Northern Ireland (Miscellaneous Provisions) Bill

Lord Lexden Excerpts

Monday 3rd February 2014 Lords Chamber

For those reasons, I believe that the time is right; we have, unfortunately, been going through a period of great stalemate. Looking to the years ahead, a modest move such as this, which does not offend anybody’s rights or require any imposition, would be the minimum movement that most people would expect 16 years after the agreement was reached. Those of us who were involved in negotiating that agreement—there are a number in the Chamber today—know that nobody foresaw that, so many years ahead, we would still not be further down the road to a more normal political situation than we are. However, if the system is made more accountable and it is not possible for parties simply to stall things, in the sure and certain knowledge that they control 95% of the membership of the Assembly, giving an opportunity for an opposition and accountability to take root can only have a positive impact on the governance of Northern Ireland and the political process in general. I beg to move.

[Lord Lexden (Con)]

My Lords, I attached my name to this important amendment readily and enthusiastically. I very much agree with my noble friend Lord Empey that a firm, statutory basis should be provided through this Bill for the creation of a formal Opposition with the appropriate rights and privileges if and when the Northern Ireland Assembly should wish to bring it into being. This proposal has been formulated by my noble friend, drawing on his deep knowledge of the Assembly in which he served and of the Executive, of which he was a distinguished Member. It has attracted widespread interest and no small measure of support in Northern Ireland, as recent comments in the Ulster press have indicated, comments to which my noble friend has referred. Within the Assembly itself, advocates of the need for an Opposition are making themselves increasingly heard. They do not believe that the Assembly should remain in perpetuity the only legislature in these islands in which the Government face no Official Opposition who could hold them publicly to account.

Speaking as a staunch Conservative and Unionist, I am convinced that my noble friend’s proposal should, through his amendment, be incorporated into this Bill. Over the years, I have always been inclined to back forward-looking measures proposed by members of the Ulster Unionist Party, with which my party was closely allied for the best part of 100 years until the relationship broke down after 1972. My noble friend, as chairman of the Ulster Unionist Party, has done much to encourage closer contact with Conservatives once again. Indeed, at the previous general election, Conservatives and Ulster Unionists in Northern Ireland stood on a common platform. It included the following statement:

“Over time we would like the institutions of Northern Ireland to evolve into a more normal system with a government and opposition. But we recognise that any changes are for the future and will only come about after full consultation and with the agreement of the parties in the Assembly”.

This amendment seeks to give effect to that Conservative and unionist commitment.

However, the amendment has not been brought forward in any narrow party spirit. My noble friend has made clear that it rests on a conviction that the prospects of political progress would be assisted in the longer term if the Northern Ireland Assembly had available to it the power to establish an Official Opposition on the basis of primary legislation passed in this Parliament. As he said, that would give any Opposition who are called formally into existence a greater independence and strength than one established under the Assembly’s current standing orders, as is perfectly possible. All the central elements of the Assembly, including the arrangements for the appointment of chairmen and deputy chairmen, and for the modus operandi of the committees themselves are enshrined in schedules to the Northern Ireland Act 1998. The role and functions of an Official Opposition are obviously no less important. They, too, should rest on a statutory basis.

I have stressed that the amendment reflects no narrow party political interest. I hope that it will attract support throughout the House as a measure which seeks to encourage a significant useful step forward in the government and law-making processes of Northern Ireland without in any way dictating to the Assembly or attempting to impose a timetable for change upon it. Should we not seek to give the Assembly firm, open encouragement to move in a direction that we believe to be right at a time that it believes to be appropriate?

During Northern Ireland’s first period of devolved government after 1921, Parliament at Westminster gave no advice and guidance and ignored Northern Ireland for more than 40 years, with disastrous consequences. We must not repeat that terrible error, as my noble friend Lord Empey has often reminded us. Here, in this amendment, lies an opportunity to offer a view on a crucial aspect of Northern Ireland’s political future and to provide the means by which progress towards it could be achieved. When my noble friend on the Front Bench comes to reply to the debate, I hope she will be able to indicate that the Government will give this amendment sympathetic consideration, paving the way for the incorporation of its extremely important objective in the Bill itself.

