Identity and Language (Northern Ireland) Bill [HL]

Lord Browne of Belmont Excerpts

Report stage
Wednesday 6th July 2022 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, I support Amendment 10 in this grouping but, first, having taken part at Second Reading I apologise for not having been able to contribute in Committee. Like the noble Baroness, Lady Ritchie, I had succumbed to the dreaded Covid—although I do not think there was any connection between us.

I am very grateful to the Ulster-Scots Agency for helping me to appreciate the importance of securing the change that Amendment 10 addresses. It proposes to replace “arts and literature” with “heritage and culture” to make the Bill reflect the provisions of NDNA, and to bring it into line with the established policy and human rights framework, in particular as it applies to the Ulster Scots community. The Minister told the House in Committee that the Government are

“sticking faithfully to what was”

agreed in NDNA. He also said:

“It was very clear in that package that the remit of the commissioner in respect of the Ulster Scots and Ulster British tradition would be matters of ‘language, arts and literature’ and not culture and heritage”.—[Official Report, 22/6/22; col. GC 86.]


I contend that this is wrong. I quote verbatim from pages 34 and 35 of NDNA:

“A further such commissioner will be appointed by the First Minister and deputy First Minister to enhance and develop the language, arts and literature associated with the Ulster Scots/Ulster British tradition in Northern Ireland … The Commissioner’s remit will include the areas of education, research, media, cultural activities and facilities and tourism initiatives … The functions of the Commissioner will be to … increase awareness and visibility of relevant services which are provided by public authorities in Northern Ireland … provide advice and guidance to public authorities, including where relevant on the effect and implementation, so far as affecting Ulster Scots, of commitments under the European Charter for Regional and Minority Languages, the European Framework Convention for the Protection of National Minorities, and the United Nations Convention on the Rights of the Child”.


Here we have a series of paragraphs, with each expanding on the last, to build an overall picture of the commissioner’s role. NDNA does not stop in the middle of the first sentence after “language, arts and literature”, as the Government would have us believe. Oddly, the vital linking sentence from NDNA, which lists five key areas in the commissioner’s remit—and, through the use of the words “will include”, makes it clear that this is not an exhaustive list—is not reflected in the Bill.

The Minister says it is “very clear” that the remit of the commissioner does not include culture, but that assertion is flatly contradicted by the NDNA document, which says that it includes “cultural activities and facilities”. The commissioner’s remit could not include cultural activities and facilities if it did not include culture. Clearly, the Government have got it wrong.

The Government have sought to use these three words, “language, arts and literature”, to limit the human rights provisions in relation to the commissioner for the Ulster Scots and Ulster-British tradition. That limitation, however, is not to be found in NDNA. There is one clear, explicit limitation on the commissioner’s power to issue guidance and it is

“so far as affecting Ulster Scots”.

As far as NDNA was concerned, anything covered by international instruments affecting the Ulster Scots community is within scope of the commissioner. The misreading of NDNA needs to be corrected and what was agreed needs to be properly reflected in the legislation. Failure to address this misunderstanding will lead to a situation where the Bill is at odds with 20 years of law and policy, not to mention the human rights framework which the Minister says this legislation is built on.

The applicable human rights framework—the scope of the Framework Convention for the Protection of National Minorities—under which the Government have just recognised the Ulster Scots community as a national minority of the United Kingdom, goes far beyond language, arts and literature. This can be seen in examples in Articles 5, 6, 15, 29 and 30.

The position of the Northern Ireland Human Rights Commission and the Minister’s expert panel, appointed by the current Northern Ireland Communities Minister, is also supported by the Ulster-Scots Agency. They all agree that the role of the commissioner needs to reflect established law and policy. To do otherwise risks excluding the commissioner from addressing issues that they should be addressing and undermines both the effectiveness of the commissioner and their standing in the eyes of the community.

The Government have stated that the function of the commissioner in respect of the human rights instruments reflects the Government’s recent recognition of Ulster Scots under the framework convention. In truth, that objective is much better reflected in the text of NDNA than it is in the text of the Bill. The text of NDNA provides space for the commissioner’s work to reflect the true breadth of the human rights instruments instead of applying a groundless, arbitrary restriction that will seriously impair the realisation of human rights. I support Amendment 10.

