Northern Ireland (Executive Formation and Exercise of Functions) Bill

Debate between Lord Mackay of Clashfern and Lord Bruce of Bennachie

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Bruce of Bennachie]

My Lords, my noble friend Lord Alderdice has made a fairly constructive suggestion, which has already been replicated in the Republic, with quite dramatic results. But my question relates to the amendment in the name of the noble and learned Lord, Lord Mackay. I accept that the law is where it is and that if it is devolved, it is for the Northern Ireland Assembly, which does not exist, to change the law. However, the Supreme Court has already indicated that it questions whether or not the law in Northern Ireland is compatible with the European Convention on Human Rights, and has indicated that if an individual case was brought, it is likely to rule that it is not. In those circumstances, if a ruling was made that said that the law in Northern Ireland is not consistent with the convention, but there is no Assembly and no devolution, what is the mechanism by which the law can be changed to bring it into line with the European convention?

The issue on gay marriage could also move in that direction. It has not yet but given the acceptance of gay marriage more and more widely across the world, it may well become an issue where human rights law says that the right to gay marriage is a human right. If that became the case, somebody would need to change the law to bring it into line with the convention. In the absence of an Assembly—which would have to do it, whether it liked it or not, but is incapacitated because it does not exist—who would do it?

[Lord Mackay of Clashfern]

My Lords, the answer is that the Human Rights Act makes it absolutely plain that the declaration of incompatibility does not of itself change the law. If the law is to be changed, that has to be done by the appropriate legislature. In this case, because of the devolution, that would be the Assembly in Northern Ireland if it was functioning. Because of the devolution, that is the way it is: it is the Legislative Assembly that has the power to do this. There is no question of the Secretary of State being able to do it by guidance. That is out of the question. The Human Rights Act made that very plain.

There was quite an important discussion on this during the passage of the Human Rights Bill. Some people thought that the courts should be able to overrule existing statutes that were contrary to the human rights convention. But the politicians of that day, including Jack Straw, were very keen on the view that in our constitution Parliament should be supreme and the courts should not be able to overturn Acts of Parliament. That is a matter for Parliament itself. Of course, as I said at Second Reading, the great example of that in our arrangements recently has been the issue of prisoners’ voting rights because it was declared incompatible and yet Parliament decided not to change the law for some considerable number of years.