Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, if there is a Division in the Chamber, which I do not expect, we shall adjourn for 10 minutes.
Identity and Language (Northern Ireland) Bill [HL]
Wednesday 22nd June 2022
(2 years, 6 months ago)
Grand CommitteeRead Full debate Identity and Language (Northern Ireland) Act 2022 View all Identity and Language (Northern Ireland) Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 11-I(a)(Corrected) Amendment for Grand Committee (Supplementary to the Marshalled List) - (21 Jun 2022)
Baroness Goudie
Member’s explanatory statement
This amendment would substitute the qualification on the National and Cultural identity principles relating to the principle that everyone in Northern Ireland is free to express and celebrate that identity. The amendment would substitute the current limitation that this principle be subordinate to the “sensitivities” of persons with alternate national and cultural identity, with a limitation grounded in respect for the rights of others.
Baroness Goudie (Lab)
My Lords, I will be moving the amendments in the name of the noble Baroness, Lady Ritchie, today, as she has Covid—she is very sorry not to be here. I will not speak as well as she would on these issues, but I will speak shortly and to the point, as I know that we are under time pressure.
Clause 1 provides that the office of identity and cultural expression may publish guidance on the duty to have regard to the national and cultural identity principles and other principles relating to national and cultural identity. Amendment 5 in this group provides that “other matters” include the
“effective implementation of international human rights standards relevant to cultural identity and language”.
This is to probe how strong the human rights framework is and whether this is incorporated in the work and language of human rights. I hope that the Minister might look at this and see if we could make the clause much better and warmer, so that more people feel that they could go with it. This amendment also fits in well with New Decade, New Approach.
Lord Murphy of Torfaen (Lab)
My Lords, I very much support my noble friend in her amendment, but I will speak to Amendment 5 in my name and that of the noble Baroness, Lady Suttie. It is similar to the amendment tabled by the noble Baroness, Lady Ritchie, and it provides that “other matters” include the
“effective implementation of international human rights standards relevant to cultural identity and language”.
It is a probing amendment, which emphasises the human rights standards that we have come to expect in Northern Ireland over the last 25 years.
In the Bill, Clause 3 on Ulster Scots and Ulster British traditions includes reference to three specific international instruments, including the Council of Europe’s Charter for Regional or Minority Languages and the Convention on the Rights of the Child. This clause requires the commission to provide advice, support and guidance on the effect and implementation of those instruments in relation to relevant language, arts and literature. I am aware that further amendments later on deal with that, but this is the only reference in the Bill to the wider human rights framework, so Amendment 5 would build on that. Do we need to look more closely at how relevant human rights standards will be embedded across the work of all the bodies established under the Bill?
Of course, this issue goes all the way back to the Good Friday agreement of 1998, a copy of which, by pure chance, I happen to have with me today. It says:
“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights … with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”
It goes on to say:
“These additional rights reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and—taken together with the ECHR—constitute a Bill of Rights for Northern Ireland.”
We have never had a Bill of Rights for Northern Ireland. Over the last 25 years there has not been one. I blame my own Government as much as anybody else for that, as we should have had one. I suppose it is appropriate that the Minister’s colleague, the Deputy Prime Minister, made a Statement a few hours ago in the House of Commons with regard to the European Convention on Human Rights. I wonder whether, in answering us later, the Minister might touch on how important the ECHR is in Northern Ireland and say whether the announcement today will have any implications for Northern Ireland.
I also support Amendment 6 in the name of the noble Baroness, Lady Suttie, which widens the debate out to look at the future of other languages in Northern Ireland, including sign language, and what could be achieved.
I will make a general point. We are in Committee and are unlikely to be voting on the amendments, which are overwhelmingly probing amendments, but it seems to me that they have to be in the context of New Decade, New Approach, and as closely related to that agreement as possible. They might not be able to have every single word of it, but it was an agreement across the board in Northern Ireland among all parties represented in the Executive and the British Government, so I hope that when we table amendments we all have that important principle in mind.
Baroness Suttie (LD)
My Lords, I echo the sentiments in the speech by the noble Lord, Lord Murphy. Briefly, I repeat that of course we believe that it would have been hugely preferable for the Northern Ireland Assembly and the Northern Ireland Executive to be dealing with these issues today. As a strong believer in devolution, I always believe that these issues should be dealt with by the politicians closest to those who are involved. Indeed, I was speaking earlier to the noble Lord, Lord Empey, and confessing that it is difficult for people who are not from Northern Ireland to understand some of the sentiments and the passions that stem from this Bill.
As your Lordships’ Constitution Committee said in its brief report this week, it would of course be preferable for the Northern Ireland Executive and the Northern Ireland Assembly to have been dealing with these issues, but none the less, as the noble Lord, Lord Murphy, said, New Decade, New Approach was agreed by the majority—not all—of the parties in Northern Ireland. That was over two years ago and it is now extremely important that we make progress on these issues of identity and language.
The amendments in this group are probing amendments and are primarily about ensuring that the rights of others are respected and that promotion of one cultural and linguistic diversity does not lead to prejudices against the other. It is important that the “sensitivities” of others are not interpreted as encompassing prejudice or intolerance to another’s national or cultural identity. It is also important that proper consideration is given to any potential unintended consequences of the Bill. The word “sensitivities” risks being interpreted subjectively. As the noble Baroness, Lady Hoey, suggested at Second Reading, it might be preferable to align the qualifications with the international standards set out in the European Convention on Human Rights.
I have added my name to Amendments 5 and 6, which, as the noble Lord, Lord Murphy, said, are both probing amendments. I will concentrate my remaining on Amendment 6, which highlights the importance of remembering other languages used in Northern Ireland, including all spoken languages and sign language. It is important that the measures in the Bill do not lead to exclusion of the new communities in Northern Ireland, who do not have any particular affinity to either Irish or Ulster Scots. I am thinking of the fairly extensive Polish, Lithuanian and other eastern and central European communities, as well as the Chinese community, particularly in Belfast and Dungannon.
Baroness Suttie (LD)
The noble Lord is from Dungannon, I understand. No? Forgive me.
The Belfast/Good Friday agreement made reference to
“the importance of respect, understanding and tolerance in relation to linguistic diversity, including … the languages of the various ethnic communities, all of which are part of the cultural wealth of the island of Ireland.”
Can the Minister say whether thought has been given to developing a comprehensive and needs-based language strategy, which includes all the other languages used within Northern Ireland, including sign language?
Lord Morrow (DUP)
My Lords, the NDNA deal has been mentioned, as it often is. NDNA was not a single issue. There were many issues in that package. It is with some regret that we find that certain things are being plucked out and described as being agreed. It was all agreed in the context that nothing was agreed until everything was agreed and enacted as one package.
Having said that, to set the context, Amendment 1 would replace the current requirement for a person expressing identity and culture to have regard to the sensitivities of others with an obligation to respect their rights. Of course, we are not averse to this. There needs to be an examination of the merits of any limitation on cultural expression based on the sensitivities of others and vis-à-vis the rights of others.
The Northern Ireland Human Rights Commission has said that
“consideration should be given to whether restricting the cultural expression and identity of one individual to accommodate the ‘sensitivities’ of another individual is a disproportionate interference with one or other’s right to freedom of expression”.
It is possible that Section 6 of the Human Rights Act and references to convention rights may provide more certainty in this regard. The term “sensitivities” could be construed in various ways. We need to eliminate the risk of the national and cultural identity principles being weaponised in order to interfere with the legitimate expression of, or suppress, unionist culture. What would taking account of sensitivities actually mean in real terms and in practice? Would this cover mere offences or basic intolerance of others? Surely there is a need to ensure that “sensitivities” captures only grievances based on substantive and recognised rights.
We are certainly not suggesting that the HRA or existing interpretation of convention rights are a panacea or a safeguard for our culture. One has to look only at the outworking of the parading issue in Northern Ireland, where the system is often seen to reward violence and restrict public expression and assembly. That, unfortunately, has been the norm for quite a while and gives us great concern.
While I am on my feet, I will speak briefly to Amendment 5, which would enable the office of identity and cultural expression to issue guidance on the implementation of relevant human rights standards. We are against this. In our view this amendment wrongly conflates the proposed operation of the office of identity with the separate and distinct roles of statutory bodies such as the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland.
First and foremost, the role of the OICE should be to promote the different cultural and national identities in Northern Ireland. This amendment would open up the risk of the OICE assuming the role of enforcer rather than facilitator of culture and identity. Clause 3 already places the Ulster Scots and Ulster British commissioner under an obligation to
“publish such advice, support and guidance … to public authorities in relation to … the effect and implementation of the international instruments”.
There would be the risk of duplication or conflict, not just between the regional statutory bodies but between the cultural bodies established under the Bill. This does not seem to be the best path forward.
Amendment 6 in this group is a probing amendment. It would
“require the Office of Identity and Cultural Expression to develop a comprehensive language strategy to include other languages used in Northern Ireland.”
We are against this because we do not believe that this is the right vehicle to take forward progress on producing strategies for spoken and sign languages in Northern Ireland. Section 28D of the Northern Ireland Act 1998 and the NDNA commitments pertaining to the programme for government envisage this function remaining in the gift of devolved Ministers.
Lord Deben (Con)
My Lords, I wish to associate myself with those noble Lords who are sad that this is not being debated in the Assembly. Let me say how sad I am that it is not recognised by some in Northern Ireland that it is their responsibility to be part of that Assembly and that that is the deal. It is a deal that the rest of the United Kingdom, a little bit of which I hope to be able to speak for in this Committee, wants to hold them to instead of being held by them.
Secondly, I opposed the Government’s successful attempt to impose on Northern Ireland changes that were opposed by both communities. I thought that it was wrong. It is not subsidiarity and we should not have done it. However, in this case, we are having to discuss something that has been agreed in principle and which we must carry through. This is therefore a different circumstance, which is why we are doing this. I entirely agree with the noble Baroness who last spoke from the Opposition Bench.
I say to my noble friend that the reference to the European Court of Human Rights is important. It is extremely important that we tie this into the international agreements that we have. If I may say this to the noble Lord, Lord Murphy, I do not much mind what Mr Raab has said. The truth is that we signed up to it—we more or less invented it—and we did so to make sure that everybody stood to the same standards in this area. If ever there were a case for making sure that we insist on the standards enforced by the European Court of Human Rights, this certainly is it.
Lord Empey (UUP)
My Lords, like the noble Lord, Lord Deben, I deeply regret that this issue is being dealt with here. It is obvious from the first quarter of an hour of debate, from the many local issues that have arisen, that local MLAs would understand the nuances far better. It is a crying shame that this is not being dealt with there.
I have one point to make to the noble Lord, Lord Murphy. My party did not agree to New Decade, New Approach. In fact, I deeply regret a lot of the proceedings that led up to it and a lot of what is included in it because I fear that this Bill has within it the seeds of a grievance factory, where it is going to be very difficult to make everybody feel that their particularly identity is being represented. Indeed, it may be a shock to many that people do not go round the place wondering who they are each day; it is not something at the top of people’s agenda when they cannot even put money in the meter to keep their lights on. We must understand that it is not the sort of thing that is necessarily top of people’s agenda.
We must avoid two things. First, because this Bill is not subject to debate in the Assembly where implementation of it would take place, this House cannot amend it —because, if the Assembly is not there, the only process is here, and therefore we should not be afraid to do that. Secondly, and equally, we must be wary of imposing conditions that prove to be difficult for the Assembly.
I think there is some merit in what is suggested in Amendment 1. I take the point about other languages, but one has to be careful about who is included in that and who is not. Within the past 36 months, we have had the arrival on our shores of people from varying backgrounds—from Syria and Afghanistan—we have had a significant indigenous Chinese population for as long as I can remember, and we have had people coming from eastern Europe as part of the European Union for many years, who have built up considerable numbers, particularly in the past 15 years or so. So who is included in that and who is not is very difficult. I ask colleagues to bear those points in mind.
My noble friend Lord Morrow makes a valid point about the boundaries where one public body ends and another begins. There could be quite a lot of overreach and overstretch there. If an office dealing with identity issues becomes specifically involved in rights and equality, there is some overlap, but they would be two quite distinct areas, and we must take great care that we do not create a scrambled egg of bodies all competing about where the boundaries of their activities begin and end. I urge a bit of caution from the Minister in that regard.
Bearing in mind that it is a matter of very deep regret that we have to do this, I suggest that the one thing that we try to avoid is making things worse by confusing the role of one public body with another. I do not think it was ever the intention of the negotiators of New Decade, New Approach that the existing equalities and human rights commissions would be subject to override in this area. In the event that somebody feels that their human right has been overruled, they still have the opportunity to have their case taken up by those bodies. The right to do that is not conflicted in any way by anything in this, but we must avoid confusion. The existing lines are relatively clear, and I think we should adhere to them.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, once again we are dealing with an issue that was the responsibility of the Northern Ireland Assembly. Once again, the Government have taken it out of the hands of the Assembly. This has not just arrived since the last Assembly election; this was from before that. I remind some noble Lords that the history of this goes back to the previous three-year suspension of the Northern Ireland Assembly by Sinn Féin. Sinn Féin would not come back into the Assembly but made certain demands before it would come back in. One of the demands was on the abortion legislation; it wanted abortion on demand. The second was an Irish language Act. It has to be admitted that it did not get an Irish language Act, because this is the Identity and Language (Northern Ireland) Bill, but nevertheless it was part of its demands.
The truth of the matter is that the Government yielded to the demands of Sinn Féin which is why we are having this debate here at Westminster. The new Assembly has certainly not been given the opportunity to debate it, because the Assembly election was just recently. With all the demands that are being made on public finances, I must say that, right across this legislation, I have deep concerns. When one bears in mind that people are fighting to pay their bills and all the demands on public finances at the present moment, I would certainly ask whether this is the best expenditure of public money at this particular time.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, I am grateful to all those who have spoken to the first group of amendments before us. Before I turn to the detail of the amendments, I place on record my sorrow that the noble Baroness, Lady Ritchie of Downpatrick, is not in her place today to move her amendments. I am sure that I speak for the entire Committee in wishing her a speedy recovery and quick return to your Lordships’ House.
I speak first to Amendments 1 and 3, in the name of the noble Baroness, Lady Ritchie. I am grateful to the noble Baroness, Lady Goudie—with whom I had the pleasure of serving on the Protocol on Ireland/Northern Ireland Sub-Committee for a number of months—for stepping in at a moment’s notice. In broad terms, these amendments seek to amend the Bill’s first clause so that the
“national and cultural identity principles”
provided for in new Section 78F inserted by that clause would respect the “rights of others” rather than taking
“account of … those with different national and cultural identities”,
as drafted in the Bill. Amendment 1 from the noble Baroness, Lady Ritchie, would make this change, with the second providing a definition of the “rights of others”.