[Lord Alderdice (LD)]

My Lords, I should like to pick up on the latter part of the helpful speech of my noble friend Lord Lexden. He reflected on the fact that ignoring the problems of Northern Ireland from 1921 onwards turned out to be disastrous not just for Northern Ireland but, indeed, for the United Kingdom. Therefore, I support the notion put forward by the noble Lord, Lord Empey, my noble friend Lord Lexden and, indeed, the noble Lord, Lord Trimble, that the question of opposition within the Northern Ireland Assembly requires attention.

Indeed, if one looks back at the period up until the breakdown of Stormont, I think it is true that in the whole of that period only one person occupied an executive position who was not a member of the Ulster Unionist Party. That was the right honourable David Bleakley from the Northern Ireland Labour Party, who was for six months the Minister of Community Relations in the very late stages of that unionist Administration. That represents the problem. Those who wanted to be in government were denied that opportunity and were kept in permanent opposition. This was very much to the fore in the minds of everyone during the negotiations on the Good Friday agreement—how to make sure that those who wanted to be in government but had a permanent minority status could participate in the Government and share responsibility. It was not in the minds of anyone at that time to insist that people had to be in government; the problem was the blockage as regards getting into government.

There were many other things that were not clear in the minds of some of those involved. For example, I think it is probably the case—I see that the noble Lord, Lord Trimble, is not yet in his place—that the leadership of the Ulster Unionist Party and of the SDLP, which were the two largest parties within unionism and nationalism, scarcely at that time conceived that they might not continue to be the two largest parties. Of course, the situation changed dramatically. When the new institutions were constructed, instead of bringing people together across the community divide, they promoted strength within the two sections of the community. Not only did they not provide for an official status for an opposition but they did not provide for a proper status for those who did not want to describe themselves as unionists and nationalists. Instead of the cross-community voting system being as I and my colleagues tried to promote, with a need for a two-thirds majority to form an Executive, it was decided that they needed a majority within both the unionist and nationalist communities and a majority of the whole. That made it very difficult for people to appeal across the community divide and to have a proper and reasonable status for those who did not want to consider themselves either unionist or nationalist. Once one moved down that road one created a real problem for any formal opposition status.

What the noble Lord, Lord Empey, said about the absence of an Official Opposition being a problem is true. He is right to raise it and I support the fact that he has raised it. I hope that my noble friend the Minister will be able to indicate to us that the Government will take this matter seriously as we go through the remaining stages of the Bill. Does this way of addressing the problem achieve what the noble Lord, Lord Empey, and his colleagues want? First, the noble Lord has rightly said that it would be perfectly possible under standing order arrangements to be made in the Assembly for there to be a position for the Opposition. That is the situation in this Parliament and it would be perfectly possible. However, he made the point that the two largest parties as they are at present probably have little motivation to support such a thing. That is quite true but that is also true of the amendment before us as it requires the two largest parties with the majority in the Assembly to sign up for this. It does not give the Secretary of State the opportunity to push it. I understand why the noble Lord does not want in any sense to suggest that there should be imposition from outside. The people of Ireland, north and south, respond particularly badly to being pushed in any direction at all, even one they would agree with if left to themselves. Nevertheless, the great vulnerability of the proposition he puts forward is that it does not take us much forward beyond what the Assembly could do itself if it chose to do so.

My erstwhile colleagues in the Alliance Party tried to play a role as an Opposition when they did not have sufficient support to get a ministerial position. Undoubtedly, they felt that the speeches they made and the stances they took were constructive. However, the observation they made is exactly the one that the noble Lord, Lord Empey, makes—that there is no official position and that is a substantial weakness. Would it be possible for a party at present simply to go into opposition? Yes, it would. It simply means that during the running of d’Hondt the nominating officer of a particular political party does not put a name forward. The party is then automatically not in the Executive and therefore is in opposition. The problem is that it would not have any further status without some kind of negotiation.

