Abortion (Northern Ireland) Regulations 2022

Baroness Smith of Basildon Excerpts

Tuesday 21st June 2022 Lords Chamber

We should think very carefully about waving this legislation through today. If the noble Baroness, Lady O’Loan, presses her amendment to a vote, I will certainly support her.

[Baroness Smith of Basildon (Lab)]

My Lords, it is on days such as today, as the Minister may agree, that there is a feeling of déjà vu. I think he is the third Minister I have faced at the Dispatch Box on this issue, and the debate has been very similar to previous ones. I thank him for his very measured tone and the detail in his speech introducing this matter. I will not repeat the legislative background; noble Lords who have spoken both for and against will have heard what he said.

I suspect that there is a great deal of regret from the Minister in bringing this forward, because it is quite clear from the beginning of this debate—I looked up my previous speeches over three or four years—that Ministers were doing everything they could to encourage and support Northern Ireland to provide the services itself. There has certainly been no indication at all from the Government, as far as I am aware, that they wanted to be in this position. They wanted Northern Ireland to ensure that there was provision of services in the way the law requires.

I also thank the Secondary Legislation Scrutiny Committee, which has not been mentioned so far, which looked at the detail in its very helpful report. I hope the Minister’s department and other departments will take note of the comments made about the inadequacy of the Explanatory Memorandum. I have raised this kind of issue previously in the House. However, I commend the responses; once it was prompted by the committee, the department provided better, fuller and more detailed answers to the points raised. I hope it will become the norm that Explanatory Memoranda will provide more detail than we saw in this one, as the information was provided only later when the committee asked for it.

As we have heard, this is an issue where feelings run deep, as is any issue regarding abortion. It is significant that a number of the speeches made about the constitutional position of devolution came from Members who have already expressed a deep-rooted opposition to the principle of abortion taking place. In some ways, I commend the noble Lord, Lord McCrea, because there was an honesty in his speech, which, as he saw it, was about the rights of the unborn child, not the constitutional issues. For him, this is a matter of principle; he thinks that abortion should not take place and was quite honest about it. He did not deal with the wider issue, which the Minister dealt with in his speech and will no doubt deal with again at the end.

We heard noble Lords refer to the debate on Roe v Wade taking place in America; the noble and learned Lord, Lord Clarke, made a wise intervention on this point. There is always a danger that you end up in a ridiculous situation whereby, because of the actions of politics, women living in one state move to another or travel elsewhere to access services they were previously able to access in their home state.

That is what is happening in Northern Ireland. The noble Baroness, Lady O’Loan, said that abortion is available in Northern Ireland. Nobody is suggesting that no abortions have taken place. The Minister never made that point. The point is that, as previously agreed by your Lordships’ House, the provision of services is inconsistent, sporadic and not available to everybody who requires them. The noble Baroness shakes her head, but if that were not the case we would not need to be here today. As I said, time and again, the Government have provided opportunities for the Department of Health to bring forward proposals for the provisions required, as we have debated previously, but that has not happened.

I welcome the fact that the Government are still engaging with the Department of Health to ensure that there is still opportunity for services to be provided. However, I am conscious that, from what he and the Secretary of State in the other place have said, there is no intention to delay this matter further. I think the Government recognise this; as the Secretary of State said, “I fully suspect that we will have to provide these services.” Can the Minister say anything about the timescale? That would be helpful because this debate has been rather long and drawn out; there is an appetite for change.

A lot has been made of opinion polls and the views of people in Northern Ireland. I think the Minister will rely on them in his response, but I would point out that the 2019 internet poll, referred to several times, showed the majority of people not supporting the question about the imposition of changed abortion legislation by the Westminster Government. However, a 2020 poll showed that only 16% of people in Northern Ireland thought that no change to current abortion legislation was needed. A lot can depend on how the question is asked, but the idea that there is no appetite for change is wrong. Indeed, in the other place, Stephen Farry spoke about a vote in the Northern Ireland Assembly—he thought it was at the beginning of March—when a Private Member’s Bill that sought to adjust some of the existing legal provisions around access to abortion was defeated by a majority of MLAs. There is movement in Northern Ireland now and there are different views; we should take account of all of them.

We will support the regulations because it is the right thing to do. I welcome that the Minister has recognised the deep-seated views on this issue. However, in addition to my question on timescales, I have a second question about the extraneous services around abortion services. They are not a stand-alone provision. The provision of sexual health services and the whole wider landscape of reproductive sexual health is really important. I want to be assured by the Minister that, alongside the provision of abortion services, advice on contraception and sexual health will be provided. These things come as a package; they are not something to be seen in a vacuum. I hope the Minister can say something about that and about education on these issues, because that will be extremely important going forward. As I say, we should not see these services in a vacuum.

I thank the Minister for the way in which he presented his case. The noble Baroness, Lady O’Loan, will decide whether she wishes to put her amendment to a vote. If she does so, we will not support her; we will support the Minister.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Baroness Smith of Basildon Excerpts

3rd reading
Monday 24th January 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I promise to be slightly less dramatic. I first want to express my sincere gratitude to all noble Lords who have participated in proceedings on this short Bill and to thank them for their thoughtful and sometimes challenging contributions, not least on the very odd occasion when the debate has strayed beyond the narrow confines of the Bill.

I welcome the positive engagement and constructive support for the Bill from all sides of the House and put on record my thanks to the noble Baroness, Lady Smith of Basildon, the noble Lord, Lord Coaker, the noble Baroness, Lady Suttie, and all noble Lords from Northern Ireland itself.

I also thank the Bill team at the Northern Ireland Office, officials in the Northern Ireland Assembly and, last but not least, my noble friend, Lord Younger of Leckie—not just for his support and very wise counsel on this piece of legislation, but also for his handling of much Northern Ireland business in your Lordships’ House in recent times.

The Bill has been debated extensively during its passage and I am sure that noble Lords will be relieved to hear that, in accordance with Standing Orders, I do not intend to rehearse its provisions again. It is a faithful implementation of a number of measures contained in the New Decade, New Approach document, which paved the way for the re-establishment of devolved government in Northern Ireland in January 2020 and was itself the product of detailed and lengthy negotiations over a period of nearly three years.

