Identity and Language (Northern Ireland) Bill [HL]

Lord Dodds of Duncairn Excerpts

Report stage
Wednesday 6th July 2022 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I am pleased to speak to Amendments 2A, 4, 16, 35A and 37, and I point out at the commencement that the noble Lord, Lord Empey, is a signatory to them but regrettably is unable to be with us today due to domestic circumstances. We wish him well and I thank him for attaching his name to them. My noble friend Lord Browne, to my left, will speak on some of these amendments in place of the noble Lord, Lord Empey.

I want to be very clear from the outset that the view of the DUP is that the two commissioners are different and their functions do not need to be made identical; indeed, we do not believe that making them identical would be appropriate. However, it is vital, not least in order to respect the principle of parity of esteem, that both commissioners be respected by all parts of government and society as equally important. One key way in which this respect needs to be manifest is in ensuring that the amounts of public money devoted to both are comparable. In making this point, I observe that the Explanatory Notes suggest that the funding for both commissioners will be similar, but it is my contention that this assertion is made on a problematic basis. The costing is assessed narrowly, in terms of the direct costs of running the offices of two commissioners, but that is surely just a fraction of the impact—certainly of the Irish language commissioner—on the public purse.

One can only have any hope of assessing the impact of the provision of the commissioners if, in addition to assessing the relevantly limited cost of running their offices, one has regard also for the budgetary impact they will have in placing additional demands on public authorities. It is in relation to their impact on public authorities that the real cost of the commissioners will be felt, and it is important, especially in the context of the current cost of living crisis, that we are open and honest about this fact.

The relevant public authorities are defined by the Public Services Ombudsman Act (Northern Ireland) 2016, which lists well over 70 public authorities in Northern Ireland. If we consider the principal aim of the Irish language commissioner, described in new Section 78K(1) as,

“enhance … the use of the Irish language”,

it is possible that every single public authority in that long list will be in receipt of significant new obligations and costs, relating to the provision of the services of the public authority in question in Irish. They will, however, also benefit from a duty to have regard to obligation being placed on public authorities in relation to them and the complaints procedure with respect to the entirety of their obligations as defined by the Irish language commissioner.

By contrast, the role of the Ulster Scots commissioner is also defined in terms of the same list of public authorities, the principal aim of the commissioner, to

“enhance … the language, arts and literature”,

of Ulster Scots, rather than enhancing the use of the language, as described in new Section 78Q(1), is such that while it is clear that some public authorities concerned with culture and the arts will be engaged, it is also likely that the demands placed on the long list of others, including, for example, the Northern Ireland Fishery Harbour Authority, the Health and Safety Executive, the Agri-Food and Biosciences Institute, et cetera, will be very limited indeed.

Put another way, while every public authority is equally and extensively open to engagement by the Irish language commissioner, because all public authority services must be provided in the context of the use of language, it seems to me that every public authority is not as equally and as extensively engaged by the Ulster Scots/Ulster-British commissioner.

At this point, I should perhaps anticipate the response that the Bill makes reference to the role of the Ulster Scots/Ulster-British commissioner in terms of,

“facilitating the use of Ulster Scots in the provision of services to the public or a section of the public in Northern Ireland”.

However, while the principal role of the Irish language commissioner, as described in new Section 78K(1), is focused on enhancing the use of the language in public service provision, the parallel principal role of the Ulster Scots commissioner is defined in terms of enhancing the language, literature and arts of Ulster Scots. Although facilitating the use of Ulster Scots by public authorities in service provision is by no means off limits, the fact that it is not front and centre, as in the case of the Irish language commissioner, is underlined by the fact that reference to it does not occur in the principal role definition when it is mentioned lower down, as in new Section 78R(2)(b) where it is only in brackets.

In response to the debate on costs in Committee, the Minister referred simply to the Explanatory Note, which focuses narrowly on the costs of running the three organisations, not on the cost to the public purse with respect to public authorities. In responding to that debate, the Minister stated also that it was not the business of Westminster to get involved in monitoring the costs of the new bodies. I accept that point, after the bodies are established.

