinn Féin’s Minister had to go cap in hand to somebody who was not allowed to be a spad, who did not even have that capacity but was in Sinn Féin headquarters, to get permission to see whether they could bring the heating scheme to an end and put a cap on the prices. A DUP adviser, when he thought the money was coming from annually managed expenditure, which is outwith the block grant, said that we could fill our boots. This is the attitude. This House and this Parliament seem to be oblivious to it; the Government know what is going on; they have not covered it up but have ignored it. They have turned a blind eye for months—for years. People are disgusted and fed up. Every time this happens, it is harder and harder to get things going.

I have drawn attention to issues concerning health. There is the issue of institutional abuse, which I know is coming forward in Committee. On health itself, I believe we have to take some decisions on humanitarian, not on political, grounds. With our waiting lists, people’s lives are being directly affected and injured as a result of the inability to have a Minister in place.

I say to this House and to Parliament in general that this situation cannot continue much longer, but as long as the Government are prepared to turn a blind eye to it, it will. There are no initiatives at all. Regarding the issues in Clause 4, while the public have latched on to this and we have all received lots of emails, nothing in this Bill is actually changing the law. People misunderstand that: they think the law is being changed, but it is not. To some extent, it is smoke and mirrors. Those who will be happy with the idea that the law is changing will be disappointed, and those who are not happy that the law is going to be changed are obviously frightened by this.

The Minister should at least clarify the legal position. We all know that the efforts to clarify the situation for civil servants are only going to last between now and the next judicial review. We will be back here in a few months in the same pickle as we are in today.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 3:47 pm, 30th October 2018

My Lords, my intention is to speak about Clause 4 only and the legal situation which is the background to it. I am taking no position on the substantive issues which underlie the clause, but it is quite clear that the intention of those who promoted the Motion put to approve Clause 4 as an amendment in the House of Commons, on a free vote, was to bring the law on abortion in Northern Ireland into line with modern law on the other side of the Irish Sea. The position is that abortion has been made a devolved subject. Therefore, the only statutory authority with authority to alter the statutes and statutory instruments is the Legislative Assembly of Northern Ireland and Ministers of that Assembly. There is no power whatsoever in the United Kingdom Parliament to interfere with that while it is devolved.

The noble Lords, Lord Steel of Aikwood and Lord Bruce of Bennachie, mentioned that there is a border in the Irish Sea on this point. That is certainly true. There are borders between here and Scotland on a number of things, including, for example, free prescriptions in the health service. It is part of devolution that the law on one side of the devolved border may be different from the law on the other side. I am a little surprised that exponents of devolution found that surprising, but that is the fact. That is part of the background of the law on this matter. The devolved issue is one, as I say, for the Northern Ireland Assembly and Ministers acting as Ministers of that Assembly.

Where that is the law, the question of the Human Rights Act is important. Your Lordships will recollect that the Human Rights Act does not modify existing law. There is a power in the courts to declare a provision of British law—this would apply in Northern Ireland as well—incompatible with the convention provision in the Human Rights Act. That decision of the courts does not affect the law unless and until it is acted on by Parliament. Perhaps the best example of that was the relationship between the Westminster Parliament and prisoners’ voting rights. That was declared incompatible with the convention rights by a Scottish court many years ago and the English court followed it, saying it was not necessary to do it twice because there was nothing wrong with the way that the Scots had done it—which is a compliment that I always like to hear. Anyway, that is what happened, and it remained the law of the United Kingdom for a long time. There have been some slight modifications recently but the idea that the Human Rights Act changes existing statutes is wrong. It is part of the provision of the Human Rights Act that it does not do so.

Therefore, the only authority to alter the existing law and bring it into conformity with the Human Rights Act is the legislature in question, if it is a statute that is in issue. Therefore, there is no question that the Secretary of State could by guidance alter the law in this matter, which is to a considerable extent defined by statutes which are in existence and in force in Northern Ireland. The Secretary of State is mandated to do this—she must do this—but if she were to make an order, it would be immediately set aside because it is quite clear from the statistics that have been given that not everybody in Northern Ireland is of exactly the same mind in connection with abortion. If it were so, it might pass without any challenge but in Northern Ireland that is extremely unlikely. Therefore, if the Secretary of State were to make an order trying to escape the existing statutes of Northern Ireland relevant to this subject, she would be immediately struck down as doing something which she is not entitled to do. The fact that she would have been asked to do that by Parliament is an extraordinary situation.

I know that those who moved this amendment in the House of Commons did so with that in mind—that this might be a way forward—but in this House we must take the view that that is not possible. I tabled an amendment for Committee—the last one, which will presumably come fairly late this evening—about that. I am proposing to move the amendment so that discussion will be possible but I do not intend to press it to a Division because abortion has always been—rightly, because it is a matter of conscience—on a free vote. This amendment was passed on a free vote in the House of Commons and therefore I do not intend to press it here. There may be others who want to do that and the fact I have tabled the amendment makes that possible. I just make it clear that I am not going to do that because it would be completely ineffective in producing the result that the movers of it wanted.

Photo of Lord Dubs Lord Dubs Labour 3:53 pm, 30th October 2018

My Lords, the Bill is a sad necessity and many of us hoped that the Executive and institutions would have been restored in Belfast long before today. I will make just a few brief comments.

One of the arguments that has been put is that we should stop paying Members of the Legislative Assembly. I know that their pay is going to be cut a bit but I caution against doing more than that small cut, simply because if we take away all income from Members of the Legislative Assembly, they will have to find other jobs, and then when the Executive is restored we will have no politicians ready to take over and we would denude Northern Ireland of some people who would have a part to play in public life there. So I would caution against being too harsh with the pay of Members of the Legislative Assembly.

I have tried to understand what constraints the Bill seeks to permit or not to permit in terms of decision-making by civil servants—and I am bound to say that I found it pretty difficult. I have read the bits of paper, but maybe the Minister will throw some light on this in winding up. Of course, the civil servants in Northern Ireland have, by tradition, done a pretty good job. They are used to it. Ministers come and go, and the civil servants stay—but in the absence of Ministers they tend to be excessively cautious. One cannot blame them for that, but the difficulty with excessive caution is that very little will happen unless we take away the constraints that the civil servants impose on themselves.

Let me give a few examples. On the Parliament channel I happened to stumble on some Northern Ireland television and saw a bizarre example, which I think I have now had confirmed. It is not proper for Members of the Legislative Assembly to put on the noticeboard above their constituency office more than their name and their party; they may not put their email address or their phone number. Indeed, if that television programme was right, David Ford, a former Justice Minister, will lose his Assembly money and be penalised by £10,000 because he put his email address and phone number on the sign above his office door. I cannot think of anything dafter or more absurd. I hope that the Minister will find a way of getting rid of that stupid anomaly and giving David Ford the money to which he is surely entitled under the present provisions. We spend our time—or at least, they certainly do in the Commons—trying to make ourselves available to the public, yet there, by some bizarre reason, things go the other way.

I have been trying to understand the details of the Budget. I have not yet managed to do it all, but I understand that there are some provisions for extra expenditure in Northern Ireland, including expenditure on shared and integrated education projects. Is that extra money now available to be spent on integrated schools, and will civil servants get the go-ahead to do that, rather than having to wait until the Executive is restored? Integrated education is surely crucial to politics in Northern Ireland, and to harmony among communities. All we are saying is that parents in Northern Ireland would like to have the choice of integrated education, and I would like to feel that, on the basis of yesterday’s Budget Statement, there is a bit of money in the budget available for this purpose.

I also note what the Bill says about appointments. I think that there are some other appointments that are not listed, and the danger is that if the Secretary of State permits appointments to be made only fairly late in the day, there could be a lame duck in a senior post, not knowing whether he or she had a future. That is a very unsatisfactory position to be in. I urge that the Secretary of State should give as much notice as possible in the case of renewing appointments, or of removing appointees and appointing new people, so that there is at least some continuity. That would be fair to Northern Ireland and to the people concerned.

I am worried about what the decision-making will mean regarding planning constraints. There have been one or two such cases in Northern Ireland, and in the past few months civil servants have very cautious about giving the go-ahead for major projects requiring planning permission, because they are concerned about whether they have those powers or not. Planning constraints are important, but I hope there can be at least some relaxation, so that worthwhile projects that would create jobs and be beneficial to Northern Ireland are not held up. When people want planning permission for such projects they cannot always wait. They may not have the money to sit tight, and the chance will go away. The Minister will know of some examples.

I note what the noble and learned Lord who preceded me said about abortion, but I want to leave that until we deal with the amendment.

Penultimately, may I ask the Minister a question that he will expect to come from me—one about child refugees? I know that some parts of Northern Ireland have taken Syrian families, but I would like the Minister to answer this question: can it be made possible for Northern Ireland to provide foster accommodation for child refugees through the scheme under Section 67 of the Immigration Act? I have been told by people in Northern Ireland that they would like to co-operate, and there are local foster parents who would be willing. I understand that it is a matter for the health boards. I have talked to lots of people and they are all keen that there should be some progress. Can the Minister throw some light on whether that would be possible, or could be made possible?

Lastly, the Minister talked at a number of points in his speech about the consent of the Northern Ireland parties to one or two specific issues. I wonder how widely it could be made a principle underlying the Bill that the Northern Ireland parties should be asked in an informal consultation process about some of the issues we are talking about today. That would help to move things along. It would not give a mandate or make the process legal in terms of devolution, but at least consulting the Northern Ireland parties on some of the changes that need to be made might not be a bad idea.

Photo of Lord Eames Lord Eames Crossbench 4:00 pm, 30th October 2018

My Lords, the columns of our newspapers in Northern Ireland are frequently filled with people giving their wise or otherwise comments on public affairs. In the last few weeks the discussion of the Bill that is before the House today prompted one writer to say, “Here we go again”—and I have a feeling that that is the emotion that many noble Lords will be feeling at this moment. Because I believe that that is a danger in its own way, we need to put everything that we are saying this afternoon—and, as I have been reminded, this evening—in the context of what the reality is.

Yes, here we go again: we face another look at the disastrous consequences of a failure to establish a local Administration at Stormont. We all know the story, the excuses and the reasons, and we are left in no doubt that, even though at one stage in recent history, we are told, the main parties were within grasping distance of an agreement, no agreement was possible. For my part, I believe that we would be failing the people of Northern Ireland, who are after all the substance of what we are doing, if we did not realise that, no matter what the details are of our discussion and debate, it has an effect right across the board on a society that in many ways is unique.

It is unique because it is a devolved Administration and because many of the things that have happened question the value of devolution and the way in which the United Kingdom goes about it. In the margin of many of the arguments that we have heard over and over in this House, there are questions of a fundamental nature that we find it comfortable to avoid, such as: does devolution mean the New Jerusalem to those concerned because power is given to local politicians? When those local politicians find that the margins in which they are asked to work are not possible, we then ask the bigger question: does that mean we have somehow got the theory of devolution wrong?

Once more the disastrous consequence of the failure to reach agreement on the formation of that devolved Administration for which we had such hope at the time of the Good Friday agreement is that our people are being denied a voice on serious issues. The reality is that this failure means that medical services, education, social services, roads, transport and indeed victims face impossible odds because Stormont cannot take serious decisions.

It would be very easy to place much of what we are talking about this afternoon in a context that takes us away from the reality of the experience of Northern Ireland. It is a society which has suffered much and which is still trying to come to terms with the wounds of the Troubles. They are not just physical or obvious wounds. They are the failure to build relationships, to mature in political relationships and to understand that within our grasp, if we have the rare will to do it, we can achieve much that has so far eluded us. The absence of this local devolved Administration in these days as Brexit comes galloping—dare I say?—across the Irish border, fast approaching with all its unanswered questions, means that Northern Ireland is bereft of the presentation of its local voice.

We have been reminded by the Minister that this is the Government’s attempt to meet a unique situation. We are told that it is one means of encouraging local government in Stormont. It places on our Civil Service responsibilities to take actions that could easily lead it into a legal minefield. That, for me, is a real concern. It causes long-term questions on the theory of devolution. We are bound to ask: after this Bill, what happens next? What happens if the consequences of this Bill falter yet again? Will the Government face another situation where special needs must be met by special provisions? Are we, in fact—I ask the Minister directly—in danger of setting a precedent that could be interpreted in other devolution relationships in the United Kingdom? Today we face decisions affecting the people of Northern Ireland which their representatives, rather than Westminster, ought to take.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 4:07 pm, 30th October 2018

My Lords, no one in this House who has just heard what the noble and right reverend Lord said would feel anything other than the most profound sympathy, both for what he said and the picture he painted. I am English but married to an Ulsterman and go regularly to Northern Ireland. I heard that with mounting depression, but it does not surprise me. I also feel a great deal of sympathy for the Government, who are doing their best not to take over. They are doing their best to allow for a situation in which they can persuade those who do not seem to want to be persuaded that they must form an Executive and recall the Assembly.

I want to say a few words about Clause 4, which is not, of course, government-inspired, for obvious reasons. In the other place, there were interesting and useful arguments on devolution and human rights. It is not necessary to explore those today, except to say that the Supreme Court has criticised the situation in Northern Ireland in no uncertain terms. I particularly remark on the speech of the noble and learned Lord, Lord Kerr, who was the Lord Chief Justice of Northern Ireland, and was perhaps more outspoken about the injustice to the women of Northern Ireland.

On the Bill itself, even if there had been a declaration of incompatibility, as a previous speaker seemed to think, the Supreme Court could not make it because it came from the commission, not an individual, so there was no declaration. As the noble and learned Lord, Lord Mackay, pointed out very clearly in his exposition of the law, a declaration of incompatibility would not help at all in this situation. If he is right, as I assume he is, abortion is currently more serious an issue than same-sex marriage because at least there can be civil partnerships. The current situation on abortion is, however, as the Supreme Court said, profoundly unfair. I would not want to open the floodgates of easy abortion to Northern Ireland, but certainly there are situations of rape, incest and foetal abnormality that absolutely cry out to be dealt with.

Having heard the figures from various noble Lords, it is interesting that, like many others, I have had a lot of emails from women supporting the clause and women opposing it—more supporting the clause. I feel, “Poor dears, what do they think this clause really means?” The clause means absolutely nothing on abortion. It will help no one, and it raises expectations with a clear misconception, misunderstanding and misinterpretation of what the clause will say when it inevitably becomes law.

