Scotland: Meeting with New First Minister

Baroness Smith of Basildon Excerpts

Wednesday 29th March 2023 Lords Chamber

[Lord Offord of Garvel (Con)]

That is exactly the point that Kate Forbes was putting across. To take the nationalist movement so far, Alex Salmond moved it from 30% to 45%, and he was entitled to say that his successor, Nicola Sturgeon, might have moved it from 45% to 60% but singularly failed in eight years. The point that Kate Forbes was making is that if it takes longer then so be it, but if you make the case for a prosperous Scotland then you can perhaps have that more fully answered.

[Baroness Smith of Basildon (Lab)]

My Lords, it is clear from the questions and answers today that this House is committed to the United Kingdom, with Scotland remaining a central part of it. May I bring the Minister back to the answer that he gave to my noble friend Lord Foulkes? The Minister was clear about how important the two issues of gender reform and container recycling were to the integrity of the UK. However, when he was asked when discussions would take place, he was a bit “Yes Minister” about it, I have to say. It was “in due course”, which sounds a bit like “in the fullness of time” and “as resources allow”. Does he recognise how important these issues are and can he give any timescale for when the First Minister will have meetings with the Prime Minister and Secretary of State? These issues cannot be allowed to fester any longer.

[Lord Offord of Garvel (Con)]

I thank the noble Baroness for that. The issue we have is that those are both Scottish Bills. The great thing about devolution is that the Scottish Government are empowered to make their own Bills and send them for assent here. It is not for the UK Government to interfere in Scottish Government decision-making, so if their Bills do not meet competency or cannot achieve Royal Assent, it is up to the Scottish Government to amend them. We have said that we will be very happy to consult them on that process, but these are their Bills that they must amend.

Scottish Government: Ultra Vires Expenditure

Baroness Smith of Basildon Excerpts

Thursday 9th March 2023 Lords Chamber

[Lord Offord of Garvel (Con)]

That does exist, and in the Scottish case it is through SDI—Scottish Development International. That system has been working very well over the 26 years of devolution; only in the past two years have we had this encroachment and a different attitude from the Scottish Government. That is what noble Lords are referring to today.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his thoughtful answers. I take issue with one, however. He described my noble friend Lord Foulkes as “dogmatic”, but we on this side regard him as a cuddly pragmatist.

May I take the Minister back to my noble friend’s question? He said in response that the Government will monitor legislation—he later mentioned the GRA and the bottle deposit scheme—but my noble friend asked the Government to monitor expenditure to ensure at an early stage that it is not ultra vires. The Minister did not really address that point. Will he do so?

[Lord Offord of Garvel (Con)]

The devolution settlement was put in place in this House long before I arrived, and the machinery of government was set up in the devolution Act. It does not allow the UK Government to look over the shoulder of the Scottish Government regarding money sent from the Treasury to Scotland. The scrutiny exists in the Scottish Parliament, and Members of the Scottish Parliament rightly scrutinise the Scottish Government and hold them to account. The Auditor General for Scotland, the Accounts Commission and Audit Scotland work together to deliver public audits in Scotland, and the National Audit Office provides independent assurance that public money is spent properly and provides value, and it scrutinises public spending for Parliament. These are the checks and balances in place. If the noble Baroness would like to go further, we would need to bring another Bill to this House.

Scottish Referendum Legislation: Supreme Court Judgement

Baroness Smith of Basildon Excerpts

Thursday 24th November 2022 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I always feel I have a slight vested interest in this issue, being a living example of an English-Scottish relationship, with an English mother and a Scottish father. Like many others in your Lordships’ House, I remain committed to a stronger union.

However, today in Scotland there are wide and acute concerns about the health service, education and the economy—concerns shared across the whole of the UK—so it continues to disappoint that independence remains the SNP’s top priority, rather than an absolute focus on improving public services and changing lives now. However, does the Minister acknowledge that there has been a failure by this Government to illustrate clearly why the case for independence is built on myths and false hope? Will he accept, as we do on these Benches, that a strong commitment to the union goes hand in hand with effective and practical devolution?

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Offord of Garvel) (Con)]

My Lords, the UK Government note and respect the unanimous ruling by the Supreme Court that the Scottish Government do not have legislative competence to hold a referendum. The people of Scotland want both our Governments to concentrate all our attention and resources on the issues that matter most to them. That is why we in the UK Government are focused on restoring economic stability, getting people the help they need with their bills and supporting our NHS. As the Prime Minister has made clear, we will continue to work constructively with the Scottish Government on tackling all the challenges that we share and face.

Prison Officers: Occupational Pension

Baroness Smith of Basildon Excerpts

Thursday 16th June 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I am sure the House will join me in acknowledging my noble friend’s service as a prison visitor. Although it is the case that police and fire service schemes have a lower retirement age of 60, employees in those professions contribute significantly more of their salary to their pensions—12% for police officers and 14% for firefighters —whereas prison officers pay only 5.4% of their income into their pension schemes. That is significant, because it is that level of contribution which allows actuarial assessment of the impact of retirement of officers.

[Baroness Smith of Basildon (Lab)]

My Lords, the safety and security of prison officers and prisoners is clearly essential if prisons are to be effective, including, as the noble Lord, Lord Bird, pointed out, in terms of rehabilitation. We are losing experienced prison officers, yet the Government’s response, that prison officers work later than many other services, until they are 68, is not the way to address this. I do not think the Minister answered the Question of the noble Earl, Lord Attlee, which was very specific: until what age must a newly recruited prison officer stay in post before they are able to claim their full occupational pension? In effect, how many years must a prison officer be in post to receive their full pension? It is quite clear for the fire service and for the police, but we have not had that information for the Prison Service. Can he provide it?

