Northern Ireland Protocol: UK Legal Obligations

Stephen Farry Excerpts

Tuesday 8th September 2020 Commons Chamber

[Brandon Lewis]

My hon. Friend makes a good point. We outlined very clearly—I do not think anybody can be under any misapprehension about it—our position at the general election: that we would deliver unfettered access, that we would deliver for the people of Northern Ireland and that we would continue to deliver on the Good Friday agreement. That is exactly what we are still focused on doing. We are doing that through the negotiations, but we also want to ensure that we are taking reasonable steps to be prepared for January should we need to be. We will do that in the UK internal market Bill, delivering on that manifesto pledge.

[Stephen Farry (North Down) (Alliance) [V]]

Any unilateral change to the very necessary protocol risks undermining the Good Friday agreement, risks a hard border returning to the island of Ireland and places Northern Ireland businesses in a very uncertain legal position. Do the Government recognise that, in the event that they make unilateral changes to and, in particular, undermine the agreement, they will reduce the prospects of a future relationship with the European Union? In particular, there will be zero chance of negotiating a trade deal with the United States under a Biden Administration and with a Democrat-controlled Congress.

[Brandon Lewis]

On the first part of the hon. Gentleman’s question, quite the opposite—we are focused on coming to an agreement through the trade negotiations and the specialist Joint Committee, to ensure that we are able to deal with the detailed issues that were always, as set out in the protocol, to be worked out by the Joint Committee. That is exactly what the Committee is there to do. All we will be doing in the UK internal market Bill is giving clarity to the businesses and people of Northern Ireland about what happens on 1 January if that does not come to a satisfactory conclusion. I say to him gently that that is the best way to give certainty to the people of Northern Ireland.

Abortion (Northern Ireland) (No. 2) Regulations 2020

Stephen Farry Excerpts

Monday 8th June 2020 General Committees

[Mr Walker]

My right hon. Friend refers to the Attorney General’s comments to the Executive, which, as he says, he has made public.

I am, for my part, very confident that we have the vires under the Northern Ireland (Executive Formation etc) Act 2019 to carry forward the legislation. I have to say to my right hon. Friend, whom I greatly respect, that this issue has been a matter of contention over a long period. He, like me, would much rather that Northern Ireland politicians had been able to address the issue together and take it forward, but that has not proven to be the case. It was in recognition of that that this House told the Government to take action on this issue.

[Stephen Farry (North Down) (Alliance)]

Further to his correct response to the right hon. Member for South Holland and The Deepings in relation to legal advice, does the Minister recognise that the courts in Northern Ireland and, in particular, the UK Supreme Court have already ruled that the outgoing abortion regime in Northern Ireland is incompatible with human rights? In that regard, I pay tribute to the work of Sarah Ewart in championing the need for reform.

[Mr Walker]

Absolutely, and I recognise that the decisions that this House took to give the Government the locus to act on these issues were partly in the light of those judgments, both in the Belfast High Court and in the Supreme Court. The hon. Gentleman is right to address those issues. I must say, having met with Sarah Ewart and her mother, that I was hugely impressed by the courage that she has displayed in bringing her issues to light and publicly engaging in this, coming from a background that was not necessarily one that people would expect.

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[Stephen Farry]

It is a pleasure to serve under your chairmanship, Sir David. I rise to speak in favour of the regulations and to give an authentic Northern Ireland voice in support of the actions that Parliament has taken. In doing so, I thank all hon. Members who followed the leadership of the hon. Member for Walthamstow in passing the relevant clauses to the Northern Ireland (Executive Formation etc) Act 2019 in July last year, and I thank the Northern Ireland Office for its work in taking forward the regulations over the past year. Today they are part of the law, subject to the further confirmation of Parliament.

I recognise that there are many progressive voices in Northern Ireland who welcome the changes. I pay tribute not just to Sarah Ewart, whom I mentioned previously, but to many other campaigners who have been pushing for reform over the intervening decades, including through organisations such as Amnesty International and Alliance for Choice.