My Amendment 37, however, pertains to the period before the Bill comes into force and so is directed at Westminster and Whitehall. While it is not our job to run offices, it is our job to make this legislation very clear about the costs for which Northern Ireland must prepare. Amendment 37 requires that, before this Act can come into force, the Secretary of State must lay before Parliament a report assessing both the operational costs of setting up and running the three offices, and the costs to public authorities of engaging with the new commissioners and their requirements. Critically, it requires also that this assessment demonstrates how the resulting spending allocation, including that from the public authorities, will give effect to the principle of the parity of esteem between the unionist and nationalist communities.

Amendments 4, 16 and 35A would place a similar obligation on the First and Deputy First Ministers for once the two commissioners are up and running in order to ensure that the spending allocations to each community are broadly comparable. Amendment 2A applies the same obligation in relation to their assessment of the spending of the office of identity and cultural expression.

I hope that the Minister is in a position to give the following assurances that I am looking for in speaking to these amendments today: first, that the role of both commissioners should be accorded equal importance; and, secondly, as a function of this, that the budgetary footprint left by each commissioner in terms of their impact on public authorities should be broadly the same. In responding to the debate today, I ask that the Minister directly addresses these two points. I beg to move.

[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.

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[Lord Lexden (Con)]

My Lords, like other speakers, I have very considerable sympathy for the views that the noble Lord, Lord Morrow, expressed. I urge my noble friend the Minister to keep the key words “parity of esteem” constantly in mind. That is the heart of the matter. I hope he will indeed reflect further, as he has been encouraged to do. It really would be a tragedy not to do all that is possible to allay the considerable misgivings with which this legislation is currently viewed by many unionists in Northern Ireland.

[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.

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[Baroness Goudie (Lab)]

My Lords, I support my noble friend Lady Ritchie’s amendments. Furthermore, I ask the Minister to consider that committees and other organisations around the strategy should have equal numbers of men and women, and of various religions and others, so that this truly bears out the Good Friday agreement and the Bill. This would be a great move, and I know the Minister could see to this. Perhaps it could also be debated fully in the other House. I raised this on Second Reading.

[Lord Dodds of Duncairn (DUP)]

My Lords, I speak in support of Amendments 28, 29 and 36 in the names of the noble Lords, Lord Morrow and Lord Empey, but I will first deal with Amendment 25 in the name of the noble Baroness, Lady Ritchie.

I understand where the noble Baroness is coming from with this amendment, which we also discussed in Committee. Part of the reason for it is to allow decisions to be made if there is no Northern Ireland Executive in place, but from my reading of it—I stand to be corrected—if it were to be agreed, these powers to act after 30 days would apply whether there were a Northern Ireland Executive or not. In other words, even if the Assembly and the Executive are in place but a period of 30 days elapses between the trigger point and a decision being made, it is open to the Secretary of State to intervene. That seems a quite draconian suggestion. I have been in the Northern Ireland Executive, like the noble Baroness and others, and many decisions take longer than 30 days, for all sorts of good reasons and considerations of all sorts of circumstances. It seems an amazing proposition that the Secretary of State would be compelled to act if the Office of the First Minister and Deputy First Minister could not agree something within 30 days. I can think of nothing more designed to undermine the principle of devolution than that. From my reading of the amendment, it clearly would apply not just to the circumstances where there was no Executive but even if the Executive were in place.

The other thing I point out is that the amendment would apply only to the appointment of the Irish language commissioner, so there is no compulsion for the Secretary of State to act if there is a failure to appoint the Ulster Scots/Ulster-British commissioner. It seems one-sided in that approach. Nor indeed would it apply to appointments relating to the office of identity and cultural expression. It seems to be very much overstepping the mark. It would not fulfil the purposes it purports to and would create a one-sided approach in relation to appointments. For those reasons, I trust that the Government will maintain their position from Committee and not support the amendment.

Amendments 28, 29 and 36 in the names of my noble friend Lord Morrow and the noble Lord, Lord Empey, would remove the override powers from the Bill. In his opening remarks, the noble Lord, Lord Murphy, made the very important point that the Bill is designed to stick as closely as possible to the NDNA agreement. That is what we are about. On a number of occasions, the Minister cited in support of his arguments in knocking down some amendments that we must reflect the NDNA agreement and that those provisions were not in it. It is certainly not in the NDNA agreement that the Secretary of State for Northern Ireland would be given override powers, as the Minister admitted in Committee.