[Lord Stewart of Dirleton (Con)]

My Lords, it is two years.

[Baroness Smith of Basildon (Lab)]

For the full pension?

[Lord Stewart of Dirleton (Con)]

A prison officer can retire at an age between 65 and 68. That is now in line, according to the alpha scheme under which prison pensions are paid. A person on the scheme must have had at least two years’ membership within the scheme to be able to receive a pension.

[Lord Stewart of Dirleton (Con)]

My Lords, it is dependent on the assessment carried out by occupational health as to the person’s capacity.

[Baroness Smith of Basildon (Lab)]

My Lords, I am sorry to come back to the Minister but I asked him specifically about the full pension and he has answered only for “a pension”. There is a difference between receiving a pension, which will be a reduced pension, and a full pension. Will he tell me, if he has the answer, how long it is for a full pension? If he does not, will he write to me and place a copy of the letter in the Library?

Northern Ireland Protocol: First Treasury Counsel

Baroness Smith of Basildon Excerpts

Thursday 9th June 2022 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this is a hugely important issue and I have to say it requires calm diplomacy rather than a rerun of the internal markets Bill debacle. Noble Lords will be aware of the reports that Sir James Eadie was specifically asked not to give a legal opinion on the compatibility with international law of the Government’s proposals, but instead to assume there is a respectable legal basis. I say to the noble Lord: does he understand the concern that Ministers opt not to ask the questions that they think they will not like the answer to?

I think we all understand and appreciate the Government’s long-standing position that internal legal advice is not published, but will the Minister give his personal assurance that Members of this House will have access to all the information that is needed whenever this Bill is brought forward? And can I ask that the Government urgently consider reviving the reading rooms process that was established during the Brexit process.

Prisons: Radicalisation

Baroness Smith of Basildon Excerpts

Tuesday 3rd March 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, there has been no delay in this matter. There are currently three separation centres available—at HMP Frankland, HMP Woodhill and HMP Full Sutton, which are all high-security prisons. They have capacity for 28 individuals. However, given the number of individuals selected for that separation, only one of those facilities is actually in use.

[Baroness Smith of Basildon (Lab)]

My Lords, I am sure the Minister understands the seriousness of the issue, but I am concerned about two questions asked today—by the noble Baroness, Lady Warsi, and the noble Lord, Lord Harris of Haringey—specifically about what I think are very important statistics that are necessary to understand the scale of the problem if we are to properly tackle it. On both questions, the Minister was unable to give figures and, indeed, was unsure whether such figures were available. I ask that he meet noble Lords concerned about these issues to look at the kind of information we need in order to fully understand and tackle the problem. If his responses are going to be, “I haven’t got that information” and “I don’t know if it’s available”, there will be some concern about the seriousness with which the Government take this.

[Lord Keen of Elie]

My Lords, I do not accept that characterisation of my responses. The noble Lord, Lord Harris, asked for very specific statistics which I do not have to hand. That would hardly surprise anyone in this House. I undertook to determine what those statistics were and to write to him. A question of further statistics was raised. I am not certain that they even exist, but I will take steps to discover that. Regarding a meeting with concerned noble Lords, my door is always open. If they wish to contact my private office, they should, as they have in the past in some instances.

Crime: Support for Children and Young People

Baroness Smith of Basildon Excerpts

Wednesday 5th February 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, we will shortly be consulting on changes to the code, and we have committed to developing targeted, less complex and more accessible guidance aimed particularly at children, young people and their families.

[Baroness Smith of Basildon (Lab)]

My Lords, the noble and learned Lord will be aware that one of the biggest issues for young people is the fear of crime, whether that is online crime or knife crime, for example. This was recognised in the Children’s Commissioner’s report as well. Has he read the report from Barnardo’s on the kinds of issues that could make a difference to young people, because they are having a severe impact on their mental health, for which, as we all know, the services required are not available. When did Ministers last meet with Barnardo’s to discuss that issue, and does he have any plans to do so in future?

[Lord Keen of Elie]

My Lords, I have not read the Barnardo’s report—I have read the more recent report from the Department for Education—but I note what the noble Baroness said in that regard and I will address that matter.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Baroness Smith of Basildon Excerpts

Tuesday 1st October 2019 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I, too, welcome this order and thank the Minister for introducing and explaining it. I also welcome the comments made initially by the noble Earl, Lord Listowel, regarding the position of care leavers and new adults, those points being echoed by the right reverend Prelate the Bishop of Newcastle and the noble Baroness, Lady Meacher.

As the noble Baroness, Lady Meacher, pointed out, the credit for this SI is due to the Children’s Society, for the judicial review it brought last year challenging the lawfulness of the exclusion of legal aid in these cases. Credit is also due to members of the Refugee and Migrant Children’s Consortium, who worked with the Children’s Society and the Government to ensure that this SI came into being, making good on the Government’s promise, given by Lucy Frazer MP, which was the basis on which the Government settled the Children’s Society’s case.

I can do no better in summarising the existing position and the reason for change than to quote from the statement of facts and grounds submitted by the Children’s Society’s legal team, led by Paul Bowen QC, with the consent of Mr Bowen:

He says:

“Where such children are involved in non-asylum immigration matters, with the very limited exceptions, these matters are currently considered ‘out of scope’ for the purposes of Section 9 of LASPO, and so will only be funded if an Exceptional Case Funding … determination has been made pursuant to Section 10 of LASPO.


