Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Lord Empey Excerpts

Tuesday 13th February 2024 Lords Chamber

[Lord Alderdice (LD)]

My Lords, one of the strengths of your Lordships’ House is that it can look at legislation with a microscope and draw back and look at the larger picture. I want to try to do the latter for a few minutes.

There is not much doubt that the reason that we are addressing these statutory instruments, and indeed the wider question, is as a consequence of Brexit. Without Brexit, none of these issues would have been around. The majority of people in Northern Ireland did not vote for Brexit—they voted to remain—so when we talk about the people of Northern Ireland wanting this, that or the other, one of the things we should remember is that they did not want Brexit.

The consequences of Brexit were all known in advance. They were not all paid attention to in advance—some people did not want to see what the consequences were—but they were there to be seen. Ironically, the idea of Brexit was supposed to be that we would be free in the United Kingdom—whatever exactly that meant. But what do we find so many years later? That we cannot talk about anything at all without paying attention to Brexit and giving off about the fact that we cannot ignore the European Union and we wish we could. That is what I hear, but we cannot ignore it.

The reason for the protocol was not to address problems in Northern Ireland; it was—and I have said this many times—that a consequence of Brexit was to damage the relationship with the European Union and the United States. After a couple of Prime Ministers not making much of a show of things, Prime Minister Rishi Sunak realised that the key thing for him to do was to repair the relationships with Europe and the United States, because, despite all the talk of being able to have lots of agreements, co-operation and all sorts of things, it was not possible at all; you have to have relationships with these two powerful entities.

The idea that the wishes of some of the people of Northern Ireland should drive the interests and decisions of the British Prime Minister and the wider world is not very realistic. We end up having to address the reality and the consequences. We can be cross about it, and I understand that. We can feel let down, even betrayed, and I understand that. But in the real world there are consequences and we have to try to find some way of addressing them.

Another thing I have heard about is inclusivity. Of course, the Good Friday agreement was not inclusive, because the DUP and the UKUP, as it was at that time, walked out. They were not part of the Good Friday agreement; they never supported it. In fact, there was talk about the only thing that ever changed, but actually there were changes under the St Andrews agreement and they turned out to not be a very good idea in the long run for some of the people who wanted to see those changes. For example, it brought about the fact that we have a Sinn Féin First Minister, which is not something that some of the people who demanded changes would have wanted to see. We have to be very careful what we ask for.

It is also the case that the whole structure of the Good Friday agreement and the Assembly was not entirely inclusive. It included unionists and nationalists—and the noble Lord, Lord Bew, was talking about the two communities—but there is an emergent third community, which has a very strong view about things and which is not partisan unionist and not partisan nationalist. It takes a view that what we want to do is to find what is in the best interests of the people of Northern Ireland at the particular point when that generation is making a decision. At the moment, that may well be to stay within the United Kingdom, and in a generation or two generations’ time a different decision may be taken. It is not a partisan view, but the whole structure of the Assembly’s voting arrangements is not inclusive from that point of view.

Some people will not sign up for agreements—and almost all of us at one point or another do not want to sign up for an agreement—but the one thing we must understand is that, when we do not like an agreement or want an arrangement, the solution is not to bring down the whole system of government. If we do not agree with something in Westminster, we vote against it and we argue against it, and we try to persuade people of it, but we do not bring Westminster down, because that would bring chaos. Both Sinn Féin and the DUP have found ways of bringing down the structure of governance in Northern Ireland, and it has not made for a better life for the people of Northern Ireland or for more stability in Northern Ireland. We have to remember that. I say to the Minister, and to any future Minister on the other Benches who may have the responsibility, that we need to end the notion that, if you do not like what is happening, the solution in Northern Ireland is to bring down the whole system of government. Whatever else happens, we have to find a way of making sure that that does not happen.

I have a good deal of sympathy with some of the things that have been said on the other Benches, particularly the presentation by the noble Lord, Lord Dodds. There is a great deal of truth in what he says. Promises have been made, undertakings have been given and a certain spin has been presented about what is said in these documents, what the outcome of them is and so on. He is quite right. But the question is: what is the alternative?

I have said a number of times, in your Lordships’ House and in other places, that in my political judgment—we can all be wrong—the people who need a Northern Ireland Assembly most are the pro-union people of Northern Ireland. That is the only place where they will really have a platform to express their views and have their say. It is absolutely not an unlimited say, but at least it has the possibility of being expressed. That is why I have said, on a number of occasions, that, without an Assembly, there will be a drift towards what I have called de facto joint authority, not de jure—we will not see votes and things like that. What will happen? The people on this side of the water will find themselves wanting to co-operate with others who have a more powerful economy and position in the world than Northern Ireland on its own, and that is where the drift of politics will go.

I understand the protest and the anger, and that things do not look as they were meant to and so on. But there is a sense in which Sir Jeffrey Donaldson has tried to save unionist people from themselves, in a way, and from what some of them were trying to do. There is a limit to where protests can take you, and they can take you to the point of self-destruction. At some cost to his own skin, I suspect, Sir Jeffrey has pulled things back and said, “Look, this is the best I can get. I’ve tried really hard—I honestly have—and this is absolutely the best that I can do. You may not like it and you may be disappointed in it, but I’m trying to do the best for Northern Ireland”. I think he probably has done the best that he can do, and we have to see it in that context and in the wider and longer context: the question of what the relationships will be further down the line with this country, with our other neighbours, with a changing global economy, with a changing demography in Northern Ireland and with a changing set of views among the different groups of people in Northern Ireland.

Northern Ireland is not a homogenous entity, and those people have to find a way of living together with their differences. That is a real challenge. The whole world has not found a way of living with difference, which why we are hurtling into the third global conflict at the moment. Actually, Northern Ireland is finding its way out of a conflict. It is an awful struggle, and it is very difficult and extremely painful, and it will not necessarily bring the outcome that any particular group wants. But now, and in the future, it is a place where people are not being killed, children are not being left fatherless and motherless, and parents are not frightened about their children going out for the evening because they might not come back. That is a change for the better.

For me, it is not the detail of these instruments but the symbolism that has given the possibility of getting stability within Northern Ireland, which is in the interests of all the people of Northern Ireland—albeit that almost every section and group has had to make some sacrifice and compromise in the interests of that better future.

[Lord Empey (UUP)]

My Lords, I am pleased to follow the noble Lord, Lord Alderdice, and I will do a bit of both the things he mentioned: look at the detail and, I hope, look at the bigger picture. Northern Ireland has had to endure another two years of rudderless governance at a time of the worst cost of living crisis in living memory and of burgeoning waiting lists—the noble Lord, Lord Hain, will know that I have raised this issue so many times in this House.

I was always opposed to the boycott of the institutions at Stormont. For unionism to adopt Sinn Féin tactics never seemed to be a strategic good idea to me. Of course, I refer to the previous three-year collapse of Stormont brought about by republicans between 2017 and 2020. The big difference between those two periods of collapse has been the outcomes. Sinn Féin got what it wanted with the language legislation, while the DUP failed to shift the border in the Irish Sea, returning to Stormont with the protocol/Windsor Framework unaltered. All this chaos is due to the disastrously negotiated Brexit deal. None of the legislative contrivances before us tonight would have been necessary had we remained in the EU, or had there been a properly prepared and effectively negotiated departure of the UK from the EU.

Northern Ireland (Executive Formation) Bill

Lord Empey Excerpts

2nd reading
Wednesday 24th January 2024 Lords Chamber

[Lord Empey (UUP)]

My Lords, I thank my noble friend for his kind remarks. I watched very briefly the beginning of the debate in the other place, and I have to agree with the noble Lord, Lord Dodds, on the opening contribution from his right honourable friend in the other place. Indeed, I thought the shadow Secretary of State stole the show with at least some attempt to put some kind of gloss on what was before us in a very threadbare Bill.

I am entirely unconvinced as to the rationale for even having this Bill at this point, because I cannot imagine that there is any case at this stage, a few days after the last deadline ran out, for anybody to stand over a judicial review against the Secretary of State for not calling an Assembly election. For the sake of a few days, I do not think that that would survive. I hope that it is not a piece of political theatre that we are witnessing here.

Before dealing with the substance, I will follow on on the point about public sector pay. If ever there was any ambiguity over whether there was cross-party support for the Secretary of State’s actions in withholding this money, that was set aside in the Commons by the shadow Secretary of State earlier today. He made it very clear where he stood, saying that this tactic—because that is what it is—was fundamentally flawed and morally and politically wrong, and will not sustain itself even if we are forced through the fortnight this Bill provides for. I note the strikes that have occurred and the stresses that the withdrawal of significant parts of public services are putting on people. Let us imagine the parents of, say, children with severe disabilities, who are depending on a bus to arrive to take them to a day centre. Those parents do not know whether it will be coming this day or not. Do they have to make alternative arrangements? Do they have to get a relative to come in? Do they have to stay off work?

What are we putting these people through this for? We know the money is there; the Government are boasting about it. So let us sort that out; I think it would almost improve the atmosphere if it were done that way, because all we are doing is adding more stress to people who are already highly stressed. I hope that my noble friend can take that back to his right honourable friend in the other place, making it absolutely clear that there is no cross-party support for this policy. It is entirely counterproductive.

I also have to say that I feel that, when these one-day wonders come through—as they do from time to time on Northern Ireland affairs—one almost feels that this Parliament is like a legislative takeaway. You send out for a piece of legislation and ram it through both Houses in one day. People are fighting for pieces of legislation for a lifetime and yet we can stuff them through in one day. It is a terrible way to do business. I know that is not my noble friend’s choice, but it is almost always Northern Ireland stuff that is treated in this way.

