Identity and Language (Northern Ireland) Bill [HL]

Debate between Lord Empey and Lord Morrow

Committee stage
Wednesday 22nd June 2022 Grand Committee

[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.

--- Later in debate ---

[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.