Although I understand the intent behind this amendment, I believe that this would not correctly reflect the national and cultural identity principles that were a matter of careful negotiation between those parties that agreed to New Decade, New Approach, and which are set out in paragraph 25 of that document. They were also set out in the same terms in the accompanying draft legislation that went with New Decade, New Approach. The provision in this Bill therefore reflects the terms under which the parties agreed New Decade, New Approach and re-entered the Executive in January 2020. It has been our approach throughout to reflect in good faith that agreement from January 2020, and I believe that it would be inconsistent with that approach if we were unilaterally to deviate from those principles today.
Amendments 5 and 6 seek to extend the remit of the office of identity and cultural expression. Amendment 5 seeks to include the effective implementation of relevant international human right standards and Amendment 6 would make provision on a comprehensive language strategy to include all spoken and sign languages used in Northern Ireland. As with the national and cultural identity principles, the role and remit of the office of identity and cultural expression have been carefully set out through New Decade, New Approach. I fear that these amendments would represent a deviation from the basis of NDNA; the Government are clear that they will not do this.
As some reassurance, I highlight that new Section 78H(4) will enable the First Minister and Deputy First Minister, acting jointly, to direct the office of identity and cultural expression. They could use this power, for example, to give consideration to certain international standards that they deem relevant or to develop strategies, such as overall language strategies or those on sign language. Of course, they would need to fall within the framework of the principles themselves. In addition, the office itself could decide to consider international human rights standards in the advice and guidance that it provides. Of course, as a number of noble Lords have made clear, we would much prefer this to be taken forward not in your Lordships’ House but by a future Executive and Assembly.
Quickly on the ECHR and human rights, I assure the noble Lord, Lord Murphy of Torfaen, my noble friend Lord Deben and others that this Government remain absolutely committed to the Belfast agreement in all its parts. That includes the commitments on the ECHR. As for a Bill of Rights, the noble Lord, Lord Murphy, blamed his own Government as much as anyone for the lack of one. As I have always said, the agreement is somewhat ambiguously drafted as to how that should be taken forward, but the policy of successive Governments has been that it is primarily a matter for the Executive and the Assembly. New Decade, New Approach established a committee of the Assembly to look at how this issue might be taken forward.
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
We now come to the group beginning with Amendment 2. The noble Baroness, Lady Harris of Richmond, will be taking part remotely.
Amendment 2
Lord Murphy of Torfaen
Member's explanatory statement
This is part of a set of probing amendments. This is to probe the chosen definition of “public authority” in relevant Clauses.
Lord Murphy of Torfaen (Lab)
My Lords, I add my thoughts to those of the Minister regarding my noble friend Lady Ritchie, who is seriously disappointed that she could not attend this session. She is on the mend and hopes that she can take part on Report.
Before moving on to Amendment 2, I have two general points on who should be doing this. Of course, I agree that it should not be us. When we put forward these ideas all those years ago in the Good Friday agreement and later in New Decade, New Approach, the idea that this should be done in the Moses Room of the House of Lords was anathema. But it has to be done, as the commitment has been made. I understand the point made by the noble Lord, Lord Empey, that his party had some reservations about New Decade, New Approach, but the agreement was made between the two Governments and is the only one we have before us. It at least forms the basis of this legislation. I also agree with him that, if there are amendments which improve the legislation and are acceptable across the board—that is the essence—I see no reason why we should not accept them.
I turn to the amendment on public bodies. Again, it is probing. Clause 1 of the Bill provides a strange definition of public authorities—those in Schedule 3 to the Public Services Ombudsman Act (Northern Ireland) 2016, with the exception of the office of identity and cultural expression. Added to it are the commissioners themselves, the office I have just mentioned, the implementation body to which Part VI of the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999 applies, and any body referred to in note 2 of the schedule.
I do not disagree with any of those bodies being named or relevant, but the purpose of the amendment is to see whether the legislation should go more widely than that—such as in Wales, for example, where United Kingdom government departments, as well as those of the Government of Wales, are subject to the Welsh Language Act within Wales. For example, if the NIO is a body operating in Northern Ireland specifically about Northern Ireland, should it be subject to the same regulations as a body defined in the legislation? The Northern Ireland Human Rights Commission has some doubts about that, because it is not named either as a public body under the definition of “public authority” in the legislation.
This is a probing amendment, and it would be helpful to hear from the Minister what was taken into account when deciding on the definition and what has been done to take note of possible gaps in it. I note the power of the First Minister and Deputy First Minister to add or remove authorities from the list. Does the Minister believe that that power would have to be used often and, indeed, whether it should be there at all?
The other amendments in this group go into further detail on the meaning of “public authority” and the expectations and duty that such bodies will be under to engage with the framework and bodies established under the Bill. It will be interesting to hear the Minister’s reply: should other public bodies be added to the list? I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
The noble Baroness, Lady Harris of Richmond, is taking part remotely. I invite the noble Baroness to speak.
Baroness Harris of Richmond (LD) [V]
My Lords, I will speak to Amendment 39, which is also in the name of the noble Baroness, Lady Ritchie. I echo what everyone has said: we wish her well and a speedy recovery. I know that, if the Minister does not tell her what she wants to hear, she will want to come back. I give him fair warning of that.
I believe this to be a reasonable and rational amendment that simply ties the charter convention already ratified by the United Kingdom into the language Bill. This charter is designed to protect and promote regional and minority languages and to enable speakers to use them in both private and public life. Furthermore, it obliges the state parties to actively promote the use of these languages—in education, courts, administration, media, culture and economic and social life—and cross- border co-operation.
The UK Government signed the charter in 2000 and it was ratified and came into force on 1 July 2001. The Government signed it in respect of Irish up to and including Article 7 of Part II and Articles 8 to 14 of Part III. As a matter of interest, Welsh and Scottish Gaelic are also registered under Part III. Scots, particularly Ulster Scots in Northern Ireland, are registered under Part II, along with Cornish and Manx Gaelic in their respective jurisdictions.
The Good Friday agreement also included a commitment to “linguistic diversity”. COMEX—the Committee of Experts of the Council of Europe—is tasked with monitoring how state parties comply with the treaty. Over five periodical reports it has been critical of the UK Government’s lack of compliance with the measures they signed up to in the convention. In its latest report to the UK Government, in March 2021, COMEX concluded:
“Therefore the Committee of Experts reiterates that an Irish Language Act would provide the basis for comprehensive and structured policy for the promotion of Irish in Northern Ireland, which would enable resolute action on the protection and promotion of Irish, in line with the United Kingdom’s undertakings under the Charter. In this context, the Committee of Experts considers that, even once the measures contained in the January 2020 agreement are enacted, there remains a need for a comprehensive Irish Language Act.”
The new clause proposed in Amendment 39 would ensure that the charter is finally included in UK legislation. I commend it to your Lordships.
Baroness Hoey (Non-Afl)
My Lords, I very much welcome the probing amendments tabled by the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, and I look forward to the Minister’s response on some of the matters to do with public authorities. I have tabled a number of amendments, but I assure noble Lords that I am not going to say very much on any of the others, apart from Amendment 4.
Amendment 4 is important because it deals with the insertion of a new concept in legislation, through new Section 78F. It would require public authorities to have due regard to a requirement to strive for promoting parity of esteem. To most noble Lords, parity of esteem will sound wonderful and superficially attractive, but I believe that it is quite dangerous in substance. This concept of parity of esteem has long been a key part of the republican agenda, used as it is to cloak nationalist political demands in the language of individual rights.
I am going to quote from something that Gerry Adams said in 1998. I know that some Members here—probably the Minister himself—will say, “Well, for goodness’ sake, that was 1998. That was a long time ago”, but I think anyone who knows what is going on in Northern Ireland knows that what Gerry Adams said in 1998 he would still say today—and other people are saying it. He said then:
“Specifically, as part of the total restructuring of relationships one of the difficult issues to be tackled is that of cultural symbols and of flags and emblems. The institutional and official ethos of the northern state is British. This has to change. We must ensure that there is parity of esteem and a just and equal treatment for the identity, ethos and aspirations of all our people. This cannot be simply an illusion. It must be the reality. The responsibility for this change rests primarily with the British government.”
He continued:
“In practical terms where British national or cultural symbols are displayed on public buildings or in working environments equal prominence should be given to Irish national or cultural symbols as an immediate expression of parity of esteem. This includes working environments associated with the exercise of public authority – Council offices, courts, police service sites, civil service offices and QUANGOs.”
It is important that these words are looked at carefully. It is not equal treatment for all persons that is being sought. Let me be clear: everybody accepts that all citizens must be treated equally, regardless of any personal characteristics or political aspiration. However, it is the identity and ethos of all people that Sinn Féin demands must have equal prominence.
Put simply, Sinn Féin does not seek equal treatment for all individuals—that is different altogether. It seeks nationalist ideas and aspirations receiving parity. It is not about parity for the messenger; it is rather about parity for the message. The reality is that this is about diluting all sovereign expressions of British identity by developing a concept that requires that Irish national symbols must be given equal public prominence. That is entirely inconsistent with the principle of consent that mandates that Northern Ireland is part of the United Kingdom until the majority votes otherwise. The Sinn Féin version of parity of esteem would require the primacy of national identity to be diluted, turning Northern Ireland, in terms of its symbolic identity, into a hybrid British-Irish state. Yet here we have new Section 78F, which transports this Sinn Féin-contrived parity of esteem concept into Northern Ireland’s constitutional status, notwithstanding its complete inconsistency with the principle of consent enshrined in Section 1 of the 1998 Act.
What will requiring having due regard to this concept open the door to? Gerry Adams’s article says that it will mean a demand for the Irish flag to fly alongside the union flag anywhere where it is flying. It will mean that a picture of the Queen will have to be balanced with some republican figure—perhaps Michael Collins, I do not know—and this could go on and on. Of course, of all public bodies, the Northern Ireland Office should see the danger of this and the potential for constant litigation trying to push the boundaries.
Baroness Suttie (LD)
My Lords, I add my best wishes to the noble Baroness, Lady Ritchie, and wish her well. This morning, she sent me an email saying that she is feeling a little better, but we are certainly missing her contributions to this afternoon’s debate.
I have added my name to Amendments 2, 20 and 37, which, as the noble Lord, Lord Murphy, said, are probing amendments to understand a little better from the Minister why this particular definition of “public authority” was chosen in the Bill. I want to add to the questions already asked by the noble Lord, Lord Murphy. Can the Minister expand on paragraph 23 of the Explanatory Notes and say what kind of circumstances he can imagine where public authorities would be added or removed as a result of this legislation? I should note that the Northern Ireland Human Rights Commission has suggested that Section 6 of the Human Rights Act would provide a better, wider definition of “public bodies”. Does the Minister agree, and can he explain why that definition was not used in this Bill?
Lord Morrow (DUP)
My Lords, with permission, I will speak to Amendments 2, 20, 37 and 39. This set of probing amendments relates to the definition of public authorities that are subject to the Bill’s provisions. We are against it for the following reasons. We are convinced by the case for an expansionist approach to the range of public authorities captured by the Bill. Given the Minister’s insistence that the statement of funding accompanying the Bill does not give rise to any responsibility for the Government, it seems unconscionable that the Executive should have to bear the cost of UK-wide bodies adhering to requirements or requests issued by the offices created under the legislation. More than that, at a time of a crippling cost of living crisis and with mounting challenges facing our health service and criminal justice system, we believe that a precautionary approach is preferred.
Implementation should be targeted. We have consistently expressed concern about whether this legislation is proportionate or reflective of the priorities of the majority of people in Northern Ireland. There is a fear that expanding the extent even further would impact on public confidence. There is already concern about the framing of certain provisions, namely the identity and culture principles and their potential impact on competing fundamental freedoms. It may be prudent, therefore, to display caution and monitor the impact of the Bill before making further wholesale changes. There is already provision in the Bill allowing Ministers to amend the definition of “public authority” moving forward.
The proposed new clause in Amendment 39 would oblige public authorities to comply with obligations accepted by the United Kingdom under the Council of Europe’s European Charter for Regional or Minority Languages. It is worth noting that the Ulster-Scots/Ulster-British commissioner would already be under an obligation to advise on the effect and implementation of the charter under proposed new Section 78R(3)(a).
I am pleased to speak to Amendment 32 in my name and those of my noble friends Lord Dodds of Duncairn, Lord McCrea of Magherafelt and Cookstown and Lord Hay of Ballyore. As I will reflect in more detail in the debate on subsequent groupings, the integrity of the provision of the Irish language commissioner and the Ulster-Scots/Ulster-British commissioner depends not only on the commissioner having identical functions but on their being accorded equal importance, and on this equal importance being made manifest—certainly through each having a similar cost footprint, in terms of both the running of their offices and their impact on the action and spending of public authorities. In this context, it is absolutely imperative that the existing functions of the Ulster-Scots/Ulster-British commissioner are given access to as robust an enforcement mechanism as those pertaining to the Irish language commissioner.
In this context, it is really concerning to note that, as currently defined, the Irish language commissioner is favoured with powers of enforcement on two bases that are denied the Ulster-Scots/Ulster-British commissioner, one of which we will address in this grouping and another in the eighth grouping. In my Amendment 32 in this grouping, a public authority is required by proposed new Section 78N to
“have due regard to any published best practice standards”
produced by the Irish language commissioner and to
“prepare and publish a plan setting out the steps it proposes to take to comply with”
this duty. Inexplicably, while the Ulster-Scots/Ulster-British commissioner is similarly given the responsibility of issuing guidance to public authorities, the Bill before us today contains no parallel obligation on public authorities to have due regard to their guidance. Neither does it contain any parallel obligations on public authorities to prepare and publish a plan setting out the steps they propose to take to comply with this duty.
I very gently express the hope to the Minister that the Government can understand why some within the unionist community regard this extraordinary difference of treatment as discrimination. It is vulnerable to be characterised as a crude attempt to set up two commissioners with the apparent intention of generating the sense that the two communities are being treated equally, hoping that one will not have the sense to check and see that the standards of protection afforded it are dramatically weaker than those afforded the other. This discriminatory difference of treatment can be resolved by Amendment 32, which affords the Ulster-Scots/Ulster-British commissioner the same respect as the Irish language commissioner in the form of placing equal statutory obligations on public authorities to have regard for his or her advice and to publish a plan setting out how they intend to comply with his or her advice.