The Secretary of State tells us that great progress is being made on restoring devolution. I hope that is true. In his opening remarks my noble friend talked about the Government’s commitment to the Good Friday/Belfast agreement. I point out to him that that was an all-party agreement, yet talks have been going on for two years in secrecy and none of the rest of the parties has been engaged except in a peripheral way. We all have talks with government and always have done, but this has gone on far too long. In fact, the best solutions always come when all the participants are at the table and accept the outcomes of the negotiations—otherwise we would have had no agreement. Trying to do it in a hole-in-the-corner way, with nods and winks here and nods and winks there, does not work. It does not stick. What happens if the DUP and the Government agree and come together? What about the rest of us? Maybe some of us will not agree with it when we see it: what happens then? It is a bad way to do business. Yes, people have to have their concerns addressed—I totally support that—but I think we have taken it far too far.

I do not want to rehearse the arguments that went on in this Chamber for so long over the departure from the European Union. I am no Europhile fan of the European Union. I am against the principle of a federal state: I never agreed with that. But the sort of problems that have arisen over our departure from the European Union were foreseeable, and they were foreseen in this House time and time again. A party delegation went to meet Prime Minister Cameron in February 2016 and, after that meeting, it was perfectly clear that there was no adequate plan to deal with our departure from the European Union should the people so wish.

We pointed out that a referendum has two outcomes and asked what the plans were if the people decided to leave. The answer we got was entirely unsatisfactory. Consequently, we recommended that people did not support leaving at that point under those terms and conditions. I would have to say that things are actually worse than I expected and that what we are dealing with now is the latest version of an attempt to bridge the virtually unbridgeable—which, of course, is the Windsor Framework, which is heralded as one of the Prime Minister’s most significant achievements since he has been in office.

I am quite sure that my noble friend will want to share with the rest of us what changes have been made to this agreement since February last year, and to show us the pages and the paragraphs where improvements have been made and some of the constitutional absurdities referred to by the noble Lord, Lord Dodds, dealt with. How are the seven tests that my noble friend behind me alluded to earlier today getting on? Is it going to be the case that this framework mark 2 is going to come up and we will have solutions? Perhaps the Minister can tell us what negotiations have taken place with the European Union, whether they have been successful and what mechanisms are going to be adopted and changes made to make these arrangements more palatable and more constitutionally correct—because, at the end of the day, that is what a two-year boycott has been about.

I listen to people talk about the Act of Union. We hear that some keyboard warriors have suddenly discovered that they have great skills in this area. It is a pity they were not exercising those skills when we had to deal with the Provisional IRA’s campaign against Northern Ireland over the years. Anyway, they have suddenly discovered the word “subjugation”, and I know my noble friend thinks of little else. However, can he explain to me why, if the Act of Union is the be-all and end-all and such a great thing—given that it was introduced in 1801 and it covered all of Ireland and Great Britain—there is an Irish Republic?

The truth is that this Parliament can legislate to say that apples are oranges. Important though it is, the Act of Union with Scotland would have been worthless if one more person had voted to leave than to stay. The same principle applies here. The best way to maintain the union is to maximise the amount of support on the ground so that more people want to stay in it than want to leave, and no Act of Parliament can substitute for that. In my view, we are fighting a sham fight while the people of Northern Ireland are suffering. We have heard about all the problems over health, education and industrial relations, which used to be the best in the UK. Now we are in a parlous situation.

Whatever comes out of this measure over the next couple of weeks, there at least has to be honesty, not a spin that something is something that it is not. People are sick of that. They want to know. If there are changes of substance, let us see what they are. If there are no changes of substance, people can say, “Look, we tried our best. It hasn’t worked out. We can’t go on like this. We’ve got to try another way”. Fair enough; we do not always get what we want, and not everything is successful the first time round. But the one thing I do not think people will tolerate is being led up the garden path and told something that is fundamentally untrue, so we will be watching very closely.

Lastly, I heard Sir Jeffrey in the other place saying that threats have been made against him. I totally deplore that. I can well understand it, because I know the threats that were made 25 years ago against our colleague Lord Trimble. He was tormented for years, I suspect by many of the same people who are tormenting Jeffrey today. The question is: what did they ever achieve? What did they ever get us? More misery, more deaths and destruction, and no progress. If anything is to come out of this, it is that that is not the way to go forward.

Identity and Language (Northern Ireland) Bill [HL]

Lord Empey Excerpts

3rd reading
Wednesday 13th July 2022 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, I thank the Minister for all his hard work and dedication during the passage of the Bill. I am pleased that he and the Government have accepted the amendments to the title of the Ulster Scots/Ulster British commissioner and acknowledged the important role that the Castlereagh Foundation plays in research and exploring the shifting patterns of social identity in Northern Ireland.

Without wishing to add to the Minister’s workload over the Summer Recess, I ask him whether he would consider looking at two important issues in the Bill, as it makes its way to the other place. First, I believe that the proposal for the Secretary of State to overrule the Northern Ireland Assembly sets a dangerous precedent. Secondly, it needs to be made clear that, although the two commissioners have different functions, they should have equal weight in those functions so that the unionist community can be given an equal opportunity to complain through its commissioners across the spectrum of their function. I hope that these points will be given full consideration when the Bill reaches the other place. I thank the Minister again for all of his advice and work.

[Lord Empey (UUP)]

My Lords, as the noble Baroness, Lady Suttie, said, we are grateful to the Minister. A Minister being prepared to be flexible and listen to people makes a difference. But I gently correct the noble Lord, Lord Murphy: the Bill and the agreement did not have all-party support. My party does not support New Decade, New Approach and never did, and we consequently never supported this legislation. Unfortunately, it will ultimately become a grievance factor for people. Certainly, it should have been dealt with not here but in Stormont. The Assembly is now heading towards six months without a functioning Government, in unprecedented economic circumstances —and winter, when things will bite even harder, is approaching. As each day passes, it is a matter of great regret that we find ourselves in this position.

This is no reflection on the Minister or his team; it is merely a fact. New Decade, New Approach, which led to the restoration of the Executive, was flawed anyway. But we have to move on and see how we can concentrate minds and get the institutions re-established so that we can help to protect as many people in the community as possible from the surge in prices and the suffering that I have no doubt will emerge in the winter. Sadly, we are still in this limbo.

Could the Minister ask his right honourable friends in his department to step up activity to ensure that we can get the institutions replaced? No process whatever seems to be taking place—yet huge national issues are at stake. I thank the Minister for his flexibility, but I assure him that we have a long way to go.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister and his team for introducing the Bill. I also thank my noble friend Lord Murphy of Torfaen, his team on the Front Bench and the noble Baroness, Lady Suttie, speaking on behalf of the Liberal Democrats. Obviously, as an Irish language enthusiast and as someone who studied it up to O-level and attended the Gaeltacht on several occasions, I want to see the Bill implemented as quickly as possible. For me, it represents parity of esteem and the necessary equality of opportunity.

I agree with the noble Lord, Lord Empey, that the Bill should have been dealt with by the Northern Ireland Executive presenting it to the Northern Ireland Assembly. It is vital that those institutions, and all the institutions of the Good Friday agreement, are up and running as quickly as possible. I appeal to those preventing this taking place to act immediately to put the Assembly, the Executive and the other institutions in place, because that will be in the best interest of the people of Northern Ireland, who are suffering from high inflation and high energy and food prices.

I agree with the noble Baroness, Lady Suttie, that the other Bills need to be resolved: the Northern Ireland Protocol Bill and the legacy Bill. Several outstanding issues need to be resolved, but they need to be resolved on an equitable basis, based on equality and parity of esteem.

Finally, I thank the Minister for agreeing to meet Conradh na Gaeilge, the Irish language organisation in Northern Ireland and hope that can take place shortly, so that they can discuss the need for an Irish language strategy to put in the Bill, perhaps in its passage through the other place, and a time limit on the Secretary of State’s powers. The members of that organisation can embody those issues much better through their articulation as people who are enthusiasts. I do not make that by way of a political point—they are Irish language speakers in the truest sense of the word. Once again, I thank the Minister.

Identity and Language (Northern Ireland) Bill [HL]

Lord Empey Excerpts

Committee stage
Wednesday 22nd June 2022 Grand Committee

[Lord Deben (Con)]

My Lords, I wish to associate myself with those noble Lords who are sad that this is not being debated in the Assembly. Let me say how sad I am that it is not recognised by some in Northern Ireland that it is their responsibility to be part of that Assembly and that that is the deal. It is a deal that the rest of the United Kingdom, a little bit of which I hope to be able to speak for in this Committee, wants to hold them to instead of being held by them.

Secondly, I opposed the Government’s successful attempt to impose on Northern Ireland changes that were opposed by both communities. I thought that it was wrong. It is not subsidiarity and we should not have done it. However, in this case, we are having to discuss something that has been agreed in principle and which we must carry through. This is therefore a different circumstance, which is why we are doing this. I entirely agree with the noble Baroness who last spoke from the Opposition Bench.

I say to my noble friend that the reference to the European Court of Human Rights is important. It is extremely important that we tie this into the international agreements that we have. If I may say this to the noble Lord, Lord Murphy, I do not much mind what Mr Raab has said. The truth is that we signed up to it—we more or less invented it—and we did so to make sure that everybody stood to the same standards in this area. If ever there were a case for making sure that we insist on the standards enforced by the European Court of Human Rights, this certainly is it.

[Lord Empey (UUP)]

My Lords, like the noble Lord, Lord Deben, I deeply regret that this issue is being dealt with here. It is obvious from the first quarter of an hour of debate, from the many local issues that have arisen, that local MLAs would understand the nuances far better. It is a crying shame that this is not being dealt with there.