As the Secretary of State in the other place said, the clause puts an impossible burden on her because she will be expected to do something. Those who disapprove of it will see that she may do something they do not like. Those who want it—despite some of the figures we have heard, many women do want it—will find that she cannot do it. Her civil servants cannot do it. As the noble and learned Lord said, if they tried to do anything, they would rightly be slapped down by judicial review because sufficient people would oppose it for it to be taken to the Northern Ireland courts.

There has been a very well-meaning attempt by Members of the House of Commons to circumvent devolution by putting in a clause that I cannot believe they thought would mean anything or would do any good. I do not understand what they thought would happen but it will send a message—or a number of messages. I was told yesterday by somebody from Northern Ireland that this could even send a message that might have some adverse effect on the Good Friday agreement. That may be a step too far but it is certainly something that one cannot ignore. It is the expectation that has been raised that is so sad. What will the Belfast Telegraph, the News Letter or other newspapers in Belfast say after this goes through and becomes law?

If anything is to be done, the Government will have to take over the management of Northern Ireland and, in doing so, the point made by the noble and learned Lord will fall away because London—Westminster—would be making the laws. If Westminster makes the laws, it could change the Offences Against the Person Act, but until the Government do that—and they have absolutely no intention that I can see to do that, for obvious reasons—there is a stalemate, and nothing useful can be done. It is very unfortunate that seeing the Bill through on one day, for perfectly good reasons, means that there is no time for reflection on the best way forward. Clause 4 will pass and it is very unfortunate that it will become law.

Photo of Lord Dunlop Lord Dunlop Conservative 4:15 pm, 30th October 2018

My Lords, I rise to support this Bill—the fifth piece of fast-track Northern Ireland legislation this Session. I confess that I do so with a slightly heavy heart, because legislating this way is far from ideal, as the Constitution Committee— of which I am a member—points out in its report. However, I sympathise with the Government’s predicament. Last year, as a Minister in the Northern Ireland Office, I brought before your Lordships’ House a fast-track Bill to extend the limit for creating an Executive to 108 days. Going the extra mile to try to restore devolved government in Northern Ireland is clearly right. By all accounts, as has already been pointed out, the DUP and Sinn Fein came within a whisker of an agreement in February. Further extending the time available is an understandable impulse, but will the sense of urgency to strike a deal diminish with each deadline passed and then extended? What happens if stalemate persists at the end of extra time, when there is no political equivalent of a penalty shootout to break the deadlock? These nagging questions remain.

All that said, in the circumstances I believe that the Bill is the least-worst option judged against two pretty unattractive alternatives. Those are either that there will be another Assembly election that changes little, with a campaign that might unhelpfully raise the political temperature; or that the spectre of direct rule returns. No one wants that; history has shown that it is not easy to escape from—it took nearly five years the last time.

That is why the current state of affairs is so frustrating. Between the end of direct rule and the dissolution of the Assembly in January 2017, Northern Ireland enjoyed the longest unbroken period of devolved government since the dissolution of the old Stormont Parliament in 1972. That was nearly 10 years in which there were real and positive steps forward in Northern Ireland, and it is a more peaceful and prosperous place today as a result. Yet, just at the moment that Northern Ireland should be driving forward and building on the progress of the last two decades, it has languished for 22 months without executive Ministers. If negotiations go to the wire allowed for by this Bill, the vacuum could in theory persist for another 10 months. That is nearly three years without an Executive developing policy and being held to account by a fully functioning Assembly.

This is a troubling democratic deficit that our UK Parliament could never hope to make up. However, if further legislation is required, or fresh guidance from the Secretary of State, I hope the Government will be mindful of the need to provide as much time as practical for this Parliament to scrutinise and debate what is proposed.

It is, of course, the Buick judgment in July that has forced the Government to act now. The court judged that decisions normally for a Minister to approve lie beyond the competence of a senior civil servant in the absence of a Minister. However, the court offered no definitive view on where the dividing line should be drawn. Matters that are significant, controversial or engage more than one department would normally be a collective executive decision, and therefore are clearly beyond a senior civil servant’s competence, in even these exceptional times.

The Bill still leaves a very large grey area. In the absence of this Bill and in the face of a heightened risk of further legal challenges, one can well imagine how there might be a chilling effect on Civil Service decision-making. The Bill seeks to fill that void. However, the lines between policy and administration are never clear cut. The scheme set out in Clause 3 and draft guidance attempts to strike a balance that is difficult, if not impossible to achieve—balancing sufficiently wide scope of administrative discretion with the controls on how that discretion is exercised, without normal accountability mechanisms. The Constitution Committee’s report highlights a number of constitutional issues, including the breadth of conferred powers, lack of clear lines of accountability and the retrospective effect of Clause 3. However, the committee accepts that exceptional times require an exceptional response, while expressing concern that the Bill’s exceptional and constitutionally challenging provisions are not taken as precedents for future legislation.

Whatever our concerns about the Bill, we must not lose sight of the bigger picture. In the absence of fully functioning devolved institutions, decisions crucial to the future prosperity and security of the people of Northern Ireland are simply not being taken. Devolved corporation tax designed to give a boost to Northern Ireland’s economy is stalled; £2 billion of critical economic infrastructure, such as the north/south electricity interconnector and the new Belfast transport hub are in a holding pattern. Recommendations from the Hart report into historical institutional abuse are unimplemented. A strong elected voice representing Northern Ireland’s interests in the Joint Ministerial Committee discussions to prepare for Brexit is absent, not to mention the pressures facing schools and hospitals. Nothing in the Bill will directly change this state of affairs. One can only hope that the Bill provides a space to facilitate a political resolution.

My last official engagement as a Northern Ireland Office Minister was on 7 June last year, on a windswept ridge in Flanders, at the ceremony to commemorate the centenary of the Battle of Messines. The battle has great symbolic significance for the island of Ireland. Soldiers from the 36th (Ulster) and 16th (Irish) Divisions fought together for the first time during the First World War. Unionists and nationalists set aside political differences to unite in a common cause. Their story and sacrifice made a powerful impression on all those there, nationalists and unionists alike. The example of those servicemen echoes down the years and stands as a rebuke to those who have not—after nearly two years—resolved their differences. As we approach our own national day of remembrance, I hope that Northern Ireland’s political leaders will reflect on the example set by those soldiers, rise to the same heights of leadership and do right by the people of Northern Ireland by restoring the devolved government they clearly want, urgently need and so richly deserve.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP 4:22 pm, 30th October 2018

My Lords, regrettably we are again discussing another piece of legislation that should not have been necessary. Once more, we are holding a debate against the backdrop of a Northern Ireland with no locally accountable decision-making body in place. None of us wants to be in the current situation with no local decision-makers. As I have said many times before in this House, it is vital that we move forward positively. Northern Ireland has moved on considerably during the last decade and, despite the present situation, none of us wants to go back to where we were in the past. In the context of the continued absence of a fully functioning Assembly and Government, legislation such as this is necessary to facilitate the continued governance of public services. Bills require scrutiny, analysis and examination. This is the level of accountability that one should expect. Time does not allow for a great deal of that today and I would, naturally, prefer that such matters were scrutinised in the context of Stormont. Unfortunately, this is not the present reality.

I support the Bill, but I do so cautiously as it is limited in scope and far from an ideal solution. Before focusing on a couple of specific concerns, it is important to look at how we have reached this situation. It is worth repeating that we are discussing these matters in your Lordship’s House, and in the other place, only because of one party’s narrow agenda. Instead of a fair and balanced way forward, the party that collapsed the Stormont Assembly in January 2017, and refused to return, continues to halt progress in re-establishing a Government. One party continues to place the fulfilment of demands ahead of governing in the interests of everyone in Northern Ireland. Unfortunately, the result is that there is little prospect of a return to local decision-making at this time.

The legislation before us, although welcome, will continue to present challenges. Unaccountable senior civil servants have been tasked with taking decisions within departments for a considerable period of time. It is true to say that in some instances, decisions have been delayed and many are still not being made. I commend the Government for being proactive in issuing supporting guidance to the Civil Service so that it can get on with its job of doing the necessary work to advance day-to-day living in Northern Ireland.

The Buick ruling undoubtedly undermined the status of officials. Although the legislation and guidance are aimed at dealing with this directly and at providing some advice and clarity to reassure officials, I remain concerned that it gives limited scope for decision-making. There are still real concerns that decisions will be subject or open to judicial review or legal challenges. Does this legislation do enough to minimise the possibility of such a scenario?

It is to be welcomed that there is some assurance that decisions can be made, although it is likely that these will be non-controversial, covering planning and investment, which enjoy a broad consensus. I welcome the Government’s clarity in the other place that a decision such as that on the transport hub, which is crucial to Northern Ireland’s economy, can be advanced under the terms of the legislation. Policing Board members and other appointments can now be made, and this is extremely important.

There is now a specific requirement for senior department officials to report monthly directly to Her Majesty’s Government on decisions that have been taken under the Bill. This is an important point which deals with transparency, and I am pleased to see that it has been included.

There are some understandable fears of a continuation of the current situation, in which decisions in a range of areas, such as education, health, housing and major projects are not being taken. The Bill provides no certainty on key decisions. Permanent Secretaries in a number of departments have been cautious to date about advancing the number of decisions which have been in the pipeline for a considerable time. More than 200 decisions have lain in abeyance across departments since the suspension of the Assembly, and although we have made some progress within this Bill, there is no compulsion for officials to make key decisions that impact on the people of Northern Ireland.

These decisions need to be made if we are to see day-to-day public services restored to the level at which they should be. Budgetary decisions also need to be taken urgently, and policing and departmental spending challenges will continue to be an issue in some cases, as the allocations officials are working with are based on historic decisions taken by the previous Assembly.

On Clause 4, regardless of one’s personal views on abortion, it must objectively be accepted that this is a controversial issue in Northern Ireland. An amendment has been tagged on to this Bill, and this does not allow enough time for proper consideration or scrutiny of this matter. It is also the case that, in the United Kingdom, this is clearly defined as a devolved matter. The courts have recognised that this issue is, rightly, for the relevant democratic body, which, in this instance, is the Assembly. This is an attempt to change the law. As the Government have previously noted, guidance cannot do that. Any change in the current law in Northern Ireland will require legislative change. This provision is asking the Government to ask officials to do something that is impossible in law. This clause is therefore an inappropriate vehicle, regardless of the substantive issue involved.

Given that we are now approaching two years since the Assembly last met, we have reached a point where there needs to be some level of political decision-making, accountability and public scrutiny. Decisions will need to be made on a range of issues. I ask the Minister to provide assurance to departments that relevant ministerial approval will be provided.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench 4:29 pm, 30th October 2018

My Lords, in March 1979, four days after Airey Neave was brutally murdered in the precincts of Parliament, I made my maiden speech in the House of Commons. I reflected on the need to find political solutions to the endless cycle of violence in Northern Ireland. During the years that followed, I served as a spokesman on Irish affairs. In 1985 I was appointed by the noble Lord, Lord Steel, to be a member of the commission that served under the chairmanship of the late Lord Donaldson of Kingsbridge, which produced the report What Future for Northern Ireland? Our commission concluded that progress could be made if, instead of encamped and embedded hostility to the other community, the respectful place of both traditions in a devolved power-sharing institution could be recognised. While endless legislation was rushed through as emergency legislation, none of it addressed the fundamental issue.

Eight years later, on 20 March 1993, the shocking waste of innocent life was underlined when a bomb was left in litter bin in a shopping area of Warrington. Two children, three year-old Johnathan Ball and 12 year-old Tim Parry, were murdered. As I stood with John Major at their funeral, it was clear that the finest memorial to those boys would be renewed efforts to end a conflict which, over 30 years, claimed 3,600 lives, injured and maimed thousands more, and left countless lives scarred and disfigured in the way that my noble and right reverend friend Lord Eames described earlier.

The Downing Street declaration of December 1993 paved the way for the Good Friday agreement, signed on 10 April 1998. The painstaking and patient work of a succession of Secretaries of State, some of whom have been in your Lordships’ Chamber this afternoon, the statesmanship of men like John Hume and the noble Lord, Lord Trimble, and ultimately the willingness of the Reverend Ian Paisley and Martin McGuinness to make devolution work, set aside the forced choice between British and Irish identities, with two tribes looking out at one another in enmity and hate—all gains alluded to by the noble Lord, Lord Dunlop, in his moving speech.

I hold both an Irish and a British passport, as do my children. In two world wars, my grandfather and father fought in the British Army, and an uncle died in the Royal Air Force. My mother was a native Irish speaker. Her family suffered extreme poverty in an area where Irish nationalism and republicanism had been nurtured by famine in one century and brutality in the next. So, more than most, I have always had to hold in tension a love of both traditions. From both sides of my family I was taught to abjure violence and to uphold the sanctity of every human life. I am troubled to see the gains of those years now at risk. Here we are again, rushing legislation through this House in 24 hours flat, with the House of Commons having done the same.

I was struck—it has not been referred to yet—by the report of the Select Committee on the Constitution of your Lordships’ House, published only yesterday. It stated:

“We question whether the speed at which the Government wishes to pass this Bill is necessary … more time (even with a fast-track timetable) could have been made available for parliamentary scrutiny of this Bill”— which is surely our job. It continues:

“We emphasise that in any other circumstances provisions such as these which challenge established constitutional principles would not be acceptable”.

That brings me to Clause 4, which the noble Lord, Lord Browne of Belmont, just referred to, as did other noble Lords. It purports to provide guidance to members of the Civil Service in Northern Ireland in relation to the repeal of Sections 58 and 59 of the Offences Against the Person Act 1861: namely, the provisions banning abortion—the deliberate ending of the life of a child in the womb. This is a serious issue. This is the law of this land. “Procuring miscarriage” is an offence unless two doctors agree that one of the defences set out in the Abortion Act 1967 applies. So how can the Secretary of State issue guidance to another jurisdiction advising on the repeal of legislation that is current law in her own jurisdiction? As the noble Lord, Lord Empey, said earlier, this is smoke and mirrors—and, as the noble and learned Baroness, Lady Butler-Sloss, said, it makes a nonsense. This is an absurdity, and on this point alone these ill-thought-through amendments ought to be dismissed.