I am genuinely at a loss to understand how anyone sensitive to the challenges we face in Northern Ireland, let alone a body supposedly committed to the notion of equality of esteem, can have regarded the enforcement provisions afforded unionists in the Bill as anything other than discriminatory when compared with the enforcement provisions afforded nationalism. I urge the Minister to recognise that this inequality of treatment is utterly indefensible and flies in the face of the principle of equality of esteem. I plead with him to accept this modest amendment.
Lord Empey (UUP)
My Lords, I note all the probing amendments from the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie. The noble Baroness raises an interesting point. Mr Adams has not gone away. He may not be the Dáil or the Assembly and he may not be here, but he has not gone away. Her point is quite interesting because the Belfast/Good Friday agreement enshrined the constitutional position very clearly. Mr Adams’s quote effectively ignores that and pretends that Northern Ireland is a condominium—in other words, a piece of territory that is being run by two other powers. The protocol is getting us into that sort of territory where we have rules made by a foreign power over which no one in this building has any say.
Dealing specifically with the noble Baroness’s point, I am not a lawyer, but we would need to be sure that there is not a gap in what we do through which some person can prosecute lawfare against the process. I take that point very clearly and will interested to hear what the Minister has to say about it. There may be an unintended consequence, which is why I said at the outset that I fear a lot of this legislation and all these bodies have the potential to form a grievance factory. That is what I fear about this legislation.
I would have signed Amendment 32, had there been space, but my colleagues took it up. The fact is that there is an inequality. We can dress it up whatever way we like, but it is there. The perception is clearly that one section of the community with certain aspirations and cultural identities is to be treated in one way and another section is to be treated in another, subservient, way. Perhaps that is not the right word, but noble Lords know what I mean. That should be avoided at all costs, because it undermines any confidence that identity and so on has finally been addressed. We are creating a hierarchy here, and the lessons of recent history tell us that that is not a good thing to do.
With regard to the amendment tabled by the noble Baroness, Lady Hoey, I would like an assurance from the Minister that no such premises will be left for people to pursue spurious cases or seek to pretend that the settlement that was entered into in 1998 has a clear constitutional position that is not subject to being equated with a constitutional position that does not currently exist. That is a real fear that that could arise.
I would also like the Minister to take away Amendment 32 and have a look at it, because I assure him that even those of us who are very unenthusiastic about all this are even less enthusiastic about having a hierarchy.
I shall also make a point about Mr Adams and his colleagues. If we go back to 1998 and the years leading up to that negotiation, at no stage whatever in those negotiations did his party seek an Irish language Act. They never put it on the table; they never asked for it. Its first iteration in a public document was at St Andrews, and it was a commitment by the UK Government, knowing full well that the subject was going to be devolved. Sinn Féin only got on the bandwagon after an SDLP Member of the Assembly—Patsy McGlone—put forward a Private Member’s Bill in the Assembly to bring in an Irish language Act. I am sure that the former speaker well recalls that. Sinn Féin did nothing in 1998 with regard to the Irish language Act; anything that we were asked to do in 1998 during the negotiations was done and implemented in full. I just put that point on the record.
Lord Kilclooney (CB)
My Lords, very briefly, we are talking about equality and respect, but are we also talking about equality and respect for both regional and minority languages? I employ around 200 people across Northern Ireland. A few speak Lithuanian, a few speak Polish, but I am not aware of any who speak Irish. It is very important that we do not assist or encourage those who want to politicise the issue of the Irish language. I believe that there must be great respect for the Irish minority language in Northern Ireland, and I do not think that it is helped by those who try to politicise it. I therefore ask the Minister to make it clear that this legislation will not discriminate against minority languages and favour regional languages.
Lord McCrea of Magherafelt and Cookstown (DUP)
Amendment 18 in this group would amend the duty on public authorities to one of compliance with best practice Irish language standards from one of due regard. This proposal is not faithful to the drafting of NDNA, which states that one function of the Irish language commissioner is to consider
“complaints where a public authority has failed to have due regard to those standards.”
By implication, the duty on public authorities is not one of compliance but of due regard; that distinction must be respected. A duty for compliance would potentially require public authorities to adhere to specific guidance despite their being cogent reasons for not doing so. It is unclear whether this approach would lead to public authorities becoming legally liable for not acting on a consideration of competing human rights. A due regard duty is not a loose concept, as this amendment seems to imply. It means that a person under the duty is not free to disregard but must consider all relevant considerations.
Baroness Goudie (Lab)
My Lords, I raised this issue in my Second Reading speech and I am happy to speak to these amendments and others on this issue. I really feel that it is important that we should have “comply with” and not “have due regard to” in the Bill. It is really important that people understand why we are doing this; if somebody needs only to “have due regard” to something, they just have to look at it. It is important that they should have to comply with best practice, and I would like to see that left in the Bill.
Lord Caine (Con)
My Lords, I again thank noble Lords for their amendments in this group, which broadly focus on the role of public authorities within the Bill including, as the noble Lord, Lord Murphy, made clear, how we have sought to define them. The debate has once again reinforced just how much better it would be if this were being debated in the Northern Ireland Assembly rather than in the Grand Committee of your Lordships’ House.
I speak first the amendments in the name of the noble Baroness, Lady Ritchie, who cannot be here, which were spoken to by the noble Baroness, Lady Goudie. Amendment 18 seeks to amend new Section 78N, inserted by Clause 2, so that public authorities would have to comply with the best practice standard, rather than have due regard to them, as the current provisions of the Bill require. I will also address Amendment 39, which seeks to place a duty on public authorities to comply with obligations under the European Charter for Regional or Minority Languages.
Again, I point the noble Baroness to New Decade, New Approach and the draft legislation published alongside it, with which this Bill is consistent. At the risk of repeating myself—I fear that I may have to do it again during the course of this debate—the Government are as far as possible seeking to retain the position reached in New Decade, New Approach, which was not to create a wider set of legal duties than has been proposed by these amendments.
I may offer some reassurance, though. In new Clause 78N(2), to be inserted in the Northern Ireland Act 1998 by Clause 2, the Bill sets out that public authorities must “publish a plan” on how they intend to have due regard to the best practice standards; the commissioner must also be consulted on that plan. This seems to me to provide an assurance that public authorities will carry out their duties with rigour and with the support of the commissioner.
Amendment 21 seeks to widen the meaning of “public authorities” to include any UK-wide public authority that provides services to the public in Northern Ireland. New Decade, New Approach was clear that the Executive were to deliver this legislation. The UK Government have brought forward this Bill, which is based on legislation drafted for the Northern Ireland Assembly. The duties in the legislation that was published alongside New Decade, New Approach applied to the public authorities set out in Schedule 3 to the Public Services Ombudsman Act (Northern Ireland) 2016. There was no such commitment for them to apply to a different range of public authorities.
In some cases, I recognise that public services may be administered on behalf of Northern Ireland departments by the UK Government or a third party through agency or other arrangements. This can be the case for online services, for example. If a designated Northern Ireland department or public body decided to commission out the delivery of a public service, it would still need to consider its duties in so doing; the public authority concerned may decide that this requires it to ensure that the body delivering the services offers provision in the Irish language, for example. I hope that this provides some reassurance on the issue.
Amendment 39 would solely amend the provision on the designation of public authorities in respect of the Bill’s Irish language clause. It would not do the same for the provision on the national and cultural identity principles overseen by the Office of Identity and Cultural Expression, nor the measures associated with the Ulster-Scots and Ulster-British tradition. Making differential provision on the public authorities designated under various parts of this cultural framework would undermine the fact that this is a balanced package. That was the clear intention in New Decade, New Approach.
I will now speak more broadly to Amendments 2, 20 and 37, which seek to probe the definition of “public authorities” set out in the Bill. The definition used to define “public authorities” for the purposes of the Bill was taken, as with many other parts of the legislation, from the draft legislation that was published alongside New Decade, New Approach; that legislation was prepared by the Office of the Legislative Counsel at Stormont at the request of the UK Government back in January 2020. I suggest to noble Lords that the range of public authorities brought under the remit of this Bill, from district councils to universities and health trusts, is substantial. We are confident that the approach in the Bill captures the vast majority of public authorities with which the public in Northern Ireland would interact and from which they would receive services.
As noble Lords have pointed out, there is also further provision in the Bill for the First Minister and Deputy First Minister, acting jointly, to designate additional authorities or specified functions of them should that be required over time. We have ensured that the power for the First Minister and Deputy First Minister to designate public authorities are consistent with what the position would have been had the Northern Ireland Assembly, rather than this House, passed the legislation published alongside New Decade, New Approach. In response to an earlier question, the criteria really would be a matter for the First Minister and Deputy First Minister in the Executive to determine. We therefore consider that it would be inconsistent to expand the definition of “public authorities” beyond that set out in the draft legislation published alongside New Decade, New Approach.
Amendment 32 in the name of the noble Lord, Lord Morrow, and his Democratic Unionist Party colleagues seeks to create an additional legal duty on public authorities in respect of the Ulster Scots/Ulster British tradition and guidance published by the associated commissioner. I point out gently that New Decade, New Approach was very clear that the roles and functions of the two commissioners—the Irish language commissioner and the commissioner for the promotion of the Ulster Scots/Ulster British tradition—would be different. The provision for both is therefore different, including in respect of duties.
The language commissioner’s role pertains to matters of language alone. Their work focuses on best practice standards on the Irish language for public authorities to follow in providing services to the public. It is understandable that a corresponding legal duty would be needed in this case. By comparison, the commissioner associated with the Ulster Scots/Ulster British tradition will have a far more wide-ranging role than their Irish language counterpart, going beyond language, as we will probably discuss later, into arts and literature. The proposed legal duty on this wider range of activities would go far beyond the matter of services provided to the public, unlike those on the Irish language best practice standards.
The Bill does, however, provide for the commissioner to provide advice and guidance to public authorities, promote awareness of Ulster Scots services and receive complaints where a public authority has not had due regard to their guidance. There is also, as noble Lords will be aware, a specific legal duty in Clause 5 on the Northern Ireland Department of Education to
“encourage and facilitate the use and understanding of Ulster Scots in the education system”.
Again, this reflects a specific New Decade, New Approach commitment. We hope it will result in Ulster Scots rightly being reflected through the education system, going some way to address the difference in existing legislation, where similar provision has already been made for Irish-medium education. The Government believe that the existing provisions in the Bill will correctly support the development of the Ulster Scots/Ulster British tradition and the Irish language respectively, and will do so consistently with New Decade, New Approach, which was agreed by the two main parties which negotiated it between 2017 and 2020.
Finally, Amendment 4 in the name of the noble Baroness, Lady Hoey, seeks to address concerns raised in an article written over the weekend in a publication called Unionist Voice. Indeed, her speech followed the argument contained in that article very closely. For the benefit of those noble Lords who have not read it, the article suggested, as the noble Baroness made clear, that the Bill could require the Irish tricolour to be flown alongside the union flag on public buildings in Northern Ireland. This is not the case. I am grateful to the noble Baroness for raising this issue because it allows me the opportunity to state clearly before the Committee that, in the view of the Government, the article was inaccurate and fundamentally misunderstands the provisions in the Bill.
The Bill does not change the existing law on flag flying from government buildings in Northern Ireland. As I have said many times before, it faithfully delivers on the legislative commitments in New Decade, New Approach. Noble Lords will be aware that the existing flag regulations provide for the union flag, as the national flag of Northern Ireland, to be flown from Northern Ireland government buildings and courthouses on certain occasions, as well as the Royal Standard or the national flag of a visiting head of state. For police buildings, different regulations provide that the PSNI flag and, on certain occasions, the Royal Standard are the only flags that may be flown. In both cases, the law otherwise prohibits the flying of flags. That will remain the case. No provision will be made by this Bill in respect of flying another flag alongside the union flag. I should point out that a number of court judgments over the years have upheld the present law on the flying of the union flag.
The noble Baroness, Lady Hoey, referred—as did the article over the weekend—to a speech made by Mr Gerry Adams in 1998. I assure the noble Baroness that, to the best of my knowledge, Mr Adams does not direct UK government policy when it comes to the flying of flags in Northern Ireland, or any other part of the United Kingdom for that matter.
Baroness Hoey (Non-Afl)
I thank the Minister for that explanation. Can he just tell the Committee why the Northern Ireland Office paid out a substantial sum of money to an individual who was offended by there being a picture of Her Majesty the Queen in the Northern Ireland Office?
Lord Caine (Con)
I am very familiar with that case, because I was an adviser in the Northern Ireland Office at the time. It was the subject of legal proceedings and, if the noble Baroness will bear with me, I do not really want to reopen what was settled in court. The matter was subject to a court case, and she is well aware of the outcome.
My noble friend Lord Empey and the noble Baroness, Lady Hoey, talked about the status of Northern Ireland. I can give an assurance that I have given many times before: the Belfast agreement is extremely clear, in the section dealing with constitutional principles, and it does not establish Northern Ireland as a hybrid state or a condominium. It is an integral part of the United Kingdom on the basis of consent. However, the Belfast agreement does contain—as those noble Lords present who helped to negotiate it will attest—important commitments around parity of esteem, which were a central part of the agreement in 1998.
But, as has been stated many times, the regulations relating to the flying of the union flag reflect, and are consistent with, Northern Ireland’s position within the United Kingdom—a position which, I assure noble Lords present, this Conservative and Unionist Government fully support.
Lord Deben (Con)
I am old enough to have been through all the debates on the flags. There was no doubt whatever that what was being upheld was the flag of the United Kingdom, to be flown in circumstances in which it was the flag of the whole United Kingdom, and not to be used for sectarian purposes. That was what the argument was about. It has been supremely successful. It is our flag, and it is flown in the north of Ireland, which is part of the United Kingdom. It is a pity to worry people unnecessarily because of some comment made 24 years ago by somebody who would have said that anyway. No one has listened to him since on that matter.
Lord Caine (Con)
I am extremely grateful to my noble friend, who makes a very powerful point. I agree with him entirely on those matters. The national flag—the union flag—is the flag of Northern Ireland. There is absolutely nothing in this legislation that will undermine the position of the union flag or force anybody to fly an Irish tricolour—or any other flag, for that matter—alongside it.
Lord Kilclooney (CB)
I have very bad hearing, and I did not hear whether the noble Lord used the Sinn Féin term of “north of Ireland” or “Northern Ireland”. Which was it?
