Amendment 16A (to Amendment 16)

Northern Ireland (Executive Formation) Bill - Report – in the House of Lords at 9:00 pm on 17th July 2019.

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Votes in this debate

Moved by Baroness O’Loan

16A: After Clause 9, after subsection (3) insert––“(4) Section 9 comes into force on whichever is the later of––(a) the date prescribed in any other provision of this Act; and(b) the date on which the conditions in subsections (5) and (6) are met.(5) The first condition is that the Secretary of State must—(a) consult individually with members of the Northern Ireland Assembly on the proposed repeal under that section; and (b) lay a report before each House of Parliament on the outcome of the consultations held under this section, including the number of members of the Northern Ireland Assembly in favour of and against the proposed repeal.(6) The second condition is that a majority of the members of the Northern Ireland Assembly support the proposed repeal as stated in the report laid before Parliament under subsection (5)(b).”

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the amendment is long and has been circulated, so with the leave of the House, it will not be read out in full. As the noble Baroness, Lady O’ Loan, has already spoken to it, perhaps she could move it formally.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My Lords, at this late hour, I beg to move Amendment 16A.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I have put my name to Amendment 16 with a good deal of consideration. First, when the Bill was introduced by the Government, it was absolutely plain that its scope did not embrace either same-sex marriage or the abortion provisions. In that situation, it was also introduced as a Bill that required dealing with by a very quick procedure.

We have already dealt with same-sex marriage, which was already passed by the Assembly at Stormont, but this provision is quite different because it was dealt with by the Assembly at Stormont and voted against. Our friends from Northern Ireland—the noble Lord, Lord Alderdice, for example—have assured us that things are different. I was honoured to be a Minister in Northern Ireland for 10 years, but that was rather a long time ago. I have no doubt that things have changed quite a lot in a number of ways, including the fact that I no longer have any responsibility for it.

It is extremely important, to my mind, that the constitutional situation in Northern Ireland is taken into account. If the Bill had been introduced in such a way that this was already a subject within it, even if it was quick that would be something. But the Bill was introduced to the House of Commons as one that had to be dealt with quickly for the executive functions of Northern Ireland to continue. This subject matter is well outside that scope. What has happened since is that the House of Commons has introduced, voted on and supported an amendment to deal with abortion in Northern Ireland, which is important and, of course, has human rights connections and consequences. So far as I am concerned, the scope of the Bill has therefore been altered by the House of Commons. It already had that provision in it when it came here. It is therefore not surprising that our clerks took the view that the scope of the Bill now enabled the amendment of the noble Baroness, Lady Barker, to be tabled and voted on.

In my submission, it is vital that we know that the present Assembly, or the Members elected to serve in it, will be content with the ultimate decision reached by the Government as a result of the consultation that the Minister indicated is to be undertaken. No doubt in the course of that, they will be able to find out a good deal about the present views of the Assembly Members. I expect the consultation will do its best to secure the agreement of those Members. As the noble Baroness, Lady Smith of Basildon, said, it would be better still if the Assembly were to meet but my understanding is that it is not in our power to arrange that. What we can do is to require that the consent of its Members is obtained. I have little doubt that any kind of reasonably flexible consultation will take full account of their views. I would hope that it resulted in an agreement by its Members, at least by a majority, in favour of the ultimate regulations.

This is not so much about the subject matter of the Bill, so far as I am concerned, except that it is outside its original purpose. The matter is also in a Bill that our Constitution Committee strongly recommended should not be dealt with by this method. These are very important matters. Should regulations be created in this way for Northern Ireland without every possible respect being paid to the attitude of the people of Northern Ireland to this subject? I have received a very large number of emails and other communications suggesting different points of view on this matter. Not all have been in one direction, but most were against doing anything about this. That is not why I support this: it is because I believe it essential that the devolution settlement should be observed as far as we possibly can. We cannot make the Executive meet, unfortunately —that is a matter that they have to agree—but we can secure their point of view on this important matter and I strongly support this amendment for these reasons.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 9:15 pm, 17th July 2019

May I ask my noble and learned friend, if a majority of Members of the Assembly are against the proposed reforms in the consultation, should that then halt the change?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I sincerely hope that that will not happen: that is the reason we have put it on the basis of the majority being in favour of the change. If we were to ask them and they were against it, that would be a real slap in the face for devolution. I have enough confidence in the Government’s consultations, and I believe the result would be so reasonable, that I expect the majority of the already elected Members of the Assembly to support this. Otherwise, it creates quite a difficult situation so far as devolution is concerned. We still have devolution—devolution to Northern Ireland is there at the present moment, it has not been withdrawn—so I think it is right to acknowledge and hope that the result of the negotiations and the regulation will be acceptable to the Members of the Northern Ireland Assembly.