In the mid-1990s, I accompanied a cross-community delegation of Members of Parliament—from the Social Democratic and Labour Party, the Official Unionist Party and the Democratic Unionist Party—to see John Major. We were given his assurance that he and the Conservative Government would insist that abortion would remain a matter to be settled in Northern Ireland. It troubles me that Clause 4 seeks to unsettle that agreement. In a Bill of such a limited and temporary nature, how can anyone reasonably suggest that an issue as contentious and sensitive as abortion should even be included for consideration?

In the Commons, the amendments that were introduced came at such short notice that many MPs did not even know that the House would divide. Karen Bradley, the Secretary of State, was right when she said that if the amendments were passed, which they were, it would put the Northern Ireland Civil Service in “an impossible position”. She went on to say that,

“the Bill cannot force Northern Ireland Departments to change the law”, as the new clause seeks to do—a point made by the noble and learned Lord, Lord Mackay of Clashfern, in his remarks earlier. The Secretary of State said:

“It would be totally contrary to the rule of law and the way the independence of the civil service across the whole United Kingdom operates”.—[Official Report, Commons, 24/10/18; col. 385.]

In March of this year, 47 Members of this House, including former Cabinet Ministers, co-signed a letter to the Secretary of State for Northern Ireland noting that legislation from Westminster would severely destabilise the devolution agreement. The Prime Minister says it would not be right for the United Kingdom Government to undermine the settlement agreement.

We have heard many references during the debate to things such as human rights. In December we will celebrate the 70th anniversary of the Universal Declaration of Human Rights, which says that everyone has the right to life. There is no right to abortion in human rights law: let us be clear about that. Nowhere does the Universal Declaration of Human Rights refer to abortion being a human rights question.

There will be a chance to return to these issues in Committee, but let me conclude. Noble Lords do not have to agree with my substantive opposition to the taking of the life of a child in the womb, up to and even during birth in the case of a child with a disability—which results, in Great Britain, in one abortion every three minutes, or around 40 in the two hours that we have been debating this Bill so far, or some 9 million since 1967—or my noting that if that legislation had applied in Northern Ireland, 100,000 people would not be alive today who were born because the legislation does not apply there. Noble Lords do not have to agree with my view about this to be concerned about the provisions in this Bill. As parliamentarians, we have a duty to pass laws that make sense, a duty to uphold the principles of subsidiarity, a duty to resist the making of laws on the hoof, a duty to insist on proper scrutiny and debate, a duty to contest ideology and sloganeering, and a duty to respect the people of Northern Ireland.

Photo of Lord Trimble Lord Trimble Conservative 4:37 pm, 30th October 2018

My Lords, I have a lot of sympathy with the suggestion made by the noble Lord that we could have benefited from a procedure that allowed a more thorough examination of the legislation. However, we are where we are, and we are dealing with legislation which at the moment has to be acknowledged to be necessary. It is necessary because, for a long time now, the Secretary of State for Northern Ireland has been vulnerable to a judicial review, and while that has not matured, she does need the provision that is in here to protect her against that.

Another factor that has been mentioned is with regard to doubt over the capacity of civil servants to take decisions in these matters, and here I just do not understand the problem. The Government of Ireland Act 1920 is quite clear: Section 8 puts executive powers in departments. Very clearly, the devolution is to departments. We could have a long argument about how this came about, because it flies against normal British practice, but this happened. There are hypotheses about it, but I am not going to go into the question of how it came about; I am simply saying that is the law, and that is the law that civil servants are exercising. Civil servants may find it embarrassing, but the law is as it is in the 1920 Act.

Clause 4 has been referred to, and I agree with a lot of the negative comments made with regard to it, but I have to say there is again another misunderstanding of what the law is. With regard to the law in Northern Ireland, the only substantive difference between the law in Northern Ireland and the law in England and Wales on abortion is the question of foetal abnormality. On all other matters the law is the same, in terms of the substance of the law. What is different is that the law in England is in statute law, but in Northern Ireland it is in common law: judicial decisions, including the Bourne decision in 1938. The problem then lies with the lack of a clear process and a way of proceeding. It is all very well to say, “Go and see your GP and he should arrange an abortion for you”. I do not think that that happens very often, but that is basically what should happen under our law. Rather than people having to go to England and spend thousands of pounds, they should go be able to go to their GPs. Unfortunately, some doctors do not display the courage or constancy that is required. A further problem has been that various people put the health service under pressure to produce guidelines, which resulted in the Civil Service producing guidelines that were overly cautious and narrower than the law. Those guidelines should be dumped and we should have a clearer understanding of the law. Again, I do not want to spend too long on this point, although it has to be made. I am afraid that I disagree with some noble Lords—indeed, some noble Lords who are highly learned in the law—but I am confident that the situation is as I have stated it.

We should focus on the political problem in trying to resolve the difficulties. I agree with a lot of what my noble friend Lord Empey said. He gave a very clear description of the problems and of the way in which, unfortunately, the Government have not been able to progress matters in the way that we would like. However, that is understandable, as we have so much on our plates at the moment. I can well understand someone saying to the Secretary of State for Northern Ireland, “Don’t bring me any new problems”. I am sure that that is the sort of thing that is being said there, but it is unfortunate that we do not have a viable political process to bring about a restoration of devolution.

There would be difficulties with that, because it is quite clear that Sinn Féin does not want to see Stormont restored. We need to find a process analogous to that which happened way back in 1997, when Tony Blair became Prime Minister and made his first speech outside London, in Belfast, in which he said to the republican movement, “A settlement train is coming. I want you to be on the train, but it will be going with or without you”. That put pressure on Sinn Féin to come into the process. We now need to find a way of exerting that kind of pressure on Sinn Féin to get things moving, because it will not move without pressure. One likes to think that, once Brexit is resolved, it might be prepared to look at things, but I am beginning to have doubts about whether it will really want to do that.

So the question is: how do we exert the necessary pressure? I have put forward proposals on these matters on previous occasions, but nothing has happened, probably because those proposals were too ambitious. This time, I am going to the opposite extreme and will table an amendment later today which is as cautious as I can make it. In fact, I cannot think of anything that could be more cautious than what I am about to propose, but it might start something moving, which is what we need to happen.

Finally, there have been a number of unkind comments, particularly in the debate in the other place, about Northern Ireland MLAs drawing salaries when there is no Assembly for them to participate in. That is not their fault—unless they are Sinn Féin Members, in which case I think they have to bear some responsibility. They are trying to do their best in their own way, and I shall give a little plug for my own MLA in Lisburn, Robbie Butler. One of the things he is doing to try to keep politics alive is that normally, on a weekly basis, he transmits videos that deal with various issues, and they are very effective. In September, he issued a video on suicide awareness and it has had 34,000 viewings, which is incredible in the current context. I declare an interest in this matter. It is not just that Robbie is my MLA; he has had the good sense to employ my son in his office. I mention that to show that MLAs are doing the best that can be expected of them in the present circumstances. However, it is our responsibility, and particularly the Government’s responsibility, to put them back into the circumstances they ought to be in—in a functioning Assembly.

Photo of Lord Adonis Lord Adonis Labour 4:44 pm, 30th October 2018

My Lords, it is a great privilege to follow the noble Lord, Lord Trimble. Given the success he brought to the office when he was First Minister of Northern Ireland, can I suggest that his son is immediately given a hereditary peerage so he can participate in these debates? This might enable him in quick succession to become First Minister of Northern Ireland.

I feel, as with some other noble Lords, like an interloper in this debate, particularly sandwiched as I am in the batting order between the noble Lord, Lord Trimble, and the noble Lord, Lord Alderdice, both of whom played an extremely important role in the operation of the devolved institutions. However, the reason why I and others are speaking—and we do so without any hesitation—is precisely because there are no devolved institutions in Northern Ireland at the moment. We take a view, which we have a duty to take, that after two years where there has been no Assembly and no Government in Northern Ireland, we in Westminster have a duty to take an interest, including, I would say to the noble Lord, Lord Alton, in fundamental rights in Northern Ireland.

The point which is essential to grasp here—and it is also my comment on the speech of the noble Lord, Lord Morrow—is that if Northern Ireland wishes to exercise the prerogatives of devolution, it must operate devolved institutions. It is unacceptable for those of us in Westminster, who are ultimately responsible for the welfare of people in Northern Ireland, to be told that we should respect a devolution settlement which the political parties in Northern Ireland will not respect themselves. That is an unsustainable position.

I believe that is against our fundamental duties as Members of this House and the other place, and there can only be a short period of time for which we can tolerate it any longer. This Bill says until the end of next March—that is nearly three years in which the people of Northern Ireland will not have had an Assembly or a Government. Could the people of England tolerate for one moment the idea that this House would not be sitting for three years? I made a bit of a fuss before the summer at the idea we were not sitting for 10 weeks. The idea we would not sit for three years—that the other place would not sit for three years too—and would devolve to civil servants the task of running the country is utterly unthinkable, and that is the context in which we are dealing with these issues in Northern Ireland.

I say to the noble Lords, Lord Morrow and Lord Alton, if they think that the devolved institutions of Northern Ireland are required to protect fundamental rights, then those institutions must sit and legislate. If they do not sit and legislate, then we have a duty to legislate in their place, because there is no one else who can do it. We cannot tolerate a situation where there is no Government or legislature for Northern Ireland. If the only legislature available is this one, then we have a fundamental duty in that respect.

The noble and learned Lord, Lord Mackay, who is not in his place at the moment, said that we have to respect the devolution settlement and we do not have a right to legislate. I really do hesitate to take on a former Lord Chancellor, but my understanding of the constitution of this kingdom is that if this Parliament chooses, in its wisdom, to legislate, its law is supreme. Indeed, it has to be supreme because there is no other supreme body in this kingdom.

If we continue in this situation where the political parties in Northern Ireland—despite the strong advice being given by many of their wisest leaders in your Lordships’ House this afternoon—take the view that they are not prepared to operate those institutions, there must come a point, probably not far distant from now, where some form of direct rule will need to be instituted. The alternative to that is no legislature and no Government in Northern Ireland, which puts an intolerable pressure on civil servants, who cannot be expected to have to take these decisions without a proper, democratic set of institutions.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I want to ask the noble Lord whether he thinks he was right in saying that this Parliament in Westminster could actually pass legislation. I think we would have to take over Northern Ireland and go beyond devolution when there is power for us to do that. But I think in the absence of that, we could not, today for instance, pass a law.

Photo of Lord Adonis Lord Adonis Labour

My Lords, I absolutely defer to the noble and learned Baroness. If she says that that is the case then she is obviously right, but there clearly are procedures by which we can exercise our sovereignty—the only question is what those procedures are.

I thought that the speech of the noble Lord, Lord Empey, was quite brilliant. I have been to Northern Ireland several times in recent months to acquaint myself with the situation because of the debates taking place on Brexit, but also partly because the only way of understanding what the views of the parties and politicians across the spectrum in Northern Ireland are is to go there. It is not possible to get them here because, unfortunately, Sinn Féin does not take its seats, nor is it possible to be guided by the views of the Northern Ireland Assembly because it is not meeting. It is quite a commentary on our affairs that literally the only way of understanding what is going on in Northern Ireland, if you sit here in the Parliament in Westminster, is to go to Belfast and meet the parties.

When I went to Belfast, I had extremely constructive discussions with the parties in Stormont. It was the first time I had been to Stormont; its grandeur is quite extraordinary. These are institutions very much in the image of Westminster. What really struck me while I was holding meetings in one of the committee rooms, where I am told that the Executive used to meet, was that in the Senate Chamber was meeting the inquiry into the renewable heat scandal, which the noble Lord, Lord Empey, referred to. If a scandal on that scale had happened here in London, by now there would be cases in the courts and serious legal proceedings. The noble Lord is absolutely right to say that the fact so little is known about those affairs here and we take so little interest in them is, I am afraid, something of a condemnation of us. However, if these affairs continue in Northern Ireland, I believe we will have no choice whatever but to become involved.

This is Second Reading and we will deal with Committee in due course. I will put down a marker for three issues that seem essential for us to address ourselves to in Committee, since there is no Assembly in Northern Ireland. The first is the issue of a mediator and getting serious talks started that could lead to a new Government in Northern Ireland. The Minister, in his excellent introductory speech, said that “intensive talks” are necessary. He also said—I noted this down as he said it—that,

“we will not be waiting until March”, to get intensive talks going. I take those to be significant statements. Could he, in his summing up, return specifically to the issue of whether the Government will as a matter of urgency proceed, with agreement among the parties in Northern Ireland, with the appointment of a mediator? It seems an essential next step since nothing else appears to be producing momentum. I have amendments tabled in respect of that, but I do not intend to press them. I am looking for assurance from the Minister that the Government will move in this regard.

Secondly, on abortion and equal marriage, the situation as I see it is as follows. It is a judgment that will be held by a majority in this House and in the House of Commons that the current law in Northern Ireland is not consistent with fundamental human rights. Other noble Lords might take a different view and some of them have spoken in this debate, but it is my view that that would be the judgment of a majority. Indeed, that clearly was the judgment of the majority in the House of Commons. I expect that it will be the judgment of the majority in this House too. The only point I make in this regard is this: if the people of Northern Ireland want to take a different view through their elected representatives, those elected representatives must meet, because there will come a point, which I believe is not far distant, where, if they do not meet, we will be obliged to legislate.

Thirdly, there is the issue of Brexit. What has taken me to Belfast, Dublin and the border territories in recent months are discussions on this very vexed issue of the Irish border and how it is possible for us to Brexit while not having a hard border. It seems to me that we need some mechanism in the coming months, given that there is not an Assembly and an Executive in Northern Ireland, where we—this Parliament in Westminster—can receive the views of the elected representatives of Northern Ireland, not just from the one party that takes its seats in the House of Commons. In my amendments on the Order Paper, I suggest that the way of doing that would be to have a special sitting of the Northern Ireland Assembly without there being an Executive, purely for the purpose of debating Brexit and reaching a resolution that could then be submitted to the Parliament here. My understanding from his speech is that the noble Lord, Lord Trimble, might have a more ingenious suggestion to make later on in Committee as to how the opinions of the parties in Northern Ireland might be taken in respect to Brexit. I will absolutely defer to him if he has such a suggestion to make. I believe it is important in the coming debates on Brexit that we are able to take account in some formal way of the views of the political parties and their elected representatives in Northern Ireland. In the absence of any better solution to this problem, I suggest that there should be a special sitting of the Assembly.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat 4:55 pm, 30th October 2018

My Lords, other noble Lords have already commented on the fact that yet again, we have fast-track legislation in respect of Northern Ireland. In no way, however, could this be described an emergency situation. Time after time I have advised the Government in this House from these Benches that the Secretary of State was operating ultra vires and that civil servants could not take the decisions that needed to be taken. The last time was in the debate on the Budget on 18 July. It is not just regrettable: it is becoming a really bad habit to keep bringing forward fast-track legislation when the problems have been known well in advance. It is almost as though the Government do not seriously want to discuss and debate these matters in detail, because there is no other excuse for what is being done.