I have one point to make to the noble Lord, Lord Murphy. My party did not agree to New Decade, New Approach. In fact, I deeply regret a lot of the proceedings that led up to it and a lot of what is included in it because I fear that this Bill has within it the seeds of a grievance factory, where it is going to be very difficult to make everybody feel that their particularly identity is being represented. Indeed, it may be a shock to many that people do not go round the place wondering who they are each day; it is not something at the top of people’s agenda when they cannot even put money in the meter to keep their lights on. We must understand that it is not the sort of thing that is necessarily top of people’s agenda.

We must avoid two things. First, because this Bill is not subject to debate in the Assembly where implementation of it would take place, this House cannot amend it —because, if the Assembly is not there, the only process is here, and therefore we should not be afraid to do that. Secondly, and equally, we must be wary of imposing conditions that prove to be difficult for the Assembly.

I think there is some merit in what is suggested in Amendment 1. I take the point about other languages, but one has to be careful about who is included in that and who is not. Within the past 36 months, we have had the arrival on our shores of people from varying backgrounds—from Syria and Afghanistan—we have had a significant indigenous Chinese population for as long as I can remember, and we have had people coming from eastern Europe as part of the European Union for many years, who have built up considerable numbers, particularly in the past 15 years or so. So who is included in that and who is not is very difficult. I ask colleagues to bear those points in mind.

My noble friend Lord Morrow makes a valid point about the boundaries where one public body ends and another begins. There could be quite a lot of overreach and overstretch there. If an office dealing with identity issues becomes specifically involved in rights and equality, there is some overlap, but they would be two quite distinct areas, and we must take great care that we do not create a scrambled egg of bodies all competing about where the boundaries of their activities begin and end. I urge a bit of caution from the Minister in that regard.

Bearing in mind that it is a matter of very deep regret that we have to do this, I suggest that the one thing that we try to avoid is making things worse by confusing the role of one public body with another. I do not think it was ever the intention of the negotiators of New Decade, New Approach that the existing equalities and human rights commissions would be subject to override in this area. In the event that somebody feels that their human right has been overruled, they still have the opportunity to have their case taken up by those bodies. The right to do that is not conflicted in any way by anything in this, but we must avoid confusion. The existing lines are relatively clear, and I think we should adhere to them.

[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.

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, with permission, I will speak to Amendments 2, 20, 37 and 39. This set of probing amendments relates to the definition of public authorities that are subject to the Bill’s provisions. We are against it for the following reasons. We are convinced by the case for an expansionist approach to the range of public authorities captured by the Bill. Given the Minister’s insistence that the statement of funding accompanying the Bill does not give rise to any responsibility for the Government, it seems unconscionable that the Executive should have to bear the cost of UK-wide bodies adhering to requirements or requests issued by the offices created under the legislation. More than that, at a time of a crippling cost of living crisis and with mounting challenges facing our health service and criminal justice system, we believe that a precautionary approach is preferred.

Implementation should be targeted. We have consistently expressed concern about whether this legislation is proportionate or reflective of the priorities of the majority of people in Northern Ireland. There is a fear that expanding the extent even further would impact on public confidence. There is already concern about the framing of certain provisions, namely the identity and culture principles and their potential impact on competing fundamental freedoms. It may be prudent, therefore, to display caution and monitor the impact of the Bill before making further wholesale changes. There is already provision in the Bill allowing Ministers to amend the definition of “public authority” moving forward.

The proposed new clause in Amendment 39 would oblige public authorities to comply with obligations accepted by the United Kingdom under the Council of Europe’s European Charter for Regional or Minority Languages. It is worth noting that the Ulster-Scots/Ulster-British commissioner would already be under an obligation to advise on the effect and implementation of the charter under proposed new Section 78R(3)(a).

I am pleased to speak to Amendment 32 in my name and those of my noble friends Lord Dodds of Duncairn, Lord McCrea of Magherafelt and Cookstown and Lord Hay of Ballyore. As I will reflect in more detail in the debate on subsequent groupings, the integrity of the provision of the Irish language commissioner and the Ulster-Scots/Ulster-British commissioner depends not only on the commissioner having identical functions but on their being accorded equal importance, and on this equal importance being made manifest—certainly through each having a similar cost footprint, in terms of both the running of their offices and their impact on the action and spending of public authorities. In this context, it is absolutely imperative that the existing functions of the Ulster-Scots/Ulster-British commissioner are given access to as robust an enforcement mechanism as those pertaining to the Irish language commissioner.

In this context, it is really concerning to note that, as currently defined, the Irish language commissioner is favoured with powers of enforcement on two bases that are denied the Ulster-Scots/Ulster-British commissioner, one of which we will address in this grouping and another in the eighth grouping. In my Amendment 32 in this grouping, a public authority is required by proposed new Section 78N to

“have due regard to any published best practice standards”

produced by the Irish language commissioner and to

“prepare and publish a plan setting out the steps it proposes to take to comply with”

this duty. Inexplicably, while the Ulster-Scots/Ulster-British commissioner is similarly given the responsibility of issuing guidance to public authorities, the Bill before us today contains no parallel obligation on public authorities to have due regard to their guidance. Neither does it contain any parallel obligations on public authorities to prepare and publish a plan setting out the steps they propose to take to comply with this duty.

I very gently express the hope to the Minister that the Government can understand why some within the unionist community regard this extraordinary difference of treatment as discrimination. It is vulnerable to be characterised as a crude attempt to set up two commissioners with the apparent intention of generating the sense that the two communities are being treated equally, hoping that one will not have the sense to check and see that the standards of protection afforded it are dramatically weaker than those afforded the other. This discriminatory difference of treatment can be resolved by Amendment 32, which affords the Ulster-Scots/Ulster-British commissioner the same respect as the Irish language commissioner in the form of placing equal statutory obligations on public authorities to have regard for his or her advice and to publish a plan setting out how they intend to comply with his or her advice.

I am genuinely at a loss to understand how anyone sensitive to the challenges we face in Northern Ireland, let alone a body supposedly committed to the notion of equality of esteem, can have regarded the enforcement provisions afforded unionists in the Bill as anything other than discriminatory when compared with the enforcement provisions afforded nationalism. I urge the Minister to recognise that this inequality of treatment is utterly indefensible and flies in the face of the principle of equality of esteem. I plead with him to accept this modest amendment.

[Lord Empey (UUP)]

My Lords, I note all the probing amendments from the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie. The noble Baroness raises an interesting point. Mr Adams has not gone away. He may not be the Dáil or the Assembly and he may not be here, but he has not gone away. Her point is quite interesting because the Belfast/Good Friday agreement enshrined the constitutional position very clearly. Mr Adams’s quote effectively ignores that and pretends that Northern Ireland is a condominium—in other words, a piece of territory that is being run by two other powers. The protocol is getting us into that sort of territory where we have rules made by a foreign power over which no one in this building has any say.

Dealing specifically with the noble Baroness’s point, I am not a lawyer, but we would need to be sure that there is not a gap in what we do through which some person can prosecute lawfare against the process. I take that point very clearly and will interested to hear what the Minister has to say about it. There may be an unintended consequence, which is why I said at the outset that I fear a lot of this legislation and all these bodies have the potential to form a grievance factory. That is what I fear about this legislation.

I would have signed Amendment 32, had there been space, but my colleagues took it up. The fact is that there is an inequality. We can dress it up whatever way we like, but it is there. The perception is clearly that one section of the community with certain aspirations and cultural identities is to be treated in one way and another section is to be treated in another, subservient, way. Perhaps that is not the right word, but noble Lords know what I mean. That should be avoided at all costs, because it undermines any confidence that identity and so on has finally been addressed. We are creating a hierarchy here, and the lessons of recent history tell us that that is not a good thing to do.

With regard to the amendment tabled by the noble Baroness, Lady Hoey, I would like an assurance from the Minister that no such premises will be left for people to pursue spurious cases or seek to pretend that the settlement that was entered into in 1998 has a clear constitutional position that is not subject to being equated with a constitutional position that does not currently exist. That is a real fear that that could arise.

I would also like the Minister to take away Amendment 32 and have a look at it, because I assure him that even those of us who are very unenthusiastic about all this are even less enthusiastic about having a hierarchy.

I shall also make a point about Mr Adams and his colleagues. If we go back to 1998 and the years leading up to that negotiation, at no stage whatever in those negotiations did his party seek an Irish language Act. They never put it on the table; they never asked for it. Its first iteration in a public document was at St Andrews, and it was a commitment by the UK Government, knowing full well that the subject was going to be devolved. Sinn Féin only got on the bandwagon after an SDLP Member of the Assembly—Patsy McGlone—put forward a Private Member’s Bill in the Assembly to bring in an Irish language Act. I am sure that the former speaker well recalls that. Sinn Féin did nothing in 1998 with regard to the Irish language Act; anything that we were asked to do in 1998 during the negotiations was done and implemented in full. I just put that point on the record.

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None of this is to deny that NDNA mentioned an arts and literature remit; the point is simply that in order to be faithful to the breath of what was agreed directly and implicitly within the national minority community commitment, the reduction of the remit to language, arts and literature does not work. I hope the Minister will feel able to support these four modest amendments. I beg to move.

[Lord Empey (UUP)]

My Lords, I support the four amendments that have just been spoken to. However, my worry about all of this is that people cannot be corralled into particular identities. Among those who do not identify with, say, an Irish or a Scottish background, there are lots of people whose identity is much more fluid and relaxed. People see themselves as Irish and British; some people see themselves as Irish and Irish. We are in a quagmire. We could have 50 commissioners with no difficulty if we really drilled down to it, and that is the risk with all this.

