Northern Ireland (Executive Formation) Bill

Lord Browne of Belmont Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Empey (UUP)]

My Lords, the proverbial visitor from outer space might have been somewhat surprised a short time ago when we were discussing the previous set of amendments about what piece of legislation we were debating. It is the Northern Ireland (Executive Formation) Bill. I was so pleased to see a packed Chamber and all these people taking such a keen interest in Northern Ireland, but they have deserted us all of a sudden. The great, the good and the not so good have gone. It just shows how fickle fortune is in the political arena.

On a more serious note, I think that there is merit in this amendment. At the end of the day, since the 2014 date, donors have known that their details might potentially be released. I accept that it would not have been fair to release the names of donors who donated before that date because they would not have known at that stage that their names might end up in the public domain. There is a perfectly solid and reasonable case for that. Subsequent to that, people have known. I therefore see no reason why 2017 was called into account when 2014 was the kick-off date for this process. That is not an unreasonable thing to suggest and therefore I am supportive of it.

I would like to make a serious point about the proceedings relating to the previous amendment. I am sure that, when we talk about Prorogation, the people on the streets of Belfast talk of little else. They will be bemused that we have been caught up in this firefight which is not strictly speaking relevant to this legislation. The noble Lord, Lord Cormack, is not in his place at the moment, but he was more than right when he called this a Christmas tree Bill last week. In fact, Christmas implies celebration and something to look forward to, so maybe that is not the right phrase for it; it is a jumble, a mess and a sorry piece of legislation, with all these things included. Then we find ourselves getting involved in a national debate on a totally different matter. Her Majesty’s Government will have to look at this. I must say to colleagues in the other place as well that I know things can be drawn too tightly, but we have gone to the other extreme with this legislation. However, I would be more than content to support the amendment tabled by the noble Lord, Lord Bruce.

[Lord Browne of Belmont (DUP)]

My Lords, I firmly believe that there should be full openness and transparency regarding donations and loans to all the political parties in Northern Ireland, just as there is in the rest of the United Kingdom. As many noble Lords will be aware, the Secretary of State sought the view of all the Northern Ireland political parties on this matter in January 2017. As I emphasised in February 2018, there was clear support for full transparency. However, only one party—the Alliance Party—took the rather unusual position that the implementation of the new rules should be backdated to January 2014.

I acknowledge that the earlier date was referred to in the Northern Ireland (Miscellaneous Provisions) Act, but in my view retrospective legislation is acceptable only in exceptional circumstances. It is not fair to reveal the identities of those who made donations assuming that the law at the time would always apply. It is strange that the noble Lord, Lord Bruce, is intent on reopening issues that have been fully considered in the House and elsewhere, rather than concentrating on providing an effective framework for the future. The treatment of foreign donations to Northern Ireland political parties, for example, is an important and unresolved issue. The Electoral Commission is in full receipt of all the facts regarding donations before 2014, so although I support full transparency, I believe that the date of 2014 is a fair way to treat this.

[Lord Murphy of Torfaen]

There is something which is right about the amendments tabled by the noble Lord, Lord Bruce: the whole of the United Kingdom should have similar regulations regarding transparency of donations and loans. The Committee will be aware that for decades this was virtually impossible in Northern Ireland, because people would be intimidated and worse if their donations to various political parties were made public and they were identified as possible targets. That was an obvious reason why the law in Northern Ireland was not the same as it was in the rest of the United Kingdom. Happily, the world has changed. There should be regulations which are common to all parts of our country.

There is an issue about people who were unaware when they gave donations that their names would be revealed; would they have given them if they had known that? We must take this into account, but we must not allow Northern Ireland to be used as a back-door conduit for donations simply because the law and regulations in Northern Ireland are different from those in the rest of the United Kingdom.

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If the Government choose to respond by further violating constitutional due process, casting aside the Sewel convention, we will be looking at a constitutional crisis the likes of which we have not seen in a very long time indeed. In a constitutional democracy such as our own, the end never, ever justifies the means. I say, finally—it is important—that ends, no matter how noble you might deem them to be, are always sullied in a manner that darkens the pretensions of any polity to be constitutional, if they are secured by means that are anything but. The Attorney-General of Northern Ireland has indicated that there are no legal reasons why the matters that this Bill properly seeks to address should not be so addressed in September. So my counsel to the Government is to pull this Bill, at least for now. Failing that, they must delete Clause 9.