Having said that, I am, of course, glad to see that the positions of the Secretary of State and the civil servants are being regularised in respect of departmental functions and appointments. However, that addresses only the legal problem and in the short term. It does not address the political problem, which is the reason for us being in this difficult situation. Noble Lords on the other side have described the responsibility that Sinn Féin bears for being in this situation, but it is not only a question of Sinn Féin.

Let us reflect on the fact that Martin McGuinness, who played a very valuable and constructive role with Dr Ian Paisley—Lord Bannside—resigned over the question of the First Minister’s handling of the RHI debacle. As time has gone on, whatever responsibility some members of Sinn Féin and Sinn Féin Ministers may have, it is absolutely clear that what was happening under the aegis of the First Minister, Arlene Foster, was utterly unacceptable and reprehensible. The report that is going to come out will be devastatingly bad, and so it should be. What is worse is that Arlene Foster had the experience of stepping in for Peter Robinson when he, as First Minister, stepped back from his role briefly but very appropriately on a matter of much less public expenditure import. She could have done the same, and we might well have not had the suspension of the Assembly.

On the question of whether we need a mediator, the parties were perfectly capable of getting together and coming to an agreement. The problem was that Mrs Foster was clearly not able to deliver that agreement when it went back to her own party. There is no evidence that getting an agreement through a mediator or otherwise is actually going to deliver, because it is not only one party that is a problem here: it is two parties. That is why, in addition to saying to the Government, “You have a legal problem with the Secretary of State and possibly civil servants operating ultra vires,” we need to say, “You have a political problem and you need to address that by an election”. All this Bill does from that point of view is postpone the date of that election, because it would not be acceptable to go to any form of direct rule at any stage without an election. All we are doing is postponing it.

I accept that November, December and January are not very good months for an election. I also accept that we might be preoccupied with other things by the time February and March come round, so I understand the provisions, but this is not the first time that the warning has come. This is not the first time I have asked for an election. Will the Minister, in his response, indicate why it has not been possible to have an election during any of the period of time when the election should have been held?

We may well come to the situation that the noble Lord, Lord Adonis, has mentioned: we go through this period, there is still no agreement; we have an election, there is still no agreement. What happens then? The point that the noble Lord, Lord Adonis, needs to pay attention to is that we do not simply return to Westminster sovereignty. Why? Because we have an internationally binding treaty with the Republic of Ireland. That means that if there is to be any change or any development, it would have to be in discussions with the Irish Government. I think it unlikely that they are going to agree to a simple matter of direct rule. I think it much more likely that you would move to a form of direct rule in which there would be some clear acknowledgement of input from the Irish Government. That has been the trajectory for the last 25 or 30 years and I think it is the much more likely way out of this problem if the Northern Ireland political parties are not able to find a way of moving. That is the trajectory: this makes it a transition rather than a settlement. Much more could be said about that and I trust that we will be able to do so when we have the opportunity of a wider debate.

On Clause 4, the noble Lord, Lord Trimble, has pointed out, I think correctly, that much could be done by way of guidance under the current legal system. I well recall, as a young psychiatrist, having to do assessments on women needing abortions for reasons of their mental health, but that was tightened once people said, “We need some kind of guidance”. It would be entirely possible, legal and appropriate for the Secretary of State to look at the guidance that is being issued on the current law. But there is another matter that could be dealt with entirely legally, and I ask the Minister to respond to this if possible, if not this evening then at another time. What is to stop the Secretary of State, on these two issues that have been referred to, putting proposals forward for referendums, so that we would not be dependent on particular political parties in hock to minorities, or on opinion polls? We could ask the people of Northern Ireland whether they want to make a change to the abortion law or the law on gay marriage. That would not be undermining devolution but saying that, if elected representatives do not put themselves in a position to fulfil devolution, we do not ignore the people of Northern Ireland, nor human rights law, but we ask them to give their view. Is there anything to stop the Secretary of State making a recommendation that there should be referendums—non-binding, but nevertheless advisory referendums?

These are two issues on which there is deep disagreement between Sinn Féin and the DUP regarding the resumption of devolution. Therefore, it is actually important that they be addressed, whether by ourselves, the people of Northern Ireland, or otherwise. We are all preoccupied with Brexit now but I tell the House that, one way or another, elected representatives in Northern Ireland must get the matter resolved within a short period after Brexit. I know that Sinn Féin is keen to see itself in government in the South more than in the North, but when the noble Lord, Lord Trimble, asked what can be done that would induce Sinn Féin back into devolution, I can see a situation very clearly. If the minority Government in the South were to fall, if there were to be an election and Sinn Féin found itself in coalition Government in the south, which is entirely possible, despite what is said by the leaders of Fianna Fáil and Fine Gael, I can guarantee that you will have devolution at the drop of a hat, because Sinn Féin would very much like to be in government on both sides of the border at the same time.

This is still a moving picture. It may seem that watching politics in Northern Ireland is like watching paint dry, but eventually paint does dry, and we will come back to this issue again.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench 5:03 pm, 30th October 2018

My Lords, it is a pleasure to follow the noble Lord, Lord Alderdice. I have been scratching out bits and pieces that I was going to say and I was going to scratch out the bit about a referendum, but then I thought I would support it, since it had not come up. One of the problems we have in Northern Ireland is that we have a lot of politicians who say they are speaking for other people, but when you go around the country it is remarkable how few people they are really speaking for when they become hard line and morally demanding. That is all I shall say. Perhaps a referendum would at least settle it one way or another.

I welcome the Bill, although I think its scope is not nearly wide enough and it is very late in the day. The question has been asked: why it is an emergency, why it is urgent? The part of the Explanatory Memorandum entitled “Why is Fast-tracking necessary?” says “to provide clarity” and to “clarify the powers”. That does not mean that it is urgent. It means that Government sat on their backside and have done nothing since the Assembly crashed. Many of us in Northern Ireland would have said that that was incredibly predictable anyway. There seems to be very little forward thinking. If we look back for a moment at what happened in the Second World War under the coalition Government—I was not around—there was a single aim: to win the war, which they did. What happened afterwards? The whole thing burst apart. The Chuckle brothers, for once, had a single aim: to stop the violence. They stopped the violence and wanted power sharing. They got it, but what happens after a Government or a person achieves their aim? They make friends with their enemies to do so, but can they really work together in peace? There is a flaw there. I am not against devolved power or the devolved organisation and co-operation, but it is difficult to believe that it will go on for ever. Therefore, many of us thought that it was fairly predictable.

There are people who think that the Assembly—I am not running it down—was the be-all and end-all of everything, and that all the decisions were made because they flowed out of it. They were not, it was not easy and it was commendable that people were trying to make it work. It is by no means a perfect system. It made government very difficult, and it made life in Northern Ireland very difficult. You could not get things done because there were contradictory signals the whole time. The Government have ignored these fundamental facts for far too long, and there has been little forward planning. When you plan forward, we were taught in the military—I know this is getting military—to carry out an appreciation, but to make fundamental assumptions and base those assumptions on fact. If you do not refer to them, you begin to run into trouble. The Government should refer to them more.

In addition, lately, the Prime Minister and the Taoiseach seem to have taken back seats—they have hardly engaged at all on this issue. Their predecessors were much more active and provided more leadership. We were grateful for it, and it provided a great deal more impetus to getting people together, without a shadow of a doubt—let alone a mediator, which is for other people. I am pretty even on that. In future, we should demand much more involvement and determination from the Government and Westminster. The only democratically accountable body that we, as citizens in Northern Ireland, currently have is here, because the Assembly is not sitting. I also realise that we do not want direct rule; however, inasmuch as we are making laws today to enable certain things to happen, why are we not passing legislation to enable Ministers to be appointed from here for a short, specified length of time? That would not be direct rule: that would be interim management of the situation. I think it is quite a good idea, but others have thought about it and binned it a hundred times. It would be time-limited in the same way that the Bill is. We would then avoid this whole issue of Civil Service responsibility and power, and judicial reviews. This is obviously a minefield and it is very difficult. The Civil Service is outstanding, but we are pressurising it into making decisions on which there will be comeback. It would also mean that policy introduction would be current, not retrospective, as it tends to be at the moment, taking a long time.

Perhaps all this lack of attention, lack of action and legislation with limited scope is intended not to upset the two main parties—the DUP and Sinn Féin—and therefore achieve a return to Stormont. Again, I say to the Secretary of State and the Government—who say, “This is our aim”—that of course it is their aim. They say, “This is our wish, we believe it will happen”, to which I say, “Face the fundamental facts”. Enough people have pointed them out today and I certainly do not need to go into all that detail.

Personally, I believe that Sinn Féin has no intention of going back until after Brexit and possibly later discussions further down the Brexit road. It is waiting for the wheels to fall off this wagon and it wants to pick something up. If you were in Sinn Féin’s situation and wanted a united Ireland, what would you do? You would do exactly what it is doing. We should not be wasting dividend or any bonuses on Sinn Féin at the moment. You can use them only once and if you use them and do not get what you want, the next time round you have to leave it the heirlooms. We should not be going down that route. As has been said, the DUP has its own problems. It is not entirely one-sided but it appears that in that context Sinn Féin will say no.

The people of Northern Ireland, from all communities, feel totally frustrated and demoralised, with little hope of any progress. Somebody said—it may have been the noble Lord, Lord Empey—that people are not happy and everyone thinks that devolution and the Assembly are wonderful. I can tell your Lordships that people in Northern Ireland do not say that, because devolution has not worked for them, and that is that.

One has to remember that the vast majority of people—Catholic, Protestant, Muslim or whatever—are for peace, for a quiet time and for their own government. However, added to that is the number of people from not only Great Britain but Northern Ireland who served in the Armed Forces, and now our veterans are being hounded, when every one of them volunteered to serve—to lay down their lives if necessary—for our peace. Let us not squander all this by pussyfooting round those who brought about the Troubles. We need—from the Government especially—leadership, determination and legislation with the required scope until we get our Assembly and Executive back, but it has to work properly.

Photo of Lord Rogan Lord Rogan Deputy Chairman of Committees, Deputy Speaker (Lords) 5:12 pm, 30th October 2018

My Lords, I welcome the opportunity to contribute to this debate but, like others, I wish it was unnecessary. As the noble Lord, Lord Duncan, said, most of us would prefer not to be here today.

Earlier this year we celebrated the 20th anniversary of the Belfast agreement. Several noble Lords present in the Chamber played key roles in that remarkable achievement on Good Friday 1998, and should be very proud of what they did. But I am sure that, like me, they can barely believe that, two decades on, Northern Ireland does not have a functioning Government. Yesterday in another place, the Chancellor of the Exchequer delivered his Budget Statement. Together with welcome funding for a Belfast city region deal, Mr Hammond announced an extra £320 million for the Northern Ireland Executive for 2020-21. However, as things stand tonight, it is difficult to envisage local Ministers being in place to spend it even then.

Several noble Lords mentioned the RHI inquiry, which has exposed levels of dysfunctionality inside the last Northern Ireland Executive that are shocking in the extreme. For month after month, we have heard tales of unelected DUP special advisers wielding considerably more power and authority at Stormont than most of their political masters. Last week evidence was produced which appeared to show that at least one Sinn Féin/IRA Minister was acting under instructions—not from special advisers but from senior members of the IRA, if not the IRA Army Council itself. It is little wonder that disillusionment with the political process in Northern Ireland is so high. The people of Northern Ireland deserve much better.

It is 25 years ago that the UDA murdered seven people in the Rising Sun bar in Greysteel; another person died from his injuries. Last week we commemorated the 25th anniversary of the IRA bomb on the Shankill Road that claimed nine victims. Three further terrorist attacks took place in the seven days between the Shankill and the Greysteel atrocities, with yet another six people losing their lives.

Make no mistake: we are never going back to that. We have come so far since 1998. Tourists are flocking to Northern Ireland in record numbers. In recent years the Province has gained a global reputation as a prime location for film production and high-profile sporting events. Next year Royal Portrush will host the Open golf championship for the first time since 1951. Tickets for all four days of competitive play have sold out—the first time this has happened in the 148-year history of the event—and the first ball has not yet been struck. I might add that I own a holiday home in Portrush, and I have been inundated with requests to let it over the Open period.

We have so much in our favour, but we continue to lack a functional, proactive and accountable Government. It makes me very angry that we have found ourselves in this situation. At times it also leaves me feeling a little embarrassed. Here we are in the mother of Parliaments, where I am immensely proud to serve as a Deputy Speaker. I am honoured to travel on a fairly regular basis to meet parliamentarians in other parts of the world to discuss democracy. But when my hosts ask me what form of elected Administration we have in Northern Ireland, I have to tell them that we have none.

My sense of discomfort is not eased by the substance of the Bill before us today. I too have tremendous respect for the Northern Ireland Civil Service. Its staff serve with great skill, knowledge and commitment—but their task has been made almost impossible by the current absence of political direction. The Permanent Secretaries I have spoken to have no desire to be placed in the position in which they find themselves. They want a functioning Northern Ireland Executive to be formed. But, as the noble Lord, Lord Trimble, said, we are where we are, and although this legislation is far from ideal, I understand why Her Majesty’s Government have deemed it necessary—for now. I sincerely hope that it will not stay on the statute book for long.

I end my remarks with a request which I ask the Minister to convey on my behalf. Everyone in your Lordships’ House will be fully aware of the excellent work done by Marie Curie to support those living with terminal illness and their families. Marie Curie has been campaigning to reform the special rules determining eligibility for personal independence payments for terminally ill people. There are special rules for terminal illness under PIP, which allow terminally ill people to access their payments quickly and without a face-to-face assessment. But only those with a diagnosis of six months or less to live are eligible to apply under these rules.

