Northern Ireland (Miscellaneous Provisions) Bill

Lord Lexden Excerpts

Tuesday 3rd December 2013 Lords Chamber

[Lord Lexden (Con)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Empey, with whom I agree about nearly everything, in the closing stages of this debate on a Bill that has a limited but nevertheless most beneficial purpose: to help further the arrangements under which the Province is currently governed and its electoral system administered. As a Conservative and unionist with a long-standing interest in Northern Ireland, I welcome it.

The Bill has been the subject of extensive consultation within Northern Ireland. It has undergone detailed pre-legislative scrutiny at the hands of the Northern Ireland Select Committee in the other place, and has been usefully improved as a result. Such careful preparation is not a feature of all the legislation that comes before this House. As a Member of your Lordships’ Select Committee on the Constitution, I have from time to time put my name to reports expressing regret that measures have been brought forward without having been given the full and detailed preliminary consideration that they needed. This Bill warrants no such comment, and the Northern Ireland Office is to be congratulated on its thoroughness. The manner in which it has been developed accords fully with the best practice recommended by your Lordships’ Constitution Committee.

From my own staunch unionist standpoint, the Bill has much to commend it. Northern Ireland ought, as far as possible, to be treated in the same way as other parts of our country on issues that affect them all equally. The funding of politics is one such subject. The Bill deserves full support for setting an early date—1 January 2014, less than a month away—after which information about new political donations can be made available without restriction by the Electoral Commission. At the same time, common prudence indicates that the precise moment at which the new power can be used must be determined in the light of security considerations. The Bill rightly leaves the Secretary of State, who I am sure will engage in widespread consultation, to judge when the change can safely be made, and so bring Northern Ireland into line with the rest of the country, in conformity with unionist principles and the wishes of the people in the Province. In a survey carried out by the Electoral Commission at the end of last year, fewer than one in 10 favoured the retention of confidentiality.

The Bill also brings Northern Ireland into line with practice elsewhere in another important respect, by extending the term of the current Assembly from four years to five, and by providing for five-year terms in future. There is nothing inherently superior about five-year intervals between elections; indeed, a powerful case can be made for elections every four. However, the next elections in Scotland and Wales will take place at the end of five years, and Northern Ireland stands to gain no obvious practical benefit from having a shorter electoral cycle. The Bill brings a welcome consistency to this aspect of the United Kingdom’s devolved institutions. All of them will now be re-elected in 2016. Having been brought into a common mould, they should retain it. Elections every five years are to become the rule in Wales as well as in Northern Ireland. It is a rule that Scotland should adopt too.

Much reference has been made in this debate to one particularly glaring disparity that currently exists between the Northern Ireland Assembly and devolved bodies elsewhere. The Stormont Assembly, with a smaller electorate than its counterparts, has a much higher ratio of elected representatives. Electors in Northern Ireland are therefore seriously overrepresented in comparison with their fellow countrymen in Scotland and Wales. The carefully defined power which this Bill gives to the Assembly to reduce its own size provides a most welcome means of tackling the problem. The Assembly should use it to serve both the interests of Northern Ireland, where every opportunity to cut its high levels of public spending should be seized, and those of the country as a whole. Greater uniformity between the various devolved institutions strengthens the unity of the kingdom. At the same time, the important points made by my noble friends Lord Alderdice and Lord Shutt need to be noted most seriously.