Photo of Lord Eames Lord Eames Crossbench

My Lords, throughout this evening, in all our debates and the important decisions that have been taken according to our custom and the way we work, there has been, like in a theatre, a backcloth to everything we have done. I believe that even at this late stage, referring to the words of the noble Baroness, Lady O’Loan, we need to put on record what has been clearly exposed tonight: that we have been rushing through matters of supreme importance to the country from which I come. Our representatives feel very deeply that the questions being asked tonight, although they cover very important issues such as abortion and same-sex marriage, were not what we were really questioning. What we were really questioning tonight was the theory of devolution, which from its infancy was geared to give us, within the United Kingdom, the local relevance and integrity that we hoped would emerge. So, in supporting the noble Baroness, Lady O’Loan, at this late stage, I suggest to the long-suffering Minister that he take back that which I refer to as the tapestry, which in fact surrounds everything we have experienced in the Chamber today. What is being asked about devolution, and how can we correct it?

Photo of Lord Trimble Lord Trimble Conservative

My Lords, turning back to look at the Bill, one should remember what its purpose is. It was to put provisions in place to enable an Executive to be formed. Under existing legislation, there is a period of time in which that has to happen. It is then a question of prolonging that time. Essentially, the Bill was providing more time for this.

There was no surprise about that. This is the fourth or fifth time that there has been a need to provide legislation. People knew that this was going to come and, from the way in which the talks are taking place between the parties in Northern Ireland, they would have had a fair idea of the likelihood of carrying this legislation. There was nothing urgent about it. Nothing surprising had to be done. There was the possibility of putting the legislation into motion at an earlier stage. If someone then came along and tried to hang additional things on it, there would be time to consider them properly.

We have not had the chance to do that. When one considers the matters that have been looked at today, and compares that to what would have happened if, instead of being a Bill relating to Northern Ireland, it was a Bill relating to Scotland or England, would it have been handled with the same speed, without looking carefully at what the problems might be? There was no serious concentration. We had a Committee stage, but it did not function as a normal Committee, as we can see by the limited number of things that were mentioned.

It was not proper legislation and there was no justification for handling it in that way. With more time, we might have had better debates and been able to tease out some of the things that were causing even the Minister difficulty to work out. Noble Lords will notice that what I am saying has been said repeatedly by Committees of this House: this procedure is flawed and ought not to be followed again. I wonder if there will be any change or if we will just plough on, hoping that an Assembly or Executive are formed and scrambling at the last minute to put them together.

In the course of this debate, noble Lords have referred to devolution and their desire to see it restored in Northern Ireland. If devolution does function again, it would mean that our 90 Assembly Members would be able to return to Stormont to discuss and debate things and consider what they are doing. However, they cannot do that as things stand. Assembly Members themselves cannot form the Administration. Legislation would need to be enacted if Westminster wanted immediately to bring the Assembly into existence for some limited purpose. Some of us have suggested doing that, but I have not seen any willingness on the part of the Government to encourage the Assembly to function even on limited matters.

A very limited consultation is suggested here. It says that the Secretary of State must,

“consult individually members of the Northern Ireland Assembly”.

That is set out in a very bare way. Nobody has talked about the details of the consultation or how thorough it would be. It simply refers to speaking to Members of the Assembly and to considering and reporting on their views. That is a very small step to take in finding things out. I do not know what the outcome will be. The noble Lord, Lord Alderdice, spoke vigorously earlier about the changes of views that he has detected. If that is the case, no doubt it would be reflected in the views that Assembly Members would give to the Secretary of State if she phoned them up and asked them what they think. It would be an easy step to take and it might help to restore some of those Members’ self-respect. People do not appreciate just how traumatic their situation is: they were elected to serve in an Assembly but are unable to do so, and they have nothing else besides general activities to turn their hand to because they have no way of influencing the powers that be.

This is a modest measure to try to get a degree of consultation. Of course, the Minister spoke earlier about consultations on particular matters being conducted over several months. In that timescale, he could easily get in touch with the 90 Assembly Members, see what their views are and let us know. That would be a good step forward, coming as it does at the end of the evening.

Photo of Lord Elton Lord Elton Conservative 9:30 pm, 17th July 2019

My Lords, I will make three brief points. First, if I were a better historian, I would be able to tell your Lordships when the parliamentary procedure that brought the Bill to this House in this state was more or less outlawed. It was called “tacking”: the Government would bring in a Bill and the Opposition would let it pass only if they could stick on other things that had nothing to do with it. That is what has happened here; it should not happen again.

