Northern Ireland (Miscellaneous Provisions) Bill

Baroness Randerson Excerpts

Tuesday 4th March 2014 Lords Chamber

Moved by

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson)]

1: Clause 6, page 6, line 30, leave out from beginning to “(reserved” and insert—
“( ) The Northern Ireland Act 1998 is amended as follows.
( ) In Schedule 3”

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, on Report I indicated the Government’s intention to bring forward an amendment on a future reduction in the size of the Northern Ireland Assembly. Some noble Lords were concerned about the breadth of the current provision in Clause 6 to make a reduction in the size of the Assembly a reserved matter.

The Bill as it stands would enable the Assembly to legislate, with the Secretary of State’s consent, to reduce the number of Members returned to it for each Westminster constituency. Currently six are returned from each of the 18 constituencies, which makes a total of 108 members. In Committee, views were expressed that the Secretary of State’s ability to withhold consent to such an arrangement was not a sufficient safeguard. It would be open to the larger parties to legislate for a very substantial reduction in size. Smaller parties might suffer disproportionately if the number of Members returned for each constituency was significantly reduced.

The Government recognise those concerns and we have reflected carefully. Many in Northern Ireland hold that, at 108 Members, the Assembly is too large. However, it is certainly not our intention that it should shrink dramatically. When it was established, the intention was that it should be a widely inclusive body, and that remains essential to the healthy functioning of the Northern Ireland settlement.

This amendment would limit any reduction in the Assembly’s size to five Members per constituency. It also requires that any such reduction must have cross-community support in the Assembly. Of course, the decision to reduce the size of the Assembly is ultimately a matter for the Assembly itself. The effect of the amendment is to confine the option to a reduction of one Member per constituency. If the Assembly decides to take that up, smaller parties and minority voices will still be well represented within the Assembly.

A number of noble Lords have indicated to me in the past day or so that, in speaking to these amendments this afternoon, they intend to refer to issues that have arisen in the past week in relation to the issuing of letters to so-called on-the-runs. I assure your Lordships that I will address that issue when I sum up on this amendment, once I have listened to noble Lords’ points and questions.

I hope that your Lordships will agree that the proposed amendment offers sufficient protection and that they will feel able to support it.

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[Baroness Randerson]

I thank all noble Lords who have taken part in this debate. I shall respond in two parts. I shall first deal with the amendments in this group, and then I shall deal with the issue of the letters.

The noble Lord, Lord Empey, made a point about the potential impact of boundary changes in Westminster constituencies on the Assembly in Northern Ireland. This issue could be looked at again in the context of any reduction in the number of parliamentary constituencies. Indeed, we would expect that to happen. Under the provisions of the Bill, it would be open to the Assembly to reverse any reduction if the number of Westminster constituencies were to be reduced. Therefore, it could restore the number of representatives per Westminster constituency to six, for example, to restore the overall size of the Assembly.

I take issue with the point that the noble Lord, Lord Alderdice, made about this not being the time to give the Assembly additional powers. It is important to reassure noble Lords that there is no plan immediately to introduce all these potential changes. The Northern Ireland Office and the Government are acutely aware of the importance of timing and of dealing with this in the appropriate manner at the appropriate time. As one or two noble Lords have said, it is important that we develop and trust devolution. The point was made that the problems we have had in the past week are problems associated not with devolved government but with the UK Government. Therefore, it is not appropriate to say that because we have a problem now we should not trust devolution. It needs the opportunity to grow.

I now turn to the letters issued to so-called on-the-runs. One or two noble Lords made a point about the timing of what I shall say in relation to the debate as a whole. I remind noble Lords that we have tried to keep the House informed. We have issued two Written Statements, and in the other place there have been questions to the Secretary of State for Northern Ireland and the Attorney-General about them. I used the opportunity of the Bill to try to overcome the procedural constraints which I understand are frustrating noble Lords. I am trying to make the best use of the time available. I assure the noble Lord, Lord McAvoy, that I will do my very best, within the constraints of the procedure in this House, which is agreed with the Opposition, to ensure that there is adequate time to satisfy noble Lords on the various points that they have raised.

I entirely understand that many noble Lords are very keen to set on record their deeply felt concerns about recent developments in Northern Ireland. The Bill, of course, does not directly bear upon those concerns, but it does indeed touch on the issue of confidence in the institutions. It is important to bear in mind that, throughout the past week, it has been clear that Northern Ireland is no longer in a position in which our business can be derailed by political disagreements in quite the same way as was possible in the past. It is essential to the peaceful and prosperous future of Northern Ireland that ordinary, good government goes on. I acknowledge that this House has not yet had the opportunity for debate that many noble Lords are still seeking. However, I point out that, since the High Court judgment in the case of John Downey was delivered on 21 February, there have been, as I said, two Written Statements by the Secretary of State for Northern Ireland on 25 and 28 February. The Attorney-General has also made a Written Ministerial Statement.