Sinn Féin has religiously pursued the whole question of the Irish language, not for the love of language—the vast majority of them could not speak a word of it—but because it provides a difference. The quotation given by the noble Baroness, Lady Hoey, from Gerry Adams’ speech, or comments, in 1998 illustrates that and what the name of the game is: it has to be different. Indeed, I came across the minutes of a Sinn Féin meeting not long ago, I think it was last year, which had an agenda about the greening of Northern Ireland—the street names and so on. It was not to give respect to the Irish language; it was to show difference and prevent the community coming together and being cohesive. That is the one thing that it cannot cope with, because it implies the status quo.

I remind the Committee that things were divided during the strand 1 negotiations; my friend, the noble Lord, Lord Kilclooney, keeps referring to this, and he is right. As the noble Lord, Lord Murphy, will know, strand 1 was Northern Ireland only, but that seems to have moved along since the NDNA. It was announced jointly by the UK Secretary of State and the Irish Foreign Minister and, while some of the rest of the parties were still reading the draft in the building, they were down at Carson’s statue releasing it to the press. That was how seriously they took it. But that is another matter.

The fundamental point is that the reason Sinn Féin did not propose an Irish language Act and did not deal with this in the talks was that it did not want to have what it called an internal settlement, because that is anathema to its whole rationale. I fear that the danger with all this is that it goes along with its divisive approach that everybody has to be in a particular box to be recognised. That is not where most people are today, particularly our younger generation, who do not see themselves in these boxes.

Nevertheless, we are where we are, as they say. These amendments cover some of the inevitable consequences, and I support them. I hope that the Minister will take them away with him and reflect on them before Report, because I suspect that if we come to Report and things remain as they are, some of us may have to test the opinion of the House on these matters. This is a relatively modest set of amendments that will at least make people feel that, as far as this particular identity is concerned, it is respected and treated equally.

[Lord Dodds of Duncairn (DUP)]

My Lords, I will speak to Amendment 43A in the name of my noble friend Lord Morrow, but, before I do, I too send my best wishes to the noble Baroness, Lady Ritchie, since she cannot be here. I hope that she is enjoying the proceedings by video; I am sure she is. We hope to see her back in her rightful place very soon.

I also agree with noble Lords who have mentioned that it is a matter of regret that we are debating this matter at all here in this place and that it should be a matter for the Assembly. Of course, it is not by accident or some kind of inevitability that it is being debated here; it is a deliberate decision of the Government to bring it here. That is something that we debated yesterday on another matter to do with abortion regulations. These are devolved matters, and the devolution settlement should be respected, whatever the issue and whatever our view of that issue may be. If it is a matter that is devolved to the Northern Ireland Assembly and Executive, it should remain there. That is the clear position as far as I am concerned; otherwise, we pick and choose the issues that we decide to legislate on in this place, which cannot be right.

On the NDNA agreement, I just say to the Government that we look forward to all aspects of it being delivered. There is an outstanding matter in relation to the restoration of the internal market of the United Kingdom, and I look forward to rapid progress on that, in line with taking forward these other matters under NDNA—there are others matters under that agreement that are outstanding.

Talking of agreements, there has been reference to 1998, going back to the Belfast agreement and the subsequent agreement at St Andrews that amended it. It is true that none of this demand by Sinn Féin for Irish language provision was a part of the main negotiation on the Belfast agreement. Of course, much more recently we had the Assembly elections in 2016 and then the unfortunate collapse of the Northern Ireland Assembly in 2017, when Sinn Féin walked out of the Executive and Martin McGuinness resigned as Deputy First Minister. We then had three years in which the Assembly did not operate. We need to remember that, just prior to that, Sinn Féin has agreed a draft programme for government with the DUP—those two parties were in government together. Sinn Féin did not put forward Irish language provision in that, yet it became Sinn Féin’s cause célèbre in the subsequent years.

There is a lot of revisionism in terms of the importance of all this and the priorities, but when you work through the timelines and so on, a lot of this is not borne out by the actuality and reality of the situation. This was not a matter that Sinn Féin made a priority at the time, but it subsequently made it a priority in order to keep the institutions down for three years. That is worth bearing in mind in the context of where we are at the moment with the institutions and the need to implement the whole NDNA agreement.

I turn to Amendment 43A in the name of the noble Lord, Lord Morrow. When the Minister made the case for the Bill at Second Reading, he referred to the fact that the Government had made available some funds—I think it was in the region of £4 million—to the Irish Language Investment Fund

“to support capital projects associated with the Irish language.”—[Official Report, 7/6/22; col. 1097.]

This commitment, it was said, was based in the section of the NDNA agreement that dealt with Northern Ireland’s “unique circumstances”.

However, when you read that section of the document, it contains merely a passing reference:

“This could include areas such as … Support for languages and broadcasting”.


There was no explicit commitment to £4 million or any other sum for capital projects, yet this passing reference has crystallised into a hard figure for investment. This £4 million of investment follows £8 million that has already been spent by the UK Government on building Irish language centres in Northern Ireland. My understanding is that this £4 million is likely to be matched by the Irish Government, so the total for building Irish language centres is likely to be nearer £16 million. I would be grateful if the Minister could confirm whether he has had any discussions with or heard from the Irish Government on that point. Has there been any similar investment for the Ulster Scots community? I am sad to say that the answer is, no, there has not been—not a single penny.

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In this regard, I know that some noble Lords made reference at Second Reading to the “small Ulster Scots community”; the implication seemed to be that, because it was small, it did not merit much attention. That characterisation is wrong. The sector of organisations dedicated to Ulster Scots is small, but that is a reflection of decades of underinvestment compared with their Irish language counterparts.

[Lord Empey (UUP)]

Does the noble Lord agree that the expenditure undertaken in these areas by local authorities also needs to be taken into account, as they have roads? The behaviour of some local authorities appears to me very partial and one-sided.

[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.

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However, those devoted to peaceful habits have reason today to reflect once again on the suffering that occurs when the IRA assaults them. On 22 June 1922, IRA terrorists murdered the unionist MP for North Down, Field Marshal Sir Henry Wilson, on the doorstep of his London home. They claimed quite falsely that Sir Henry wanted to oppress the Catholic minority in Ulster. This great man believed in equal treatment for all law-abiding people. His career would perhaps be a suitable subject for study by the Castlereagh foundation. I beg to move.

[Lord Empey (UUP)]

My Lords, I added my name to this amendment. It reminds me of an issue in a negotiation that has been brought in at the last minute as a kind of balancing act. It has all the hallmarks that it is not thought-through, but looks good and allows people to point to it as a great opportunity and success. However, there is a very serious point here and my noble friend paints it, as usual, in a very significant historical context.

Has the Minister had the opportunity to look in some detail at this? Obviously, with the terms of reference, there is a cost involved and all sorts of things that will need to be established—are we going to seek funding from third-party sources, whether it be academia, business or various trusts or foundations? Nevertheless, I do not think that this should be treated as a throw-away; there is a very serious purpose here. If we understand the background and history that we have come from, perhaps it is not too much to hope that we can avoid some of the mistakes that we might otherwise make in the future. Our history can teach us a lot. Some objective academic work would be warmly welcomed and would contribute to progress in Northern Ireland.

[Lord Murphy of Torfaen (Lab)]

My Lords, briefly, I support the noble Lord, Lord Lexden, in his amendment. I am currently reading the biography of Castlereagh by Professor Bew—I also commend his biography of Clement Attlee, which is very good. I am not quite sure that there is a connection between the two, other than the author.

It is a very good idea to establish an organisation such as this. Anything that promotes reconciliation is bound to do good. I merely reflect, on the previous—rather heated—group of amendments on costs, that, of course, the issue of cost is important, particularly at the current time with all the pressures on the health service and everything else; however, if the costs of these things mean that you can establish the Assembly and Executive, then it will be worth it.

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[Lord Morrow (DUP)]

My Lords, I will seek to be brief but I will not be as brief as the last time I spoke. I know that will please noble Lords. I will speak to Amendments 33, 34, 35 and 36 in which are tabled in my name and those of my noble friends Lord Dodds, Lord McCrea and Lord Hay.

As I have expressed previously, the integrity of the provision of the Irish language commissioner and Ulster Scots/Ulster British tradition commissioner depends not on each commissioner having identical functions but on them being accorded equal importance and on this equal importance being made manifest, certainly through each having a similar cost footprint in terms of both the running of their offices and their impact on the action and spending of public authorities.

As I noted in earlier debates, I have real concern that the functions of the two commissioners as currently defined are such that the Irish language commissioner is likely to have a bigger impact, absorbing more taxpayers’ money and engaging extensively with more than 70 public authorities, while the impact of the Ulster Scots/Ulster British commissioner is likely to be much narrower.

In this context, two things follow. First, it is absolutely imperative that the existing functions of the Ulster Scots/Ulster British commissioner are given access to as robust enforcement mechanisms as those pertaining to the Irish language commissioner. Secondly, it is absolutely imperative that while the functions of the Ulster Scots/Ulster British commissioners are not made identical, they are made similarly extensive, affording both the nationalist and unionist communities commissioners who will have an equally extensive impact on the governance of the nation and the allocation of public spending.

In this context, where there are already grounds for thinking that the current definition of the two commissioners is such that one is likely to have a significantly bigger impact on public spending than the other, it is really concerning to note that, as currently defined, the Irish language commissioner is favoured with powers of enforcement on two bases that are denied the Ulster Scots/Ulster British commissioner.

In the first instance, all public authorities are required by new Section 78N to have

“due regard to any published best practice standards”

produced by the Irish language commissioner and to

“prepare and publish a plan setting out the steps it proposes to take to comply with”

this duty. Inexplicably, while the Ulster Scots/Ulster British commissioner is similarly given the power to provide guidance to public authorities, the Bill before us today contains no parallel obligation on public authorities to have due regard to this guidance. Neither does it contain any parallel obligations on public authorities to

“prepare and publish a plan setting out the steps it proposes to take to comply with”

this duty.