Lord Deben (Con)
I was talking about Northern Ireland, which is the constitutional phrase for the six counties which make up—
Lord Caine (Con)
My Lords, I think we should probably move on. In summary, the provisions of the Bill—
Lord Dodds of Duncairn (DUP)
Before we move on, because these matters are important, there is a report, I think in today’s newspapers, about the reduction in the number of days on which the union flag will be flown officially in Northern Ireland—albeit it appears to be related to a general reduction across the United Kingdom, so Northern Ireland would be in line with the rest of the UK. Can the Minister comment on whether this report is correct—that there will be a number of official days removed from the calendar for the whole of the United Kingdom?
Lord Caine (Con)
I can: there has been a review of the number of days on which the union flag is flown officially throughout Great Britain. There has been a reduction in the number of such days, and that will be reflected in Northern Ireland legislation which I will bring before your Lordships’ House fairly soon. All that is doing is ensuring that Northern Ireland is in step with the rest of the United Kingdom.
In conclusion, the provisions of the Bill do not have the effect that has been suggested in the noble Baroness’s speech, and for that reason I cannot accept the amendment.
Lord Murphy of Torfaen (Lab)
My Lords, I have just a few brief points to make. At the moment, 1998 appears to be a favourite date. I reflect on the fact that the Northern Ireland Act 1998 was the last Act that I took through Committee from the Front Bench, 25 years ago—it did reflect the agreement, of course.
I was interested in the point made by the noble Lord, Lord Empey, on how much about the Irish language was mentioned in the Good Friday agreement; it was not reflected in the 1998 Act, of course. What we did say—I was responsible for these issues 25 years ago—was that the British Government would take “resolute action” to promote the Irish language; they had in a previous paragraph referred to Ulster Scots but also, interestingly, to the languages of other ethnic minorities, by which I suppose they mean the languages of Chinese minorities, for example. The only statutory duty was placed
“on the Department of Education to encourage and facilitate Irish medium education in line with current provision for integrated education”.
The noble Lord, Lord Empey, is therefore right that this was not legislated for by way of an Irish language Act but, of course, things changed later with the St Andrews agreement, where further details emerged about what should or should not happen to the Irish language Act. The difference between that agreement and this agreement is what we are dealing with today, I suppose. I absolutely agree with the noble Lord about the need for equality of treatment for both traditions and languages. We should not deviate from that principle at all.
I am still a bit puzzled about why the Northern Ireland Human Rights Commission is not covered by this legislation—or, for that matter, the Northern Ireland Office. The Minister will of course know that the Welsh Language Act 1993 is applicable to the Wales Office, the equivalent territorial department, even though the Wales Office is a United Kingdom Government department with a small office in Wales and an office in Whitehall.
We have had some interesting debate on this issue. Nevertheless, I beg leave to withdraw the amendment in my name.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
Before we come on to Amendment 7, I should announce that Amendment 43A, to be debated with this group, has been corrected and is now printed on a separate supplementary sheet.
Amendment 7
Lord Morrow
Member's explanatory statement
This amendment would revise the title of the Commissioner for the Ulster Scots and Ulster British traditions within the Bill. It would remove references to the purpose of the Ulster Scots and Ulster British Commissioner from its title in parity with the position adopted toward the Irish Language Commissioner.
Lord Morrow (DUP)
Not moved. Oh, sorry—I was not listening intently. I beg your pardon. I will move my amendment; noble Lords might regret this.
In moving Amendment 7, I will also speak to Amendment 22 in my name and that of my colleagues. One of the most egregious manifestations of careless discrimination in this Bill finds expression in the proposal to afford the Irish language commissioner a sensible title while affording the Ulster Scots/Ulster British traditions commissioner an absurdly wordy title that invites mockery rather than respect—
“the Commissioner for the enhancement and development of the language, arts and literature associated with the Ulster Scots and Ulster British tradition”—
compared with “the Irish Language Commissioner”.
In the first instance, it is unwieldy. Rather than using it, people will call the commissioner something else. In the second instance, when set against the crisp title of “Irish Language Commissioner”, it will become just a joke. In the third instance, the length has the effect of narrowing and truncating the function of the commissioner in a way that makes no sense. The Government have recognised that Ulster Scots is a national minority in the framework convention for national minorities and is subject to its obligations and those associated with the European Charter for Regional or Minority Languages. In a context where we are supposed to be concerned about upholding parity of esteem, affording one community a commissioner with a serious, credible title and the other community one with a ridiculous, truncated title is as transparently discriminatory as it is absurd.
Unionists will not be disrespected in this way and will settle for nothing less than an equally credible title to that afforded the Irish language commissioner. We suggest the “Ulster Scots and Ulster British traditions commissioner”. Of course, the term “Ulster Scots and Ulster British tradition” is already used in the Bill so linking it to the commissioner makes sense. There is, however, the need for a further, very modest amendment, which amounts simply to the adding of an S. The phrase “Ulster Scots and Ulster British tradition” is problematic because it suggests that Ulster Scots and Ulster British are a single tradition. That is erroneous and needs to be changed.
Ulster Scots is one of the three traditional strands of cultural identity present in Ulster and, in turn, Northern Ireland since the early 1600s. The earliest written use of the term “Ulster Scot” in relation to the community dates to 1640. The historically minded will immediately notice that the Ulster Scots community as a distinct group actually pre-dates the United Kingdom, which did not come into existence until 1707. The Ulster Scots community has a rich heritage and culture and its own language, a local variant of the Scots language.
The two historic minority cultures in Northern Ireland are Irish and Ulster Scots. There are, however, people from the indigenous community in Northern Ireland who do not identify as either Irish or Ulster Scots. They are from the broad unionist community and refer to themselves as “Ulster British”. This terminology is much more recent but it is nevertheless strongly held by those who identify with it, including the Orange Order, which is one of Northern Ireland’s largest community organisations. It is worth noting that there is no animosity between those who identify as Ulster British and those who identify as Ulster Scots. Much Ulster Scots cultural activity happens in Orange halls and many individual Orange Order members are Ulster Scots. It is simply that not everyone in the community has Scottish roots or identifies as an Ulster Scot.
It is important to ensure that there is a cultural space for those who identify as Ulster British and that they are not excluded from protection or support simply because they do not identify as Ulster Scots. In seeking to curate this space, however, we must not inadvertently muddy the waters in relation to Ulster Scots, and that is what the Bill is in danger of doing, in suggesting that it can be collapsed into Ulster British and vice versa.
Ulster Scots was well known in Northern Ireland up until the 1960s. But during the Troubles all the cultural emphasis moved to ideas of national identity—Irish and British—and Ulster Scots was squeezed into the background. Generations of Ulster Scots grew up without the opportunity to learn about their cultural identity. In 1998, Ulster Scots re-emerged, with the Belfast agreement, but has been under regular assault from politically motivated individuals, who have sought to deny its very existence, even though they are contradicted by a mountain of evidence. They have regularly attacked and ridiculed the community, its culture and its language. The very name of the Ulster Scots community cannot be found in Northern Ireland’s museums—even museums that were set up specifically to tell its story.
Given this backdrop, it is essential that nothing is done here which tends to detract from the status of Ulster Scots as a strong and distinct cultural identity. Ensuring that the name of the commissioner refers to the Ulster Scots and Ulster British traditions—plural—is a small change but would be significant in ensuring proper recognition and respect for diverse groups within our society.
Lord Empey (UUP)
My Lords, I support the four amendments that have just been spoken to. However, my worry about all of this is that people cannot be corralled into particular identities. Among those who do not identify with, say, an Irish or a Scottish background, there are lots of people whose identity is much more fluid and relaxed. People see themselves as Irish and British; some people see themselves as Irish and Irish. We are in a quagmire. We could have 50 commissioners with no difficulty if we really drilled down to it, and that is the risk with all this.
Sinn Féin has religiously pursued the whole question of the Irish language, not for the love of language—the vast majority of them could not speak a word of it—but because it provides a difference. The quotation given by the noble Baroness, Lady Hoey, from Gerry Adams’ speech, or comments, in 1998 illustrates that and what the name of the game is: it has to be different. Indeed, I came across the minutes of a Sinn Féin meeting not long ago, I think it was last year, which had an agenda about the greening of Northern Ireland—the street names and so on. It was not to give respect to the Irish language; it was to show difference and prevent the community coming together and being cohesive. That is the one thing that it cannot cope with, because it implies the status quo.
I remind the Committee that things were divided during the strand 1 negotiations; my friend, the noble Lord, Lord Kilclooney, keeps referring to this, and he is right. As the noble Lord, Lord Murphy, will know, strand 1 was Northern Ireland only, but that seems to have moved along since the NDNA. It was announced jointly by the UK Secretary of State and the Irish Foreign Minister and, while some of the rest of the parties were still reading the draft in the building, they were down at Carson’s statue releasing it to the press. That was how seriously they took it. But that is another matter.
The fundamental point is that the reason Sinn Féin did not propose an Irish language Act and did not deal with this in the talks was that it did not want to have what it called an internal settlement, because that is anathema to its whole rationale. I fear that the danger with all this is that it goes along with its divisive approach that everybody has to be in a particular box to be recognised. That is not where most people are today, particularly our younger generation, who do not see themselves in these boxes.
Nevertheless, we are where we are, as they say. These amendments cover some of the inevitable consequences, and I support them. I hope that the Minister will take them away with him and reflect on them before Report, because I suspect that if we come to Report and things remain as they are, some of us may have to test the opinion of the House on these matters. This is a relatively modest set of amendments that will at least make people feel that, as far as this particular identity is concerned, it is respected and treated equally.
Lord Dodds of Duncairn (DUP)
My Lords, I will speak to Amendment 43A in the name of my noble friend Lord Morrow, but, before I do, I too send my best wishes to the noble Baroness, Lady Ritchie, since she cannot be here. I hope that she is enjoying the proceedings by video; I am sure she is. We hope to see her back in her rightful place very soon.
I also agree with noble Lords who have mentioned that it is a matter of regret that we are debating this matter at all here in this place and that it should be a matter for the Assembly. Of course, it is not by accident or some kind of inevitability that it is being debated here; it is a deliberate decision of the Government to bring it here. That is something that we debated yesterday on another matter to do with abortion regulations. These are devolved matters, and the devolution settlement should be respected, whatever the issue and whatever our view of that issue may be. If it is a matter that is devolved to the Northern Ireland Assembly and Executive, it should remain there. That is the clear position as far as I am concerned; otherwise, we pick and choose the issues that we decide to legislate on in this place, which cannot be right.
On the NDNA agreement, I just say to the Government that we look forward to all aspects of it being delivered. There is an outstanding matter in relation to the restoration of the internal market of the United Kingdom, and I look forward to rapid progress on that, in line with taking forward these other matters under NDNA—there are others matters under that agreement that are outstanding.
Talking of agreements, there has been reference to 1998, going back to the Belfast agreement and the subsequent agreement at St Andrews that amended it. It is true that none of this demand by Sinn Féin for Irish language provision was a part of the main negotiation on the Belfast agreement. Of course, much more recently we had the Assembly elections in 2016 and then the unfortunate collapse of the Northern Ireland Assembly in 2017, when Sinn Féin walked out of the Executive and Martin McGuinness resigned as Deputy First Minister. We then had three years in which the Assembly did not operate. We need to remember that, just prior to that, Sinn Féin has agreed a draft programme for government with the DUP—those two parties were in government together. Sinn Féin did not put forward Irish language provision in that, yet it became Sinn Féin’s cause célèbre in the subsequent years.
There is a lot of revisionism in terms of the importance of all this and the priorities, but when you work through the timelines and so on, a lot of this is not borne out by the actuality and reality of the situation. This was not a matter that Sinn Féin made a priority at the time, but it subsequently made it a priority in order to keep the institutions down for three years. That is worth bearing in mind in the context of where we are at the moment with the institutions and the need to implement the whole NDNA agreement.
I turn to Amendment 43A in the name of the noble Lord, Lord Morrow. When the Minister made the case for the Bill at Second Reading, he referred to the fact that the Government had made available some funds—I think it was in the region of £4 million—to the Irish Language Investment Fund
“to support capital projects associated with the Irish language.”—[Official Report, 7/6/22; col. 1097.]
This commitment, it was said, was based in the section of the NDNA agreement that dealt with Northern Ireland’s “unique circumstances”.
However, when you read that section of the document, it contains merely a passing reference:
“This could include areas such as … Support for languages and broadcasting”.
There was no explicit commitment to £4 million or any other sum for capital projects, yet this passing reference has crystallised into a hard figure for investment. This £4 million of investment follows £8 million that has already been spent by the UK Government on building Irish language centres in Northern Ireland. My understanding is that this £4 million is likely to be matched by the Irish Government, so the total for building Irish language centres is likely to be nearer £16 million. I would be grateful if the Minister could confirm whether he has had any discussions with or heard from the Irish Government on that point. Has there been any similar investment for the Ulster Scots community? I am sad to say that the answer is, no, there has not been—not a single penny.
Lord Empey (UUP)
Does the noble Lord agree that the expenditure undertaken in these areas by local authorities also needs to be taken into account, as they have roads? The behaviour of some local authorities appears to me very partial and one-sided.
Lord Dodds of Duncairn (DUP)
The noble Lord makes a very good point, which is often overlooked when we talk about these issues—certainly, in this place because there is a lot of concentration, necessarily and inevitably, on the functions of Northern Ireland departments, the Assembly and the Executive. There has undoubtedly been a very aggressive campaign on this, lavishly funded by certain councils, particularly those west of the Bann. Taking that into account, as the noble Lord has pointed out, makes my point about the necessity of catching up all the more relevant, pertinent and urgent.
The Ulster Scots community is representative of the lion’s share of the unionist community in Northern Ireland, disadvantaged by years of underinvestment in its identity. We must ensure that it is not short-changed. Broadcasting is one example where we could see a very immediate change, I hope, if funding is made available. We need to see financial equality between the two broadcast funds and the footprint of the Ulster-Scots Broadcast Fund extended to include greater coproduction with Scotland and a presence on the UK-wide network in recognition of Ulster Scots as a national minority of the United Kingdom.