Looking at the substantive facts as far as they are known, on coming into office in May 2010, the Government were made aware of a list of names submitted by Sinn Fein to the previous Government under an agreement they had reached to clarify the status of OTRs. These were people living outside the United Kingdom who believed that if they returned they would be wanted by the police for questioning in connection with terrorist offences committed before the Belfast agreement. One or two noble Lords have asked why such a scheme was not available to loyalists. It is my understanding that there had been no request for a similar scheme.

Under the scheme, the police and, in some cases, the Public Prosecution Service for Northern Ireland checked whether sufficient evidence existed in each case at that time for these individuals to be questioned, arrested or prosecuted if they returned to Northern Ireland or any other part of the United Kingdom. If it was found that they were not wanted by the police and that there was no prospect of any prosecution based on the evidence available, the individuals were informed of that fact by a letter from a Northern Ireland Office official. The letters did not amount to immunity, exemption or amnesty from arrest. I say to the noble Baroness that they were not letters of comfort. They were factual statements.

The fact that the letters did not confer immunity, exemption or amnesty was the situation in the past and remains the case now. No recipient of such a letter should be in any doubt that, if evidence emerges after the date on which the letter was issued in connection with terrorist offences committed before the Belfast agreement, they will be liable for arrest and prosecution.

[Lord Maginnis of Drumglass]

Is that not pie in the sky? The reality is that these people are now free to come back without interference from the police. Is the Minister honestly trying to convince us this evening that there would be the degree of further investigation that would produce fresh evidence? The Minister knows different, and I certainly know different.

[Baroness Randerson]

I beg to disagree with the noble Lord; I certainly do not know different. I am aware that, for example, the Historical Enquiries Team is looking assiduously at a number of cases and will continue to do so. It is important that the noble Lord takes account of the fact that there will be an inquiry into this, to which I will come in a moment. That will establish many of the facts that the noble Lord seeks.

[Baroness O'Loan]

I listened very carefully to what the noble Baroness has just said, and I want her to clarify whether there was an investigation before the issue of these letters—which proved to be a comfort to some, I have to say—or whether the police were tasked to check whether there were outstanding warrants. Had there been an investigation there would have had to have been a proper review of the investigation file in respect of specific events and the extent to which individuals were linked to them. Was that investigation conducted or was a lesser exercise conducted, which simply examined whether there was sufficient information to justify a warrant for the arrest of someone? I hope that the noble Baroness understands the question.

[Baroness Randerson]

It is my understanding that inquiries were made with the PSNI as to whether the people on the list were wanted for specific offences. However, it is important that this will be examined by the inquiry, which will examine the nature of the whole process, and we will get far more detailed answers than that as a result of the inquiry.

I was saying to noble Lords that people who receive such letters should not consider them to be an amnesty. On the basis that those were simply factual letters, the current Government agreed in May 2010 that the list of names submitted by Sinn Fein to the previous Administration could continue to be checked. That answers questions from one or two noble Lords.

[Lord Cormack]

As my noble friend will be so kind as to do some investigating, can she check on one very important thing? There was a civil case in which certain people were judged to be guilty of the Omagh bombing. Can she find out whether letters were sent to any of those people?

[Baroness Randerson]

I thank my noble friend for that question. I am certain that that will be covered by the inquiry. If it will not, I will of course ensure that he receives an answer to that question in writing.

The Secretary of State has made it clear, and I reinforce it, that if at any time we had been presented with a scheme that amounted to immunity, exemption or amnesty, we would have stopped that scheme, consistent with the opposition of both coalition parties to the previous Government’s Northern Ireland (Offences) Bill 2005, which noble Lords will recall was withdrawn because of the level of opposition to it. We believe in the application of the rule of law and due process, regardless of whether a person is in possession of a letter or will be eligible for early release under the terms of the Belfast agreement. We will take whatever steps are necessary to make it clear to all recipients of letters arising from the scheme, in a manner that will satisfy the courts and the public, that any letters issued cannot be relied upon to avoid questioning or prosecution for offences where information or evidence becomes available now or later. In the light of the error identified in the case of John Downey, the Prime Minister announced—

[Baroness O'Loan]

The Minister has just said that if information became available now or in future, there would be no impediment to prosecution. What would the situation be in respect of evidence or information which is currently in the possession of police but which has not been processed to an extent that it becomes attributable or linked to those named individuals? Will that information be taken into account or is there a line in the sand, and the only information that can be used to prosecute in the future in respect of these named individuals is that which comes to the attention of the police in the future?

[Baroness Randerson]

I fear that the noble Baroness will be frustrated by my answer, which is that that will be clearly part of the information that will become public once the inquiry is finished.

I was referring to the error in the case of John Downey. The Prime Minister announced on 27 February that a judge would be appointed to provide an independent review of the administrative scheme, and I have referred to that several times already this afternoon. I wish to set out the terms of reference of the review.