These children are among the most vulnerable individuals in the country. They are at a heightened risk of abuse and exploitation as a result of their immigration status. The potential immigration processes and proceedings they face in an attempt to regularise their status in the UK are extremely complex. The consequences for these children if they do not or are unable to negotiate these processes and/or proceedings are fundamental and life-changing, ranging from a lack of access to further education, social services and healthcare to deportation. They have a consequent need for legal advice and assistance. That need is not currently being met by the ECF system nor by any other means. This is unlawful for the reasons summarized in the argument”.


The Children’s Society rightly claims that it securing this change was,

“a significant achievement as so far it is the only cohort the government has agreed to bring back into scope for legal aid”.

It wrote that:

“The change all our supporters and partners helped bring about will have huge implications for thousands of children who need this vital support”—


I repeat the point made by the noble Baroness, Lady Meacher, about the numbers affected—and that:

“It will ensure they can once again access the legal aid they so desperately need to live full and settled lives”.


I also quote from paragraphs 34 and 35 of the Government’s impact assessment, which state that:

“Separated migrant children have distinct vulnerabilities and needs, which can be made worse by uncertainty in their immigration status. This includes the risk of going missing from local authority care, and being subject to exploitation in private foster care arrangements. Further, if children do not resolve their immigration status during childhood, they can become ineligible for certain public services (like being able to work, find housing or continue with education) when they turn 18 … It is expected that professional legal advice from legal aid immigration solicitors on non-asylum immigration matters will help to ensure more robust initial decision making because the original application should make the best possible case, improving the quality of applications and appeals to the Home Office”.


This case is absolutely overwhelming, so the Government must acknowledge that this change was long overdue and that the litigation should never have been contested, as it was for some time.

In welcoming this SI unreservedly, I remind the House that it is significant that this crucial reform was forced on the Government by judicial review. The review involved the courts considering a decision on judicial review as to whether the power in Section 9(2) of the LASPO Act should be used so as to bring unaccompanied and separated children’s immigration cases into the scope of LASPO. I also remind the House and the Government that the LASPO Act includes the power to bring claims of different types back within scope. That was a power for which we argued before the Act was enacted.

As we now know, the LASPO Act has caused great hardship in denying legal aid to a number of vulnerable groups, who cannot afford legal advice or representation and are left unable to understand or take advantage of their legal rights and protections without it. We have argued for restoration within the scope of legal aid of much social welfare law, more housing law and more cases of debt, for easier access to legal aid in domestic violence cases and for a wider exceptional case funding scheme. I hope that with the precedent of this statutory instrument, itself of limited but very important application, we may see an approach to the scope of legal aid more generally that is fairer, more generous and more progressive.

[Baroness Smith of Basildon (Lab)]

My Lords, like others, I unreservedly and wholeheartedly support the order before us today. However, I have to say that the congratulations should go not to the Minister but to the Children’s Society. The noble Lord, Lord Marks, the noble Baroness, Lady Meacher, and the right reverend Prelate the Bishop of Newcastle made similar comments. I was pleased to see the Government recognise this in their impact assessment, which refers to the justification of their preferred option going forward:

“In order to meet the commitments made following litigation”.


It is quite clear there and later on, in paragraph 4, why these have been brought forward:

“Following litigation from The Children’s Society, the government agreed to bring civil legal services for separated migrant children’s non-asylum immigration matters back within the scope of the legal aid scheme”.


It should never have been taken out of the scheme.

It is in some ways an embarrassing—but I can tell that the Minister was not embarrassed—U-turn for the Government. We cannot hold the Minister responsible in this case for having found that he was wrong on this issue because it was before the noble and learned Lord entered your Lordships’ House. Some of us will recall what were at the time very heated, at times unpleasant, debates during this legislation. It was coalition government legislation. Numerous votes took place. It was one of those Acts that many of us found very difficult. I am pleased to see that we are now addressing some of the injustices that were taken forward at that point.

To have taken legal aid away from some of the most vulnerable people—this was not the only case. I remember going home one evening extraordinarily upset because the Government had taken away legal aid from women who were victims of domestic violence. It was taken away from women who were contesting child custody cases as well. There were a lot of injustices, and I welcome the fact that this is one injustice that is being corrected. I hope we shall see many more.

The Minister already has a number of questions to address. Do the Government have any idea how many children have been affected negatively by losing the right to legal aid? It would be helpful to know how many got exceptional case funding. I think there were a few instances of that. How many children may have been deported because they were unable to get legal aid? How many children went missing from care because they were unable to get the support they needed? I think those are the kinds of figures the Government need to provide to fully understand the impact the legislation had at this time.

Does the Minister know how many separated migrant children are in local authority care, and could be expected to benefit from the change? I think that the noble Earl, Earl Listowel, and the right reverend Prelate the Bishop of Newcastle made very powerful points about the position of children when they turn 18. This is a problem for any care leaver, but I think it is particularly relevant to separated migrant children.

The Children’s Society estimates that there are 144,000 undocumented migrant children living in England and Wales. The Government obviously have a responsibility now to make this change known to those children. How is this possible? What plans do the Government have to ensure that those who can benefit from this change will know about it?

