Northern Ireland (Executive Formation and Exercise of Functions) Bill

Baroness O'Loan Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Bruce of Bennachie (LD)]

My Lords, I too support this amendment, which I have signed, and which was powerfully moved by the noble Lord, Lord Hain. All I add is that it encapsulates the dilemma that the Bill represents. These are people who have suffered for decades and who are towards the end of their lives, although they have lived a lot longer in many cases than they were expected to, with psychological and physical difficulties. There is a cross-party and, indeed, administrative and political consensus that they should be compensated, but there is no mechanism for doing so because that mechanism has effectively foundered or is in deep freeze. In that situation, to say to these people that they will have to wait until such time as an Assembly is re-established would be heartless in the extreme.

There are two issues. First, it should be within the capacity of the Government to make this happen, either in the Bill or by some other mechanism. The cost is relatively low. Secondly, to suggest that it is not possible to do something as sympathetic and compassionate as this, which has such cross-party support, would be very distressing to people who have been led to believe that their case is understood and that there is a willingness to deliver it, when, because of the incapacity of the political system, they might have to wait too long even to benefit. The amendment is well made and there are one or two others that fall into the same category. If the Minister can provide the assurance, he should really be talking not to the House but to the victims.

[Baroness O’Loan (CB)]

My Lords, I support the noble Lord, Lord Hain, on this issue. We need the issues of the past to be dealt with. This needs to be dealt with by means of a separate ring-fenced budget so that it does not come out of the Northern Ireland budget. Particularly on pensions, I know many of the people to whom the noble Lord referred. I have worked with them and met them, and spoken to and for them. There is an ongoing campaign that is wearing them out. I ask that there be support, as there seems to be right across the House.

I also ask for support for additional resources for trauma services, for the ongoing search for the disappeared, such as Captain Robert Nairac and the 17 year-old Columba McVeigh, and for an independent historical investigations unit that is not constrained to a five-year period.

The suffering of those to whom the noble Lord, Lord Hain, referred has been enormous. It has lasted for so long. The Government could make a difference here and I ask them to do so.

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[Lord Duncan of Springbank]

I am struck, as I gaze around the Chamber, by how many people are wearing poppies. And I am struck again by the poetry:

“Age shall not weary them, nor the years condemn”.


But of course we are talking about people who will be wearied by the passage of years and who will be condemned to live through that period—victims of a great iniquity done to them. I have spoken of the situation a number of times now with the noble Lord, Lord Hain. I will preface my remarks by saying that it is our hope that we will secure an Executive who can take this matter forward. Were I to stop with that answer, it would be inadequate, so I will not stop there but carry on.

The important issue here is that we have commissioned from the Victims Commissioner a thorough report into all aspects of this serious issue. We have asked her to expand her remit to look at not just physical but mental anguish and I am able to say today that the Secretary of State will write to the Victims Commissioner, asking her to include a date from which payments shall be made. This is not a future point but rather some point where we can be very clear going forward.

As I said, it is our hope that an Executive will take this matter forward. However, if, despite our best efforts, that Executive have not been restored by the time updated advice on a pension issue has been provided by the Victims Commissioner, the Northern Ireland Office will consider how the matter can be progressed. That is not to put it into the long grass or put it away, but to recognise that it must be progressed.

[Baroness O’Loan]

Has the Victims Commissioner indicated a date by which she might report?

[Lord Duncan of Springbank]

The Victims Commissioner has not indicated such a date, but I am led to believe that we should be able to see progress in good time, if I can use that term. It is not an answer that the noble Baroness would want. I would like to give her a date but I cannot bind the Victims Commissioner to a date.

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[Lord Empey]

My Lords, my Amendment 6 is in this group. The argument is the same. This is not the first discussion we have had on the Hart report. It has been raised whenever we have dealt with budgetary matters, and we have had two budgets. To put it in context, there is one complication in that the funds are not exclusively a government responsibility because presumably the people who operated the institutions have insurance. We have seen examples, particularly in the United States and elsewhere, where insurers have had to contribute. I am totally in favour of that but it should not paralyse us and prevent us moving forward.

