Identity and Language (Northern Ireland) Bill [HL]

Baroness Goudie Excerpts

2nd reading
Tuesday 7th June 2022 Lords Chamber

[Baroness Goudie (Lab)]

My Lords, I thank the Minister for going through the Bill so clearly with us today; he has answered a number of questions. This is a good Bill and it is part of the Good Friday peace agreement. It has taken a long time to reach this stage. A new approach is welcome, but we must have timelines in the Bill if it is to succeed and move forward. I thank all the organisations that have been in touch with me for their information and helpful advice. I look forward to working with them, and with the Government, in the passage of this Bill. I will be putting down amendments with my colleagues over the next few days.

I am worried that the Democratic Unionist Party, which is committed to the Bill, has not yet committed—for different reasons, as we know—to setting up the Northern Ireland Executive. That is vital for the Bill to move forward. Further, it is important that the committees and commissioner that will be set up by the Bill should have 50:50 representation of men and women. Let me tell noble Lords that, as they know, there are plenty of good women in Northern Ireland who will apply to sit on the various committees. I really feel that this is an important move in going forward with this new approach. The Good Friday agreement, in many ways, has made this possible, and we have seen it as we have gone forward. This is really important.

What might the timeframe for this legislation be once the Northern Ireland Executive is set up, including the timeframe for putting the adverts out and getting the committees in place? Furthermore, the current list of public authorities should be expanded to include the National Health Service, the Driver and Vehicle Licensing Agency, all the education departments throughout Northern Ireland, et cetera. These are vital for moving this forward. There should be much more public consultation, although we know that the number of people who can speak Irish and want their children to speak Irish is very high. I grew up in a family where some of my relations and my parents could speak Irish, and I know how important this is to the culture of Ireland—and to understanding and keeping the peace there. I would be pleased if the Minister could give me assurances on these matters. I will be asking further questions with my noble friend Lady Ritchie in Committee.

Identity and Language (Northern Ireland) Bill [HL]

Baroness Goudie Excerpts

Committee stage
Wednesday 22nd June 2022 Grand Committee

Moved by

[Baroness Goudie]

1: Clause 1, page 1, line 15, leave out “takes account of the sensitivities of those with different national and cultural identities” and insert “respects the rights of others”
Member’s explanatory statement
This amendment would substitute the qualification on the National and Cultural identity principles relating to the principle that everyone in Northern Ireland is free to express and celebrate that identity. The amendment would substitute the current limitation that this principle be subordinate to the “sensitivities” of persons with alternate national and cultural identity, with a limitation grounded in respect for the rights of others.

[Baroness Goudie (Lab)]

My Lords, I will be moving the amendments in the name of the noble Baroness, Lady Ritchie, today, as she has Covid—she is very sorry not to be here. I will not speak as well as she would on these issues, but I will speak shortly and to the point, as I know that we are under time pressure.

Clause 1 provides that the office of identity and cultural expression may publish guidance on the duty to have regard to the national and cultural identity principles and other principles relating to national and cultural identity. Amendment 5 in this group provides that “other matters” include the

“effective implementation of international human rights standards relevant to cultural identity and language”.

This is to probe how strong the human rights framework is and whether this is incorporated in the work and language of human rights. I hope that the Minister might look at this and see if we could make the clause much better and warmer, so that more people feel that they could go with it. This amendment also fits in well with New Decade, New Approach.

[Lord Murphy of Torfaen (Lab)]

My Lords, I very much support my noble friend in her amendment, but I will speak to Amendment 5 in my name and that of the noble Baroness, Lady Suttie. It is similar to the amendment tabled by the noble Baroness, Lady Ritchie, and it provides that “other matters” include the

“effective implementation of international human rights standards relevant to cultural identity and language”.

It is a probing amendment, which emphasises the human rights standards that we have come to expect in Northern Ireland over the last 25 years.

In the Bill, Clause 3 on Ulster Scots and Ulster British traditions includes reference to three specific international instruments, including the Council of Europe’s Charter for Regional or Minority Languages and the Convention on the Rights of the Child. This clause requires the commission to provide advice, support and guidance on the effect and implementation of those instruments in relation to relevant language, arts and literature. I am aware that further amendments later on deal with that, but this is the only reference in the Bill to the wider human rights framework, so Amendment 5 would build on that. Do we need to look more closely at how relevant human rights standards will be embedded across the work of all the bodies established under the Bill?