There is a welcome point in the order, that, if there is a case going through, and a child turns 18 during the process of that application, they will continue to get legal aid until that application has been completed. I am looking at the Minister to see whether or not he understands the point I am making—he does. That is welcome, I am grateful for that, but if that separated migrant child is reunited with a relative during the process of that application, will the case be able to continue with legal aid?

This year is the 70th anniversary of legal aid, something that we in the Labour Party are very proud of, but the Government have been rather quiet during the anniversary. I think it would be a welcome opportunity to have a look back at other provisions in this legislation and see what other injustices have been done. This one has been a long, hard fight. I pay enormous tribute to the Children’s Society and other children’s charities which have ensured that this change has come about, but perhaps there is an opportunity now to look at other injustices in the legislation and see what more can be done, particularly with the spending commitments being made by the Conservative Party this week. This is a real opportunity to see whether we can address further injustices.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions from all sides of the House, to a greater or lesser extent. This is an important area and an important issue. I will begin by addressing generally some of the points that a number of different noble Lords raised.

First, the noble Earl, Lord Listowel, raised the very real question of those termed care leavers, who tend to be a cohort aged 18 to 25 years. It was a point raised by the Children’s Society when we discussed this matter more generally, as the noble Earl and the right reverend Prelate will be aware. The position we are in regarding that cohort is that we have agreed to consider the position of care leavers and their access to legal aid via the exceptional case funding scheme in relation to immigration matters. That work is ongoing, but I cannot say more than that at the present time.

In addition, there is the question of separated children who applied for legal aid but turned 18 before the original immigration application had been fully determined. They will continue to be eligible for legal aid until the immigration or citizenship matter has been concluded. How it is concluded is a different matter, but if it is concluded through the immigration process, legal aid will continue to be available. I seek to reassure noble Lords on that point.

Very diverse figures were given regarding the number of children who might have been or may now be eligible for legal aid under this provision. It is very difficult indeed to identify precise figures. That might explain why such a diversity of figures is being quoted. So far as we are concerned, the most reliable figures are from 2012-13 because after that, as a consequence of LASPO taking these cases outwith the scope of legal aid, there are not reliable figures. That is why it has been necessary to go back to the last set of reliable figures pre the LASPO provisions themselves. That might be unfortunate in a number of respects, but that is where we are. We intend to monitor the figures, but clearly we will have an eye on the number of applications being made.

In that regard—to respond to the noble Baroness, Lady Smith—we are and have been engaging since July last year with legal aid agencies over the scheme for provision. Indeed, pending this order coming into force, we have been explaining to legal aid agencies that separated children falling into this category who still rely on exceptional case funding would be entitled to certain presumptions so far as their application was concerned, because their rights under Article 8 of the convention are clearly to be regarded as in play, if I can put it in those terms. There has also been an assumption that they are vulnerable and that they are not capable of carrying through these proceedings without the assistance of legal aid. That has actually simplified the exceptional case funding application process. Indeed, we are working with legal practitioners to review and simplify the exceptional case funding application forms and guidance, which we hope again might be of assistance to the cohort known as the 18 to 25 year-old care leavers.

[Baroness Smith of Basildon]

Just to clarify: if I have understood correctly, is the Minister saying that all children who currently get exceptional case funding will now get legal aid to complete their cases?

[Lord Keen of Elie]

If they already have exceptional case funding then they have legal aid, so there should not be any interruption regarding that cohort, who have already received it. I was seeking to stress that since this matter arose in July 2018—I acknowledge that that was because the Children’s Society took steps with regard to judicial review—we have taken steps to try to simplify the ECF process for those separated children but as a result they have legal aid, so generically they have legal aid and that should not be interrupted.

Regarding the future position, ECF is not affected by our decision to leave the European Union. Of course, convention rights are already expressly covered by LASPO. There is also the question of retained EU rights under our domestic legislation. Therefore, there is no reason why the ECF scheme should be affected by that.

As regards the wider number of children who may have been affected by this, it is not possible to give figures. The noble Baroness, Lady Smith, referred to 144,000 undocumented children potentially being in the United Kingdom. The point to stress is that if they are undocumented, it is very difficult to determine how reliable that estimate is, where they are, what they are doing, where they have gone or where they have been. By the very definition of undocumented, we have an issue here which is surrounded by a penumbra of doubt and uncertainty and very little can be done with that.

However, I hope that with these regulations coming into force we will have a more meaningful ability to deal with these vulnerable children, to provide them with the support that we acknowledge they will require in future and which they have had in the past under the exceptional case funding, but which we believe should now more appropriately be brought within the scope of Section 9 of LASPO. I beg to move.

Northern Ireland (Executive Formation etc.) Bill

Baroness Smith of Basildon Excerpts

Ping Pong (Hansard): House of Lords
Monday 22nd July 2019 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, what lies behind this issue is whether a future Prime Minister will have a credible threat of no deal. I do not want no deal, but I believe that, unless he has that threat, he will do no better than his predecessor.

[Baroness Smith of Basildon (Lab)]

My Lords, this is not about a no-deal Brexit; it is about the Prorogation of Parliament and importance of the issues before us in relation to Northern Ireland. The only issues before us in the amendment proposed by the Minister are constitutional. Despite my disagreement with him today, it is appropriate from the outset to say that he has been a great asset to the House and the Government in how he has dealt with this legislation, which has been complex and difficult at times.

