Northern Ireland Protocol Bill

Lord Caine Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I intervene briefly in support of these amendments requesting that the Government provide an economic impact assessment.

Nothing could better characterise the extraordinary nature of our debates today, Wednesday and next Monday—and their unreality—than the fact that the Government are asking us to enact a Bill that gives them complete powers to do whatever they like in circumstances where it has been impossible, in the Government’s view, to get a negotiated solution. I recognise that the Government’s preference is for a negotiated solution. They are proposing that we give them a blank cheque for that without telling us what the impact on the British economy or the economy of Northern Ireland might be. That is frankly bizarre. It is not truly credible.

Of course, we all know that, in the event and after we have given them those powers, they would probably publish something, but we need to know now. We need some guesstimates—I accept they could be only guesstimates—of what the likely consequences would be if the Government’s preference for a negotiated solution cannot be achieved and they use the powers in the Bill that they are asking us to enact. I cannot honestly think of an argument against it.

Five years before we joined the European Communities, the then Labour Government issued a White Paper under George Brown which was an impact assessment of joining the European Communities. Why is it impossible to do that now? Why can the Government not say what the impact would be if the car goes over the cliff? I hope the Government will relent and will provide some impact assessments of these matters, because we really need to see them before we are asked to vote on the Bill.

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

My Lords, I am very grateful to the noble Baroness, Lady Chapman of Darlington, for Amendments 12 and 15 in her name.

Since the Bill was introduced, the Government have engaged extensively with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. In addition to routine engagement, as I have mentioned, during the summer, the Government held over 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators to inform the details of how the dual regulatory and trade boundary models should work in practice. In response to the noble Baroness, Lady Ritchie of Downpatrick, I refer to some of my own engagement, not just with the dairy and agri-food sectors, but with business representative groups in Northern Ireland. That has been a similar experience to that of my right honourable friends, the Minister of State and the Secretary of State. We are very committed to this and we are reflecting on the huge wealth of feedback that we have received as we continue to develop the details of the underlying regime.

The clause is designed to provide stakeholders in Northern Ireland with certainty that the Government will deliver the solutions we have outlined. The House will have the opportunity to scrutinise regulations in the usual fashion, and the Government will provide all the usual accompanying material under normal parliamentary procedures. The full details of the new regime will be set out in, and alongside, regulations made under the Bill, including economic impacts where appropriate, so that Parliament may make informed scrutiny of the new regime which is being put in place.

The regulations themselves will be the product of engagement with businesses to ensure the implementation of the new regime is as smooth and operable as possible. Stakeholder views are of course important, but it is ultimately for Ministers to exercise these powers, and for Parliament to scrutinise and hold them accountable in the usual way. An additional requirement for the Government to lay an assessment and a report when it makes regulations using this power is therefore, in our view, unnecessary, and in that spirit, I urge the noble Baroness to withdraw the amendment.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister and to others who have contributed to the discussion on this group of amendments. I just gently say to the Minister that we do appreciate and respect the fact that a great deal of engagement is being undertaken by the Government and by others; we are all talking to businesses, and so we should. But that is not the same as a proper consultation process in line with Cabinet Office guidelines, which is what we really need here, because at some stage there will be decisions made by the Government about what they want to do, and it would be really unfortunate if those decisions were implemented without sufficient consultation. That is the point we are trying to get across to the Government at this stage, but for now I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking my noble friend Lady Ritchie for tabling this group of amendments. It has provoked an extremely interesting debate, with some strongly held views. First, in welcoming these amendments, my noble friend built on the contribution of my noble friend Lady Kennedy of The Shaws, who spoke last week about the importance of preserving the rights of people from all communities. The withdrawal agreement was not about the practicalities of trade; first and foremost, it was about setting out matters relating to the rights of citizens. Article 2 of the protocol reflects this, with the Government having committed to

“no diminution of rights, safeguards or equality of opportunity”

under the 1998 agreement.

The concerns raised by my noble friend Lady Ritchie are legitimate and need a detailed answer from the Minister. The Government’s obsession in relation to the European court is not helpful when it comes to questions about the rights of individuals. As my noble friend said, this is indeed an opportunity for the Government to show that they are protecting Article 2 at all costs.

The noble Lord, Lord Deben, asked a couple of very important questions. I think I wrote down correctly that he said that the Government do not even know the extent of the powers they are asking for in this Bill. That is quite a statement to make. He also gave a very telling comment about the importance of parliamentary restrictions when one has the responsibilities of a Minister. I thank him for making those points.

The noble Lord, Lord Bew, had a different view. He said that the Bill is less important than the noble Lord, Lord Deben, seemed to imply and that really the focus was on Articles 5 to 10; they are really the target of the Bill, not Article 2. I would be interested to see how the Minister reconciles those two points of view.

The noble Baroness, Lady Ludford, spoke of the law of unintended consequences. She went into some detail—almost the same level of detail as the noble Baroness, Lady Ritchie—with a number of questions that I hope the Minister will be able to answer, maybe in writing at a later stage.

The noble Lord, Lord Purvis, asked some interesting questions and reminded us all that two committees have highlighted the unprecedented nature of the Bill. This is an opportunity for the Minister to reassure us that the Article 2 rights can indeed be dynamically maintained through the Bill.

[Lord Caine (Con)]

My Lords, as ever, I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, for her amendments, which have provoked a wide-ranging debate at this late hour. I put on record my acknowledgment of her forthright defence of human rights in Northern Ireland over very many decades.

I note that some of the amendments that have been debated this evening follow on from briefings and comments made by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which are important institutions that were established under the 1998 agreement and were set out in the Northern Ireland Act 1998. They perform a hugely important function, as noble Lords have pointed out, as part of the dedicated mechanism under Article 2 of the protocol. I do not think there is any difference between us on that point.

I therefore reaffirm at the outset that the Government are committed to Article 2 and to ensuring that rights and equality protections continue to be upheld in Northern Ireland. If noble Lords will forgive me, I think I have long enough experience in Northern Ireland itself to understand the importance of those protections. That is why Article 2 is explicitly protected from being made an excluded provision by Clause 15 in the Bill. To be clear, the Government will not do anything to undermine the provisions of Article 2. We believe that the Bill gives us all the powers we need to ensure that we can protect it. The noble Baroness’s amendments therefore seek to address problems that we do not envisage arising from the Bill.

I could go into great detail now but, given the lateness of the hour, I will say that we will continue to look at these issues as we consider plans for secondary legislation under the Bill. We will be particularly mindful of any interactions with Article 2, given the interest of the Committee. In that spirit, I look forward to receiving the detailed questions from the noble Baroness in writing. Of course, I give her an undertaking that we will provide her with very detailed responses, which will be placed in the Library well in advance of Report so that noble Lords have a chance to consider them.

On the noble Baroness’s specific question, Article 2 is not excluded and cannot be. Section 7A of the European Union (Withdrawal) Act 2018 will always apply. None of the provisions that the noble Baroness mentioned ceases to apply to Article 2 under this Bill, including Article 13(3), the arbitration provisions, Article 5 of the withdrawal agreement and Section 7C of the European Union (Withdrawal) Act. As I say, I am happy to put this down in much more detail in writing so that all noble Lords will have a chance to consider the responses.

On the point made by the noble Lord, Lord Purvis of Tweed, regarding the EU negotiating mandate, I am happy to confirm that the Government are still engaging with the EU in talks, and we are clear that movement from the EU is needed that goes beyond its 2020-21 proposals. We need to be able to make changes to the protocol.

To conclude—

[Lord Purvis of Tweed (LD)]

I know that it is late; it is very kind of the Minister to give way. Just so we are crystal clear, that means that we have formally sought EU member states to seek a new mandate from the Commission.

[Lord Caine (Con)]

I am sure that the noble Lord will forgive me if I do not give a running commentary on the negotiations. I have set out the Government’s position, and I do not really want to be drawn beyond it.

[Lord Deben (Con)]

I am sorry to interrupt my noble friend, but when he replies to the points made by the noble Baroness, Lady Ritchie, will he answer the question not just whether the Government will do these things but whether they would have power to do these things? That is the question that most concerns me and many on this side of the Committee.

[Lord Caine (Con)]

I am grateful to my noble friend, and I will ensure that the answers to the noble Baroness are as full and detailed as possible.

In conclusion, given the lateness of the hour and the need to make progress, I genuinely believe that the aims of the Government, the noble Baroness and other noble Lords who have spoken in the debate this evening are broadly aligned. There might be differences of approach, but we do not believe that the amendments are required. I will write to the noble Baroness in detail and, in that spirit, urge her to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate, including the Minister who responded. I obviously look forward to the detailed answers following the submission of my speech, outlining the questions to him. What the noble Lord, Lord Deben, has just expressed, and it is the thread running through the contributions made by noble Lords this evening, is the fear of the power that Ministers will have through the regulations. That will have a damaging impact on Article 2, perhaps by default, but it is the worry and the concern of both commissions in Northern Ireland. I understand that they have a statutory duty under the dedicated mechanism to deal with these issues, but it might be useful for the Government to enter into discussions. I do not know whether that is possible, because one is the responsibility of the Northern Ireland Executive and the other is the responsibility of the Northern Ireland Office, but it might be useful, because of their joint responsibility, to have further discussions with them in relation to these issues.

Because of the lateness of the hour, I look forward to the answers from the Minister. I believe that the problem lies with the further powers in the regulations that are yet to be revealed to your Lordships’ House. At this stage, however, I beg leave to withdraw the amendment, with the proviso—dependent on the answers received—that I might bring some of these issues back on Report.

Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2022

Lord Caine Excerpts

Wednesday 7th September 2022 Lords Chamber

Moved by

[Lord Caine]

That the regulations and order laid before the House on 15 and 23 June be approved.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 5 September.

Motions agreed.

Health and Social Care Act (Northern Ireland) 2022 (Consequential Amendments) Order 2022

Lord Caine Excerpts

Monday 5th September 2022 Grand Committee

Moved by

[Lord Caine]

That the Grand Committee do consider the Health and Social Care Act (Northern Ireland) 2022 (Consequential Amendments) Order 2022.

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

My Lords, I hope to be even shorter with this piece of legislation. The Health and Social Care (Northern Ireland) Act was passed by the Northern Ireland Assembly earlier this year and received Royal Assent on 7 February 2022. The Act provided for the dissolution of the regional Health and Social Care Board and the transfer of its functions to the five Northern Ireland health and social care trusts.

A number of UK Parliament and Scottish Parliament Acts reference the now dissolved regional Health and Social Care Board, where amending those references would be outside the legislative competence of the Northern Ireland Assembly. Secondary legislation is therefore required to make consequential amendments to update references to the regional Health and Social Care Board so that the

“Northern Ireland Department of Health or health and social care trusts”


are referenced instead. This technical order seeks to update these references.

Although the order is primarily for administrative purposes, I would like to give a bit of background on the Health and Social Care (Northern Ireland) Act. All noble Lords will be aware that health is a devolved matter in Northern Ireland. The primary purpose of the Act was to implement recommendations made following a number of independent reviews and reports that had been commissioned over a number of years, from Donaldson to Bengoa, which found the current health system to be “overly bureaucratic and complex”. Those recommendations included the dissolution of the regional Health and Social Care Board and the transfer of its functions to the five Northern Ireland health and social care trusts.

As I said, the Act to give effect to this received Royal Assent on 7 February 2022, after which the Northern Ireland Health Minister, Robin Swann, requested that my department take forward secondary legislation to make consequential amendments to UK Parliament and Scottish Parliament Acts where the regional Health and Social Care Board is referenced.

Since then, officials have worked closely with colleagues across a range of UK government departments and with legal colleagues to identify the list of Acts where the now dissolved board is referenced, of which there are a total of 25. Twenty-three of those are UK Parliament Acts and two are Scottish Parliament Acts.

As I said, the order before your Lordships simply seeks to update references to the now dissolved body. There are no policy implications whatever; it is just a technical updating which the Government are taking forward. I beg to move.

--- Later in debate ---

[Lord Caine (Con)]

I am incredibly grateful to noble Lords for their contributions on what I rightly described as a very technical piece of secondary legislation. The main theme of contributions was the current problems in the health service in Northern Ireland and the need for a properly functioning Executive and Assembly to address them. I think we all agree on that. I reiterate what I said on the previous regulations: the Government and the Northern Ireland Office are fully committed, and I am personally committed, to doing whatever we can do ensure that those institutions are back up and running as quickly as possible.

The noble Lord, Lord Murphy, was not entirely accurate when he said that there were no Ministers in place at the moment. He will know, as the noble Baroness, Lady Ritchie of Downpatrick, acknowledged, that as a result of the Northern Ireland (Ministers, Elections and Petitions of Concern) Act, which we passed earlier this year, there is provision for Ministers to stay in place for up to 28 weeks after an election.

[Lord Murphy of Torfaen (Lab)]

I realised after I said it that I had dropped a clanger, but the point I was trying to make, which I am sure the Minister will come to, is that they are not Ministers in the sense of being completely accountable in the way that an ordinary Minister would be in any other legislature. Although they have limited powers, which they undoubtedly exercise as well as they can, it is not the same as if they were Ministers in a functioning Assembly and Executive.

[Lord Caine (Con)]

The noble Lord is absolutely correct to point that out. It is 24 weeks; I said 28 because the current deadline is 28 October. Although Ministers can stay in place, they are very limited as to what they can do—they cannot take decisions that would require executive agreement because there is no functioning Executive and they cannot take decisions that would be cross-cutting with other departments—but it is a preferable situation to the one we had when the Assembly was last down, when just civil servants were running the show. I am all too well aware of the limitations. For that reason, noble Lords are absolutely right to set out once again the urgency of restoring a properly functioning Executive and Assembly in which Ministers are fully accountable to the Assembly and, through the Assembly, to their respective electorates within Northern Ireland.

The noble Baroness, Lady Ritchie, again underlined with her questions on certain aspects of the legislation the importance of getting the Assembly back. Although her questions were directed at me they really should be directed by MLAs to the Health Minister. I am very happy to look into the matter for her, but it is essentially a devolved one on which further elucidation would be gained through Health Minister’s Questions in the Assembly rather than in a House of Lords Grand Committee.

[Baroness Ritchie of Downpatrick (Lab)]

I asked the question because we as a House of Lords are being asked to approve an order that would enable a change in in English, Welsh and Scottish legislation to reflect the dissolution of the Health and Social Care Board. In view of that, would the question not be quite prescient? I also thank him for going to ask the current Minister for that information on the projected savings and whether they will be ploughed back into the service.

[Lord Caine (Con)]

As I said to the noble Baroness, I am perfectly happy to do so. I appreciate that no MLA is able to stand up in the Assembly and ask those questions at the moment, so I am happy to look into the matter and come back to her.

I welcome the noble Baroness, Lady Brinton, to her place. She correctly identified my look of alarm at the fact that a Westminster health spokeswoman had come into a debate on Northern Ireland matters. She will be aware that I played no role whatever in the passing of the health and social care Act, so I must confess to a certain degree of ignorance of some of the matters she raised. Again, I am happy to look into them for her.

[Baroness Brinton (LD)]

I was making a generic point for Ministers to take away that, where these things emerge, I suspect it would be useful if there were some wider discussions, at least with the Front-Benchers involved with the relevant Bills. It is somewhat frustrating three-quarters of the way through a Bill to suddenly be told that amendments cannot happen, but I am absolutely not asking the noble Lord to deal with that on its own. We respect devolved authority and think it is really important, but we all have to learn how to work together. In this Bill, for once, it was the Westminster side that was left out until after other things had happened.

[Lord Caine (Con)]

I am grateful to the noble Baroness. Like her and many others in this Committee, I am a strong supporter of devolution across the United Kingdom and wish to see it function smoothly, efficiently and harmoniously across all parts of our country. I am very happy to have a look at what she suggested.

My noble friend Lord Lexden asked again about the problems in the health service. On the measures that might be necessary, I talked about the limitations on Ministers in the current scenario we face. Without straying into devolved policy areas, there are probably some quite radical measures and actions that need to be taken to deal with the situation that would be cross-cutting in the Executive, would require executive approval and would need to be quite bold, but which simply cannot happen within the current constraints, without a properly functioning Executive.

My noble friend is absolutely right: things are in a pretty poor state in Northern Ireland and this just underlines the need for the devolved Government to be back up and running as soon as possible. Although I do not necessarily share the reasons, I completely understand why the institutions are not up and running. That is why, without wishing to stray too much into other policy areas, the Government—including under the new Prime Minister, I am sure—are committed to resolving the issues which are preventing the establishment of the devolved Government that we all wish to see up and running. On that note, I commend the order to the Committee.

Motion agreed.

Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2022

Lord Caine Excerpts

Monday 5th September 2022 Grand Committee

Moved by

[Lord Caine]

That the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2022.

Relevant documents: 6th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the regulations before your Lordships today seek to align flag-flying days in Northern Ireland with the rest of our United Kingdom. As many noble Lords will be aware, the Flags Regulations (Northern Ireland) 2000, introduced by the noble Lord, Lord Mandelson, for the then Labour Government, provided that, on certain designated days, the union flag and in certain circumstances other flags must—I repeat, must—be flown on government buildings.

For the purposes of these regulations, a Northern Ireland government building is a building wholly or mainly occupied by members of the Northern Ireland Civil Service. The 2000 regulations also set out a number of “specified buildings” at which the union flag must be flown on the designated days in question. These buildings were chosen as they were the headquarters of Northern Ireland government departments. In 2002, the provisions were extended to court buildings in Northern Ireland.

Noble Lords will also recall that the New Decade, New Approach agreement in January 2020, which saw the restoration of devolved government in Northern Ireland after a period of almost three years, contained a UK government commitment to:

“Update the Flags Regulations (Northern Ireland) 2000 to bring the list of designated flag flying days from Northern Ireland government buildings and court-houses into line with the DCMS designated days, meaning the same designated days will be observed in Northern Ireland as in the rest of the UK”.


The updated 2022 list of designated flag-flying days was published by DCMS on 11 February this year, and it states that Her Majesty the Queen’s two birthdays and the birthday of His Royal Highness the Prince of Wales are the only royal birthdays to be observed for the purposes of flag flying. The regulations before your Lordships today will ensure that flag flying in Northern Ireland is aligned with this updated DCMS guidance and the policy followed across the rest of the UK. Prior to publishing the list of designated days, DCMS consulted a wide range of interested parties, individuals and bodies. I can confirm that the updated designated days reflect very clearly the wishes of the palace; the Committee should take note of that.