I gently express the hope to the Minister that the Government can understand why some within the unionist community regard this extraordinary difference of treatment as discrimination. It is vulnerable to be characterised as a crude attempt to set up two commissioners with the apparent intention of generating the sense that the two communities are being treated equally, hoping that one will not have the sense to check and see that the standards of protection afforded it are dramatically weaker than those afforded to the other.

This particular discriminatory difference of treatment can be resolved by my Amendment 32, which affords the Ulster Scots/Ulster British tradition commissioner the same respect as the Irish language commissioner in the form of placing equal statutory obligations on public authorities to have regard for the commissioner’s advice and to publish a plan setting out how they intend to comply with the commissioner’s advice.

Unbelievably, however, the inexplicable, discriminatory difference of treatment afforded the Ulster Scots/Ulster British commissioner compared with the Irish language commissioner in terms of enforcement also extends to the provisions on complaints. Whereas a member of the public can complain to the Irish language commissioner about any public authority that has not followed the Irish language commissioner’s guidance where this has negatively impacted the complainant—which gives the commissioner the opportunity to take action—the scope for a member of the public to complain to the Ulster Scots/Ulster British tradition commissioner pertains only to the failure of public authorities to comply with one aspect of the commissioner’s functions, specifically one which is not deemed sufficiently central to appear in the principal role in new Section 78R(1), and which, when mentioned, is mentioned only in brackets.

Quite apart from any other concerns about unequal treatment, it seems clear that even at this very basic level of definition in the Bill, we are already letting go of the principle of parity of esteem and affording one community a commissioner with enforcement powers with respect to all the commissioner’s main functions, while affording the other commissioner enforcement powers only in relation to a secondary function in brackets, leaving the commissioner’s principal functions as defined by new Section 78Q(1) without an enforcement mechanism. My Amendments 33 to 36 address this discriminatory difference of treatment and enable a member of the public to complain to the Ulster Scots/Ulster British tradition commissioner if they are negatively affected if any advice issued by the commissioner is ignored and they similarly give the commissioner power to take action.

I very much hope that noble Lords will be able to appreciate why the unionist community has been shocked by the difference of treatment afforded it by this Bill. I am genuinely at a loss to understand how anyone sensitive to the challenges we face in Northern Ireland, let alone a body supposedly committed to the notion of equality of esteem, can regard the enforcement provisions afforded unionists in this Bill as anything other than direct discrimination when compared with the enforcement provisions afforded nationalism. This is wholly indefensible and inexplicable. I urge the Minister to recognise this and the fact that this inequality of treatment is utterly indefensible and flies in the face of the principle of equality of esteem. I plead with him to accept these modest amendments.

[Lord Empey (UUP)]

My Lords, unlike a good wine, sometimes negotiations do not age well. Sometimes we get it right; sometimes we get it wrong. I think the noble Lord has a fair point. I do not know, because I was not involved in the detail of these negotiations, what the rationale was to reach the final form of New Decade, New Approach. No doubt the Minister will say to me that he is trying to follow as faithfully as possible the agreement that was reached, but that does not mean that we have to be slavish in our acceptance of the provisions.

There is a perception issue here; there is no doubt about that. The Minister may have a very convincing explanation—he is usually very capable at providing them—but he has a bit of an uphill task, given the fairly broad, fairly substantial gap between the powers of the two commissioners. Perhaps he can put our minds at rest, but even if he is following New Decade, New Approach as far as I am concerned that does not mean that he has to be a slavish follower of it. I look forward to him perhaps considering before Report whether something can be done to remove the perception of inequality between the powers of these respective commissioners.

[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.

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[Lord Empey (UUP)]

My Lords, I must say, I take a similar view to the noble Lord, Lord Morrow. For three years, when the Assembly was closed following Sinn Féin’s withdrawal in 2017, the noble Viscount, when he was answering at the Dispatch Box, would say, “Well, because of the Sewel convention, we cannot do this; it is a devolved matter. The Northern Ireland Office cannot do that”. We now seem to have moved. We do not hear the Sewel convention mentioned very much around this place. We seem to have a situation now where, effectively, we are fireproofing bits of legislation against disagreements even though they may be legitimately expressed and exercised by Ministers in Northern Ireland.

The whole mechanism that was agreed in 1998 is not what many of us would ultimately like, but the concept of a mutual veto is there for a purpose. We would not have devolution, as the noble Lord, Lord Murphy, knows, if people did not feel a sense that they each had a hand on the steering wheel. As the noble Lord, Lord McCrea, mentioned, some of the people with whom we have shared power are not necessarily dinner companions. Once you take away the exercise of a veto, you take away a part of the settlement.

I know that colleagues here did not agree with it in 1998; I am well aware of that, and I understand the rationale for it, but perhaps they now understand our rationale for not agreeing with New Decade, New Approach. As far as I can see, all people would have to do is not agree, and all that those who would like to see a particular measure would have to do is sit on their hands and wait for the Secretary of State to overrule. If we get into that, Sewel is out the window and you start to decay the whole process; we need to take very great care that we do not undermine it. It is an awkward, difficult and complicated system because, if you know that you do not have to agree with the person across from you, the temptation is to wait it out until the Secretary of State intervenes and takes your side.

For a brief period, I held the office at the OFMDFM. I know how complicated this is. The first week I held the office, I and the Deputy First Minister could not agree on the notepaper; as a consequence, the department could not send a letter out for a week until we agreed. We agreed because we had to, and we got a compromise. However, if I had known that I could sit it out and that the Secretary of State would come over and take my side, I would have been under no obligation to agree.

[Lord Kilclooney (CB)]

He would not have taken your side.

[Lord Empey (UUP)]

Or the other side. Whichever—the point is still valid. I am just saying that, if you throw out or undermine the concept that people have to agree, however difficult it is, for one thing, the temptation is that it will spread. That will be my only contribution.

[Lord Moylan (Con)]

My Lords, I will speak to Amendment 43, to which I have put my name. I would in fact have put my name to Clause 7 stand part if the field had not been too crowded when I arrived at the Public Bill Office. I speak to Amendment 43 in the absence of the noble Baroness, Lady Hoey, who I think noble Lords know has had to leave for Northern Ireland and who was the tabler of the amendment.

I am in danger of making the same, or a very similar, speech to the one I made at Second Reading. Indeed, I am in danger of making the speech I might have made yesterday on the abortion regulations if I had not constrained myself and kept silent. I should avoid doing that, so I shall be fairly brief.

My concern is that, while the Government proclaim their rock-solid adherence to the Good Friday agreement, as noble Lords have already said, the increasing number of powers being given to the Secretary of State to appoint or conduct himself effectively as a Minister in the Northern Ireland Executive is undermining the Good Friday agreement, and manifestly so.

I know a great deal less about Northern Ireland than practically every other noble Lord in this Committee. However, I know something about planning law. One of the features of planning law is that, if a local planning committee made up of local councillors finds itself in a position where it is legally obliged—there is no way out—to grant a planning permission that it does not want to grant because it is politically unattractive, it has the option of sitting on its hands or simply refusing it and allowing the applicant to appeal to an inspector appointed by the Secretary of State. Then it can say, when the inspector has granted the planning permission, “Ah, well, it was nothing to do with us. You see, we opposed it but the inspector has forced it upon us”. This creates a dishonesty in local government that should not really be allowed.

The noble Lord, Lord Empey, put his finger on this in relation to Northern Ireland. If you have a devolved Administration that requires some form of consent and collaboration but you know that the decision will be taken by the Secretary of State if you refuse or fail to achieve that level of consent and collaboration, that is of course the easy way out, as it is for planning committees that do not want to confront their residents and explain why they have granted an unpopular permission. That is the position that the Government are getting themselves into. It was clear in the discussion yesterday of the abortion regulations and it is clear here today. No rationale has been presented by the Government for how they see devolution in the light of these new powers that are constantly being conferred on the Secretary of State to appoint himself as a Minister and conduct himself in that way.

Amendment 43 is very simple. It says that the Secretary of State cannot exercise these powers if there is a functioning Assembly or if there has been a delay of less than six months since the Assembly and Executive were operating. It puts a firebreak in and puts the pressure back on local politicians in Northern Ireland to reach consent, collaborate and work together in the way that the Good Friday agreement was framed. It is a very simple measure in that respect and should commend itself to the Government. From what I understood of the remarks of the noble Lord, Lord Murphy of Torfaen, he might see it as having some merit, too. I very much hope that, when he comes to reply, my noble friend the Minister will be able to give some succour to those of us who would like to see this amendment pass.

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[Lord Dodds of Duncairn (DUP)]

My Lords, the noble Lord, Lord Moylan, has eloquently set out the dangers of the approach that the Government are taking through the insertion of Clauses 6 and 7. I support Amendment 43 in his name and that of the noble Baroness, Lady Hoey. Our position that Clause 7 should not stand part of the Bill would go further in deleting the Secretary of State’s override powers completely. However, I understand entirely that, when we have a functioning Assembly, there certainly should be no question of the Secretary of State having the power to intervene.

The issue is very clear, as was illustrated yesterday in the debate on the abortion regulations. These clauses are another example of what one noble Lord described as the Government’s pick-and-mix approach to devolution and the Belfast agreement as amended by the St Andrews agreement. Some issues are picked out to be legislated for here in Westminster and other issues are not touched at all; we saw this between 2017 and 2020, when the Government’s attitude was that they could do nothing at all to move issues forward, legislate or step in.

However, now, they are doing so on other issues. We had it with yesterday’s regulations on abortion, which is a devolved matter for the Northern Ireland Assembly and was lifted out of it to be legislated for here. We had it on the protocol, where the Belfast agreement and the Northern Ireland Act were disgracefully amended by secondary legislation to ensure that, for the vote on the protocol—it was given to the Assembly and therefore, by definition, was devolved to it—the voting mechanism was changed. The very architecture of the Belfast agreement was changed at the Government’s whim without agreement among the parties.