The purpose of the Bill is to seek to give greater resilience to the institutions established under the 1998 Belfast agreement and to provide for greater continuity in decision-making. I am pleased that with the support of opposition parties we have been able to agree on early commencement of the important measures contained in it.

This Government remain deeply committed to the implementation of the Belfast agreement and its successors, and to building a stable, prosperous and shared Northern Ireland, within this United Kingdom, for everybody—a Northern Ireland where politics works, the economy grows and society is stronger and more united. I hope that this Bill, while in no way a panacea, can make a contribution to supporting those fundamental objectives. I beg to move

[Baroness Smith of Basildon (Lab)]

My Lords, I add our thanks to the Minister. As we have just heard in the drama a moment ago, a Minister’s life is not an easy one. I think that we are all still reeling from the shock resignation of the noble Lord, Lord Agnew, who clearly cared a great deal about his work. His colleagues will mourn his loss from the Front Benches, and this House will admire his integrity. He may go down in history for the way he resigned, showing his integrity.

I thank the Minister for his work on this Bill, which is, I think, the first one that he has taken through the House, although his commitment, interest and work on Northern Ireland issues for many years have preceded him. In many ways this was a short, perhaps relatively non-controversial, Bill, though we had our moments. I thank him for the way in which he and his Bill team engaged with noble Lords across the House. I am sure that the noble Baroness, Lady Suttie, if she were here, would say the same, and would thank him for his meetings.

We had our own dramatic moments as we prepared to come to the House to debate a particular amendment. We heard the Prime Minister say, at Prime Minister’s Question Time, that that amendment would not be moved, when we had all expected it in the afternoon. So perhaps this is the time for dramatic moments in the House. Nevertheless, I add our commitment and our thanks to the noble Lord. We await the further Bill on Northern Ireland that we were supposed to be getting and had expected—the legacy Bill—which will also, I am sure, involve detailed discussions, and I hope that he will be willing to engage in the same way with us on that Bill as on this.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Baroness Smith of Basildon Excerpts

Committee stage
Monday 13th December 2021 Grand Committee

Moved by

[Baroness Smith of Basildon]

1: Clause 2, page 2, line 35, leave out subsection (3)
Member’s explanatory statement
This is a probing amendment, to probe what powers will be available to a Minister who remains in office for the provided period of up to 24 weeks, or 48 weeks, following an Assembly election.

[Baroness Smith of Basildon (Lab)]

My Lords, I welcome the Minister to what is probably his first Committee on a Bill in his new position. I am sure he will enjoy the experience in the Moses Room.

This is a probing amendment in my name and that of my noble friend Lord Coaker about an issue that I raised at Second Reading. Clause 2 advises that Ministers will no longer cease to hold office after the election of a new Assembly, and provides for a maximum of 24 weeks after an election, or 48 weeks since there has been an Executive in place, whichever is the shorter, in which Ministers may continue to hold office. We support the clause, but it would be helpful to have some guidance and clarity from the Minister on this issue.

I appreciate that some of this was first mentioned by Karen Bradley when she was Secretary of State back in 2018, when the Northern Ireland Civil Service was taken to court because it was felt that civil servants had exceeded their powers in taking decisions without ministerial direction. There has to be a way through that. When I lost my seat in 2010, I remained a Minister, but only for five days. You could say that under direct rule the situation was self-limiting for those of us who were Ministers, as we were not elected by anyone in Northern Ireland in terms of what we were able to do. The key question raised at Second Reading was what powers these caretaker Ministers will have and if there is any limit on those powers. In a number of areas there is a lack of clarity.

I was surprised by the comment made in the House of Commons by the Minister, who said that the courts will be able to deal with this. He said:

“given that legal safeguards are already in place”,

there is no need for additional statutory clarity, and:

“We also know that the courts are ready to step in, should Ministers act unlawfully.”—[Official Report, Commons, Northern Ireland (Ministers, Elections and Petitions of Concern) Bill Committee, 6/7/21; col. 70.]


I am not clear what a Minister “acting unlawfully” would be or where the limits would be. If the decisions taken are going to be controversial, some decisions can be delayed, but depending on where they are in the cycle of that decision-making process or when the Executive are likely to be up and running again, there may be quite a time lag.

It is better to know at this stage where the balance is and what the Government’s thinking is. Clearly, to have ministerial accountability is significantly better than leaving civil servants in the position where they are trying to make decisions without any ministerial direction, but I am really not sure where the Government think the clarity is. What is the point at which Ministers could not take a decision? It could be that a Minister had lost their seat or decided not to stand again, but remained a Minister. Where are the limitations on ministerial power if they are a caretaker Minister? I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, following on from the noble Baroness, Lady Smith, on this issue, it is an important area that deserves greater clarification.

We all remember the period when Northern Ireland was deliberately left ungoverned and civil servants had the most difficult task of all: having to keep their departments ticking over with no real precedent for any guidance as to the extent of their decision-making powers. Some Permanent Secretaries went a little further than others. I remember speaking to one particular Permanent Secretary who indicated that there was a live debate continued among the Permanent Secretaries as to the extent of their powers, and at one stage whether they should be doing some of the things that they were doing in the absence of political guidance. There was certainly a difference in emphasis.

We need to understand, and perhaps the Minister could clarify, what in essence the difference will be between the sorts of decisions that civil servants were taking during the period that we all know about, the three-year interregnum where there were no Ministers, and the decisions that Ministers in these circumstances will be able to take. Could he, for instance, give me a concrete example of a decision that a Minister could take as a caretaker under this that a civil servant could not have taken? I would imagine that they are pretty limited.

There has been reference to carrying on with the decisions that have been made by the Executive in the run-up to caretaker Ministers being in place and that such Ministers should follow the trajectory of the Executive in decision-making going forward. Thinking of the current circumstances regarding the Budget, which appears not to have found agreement in Northern Ireland—there is apparently some limited agreement on the priorities within it, but not all departmental allocations—yet it is out for consultation. What would an interim Finance Minister be able to do in such circumstances? A certain amount of guidance would have been given to him in this situation, but not any kind of final decisions on allocations. So, again, it is not an entirely academic hypothesis that a Finance Minister could find himself in such a position as a caretaker with the Budget in this kind of condition.