The Bill has been given wide support, and rightly so, because it bans elected representatives sitting in the House of Commons and the Northern Ireland Assembly simultaneously. There is nothing new about the existing practice. The first Speaker of the Northern Ireland Parliament in 1921 was also a Member of the House of Commons, and later went on to become Father of it; no one turned a hair. Over the years, his example was followed by a not inconsiderable number of Northern Ireland politicians. Today, in the face of much public criticism, the practice has declined sharply: only three Northern Ireland politicians currently hold dual mandates. However, the practice should cease for one simple and straightforward reason above all: the volume of work that elected representatives have to undertake today makes it impossible for them to discharge their duties adequately in two legislatures simultaneously. The era of part-time politics for constituency representatives that existed until after the Second World War has, for good or ill, gone for ever. The Government should, of course, go further—although this Bill is not the vehicle—and apply the principle of “one representative, one legislature” in all parts of the country, as the Commons Northern Ireland Affairs Committee recommended in its report on the draft Bill. Action is to be taken in Wales, but should not end there: Scotland, too, should be brought into line. Certain fundamental principles should apply throughout all devolved institutions, and that is one of them.

Should those elected to the Northern Ireland Assembly continue to be eligible to sit in this House? The Government have not so far accepted the arguments in favour of change. Again, there is nothing new about existing practice. Membership of this House and of the Stormont Parliament were combined by the first Lord Brookeborough and by the first and second Lord Glentoran. Today, the noble Lord, Lord Morrow, is a Member of the Northern Ireland Assembly. Effective membership of this House may not require the commitment of as much time as the Commons demands, but even so the practical possibilities of working in this House and in the Northern Ireland Assembly simultaneously are severely limited, not least because the hours of business in both places tend to overlap. I suggest that it will be difficult to secure acceptance in the country at large for the proposition that the two Houses should be treated differently in this respect. The Commons Northern Ireland Affairs Committee recommended that,

“the abolition of dual mandates should be applied consistently across both Houses of Parliament”.

The case for a consistent approach seems to me to be very strong. That is one matter to which we can return in Committee.

Another matter is the much discussed question of moving towards the creation of a formal Opposition in the Northern Ireland Assembly. Its absence, for well understood reasons, sets Northern Ireland apart from other parts of the country and is incompatible with unionist principle. Disraeli said in 1844:

“No Government can be long secure without a formidable opposition”.

Is there not perhaps a link between the very slow progress now being made in tackling sectarian divisions and improving public services, such as education, and the absence of an Opposition that could hold the Executive rigorously to account? The Assembly and Executive Review Committee has recently concluded that,

“there is no consensus at present to move to a formal Government and Opposition model”.

However, given the growing evidence of increasing support for this move within Northern Ireland, it is surely incumbent on us to ensure that a transition can occur without difficulty in future. Perhaps the most effective way of doing that would be to add to this Bill a clause conferring on the Assembly the power to make the move in due course when agreement has been reached.

Committee may also be an appropriate stage at which to consider action by the current Executive that is contrary to the best interests both of the Province itself and the country as a whole. One example is the severe limitations that have been imposed on the new National Crime Agency, highlighted by my friend the noble Lord, Lord Empey, on several occasions and by the noble Baroness, Lady Smith of Basildon, who knows Northern Ireland well. The noble Lord, Lord McAvoy, of Fermanagh descent, also made a reference to it earlier in the debate. Another well known example is the Executive’s rejection so far of the new Defamation Act, which was the subject of a debate in Grand Committee in June. These issues raise fundamental constitutional questions that relate to the future government of the United Kingdom, as highlighted and expanded upon by my friend, the noble Lord, Lord Empey. They are of immense importance.

In 1966, as dark clouds were starting to gather in Ulster, an incisive analysis of rising disorder was published in the New Statesman by Seamus Heaney, whose death this year has been so widely mourned and has been marked by a special occasion here at Westminster. Heaney wrote sorrowfully of the re-emergence of political extremism,

“directed at the breaking down of any bridges that might exist between Catholic and Protestant; it would create its own Troubles and set the political and religious question back 40 years”.

Tragically, these were prophetic words. Heaney also quoted words used by Keats after visiting Belfast in the 1830s:

“What a tremendous difficulty is the improvement of the condition of such people”.

The difficulty, tremendous now as it was then, can surely be overcome only by rebuilding the bridges that were so cruelly broken down after 1966, while showing true understanding of those whose sentiments are summed up in a well known line of popular verse quoted by Heaney at the conclusion of his article:

“It’s to hell with the future and live on the past!”.