I was encouraged, as I know the noble Lord, Lord Empey, was encouraged, by the editorial in the Irish News as it suggested that not only had we presently a cross-community basis for government but that it was possible that we might have a cross-community basis for opposition. The SDLP and the Ulster Unionists might come together on this and make a presentation to the Assembly that said, “Together, we think it would be more constructive for us to go into opposition”. There is a bit of a tendency in Northern Ireland to say that the Government over here should sort out the problem. However, I would urge that not only do my noble friend and Her Majesty’s Government here take this issue seriously, but the noble Lord, Lord Empey, and his colleagues in the Ulster Unionist Party should take it seriously in discussions with the SDLP. A cross-community presentation that said, “Let’s have an opposition and we will form that together by volunteering not to take executive positions”, would be a very powerful political position to take. Along with some legislative encouragement of the kind the noble Lord suggests, that might begin to make a difference.

In principle the noble Lord is right. The Belfast agreement was a good agreement but not a perfect agreement. The noble Lord pointed to one of the things that is imperfect—an imperfection that will become clearer as time goes on. My uncertainty is not about the principle or the value, but the delivery. This gentle nudge might help to push us in the right direction or show that something further is necessary. I hope that my noble friend, the Secretary of State and others in the Government will take the principle seriously to see whether through this amendment, another amendment or by another process it is possible to move our politics in Northern Ireland forward.

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[Lord Lexden]

Can my noble friend confirm that she will consider most seriously the point made by the noble Lord, Lord Butler of Brockwell, about the extension to Northern Ireland of the 2010 Act, which, after 150 years, as he mentioned, finally enshrined in law the Northcote-Trevelyan principles of impartiality? I speak in part here as a member of the Constitution Committee of your Lordships’ House, which contains most enthusiastic supporters of the 2010 Act.

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[Lord Shutt of Greetland]

My Lords, I thank the three noble Lords who have spoken, and the Minister. I understand that it is always possible to put up an argument against something. Costs have been raised. There are plenty of costs in Northern Ireland that I could have a go at before getting at the costs of a body such as the Civic Forum. The reduction in numbers of those who are going to be involved in local government is another reason why setting up the forum would be right.

[Lord Lexden]

Am I right in my understanding that members of the Civic Forum were unpaid and, if that was the case, that its re-creation would add little, if anything, to public spending?

[Lord Shutt of Greetland]

I believe it was the case that they were unpaid. There was, obviously, a bureaucracy and there is no doubt that that was the cost of the Civic Forum. My noble friend is right to make that important point. If they were unpaid, I often wonder whether there was any point trying to get a group of people together at 10 am on a Wednesday if all those people were in work. They would be far better meeting at 10 am on a Saturday. I do not know what the position would have been on that but, if you have a body such as this, it is important that it should meet when it is convenient for such people to meet.

The Minister agreed that it is important that this has been aired; I am delighted that it has been. However, it beggars belief that a report produced in 2007 has not seen the light of day in 2014. The years from 1939 to 1945 are fewer than that but think of all that happened in that period. I cannot understand how it can be the case that no one said, “We have managed to put this report through the duplicator and get the reports done, so that they can be distributed to people who are interested”. However, there is more to do and, for the moment, I withdraw the amendment.

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[Lord Empey]

My Lords, I thank the Minister but may I say several things because there is an issue of fact that needs clarity here? The current method of electing or identifying the First Minister and the Deputy First Minister does not come from the St Andrews agreement. It was not discussed at St Andrews—let us be very clear about that—but emerged after a deal between Sinn Fein and the Prime Minister of the day. I want to make it absolutely clear that it was not dealt with at St Andrews. Therefore, if we are to talk about unpicking, the unpicking was the removal of the process that was voted on by the people in 1998. However, it was never part of the St Andrews agreement, which was an agreement between two Governments, not between the parties. I want to make that absolutely clear, because if that is the case, it makes a major difference. It emerged as a deal subsequent to St Andrews.

[Lord Lexden]

Can the noble Lord say whether the current arrangements were debated at any stage by the Northern Ireland Assembly itself? If it held such a debate, did it endorse that which now exists, or did it reach some other conclusion about them?

