Northern Ireland (Stormont Agreement and Implementation Plan) Bill

Debate between Lord Bew and Lord Lexden

Thursday 28th April 2016 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to thank the noble Lord, Lord Dunlop, on behalf of all the Northern Irish Peers for the way in which he has handled this Bill and for the excellent degree of consultation which we have all been afforded by him. I think I can say on behalf of all the Northern Irish Peers with a special interest in this problem that we are very grateful.

I shall make one comment and ask the Minister for his view. We are in the middle of an election in Northern Ireland. During the campaign, there has been some discussion of the reserved issues that are being dealt with in this House, particularly electoral law. When politicians have been criticised by the public, they have been saying that it is Westminster’s responsibility. Does the Minister agree that our habit here—this Bill is an example of it—is to operate on the basis of an understanding that exists in Stormont, as, for example, in the Stormont House agreement? We debate things, we put forward ideas that we think might improve things a little, but fundamentally this Parliament does not see its way to upsetting understandings that exist in Belfast. That is the way that we have tried to proceed to strengthen the peace process. I find it a little difficult that, when members of the public have doubts about some aspects of this legislation, Members of the Northern Ireland Assembly say it is our fault. We tend to be following the understandings that we believe they have. Will the Minister comment on that? I thank him again for all his help.

[Lord Lexden (Con)]

I rise to make one or two comments on behalf of myself and the noble Lord, Lord Empey, who cannot be in his place today.

The Minister responded with skill and understanding to the points that were raised in our debates on Second Reading and in Committee, but he will be aware that the absence of further amendments on Report and at Third Reading does not indicate total contentment with all aspects of the Bill. There seemed no likelihood that the Government would accept any amendment whatever. As my noble friend Lord Empey pointed out, repeating an important comment he made in relation to the Scotland Act, it was as if we were presented with a treaty for formal acceptance and ratification. Agreements made between the Government and the devolved Administrations ought not to come before Parliament in this way, excluding any possibility of serious change. There is a fundamental constitutional issue here, which we need to bear in mind.

Finally, our discussions and those in the other place identified a number of areas where improvements were desirable. One was the pledge of office to be made by Ministers and Members of the Northern Ireland Assembly, yet the Bill will pass into law without providing any sanction if the pledge is breached. Northern Ireland should reap considerable benefits from this Bill, but it could perhaps have provided even more effectively than it does for the continued progress in the Province that we all want so fervently.

Northern Ireland (Stormont Agreement and Implementation Plan) Bill

Debate between Lord Bew and Lord Lexden

Thursday 21st April 2016 Lords Chamber

[Lord Lexden]

My Lords, at Second Reading I raised an issue of terminology in relation to the Bill. The text of it contains four references to Ireland as a state, which led me to wonder how this usage had arisen. Surely in international law the name of the state referred to in the Bill as “Ireland” is in fact “the Republic of Ireland”. I have tabled this probing amendment so that the issue could be explored and discussed.

Twenty-six counties of Ireland left the United Kingdom in 1922 to become the Irish Free State in international law. That state significantly amended its constitution in 1937 and, in 1948, its Government declared their intention to create a republic. The legislation which passed through its parliament is entitled the Republic of Ireland Act 1948. Its purpose was,

“to declare … the description of the state”,

as “the Republic of Ireland”. This Parliament brought itself into line with the new state of affairs when the then Labour Government of Clement Attlee passed the Ireland Act 1949. It stated that the “part of Ireland” which had declared itself a republic would,

“after the passing of this Act be referred to, by the name attributed thereto by the law thereof, that is to say, as the Republic of Ireland”.

So in 1949, an admirably clear state of affairs came into existence. Northern Ireland was plainly part of the United Kingdom and the rest of Ireland, now named the Republic of Ireland, was equally plainly a separate state on the same divided island.

Why depart from that clear position, settled in law by Acts of the United Kingdom Parliament and the parliament of the Republic of Ireland, sometimes referred to in everyday usage as the Irish Republic? As far as I can see, neither country departed from that for many years after 1949. I have been in touch with a number of constitutional experts, for whose advice I am deeply grateful, and they tend to take the same view.

The Government of the Republic of Ireland who signed the European Convention on Human Rights did so in that name; so did the later Government who signed the Anglo-Irish agreement of 1985. Legislation passed by this House which made reference to the Republic used the established legal terminology but suddenly, in an Act passed just 16 years ago in 2000 to amend the Northern Ireland Act 1998, there appears a reference to a Minister of “the Government of Ireland”. How could this have happened? The Ireland Act 1949 defined the name of the 26 counties of Ireland outside the United Kingdom as the Republic of Ireland, not as Ireland tout court.

Was this Parliament asked to approve the change of terminology? I have not been able to trace such approval and, in its absence, three questions immediately arise. Was the change the result of a ministerial decision? Could the change be legitimately made in that way without explicit parliamentary approval? If those were the circumstances, should Parliament reassert the law as defined in 1949? I pose those questions and make no party-political points. I accept that constitutional arrangements evolve but surely they should evolve clearly and openly, with full explanations of changes being provided to Parliament. This probing amendment seeks to draw attention to what seems a not unimportant issue. I beg to move.

[Lord Bew (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Lexden. On Second Reading, he said that it was a terminological point but it is rather more than that, as he has demonstrated today. It is actually a substantive point of some significance. I will draw attention to the fact that the loose use of the phrase “the Government of Ireland” has a bad history. The noble Lord said in his remarks on the Anglo-Irish agreement of 1985, accurately, that in the British text it is defined as an agreement between the Republic of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, but there were two texts of this agreement. In the Irish text, the agreement was defined as between the Government of Ireland and the Government of Great Britain.

The consequences of that are really severe for something vital to the whole peace process: the protection, preservation and respect for the principle of consent. When the McGimpsey brothers challenged the agreement of 1985 in Dublin’s Supreme Court, that Supreme Court ruled that it was an agreement between something called the Government of Ireland and the Government of Great Britain, and that any apparent remarks in the agreement of 1985 acknowledging the right of the people of Northern Ireland to determine the status of Northern Ireland were therefore of no substance because it was not clear what Northern Ireland was. It could conceivably have been the case that it was part of the Government of Ireland. This is fairly obviously a spurious argument; none the less, it was so used and accepted by the Irish Supreme Court. It therefore diluted what Her Majesty’s Government thought that they had achieved in 1985: an acknowledgement of the right of the people of Northern Ireland to determine their own future, which exists in the British version of the documentation.

Given the rather difficult history of the loose use of the phrase “Government of Ireland” it seems very surprising that it now not only appears in Irish government documents, which is to some degree understandable, but is starting to appear in the documents of the United Kingdom Government. This is surely a step too far. It has a dangerous prehistory and we need to be very careful about it. I believe that the Irish Government today fully support the principle of consent and that one of the great achievements of the agreement of 1998 was the fact that that support became absolutely explicit through a referendum of the Irish people, passed by a large majority. But having achieved this remarkable development, and therefore the possibility on which the whole peace process rests, we should not be playing around in any of our internal documents by using this loose language, which has such a troubled prehistory.