[Lord Mawhinney]

I thank my noble friend for giving way. In reference to her answer to the question asked by the noble Baroness, Lady O’Loan, when this inquiry is held and a Minister is asked the question that the noble Baroness, Lady O’Loan, has just posed, is the Minister going to answer that question? In that case, your Lordships’ House is being told that an independent inquiry is worthy of an answer but your Lordships’ House is not.

[Baroness Randerson]

I am certainly not saying that your Lordships’ House is not worthy of an answer, but I am anxious that the answer should be legally consistent and robust. This situation has arisen in the last week. It is important that the Northern Ireland Office and the Government are able to check their records to look in detail at the history of the scheme. They will do so as part of the evidence that they give to the inquiry. It is obvious that both civil servants and current and previous Ministers will give evidence to this inquiry, and it is important that the overall picture is taken to make sure that it is accurate. I am sure that, once this inquiry reports, noble Lords will want to examine the outcome of that inquiry in considerable detail.

[Lord Trimble]

The noble Baroness may or may not be aware that for the past few months a Select Committee of this House has been engaged in post-legislative scrutiny of the Inquiries Act 2005, and I am a member of that committee. It has now wound up its proceedings and finalised its report, which will be published on about 11 or 12 March. When that happens, I ask the noble Baroness to draw it to the attention of the Secretary of State for Northern Ireland, because there are things that will be in that report that will bear very much on the inquiry that has just been announced, in the light of which it would be wise to make some changes to the way in which the Government are proceeding. I do not want to go into further detail. I happen to know what is in the report, but it is not published, and it is not appropriate for me to say further than this. But I urge the Minister to make sure that the Secretary of State gets her head around some of the significant recommendations in that report.

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[Baroness Randerson]

I thank my noble friend for that comment, and I certainly give that undertaking. It might be useful if we were to have further discussions on that outside this Chamber.

It may be useful if I set out the terms of reference of the review. The aim will be to produce a full public account of the operation and extent of the administrative scheme for OTRs. I think that that answers the point made by the noble Baroness, Lady O’Loan, in terms of reassuring her that it will deal with her questions. It will determine whether any letters sent through the scheme contained errors other than, of course, the one that we know about. It will make recommendations, as necessary, on this or related matters that are drawn to the attention of the inquiry. Noble Lords will see that this is a very broad remit.

The persons conducting the review will have full access to all government papers on the operation of the scheme and will be free to interview key individuals in the Civil Service and the police, and any others who are willing to give evidence. The report should be provided to the Secretary of State by the end of May 2014 for full publication.

I say to the noble Lord, Lord Maginnis, who asked a question about the Bloody Sunday investigation, that the police must, of course, carry out investigations when serious offences have been alleged, and the actions of soldiers are not beyond that scrutiny. However, this is an ongoing investigation.

The noble Lord, Lord Alderdice, referred to disengagement by the Government in relation to Northern Ireland. I emphasise that it was the Northern Ireland parties which invited Dr Haass to help resolve critical issues. However, the Government took a very close and active part in supporting those talks, as they are doing in continuing efforts to resolve the problems. The Secretary of State has spent an enormous amount of time dealing with the parties, and the Irish Government, on Haass issues.

The noble Lord, Lord Browne, pointed out that the recent crisis concerns UK Government procedures and is not a crisis of devolution. I emphasise to the noble Lord, Lord Mawhinney, that the inquiry will reveal how, and in what way, Ministers were involved. The noble and right reverend Lord, Lord Eames, spoke very powerfully. We recognise the strong feelings about the OTR issue and, indeed, the pain it has caused the families of people who have been murdered over the years. It is important that we bear it in mind that families and friends in Northern Ireland and beyond are suffering as a result of this issue.

[Lord Maginnis of Drumglass]

I get the impression that the noble Baroness is coming to the end of her response. She has clarified the issue about the soldiers involved in the 1972 incident in Londonderry, and I understand that answer. However, I still fail to understand the issue of the 187 letters because she was not clear on that. She said that they are not letters of comfort because the people concerned can be further investigated. When I asked her whether she had knowledge of the police investigating any of those 187 cases, she talked vaguely about the Historical Enquiries Team. Therefore, I extend the question: are any of the 187 people currently being investigated by the HET? I hope by now that she has some knowledge of this.

[Earl Attlee (Con)]

My Lords, the House has been extremely flexible about what we have discussed. We are really supposed to be discussing Amendment 1 and whether or not we should adopt it. My noble friend the Minister has answered quite a few questions and we ought to let her wind up this debate and move on.

[Baroness Randerson]

I will, however, answer the noble Lord’s question. I am not speaking of specific numbers because that is also for the inquiry, but the issue is this: letters were sent following inquiries from a number of people. Those who received a letter that said “There are no known issues against you” were therefore free, if they wished, to return without fear of prosecution. Not everyone who made an inquiry received a letter of that nature. Does that make it clear to the noble Lord? By implication, therefore, there were ongoing inquiries in many cases. That is an important fact that reveals the nature of the exercise; there were and are ongoing inquiries in many cases.