I understand that some Members will be disappointed that the number of designated flag-flying days in Northern Ireland will be reduced as a consequence of these regulations. I stress that our approach to flag flying in Northern Ireland through regulations has consistently sought to reflect Northern Ireland’s clear constitutional status as an integral part of the United Kingdom, as well as the reality of different political aspirations and sensitivities that exist across society.

I also point out that, as designated days are a matter of law in Northern Ireland, revised regulations must be considered by the Assembly ahead of being approved by both Houses of Parliament here in Westminster. I can inform noble Lords that, ahead of the most recent Northern Ireland Assembly election, Members of the Northern Ireland Assembly considered and approved these regulations on 15 March this year.

The 2000 flags order also requires that consideration be given by the Secretary of State for Northern Ireland to the Belfast agreement when making or amending flags regulations. I confirm that the Secretary of State is satisfied that these regulations are in accordance with the provisions of the Belfast agreement and that the regulations treat flags and emblems in a manner respectful of Northern Ireland’s particular circumstances.

The Government will continue to ensure that our approach to flag flying reflects the sovereignty of the United Kingdom in Northern Ireland, our Belfast agreement commitments and the need for sensitivity. On that note, I look forward to contributions from noble Lords today but commend this largely technical instrument to the Committee. I beg to move.

[Lord Murphy of Torfaen (Lab)]

My Lords, I apologise for delaying the Committee for some minutes. I completely abandoned my toasted teacake to get here very quickly; I had mistaken the time.

The Minister is right that it is a technical change, of course, but it reflects the significance of flags in Northern Ireland. This was a cause of great bewilderment to me when I first went there so many years ago—25 or 30 years ago—including the fact that one saw the Palestinian and Israeli flags: the Israeli flag generally in loyalist areas and the Palestinian one generally in nationalist areas. It reflects identity, not as Palestinians and Israelis—those are political choices—but rather the identity of people as they see themselves.

The law is clear. The flags to be flown on public buildings are flown on them because those buildings are part of the United Kingdom. Clearly, if the rules change in Great Britain, they should change in Northern Ireland as well.

It is quite interesting to read the Assembly’s proceedings on this particular statutory instrument. It was, as always, an intriguing and interesting debate that reflected the wider view on flags in Northern Ireland.

On balance, the issue has been dealt with sensitively over the last two decades, but there have been some notable exceptions, such as over Belfast City Hall some years ago, which caused a great deal of fuss. You have to be very careful in what you do about flags. It is pretty clear that this particular change was initiated by the palace. Noble Lords will ask why for themselves—I think it is pretty self-evident—but the commemoration of the birthdays of all the royals has had to be abandoned on the flagpoles of Northern Ireland as a consequence of what I think this change resulted from. The essence of this is that what happens in Britain happens in Northern Ireland as long as it remains part of the United Kingdom. Even if it did not, it would still have to have sensitivity about flags. However, it is still part of the United Kingdom, so I support the statutory instrument.

--- Later in debate ---

[Lord Hannan of Kingsclere (Con)]

My Lords, I had not planned to participate, but I give my full-throated support to what the noble Baroness, Lady Suttie, suggested. Not only is the Somme important in the iconography and history of the 36th (Ulster) Division, but it is often forgotten that more southern Irish Catholics died in British uniform during the Somme offensive than participated in the Easter Rising. That fact was for a long time brushed under the carpet. One of the more welcome signs of the approximation of the Governments in these islands is that those volunteers—they were all volunteers in Ireland—were eventually brought in and recognised, albeit long after the event.

It is a grisly memorial and a rather awful thing that we remember—the whole history of the world cannot contain a more horrible word, as one German veteran said. Yet it is something we all have in common in these islands, including me. I have a great-uncle whose name is carved on the rather skeletal memorial at Thiepval. Here is a suggestion with cross-community support and broad support in this House and in another place. It is something that I hope my noble friend the Minister will consider taking forward.

[Lord Caine (Con)]

My Lords, I am extremely grateful to noble Lords who have participated in this short debate on the instrument before us. I shall respond to one or two of the points raised.

I am very grateful that the noble Lord, Lord Murphy, managed to abandon his toasted teacake and get here in time to participate. I hope he can return to it, or a warmed-up version, at some point later this afternoon. He mentioned that the issue of flags is very sensitive, as did the noble Baronesses, Lady Suttie and Lady Ritchie of Downpatrick. Of course, we all know why that is the case. I commend the initiative of the Labour Government back in 2000 in grappling with this issue, which was seen as rather too difficult for the Northern Ireland Executive and the Northern Ireland Assembly to resolve. As a consequence of their actions and those taken subsequently by this Government, we are in a much better place when it comes to the flying of flags from government buildings and there is a wide degree of consensus.

The noble Lord is right to remind the Committee of the difficulties that can arise, and I am well aware of what happened in Belfast from late 2012 well into 2013 with the decision on the flying of the union flag. The noble Baroness, Lady Ritchie, asked whether we had worked with councils. We have, of course, but, as she is aware, flag flying from council buildings is not covered by the regulations but is a matter for district councils themselves. I will reflect on her suggestion.

The noble Baroness, Lady Suttie, referred to the possibility of making 1 July, the anniversary of the first day of the Battle of the Somme, a designated day, and I have a great deal of sympathy with what she said. My noble friend Lord Hannan was very supportive. I have visited the Somme battlefield probably 11 or 12 times in the course of the past 12 years. I was there for the centenary in 2016, at the Lutyens memorial to the missing and the Ulster tower, and later in September that year. As my noble friend reminded us—it should never be forgotten—the contribution of the 36th (Ulster) Division on 1 July was heroic, as was the contribution of the 16th (Irish) Division in September 1916 at Guillemont and Ginchy. For those who have never visited, it is always a very moving occasion.

My noble friend talked about the number of southern Irishmen who gave their lives. When I was there last July, I managed to locate the inscription of a former Member of the other place, Tom Kettle, the MP for East Tyrone, whose name is one of the 72,000 on the Lutyens memorial. I think something like four out of the nine Victoria Crosses awarded at the Somme went to members of the 36th (Ulster) Division, so I am aware of its importance and resonance across Northern Ireland and the wider island of Ireland. In response to that specific request, I am very happy to take it up with DCMS, which I know regularly consults on the designated days. My personal view is that it is a very worthwhile suggestion.

The noble Baroness, Lady Ritchie of Downpatrick, asked about executive formation and so on. Of course, I am not yet in a position to second-guess what steps the new Prime Minister might take from tomorrow, and we are in a slight state of flux over the next 24 hours, but I am confident that the new Prime Minister and whoever might be the Secretary of State, whether it continues to be the current holder or it is a new appointment, will remain very committed to working as a matter of urgency to deal with problems around the protocol but also the impasse preventing the re-establishment and reformation of a Northern Ireland Executive.

None of us wishes to be in this situation. We all want to see the institutions established by the Belfast/Good Friday agreement fully functioning and up and running. On these occasions I always look to the noble Lord, Lord Murphy, who played such a key role in the negotiations, particularly on strand 1 of that agreement, back in 1998. It is my personal commitment and the Government’s that we wish to see devolved power-sharing government and the institutions that flow from that. We should never forget that strands 2 and 3 of the agreement do not function properly without strand 1. To get all the strands of that interlocking agreement back up and running will remain an absolute priority for Her Majesty’s Government.

The noble Baroness talked about parity of esteem in flag flying. These regulations deal only with the flying of flags from government buildings and, as I said in my opening remarks, they reflect the clear constitutional position of Northern Ireland as part of the United Kingdom. The agreement contains provisions on parity of esteem, but it is always sensible to remember that it never created a hybrid state; Northern Ireland is either part of the United Kingdom or part of a united Ireland, and I am very happy to say that it continues to be part of the United Kingdom of Great Britain and Northern Ireland. There is always the need for sensitivity when it comes to such issues, and I hope that I reflected that in my opening comments.

This is a technical change that reflects the updated list published earlier this year by DCMS after consultation with the palace. It keeps Northern Ireland fully aligned with the rest of the United Kingdom.

Motion agreed.

Northern Ireland: Operation Kenova

Lord Caine Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Hain]

To ask Her Majesty’s Government what assessment Ministers have made of the Operation Kenova investigation into past paramilitary criminal offences in Northern Ireland.

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

My Lords, before I answer the noble Lord’s Question directly, I am conscious that between now and the end of this month we will see the 40th anniversary of the Hyde Park bombings, the 50th anniversary of Bloody Friday and the Claudy bombings and 32 years since the murder of Ian Gow, a friend of many of us in this House. All were heinous, wicked terrorist atrocities which were totally unjustified. Our thoughts, as always, are with the survivors and victims.

Operation Kenova has conducted much commendable work since its establishment in 2016, particularly through its ability to build trust and confidence with those engaging with its investigations. The Government very much hope that the best practices established by it will be carried through into the new legacy bodies once they are established.

[Lord Hain (Lab)]

I thank the Minister for his reply, particularly his reminder to the House about past atrocities, which we should never forget. Before the Northern Ireland legacy Bill, to which he referred, comes to this House, will Ministers agree to an amendment that I will table to adopt the Operation Kenova investigations model? Lamentably, the Government’s current amnesty provisions—that is what they are—favour perpetrators of atrocities over the needs of victims. Kenova uncovers crucial information because it is carrying out investigations to criminal justice ECHR Article 2-compliant standards, with 32 of its cases referred to the Public Prosecution Service, and so offers potential justice to victims and upholds the rule of law in a way the Bill does not. As currently drafted, the Bill does neither and is opposed by all victims’ groups and Stormont parties. Surely, Ministers should think again.

[Lord Caine (Con)]

The former Secretary of State for Northern Ireland makes a number of important points. As I said at the outset, Operation Kenova has conducted much commendable work and I pay tribute to the way in which Jon Boutcher has set about his task. The noble Lord probably asks me to go a bit too far in agreeing to amendments before we have even considered Second Reading of the Bill in your Lordships’ House. As he is aware from my record in taking other legislation through this House, I am always prepared to look at any amendment on its merits and give it due consideration. I am very happy to sit down with the noble Lord and any other noble Lords across the House prior to Second Reading to discuss the contents of the Bill.

[Lord Robathan (Con)]

My Lords, does the Minister agree that there can never be any moral equivalence between those who were sent by this Parliament to defend the rule of law—they sometimes made mistakes but they were under a huge amount of pressure—and those who went illegally, with weapons, to murder and cause mayhem?

[Lord Caine (Con)]

My noble friend will not be in the least surprised to hear that I agree with his comments entirely. He makes very important and powerful points. There is no moral equivalence between those who set out to uphold the rule of law and defend democracy and those who sought to destroy both. His question gives me the opportunity to place on record once again the enormous debt of gratitude we all owe to the members of the Royal Ulster Constabulary, George Cross, and the members of our Armed Forces for their work in Northern Ireland. Of course mistakes were made but, overall, it is a record of which they and we can be very proud.

[Lord Murphy of Torfaen (Lab)]

I very much agree with my noble friend Lord Hain, about learning from the processes of Operation Kenova. Since, as the Minister knows, every victims’ group in Northern Ireland, the Irish Government and every single political party in Northern Ireland disagrees with the Bill, is it not time to go back to the new Secretary of State, rethink the Bill, or preferably abandon it altogether?

[Lord Caine (Con)]

I appreciate the spirit in which the noble Lord, another distinguished former Secretary of State, makes his point. As he will know from his time in office, finding consensus around legacy and the past is incredibly difficult and has eluded successive Governments. I was intimately involved in the Stormont House negotiations in 2014, when we thought we had reached some kind of agreement. That subsequently unravelled in the following years. These are very difficult matters but, as I said in response to a previous question, I am very happy to meet victims’ groups, political parties, the Irish Government and Members of your Lordships’ House to see if there are ways in which the Bill can be improved.

[Baroness O’Loan (CB)]

My Lords, I declare an interest as a member of the international steering group for Operation Kenova, on which I have served for six years. Is the Minister aware that Operation Kenova has been investigating some 200 murders over a span of 25 years, including the murders of three police officers in 1982 at the Kinnego embankment, and that Kenova has submitted some 33 investigations to the DPP since 2019, but that no prosecutorial decision has issued in respect of the murders and abductions, apparently because of a lack of resources? How does the Minister view the Northern Ireland Troubles (Legacy and Reconciliation) Bill, now before your Lordships’ House, which will prevent anybody whose loved one died as a result of the Troubles terrorism, whether in England, Scotland, Wales or Northern Ireland, being able to have an inquest or bring any civil action for damages, and even from having a proper investigation which will lead to a prosecution? Can the Minister explain how this is consistent with the operation of the rule of law, of which we are so proud in the United Kingdom?

[Lord Caine (Con)]

I thank the noble Baroness for her question and acknowledge her work on Kenova, and as a former Police Ombudsman for Northern Ireland. She makes a large number of points, which are probably worthy of a debate rather than Question Time. She highlighted the point that over 30 case files are currently with the Director of Public Prosecutions for Northern Ireland. Funding for the DPP and the Public Prosecution Service for Northern Ireland is a devolved matter for the Assembly, not for Her Majesty’s Government. It highlights the fact that the cases where criminal justice outcomes have been sought take a huge amount of time. The Government are trying to focus on moving towards a more information recovery-based approach to legacy cases, which will, we hope, allow victims to access more information more quickly than would be the case with long, drawn-out prosecutions.

[Baroness Suttie (LD)]

My Lords, as the Minister said, he knows how important it is to build consensus on this matter in Norther Ireland. However, it is clear—I hope he will acknowledge this—that there is no consensus for the legacy Bill. I am pleased the Minister has agreed to meet the victims’ groups and the political parties in Stormont over the summer, but will he commit to listening to what they say and bringing forward a different Bill or, preferably, to scrapping the Bill as it stands?

[Lord Caine (Con)]

I thank the noble Baroness for her question. As I think I have outlined in my response to previous questions, I am very happy to do that. I think she will know, from experience of dealing with me, that I am always prepared to listen.

[Lord Lexden (Con)]

My Lords, was not my noble friend right to remind us of the anniversaries of terrible terrorist atrocities in order to keep proper perspective on these matters? I speak as one who was not far from the Oxford Street bus station in Belfast just after 3 pm on 21 July, 50 years ago, when an IRA car bomb killed six people and injured nearly 40. Is it not one of the objectives of terrorists and their sympathisers to try to rewrite history, to draw attention away from their evil deeds? Is it not the duty of all of us to ensure that they do not succeed?

[Lord Caine (Con)]

I agree entirely with my noble friend. It is worth remembering that, on the day in question, some 20 bombs were exploded in the space of about 80 minutes in the centre of Belfast, killing nine people and injuring 130—it was utterly horrific. My noble friend is correct to highlight the attempt by some to rewrite history. We have seen over recent years, I am afraid, a pernicious counternarrative of the Troubles, which tries to place the state at the heart of every atrocity, denigrates the contribution of the police and our Armed Forces, and seeks to legitimise terrorism. We should strongly resist that.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the noble Baroness, Lady O’Loan, referred to Kenova and its lack of resources. Would the Minister and colleagues talk immediately to the Justice Minister to ensure that both financial and staff resources are provided to a legacy investigation unit within the Public Prosecution Service, so that it can carry out the prosecutions that will flow from the Kenova inquiry, rather than pursuing this legacy Bill, which has been rejected by everybody in Northern Ireland?

[Lord Caine (Con)]

I thank the noble Baroness for her question. As I made clear in my response to the noble Baroness, Lady O’Loan, funding for the Public Prosecution Service in Northern Ireland is a devolved matter for the Department of Justice.

Identity and Language (Northern Ireland) Bill [HL]

Lord Caine Excerpts

3rd reading
Wednesday 13th July 2022 Lords Chamber

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

My Lords, as I and many other noble Lords have made clear on numerous occasions, it is a matter of great regret that we have been debating the contents of this Bill in your Lordships’ House. It would have been far preferable had the Bill been taken forward by the Northern Ireland Executive in the Northern Ireland Assembly, as was originally intended, but that plainly has not happened, which is why we have had to make progress on the important New Decade, New Approach commitments that the Bill delivers within this Parliament.

Since the Bill’s introduction into your Lordships’ House there has been neither a functioning Executive nor an Assembly, and that remains the case. It has therefore not been possible for the Government to seek a legislative consent Motion. My officials have been engaging with counterparts in the Northern Ireland Civil Service throughout the Bill’s passage and will continue to do so. I think I speak for the whole House when I say I hope that, by the time the Bill leaves the other place, such consent will have been given by a restored Executive and Assembly.

Motion

Moved by

[Lord Caine]

That the Bill do now pass.

[Lord Caine (Con)]

My Lords, as we come to the end of the passage of the Bill through your Lordships’ House, I want to place on record my gratitude to all noble Lords who have participated in our debates upon it. In particular, I thank the noble Lord, Lord Murphy of Torfaen, who speaks with great wisdom as a former Secretary of State for Northern Ireland and the Minister who helped negotiate the Belfast agreement in 1998, and the noble Baroness, Lady Suttie, for their support for the Bill and their constructive and pragmatic engagement during its passage.

I thank all noble Lords from Northern Ireland for their detailed and insightful contributions. While some of them might not like every aspect of the Bill, and I am sure that their colleagues in the other place will continue to push the Government in a number of areas, I appreciate the collaborative and open manner with which they have engaged with me and put forward their arguments.

It will come as no surprise to many that I found the most enjoyable aspect of the Bill’s passage the debate on the Castlereagh Foundation, the establishment of which the Bill will enable. It provided us with an opportunity in Committee and on Report to discuss the great contribution that Viscount Castlereagh made to Irish, British and European history, not least as the architect of the Act of Union and a key figure in defeating the Bonapartist tyranny in the early part of the 19th century. In doing so, we have benefited immensely from the expert historical knowledge and wisdom of my noble friend Lord Lexden, who I see in his place and to whom I am especially grateful and have been ever since he took the bold decision to employ me 35 years ago.

Finally, I place on record my thanks to my noble friend Lord Younger, my officials from the Northern Ireland Office, the Whips’ Office and all those involved in the Bill’s drafting for their hard work and support. The aim of the legislation is to implement important commitments in New Decade, New Approach, which, noble Lords will recall, led to the restoration of devolved government in January 2020. In remaining faithful to New Decade, New Approach, I am pleased that the Government were able to table amendments to the Bill and to make commitments in response to the debates we had.

As a result, I believe that the Bill is in a better state thanks to your Lordships’ scrutiny. Once again, this demonstrates the value of your Lordships’ House in examining legislation in detail. It is now over to the other place and, I sincerely hope, to a reconstituted Northern Ireland Executive and Assembly, to continue and complete the work we have started in your Lordships’ House.