Of course, this issue goes all the way back to the Good Friday agreement of 1998, a copy of which, by pure chance, I happen to have with me today. It says:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights … with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”


It goes on to say:

“These additional rights reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and—taken together with the ECHR—constitute a Bill of Rights for Northern Ireland.”


We have never had a Bill of Rights for Northern Ireland. Over the last 25 years there has not been one. I blame my own Government as much as anybody else for that, as we should have had one. I suppose it is appropriate that the Minister’s colleague, the Deputy Prime Minister, made a Statement a few hours ago in the House of Commons with regard to the European Convention on Human Rights. I wonder whether, in answering us later, the Minister might touch on how important the ECHR is in Northern Ireland and say whether the announcement today will have any implications for Northern Ireland.

I also support Amendment 6 in the name of the noble Baroness, Lady Suttie, which widens the debate out to look at the future of other languages in Northern Ireland, including sign language, and what could be achieved.

I will make a general point. We are in Committee and are unlikely to be voting on the amendments, which are overwhelmingly probing amendments, but it seems to me that they have to be in the context of New Decade, New Approach, and as closely related to that agreement as possible. They might not be able to have every single word of it, but it was an agreement across the board in Northern Ireland among all parties represented in the Executive and the British Government, so I hope that when we table amendments we all have that important principle in mind.

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[Baroness Goudie (Lab)]

I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

Amendment 18 in this group would amend the duty on public authorities to one of compliance with best practice Irish language standards from one of due regard. This proposal is not faithful to the drafting of NDNA, which states that one function of the Irish language commissioner is to consider

“complaints where a public authority has failed to have due regard to those standards.”

By implication, the duty on public authorities is not one of compliance but of due regard; that distinction must be respected. A duty for compliance would potentially require public authorities to adhere to specific guidance despite their being cogent reasons for not doing so. It is unclear whether this approach would lead to public authorities becoming legally liable for not acting on a consideration of competing human rights. A due regard duty is not a loose concept, as this amendment seems to imply. It means that a person under the duty is not free to disregard but must consider all relevant considerations.

[Baroness Goudie (Lab)]

My Lords, I raised this issue in my Second Reading speech and I am happy to speak to these amendments and others on this issue. I really feel that it is important that we should have “comply with” and not “have due regard to” in the Bill. It is really important that people understand why we are doing this; if somebody needs only to “have due regard” to something, they just have to look at it. It is important that they should have to comply with best practice, and I would like to see that left in the Bill.

[Lord Caine (Con)]

My Lords, I again thank noble Lords for their amendments in this group, which broadly focus on the role of public authorities within the Bill including, as the noble Lord, Lord Murphy, made clear, how we have sought to define them. The debate has once again reinforced just how much better it would be if this were being debated in the Northern Ireland Assembly rather than in the Grand Committee of your Lordships’ House.

I speak first the amendments in the name of the noble Baroness, Lady Ritchie, who cannot be here, which were spoken to by the noble Baroness, Lady Goudie. Amendment 18 seeks to amend new Section 78N, inserted by Clause 2, so that public authorities would have to comply with the best practice standard, rather than have due regard to them, as the current provisions of the Bill require. I will also address Amendment 39, which seeks to place a duty on public authorities to comply with obligations under the European Charter for Regional or Minority Languages.

Again, I point the noble Baroness to New Decade, New Approach and the draft legislation published alongside it, with which this Bill is consistent. At the risk of repeating myself—I fear that I may have to do it again during the course of this debate—the Government are as far as possible seeking to retain the position reached in New Decade, New Approach, which was not to create a wider set of legal duties than has been proposed by these amendments.

I may offer some reassurance, though. In new Clause 78N(2), to be inserted in the Northern Ireland Act 1998 by Clause 2, the Bill sets out that public authorities must “publish a plan” on how they intend to have due regard to the best practice standards; the commissioner must also be consulted on that plan. This seems to me to provide an assurance that public authorities will carry out their duties with rigour and with the support of the commissioner.

Amendment 21 seeks to widen the meaning of “public authorities” to include any UK-wide public authority that provides services to the public in Northern Ireland. New Decade, New Approach was clear that the Executive were to deliver this legislation. The UK Government have brought forward this Bill, which is based on legislation drafted for the Northern Ireland Assembly. The duties in the legislation that was published alongside New Decade, New Approach applied to the public authorities set out in Schedule 3 to the Public Services Ombudsman Act (Northern Ireland) 2016. There was no such commitment for them to apply to a different range of public authorities.