Experts from across the medical community have said that this is too restrictive. The difficulty in predicting life expectancy for many terminal illnesses means that legitimate claimants are being excluded from applying for PIP under the special rules. In June an independent review of PIP recommended that the six-month life expectancy criterion determining eligibility under the terminal illness rules be removed. However, in the absence of an Executive at Stormont, the changes required have not been actioned. The Secretary of State for Northern Ireland, Karen Bradley, has talked about allowing Northern Ireland departments to make decisions in the public interest. As Joan McEwan from Marie Curie Northern Ireland recently said:

“There can be no doubt that creating a fairer and more compassionate PIP system for terminally-ill people in Northern Ireland falls into this category”.

I agree, and I humbly invite the Minister to take Joan’s words on board.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 5:19 pm, 30th October 2018

My Lords, it is almost a year since the noble Lord, Lord Rogan, and I both had the honour to be appointed Deputy Speakers in your Lordships’ House. I have to say that he at once acquired a position of efficiency that I am still striving towards.

One of the many serious matters on which we have been reflecting today is the fact that for the best part of two years public services in Northern Ireland have been under the control of civil servants unaccountable to elected representatives, the first time that this has happened in any part of our country in the modern era. A visitor from another planet might perhaps wonder why those elected representatives serving as Ministers in the Northern Ireland Office cannot assume control temporarily, with additional appointments being made to cope with the greatly increased work. The answer that our political leaders would immediately give to such an impertinent visitor is of course that that would violate the devolution settlement. It is the settled conviction of the leaders of the main political parties that any amendment or modification of the devolved settlement in Northern Ireland, however slight or temporary, would bring disaster down upon us. Such dogmatic rigidity is unusual in the mainstream of British politics, where pragmatism normally reigns, to the benefit of our country.

The reality is that the Government are content that public services in Northern Ireland should remain for the time being in the hands of unaccountable civil servants. How fortunate we are that their integrity and impartiality are admired so widely and justifiably. They certainly deserve the clarification and confirmation of their powers that the Bill will provide so that they can continue to discharge their responsibilities successfully.

No new policy can be created, we have been firmly told; the Secretary of State said last week that the Bill was,

“about allowing civil servants to make decisions that have been part of a policy that has previously been agreed”.—[Official Report, Commons, 24/10/18; col. 300.]

That means, of course, policy agreed by the Northern Ireland Executive before it went out of business nearly two years ago. Time moves on and circumstances change, but policy remains in the state that the Executive left it nearly two years ago. Yet policy needs to advance, desperately and urgently, in those long-established services on which people depend for their daily health and well-being: health, education, housing and welfare. My noble friend Lord Empey, one of my greatest friends in this House, has spoken with passion on several occasions, including this afternoon in what the noble Lord, Lord Adonis, rightly described as a brilliant speech, about the appalling NHS waiting lists in the Province. My noble friend has suggested that the Northern Ireland Office should assume responsibility purely temporarily basis to tackle this crisis, a point endorsed by other noble Lords. “Oh no,” comes the reply, “that would breach the devolution settlement”, as if it were holy writ. Can it be right that our fellow countrymen and women in Ulster should suffer such distress—there are many other examples, some of which have been mentioned today—when a remedy could be supplied by the Government, who have the ultimate responsibility for the entire country?

In all this, one very important point tends to be overlooked: the Northern Ireland Assembly is the Province’s upper tier of local government as well as a devolved legislative body. One of the last acts of the Stormont Parliament of 1921 to 1972 was to make provision for the transfer of all the main local government services, on the very sensible grounds that Northern Ireland was not of sufficient size to warrant a range of county and county borough councils as well as Stormont itself. Today only very minor powers are exercised by Northern Ireland’s lower tier of local government, its district councils. Does Northern Ireland really need to be completely deprived of democratic oversight of all its main local government services because an Executive cannot be formed to exercise devolved legislative powers?

The creation of some form of interim committee structure in the Northern Ireland Assembly elected last year has been urged on several occasions by my noble friend Lord Cormack—who is not in his seat at the moment—drawing on his experiences as a distinguished former chairman of the Northern Ireland Select Committee in another place. The fertile mind of my noble friend Lord Trimble might perhaps also be moving in this direction. He has spoken, as he reminded us, of various possibilities in the past and we look forward to hearing more from him later. Some such arrangement would help rescue local government from the democratic limbo into which it was cast when the Executive collapsed.

Two issues of human rights, about which many people are now deeply concerned, loom large in this debate. I have frequently called for the extension of same-sex marriage to Northern Ireland—an issue which the noble Lord, Lord Hayward, has recently associated himself with by introducing a Bill in your Lordships’ House, and in which the noble Lord, Lord Adonis, is now taking a welcome interest. I hold to the straightforward unionist principle that the same basic rights should apply throughout our country. On same-sex marriage, opinion polls in Northern Ireland are overwhelmingly in favour of bringing Northern Ireland into line with the rest of the country. The Assembly voted for it before its collapse. Would it be appropriate to seek a further vote in the Assembly elected last year to provide the strongest possible basis on which to proceed in this Parliament in the absence of devolved government? Should abortion—on which feelings run so high in all parts of the country—be treated in the same manner or, as the noble Lord, Lord Alderdice, suggested, should there be a referendum? These points need serious consideration.

I make one further point. How much better things would be if we had a common core of human rights throughout our unitary state—our “precious union”, as Mrs May referred to it. That would be a matter, perhaps, on which a Select Committee of your Lordships’ House could usefully deliberate. I reach one simple conclusion: the successful government of Northern Ireland in the conditions that exist today, and which we must expect to endure, requires rather more imaginative policy-making than is currently being practised.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Independent Ulster Unionist 5:27 pm, 30th October 2018

My Lords, as someone who contributed actively to the creation of the Belfast agreement in 1998 it is galling to find myself standing here today endeavouring to find the slightest merit in this belated effort to compensate for the failure of the Northern Ireland Assembly. The harsh reality is that this Bill is but a camouflaged attempt to humour those who do little more than continue the attempts of the Provisional IRA, which was defeated in 1994 at huge cost—not least in the lives of hundreds of innocent men, women and children over the previous 25 years. I refer, of course, to Sinn Féin.

On top of that we see from the results of the recent presidential elections in the Republic the diminishing standing of Sinn Féin overall. It would be bad enough if we merely had Sinn Féin trying to “legalise” the Irish language—which has been financed and sponsored successfully for as long as I can remember—but the idea of creating the basis for pro rata usage in our courts, councils, Civil Service and the like, is an extravagance our 1.8 million population simply cannot afford or facilitate.

The long-overdue compensation for abused children still awaits settlement. We should be getting our priorities right and I would like immediate reassurance in that respect. Remember that the victims are ageing and dying so this is a matter of urgency—or should be. On the subject of compensation for injury, how does a person injured in what has become known as “Bloody Sunday” receive around £500,000 in damages while I do not know of a single IRA victim—soldier or civilian—who has received anything comparable? Is there a delusion in the Government that they can buy stability?

This Bill appears to provide for the replacement of the democratic process by an unaccountable Civil Service. Let me give an example of that unaccountability from personal experience, and I begin by reminding noble Lords that the Civil Service is composed of some who are just as bigoted as, albeit publicly accountable, politicians.

About five years ago, I applied to have my driving licence renewed and, being diabetic, I provided a letter from my GP as to my fitness. However a Mr Paul Duffy rejected my application, unless I sent all my medical records to him. I appealed the decision but sought agreement to bring my medical records to the appropriate doctor and then bring them home again. I was told, “We don’t employ a doctor in the department. Your medical records will be retained safely in my office”.

Having had 10 attempts made to assassinate me between 1970 and 1974, there was no way I was going to risk my safety by providing details of my routine visits to my diabetes and cancer clinics, so I again renewed my appeal. I cleared myself on that basis with my insurance company but had to wait 22 months to get my licence. It did not end there. Being notified at last, by Paul Duffy, that my new licence was available, I collected it from him on 6 May—note that date—2015. Mr Duffy, it turned out, watched me drive off with my new licence in my pocket, and immediately phoned the police to report having seen me driving without a licence. When the police called to see me that evening, we discovered that the licence I had received earlier that day had been post-dated to 7 May. Technically, I had been conned. I had no licence until the following day. To cut that long story short, the judge who heard my case threw it out in about two minutes.

The sequel, however, has a relevance to this Bill in so far as I decided to complain to the departmental head, Peter May, who curtly informed me by letter that he had the utmost confidence in Paul Duffy. Peter May has subsequently been transferred as head of the Northern Ireland Department of Justice. I apologise to noble Lords for having had to recount this experience, but this is the sort of administrator we are being asked to impose on Northern Ireland—and it does not end there. David Stirling was Permanent Secretary of the department at the time of the RHI debacle and we have seen his dire performance at the RHI inquiry. He now describes himself as head of the Civil Service in Northern Ireland. Who actually appointed him and to whom does he, and will he, report?

There is so much room for potential disaster in this proposed Bill, but perhaps my major point should be to ask on how many occasions the Secretary of State for Northern Ireland has actually met and consulted the Northern Ireland Peers who sit in this Chamber. They are directly and indirectly the people who best understand Northern Ireland, both pre and post the Belfast agreement.

My final point must be what I will call the Stella Creasy aberration. I am one who cannot accept that “rights” should have priority over what is “right”. I am ashamed that Great Britain panders to a reluctant mother’s pride or social convenience, so that we so casually relegate a potential life to the incinerator. As the father of four and the grandfather of seven I have always believed that life is sacred. It is why I, with the late Enoch Powell, voted for the abolition of the death penalty when it was not something the grass roots sought. There is enough potential for disaster in this Bill without adding something that is so offensive to a majority across the traditions in Northern Ireland.

Photo of Baroness O'Loan Baroness O'Loan Crossbench 5:35 pm, 30th October 2018

I declare an interest. My husband is the chair of arc21, the organisation created by six district councils in Northern Ireland responsible for addressing the problem of waste disposal, and made the planning application that led ultimately to the Buick judgment, which has been referred to repeatedly both in this House and in the other place, and is one of the reasons for the legislation we are debating today.

I am sure that everybody in your Lordships’ House regrets the situation that prevails in Northern Ireland. It really is profoundly difficult—almost two years with no legislature, and things are challenging. Members of the other place and of this House have articulated the various issues which are stalled as a result of the situation, not least the major infrastructure projects, the commencement of which would provide employment, therefore contributing to the economy—an economy that is seriously depleted. I see no purpose in repeating that list. It is a difficulty compounded even more by the fact that there is no legislature and no Executive to consult on matters relating to Brexit, as the noble Lord, Lord Adonis, said. Brexit is probably regarded by the people of Northern Ireland as the greatest hazard they face at present, for a variety of reasons. I shall come back to that in a moment.

However, I want to address a matter raised by the noble Viscount, Lord Brookeborough, who is not in his place, but for whom I have the greatest respect. He said that there must be an end to the hounding of veterans. I have to say that there is no hounding of veterans. There are investigations in Northern Ireland into unsolved killings. When somebody is suspected of having been involved in a killing, it is right and proper, and due process in law, that those persons be investigated. That is what is happening. I personally have been involved in the investigation of matters where both military and former RUC personnel have been involved. I know that those who serve in the forces do a very difficult job, and I speak from the perspective of one whose brother served in Northern Ireland in the 1980s, and whose nephew, aged 18, went to Iraq in the British Armed Forces and lost his leg six months later right up to the groin, and suffered multiple other injuries. I speak as one whose other nephew has served in Her Majesty’s forces for coming up to 22 years in Iraq, Afghanistan and other places, so I am not in any way attempting to attack Her Majesty’s forces. In a country which has had the experiences of Northern Ireland, however, it is important that there is no abrogation of the rule of law. It is profoundly important that we adhere to the rule of law.

This measure is clearly seen as necessary to address the lacuna which has been referred to repeatedly. It is legitimate to question the rushing through of this Bill without thought of the normal discussion, analysis and scrutiny necessary, particularly in the delicate situation which is life in Northern Ireland today. The Select Committee on the Constitution rightly raised various issues, not least the breadth of the power which would be afforded to Ministers and civil servants, the lack of clear lines of accountability and the retrospective effect of the Clause 3 provisions, which were described as “irregular and concerning”. It went on to say that,

“a Bill with such characteristics being fast-tracked through its legislative stages in Parliament is undesirable”.

The Minister referred to the fact that it was being fast-tracked. He did not, however, explain why it is being fast-tracked at such a pace. Our peace reposes on the basis of the Good Friday agreement—in our divided way, some call it the Belfast agreement—and the consequential legislation. The Northern Ireland Act 1998, in which I am sure many noble Lords played a part, was an Act designed to make new provision for the Government of Northern Ireland, for the purpose of implementing the Good Friday/Belfast agreement. The consequential legislation enabled a complex, multi-faceted construct, which was designed as best possible to ensure the delivery of the principles of the Good Friday agreement. The noble Lord, Lord Alderdice, referred to the involvement of another state in the creation of that agreement. The construct we now have was very hard won, and trust grew gradually and sometimes painfully over the years—particularly 1998 to 2007. Interestingly, trust grew despite the suspension of the devolved institution from October 2002 until 8 May 2007. We were still able to work—myself included as police ombudsman—to enable the constitutional process to have its full impact in Northern Ireland. That was difficult, challenging and, on occasion, dangerous work. Policing and justice powers were devolved only on 12 April 2010. It is all very new and must be treated with great care.

There may be a perception in your Lordships’ House, and in the wider community, that Northern Ireland is solved. That it is far from solved is demonstrated by the fact that, once again, we are in a position in which there is no mechanism to run our devolved Government. It is also demonstrated by the fact that during 2016-17 —the last year for which we have security statistics—there were five security-related deaths, 61 shooting incidents, 29 bombing incidents, 66 casualties from paramilitary- style assaults and 28 paramilitary-style shootings, and 75 kilograms of explosives and 2,635 rounds of ammunition were seized. That was the largest quantity of explosives seized since 2006.

It is not all over, and I do not say that with anything other than distress. I personally have suffered in the Troubles; my family, many of my friends and many of the people I worked with have suffered. As police ombudsman, I sat and listened to story after story. I remember one family who came in where the 11 year-old daughter had been left with her two brothers, Rory and Gerard, who were 18 and 22. Their parents had gone out to mass. Róisín had been celebrating her 11th birthday when the gunmen came in and shot her two brothers dead in front of her. You would have to have a heart of stone not to care about things like this, so we need to remember that the situation can change very rapidly in Northern Ireland.