We also need to see dedicated and sustained resources to support Ulster-Scots projects on the east-west axis, in line with Amendment 30 in this group, between communities and schools—cultural and educational institutions—to engage the Ulster Scots community and diaspora throughout the United Kingdom. Recognition of the Ulster Scots nature of the commissioner’s brief, in line with Amendment 30 and more specifically through Amendment 43A, will facilitate this. I look forward to hearing what the Minister will say. I hope he will take these amendments on board, take them away and reflect on how, if implemented, they would go some way to restoring equality and parity of esteem in this area.
Lord Caine (Con)
My Lords, again, I am very grateful to all noble Lords who spoke to this group of amendments. I start by saying that the Government are committed to supporting the culture and heritage of the Ulster Scots and the Ulster British tradition in Northern Ireland. This includes £1 million in funding for Northern Ireland Screen’s Ulster-Scots Broadcast Fund, which was delivered last year, and the formal recognition this year of Ulster Scots as a national minority under the Council of Europe’s Framework Convention for the Protection of National Minorities. The Bill does not in any way take away from the recognised status of Ulster Scots in a number of international instruments. Indeed, its provisions protect that status and actually broaden it.
As I have said on a number of occasions, the Bill seeks faithfully to deliver on the legislative commitments in what the then leader of the Democratic Unionist Party, Dame Arlene Foster, described in January 2020 as a “fair and balanced” package. It was very clear in that package that the remit of the commissioner in respect of the Ulster Scots and Ulster British tradition would be matters of “language, arts and literature” and not culture and heritage. In the Bill we are sticking faithfully to what was in New Decade, New Approach.
Perhaps I might give some reassurance. In the new cultural framework provided for by the Bill, the office of identity and cultural expression will have an important grant-making power and will be able to commission research, support educational programmes and provide guidance reflecting Northern Ireland’s diversity of national and cultural identities. That would seem naturally to include the Ulster Scots/Ulster British tradition, given its prominence, and I hope that provides some small degree of reassurance on that point.
I also highlight that the Irish language commissioner’s role is limited to language, reflecting the particular needs of Irish speakers. If we were to widen the provision for one commissioner to include cultural matters, it is perfectly possible, given the nature of Northern Ireland, that demands could then follow from those expecting the same of both. So we need to be slightly careful on these matters.
Lord Empey (UUP)
I am most grateful to the Minister. I am not constrained by anything Dame Arlene might have said at the time about “fair and balanced”. The Minister knows my views on this. We have to be careful. I am attracted to the use of the word “heritage”. That is because the—let us say—profile of the respective identities is different. The Irish have coalesced around language to an extent to which the Ulster Scots and Ulster British have not. When you are looking at equality of treatment—I see the point the Minister is making; and I said earlier that we should not be constrained in our deliberations because this is being debated here and not at Stormont, as we would all prefer—there is a difference between the profiles. Heritage matters greatly and is expressed in different ways. I fear that we are boxing people in with the definitions in the legislation.
Lord Caine (Con)
I am grateful to my noble friend. On this, as on many issues, I have a huge amount of respect for what he says. But in this particular area, and on the point he makes, all we are doing in this legislation is reflecting the language and the remit set out in New Decade, New Approach. I completely appreciate that my noble friend and his party were not signatories to or supporters of that agreement. Nevertheless, there was an agreement in January 2020 which formed the basis of the restoration of devolved government and that is what we are seeking faithfully to implement here.
Amendments 7 and 22 are important. Taken together, they seek to differentiate between the Ulster Scots and the Ulster British tradition by pluralising them and making them “traditions”. I note the sensitivity of this matter and, indeed, of the title of the associated commissioner in this context, and I am grateful to the noble Lord, Lord Morrow, for the way in which he spoke about these matters.
Let me say this: although I am not in a position to commit fully to anything today, I genuinely have a great deal of sympathy with the noble Lord’s amendments and the intention behind them. If he will allow it, I will therefore endeavour to explore them further ahead of Report.
Amendment 43A—a late addition to the Marshalled List on which the noble Lord, Lord Dodds, spoke—seeks to place the Secretary of State under a duty to
“establish and maintain a fund to … connect Ulster Scots in Northern Ireland with Ulster Scots in the rest of the United Kingdom.”
On this, again, I say that the Government are committed to supporting the Ulster Scots and Ulster British tradition —or traditions, if you like—which forms an integral part of Northern Ireland’s rich tapestry. However, the creation of such a fund as provided for by this amendment would go way beyond what was set out in New Decade, New Approach. We therefore cannot accept this amendment.
The noble Lord, Lord Dodds, asked me a number of detailed questions regarding funding, the answers to which I do not have readily to hand. However, I think he referred to Irish language centres; from memory, that was a commitment under the Hillsborough Castle agreement back in 2010, although I would have to double-check that. Anyhow, if the noble Lord will allow me, I will write to him in detail well in advance of Report so that, if he wishes to explore these matters further, he will be able to do so.
Lord Morrow (DUP)
My Lords, I listened carefully to what the Minister said. Perhaps I am overconfident but I detect a glimmer of hope here. Keeping that in mind, I beg leave to withdraw my amendment.
Lord Dodds of Duncairn
“(5) The Secretary of State must annually assess and report on the costs arising from the operation of the Office in line with the duties prescribed in section 9(2A) and 9(2B) of the Identity and Language (Northern Ireland) Act 2022.”
Lord Dodds of Duncairn (DUP)
My Lords, I will talk to Amendments 8, 12, 31 and 45 in my name and that of the noble Lords, Lord Morrow, Lord Hay and Lord McCrea.
These amendments go to the issue of good housekeeping, as it were, in terms of Parliament having access to a report in relation to the office of identity and cultural expression and, in Amendment 12, to an annual assessment and report on the costs arising from the Irish language commissioner. By virtue of Amendment 31, the same provision would also apply in relation to the Ulster Scots commissioner—if I may use that shorthand. Amendment 45 would put an obligation on the Secretary of State to
“lay before Parliament a report assessing the costs to the public purse of the establishment and operation of each of the three bodies”.
These are sensible and not particularly controversial provisions. I do not think that they should evoke alarm anywhere. Obviously, each body will publish its own financial reports and details in its own right, but it is right that these requirements are placed on the Secretary of State so that parliamentarians have a full, open and transparent picture of what is being expended and how it is being expended in terms of each of these novel, new bodies.
As has come up today and was discussed at Second Reading, the costs of all these new arrangements in NDNA, as reflected in this legislation, are somewhat subject to guesstimates. So far, nobody has been able to put a figure on what all this will actually cost. As has been raised by many people, there is a genuine concern that, when we come to prioritising expenditure in Northern Ireland—opinion polls have reflected this concern time and again—the issue at the heart of this legislation is not a high priority for people in either community, or of no community, in Northern Ireland. The health service, education, public services generally, the police service, the operation of the courts, the environment—as we know, all these issues are seen as extremely more deserving of high prioritisation when it comes to public expenditure in Northern Ireland, as you would expect.
Lord Deben (Con)
My Lords, I oppose this proposal simply because it is not something for this Parliament. We are here only because there is no Northern Ireland Assembly.
I have to say to my DUP colleagues that it is a much more serious thing when those who are in favour of unionism and of the north of Ireland and Northern Ireland being part of the United Kingdom, as I am, decide not to make the system work because the system is there to be the means whereby the union works. It is no good saying, “Well, the Sinn Féiners did this, that and the other”. They do not believe in the system; that is why we do not agree with them. It is a much more serious question when the people who do believe in the system make it impossible to do these things in Northern Ireland. Those of us who are unionists need to say to them that it is no longer sensible or acceptable to tell the British Government that they cannot have what is sensible devolution. The idea that this has to come back here because we cannot debate it in the Northern Ireland Assembly seems to me unacceptable and unreasonable. I therefore hope, of course, that the Government will make sure that there is a proper report to the Assembly. The Assembly will no doubt be careful about the spending of its money. We are already spending per head of population a great deal more money in Northern Ireland than we are, for example, in my own area of Wales, where we manage the language issue much more effectively.
The last thing I want to say to the DUP, very simply, is this: having a sense of generosity would be so attractive—just a sense of recognising that other people have a different way of looking at things. I am perfectly able to say “the north of Ireland” because quite a lot of people in Northern Ireland think that. It does not mean to say that I am not entirely in favour of the union, as long as there is a majority for it.
We really do have to get out of this lack of generosity. I want to hear people reaching out across the divide instead of constantly looking at the papers and saying, “This is not quite right for me and, my goodness me, we have not quite got that”. It is time to have a different way. I would remember that “new decade, new start” is rather a good phrase. I would like to have a new start with a bit of generosity from those who have been in power and have had control for a very long time.
Lord McCrea of Magherafelt and Cookstown (DUP)
I listened very carefully to what the noble Lord had to say. When it comes to a spirit of generosity, it is with a spirit of generosity that the party I represent has been willing to go into and be part of an Executive in Northern Ireland with those who for years sought to murder us. I take no lectures bearing in mind that some of us who are gathered here are not supposed to be here as far as Sinn Féin/IRA is concerned because our family was to be wiped out completely in one last action of the IRA. Therefore, when it comes to generosity, it is very difficult to accept those in government. I am speaking personally on this. I found it very difficult to watch those who paraded on the roads of Ulster with terrorist weapons in their hands to destroy us every night. For 25 years, I sat in the back of an armoured police car, having to be guarded; my family were not allowed to travel with me. So when it comes to generosity, I suggest that the people I represent have been very generous.
Lord Caine (Con)
My Lords, I thank my noble friend Lord Dodds of Duncairn for the way in which moved his amendment. The effect of this group of amendments would be to place the Secretary of State under a duty to assess ahead of commencement, and annually thereafter, the costs arising from the three bodies.
I genuinely appreciate the intent behind these amendments but it is, as my noble friend Lord Deben made clear in his comments, not a matter for UK Government Ministers to conduct annual assessments for public bodies for which they are not directly responsible. The three public authorities established by this Bill will be administered, supported and funded by the Executive Office and fall squarely under the devolved competence of the Northern Ireland Assembly.
My noble friend referred to the estimated costs of the bodies. That will be a matter for the Northern Ireland Executive and the Assembly, although my officials—I think this is in the Explanatory Notes—have estimated through comparison with similar bodies a figure in the range of around £9 million per annum for all three bodies to run. As my noble friend Lord Deben highlighted, expenditure from the Northern Ireland Consolidated Fund is for the Northern Ireland Assembly to scrutinise. That is why, in the case of all three authorities, specific provision is made for the Executive Office to lay a copy of the statement of accounts and the statement of the Comptroller and Auditor-General for Northern Ireland before the Assembly.
Although Parts 6 and 7, which we will come on to later, make provision for the Secretary of State to ensure the implementation of the provisions in this Bill if that is absolutely necessary, I again highlight that it is not the intention of either the Government or that part of the Bill to result in a situation in which the Secretary of State routinely involves himself in transferred matters.
These amendments would make the Secretary of State’s involvement in transferred matters of identity, language and culture a permanent feature. We would prefer those to remain considerations for Northern Ireland’s devolved institutions. For that reason, I urge my noble friend to withdraw his amendment.
Lord Dodds of Duncairn (DUP)
My Lords, I am grateful to the Minister for his response and for the manner in which he has dealt with the issue. I understand where he is coming from. The tone and tenor in all these debates relating to Northern Ireland are important. Seeking to raise a matter to do with financial accountability does not, and should not, evoke the level of vitriol that we heard from the noble Lord behind me in relation to these matters. Whatever his underlying attitude to a particular party or to the unionist community in Northern Ireland, these are important matters, which have been the subject of detailed scrutiny, not just by the DUP but, being subject to three years’ negotiation, by all the other parties as well: the Alliance Party; the Ulster Unionists, who were involved in the negotiation, so I totally respect what the noble Lord, Lord Empey, said about the final bit of it; the SDLP; and Sinn Féin.
It is not in any spirit of a lack of generosity that we want proper, detailed scrutiny in Committee of aspects of legislation. After all, we would not have an NDNA agreement if it was not for the fact that the DUP, along with Sinn Féin and other parties, subscribed to it. We would not have had the restoration of the Assembly had it not been for the fact that Arlene Foster, Sinn Féin and other parties said, “On this basis, we can move forward.” It was not everything that we wanted—far from it. I am sure that it was not everything that other parties wanted—far from it. But, as I am sure the noble Lord, Lord Murphy, can testify, neither were the Belfast agreement, the St Andrews agreement or anything else.
My noble friend Lord McCrea makes a very fair point. Those of us who have been subject to murder attacks by Sinn Féin have been prepared to sit alongside Sinn Féin Ministers—I have been an Executive Minister, sitting and working alongside them—who have never apologised or expressed an ounce of regret for any of the actions that they carried out. Indeed, they still eulogise those murderers today, which is a source of great contention and problems in Northern Ireland. If we are talking about generosity, let us remember that. The explosion in this debate is perhaps illustrative of a wider problem which exists with some people who perhaps do not have the degree of understanding that their long experience should give them, nor, certainly, a respect for the way in which Northern Ireland matters should be properly debated and discussed. I beg leave to withdraw the amendment.
Lord Lexden
“Castlereagh FoundationThe Secretary of State must establish and provide funding for the Castlereagh Foundation, as contained in the New Decade, New Approach Deal.”
Lord Lexden (Con)
My Lords, I am glad to find myself in the company of unionist noble friends in this group of two amendments. Mine is a probing amendment.
Reading the New Decade, New Approach document, to which the Bill owes so much, my ageing unionist and historian’s eyes alighted on a reference in paragraph 25, on page 49, to the establishment of a Castlereagh foundation. “How very satisfactory,” I thought, “that an institution is to be set up bearing this famous name.” Viscount Castlereagh, later the second Marquess of Londonderry, was the younger Pitt’s right-hand man in bringing about the Act of Union 1801. After his death in distressing circumstances exactly 200 years ago, his coffin was placed next to Pitt’s in Westminster Abbey. He is the subject of a brilliant biography by Professor John Bew, a man not unconnected with our own dear noble Lord, Lord Bew.
Pitt and Castlereagh united Great Britain and Ireland under the Westminster Parliament, but they were prevented from accomplishing their full ambitions. Alongside the Act of Union, they wanted to establish equality of citizenship between Catholics and Protestants throughout the newly created United Kingdom, through what is known in the history books as Catholic emancipation. King George III stopped them. The course of subsequent history might have been different if Catholics had had their sense of injustice addressed in 1801, as the two great architects of the Act of Union had intended.
I am, for these reasons, naturally keen to know more about the proposed Castlereagh foundation. New Decade, New Approach is not very forthcoming; it states only that the Government will provide the necessary funding to establish the foundation, which will
“support academic research through Universities and other partners to explore identity and the shifting patterns of social identity in Northern Ireland.”