[Lord Maginnis of Drumglass]

My Lords—

[Baroness Randerson]

No, I am sorry—

[Lord Maginnis of Drumglass]

I am aware of the mood of the House but we need a clear answer and we still have not got one. Out of the 187 cases, are any of them likely to be prosecuted? It is not worthy of this House and it is not worthy of the Minister that we do not have clear answers. I am finished; I have concluded what I was going to say. I apologise, but it must be said.

[Baroness Randerson]

The noble Lord is fully aware that I cannot give answers relating to the prosecution of individuals. That is certainly not a matter for a government Minister but one for the police service and prosecuting authorities. It is important that we bear that in mind in this discussion. I want to finish now and make it clear to noble Lords that the inquiry will be wide-ranging, and I have absolute confidence that in the future this House will have the opportunity to debate this issue further. I want, however, to return to the purpose of this discussion and commend the amendment to the House.

Amendment 1 agreed.

Moved by

[Baroness Randerson]

2: Clause 6, page 6, line 35, leave out “exceeding” and insert “lower than five or higher than”

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[Lord McAvoy]

It is a matter of judgment as to whether one takes that point of view or not. I do not share the noble Lord’s point of view. I still insist that the United Kingdom and Northern Ireland are not ready yet. I am repeating myself, although I was trying not to. Last week, I referred to the fact that we are still on that rocky road. This amendment does not have the support of the Opposition.

[Baroness Randerson]

I thank the noble Lord, Lord Empey, for his introductory speech. I want to deal briefly with the points he made about the letters that were sent. Perhaps I may say yet again that because these were purely factual letters, they were of course non-statutory. Therefore, they were not the subject of any formal transfer provisions in the legislation that accompanied devolution in 2010. The noble Lord asked questions about further evidence and how it would be treated. I refer him to my earlier answer to the noble Baroness, Lady O’Loan, because it is important we remember that this is the subject of part of the inquiry.

As I have said previously, the noble Lord, Lord Empey, and my noble friend Lord Lexden, have done us a great service in raising the profile of this issue through the various amendments that have been tabled. At Report, I indicated that the Government would consider the matter further and set out their position at Third Reading. I am sorry to disappoint the noble Lords but we will not be supporting this amendment. As I have said previously, the creation of opportunities for responsible opposition in the Assembly would be a progressive step. As a Member of the Government here in Westminster I know only too well how much an Opposition can keep us on our toes. I think that noble Lords have illustrated that point very effectively during the passage of this Bill. It would be a welcome development if similar arrangements were put in place in Northern Ireland. I believe that the Assembly’s reputation would be enhanced if that were to happen.

We are, however, talking about the Assembly’s internal procedures and it is important that we do not make changes to those without, at the least, having consulted the Assembly. I know that I have mentioned this previously but the Government consider that it is important that the Assembly should be consulted. “Consulted” implies that one would take account of their expressed view.

In previous debates, it was noted that the Assembly could provide for an Opposition through its existing standing orders. It was also noted that the rights accorded to an Opposition created in this way could be revoked at the behest of the largest parties in the Assembly. It is right and proper that any Opposition in the Assembly should have the ability to carry out their functions without fear of losing their status by virtue of having challenged the Executive. It is also right that opposition parties should have sufficient status if they are to be truly effective in holding the Executive to account. To the noble Lord, Lord Kilclooney, who asked what incentive there was to become a member of the Opposition, I say that the original amendment of the noble Lord, Lord Empey, envisaged the potential status that would come to opposition parties: that would be part of the incentive.

The noble Lord’s amendment attempts to offer a safeguard in the shape of the Secretary of State’s involvement. I pay tribute to the effort that the noble Lord has expended in refining his successive amendments to the Bill. However, we still do not believe that this amendment is the appropriate means of ensuring more effective opposition. We believe that it would be inappropriate in any circumstances for the Secretary of State to have such a direct role in the internal procedures of the Assembly, as envisaged in the amendment—the more so when the Assembly, as I said, has not been consulted.

The noble Lord will point out that his amendment would allow no role to the Secretary of State unless the Assembly took the first step. Even so, given that the Assembly has not been consulted, our taking this step now could be misunderstood by at least some in Belfast as hostile interference in the Assembly’s procedures. The consequences of that would be negative for the long-term prospects of facilitating opposition. As the noble Lord, Lord McAvoy, said, there has been discussion of this in recent years in the Assembly, and there was no consensus. I will add that we also see technical difficulties with this amendment. I would not normally draw attention to them, but we are now at the stage where such difficulties cannot be remedied.