Your Lordships’ House is always concerned with constitutional issues. Two arose in last week’s legislation. It is to his eternal shame and my horror that I often find myself in agreement with the noble Lord, Lord Forsyth, on constitutional matters. On this issue, I partly agree with him but also part company with him. We are in extraordinary times. It should be quite unnecessary to have in any Bill something that says that a Prime Minister should not prorogue Parliament to get legislation through or to stop something happening. It should be a matter of course that we had sufficient trust in any Prime Minister that such an amendment would not be necessary.

Last week, this House agreed by 272 votes to 169 a cross-party amendment that there should be a clause in this Bill that required Parliament to be sitting to receive and debate the report on Northern Ireland that we had agreed to. We acknowledged also that the secondary purpose behind that amendment was related to the strong opposition that we believe exists in both Houses to the Prorogation of Parliament to force through or enable a no-deal Brexit, or any kind of Brexit, without Parliament sitting. Why was that so important?

[Lord Forsyth of Drumlean]

I am most grateful to the noble Baroness for giving way; I am just following her argument, which is that the powers of a Prime Minister to prorogue Parliament should be limited because it might result in a no-deal Brexit. Why would she not extend that to the powers of a Prime Minister to call a general election? If a general election were called which lasted three weeks and 31 October was within it, we would have left the European Union. Is she not on very thin ice here?

[Baroness Smith of Basildon]

I do not think that I am; I shall tell the noble Lord why. Patience is a great virtue, because I was about to come on to it.

The die is now cast. At 5 pm today, the ballot on who is to be the next leader of the Conservative Party and therefore the next Prime Minister will close. Neither candidate rules out no deal—that is a slightly separate issue. However, only one of them—the one most likely to win, Boris Johnson—has not ruled out shutting down Parliament in order for it not to take a view on crashing out of the EU. It may be that a no-deal Brexit is exactly what happens; I do not know—I am worried sick about it like most other people, but I do not know whether that will happen. But what I do know and firmly believe is that if any Prime Minister wants to take this country down that road they should stand at the Dispatch Box in front of their Parliament and say so as it happens.

Only Boris Johnson has not ruled out a no-deal Brexit. I find that deeply shocking. He is behaving more like a medieval monarch than a Prime Minister-in-waiting. King Boris might have a good ring to it, but he should remember Charles I.

As always, it is a matter for the House of Commons whether it accepts our amendments or not. Both Houses know that and respect that, yet this Government have always found it easiest, when the House of Lords disagrees with them, to dress it up as a disagreement between the House of Lords and the House of Commons. We saw that on tax credits and the Strathclyde report. Let us be absolutely clear today what we, the House of Lords, did in passing that amendment last week. We gave the House of Commons an opportunity, if it so wished, to insert a no-Prorogation clause into the Bill for the interests of Northern Ireland and on Brexit. The MPs did not just welcome the principle that we put forward, they felt that they should go further, be more explicit, clearer and put it beyond any doubt that, even if in recess, adjourned or prorogued, Parliament must be recalled. I think the public would expect Parliament to be here.

The noble Lord, Lord Empey, said there was no debate in the House of Commons. I listened to that debate. It was obviously shorter, because it was on ping-pong and just on our amendments, but this was referred to on a number of occasions through the debate. There was strong support, as was evidenced in the vote. So we support the amendment from the House of Commons and we disagree with the Government in disagreeing with it.

[Lord Duncan of Springbank]

My Lords, I thank all noble Lords for their brevity today. Last week was quite an odyssey, so I am very grateful for that. I listened with interest to the noble Lord, Lord Newby, who described this situation as being very much like Alice in Wonderland. It is not: it is like Through the Looking-Glass, and we have an interesting point to consider. A quote from Humpty Dumpty springs to mind:

“‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less’. ‘The question is’, said Alice, ‘whether you can make words mean so many different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master — that’s all’”.


We now find ourselves in a debate that is no longer about Northern Ireland; we have departed from that considerably. Those who say that Northern Ireland is just as affected are, of course, quite right, but this Bill is about the talks in Northern Ireland: we should not lose sight of that.

What I am most concerned about are the words of the noble Lord, Lord Empey, who says that the very fact we are discussing this in this way may have an impact upon the talks. There may be unintended consequences of words meaning what we choose them to mean here but being heard in Northern Ireland in quite a different way. The real risk we face today is that last week we passed an amendment from the noble Lord, Lord Anderson, with some majority, to the House of Commons. What has come back to us is something significantly different: we have now moved beyond the idea of enabling the House of Commons to discuss these matters, to royal proclamations. We have gone beyond the notion of where we stand, to what we think we now ought to be able to control, and all this because we are anticipating what is in the mind of one of the candidates for the leadership of my party: that is all we are doing. Again, I come back to the point that this is about Northern Ireland’s talks process. We are here because we need extra time; because the talks have made progress but not enough progress. What we have done instead is conflate the talks in Northern Ireland, which have been challenging and have not gone at the pace I would have liked, with Brexit in all its manifest glory.

I am reminded of the law we are invoking today, dating back to 1797. The noble Lord, Lord West, is not in his place, but were he here he would remind us that in 1797 Great Britain won a great naval victory. Admiral Lord Duncan, a Member of this place at one time, secured a great victory at the Battle of Camperdown. Camperdown Park in Dundee takes its name from that noble battle. But 1797 is perhaps not a precedent we should be drawing upon just now: this Bill is primarily about restoring the talks in Northern Ireland. Instead we are attaching to it the desire of this place to frustrate the potential ambitions of one of the candidates in a leadership contest. I repeat, not in any way anticipating a call from either of the candidates, that it is important to stress that it would be presumptive of either of them to declare what they would do were they to be Prime Minister, because neither of them is Prime Minister. It is important that we keep focused, as we do today, on what the Bill is about.

