Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Alderdice Excerpts

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

[Lord Alderdice (LD)]

My Lords, other noble Lords have already commented on the fact that, yet again, we have fast-track legislation in respect of Northern Ireland. In no way, however, could this be described an emergency situation. Time after time I have advised the Government in this House from these Benches that the Secretary of State was operating ultra vires and that civil servants could not take the decisions that needed to be taken. The last time was in the debate on the Budget on 18 July. It is not just regrettable: it is becoming a really bad habit to keep bringing forward fast-track legislation when the problems have been known well in advance. It is almost as though the Government do not seriously want to discuss and debate these matters in detail, because there is no other excuse for what is being done.

Having said that, I am, of course, glad to see that the positions of the Secretary of State and the civil servants are being regularised in respect of departmental functions and appointments. However, that addresses only the legal problem and in the short term. It does not address the political problem, which is the reason for us being in this difficult situation. Noble Lords on the other side have described the responsibility that Sinn Féin bears for being in this situation, but it is not only a question of Sinn Féin.

Let us reflect on the fact that Martin McGuinness, who played a very valuable and constructive role with Dr Ian Paisley—Lord Bannside—resigned over the question of the First Minister’s handling of the RHI debacle. As time has gone on, whatever responsibility some members of Sinn Féin and Sinn Féin Ministers may have, it is absolutely clear that what was happening under the aegis of the First Minister, Arlene Foster, was utterly unacceptable and reprehensible. The report that is going to come out will be devastatingly bad, and so it should be. What is worse is that Arlene Foster had the experience of stepping in for Peter Robinson when he, as First Minister, stepped back from his role briefly but very appropriately on a matter of much less public expenditure import. She could have done the same, and we might well have not had the suspension of the Assembly.

On the question of whether we need a mediator, the parties were perfectly capable of getting together and coming to an agreement. The problem was that Mrs Foster was clearly not able to deliver that agreement when it went back to her own party. There is no evidence that getting an agreement through a mediator or otherwise is actually going to deliver, because it is not only one party that is a problem here: it is two parties. That is why, in addition to saying to the Government, “You have a legal problem with the Secretary of State and possibly civil servants operating ultra vires,” we need to say, “You have a political problem and you need to address that by an election”. All this Bill does from that point of view is postpone the date of that election, because it would not be acceptable to go to any form of direct rule at any stage without an election. All we are doing is postponing it.

I accept that November, December and January are not very good months for an election. I also accept that we might be preoccupied with other things by the time February and March come round, so I understand the provisions, but this is not the first time that the warning has come. This is not the first time I have asked for an election. Will the Minister, in his response, indicate why it has not been possible to have an election during any of the period of time when the election should have been held?

We may well come to the situation that the noble Lord, Lord Adonis, has mentioned: we go through this period, there is still no agreement; we have an election, there is still no agreement. What happens then? The point that the noble Lord, Lord Adonis, needs to pay attention to is that we do not simply return to Westminster sovereignty. Why? Because we have an internationally binding treaty with the Republic of Ireland. That means that if there were to be any change or any development, it would have to be in discussions with the Irish Government. I think it unlikely that they are going to agree to a simple matter of direct rule. I think it much more likely that you would move to a form of direct rule in which there would be some clear acknowledgement of input from the Irish Government. That has been the trajectory for the last 25 or 30 years and I think it is the much more likely way out of this problem if the Northern Ireland political parties are not able to find a way of moving. That is the trajectory: this makes it a transition rather than a settlement. Much more could be said about that and I trust that we will be able to do so when we have the opportunity of a wider debate.

On Clause 4, the noble Lord, Lord Trimble, has pointed out, I think correctly, that much could be done by way of guidance under the current legal system. I well recall, as a young psychiatrist, having to do assessments on women needing abortions for reasons of their mental health, but that was tightened once people said, “We need some kind of guidance”. It would be entirely possible, legal and appropriate for the Secretary of State to look at the guidance that is being issued on the current law. But there is another matter that could be dealt with entirely legally, and I ask the Minister to respond to this if possible, if not this evening then at another time. What is to stop the Secretary of State, on these two issues that have been referred to, putting proposals forward for referendums, so that we would not be dependent on particular political parties in hock to minorities, or on opinion polls? We could ask the people of Northern Ireland whether they want to make a change to the abortion law or the law on gay marriage. That would not be undermining devolution but saying that, if elected representatives do not put themselves in a position to fulfil devolution, we do not ignore the people of Northern Ireland, nor human rights law, but we ask them to give their view. Is there anything to stop the Secretary of State making a recommendation that there should be referendums—non-binding, but nevertheless advisory referendums?