[Lord Browne of Belmont]

My Lords, I support the amendment of my noble friend Lord Morrow. As a former Member of the Northern Ireland Assembly, I do not believe it can be said enough in this place that, in 2016, the Northern Ireland Assembly considered the matter of abortion. It did not just have a general debate. It voted on primary legislative amendments to our abortion law and determined not to change the law in any way at that time.

I believe that the last time Westminster voted on primary legislative changes to a real Bill, as opposed to a 10-minute rule Bill, was back in 2008. This means that Northern Ireland has the law with the most recent democratic sanction of anywhere in the United Kingdom. In that context, it simply cannot be right for Great Britain MPs to overrule every Northern Ireland MP.

The only justification that I have heard is human rights—but there are two problems with that approach. First, there is a supposition that access to abortion services is a human right. In the other place, the mover of the amendment, the honourable Member for Walthamstow, said,

“There is a specific definition of human rights”,—[Official Report, Commons, 8/7/19; col. 106.]


implying that there is universal agreement on what human rights mean. I support honourable Members in that debate who rightly said that there is no international right to abortion. The noble Lord, Lord Alton, made the point last week that the right to an abortion is not included in the Universal Declaration of Human Rights. There is no right to abortion under the United Nations Convention on the Elimination of All Forms of Discrimination against Women—CEDAW—which is the locus of the authority cited by Clause 9.

The second supposition is that a determination by a UN committee is binding on a member state in a way that a declaration by the UK Supreme Court of incompatibility with the European Convention on Human Rights would not be. The latter can make a ruling on incompatibility with human rights in any given situation, but it is for Parliament to decide whether it wishes to act on that ruling. As the Supreme Court has said, Parliament can decide to do nothing about the court’s ruling. None the less, we are being advised that we must change the law, and change it now, in a way that is manifestly undemocratic.

[Lord Bruce of Bennachie]

Does the noble Lord not acknowledge that the Supreme Court has already indicated that it believes that the law in Northern Ireland is not consistent with human rights, which evolve? There is a judgment pending from the Supreme Court that could put the law in breach of the European Convention on Human Rights. The United Kingdom is a signatory to that convention. Does that not give the United Kingdom Government and Parliament an obligation to legislate on the law in Northern Ireland?

[Lord Browne of Belmont]

I thank the noble Lord for his intervention, but I understand that that was on a very narrow case of fatal foetal abnormality. I will address that matter shortly, which should answer his question.

The chief commissioner of the Northern Ireland Human Rights Commission recognised that the recommendations were non-binding in oral evidence to the Women and Equalities Select Committee in the other place when it was reviewing the law in Northern Ireland. Professor Mark Hill QC wrote an opinion about the CEDAW report, in which he stated:

“The Committee does not have the capacity or standing to give a binding adjudication on the United Kingdom’s obligations under CEDAW or on the proper interpretation of CEDAW”,


made the point that the International Court of Justice had not interpreted CEDAW as providing a right to abortion, and said:

“The interpretative function under the CEDAW is reserved, not to the Committee, but to the International Court of Justice.”


If this is not enough to convince your Lordships that the authority being given to this Committee is flawed, I shall quote from a Supreme Court judgment —R (A and B) v Secretary of State for Health—in which Lord Justice Wilson said:

“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”.


Here we come to the case that the noble Lord, Lord Bruce, referred to. The judgment in that case stated:

“If the Supreme Court rules in the case of Sarah Ewart that there is a right in relation to fatal fetal abnormality, then that would create a very strong case for a small but important change to the law. It would not, however, create anything resembling a general right to abortion”.


Indeed, the basis for thinking that the court might support a right in relation to fatal foetal abnormality is what was said in relation to a case last year, in which the plaintiff did not have standing, so no rule was made. The court also gave another indication, to the effect that there is no human right to abortion on the basis of disability generally—something permitted in Great Britain.

