Northern Ireland (Miscellaneous Provisions) Bill

Lord Bew Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Empey]

My Lords, this is a very simple amendment. In Committee we discussed at considerable length the fact that we were seeking to ensure that the principles of merit and of equality of opportunity were always at the forefront of Civil Service recruitment. I take the point that in this case we have the anomaly that civil servants effectively are answerable to the devolved Parliament, whereas the Civil Service Commission is not. I believe, too, that if we cannot agree on the principles of merit and equality in terms of the Civil Service Commission, we are in severe difficulties.

I refer to the letter that the noble Baroness sent to us and to the fact that in Committee many people praised the Civil Service for its work in very difficult times over a prolonged period. Many civil servants conducted almost political negotiations on behalf of Ministers, in some cases at great risk to their personal safety. We owe them a debt of gratitude in that regard. The point was made that the situation in the 2010 Act gave the Whitehall Civil Service Commission one status, whereas the Civil Service Commission in Northern Ireland has a different one. The amendment was drafted to deal with that anomaly. I am interested to know how the Minister has reflected on these matters since Committee and whether she feels able either to support the amendment or to bring forward her own. I beg to move.

[Lord Bew (CB)]

My Lords, I support the amendment. The shadow of history lies over it. When the Northern Ireland Civil Service was established in 1921-22, something like 60 appointments were made without any normal procedures of recruitment being applied. Over a period of time a struggle to achieve a professional Civil Service began. The time between 1925 and 1944 when Sir Wilfrid Spender was head of the Civil Service was key. In the memoirs of a Catholic civil servant, Patrick Shea, who reached the top of the Northern Ireland Civil Service, one can see the degree to which great efforts were made to institutionalise procedures that reflected what Sir Wilfrid thought were the best procedures in Whitehall.

That backdrop explains why, when direct rule came, Ministers of all parties—I do not just mean Conservative, Labour or Liberal Democrat Ministers who had dealings with the Northern Ireland Civil Service, but Ministers who leant to one particular side or the other in Northern Ireland—always found that the Northern Ireland Civil Service delivered excellent and objective advice. If one looks at the non-controversial nature of north-south relations, which is of particular importance at the moment, it is clear that the big political decisions in such a context were made by the noble Lord, Lord Trimble, who is in his place today.

It is also the case that the work done by the Northern Ireland Civil Service in looking at areas of viable co-operation between north and south is a very important reason why the settlement is so stable. As the noble Lord, Lord Empey, has said, we owe a debt of gratitude to the Northern Ireland Civil Service. As I have argued, that integrity and professionalism has been hard won. The pressures of localism do not go away: it is not 1921 anymore. At this symbolic moment, it seems to me that noble Lords who supported this amendment want to say that a stronger message is desirable in terms of defining the principle of merit and of fair and open competition. That essentially is the idea behind this amendment: that that signal should be sent in a firm way.

[Lord Alderdice]

My Lords, whatever reservations I might have had with regard to the previous amendment I have none at all about putting my name to this one as it is very important. There was some talk in the debate on the previous amendment about the imposition of the will of the Westminster Parliament or Westminster Government on Northern Ireland. In a sense, this amendment and the next one refer to two clauses where it is almost as though the Westminster Parliament and Government are intentionally withdrawing their involvement and moving from excepted to reserved matters that were rather carefully put in the excepted category. Why? Many of us were conscious of the fact that over a substantial time in the historical period referred to by the noble Lord, Lord Bew, the United Kingdom Parliament and Government were less involved in that part of the United Kingdom than might have been advisable, and things went awry.

It does not seem to me that we have learnt from that. Indeed, some indications over the past two or three years are that people on this side of the water, relieved to some extent that Northern Ireland is less in the headlines than it was for 20 or 30 years, are just hoping that everything will go on all right. The noble Lord, Lord Kilclooney, has rung a warning bell that maybe things need attention, and I think he is right on that score. I have heard no demand in Northern Ireland for the issues referred to in this amendment or the next to be changed, so I am a little puzzled why these propositions have come forward in the first place. If they do proceed, they must be addressed properly.