I welcome the comment in Committee of the noble Lord, Lord Browne, that his party was willing to support additional resources and speaking time for genuine opposition. I hope that his party will deliver on this commitment and that other parties in the Assembly will share that view. I am also encouraged by the Private Member’s Bill brought forward by Mr John McCallister in the Assembly, and I hope that it will spur more debate. I hope that the Assembly, when it debates the Bill, will take cognisance of the various points that have been raised here.

In the mean time, the Government will impress on the parties in Northern Ireland their desire to see an effective Opposition in the Assembly and will consider ways in which we might do so. I hope that noble Lords will feel reassured that this is an issue that the Government take seriously and on which we hope to see real and meaningful progress in future. I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Empey]

My Lords, it is almost as if one is answering a debate on an amendment that one has not actually tabled. The amendment is based on the assumption that the Assembly is the initiator. That was to ensure that no harm would be done to the convention. The Minister also said that of course the Assembly has not been consulted. That is a fair point. However, neither has it been consulted—to my knowledge —about reducing in size to 90. It has not been consulted —nor did it seek to be—on the content of the next two amendments. It appears that we have a law for one process and a totally different law for another.

That is hardly surprising, and dare I say to the Minister—although it is not her responsibility—that the one big thing that the Assembly was not consulted about was what was going on behind its back. That is the elephant in the room, and has been since last week. One can be very picky about what one decides to use as a mechanism for saying that one does not want to do something, but I have to say that the Minister’s arguments were not convincing.

On the technical aspects of the amendment, I accept that there is an issue. One understands that those of us in your Lordships’ House have only limited resources to table amendments; we do not have the power of the Government. The Minister made it very clear in her closing remarks in Committee that she and the Government acknowledged that there was a genuine concern that an Opposition born exclusively out of the Assembly changing its standing orders would be vulnerable. I feel that that point at least has come across. On whether this is the right mechanism to deal with the issue, we have an open mind.

The Minister also indicated that the Government were going to set out ideas on how the matter could be addressed. So far, those have not been set out. I hope that the Minister will shortly be in a position, through the Secretary of State, to set out the Government’s proposals. Like so many other things regarding change, they are all stalled and going nowhere.

If we have done nothing else, we have raised the profile of the issue. It will not go away. I think that the necessity to have a guarantee that an Opposition cannot be abused by a majority in the Assembly has been accepted by the Minister. Of course, I acknowledge that there are technical issues, to which she correctly drew attention. On that basis, and not on the basis that the amendment does any harm or ill to the Assembly, I beg leave to withdraw it.

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Moved by

[Baroness Randerson]

5: Clause 10, page 9, line 7, at end insert—
“( ) Section 4 of that Act (transferred, excepted and reserved matters) is amended as follows.
“( ) In subsection (2), for “and (3)” substitute “to (3D)”.
“( ) After subsection (3) insert—
“(3A) The Secretary of State shall not lay before Parliament under subsection (2) the draft of an Order amending paragraph 16 of Schedule 3 (Civil Service Commissioners for Northern Ireland) unless the Secretary of State has, at least three months before laying the draft, laid a report before Parliament.
(3B) The report under subsection (3A) must set out the Secretary of State’s view of the effect (if any) that the Order would have on—
(a) the independence of the Civil Service Commissioners for Northern Ireland;(b) the application of the principle that persons should be selected for appointment to the Northern Ireland Civil Service on merit on the basis of fair and open competition; and(c) the impartiality of the Northern Ireland Civil Service.”.”

[Baroness Randerson]

My Lords, the amendment refers to the appointment of Civil Service Commissioners. At present, that is an excepted matter and this function is exercised by the Secretary of State on behalf of Her Majesty. The functions and procedures of the Civil Service Commissioners are currently reserved matters.

Northern Ireland has had its own Civil Service since the 1920s. This was referred to in our previous debate. It is quite distinct from the Home Civil Service that serves the Westminster Government and the Scottish and Welsh Administrations. The Northern Ireland Civil Service itself is and always has been a devolved matter, but a decision was made in 1998 not to devolve the Civil Service Commissioners for Northern Ireland for the time being. They, like their Whitehall counterparts, are responsible for ensuring that appointments to the Northern Ireland Civil Service are made on merit and on the basis of fair and open competition.

Clause 10 moves the appointment of the commissioners from the “excepted” category in Schedule 2 of the Northern Ireland Act 1998 to the “reserved” category. Appointment of the commissioners would then be in the same category as their functions and procedures. The Bill does not propose any immediate devolution of these responsibilities. The change it makes in constitutional categories opens the way to devolution at some future point following votes in the Northern Ireland Assembly and here.

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[Lord McAvoy]

My Lords, at the risk of upsetting the noble Lord, Lord Empey, I join him in supporting this amendment. It would have been a lot better if we had discussed this on Report but the flexibility shown by the Minister, referred to by other noble Lords, indicates that once again there has been a success in talking to people.