[Lord Empey]

I cannot recall a debate of that nature, but other noble Lords are present who were Members of the Assembly then. Perhaps they can jog my memory, but I do not recall it.

I repeat: this was never part of the St Andrews agreement. I understand and accept that Governments were faced with a terribly difficult situation: they had to get restoration. However, we must remember why there was instability in the first place. We still had people who were prepared to threaten us with terrorism, and other people who opposed the very agreement that established the Assembly. Leaving that to one side, the original unpicking was done by the removal of the original process in the agreement, and it was never part of the St Andrews agreement.

However, I have made my point. I welcome the longevity of the current Assembly, of which I was part, and I know that we are all glad that it has survived. That is not a mean achievement, and I would not take it away from anybody; it is a very significant achievement, which I welcome. However, survival is one thing but good governance is another, and we have to balance the two. With that, I beg leave to withdraw the amendment.

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[Lord Browne of Belmont]

My Lords, I am pleased to support the amendment of the noble Lord, Lord Empey, in relation to the National Crime Agency. Failure to extend the full operation of the National Crime Agency to Northern Ireland seriously jeopardises security in the province. Failure to extend the work of the agency to cover every part of the United Kingdom is the equivalent of putting up an “open for business” sign over the Province.

In the Police Service of Northern Ireland, we have one of the most accountable police forces in the world, with constant checks and balances, scrutiny and high-level review. With the introduction of the National Crime Agency, this high level of scrutiny would continue. The head of the National Crime Agency, under statute, would appear in front of the Northern Ireland Policing Board once every year. Significantly, the NCA could not operate in devolved matters at all without the instruction of the chief constable. Despite these control mechanisms, some politicians in Northern Ireland have constantly blocked attempts to allow the full operation of the NCA. That leaves those involved in all levels of organised crime in a much better position than they were previously. A fully operational National Crime Agency would be a vital tool in tackling serious and organised crime such as human trafficking and the illicit drugs trade and in preventing terrorist attacks. At a time when my noble friend Lord Morrow is working tirelessly to stamp out human trafficking in Northern Ireland, it is vital that an operational agency is in place that can support this work. Therefore, I support this amendment.

[Lord Lexden]

My Lords, a most important note of warning has been sounded by my noble friends Lord Empey and Lord Alderdice. There can surely be no more important issue of concern to the whole United Kingdom than the national security of us all. It is intensely worrying that, in one part of our country, the national interest is not being secured fully and effectively. That is the simple point at issue. The principle is the same as applies to the amendment in my name to which we are coming shortly. We have in this House the right to look to all those involved in the Government and the law-making processes in Northern Ireland to do everything possible. In no area is it more important than this: to secure the total interests of the United Kingdom as a whole.

[Baroness Smith of Basildon]

My Lords, I find myself in great sympathy with the amendment posed by the noble Lord, Lord Empey. He and I have discussed this before. I regret that my experience of trying to raise this issue with Ministers was identical to that of the noble Lord, Lord Alderdice. I was leading for us on Home Office issues on the then Crime and Courts Bill, and when this issue first came up I raised it with Ministers on the Bill team. The advice I was given was not to draw attention to it. That is pretty horrendous, because people knew there were concerns and issues to be addressed. I believe that early intervention and early political engagement from both Governments could have addressed those issues.

On a number of occasions, on the Floor of this House and outside, I asked Ministers about it and found myself in the curious position of discussing with Home Office Ministers what was happening and being told it was a matter for the NIO; and when I raised it with the Secretary of State at the briefing on Northern Ireland issues, I was told it was a matter for the Home Office. So the NIO was telling me it was the Home Office and the Home Office was telling me it was the NIO, and I was really worried that this just fell between two stools.