[Lord Murphy of Torfaen (Lab)]

My Lords, I echo the view of the Minister in the sense that the debates have been very good, informative and useful. They have also been informed from the point of view of many contributions from Members of your Lordships’ House from Northern Ireland, which enhanced the quality of the debate considerably. I thank the Minister for the very civilised way he handled this Bill at Second Reading, in Committee and on Report, and all Members of your Lordships’ House who took part.

The Minister rightly says that the Bill is based on New Decade, New Approach, which was an all-party agreement some years ago in Northern Ireland, and the Bill faithfully sticks to that agreement. There have been some improvements and, again, I am so glad that the Minister and the Government were able to accept those changes; for example, to how the Secretary of State’s step-in powers would be dealt with by Parliament. There were also changes, such as the Castlereagh Foundation, which originally was not in the Bill, and in the title of the commissioner for Ulster Scots to add the Ulster-British tradition. These came about because we had a good debate, and because these were sensible things to do.

I wish the Bill well. It is founded on the principles of the Good Friday agreement of equality, of ensuring that people have respect for each other, and of parity of esteem—which came up many times in debate. There is still an opportunity in the House of Commons for further changes to be made, so long as they are in step with the agreements made in Belfast. I wish it well on its legislative journey.

Identity and Language (Northern Ireland) Bill [HL]

Lord Caine Excerpts

Report stage
Wednesday 6th July 2022 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, first, I apologise for my non-participation at Second Reading, due to the fact that I was at Queen’s University on that day receiving an honorary professorship, and in Committee because I had Covid. However, I watched that stage from the comfort of my bedroom and found that some very interesting points were made on that day. I support and endorse the comments made by my noble friend Lord Murphy and those of the noble Baroness, Lady Suttie.

The Bill would have been much better dealt with in the Northern Ireland Assembly by its Members. Obviously, however, there is a necessity for the UK Government, via the Northern Ireland Office, to bring forward this legislation in Parliament because it could not seem, regrettably, to be progressed through the Northern Ireland Assembly. I support the clauses and central purpose of the Bill: to deliver on large aspects of the New Decade, New Approach agreement, which was the basis of an agreement between the five main parties in Northern Ireland, resulting in the formation of the Executive, the Assembly and other institutions in early January 2020. I support the Bill and want to see it implemented, subject, obviously, to the amendments in my name and that of my noble friend Lord Murphy, and the noble Baroness, Lady Suttie, along with others that I have tabled in respect of powers to do with the Secretary of State.

I believe in and support the Irish language. I did Irish at school up to GCSE/O-level and then attended, on two separate occasions, the Gaeltacht in north-west Donegal. You were expected to speak Irish in the house you were allocated there and in the school—the Irish College. I am also a firm believer that place names in Ireland, both north and south, and many words in Irish inform and teach us about her heritage, our unique geographical landscape and our environment. In fact, many of our towns on the island, north and south, have Anglicised versions of the old Irish names. That is not by way of a political point; it is simply a historical fact of heritage.

I also support the provisions for Ulster Scots as a linguistic grouping that transcends traditions in Northern Ireland. In many ways, perhaps it should not be conflated with identity, but I understand the pressing amendments in that respect. My name is from the lowland Scots, so I represent the Gael and the Planter, which I do not see as an offensive personal identification mechanism. Like the Ulster poet John Hewitt, I see that as a means of identification because it represents the richness and beauty of diversity and challenges us all on that necessary path to reconciliation.

To revert to the amendments on public authorities, I am very much in agreement with my colleagues who have just spoken. I suppose part of the reasoning behind the original drafting was that the Bill was meant to be dealt with by the Northern Ireland Assembly and Executive, hence there was no reference to the Northern Ireland Office and the Human Rights Commission, which has direct responsibility and derives that authority from the Northern Ireland Office.

I make a special plea to the Minister, because we are dealing with this in the UK Parliament, to give due consideration to and accept these amendments. I also suggest, if that is not possible today, that he goes back to his ministerial colleagues in the NIO to see what may be possible and considered acceptable through the passage from this House to the other place, and in so doing that have a period of reflection. I know that these issues were also discussed in Committee because other areas are not included, such as the UK Passport Office, vehicle tax and registration, the Parades Commission, Covid testing and money and tax services.

I believe that for the provisions of the Bill to have meaning in government circles, the two mentioned here—the NIO and Human Rights Commission—need to be immediately included and the Government should give consideration to those and others in the fullness of time. I fully support this amendment.

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

My Lords, I am very grateful to the noble Lords who have spoken to these amendments. I say at the outset how grateful I am to the noble Lord, Lord Murphy. As I made clear in my first speech from this Dispatch Box as a Minister, while we might not agree on everything all the time, when it comes to Northern Ireland I will always try to adopt as consensual, bipartisan and open an approach as possible. I am very grateful to the noble Lord.

He mentioned the Bill being a faithful implementation of the New Decade, New Approach agreement from January 2020 and that is what the Government have sought to do. However, I agree with other noble Lords that this really should have been dealt with in the Northern Ireland Assembly and not within this Parliament. It is a matter of regret that this is the case. I remember first-hand the period from 2017 to 2020 when these issues paralysed politics in Northern Ireland and led to a prolonged lack of functioning devolved government. It was a particularly frustrating period and I am very sorry that we are going through a similar period now, which I hope will be much shorter lived than last time.

Turning to the amendments, I am grateful to noble Lords for the spirit in which they were moved and spoken to. As noble Lords made clear, they seek to widen the definition of “public authorities” in the Bill beyond those captured in the Public Services Ombudsman Act (Northern Ireland) 2016. As noble Lords have mentioned, we had a very wide-ranging discussion in Committee. I am very sorry that the noble Baroness, Lady Ritchie of Downpatrick, was unable to be present. I hope that watching proceedings from her bedroom helped mitigate some of the Covid symptoms she might have experienced and aided her recovery, which we all very much welcome.

I do not intend to cover the same ground today as I covered extensively in Committee. However, the definition of public authorities for the purposes of the Bill, as with other parts of the legislation—this goes back to the comments of the noble Lord, Lord Murphy, about being faithful to New Decade, New Approach—is consistent with the legislation that was drafted by the Office of the Legislative Counsel in Stormont and published alongside New Decade, New Approach. As a result, the Bill does not seek to innovate in respect of that definition by removing or adding public authorities. It seeks to make provision comparable to a situation in which the Assembly, rather than this Westminster Parliament, had taken forward these commitments. The Northern Ireland Office and the Northern Ireland Human Rights Commission, and indeed any of the bodies to which the noble Baroness referred, such as the Passport Office, were not intended to be captured by these commitments. That was never agreed and, as I said in Committee, the range of public authorities listed under the Public Services Ombudsman Act (Northern Ireland) and in this Bill is substantial and comprehensively covers devolved areas.

The Government consider that it would be inconsistent to expand the definition of public authorities beyond that set out in the draft legislation to which I have referred. Further, adding two or indeed more organisations with functions outside the devolved competence, such as the Northern Ireland Office and the Northern Ireland Human Rights Commission, would undermine the overarching approach, which is that the First and Deputy First Ministers should be the sole arbiters when designating public authorities. There are of course provisions in this Bill that would allow the First and Deputy First Ministers to add or subtract from the public authorities that this legislation covers within Northern Ireland. To introduce organisations for which the First and Deputy First Ministers do not have direct responsibility would, I gently suggest, muddy the waters and detract from their role.

I would also suggest that the public in Northern Ireland do not routinely interact with the Northern Ireland Office, which for the most part does not deliver or provide day-to-day front-line services to the public that would seem to trigger the relevant provisions on Irish language and Ulster Scots. Of course, given the close interest of the Northern Ireland Office in the New Decade, New Approach commitments on which the Bill delivers, I would still expect consideration to be given to the national and cultural identity principles set out in the first part of the Bill, and the guidance issued by the respective commissioners. I would expect much the same with the Northern Ireland Human Rights Commission.

However, the extension of the legal duty as proposed in these amendments would, in our view, be inconsistent with New Decade, New Approach and seem impractical for the reasons I have given. I therefore hope that noble Lords will not press their amendments.

[Lord Murphy of Torfaen (Lab)]

My Lords, I understand the points the Minister makes. He also makes the point that, eventually, as this Bill is embedded in Northern Ireland law over the years ahead, the Assembly itself might decide to make changes and that, in the meantime, the bodies to which I have referred—the NIO and Northern Ireland Human Rights Commission —must still stand by the principles that underlie this legislation. So in that regard, I am happy to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Caine]

2: Clause 1, page 3, line 22, leave out from “Commissioner” to “Ulster” in line 24 and insert “for the Ulster Scots and the”

[Lord Caine (Con)]

My Lords, these amendments in my name all concern proposed changes to the differentiation in the Bill between Ulster Scots as a recognised national minority and the Ulster British tradition. Following the extensive debate on these matters in Committee, I undertook to consider proposals put forward by noble Lords and, in tabling these amendments, I hope I have fulfilled that commitment.

--- Later in debate ---

[Lord Dodds of Duncairn (DUP)]

My Lords, I will very briefly add a word or two. By way of general introduction, I agree with noble Lords who have already said that this is a matter that should be decided and debated in the Northern Ireland Assembly rather than in this place. Of course, had the Government wished that to be the case, they could have left it to the Northern Ireland Assembly. However, it was a decision taken by Her Majesty’s Government to bring it here, and we are therefore debating it today. Nevertheless, we are now examining these matters in detail, and the other place will deal with this in due course.

Since I had spoken on this issue of accountability and financial responsibility in Committee, I wanted to agree with the noble Lord, Lord Morrow, in the amendments that he has set out, and to stress the point that the Minister in Committee said that these were matters for the Northern Ireland Assembly and therefore that it would be inappropriate to have Whitehall, the Northern Ireland Office or this Parliament have reports presented to them on expenditure in relation to these commissioners, bodies and so on. But the amendment to which the noble Lord, Lord Morrow, has referred on the costs to public authorities, which would require that a report be laid before the commencement of the Bill, is right and proper for this Parliament to consider. It is entirely right that the Comptroller and Auditor-General will examine the accounts of the commissioners’ offices, and I urge that that should also look at the parity issue in relation to the fairness of expenditure across the board between the two offices and the office of identity and cultural expression.

However, the impact on public authorities has not been adequately investigated or probed thus far. While the Minister referred to cost, which the noble Lord has alluded to, in the Explanatory Notes, as I understand it, the estimated cost to public authorities of fulfilling the requirements in terms of guidance and so on has never been set out. I would be grateful if the Minister could deal with that point in his response and indicate whether any study or work has been done with those public authorities which will be engaged and affected by this legislation and by the guidance that emerges from the commissioners’ offices. Has any work been done with them about the impact on them in terms of costs, where any budgetary pressures may emerge and how those will be met? This matter deserves a little more scrutiny. We have had representations on it, and I hope that the Minister can address it when he sums up.

[Lord Caine (Con)]

My Lords, I am very grateful to the noble Lords, Lord Morrow and Lord Dodds of Duncairn, and to my noble friend Lord Empey. I too regret that he cannot be here this afternoon; I understand that family commitments in Belfast detain him, and we all wish him well.

--- Later in debate ---

Moved by

[Lord Caine]

3: Clause 1, page 3, line 33, at end insert—
“78IFurther functions: establishing the Castlereagh Foundation(1) The Office may—(a) establish a body corporate or other organisation to be known as the Castlereagh Foundation, or(b) provide grants for the establishment of such a body or organisation by another person.(2) A body or other organisation established or funded under subsection (1) must—(a) have as its principal objective the funding and support of academic research into identity, including national and cultural identity and shifting patterns of identity, in Northern Ireland, and(b) be operationally and financially independent from the Office (though this does not affect the Office’s functions under section 78H).(3) The Office may dispose of any interest in the Castlereagh Foundation.”

[Lord Caine (Con)]

My Lords, I have great pleasure in speaking to Amendments 3 and 30 in my name, on the establishment of the Castlereagh Foundation. We had an excellent discussion on the merits of establishing the Castlereagh Foundation in Committee following amendments tabled by my noble friend Lord Lexden and the noble Lords, Lord Morrow, Lord McCrea and Lord Dodds. I do not wish to cover the same ground here, but we also had an excellent debate about the merits of Lord Castlereagh as Foreign Secretary and Chief Secretary for Ireland in taking through the Acts of Union in 1800. I do not wish to embarrass the noble Lord, Lord Bew, but we also raised on a number of occasions the brilliant biography of Castlereagh by his son John.

Following the amendments in Committee, I promised to look at this issue further. The Government committed to fund the establishment of the Castlereagh Foundation in annexe A of New Decade, New Approach, at paragraph 25. It was envisaged that the foundation would explore the shifting patterns of social identity in Northern Ireland. The amendments that I have tabled will enable the establishment of that foundation and therefore meet a key commitment of New Decade, New Approach. I am delighted to bring them forward. I beg to move.

--- Later in debate ---

[Lord Morrow (DUP)]

In Committee, in deference to the excellent speech on the amendment tabled by the noble Lord, Lord Lexden, I withdrew my amendment. However, I welcome what the Minister has said here today.

[Lord Caine (Con)]

My Lords, I am very grateful for the support of my noble friend Lord Lexden, and that of the noble Lord, Lord Morrow.

Amendment 3 agreed.

--- Later in debate ---

[Lord Dodds of Duncairn (DUP)]

My Lords, following on from the noble Lord, Lord Murphy, I hope the Minister will remain in his place, because he brings a large degree of experience and knowledge to the situation. I certainly hope he can continue in his post for as long as possible.

I welcome what the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, said about these amendments. There are two issues. The first is parity of esteem, as the noble Lord, Lord Lexden, said. This legislation has been very controversial and it no doubt will be. It must be implemented with people feeling that they are being treated equally. I was involved in some of the negotiations and if anyone had suggested at the time that the New Decade, New Approach agreement meant that there would be this difference in duty, it would never have been agreed on that basis. It is clear that the two should be treated equally, with the same duties on public authorities regarding each of them. I echo the calls for this to be considered further before it gets to the other place.

Secondly, if we are talking about reflecting accurately the NDNA agreement—we will come on to this with more significant clauses later in the Bill—it is important that there is not a piecemeal approach. If NDNA is to be faithfully replicated and the duty is placed on public authorities with regard to the Irish language commissioner, then we either have Amendment 4A, which would take it away from the Irish language commissioner, which I do not wish to see happen, or we have Amendment 17, which would make it an equal approach. That is something the Government should think about very seriously, in the interests of boosting confidence and giving reassurance.

[Lord Caine (Con)]

Again, I am grateful to noble Lords for their contributions, in particular the noble Lord, Lord Murphy, for elevating me to the position once occupied by the first Duke of Wellington in the 1830s, when, in his caretaker Administration, I think he occupied every position in the Government bar Lord Chancellor and Chancellor of the Exchequer—my noble friend Lord Lexden will correct me if I am wrong. Let us hope that it does not come to that.

This was another a matter of great interest and extensive and lengthy debate in Grand Committee and I will try to respond without necessarily repeating all the same arguments that we examined in detail there. The Government’s view is that it is very clearly set out in Annexe E of New Decade, New Approach, a document that I gently remind some noble Lords was hailed at the time by the Democratic Unionist Party as “fair and balanced”. The roles and functions of the two commissioners are different, reflecting the respective needs of Irish as a language, Ulster Scots as a national minority, and the Ulster-British tradition. That is why the provision for those respective groups is set out differently in New Decade, New Approach, including in respect of the legal duties set out in this Bill. The Government believe that that was for good reason.

I hope this goes some way to answering concerns from a number of noble Lords, including the noble Baroness, Lady Suttie: to answer her question directly, I had a very constructive meeting with Ian Crozier from the Ulster-Scots Agency and am very happy to continue to engage with the Ulster-Scots Agency and with Irish language groups that I have already met. I have absolutely no issue with doing that at all.

To go back to the point, the role of the Irish language commissioner pertains to matters of language alone. Its work focuses on best practice standards on the Irish language for public authorities to follow in providing their services. Accordingly, there is a specific legal duty in this regard. In comparison, the commissioner associated with the Ulster Scots and the Ulster-British traditions will cover arts and literature in addition to language. The legal duty proposed here by Amendment 17 from the noble Lord, Lord Morrow, would therefore have the effect of being far broader than that on the Irish language, covering public authorities’ work on arts and literature.

I will just come back on one point made by the noble Lord, Lord Morrow, when I think he stated that the Irish commissioner would cover 70-plus authorities but the Ulster Scots commissioner would not. The Government’s position is very clear that the Ulster Scots and Ulster-British commissioner will cover exactly the same public authorities as the Irish language counterpart and will still be able to receive complaints where its advice and guidance are not followed. I want to be clear on that.

Therefore, the amendments proposed by noble Lords this afternoon, in the Government’s view, seem to go far beyond the fair and balanced package reached in New Decade, New Approach, and as such the Government cannot accept them.

I understand that we will return to this matter later, but I highlight also that there is a specific new legal duty for Ulster Scots in relation to the education system provided by the Bill. This will address the current lack of statutory provision for Ulster Scots in the education system. I also highlight that the commissioners will be able to administer complaints in relation to the compliance with public authorities on their guidance and standards issued and lay reports before the Assembly.

Amendment 4A would remove the legal duty in relation to the Irish Language best practice standards. Those standards were a key function of the Irish language commissioner, as set out in paragraph 27(d) of New Decade, New Approach. The standards provided for in the Bill are, therefore, consistent with New Decade, New Approach and the legal duty set out in the proposed draft legislation accompanying it, in new Section 78I(1) of the Northern Ireland Act 1998.

Annexe E of New Decade, New Approach, in paragraph 5.9, accordingly speaks of public authorities fulfilling their “requirement” under the standards and it would seem clear from a reading of both that document and the draft legislation together that the legal duty provided for in this Bill is consistent with the position reached by the parties in the talks. Reflecting the fact that the standards are associated with a legal duty, these will require the approval of the First and Deputy First Ministers, acting jointly, to be given effect. This is intended to provide a level of assurance and oversight over the requirements set by the commissioner.

I highlight that no such approval from the First Minister and Deputy First Minister is required for the guidance and advice of the commissioner for the Ulster Scots and the Ulster-British tradition; nor is approval required for guidance so that complaints can be made in relation to the failure of public authorities to comply with it. With this context in mind, I hope noble Lords will appreciate that the provision for the commissioners and the associated legal duties reflects the delicate and fair balance and the particular needs of the groups that they will serve. The Government cannot accept propositions that would deviate from New Decade, New Approach or the legal duties set out in the original draft legislation that accompanied that document. I would therefore be grateful if the noble Lords did not press their amendments.

