Northern Ireland (Executive Formation and Exercise of Functions) Bill

Baroness Butler-Sloss Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, no one in this House who has just heard what the noble and right reverend Lord said would feel anything other than the most profound sympathy, both for what he said and the picture he painted. I am English but married to an Ulsterman and go regularly to Northern Ireland. I heard that with mounting depression, but it does not surprise me. I also feel a great deal of sympathy for the Government, who are doing their best not to take over. They are doing their best to allow for a situation in which they can persuade those who do not seem to want to be persuaded that they must form an Executive and recall the Assembly.

I want to say a few words about Clause 4, which is not, of course, government-inspired, for obvious reasons. In the other place, there were interesting and useful arguments on devolution and human rights. It is not necessary to explore those today, except to say that the Supreme Court has criticised the situation in Northern Ireland in no uncertain terms. I particularly remark on the speech of the noble and learned Lord, Lord Kerr, who was the Lord Chief Justice of Northern Ireland, and was perhaps more outspoken about the injustice to the women of Northern Ireland.

On the Bill itself, even if there had been a declaration of incompatibility, as a previous speaker seemed to think, the Supreme Court could not make it because it came from the commission, not an individual, so there was no declaration. As the noble and learned Lord, Lord Mackay, pointed out very clearly in his exposition of the law, a declaration of incompatibility would not help at all in this situation. If he is right, as I assume he is, abortion is currently more serious an issue than same-sex marriage because at least there can be civil partnerships. The current situation on abortion is, however, as the Supreme Court said, profoundly unfair. I would not want to open the floodgates of easy abortion to Northern Ireland, but certainly there are situations of rape, incest and foetal abnormality that absolutely cry out to be dealt with.

Having heard the figures from various noble Lords, it is interesting that, like many others, I have had a lot of emails from women supporting the clause and women opposing it—more supporting the clause. I feel, “Poor dears, what do they think this clause really means?” The clause means absolutely nothing on abortion. It will help no one, and it raises expectations with a clear misconception, misunderstanding and misinterpretation of what the clause will say when it inevitably becomes law.

As the Secretary of State in the other place said, the clause puts an impossible burden on her because she will be expected to do something. Those who disapprove of it will see that she may do something they do not like. Those who want it—despite some of the figures we have heard, many women do want it—will find that she cannot do it. Her civil servants cannot do it. As the noble and learned Lord said, if they tried to do anything, they would rightly be slapped down by judicial review because sufficient people would oppose it for it to be taken to the Northern Ireland courts.

There has been a very well-meaning attempt by Members of the House of Commons to circumvent devolution by putting in a clause that I cannot believe they thought would mean anything or would do any good. I do not understand what they thought would happen but it will send a message—or a number of messages. I was told yesterday by somebody from Northern Ireland that this could even send a message that might have some adverse effect on the Good Friday agreement. That may be a step too far but it is certainly something that one cannot ignore. It is the expectation that has been raised that is so sad. What will the Belfast Telegraph, the News Letter or other newspapers in Belfast say after this goes through and becomes law?

If anything is to be done, the Government will have to take over the management of Northern Ireland and, in doing so, the point made by the noble and learned Lord will fall away because London—Westminster—would be making the laws. If Westminster makes the laws, it could change the Offences Against the Person Act, but until the Government do that—and they have absolutely no intention that I can see to do that, for obvious reasons—there is a stalemate, and nothing useful can be done. It is very unfortunate that seeing the Bill through on one day, for perfectly good reasons, means that there is no time for reflection on the best way forward. Clause 4 will pass and it is very unfortunate that it will become law.

--- Later in debate ---

[Lord Adonis]

My Lords, it is a great privilege to follow the noble Lord, Lord Trimble. Given the success he brought to the office when he was First Minister of Northern Ireland, can I suggest that his son is immediately given a hereditary peerage so he can participate in these debates? This might enable him in quick succession to become First Minister of Northern Ireland.

I feel, as with some other noble Lords, like an interloper in this debate, particularly sandwiched as I am in the batting order between the noble Lord, Lord Trimble, and the noble Lord, Lord Alderdice, both of whom played an extremely important role in the operation of the devolved institutions. However, the reason why I and others are speaking—and we do so without any hesitation—is precisely because there are no devolved institutions in Northern Ireland at the moment. We take a view, which we have a duty to take, that after two years where there has been no Assembly and no Government in Northern Ireland, we in Westminster have a duty to take an interest, including, I would say to the noble Lord, Lord Alton, in fundamental rights in Northern Ireland.

The point which is essential to grasp here—and it is also my comment on the speech of the noble Lord, Lord Morrow—is that if Northern Ireland wishes to exercise the prerogatives of devolution, it must operate devolved institutions. It is unacceptable for those of us in Westminster, who are ultimately responsible for the welfare of people in Northern Ireland, to be told that we should respect a devolution settlement which the political parties in Northern Ireland will not respect themselves. That is an unsustainable position.

I believe that is against our fundamental duties as Members of this House and the other place, and there can only be a short period of time for which we can tolerate it any longer. This Bill says until the end of next March—that is nearly three years in which the people of Northern Ireland will not have had an Assembly or a Government. Could the people of England tolerate for one moment the idea that this House would not be sitting for three years? I made a bit of a fuss before the summer at the idea we were not sitting for 10 weeks. The idea we would not sit for three years—that the other place would not sit for three years too—and would devolve to civil servants the task of running the country is utterly unthinkable, and that is the context in which we are dealing with these issues in Northern Ireland.