It is surely our duty to do all we can to encourage Northern Ireland’s power-sharing institutions to direct all their attention in one direction: towards the future. The Bill can help us in that task.

Defamation Act 2013: Northern Ireland

Lord Lexden Excerpts

Thursday 27th June 2013 Grand Committee

Asked by

[Lord Lexden]

To ask Her Majesty’s Government what assessment they have made of the implications of the Defamation Act 2013 not applying to Northern Ireland.

[Lord Lexden]

My Lords, this is a short debate. It is also the last debate of the day, indeed of the week, but its subject is of the utmost importance. When it is implemented, the Defamation Act 2013 will transform an area of law that has been much criticised over many years. It will introduce major improvements and confer great benefits on the people of England and Wales, particularly those working in our ever expanding media industries, one of the great success stories of our country today.

No one knows more about those improvements or understands the prospective benefits more fully than my noble friend Lord Lester of Herne Hill. His patient, determined work over a long period prepared the ground for what has now been enshrined in legislation. I am delighted that he is able to take part in this debate, along with other noble Lords who are far more versed than I am in the provisions of this hugely significant Act. I am immensely grateful to them.

The law of defamation in Northern Ireland has never been detached from that in England and Wales. In the 1950s, Westminster and the Stormont Parliament introduced the same changes to it. Now, however, for the first time in our history, Northern Ireland is to be severed from England and Wales in this wide area of law. For an ardent Unionist like me it is a highly disagreeable prospect, although I could be persuaded to accept it if compelling reasons existed to justify Ulster’s severance. I have not yet heard or read them.

As a layman in search of enlightenment and truth I turned to a leading legal expert in Northern Ireland, Mr Paul McDonnell, a partner in the distinguished Belfast firm of solicitors, McKinty and Wright. In recent months he has made a careful study of the legal implications of Ulster’s severance. I asked him for an assessment to which I could refer in this debate and this is what he sent me yesterday:

“The refusal of the Northern Ireland Executive to extend to Northern Ireland the remit of the Defamation Act, and the legal clarity and free speech protection it brings, is quite simply unjustifiable. Why should the citizens and journalists of Northern Ireland not be afforded the same protection as those in the rest of United Kingdom, whether they are expressing opinions online or holding government to account? Why, as the rest of the United Kingdom embraces the digital revolution, should Northern Ireland be confined by archaic and unfocused freedom of expression laws, some of which were conceived when computing was in its infancy?

The development of a dual defamation system may also have consequences extending across the Irish Sea. Publishers and broadcasters may be forced to sanitise their once uniform national output lest they fall foul of the antiquated laws still operating in Belfast. Investigations in the public interest which concern well-funded organisations will effectively be subject to censorship by the back door, as regional publications will be unable to report on matters for fear of court action in this libel-friendly, free speech limiting UK outpost.

As a lawyer practising in Northern Ireland, I take pride in our legal system. Failure to bring the law in relation to defamation in line with England and Wales will do nothing for the judicial system’s standing. Similarly, failure to introduce this law will inexorably hamper the transparency of government”.

Lawyers do not always deliver clear, decisive opinions. There is nothing opaque or unclear about Mr McDonnell’s expert opinion. I was struck by Mr McDonnell’s phrase, “UK outpost”. It stirred memories of that great film, “Passport to Pimlico”, in which Pimlico—where I happen to live now—suddenly becomes part of the Kingdom of Burgundy and subject to ancient Burgundian law. By the end of the film the Burgundians are cut off from electricity, food and water and become dependent on people tossing food parcels over the wall they have put up to keep the rest of the world out. Chaos ensues, in which it is the ordinary Burgundians who suffer before common sense produces a resolution. There is a parallel here that is worth pondering. If Northern Ireland is cut off from the new defamation law, the consequences might not be so hilarious or short lived as those faced briefly by the people of Pimlico in that old film.