Lord Empey (UUP)
My Lords, I added my name to this amendment. It reminds me of an issue in a negotiation that has been brought in at the last minute as a kind of balancing act. It has all the hallmarks that it is not thought-through, but looks good and allows people to point to it as a great opportunity and success. However, there is a very serious point here and my noble friend paints it, as usual, in a very significant historical context.
Has the Minister had the opportunity to look in some detail at this? Obviously, with the terms of reference, there is a cost involved and all sorts of things that will need to be established—are we going to seek funding from third-party sources, whether it be academia, business or various trusts or foundations? Nevertheless, I do not think that this should be treated as a throw-away; there is a very serious purpose here. If we understand the background and history that we have come from, perhaps it is not too much to hope that we can avoid some of the mistakes that we might otherwise make in the future. Our history can teach us a lot. Some objective academic work would be warmly welcomed and would contribute to progress in Northern Ireland.
Lord Murphy of Torfaen (Lab)
My Lords, briefly, I support the noble Lord, Lord Lexden, in his amendment. I am currently reading the biography of Castlereagh by Professor Bew—I also commend his biography of Clement Attlee, which is very good. I am not quite sure that there is a connection between the two, other than the author.
It is a very good idea to establish an organisation such as this. Anything that promotes reconciliation is bound to do good. I merely reflect, on the previous—rather heated—group of amendments on costs, that, of course, the issue of cost is important, particularly at the current time with all the pressures on the health service and everything else; however, if the costs of these things mean that you can establish the Assembly and Executive, then it will be worth it.
Lord Morrow (DUP)
My Lords, Amendment 10 is in my name. I have good news for noble Lords: this will be my briefest contribution because there is no way that I can gainsay anything that has already been said. I will not move my amendment because I give way to the learned, able, capable noble Lord, Lord Lexden, and all those who have spoken on this issue. That is all I have to contribute on that issue.
Lord Caine (Con)
My Lords, it is a great pleasure to respond to the speeches that have been made on this group of amendments. I thank, in particular, my noble friend, Lord Lexden and the noble Lords for the DUP for tabling the amendment. It is hard for me to add a great deal to what my noble friend Lord Lexden said about Castlereagh. A few weeks ago I had the great privilege of spending two or three hours at Castlereagh’s childhood and family home, Mount Stewart in County Down. For noble Lords who have not been, the restoration carried a few years ago by the National Trust is outstanding. It is impossible to leave Mount Stewart without being very conscious of the towering contribution that Castlereagh made to Irish, British and European history and politics. I concur with everything that my noble friend Lord Lexden said about Castlereagh, Pitt and the union. I think I am right in saying—he will correct me if I am wrong—that the Catholic hierarchy at the time welcomed the Act of Union on the understanding that Catholic emancipation would be delivered, and I agree that it is one of the great tragedies of history that what was the right measure in 1800 was not accompanied by those measures which were blocked by King George III. I also concur with every word that has been said about Professor John Bew’s outstanding biography of Castlereagh, which I read a number of years ago. It managed to fill quite lot of time on flights between London and Belfast at the time of the Stormont House agreement.
My noble friend also referred to Field Marshal Sir Henry Wilson, who was murdered by republicans on this day 100 years ago. I had the great privilege this morning of attending a ceremony in the Chamber of the House of Commons where the Speaker, Sir Lindsay Hoyle, unveiled a plaque to the former Member of Parliament for North Down.
On the amendment, I can assure noble Lords that the Government are committed through New Decade, New Approach to fund the establishment of the Castlereagh foundation. It is envisaged that the foundation will explore matters of identity, which my noble friend Lord Empey raised, and the shifting patterns of social identity in Northern Ireland. It appears to me that the amendments that have been tabled are important and can assist the Government in meeting the commitments in New Decade, New Approach. If noble Lords will allow, I would like to take away the amendments, look at them more closely, discuss their contents with noble Lords and return to this subject on Report.
Lord Lexden (Con)
My Lords, that seems a very satisfactory basis on which to leave the matter. I hope unionist friends concur. We look forward to further progress and, all being well, a government amendment on Report following discussion. On that basis, I beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Fookes) (Con)
My Lords, the noble Baroness, Lady Hoey, sent a nice note to me in the chair to explain why she had to leave, so she will not be moving any of her amendments.
Baroness Goudie
Member's explanatory statement
This amendment would remove the requirement that Best Practice Irish Language Standards produced by the Irish Language Commissioner be subject to the approval of the First and deputy First Ministers.
Baroness Goudie (Lab)
My Lords, I am moving this amendment on behalf of my noble friend Lady Ritchie. Briefly, we put these amendments down to ensure that, if the Assembly is not sitting or if there is a problem, the Secretary of State can continue what needs to be done both at the time and in the long term into the future.
Lord Caine (Con)
I am very grateful to the noble Baroness, Lady Goudie, for speaking to these amendments on behalf of the noble Baroness, Lady Ritchie of Downpatrick, which I will address with Amendment 15 in the names of the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie.
Amendments 13 and 16 would remove the obligation on the First Minister and Deputy First Minister to approve best practice Irish language standards produced by the Irish language commissioner. New Decade, New Approach—I must keep referring back to this document, I am afraid—sets out a series of clear safeguards for the First Minister and Deputy First Minister on the bodies established by the Bill, including for the approval of best practice standards. I assure the noble Baroness that these safeguards were a critical part of securing what I referred to earlier as the balanced package of measures in New Decade, New Approach. Without them, we would probably not have reached an agreement. The Government are faithfully putting these safeguards into effect in the legislation, including through the provision on the approval of the Irish language best practice standards. To remove those safeguards would undermine the balanced nature of the measures. I therefore cannot accept the amendments.
Amendment 15 in the names of the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, also seeks to amend Clause 2 so that the First Minister and Deputy First Minister would be obligated to take regard of advice provided by the Irish language commissioner in relation to best practice standards. I am somewhat inferring that this is to introduce a safeguard whereby the First Minister or Deputy First Minister could not simply ignore the advice of the Irish language commissioner if they were to disagree with it. We very much hope that future First and Deputy First Ministers would take a pragmatic approach to approving best practice standards. This would logically include taking the views of the commissioner into account, and in all honesty I struggle to see a situation in which that would not be the case. I therefore urge the noble Baroness not to press her amendment.
I am conscious that there were amendments in this group in the name of the noble Baroness, Lady Hoey. As the Chair has indicated, she is not in a position to speak to them.
Baroness Goudie (Lab)
I thank the Minister and beg leave to withdraw my amendment.
Lord Morrow
Lord Morrow (DUP)
My Lords, I will seek to be brief but I will not be as brief as the last time I spoke. I know that will please noble Lords. I will speak to Amendments 33, 34, 35 and 36 in which are tabled in my name and those of my noble friends Lord Dodds, Lord McCrea and Lord Hay.
As I have expressed previously, the integrity of the provision of the Irish language commissioner and Ulster Scots/Ulster British tradition commissioner depends not on each commissioner having identical functions but on them being accorded equal importance and on this equal importance being made manifest, certainly through each having a similar cost footprint in terms of both the running of their offices and their impact on the action and spending of public authorities.
As I noted in earlier debates, I have real concern that the functions of the two commissioners as currently defined are such that the Irish language commissioner is likely to have a bigger impact, absorbing more taxpayers’ money and engaging extensively with more than 70 public authorities, while the impact of the Ulster Scots/Ulster British commissioner is likely to be much narrower.
In this context, two things follow. First, it is absolutely imperative that the existing functions of the Ulster Scots/Ulster British commissioner are given access to as robust enforcement mechanisms as those pertaining to the Irish language commissioner. Secondly, it is absolutely imperative that while the functions of the Ulster Scots/Ulster British commissioners are not made identical, they are made similarly extensive, affording both the nationalist and unionist communities commissioners who will have an equally extensive impact on the governance of the nation and the allocation of public spending.
In this context, where there are already grounds for thinking that the current definition of the two commissioners is such that one is likely to have a significantly bigger impact on public spending than the other, it is really concerning to note that, as currently defined, the Irish language commissioner is favoured with powers of enforcement on two bases that are denied the Ulster Scots/Ulster British commissioner.
In the first instance, all public authorities are required by new Section 78N to have
“due regard to any published best practice standards”
produced by the Irish language commissioner and to
“prepare and publish a plan setting out the steps it proposes to take to comply with”
this duty. Inexplicably, while the Ulster Scots/Ulster British commissioner is similarly given the power to provide guidance to public authorities, the Bill before us today contains no parallel obligation on public authorities to have due regard to this guidance. Neither does it contain any parallel obligations on public authorities to
“prepare and publish a plan setting out the steps it proposes to take to comply with”
this duty.
I gently express the hope to the Minister that the Government can understand why some within the unionist community regard this extraordinary difference of treatment as discrimination. It is vulnerable to be characterised as a crude attempt to set up two commissioners with the apparent intention of generating the sense that the two communities are being treated equally, hoping that one will not have the sense to check and see that the standards of protection afforded it are dramatically weaker than those afforded to the other.
This particular discriminatory difference of treatment can be resolved by my Amendment 32, which affords the Ulster Scots/Ulster British tradition commissioner the same respect as the Irish language commissioner in the form of placing equal statutory obligations on public authorities to have regard for the commissioner’s advice and to publish a plan setting out how they intend to comply with the commissioner’s advice.
Unbelievably, however, the inexplicable, discriminatory difference of treatment afforded the Ulster Scots/Ulster British commissioner compared with the Irish language commissioner in terms of enforcement also extends to the provisions on complaints. Whereas a member of the public can complain to the Irish language commissioner about any public authority that has not followed the Irish language commissioner’s guidance where this has negatively impacted the complainant—which gives the commissioner the opportunity to take action—the scope for a member of the public to complain to the Ulster Scots/Ulster British tradition commissioner pertains only to the failure of public authorities to comply with one aspect of the commissioner’s functions, specifically one which is not deemed sufficiently central to appear in the principal role in new Section 78R(1), and which, when mentioned, is mentioned only in brackets.
Quite apart from any other concerns about unequal treatment, it seems clear that even at this very basic level of definition in the Bill, we are already letting go of the principle of parity of esteem and affording one community a commissioner with enforcement powers with respect to all the commissioner’s main functions, while affording the other commissioner enforcement powers only in relation to a secondary function in brackets, leaving the commissioner’s principal functions as defined by new Section 78Q(1) without an enforcement mechanism. My Amendments 33 to 36 address this discriminatory difference of treatment and enable a member of the public to complain to the Ulster Scots/Ulster British tradition commissioner if they are negatively affected if any advice issued by the commissioner is ignored and they similarly give the commissioner power to take action.
I very much hope that noble Lords will be able to appreciate why the unionist community has been shocked by the difference of treatment afforded it by this Bill. I am genuinely at a loss to understand how anyone sensitive to the challenges we face in Northern Ireland, let alone a body supposedly committed to the notion of equality of esteem, can regard the enforcement provisions afforded unionists in this Bill as anything other than direct discrimination when compared with the enforcement provisions afforded nationalism. This is wholly indefensible and inexplicable. I urge the Minister to recognise this and the fact that this inequality of treatment is utterly indefensible and flies in the face of the principle of equality of esteem. I plead with him to accept these modest amendments.
Lord Empey (UUP)
My Lords, unlike a good wine, sometimes negotiations do not age well. Sometimes we get it right; sometimes we get it wrong. I think the noble Lord has a fair point. I do not know, because I was not involved in the detail of these negotiations, what the rationale was to reach the final form of New Decade, New Approach. No doubt the Minister will say to me that he is trying to follow as faithfully as possible the agreement that was reached, but that does not mean that we have to be slavish in our acceptance of the provisions.
There is a perception issue here; there is no doubt about that. The Minister may have a very convincing explanation—he is usually very capable at providing them—but he has a bit of an uphill task, given the fairly broad, fairly substantial gap between the powers of the two commissioners. Perhaps he can put our minds at rest, but even if he is following New Decade, New Approach as far as I am concerned that does not mean that he has to be a slavish follower of it. I look forward to him perhaps considering before Report whether something can be done to remove the perception of inequality between the powers of these respective commissioners.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, accepting the points made by the noble Lord, Lord Empey, I do not believe that there is only a perception of a difference; this legislation would actually make a difference between the two. NDNA did not give acceptance or credence to lack of parity of esteem; in actual fact, it was demanding that. It was not seeking to be used for discrimination against the unionist community; in actual fact, it was demanding that both communities in Northern Ireland were treated with that parity of esteem.
Lord Caine (Con)
Once again, I am most grateful to the noble Lord, Lord Morrow, for the way in which he moved his amendment. To comment briefly on the words of my noble friend Lord Empey, I think it was Duff Cooper whose memoirs were entitled Old Men Forget. I am sorry to disappoint my noble friend but even I have forgotten some of the details of the New Decade, New Approach negotiations that took place over those torturous three years between 2017 and 2020.
I am grateful to the noble Lord, Lord Morrow, for tabling these amendments, which relate to extending the grounds upon which an individual can make a complaint to the process for the Ulster Scots commissioner. I have a number of concerns regarding the amendments; I will set them out briefly.
My first concern is that it would not be appropriate to amend one of the commissioner’s complaints procedures but not the other. The amendments in the name of the noble Lord would undermine the position reached in New Decade, New Approach that the commissioner should be able to investigate relevant complaints about a public authority’s lack of due regard to advice provided in respect of facilitating the use of Ulster Scots. That is why the Bill specifically refers to “published facilitation guidance”.
I highlight to noble Lords that, in preparing this legislation, the Government have provided the essential clarity on the complaints process for the commissioner so that it provides similar clarity and certainty to the complaints process provided for the Irish language commissioner. The role of the Ulster Scots/Ulster British commissioner and their work to provide advice and guidance will cover the same public authorities as the office of identity and cultural expression and the Irish language commissioner. The public will be able to make complaints to each commissioner in the same way.
On the parity of esteem point made by my noble friend Lord Empey and the noble Lord, Lord McCrea, as I said on an earlier group of amendments, the commissioners have been designed to meet the different needs of different parts of the community. They are different in function, and therefore there are certain disparities in their powers. Again, that was the position reached in New Decade, New Approach; the Government are faithfully trying to follow it.
I suspect that I have not reassured the noble Lord on this issue. He may wish to return to it but, for now, I would be grateful if he would withdraw his amendment.