[Lord Duncan of Springbank]

My noble friend brings an important point to the discussion at this late stage.

[Baroness Smith of Basildon]

Would the Minister accept that it was completely within the remit of the House of Commons to vote that down if it had wished to do so?

[Lord Duncan of Springbank]

Absolutely. Yet we find ourselves, once again, returning to where we began the journey—an Executive formation extension Bill, which now has a new bauble dangling upon it.

I have discovered in my two years in Northern Ireland how much I care about that place. This is an unfortunate hijacking of what we need to be able to ensure in Northern Ireland. But the will of this House will determine that. I believe that I have done all I can to suggest why we should indeed reject the amendment from the other place, but it will be for your Lordships to decide upon that matter. I commend this Motion to the House.

Northern Ireland (Executive Formation) Bill

Baroness Smith of Basildon Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Lord Hayward (Con)]

My Lords, in moving Amendment 11, I will speak also to Amendments 15 and 22 in my name and, on a cross-party basis, the names of the noble Lord, Lord Bruce of Bennachie, and the noble Baroness, Lady Massey of Darwen. I will not go over a large amount of what we discussed both at Second Reading and in Committee, but will explain briefly my background and interest in this subject.

We have discussed on a number of occasions during the previous debates the history of the Northern Ireland Assembly and a number of votes on the question of same-sex marriage. I came to this relatively recently. In January last year, I hosted a party here at the House of Lords for members of the Kings Cross Steelers—whose tie I wear with pride this evening. It is the world’s first gay rugby club, based in London. When hosting this event I discovered how many members of my club were from Northern Ireland, and I realised that they did not have the same rights. One of those present was John Henry, a former head boy at Wallace, and his brother, Chris Henry, an Irish rugby international, who was showing support for his brother. The world has changed, and that was the indication—that a rugby international was willing to stand alongside his gay brother and say, “The world has changed”. Arising out of that, I started working with Conor McGinn in the other place to produce a Private Member’s Bill, which I submitted on 27 March last year and he submitted in the Commons the next day. I think the noble Baroness, Lady Smith, had a very enjoyable evening at that party alongside all the rugby players.

[Baroness Smith of Basildon (Lab)]

I assure the noble Lord that I had a great time. I hope for an invitation to the next party.

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[Lord McCrea of Magherafelt and Cookstown]

My Lords, I have no doubt whatever of the sincerity of the noble Lord, Lord Hayward, or of anyone else who has spoken in support of his amendment. I trust he will acknowledge that there is no lack of sincerity among those who speak on behalf of the amendment tabled by my noble friend Lord Morrow. He said that the world is changing. A number of Members of your Lordships’ House have had a religious vocation in life. When it comes to my religious belief, while we say that the world is changing, the word of God on which I base my belief says that although,

“Heaven and earth will pass away … my words will never pass away”.


It does not change with the passing of time.

The point that my noble friend Lord Morrow has brought before the House is very serious. I see the clear wording in the amendment of the noble Lord, Lord Hayward, and I come back again to the word “may”. When I was in public life, as a councillor for 37 and a half years, and as an elected representative in the other House for 25 years, a lot of emphasis was placed on putting “shall” and “must” into legislation. When “may” was put in, it was drawn to the attention of the governing party in those years that this did not create certainty. The amendment says that the Secretary of State “may” make a provision that the Secretary of State considers “appropriate”; in other words, “may” at the whim of the Secretary of State. If the Secretary of State, irrespective of who it is, decides not to give that protection, there is no protection, according to this legislation, should it be passed by your Lordships’ House this evening.

That is a very serious matter with serious implications because it gives the idea that this is discretionary, not mandatory. I therefore honestly have to say that many of my colleagues would have no confidence in the manner in which this has been presented at this time. I have listened carefully to what other Members of this House have said and I believe they acknowledge that there is a problem here. Acknowledging the problem is one thing, but if it goes into legislation and the wording is not changed, that is what we are left with. Then, of course, it goes to a court. What did Members of the other House really mean when they put down the word “may”? Did they simply leave it to the discretion of the Secretary of State or did they say that it went deeper than that?

Protecting religious freedom and religious belief in the United Kingdom is vital. We cannot lose our religious freedom, our civil and religious liberty, which was fought for and which people died for. I do not believe we should hand it away. Therefore, I make a solemn appeal to Members of your Lordships’ House. Forget about who tabled the amendment; forget that it is my noble friend Lord Morrow. Think carefully about what it means. I appeal to the House to accept that what he says is a protection that must be given to people of religious belief in Northern Ireland.

[Baroness Smith of Basildon]

My Lords, I thank the noble Lord, Lord Hayward, for the way he introduced this amendment and for addressing the comments made by the noble Lords from the DUP. I am sure the Minister will repeat the assurances he gave. All noble Lords are right; there has been a considerable shift over time in what society thinks about these issues. I do not think Northern Ireland is any different from any other part of the UK in that regard.

As a general point, in Monday’s debate, the noble Baroness, Lady Barker, spoke of her recent marriage. As Members of this House from all three political parties, and quite possibly the Cross Benches, have done, she took advantage of the same-sex marriages Act that this House passed under the superb guidance of the noble Baroness, Lady Stowell—who could forget her descriptions of her relationship with George Clooney? Members of this House have taken advantage of that legislation and we congratulate them on their marriages.