--- Later in debate ---

Moved by

[Lord Caine]

6: Clause 2, page 7, line 24, leave out from “Commissioner” to “Ulster” in line 26 and insert “for the Ulster Scots and the”

--- Later in debate ---

Moved by

[Lord Caine]

7: Clause 3, page 8, line 11, leave out from “Commissioner” to second “Ulster” in line 12 and insert “for the Ulster Scots and the”

--- Later in debate ---

[Lord Browne of Belmont (DUP)]

My Lords, I support Amendment 10 in this grouping but, first, having taken part at Second Reading I apologise for not having been able to contribute in Committee. Like the noble Baroness, Lady Ritchie, I had succumbed to the dreaded Covid—although I do not think there was any connection between us.

I am very grateful to the Ulster-Scots Agency for helping me to appreciate the importance of securing the change that Amendment 10 addresses. It proposes to replace “arts and literature” with “heritage and culture” to make the Bill reflect the provisions of NDNA, and to bring it into line with the established policy and human rights framework, in particular as it applies to the Ulster Scots community. The Minister told the House in Committee that the Government are

“sticking faithfully to what was”

agreed in NDNA. He also said:

“It was very clear in that package that the remit of the commissioner in respect of the Ulster Scots and Ulster British tradition would be matters of ‘language, arts and literature’ and not culture and heritage”.—[Official Report, 22/6/22; col. GC 86.]


I contend that this is wrong. I quote verbatim from pages 34 and 35 of NDNA:

“A further such commissioner will be appointed by the First Minister and deputy First Minister to enhance and develop the language, arts and literature associated with the Ulster Scots/Ulster British tradition in Northern Ireland … The Commissioner’s remit will include the areas of education, research, media, cultural activities and facilities and tourism initiatives … The functions of the Commissioner will be to … increase awareness and visibility of relevant services which are provided by public authorities in Northern Ireland … provide advice and guidance to public authorities, including where relevant on the effect and implementation, so far as affecting Ulster Scots, of commitments under the European Charter for Regional and Minority Languages, the European Framework Convention for the Protection of National Minorities, and the United Nations Convention on the Rights of the Child”.


Here we have a series of paragraphs, with each expanding on the last, to build an overall picture of the commissioner’s role. NDNA does not stop in the middle of the first sentence after “language, arts and literature”, as the Government would have us believe. Oddly, the vital linking sentence from NDNA, which lists five key areas in the commissioner’s remit—and, through the use of the words “will include”, makes it clear that this is not an exhaustive list—is not reflected in the Bill.

The Minister says it is “very clear” that the remit of the commissioner does not include culture, but that assertion is flatly contradicted by the NDNA document, which says that it includes “cultural activities and facilities”. The commissioner’s remit could not include cultural activities and facilities if it did not include culture. Clearly, the Government have got it wrong.

The Government have sought to use these three words, “language, arts and literature”, to limit the human rights provisions in relation to the commissioner for the Ulster Scots and Ulster-British tradition. That limitation, however, is not to be found in NDNA. There is one clear, explicit limitation on the commissioner’s power to issue guidance and it is

“so far as affecting Ulster Scots”.

As far as NDNA was concerned, anything covered by international instruments affecting the Ulster Scots community is within scope of the commissioner. The misreading of NDNA needs to be corrected and what was agreed needs to be properly reflected in the legislation. Failure to address this misunderstanding will lead to a situation where the Bill is at odds with 20 years of law and policy, not to mention the human rights framework which the Minister says this legislation is built on.

The applicable human rights framework—the scope of the Framework Convention for the Protection of National Minorities—under which the Government have just recognised the Ulster Scots community as a national minority of the United Kingdom, goes far beyond language, arts and literature. This can be seen in examples in Articles 5, 6, 15, 29 and 30.

The position of the Northern Ireland Human Rights Commission and the Minister’s expert panel, appointed by the current Northern Ireland Communities Minister, is also supported by the Ulster-Scots Agency. They all agree that the role of the commissioner needs to reflect established law and policy. To do otherwise risks excluding the commissioner from addressing issues that they should be addressing and undermines both the effectiveness of the commissioner and their standing in the eyes of the community.

The Government have stated that the function of the commissioner in respect of the human rights instruments reflects the Government’s recent recognition of Ulster Scots under the framework convention. In truth, that objective is much better reflected in the text of NDNA than it is in the text of the Bill. The text of NDNA provides space for the commissioner’s work to reflect the true breadth of the human rights instruments instead of applying a groundless, arbitrary restriction that will seriously impair the realisation of human rights. I support Amendment 10.

[Lord Caine (Con)]

My Lords, once again, I am very grateful to noble Lords for moving and speaking to their amendments, and for the spirit in which they have done so. Amendments 10 and 13 return to the question of the functions of the commissioner. At the risk of repeating myself, I respectfully disagree with noble Lords who have spoken. The Government are quite clear that the Bill is faithful to New Decade, New Approach and the relevant legislative commitments it set out.

That document was very clear that the commissioner’s functions would encompass matters of language, arts and literature. Indeed, both New Decade, New Approach and the draft legislation published alongside it, to which I referred earlier, used that precise formulation no fewer than 15 times. Paragraph 27E of New Decade, New Approach sets out that the main function of the commissioner would pertain to “language, arts and literature”. The Bill replicates this in its principal aim essentially word for word.

The reference to heritage and culture in New Decade, New Approach, on which I believe noble Lords are drawing, specifically in Amendment 10, appears in paragraph 5.12.3 of Annexe E and relates to a separate commitment for the Executive to agree to an Irish language and Ulster Scots strategy. This is already provided for in Section 28D of the Northern Ireland Act 1998, which is a clear legal duty. I hope that the Executive continue to meet their legal duty to adopt these two important strategies; however, the operation of this duty is clearly separate from the legislative commitments on which the Bill delivers. I shall speak to the amendments on this matter more fully later.

On Amendment 13, specifically, the commissioner’s role of providing advice and guidance on three international instruments was also always intended to be in relation to matters of language, arts and literature. Comparable provision was made in the draft legislation published alongside New Decade, New Approach, to which I refer again. The widening of the provision in the Bill beyond language, arts and literature, as proposed in Amendments 10 and 13 would, in the Government’s view, be inconsistent with the conclusion reached. The Government therefore cannot accept them.

I turn to Amendment 12, which seeks to make provision for the commissioner’s remit as set out in paragraph 5.15 of Annexe E to New Decade, New Approach. I understand the thrust of the noble Lord’s argument, as that paragraph specifies that the commissioner’s remit includes

“the areas of education, research, media, cultural activities and facilities and tourism initiatives.”

However, this amendment would have the effect of altering the commissioner’s functions. Those functions are separately set out in the same annexe to NDNA, in paragraph 5.16, and were also provided for in the draft Assembly legislation. I hope, however, to reassure noble Lords on this point. The Government consider that the commissioner’s functions, particularly in relation to Ulster Scots services, would also cover the remit envisaged by New Decade, New Approach. Separate provision on the commissioner’s remit therefore would not be necessary and the widening of its functions was not agreed.

Reference was made by the noble Lords, Lord Morrow and Lord Browne of Belmont, to the recommendations of the Northern Ireland Human Rights Commission in respect of these matters. The Government have consulted a wide range of bodies on the Bill, which included conversations with the Human Rights Commission. This has helped us reach a conclusion on the commissioner’s name, for example. However, we have to stay within the bounds of NDNA and it would be wrong to innovate on these commitments unilaterally. I should point out that the Assembly would be able to amend this legislation were it functioning once again, which we all hope it will be very shortly.

Amendment 14 seeks to introduce a new function for the commissioner for Ulster Scots and Ulster-British tradition to promote cultural connections between Ulster Scots in communities in Northern Ireland and those in Scotland. The noble Lord, Lord Morrow, referred to the centenary of the coming to office as Prime Minister of the Ulster Scots leader of the Conservative and Unionist Party, Andrew Bonar Law. I assure the noble Lord that, as a committed and staunch unionist myself, I am very much in sympathy with the intention behind his amendment, which highlights the importance of the connections between Northern Ireland and Scotland.

I hope to reassure the noble Lord on this point: the commissioner will be able to co-operate with other bodies, such as those elsewhere in the United Kingdom, if this were conducive to its functions within Northern Ireland. The commissioner doing so may have the effect of promoting those cultural connections between the Ulster Scots diaspora elsewhere in the United Kingdom, which is what noble Lords aspire to with this amendment. However, the functions agreed in New Decade, New Approach did not specify that a strand of the commissioner’s work would include promoting cultural connections outside Northern Ireland. Indeed, it would be outside the competence of the Northern Ireland Assembly to legislate for functions exercisable other than in regard to Northern Ireland itself, which is why such provisions were never planned in the draft Assembly legislation published alongside NDNA. I cannot accept an amendment that would broaden the work of the commissioner in the Bill beyond what was intended, although I can understand the noble Lord’s intention. I am, as I say, personally very sympathetic to what he is trying to do.

In the same vein, Amendment 30A seeks to place the Secretary of State under a legal duty to establish a dedicated fund to support projects connecting the Ulster Scots in Northern Ireland with those elsewhere in the UK. Again, such a fund was not envisaged in New Decade, New Approach and the Government cannot accept this amendment. I should add that this Government have demonstrated, on a number of occasions, their commitment to Ulster Scots through—to take one example—changing the BBC charter and framework to include support for Ulster Scots output.

Amendment 15 would also seem to be a further innovation on the position reached in New Decade, New Approach, as it seeks to widen the functions of the commissioner beyond public authorities and more broadly to “Northern Ireland society”, which again would greatly extend the scope of the commissioner beyond what was envisaged. There would be no comparable change to the functions of the Irish language commissioner, which are concerned solely with the provision of services by public authorities in Northern Ireland. The Government cannot accept amendments that would broaden the scope of the commissioner’s work in this way—in our view, it would be contrary to the position set out in New Decade, New Approach. On that basis, I urge the noble Lord to withdraw his amendment.

[Lord Morrow (DUP)]

My Lords, I thank all noble Lords who have spoken on these amendments. I begin by welcoming the positive comments the Minister has made about the importance of recognising the Ulster Scots and the Ulster-British tradition as something that cannot, by definition, be confined to Ulster alone. If I heard him correctly, he seemed to suggest that Amendment 12 was not necessary because the Bill should be read as meaning that the Ulster Scots commissioner already has responsibilities in relation to

“the areas of education, research, media, cultural activities and facilities and tourism initiatives.”

Will he confirm that my interpretation is correct?

[Lord Caine (Con)]

The noble Lord is correct to say that NDNA sets out the functions of the commissioner and then expands to set out the remit, which includes the areas to which he just referred. In our view, the Bill as drafted, in replicating the functions of the commissioner as set out in NDNA, means it is not necessary also to include the remit within the functions—the functions will cover the remit.

[Lord Morrow (DUP]

I am very grateful to the Minister for that.

Turning to his response to Amendment 10, I have to say that I do not believe that his defence of the exclusive focus on language, arts and literature is faithful to the NDNA, given what the international instruments with which it identifies say about the importance of heritage and culture, broadly considered. I urge him to go back and reread the international instruments, and then the NDNA in light of them, to study the important speech given today by my noble friend Lord Browne and to talk to the Ulster Scots Agency. I know that others have asked him to do that, and I hope that he takes that on board. If he does, I think he will be forced to conclude that it is wholly wrong to seek to justify limiting our focus on language, arts and literature.

Finally, I note that the Minister argues that the Bill gives the Ulster Scots commissioner powers in relation to bodies beyond the public authorities mentioned in the Bill. I believe, however, that if that is the Government’s intention, the other bodies should be referenced in some way in the Bill. I urge the Minister to give matters very careful consideration over the summer and I beg leave to withdraw the amendment.

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Moved by

[Lord Caine]

11: Clause 3, page 8, line 25, after “and” insert “the”

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[Lord Browne of Belmont (DUP)]

My Lords, in the absence of the noble Lord, Lord Empey, and with the permission of my noble friend Lord Morrow, I shall speak to Amendments 18 to 21. When these amendments were dealt with in Committee, the Minister objected that if they were accepted, they would make a change to one commissioner but not the other, as if they must be treated in exactly the same way. He stated:

“My first concern is that it would not be appropriate to amend one of the commissioner’s complaints procedures but not the other.”—[Official Report, 22/6/22; col. GC 99.]


This, however, is wholly inconsistent with what the Minister has rightly been insistent on, and in relation to which he has my full agreement; namely, that this legislation does not provide commissioners with identical functions and responsibilities but with different and equally meaningful and valuable roles for their respective communities.

The limitation of the complaints procedure to the use of the Ulster Scots language by public authorities is the consequence of the drafters losing sight of the fact that the two commissioners have different functions in order to provide something of equal value to each community. In this regard, it is useful to compare and contrast the provisions in the Bill that define the principal role of the Irish language commissioner and then that of the Ulster Scots/Ulster-British tradition commissioner. Of the former, new Section 78K(1) states:

“The principal aim of the Commissioner in exercising functions under this Part is to enhance and protect the use of the Irish language by public authorities in the provision of services to the public or a section of the public in Northern Ireland.”


Thus, it is about the use of the Irish language by public authorities.

The parallel clause defining the role of the Ulster Scots commissioner, meanwhile, does not mention the use of the language by public authorities. New Section 78R(1) states:

“The principal aim of the Commissioner in exercising functions under this Part is to enhance and develop the language, arts and literature associated with the Ulster Scots and Ulster British tradition in Northern Ireland.”


Indeed, this is underlined by the very name of the Ulster Scots/Ulster-British commissioner.

Given that Ulster British is not a language in any sense, restricting the complaints facility to the use of the Ulster Scots language transparently limits it to less than half the commissioner’s title, even while the Irish language commissioner’s function is such that the right to complain applies to the entire scope of their engagement with public authorities. As if to underline the point, not only is the use of the Ulster Scots language by public authorities not mentioned in the principal role clause but when it is mentioned later on such is its secondary importance it is only in brackets so that it is not forgotten entirely. Thus, if anyone should respond by saying that the nationalist community is subject to exactly the same constraints as the unionist community, then let us be clear: no, it is not.

The roles of the two commissioners are, as the Minister pointed out, different, and while the Irish language commissioner will make extensive demands of all public authorities in relation to the use of the Irish language, the Ulster Scots commissioner will not in relation to the use of the Ulster Scots language—hence the compensating broader cultural remit. However, to make a comparable, meaningful provision for unionists through the Ulster Scots commissioner to that afforded to nationalists through the Irish language commissioner, it is necessary to endow the former with a different set of functions to the latter. This must come with a complaints facility across the spectrum of functions required, in order for unionists to be afforded something of equal value to that which is afforded to nationalists. Not to do so is to live in denial about the fact that the two commissioners are different, servicing the needs of two different communities, with different concerns and priorities. Far from giving effect to parity of esteem, this would be to snub one community in a context when they have already been snubbed by the inexplicable decision also to weaken the Ulster Scots commissioner compared to the Irish language commissioner by denying the former the protection of the “duty to have regard” obligation dealt with in a previous grouping.

The only thing the Government could possibly do to seek to justify this arrangement would be to say that the NDNA agreement does not specify that a complaints procedure should be applied in relation to the other areas of the Ulster Scots commissioner's responsibility, but that does not provide a justification for inaction.

In the first instance, it is important to appreciate that the NDNA agreement does not say that the unionist community should not be given the right to complain about the conduct of public authorities through the Ulster Scots commissioner beyond the use of language. It is silent on the matter. In this context, we must test the silence and ask whether it makes sense that the commissioner should be provided with areas of responsibility in relation to the conduct of public authorities but no ability to respond to complaints from his or her community about the failures of public authorities in those areas, while the nationalist community is afforded the right to complain in relation to the principal functions of the Irish language commissioner. No, it does not.

In the second instance, and importantly, we have to interpret NDNA through the lens of the imperative for the parity of esteem principle. This means that if we conclude that one community cannot receive meaningful support through a narrow focus on language because of its different priorities—such that the commissioner needs to be given a different function—it would be perverse for that community to be denied the right to complain about failures of public authorities across the remit of the commissioner while making provision for such a complaints mechanism in relation to the other community.

It is one thing to snub a community by not placing a duty to have regard on public authorities with respect to its commissioner—even as such a duty is applied to the other community and its commissioner—but to also deny the former community the right to complain about the conduct of public authorities in relation to the definition of its commissioner’s principal role, even as this right is afforded the other community, is extraordinary. Moreover, when this is seen in the light of how the unionist community has been dealt with in relation to the protocol since 2019, one can perhaps begin to understand why Northern Ireland unionists feel they have become the subject of contempt.

Stepping back from this point, however—and finally coming to a conclusion—forgetting for a moment that I am a Northern Ireland unionist, I am also at a loss to understand why the Government, who surely want to make the unionist-nationalist relationship easier, should bring forward a Bill containing such a transparently antagonising provision. I most sincerely hope that the Government will reconsider and accept these amendments, which bring a modest extension of the right of unionists to complain so that it includes practices contrary to the international instrument mentioned in Clause 3. I beg to move.

[Lord Caine (Con)]

My Lords, I am grateful to the noble Lord, Lord Browne of Belmont, and I will be very brief in my remarks. As I said in Committee, New Decade, New Approach is very clear in paragraph 5.16.3 that the commissioner should be able to investigate relevant complaints about a public authority’s lack of due regard to advice provided in respect of

“facilitating the use of Ulster Scots.”

For that reason, the Bill makes provision so that complaints may be made to the commissioner concerned only in relation to “published facilitation guidance”. Neither New Decade, New Approach, nor the draft legislation accompanying it, proposed that this complaints power be made broader, as the noble Lord proposes through these amendments.

I am content that the provision in the Bill as it stands reflects the position reached in New Decade, New Approach—the agreement described by the noble Lord’s former leader Arlene Foster as a “fair and balanced” package—and the legislation prepared by the Office of the Legislative Counsel of the Northern Ireland Assembly alongside it. The noble Lord, Lord Browne, referred to himself as a Northern Ireland unionist; as a British unionist, I do not accept that we are snubbing a community in Northern Ireland. We are simply implementing New Decade, New Approach faithfully. On that basis, I urge the noble Lord to withdraw the amendment.

[Lord Browne of Belmont (DUP)]

My Lords, I thank the Minister for his reply. I believe that NDNA is a fair package, but I am not convinced that the Bill is totally fair. It is important for the Government to engage with this problem, and nothing that the Minister has said provides a compelling reason for concluding that NDNA stipulates that while the Irish-speaking community should have access to a right to complain in relation to all matters within the mandate of its commissioner, the Ulster Scots and Ulster-British tradition should be denied this right in relation to all that commissioner’s work, apart from something whose secondary importance is acknowledged by virtue of the fact that it is mentioned only in brackets. I hope that this will be debated further in the other place, and, therefore, I wish to withdraw my amendment.