I am a former Member of the Northern Ireland Assembly, and it has always been a source of great frustration that the Assembly has been incapable of passing even the most modest reform to Northern Ireland’s abortion laws. People may reflect on the past with some degree of regret that opportunities were not taken and that there was a resulting need for Parliament to intervene. I was a member of the Assembly when the Act of Parliament was passed, and in no way, shape or form did I feel imposed on or overruled, or feel that my mandate had been unrecognised. Rather, I was pleased that someone was taking action to address the situation in my part of the United Kingdom, and that the rights of women were to be upheld properly. Parliament is for the UK as a whole, and there are responsibilities on the UK Government to ensure that all parts of the country follow and are in compliance with international human rights standards, including article 8 of the European convention on human rights, CEDAW and the recommendations of the committee more recently.

Hon. Members have referred to the fact that the Assembly voted the way it did last week, and I will make some references to that. First, it is important to bear it in mind that this is an issue of rights, and rights are not addressed through majoritarian processes. There are duties on legislators to follow the rule of law and human rights standards, and to ensure that things are in place in that regard. Public opinion in Northern Ireland has changed dramatically in recent years, particularly among young people, and opinion polls have shown that there is majority support for a range of reforms to be taken forward in Northern Ireland, so I do not recognise that Parliament is acting contrary to the wishes of the majority of the people of Northern Ireland. In any event, it still has an overarching duty to ensure that the law is human rights-compliant.

If we are to be truthful about the situation in Northern Ireland, it was not the case that abortions were not taking place. Our abortion issue was being exported to other parts of the UK, creating a situation of huge trauma for the women involved, and also creating difficulties for people in more challenging socioeconomic situations and for women in situations of domestic violence and coercive control, who were not able to avail themselves of their rights in the same way that women in other parts of the UK were. I therefore welcome the actions that are to be taken forward.

It is important to recognise that the context of Northern Ireland will still be very difficult. We still have a considerable degree of controversy that Members will no doubt express today. Sadly, we will hear more about it in due course. There is a risk that some of the controversies around the guidance will create a chill factor and make it difficult for healthcare professionals to fulfil their responsibilities. Indeed, we could see a situation in which women are denied their lawful rights in terms of reproductive healthcare, so it is important that we provide a stability of certainty for professionals.

I also recognise that the regulations re-introduce a risk of criminal sanctions against healthcare workers. The hon. Member for Bristol South has already alluded to that. Given the ongoing stigma in that regard, I encourage the Minister to do what he can to give further reassurance that the reinstatement of criminal sanctions cannot be used to prosecute healthcare workers who act in accordance with criminal guidance and who also act in good faith.

I want to put on the record concerns around exclusion zones. I appreciate that the Minister has made it clear that that will be under continued review. Indeed, a wider debate is happening across the UK, but it is important to put it in context. Given the degree of stigma and controversy in Northern Ireland and that there have been considerable problems historically, and indeed today, around the harassment of women who try to access their healthcare rights, it is important that a reconsideration is given due attention as quickly as possible.

There are two important challenges. Before we come to that, it is important that we try to put the issue to bed. Parliament has acted and the clauses in the Offences Against the Person Act 1861 have been repealed. There is a duty in primary legislation to have regulations. Where those regulations are voted down, that duty still continues and further regulations need to be put in place and need to be CEDAW-compliant. That duty is there and continues to exist. It is important that we try to recognise that this debate is now settled, and the same applies to the Northern Ireland Assembly, which has the ability to pass its own measures, but again, it is important that those are CEDAW-compliant. That must be our benchmark.

[Carla Lockhart]

The hon. Gentleman and I will differ on this issue. For the benefit of his constituents, will he make it clear whether he supports abortion for Down’s syndrome up to birth—yes or no?

[Stephen Farry]

I support CEDAW-compliant regulations. It is important that we do not place this in a pejorative way around certain circumstances. Every situation and crisis pregnancy that a woman experiences is a very personal circumstance. The decisions and choices that that woman has to make are often very difficult. We have to give respect and support in that regard.