I struggle with the idea that something that has been fundamental to my life—a marriage of 40 years—should not be available to colleagues who choose to love somebody of the same gender as them. I also struggle to understand why somebody who lives in Northern Ireland should be treated any differently from somebody who lives in any other part of the UK on their ability to marry and share their life with the person they love.

The amendment from the House of Commons was deficient in some ways, but the fundamental principle was that there should be equality in the law across the UK on or before 21 October 2019. What we have before us today gives effect to that. It was taken on a free vote in the House of Commons and it is a free vote, a conscience issue, in this House as well. It passed in the other place by a majority of 310. That is bigger than most majorities we get even in this House. In time-honoured way, what has fallen to your Lordships’ House is to tidy up the amendment that came to us, dealing with any technical deficiencies and the details and definitions. I am grateful to the noble Lord, Lord Hayward, Conor McGinn in the other place, and others who have worked on this.

In the other place, the Minister’s colleague the Minister of State for Northern Ireland, John Penrose, confirmed that he sympathised with the amendment, but said it had deficiencies. I will come on to those. He voted in favour of it, with that statement that it was both politically and legally impractical. The changes required are those that bring it in line with current England and Wales legislation and deal with the practicalities of when it can be delivered.

Consequential policy issues arose. For example, the original amendment did not address issues such as pensions, the conversion of civil partnerships and gender recognition. The replacement clause picks up on those and prompts the Secretary of State to consider them when making regulations. As has been heard in your Lordships’ House tonight, the original clause did not address issues related to freedom of religion and religious expression, allowing religious institutions to opt in, rather than being compelled to perform same-sex marriage ceremonies.

The Government—I hope the Minister will confirm this; I expect him to—and the noble Lord, Lord Hayward, have been very clear that any legislation relating to Northern Ireland will mirror the legislation already in place in England and Wales and will address the very concerns raised by the noble Lords, Lord McCrea and Lord Morrow. Extending the period in the legislation will give Ministers and their officials time for a little breathing space to engage with relevant stakeholders and get to grips with those issues. That is the right way forward.

We often refer to amendments passed in this House as a victory for common sense. With the majority of MLAs and Members of Parliament having backed the extension of same-sex marriage to Northern Ireland, tidying up this amendment to address the points and concerns raised is not just a victory for common sense but a victory for love.

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[Lord Bruce of Bennachie]

My Lords, this is a conscience issue and a sensitive one and, certainly on these Benches, it is a matter for a free vote. Nevertheless, we are also faced with the fact, as the noble Baroness just said, this is not necessarily the ideal way to legislate on this issue. But we are not in an ideal situation: we have no Assembly, we have growing pressures for change, and we have the view of the House of Commons, which wants change. Therefore, effectively, these amendments are trying at least to move forward to implement the will to address the issue.

When one looks at the statistics of 12 abortions being allowed in Northern Ireland and more than 1,000 women travelling out, it is patently clear that there is an imbalance that needs to be considered, at the very least. It is not just the conscience issue; we are facing the basis of a probable human rights issue. We have had the guidance of our own Supreme Court that we could be in breach of the European convention, and there is a case that we are awaiting a judgment on, which might confirm that fact. As I have said on a number of occasions, if that is the case, the United Kingdom Government and Parliament will be obliged to ensure that we comply with the European Convention on Human Rights. It would of course be much better if it were done in a way that is managed by the elected representatives in Northern Ireland—that would be the preferred way to do it.

Finally, on the idea that those Members should be consulted individually, it seems that the best way to consult the Members of the Northern Ireland Assembly is for them to convene the Assembly and consult themselves. If that was the case, we would not have to continue with these amendments at all.

[Baroness Smith of Basildon]

My Lords, the noble Lord ends on a note I would have started on. I think all noble Lords would far rather these decisions were taken in the Northern Ireland Assembly. Many of us, over many years, have supported devolution and campaigned for it, and some of us have been direct rule Ministers working towards establishing the institutions. The noble Lord strayed into another debate later when he talks about Amendment 16, which is not in this group. On that issue, the best way to consult Members of the Legislative Assembly is for them to sit and conduct their business so that they can take these decisions.

I shall pick up a couple of points from the debate. One was the issue of these amendments not being in scope. I have to say that my experience of the Table Office and the clerks of your Lordships’ House is that they are sometimes infuriatingly proper. I can think of many a discussion that my team and I have had where we insisted that something was in scope, but there was no way the clerks would shift if they said it was out of scope. I therefore urge your Lordships’ House to recognise that if we have an amendment before us, it is because it is in scope.

Perhaps I can help the noble Lord, Lord McCrea, on a point he raised earlier from my own experience as a Minister. He was slightly suspicious of the Minister—

[Lord Morrow]

When we talked about amendments being “outside of scope”, we were talking directly about the other House.

[Baroness Smith of Basildon]

This House has no remit over what the other House says is in scope, but I am sure the clerks and the Speaker would act in a similar way. Perhaps I can help the noble Lord, Lord McCrea—

[Baroness O’Loan]

I always thought that the scope of the Bill was articulated in its Long Title, which in this case does not refer to abortion. Therefore, I do not quite understand why there is such a rejection of the question of whether these are proper matters for the Bill.

[Baroness Smith of Basildon]

I refer the noble Baroness to the Companion and the Standing Orders of the House: if an amendment is accepted by the clerks, it can only be accepted if it is in scope of the Bill.