Secondly, what emerges from this is that it is urgent to get the Assembly sitting again. I hope that, behind the scenes—they are certainly not doing it in front of us—the Government are straining every nerve and sinew to persuade Assembly Members to get together and do their job. One obstruction to that is the Good Friday agreement itself; perhaps, timidly but carefully, we should start looking at whether it can be amended without cataclysm.

Thirdly, it is clear that there is a total democratic deficit in what is being proposed. The noble Baroness, Lady O’Loan, her two co-signatories and the 19,000 signatories of her letter all propose that, even if they do not get together, Assembly Members should for once express the views of the Province, to great betterment.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I wish to add brief words of support. It is a disgrace that this steamroller legislation is going through the House. It is quite appalling and it must never happen again. It is not about direct rule. We do not have devolution. What the noble Baroness, Lady O’Loan, and her two co-signatories propose is very simple. Time without number, I have advocated calling the Assembly together. All the Assembly Members could be invited to Stormont and seen individually by the Secretary of State and her fellow Ministers within the space of a single day. That would be something, at least.

Analogies are never exact but the noble Baroness was right to refer to the poll tax. I happened to be the chairman of an art gallery in Edinburgh at the time of the poll tax; I went up there every month for two or three years. I was one of two Conservatives to refuse to vote for it in Scotland; I am always proud of that because it was an appalling way to legislate. This is even worse. I will support the noble Baroness’s amendment for that reason.

Photo of Lord Morrow Lord Morrow DUP

My Lords, I speak in defence of the amendment in the name of the noble Baroness, Lady O’Loan, to which my name is attached. Since the commencement of this debate at around 4 pm today, I have received some 500-plus emails on this issue. I suspect that I am not unique in this respect. I suspect that others are finding the same response, and I think that this demonstrates that people are exercised, and there is real concern about what your Lordships’ House does this evening.

The way in which this Bill has been handled, the way in which scope has been dispensed with and the way in which huge issues have been inserted into a fast-track Bill designed for completely different purposes is deeply distressing to many people in Northern Ireland. When this Bill entered your Lordships’ House we expressed huge concerns about the way in which scope had been dispensed with. This problem has been massively compounded by the events tonight and the passing of the Barker amendment.

We are now looking at a situation where abortion is legal up to 28 weeks, while in GB the limit is 24, for any reason, including disability and gender, so we will have imposed on us a definition of viability that is 50 years out of date, a situation where abortion clinics will be able to set up in Northern Ireland from the end of October, and people in England will be able to travel to Northern Ireland to get abortions that are not available at home.

Does this House really want devolution? Do we want to give it any chance of success, or are we saying, through our decisions here tonight, that we would prefer that devolution did not exist? I suspect that that is the interpretation that many will put on it. It seems that this House wants direct rule. If the answer is no, then the case for Amendments 16 and 16A is simply overwhelming. How, in a context where we have 90 MLAs, can we change a key area of devolved policy over their heads when we have the opportunity to engage them?

Despite the fact that we are now in the school holiday season in Northern Ireland, with many people away, the letter of the noble Baroness, Lady O’Loan, has gathered some 19,000 signatures. That represents a UK population equivalent of more than half a million. That could not be overstated. I know that the noble Baroness, Lady O’Loan, has already made reference to that, but I make no apology for repeating it.

Of all the amendments that we discussed today, many of which are dominated by people who do not come from or represent Northern Ireland, let us be very clear, this amendment has more co-signatories than any other, thousands of them, and almost all come from Northern Ireland. It will be very important to reflect on the message that will be sent today if noble Lords vote against this straightforward amendment.

What will we be saying to the people of Northern Ireland? What would Parliament be saying to you if, by virtue of parliamentary arithmetic, it was able to impose something on your part of the UK, and despite being given the opportunity to give your elected representatives a say, chose not to do so?

I am aware that some say that engaging the Assembly is not relevant because it is not a matter of votes but of human rights. That argument, however, simply does not stand up to scrutiny. Of course, human rights are engaged, but the idea that they trump consideration and sweep away all others is ultimately a recipe for replacing parliaments with courts. The truth is, as the Supreme Court has made very clear, there is no general international human right to abortion, so the debate is not with me on that issue but with the Supreme Court.

Moreover, on CEDAW specifically, the expert legal opinion of Professor Mark Hill QC is very clear that the pontifications of the CEDAW committee are not binding and that the CEDAW convention does not even mention abortion and does not have standing to read it in. Lest anyone should say I do not care about human rights, I care about them passionately. I am not sticking my fingers in my ears and saying that there is not a human rights discussion to be had here. That is not the point I am making. The Supreme Court may issue a declaration of incompatibility on one very narrow aspect of our law as it relates to abortion and babies with very serious disabilities. In 2016, when the Assembly voted not to change the law in any way, it did so pending an inquiry on fatal foetal abnormality, which was published after suspension and recommended legal changes narrowly on this particular point.