In that context, I shall make my two final points. The first is that there is a need for the Northern Ireland Office to continue to have a dialogue with the Department of Health and the wider Northern Ireland Executive about ensuring that there is the full provision of services in Northern Ireland. So far, we have seen piecemeal provision; that needs to go further. I regret to report that the Minister of Health in Northern Ireland, rather than treating this as an operational healthcare matter, has referred it back to the Northern Ireland Executive, which is a political cauldron. That will create difficulties in terms of getting decisions to proceed with the full commissioning of services. It is important that the Northern Ireland Office remains fully abreast of that situation and continues to follow up on the encouragement that it has given to date to ensure that those measures are put in place.

It is also important to ensure that there is a proper roll-out of information and guidance, including on websites, for the public to understand what the service situation is, but also to ensure that that is passed down throughout healthcare staff, because there is ongoing confusion. In that context, we could see a situation in which there are rights on paper but not in practice.

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[Sir John Hayes]

I am not sure that that is the view that the Northern Ireland Attorney General took. I refer my hon. Friend to his advice, of which I have a copy if he wants to read it in detail; I cited it earlier. I am also not sure, although he would have to ask this question of course, that it would necessarily be the view that our Attorney General would take. However, that is not for me to judge or gauge, and since I could not encourage the Minister to give any greater clarity about the Attorney General’s advice, perhaps I will leave it there.

[Stephen Farry]

rose—

[Tim Loughton]

rose—

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[Sir John Hayes]

Up until now, we have taken the view as a Parliament that, because abortion is a serious matter, there should be a structure and framework governing where it takes place that maximises the prospect of the safety that the hon. Lady and I want to guarantee. That is why we put it into the hands of medical professionals, and put limits on the places where it can happen. That is why we have a legal framework, and prohibit—indeed, penalise—abortions that take place outside it. My anxiety, like hers, is about guaranteeing safety and security, and I believe that that is done by the existing provisions. We therefore do not need to change them.

I want to reflect on a point that I have touched on briefly already about non-fatal disabilities. I find it deplorable that, in contradiction of all the notions of equality that we rightly promote in the 21st century, a child diagnosed with Down’s syndrome, a cleft lip, a cleft palate or a club foot can continue to be aborted. As the hon. Member for Upper Bann said, that clearly discriminates against disabled people. The last time that abortion regulations in England and Wales were examined in real depth was 1990, before the passing of the Disability Discrimination Act 1995 and the Equality Act 2010. That is why, as I said earlier, I am pleased that a Bill is being introduced that will address that inequality. These regulations permit abortion up to birth on the grounds that the unborn child has been diagnosed with Down’s syndrome, a cleft lip, a cleft palate or a club foot in Northern Ireland. Where a child is capable of being born alive in Northern Ireland, this law will permit different treatment of those with disabilities and those without disabilities. That lawful discrimination will continue until the child is born. If this House were to endorse these regulations, we would be endorsing discrimination on the basis of disability. We would be endorsing applying the Equality Act to some and not all. We would effectively be saying that some lives matter less.

In conclusion, I urge Members to reject these regulations for two main reasons: devolution and equality. They are unconstitutional, and may actually be illegal—I have not got time to pursue that at great length, but that is certainly the view of the Attorney General for Northern Ireland; the question of whether they are legal was asked earlier; he certainly thinks that they are not.

[Stephen Farry]

Will the right hon. Gentleman give way?

[Sir John Hayes]

I will not, because I am about to reach my exciting peroration, but I will happily send the hon. Gentleman the advice if he has not seen it already.

On the grounds of devolution and promoting and protecting the interests of people with disabilities, we should reject these regulations. They are unwise, unconstitutional and unwanted. If that has not persuaded members of this Committee, let me finish not with my words but those of Heidi Crowter, a 24-year-old woman with Down’s syndrome who, when reflecting on the regulations that I imagine some people on this Committee plan to vote for, said:

“it makes me feel like I shouldn’t exist”.

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[Jim Shannon]

I very much appreciate the opportunity to address this Committee on a matter that I have a great interest in. Abortion is a devolved matter and it should be a devolved matter for Northern Ireland. My hon. Friend the Member for Upper Bann referred to the fact that 100,000 people in Northern Ireland today are alive because of our legislation. That was disputed by some, but the fact is that after an investigation it was clear that that figure was reasonable. It has been important for people in the rest of the UK, but it is very important for us in Northern Ireland. Some of the people we meet are alive today because of our legislation.