Noble Lords who do not give close attention to events in the new, more politically stable Northern Ireland that has followed the Belfast agreement 15 years ago might assume that the Northern Ireland Executive’s decision to opt out of the new Defamation Act, and remove Northern Ireland from the framework of Westminster’s law, was taken after full and careful consideration of the implications. Noble Lords would be wrong to make such an assumption. Responsibility for this area within the Northern Ireland Executive rests not with Northern Ireland’s Justice Minister, as might have been expected, but with the Minister of Finance and Personnel.

With very considerable difficulty journalists in Northern Ireland—not, it should be noted, the elected Members of the Northern Ireland Assembly—established in March this year that the Minister of Finance and Personnel had submitted a paper on the new defamation legislation to the Office of the First Minister and Deputy First Minister in May 2012. Shortly afterwards, he withdrew his paper—a decision for which no explanation has been offered. When the matter was raised in the Northern Ireland Assembly at the beginning of this month, Martin McGuinness, the Deputy First Minister, stated:

“We have had no discussions with the Minister of Finance and Personnel on that matter ... It is very important to say that the Executive have not taken any decision in relation to a Defamation Bill. It never appeared on the agenda of any Executive meeting”.

In pondering that remarkable statement, is not Parliament’s duty clear? We must surely send to the Executive, who we all support, through this debate and by other means, a message encouraging them to put the Defamation Act on their agenda and consider it fully. In this connection we should note, too, the welcome inquiry which is now being carried out by the all-party Finance and Personnel Committee of the Assembly and pay tribute to the leader of the Ulster Unionist Party, Mr Mike Nesbitt, who is bringing forward a Private Member’s Bill in the Assembly to extend the new Defamation Act to Northern Ireland.

I say this not only on my own behalf but on behalf of my noble friend and colleague, Lord Empey, the chairman of the Ulster Unionist Party, who cannot be here today. He has asked me to state his position which is as follows:

“I am a supporter of devolution, but I do not believe it should be at the expense of the integrity of our nation. Devolution should help sustain that integrity while allowing for regional difference. The mistake that was made after 1921 was that London more or less forgot about Ulster. No attempt was made by London to ensure an appropriate degree of national consistency in all key policy areas. We must avoid repeating that mistake”.

This debate provides the Government with an opportunity to set out their position. The issue is one in which the Ministry of Justice is directly involved. I hope that both it and the Northern Ireland Office are in constructive and vigorous dialogue with the Northern Ireland Executive, particularly in view of the moves that are afoot in the Assembly to take discussion of the defamation issue into a new phase. Above all, I hope that this debate will show that across party political lines we share the same objective: to do all that we can to prevent the establishment of a dual defamation system in our country.

Control of Donations and Regulation of Loans etc. (Extension of the Prescribed Period) (Northern Ireland) Order 2013

Lord Lexden Excerpts

Tuesday 29th January 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson)]

My Lords, this order was laid before the House on 5 December 2012. Put simply, it will extend the period in which donations and loans to political parties in Northern Ireland can be made confidentially.

Noble Lords will no doubt be aware of the significant difference in the rules that apply to political parties in Northern Ireland compared with those elsewhere in the UK; namely, that donor and lender identities be kept confidential. Otherwise, the rules governing the reporting of donations and loans in Northern Ireland are the same as those that apply elsewhere in the United Kingdom, as set out in the Political Parties, Elections and Referendums Act 2000. It is the Government’s firm intention, set out in our January 2011 consultation response, to modify the law in the primary legislation to be introduced when parliamentary time allows and to make more information available about donations and loans to political parties in Northern Ireland. We intend to publish draft legislation on this matter next week.