I know these are difficult circumstances, and we are trying to find a balance between having no governance and leaving the Province in some kind of sensible situation when it comes to governance in the absence of a full Executive, but I would be grateful if the Minister could try to address those particular issues.

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[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for his explanation. I hope that it works in practice. My greatest fear is that if we do not have adequate clarity now, there could be some confusion or conflict later on, which is exactly what the Bill seeks to avoid, but I do not intend to pursue my amendment at this stage. I am not 100% certain that it is absolute guidance, but I am confident that it is significantly better than where we are at present. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Lord Trimble (Con)]

My Lords, I support, in general terms, the amendments that have been proposed by my noble friends and by the noble Baroness, Lady Ritchie. They carry me back to past events. I was the first First Minister when Seamus and I were elected. We both regarded it as very important that we should be elected jointly, because that would carry to the public the image and the reality that we were going to work together and with due regard to the views of the various parties. Consequently, I am very much in favour of returning to that. In the circumstances, I would be pleasantly surprised if the Government did so, and it would be a good thing for them to do.

I have some reservations about the references in Amendment 3 to the First Minister and Deputy First Minister as “Joint First Ministers”. They have the same powers, but the difference in terminology is a matter of who goes first into a room and who speaks first. It is a formal matter. The Lib Dems’ representative in the Commons may not realise that precedence matters. I leave you to reflect on that. Precedence matters, and speaking first makes a difference, even if you are speaking on the same subjects.

Some of the other things that have been mentioned in passing here reminded me of when we were in office later and could see that the opinions of the electorate were shifting. We were thinking about the position of Sinn Féin, so we quietly sent a little message to Sinn Féin saying that it should reflect on whether it could provide a Deputy First Minister who would be acceptable to the public. I notice that it has followed that in the way in which it has handled things in the Assembly.

As to the points from the noble Lord, Lord Alderdice, about what might happen on or after an election, just wait and see. Do not jump to conclusions in the way you are at the moment, because it is not particularly useful.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise only briefly on this issue to concur with some of the comments that have been made. As the noble Baroness, Lady Suttie, said, there is always some hesitation on the part of those who were not there to revisit some of these issues. The noble Lord, Lord Rogan, made a point about those who compromised and found that the Belfast/Good Friday agreement was not perfect. Perfection can often be the enemy of any progress at all, so I have enormous admiration for those who were able to compromise to reach what has been a long-standing and impressive agreement. Along with others who have spoken, I put on record my tributes to those who were mentioned.

I saw the Minister wince slightly when the noble Lord, Lord Alderdice, talked about how much more confidence he has that there may be some progress on various issues now that the Minister is there. My only comment is: no pressure there then. I could tell him not to worry about it, because this is an issue where people want to and can find agreement, and there is always good will in the discussions. I remember, during direct rule, when I took over from the noble Lord, Lord Empey, that he was nothing but courteous and helpful to me when I was making my way as a Minister in Northern Ireland.

We are very supportive of what the noble Baronesses, Lady Ritchie and Lady Suttie, and the noble Lords, Lord Empey and Lord Rogan, are trying to achieve with these amendments. There is value to a more consensual approach to this, as the noble Lord, Lord Trimble, outlined, but I suspect the Minister will say that this discussion is for outside this Bill, because the Bill is to progress issues in the NDNA. Nevertheless, I think there is an opportunity for the Minister to reflect on the comments that have been made. Even if they are not for this Bill, there could and should be discussions on them to see if further progress can be made and if there are benefits to taking such an approach.

[Lord Morrow (DUP)]

My Lords, I am listening intently to this debate and I am beginning to wonder if I live in Northern Ireland at all or if I lived there during the making of the Belfast agreement. We have heard all the woes being poured on to the St Andrews agreement. That is unkind to say the least. If politics has been—and it is—sectarianised in Northern Ireland, it was the Belfast agreement that did that. The Belfast agreement said, “You must nominate as a unionist or a nationalist”. That did not come out of St Andrews; it was the brainchild of the Belfast agreement.

Furthermore, during the early stages of the Government and the Assembly in Northern Ireland, it was all stop-go. The Assembly was more in abeyance than it was working at that time. It has to be said—I am not sure that it gives me a lot of pleasure to say it—that during the time when Peter Robinson and Martin McGuinness were First and Deputy First Ministers there was more cohesion within the Assembly and it had a longer duration of continued government. It was also Peter Robinson and Martin McGuinness who had to stand together and condemn the shooting of a police officer by dissident republicans. Those of us who live there can well remember that. Those were extremely difficult times. If there ever was a time when government could have fallen apart, it was at that time, but it was due to the influence of Peter Robinson and the late Martin McGuinness that government continued, though not without difficulties.

I hasten to add that I do not think there will ever come a day when anyone, irrespective of what position they take, can stand confidently and say, “The Assembly is here for ever and a day.” I have said that often in public meetings. It is the type of animal that is going to be always trying and will come through its difficulties. But please do not say that all the problems emanate from the St Andrews agreement. That remark does not sit well at all.

There are those who want to blame some other exercise for the position that the Assembly finds itself in from time to time. Decommissioning has been mentioned. We, and those who wanted to listen, were told that the release of republican prisoners was never in the agreement. I think that the noble Lord, Lord Alderdice, was the closest to it when he said that he had conditioned it by saying that if that had to happen—I do not want to misquote him—then it was on the proviso that the weaponry that was used would be decommissioned and put away. Let me say this clearly: when decommissioning did not happen and the prisoners were released, we were told that that was never signed up to. Let us not paint a picture that was not real at that time. I know that, when you look back on these things with hindsight, you can think things through and say, “Well, we should have done this and we should have done that.” Maybe we are all in that position from time to time, but let us not paint it as if it was something different.