In 2016, the democratically elected Northern Ireland Assembly voted on primary legislation not to change our abortion law. The process begun in July last year is ongoing. We are all very fond of the Minister, but on this issue we really are at different ends of the spectrum. This impacts our law and constitution and poses deep questions.

The first convention that was flouted was through the application of the accelerated procedure. The fast-tracking of Northern Ireland legislation reduces further the scrutiny that these measures should receive. We reiterate our concern about the routine nature of fast-tracking legislation relating to Northern Ireland.

The second convention that was flouted was that, despite the Clerks’ advice to MPs, the amendment that became section 19 was clearly out of the scope of the Bill. The whole point of constitutional democracy is that it is not crudely majoritarian, especially if the policy affects different national units of different sizes, but it is subject to constitutional rules, devised for the good of the polity as a whole. Constitutional rules, however, have been ignored.

The third constitutional convention that was violated was the convention that Westminster should not vote on a devolved matter: 100% of MPs who took their seats in Northern Ireland were present, and 100% of those who were present voted against a change in the law. The constitutional outrage was and is on a par with two very dark moments in the recent history of the Union, which are now regarded as huge mistakes, and which have both been the subject of public apologies.

Others Members have referred to how much the Union means to them—how much it means to you, Sir David, and how much it means to us as Members. In the 1950s, it was decided that Liverpool needed access to another reservoir. It was decided that the best way of doing would be to flood and thereby destroy a village in Wales called Tryweryn. The people of Wales were rightly outraged that a Government should deem it appropriate to remove an entire village, with its history and its culture: 35 out of the 36 Welsh MPs voted against, yet the legislation was passed in this House, disregarding the opinion of the MPs in Wales.

The people in Scotland were rightly outraged in the late 1980s when the Government proposed to make Scotland the guinea pig and introduced the poll tax one year early. In the vote, the overwhelming majority of Scottish MPs voted against the legislation; yet it was passed, courtesy of the votes of MPs with no mandate in Scotland to make decisions. In 2005, the city of Liverpool finally issued an apology to the people of Wales. David Cameron also issued a public apology to the people of Scotland for this particular abuse.

I will quote a couple of people, although I am very conscious of time. Professor Hill said:

“The text of international treaties such as CEDAW are carefully crafted expressions of intent and belief. There is no reference to abortion in the text of CEDAW. There is nothing in the text of CEDAW which requires a state party to allow abortion on specified grounds and/or decriminalise abortion generally. The absence of such a provision in the formal text gives a clear indication that no such obligation exists”.

It is not just the view of one lawyer. It is also the view of Supreme Court in 2017. The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path, but as a matter of international law the authority of their recommendations is slight. It is hard to find words to express how deeply distressing for the people of Northern Ireland it is to be disenfranchised, like they were in Wales in 1950 and like they were in Scotland in 1980.

What they were doing has been described as a travesty of constitutional due process. The terms of the law were completely rewritten from the text debated on one occasion by the House of Commons, and were then subject to a time-limited debate of one hour, which covered all Lords amendments and was dominated by Brexit. If we add up the fragments mentioning abortion and the amendment, it took up 17 minutes of debate. Again, that underlines our concerns.

The Secondary Legislation Scrutiny Committee said:

“Public consultation began on 4 November 2019 and lasted for a period of six weeks. In our view this is too short for so sensitive a topic. Added to which, it took place during the General Election period and in the run up to Christmas, neither of which conforms with best practice. Of the over 21,000 responses received, 79% registered general opposition to any change to the established position in Northern Ireland.”

I am not going quote, because of the time, Sir David, but David Scoffield QC has been on the record and answered on many occasions, and we cannot ignore his opinion:

“The NIO states that, where possible, this statutory framework mirrors the Abortion Act 1967 so that provision will be broadly consistent with the abortion services in the rest of the UK. The NIO was, however, obliged by law to implement the specific recommendations of the CEDAW Report which relate to Northern Ireland. This report has sought to expand on some of the Government’s policy choices and also to air the main issues drawn to our attention in submissions, to assist the House in the forthcoming debate.”