We need to be conscious that, when the talk about the border is so challenging and when no one really knows what is going to happen, this is a difficult time. I do not want to exaggerate, but it is a dangerous time. I have driven across the border twice in the past couple of weeks and will again next week. As you cross the border, you remember what it was like when there were checkpoints and things like that. I do not envisage military checkpoints, but look at the border between Canada and America, and borders between the European Union and some of its non-member states—you see queues and time spent. We do not need all that could happen to us—the social, economic and political cost —were it to come to some kind of hard border in Northern Ireland.

It is in the context of the uncertainties of Brexit and the failure to address the problems in Northern Ireland that the Government are taking powers to themselves. I grant that they are limited powers and in a statute that will have effect for only a limited period, but to many it will seem like shadow direct rule.

I make no comment on the extension of the time for the appointment of an Executive, other than to observe that the power to extend the period seems to have a maximum life of up to August 2019, by which time we will have been without proper governance for two years and eight months. I know why our two main elected parties, the DUP and Sinn Féin, say that they cannot go into government, but the people of Northern Ireland are being badly failed by the stand-off. It is surely incumbent on those parties, and consistent with democracy, that they lay aside these issues temporarily, go into government and use democratic means to resolve those problems as best they can—that is what democracies do.

We want government decisions made by elected politicians, not by spads on the one side—as we have heard in relation to the RHI agreement—or on the other at the headquarters of Sinn Féin, Connolly House, as I think the noble Lord, Lord Rogan, pointed out. The Executive collapsed because Martin McGuinness resigned from the Government in the wake of the RHI crisis—the green energy scheme. That is now going to cost taxpayers up to £490 million. The RHI scheme has been the subject of a public inquiry, very ably chaired by Sir Patrick Coghlin, who has heard testimony from those involved that was dreadful to listen to. It is astonishing to see who is following the RHI inquiry broadcasts in Northern Ireland. I know of women who watched it intently while doing their ironing. Never before has a public inquiry attracted quite so much interest among the general population.

Our most senior civil servants have said that spads “were in charge” following the reestablishment of the Assembly in 2007. We know that civil servants did not do ordinary things like keeping minutes of meetings, and were not informed about issues of which the spads were aware. We know that the Minister who presented the renewable heat incentive scheme regulations had not even read them when she brought them to the Assembly and asked MLAs to vote on them. So it goes on, but the story has been told and Sir Patrick will report, so there is no more excuse—it is dealt with. Now is the time for the DUP and Sinn Féin to go back into government, fight for the cause of Northern Ireland together and ensure proper governance.

I want to ask the Minister again: what is the urgency that required this Bill to pass through the other place in one day and through your Lordships’ House in such a rush? This is not an emergency situation. There is no sudden threat to the economy. There is no immediate terrorist threat. What is the reason for the haste?

The Act enables Northern Ireland civil servants to exercise departmental functions if it is in the public interest to do so, and will confer on the Secretary of State a duty to publish guidance on the exercise of functions, including the principles to be taken into account in deciding whether to exercise a function. The Secretary of State made it clear in the other place, as the Minister has, that this Bill was introduced because,

“we have to enable public services to continue to be delivered in Northern Ireland”.

The Secretary of State said that the Bill,

“will allow decisions to be taken by civil servants who have felt unable to do so since the Buick appeal was heard. We need to make sure that those civil servants can take those decisions, but this is not about their making major policy decisions or becoming lawmakers”.—[Official Report, Commons, 24/10/18; col. 381.]

So far, so good, and that was what the Minister was telling us, until he came to Clause 4, which goes way beyond the position that the Government have taken. In a situation in where those who voted to amend the Bill in this way hold no seats representing anyone in Northern Ireland, where neither Conservatives nor Labour have an MP, there can be no proper accountability for decisions like that. Abortion—I place it on the record yet again—is not a human right. There is a right to life; there is no right to kill the unborn child in the womb. There has been no declaration of incompatibility in courts in Northern Ireland. Somebody said that we do not have a common set of human rights, but we do; they are established under the European Convention on Human Rights, and we are signatories.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip)

I am sorry to interrupt the noble Baroness. Although this is not a time-limited debate, might she consider concluding her remarks pretty quickly, given that the guide time is six minutes?

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I am coming to an end.

Most recently, in June the noble Lord, Lord O’Shaughnessy, gave me an assurance that the intention of the Government and the NIO,

“is to restore a power-sharing agreement and arrangement in Northern Ireland so that it will be up to the people of Northern Ireland and their elected officials to decide on abortion policy”.—[Official Report, 6/6/18; col. 1312.]

It cannot be compatible with the rule of law for a Secretary of State to be required by their Government and legislature to issue guidance which is not consistent with the law of the land. That is what would happen if the Bill were given effect. I have every sympathy with calls to give effect to the findings of the public inquiries into historical institutional abuse and hyponatremia-related deaths, and to give help to victims of the Troubles. However, I have not heard anyone advocating for Clause 4. I have not heard anyone advocating for direct rule, as suggested by other noble Lords; that is not the answer. We see Sinn Féin looking towards a referendum on a united Ireland, a profoundly important issue which does not commend itself to many of our population. We need action to bring the people together and that is what I ask of the Secretary of State.

Photo of Baroness Stroud Baroness Stroud Conservative 5:51 pm, 30th October 2018

My Lords, I add my voice to those of noble Lords who expressed their sadness that we are, once again, in this place. Given the time, I will concentrate on Clause 4, which was introduced to this Bill by amendment in the other place. I question the clause for two main reasons. First, it represents a serious overreaching of the powers of Westminster. Secondly, as the House has heard, the insertion of this amendment is a misinterpretation of the role of the courts in relation to changing primary legislation.

Clause 4 represents a serious overreaching of the powers of Westminster and is not sensitive to the current reality of Northern Ireland politics. If we were in a position where there was no chance of devolved government being restored, it might be appropriate for Westminster to intervene on sensitive devolved matters. However, as this House has repeatedly expressed this afternoon, that is patently not the case. Most people in Northern Ireland believe that there is a good chance that devolved government will be restored once the main Brexit decisions have been made. The prospect of a fully functioning Stormont in 2019 is not beyond the bounds of possibility, and we should do nothing to put it there. Indeed, the Bill is premised on that hope. It is not advisable for Westminster to intervene on a devolved policy matter for the first time since the advent of Northern Ireland in 1921.

It is also understood that this is a matter where the people of Northern Ireland are known to feel strongly. As we have heard, recent polling shows a strong desire for abortion law to be set by the democratically elected representatives of Northern Ireland. For example, a recent ComRes poll found that 64% of people—and 66% of women—in Northern Ireland believe it would be wrong for Westminster to legislate on this issue at this time. Those proposing these amendments seem a little more concerned to make progress on this issue while the Assembly is down than to get power sharing back up and running again. I firmly believe that the steps that we in Westminster take at this time should be guided by one overriding consideration—whether our work will help or hinder the restoration of power sharing. Will this clause hasten the return of a functioning Executive and Assembly? Will it build the necessary trust, or hinder it? The answer is pretty self-evident, given the culture and nature of Northern Ireland. Trust grows slowly but can be quickly decimated.

Secondly, as noble Lords have noted, the sections of the law referred to in this clause govern the law on abortion, as interpreted by the courts. These provisions currently restrict legal abortions in Northern Ireland to situations where the life of the mother is at risk and continuing the pregnancy would adversely affect her physical or mental health in a manner that is “real and serious” and “permanent or long-term”. As the noble and learned Baroness, Lady Butler-Sloss, so eloquently stated, it is clear that Clause 4 rests on a misunderstanding about changing primary legislation. Although the Northern Ireland Assembly is temporarily suspended, abortion law remains devolved, as we have heard many times this afternoon. Only on 10 February 2016, the Assembly debated changing the law; the Assembly voted not to change the law in either of these situations. This is a recent debate.

This June, the Supreme Court ruled on a case in Northern Ireland on the same narrow scope of abortions that the Assembly had debated in 2016. It rejected the appeal and did not make any declarations of incompatibility with the current law in Northern Ireland and the European Convention on Human Rights. The notion that the Secretary of State should now produce guidance to impact the conduct of officials based on non- binding reflections of the courts rather than on the law is deeply problematic. It establishes a concerning precedent that should not be sustained. The relevant guidance should not differ from that issued by the Executive in March 2016, which reflects the law as it stands.

The impact of the law in Northern Ireland today is interesting in certain respects and may be of interest to policymakers here. The commitment to the value of the life of both the unborn and the mother has helped to define the culture of Northern Ireland and, in part, to make Northern Ireland what it is today. This is illustrated by the publication of a report at the beginning of last year which used robust statistical methods to show that around 100,000 people are alive in Northern Ireland today who would not have been had the Province elected to embrace the Abortion Act back in 1967. It should not be surprising that a Province which has lost so many holds life to be so precious. The figure of 100,000 was attacked and complaints made to the Advertising Standards Authority. However, after a five-month investigation, and drawing on the advice of health economists, the ASA ruled in August last year that the figure was entirely reasonable. It is extraordinary to consider that 100,000 people are alive today and that their right to life is entirely consistent with human rights.

Clause 4 is deeply problematic, and I ask the Government for assurances that any guidance that they provide will instruct officials to respect the rule of law and the law as it stands in this area.

Photo of Lord Curry of Kirkharle Lord Curry of Kirkharle Crossbench 5:57 pm, 30th October 2018

Noble Lords will be delighted to hear that I have slashed my speech by about 50%, in view of the time and the fact that other noble Lords have made comments very similar to mine, much more forcefully than I could have done. I too will speak about Clause 4 and I very much support the comments of other Peers on the matter. As a Christian, I agree with the noble Lord, Lord Alton, and the noble Baroness, Lady Stroud. I subscribe to the biblical view that human life is sacred from conception and that marriage is the union of one man and one woman for life. However, my views are not important; our views are not important. Many of us feel a great unease that this Bill is being used to force our views on the people of Northern Ireland. The last thing we should do at this time is intensify division in Northern Ireland and potentially mislead, as the noble and learned Baroness, Lady Butler-Sloss, mentioned earlier.

Yet here we are with a Bill which declares to the people of Northern Ireland that their laws are in breach of human rights, even though there is no proper legal basis for saying so. Whatever views they hold on the substance of these issues, many people in Northern Ireland will find it quite improper that Westminster is attempting to force a particular view on them by the back door, in haste.

This issue is about the authority of this House and our parliamentary institutions to overrule delegated, devolved powers. I find that deeply concerning. Incidentally, the Northern Ireland Assembly has, even though it is not functioning at present, expressed a view and has voted on these matter within the past two years, as was mentioned earlier. According to the procedures that govern the Assembly under the terms of the Belfast Agreement, attempts to legalise abortion and same-sex marriage were not passed. We must give proper respect to the people, politicians and institutions of Northern Ireland and leave these matters to them.

These are incredibly sensitive matters for us to be trampling over with last-minute amendments to a Bill which was designed to be purely administrative and all about steadying the boat while the political parties in Northern Ireland try to negotiate a return to power sharing. Why in the world do we risk rocking the boat with Clause 4?

I am deeply concerned about the precedent that this creates. It could have serious consequences if we ignore and overrule devolved powers without having given this adequate debate. What authority do we have, when the devolved power-sharing Assembly is not functioning, to overrule the devolution agreement? This is a really important question—a point that was raised by the noble Lord, Lord Adonis. Without clarity on these issues, we should respect the fact that marriage and abortion are devolved in Northern Ireland to the Northern Ireland Assembly, so we should leave it to the Assembly and stop interfering.

Photo of Lord Hayward Lord Hayward Conservative 6:00 pm, 30th October 2018

My Lords, before I comment on Clause 4, to which the noble Lord, Lord Curry, and others have been referring, I pay credit to those Members of this House who fought and worked so hard to achieve the Belfast agreement some 20 years ago. I fall into the category of the noble Lord, Lord Rogan, if I can classify myself in that group, in that we should not underestimate the achievements of bringing to the Province peace and prosperity which continue today despite the problems which we are discussing. I say that having had the experience of members of my own family returning to Belfast only a few weeks ago because they had both the confidence and the desire to live in Belfast in a way that they had not had for many years. I hope that economically, while we debate the issues of this specific Bill, we do not talk down Northern Ireland, because it has a great potential.

I now move to Clause 4. It will come as no surprise to a number of Members that I wish to refer to it—the noble Lord, Lord Lexden, referred to my Private Member’s Bill earlier. The noble Lord, Lord Curry, just asked, “Why do we rock the boat?”. The answer is, “Because this affects people’s lives on a daily basis, and we have to do something about it”. Contrary to what the noble Baroness, Lady Stroud, said, we cannot just sit here and say, “There will be an Assembly. There will be an Executive. We will just disregard the people until there is”. The discussion this afternoon has identified, over and over again, that we do not know when there will be an Assembly. We do not know when there will be an Executive. Conor McGinn in the other place and I have been pursuing an identical Private Member’s Bill. We will continue to do so. I remind the House, as the noble Lord, Lord Lexden, did, that in 2015 the majority of the Northern Ireland Assembly voted for same-sex marriage. I believe that, if there were an Assembly now, that that would be the case again today. Unfortunately, we do not have an Assembly or Executive to test that.

Nobody who introduces law should do so only because they know somebody who is going to be affected by it. We should try, as legislators, to cast our nets wide. It does, however, make it easier when we are aware of specific cases and the impact that our legislation would have upon individuals. When I made my maiden speech in this House, I referred to my involvement with the Kings Cross Steelers, the world’s first gay and inclusive rugby club. It happens that a fair number of the members of that club are from Northern Ireland, including John Henry, who captained the club a number of years ago. He and his brother were featured in the Belfast Telegraph earlier this year. We cannot say to those members of a rugby club based in London, “It is fine. You can get married here, but you cannot return home to Northern Ireland to get married as you could if you stay in this city”.

Last weekend, I was present at a gay wedding here in London. Of the two men involved, one had been brought up in Northern Ireland. He worked in this House for a number of years. We are saying to that person, “It is fine to get married in London but, by the way, you cannot decide to live and get married in Northern Ireland”. Is that really what we are proud of in this country? It is certainly not something of which I am proud. There are others whom we all know, or ought to know, who are affected similarly by the absence of same-sex marriage legislation in Northern Ireland. When I introduced my Private Member’s Bill in March this year, two were sat in the Gallery. There were other people present at the wedding where I was on Saturday.