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Moved by

[Baroness Smith of Basildon]

6: Clause 4, page 5, line 34, at end insert “, including by supporting the establishment of the consultative Civic Forum, as provided for under paragraph 34 of Strand One of the Belfast Agreement, and obtaining its views on social, economic and cultural matters;”
Member’s explanatory statement
This would add the re-establishment of a consultative Civic Forum for Northern Ireland, to enable the Assembly to obtain views on social, economic and cultural matters as envisaged in the Belfast (Good Friday) Agreement 1998, to the matters that Ministers must have regard to under the Ministerial code.

[Baroness Smith of Basildon (Lab)]

My Lords, this is another probing amendment, which I hope the Minister will look on favourably. The amendment requires Ministers to consider the re-establishment of the Civic Forum for Northern Ireland as one of the issues

“that Ministers must have regard to under the Ministerial code.”

Noble Lords will be aware that the Civic Forum was provided for by strand 1 of the Belfast/Good Friday agreement. At the time it comprised representatives of business, trade unions and the voluntary sector. I believe the voluntary sector was the largest part, with 18 members. There were members from agriculture and fisheries, arts and sports, business, the churches, community relations, culture, education, trade unions and also those who identified as victims of terrorism. It met 12 times in total between 2000 and 2002; then, of course, the institutions were suspended.

We raised this at Second Reading in looking at parts of the Good Friday agreement where, despite good intentions and agreements that were made, those agreements have not been fulfilled. That comes back to the point we were discussing earlier on New Decade, New Approach. It is difficult when agreement is reached but the implementation becomes somewhat elusive at some point, as I know noble Lords will be aware.

There is an opportunity, when people get disillusioned with politics—and Northern Ireland’s politics are perhaps more difficult than those anywhere else in the UK at times—for communities and the public to engage better with issues and debates, particularly when issues are cross-community or there are community differences, to have a full discussion and debate without any time constraints or legislation, just to look at things and talk things through. It is about engagement. When trust in politics is low—particularly, as we have seen, with Christmas parties and other issues—anything that engages people to understand and be part of the process, even slightly at arm’s length, can be an advantage.

When this was debated in the other place, my colleague Alex Davies-Jones said:

“The Good Friday agreement was about a new participative politics.”


The Minister will be aware that

“The argument the Women’s Coalition put forward for a civic forum was as an advisory second chamber”—

not unlike your Lordships’ House, but perhaps with even less authority than your Lordships’ House—

“designed to give the trade union movement and businesses, as well as the community and the women’s movement, a place in political policy making. The prize of that expertise and knowledge is a durable solution that keeps communities on board, one that I hope will be considered going forward.”—[Official Report, Commons, 26/10/21; col. 169.]

When it was debated in the other place, the Minister did not respond to this or give any answer. I am raising it today is in the hope that the Minister will have something more to say about this and any views the Government may have. I raise this as quite often in government thinking—I exclude the Minister from this entirely—Northern Ireland has been an afterthought. We saw it with Brexit; people did not fully realise the implications for Northern Ireland and it was never talked about during the whole Brexit debate, as we will probably hear about later. There is a need for leadership and proactive interest in Northern Ireland. Looking at issues such as reinstating the Civic Forum could be extremely beneficial. I really want to test where the Minister, on behalf of the Government, is on this one.

We will hear from the noble Baroness, Lady Suttie, and I do not want to pre-empt anything she will say. However, looking at her amendment, which I am sure she will speak to in a moment, there is quite an interesting debate. If you look at the current designations in the Assembly, there are 40 unionists, 39 nationalists and 11 other, and it is quite possible that in the future a different kind of balance could be returned. I want to listen to what she has to say on this, but the general question of designations, how they work and what that means for power-sharing is a worthwhile discussion for your Lordships to be having and indeed for the Minister to respond to. I look forward to hearing what the noble Baroness has to say and to the Minister’s response. I beg to move.

[Baroness Suttie (LD)]

My Lords, Amendment 7 in my name is intended, as the noble Baroness, Lady Smith, just said, as a probing amendment designed to give the Committee the opportunity to discuss the issue of designations. As I said previously, perhaps in response to the noble Lord, Lord Trimble, I talk about some of these issues with a degree of hesitancy when there is quite so much experience in the Room. However, as someone who has been following Northern Ireland politics now for several years, I none the less feel that these are issues worthy of debate. I also declare an interest as a member of the Northern Ireland Alliance Party.

As noble Lords will know, under the Assembly’s standing orders one of the very first things Members of the Assembly are required to do is to enter in the roll a designation of identity: nationalist, unionist or other—my colleagues in the Alliance Party always have to put themselves in as “other”. Designations are required for the operation of cross-community votes in the Assembly. Cross-community support is required for a number of matters in the Assembly, including the election of the Speaker, changing the standing orders, and agreeing that a reserved matter should become a transferred matter and vice versa. However, the operation of cross-community votes means that the votes of some Assembly Members count twice, whereas others count only once. Under the current calculations, the votes of nationalist and unionist MLAs count twice. If an MLA is designated as other, their vote counts only in determining either the support of the majority of Members or the support of 60% of Members voting.

Why is that important? It is not just that there is an inherent unfairness in the system as I have described it but I believe there is also a broader principle at stake; that is, more than 20 years after the signing of the 1998 agreement, why are we continuing with a system that perpetuates divisions, as the noble Baroness, Lady Smith of Basildon, said, rather than creating a system that brings people together? In speaking to my friends in Northern Ireland, many of whom are political but some of whom are not, I am increasingly struck by the desire for a united society where everyone is treated equally, and yet the Assembly continues to represent institutionalised division through the outdated designation system. Northern Ireland has moved on considerably since the Good Friday/Belfast agreement was signed. Increasingly, a growing number of people do not want to be identified by community backgrounds. Northern Ireland society is becoming more mixed and more diverse. If we want seriously to increase participation in Northern Ireland politics, particularly from those with ethnic backgrounds, and make Northern Ireland politics more diverse, we should recognise that those who are not traditional unionists or nationalists are not second-class.