Here is another example. As the noble Lords, Lord Moylan and Lord Empey, have said, this goes to the heart of the operation of the institutions in Northern Ireland. There is no doubt that people will inevitably feel that, going forward, if there are intractable or difficult issues, they will go with their competing demands to whoever is in power at Westminster and demand that it should act in their favour—although I suspect that unionists will be less keen to do that than nationalists, given the track record of success at getting Westminster to legislate over the wishes of the Assembly. I fear that it seems to be a rather one-sided approach. There is no justification on this issue in terms of the principle of devolution, which applies throughout the United Kingdom; the Sewel convention has been mentioned. It undermines the principle of devolution and the Belfast agreement as amended.

I throw this point in also; obviously the Minister can deal with it when he comes to reply. He said that the New Decade, New Approach document should be faithfully followed, that part of this legislation is about putting into practice and law the provisions of that agreement, and that it should be departed from very rarely—if at all—but can he point to anywhere in the NDNA agreement that says that the Secretary of State would have override powers or intervention powers? Where is that provision to be found?

Of course, the Secretary of State and the Government always implicitly have such powers but it seems to me that, when parties make an agreement in the context of an operational assembly and an agreement on how things should be agreed between them, that assembly is where the matter should lie. Yes, there will be difficulties in reaching agreements—the noble Lord, Lord Empey, pointed to one particularly good example about notepaper—but the point is that there have been serious issues on which there was disagreement initially but agreement was eventually reached between the First Minister and Deputy First Minister, or between the parties in the Executive, because it had to be.

I hear Ministers continually referring to their support for the Belfast/Good Friday agreement and how committed they are to it, yet their actions in recent months have been very concerning in terms of their approach to the institutions and powers of the Executive and the Assembly as set out in that agreement. They are effectively undermining it.

I believe that Clause 7 should not stand part of the Bill and I lend my support to Amendment 43. I also happen to agree with Amendment 40, moved by the noble Lord, Lord Murphy of Torfaen, in the sense that, if there is a situation where this clause does go through and the Secretary of State does have that power, he or she should be required to come and make a Statement to Parliament, as opposed to not having that obligation. Again, that would be an opportunity to hold people to account.

[Lord Empey (UUP)]

Not having been intimately involved in the New Decade, New Approach negotiations, is the noble Lord saying that there were no provisions in that agreement for Secretary of State override powers? Am I right in taking that as his position? If that is the case, could it be that a deal has been done with Sinn Féin to guarantee that, irrespective of what happens in the Assembly, its particular version of events will be implemented by the Secretary of State? Is that possible?

The genesis of the Irish language Act is in the final communiqué of the St Andrews agreement, where the British Government commit to introducing such an Act. I just wonder whether a private understanding has occurred; I am sure that the Minister can clarify that if that is the case. However, if the noble Lord is saying that we are putting into this piece of supposedly devolved legislation a clause that means that the Assembly in and of itself is not the final arbiter of its decisions, the sooner we have that clarified, the better.

[Lord Dodds of Duncairn (DUP)]

I am grateful to the noble Lord. A lot of those questions are for the Minister; I look forward to hearing what he has to say in relation to these matters.

I want to clarify the point about the St Andrews agreement and the Irish language provisions, which were also referred to by the noble Lord, Lord Murphy. He is quite correct that Sinn Féin went to the Government at the very last minute and wanted provision to be made but, of course, it was not a matter for the negotiations between the parties; it was a last-minute effort by the Sinn Féin negotiators to get the Government to commit to doing it. Of course, the Government made some commitments but they were not binding on the local parties and, because it was a devolved matter, that is where it stayed.

As far as we are concerned, just like abortion, the issues of identity and language are matters for the Northern Ireland Assembly. That is the basis on which agreements were made. Going forward, I believe that it is dangerous for the stability of the Assembly and all the other institutions if the Government take this pick-and-mix approach and decide that they will act unilaterally on certain issues. That is not sustainable and will ultimately cause major problems. It has done so already but it will cause more problems down the line.

--- Later in debate ---

[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 Empey (UUP)]

The solution is the agreement. Let us suppose Sinn Féin proposes a convicted murderer or somebody who is anathema to a large section of the community to be a commissioner and a DUP Deputy First Minister says, “I can’t appoint that individual, my conscience won’t allow me”. All Sinn Féin has to do is sit it out, whereas if we both know that we have to get agreement, we have to compromise. That is the core of the agreement, and we are taking it out. We have taken it out since the agreement was made. In my opinion, we took it out at St Andrews—the same principle—but that is one example.

[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.”

Great Britain and Northern Ireland

Lord Empey Excerpts

Thursday 7th April 2022 Grand Committee

[Lord Empey (UUP)]

My Lords, I congratulate the noble Lord, Lord Lexden, on securing this debate. He is one of the key pillars in this Parliament of people defending and promoting the union consistently and persistently. I put that on the record.

The question we are asked to deal with today is about what steps the Government have taken to strengthen the union. I think the steps taken are precious few and far between. My noble friend Lord Bew gave interesting context and referred to the protocol. Of course, there is a tendency from the days of bendy bananas to look upon the European Union as an alien force, but the fact is that the Prime Minister is Minister for the Union—that is in his formal title. He is the person who proposed what is now the protocol to the European Union on 2 October 2019. In his relatively short document, he put forward proposals to

“see regulatory checks applying between Great Britain and Northern Ireland”

talked about border inspection posts and said

“regulatory checks can be implemented at the boundary of the zone”—

which means at a port in Northern Ireland—

“as appropriate and in line with relevant EU law, minimising the potential for non-compliance.”

This was a proposal from the Minister for the Union, so the very core of the protocol was negotiated by the Minister for the Union with his colleagues. It has left the position where a part of this United Kingdom is almost condominium-style, as part of its everyday life is regulated and negotiated by a foreign power, the European Union, over which neither Stormont nor Westminster has any say or control. That is the legal position that was negotiated by the Minister for the Union.

I believe that urgent and radical changes are required, as my noble friend Lord Bew said, and that they are achievable. Already, people who set out to say that we should have rigorous implementation of the protocol have retreated from that position because it just did not make sense and the public just would not accept it. The vast majority of these unnecessary checks can now be removed, but mitigations to the protocol alone are not enough because there are constitutional downstream consequences of the fact that we are in a totally different sphere of influence for a very large part of our economic and social activities. Recent issues over tax, petrol duties and things highlighted that we have already lost control of them.

Mr Ben Habib made this point in an article:

“The Protocol prohibits the British government from truthfully claiming that the UK has taken back control of its laws”


and I believe that is correct. We cannot claim that, so what is required is a serious and urgent negotiation. I believe progress can be made. There are models out there that we can follow. I agree very much with my noble friend Lord Bew that the position with regard to the UK Government’s responsibilities to Northern Ireland are well established in national and international law. But there is an alternative out there, and that is where we should be going and putting serious proposals on the table.

Northern Ireland

Lord Empey Excerpts

Monday 7th February 2022 Lords Chamber

Asked by

[Lord Empey]

To ask Her Majesty’s Government what steps they are taking to restore the Northern Ireland Executive following the resignation of the First Minister on 4th February.

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

My Lords, the resignation of the First Minister of Northern Ireland is deeply disappointing. The Secretary of State has spoken to the Northern Ireland party leaders and the Irish Government to urge a return to stable devolved government and ensure the delivery of public services in Northern Ireland. We recognise the problems caused by the Northern Ireland protocol and will continue our intensive talks with the EU to resolve these.

[Lord Empey (UUP)]

My Lords, my noble friend will know that, during the passage of the Northern Ireland (Ministers, Elections and Petitions of Concern) Bill, which is currently before Parliament, it was described as a Bill to strengthen and safeguard the institutions. Actually, it has now facilitated those who are prepared to abuse the situation. Can my noble friend tell us what the Secretary of State has done to avoid this stunt, which was widely anticipated for months, in advance of the elections? Do Her Majesty’s Government intend to accede to Sinn Féin demands to bring forward the date of the Assembly elections?

[Lord Caine (Con)]

My Lords, I am very grateful to my noble friend. Unfortunately, I do not share his characterisation of the Northern Ireland (Ministers, Elections and Petitions of Concern) Bill, which I believe will lead to greater resilience and stability for decision-making within Northern Ireland. Over the last few days, my right honourable friend the Secretary of State has been engaging intensively and has had a number of discussions with party leaders, Members of Parliament, Members of the Assembly and the Irish Government in order to seek a resolution of the issues that have led to the collapse of the Assembly. In particular, the Government are deeply committed to resolving the issues around the implementation of the protocol, which have caused so much damage across Northern Ireland. The legislation to which my noble friend referred should, I hope, complete its passage in the other place this evening, and we are working very hard to bring Royal Assent forward for that legislation as quickly as possible. My noble friend will be aware that the election is due to be on 5 May.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Lord Empey Excerpts

Committee stage
Monday 13th December 2021 Grand Committee

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I rise to speak to Amendments 2 and 3 in my name and to support Amendment 4 in the names of the noble Lords, Lord Empey and Lord Rogan.

Amendment 2 refers to restoring the Good Friday agreement provision for joint election by the Assembly of the joint First Ministers. Amendment 3 would provide that the First Minister and Deputy First Minister be referred to as joint First Ministers, reflecting their identical status, powers and responsibilities.

I looked at some of the Commons stages of this Bill and noticed that my colleague, the former Member for Foyle, Mark Durkan, gave evidence. He was one of the negotiators, along with the noble Lords, Lord Trimble and Lord Empey, of the Good Friday agreement. He and the leader of the Ulster Unionist Party talked about going back to the factory settings of that agreement, in which both First Ministers are jointly elected by the Assembly and are therefore jointly accountable to it. In their roles and responsibilities, they are seen as equal.