I will try again to reassure the noble Lord, Lord McCrea, who sounded quite suspicious of the Minister. Drawing on my experience as a Minister, if I was responding to a debate, whether in Committee or on the Floor of the House, if I was going to be asked questions, I would always ask those who had them, “Can you let me know them before?” If you are to have an informed debate and make an informed decision at the end of it, you need to be able to answer those questions. That is something I do regularly for Ministers to this day when I speak at this Dispatch Box. If there are questions I want answers to, I do not want the Minister at the end of the debate not to have had time to find them—I want them during the debate. It was courteous of the noble Baroness, Lady Barker, to let the Minister know what those questions were so that he was able to inform today’s debate and let us know the answers. It is good practice and helpful to your Lordships’ House to have that made available to us.

On the matter itself, we have had a long debate about whether abortion is appropriate and whether people support or oppose it, and so on. That is not what is before us today. The House of Commons, on a free vote, as it is in your Lordships’ House, voted by 332 to 99 on an amendment to say that there should be safe and legal abortions for women in Northern Ireland, as there are in the rest of the United Kingdom. There is an obligation on Parliament to act, under international and domestic law, to assure such access to free, safe and legal abortions.

If we rejected this today, it would not cut the number of abortions at all. At the moment, as a result of the laws in Northern Ireland at present, we see over 1,000 women and girls from Northern Ireland travelling to England and Wales—and now, as we heard from the noble Lord, Lord Alderdice, to the Republic of Ireland. However, we also find—this is one thing that worries me enormously, particularly as technology moves on—that women risk their life and liberty by illegally buying abortion pills online, which they then take without any medical expertise or support, and they will often delay seeking care if there are any complications. In doing so, they risk their life and their liberty—they could go to prison. Today the Minister is trying to give effect to what was agreed in the House of Commons.

I will say something about the Minister’s comments in his reply to the noble Baroness, Lady Barker. His explanation of and reassurance on regulations was welcome. There have been concerns about this issue, and he dealt with it with enormous sensitivity. He will understand that some were sceptical about the reasons for having a longer timescale—the point my noble friend Lord Dubs made—than for same-sex marriage. I think he was clear, but can he reiterate any of the points on why that is the case?

We know that there are strong opinions on this and that this is a matter of conscience for everybody. Everybody in this House should respect that it is a matter of conscience for everybody, and we all have to abide by our conscience.

[Lord Elton]

Is the noble Baroness not going to take any notice at all of the fairly fatal criticisms, in some respects, made by the noble Baroness, Lady O’Loan?

[Baroness Smith of Basildon]

I listened carefully to the noble Baroness, Lady O’Loan, and there is some distance between us; we do not agree. As I pointed out, this is a matter of conscience and we should all respect other people’s views. We have to do what we believe in our own conscience to be right.

[Lord Duncan of Springbank]

My Lords, I have a large number of pieces of paper. If you will forgive me, I will just assemble them into an order I can make sense of.

As it was at earlier stages, this has been an emotive and thought-provoking discussion. I spoke earlier to, I hope, help the debate to be informed. On choreography, I always welcome people giving me the questions beforehand, because it helps me work out the answers. It really is as simple as that; it is not collusion in any sense. It may well have been that I gave the noble Baroness answers she did not like, but the point was that I knew at the outset what the questions would be.

The noble Lord, Lord Dubs, began his contribution by asking why the length of consultation could not be the same for abortion as for same-sex marriage. There is a relatively simple explanation for that. On same-sex marriage, we have established precedent in England and Wales, and in Scotland, that can be built on in a straightforward manner. What we seek to do in Northern Ireland is quite different; there is no roll-across regime we can borrow from. As a consequence, the new elements of that will require a fuller consultation. We cannot equate the two consultations, because they seek to consult on quite distinct and different elements.

I welcome the thought-provoking contribution today from the noble Baroness, Lady Finlay. She raised the issue of conscience. I know that a number of Peers have been concerned about the conscience element. As I did during previous discussions, I stress again that the conscience element must be at the heart of this. We cannot compel any practitioner to act beyond their own conscience. We must make sure that that is understood in the guidance that will be issued thereafter to all those involved in this process; that is absolutely critical.

The noble Baroness, Lady O’Loan, raised a number of issues. If she will allow me, I will do my best to do justice to them. The first, which I think I touched on the last time we discussed this, was the Sewel convention. The important thing to recognise is that under normal circumstances we shall use the Sewel convention, but I do not think there is any doubt that we are not in normal circumstances. The Sewel convention in this instance will not apply.

The question that I suspect my noble friend Lord Elton, the noble Baroness, Lady O’Loan, and others will raise is that of what happens during that limbo period when we move away from where we are now but before we have brought into play the functioning abortion regime. It is important to stress that, although we are looking at the 1861 Act and the elements we shall remove from it, during this limbo period the Criminal Justice Act (Northern Ireland) 1945 will still apply. Section 25 will still apply; this makes it a criminal offence to destroy any life of a child capable of being born. That will apply during that limbo period, until we have got to the stage where we have the newly functioning regime.

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[Lord Shinkwin]

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

[Baroness Smith of Basildon]

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

[Lord Shinkwin]

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

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

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

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

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

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


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

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

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

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

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

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[Lord Bruce of Bennachie]

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

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

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

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


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

[Baroness Smith of Basildon]

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

[Baroness O'Loan]

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

[Baroness Smith of Basildon]

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

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

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

[Lord Duncan of Springbank]

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

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

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

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

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

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