I have two concerns. First, while I accord entirely with the positive remarks of the noble Lords, Lord Empey and Lord Bew, about the Northern Ireland Civil Service, and from my positive experience in most circumstances over some years, nevertheless, particularly as I was trying to get the Assembly up and running, it became apparent that many of the more senior civil servants were operating off a kind of Civil Service rulebook from 20 or 30 years before. They really had not kept up with the kind of developments of Civil Service culture on this side of the water. There was nothing malign about it but it seemed that things took rather a long time to get across the Irish Sea in terms of cultural change. So, one of my concerns is that if we simply offload and do not put appropriate rules in place, those cultural changes that take place on this side of the water may not be picked up as quickly back at home, and I do not want to see that.

Secondly, when appointing senior civil servants it is suggested that the Civil Service as a whole, and the basis on which it recruits, is entirely a devolved matter. That is clearly legally true. However, I ask my noble friend to consider—she may not be able to respond immediately—whether, if it became apparent that the merit principle did not apply and proper recruitment was not happening in Northern Ireland, would that not be a matter of concern to this Parliament? If it became apparent that there was discrimination, inappropriate appointments were being made or that the merit principle was not the key principle, is it seriously being suggested that this Parliament would have no locus, interest or legitimate concern, and that the Secretary of State who was responsible for negotiating the resources that those civil servants would spend, and who might have a legitimate concern for the propriety of appointments, could say nothing about it? I am not entirely persuaded that that argument stands up. I do not necessarily say that we would ever get to that position but if we talk ourselves into the notion that this Parliament and the Government have no say in the overwhelming majority affairs in Northern Ireland, that is a recipe for neglect, benign or otherwise. I do not want to contribute to that.

I support the amendment not only because, technically, I think it is important, and historically it is appropriate, but because it gives us the opportunity again—as the noble Lord, Lord Empey, said, they do not come by too often—to raise the issue of Northern Ireland and the responsibility of this place and the Government here on what is a devolved institution, not an independent one.

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[Lord Hope of Craighead]

The noble Lord is quite right that the powers of the Executive are controlled by convention rights. The legislative competence of the Parliament is controlled in the same way and it is open to a court to pronounce an affirmative order requiring a member of the Executive to do something. There are mechanisms, and these would be put into place through the existing devolved system. This is something that could be arranged, but that is quite different from what is being suggested here, which is, without that background and without that attempt being made, to simply legislate from this House. I underline the caution which is being properly urged on the House by the noble and learned Lord.

[Lord Bew]

My Lords, I rise to support a central point made by the noble Lords, Lord Lester and Lord Black, concerning the way in which the current arrangements contain the possibility of great unfairness and difficulty for the Northern Ireland judiciary. I am a supporter of the Defamation Act 2013 and, as noble Lords have said, I served on the Select Committee of both Houses. Put aside for a minute the wisdom or otherwise of that Act—and I do believe it is a wise Act—the problem for the Northern Ireland judiciary is that it is now stuck with the interpretation of an antiquated law, while the rest of the United Kingdom, in particular the media, will be operating fundamentally according to a rhythm set by the Defamation Act 2013.

I want to make a further point concerning the issue of forum shopping, or, as it applies in the Defamation Act, libel tourism. The Northern Ireland judiciary in recent cases—I am thinking particularly of the ruling by Mr Justice Deeny in the Sean Quinn case on 10 January 2012—has clearly set itself against what we might call forum shopping. Mr Justice Deeny argued that that key, very important bankruptcy case was not suitable for Belfast on the grounds that Mr Sean Quinn had had his being and his residence in the Republic of Ireland for the previous 32 years. That is a clear indication of the broad thinking of the Northern Ireland judiciary on this question of forum shopping. In the case of the libel law, it is the issue we used to know as libel tourism, which the Act is designed to deal with. So we know to some degree where the thinking of the Northern Ireland judiciary is on this question.

There is a sense within European law in general that forum shopping is not something to be encouraged, and yet Northern Ireland is stuck with legislation—our old libel law—which actually encourages forum shopping. I am just trying to bring home to the House that the point made by the noble Lords, Lord Lester and Lord Black, is actually a profound one. The judiciary of Northern Ireland is being placed in an extremely difficult position by the current arrangements. I understand the point made by the noble Lord, Lord Browne. I have already been approached by the Law Commission and I assure him that I will give as full evidence as I possibly can to it.