The other characteristic of this proposal is that there is all-party support in Northern Ireland for it. There is not a single, solitary MLA in Stormont who is opposed to it, so there is no reason to say that there is a political issue here. There is no political issue with regard to support. There is unanimity—a rare commodity in Northern Ireland. The victims came to the other place to lobby—I met them in the Public Gallery—and spoke to Members of Parliament. This is a very similar demographic to that referred to by the noble Lord, Lord Hain, including people who were traumatised more than 40 years ago. This is not just a Northern Ireland issue; it applies right across the board, as the noble Lord, Lord Bruce, indicated.

Where do the funds come from? As of yesterday there are unhypothecated Barnett consequentials of £320 million. Where Barnetts are concerned, the money that comes from London does not have to go to particular subjects, such as education or roads; it can go to whichever department the previous Executive directed it to. It would not be difficult to check again whether there is unanimity for this, which I believe there is. I understand the Minister’s dilemma—is this creeping direct rule?—but there is a different dimension here, just as in other amendments that we will come to shortly. There is compassion. There is time. There is the degree of suffering that people endured. Is it right that we add to that when there is no financial, political or any other rational reason for doing so?

I just do not believe that the ordinary person in the street back home, whatever their view of devolution or Stormont, would be that upset if these people who have suffered for so much of their lives receive redress and we deal with this on humanitarian grounds. That is the best approach. There is unanimity of support, there is a humanitarian issue and I believe the resources are available. On those three issues, I hope the Minister will see fit to give us a positive response.

[Baroness O'Loan]

The people affected by the historical institutional abuse inquiry were also affected by the Troubles. Many of them ended up in residential institutions because of the Troubles. Billy McConville, the son of Jean McConville—who was abducted and murdered by the IRA—died before the payments recommended by Hart were made. I support the proposal and hope that the Government will find some way of dealing with this in the interests of those victims.

[Lord Hay of Ballyore (DUP)]

My Lords, I, too, have some sympathy with the amendment moved by the noble Lord, Lord Bruce. As the noble Lord, Lord Empey, said, this issue is supported by all the political parties in Northern Ireland in trying to address this very serious problem.

It is quite some time since the Hart report was delivered to the Government. I know that David Sterling, head of the Civil Service, was working up a Bill to try to resolve the issue, but I am told that he is now saying clearly that it has to be dealt with by a Minister, which slightly worries me. None the less, if there is anything that all the parties can agree on, the Government should grab it, because that does not often happen.

I have raised this subject in the House before, because I believe that the institutions responsible for the abuse should pay up as well. It would be totally wrong if all the money came from the Government. I know that the issue has been raised in the other place as well, and I say to the Government that nothing should stop them trying to address it. Some survivors of the abuse are getting old: some are very elderly, and some have died. Relations have died, too, and those people have not seen the full output of what they deserve. I appeal to the Government and I hope that, with the support of all the political parties in Northern Ireland, and the support shown throughout this House and in the other House as well, when the issue has been raised, they will find a way of dealing with it. We should make sure that we do not create a major problem for devolution in Northern Ireland when it comes back.

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[Viscount Younger of Leckie]

I hope the noble Viscount does not think I said that. First, I am left in no doubt about the passion of the arguments presented by the noble Lord, Lord Empey, and by the noble Viscount in supporting him. However, I think the Committee will appreciate that there is an extremely difficult line to take. We have said that we do not wish to go down the line, whether it is creeping or not, of direct rule. On the other hand—perhaps this is what I really want to say—the reassurance has to be given from this Dispatch Box that upholding our obligation to the people of Northern Ireland is a high priority, as is ensuring that vital public services are protected. This includes the issues raised on health. We are not afraid to step in, if or when we think it is right, and we have said that we will not rule out further legislative intervention. If that is not clear enough, I have to say that this is very much a subjective decision and constantly under review. I cannot say anything more. Finally, I clarify that the Bill enables the Department of Health to take these decisions, and if the UK Government intervened to step in, it could easily be construed as direct rule. I cannot go any further to clarify that point.