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Moved by

[Lord Caine]

23: Clause 3, page 11, line 7, leave out from “Commissioner” to second “Ulster” in line 9 and insert “for the Ulster Scots and the”

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[Lord Murphy of Torfaen (Lab)]

My Lords, I have some sympathy with the amendment, or at least with what lies behind it. I do not see any point in pushing such an amendment to a vote, but it raises the issue. I fully support the statutory duty on the Executive in Belfast to fund Irish language education through the various means. However, bearing in mind that this Bill is new, introducing three new public offices—the office and the two commissioners—the Minister might make inquiries with the Department of Education there over the next few weeks regarding this difference of approach in terms of funding. Perhaps the meeting that he intends to have with the Ulster-Scots Agency can clear this up, but it appears to be a dichotomy.

[Lord Caine (Con)]

My Lords, I am very grateful again to the noble Lord, Lord Browne of Belmont, for his comments in moving Amendment 24. As I pointed out earlier, New Decade, New Approach and this Bill provide a new specific legal duty for Ulster Scots in relation to the education system in Northern Ireland. This will address the current lack of statutory provision for Ulster Scots within that system.

However, a specific new grant-making power, which would be the effect of Amendment 24, was, of course, not committed to in New Decade, New Approach. It would be inappropriate in this context for the UK Government to impose financial commitments beyond those set out in that document. I also recall that noble Lords in Committee raised what the duty that is already set out in the Bill, on encouraging and facilitating the use and understanding of Ulster Scots in the education system, would mean in practice. I am therefore pleased to provide a clearer view to noble Lords on what this new and important legal duty might entail. I hope that this will speak to their concerns on this matter.

The new education duty in the Bill will enable the use and understanding of Ulster Scots to become part of the framework of the education system in Northern Ireland and the Northern Ireland Department of Education will be able to do anything necessary to meet that duty. In that context, I note that the Education (Northern Ireland) Order 1998 provides for the encouragement and facilitation of Irish-medium education and the mechanism of supporting this specific type of schooling, with the grant-making powers provided to specifically support Irish-medium schools.

Noble Lords will understand that, as a UK Minister, I cannot speak on behalf of the Northern Ireland Department of Education. The department has a Minister, a member of the DUP, who will need to consider this matter too, but it would seem to me that meeting this new duty in respect of Ulster Scots would perhaps entail the commissioning of educational materials for use in schools. Steps to meet the duty could also include seeking appropriate consultancy on the facilitation of Ulster Scots in schools, or encouraging relevant organisations in providing tuition in schools. I would stress, however, that this remains a matter for the Northern Ireland Department of Education to consider.

In respect of the comments of the noble Lord, Lord Murphy, I am very happy to reflect on what he said. In that spirit, I would encourage the noble Lords to withdraw the amendment.

[Lord Browne of Belmont (DUP)]

My Lords, first I would like to thank the noble Lord, Lord Murphy, for his very useful contribution, and I hope the Minister will take up the offer to meet with the Ulster-Scots Agency, which I am sure can put its case very forcefully. I know this Bill will be going to the other House, where I am sure it will receive serious consideration, so under those circumstances I wish to withdraw the amendment.

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I look forward to hearing what the Minister has to say. It is a difficult dilemma, respecting devolution on the one hand but ensuring the protection of this legislation on the other.

[Lord Caine (Con)]

My Lords, I am incredibly grateful to all noble Lords who have participated in this Report stage for their contributions. I single out my noble friend Lord Lexden, who appears to be the only Conservative who has sat through the entire Report stage. Given that there might be one or two things happening outside the Chamber of interest to members of my party and beyond, that is commendable.

I agree with the noble Baroness, Lady Ritchie of Downpatrick, echoing some of the comments made by a number of noble Lords at the outset. If this debate has highlighted anything, it is precisely why it should be taking place in the Northern Ireland Assembly, not in this Parliament. It touches on very local, devolved matters that would be much better dealt with in the Assembly by local politicians, accountable to their local electorates. I hope we can reach such a situation. I very much take on board the sensible and wise comments of the noble Lord, Lord Murphy, about the need to discuss and negotiate. I hope we can resolve that very quickly, whatever the immediate future might hold for some of us.

The amendment in the name of the noble Baroness, Lady Ritchie of Downpatrick, seeks to place further obligations on the Secretary of State in relation to the appointment of the Irish language commissioner and Irish language best practice standards after a certain threshold is met. As I made clear in Committee—I appreciate that the noble Baroness was unable to be present, although I am reliably informed that she could watch proceedings from her bedroom while recovering—I sympathise with the intention of wanting to ensure that the provisions of the Bill are not stymied by inaction on the part of the Executive.

I also appreciate the noble Baroness’s desire for the Secretary of State to move quickly if such inaction were to present itself. I have had conversations with Irish language groups, in particular Conradh na Gaeilge, on that point. However, my starting point is, as I have said throughout the passage of the Bill, that the Government would not wish to intervene routinely in devolved matters and that the use of any powers in the Bill would require careful consideration.

The powers in the Bill have been carefully drafted to allow the Secretary of State to use his or her discretion and to consider the political circumstances at the time. I fear that introducing a timeframe within which he or she had to act would detract from that flexibility. The noble Lord, Lord Murphy, was Secretary of State for Northern Ireland and a senior Minister during the Good Friday agreement negotiations, so he will appreciate that sometimes the Secretary of State needs a degree of flexibility in exercising his or her judgment.

As I laid out before the Committee, in our view the stipulated timeframe of 30 days set out in the amendment would be wholly impractical, particularly in respect of public appointments, which need to be conducted with rigour and, quite rightly, need a longer timeframe to complete, as my noble friend Lord Dodds of Duncairn made clear in his comments. Such a timeframe would almost certainly preclude important public appointment procedures from taking place, which I suspect is not the noble Baroness’s intention.

I also suspect that the consequences of the Secretary of State’s intervention being compelled would set us further back from securing the public’s long-term confidence in the measures set out in this legislation. Lastly, as my noble friend Lord Dodds pointed out, the proposed amendment applies in this case only in respect of the Irish language provisions of the Bill, not those pertaining to the Ulster Scots and Ulster-British tradition or the new office established by it.

The noble Baroness’s Amendment 27 seeks to give a further area where step-in powers could be exercised—namely, in relation to strategies relating to the Irish language and Ulster Scots as set out by Section 28D of the Northern Ireland Act 1998. As I said earlier today and in Committee, this is a separate undertaking from the legislative commitments on identity and language set out in New Decade, New Approach. For that reason, we have decided not to include such a provision in this legislation.

The noble Baroness, Lady Goudie, who I welcome to her place here, talked about appointments. At the risk of repeating what I said in Committee, there are well-established appointment procedures in Northern Ireland but these would essentially be matters for the Northern Ireland Executive to take forward rather than Her Majesty’s Government.

I turn to Amendments 28, 29 and 36 in the names of my noble friends Lord Morrow and Lord Empey and spoken to by my noble friend Lord Dodds of Duncairn. In Committee, I set out at length the Secretary of State’s step-in powers more broadly. I realise that these are difficult areas. Throughout the Committee debates, I stressed that the Government would not wish to intervene routinely and that the use of these powers would require careful consideration, and that remains the case.

I have a good deal of sympathy with the comments of my noble friend Lord Dodds of Duncairn and the noble Lord, Lord Murphy, in respect of these powers. The only reason they are there is to ensure that a key element of New Decade, New Approach is capable of being delivered—something that, regrettably, was not happening after the Assembly was restored in January 2020. Agreeing again with the noble Lord, Lord Murphy, I think I said in Committee that one does not always have to be totally comfortable with something to regard it as necessary, and I believe that the powers are proportionate and necessary.

However, as the noble Lord alluded to, the need for appropriate scrutiny of these powers and the importance of accountability before this House are paramount. I therefore make a commitment to noble Lords today on the step-in powers, following my promise in Committee to look further at these issues. Having reflected, I can commit that the Northern Ireland Office will make Written Statements to both Houses every six months from commencement to provide updates on the Bill’s implementation. Those statements will include details on any use of the step-in powers within the relevant six-month period and will enable the Government to keep both Houses informed of the delivery of NDNA commitments more broadly. I will also reflect further on the comments of the noble Lord, Lord Murphy, about timings.

I hope that this commitment, from the Dispatch Box, will provide some reassurance to noble Lords and go some way—probably not all the way—to allaying their concerns. The Government remain of the view that these powers are required in the Bill, however uncomfortable some may be. On this basis, I urge the noble Baroness to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank all noble Lords who participated in this short debate. It was very interesting and different views were offered. I was trying to ensure the protection of the legislation and, obviously, the protection of devolution. I would still urge the Minister to give consideration to the content of both amendments. If he could meet Conradh na Gaeilge in the coming months, in advance of the Bill coming to the other place, to discuss these particular issues, I would be extremely grateful. I beg leave to withdraw Amendment 25.

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Moved by

[Lord Caine]

26: Clause 6, page 12, line 6, leave out from “Commissioner” to “Ulster” in line 8 and insert “for the Ulster Scots and the”

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Moved by

[Lord Caine]

30: After Clause 7, insert the following new Clause—
“Establishing the Castlereagh Foundation(1) The Secretary of State may—(a) establish a body corporate or other organisation to be known as the Castlereagh Foundation, or(b) provide grants for the establishment of such a body or organisation by another person.(2) A body or other organisation established or funded under subsection (1) must— (a) have as its principal objective the funding and support of academic research into identity, including national and cultural identity and shifting patterns of identity, in Northern Ireland, and(b) be operationally and financially independent from the Office of Identity and Cultural Expression (though this does not affect the Office’s functions under section 78H of the Northern Ireland Act 1998).(3) The Secretary of State may dispose of any interest in the Castlereagh Foundation.”

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Moved by

[Lord Caine]

31: Clause 8, page 13, line 21, leave out from “Commissioner” to second “Ulster” in line 22 and insert “for the Ulster Scots and the”

Identity and Language (Northern Ireland) Bill [HL]

Lord Caine Excerpts

Committee stage
Wednesday 22nd June 2022 Grand Committee

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, once again we are dealing with an issue that was the responsibility of the Northern Ireland Assembly. Once again, the Government have taken it out of the hands of the Assembly. This has not just arrived since the last Assembly election; this was from before that. I remind some noble Lords that the history of this goes back to the previous three-year suspension of the Northern Ireland Assembly by Sinn Féin. Sinn Féin would not come back into the Assembly but made certain demands before it would come back in. One of the demands was on the abortion legislation; it wanted abortion on demand. The second was an Irish language Act. It has to be admitted that it did not get an Irish language Act, because this is the Identity and Language (Northern Ireland) Bill, but nevertheless it was part of its demands.

The truth of the matter is that the Government yielded to the demands of Sinn Féin which is why we are having this debate here at Westminster. The new Assembly has certainly not been given the opportunity to debate it, because the Assembly election was just recently. With all the demands that are being made on public finances, I must say that, right across this legislation, I have deep concerns. When one bears in mind that people are fighting to pay their bills and all the demands on public finances at the present moment, I would certainly ask whether this is the best expenditure of public money at this particular time.

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

My Lords, I am grateful to all those who have spoken to the first group of amendments before us. Before I turn to the detail of the amendments, I place on record my sorrow that the noble Baroness, Lady Ritchie of Downpatrick, is not in her place today to move her amendments. I am sure that I speak for the entire Committee in wishing her a speedy recovery and quick return to your Lordships’ House.

I speak first to Amendments 1 and 3, in the name of the noble Baroness, Lady Ritchie. I am grateful to the noble Baroness, Lady Goudie—with whom I had the pleasure of serving on the Protocol on Ireland/Northern Ireland Sub-Committee for a number of months—for stepping in at a moment’s notice. In broad terms, these amendments seek to amend the Bill’s first clause so that the

“national and cultural identity principles”

provided for in new Section 78F inserted by that clause would respect the “rights of others” rather than taking

“account of … those with different national and cultural identities”,

as drafted in the Bill. Amendment 1 from the noble Baroness, Lady Ritchie, would make this change, with the second providing a definition of the “rights of others”.

Although I understand the intent behind this amendment, I believe that this would not correctly reflect the national and cultural identity principles that were a matter of careful negotiation between those parties that agreed to New Decade, New Approach, and which are set out in paragraph 25 of that document. They were also set out in the same terms in the accompanying draft legislation that went with New Decade, New Approach. The provision in this Bill therefore reflects the terms under which the parties agreed New Decade, New Approach and re-entered the Executive in January 2020. It has been our approach throughout to reflect in good faith that agreement from January 2020, and I believe that it would be inconsistent with that approach if we were unilaterally to deviate from those principles today.

Amendments 5 and 6 seek to extend the remit of the office of identity and cultural expression. Amendment 5 seeks to include the effective implementation of relevant international human right standards and Amendment 6 would make provision on a comprehensive language strategy to include all spoken and sign languages used in Northern Ireland. As with the national and cultural identity principles, the role and remit of the office of identity and cultural expression have been carefully set out through New Decade, New Approach. I fear that these amendments would represent a deviation from the basis of NDNA; the Government are clear that they will not do this.

As some reassurance, I highlight that new Section 78H(4) will enable the First Minister and Deputy First Minister, acting jointly, to direct the office of identity and cultural expression. They could use this power, for example, to give consideration to certain international standards that they deem relevant or to develop strategies, such as overall language strategies or those on sign language. Of course, they would need to fall within the framework of the principles themselves. In addition, the office itself could decide to consider international human rights standards in the advice and guidance that it provides. Of course, as a number of noble Lords have made clear, we would much prefer this to be taken forward not in your Lordships’ House but by a future Executive and Assembly.

Quickly on the ECHR and human rights, I assure the noble Lord, Lord Murphy of Torfaen, my noble friend Lord Deben and others that this Government remain absolutely committed to the Belfast agreement in all its parts. That includes the commitments on the ECHR. As for a Bill of Rights, the noble Lord, Lord Murphy, blamed his own Government as much as anyone for the lack of one. As I have always said, the agreement is somewhat ambiguously drafted as to how that should be taken forward, but the policy of successive Governments has been that it is primarily a matter for the Executive and the Assembly. New Decade, New Approach established a committee of the Assembly to look at how this issue might be taken forward.

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[Baroness Goudie (Lab)]

My Lords, I raised this issue in my Second Reading speech and I am happy to speak to these amendments and others on this issue. I really feel that it is important that we should have “comply with” and not “have due regard to” in the Bill. It is really important that people understand why we are doing this; if somebody needs only to “have due regard” to something, they just have to look at it. It is important that they should have to comply with best practice, and I would like to see that left in the Bill.

[Lord Caine (Con)]

My Lords, I again thank noble Lords for their amendments in this group, which broadly focus on the role of public authorities within the Bill including, as the noble Lord, Lord Murphy, made clear, how we have sought to define them. The debate has once again reinforced just how much better it would be if this were being debated in the Northern Ireland Assembly rather than in the Grand Committee of your Lordships’ House.

I speak first the amendments in the name of the noble Baroness, Lady Ritchie, who cannot be here, which were spoken to by the noble Baroness, Lady Goudie. Amendment 18 seeks to amend new Section 78N, inserted by Clause 2, so that public authorities would have to comply with the best practice standard, rather than have due regard to them, as the current provisions of the Bill require. I will also address Amendment 39, which seeks to place a duty on public authorities to comply with obligations under the European Charter for Regional or Minority Languages.

Again, I point the noble Baroness to New Decade, New Approach and the draft legislation published alongside it, with which this Bill is consistent. At the risk of repeating myself—I fear that I may have to do it again during the course of this debate—the Government are as far as possible seeking to retain the position reached in New Decade, New Approach, which was not to create a wider set of legal duties than has been proposed by these amendments.

I may offer some reassurance, though. In new Clause 78N(2), to be inserted in the Northern Ireland Act 1998 by Clause 2, the Bill sets out that public authorities must “publish a plan” on how they intend to have due regard to the best practice standards; the commissioner must also be consulted on that plan. This seems to me to provide an assurance that public authorities will carry out their duties with rigour and with the support of the commissioner.

Amendment 21 seeks to widen the meaning of “public authorities” to include any UK-wide public authority that provides services to the public in Northern Ireland. New Decade, New Approach was clear that the Executive were to deliver this legislation. The UK Government have brought forward this Bill, which is based on legislation drafted for the Northern Ireland Assembly. The duties in the legislation that was published alongside New Decade, New Approach applied to the public authorities set out in Schedule 3 to the Public Services Ombudsman Act (Northern Ireland) 2016. There was no such commitment for them to apply to a different range of public authorities.

In some cases, I recognise that public services may be administered on behalf of Northern Ireland departments by the UK Government or a third party through agency or other arrangements. This can be the case for online services, for example. If a designated Northern Ireland department or public body decided to commission out the delivery of a public service, it would still need to consider its duties in so doing; the public authority concerned may decide that this requires it to ensure that the body delivering the services offers provision in the Irish language, for example. I hope that this provides some reassurance on the issue.

Amendment 39 would solely amend the provision on the designation of public authorities in respect of the Bill’s Irish language clause. It would not do the same for the provision on the national and cultural identity principles overseen by the Office of Identity and Cultural Expression, nor the measures associated with the Ulster-Scots and Ulster-British tradition. Making differential provision on the public authorities designated under various parts of this cultural framework would undermine the fact that this is a balanced package. That was the clear intention in New Decade, New Approach.

I will now speak more broadly to Amendments 2, 20 and 37, which seek to probe the definition of “public authorities” set out in the Bill. The definition used to define “public authorities” for the purposes of the Bill was taken, as with many other parts of the legislation, from the draft legislation that was published alongside New Decade, New Approach; that legislation was prepared by the Office of the Legislative Counsel at Stormont at the request of the UK Government back in January 2020. I suggest to noble Lords that the range of public authorities brought under the remit of this Bill, from district councils to universities and health trusts, is substantial. We are confident that the approach in the Bill captures the vast majority of public authorities with which the public in Northern Ireland would interact and from which they would receive services.

As noble Lords have pointed out, there is also further provision in the Bill for the First Minister and Deputy First Minister, acting jointly, to designate additional authorities or specified functions of them should that be required over time. We have ensured that the power for the First Minister and Deputy First Minister to designate public authorities are consistent with what the position would have been had the Northern Ireland Assembly, rather than this House, passed the legislation published alongside New Decade, New Approach. In response to an earlier question, the criteria really would be a matter for the First Minister and Deputy First Minister in the Executive to determine. We therefore consider that it would be inconsistent to expand the definition of “public authorities” beyond that set out in the draft legislation published alongside New Decade, New Approach.