Secondly, the medium of human rights is normally expressed as a check on the majority expressed through constitutional due process. This is highly ironic, given that the only reason we are here is the complete disregard of constitutional due process manifested last week in the other place, where we saw: dispensing with scope; debate being permitted in relation to out-of-scope issues that should have been the subject of their own Bill, even though the Bill before the House was being fast-tracked; and the imposition of a change on the part of the UK with the smallest population, and thus the smallest number of MPs, by MPs from outside Northern Ireland

The ethic that the end justifies the means is the kind of thing that constitutional checks are supposed to guard against, not encourage. If the proponents of Clause 9 press their case on the basis of the end justifying the means, as at present, that will cast a great shadow over the integrity of their human rights pretensions. If we want to live in a functioning union, by all means let us talk about human rights, but do not use them wrongly to suggest that there is a general right to abortion when no such right exists, and do not use them to dispense with the respect for constitutional due process, the presence of which can facilitate a functioning union, whereas disrespect for it will bring about its demise.

[Lord Judge (CB)]

My Lords, I wonder whether I may be allowed two minutes to look at the provision that we are considering, which is Clause 3(6). What is proposed is,

“a review of the current legal framework on abortion in Northern Ireland with an analysis of how that … could be amended by Parliament … when there is no Executive”,

followed by these very important words, which I have not heard this afternoon,

“subject to a sunset clause to respect devolution”.

I read that to mean that whatever we may do, when there is an Assembly in Northern Ireland, it will be up to the Assembly to decide what the law should be in that country. It may revert to the law as it is now—but we hope that it will not.

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[Baroness Smith of Basildon]

I support the right reverend Prelates on this issue. This is one of those issues where if the Government were to take some action it might get support from the Assembly—very moderate action is proposed in the amendment. Anyone who has seen late-night or daytime TV will have seen adverts for gambling, aimed particularly at women in many cases, that encourage viewers to roll their winnings and depict all the glorious things that will happen to those who gamble. If there is a gap in legislation or enforcement in Northern Ireland—and I had not realised the extent of the differences until they were explained to us tonight—it is clearly a serious problem and I hope that the Minister will be able to respond positively.

[Lord Browne of Belmont]

My Lords, I fully support all that has been said about the problem of gambling in Northern Ireland. Northern Ireland has the highest proportion of problem gamblers. I know of one sad case where this has led to suicide. It also leads to the breaking-up of families and marriages and loss of homes. A report on this matter would be extremely useful, but to be consistent with the arguments already made, I have to say that, at the end of the day, legislation should be reserved for the Northern Ireland Assembly.

[Viscount Younger of Leckie]

My Lords, the right reverend Prelate the Bishop of Newcastle, on behalf of the right reverend Prelate the Bishop of St Albans, is quite right to raise the outdated gambling laws in Northern Ireland and I thank her for her remarks.

These laws are complex, but in Northern Ireland they have not kept pace with emerging technologies such as electronic and online gambling. Such technologies have made it much easier for people to gamble, including from inside their own homes, thus changing the entire gambling landscape.

The gambling laws in Northern Ireland date back to 1985 and are modelled on a much older Great Britain law which was repealed and replaced by the Gambling Act 2005. A few aspects of the 2005 Act have been extended to Northern Ireland. In particular, if a remote gambling operator does not hold the remote gambling licence from the Gambling Commission that it would need to be permitted to advertise in Great Britain it cannot advertise in Northern Ireland either.

Although the legislation has not kept pace, I am pleased that businesses have in some instances led the way in taking steps in line with the more updated GB regulations and applied them across the whole UK, including in Northern Ireland. For example, GVC, which owns Ladbrokes Coral, has voluntarily reduced fixed-odds betting terminal stakes in all its UK operations from £100 to £2 in line with GB regulations. I understand that other NI bookmakers have committed to this voluntary reduction. Any such actions to improve social responsibility by NI operators is to be welcomed.

As the right reverend Prelate will be aware, gambling is a devolved matter in Northern Ireland. The reform of this legislation should be for a restored Executive and Ministers to consider, informed by the results of that review. I am pleased to say that I am content to accept the amendment and to commit to reporting on progress, but I repeat that this is a devolved matter and thus the depth and detail of such a report will not be something over which I have control.