The idea, however, that amendments passed tonight are the answer to that problem is absurd. These changes open up abortion for any reason up to 28 weeks. There is no case for that in any binding, proper, international legal instrument. In fact, the Supreme Court has indicated that Northern Ireland’s abortion law is compliant with international human rights obligations in relation to disability generally because there is no human right to abortion on the basis of disability. The idea, therefore, that Northern Ireland has to settle for this approach to abortion because of human rights is plainly wrong.

Some people might like to adopt an approach to human rights that says that this is necessary, but it is not mandatory. In this context, if we are serious about breathing confidence into devolution and respecting Northern Ireland, we must engage MLAs as proposed by these amendments. If the Supreme Court makes a binding declaration or if there are other human rights developments that necessitate a legal change—indeed, if there are any other developments that necessitate a change—the Northern Ireland Assembly is capable of making those changes.

In this context—particularly given the manner in which Northern Ireland has been denied constitutional due process hitherto in terms of the dispensing of scope and the insertion of major issues in a fast-track Bill on the decision to move Northern Ireland from having the most restricted abortion law in the British Isles to having the most liberal, such that it will make the laws of the home jurisdictions of those who press these changes on Northern Ireland look conservative—it is only right that, first, before any repeal of primary legislation is agreed MLAs are consulted, and if a majority agree, repeal can proceed; and, secondly, draft regulations are sent to MLAs and, if they agree, that again can be laid before Parliament.

I urge noble Lords to vote for devolution and to support these amendments.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the noble Lord, Lord Morrow, has described the case for the amendment and the consultation that would follow. It is overwhelming. I agree with him and I shall vote for the amendment.

Photo of Lord Dubs Lord Dubs Labour

My Lords, I find this disappointing. I thought that the point made by the noble Lord, Lord Morrow, was the subject of the previous amendment but, never mind, we occasionally stray from one amendment to another.

Let me deal with the substance of it. If we were talking, as the noble Lord, Lord Cormack, has on previous occasions—although not tonight—about making use of Members of the Assembly to make general comments about policies in Northern Ireland, we would be in a different place. However, what we see today, under the pretext of giving the Assembly a new lease of life, is the picking out of one issue in the Bill and saying, “That is the way in which we should move forward”. If we want Members of the Assembly to be consulted, they should be consulted over the whole range of policies, rather than us picking the one policy which noble Lords do not like and saying, “We will proceed on that basis”. This is the wrong way to go about it and the principle of consulting the Assembly is negated by wishing to do it only in this partial sense.

We have already discussed the previous amendment and voted on it. I understand that feelings are strong—I respect them even if I do not agree with them—but it is quite inappropriate at this stage to deal with this sort of amendment. If Members of this House want to bring the Assembly back in some form another, let us talk about it—let us do it properly—not pick on abortion as being the pretext for doing it.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

The noble Lord will of course have in mind that the Assembly voted in favour of same-sex marriage. However, that is singled out, simply because the Assembly voted against it before. Therefore, if we are to respect devolution, in view of the suggestions that things have changed completely, it should be given a chance to say so.

Photo of Lord Dubs Lord Dubs Labour 9:45 pm, 17th July 2019

I am afraid that I do not follow the thrust of that argument. We are talking about something that we talked about in the previous amendment. I am saying that we should not talk about giving the Assembly the powers on one issue; there are other issues in the Bill but nobody has suggested that we talk about those. In any case, I believe that the situation in Northern Ireland has changed quite a lot. I do not like bandying public opinion polls around, but the latest figures I have from the 2018 Northern Ireland Life and Times survey, which is equivalent to the British Social Attitudes survey, are that 89% of people in Northern Ireland believe that women should never go to prison for having an abortion, 82% believe that abortion should be a matter for medical regulation and not criminal law, and 71% believe that it should be a woman’s right to choose whether to end her pregnancy. I believe the situation has changed, and we cannot simply say, “The Assembly did that some years ago”. The argument in this amendment was that we should consult Assembly Members now; I say, not if we are dealing with one issue only. We should consult them on everything and bring them back to life that way. I am sorry, but I am not happy about this amendment; it is simply time to have another go at the previous amendment.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat

My Lords, in the previous set of amendments, the Minister talked about consultation. In his response to this set amendments, could he explain what role would be envisaged for the Members of the Assembly in that consultation?