Amendment 32 in the name of the noble Lord, Lord Morrow, and his Democratic Unionist Party colleagues seeks to create an additional legal duty on public authorities in respect of the Ulster Scots/Ulster British tradition and guidance published by the associated commissioner. I point out gently that New Decade, New Approach was very clear that the roles and functions of the two commissioners—the Irish language commissioner and the commissioner for the promotion of the Ulster Scots/Ulster British tradition—would be different. The provision for both is therefore different, including in respect of duties.

The language commissioner’s role pertains to matters of language alone. Their work focuses on best practice standards on the Irish language for public authorities to follow in providing services to the public. It is understandable that a corresponding legal duty would be needed in this case. By comparison, the commissioner associated with the Ulster Scots/Ulster British tradition will have a far more wide-ranging role than their Irish language counterpart, going beyond language, as we will probably discuss later, into arts and literature. The proposed legal duty on this wider range of activities would go far beyond the matter of services provided to the public, unlike those on the Irish language best practice standards.

The Bill does, however, provide for the commissioner to provide advice and guidance to public authorities, promote awareness of Ulster Scots services and receive complaints where a public authority has not had due regard to their guidance. There is also, as noble Lords will be aware, a specific legal duty in Clause 5 on the Northern Ireland Department of Education to

“encourage and facilitate the use and understanding of Ulster Scots in the education system”.

Again, this reflects a specific New Decade, New Approach commitment. We hope it will result in Ulster Scots rightly being reflected through the education system, going some way to address the difference in existing legislation, where similar provision has already been made for Irish-medium education. The Government believe that the existing provisions in the Bill will correctly support the development of the Ulster Scots/Ulster British tradition and the Irish language respectively, and will do so consistently with New Decade, New Approach, which was agreed by the two main parties which negotiated it between 2017 and 2020.

Finally, Amendment 4 in the name of the noble Baroness, Lady Hoey, seeks to address concerns raised in an article written over the weekend in a publication called Unionist Voice. Indeed, her speech followed the argument contained in that article very closely. For the benefit of those noble Lords who have not read it, the article suggested, as the noble Baroness made clear, that the Bill could require the Irish tricolour to be flown alongside the union flag on public buildings in Northern Ireland. This is not the case. I am grateful to the noble Baroness for raising this issue because it allows me the opportunity to state clearly before the Committee that, in the view of the Government, the article was inaccurate and fundamentally misunderstands the provisions in the Bill.

The Bill does not change the existing law on flag flying from government buildings in Northern Ireland. As I have said many times before, it faithfully delivers on the legislative commitments in New Decade, New Approach. Noble Lords will be aware that the existing flag regulations provide for the union flag, as the national flag of Northern Ireland, to be flown from Northern Ireland government buildings and courthouses on certain occasions, as well as the Royal Standard or the national flag of a visiting head of state. For police buildings, different regulations provide that the PSNI flag and, on certain occasions, the Royal Standard are the only flags that may be flown. In both cases, the law otherwise prohibits the flying of flags. That will remain the case. No provision will be made by this Bill in respect of flying another flag alongside the union flag. I should point out that a number of court judgments over the years have upheld the present law on the flying of the union flag.

The noble Baroness, Lady Hoey, referred—as did the article over the weekend—to a speech made by Mr Gerry Adams in 1998. I assure the noble Baroness that, to the best of my knowledge, Mr Adams does not direct UK government policy when it comes to the flying of flags in Northern Ireland, or any other part of the United Kingdom for that matter.

[Baroness Hoey (Non-Afl)]

I thank the Minister for that explanation. Can he just tell the Committee why the Northern Ireland Office paid out a substantial sum of money to an individual who was offended by there being a picture of Her Majesty the Queen in the Northern Ireland Office?

[Lord Caine (Con)]

I am very familiar with that case, because I was an adviser in the Northern Ireland Office at the time. It was the subject of legal proceedings and, if the noble Baroness will bear with me, I do not really want to reopen what was settled in court. The matter was subject to a court case, and she is well aware of the outcome.

My noble friend Lord Empey and the noble Baroness, Lady Hoey, talked about the status of Northern Ireland. I can give an assurance that I have given many times before: the Belfast agreement is extremely clear, in the section dealing with constitutional principles, and it does not establish Northern Ireland as a hybrid state or a condominium. It is an integral part of the United Kingdom on the basis of consent. However, the Belfast agreement does contain—as those noble Lords present who helped to negotiate it will attest—important commitments around parity of esteem, which were a central part of the agreement in 1998.

But, as has been stated many times, the regulations relating to the flying of the union flag reflect, and are consistent with, Northern Ireland’s position within the United Kingdom—a position which, I assure noble Lords present, this Conservative and Unionist Government fully support.

[Lord Deben (Con)]

I am old enough to have been through all the debates on the flags. There was no doubt whatever that what was being upheld was the flag of the United Kingdom, to be flown in circumstances in which it was the flag of the whole United Kingdom, and not to be used for sectarian purposes. That was what the argument was about. It has been supremely successful. It is our flag, and it is flown in the north of Ireland, which is part of the United Kingdom. It is a pity to worry people unnecessarily because of some comment made 24 years ago by somebody who would have said that anyway. No one has listened to him since on that matter.

[Lord Caine (Con)]

I am extremely grateful to my noble friend, who makes a very powerful point. I agree with him entirely on those matters. The national flag—the union flag—is the flag of Northern Ireland. There is absolutely nothing in this legislation that will undermine the position of the union flag or force anybody to fly an Irish tricolour—or any other flag, for that matter—alongside it.

[Lord Kilclooney (CB)]

I have very bad hearing, and I did not hear whether the noble Lord used the Sinn Féin term of “north of Ireland” or “Northern Ireland”. Which was it?

[Lord Kilclooney (CB)]

That is not the answer to my question.

[Lord Caine (Con)]

My Lords, I think we should probably move on. In summary, the provisions of the Bill—

[Lord Dodds of Duncairn (DUP)]

Before we move on, because these matters are important, there is a report, I think in today’s newspapers, about the reduction in the number of days on which the union flag will be flown officially in Northern Ireland—albeit it appears to be related to a general reduction across the United Kingdom, so Northern Ireland would be in line with the rest of the UK. Can the Minister comment on whether this report is correct—that there will be a number of official days removed from the calendar for the whole of the United Kingdom?

[Lord Caine (Con)]

I can: there has been a review of the number of days on which the union flag is flown officially throughout Great Britain. There has been a reduction in the number of such days, and that will be reflected in Northern Ireland legislation which I will bring before your Lordships’ House fairly soon. All that is doing is ensuring that Northern Ireland is in step with the rest of the United Kingdom.

In conclusion, the provisions of the Bill do not have the effect that has been suggested in the noble Baroness’s speech, and for that reason I cannot accept the amendment.

[Lord Murphy of Torfaen (Lab)]

My Lords, I have just a few brief points to make. At the moment, 1998 appears to be a favourite date. I reflect on the fact that the Northern Ireland Act 1998 was the last Act that I took through Committee from the Front Bench, 25 years ago—it did reflect the agreement, of course.

I was interested in the point made by the noble Lord, Lord Empey, on how much about the Irish language was mentioned in the Good Friday agreement; it was not reflected in the 1998 Act, of course. What we did say—I was responsible for these issues 25 years ago—was that the British Government would take “resolute action” to promote the Irish language; they had in a previous paragraph referred to Ulster Scots but also, interestingly, to the languages of other ethnic minorities, by which I suppose they mean the languages of Chinese minorities, for example. The only statutory duty was placed

“on the Department of Education to encourage and facilitate Irish medium education in line with current provision for integrated education”.

The noble Lord, Lord Empey, is therefore right that this was not legislated for by way of an Irish language Act but, of course, things changed later with the St Andrews agreement, where further details emerged about what should or should not happen to the Irish language Act. The difference between that agreement and this agreement is what we are dealing with today, I suppose. I absolutely agree with the noble Lord about the need for equality of treatment for both traditions and languages. We should not deviate from that principle at all.

I am still a bit puzzled about why the Northern Ireland Human Rights Commission is not covered by this legislation—or, for that matter, the Northern Ireland Office. The Minister will of course know that the Welsh Language Act 1993 is applicable to the Wales Office, the equivalent territorial department, even though the Wales Office is a United Kingdom Government department with a small office in Wales and an office in Whitehall.

We have had some interesting debate on this issue. Nevertheless, I beg leave to withdraw the amendment in my name.

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[Lord Dodds of Duncairn (DUP)]

The noble Lord makes a very good point, which is often overlooked when we talk about these issues—certainly, in this place because there is a lot of concentration, necessarily and inevitably, on the functions of Northern Ireland departments, the Assembly and the Executive. There has undoubtedly been a very aggressive campaign on this, lavishly funded by certain councils, particularly those west of the Bann. Taking that into account, as the noble Lord has pointed out, makes my point about the necessity of catching up all the more relevant, pertinent and urgent.

The Ulster Scots community is representative of the lion’s share of the unionist community in Northern Ireland, disadvantaged by years of underinvestment in its identity. We must ensure that it is not short-changed. Broadcasting is one example where we could see a very immediate change, I hope, if funding is made available. We need to see financial equality between the two broadcast funds and the footprint of the Ulster-Scots Broadcast Fund extended to include greater coproduction with Scotland and a presence on the UK-wide network in recognition of Ulster Scots as a national minority of the United Kingdom.

We also need to see dedicated and sustained resources to support Ulster-Scots projects on the east-west axis, in line with Amendment 30 in this group, between communities and schools—cultural and educational institutions—to engage the Ulster Scots community and diaspora throughout the United Kingdom. Recognition of the Ulster Scots nature of the commissioner’s brief, in line with Amendment 30 and more specifically through Amendment 43A, will facilitate this. I look forward to hearing what the Minister will say. I hope he will take these amendments on board, take them away and reflect on how, if implemented, they would go some way to restoring equality and parity of esteem in this area.

[Lord Caine (Con)]

My Lords, again, I am very grateful to all noble Lords who spoke to this group of amendments. I start by saying that the Government are committed to supporting the culture and heritage of the Ulster Scots and the Ulster British tradition in Northern Ireland. This includes £1 million in funding for Northern Ireland Screen’s Ulster-Scots Broadcast Fund, which was delivered last year, and the formal recognition this year of Ulster Scots as a national minority under the Council of Europe’s Framework Convention for the Protection of National Minorities. The Bill does not in any way take away from the recognised status of Ulster Scots in a number of international instruments. Indeed, its provisions protect that status and actually broaden it.

As I have said on a number of occasions, the Bill seeks faithfully to deliver on the legislative commitments in what the then leader of the Democratic Unionist Party, Dame Arlene Foster, described in January 2020 as a “fair and balanced” package. It was very clear in that package that the remit of the commissioner in respect of the Ulster Scots and Ulster British tradition would be matters of “language, arts and literature” and not culture and heritage. In the Bill we are sticking faithfully to what was in New Decade, New Approach.

Perhaps I might give some reassurance. In the new cultural framework provided for by the Bill, the office of identity and cultural expression will have an important grant-making power and will be able to commission research, support educational programmes and provide guidance reflecting Northern Ireland’s diversity of national and cultural identities. That would seem naturally to include the Ulster Scots/Ulster British tradition, given its prominence, and I hope that provides some small degree of reassurance on that point.

I also highlight that the Irish language commissioner’s role is limited to language, reflecting the particular needs of Irish speakers. If we were to widen the provision for one commissioner to include cultural matters, it is perfectly possible, given the nature of Northern Ireland, that demands could then follow from those expecting the same of both. So we need to be slightly careful on these matters.

[Lord Empey (UUP)]

I am most grateful to the Minister. I am not constrained by anything Dame Arlene might have said at the time about “fair and balanced”. The Minister knows my views on this. We have to be careful. I am attracted to the use of the word “heritage”. That is because the—let us say—profile of the respective identities is different. The Irish have coalesced around language to an extent to which the Ulster Scots and Ulster British have not. When you are looking at equality of treatment—I see the point the Minister is making; and I said earlier that we should not be constrained in our deliberations because this is being debated here and not at Stormont, as we would all prefer—there is a difference between the profiles. Heritage matters greatly and is expressed in different ways. I fear that we are boxing people in with the definitions in the legislation.

[Lord Caine (Con)]

I am grateful to my noble friend. On this, as on many issues, I have a huge amount of respect for what he says. But in this particular area, and on the point he makes, all we are doing in this legislation is reflecting the language and the remit set out in New Decade, New Approach. I completely appreciate that my noble friend and his party were not signatories to or supporters of that agreement. Nevertheless, there was an agreement in January 2020 which formed the basis of the restoration of devolved government and that is what we are seeking faithfully to implement here.

Amendments 7 and 22 are important. Taken together, they seek to differentiate between the Ulster Scots and the Ulster British tradition by pluralising them and making them “traditions”. I note the sensitivity of this matter and, indeed, of the title of the associated commissioner in this context, and I am grateful to the noble Lord, Lord Morrow, for the way in which he spoke about these matters.

Let me say this: although I am not in a position to commit fully to anything today, I genuinely have a great deal of sympathy with the noble Lord’s amendments and the intention behind them. If he will allow it, I will therefore endeavour to explore them further ahead of Report.

Amendment 43A—a late addition to the Marshalled List on which the noble Lord, Lord Dodds, spoke—seeks to place the Secretary of State under a duty to

“establish and maintain a fund to … connect Ulster Scots in Northern Ireland with Ulster Scots in the rest of the United Kingdom.”

On this, again, I say that the Government are committed to supporting the Ulster Scots and Ulster British tradition —or traditions, if you like—which forms an integral part of Northern Ireland’s rich tapestry. However, the creation of such a fund as provided for by this amendment would go way beyond what was set out in New Decade, New Approach. We therefore cannot accept this amendment.

The noble Lord, Lord Dodds, asked me a number of detailed questions regarding funding, the answers to which I do not have readily to hand. However, I think he referred to Irish language centres; from memory, that was a commitment under the Hillsborough Castle agreement back in 2010, although I would have to double-check that. Anyhow, if the noble Lord will allow me, I will write to him in detail well in advance of Report so that, if he wishes to explore these matters further, he will be able to do so.

[Lord Morrow (DUP)]

My Lords, I listened carefully to what the Minister said. Perhaps I am overconfident but I detect a glimmer of hope here. Keeping that in mind, I beg leave to withdraw my amendment.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

I listened very carefully to what the noble Lord had to say. When it comes to a spirit of generosity, it is with a spirit of generosity that the party I represent has been willing to go into and be part of an Executive in Northern Ireland with those who for years sought to murder us. I take no lectures bearing in mind that some of us who are gathered here are not supposed to be here as far as Sinn Féin/IRA is concerned because our family was to be wiped out completely in one last action of the IRA. Therefore, when it comes to generosity, it is very difficult to accept those in government. I am speaking personally on this. I found it very difficult to watch those who paraded on the roads of Ulster with terrorist weapons in their hands to destroy us every night. For 25 years, I sat in the back of an armoured police car, having to be guarded; my family were not allowed to travel with me. So when it comes to generosity, I suggest that the people I represent have been very generous.

[Lord Caine (Con)]

My Lords, I thank my noble friend Lord Dodds of Duncairn for the way in which moved his amendment. The effect of this group of amendments would be to place the Secretary of State under a duty to assess ahead of commencement, and annually thereafter, the costs arising from the three bodies.

I genuinely appreciate the intent behind these amendments but it is, as my noble friend Lord Deben made clear in his comments, not a matter for UK Government Ministers to conduct annual assessments for public bodies for which they are not directly responsible. The three public authorities established by this Bill will be administered, supported and funded by the Executive Office and fall squarely under the devolved competence of the Northern Ireland Assembly.

My noble friend referred to the estimated costs of the bodies. That will be a matter for the Northern Ireland Executive and the Assembly, although my officials—I think this is in the Explanatory Notes—have estimated through comparison with similar bodies a figure in the range of around £9 million per annum for all three bodies to run. As my noble friend Lord Deben highlighted, expenditure from the Northern Ireland Consolidated Fund is for the Northern Ireland Assembly to scrutinise. That is why, in the case of all three authorities, specific provision is made for the Executive Office to lay a copy of the statement of accounts and the statement of the Comptroller and Auditor-General for Northern Ireland before the Assembly.

Although Parts 6 and 7, which we will come on to later, make provision for the Secretary of State to ensure the implementation of the provisions in this Bill if that is absolutely necessary, I again highlight that it is not the intention of either the Government or that part of the Bill to result in a situation in which the Secretary of State routinely involves himself in transferred matters.

These amendments would make the Secretary of State’s involvement in transferred matters of identity, language and culture a permanent feature. We would prefer those to remain considerations for Northern Ireland’s devolved institutions. For that reason, I urge my noble friend to withdraw his amendment.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to the Minister for his response and for the manner in which he has dealt with the issue. I understand where he is coming from. The tone and tenor in all these debates relating to Northern Ireland are important. Seeking to raise a matter to do with financial accountability does not, and should not, evoke the level of vitriol that we heard from the noble Lord behind me in relation to these matters. Whatever his underlying attitude to a particular party or to the unionist community in Northern Ireland, these are important matters, which have been the subject of detailed scrutiny, not just by the DUP but, being subject to three years’ negotiation, by all the other parties as well: the Alliance Party; the Ulster Unionists, who were involved in the negotiation, so I totally respect what the noble Lord, Lord Empey, said about the final bit of it; the SDLP; and Sinn Féin.

It is not in any spirit of a lack of generosity that we want proper, detailed scrutiny in Committee of aspects of legislation. After all, we would not have an NDNA agreement if it was not for the fact that the DUP, along with Sinn Féin and other parties, subscribed to it. We would not have had the restoration of the Assembly had it not been for the fact that Arlene Foster, Sinn Féin and other parties said, “On this basis, we can move forward.” It was not everything that we wanted—far from it. I am sure that it was not everything that other parties wanted—far from it. But, as I am sure the noble Lord, Lord Murphy, can testify, neither were the Belfast agreement, the St Andrews agreement or anything else.