If it had been suggested that this would be part of the agreement, I do not think there would have been an agreement. If we had set up a series of checks and balances, and requirements for the First Minister and Deputy First Minister to agree, and then said, “If they can’t agree, don’t agree, or it appears to the Secretary of State to be appropriate then he can intervene and take on all the powers of the First Minister and Deputy First Minister in this respect”, which is a devolved matter, there would not have been an agreement. It so undermines the NDNA agreement and devolution itself that I find it hard to see how the Minister can justify it. He cannot do so on the basis that it is a faithful replication of the agreement, or on the grounds that it faithfully adheres to the devolution arrangements throughout the United Kingdom. It is clearly in breach of the Sewel convention and it acts as a clear disincentive to find agreement.

This is one of the many areas where the First and Deputy First Minister—and, indeed, the Executive—are required to reach agreement without the fallback that if they do not then the Secretary of State will intervene. That forces agreement to be made in the vast bulk of cases. If it is clear to some people that the Secretary of State will intervene if they simply dig in their heels and do not agree, then that is likely what will happen. I think this is a very misconceived part of the Bill. I understand that the argument may well be that it is a difficult area and we need contingency powers, as the Minister set out in Committee, but, again, contingency powers to avoid this problem arising were not part of the NDNA.

I come back to the basic principle. This Bill is about implementing that agreement. We are all agreed on that. These clauses were not part of the agreement. They are unilateral actions on the part of the Government to reserve unto themselves powers to override the Executive. We have seen this in a number of areas recently and I have raised with the Secretary of State and with others within government that we are going down a very dangerous path with this selective overriding of the devolved settlement. We have seen it in relation to the abortion issue, in relation to this issue and in relation to the protocol issue, where the voting mechanism of the Assembly, which is meant to be cross-community and cross-party agreement—there has to be a majority of unionists, nationalists and an overall majority—has been set aside arbitrarily.

Where does this end? What criteria do the Government apply for where they respect devolution and where they set it aside? Can the Minister tell us what are the overall considerations as to when powers are taken by the Secretary of State to override devolution, the Belfast agreement or the NDNA agreement? Is it on a case-by-case basis? What is it? I think it raises very serious questions.

I hope that when this matter is dealt with in the other place, the Government will reconsider this approach because, as I say, it is not a faithful replication of the NDNA agreement.

[Lord Murphy of Torfaen (Lab)]

My Lords, I must say that the final debate of this evening has been fascinating. There are times where I am glad I am not the Minister, and this is one of them. There are quite convincing and interesting arguments on both sides. I remember that the late Lord Cledwyn Hughes, when he chaired the Parliamentary Labour Party, would start his deliberation as chairman by saying: “There are pros and cons for and there are pros and cons against.” That is the case here.

It is about protection. My noble friends Lady Ritchie and Lady Goudie were talking about protecting this legislation, protecting the agreement that has produced the legislation so that something which in the past, as we all know, brought down the Assembly for three years ought not to happen again. Of course, we have to ensure that the legislation is balanced for both nationalists and unionists and, indeed, other members of the community in Northern Ireland. I quite understand the need for reassurance but then there is the other protection: the protection for devolution. It would be much easier, by the way, if the Assembly and the Executive were functioning because the argument would be much more effective but, of course, they are not and that is one of the problems. Because there is no real, effective Assembly or Government in Northern Ireland, it is very difficult to ensure that there is certainty about this legislation when they are not there. I can understand that too.

As I said in Committee, when I was the Secretary of State I felt deeply uncomfortable about making decisions for people in Northern Ireland when I was a Member for a Welsh valley constituency. It was for the people of Northern Ireland to decide what they had to do. On schools, education, language, culture or whatever it might be, it is for those people in Northern Ireland who were elected by the people of Northern Ireland to make the decisions. They have elected them and, frankly, it is about time they got into government. I understand all the issues that underlie why that is not happening.