In some cases, I recognise that public services may be administered on behalf of Northern Ireland departments by the UK Government or a third party through agency or other arrangements. This can be the case for online services, for example. If a designated Northern Ireland department or public body decided to commission out the delivery of a public service, it would still need to consider its duties in so doing; the public authority concerned may decide that this requires it to ensure that the body delivering the services offers provision in the Irish language, for example. I hope that this provides some reassurance on the issue.

Amendment 39 would solely amend the provision on the designation of public authorities in respect of the Bill’s Irish language clause. It would not do the same for the provision on the national and cultural identity principles overseen by the Office of Identity and Cultural Expression, nor the measures associated with the Ulster-Scots and Ulster-British tradition. Making differential provision on the public authorities designated under various parts of this cultural framework would undermine the fact that this is a balanced package. That was the clear intention in New Decade, New Approach.

I will now speak more broadly to Amendments 2, 20 and 37, which seek to probe the definition of “public authorities” set out in the Bill. The definition used to define “public authorities” for the purposes of the Bill was taken, as with many other parts of the legislation, from the draft legislation that was published alongside New Decade, New Approach; that legislation was prepared by the Office of the Legislative Counsel at Stormont at the request of the UK Government back in January 2020. I suggest to noble Lords that the range of public authorities brought under the remit of this Bill, from district councils to universities and health trusts, is substantial. We are confident that the approach in the Bill captures the vast majority of public authorities with which the public in Northern Ireland would interact and from which they would receive services.

As noble Lords have pointed out, there is also further provision in the Bill for the First Minister and Deputy First Minister, acting jointly, to designate additional authorities or specified functions of them should that be required over time. We have ensured that the power for the First Minister and Deputy First Minister to designate public authorities are consistent with what the position would have been had the Northern Ireland Assembly, rather than this House, passed the legislation published alongside New Decade, New Approach. In response to an earlier question, the criteria really would be a matter for the First Minister and Deputy First Minister in the Executive to determine. We therefore consider that it would be inconsistent to expand the definition of “public authorities” beyond that set out in the draft legislation published alongside New Decade, New Approach.

Amendment 32 in the name of the noble Lord, Lord Morrow, and his Democratic Unionist Party colleagues seeks to create an additional legal duty on public authorities in respect of the Ulster Scots/Ulster British tradition and guidance published by the associated commissioner. I point out gently that New Decade, New Approach was very clear that the roles and functions of the two commissioners—the Irish language commissioner and the commissioner for the promotion of the Ulster Scots/Ulster British tradition—would be different. The provision for both is therefore different, including in respect of duties.

The language commissioner’s role pertains to matters of language alone. Their work focuses on best practice standards on the Irish language for public authorities to follow in providing services to the public. It is understandable that a corresponding legal duty would be needed in this case. By comparison, the commissioner associated with the Ulster Scots/Ulster British tradition will have a far more wide-ranging role than their Irish language counterpart, going beyond language, as we will probably discuss later, into arts and literature. The proposed legal duty on this wider range of activities would go far beyond the matter of services provided to the public, unlike those on the Irish language best practice standards.

The Bill does, however, provide for the commissioner to provide advice and guidance to public authorities, promote awareness of Ulster Scots services and receive complaints where a public authority has not had due regard to their guidance. There is also, as noble Lords will be aware, a specific legal duty in Clause 5 on the Northern Ireland Department of Education to

“encourage and facilitate the use and understanding of Ulster Scots in the education system”.

Again, this reflects a specific New Decade, New Approach commitment. We hope it will result in Ulster Scots rightly being reflected through the education system, going some way to address the difference in existing legislation, where similar provision has already been made for Irish-medium education. The Government believe that the existing provisions in the Bill will correctly support the development of the Ulster Scots/Ulster British tradition and the Irish language respectively, and will do so consistently with New Decade, New Approach, which was agreed by the two main parties which negotiated it between 2017 and 2020.

Finally, Amendment 4 in the name of the noble Baroness, Lady Hoey, seeks to address concerns raised in an article written over the weekend in a publication called Unionist Voice. Indeed, her speech followed the argument contained in that article very closely. For the benefit of those noble Lords who have not read it, the article suggested, as the noble Baroness made clear, that the Bill could require the Irish tricolour to be flown alongside the union flag on public buildings in Northern Ireland. This is not the case. I am grateful to the noble Baroness for raising this issue because it allows me the opportunity to state clearly before the Committee that, in the view of the Government, the article was inaccurate and fundamentally misunderstands the provisions in the Bill.