[Baroness O’Loan]

I do not want to hold the Committee up, but I am having some difficulty. The aim of the legislation is to enable the continuity of the delivery of services, yet vital services such as our health service do not receive that attention. I do not understand what is covered by the Bill if things such as this are not.

[Viscount Younger of Leckie]

I hope I have made the point that health is very much a priority. I cannot say anything more. I have also attempted to define the line that we have to take, which is an extremely difficult one in the circumstances that we have been presented with. With that, I hope the noble Lord will agree to withdraw his amendment.

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[Lord Adonis]

I am entirely open to the solutions being found in Northern Ireland, but if those solutions are not found, the only course open to this Parliament is to change the law. The reason that I speak in such direct terms is that it is very important to be able to offer assurances to the people of Northern Ireland themselves that this Parliament is not prepared to allow this abuse of civil rights to continue for any substantial further period. That appears to be in line with majority opinion in Northern Ireland itself. An Amnesty International poll taken earlier this year showed that 65% of people in Northern Ireland think that abortion should be decriminalised and 66% think that Westminster should act in the absence of the Assembly.

[Baroness O’Loan]

Is the noble Lord aware that Amnesty is promoting abortion in Northern Ireland, hence the results?

[Lord Adonis]

My Lords, that in no way invalidates the findings. Those figures are from a poll; they do not represent Amnesty’s own view. A Sky News poll earlier this year found that 76% of people in Northern Ireland support an equal marriage law, and also wish this Parliament to carry such a law if it is not carried in Northern Ireland. I state all this because this is the situation as I see it. My own view is that we are not standing by the people of Northern Ireland in guaranteeing these basic rights at the moment. If I was the responsible Minister, I would think very seriously about seeking to change the law now, but, because of the great respect that I have for the devolution settlement and the Good Friday agreement, it is right that we should allow one last opportunity for the devolved institutions of Northern Ireland to resolve these issues of fundamental rights. If they are unable to resolve them, I do not believe that there is any realistic alternative to this Parliament doing so at some early date.

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[Baroness O’Loan]

My Lords, I put my name to Amendment 16. I should like to speak to it and, briefly, to Amendments 10 and 11.

I have no doubt that the ultimate purpose of Clause 4 and Amendments 10 and 11 is to change Northern Ireland and United Kingdom law by decriminalising abortion. This would mean that abortion would cease to be illegal in all circumstances. That means that any baby, at any stage of gestation, right up to birth, could be aborted. No human right exists to do that. I think noble Lords would wish to accept that that, at least, is true. There is no human right to abort babies as described. To decriminalise abortion would be, to my mind, the act of an uncivilised society.

We do not have any declaration of incompatibility. If we had such a declaration, it would not change primary legislation, nor would it create an imperative for changing primary legislation. The law is provided for in Section 4 of the Human Rights Act, which says:

“A declaration … does not affect the validity, continuing operation or enforcement of”,


any provision, and,

“is not binding on the parties”,

to the action. The effect of a declaration of incompatibility, which we do not have, would be not to change the law, but to ask the Northern Ireland Assembly to think about changing the law. Having considered a declaration of incompatibility, were one to exist, the Government would have the option to do nothing. The noble and learned Baroness, Lady Hale, in her Supreme Court judgment, said that Strasbourg would have regarded doing nothing,

“as within the UK’s margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day”.


The Secretary of State is the representative of the UK Executive. She is not the Northern Ireland legislature for any purpose of considering a change in the law. It is not for the Secretary of State to assume the role of the Northern Ireland Assembly to change primary legislation—nor has she indicated any wish to do so—or to issue new guidance pursuant to primary legislation.