Photo of Lord Shinkwin Lord Shinkwin Conservative

My Lords, I will speak in support of Amendments 16 and 16A. We have already heard how understandably upset the people and the politicians of Northern Ireland are at not having been consulted about our imposing massive changes on them on such hugely sensitive issues. But what we have not heard are the views of disabled people in Northern Ireland. For the simple fact is that, if the Bill becomes law, human beings in Northern Ireland with conditions like mine will suffer the death penalty for the crime of being diagnosed with a disability before birth.

I asked my noble friend the Minister several questions in Committee on Monday; he answered not one of them, so I will have another try. First, can he tell me what consultation has been carried out of people with Down’s syndrome or their families in Northern Ireland? The Prime Minister prides herself on the Government’s professed commitment to equality, so perhaps my noble friend the Minister could tell the House what effort the Government have made to establish how people with Down’s syndrome and their families in Northern Ireland feel about the prospect of human beings with Down’s syndrome being aborted and denied their equal right to exist? I would be very happy to give way if my noble friend would care to answer.

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

Absolutely. This remains, at present, a fully devolved matter, and that consultation would be undertaken by the devolved entity. At the present time there is no devolved entity, and that consultation has not been undertaken by those MLAs or by the restored Executive; it is not there. We have been able to move this matter forward only since the instruction of the other place only a short time ago.

Photo of Lord Shinkwin Lord Shinkwin Conservative

I thank my noble friend for his answer. In that case, I hope very much that he will accept Amendments 16 and 16A, since he has just emphasised his commitment to consultation.

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 would not normally stand up at this point, but it is important to note that the consultation envisaged in the early amendments, which have already passed, would have that full consultation because disabled people in Northern Ireland are a protected group.

Photo of Lord Shinkwin Lord Shinkwin Conservative

I wonder whether my noble friend could possibly help me with this question. Could he tell me why—

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office)

May I suggest that if the noble Lord wants the Minister to answer questions, he makes his speech and the Minister answers at the end? That would be a courtesy to the House, and more helpful.

Photo of Lord Shinkwin Lord Shinkwin Conservative

The question is actually directly related to the House, so if I may I will continue.

I wonder if my noble friend, or indeed anyone in the House, could tell me why—I can quite understand why the noble Baroness would perhaps not like me to ask this question—as someone who was born with a disability, I am good enough to sit in your Lordships’ House, but this Bill suggests that someone diagnosed before birth with a disability such as mine in Northern Ireland would only be considered good enough for the incinerator. Because that is the brutal message of this Bill: if you are diagnosed with a disability before birth in Northern Ireland, you will not just be worth less than a non-disabled human being; you will be worthless—you would be better off dead. What a dreadful message for this House to send the people of Northern Ireland, without even having consulted them in advance.

As a disabled person, I am used to people feeling sorry for me, but today it is I who feel sorry for my party. What a desperately sad position this Bill puts my party in. Not only does it make a mockery of any pretence at government neutrality on a matter of conscience; it also enshrines inequality in law for Northern Ireland—and all this without consulting the people of Northern Ireland or their MLAs. How ironic that this is happening just before we celebrate a quarter of a century since my party, the Conservative Party, introduced the Disability Discrimination Act, which championed disability equality.

Perhaps saddest of all is the legacy the Prime Minister leaves if this Bill becomes law—a legacy of discrimination and death. Instead of ending burning injustices, if this Bill becomes law she will be leaving office after the creation of one of the biggest burning injustices imaginable.

Earlier this evening, my noble friend the Minister read out part of a letter to the Prime Minister concerning the amendments on same-sex marriage. I will do the same, only mine is a letter to the Prime Minister from more than 500 people with Down’s syndrome and their families. Perhaps my noble friend the Minister has it in his briefing pack—perhaps not. This is what they say:

Theresa May, do you really want to look back at your time in Parliament and see one of your final acts being to introduce a change in the law that would be discriminating against our community and likely lead to many more babies with Down’s syndrome being aborted in a time of equality”.

How do they know the likely death toll for Down’s syndrome diagnosis? They know because in England and Wales, 90% of human beings diagnosed before birth with Down’s syndrome are already aborted. Indeed, while the last 10 years have seen amazing advances in medicine and technology, they have also seen a 42% increase in abortion of human beings with Down’s syndrome.

So, the writing is on the wall. If human beings diagnosed before birth with disabilities such as mine were wild animals, they would be given endangered species status and protected by law. But we are only disabled human beings, so instead we face gradual extinction. That is what this Bill imposes on Northern Ireland, without consultation.