As the noble Lord, Lord Alderdice, said, this amendment requires the Secretary of State to lay a report in Parliament at least three months prior to bringing any order on the devolution of responsibilities in respect of the Civil Service Commissioners. The report should set out the Secretary of State’s view of the effect such an order would have on the impartiality of the Northern Ireland Civil Service, including the merit principle for appointments and the independence of the Civil Service Commissioners. The amendment marks a move towards ensuring the impartiality of the Northern Ireland Civil Service, and we welcome it.

There are key differences between the Northern Ireland Civil Service and the Westminster Civil Service. Senior civil servants in Northern Ireland have a higher profile than their counterparts in the rest of the United Kingdom. This is partly because, particularly when the Assembly has been suspended or there have been different governance arrangements, it has often been a civil servant who has undertaken the role that Ministers have here in defending or promoting policies and engaging with the public. The difference is cultural and practical. Due to these marked differences, the Northern Ireland Civil Service would benefit from a requirement for the Secretary of State to produce a report that outlines the effect such an order would have on the impartiality of the Civil Service, including the merit principle for appointments and independence of the Civil Service Commissioners. I am delighted to welcome the amendment on behalf of the Opposition.

[Baroness Randerson]

I thank noble Lords for their comments. Specifically, I thank the noble Lord, Lord Bew, for the very constructive comments he has made on this throughout. My response to his specific question is that so much of the Civil Service in Northern Ireland is already either devolved or reserved and this was the one aspect that was still within the purview of the UK Government. Therefore, it is the logical next step to put this in the same category as the procedures and functions of the Civil Service Commissioners.

I say to my noble friend Lord Alderdice and the noble Lord, Lord Empey, that there are now strong safeguards on the condition and position of the Civil Service Commissioners. Indeed, this could be a real improvement on the status quo, and it is important. The noble Lord, Lord Brooke, mentioned the comments made by the noble Lord, Lord Butler, in an earlier debate. The noble Lord, Lord Butler, has not pursued those issues with me directly but I hope that he is now content, particularly because of the commitment in this amendment to provide for a debate on the Secretary of State’s report. That ensures that the views of noble Lords who have a particular interest in this issue will be heard. I commend the amendment to the House.

Amendment 5 agreed.

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Moved by

[Baroness Randerson]

6: Clause 11, page 9, line 13, leave out from “matters),” to end of line 16 and insert “after sub-paragraph (a) insert—
“(aa) in Part VII, sections 68 to 69A, 69C to 70, 71(2A) to (2C) and Schedule 7;”.”

[Baroness Randerson]

Noble Lords will probably be relieved to hear that my comments on this amendment will be rather briefer than they were on the previous one on the Civil Service Commissioners because there are considerable parallels between the two.

Serious concerns were expressed in our earlier debates about the possibility of devolving responsibility for the Northern Ireland Human Rights Commission. These concerns were in many respects analogous to those that were outlined concerning the Civil Service Commissioners. In this case, too, we believe that those concerns deserve a very serious response. We have revised our approach in a similar way, so, as I said, I will make my comments as brief as is in accordance with being clear—I hope. As with the Civil Service Commissioners, I outlined a possible approach on Report. We have taken that approach substantially further in the amendments we have now tabled.

To recap, responsibility for appointments to the Northern Ireland Human Rights Commission is currently an excepted matter, as are the commission’s functions. Clause 11 moves these responsibilities from the “excepted” to the “reserved” category. The Bill does not, however, propose the devolution of these responsibilities at this time. In previous debates, concerns were expressed in respect of the commission’s independence should it ultimately be devolved. Your Lordships regard this as being of great importance. We share those concerns and are clear that they must be addressed before devolution. I indicated previously that any future devolution of responsibility for the Northern Ireland Human Rights Commission would be subject to public consultation. That remains the case.

These amendments require the Secretary of State to lay a report in Parliament at least three months prior to bringing any order on the devolution of responsibilities in respect of the Human Rights Commission. As I have set out in relation to previous amendments, that is intended to ensure that there is adequate time for debate and for noble Lords to influence the approach being taken in Belfast before a devolution order is laid. As before, we undertake to facilitate a debate at that point. I hope your Lordships will agree that this is a reasonable approach to ensure proper consideration and scrutiny.

These amendments would require that the Secretary of State’s report should set out the effect, in her view, that such an order would have on the commission’s independence—which is of cardinal importance to its work. I recognise the emphasis that the commission places on its compliance with international best practice, currently embodied in the Paris and Belgrade principles. My noble friend Lord Alderdice referred to this in speaking to his amendment on Report. To reflect these concerns, this amendment would also require the Secretary of State to set out in her report the effect, in her view, of devolution on the commission’s compliance with internationally accepted principles in respect of national human rights institutions.

An important issue bearing on the independence of the commission, and dealt with in the principles, is the relationship of the commission and the Northern Ireland Assembly. These amendments would therefore require the Secretary of State in her report also to address the effect of devolution on that relationship. I hope noble Lords will feel we have reflected their concerns expressed here in debate and are able to support this amendment. I beg to move.