My noble friend Lord McCrea makes a very fair point. Those of us who have been subject to murder attacks by Sinn Féin have been prepared to sit alongside Sinn Féin Ministers—I have been an Executive Minister, sitting and working alongside them—who have never apologised or expressed an ounce of regret for any of the actions that they carried out. Indeed, they still eulogise those murderers today, which is a source of great contention and problems in Northern Ireland. If we are talking about generosity, let us remember that. The explosion in this debate is perhaps illustrative of a wider problem which exists with some people who perhaps do not have the degree of understanding that their long experience should give them, nor, certainly, a respect for the way in which Northern Ireland matters should be properly debated and discussed. I beg leave to withdraw the amendment.

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[Lord Morrow (DUP)]

My Lords, Amendment 10 is in my name. I have good news for noble Lords: this will be my briefest contribution because there is no way that I can gainsay anything that has already been said. I will not move my amendment because I give way to the learned, able, capable noble Lord, Lord Lexden, and all those who have spoken on this issue. That is all I have to contribute on that issue.

[Lord Caine (Con)]

My Lords, it is a great pleasure to respond to the speeches that have been made on this group of amendments. I thank, in particular, my noble friend, Lord Lexden and the noble Lords for the DUP for tabling the amendment. It is hard for me to add a great deal to what my noble friend Lord Lexden said about Castlereagh. A few weeks ago I had the great privilege of spending two or three hours at Castlereagh’s childhood and family home, Mount Stewart in County Down. For noble Lords who have not been, the restoration carried a few years ago by the National Trust is outstanding. It is impossible to leave Mount Stewart without being very conscious of the towering contribution that Castlereagh made to Irish, British and European history and politics. I concur with everything that my noble friend Lord Lexden said about Castlereagh, Pitt and the union. I think I am right in saying—he will correct me if I am wrong—that the Catholic hierarchy at the time welcomed the Act of Union on the understanding that Catholic emancipation would be delivered, and I agree that it is one of the great tragedies of history that what was the right measure in 1800 was not accompanied by those measures which were blocked by King George III. I also concur with every word that has been said about Professor John Bew’s outstanding biography of Castlereagh, which I read a number of years ago. It managed to fill quite lot of time on flights between London and Belfast at the time of the Stormont House agreement.

My noble friend also referred to Field Marshal Sir Henry Wilson, who was murdered by republicans on this day 100 years ago. I had the great privilege this morning of attending a ceremony in the Chamber of the House of Commons where the Speaker, Sir Lindsay Hoyle, unveiled a plaque to the former Member of Parliament for North Down.

On the amendment, I can assure noble Lords that the Government are committed through New Decade, New Approach to fund the establishment of the Castlereagh foundation. It is envisaged that the foundation will explore matters of identity, which my noble friend Lord Empey raised, and the shifting patterns of social identity in Northern Ireland. It appears to me that the amendments that have been tabled are important and can assist the Government in meeting the commitments in New Decade, New Approach. If noble Lords will allow, I would like to take away the amendments, look at them more closely, discuss their contents with noble Lords and return to this subject on Report.

[Lord Lexden (Con)]

My Lords, that seems a very satisfactory basis on which to leave the matter. I hope unionist friends concur. We look forward to further progress and, all being well, a government amendment on Report following discussion. On that basis, I beg leave to withdraw the amendment.

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[Baroness Goudie (Lab)]

My Lords, I am moving this amendment on behalf of my noble friend Lady Ritchie. Briefly, we put these amendments down to ensure that, if the Assembly is not sitting or if there is a problem, the Secretary of State can continue what needs to be done both at the time and in the long term into the future.

[Lord Caine (Con)]

I am very grateful to the noble Baroness, Lady Goudie, for speaking to these amendments on behalf of the noble Baroness, Lady Ritchie of Downpatrick, which I will address with Amendment 15 in the names of the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie.

Amendments 13 and 16 would remove the obligation on the First Minister and Deputy First Minister to approve best practice Irish language standards produced by the Irish language commissioner. New Decade, New Approach—I must keep referring back to this document, I am afraid—sets out a series of clear safeguards for the First Minister and Deputy First Minister on the bodies established by the Bill, including for the approval of best practice standards. I assure the noble Baroness that these safeguards were a critical part of securing what I referred to earlier as the balanced package of measures in New Decade, New Approach. Without them, we would probably not have reached an agreement. The Government are faithfully putting these safeguards into effect in the legislation, including through the provision on the approval of the Irish language best practice standards. To remove those safeguards would undermine the balanced nature of the measures. I therefore cannot accept the amendments.

Amendment 15 in the names of the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, also seeks to amend Clause 2 so that the First Minister and Deputy First Minister would be obligated to take regard of advice provided by the Irish language commissioner in relation to best practice standards. I am somewhat inferring that this is to introduce a safeguard whereby the First Minister or Deputy First Minister could not simply ignore the advice of the Irish language commissioner if they were to disagree with it. We very much hope that future First and Deputy First Ministers would take a pragmatic approach to approving best practice standards. This would logically include taking the views of the commissioner into account, and in all honesty I struggle to see a situation in which that would not be the case. I therefore urge the noble Baroness not to press her amendment.

I am conscious that there were amendments in this group in the name of the noble Baroness, Lady Hoey. As the Chair has indicated, she is not in a position to speak to them.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, accepting the points made by the noble Lord, Lord Empey, I do not believe that there is only a perception of a difference; this legislation would actually make a difference between the two. NDNA did not give acceptance or credence to lack of parity of esteem; in actual fact, it was demanding that. It was not seeking to be used for discrimination against the unionist community; in actual fact, it was demanding that both communities in Northern Ireland were treated with that parity of esteem.

[Lord Caine (Con)]

Once again, I am most grateful to the noble Lord, Lord Morrow, for the way in which he moved his amendment. To comment briefly on the words of my noble friend Lord Empey, I think it was Duff Cooper whose memoirs were entitled Old Men Forget. I am sorry to disappoint my noble friend but even I have forgotten some of the details of the New Decade, New Approach negotiations that took place over those torturous three years between 2017 and 2020.

I am grateful to the noble Lord, Lord Morrow, for tabling these amendments, which relate to extending the grounds upon which an individual can make a complaint to the process for the Ulster Scots commissioner. I have a number of concerns regarding the amendments; I will set them out briefly.

My first concern is that it would not be appropriate to amend one of the commissioner’s complaints procedures but not the other. The amendments in the name of the noble Lord would undermine the position reached in New Decade, New Approach that the commissioner should be able to investigate relevant complaints about a public authority’s lack of due regard to advice provided in respect of facilitating the use of Ulster Scots. That is why the Bill specifically refers to “published facilitation guidance”.

I highlight to noble Lords that, in preparing this legislation, the Government have provided the essential clarity on the complaints process for the commissioner so that it provides similar clarity and certainty to the complaints process provided for the Irish language commissioner. The role of the Ulster Scots/Ulster British commissioner and their work to provide advice and guidance will cover the same public authorities as the office of identity and cultural expression and the Irish language commissioner. The public will be able to make complaints to each commissioner in the same way.

On the parity of esteem point made by my noble friend Lord Empey and the noble Lord, Lord McCrea, as I said on an earlier group of amendments, the commissioners have been designed to meet the different needs of different parts of the community. They are different in function, and therefore there are certain disparities in their powers. Again, that was the position reached in New Decade, New Approach; the Government are faithfully trying to follow it.

I suspect that I have not reassured the noble Lord on this issue. He may wish to return to it but, for now, I would be grateful if he would withdraw his amendment.

[Lord Morrow (DUP)]

My Lords, having listened carefully to the Minister—again, he has enticed me enough for me to withdraw my amendment at this time—I just want to say this to him: I am not going away. We will be watching carefully. I think that he has taken on board what we have said; I appreciate that. I beg leave to withdraw the amendment.

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[Lord Lexden (Con)]

My Lords, some very important constitutional points have been brought up in this debate, and I know my noble friend will want to reflect with care upon them. Since this is the last debate in Committee, I shall make a simple general point. It takes the form of an injunction to my noble friend. It is that between now and Report, he seeks to do all that is possible within the Bill to address the considerable and deeply felt reservations and concerns that have been brought up during these proceedings. This is a Bill for which we unionists will never feel any enthusiasm, but it would be good if on Report there will at least be some diminution of the concerns and reservations that have been expressed this afternoon.

[Lord Caine (Con)]

My Lords, I again thank noble Lords across the Committee for the amendments that have been tabled and for their contributions. If I may, I will try to speak to all of them in this group.

Turning first to Amendment 41 in the names of the noble Baronesses, Lady Ritchie of Downpatrick and Lady Goudie, to which the noble Lord, Lord Murphy, referred, it would introduce a threshold to the step-in powers conferred on the Secretary of State if the First Minister and Deputy First Minister do not appoint an Irish language commissioner or approve best practice standards, either once the legislation comes into force or when a vacancy arises.

I again understand the noble Baronesses’ intention in wanting to ensure that the provisions of this long-awaited Bill are not stymied by inaction on the part of the Executive, and their desire for the Secretary of State to move quickly if such inaction were to present itself. This is an issue that was raised with the Irish language group Conradh Na Gaeilge when I met it in Belfast three or four weeks ago.

My starting point is, of course, that the Government would not wish to intervene routinely in transferred matters and the use of any powers in the Bill would require careful consideration. Judging by the comments that have been made, I am sure that noble Lords share my belief that deviating from that principle would be undesirable. However, the Government believe that it is important to have these powers as a contingency to avoid inaction. They have been carefully drafted to allow the Secretary of State to use his discretion and to consider the circumstances at the time.

I think the noble Lord, Lord Murphy, wanted me to elaborate a little on that. Some of the considerations that the Secretary of State might want to take into account in exercising these powers and having regard to the circumstances at the time might include: whether the matter of identity and language was causing political instability in Northern Ireland; whether the institutions were functioning; whether the First and Deputy First Ministers were acting in good faith in implementing the legislation; and, indeed, whether these issues were surmountable without such an intervention. They would be the kinds of considerations that he would take account of.

The stipulated timeframe of 30 days in the amendment seems impractical, particularly in respect of public appointments that take time and need to be conducted with rigour. Such a timeframe would almost certainly preclude the correct process from taking place and the proper and thorough consideration of best practice standards by the First and Deputy First Ministers.

Finally, my understanding is that the amendment would apply solely with reference to the Irish language commissioner and not the commissioner to enhance and develop the language, arts and literature associated with the Ulster Scots and Ulster British tradition; nor would it apply to the appointment of the director and members of the office of identity and cultural expression. Therefore, the Government will not be able to accept such an amendment.

Amendment 42 seeks to give the Secretary of State a further area where step-in powers could be exercised; namely, in relation to strategies relating to the Irish language and Ulster Scots, as set out in Section 28D of the Northern Ireland Act 1998. This is a separate undertaking from the legislative commitments on identity and language that were set out in New Decade, New Approach and, for that reason, we have decided not to include such a provision here.

Amendment 40, moved by the noble Lord, Lord Murphy of Torfaen, would require the Secretary of State to make a statement to Parliament when the direction powers under Clause 6 are used. I hear the comments of my noble friend Lord Empey, the noble Baroness, Lady Suttie, and others, who gave some support to the comments by the noble Lord, Lord Murphy. If I may put it like this, I understand the desire for more scrutiny and transparency to be introduced if the Secretary of State were to be in the unfortunate position of having to use these powers. The powers, as I have said, have been carefully drafted, but I assure noble Lords that I will go away and look further into this issue following our discussions today.

[Lord Empey (UUP)]

I am most grateful to the Minister for his last comment, but this is a fundamental issue around the devolution settlement. If we are making big distinctions over the areas of transferred powers in which a Secretary of State has the potential to intervene, it is an encouragement for people in the relevant devolved Administration because it is a disincentive to agree.

We also have to bear in mind the implications of this for the other devolved institutions. I wonder how we would sell this to the Scottish Parliament, or the Welsh Senedd for that matter. If we take one issue and put it on a pedestal, the potential is there for that boundary—that envelope—to be pushed further forward. I can assure the noble Lord of that, though I am sure he is well aware of it.

[Lord Caine (Con)]

I am grateful to my noble friend; I will touch on what he said shortly, I think. I give my assurance to the noble Lords who have spoken on this amendment that I will go away and look at this further before Report.

I am also grateful to the noble Baroness, Lady Hoey, for her amendments, which were spoken to by my noble friend Lord Moylan, and to the members of the Democratic Unionist Party who are in the Committee today for their amendments, which all focus on the powers conferred on the Secretary of State arising from the provisions in Clauses 6 and 7. I will turn to those clauses now, if I may.

I completely understand the noble Lord’s intent that these powers should be exercised only in exceptional circumstances, if at all. I repeat my earlier assurances: the Government would not wish routinely to intervene in transferred matters and the use of any powers in the Bill would require very careful consideration indeed. I have set out some of the factors that the Secretary of State might have to take into account in deciding whether to use the powers in these clauses because we agree that deviating from the overall principles—protecting the devolution settlement and not routinely intervening in transferred matters—would be undesirable.

However, in our view, it remains important to have these powers in the event that matters such as those we are discussing today—identity and language—remain a source of instability. I need not remind the Committee of the potential and capacity that they have to poison and paralyse politics in Northern Ireland, as they did during the period between 2017 and 2020. That is why these powers have been drafted and included; they afford the Secretary of State the latitude to use his discretion if these issues remain a matter of discord.

I complete accept the comments of my noble friend Lord Dodds of Duncairn in referring to New Decade, New Approach. However, the reason we are taking these powers—almost as an insurance policy, if you like—is to deal with the fact that, some two and a half years after New Decade, New Approach, key elements and provisions of that agreement have not been implemented. The Government feel that they have an obligation to ensure that they can be delivered.

At the risk of opening an entirely new front at this late stage, I have heard a number of comments about the Belfast agreement. Noble Lords have heard me express on many occasions my support for that agreement, which has been consistent since 10 April 1998. I gently remind noble Lords that there is a provision in the Belfast agreement that explicitly states that Parliament’s ability to make law for Northern Ireland remains unaffected. That is also reflected in the Northern Ireland Act 1998.

As I said, the powers have been drafted to give the Secretary of State latitude to use his discretion in these areas. They also reflect the fact that the UK Government are necessarily bringing forward in this United Kingdom Parliament primary legislation that was originally for the Northern Ireland Executive and Assembly to introduce. In our view, it is right in those circumstances that the Secretary of State has the power to ensure the implementation of these commitments, as I have just said.

Of course, as has been stated many times, it is our sincere hope that a new Executive will be formed soon, will implement this legislation and will set up the new bodies for which this Bill provides. With Clause 6, though, the Government are seeking to ensure that there is a path to the implementation of the legislation. The Government are committed to ensuring that the legislation works in practice, and that the commissioners and the office can function effectively so that these New Decade, New Approach commitments are conclusively delivered. Clause 7 is necessary to ensure the effective operation of the provisions made in Clause 6 should the Secretary of State judge it necessary to intervene.

Finally, I very much take on board the comments of my noble friend Lord Lexden. I will reflect on what he said. With those remarks, I urge the noble Lord, Lord Murphy, to withdraw his amendment.

[Lord Murphy of Torfaen (Lab)]

Well, there we are. My Lords, it is not easy. My heart tells me that the noble Lords, Lord Empey and Lord Dodds, and others are right that the devolution settlement should be protected. If you set up an Assembly and a Government, they should be allowed to get on with things and should not be interfered with every 24 hours by the United Kingdom Government; I accept that. That is one reason I tabled what I thought was a fairly modest amendment to just say, let us have a Statement instead of a directive. It could even go further and have a parliamentary debate, or whatever.

As always, the issue boils down to a short supply of trust. That has to be built up. It has been lost over the past number of years, inevitably, for all sorts of reasons, but there is a difference between this legislation and others, which is that this is essential to the restoration of the Assembly. Sinn Féin brought the Assembly down because of the lack of an Irish language Act, and therefore, if we are saying, “Look, there is so much disagreement we can’t pass this; it’s not going to happen”, the chances are we will go back to square one again. The problem is that people in the unionist community will say, “Well, that’s a veto too, over the Assembly being set up.” I am uncomfortable with it, but I cannot see off the top of my head any way around it. There may be people much cleverer than me who can think of a solution—there we are; there is a good example of someone much cleverer than me.

[Lord Murphy of Torfaen (Lab)]

Yes, I understand, and if I was the Secretary of State under those circumstances, I would not invoke special powers, which this Act would eventually do; I would get on a plane and go over there and have a chat for the next two weeks to try to resolve it, negotiate around it and deal with it that way. That is how we have always dealt with things in Northern Ireland. Frankly, that is how what is going on there now should be dealt with. That is the way to do it. That is why I am less than comfortable with this, but I just cannot see a way around it.

The noble Lord, Lord Empey, makes a good point. We assume in all the agreements we have made that we can resolve these issues among ourselves. It could be that the Secretary of State could be a referee in all this, and that could be somehow put into legislation. Then, at the end of the day, the decisions are taken by those who should be taking the decisions, rather than a rather clumsy, clunky entrance which says, “All right, you lot, I’ve had enough of you, I’m going to pass the legislation.”

[Lord Caine (Con)]

I am following the noble Lord very closely. He is absolutely right to say that these are uncomfortable powers. He will be aware, since he has been around in politics a long time, that one does not always necessarily have to be comfortable with something to deem it necessary. He referred earlier to his act on the aeroplane of signing the suspension order of the Northern Ireland Assembly in 2000. I recall that suspension was deemed necessary to preserve the institutions.

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[Lord Morrow (DUP)]

My Lords, I can be very brief. I have listened intently to what the Minister has said, and to what the noble Lords, Lord Murphy and Lord Empey, and others have said. It strikes me that the Minister has said that the Government are doing this to implement NDNA, but if the truth be told, NDNA is not being implemented. Rather, it is being cherry-picked: “We’ll do that, but we won’t do that.” It is getting a bit monotonous, and suspicion is rife across Northern Ireland as to what exactly is going on here.

[Lord Caine (Con)]

I apologise for having to take issue with the noble Lord right at the conclusion of the debate, but I challenge the assertion that New Decade, New Approach is being cherry-picked. The legislation I took through this House at the end of last year and the beginning of this one focused primarily on the robustness and resilience of the institutions. The noble Lord will remember that in all the discussions on New Decade, New Approach, they were key demands of the Democratic Unionist Party. I was involved in those talks quite intimately; they were key demands of the DUP, and they have been delivered to the best of our ability.

There is a whole host of other commitments in New Decade, New Approach about the veterans’ commissioner, support for the Northern Ireland centenary, et cetera—I could go on. I tabled a Written Ministerial Statement a few weeks ago, setting out in great detail all that had been delivered on New Decade, New Approach, to the extent that members of the Opposition were quite surprised at just how much had been delivered by this Government. The idea that we are cherry-picking or favouring one side over the other is, frankly, not correct.