Since health and justice are devolved matters, since this Bill does not change the law on abortion in Northern Ireland, and since the courts have no power to change the law in this respect in Northern Ireland and have not done so, the law stands. Since the matters referred to in Clause 4 and Amendments 10 and 11 are matters of law in Northern Ireland, and since only the legislature in Northern Ireland may make law in respect of those matters, it must surely be illogical to ask the Secretary of State to issue guidance, which would be incompatible with that law.

I have nothing more to say on the matter, other than that we need to think very carefully, and that Amendments 10 and 11, as the noble and learned Lord, Lord Mackay, says, direct the Secretary of State to do something that would be unlawful.

[Lord Alderdice]

My Lords, it may have come to your Lordships’ attention that anybody from this side of the water telling Northern Ireland politicians what to do is likely to bring about exactly the opposite result to the one they want. What is much more likely to affect Northern Ireland politicians is when their own people start to say things to them. On issues such as abortion and divorce, it is very clear that on the island of Ireland the views of the population have changed quite dramatically in a relatively short period. That is why I do not depend on opinion polls, which are notoriously unreliable in all sorts of ways, as has already been pointed out, depending on what questions you ask, in what kind of way, of what group of people at what particular stage. That is why at Second Reading I asked the Minister whether he might give consideration, at an appropriate time, to whether it would be in order under the terms of the Bill, as it has come to us from the other place, for the Secretary of State to consider recommending referendums on these two issues to be carried out with the people of Northern Ireland.

If the people of Northern Ireland said to their elected representatives, “Actually, we have a different view from the one you think we have and things have changed a lot for us in the last little while”, that would be a much more appropriate and effective way of making change, although if the people of Northern Ireland take a different view from that which might be expected, that is an important issue that must also be respected. It is not reasonable or acceptable to say that something is a devolved matter but if you do not make the decision that the people in London like we will stop it being a devolved matter. That is not a very human rights-based approach to things. But I believe that dramatic changes are taking place in the views of the people of Northern Ireland on many issues and the only way for us to become clear about that is to put it to the people in a clear fashion. I wonder whether the Minister might be able to help us on this, either tonight or in the relatively near future.

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[Baroness O'Loan]

The noble Lord, Lord O’Shaughnessy, told me that the Government’s position was that there would be no move on abortion by this Parliament as long as the Northern Ireland Assembly was in devolution mode. I do not think it is helpful for the noble Lord to suggest that there be a referendum on abortion in Northern Ireland at this time of night, in this Bill. Even to discuss it, I think, is most unhelpful.

[Lord Duncan of Springbank]

I hope the noble Baroness will forgive me, but I disagree with her on this. I do not think that, in opening up a discussion with the noble Lord, Lord Alderdice, we are doing anything other than recognising that there are challenges ahead, in respect of which this is but one opportunity to progress. It is not my intention that we will do any more than discuss this; indeed, it is far too great a discussion to have. Equally, this is perhaps not the correct Bill through which to do it, and this is not the right time of day to have such a detailed discussion.

I recognise a number of the points which were made by the noble Lords this evening. I am guided, in truth, by one simple fact. Clause 4 as drafted does not in any way instruct the Secretary of State to issue guidance to civil servants in Northern Ireland to disobey the law. It cannot do that in any way whatever. Given our earlier discussions about the challenges facing the civil service in Northern Ireland, perhaps this would be one burden too far, to try to encourage movement in that direction. Our purpose here is to ensure that, in recognising that Clause 4 came to us with overwhelming cross-party support from the other place, we acknowledge that that came from a democratic House. We must recognise what it represents and understand how best to take it forward. That is exactly what we will do, and we will do so carefully and in a very transparent manner. That is what is required from this particular clause. We will not be issuing guidance that seeks to undermine the letter of the law, in effect usurps it or changes it in any fashion whatever. We cannot and should not do that. I stress again that this is a matter correctly to be taken forward by the democratic Assembly of Northern Ireland.

On those points, my Lords, I hope that you will find it acceptable not to move your amendments to a vote.