I say to the noble Lords, Lord Morrow and Lord Alton, if they think that the devolved institutions of Northern Ireland are required to protect fundamental rights, then those institutions must sit and legislate. If they do not sit and legislate, then we have a duty to legislate in their place, because there is no one else who can do it. We cannot tolerate a situation where there is no Government or legislature for Northern Ireland. If the only legislature available is this one, then we have a fundamental duty in that respect.

The noble and learned Lord, Lord Mackay, who is not in his place at the moment, said that we have to respect the devolution settlement and we do not have a right to legislate. I really do hesitate to take on a former Lord Chancellor, but my understanding of the constitution of this kingdom is that if this Parliament chooses, in its wisdom, to legislate, its law is supreme. Indeed, it has to be supreme because there is no other supreme body in this kingdom.

If we continue in this situation where the political parties in Northern Ireland—despite the strong advice being given by many of their wisest leaders in your Lordships’ House this afternoon—take the view that they are not prepared to operate those institutions, there must come a point, probably not far distant from now, where some form of direct rule will need to be instituted. The alternative to that is no legislature and no Government in Northern Ireland, which puts an intolerable pressure on civil servants, who cannot be expected to have to take these decisions without a proper, democratic set of institutions.

[Baroness Butler-Sloss]

I want to ask the noble Lord whether he thinks he was right in saying that this Parliament in Westminster could actually pass legislation. I think we would have to take over Northern Ireland and go beyond devolution when there is power for us to do that. But I think in the absence of that we could not, today for instance, pass a law.

[Lord Adonis]

My Lords, I absolutely defer to the noble and learned Baroness. If she says that that is the case then she is obviously right, but there clearly are procedures by which we can exercise our sovereignty—the only question is what those procedures are.

I thought that the speech of the noble Lord, Lord Empey, was quite brilliant. I have been to Northern Ireland several times in recent months to acquaint myself with the situation because of the debates taking place on Brexit, but also partly because the only way of understanding what the views of the parties and politicians across the spectrum in Northern Ireland are is to go there. It is not possible to get them here because, unfortunately, Sinn Féin does not take its seats, nor is it possible to be guided by the views of the Northern Ireland Assembly because it is not meeting. It is quite a commentary on our affairs that literally the only way of understanding what is going on in Northern Ireland, if you sit here in the Parliament in Westminster, is to go to Belfast and meet the parties.

When I went to Belfast, I had extremely constructive discussions with the parties in Stormont. It was the first time I had been to Stormont; its grandeur is quite extraordinary. These are institutions very much in the image of Westminster. What really struck me while I was holding meetings in one of the committee rooms, where I am told that the Executive used to meet, was that in the Senate Chamber was meeting the inquiry into the renewable heat scandal, which the noble Lord, Lord Empey, referred to. If a scandal on that scale had happened here in London, by now there would be cases in the courts and serious legal proceedings. The noble Lord is absolutely right to say that the fact so little is known about those affairs here and we take so little interest in them is, I am afraid, something of a condemnation of us. However, if these affairs continue in Northern Ireland, I believe we will have no choice whatever but to become involved.

This is Second Reading and we will deal with Committee in due course. I will put down a marker for three issues that seem essential for us to address ourselves to in Committee, since there is no Assembly in Northern Ireland. The first is the issue of a mediator and getting serious talks started that could lead to a new Government in Northern Ireland. The Minister, in his excellent introductory speech, said that “intensive talks” are necessary. He also said—I noted this down as he said it—that,

“we will not be waiting until March”,

to get intensive talks going. I take those to be significant statements. Could he, in his summing up, return specifically to the issue of whether the Government will as a matter of urgency proceed, with agreement among the parties in Northern Ireland, with the appointment of a mediator? It seems an essential next step since nothing else appears to be producing momentum. I have amendments tabled in respect of that, but I do not intend to press them. I am looking for assurance from the Minister that the Government will move in this regard.

Secondly, on abortion and equal marriage, the situation as I see it is as follows. It is a judgment that will be held by a majority in this House and in the House of Commons that the current law in Northern Ireland is not consistent with fundamental human rights. Other noble Lords might take a different view and some of them have spoken in this debate, but it is my view that that would be the judgment of a majority. Indeed, that clearly was the judgment of the majority in the House of Commons. I expect that it will be the judgment of the majority in this House too. The only point I make in this regard is this: if the people of Northern Ireland want to take a different view through their elected representatives, those elected representatives must meet, because there will come a point, which I believe is not far distant, where, if they do not meet, we will be obliged to legislate.

Thirdly, there is the issue of Brexit. What has taken me to Belfast, Dublin and the border territories in recent months are discussions on this very vexed issue of the Irish border and how it is possible for us to Brexit while not having a hard border. It seems to me that we need some mechanism in the coming months, given that there is not an Assembly and an Executive in Northern Ireland, where we—this Parliament in Westminster—can receive the views of the elected representatives of Northern Ireland, not just from the one party that takes its seats in the House of Commons. In my amendments on the Order Paper, I suggest that the way of doing that would be to have a special sitting of the Northern Ireland Assembly without there being an Executive, purely for the purpose of debating Brexit and reaching a resolution that could then be submitted to the Parliament here. My understanding from his speech is that the noble Lord, Lord Trimble, might have a more ingenious suggestion to make later on in Committee as to how the opinions of the parties in Northern Ireland might be taken in respect to Brexit. I will absolutely defer to him if he has such a suggestion to make. I believe it is important in the coming debates on Brexit that we are able to take account in some formal way of the views of the political parties and their elected representatives in Northern Ireland. In the absence of any better solution to this problem, I suggest that there should be a special sitting of the Assembly.