These are two issues on which there is deep disagreement between Sinn Féin and the DUP regarding the resumption of devolution. Therefore, it is actually important that they be addressed, whether by ourselves, the people of Northern Ireland, or otherwise. We are all preoccupied with Brexit now but I tell the House that, one way or another, elected representatives in Northern Ireland must get the matter resolved within a short period after Brexit. I know that Sinn Féin is keen to see itself in government in the south more than in the north, but when the noble Lord, Lord Trimble, asked what can be done that would induce Sinn Féin back into devolution, I can see a situation very clearly. If the minority Government in the south were to fall, if there were to be an election and Sinn Féin found itself in coalition Government in the south, which is entirely possible, despite what is said by the leaders of Fianna Fáil and Fine Gael, I can guarantee that you will have devolution at the drop of a hat, because Sinn Féin would very much like to be in government on both sides of the border at the same time.

This is still a moving picture. It may seem that watching politics in Northern Ireland is like watching paint dry, but eventually paint does dry, and we will come back to this issue again.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Alderdice Excerpts

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

[Lord Alderdice (LD)]

My Lords, I have listened carefully to what colleagues from Northern Ireland said. I am no particularly strong supporter of the Government but it seems that, in a way, this debate demonstrates a kind of learned helplessness, not just of politicians in Northern Ireland but of the Civil Service. If there is a problem, it is someone else’s responsibility—such as the Government’s—to sort it out. The Bill is clearly handing power back to civil servants in Northern Ireland and saying, “You’re covered for making any kind of reasonable decision; that’s not a legal problem now. And by the way, if the politicians in Northern Ireland would get their act together and go back, that would rather help things as well”.

What I am hearing is people trying to pass it back and say, “Come and sort the whole thing out but, by the way, we know that that will disrupt all kinds of agreements we have reached—the Good Friday agreement and so on”. I say to colleagues, in fairness, what the Government are trying to do is to give people the legal cover to do what is necessary. That includes senior civil servants in Northern Ireland, who have not covered themselves in glory over the RHI scheme or anything else. This is a chance for them to take responsibility and actually do the governing work that they need to do, and that we all need them to do. To that extent, I hope we can move on with some acceptance of what the Government are trying to do, albeit that it is not as satisfactory as we would all like it to be.

[Lord Empey]

My Lords, I know the noble Lord, Lord Hay, mentioned education—we could all mention that—but there is a qualitative difference between something affecting life and something affecting bad administration. I need to read Hansard—I am not particularly clear on what the Minister means by his decisions—but I will read it. I assure him that if things continue to deteriorate in that area as they have been, I will certainly be holding his feet to the fire. There will be other opportunities; I am not going to let this drop. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness O’Loan]

My Lords, I put my name to Amendment 16. I should like to speak to it and, briefly, to Amendments 10 and 11.

I have no doubt that the ultimate purpose of Clause 4 and Amendments 10 and 11 is to change Northern Ireland and United Kingdom law by decriminalising abortion. This would mean that abortion would cease to be illegal in all circumstances. That means that any baby, at any stage of gestation, right up to birth, could be aborted. No human right exists to do that. I think noble Lords would wish to accept that that, at least, is true. There is no human right to abort babies as described. To decriminalise abortion would be, to my mind, the act of an uncivilised society.

We do not have any declaration of incompatibility. If we had such a declaration, it would not change primary legislation, nor would it create an imperative for changing primary legislation. The law is provided for in Section 4 of the Human Rights Act, which says:

“A declaration … does not affect the validity, continuing operation or enforcement of”,


any provision, and,

“is not binding on the parties”,

to the action. The effect of a declaration of incompatibility, which we do not have, would be not to change the law, but to ask the Northern Ireland Assembly to think about changing the law. Having considered a declaration of incompatibility, were one to exist, the Government would have the option to do nothing. The noble and learned Baroness, Lady Hale, in her Supreme Court judgment, said that Strasbourg would have regarded doing nothing,

“as within the UK’s margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day”.