Devolution does not mean disengagement. The British Government had a responsibility when setting up the National Crime Agency—or, as I now call it, the nearly-National Crime Agency, because it is not a national crime agency—to ensure that very early on, when the proposal was first discussed, there were discussions between both Governments and between the political parties. I hold David Ford in very high regard; I regard him as a friend. He is, however, one person in one Government. In the old days, under the Labour Government, there would have been political engagement and political discussion on something as important as this. As the noble Lord, Lord Empey, and the noble Lord, Lord Browne, have indicated, the difficulties and the problems are not just for Northern Ireland, but also for those who are genuinely trying to fight crime across the whole of the UK, who are finding themselves hampered because of this gap in provision in Northern Ireland because the Government did not properly engage. Therefore, I support the principle of what the noble Lord, Lord Empey said, but I do not feel that I can support it as a whole because there has to be that engagement first. Merely saying “it will apply” does not resolve the issue.

Will the Minister answer some questions? Can she tell me—and I think the noble Lord, Lord Empey, also referred to this—what has taken place since the legislation received Royal Assent to ensure discussions and engagement in Northern Ireland so that we can move to a position where the National Crime Agency is a genuinely national crime agency? What has happened so far? Also, what will happen next? Can she give the House an assurance that both Secretaries of State—the Home Secretary and the Northern Ireland Secretary—will engage in Northern Ireland to ensure that we can have a National Crime Agency that fulfils the needs of Northern Ireland in the way they should be met?

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Moved by

[Lord Lexden]

7: After Clause 25, insert the following new Clause—
“Defamation
(1) Section 17 of the Defamation Act 2013 (short title, extent and commencement) is amended as follows.
(2) In subsection (2), after “Wales” insert “and Northern Ireland”.”

[Lord Lexden]

My Lords, this is another probing amendment. As has already been mentioned, it raises the same principle that lay at the heart of the previous amendment—the incomplete implementation of a matter of vital national interest throughout our country. The amendment seeks to probe the Government’s response to the Northern Ireland Executive’s failure to implement the Defamation Act 2013—a failure for which the Executive have provided no clear or convincing explanation. I introduced a short debate in Grand Committee back in June on this issue. The Executive gave no account of their inaction then and have not done so since. This has been a story of evasion and irresponsible delay.

The House will recall the momentous significance of last year’s Defamation Act, which recently came into force in England and Wales, cutting them off from Northern Ireland where libel law is concerned for the first time in history. The Act makes the law cheaper and easier to use. It tackles the dire impact of the old libel regime on free speech and updates an antiquated area of law that was out of step with the rest of the world. It is a liberalising, modernising law that will confer lasting benefits throughout our society. It is wholly unjustifiable that the people of Northern Ireland, an integral part of the United Kingdom, should be excluded from the benefits and protections of this new law. It is important that the damage that this will do should be clearly understood. The Province’s exclusion will have harmful effects on six main aspects of its internal affairs.

First, jobs will be put seriously at risk. Some 4,000 people work in publishing in Northern Ireland and another 2,000 work in the broadcast media. Some of them will lose their jobs if media companies decide that it is too risky to operate in a jurisdiction that stifles freedom of expression and then move out of the Province. Secondly, thousands of ordinary people—citizen journalists, casual bloggers, social tweeters and those who produce news for their families on Facebook—will be exposed to the intense dangers of costly libel actions that can wreak great havoc on individual lives. Thirdly, new investment will be deterred. The companies leading the digital revolution are unlikely to invest money, which the Northern Ireland economy needs so badly for its future success, while the Province retains a law of defamation that is hopelessly out of date. Fourthly, those who teach in Ulster’s great universities and colleges will be deprived of the new defences for academic freedom that the Defamation Act confers. Will higher education in Northern Ireland be able to maintain its international reputation for excellence if academics face the threat of legal action for voicing controversial or unconventional opinions? Fifthly, the Executive’s failure to act means that UK publishers will face difficult decisions. They will either have to edit each edition of their newspapers separately in order to avoid being caught by outdated libel laws or they will have to withdraw their papers from sale in Northern Ireland. Sixthly, the Executive’s inaction is bad for democracy in the Province. That is the inevitable consequence of laws that inhibit investigative journalists because the dice are loaded in favour of wealthy or powerful claimants and their lawyers. When those under investigation hire lawyers, most regional and local newspapers almost invariably react either by sanitising their reports or dropping the investigation.