I can understand, as the noble and learned Baroness, Lady Butler-Sloss, said, that it will have relatively little impact if we pass Clause 4, but it will have an impact in itself. It will send a message, a small but clear message, that we still care for people who face problems that our legislation is not dealing with, wherever they may be. I was very interested in the suggestions of the noble Lord, Lord Alderdice, of a number of different ways that we might find a solution to this problem.

I ask all parties not to stop with this Bill and this clause but to move rapidly to a change in the law that would be welcomed by so many people. It is not a question of people’s human rights; it is a British duty, and particularly our duty as legislators, to provide equality throughout my country.

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector) 6:06 pm, 30th October 2018

My Lords, I am very pleased to follow the noble Lord, Lord Hayward, and I wish him all success with all his efforts to make sure that there is justice for our brothers and sisters throughout the United Kingdom.

I want to get back to the Minister’s opening speech. He said:

“Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers”.

That is the point about Clause 4 that I wish to address. The purpose of Clause 4 is to allow the UK Parliament, in the absence of a Northern Ireland Executive, to scrutinise the impact of existing laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations. The clause requires the Secretary of State for Northern Ireland to provide clear guidance to Northern Ireland’s civil servants with regard to the operations of these laws and to update the House of Commons each quarter on how she plans to address the laws’ impact on human rights obligations. It does not change the law in Northern Ireland.

I say to the noble and learned Baroness, Lady Butler-Sloss, it may be that this has been misinterpreted, but I think that Stella Creasy MP, in introducing this in another place, could not have been clearer when she said that it did not change the law in Northern Ireland. If people who are opposed to it choose to misinterpret it and overstate it, that is a different matter, but nobody who has supported the inclusion of Clause 4 as it now stands has made that claim. People who object to the substance of it certainly have—that I would accept.

There have been recent court cases which have cast doubt on the compatibility of the current Northern Ireland law with convention rights. The Supreme Court case in the summer questioned whether the current law in Northern Ireland was in contravention of Article 8. There will be further cases later this year which will return to the Supreme Court. That is the reason that this is important. The noble Lord, Lord Morrow, and several other people have repeatedly returned to decisions that were made in 2016, but life goes on in Northern Ireland, and things which happen in people’s lives all the time are raising new cases which will go to law.

There is deep confusion about the current law in Northern Ireland, which is interpreted by professionals in very different ways, and that leads people to be charged under the law. In 2017, a man and a woman had to accept formal cautions under the Offences Against the Person Act 1861 because they were seeking solutions for the termination of a pregnancy because they could not do what the many hundreds of other women are forced to do, which is to leave Northern Ireland and come to the United Kingdom in order to obtain the rights which are perfectly afforded to other women in England and Wales. We know that a woman at the moment faces potential prosecution for purchasing abortion pills for her then 15 year-old daughter, who had been the subject of an abusive relationship and had been raped. She has been granted a judicial review to challenge the decision of the Public Prosecution Service to pursue a prosecution against her—which was the result of the sharing of her information by a medical professional. This is the sort of thing on which the people of Northern Ireland, and in particular professionals who engage in implementing the laws, need further guidance.

The noble and learned Lord, Lord Mackay, said that the Human Rights Act does not change law, and he is absolutely right—it does not. I put it to him that if it did, in line with the Supreme Court’s recent ruling on abortion law in Northern Ireland, reform of Sections 58 and 59 of the Offences Against the Person Act would have happened. But it will not, and it will not under this law, either. The amendment to the Bill made in the Commons allows the court to rule on the compatibility of our laws with convention rights, like the Supreme Court did in June 2018 when the noble and learned Lord, Lord Mance, found that deferring to the Assembly, which had not sat for 18 months, to reach its own conclusion was not an appropriate course, as the need for such an amendment is evident. He said:

“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate”, in relation to abortions in cases of rape, incest or foetal abnormality.

I will say the following about the devolution matter, as devolution has been used a lot in this debate. I point out to noble Lords that the amendment which now stands as Clause 4 was passed by a majority of the House of Commons, in which there are representatives whose commitment to devolution goes way beyond that of anybody else in this House. They chose to pass this law and did so by a significant majority, because they never saw the devolution settlement as a reason to abrogate the human rights of people across the United Kingdom. This is an important and necessary piece of legislation at the moment, which will enable women in Northern Ireland simply to access their human rights.

Photo of Lord Hay of Ballyore Lord Hay of Ballyore DUP 6:13 pm, 30th October 2018

My Lords, I very much welcome the Bill to the House this afternoon.

Before I come to the Bill, I shall take up a point that the noble Lord, Lord Adonis, mentioned. Some of us, as a party, would be supportive if he could convince all the parties in Northern Ireland to come with him with regard to discussing the Assembly meeting and a number of aspects, including Brexit. As a party, we would support that. I know that the noble Lord was recently in my own city of Londonderry, talking about the whole issue of Brexit, and I know he met a number of parties. Did he put that suggestion to Sinn Féin, as we would definitely support that in getting the Assembly up and running and to meet without an Executive? The noble Baroness, Lady O’Loan, suggested that both parties should set aside their differences and get the Assembly and the Executive up and running, and we would support that as well. At least it would be the start of getting devolution up and running in Northern Ireland once again. All the other parties would support that way forward but, once again, one party is creating a major problem.

As I said, I very much welcome the Bill. Although it is not perfect, it is what it is. Yes, there is consensus in this House but the best solution would be to have a working Assembly at Stormont, with local Ministers in place who were accountable to the people of Northern Ireland taking such decisions. But that is not the situation, and I appreciate the situation that the Secretary of State has found herself in. The Bill has become necessary to ensure that public services continue to function in Northern Ireland and to allow civil servants to make decisions.

In the other House the Bill was described very much as a limited measure. I would describe it as a poor substitute for democratically elected politicians in Northern Ireland making decisions that affect the people they serve. The Bill is limited in what it can do and the powers it gives civil servants in Northern Ireland. Yes, it will enable the Civil Service to continue to run public services, but it will not make civil servants lawmakers, and they will not have the power to change policy decisions in Northern Ireland. Of course, the Bill also gives powers to the Secretary of State and Ministers to appoint people to public bodies in Northern Ireland. My only question for the Minister concerns people who are unsuccessful in being appointed to public bodies in Northern Ireland. Will there be a mechanism for them, so that they can appeal if they have a grievance over public appointments?

We know that the Bill is very much time-bound. There is a clear indication from the Government that they hope that by March 2019—or by August 2019, a further five months—the Executive and Assembly will be up and running. The Bill is very quiet about what will happen if that does not happen. Certainly, I should like to know about that from the Government, because the Secretary of State is running out of road as regards what more she can do as a Secretary of State to get the talks process on its way. I worry that the Bill is very silent on what might happen afterwards, if there is no agreement on getting an Executive and the Assembly up and running.

It is difficult to see how the Bill will resolve some of the major issues that Northern Ireland now faces. Education is in a serious situation. The principals of many schools will tell you that their budgets have been so stretched that they can no longer deliver the service they want to deliver. On health, too, a number of policies and policy decisions that need to be made are being sat on. Waiting lists are growing, and members of the public sometimes have to wait 12 hours to be seen at A&E departments. All of this is compounding, so real policy changes need to be made by Ministers to get these serious situations addressed. On infrastructure, economic development and inward investment in Northern Ireland, a number of issues are sitting there awaiting policy decisions on how we will move forward. The Bill is ambitious, although in many ways it is not, and the Government should have gone much further when the Bill came to the House.

There has been a sense of political vacuum in Northern Ireland since the collapse of the institutions. I hope—I know it is the hope of all Members of this and the other House—that we can get the Executive restored sooner rather than later. Our party is willing to listen to any suggestion that gets the Executive and the Assembly up and running. As a party, we have put forward a number of suggestions to the Secretary of State on how that might be done in a limited period, so that we can move to full devolution again in Northern Ireland.

Photo of Lord Kilclooney Lord Kilclooney Crossbench 6:19 pm, 30th October 2018

My Lords, this has been a wide-ranging debate and I sympathise with the noble Lord, Lord Duncan, who has many problems to solve in Northern Ireland. When the noble and right reverend Lord, Lord Eames, commenced his speech he said, “Here we go again”, and I am afraid we could add, “We’ve heard it all before”. There were two exceptions. The noble Lord, Lord Adonis, came out in favour of direct rule, which was a step forward by the noble Lord. And we heard an interesting idea from the noble Lord, Lord Trimble, who has an amendment, which I look forward to hearing later in the evening. We then heard the astonishing news from the noble Lord, Lord Maginnis, that he had a driving licence, which will come as a great source of comfort to those who drive between Belfast and Dungannon on the M1.

Northern Ireland is a serious subject as well. Democracy is not just the rule of the majority; it is the rule of the majority with the consent of the minority. Because Northern Ireland politics are not based on economics or on social issues, and because the political division is between those of two different nationalities—those who claim to be Irish and the majority who claim to be British—there is a great division between the communities. That is why those of us who met in the discussions that led to the Belfast agreement agreed to a power-sharing devolved system of government in Northern Ireland. We thank the noble Lord, Lord Murphy, for the role he played in getting that agreement. It is why, today, I repeat that I support the Belfast agreement and the idea of power-sharing devolution.

We meet in bad times, with the collapse of the Northern Ireland Executive. Strangely, I agree with the suggestion of the noble Lord, Lord Alderdice, about when the restoration of the Executive at Stormont might arise. It will not be just after Brexit; it will probably be after the Irish general election. I have said that for some time and, increasingly, people are beginning to accept it. Sinn Féin does not want responsibility for any unpopular decisions in Northern Ireland, and then to go into an election in the Republic of Ireland. The one question that arises from the contribution of the noble Lord, Lord Alderdice, concerns the doubt that has increased in the last week over the fall in the Sinn Féin vote in the Republic of Ireland during the recent presidential election. Its vote in the Republic fell dramatically from 10% to 5%. Apparently, a lot of the missing 5% voted for the sitting President Higgins and might return to Sinn Féin. If that is so, Sinn Féin, as the noble Lord, Lord Alderdice, suggested, may well be in a coalition Government in the Republic of Ireland. In such circumstances, it would then also like to be in a coalition Government at Stormont in Northern Ireland.

This Bill is necessary because projects have been delayed or dropped in Northern Ireland and jobs have been lost. The details of the projects that have been dropped have already been listed in this debate and there is no need to repeat them. It means that we need, immediately, an interim measure until there is a restoration of the Executive at Stormont, or indeed direct rule—that may be the final, fallback position. We have the Bill as an interim measure and I welcome it.

There are three subjects that I want to refer to briefly. The first is abortion. This is a very sensitive subject in Northern Ireland and one that, strangely enough, unites Protestants and Catholics. What do I hear, on the one rare occasion when Protestants and Catholics are united? The English want to wreck it. It amazes me. This is a devolved issue and it should be decided by the Northern Ireland Assembly. In a recent ComRes poll, 66% of Northern Ireland women wanted the question of abortion decided at Stormont and not imposed by Westminster. We must pay attention to the wishes of the Catholic and Protestant people in Northern Ireland. It would be wrong to impose English moral standards on the people of Northern Ireland.

Secondly, we had the Budget yesterday. From Northern Ireland’s point of view it is a welcome Budget. We particularly welcome the decision for a city deal for Belfast and the financial contributions that will be made towards that programme. We also heard that there is a city deal for the Derry and Strabane council area—or the city of Londonderry. What is a disappointment to me, given where I live, is that the second-largest city council in Northern Ireland—the city of Armagh, Banbridge and Craigavon—has not even had the initiative to submit its claim for a city deal. I hope that will receive consideration in the very near future.

The third point, which was missing from the Budget and has not been mentioned in the debate on the Bill so far, is the need for an exemption to air passenger duty in Northern Ireland. I remember raising this some years ago, when we had a Sinn Féin Minister of Finance at Stormont. He was genuinely sympathetic to the idea. His name was Ó Muilleoir, if I can pronounce it correctly. He pointed out to me, in a reply, that it would probably cost the Northern Ireland Exchequer about £50 million from the block grant. If that is all that is involved, and since we have no road or land links between Northern Ireland and Great Britain, it is a special case. Sympathetic consideration should be given to the abolition of air passenger duty. This would certainly increase tourism in Northern Ireland and reduce the cost to families—our families in Northern Ireland are somewhat larger than those in England —of going abroad on holiday, or even going to England for holidays.

Last week, the noble Baroness, Lady Doocey, on the Liberal Democrat Benches, who always stresses her Republic of Ireland origins, said that the St Andrews agreement could not be changed, but it has been changed. The St Andrews agreement was an amendment to the Belfast agreement, and further amendments can be made. It is nothing new. One subject that needs to be addressed is one the noble Lord, Lord Bruce, mentioned at the outset: the petition of concern, which needs reconsideration. This concern should not apply matters of personal conscience, such as same-sex marriage or abortion. It should apply to economic and social policies—so that you do not have one community trying to impose its will on another, because that is the way life goes in Northern Ireland. It should not be abused or used by any party to stop legislation on same-sex marriage or abortion.

I look forward to the amendment of the noble Lord, Lord Trimble, and I hope that the next time we debate Northern Ireland it will not be, yet again, a case of, “We’ve heard it all before”.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour 6:29 pm, 30th October 2018

My Lords, it is always a great pleasure to follow the noble Lord, Lord Kilclooney, particularly because of the important role that he played 20 years ago at the time of the Good Friday agreement.

The Opposition will not of course oppose the Bill. It is very important in clarifying the position of civil servants and allowing important and urgent decisions to be made, but it imposes on them quite a considerable personal burden. The shorter the time they have that burden, the better, because they are not elected. At the same time, the law will now clarify the position regarding planning application issues in Northern Ireland. It is important too that public appointments are made, because until now hugely significant appointments for the people of Northern Ireland have been frozen. That is obviously a part of the Bill that we very much support.