The Secretary of State is the representative of the UK Executive. She is not the Northern Ireland legislature for any purpose of considering a change in the law. It is not for the Secretary of State to assume the role of the Northern Ireland Assembly to change primary legislation—nor has she indicated any wish to do so—or to issue new guidance pursuant to primary legislation.

Since health and justice are devolved matters, since this Bill does not change the law on abortion in Northern Ireland, and since the courts have no power to change the law in this respect in Northern Ireland and have not done so, the law stands. Since the matters referred to in Clause 4 and Amendments 10 and 11 are matters of law in Northern Ireland, and since only the legislature in Northern Ireland may make law in respect of those matters, it must surely be illogical to ask the Secretary of State to issue guidance, which would be incompatible with that law.

I have nothing more to say on the matter, other than that we need to think very carefully, and that Amendments 10 and 11, as the noble and learned Lord, Lord Mackay, says, direct the Secretary of State to do something that would be unlawful.

[Lord Alderdice]

My Lords, it may have come to your Lordships’ attention that anybody from this side of the water telling Northern Ireland politicians what to do is likely to bring about exactly the opposite result to the one they want. What is much more likely to affect Northern Ireland politicians is when their own people start to say things to them. On issues such as abortion and divorce, it is very clear that on the island of Ireland the views of the population have changed quite dramatically in a relatively short period. That is why I do not depend on opinion polls, which are notoriously unreliable in all sorts of ways, as has already been pointed out, depending on what questions you ask, in what kind of way, of what group of people at what particular stage. That is why at Second Reading I asked the Minister whether he might give consideration, at an appropriate time, to whether it would be in order under the terms of the Bill, as it has come to us from the other place, for the Secretary of State to consider recommending referendums on these two issues to be carried out with the people of Northern Ireland.

If the people of Northern Ireland said to their elected representatives, “Actually, we have a different view from the one you think we have and things have changed a lot for us in the last little while”, that would be a much more appropriate and effective way of making change, although if the people of Northern Ireland take a different view from that which might be expected, that is an important issue that must also be respected. It is not reasonable or acceptable to say that something is a devolved matter but if you do not make the decision that the people in London like we will stop it being a devolved matter. That is not a very human rights-based approach to things. But I believe that dramatic changes are taking place in the views of the people of Northern Ireland on many issues and the only way for us to become clear about that is to put it to the people in a clear fashion. I wonder whether the Minister might be able to help us on this, either tonight or in the relatively near future.

[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?

--- Later in debate ---

[Lord Trimble]

My Lords, I welcome the opportunity to stand after sitting for so long. Amendment 13B, in my name, is grouped with two amendments in the name of the noble Lord, Lord Adonis, but I see no overlap between the two. The noble Lord’s amendments relate to the early stages of the process, when the Secretary of State has to formulate and issue guidance, whereas I look beyond that to what the operation might be.

From the point when the Assembly collapsed, I turned my mind to ways in which we might get it going again or find some way of substituting, or other ways of carrying out what Northern Ireland needs. I still feel that the suggestion of the Welsh model was quite good, but it became clear that it was far too much for the Northern Ireland Office to digest and that my rather ambitious proposals would not get anywhere. I have therefore gone to the other extreme and drafted something as short and simple as can be, but which would give the opportunity for a significant step forward.

The amendment takes off from the provisions in the Bill whereby senior officials in the Northern Ireland Administration can exercise, if they think it is in the public interest, the powers that they have under the legislation, which goes right back to the 1920 Act. I took that and added to it a proposal that the Secretary of State may, where she or he is satisfied that it is in the public interest, summon the Northern Ireland Assembly to debate the issues that they have in mind. This is entirely discretionary on the part of the Secretary of State. It does not compel her to take any particular action but gives her the opportunity to bring the Northern Ireland Assembly together to discuss how the powers referred to in this legislation are carried out. That would be beneficial to the Northern Ireland Office and to the Government. They would then have the opportunity to discuss what they are doing, or to see other people discussing what they are doing at some length and, I hope, with some degree of careful examination of the matter. This would improve the quality of what has been done and, as I say, would give the opportunity to move in that way. I will not go into this in detail, but a serious debate by the elected representatives is bound to add something to the quality of the Administration and is worth having.