The Bill does not change the existing law on flag flying from government buildings in Northern Ireland. As I have said many times before, it faithfully delivers on the legislative commitments in New Decade, New Approach. Noble Lords will be aware that the existing flag regulations provide for the union flag, as the national flag of Northern Ireland, to be flown from Northern Ireland government buildings and courthouses on certain occasions, as well as the Royal Standard or the national flag of a visiting head of state. For police buildings, different regulations provide that the PSNI flag and, on certain occasions, the Royal Standard are the only flags that may be flown. In both cases, the law otherwise prohibits the flying of flags. That will remain the case. No provision will be made by this Bill in respect of flying another flag alongside the union flag. I should point out that a number of court judgments over the years have upheld the present law on the flying of the union flag.

The noble Baroness, Lady Hoey, referred—as did the article over the weekend—to a speech made by Mr Gerry Adams in 1998. I assure the noble Baroness that, to the best of my knowledge, Mr Adams does not direct UK government policy when it comes to the flying of flags in Northern Ireland, or any other part of the United Kingdom for that matter.

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Moved by

[Baroness Goudie]

13: Clause 2, page 5, leave out lines 21 to 23
Member's explanatory statement
This amendment would remove the requirement that Best Practice Irish Language Standards produced by the Irish Language Commissioner be subject to the approval of the First and deputy First Ministers.

[Baroness Goudie (Lab)]

My Lords, I am moving this amendment on behalf of my noble friend Lady Ritchie. Briefly, we put these amendments down to ensure that, if the Assembly is not sitting or if there is a problem, the Secretary of State can continue what needs to be done both at the time and in the long term into the future.

[Lord Caine (Con)]

I am very grateful to the noble Baroness, Lady Goudie, for speaking to these amendments on behalf of the noble Baroness, Lady Ritchie of Downpatrick, which I will address with Amendment 15 in the names of the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie.

Amendments 13 and 16 would remove the obligation on the First Minister and Deputy First Minister to approve best practice Irish language standards produced by the Irish language commissioner. New Decade, New Approach—I must keep referring back to this document, I am afraid—sets out a series of clear safeguards for the First Minister and Deputy First Minister on the bodies established by the Bill, including for the approval of best practice standards. I assure the noble Baroness that these safeguards were a critical part of securing what I referred to earlier as the balanced package of measures in New Decade, New Approach. Without them, we would probably not have reached an agreement. The Government are faithfully putting these safeguards into effect in the legislation, including through the provision on the approval of the Irish language best practice standards. To remove those safeguards would undermine the balanced nature of the measures. I therefore cannot accept the amendments.

Amendment 15 in the names of the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, also seeks to amend Clause 2 so that the First Minister and Deputy First Minister would be obligated to take regard of advice provided by the Irish language commissioner in relation to best practice standards. I am somewhat inferring that this is to introduce a safeguard whereby the First Minister or Deputy First Minister could not simply ignore the advice of the Irish language commissioner if they were to disagree with it. We very much hope that future First and Deputy First Ministers would take a pragmatic approach to approving best practice standards. This would logically include taking the views of the commissioner into account, and in all honesty I struggle to see a situation in which that would not be the case. I therefore urge the noble Baroness not to press her amendment.

I am conscious that there were amendments in this group in the name of the noble Baroness, Lady Hoey. As the Chair has indicated, she is not in a position to speak to them.

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[Baroness Goudie (Lab)]

I thank the Minister and beg leave to withdraw my amendment.

Amendment 13 withdrawn.

Identity and Language (Northern Ireland) Bill [HL]

Baroness Goudie Excerpts

Report stage
Wednesday 6th July 2022 Lords Chamber

In that vein, I would very much like it if the Minister could indicate his acceptance of these amendments today or, following a period of reflection, ensure that those amendments are brought forward by his ministerial colleague in Committee in the Commons, with an indication that this would be done on Second Reading. Therefore, adherence to NDNA commitments and protection of the Irish language and Ulster Scots would be provided. I beg to move Amendment 25.

[Baroness Goudie (Lab)]

My Lords, I support my noble friend Lady Ritchie’s amendments. Furthermore, I ask the Minister to consider that committees and other organisations around the strategy should have equal numbers of men and women, and of various religions and others, so that this truly bears out the Good Friday agreement and the Bill. This would be a great move, and I know the Minister could see to this. Perhaps it could also be debated fully in the other House. I raised this on Second Reading.

[Lord Dodds of Duncairn (DUP)]

My Lords, I speak in support of Amendments 28, 29 and 36 in the names of the noble Lords, Lord Morrow and Lord Empey, but I will first deal with Amendment 25 in the name of the noble Baroness, Lady Ritchie.