Lord Morrow (DUP)
My Lords, having listened carefully to the Minister—again, he has enticed me enough for me to withdraw my amendment at this time—I just want to say this to him: I am not going away. We will be watching carefully. I think that he has taken on board what we have said; I appreciate that. I beg leave to withdraw the amendment.
Lord Murphy of Torfaen
“(aa) arrange for a statement to be made to each House of Parliament, and”Member’s explanatory statement
This probing amendment would require the Secretary of State to make a statement to Parliament when they use the powers of direction under this Clause.
Lord Murphy of Torfaen (Lab)
My Lords, we now come to quite a difficult part of the Bill, in my view. The Minister referred to the fact that he could not quite remember all the detail in New Decade, New Approach. Of course, there have been so many agreements that even my memory is starting to fade now, and I am much older than the Minister. My other impression is that, if you are an old man or woman in Northern Ireland, you are likely to remember far more than if you were from Wales, for all sorts of different reasons.
Memories go back a long way. One of my memories, which I do not like, is of being on a plane between Belfast and London and having to sign a document that suspended the Assembly. I thought that that was one of the most unpleasant things I would ever have to do, because the whole purpose of the Good Friday agreement and the subsequent agreements was to ensure that Northern Ireland had its own Government, Parliament and apparatus of government. To see that go caused huge distress—I use that word specifically—to all of us who had been involved in trying to bring about change in Northern Ireland. When the Secretary of State and this Parliament, this House of Lords and the House of Commons, are given powers to intervene, whether it is in this Bill or on the abortion regulations yesterday—whatever it may be—it is awful that it has to happen, because it goes completely against everything that we thought, and I hoped, devolution would bring to Northern Ireland.
Again, these are probing amendments. Obviously, we will not put them to votes, but we need to know in what capacity the Secretary of State would intervene. I understand that the First Minister and Deputy First Minister must make agreements on various issues affected by this legislation. I also understand that there could be considerable differences in view between them. However, there comes a time when there is no mechanism by which this legislation could go forward if either the First Minister or the Deputy First Minister effectively vetoed the other. The legislation would not go forward. I hope that it will not happen, and that the Minister can indicate in his reply that he believes that it will not happen. When the Secretary of State has to step in, could that be constrained a bit more by way of scrutiny? All the legislation says is that the Secretary of State must lay before Parliament the direction that he or she makes. I do not know whether that is sufficient. The Secretary of State should be made to make a statement, preferably an Oral Statement, to both Houses about why he or she has decided to step in and intervene. The balance would then be struck a little more.
My noble friend Lady Ritchie has tabled amendments that go into a bit more detail about that and put down a timescale. They intend that the First Minister and Deputy First Minister should appoint a commissioner within 30 days, say, and if that does not happen the Secretary of State should be given another 30 days so that it is done in a day. This is all meant to bring out the Minister’s views on what should happen if the Secretary of State intervenes.
I should also point out the excellent report by the Constitution Committee of your Lordships’ House. The very last paragraph is important. It states:
“The powers could be exercised by the Secretary of State even if there were a functioning Executive and Assembly. The Government states in the Explanatory Notes to the Bill that the powers may be used when the Secretary of State deems it ‘necessary’ to do so, but this is not reflected in the Bill. Clause 6(3) should be amended so that the power of direction in clause 6(2)(b) may be used only when the Secretary of State considers it necessary, rather than appropriate.”
There is a big difference between the two words. What is also interesting about this report is that it expresses exactly the same view that I have just expressed to the Committee about the difficulties—and sorrow, in many ways—of the Secretary of State having to come in and intervene. In a way, it underlies this Committee—indeed, all the stages of this Bill. This Bill simply should not be a matter for this House or the House of Commons; it should be a matter for the Northern Ireland Assembly. That is why we set it up 25 years ago.
I am interested in what the Minister has to say on this. I do not oppose the Secretary of State having such powers but there should be more scrutiny of and restrictions on how he or she would exercise them. I beg to move.
Lord Morrow (DUP)
My Lords, this amendment would require the Secretary of State to make a Statement to the Commons and the Lords when he or she exercised the override powers established in Clause 6. This would be in addition to an existing obligation to lay a copy in both Houses of any direction given to a Minister or department in Northern Ireland.
I have to say, the amendment is a bit of window dressing. It misses the point completely. Granting the Government powers to take decisions unilaterally in the absence of cross-community agreement rides roughshod over the Belfast agreement as well as the delicate safeguards contained in New Decade, New Approach. It is not enough to suggest that an extra half hour on the Order Paper of this House would make up for the gulf in democratic accountability established by it. For that reason, I and my colleagues are opposed to it.
Lord Empey (UUP)
My Lords, I must say, I take a similar view to the noble Lord, Lord Morrow. For three years, when the Assembly was closed following Sinn Féin’s withdrawal in 2017, the noble Viscount, when he was answering at the Dispatch Box, would say, “Well, because of the Sewel convention, we cannot do this; it is a devolved matter. The Northern Ireland Office cannot do that”. We now seem to have moved. We do not hear the Sewel convention mentioned very much around this place. We seem to have a situation now where, effectively, we are fireproofing bits of legislation against disagreements even though they may be legitimately expressed and exercised by Ministers in Northern Ireland.
The whole mechanism that was agreed in 1998 is not what many of us would ultimately like, but the concept of a mutual veto is there for a purpose. We would not have devolution, as the noble Lord, Lord Murphy, knows, if people did not feel a sense that they each had a hand on the steering wheel. As the noble Lord, Lord McCrea, mentioned, some of the people with whom we have shared power are not necessarily dinner companions. Once you take away the exercise of a veto, you take away a part of the settlement.
I know that colleagues here did not agree with it in 1998; I am well aware of that, and I understand the rationale for it, but perhaps they now understand our rationale for not agreeing with New Decade, New Approach. As far as I can see, all people would have to do is not agree, and all that those who would like to see a particular measure would have to do is sit on their hands and wait for the Secretary of State to overrule. If we get into that, Sewel is out the window and you start to decay the whole process; we need to take very great care that we do not undermine it. It is an awkward, difficult and complicated system because, if you know that you do not have to agree with the person across from you, the temptation is to wait it out until the Secretary of State intervenes and takes your side.
For a brief period, I held the office at the OFMDFM. I know how complicated this is. The first week I held the office, I and the Deputy First Minister could not agree on the notepaper; as a consequence, the department could not send a letter out for a week until we agreed. We agreed because we had to, and we got a compromise. However, if I had known that I could sit it out and that the Secretary of State would come over and take my side, I would have been under no obligation to agree.
Lord Empey (UUP)
Or the other side. Whichever—the point is still valid. I am just saying that, if you throw out or undermine the concept that people have to agree, however difficult it is, for one thing, the temptation is that it will spread. That will be my only contribution.
Lord Moylan (Con)
My Lords, I will speak to Amendment 43, to which I have put my name. I would in fact have put my name to Clause 7 stand part if the field had not been too crowded when I arrived at the Public Bill Office. I speak to Amendment 43 in the absence of the noble Baroness, Lady Hoey, who I think noble Lords know has had to leave for Northern Ireland and who was the tabler of the amendment.
I am in danger of making the same, or a very similar, speech to the one I made at Second Reading. Indeed, I am in danger of making the speech I might have made yesterday on the abortion regulations if I had not constrained myself and kept silent. I should avoid doing that, so I shall be fairly brief.
My concern is that, while the Government proclaim their rock-solid adherence to the Good Friday agreement, as noble Lords have already said, the increasing number of powers being given to the Secretary of State to appoint or conduct himself effectively as a Minister in the Northern Ireland Executive is undermining the Good Friday agreement, and manifestly so.
I know a great deal less about Northern Ireland than practically every other noble Lord in this Committee. However, I know something about planning law. One of the features of planning law is that, if a local planning committee made up of local councillors finds itself in a position where it is legally obliged—there is no way out—to grant a planning permission that it does not want to grant because it is politically unattractive, it has the option of sitting on its hands or simply refusing it and allowing the applicant to appeal to an inspector appointed by the Secretary of State. Then it can say, when the inspector has granted the planning permission, “Ah, well, it was nothing to do with us. You see, we opposed it but the inspector has forced it upon us”. This creates a dishonesty in local government that should not really be allowed.
The noble Lord, Lord Empey, put his finger on this in relation to Northern Ireland. If you have a devolved Administration that requires some form of consent and collaboration but you know that the decision will be taken by the Secretary of State if you refuse or fail to achieve that level of consent and collaboration, that is of course the easy way out, as it is for planning committees that do not want to confront their residents and explain why they have granted an unpopular permission. That is the position that the Government are getting themselves into. It was clear in the discussion yesterday of the abortion regulations and it is clear here today. No rationale has been presented by the Government for how they see devolution in the light of these new powers that are constantly being conferred on the Secretary of State to appoint himself as a Minister and conduct himself in that way.
Amendment 43 is very simple. It says that the Secretary of State cannot exercise these powers if there is a functioning Assembly or if there has been a delay of less than six months since the Assembly and Executive were operating. It puts a firebreak in and puts the pressure back on local politicians in Northern Ireland to reach consent, collaborate and work together in the way that the Good Friday agreement was framed. It is a very simple measure in that respect and should commend itself to the Government. From what I understood of the remarks of the noble Lord, Lord Murphy of Torfaen, he might see it as having some merit, too. I very much hope that, when he comes to reply, my noble friend the Minister will be able to give some succour to those of us who would like to see this amendment pass.
Lord Dodds of Duncairn (DUP)
My Lords, the noble Lord, Lord Moylan, has eloquently set out the dangers of the approach that the Government are taking through the insertion of Clauses 6 and 7. I support Amendment 43 in his name and that of the noble Baroness, Lady Hoey. Our position that Clause 7 should not stand part of the Bill would go further in deleting the Secretary of State’s override powers completely. However, I understand entirely that, when we have a functioning Assembly, there certainly should be no question of the Secretary of State having the power to intervene.
The issue is very clear, as was illustrated yesterday in the debate on the abortion regulations. These clauses are another example of what one noble Lord described as the Government’s pick-and-mix approach to devolution and the Belfast agreement as amended by the St Andrews agreement. Some issues are picked out to be legislated for here in Westminster and other issues are not touched at all; we saw this between 2017 and 2020, when the Government’s attitude was that they could do nothing at all to move issues forward, legislate or step in.
However, now, they are doing so on other issues. We had it with yesterday’s regulations on abortion, which is a devolved matter for the Northern Ireland Assembly and was lifted out of it to be legislated for here. We had it on the protocol, where the Belfast agreement and the Northern Ireland Act were disgracefully amended by secondary legislation to ensure that, for the vote on the protocol—it was given to the Assembly and therefore, by definition, was devolved to it—the voting mechanism was changed. The very architecture of the Belfast agreement was changed at the Government’s whim without agreement among the parties.
Here is another example. As the noble Lords, Lord Moylan and Lord Empey, have said, this goes to the heart of the operation of the institutions in Northern Ireland. There is no doubt that people will inevitably feel that, going forward, if there are intractable or difficult issues, they will go with their competing demands to whoever is in power at Westminster and demand that it should act in their favour—although I suspect that unionists will be less keen to do that than nationalists, given the track record of success at getting Westminster to legislate over the wishes of the Assembly. I fear that it seems to be a rather one-sided approach. There is no justification on this issue in terms of the principle of devolution, which applies throughout the United Kingdom; the Sewel convention has been mentioned. It undermines the principle of devolution and the Belfast agreement as amended.
I throw this point in also; obviously the Minister can deal with it when he comes to reply. He said that the New Decade, New Approach document should be faithfully followed, that part of this legislation is about putting into practice and law the provisions of that agreement, and that it should be departed from very rarely—if at all—but can he point to anywhere in the NDNA agreement that says that the Secretary of State would have override powers or intervention powers? Where is that provision to be found?
Of course, the Secretary of State and the Government always implicitly have such powers but it seems to me that, when parties make an agreement in the context of an operational assembly and an agreement on how things should be agreed between them, that assembly is where the matter should lie. Yes, there will be difficulties in reaching agreements—the noble Lord, Lord Empey, pointed to one particularly good example about notepaper—but the point is that there have been serious issues on which there was disagreement initially but agreement was eventually reached between the First Minister and Deputy First Minister, or between the parties in the Executive, because it had to be.
I hear Ministers continually referring to their support for the Belfast/Good Friday agreement and how committed they are to it, yet their actions in recent months have been very concerning in terms of their approach to the institutions and powers of the Executive and the Assembly as set out in that agreement. They are effectively undermining it.
I believe that Clause 7 should not stand part of the Bill and I lend my support to Amendment 43. I also happen to agree with Amendment 40, moved by the noble Lord, Lord Murphy of Torfaen, in the sense that, if there is a situation where this clause does go through and the Secretary of State does have that power, he or she should be required to come and make a Statement to Parliament, as opposed to not having that obligation. Again, that would be an opportunity to hold people to account.
Lord Empey (UUP)
Not having been intimately involved in the New Decade, New Approach negotiations, is the noble Lord saying that there were no provisions in that agreement for Secretary of State override powers? Am I right in taking that as his position? If that is the case, could it be that a deal has been done with Sinn Féin to guarantee that, irrespective of what happens in the Assembly, its particular version of events will be implemented by the Secretary of State? Is that possible?
The genesis of the Irish language Act is in the final communiqué of the St Andrews agreement, where the British Government commit to introducing such an Act. I just wonder whether a private understanding has occurred; I am sure that the Minister can clarify that if that is the case. However, if the noble Lord is saying that we are putting into this piece of supposedly devolved legislation a clause that means that the Assembly in and of itself is not the final arbiter of its decisions, the sooner we have that clarified, the better.
Lord Dodds of Duncairn (DUP)
I am grateful to the noble Lord. A lot of those questions are for the Minister; I look forward to hearing what he has to say in relation to these matters.
I want to clarify the point about the St Andrews agreement and the Irish language provisions, which were also referred to by the noble Lord, Lord Murphy. He is quite correct that Sinn Féin went to the Government at the very last minute and wanted provision to be made but, of course, it was not a matter for the negotiations between the parties; it was a last-minute effort by the Sinn Féin negotiators to get the Government to commit to doing it. Of course, the Government made some commitments but they were not binding on the local parties and, because it was a devolved matter, that is where it stayed.
As far as we are concerned, just like abortion, the issues of identity and language are matters for the Northern Ireland Assembly. That is the basis on which agreements were made. Going forward, I believe that it is dangerous for the stability of the Assembly and all the other institutions if the Government take this pick-and-mix approach and decide that they will act unilaterally on certain issues. That is not sustainable and will ultimately cause major problems. It has done so already but it will cause more problems down the line.