There is also a political aspect to this, because if we had this implemented—again, it is entirely at the discretion of the Secretary of State; I am not saying that she must do this, and it could be that it is not operated—by bringing the Northern Ireland Assembly together, we would be taking a concrete step towards it coming back as it should. It adds something to the discussions that the Government may be having in trying to persuade the parties to sort out their differences and then return to the Administration. By having it in operation, even if only for a few hours on particular issues, we would make it clear that it is possible that the Assembly can work again, and will work again. Having got that initial first step, it will be easier, I hope, to take other steps beyond that.

This is a very modest amendment and I shall not press it to a vote. It is purely discretionary; nobody is obliged to do anything with regard to it. I shall not spin out the discussion any further. I think the best thing I can do for the House tonight is to sit down and let things take their course. I beg to move.

[Lord Alderdice]

My Lords, there is one reason why I would support the amendment that the noble Lord, Lord Trimble, has put forward: from the beginning, the element of the Northern Ireland institutions that worked rather well was the Assembly itself. When it came to the Executive functioning, that was much more contentious and difficult, but the Assembly functioned rather well. The idea of finding ways in which the Assembly could start to meet again, to debate issues of some substance that would increase, to some extent, the accountability of the Government side—be it civil servants or others—is a good one. To simply bring the Assembly back together for one occasion to debate a contentious issue would potentially be damaging because the old splits would re-emerge. To come together on a number of occasions to debate issues that are not necessarily of high contention but are nevertheless important seems to me a good idea. Whether one follows the very specific proposal in this amendment, or some of the other ideas that the creative mind of the noble Lord, Lord Trimble, has produced over the last little while, the principle is important and merits exploration by the Government. To that extent, I support the amendment.

[Lord Adonis]

My Lords, I have Amendments 14 and 15 in this group. I think the noble Lord, Lord Trimble, undersold his own amendment. It seems to me that he was raising a very important principle: it should be possible for the Assembly to meet in the absence of an Executive. As somebody who looks at this from outside, it has always seemed strange to me that, because of the architecture of the Good Friday agreement, the Assembly cannot meet if it has not sustained an Executive. I do not know whether the noble Lord can tell me if it legally cannot meet. It certainly has not met in the absence of the Executive. It seems, in terms of seeking to engage the elected representatives of Northern Ireland, and encouraging them to create a context in which an Executive can be formed, what the noble Lord has proposed is extremely constructive. The Minister will be able to tell us whether legally it is possible to proceed in the way the noble Lord, Lord Trimble, has proposed. My amendments facilitate a meeting of the Assembly for the specific purpose of discussing Brexit, given that that is one of—not the only, but one of—the most important decisions that will be taken affecting Northern Ireland over the next six months. It seems highly detrimental to the people of Northern Ireland that their voice is not being taken account of in any formal way, apart from the impact that they are able to have through their elected representatives in the House of Commons. If it were possible to bring the Assembly together for the purpose of discussing Brexit in the absence of Ministers, I cannot see any good reason why that should not happen.

I understand the point that the noble Lord, Lord Alderdice, has made, which is that summoning the Assembly purely for the purpose of discussing one issue—a contentious issue—may not be the best way of proceeding. Enabling the Assembly to meet to discuss a wider range of issues and issues of immediate local concern, including many that were raised at Second Reading, such as infrastructure, public services and so on in Northern Ireland, could help to inform the decisions that officials take. That would seem to be an eminently sensible way forward, and it appears to be what the noble Lord, Lord Trimble, has in mind. However, if it were legally possible for the Assembly to meet in the absence of Ministers, I would have thought that that would be an excellent way of proceeding, and my amendments would simply include Brexit among the issues that should be discussed by any such meetings of the Assembly.