I close with two questions for my noble friend. He is rightly respected as a leading advocate of LGBT rights and I take this opportunity to congratulate the noble Baroness, Lady Barker, on her recent marriage and to wish her and her wife every happiness. Love is love. It is a wonderful thing, as is the personal and societal security, stability and happiness that flow from it. My point is this: I would never presume to invalidate anyone’s love for another human being, including by denying them the right to get married. But why, then, do my noble friend and the Government use this Bill to invalidate the most fundamental right of all: every human being’s equal right to exist? For that, ultimately, is what this Bill does, and without the consent of the people of Northern Ireland or their MLAs.

My last question is this. Recent reports in the media suggest that the day is fast approaching when a predisposition to same-sex attraction can be established before birth. Yet there will be nothing to prevent abortions on that basis, although another reason would presumably be given. Would my noble friend stand at the Dispatch Box and defend the right for people to make such a choice, or would he stand with me and say that such discrimination would be unacceptable and wrong? If, as I hope, he would join me in opposing such discrimination, how can he possibly defend such discrimination against human beings whose only crime is to be diagnosed with a disability before birth?

It is no less unacceptable and wrong for us to impose such inequality on the people of Northern Ireland without their consent. It is vital that, at the very least, that consent is secured by introducing a requirement that a majority of MLAs support regulations before they are laid before Parliament. I urge noble Lords to support Amendments 16 and 16A.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, that was an extremely impressive speech and I pay tribute to the noble Lord, Lord Shinkwin, but it was surely a speech about Amendment 12, not Amendment 16.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

It has been said so often: Amendment 16 is an amendment to Amendment 12.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

Amendment 16 is entitled:

“Requirement for majority of MLAs to support regulations”.

I confess that I have huge admiration for Amendment 16, because I wish that I had thought of it when we were considering the question of possible prorogation and a crash-out deal with no consultation with Parliament. It is a wonderful thought that we could have written a prescription like this into the law, which would have required the Prime Minister to ring me up and ask, “What’s your view?”, and then work out whether there was a majority in both Houses for and against the crash out.

Actually, it does not make sense. Individually consulting Members of an Assembly that is not meeting does not make sense, I am afraid. It is of course open to the Secretary of State to consult whomever she wants, but to prescribe that she can proceed only if a majority consulted on the telephone or the internet agree is an absurdity.

I also remind those speaking to this amendment that the Minister made it absolutely clear that the consultations would be not about “whether” but about “how”. A number of the speeches that have taken place on Amendment 16 are more appropriate to Amendment 12 because they seem to assume that the consultations will be about “whether” and not about “how”.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP 10:00 pm, 17th July 2019

My Lords, when I spoke earlier about consulting Assembly Members, I was told I should be speaking to Amendment 16, so I am delighted that the noble Lord, Lord Kerr, knows that I am speaking to the relevant amendment on this matter.

This legislation has been rushed through. We are told that everyone supports devolution and everyone wants it but there seems to be a great fear of hearing what the 90 Members of the Assembly think. We were told in our debate before that the Assembly Members had changed their minds. The last time they voted, the vast majority voted against abortion. The noble Lord, Lord Alderdice, told the House that things had changed dramatically. In fact, he went through the parties and said they have changed their views. How he knows that, I do not know. There is a way to find out—we could ask them, and this House would be led not by false information but by fact. Why can we not ask?

The noble Lord, Lord Dubs, is very interested in the protection of refugees. I say to him that I am very interested in the protection of the unborn child. I think that the child that has no voice in this House is worthy too. We have been lectured about rights and this being a matter of human rights. Is there a hierarchy of rights? Has the child no rights or fewer rights? Therefore, we want to legislate on a hierarchy of rights. I suggest that this is an opportunity to find out, genuinely and earnestly, what the elected representatives of the Northern Ireland Assembly feel. They have been used in this and the previous debate—we are legislating because the Members of the Assembly wanted to legislate. Now we are told that we do not know. We know that they voted against this legislation and we are going to legislate anyhow. I suggest that that is double standards and does nothing to credit this House.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland)

My Lords, the noble Baroness, Lady O’Loan, in introducing this amendment acknowledged that it is effectively an amendment to the previous amendment that was carried. She also gave some anecdotes about people who were told to have an abortion. I do not believe that anybody in this House believes people should be told to have an abortion or that there are practitioners who would do that. We are talking about the right to choose on the basis of evidence. Indeed, we could have other stories of the consequences for some women denied abortions and the suffering that they have gone through. I do not think trading suffering really adds to the debate. There are fundamental differences of view. I respect that but let us recognise that we will use the arguments to support one side or the other.

What is being asked here is that the Assembly should be consulted. The noble and right reverend Lord, Lord Eames, said that we are talking about the theory of devolution. The problem is that we are not; we are talking about the practice of devolution, which is not being practised in Northern Ireland. Noble Lords from Northern Ireland need to reflect on the fact that the people of Northern Ireland need an Assembly so that devolution can happen. If devolution is not happening, they will have to suffer the debates that they are complaining about now. That is the consequence and the reality of not having devolution.