I would have to say that the Northern Ireland regulations need to be referred to the Attorney General. We have ignored the John Larkin recommendations to the Committee. He said that the regulations in section 9(11) do not go as far as being able to the Act, which is a reform in the recommendations.

[Stephen Farry]

Will the hon. Gentleman give way?

[Jim Shannon]

I am conscious of the time, and the hon. Gentleman has had his chance. I also want to give the Minister a chance to respond.

Liz Crowter says:

“At 24 weeks babies are viable. You cannot have a law that says it is OK to end the lives of some viable human beings because they have Down Syndrome, while saying that other viable human beings of the same age cannot be because they don’t have a disability, without saying human beings with non-fatal disabilities are worthy of less protection and are therefore less valuable.”

It is not just Heidi Crowter. Máire Lea-Wilson’s one-year-old son Aidan has Down’s syndrome. Papers were lodged with the High Court just last week. Mindful of such things, Parliament must vote to reject the regulations and ask the Government to think again. We have a functioning Assembly that can make its own abortion law, as has happened since the 1861 Act. Yet the Government are proposing that, before 19 June, Parliament vote on a devolved matter by passing the regulations. Others have referred to the 75 MLAs who oppose abortion on the basis of non-fatal disability. My point is that there is a stronger legal argument for us to leave the matter to the Assembly.

I would like to ask the Minister some other questions, but I do not have time. I will finish with one more point. The Government have cast constitutional due process to one side, through pressing for out-of-scope amendments in the context of accelerated procedure; failing to point out that there was no international legal imperative for changing the law, especially if doing so involved violating a key constitutional convention; the effective disenfranchisement of the people of Northern Ireland on a Northern Ireland piece of legislation on a devolved matter; peers having only a few hours’ sight of the amendment that became law before the debate; permitting only 17 fragmented minutes of debate on a completely new text that proposed making hugely controversial changes through secondary rather than primary legislation; giving only six weeks for the consultation; knowing that 79% of people said, “Please don’t do this”; the failure to welcome the restoration of the Assembly as giving Parliament the opportunity to repeal section 9; the production of regulations that undermined devolution significantly more than Parliament required after the restoration of the Assembly; the production of regulations in respecr of which the Attorney General has pointed out that the Secretary of State repeatedly exceeded his power; and responding to the cross-community vote of the Assembly by rejecting the regulations with absolute authority.

The British constitutional position is predicated on the assumption that no Parliament can bind its successors. The 2017-19 Parliament, happily, is no exception. The Government now have the chance to extricate themselves from a catalogue of abuses and save themselves from the huge embarrassment of asking Members to vote for disability discrimination in violation of the requirement in paragraph 85 of the Committee report on the regulations.

Oral Answers to Questions

Stephen Farry Excerpts

Wednesday 18th March 2020 Commons Chamber

[The Prime Minister]

Yes. My hon. Friend identifies exactly the three priorities of this Government.

[Stephen Farry (North Down) (Alliance)]

Defeating the coronavirus must be the top—indeed, the only—priority for the foreseeable future. There is already huge anxiety across the UK. Businesses are facing unprecedented challenges and uncertainty, so, regardless of leave or remain, how quickly will the Prime Minister recognise the inevitable and seek at least a one-year extension to the Brexit implementation process?

[The Prime Minister]

Our priority is to deal with the coronavirus epidemic. The other matter that the hon. Member mentions has, as he will know, already been legislated for.

St Patrick’s Day

Stephen Farry Excerpts

Tuesday 17th March 2020 Commons Chamber

[Jim Shannon]

Well—

[Stephen Farry (North Down) (Alliance)]

Will the hon. Gentleman give way?

[Jim Shannon]

I will.

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[Stephen Farry]

For the sake of balance and inclusivity, it is worth reminding the House that St Patrick was, of course, Welsh.