Baroness Suttie (LD)
I agree with what the noble Lord, Lord Dodds, said about Amendment 40, which I co-signed. It is primarily a probing amendment. The noble Lord, Lord Dobbs, made the point that if the Bill goes through unamended, it is extremely important that this House and the House of Commons are able to probe exactly why the Secretary of State has deemed something to be appropriate. “Appropriate” is a very subjective term, and it is not sufficient just to lay orders before Parliament. It is important that it is fleshed out, discussed, debated and aired. I agree with the earlier comment about some of the statements in this House and in the House of Commons not always being sufficient. If the Bill goes through unamended, it is important that there is some form of parliamentary scrutiny of why the Secretary of State has taken these measures because he or she has deemed them to be appropriate.
Lord Lexden (Con)
My Lords, some very important constitutional points have been brought up in this debate, and I know my noble friend will want to reflect with care upon them. Since this is the last debate in Committee, I shall make a simple general point. It takes the form of an injunction to my noble friend. It is that between now and Report, he seeks to do all that is possible within the Bill to address the considerable and deeply felt reservations and concerns that have been brought up during these proceedings. This is a Bill for which we unionists will never feel any enthusiasm, but it would be good if on Report there will at least be some diminution of the concerns and reservations that have been expressed this afternoon.
Lord Caine (Con)
My Lords, I again thank noble Lords across the Committee for the amendments that have been tabled and for their contributions. If I may, I will try to speak to all of them in this group.
Turning first to Amendment 41 in the names of the noble Baronesses, Lady Ritchie of Downpatrick and Lady Goudie, to which the noble Lord, Lord Murphy, referred, it would introduce a threshold to the step-in powers conferred on the Secretary of State if the First Minister and Deputy First Minister do not appoint an Irish language commissioner or approve best practice standards, either once the legislation comes into force or when a vacancy arises.
I again understand the noble Baronesses’ intention in wanting to ensure that the provisions of this long-awaited Bill are not stymied by inaction on the part of the Executive, and their desire for the Secretary of State to move quickly if such inaction were to present itself. This is an issue that was raised with the Irish language group Conradh Na Gaeilge when I met it in Belfast three or four weeks ago.
My starting point is, of course, that the Government would not wish to intervene routinely in transferred matters and the use of any powers in the Bill would require careful consideration. Judging by the comments that have been made, I am sure that noble Lords share my belief that deviating from that principle would be undesirable. However, the Government believe that it is important to have these powers as a contingency to avoid inaction. They have been carefully drafted to allow the Secretary of State to use his discretion and to consider the circumstances at the time.
I think the noble Lord, Lord Murphy, wanted me to elaborate a little on that. Some of the considerations that the Secretary of State might want to take into account in exercising these powers and having regard to the circumstances at the time might include: whether the matter of identity and language was causing political instability in Northern Ireland; whether the institutions were functioning; whether the First and Deputy First Ministers were acting in good faith in implementing the legislation; and, indeed, whether these issues were surmountable without such an intervention. They would be the kinds of considerations that he would take account of.
The stipulated timeframe of 30 days in the amendment seems impractical, particularly in respect of public appointments that take time and need to be conducted with rigour. Such a timeframe would almost certainly preclude the correct process from taking place and the proper and thorough consideration of best practice standards by the First and Deputy First Ministers.
Finally, my understanding is that the amendment would apply solely with reference to the Irish language commissioner and not the commissioner to enhance and develop the language, arts and literature associated with the Ulster Scots and Ulster British tradition; nor would it apply to the appointment of the director and members of the office of identity and cultural expression. Therefore, the Government will not be able to accept such an amendment.
Amendment 42 seeks to give the Secretary of State a further area where step-in powers could be exercised; namely, in relation to strategies relating to the Irish language and Ulster Scots, as set out in Section 28D of the Northern Ireland Act 1998. This is a separate undertaking from the legislative commitments on identity and language that were set out in New Decade, New Approach and, for that reason, we have decided not to include such a provision here.
Amendment 40, moved by the noble Lord, Lord Murphy of Torfaen, would require the Secretary of State to make a statement to Parliament when the direction powers under Clause 6 are used. I hear the comments of my noble friend Lord Empey, the noble Baroness, Lady Suttie, and others, who gave some support to the comments by the noble Lord, Lord Murphy. If I may put it like this, I understand the desire for more scrutiny and transparency to be introduced if the Secretary of State were to be in the unfortunate position of having to use these powers. The powers, as I have said, have been carefully drafted, but I assure noble Lords that I will go away and look further into this issue following our discussions today.
Lord Empey (UUP)
I am most grateful to the Minister for his last comment, but this is a fundamental issue around the devolution settlement. If we are making big distinctions over the areas of transferred powers in which a Secretary of State has the potential to intervene, it is an encouragement for people in the relevant devolved Administration because it is a disincentive to agree.
We also have to bear in mind the implications of this for the other devolved institutions. I wonder how we would sell this to the Scottish Parliament, or the Welsh Senedd for that matter. If we take one issue and put it on a pedestal, the potential is there for that boundary—that envelope—to be pushed further forward. I can assure the noble Lord of that, though I am sure he is well aware of it.
Lord Caine (Con)
I am grateful to my noble friend; I will touch on what he said shortly, I think. I give my assurance to the noble Lords who have spoken on this amendment that I will go away and look at this further before Report.
I am also grateful to the noble Baroness, Lady Hoey, for her amendments, which were spoken to by my noble friend Lord Moylan, and to the members of the Democratic Unionist Party who are in the Committee today for their amendments, which all focus on the powers conferred on the Secretary of State arising from the provisions in Clauses 6 and 7. I will turn to those clauses now, if I may.
I completely understand the noble Lord’s intent that these powers should be exercised only in exceptional circumstances, if at all. I repeat my earlier assurances: the Government would not wish routinely to intervene in transferred matters and the use of any powers in the Bill would require very careful consideration indeed. I have set out some of the factors that the Secretary of State might have to take into account in deciding whether to use the powers in these clauses because we agree that deviating from the overall principles—protecting the devolution settlement and not routinely intervening in transferred matters—would be undesirable.
However, in our view, it remains important to have these powers in the event that matters such as those we are discussing today—identity and language—remain a source of instability. I need not remind the Committee of the potential and capacity that they have to poison and paralyse politics in Northern Ireland, as they did during the period between 2017 and 2020. That is why these powers have been drafted and included; they afford the Secretary of State the latitude to use his discretion if these issues remain a matter of discord.
I complete accept the comments of my noble friend Lord Dodds of Duncairn in referring to New Decade, New Approach. However, the reason we are taking these powers—almost as an insurance policy, if you like—is to deal with the fact that, some two and a half years after New Decade, New Approach, key elements and provisions of that agreement have not been implemented. The Government feel that they have an obligation to ensure that they can be delivered.
At the risk of opening an entirely new front at this late stage, I have heard a number of comments about the Belfast agreement. Noble Lords have heard me express on many occasions my support for that agreement, which has been consistent since 10 April 1998. I gently remind noble Lords that there is a provision in the Belfast agreement that explicitly states that Parliament’s ability to make law for Northern Ireland remains unaffected. That is also reflected in the Northern Ireland Act 1998.
As I said, the powers have been drafted to give the Secretary of State latitude to use his discretion in these areas. They also reflect the fact that the UK Government are necessarily bringing forward in this United Kingdom Parliament primary legislation that was originally for the Northern Ireland Executive and Assembly to introduce. In our view, it is right in those circumstances that the Secretary of State has the power to ensure the implementation of these commitments, as I have just said.
Of course, as has been stated many times, it is our sincere hope that a new Executive will be formed soon, will implement this legislation and will set up the new bodies for which this Bill provides. With Clause 6, though, the Government are seeking to ensure that there is a path to the implementation of the legislation. The Government are committed to ensuring that the legislation works in practice, and that the commissioners and the office can function effectively so that these New Decade, New Approach commitments are conclusively delivered. Clause 7 is necessary to ensure the effective operation of the provisions made in Clause 6 should the Secretary of State judge it necessary to intervene.
Finally, I very much take on board the comments of my noble friend Lord Lexden. I will reflect on what he said. With those remarks, I urge the noble Lord, Lord Murphy, to withdraw his amendment.
Lord Murphy of Torfaen (Lab)
Well, there we are. My Lords, it is not easy. My heart tells me that the noble Lords, Lord Empey and Lord Dodds, and others are right that the devolution settlement should be protected. If you set up an Assembly and a Government, they should be allowed to get on with things and should not be interfered with every 24 hours by the United Kingdom Government; I accept that. That is one reason I tabled what I thought was a fairly modest amendment to just say, let us have a Statement instead of a directive. It could even go further and have a parliamentary debate, or whatever.
As always, the issue boils down to a short supply of trust. That has to be built up. It has been lost over the past number of years, inevitably, for all sorts of reasons, but there is a difference between this legislation and others, which is that this is essential to the restoration of the Assembly. Sinn Féin brought the Assembly down because of the lack of an Irish language Act, and therefore, if we are saying, “Look, there is so much disagreement we can’t pass this; it’s not going to happen”, the chances are we will go back to square one again. The problem is that people in the unionist community will say, “Well, that’s a veto too, over the Assembly being set up.” I am uncomfortable with it, but I cannot see off the top of my head any way around it. There may be people much cleverer than me who can think of a solution—there we are; there is a good example of someone much cleverer than me.
Lord Empey (UUP)
The solution is the agreement. Let us suppose Sinn Féin proposes a convicted murderer or somebody who is anathema to a large section of the community to be a commissioner and a DUP Deputy First Minister says, “I can’t appoint that individual, my conscience won’t allow me”. All Sinn Féin has to do is sit it out, whereas if we both know that we have to get agreement, we have to compromise. That is the core of the agreement, and we are taking it out. We have taken it out since the agreement was made. In my opinion, we took it out at St Andrews—the same principle—but that is one example.
Lord Murphy of Torfaen (Lab)
Yes, I understand, and if I was the Secretary of State under those circumstances, I would not invoke special powers, which this Act would eventually do; I would get on a plane and go over there and have a chat for the next two weeks to try to resolve it, negotiate around it and deal with it that way. That is how we have always dealt with things in Northern Ireland. Frankly, that is how what is going on there now should be dealt with. That is the way to do it. That is why I am less than comfortable with this, but I just cannot see a way around it.
The noble Lord, Lord Empey, makes a good point. We assume in all the agreements we have made that we can resolve these issues among ourselves. It could be that the Secretary of State could be a referee in all this, and that could be somehow put into legislation. Then, at the end of the day, the decisions are taken by those who should be taking the decisions, rather than a rather clumsy, clunky entrance which says, “All right, you lot, I’ve had enough of you, I’m going to pass the legislation.”
Lord Caine (Con)
I am following the noble Lord very closely. He is absolutely right to say that these are uncomfortable powers. He will be aware, since he has been around in politics a long time, that one does not always necessarily have to be comfortable with something to deem it necessary. He referred earlier to his act on the aeroplane of signing the suspension order of the Northern Ireland Assembly in 2000. I recall that suspension was deemed necessary to preserve the institutions.
Lord Murphy of Torfaen (Lab)
Of course. No one said that any of this is easy; far from it. When he wound up, the Minister was very kind to say that he would look at all the different ideas that have emerged from the discussions and debates here today and come back on Report with something that might satisfy all Members, which will be very difficult in these circumstances. I am sure he understands the feeling behind what is being said: we want this to work, not just because it sets up the Assembly and the Government but because it is right in itself for the Irish language and the Ulster Scots tradition. However, at the same time, we have to ensure that progress is made. I beg leave to withdraw my amendment and hope that the Minister will come back with a slighter better one on Report.
Lord Morrow (DUP)
My Lords, I can be very brief. I have listened intently to what the Minister has said, and to what the noble Lords, Lord Murphy and Lord Empey, and others have said. It strikes me that the Minister has said that the Government are doing this to implement NDNA, but if the truth be told, NDNA is not being implemented. Rather, it is being cherry-picked: “We’ll do that, but we won’t do that.” It is getting a bit monotonous, and suspicion is rife across Northern Ireland as to what exactly is going on here.
Lord Caine (Con)
I apologise for having to take issue with the noble Lord right at the conclusion of the debate, but I challenge the assertion that New Decade, New Approach is being cherry-picked. The legislation I took through this House at the end of last year and the beginning of this one focused primarily on the robustness and resilience of the institutions. The noble Lord will remember that in all the discussions on New Decade, New Approach, they were key demands of the Democratic Unionist Party. I was involved in those talks quite intimately; they were key demands of the DUP, and they have been delivered to the best of our ability.
There is a whole host of other commitments in New Decade, New Approach about the veterans’ commissioner, support for the Northern Ireland centenary, et cetera—I could go on. I tabled a Written Ministerial Statement a few weeks ago, setting out in great detail all that had been delivered on New Decade, New Approach, to the extent that members of the Opposition were quite surprised at just how much had been delivered by this Government. The idea that we are cherry-picking or favouring one side over the other is, frankly, not correct.
Lord Morrow (DUP)
I am speaking now about Clause 7, which the Minister is very familiar with. Furthermore, as was mentioned earlier, we were told that the Irish language Act was not a part of the Belfast agreement. I accept that; it was not. It was not a part of the St Andrews agreement. Was a private arrangement made? Somehow, mysteriously, this all started to evolve. Those were issues for the Northern Ireland Assembly and the Northern Ireland Executive. They should be allowed to get on with that. Was the protocol included in any of this? Was the Executive consulted in relation to that? I can clearly state that the answer is no—although I am not a member of the Executive, I have enough party colleagues who are in it.
Finally, in the 1998 Act, there are very narrow grounds, to put it mildly, on which Westminster can actually intervene. One of those grounds is national security, as I referred to yesterday. So this is being expanded all the time—“Oh, we’ll do this, and we’ll do that”—and it leaves one side or the other totally demoralised. I suspect that the architects of the Belfast agreement, some of whom are here, and those who signed up to it are bitterly disappointed at the way the whole thing has been treated and pulled. At times, they must wonder whether it will survive. It is kicked into touch when it has to be, and then parts of it are implemented and parts of it are not. We have to get to the stage where trust is built between the communities in Northern Ireland and the Government in London.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, I hope the procedural gods will forgive me for allowing that, but I think it was very important to get those things on to the record, and I stand by my decision.