However, the thrust of the Bill is about the restoration of the Executive and the Assembly in Belfast. Although I say that we do not oppose the Government, we are not very happy about the situation with the current negotiations, or lack of them, which would lead to the restoration of the Assembly and Executive. It seems to me that there has been little urgency over the last months. It also seems that, by putting a final 10-month limit on the talks, we are in a sense accepting the principle of delay. That lack of urgency and the lack of an incentive to ensure that we have an Assembly and Executive up and running much more quickly than is envisaged by the terms of this Bill are disappointing.

Interestingly, the noble Lord, Lord Lexden, made the point that, because local government is so limited in its powers in Northern Ireland, not only what a regional government do but what local government in England, Wales and Scotland do as well is without democratic accountability, and as a consequence huge strain is put on the Good Friday agreement and the agreements that followed it. It is not just about an Assembly and an Executive; it is about the north-south arrangements too, because they fall if the Assembly falls. The whole point of getting the two communities together over all those years was that you would balance on the one hand the importance of the north-south institutions, which are extremely important to the nationalists, and on the other hand the importance of devolution in Northern Ireland, as well as east-west relations—the British-Irish Intergovernmental Conference has not met properly until recently. All these strands of the agreement went together. You could not pick and choose the ones that you liked; you had to accept them all. That is the problem today in Northern Ireland in getting those institutions up and running.

Sinn Féin makes a great deal of the fact that it believes that the principles of the Good Friday agreement, particularly with regard to equality and human rights, are not being carried out in Northern Ireland. However, the agreement has also been breached by the Assembly not meeting. If Sinn Féin does not go into the Assembly and causes it not to function, that breaches the agreement too, and that is an important part of the negotiations that will follow this legislation.

The DUP should acknowledge that the RHI scheme caused much scandal in Northern Ireland. It should also acknowledge that the issues that Sinn Féin is complaining about, particularly with regard to the Irish language, can be resolved. If 20 years ago the whole apparatus and structure of the agreement that we all admire had depended on one single issue—the Irish language—it would not have happened. Far more significant issues than that had to be resolved at the time, but there are other ways in which you can restore the Assembly and still deal with the Irish language. Why can there not be an independent commission to make recommendations on the language? Why cannot people from Northern Ireland go to Wales and Scotland to see how the language legislation operates there? There are ways and means that can be examined but they have not been examined over the last months and years and they urgently need to be dealt with. The trouble is that you cannot legislate for trust—it is built up over years.

In Northern Ireland there is always a reason why you should not establish the Assembly at this time or that time. People say, “Oh, we can’t do it because of Brexit”, or “Ah, it’s not Brexit at all; it’s the general election in the Republic that will stop it”. And if it is not that, perhaps the local government elections in Northern Ireland will be a barrier. If we had listened to those sorts of arguments over 20 years, nothing would have been done in Northern Ireland, because there are always obstacles in front of us. There has to be a greater sense of urgency, and these obstacles, important though they are, have to be seen as part of the bigger picture.

I am glad that at the beginning of this rather long but interesting debate the Minister indicated that there are to be talks about talks, as they are not talking about talks at the moment. When they do talk about talks, perhaps they should think about a more imaginative way of holding them. They should be much more intense. They should be proper all-party talks, structured in the way that we have seen in the past—not the odd meeting in a party office here and there but proper talks around the table with everybody involved. There should also be an independent chair or mediator. That has been talked about for months now but there has been no movement on it. We would not have had what we did unless it had been for George Mitchell and his colleagues, and there are people who can be called upon to do that job.

Frankly, the two Prime Ministers and the two Governments have to do a lot more in getting people involved in the talks. The Minister will know that when talks were held in the past, the Prime Ministers from Dublin and London spent day in and day out, week in and week out, and month in and month out working to bring the parties together. In my view, there is no evidence that the two Prime Ministers, in dealing with what is, after all, an international treaty between our two countries, are dealing with it as they could. I know that they have the problems of Brexit, which will overshadow things, but that is intertwined with the restoration. There are two sets of negotiations that affect Northern Ireland—one on Brexit and the border and the other on the restoration of the institutions—and both are getting nowhere. There has to be a greater intensity in the weeks ahead.

There is another way. Time after time we have had what you might call “away weeks” in which the parties are brought together—at St Andrews, for example, which worked, and at Leeds Castle, which did not—but I have seen no evidence of new thinking on this. I hope that the Bill will herald new thinking, new imagination and new ideas about how to bring this matter to an end. Otherwise, we will drift inexorably towards direct rule.

We have said it many times: if you establish direct rule, it is a devil of a job to get out of it again. I was a direct rule Minister for five years in total. I did not like it, and I have said that to your Lordships before. I did not want to take decisions on behalf of the people of Northern Ireland. It is for the people elected in Northern Ireland to do that job. However, with issues such as Clause 4 and so on, the longer this goes on, the greater the chance that this Parliament and this Government will have to take decisions for the people of Northern Ireland, and that would be a disaster for the people of Northern Ireland. It is not an ordinary Assembly like the ones in Edinburgh or Cardiff; it is different. It is an integral part of the peace process as well as the political process. We cannot go back to where we were. The only way is forward, and that, I hope, will start after this Bill is enacted.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), The Parliamentary Under-Secretary of State for Scotland 6:38 pm, 30th October 2018

My Lords, to use the term “wide-ranging” for today’s debate would be an understatement. I shall try to do justice, as best I can, to each of the points that have been raised. I hope that noble Lords will forgive me if I miss any points, as that will not be deliberate, and there will be an opportunity to pick them up later.

I begin with the obvious statement that it is now 22 months since there has been a functioning Executive. If we are successful and secure the passage of the Bill today, and it takes the full five plus five months, it will be 32 months since there has been a functioning Executive. That is an extraordinary period of time without functioning government, and I am drawn in particular to the remarks of the noble Lord, Lord Dunlop, who reminds us that while much is going on in Northern Ireland, much is now stuck in limbo. Whether it be corporation tax, questions of the north-south interconnector, the implementation of the Harper report, even the functioning of the joint ministerial committees, all are stuck in limbo, all are a loss for the people of Northern Ireland and this is a negative, not a positive. We cannot lose sight of that reality.

Of the three parts of the Bill, the first is designed to address this very issue. The noble Lord, Lord Murphy, paints a very clear picture: “What on earth are you going to do differently now? Otherwise, you run the risk of simply repeating that which has gone before”. So we do need to be moving forward, and on the question of an independent mediator, we are exploring that. There needs to be change, and that is one example. In terms of how we configure the meetings, their frequency and intensity, whether it be home or away, or however we seek to do it, there needs to be a new momentum. This is now—I have said this before—the last point at which we can move this forward. It is not an easy thing to stand here; I listened with a wry smile when the noble Lord, Lord Empey, said I have an ability to say nothing with great conviction. That would be quite a talent, but I hope I can give a little bit more of something rather than nothing today.

The issue we are facing now is that we need—several noble Lords mentioned this—something which is not mechanical. I have spoken often about this agreement as being like an engine or a machine that involves engineers and mechanics. There is also a spirit inside it, and that spirit of co-operation needs to be there. I noted that one noble Lord said, “You cannot legislate for trust”. You cannot legislate for spirit either, but without it, you cannot get the engine working. That is the most telling thing of all.

The Government continue to invest in Northern Ireland. There are ambitious projects going forward. Yesterday’s Budget was a revelation regarding where we can see money going forward—both into the Belfast city deal and the Derry/Londonderry deal. To the noble Lord, Lord Kilclooney, I say, get Armagh to write to me now as they need to be part of the widest possible deal. The whole mosaic of Northern Ireland should be captured inside the city deal framework.

I say to the noble Lord, Lord Dubs, that the £320 million released under the Budget for co-operation within education is available now and will be spent in the time available. It is absolutely right that it should be so, but there is no point in pretending that this is a substitute for local decisions made by locally elected individuals. There must be a functioning and sustainable Executive who can carry with them the trust and certainty the people of Northern Ireland deserve.

The noble Lord, Lord Eames, reminds us that we have a near unique society which has gone through the Troubles in the widest and darkest possible sense, and that there are wounds to be healed. Those wounds cannot simply be healed by putting money into the Province—that is not where they come from. It is about a trust and belief that the institutions of Northern Ireland can function and deliver the outcomes the people deserve. Without that, there is almost no purpose in having the Executive at all.

There are three parts to the Bill before us. The first, although difficult to realise, is straightforward in one sense: it is creating a window of opportunity for those negotiations. The second is a challenge, and there is no point pretending otherwise: how do we ensure that the civil servants are able to function in such a way that they have confidence in taking decisions? One of the questions asked by a number of noble Lords is: what is the urgency for this Bill to go through so quickly? One of the answers is that there is now a backlog of decisions in Northern Ireland, which have not been taken because civil servants do not have the confidence to take them. Those are not decisions that usurp the authority of Ministers. It is the quotidian, daily functioning decisions that must be taken to ensure good governance inside the Province. That is why we are issuing clear guidance—this is not an attempt to do direct rule lite. We have lodged the guidance in the Library, and noble Lords can read it and see where it is coming from.

We are ensuring that all those decisions taken by civil servants are fully transparent and are recorded and lodged each month, so we can see exactly what they are and understand what they are trying to do. Let us be frank about it: it will not allow civil servants to take bold, grand decisions which do not rest upon a solid foundation. We cannot ask those civil servants to display that level of courage. It is not appropriate to do so. That must rest with an elected Executive. A whole range of questions that we are all too familiar with will require that level of activity. I say to the people of Northern Ireland that the great shame right now is that this will not help those decisions to be taken. It will help the daily decisions to be taken with some confidence, but the bigger decisions await the arrival of a functioning Executive. That in itself is a serious challenge.

I have no desire to be critical of the Northern Ireland Civil Service; it is doing an extraordinary job in difficult circumstances. I note the circumstance that the noble Lord, Lord Maginnis, has raised once again, but the wider question of where that Civil Service stands is to be broadly applauded.

On the third part of the Bill, we have been very careful not to try to give a blanket power to my right honourable friend the Secretary of State to create appointments without due recourse to the affirmative procedure, which allows full scrutiny. We have tried to put on the face of the Bill only those appointments which are urgent and pressing and need to be made now. However, there are now other means whereby, in extremis and emergency, we can move forward under that approach.

Those are the three component parts of the Bill, but there is another part, which arrived in the other place. That was not at the behest of the UK Government, who did not seek that amendment. However, it was put forward, there was a vote, and that amendment has now come to us. It has not come through some illegitimate means, but through a proper means. One can debate what it is intended to achieve—and sometimes the interpretation granted by the media is a little unhelpful—so let me be as clear as I can be. I listened to the noble and learned Lord, Lord Mackay of Clashfern. The clause in question does not confer new powers within the established procedure. It does not allow, in the guidance which will be issued, the civil servants to upset, ignore or run in contravention to the law.

I note the useful and important comments made by the noble Lord, Lord Alderdice, about how guidance can be used in a sensible way to understand the law as it is today. As someone who comes from part of the kingdom which has a fully functioning devolved Government, I stress again that these decisions must be taken by the devolved Administration in the north of Ireland. There is no point in pretending we can usurp democracy in that fashion, simply because devolution is not to our liking. Devolution must function even when it is not as we would like to see it, but rather, how it must be.

Let me also be clear that it is not the desire of the Government to push this to a vote in any sense at all, but rather to recognise that which is here with us today. The guidance itself will not in any way seek to undermine the functionality or reality of the law. It is important we understand what it will do. It is not our desire to move into an issue of conscience—this must rest with the individual Peers gathered in this House today, should it come to a vote.

We come to a very simple point, raised by the noble and learned Lord, Lord Mackay: irrespective of what emerges from the Supreme Court decision, which I do not doubt will emerge very soon, there will be a simple question of what that ruling means for the law. Ultimately, that new law will have to be made by the elected representatives of Northern Ireland, fully recognising all aspects of the community and that all individual voices need to be heard. It is not for us today to do that.

I turn briefly to the remarks made by my noble friend Lord Hayward. I am not unsympathetic to the point he makes about being able to send a message. Sometimes a message does indeed need to be sent, and sometimes it needs to be received too. I am not unsympathetic to that, but it is slightly different from what we must do here as a functioning legislature in that regard. I hope that will help us move that forward.

There are some other elements that we need to touch on very briefly. The question of the petition of concern has been raised. We are not averse to this being re-examined, resting broadly upon the principle of full engagement with all parties to ensure we can move it forward into a new but none the less fully supportive form. We would not be averse to that; how to achieve it is certainly something we can think about.

I listened with interest to the noble Lord, Lord Alderdice, who again raised some very interesting points that I would like to discuss with him further so that we might have an opportunity to fully explore some of those aspects. If he will forgive me, I would like to have that meeting afterwards. I will happily produce a note of that meeting so that it can be shared with all. I am not trying to keep secrets from the rest of your Lordships here gathered.

I say to the noble Lord, Lord Bruce, that I am very much aware of the questions that arise in Clause 3(7) regarding the functioning of the advice and guidance. It is not the ambition or intention to undermine or erode any aspect of the functioning of the human rights legislation as it applies to Northern Ireland. I am happy to give that categorical assurance right now, on the record.

I am also aware, as I look across the Benches, of the points raised by the noble Lord, Lord Dubs. I am conscious that we will not seek to eliminate the salaries of MLAs, who have a very real and serious function. They will be adjusted, as per earlier discussions that we have been party to, but it is not the ambition to remove them, nor to eliminate the salaries that rest on the assistants of those individuals. That will also be a very important part. If he will forgive me I will write to him directly on the question of fostering refugees because I do not have the answer at my fingertips.

I am aware of the points raised by the noble Lord, Lord Alton of Liverpool, and I understand exactly where he is coming from. That is why I said earlier that this matter must be addressed by the people of Northern Ireland.

On the comments made by my noble friend Lord Trimble, I await with interest his amendment to understand what he intends. On the remarks of the noble Lord, Lord Adonis, I hope that I have given some measure of comfort on the question of mediation, and that we will be able to move forward. The question of a wider mechanism might well rest on something similar that is in the mind of my noble friend Lord Trimble. Let us see what emerges. We are not averse to looking at new methods to try to move these issues forward.

I could go on, but given the hour and that this is not the last time your Lordships will hear from me today, I will close. I say again that we hope that this can move forward in a sensible way and that we do not divide the House. If there are any issues that noble Lords wish to raise with me between Second Reading and Committee stage, I will be available for any discussions they might like to have. On that basis, I beg to move.

Bill read a second time and committed to a Committee of the Whole House.