[Jim Shannon]

He certainly was. This is my first Adjournment debate for many, many years, but I have intervened in a great many Adjournment debates held by other Members and I have been pleased to do so.

Oral Answers to Questions

Stephen Farry Excerpts

Wednesday 5th February 2020 Commons Chamber

[Julian Smith]

I agree with my hon. Friend. I condemn wholeheartedly that horrendous murder. As with any crime, anyone with information should come forward immediately.

[Stephen Farry (North Down) (Alliance)]

Will the Secretary of State clarify his earlier answer in relation to the Stormont House agreement? He did not refer to it in detail but talked in generalities. A commitment was made recently in “New Decade, New Approach” and it was Government policy back in 2015. Is it still Government policy to fully deliver on Stormont House?

[Julian Smith]

What I have said is that we are going to deliver on the commitment of ending vexatious claims against our armed forces and police officers. I have also said that I will discuss with all Northern Ireland parties how we will deliver on all aspects of the “New Decade, New Approach” document.

Northern Ireland Executive Formation

Stephen Farry Excerpts

Thursday 16th January 2020 Commons Chamber

[Stephen Farry (North Down) (Alliance)]

I join in praising the Secretary of State and the Tánaiste and their teams for this deal and also stress my understanding of the importance of linking any new cash for Northern Ireland with reform and transformation. May I ask him about the petition of concern and share the view that many people are sceptical and feel that the reforms do not go far enough, but are, none the less, prepared to give it a go. Will he give us a reassurance that, if things do not work out correctly, the Government will look at this again? Will he also recognise that, as society in Northern Ireland transforms, more and more people no longer identify as either unionist or nationalist, and that that must be recognised in the institutions?

[Julian Smith]

The hon. Gentleman is right. His party led the way during the talks process on analysing and reforming the petition of concern. There have been very positive reforms of the petition of concern, but, as a UK Government, we have said that we will review it every six months and that, at the end of this Assembly term, we will stand by to take action and intervene if it is being abused.

European Union (Withdrawal Agreement) Bill

Stephen Farry Excerpts

Committee stage & Committee: 2nd sitting: House of Commons & Committee: 2nd sitting
Wednesday 8th January 2020 Commons Chamber

[Stephen Farry (North Down) (Alliance)]

I am happy to withdraw my amendments in the light of the Minister’s comments, but I ask him to respond further on the need for both the Human Rights Commission and the Equality Commission to receive the same notification as the Attorney General on human rights or equality issues that come before the courts or tribunals.

[Mr Walker]

I hear the hon. Gentleman’s point, which I am happy to look into, but my understanding is that under the Bill those bodies have the powers they need to acquire the necessary information. I am grateful to him for his gracious withdrawal.

New clauses 11 and 12 were tabled by the right hon. Member for Lagan Valley. I want to make it clear from the outset that the Government’s commitment to the Northern Ireland Act 1998 and the Belfast agreement, which it implements, is unfaltering. The consent mechanism contained in the protocol, for which the Government will legislate before the first vote is required in 2024, operates on the basis of a majority of democratically elected representatives in Northern Ireland being able to continue or end alignment with EU law. I am certain that this is the right mechanism. The right position in principle is not to hand a veto to any one party—not to Brussels, not to Dublin and not to any one party or community in Northern Ireland. That is what our consent mechanism does. I therefore urge the right hon. Gentleman to withdraw his amendments and back this arrangement.

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[Sir William Cash]

In conclusion, I will simply say that I entirely endorse what my right hon. Friend has said, as indeed I endorse what my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said. The bottom line is that our passing of the withdrawal Act, in conjunction with the general election that we have just won, gives us back the opportunity to make laws on behalf of the people of this country in a democratic, constitutional arrangement of such importance that I believe it will go down as a historic moment when the Bill’s Third Reading is passed tomorrow.

[Stephen Farry]

I rise primarily to address amendment 35 in my name and its intersection with clause 38. I do not intend to press it to a Division, but I want to highlight some of the issues that arise from it.