[Lord King of Bridgwater (Con)]

My Lords, I hesitate to intervene in something on which such distinguished legal brains have been brought to bear but, briefly, as a layman in these matters, I am very impressed by the arguments made by the noble Lord, Lord Lexden, and the power of the argument about the desirability of uniformity in the application of defamation laws. The noble Lord, Lord Browne, said that the advantage of devolution is that we can all make different laws. However, as a good unionist he will know that it is very desirable that as a union we stick together as closely as we can and do not make a principle of establishing every different law that we can between the different parts of the United Kingdom.

As a loyal member of the United Kingdom, I think it is desirable that the Executive of Northern Ireland should look at these matters as it seems that they are likely on some occasions to significantly disadvantage some of their own supporters, who might find themselves caught up in some very unfortunate implications. Although there is the devolved power, that power should be exercised also with respect to the position of other parts of the United Kingdom, which may find from the illustrations given by the noble Lords, Lord Black and Lord Bew, that these are difficult matters.

I hesitate to deviate from the noble Lord, Lord Lester, as he and I have a bit of history as well in some areas, as anybody will know who remembers the broadcasting ban or the amazing events when the chief constable decided to deprive female constables of the right to carry arms. The noble Lord, Lord Lester, was active during my time in that area.

At the end of the day, I am not quite clear from the exchanges that have taken place whether this is just genuine inertia or whether there is a fundamental objection within the Executive to doing this, thinking it totally undesirable in Northern Ireland, and exactly what the background to this is. However, I am prepared to accept that it is the determination of the Executive to address this, although they are moving very slowly. That is the most preferable way to go in terms of what the noble and learned Lord, Lord Carswell, said, and not to get caught by being unnecessarily accused of trying to undermine the devolution proposal. The message should go out very clearly from this House that we think this is highly desirable and almost essential to do. We look to the Executive to do it as speedily as they can and bring this matter into line, without imposing it in the amendment as proposed.

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[Lord Browne of Belmont]

I am not in a position to speak for the Executive or for my party in the Assembly. However, I am sure that they would wish to progress in a way that they believe will serve the people of Northern Ireland best.

I oppose the amendment and I hope that we will be able to proceed with the elections in Northern Ireland. Unlike the Ulster Unionists, I am not pessimistic about the outcome; I am very optimistic.

[Lord Bew]

My Lords, I support the amendment. It is not the least of the distinctions of the noble Lord, Lord Trimble, that he is a former First Minister of Northern Ireland. He is not the only former First Minister of Northern Ireland in this House, but he is the only one who can say that he was supported by a majority of both communities in the process of election. We have lost something in the structures of the Assembly and the way it operates simply by the absence of that process and that type of affirmation for the First Ministership.

However, I do not want to dwell on the past. A number of points have been raised today about the future and possible destabilising trends—some of which might or might not eventuate—and it is important that we do not sleepwalk into this possible crisis with the Executive and the institutions. The noble Lord, Lord Alderdice, asked a profound question, and one way of considering the implications of the question is that some of the parties, at least, to the current arrangements may no longer have precisely the same investment in those arrangements that they once had. If possible, there should be a dialogue or discussion in the Assembly with a view always to maintaining the stability of Northern Ireland, because there is a possibility, for the reasons mentioned by the noble Lords, Lord Kilclooney and Lord Trimble, that we are sleepwalking into a crisis with these institutions. The noble Lord, Lord Browne, is right: these institutions have delivered a form of stability for some years now, but that does not mean that they will continue to do so. I would like reassurance that the Government are keeping the matter under review and are not sleepwalking.

[Lord Maginnis of Drumglass (Non-Afl)]

My Lords, first, I apologise for intervening at this late stage and for not having been here, as one might have expected, at the beginning of the debate. I was detailed to find out some information about a serious event that took place in 2006. I have only just received the information that the person who was suspected of the Regent’s Park bombing many years ago was arrested by the Metropolitan Police some time past and was able to pull out of his pocket a letter dated 2006 which said that he would no longer be deemed a terrorist. Over the past few months, a court case, held virtually in secret, has revealed that 187 terrorists were given that letter in 2006, saying that, although they were terrorists, they would no longer be deemed to be so. How can we vote with any assuredness on this Bill when we discover belatedly that, subsequent to the St Andrews agreement, this sort of behind-backs, underhand deal was carried out by the Government at that time?