The draft Bill will create a power to expand what can or must be disclosed by the Electoral Commission. The power will allow us to permit information about past donations and loans—the amount, the nationality of the donor; whether they are a corporation or an individual—to be published, but not information that reveals identities of donors. In relation to future donations and loans, the power will allow us to increase transparency incrementally. If and when it is appropriate to do so, the Government are committed to achieving full transparency of donations and loans, consistent with the position in Great Britain. However, that Bill is for another day.

As far as this order is concerned, the reason for extending the current regime on donations and loans is simple. The existing legislation providing for confidentiality of donations and loans made since 1 November 2007 falls on 28 February. The Secretary of State for Northern Ireland has considered carefully whether it would be appropriate to allow the current arrangements to lapse. While there is a strong case for increasing transparency about donations and loans to political parties in Northern Ireland, she came to the conclusion that it is right to extend the current regime for two reasons.

First, the identities of those who made donations or loans during the prescribed period—that is, since 1 November 2007—would be revealed if we were to let the provisions lapse without introducing primary legislation to provide retrospective anonymity. The guidance given to donors and lenders at the time they contributed did not make this clear and it would be wrong to release their identities retrospectively when they had a reasonable expectation at the time the donation or loan was made that this would not be the case. We therefore need to introduce primary legislation to provide for continuing anonymity for donations and loans made since 1 November 2007 until it can be made clear to donors and lenders that, if they choose to make a donation or loan, their details could potentially be published.

Secondly, the general threat level in Northern Ireland remains at “severe”. As recent events have shown all too clearly, there remain those who are willing to use violence against individuals with whose political views they disagree. PSNI statistics show that there has been no general reduction in the incidence of violence or intimidation since this matter was last considered in 2010. Indeed, in light of recent events in Belfast, it is highly likely that the overall number of incidents will have increased. Any decision to publish the personal details of donors and lenders will need to be made by the Secretary of State taking into account up-to-date information about the risk of intimidation of donors and lenders at any given time.

As I have set out, I believe that there is room to increase the transparency of the donations and loans regime without compromising the security of individuals or businesses. However, this requires the introduction of primary legislation to allow the donations and loans regime in Northern Ireland to be amended in a way that creates future transparency while protecting those who have made donations in the past. At present, the regime does not allow for that flexibility. The Secretary of State is only able to decide between maintaining and removing the current regime.

I am sure we all agree that transparency and accountability in matters relating to the financing of political parties are important to ensure that fraud and corruption can be avoided. The publication of donations and loans made to political parties supports democratic decision-making by enabling the electorate to know how and by whom candidates and elected officials are funded. However, we need to consider the security of individuals and businesses in Northern Ireland, and to ensure that we do not create a deterrent to political donations that damages the ability of political parties to contest elections and unduly restricts the choice available to voters.

This decision has not been taken lightly. We all wish that the situation in Northern Ireland had improved sufficiently that the measure would not be necessary. The Electoral Commission was consulted prior to the order being laid. It confirmed that it was content with the proposal to extend the prescribed period on the basis that forthcoming legislation will address the question of protecting the identities of those who have made donations and loans since 2007, and that no further extension of the prescribed period will be necessary.

I have the greatest respect for those who argue for the utmost transparency in electoral finance in Northern Ireland. The Government agree that a transition to the system used in Great Britain is essential. However, we believe that the transition to that system will be managed most effectively through a gradual increase in transparency, reflecting a security situation that is still very difficult.

The existing legislation will fall on 28 February, and the provisions ensuring that reports of donations and loans in Northern Ireland remain confidential need to be extended for a further period to allow time for primary legislation to be introduced. The order will extend the current regime to allow for this. I hope that noble Lords will agree this piece of legislation. It will enable us, in time, to increase the transparency of donations and loans in Northern Ireland. I commend the order to the Committee.