I am sure that the Minister will say that once again this is beyond the scope of the Bill. None the less, the purpose of this probing amendment is to ask the question: when do we think that politics in Northern Ireland can begin to normalise and move forward?

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[Lord Caine (Con)]

My Lords, I am extremely grateful to the noble Baronesses, Lady Smith of Basildon and Lady Suttie, for the amendments in this group.

I shall begin with Amendment 6 in the name of the noble Baroness, Lady Smith of Basildon. I acknowledge the importance of civic engagement to politics in Northern Ireland and I recall that at times of political difficulty in the past civil society has played an important role in trying to move things forward. Indeed, in the discussions that ultimately led to New Decade, New Approach, there was a body called “Make it Work”, which was a collection of people from across civil society in Northern Ireland. It had a positive impact on the political debate, bringing about a situation in which, eventually, the institutions were re-established.

However, I gently suggest to the noble Baroness that, interesting as her amendment is, using the ministerial code, which essentially deals with ministerial behaviour, as a vehicle for pushing forward policy outcomes and for public policy purposes might not be appropriate.

As the noble Baroness pointed out, we all know that the Civic Forum provided for in the 1998 agreement and the 1998 Act last met in 2002. Since then, various proposals have been put forward to revive it or something akin to it. The Stormont House agreement, in which I was involved seven years ago, almost to the day, proposed a more compact civic advisory panel. As the noble Baroness, Lady Ritchie of Downpatrick, made clear, New Decade, New Approach proposed that that the existing compact civic advisory panel be reformed to include a renewed membership appointed by way of a public appointments process within six months of the Executive returning. This panel, whenever it is established, will be invited to propose the most appropriate model of engagement on specific issues, including one citizens’ assembly a year.

Having listened to the debate and taken on board the contributions of noble Lords across the Committee, including the noble Lords, Lord McCrea of Magherafelt and Cookstown and Lord Hay of Ballyore, and my noble friend Lord Lexden—who I am delighted to see in his place today, as he interviewed me for my first job 34 years ago in the Conservative research department—I note that this is a matter on which there are clearly differences of opinion.

In summary, I hope that the Executive will make progress on what was agreed in New Decade, New Approach. I take the point made by the noble Baroness, Lady Ritchie, about the time that has elapsed since the re-establishment of the Executive. These are primarily matters for the Executive. I should also point out that the Civic Forum is already legislated for in Section 56 of the Northern Ireland Act 1998, so I am not sure that further legislation in this respect is required when it is already on the statute book. On that basis, I urge the noble Baroness to consider withdrawing her amendment.

Amendment 7, in the name of the noble Baroness, Lady Suttie, seeks to change the definition of “cross-community support” in a way that goes beyond the proposals to reform the petition of concern in New Decade, New Approach, although I appreciate that the noble Baroness’s purpose in tabling the amendment is to have a broader debate on designations in the Assembly. That was brought out in noble Lords’ contributions. I point out that, if we were to move to the model as drafted in her amendment, it would give a small minority of MLAs who designate themselves “other” a veto across a wide range of Assembly business and, indeed, could almost paralyse the entire functioning of the Assembly. While I appreciate that these are important matters for debate, the amendment would be defective in operation.

I also appreciate that the current system of designation has not always been universally popular or accepted. In her comments, the noble Baroness reflected the long-standing position of the Alliance Party in Northern Ireland, which has consistently argued, over many years, that the designation system institutionalises sectarianism. It has proposed a move away from that and the introduction of weighed majorities, along with a move away from mandatory coalition to a more voluntary arrangement.

Whatever the merits of these—and one thing I am not going to do is speculate on the possible outcome of the Assembly election in May—the noble Baroness will not be surprised to hear me say that they are not changes that this House can unilaterally make during the passage of this Bill. At the time of the 1998 agreement, the current arrangements were considered the best way to secure cross-community consent for legislation. If, in the future, there should be sufficient consensus—I return to that phrase time and again—to move away from the current designation system to an updated model, we would be happy to look again at this question, but I suggest that this is not quite the moment and urge the noble Baroness not to move her amendment.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his response. Indeed, my amendment is probing. I think I said at the beginning that all the amendments in my name and that of my noble friend Lord Coaker are probing amendments to tease out a bit more of the Government’s thinking on a number of these issues. That has not always been easy, and I am grateful to the Minister for taking the time to respond. Had the Minister in the House of Commons responded on this point when it was put to him, we would not have felt the need to raise it today.

For us, this is an issue about trust and engagement in the political process, which all want to see improved across the UK. There are certainly areas where it is lacking. As the noble Lord, Lord McCrea, would say, too often it is the usual subjects. The whole point of something like this is to try to avoid the usual subjects and to reach out to people who do not always feel that their voice is heard, but have a contribution to make. That is something for which we should all strive at different times, however we are engaged in political life and at whatever level.

I am grateful to the Minister. It was never my intention to push this further, but it is useful to get the Government’s thinking and I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

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Tabled by

[Baroness Hoey]

8A: Page 8, line 7, at end insert—
“(c) section 56A of the Northern Ireland Act 1998 and Schedule 6A to that Act.”
Member’s explanatory statement
This repeals the Protocol consent mechanisms which were made by regulation by the NI Secretary of State. These consent mechanisms expressly transport the Protocol into domestic law by ensuring the consent of the NI Assembly for its continuation requires only a majority vote (and expressly disapplies cross community consent protections of section 42 of the 1998 Act), rather than cross community consent protections applying pursuant to Strand One (5)(d) of the Belfast Agreement.
The Protocol requires (at least in respect Articles 5-10) that positive consent be given for its onward existence.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Baroness Smith of Basildon Excerpts

2nd reading
Monday 29th November 2021 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Lord, Lord Caine, and want to be the first in your Lordships’ House to welcome him to his place at the Dispatch Box. We wish him well in his position and look forward to working with him. I thank him also for his kind and generous comments at the start of his speech, which were appreciated. I note that the noble Viscount, Lord Younger of Leckie, is with him today. We have welcomed him at the Dispatch Box and his answers to questions, but I think I speak for the whole House when I say that we really do appreciate having a dedicated Northern Ireland Minister in your Lordships’ House. That has been lacking, and he is very welcome in that role.