[Lord Alderdice]

My Lords, I again welcome the amendments brought forward by my noble friend the Minister. I accept what she said about this device or resolution being similar to that in the previous question on the Civil Service Commissioners. However, the matter at issue here is very different and one of much more substantial importance. Indeed, the Minister will recall that at Second Reading this issue was one of two that I identified as being absolutely critical. In Committee, I spoke against the question that the clause should stand part of the Bill. On Report, I came back with an amendment on the question and I am very grateful to my noble friend the Secretary of State and her officials for being prepared to engage on the question.

I do not want to repeat what I said before but I point out the signal importance of this issue and its difference from the previous one. Right back in the late 1960s and early 1970s, there was pressure in Northern Ireland for a Human Rights Commission. In 1973, when the legislation was passed, a Standing Advisory Commission on Human Rights was established. That was not sufficient but it was the best that could be achieved at that particular time. It produced some very worthwhile reports, some of which were acted upon in part and some more fully. Some very distinguished colleagues, not least my predecessor as leader of the Alliance Party, Sir Oliver Napier, was a chairman of the Standing Advisory Commission on Human Rights. Eventually, we moved on. We had a Human Rights Commission for Northern Ireland. The point is that this is not something that came in with the Good Friday agreement. It did not arise lately. There was absolutely critical demand and pressure for it from the 1960s and onwards. It continues to be of signal importance.

In her amendment, my noble friend has very helpfully identified a similar procedure to the previous issue. The Secretary of State would, at least three months in advance, bring forward a report identifying three very important issues: the independence of the Human Rights Commission, its relationship with the Northern Ireland Assembly, and the international commitments and responsibilities of Her Majesty’s Government. That is extremely good. She has also said, again very helpfully, that in the event that your Lordships’ House wanted to debate such a report, it would be given an opportunity by the Government to do that, and that the content of that debate would be taken seriously in the construction of the draft legislation. That is all extremely helpful and very welcome.

However, I feel strongly about the significance of this issue. If the Government did not bring forward a satisfactory report or set of proposals, this is of such significance that it is the kind of thing that one would be prepared to vote down. Not many things come forward here in terms of Orders in Council where your Lordships’ House is called on to use what we might describe as the politically nuclear option. This matter of the Human Rights Commission is of such importance that a Government—not just this one; it is likely that a subsequent Government might find themselves in this position—should not be under any illusion that if this matter were to come forward in an unsatisfactory way, they would face very serious opposition. I would be part of that opposition.

My noble friend has listened seriously to the concerns of the moment. The Government are clearly intent on making this facility available to the Northern Ireland Executive, whether or not they wish to take that up. The Minister has listened seriously and there has been a reasonable response. If all the things in this amendment are fulfilled as she described I would be more optimistic that a positive outcome might be possible. On that basis, I support her amendment.

[Lord McAvoy]

My Lords, the Opposition support this amendment and commend the Minister and the noble Lord, Lord Alderdice, for their discussions and decision to bring it forward. Everyone agrees about the fundamental importance of human rights to the exercise of devolved government in Northern Ireland. It is also agreed that this is ensured through the independence of the Human Rights Commission and the impartial nature of its work. The preservation of this impartiality will be foremost in discussions when we come to actually devolve these powers. The Government’s amendments mark a move in the right direction to enable that. They have our full support.

[Baroness Randerson]

I thank the noble Lord, Lord McAvoy, for his support for this amendment and amendments moved throughout this afternoon. To answer my noble friend Lord Alderdice, we believe we have now taken a belt-and-braces approach to this issue. We accept its considerable importance but surely it is of the same order of importance to Northern Ireland as policing and justice, both of which have been successfully devolved to the Northern Ireland Assembly. The Government hear my noble friend’s concerns and take note. We will certainly bear in mind that his intention would be to vote against anything that did not come up to what he judged to be the appropriate approach.

On the question asked by the noble Baroness, Lady O’Neill, we are well aware of the impact of one human rights institution on another in terms of their reputation. That is one reason why we may be looking towards the Scottish model, because it has been successful in providing answerability to the Scottish Parliament. Although that is not absolutely specified in the report that the Secretary of State would make to Parliament, it is in the amendment as something of which account has to be taken.

A future Government would be mindful, of course, of the risks to the UK’s reputation in human rights issues as a whole. I commend the amendment to the House.

Amendment 6 agreed.