More generally, on the point of parliamentary sovereignty, I want to make a couple of comments, as other Members have, about the irony with respect to the level of delegated powers that the Bill will create, as well as the lack of scrutiny of the future relationship, which is of particular importance to us in Northern Ireland but also, of course, for all colleagues across the United Kingdom. The Northern Ireland/Ireland protocol, which is of such importance to us in Northern Ireland and has almost bedevilled the process of Brexit for many years, was only in effect programmed for two hours today. Many of the Northern Ireland voices were not properly articulated on that.

The concern of my amendment is the rights protections under the Good Friday agreement. The Good Friday agreement is, of course, an international agreement, but its implementation in domestic law falls to the UK Government. The agreement sets out a comprehensive set of rights, including the political participation of women, the right to freely choose one’s residence, freedom from sectarian harassment, a statutory equality duty and, perhaps most significantly, the requirement for the incorporation of the European convention on human rights into UK domestic law.

Most of the debate in Northern Ireland and beyond around Brexit, as it pertains to our situation, has focused on issues around borders, including the business community, the economy, trade and what the future holds in that regard. But people are also deeply concerned about rights issues, for a whole range of reasons. Article 2(1) of the protocol on Northern Ireland/Ireland provides a commitment that there will be

“no diminution of rights, safeguards or equality of opportunity”.

That is very much welcome, but we have seen a gradual weakening of the level of commitment to rights protections since the original draft of the joint report in December 2017. The European Union is very clear that it falls to the United Kingdom Government to ensure that the rights under the Good Friday agreement are protected as part of the future relationship.

The specific concern that I am trying to raise through amendment 35 is that there seems to be an inconsistency between section 7A of the European Union (Withdrawal) Act 2018 and clause 38 of the Bill, which is the focus of this section of our debate. Clause 38 stresses parliamentary sovereignty notwithstanding section 7A, which is used to give some degree of reassurance that there will not be any threat to rights, but there is the potential that section 7A could be overridden in some shape or form. There are several reasons why we have some concern in this respect. First, not all Good Friday agreement rights relate to the European convention itself; some are broader than what the convention contains. Some of the proposed legislative commitments apply only to Northern Ireland Departments and public bodies, and do not extend as far as the UK Government themselves, and in that there may well be some potential danger.

There are also concerns about whether the UK Government have, to date, fully respected some of the rights under the Good Friday agreement. As Members will appreciate, identity is a very complex issue across these islands, but it has been managed to date through a number of different forms—for example, the common travel area; more recently, the Good Friday agreement; and hitherto, of course, the joint membership of the European Union by the United Kingdom and the Republic of Ireland. Up until now, both jurisdictions have moved in tandem on issues involving the European Union, including on matters such as the Schengen agreement, which the Republic of Ireland has also opted out of. We are now faced with the fact that, for the first time ever, we are going to see the UK and Ireland move in different directions in terms of the European Union. That may well throw up a whole range of issues, challenges and anomalies that will need to be managed successfully.

Brexit strips away a lot of those protections, and perhaps does create a certain degree of risk. If I may, I will take one example in that regard. Members may well be aware of the Emma DeSouza case regarding immigration. It drew attention to the fact that the UK Government have not reflected in UK domestic law, particularly in relation to revision of the British Nationality Act 1981, the right of someone born and resident in Northern Ireland to identify solely as Irish, and to have Irish citizenship. What the law currently says is that anyone born in Northern Ireland is, by birth, automatically British, and to many that goes against both the letter and the spirit of the Good Friday agreement.

As long as that case, and indeed other situations, go unresolved there is a latent fear of these anomalies persisting and, indeed, potentially growing, particularly if there is greater divergence between the UK and the rest of the European Union, including the Republic of Ireland in particular. That has implications for what is a very complex situation, which has been managed by the Good Friday agreement—on a faltering basis over the past 20 years, but none the less managed—and we may well be in very difficult and rocky territory. It is important that the Government reflect on some of the fears that are being expressed in Northern Ireland. Although I am not going to press the amendment today, I think it is important that the Government reflect on the matter.