I understand where the noble Baroness is coming from with this amendment, which we also discussed in Committee. Part of the reason for it is to allow decisions to be made if there is no Northern Ireland Executive in place, but from my reading of it—I stand to be corrected—if it were to be agreed, these powers to act after 30 days would apply whether there were a Northern Ireland Executive or not. In other words, even if the Assembly and the Executive are in place but a period of 30 days elapses between the trigger point and a decision being made, it is open to the Secretary of State to intervene. That seems a quite draconian suggestion. I have been in the Northern Ireland Executive, like the noble Baroness and others, and many decisions take longer than 30 days, for all sorts of good reasons and considerations of all sorts of circumstances. It seems an amazing proposition that the Secretary of State would be compelled to act if the Office of the First Minister and Deputy First Minister could not agree something within 30 days. I can think of nothing more designed to undermine the principle of devolution than that. From my reading of the amendment, it clearly would apply not just to the circumstances where there was no Executive but even if the Executive were in place.

The other thing I point out is that the amendment would apply only to the appointment of the Irish language commissioner, so there is no compulsion for the Secretary of State to act if there is a failure to appoint the Ulster Scots/Ulster-British commissioner. It seems one-sided in that approach. Nor indeed would it apply to appointments relating to the office of identity and cultural expression. It seems to be very much overstepping the mark. It would not fulfil the purposes it purports to and would create a one-sided approach in relation to appointments. For those reasons, I trust that the Government will maintain their position from Committee and not support the amendment.

Amendments 28, 29 and 36 in the names of my noble friend Lord Morrow and the noble Lord, Lord Empey, would remove the override powers from the Bill. In his opening remarks, the noble Lord, Lord Murphy, made the very important point that the Bill is designed to stick as closely as possible to the NDNA agreement. That is what we are about. On a number of occasions, the Minister cited in support of his arguments in knocking down some amendments that we must reflect the NDNA agreement and that those provisions were not in it. It is certainly not in the NDNA agreement that the Secretary of State for Northern Ireland would be given override powers, as the Minister admitted in Committee.

If it had been suggested that this would be part of the agreement, I do not think there would have been an agreement. If we had set up a series of checks and balances, and requirements for the First Minister and Deputy First Minister to agree, and then said, “If they can’t agree, don’t agree, or it appears to the Secretary of State to be appropriate then he can intervene and take on all the powers of the First Minister and Deputy First Minister in this respect”, which is a devolved matter, there would not have been an agreement. It so undermines the NDNA agreement and devolution itself that I find it hard to see how the Minister can justify it. He cannot do so on the basis that it is a faithful replication of the agreement, or on the grounds that it faithfully adheres to the devolution arrangements throughout the United Kingdom. It is clearly in breach of the Sewel convention and it acts as a clear disincentive to find agreement.

This is one of the many areas where the First and Deputy First Minister—and, indeed, the Executive—are required to reach agreement without the fallback that if they do not then the Secretary of State will intervene. That forces agreement to be made in the vast bulk of cases. If it is clear to some people that the Secretary of State will intervene if they simply dig in their heels and do not agree, then that is likely what will happen. I think this is a very misconceived part of the Bill. I understand that the argument may well be that it is a difficult area and we need contingency powers, as the Minister set out in Committee, but, again, contingency powers to avoid this problem arising were not part of the NDNA.

I come back to the basic principle. This Bill is about implementing that agreement. We are all agreed on that. These clauses were not part of the agreement. They are unilateral actions on the part of the Government to reserve unto themselves powers to override the Executive. We have seen this in a number of areas recently and I have raised with the Secretary of State and with others within government that we are going down a very dangerous path with this selective overriding of the devolved settlement. We have seen it in relation to the abortion issue, in relation to this issue and in relation to the protocol issue, where the voting mechanism of the Assembly, which is meant to be cross-community and cross-party agreement—there has to be a majority of unionists, nationalists and an overall majority—has been set aside arbitrarily.

Where does this end? What criteria do the Government apply for where they respect devolution and where they set it aside? Can the Minister tell us what are the overall considerations as to when powers are taken by the Secretary of State to override devolution, the Belfast agreement or the NDNA agreement? Is it on a case-by-case basis? What is it? I think it raises very serious questions.

I hope that when this matter is dealt with in the other place, the Government will reconsider this approach because, as I say, it is not a faithful replication of the NDNA agreement.