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Moved by

[Baroness Randerson]

7: Clause 11, page 9, line 16, at end insert—
“( ) In section 4 of that Act (transferred, excepted and reserved matters), after subsection (3B) (as inserted by section 10) insert—
“(3C) The Secretary of State shall not lay before Parliament under subsection (2) the draft of an Order amending paragraph 42(aa) of Schedule 3 (Northern Ireland Human Rights Commission) unless the Secretary of State has, at least three months before laying the draft, laid a report before Parliament.
(3D) The report under subsection (3C) must set out the Secretary of State’s view of the effect (if any) that the Order would have on—
(a) the independence of the Northern Ireland Human Rights Commission;(b) the application of internationally accepted principles relating to national human rights institutions; and(c) the relationship between the Northern Ireland Human Rights Commission and the Assembly.”.”

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Moved by

[Baroness Randerson]

8: Clause 28, page 17, line 30, at end insert “(but see subsection (2A) below)”

[Baroness Randerson]

My Lords, as noble Lords will be aware, Clause 24 amends an order-making power already passed in the Protection of Freedom Act 2012 to allow us to take forward by order the changes to the new biometric framework in the reserved and excepted fields, which the Northern Ireland Department of Justice could not legislate for within its Criminal Justice Bill, which received Royal Assent in April 2013. It will allow us to bring the position in Northern Ireland with regard to the retention, use and destruction of biometric data in the interests of national security, or for the purposes of a terrorist investigation, into line with that in Great Britain.

The amendment makes a technical change to the commencement of Clause 24. As the Bill is drafted, the clause would come into force on the day the Act is passed. However, the order-making power in the Protection of Freedoms Act—paragraph 8 of Schedule 1 —is not yet in force. The proposed change to commencement is intended to avoid a situation where the amendment to the order-making power in Clause 24 comes into force before the power itself, which would have no practical effect and which I understand is technically undesirable. This is a technical change to the clause which I hope that the House will feel able to support, as it is not an issue that has raised concern previously.

Before I sit down, I take this opportunity to thank all those who have participated in debate on the Bill. Any Minister attempting to shepherd a Bill through this House feels some trepidation because of the great reservoir of expertise and experience here. As a relative newcomer to Northern Ireland, I was certainly very aware that I could not hope to match the knowledge of some noble Lords, who have first-hand experience of many of the events which led to the settlement we have today.

I also want to thank the Bill team and other Northern Ireland Office officials, who have worked so hard on the Bill and have made huge efforts to address and take account of the concerns raised by noble Lords in debate. I am grateful for the patience and the willingness that has been shown by noble Lords to attend not only debates but the many meetings we have organised outside this Chamber. I respect the persistence that has been evident in raising those issues of most concern. I believe that the Bill has been greatly improved as a result of our dialogue.

We have developed our understanding of some of the issues which set the context for this Bill: the nature of devolution; the limits of government power and influence in devolved matters; the operation of the agreements which established the current settlement in Northern Ireland; and the scope for development of those institutions. Those debates are important, not just for Northern Ireland, but for our constitution throughout the UK.

I introduced this Bill on a note of optimism as a Bill for more normal times. It is the first Bill in recent times not to have been subject to emergency procedures in Northern Ireland. I cannot conclude our debate without acknowledging the extent to which political peace has been challenged, not least by the events of the past week. It has been a difficult time for Northern Ireland, particularly for those who have suffered as a result of the atrocities of the past. Our thoughts must be with them at this time.

I believe that there is still reason for cautious optimism. Despite the real anger and hurt felt by many on both sides of the community, the devolved institutions have avoided crisis and devolved government continues. This underlines the progress that has been made in Northern Ireland as a result of the peace process. While ensuring that we deal properly with the past, it remains essential that our determination to build a shared and prosperous future in Northern Ireland is unwavering.

The Bill is, I believe, a modest way of making a contribution to fulfilling that objective, and I commend it to the House.

[Lord McAvoy]

My Lords—

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Moved by

[Baroness Randerson]

9: Clause 28, page 17, line 36, at end insert—
“(2A) If paragraph 8(1) of Schedule 1 to the Protection of Freedoms Act 2012 comes into force on a day after that on which this Act is passed, section 24 comes into force immediately after that paragraph comes into force.”

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Moved by

[Baroness Randerson]

That the Bill do now pass.

[Lord Brooke of Sutton Mandeville (Con)]

My Lords, I would like to make a brief footnote to the debates that we have just had. My noble friend Lord Mawhinney made reference in debate on Amendment 1 to my noble friend Lord King of Bridgwater and myself. I did not intervene in that debate, especially on the subject of secret deals, but certainly my basic attitude to such matters was learnt at my mother’s knee. I mention this because I recall that the Reith lectures given by the noble Baroness, Lady O’Neill of Bengarve, treated on the same matter. It is happy that she is here so that she can reprove me if I misrepresent her. Her view on behaviour was that those people with whom one has contact react and respond to the way that you treat them. If you communicate liking, they are likely to behave in a likeable manner while if you show that you trust them, they are likely to behave in a trustworthy manner. In both these examples, the converse is true. Secret deals are therefore fundamentally counter- productive. I once worked for a great American who taught me that the strongest argument against falsehoods is that the truth is much easier to remember. I am not seeking a response.