The change took place in the St Andrews agreement. Those of us at St Andrews back in October 2006 will well recall those particular issues. I am sure that those in the room—I think I was outside it, but some of those who were inside it are here—could relate some of that. That destroyed or undermined the principle of parity of esteem, respect for political difference and, above all, the principle of power sharing and of working together, and it led to the sectarianisation of elections: that is, the elections of 2007, in which I was a participant, 2011, 2016 and 2017, and it looks like the Assembly election 2022 is heading in the same direction. The contest will not be about the issues that matter to people: a Covid recovery plan, education, the need for sound infrastructure, the economy or addressing health waiting lists. It will be, “Make me First Minister, so that they don’t get it”. It becomes a confrontation between them and us across the sectarian divide.

PR elections in Northern Ireland were never meant to be about that level of sectarianism. They were meant to be about breaking down barriers and respecting the various viewpoints, whether unionist, nationalist or other, but taking all into the melting pot. We now see that what was contrived at St Andrews has led to the sectarianisation of these elections.

I have had discussions with the noble Lord the Minister about these particular issues, so I am probing at this stage with a view to bringing this back on Report. Can the Minister say whether positive consideration will be given to these amendments? What discussions, if any, have taken place with ministerial colleagues in the Northern Ireland Office and Cabinet Office and with the Prime Minister about their intent and purpose and about the need to desectarianise the elections to the Assembly and the subsequent work in the institutions? We must always bear in mind that strand 1, which dealt with the Northern Ireland Assembly and the Executive, and strand 2, on the North/South Ministerial Council, are interlinked. One plays off on the other, which from the nationalist perspective gives us that all-Ireland perspective. It is important that the method that is used for the election of the First Ministers is joint, so that they are accountable to the Assembly, are nominated and elected together and are voted on together. We need to go back to that particular position.

There also needs to be an equalisation of titles, as in Amendment 3, so that there is respect for political difference and a sense of agreement and consensus and, above all, so that the principle of consent is the kernel in all this.

I look forward to the Minister’s answers in relation to those two amendments.

[Lord Empey (UUP)]

My Lords, Amendment 4 in my name and that of my noble friend Lord Rogan is self-explanatory. As the noble Baroness, Lady Ritchie, has said, it brings the proposals back to the arrangements that were entered into in 1998.

I believe of course that no agreement can be set in stone, and this was a multi-party agreement. Therefore, in my view, if you are going to change it, it should be a multi-party change. However, things are done, unfortunately, in back-stairs deals or behind closed doors and without the consent or knowledge of a number of the participants in the process that originally led to the agreement.

--- Later in debate ---

[Lord Empey (UUP)]

My Lords, I have made the point that this amendment to the agreement came into effect following St Andrews, as the noble Baroness, Lady Ritchie, said, but it never had the support of those parties that negotiated the Belfast agreement in the first place. The purpose of the original model was to ensure that the necessary partnership between the parties that qualified for these positions was endorsed by the Assembly by joint resolution, giving public and political expression to the concept of a shared office of equals. The 2006 proposals have changed the character of subsequent elections. They have become sectarian headcounts. Some parties have, for example, argued that if they are not supported Sinn Féin would occupy the office of First Minister or vice versa, even though there is no legal difference between them.

My party believes that if the agreement is to be changed, as it is a multiparty agreement, proper discussions should precede new legislation. The Minister is well aware of my views on this, which have been held for many years. However, the evidence of recent years has shown that the change, while no doubt introduced by the Government of the day with the best of intentions, has held back the development of normal politics and resulted in ongoing stalemate and silo government. After 23 years, we are sitting here talking about the legislation before us, which is basically a patch-up job to prevent the institutions from collapsing completely. It clearly indicates that all is not well.

I do not intend to detain the Committee much longer, but I will make the point that what was done at that stage has not worked and we have wasted a further 15 years in failing to advance the cause of more normal arrangements and politics where things such as the economy, health and education are seriously debated and those debates make a difference. So far, that is not happening because people are forced into circling the waggons at each election. Even a cursory examination of election manifestos will clearly indicate that that is the direction of travel.

[Baroness Suttie (LD)]

I shall speak briefly in favour of Amendment 3, to which I have added my name. As the noble Baroness, Lady Ritchie, spelled out, it would provide for the First Minister and the Deputy First Minister to be referred to as Joint First Ministers, reflecting their identical status, powers and responsibilities. I hesitate slightly to speak in too much detail on this amendment when there are quite so many noble Lords in the Room who were directly involved with the various negotiations, but it seems to me that the current terminology allows for a distortion of the reality. In reality, if the First Minister and the Deputy First Minister are entirely equal, can the Minister say what would be the disadvantage of passing this amendment or similar amendments? My honourable friend Stephen Farry said during the debate in the House of Commons when it passed this Bill that making this change would

“take the heat out of the fairly … meaningless contrast that is made and creates huge tension in our election campaigns.”—[Official Report, Commons, 26/10/21; col. 159.]

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Lord Empey Excerpts

2nd reading
Monday 29th November 2021 Lords Chamber

[Lord Empey (UUP)]

My Lords, like others, I am pleased to see my noble friend Lord Caine on the Front Bench. He has laboured long in the vineyard and it is long past time that recognition for that effort was given—I think we are all of one mind on that in this place. We are also delighted to see the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Coaker, on the Labour Front Bench. The noble Baroness was an excellent Minister during her time there and, while the noble Lord did not manage to exercise power in Northern Ireland because he was appointed Admiral of the Fleet before he got that opportunity, we have nevertheless got a pretty good team, with plenty of experience.

This Bill, to be honest, is a bit of sticking plaster, along with many other pieces of legislation that come along. What we are actually doing is trying to fix holes in the bucket that have been created by people who just do not behave properly. We will go into a lot more detail in Committee, of course, but I want to make a couple of points.

The noble Baroness, Lady Smith, made the telling comment that commitments are made and then not delivered. That, unfortunately, is a feature and has been for some time, so it is important to know who makes these commitments. The noble Baroness, Lady Bennett of Manor Castle, pointed to the Library note, while page 2, paragraph 1 of the Explanatory Note says:

“This Bill will deliver aspects of the New Decade, New Approach deal which was agreed by the five main Northern Ireland political parties”.


That is not true. Paragraph 6 says that the five main parties, which it names, entered into a power-sharing Government

“following their agreement to the New Decade, New Approach deal.”

Again, that is not true. My party has never agreed to New Decade, New Approach.

In fact, on 16 January 2020, when my noble friend’s predecessor, the noble Lord, Lord Duncan, was in post, I made that point to him. When he referred to it

“as a basis to re-enter devolved government”,—[Official Report, 16/1/20; col. 841.]

I said in response:

“That is not true. This is not an agreement. It is a government Statement and a Statement of the British and Irish Governments collectively. It was shoved into our hands at 8.30 pm last Thursday.”—[Official Report, 16/1/20; col. 850.]


That was 36 hours before the Executive was reformed. We took our positions in that Executive based on our rights under the Northern Ireland Act 1998, not under the New Decade, New Approach agreement. It is necessary to correct that because, with some of the commitments in New Decade, New Approach—for example, on cultural and language issues—the structures envisaged are basically grievance factories in the making.

The noble Lord, Lord Hain, referred to the legacy issues. We have never supported those; we never supported the Stormont House agreement either. It is important that we get our facts straight. We will obviously have an opportunity to tease out some of these issues in greater detail in Committee, but I thought it was important to say that.

The issues about petitions of concern and so on, as well as the commitment to keeping the institutions going, are driven by the fact that people just have not used common sense. Take the Assembly from 2011 to 2016: there were 115 exercises of the petition of concern; 86 of them were initiated by the DUP, 29 by the SDLP and Sinn Féin, and two by my party. That pattern extended to shielding Ministers from sanction even by departmental committees—come on, that is just out of control.

The Bill tries to patch up and fix abuses of the system. One can see why. If people walk out through the front door for political purposes and bring the institutions down, I can understand why it is necessary to try to build in some safeguards. But equally, if we say that somebody can be in office for 48 weeks—effectively a year—without clarity on what they can or cannot do, and indeed against any democratic principle, is it fair or reasonable to expect them to hold office under those circumstances? Can you imagine the situation here if we had that? I do not think it would go down terribly well. I understand that they are trying to keep things held together, but that is because they loosened the glue that held the agreement together in the first place—that is why we have the problems that we have.

We will come to a lot of that detail again when we come to Committee, but it is important to recognise that any institution built on a diplomatic agreement and a diplomatic document will always be under stress. The point has been made about a coalition of five parties. It is not easy; those of us who have been in them for a number of years will know. We can imagine what it would be like if we put Bill Cash and the noble Lord, Lord Adonis, together in the one Government; multiply that by what we have to deal with and you get some sense of how difficult it is.

One has to have a different approach than simply implementing things à la Westminster. That is undoubtedly the case. As the noble Baroness, Lady Ritchie, rightly pointed out, you have to understand where we were coming from in the late 1990s and what had happened. The noble Lord, Lord Hain, gave us a very vivid example of the backdrop to how the agreement was finally put together. To those who have been saying that Brexit had to be implemented on the basis of a 52% to 48% vote, I remind people that 71.2% of the people supported the agreement. That is a big majority.

That leads neatly on to the comments made by a number of noble Lords about the protocol. People have exceptionally short memories. The protocol is the embodiment of the border in the Irish Sea. It is the legal framework to give effect to the border in the Irish Sea between Great Britain and Northern Ireland. We have to remember where that came from. That border in the Irish Sea was proposed by the Prime Minister on 2 October 2019 in his document. He proposed border inspection posts and that all goods coming into Northern Ireland from Great Britain would be subject to inspection and to EU rules. If that does not bring in the European court, I do not know what does. This is an entirely self-inflicted mess within our own United Kingdom. Sadly, the Prime Minister was not without endorsement for the proposal at the time. The fact is that that is the genesis of it. You cannot expect to fix it without going back to the fundamental points as to where it came from.