[Ian Paisley (North Antrim) (DUP)]

The hon. Member must of course reflect that the fact of the matter is that the Republic of Ireland is an independent country in its own right. By being independent it is entitled to go its own way, and if it wants to go a different way with Europe it is entitled to do that. We would not want to restrict it and say it has to come with Britain. I would be delighted, whenever we leave the EU and Europe increases its bill of membership to the Republic of Ireland—when the Republic sees how costly it is to be a member—if those in the Republic of Ireland had a national conversation about their role as Irish citizens in the EU. Ultimately, however, that is a choice the Republic of Ireland has made—that it wishes to remain within the EU—and we should not try to restrict its hands, either.

[Stephen Farry]

I am always grateful to hear comments from my counterpart in Northern Ireland, but I think it is worth stressing for the record that there is no significant movement or debate whatsoever in the Republic of Ireland about any form of “Irexit”, as it might be framed. There is deep commitment to membership of the European Union in the south of Ireland, as indeed there is, on a majority basis, in Northern Ireland and in Scotland and other parts of the UK as well.

While Ireland will make its decision to remain part of the European Union, it is of course the UK that is diverging. That debate has been had, and I recognise the outcome in that respect. None the less, it is important to recognise that Northern Ireland is a complex society, and it only works on the basis of sharing and interdependence. A very careful set of balanced relationships has been built up over the past number of years, with the support of those on both Front Benches in this House over that period. Brexit does potentially strip away some of the sticking-plaster over some of the cracks and we do not know exactly how things will work out. It is important that the Government pay regard to, and are sensitive to, the very particular implications in rights terms for Northern Ireland as the Brexit process unfolds.

Northern Ireland (Executive Formation etc) Act 2019

Stephen Farry Excerpts

Wednesday 8th January 2020 Commons Chamber

[Stephen Farry (North Down) (Alliance)]

I will try to be brief, given the pressures of time. Let me first refer to the main focus of the debate, Executive formation and, hopefully, the successful return of devolution, and say that I hope that this is the last time we shall have a debate on the Executive formation Act. There is only one way forward for the governing of Northern Ireland—through sharing. That reflects the complex nature of our society, and the need to ensure that all traditions and identities are represented in our governance. While I would not go as far as my colleague the hon. Member for Foyle (Colum Eastwood), who talked of joint rule, any notion of direct rule or direct responsibility from London must take on board some form of Irish dimension, and it is difficult to get that balance right. If the Irish dimension is too strong it will annoy Unionists, and if it is too weak it will annoy nationalists. That is why the careful balance in the Good Friday agreement is so important.

I do not want to see elections in Northern Ireland. We must ensure that devolution is restored as quickly as possible. However, in the event that we do not see talks resolved and a proper outcome, we cannot simply carry on with what we have been doing for the past three years. That is not tenable. Something has to give in the system.

Finally, let me say something about the two social issues that have been raised. While the Northern Ireland parties have presented a united front today in relation to some aspects of Brexit, I fear that it will break down at this point. I want to put on record that while my party has a conscience position on the issue of abortion, like most parties in the House, I personally was content that the House legislated on abortion reform last July. As a then Member of the Northern Ireland Assembly, I was not at all offended, because we had not sat for the best part of three years, and even before that, efforts at reform had stalled. Biology does not change when we cross the Irish sea. Women are women, and basic reproductive rights must be recognised as fundamental issues of human rights.

It is also important to bear in mind the rulings of both the UK Supreme Court and the High Court in Belfast. The position has been established, and the guidelines can now be put through either in a restored Northern Ireland Assembly or here in the Houses of Parliament. That is the choice, but reform must take place, and I believe that a majority in Northern Ireland support it.

That is also the case with regard to equal marriage—same-sex marriage—and I think that the model in the rest of the UK is readily transferable to Northern Ireland, with only a few minor tweaks here and there. No one is arguing that the Churches should not be given some sort of opt-out in terms of respect for their doctrines. The issue is how far that should go. We need to be mindful of people’s rights as human beings in employment and other aspects, and not go down a much more extreme form of constraint with this important set of reforms. It is important that we take them over the line in a restored Assembly. If we do not, this House of Parliament should do what is important to recognise people’s rights in Northern Ireland, but fundamentally, we must get the Assembly restored over the coming days.