[Lord Lexden]

My Lords, this order is plainly necessary, and I thank my noble friend for explaining it so fully and clearly. As she said, it would be entirely inappropriate to make changes that would oblige the political parties of Northern Ireland to divulge to the public at large full details of their donations and loans when the state of politics in the Province is so unstable and the security situation so fraught. In today’s volatile circumstances, those Northern Ireland parties that feel strongly that the identities of their donors and lenders should continue to be protected must remain free to protect them—certainly for the time being. I know that that remains the view of the Ulster Unionist Party, which is the party to which I have always felt closest during the 45 years in which I have taken a keen interest in Ulster’s politics. This interest was sharpened in the late 1970s when I worked as an adviser to Airey Neave.

At the same time, unionist principle demands that as soon as possible the same general arrangements for the disclosure of donations and loans should apply throughout all parts of our country. That, rightly, is the Government’s aim, as it was the aim of their predecessors. Understandably, the independent and highly regarded Electoral Commission, to which my noble friend rightly paid tribute, is pressing for that aim to be accomplished as soon as possible. In 2010, a full consultation exercise took place in the Province. Research carried out by the commission last year suggested that only 7% of the public there favour the retention of confidentiality, with nearly two-thirds supporting disclosure and over 30% declaring themselves happy with either. Nevertheless, I am sure that the Government are right to hasten carefully and slowly in this matter. As in so many other areas, decisive action needs to follow the emergence of widespread consensus among the local parties in accordance with the principles of the Belfast agreement. It does not exist at the moment.

Let us hope that, proceeding with patience and understanding, our Government are able to move forward on the basis of consensus when this order expires at the end of September next year. In the mean time, those Northern Ireland parties that wish to publish information about their donations and loans, and have the agreement of those involved, are of course at perfect liberty to do so. Such steps may well help hasten the overall pace of change.

Much controversy naturally attaches to the question of retrospective disclosure when this order is replaced by new legislation in due course. The Electoral Commission, the advice of which is valued so highly, is all for it, while retaining the confidentiality of information that would enable individual donors and lenders in years gone by to be identified. For my part, I am deeply sceptical about the expediency of any retrospective disclosure. Would it not be best to draw a line under earlier years and apply new rules of transparency and disclosure from the point at which they are introduced?

I support the order wholeheartedly. Along with my noble friend Lord Bew, who cannot be here this afternoon, I look forward eagerly to the forthcoming legislation that will replace it, providing for fuller transparency in future.

[Lord Lyell]

My Lords, I support the forthright comments of my noble friend Lord Lexden. He mentioned a period of 45 years. My period of nearly five and a half years in Northern Ireland was luckily not connected too much with financial provisions in politics; I got into quite enough trouble with agricultural financial provisions.

I seem to remember taking part in this debate the last time we discussed this, probably in 2010. I take on board everything that has been said by my noble friend Lord Lexden about the need to continue being discreet, secret or reasonable about donations and where the money comes from. I hope nothing much has changed gravely in that time.

Might the Minister be kind enough to explain the significance of the date of 30 September 2014? It seems odd. Is it the end of what is expected to be the parliamentary Recess? Is the Assembly going to be dancing with delight? Are we to be in here? I am curious as to why that particular date was chosen— “19 months”, as it is spelled out.

The Minister could write to me later on the second line of the Explanatory Note. It starts with, “Special provisions”, et cetera, and then refers to,

“loans and donations made to political parties and,”—

I love this phrase—

“other regulated recipients (such as members of political parties and holders of elective office)”.

I am curious. Has anything changed since this last was defined, or is anything new? Would I be a recipient as a past officeholder in Northern Ireland? Would I be regulated as a recipient? Fortunately, I would keep my oar out of Northern Ireland political donations. I would be grateful for guidance from my noble friend as to what has changed, particularly since we last discussed this. Again, can she clarify to me the significance of 30 September 2014? I hope that I shall still be around, active and not brain dead, in your Lordships’ House. When we come to discuss this again, I hope to be able to congratulate the Minister, my noble friend Lord Lexden and all those who come to speak. I am grateful for the Minister’s clear exposition this afternoon.