The noble Lord, Lord Browne, and others mentioned this legendary Article 16. Article 16 of the protocol, which is part of the withdrawal agreement, is a safeguarding mechanism for the protocol. It is a safety valve so that, where issues arise, renegotiation takes place on a very limited number of articles, Articles 5 to 10. The people who negotiated those are the same people sitting at the table today. I was given a Parliamentary Answer last week by the noble Lord, Lord Frost. It was only a one-liner, but it spelled it all out. He made it very clear that, even if Article 16 is triggered, the remainder of the protocol is unaffected.

Some unionists have latched on to Article 16 as some kind of a way out. Friends, it is not; it is a way to protect the protocol. The only way out is to have an amended treaty. We have to have a treaty because we have a trade treaty with the European Union, and the only way we can effectively deal with that problem is with a new or an amended treaty. Article 16 merely deals with mitigations, welcome though some of them may very well be.

That is a bit of background to the circumstances in which we find ourselves back in Northern Ireland right now. I hope we can make improvements to this legislation. A question for my noble friend is: when will the other piece of legislation we are anticipating come forward? I have no doubt at all that he will give us a chapter and verse on that when he comes to reply.

A number of people have said there are things they would like to see changed, and so on. Even though we may not be particularly agreeable to some of the proposals that are coming forward, we are duty bound to listen to what people are saying. If something is concerning them, we have to listen to what they are saying. If we are not prepared to do that, there is no point criticising everybody else, or criticising the Government for ignoring people or for shoving a piece of paper into your hand 36 hours before you are asked to put your hand up for it. That sort of negotiation does not work. We have to listen to people and to be prepared to negotiate in good faith—it does not mean you agree but at least people would get their opportunity to put their case and have it respected.

European Union (Withdrawal Agreement) Bill

Lord Empey Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Empey (UUP)]

My Lords, last week in Committee I supported the amendments in the name of the noble Baroness, Lady Ritchie, and others. It is only due to me being late getting to the office that my name is not on this amendment, but I support it nevertheless.

The Minister did his best in his letter. The only thing missing from it was a poetical quote; otherwise, he pretty well exhausted every lever at his disposal to make a silk purse out of a sow’s ear. I congratulate him on attempting to do it.

I have always felt, and have said to colleagues, that the key to what we are discussing today will evolve as we go through the rest of this year. The necessary parts of the negotiations will ensue, and we will see what happens. The Minister was kind enough to quote my widget example in his letter. It was merely to illustrate the enormous complexity and difficulties, and it does not immediately occur to me how we solve them. We spoke to the business community. Reference has been made to the letter that was sent to the Minister on 17 January. Not only is such a letter unprecedented, but I think it is worth mentioning who has signed it. It states:

“The amendments that have been laid down”—


those are the amendments we discussed in Committee—

“have the support of all the main political parties … and the broadest representation of the Northern Ireland business community. This level of common purpose and collaboration is unprecedented.”

It is.

“The intention of these amendments is not to seek subsidy or hand-out but, rather, to ensure that Northern Ireland businesses are supported and protected to continue to be able to trade unfettered, and with no additional costs”—


that is an important factor, because that goes directly to competitiveness—

“as full and valued members of the UK’s internal market.”

That was signed by the FSB, the CBI, the Dairy Council, the Freight Transport Association, Hospitality Ulster, the Institute of Directors, Manufacturing NI, the Mineral Products Association Northern Ireland, the Northern Ireland Chamber of Commerce and Industry, the Northern Ireland Food and Drink Association, the Northern Ireland Meat Exporters Association, the Northern Ireland Retail Consortium, Retail NI and the Ulster Farmers’ Union. To get all those bodies to sign anything with all the political parties is quite an achievement. The Minister must be very proud of what he has achieved in provoking that. But we are not simply politicking here; we are trying to speak on behalf of an entire community.

References have been made to the new Executive and how they should be engaged. We warmly welcome the fact that they are in place and, one hopes, will be able to speak on behalf of the community and get our message across. Many of us have been extremely worried over the past few years, because during these negotiations the people of Northern Ireland have effectively had no one to represent them. That has been a huge tragedy, and a lot of the mistakes that have been made have, in part, been linked to that. Despite repeated requests, there was little or no significant impact from Northern Ireland’s voice, because it was not at the table, where it was needed.

I hope that when the Minister replies he will understand that and understand the competitiveness issues involved. He has to acknowledge that, as we sit here today, there are not on the table the practical solutions that will allow unfettered access. Our anxiety is that those solutions may not be there and that in a year’s time “unfettered” will become “fettered”—that there will be differences, competitiveness issues and costs. I sincerely hope that the Minister is able to square the circle when he concludes this debate. I support the amendment in the name of the noble Baroness, Lady Ritchie.

[Lord Bruce of Bennachie (LD)]

My Lords, I, too, support the amendments. Having spoken in support of the principle last week, I shall be brief.

It is fair to say that this and the previous group of amendments are based fundamentally on a problem of trust with the Government. The Minister has given us detailed assurances as far as he is able, but the words of the Northern Ireland protocol and the assurances given by the Prime Minister do not seem to square with the facts. Understandably, therefore, it is difficult for people in business to feel comfortable that “unfettered access” means what it says. The noble Lord, Lord Empey, has indicated that there is a question over that. For example, being based in Northern Ireland, you may well have access to the Great Britain market but you may still have to fill in a customs declaration. That is a fetter and a tie, and it involves a cost. There is also the issue of at-risk goods, which may or may not cross other borders and will perhaps have to be separated out. That will involve an administrative cost and will be a problem. The Minister is fully aware that businesses in Northern Ireland—many of them small, as has been said—are facing Northern Ireland being half in and half out of both unions: half in and half out of the UK, and half in and half out of the EU. If anything is a recipe for confusion, that is it.

The point that the noble Baroness’s amendment makes is, given that in reality it looks as though there will be rules and regulations that change and that will have implications, what is required is a guarantee that businesses in Northern Ireland will be compensated or covered for that so that they will not be worse off. Many of us see a real intellectual challenge as to whether that is even practically achievable within the proposed framework. The Minister is not allowed to accept amendments to demonstrate good faith. He writes extremely detailed and genuinely constructive letters but they are not law, and that leaves us in this rather uncertain scenario.

To be absolutely blunt—I think that the Chancellor’s interview with the Financial Times last week made this clear—the hardliners are in charge. What is being practised is a hard Brexit and Northern Ireland is almost like a nut in a nutcracker. Many people feel that Northern Ireland is not the Government’s top priority in “getting Brexit done”: there is a worry that it is expendable.

The Minister needs to understand that behind these amendments is a genuine concern—even a fear—that all the assurances being given will be very difficult to square with the realities of the Brexit we will get, in terms of both how we withdraw and the future agreement. There needs to be a real and positive recognition that Northern Ireland cannot be left to be squeezed in between all that. If the United Kingdom means anything and if the commitments mean anything, Northern Ireland deserves those assurances, which is why these amendments have been tabled.

Northern Ireland Executive Formation

Lord Empey Excerpts

Thursday 16th January 2020 Lords Chamber

[Lord Duncan of Springbank]

My noble friend is right to raise this issue. He will recall, as I am sure other noble Lords will, that the legislation we took forward before Christmas was taken forward by this House and this Government. It was not dependent on the outcome of a new Executive. As a consequence, it will continue to the timetable that we set. I believe—again, I pay tribute to the noble Lord, Lord Hain, for his work on this—that the compensation for victims should be in place no later than May this year. That is something to be welcomed by all in the newly reformed Executive, I hope.

[Lord Empey (UUP)]

My Lords, I say as one who participated in the establishment of these institutions that they should never have been collapsed in the first place, but I am glad to see them returned.

However, I draw the House’s attention to the part of the Statement that says that this deal was accepted by the main parties

“as a basis to re-enter devolved Government.”

That is not true. This is not an agreement. It is a government Statement and a Statement of the British and Irish Governments collectively. It was shoved into our hands at 8.30 pm last Thursday. We had never seen a number of the matters contained in it before. Our participation in the Executive is based exclusively on our rights under the Northern Ireland Act 1998, whereby our position in the Assembly is related to our electoral support. We have taken on the health portfolio, which I have drawn to the House’s attention on many occasions because it is in such a terrible state. I hope that we will succeed in that endeavour but I want to make it clear that, for instance, we have never seen the legacy proposals and this business of 100 days before—and we do not accept the legacy proposals. We never have. We have argued against them since Stormont House in 2014.

However, there are many good things in the Government’s Statement. There is potential. But do not create the impression that everybody accepts everything that is in this paper—we do not. It would be unfortunate if we clouded people’s thinking into believing that that is the case.

Nevertheless, we are there because we want to solve the problems that I and others have brought to the House’s attention time and again, such as the disgraceful state of affairs in our health service and many of our other public services. We will play as positive a role as possible but we will not be tied down to a Statement by two Governments containing provisions of which we had no knowledge and over which we had no say.

[Lord Duncan of Springbank]

In many respects, the noble Lord echoes the words of the noble Baroness, Lady Armstrong: this is at a delicate stage and we have to see how it will grow into a new, fully fledged, functioning Executive addressing each of these matters. I am pleased in one respect, in the light of the remarks of the noble Lord, Lord Empey, that the health portfolio is now held by his party. I suspect that the incoming Minister, Robin Swann, will be getting letters from his friend, the noble Lord, which he can look forward to as much as I did.