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[Baroness Randerson]

I thank all noble Lords for their contributions and I thank my noble friend and the noble Lord, Lord Bew, for the amendment. This is a very important matter. When we previously debated it, I was struck by the very high level of expertise, and by the very real concern felt by many noble Lords about the fact that the law on defamation in Northern Ireland has not been reformed. My noble friend Lord Lexden outlined the legal and economic impact of the failure to extend the defamation law to Northern Ireland. He also emphasised legal uncertainty.

Several noble Lords referred to the fact that there are also differences in defamation law in Scotland. As the noble Lord, Lord McAvoy, has pointed out, this is the result of devolution. As a Minister, I can sympathise with the frustrations of noble Lords about devolution. It may be that the slowness of response in Northern Ireland is particularly frustrating on occasions. However, it is essential that we respect the devolution process, and part of that process is that you have different laws in different parts of the country. I am not suggesting that I regard it as a good thing that Northern Ireland has not updated its defamation law. I do not regard it as a good thing at all that Northern Ireland is in this position. However, it is important that we respect devolution and, under the Sewel convention, decisions on whether legislation in transferred areas should apply to Northern Ireland would normally fall to the devolved Administration. This repeats the arguments we had in our previous debate.

That does not mean we do not have a view on the matter. The Government have been active in encouraging the Executive to consider the need for change. As I indicated when we last debated this issue, there was contact at official level prior to the introduction of the then Defamation Bill to establish whether the Northern Ireland Executive wished to seek the approval of the Assembly to a legislative consent Motion. Following completion of the Bill’s passage, my noble friend Lord McNally wrote to the Minister of Finance and Personnel to commend the Act to him and to set out its benefits.

Noble Lords and many other organisations and individuals have highlighted concerns about the possible effects of there being differences in the law between Northern Ireland and England and Wales. My noble friend Lord Black pointed out that this is an area where it is particularly difficult to have different laws in different parts of the country. It is important that the Northern Ireland Executive assess the impact on their economy, and on academia in Northern Ireland, as the noble Lord, Lord Bew, said. It is also important that they take into account those key issues when deciding whether they wish to extend the legislation to Northern Ireland.

Several noble Lords have referred to Mike Nesbitt’s consultation in terms of its size and the quality of the responses. It is important to remember that 90% of those who responded to the consultation wanted the extension of the law to Northern Ireland. It is therefore important that Mike Nesbitt should be able to develop his legislation and take it forward.

Reference was made to the fact that Simon Hamilton, the Northern Ireland Finance Minister, has asked the Northern Ireland Law Commission to examine the matter and concerns were expressed about the timescale for this. It is something which of course the Government cannot influence, but it is important that we should encourage all those with an interest in this issue in Northern Ireland to pursue it as quickly as possible in order to provide certainty for academia, for the press—as my noble friend Lord Black mentioned—and for all those who are affected by the lack of an update to this legislation. It is clear that active consideration is now being given to it and, in view of the action being taken at Stormont and the devolved status of the issue, the Government cannot support the amendment. I am pleased that we have been able to debate the matter, and I commend the noble Lords, Lord Bew and Lord Lexden, for their continued efforts, but I respectfully ask that the amendment be withdrawn.

[Lord Lexden]

My Lords, I think that for the most part we have probed this issue most usefully, apart from the noble Lord, Lord McAvoy, who did not seem to want to probe it at all. We should be careful before concluding that this sovereign Parliament would be wrong in taking action, and doing so over the head of the devolved legislature, as I think that that is a principle that we must be very reluctant to accept. Devolution does not mean the abnegation of sovereignty by this Parliament.

In respect of Scotland, the existence of a separate defamation law is explained by its own historic body of separate law. England, Wales and Northern Ireland have hitherto always marched together. I have listened carefully to the Minister’s comments and I am deeply grateful to all those who have spoken to express their grave concerns about this issue both on the part of Parliament here and, more importantly, for the people of Northern Ireland. I will want to consider it further in conjunction with my noble friends who have spoken along similar, if not identical, lines to mine and decide with them what further action might be appropriate. On that basis, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.