I thank the noble Lord also for outlining the position and the clauses in the Bill. He is right: this is a short Bill—just nine clauses—but it is no less important or less valuable because of that. When it was introduced into the House of Commons, the Secretary of State described the objectives of the Bill as being to

“strengthen the democratic institutions of Northern Ireland and serve to build the people of Northern Ireland’s faith in their locally elected representatives in the Northern Ireland Assembly.”—[Official Report, Commons, 22/6/21; col. 774.]

Few could fail to agree with such an objective.

Your Lordships’ House will understand the pride and commitment of the Labour Party to the Belfast/Good Friday agreement, which led to the establishment of the Assembly. There is also pride from all those involved, across the political spectrum, that despite the challenges along the journey to reach the agreement, it was so overwhelmingly supported by those living in Northern Ireland.

When the stability of those institutions has been threatened, or when they have been suspended, it is a failure. It is a failure of politics and politicians, but it is most keenly and sadly felt by those who live and work in Northern Ireland. Whatever the intentions, it has proved easier to suspend the institutions than to reinstate them after suspension. I speak from experience, having been told on one occasion that I would be going there as a Northern Ireland Minister for three months but returning home three and a half years later.

We welcome the objectives of the legislation, which I think reflect commitments made in the New Decade, New Approach agreement—as the noble Lord said—to improve sustainability and to increase transparency and accountability. But following the debates in the other place, I was struck that even those supporting the legislation were disappointed. There was frustration over missed opportunities in the Bill to make progress on commitments which have been allowed to stall. There was frustration over a lack of progress on parts of the New Decade, New Approach agreement. There was also frustration, which I am sure he will understand, that it has taken so long to bring a Bill forward, when the New Decade, New Approach agreement was signed off in January 2020.

This is where I hope and think that there is an opportunity for the Minister to be a real asset to the Government, because—I am sure I am not alone in thinking this—too often it has appeared that Northern Ireland has been pretty low on the Government’s list of priorities, and that decisions have been taken without recognising their full implications. I find it extraordinary that the Northern Ireland protocol was agreed, and continues to be discussed, without representatives from Northern Ireland being part of those discussions. I thought the Prime Minister was far too casual and, not unusually but unforgivably, uninformed about how Brexit and the protocol would impact Northern Ireland trade and Northern Ireland politics. So there is a direct read across from the Prime Minister’s and the Government’s casual approach to Northern Ireland—I am not implicating the Minister in this; I hope he can do something about it—and the instability we see in the institutions. Those cannot be separated, and the connections cannot be ignored.

The Government need a broader commitment that goes beyond the legislation. If we genuinely and deeply support stability, that commitment has to run through all actions and all policy-making, and it has to be total. Northern Ireland cannot be considered as an afterthought to policy-making or as a means just of holding on to government.

Turning to the provisions of the Bill, as my colleagues, the shadow Secretary of State Louise Haigh and Alex Davies-Jones, were clear during debates in the other place, there is room for improvement. I appreciate that, while taking on board suggestions, the Government resisted any changes for improving the legislation in the other place. However, this is where I am an optimist in life, as I always remain hopeful that Ministers—particularly a new Minister who has real knowledge of the situation in Northern Ireland, as the noble Lord, Lord Caine, does—may have reflected further on this.

One of our concerns about the cause of instability is when agreements are made but full implementation remains elusive. In the other place, we raised the issue of ensuring the full implementation of the NDNA agreement. We also raised parts of the Belfast/Good Friday agreement which have not been, or are currently not being, fulfilled, including the Bill of Rights and the Civic Forum. I do not know whether the Minister is able to give the House an update today on the Government’s plans to legislate on the Irish language protections and cultural package which are part of that agreement. If not, I hope he will be able to do so during the course of the Bill’s passage, or indeed write to noble Lords. The Government have previously made commitments to bring legislation forward if agreement or legislation was not achieved in Stormont by the end of September, but we have not had an update on next steps to date.

The Minister will be only too aware of the concerns raised over the delayed timing of the Bill. MPs were concerned that, after an already long delay, the Bill would not be out of Parliament before Christmas, and here we are, almost in December and just starting the Second Reading this evening.

I am sure the Minister is aware that, in the other place, there were helpful conversations about whether the two-month commencement period provided for in the Bill could be truncated or removed. It will be helpful if we can return to those discussions and conversations as the Bill progresses—and there are other issues we will want to seek clarification on or explore further with Ministers.

As the Minister outlined, the Bill provides that Ministers will no longer cease to hold office after the election of a new Assembly for two specified time periods, which certainly makes sense in terms of the stability and continuity of decision-making, and confidence in the institutions. We are all aware that, at times, civil servants have faced an almost impossible situation of having to operate without political direction or ministerial cover. There is nothing in the legislation about the extent of or limitations on the authority of so-called caretaker Ministers. Could it be the case that a Minister remains in office having not stood for election or, indeed, having lost their seat? Can the Minister say more about the limitations, guidance or instructions that will be in place?

My understanding from the answers given in the other place on this issue was that Ministers understood that this would be an unsatisfactory position but better than the alternative that currently exists. I would like to see greater clarity on that and, indeed, on whether we can do better. As a former direct rule Minister who was not elected by anybody in Northern Ireland, I understand and fully appreciate the difficulties here and support the principle of the Government’s approach, but we need to probe and seek a bit more information about how this is intended to work in practice.

On Clause 4, can the Minister confirm where responsibility lies in enforcing the Ministerial Code? He will know that in the UK Government it lies with the Prime Minister, and yet, when an independent investigation reported that a Minister had broken the code, the Prime Minister’s judgment was that they had not, and it was the commissioner who left office, not the Minister. I do not advocate that any breach of the Ministerial Code should result in a ministerial resignation or sacking, and I have suggested changes to the code here to change that, but I am seeking information from the Minister as to where responsibility lies for the enforcement and implementation of the code. Also, does the Minister consider that Clause 4 can play an important role in the management of caretaker Ministers? Again, we will want to probe the operation and extent of the code on that.