As the noble Lord, Lord Kerr, said, the previous amendment was about when and how—it was about the timing; it was not about whether it would happen. Amendment 16 is clearly about providing a veto in relation to the previous amendment. Proposed new subsection (3) in the amendment says:

“The second condition is that the relevant regulations under section 9 may only be before Parliament if a majority of the members of the Northern Ireland Assembly support the regulations”.

That is a clear veto. It is possible that a majority of Members would support the regulations, because opinions have shifted. I accept that. However, like the noble Lord, Lord Dubs, I worry that there is something uncomfortable about picking Members off one by one, possibly in a secret consultation as opposed to a plenary Assembly where votes, debates and opinions are discussed and recorded and accounted for in public. If the Assembly Members are to be consulted on these issues, then reconvene the Assembly and they can decide.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office)

My Lords, it has been a long debate and it has ranged rather wide of Amendment 16A. The noble Baroness, Lady O’Loan, said that Amendment 16 was an amendment to Amendment 12, but that is not correct. In fact, Amendment 16 would insert a new clause.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My understanding, having talked to the clerks, is that the new clause proposed by the noble Baroness, Lady Barker, becomes Section 9, and this amendment then seeks to amend it.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office)

Amendment 16 actually proposes inserting a new clause, but that is slightly irrelevant. We have had a debate on Amendment 12 and are now looking at the requirement to consult MLAs. There is something slightly uncomfortable about this. I am certainly not opposed to consultation. I think that the best consultation that we could have on this issue would be more than consultation. I would want to see the Assembly up and running and making these decisions itself—a point that the noble Lord, Lord Bruce, made. It is not just a question of taking consultation on one issue in isolation; what is really important is the process of governance, where issues are weighed against each other, talked through and looked at in detail along with other information. I fully—100%—support local decision-making and the local responsibility that goes with it, but that is not what we are talking about here.

In some ways, we are almost talking about imposing a double lock on the Government. The amendment that they want to consult on—the new law, as it will be—requires the Secretary of State to bring forward regulations in the absence of a Northern Ireland Executive. Therefore, only in the absence of an Executive would the Government be able to bring forward regulations. However, it would seem somewhat strange to then say, “We haven’t got an Executive. The Government must take the decisions, but we’ll go and consult them anyway”. That seems almost like a double lock, preventing the Government taking any action at all while the Assembly is not sitting.

If that principle were imposed across the board, it would be very difficult for there to be any governance on any issue in Northern Ireland. It would be inappropriate to put the Government in that position when the Assembly has not sat for well over two years. Therefore, despite what I think are good intentions behind the amendment, I cannot give it any support.

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, in many respects this has been a longer extension of the earlier debate. I almost wish that someone had asked me a question at the beginning so that I could have stood up then. In fact, the MLAs will be consulted as part of the ongoing consultation envisaged with the stakeholders. However, the difference is that they will not get a lock on that, which would mean that only a majority could help us move forward. Therefore, the views of the MLAs will be taken and heard but they will not be a determining factor in arresting progress on this amendment. It is important to be aware of that as we make progress. It is also important, as I said when we discussed this issue a longer time ago, that the scope we are discussing is the scope we have received from the other place. The criticism of proceedings in the House of Commons, and those issues, are deemed out of order in the Companion. We have to accept that what has arrived here is something that we can act on and take forward, which we must do.

It is important to stress, throughout each of our discussions on this wider question, that the Government are not seeking to take forward an abortion amendment. We have received from the other place a clear statement, by a clear majority, on a conscience issue and a free vote. For good or ill, in response to my noble friend Lord Shinkwin, the Prime Minister, in this instance, would be able to exercise her conscience in the same way as anybody else in that House. This is not the UK Government’s policy, nor is it the policy of my party, but responsibility rests with this Government to ensure that what we are able to do in moving this matter forward is safe, sound and secure. That responsibility rests with us, and that is what we have sought to do in engaging with all noble Lords throughout this process—to ensure that we are able to deliver on that.