[Lord Morrow (DUP)]

I am speaking now about Clause 7, which the Minister is very familiar with. Furthermore, as was mentioned earlier, we were told that the Irish language Act was not a part of the Belfast agreement. I accept that; it was not. It was not a part of the St Andrews agreement. Was a private arrangement made? Somehow, mysteriously, this all started to evolve. Those were issues for the Northern Ireland Assembly and the Northern Ireland Executive. They should be allowed to get on with that. Was the protocol included in any of this? Was the Executive consulted in relation to that? I can clearly state that the answer is no—although I am not a member of the Executive, I have enough party colleagues who are in it.

Finally, in the 1998 Act, there are very narrow grounds, to put it mildly, on which Westminster can actually intervene. One of those grounds is national security, as I referred to yesterday. So this is being expanded all the time—“Oh, we’ll do this, and we’ll do that”—and it leaves one side or the other totally demoralised. I suspect that the architects of the Belfast agreement, some of whom are here, and those who signed up to it are bitterly disappointed at the way the whole thing has been treated and pulled. At times, they must wonder whether it will survive. It is kicked into touch when it has to be, and then parts of it are implemented and parts of it are not. We have to get to the stage where trust is built between the communities in Northern Ireland and the Government in London.

Abortion (Northern Ireland) Regulations 2022

Lord Caine Excerpts

Tuesday 21st June 2022 Lords Chamber

Moved by

[Lord Caine]

That the Regulations laid before the House on 19 May be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

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

My Lords, in opening this debate I first acknowledge and express my respect for the deeply held views that many noble Lords hold and will continue to hold on this subject. For my part, since becoming a Member of your Lordships’ House in 2016, I have never taken a position on the moral rights or wrongs of abortion; indeed, I have not previously voted on the issue. Therefore, rather than reopening the ethical debate about abortion, which has been discussed on previous occasions including during the passage of the 2020 framework regulations, I wish to focus on the legal obligations on the Secretary of State for Northern Ireland and the Government and how these regulations will address them.

The origins of these regulations were the decision taken by both Houses of Parliament in 2019 to support an amendment to the Northern Ireland (Executive Formation) Bill brought forward by the honourable Member for Walthamstow, Stella Creasy, in the other place, in respect of access to abortion services in Northern Ireland. Noble Lords will recall that this took place during the period of nearly three years from 2017 to 2020 when Northern Ireland was without a functioning Executive or Assembly. The effect of her amendment, which subsequently became Section 9 of the Northern Ireland (Executive Formation etc) Act, was to place a clear statutory duty on the Government to ensure access to services that are compliant with the report in 2018 of the UN Committee on the Elimination of Discrimination Against Women—or CEDAW for short.

I remind noble Lords that the amendment was passed by a majority of 332 to 99 in the other place, and a vote to amend that amendment in this House was rejected by 138 votes to 39. The size of these majorities indicated the clear will of Parliament to address these issues and ensure access to services in Northern Ireland in line with those available in the rest of the United Kingdom. As a result, since April 2020, access to a limited range of abortion services has been available in Northern Ireland; the latest figures I have show that between 31 March 2020 and 31 January 2022, 2,794 such abortions took place.

I take this opportunity to put on record my thanks to the medical professionals who have ensured that women and girls have had some local access to abortion services in Northern Ireland up to this point, and the organisations that have supported this work. I do not underestimate the huge efforts that have been made, and I have deeply been impressed when meeting, as I have on a number of occasions, clinicians and organisations who have helped to sustain the limited services currently in place.

Despite their best efforts, however, these services still fall far short of what is required by law, with women and girls still unable to access high-quality abortion and post-abortion care locally in Northern Ireland in the same way as women in the rest of the UK. The reasons for this are very clear. Following New Decade, New Approach and the restoration of devolved government in Northern Ireland in January 2020, it was always the Government’s expectation and preference that the Executive, with the relevant legal powers, policy and operational expertise, would take forward the commissioning of abortion services and ensure that they were embedded in the health and social care system in Northern Ireland. Yet, despite having had every opportunity to do so, and extensive engagement by the UK Government to see how best we could support delivery, the Executive have failed to act.

As a result, women and girls in Northern Ireland continue to be placed in vulnerable situations, which we cannot allow to continue. Many of them are still forced to travel to Great Britain to access services, with 371 making the journey in 2020 despite the difficulties attached to travelling during that period. Figures released just today show that 161 made the journey in 2021. I know from my discussions with clinicians in Northern Ireland that the limited services on offer are stretched to breaking point. This is clearly an unacceptable state of affairs. Despite being given the time, space and encouragement by the Government to do so, the Executive have not ensured the provision of services required by Parliament in 2019.

In the spring of 2020, the Government introduced, and Parliament approved, a framework for the Department of Health in Northern Ireland to deliver services, yet services were not commissioned. In March 2021, the Government introduced, and Parliament approved, the Abortion (Northern Ireland) Regulations. These provided the Northern Ireland Secretary with a power to direct that action be taken where it is required to implement the recommendations in paragraphs 85 and 86 of the CEDAW report. In July 2021, the Northern Ireland Secretary did indeed direct the Department of Health to commission and ensure the full provision of abortion services by no later than 31 March 2022, yet services were still not commissioned.

It is approaching nearly three years since the executive formation Act was passed. Section 9 continues to place the Government under a duty to implement the CEDAW recommendations and ensure that women and girls have access to services. We now have no alternative but to take all necessary actions to ensure that this happens.

In his Statement, therefore, on 24 March this year, my right honourable friend the Secretary of State for Northern Ireland committed to return to Parliament and make regulations after the Northern Ireland Assembly election which took place on 5 May, if no progress was made towards the delivery of services. He has now made the regulations that are before your Lordships today and they were agreed in the other place last week, in order to make sure that the will of Parliament is respected and his legal duties upheld.

In response to arguments made that these regulations ignore the devolution settlement and make constitutional changes via secondary legislation, I would remind noble Lords that the devolution settlement does not absolve us of our statutory duty to uphold the rights of women and girls in this context. I therefore hope that noble Lords will support these regulations without amendment to the approval Motion.

The Government have not taken these decisions lightly. We remain fully committed to protecting the Belfast agreement in all its dimensions and to the institutions it establishes, including devolved government. In this instance, however, as I have just said, the devolution settlement does not absolve the Government of the clear statutory duties placed upon them by Parliament. This Government’s actions up to this point reinforce that position and our desire to work with the devolved institutions. Indeed, it was only once it became clear that this deadline would not be met that on 24 March, my right honourable friend made a commitment to return to Parliament and make regulations on abortion should they be necessary. As a result, these regulations were laid before this House on 19 May.

Turning briefly to what they contain, they remove the need for the Northern Ireland Executive Committee to approve services before they can be commissioned and funded by the Department of Health in Northern Ireland. The regulations do this by providing that directions under the Abortion (Northern Ireland) Regulations 2021, which require action to be taken to implement the recommendations of the CEDAW report, must be complied with irrespective of whether the matter has been discussed or agreed by the Northern Ireland Executive Committee. Further, they confer on the Secretary of State the power to do anything that a Northern Ireland Minister or department could do for the purpose of ensuring CEDAW compliance. For the purpose of determining what a Northern Ireland Minister or department could do, any need for Executive Committee approval will be disregarded.

The effect of this is to ensure that the Department of Health will have no further barriers to commission and fund services. Even at this stage, it is our clear preference that the Department of Health should drive forward the commissioning of abortion services without further delay and that, as a devolved matter, funding remains the responsibility of the Northern Ireland Executive. To that end, we continue to engage with the Minister of Health and his department, but this requires an absolute commitment by the department to provide services, or the Northern Ireland Secretary will use his powers in these regulations to commission services himself. To ensure that we have all the information required in those circumstances, a small team has been established in the Northern Ireland Office to work alongside the Department of Health to take this forward.

I recognise that this is a sensitive and personal issue for many people, and we have heard many differing views in this House on previous occasions, as well as from Members of the Northern Ireland Assembly, in relation to abortion services. Yet this sovereign United Kingdom Parliament has also made its views crystal clear and placed a binding statutory duty on the Secretary of State to ensure access to properly commissioned services. In their absence, caused by a refusal on the part of the Executive to take this forward, women are currently forced to choose to travel or to resort to unsafe and unregulated measures.

A number of the clinicians I have met over recent months, who are struggling to provide these services without proper support, tell me of the very difficult situations into which women are being forced by a lack of safe, local, high-quality healthcare services. This is despite the fact that the law is in place to ensure that safe, properly regulated services are provided. We have a statutory duty in Section 9 of the executive formation Act to change this situation and ensure that CEDAW-compliant services are available. That is what these regulations will finally provide in Northern Ireland, and I commend them to the House.

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[Lord Caine (Con)]

My Lords, I thank everybody who has participated in the debate on these regulations, and I am grateful to the number of noble Lords who expressed support for what the Government are bringing forward. We have heard a wide range of strongly held personal views, and varied contributions on all aspects of the regulations. The noble Baroness, Lady Smith of Basildon, referred to a sense of déjà vu; I think it was the late Viscount Whitelaw, when he was Secretary of State for Northern Ireland, who referred after one meeting to “déjà vu all over again”. I take on board the comments of the noble Baroness regarding the Secondary Legislation Scrutiny Committee, and I can assure her that my officials have returned to the committee with a number of additional pieces of information, which I am assured have been included in the Third Report, so I do take that very seriously indeed.

I shall take the opportunity to address a number of the points raised by noble Lords in quite a lengthy debate, although I fear that if I respond to every single point raised, the Chief Whip might come to the House tomorrow to cancel the Summer Recess, but I will do my best.

A number of noble Lords, not least the noble Baroness, Lady O’Loan, whom I know has very deeply held views on these subjects, have made heartfelt contributions on the provision of abortion services and the framework established in 2020, and the framework regulations introduced then. I appreciate and understand the views that have been expressed but, as the noble Baroness, Lady O’Loan, pointed out, Parliament has already decided on a number of occasions that abortion services must be provided in Northern Ireland, and by large majorities. Noble Lords referred to the 2020 framework regulations. I would just remind noble Lords that those regulations were passed in your Lordships’ House by 332 votes to 29, which is some indication of the will of the House on those issues. The focus of the Government, and of these regulations, is to ensure that Parliament’s decision, expressed on a number of occasions, to give women and girls access to abortion services in Northern Ireland, is properly and fully implemented. Although abortion is an extremely emotive subject, as the noble Baronesses, Lady Deech, Lady Suttie, Lady Smith and Lady Barker, made very clear, we must not lose sight of the fact that it is women and girls in Northern Ireland who are at the heart of these issues, and it is unacceptable that there are women and girls in any part of our United Kingdom who cannot access basic healthcare and whose access to services has been delayed for far too long. I agree with my noble and learned friend Lord Clarke of Nottingham, whose very wise speech I strongly commend.

Parliament has decided that women and girls in Northern Ireland should be able to make individual, informed decisions, with proper patient care and the provision of information and support from medical professionals, based on their own health and wider circumstances, similar to women and girls living everywhere else in the United Kingdom. I think that is very much the right decision.

I should like to reiterate that, as was made clear by a number of noble Lords, so many women in Northern Ireland are placed in a difficult situation by the lack of regulated commissioned abortion services. I referred in my opening speech to the very large numbers who still have to travel to Great Britain to access care, or have to access unregulated services in Northern Ireland. With the greatest respect to the noble Baroness, Lady O’Loan, the position cannot simply be dismissed as work in progress; it cannot continue in this way, as the noble Baronesses, Lady Barker and Lady Smith of Basildon, made absolutely clear.

A major theme of a number of noble Lords this afternoon has been the constitutional position and the importance of respecting the devolution settlement in Northern Ireland. I agree entirely with that, although I cannot avoid sharing the suspicion of the noble Baroness, Lady Smith of Basildon, that some—not all, I hasten to add—seek to use the constitutional argument as a screen for the fact that they oppose abortion in all circumstances. It is interesting listening to people invoking the Belfast agreement, some of whom have never supported it at all and others who have recently pronounced it dead. I assure noble Lords that I, for one, am a strong supporter of the Belfast agreement and have been since 10 April 1998 when that historic agreement was made. I have repeatedly said in this House and elsewhere that I regard it as the bedrock of all the progress that has been made in Northern Ireland over the past 24 years. I do not wish to see anything that puts the agreement and its success in jeopardy.

The right reverend Prelate the Bishop of Blackburn suggested, I think, that we are only making these regulations now because the Assembly is not sitting, and we can. I think I explained in my opening remarks the circumstances in which these regulations originated. The Assembly was not sitting, we had an amendment to the Executive formation Bill and since then, we have been working alongside the Executive, the Department of Health and the Minister of Health for a number of years, but we have simply made no progress. Therefore, it is not a question of doing this because we think we can do it at this stage; we have really run out of road on this issue.

A number of noble Lords referred to the pick-and-mix nature of devolution. I certainly do not wish to pick and mix when it comes to the devolution settlement— I think my noble friend Lord Cormack used that phrase. The fact is that Government and the Secretary of State remain under a statutory duty to provide access to abortion services. It is wrong to suggest that he is not under a statutory duty—indeed, he is found to be in breach of his statutory duties in court. He is in no way absolved from the duties imposed upon him by the executive formation Act 2019 by the restoration of devolved government in 2020, as I said in my opening remarks. Lord Justice Colton, in his decision in the judicial review brought by the Society for the Protection of Unborn Children, said the following:

“The clear will of Parliament was that if there was no Executive Committee established by 21 October 2019 then the relevant duties and powers come into existence without extinguishment consequent on events thereafter.”


It is clear that the Secretary of State remains under the obligation and duties that Parliament imposed upon him nearly three years ago.

Notwithstanding this, we have been repeatedly clear about our desire—as the noble Baroness, Lady Smith of Basildon, reminded us—to continue to work with the Executive, the Department of Health and the Assembly to ensure that these regulations are implemented effectively and in a way that works for Northern Ireland, consistent with the obligations on the Secretary of State that I have outlined.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, asked about the accountability of the Secretary of State. Of course, as a Minister of the Crown, the Secretary of State will continue to be accountable to this sovereign Parliament of the United Kingdom, as will I in your Lordships’ House.

The noble Lord, Lord Dodds of Duncairn—I normally refer to him as my noble friend, because he is—asked about the team of experts that has been set up in the Northern Ireland Office. They are civil servants from the Department of Health and Social Care who are experts in these matters and have been seconded to the Northern Ireland Office for these purposes.

Returning to the Northern Ireland Executive, more than two years after the framework regulations were put in place, it became abundantly clear that the Department of Health was not progressing this issue and that even if it did, it would be blocked once it reached the Executive Committee. Our clear preference is that the Executive should drive forward these services. To that end, the Secretary of State has formally requested confirmation from the Northern Ireland Minister of Health that they will do so. Therefore, even at this late stage and with these regulations, there is still an opportunity for the Minister and the Department of Health to take forward the commissioning of services without the intervention of the Secretary of State. We are not, however, prepared to allow the provision of services to be delayed indefinitely.

The noble Baroness, Lady Smith of Basildon, asked about a timeframe, as did the noble Baroness, Lady Suttie. I cannot give an exact timeframe, as I am sure they will appreciate, but we are not prepared to let this run for much longer. The Secretary of State would not be taking on these powers if he was not prepared to intervene fairly quickly, but at this late stage there is still an opportunity for the Department of Health to take this forward. We hope that will be the case but if not, the Government are prepared to act very quickly.

A number of noble Lords, including the noble Lord, Lord Morrow, and the noble Baroness, Lady Suttie, asked about funding. The regulations enable the Secretary of State to make provisions about funding, but I reiterate what has been said and in doing so disagree with the noble Lord, Lord Morrow. The funding settlement in last autumn’s spending review was the most generous in the history of devolution in Northern Ireland—indeed, across the whole United Kingdom. It would be a devolved matter, and it would be for the Northern Ireland Executive and the Department of Health to provide funding.

Parliament made a clear decision in 2019, passed by large majorities, to place a duty on the Government to provide access to CEDAW-compliant abortion services in Northern Ireland. In 2020, the Government delivered a set of regulations to enable that to happen. I reiterate that the regulations were passed by a very large majority in your Lordships’ House. That was over two years ago. At every stage we have sought to ensure that services were delivered through the proper devolved channels, but we have been unsuccessful in so doing. The powers these regulations grant provide a mechanism to unblock the political obstacles which have been placed in the way of their delivery, in order that the Government can satisfy obligations placed upon them in 2019 and uphold the will of this sovereign United Kingdom Parliament. I therefore urge noble Lords to reject the amendment in the name of the noble—

[Lord Dodds of Duncairn (DUP)]

I am very grateful to the Minister for giving way. On a point of factual accuracy, he and others have referred to 2,793 abortions in Northern Ireland, but the latest figure given by the Minister of Health in Northern Ireland is, as of 13 June, 3,459. Can the Minister undertake that, once he has set up this team of experts, it will give up-to-date advice to the NIO on the factual position? There is quite a big difference between the figure cited today on the record and the actual figure as given by the Minister of Health in Northern Ireland, who is the Minister responsible.

[Lord Caine (Con)]

Of course—I am very happy to give my noble friend that assurance.

In conclusion, I urge noble Lords to reject the amendment in the name of the noble Baroness, Lady O’Loan, should she seek to test the opinion of the House, and I urge your Lordships to support these regulations.

[Baroness O’Loan (CB)]

My Lords, I thank all those who have spoken in the debate today, particularly those who have spoken with me on my amendment to the Motion. Like the noble Baroness, Lady Barker, I should like to provide a clear exposition of some of the facts raised today. I cannot answer all the points made without keeping your Lordships for too long.

The regulations are loosely and badly drafted. They give rise to a large number of questions, which the Minister has not answered. The devolved Government have acted in accordance with the Northern Ireland (Executive Formation) Act and the 2020 regulations. People do not have to buy unsafe abortion pills; they get them from their doctor now. Abortion is now available. The noble Lord, Lord Dodds, said that there have been over 3,500 abortions. If there had been no specific commissioning of health services, these women could not have obtained abortions in Northern Ireland without paying for them. However, the fact that they were able to obtain their abortions under the health service means that they have been commissioned by the health services. Northern Ireland abortion services are provided and paid for by Northern Ireland.

Identity and Language (Northern Ireland) Bill [HL]

Lord Caine Excerpts

Tuesday 14th June 2022 Lords Chamber

Moved by

[Lord Caine]

That it be an instruction to the Grand Committee to which the Identity and Language (Northern Ireland) Bill [HL] has been committed that they consider the bill in the following order:

Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clauses 4 to 11, Title.

Motion agreed.