On petitions of concern, the Government have been clear about the intention of the clause and it has our full support. It is a limited reform that seeks to return the mechanism to what was originally intended. However, the Minister will be aware of the other vetoes that have been used to block agenda items from even reaching the Executive or have prevented discussion on issues of cross-community concern. Is there any more he can say about this, even if he is not proposing to include anything in the Bill at this stage?

Finally, this is a very modest Bill, but it is significant. The Government could have been bolder, and there are issues that we will want to probe further in Committee, but we welcome the proposals that have been made and look forward to deliberating further and in detail.

European Union (Withdrawal Agreement) Bill

Baroness Smith of Basildon Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting debate, and I do not think its implications could at any point be overestimated. I am grateful to my noble friend Lord Hain, who moved the amendment on behalf of the noble Baroness, Lady Ritchie of Downpatrick. Noble Lords will be aware that she has a family funeral tomorrow and has to be back in Northern Ireland this evening. I think she would have been very pleased to hear the detailed, comprehensive explanation given by my noble friend Lord Hain of the implications of the Government’s legislation and the amendments that have been suggested tonight.

It is worth saying that we are having this debate against a backdrop of a changing political situation in Northern Ireland, one that all of us wholeheartedly welcome, which is the return of the Assembly and the Executive. I congratulate the Minister, his colleague the Secretary of State and the Northern Ireland parties because compromise was essential to get to this point. It could not have been achieved had not all parties come together, as we have seen in the past, to compromise to ensure that the Assembly is up and running again and the Executive has been established.

It is in that spirit of compromise that I appeal to the Minister tonight, because it is only by having the kind of compromise that has returned the Assembly and the Executive that we can make progress on this issue. We know—and people in Northern Ireland have been told—that the message from this Bill is no compromise, no amendments, nothing must change. That is a wholly unacceptable way to approach any legislation. The noble and right reverend Lord, Lord Eames, said that people will say this is special pleading for Northern Ireland. I do not think it is. It is pleading not to make life more difficult than it is going to be already. If the Northern Ireland political parties can compromise in the way we have heard about from the noble Lord, Lord McCrea, I am sure the Government can take a step in that direction as well. I am slightly concerned that there has been no Statement from the Government about the progress made in Northern Ireland. I hope one will be forthcoming shortly.

If anybody in government is concerned that this is a series of amendments about not accepting the result of the referendum—my noble friend Lord Hain and the noble Lord, Lord Bruce, made this point—if it were not for accepting the result of the referendum, these amendments would not be required. It is because we are leaving the EU that they are so essential.

I do not want to go through the purpose and the details already outlined by other noble Lords; I want just to re-emphasise three points. First, as the noble Lord, Lord McCrea, said, these amendments have not just cross-party support, but all-party and none support from people in Northern Ireland. I have not come across anything from anybody in Northern Ireland that says that the purpose behind these amendments is something they reject. It is universal. The Government have to listen to that. The people on the ground understand the implications of Brexit. Whether they support Brexit or not, they still support these amendments.

Secondly—this point has been made—this reflects the promises and commitments that the Government have made to the people of Northern Ireland. We all know that the Prime Minister gets a bit flamboyant during election campaigns, but let us bring it back to what he actually said. Basically, he said, “There will be no checks or tariffs, and if anyone has a problem with that, come and see me—phone me about it”. If that is the case, will the Government publish the phone numbers of the Prime Minister and his deputy, Dominic Cummings, so that people can phone them directly? Nobody is clear about the situation and there is a great deal of mistrust when flamboyant statements are made with no facts behind them.

Thirdly, Northern Ireland needs a level playing field if it is to protect businesses and consumers, as all of us in this House will understand. A trade expert, Professor Alan Winters, has undertaken an analysis that concludes that, taking into account both GB and international goods, a total of 75% of Northern Ireland’s imports could be subject to EU tariffs on arrival. That is a phenomenal amount. It will be damaging to the economy, as we have heard—I will say more on that in a moment—and it will also be quite complicated. Perhaps the Minister can comment on how this will work, but my understanding is that goods entering Northern Ireland from Great Britain and deemed at risk of being moved to the Republic will be subject to tariffs, but those could be rebated if it could be shown that the goods were consumed in Northern Ireland. How on earth is that going to work? Are we going to check what is consumed or part consumed? It is a recipe for disaster for the economy.

The integrity of Northern Ireland as part of the UK internal market is integral to the success of the Northern Ireland economy. To put additional costs on the economy, whether on the consumer or on businesses, is completely unacceptable. Looking at the political and financial implications of what is being proposed, the Government need to give absolute clarity that there will be unfettered access on trade. If they are unable to do that, they have to accept the amendments.

I say to the Minister that I do not think that the Government’s approach is good enough. I know that he will have a folder of briefing notes. I have been there—I have been a Minister. The notes on the amendment say “resist”, but there are times when that is the wrong course of action. It is not good enough to say that we need a clean Bill. We have heard that in this House before. These amendments can help the Government. They assist them in what they are seeking to do and they assist Northern Ireland. There is no good reason to oppose them, other than trying to take a macho approach to the legislation, but that just will not work. I am sure that the Minister personally is sympathetic, but we need more than warm words. We need to know that the Government are prepared to accept the amendments or come forward with their own suite of amendments.

[Lord Morrow (DUP)]

My Lords, I should like to speak before the Minister responds. I want to make a few brief remarks, not least on what has already been said. In Northern Ireland we are continually lectured and told, “If you could only speak with one voice, how different things would be.” However, we speak as one voice tonight. We speak not only politically, but for the business community, and I include all those who have spoken on this matter.

I know that the Minister is a listening man, but I want him to go a step further and implement the proposed changes. The noble Lord, Lord Hain, the noble Baroness, Lady Smith, the noble Lords, Lord Bruce and Lord Empey, my noble friend Lord McCrea and others have said very clearly what Northern Ireland expects. We must be allowed to function as a country and as a trading partner with the rest of the United Kingdom.