The discussion has ranged more widely than the question of consulting with the MLAs. I do not wish to extend the debate significantly in this direction, given that one of noble Lords’ concerns has been the scope from the other place, but I will touch on a few elements. By any definition, we have to accept that the situation in Northern Ireland is dysfunctional. The devolution structures that have been put together are not working. One can argue that the structures are at fault, or that the problem rests elsewhere, but the problem we face now is that the outcome is the same no matter which you decide is responsible. The situation that we face is serious, and I do not think there is a single Member in the House tonight who would not wish to see these matters taken forward by an Assembly and an Executive in Northern Ireland. For reasons that are all too apparent, however, certain parties in Northern Ireland are not able to deliver against that instruction. That is a great shame, as we probably all agree. We all recognise that noble Lords sitting here at this late hour should not be taking these matters forward in this fashion, but we are doing so because of a failure and a fault in the system in Northern Ireland

As the people of Northern Ireland look at what we are doing here, I have a sneaking suspicion that they are sick and tired of all politicians, of all rank and measure. They are tired and weary now because they seem to be in a situation where politicians are all over them when it comes to an election, then—lo and behold —seem to disappear when it comes to the heavy lifting. They now see all politicians of all parties, of all ilk and all places, in exactly the same way. That is a terrible situation to be in, and we need to restore the confidence and trust of the people of Northern Ireland in the elected system. We need to get the Executive up and working, and get this moving forward, but that is not what we are able to do through this amendment.

The noble Baroness, Lady O’Loan, has made a passionate speech this evening, and she has received a number of emails in response to a particular letter. I am sure we all have a large number of those in our inboxes now, but the number of emails needs to be judged against the population of Northern Ireland. The population is 1.871 million, and we need to recognise that the passion of those who have responded should be applauded, but it is not a means by which we can determine the view or the will of the people of Northern Ireland; nor should we consider it so. It is an important measure, but it is not in itself an adequate measure.

The amendment before us now broadly says that the MLAs must be consulted and their response to the consultation will determine what happens next. We cannot accept the amendment, but I stress that the MLAs will be consulted, and I can go further by ensuring that MLAs receive an update on each of the aspects that noble Lords will be updated on as a consequence of the earlier amendments from the other place. If your Lordships are so minded, we can ensure that MLAs receive exactly the same information that comes from the reports we have commissioned, or are about to commission, to ensure that they are fully abreast and aware of all of these aspects. We will do all we can to engage directly with the MLAs to ensure that they are fully aware of each step. I have no problem with committing to do that now, but I cannot have a lock placed on progress on this matter. That would place the Government in the invidious position of having been, both from the other place and through our own vote this evening, in a clear position, but then having to say that they must await the views of MLAs. We cannot have that, I am afraid; it would not be appropriate. I therefore ask that the amendment be withdrawn.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My Lords, I have listened with care to everyone who has spoken. I thank noble Lords who have spoken in support of my amendments. I will address a couple of issues before I give noble Lords my decision. There is a democratic deficit. The Minister is right: people are tired of politics. That is why I did not expect a response to the letter which the noble and right reverend Lord, Lord Eames, and I drafted, yet the responses continue to come in.

Photo of Lord Kilclooney Lord Kilclooney Crossbench

My Lords, very briefly, it is easy to say that people are tired of politicians; that is the usual trick when debating. But in the most recent election in Northern Ireland, the politicians got a turnout of a higher percentage than five years earlier.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I thank the noble Lord; I am in his debt.

There is a democratic deficit. Noble Lords have acknowledged it throughout this debate. They have all acknowledged their unease at the way they have found themselves forced to do this and they have stressed the unacceptable nature of what they have been obliged to do. Despite that, our people still want a voice. While discomfort has been expressed here about what has been said, there is huge discomfort in Northern Ireland about the imposition of abortion by Great Britain on a people who do not want it. The context is that we are talking life and death issues. That is the difference about abortion: it is the life and death issue of a child, in respect of which, as noble Lords have said, the Assembly had a clear view.

We face Brexit. We started with Brexit this evening and we will end with Brexit. It would not be good to do this to a people who do not want it without at least consulting their MLAs; it would be too reminiscent of the bad old days. Of course, we are all aware of the subtext: that Sinn Féin had two red lines to coming in to the talks, which have now been removed. Sinn Féin may come back but not, I suspect, before this Bill is passed and implemented.

There are so many uncertainties around this Bill. I think the Minister has forgotten about the Istanbul convention; I hope he will come back to me on that.

I ask noble Lords to do as the noble and learned Lord, Lord Mackay, has said: to respect, in so far as we can, the devolved Administration. Our peace in Northern Ireland was very hard won. We still have fears, troubles, bombs and shootings. I ask noble Lords to give a voice to the MLAs in Northern Ireland by supporting this amendment. I do not intend to withdraw it; I wish to test the opinion of the House.

Ayes 39, Noes 138.

Division number 3 Northern Ireland (Executive Formation) Bill - Report — Amendment 16A (to Amendment 16)

Aye: 37 Members of the House of Lords

No: 136 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 16A (to Amendment 16) disagreed.

Amendment 16 withdrawn.