Identity and Language (Northern Ireland) Bill [HL]

Debate between Lord Caine and Baroness Goudie

Committee stage
Wednesday 22nd June 2022 Grand Committee

[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.

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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.