There is no doubt—and those who do not agree with my politics at all have clearly outlined—that what we are being told by the Prime Minister is one thing, but actions always speak louder than words. We need the Prime Minister, the Government and the Minister, the noble Lord, Lord Duncan, to take on board very clearly that there are serious issues at stake here.

It is ironic that one part of the United Kingdom will have a border with the rest of the United Kingdom. How can that ever be right? Even common sense will tell us that that is not functional; it will just not work.

It has already been stated that Northern Ireland’s economy is built on a multiplicity of small businesses—those which employ and engage fewer than 10 people. That is what our economy is built on; that is the backbone of our economy. We do not disparage the large companies that bring massive employment to our shores, but it has to be said clearly, and I do not exaggerate when I say it this evening, that those small businesses are watching every move, because their future is at stake—not only their future, but that of many homes.

It is no secret that wages in Northern Ireland are lower than those in other regions of the United Kingdom. Many families struggle. Many are in the poverty trap. Many live on the margins, as I call it. Are they not deserving to be treated equally? Is there not a strong case for saying that we need to look at this again? As my colleague and noble friend Lord McCrea has said, there is an ocean of difference in the meaning of the word “may” as compared to the word “must”, which the noble Lord, Lord Hain, has asked to be put in. You have an option if you may; you do not have that option if you must.

I concur with those who have said that this is not in any way a wrecking attempt. We know where we are in the whole Brexit debate. We know where we were in relation to Brexit. This is not a last-gasp, desperate attempt to do something over the Government. This can be implemented very easily and respectfully. I associate those remarks with the amendment in my name and the names of my three colleagues. We have absolutely no difficulty in supporting the amendments that have been tabled, and I trust that there will be no difficulty in supporting our amendment. It is there for the right reasons; there is nothing sinister about it. We are absolutely sincere. I plead with this House and with the Government to take it sincerely, because there is so much at stake.

--- Later in debate ---

Further, if we set very clear definitions, as some of these amendments seek to do, the danger we face at that point is that some of those definitions may need to be addressed in the ongoing dialogue. When we start looking at that in detail, we may begin to recognise that these are areas in which the important voice will be that of Northern Ireland, not our voice alone. On that basis, in light of the agreement we reached at the weekend, it is important for us to ensure that there is an opportunity for those voices to come together. To give that reassurance—

[Baroness Smith of Basildon]

I thank the Minister, who is obviously trying to give some reassurance in his comments. He has said that it is the terms of the amendments—their wording—that cause some difficulties. However, I think he is conceding, and understands, the points and concerns raised, and why there is so little trust and a need for that reassurance in Northern Ireland. I apologise if he is going to come to this in a moment, but does it follow from what he is saying that he is therefore prepared to bring forward his own amendments that would give the certainty and reassurance required but deal with his concerns about the wording of these amendments?

[Lord Duncan of Springbank]

The important thing here is twofold. First, we agree on the destination—on where we are trying to go. Secondly, what we just said is that the amendments as drafted, from our position, undermine what we set out in the initial clause. We have said that the initial clause now delivers what we believe is right for Northern Ireland, both in terms of the wider dialogue and the ongoing evolution regarding the joint committee. That is why I would not propose replacing them with our own government amendments, but rather recognise the vitality of the original clauses.

I thank the noble Lord, Lord Hain, because he has put in place a very clear recitation of where he is coming from and, as he said very clearly, I anticipate that this matter will be pressed to a vote next week.

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[Lord Duncan of Springbank]

As always, the noble Lord brings an interesting perspective to this. I appreciate the fear that the Joint Committee may extend beyond its rails and somehow move into different areas. Within that Joint Committee is the United Kingdom itself, and the purpose there is to hold to account the United Kingdom as it seeks to engage directly with the wider EU. I note underlying that, however, the more important point: the question of reassurance. I hope that the words I can use will give some reassurance today. Equally, I think we will come back to this matter next week when the House will demand of me further reassurance. It is important that I am able to put clearly before this House, and as it echoes beyond this House into Northern Ireland, these reassurances: it has not been overlooked; the newly established Executive will have a strong voice in what goes on, going forward; and the business community can expect to be significantly engaged with each element of the question of unfettered access, to make sure that this is in no way an attempt by the Government to hoodwink either the people or the businesses of Northern Ireland.

If I may conclude, the important point is that I believe we are in common agreement that unfettered access is required. We have the assurance of the Prime Minister and we ultimately have—

[Baroness Smith of Basildon]

Since the Minister said that he was concluding, can I ask him this? He said that he wants to give reassurance. The noble Lord, Lord Empey, raised the point that we would rather not have disagreement between the two Houses. We would rather get the issue resolved, especially since I understand that in the other place they will have either no time for debate or so little time that it will move to a vote forthwith. Whether this House passes an amendment or not, we do not really have faith that this will be properly considered in the other place. It would be good to fully understand what the Minister is saying. Can he commit tonight to write to us with the details and place a copy in the Library, so that we can fully consider these matters before we come back? I urge him to think that the House is seeking reassurance from him because this matter has to be resolved. The consequences for the people of Northern Ireland if it is not resolved adequately are really very serious. Can he write by close of play on Thursday, so that we can fully debate it next week?

[Lord Duncan of Springbank]

Yes, I am content to put in a letter the elements I have set out today, with the appropriate detail and clarity which I may have lacked in my explanation this evening, so that the Committee can see exactly what I seek to put on the record. I am occasionally guilty of being expansive—I know that my Chief Whip looks daggers at me occasionally—but I am happy to put that down in a letter in appropriate time, so that the Committee can consider it and make sure that there is no dubiety in what I seek to put forward. I am happy to give that commitment and I will ensure that it is there in good time.

Again, I bring myself back to the important point: I believe that we seek the same outcome, which is to secure Northern Ireland’s place within the family of nations that is the United Kingdom, and to ensure that there are no impediments to the trade within the Province of Northern Ireland as it seeks to trade within its important relationships with the rest of the UK. On that point, I am sorry that I am not able to give more positive support, but I will do all I can in the next few days to set out in writing the Government’s position.