[Lord Caine (Con)]

My Lords, once again, I am very grateful to noble Lords for moving and speaking to their amendments, and for the spirit in which they have done so. Amendments 10 and 13 return to the question of the functions of the commissioner. At the risk of repeating myself, I respectfully disagree with noble Lords who have spoken. The Government are quite clear that the Bill is faithful to New Decade, New Approach and the relevant legislative commitments it set out.

That document was very clear that the commissioner’s functions would encompass matters of language, arts and literature. Indeed, both New Decade, New Approach and the draft legislation published alongside it, to which I referred earlier, used that precise formulation no fewer than 15 times. Paragraph 27E of New Decade, New Approach sets out that the main function of the commissioner would pertain to “language, arts and literature”. The Bill replicates this in its principal aim essentially word for word.

The reference to heritage and culture in New Decade, New Approach, on which I believe noble Lords are drawing, specifically in Amendment 10, appears in paragraph 5.12.3 of Annexe E and relates to a separate commitment for the Executive to agree to an Irish language and Ulster Scots strategy. This is already provided for in Section 28D of the Northern Ireland Act 1998, which is a clear legal duty. I hope that the Executive continue to meet their legal duty to adopt these two important strategies; however, the operation of this duty is clearly separate from the legislative commitments on which the Bill delivers. I shall speak to the amendments on this matter more fully later.

On Amendment 13, specifically, the commissioner’s role of providing advice and guidance on three international instruments was also always intended to be in relation to matters of language, arts and literature. Comparable provision was made in the draft legislation published alongside New Decade, New Approach, to which I refer again. The widening of the provision in the Bill beyond language, arts and literature, as proposed in Amendments 10 and 13 would, in the Government’s view, be inconsistent with the conclusion reached. The Government therefore cannot accept them.

I turn to Amendment 12, which seeks to make provision for the commissioner’s remit as set out in paragraph 5.15 of Annexe E to New Decade, New Approach. I understand the thrust of the noble Lord’s argument, as that paragraph specifies that the commissioner’s remit includes

“the areas of education, research, media, cultural activities and facilities and tourism initiatives.”

However, this amendment would have the effect of altering the commissioner’s functions. Those functions are separately set out in the same annexe to NDNA, in paragraph 5.16, and were also provided for in the draft Assembly legislation. I hope, however, to reassure noble Lords on this point. The Government consider that the commissioner’s functions, particularly in relation to Ulster Scots services, would also cover the remit envisaged by New Decade, New Approach. Separate provision on the commissioner’s remit therefore would not be necessary and the widening of its functions was not agreed.

Reference was made by the noble Lords, Lord Morrow and Lord Browne of Belmont, to the recommendations of the Northern Ireland Human Rights Commission in respect of these matters. The Government have consulted a wide range of bodies on the Bill, which included conversations with the Human Rights Commission. This has helped us reach a conclusion on the commissioner’s name, for example. However, we have to stay within the bounds of NDNA and it would be wrong to innovate on these commitments unilaterally. I should point out that the Assembly would be able to amend this legislation were it functioning once again, which we all hope it will be very shortly.

Amendment 14 seeks to introduce a new function for the commissioner for Ulster Scots and Ulster-British tradition to promote cultural connections between Ulster Scots in communities in Northern Ireland and those in Scotland. The noble Lord, Lord Morrow, referred to the centenary of the coming to office as Prime Minister of the Ulster Scots leader of the Conservative and Unionist Party, Andrew Bonar Law. I assure the noble Lord that, as a committed and staunch unionist myself, I am very much in sympathy with the intention behind his amendment, which highlights the importance of the connections between Northern Ireland and Scotland.

I hope to reassure the noble Lord on this point: the commissioner will be able to co-operate with other bodies, such as those elsewhere in the United Kingdom, if this were conducive to its functions within Northern Ireland. The commissioner doing so may have the effect of promoting those cultural connections between the Ulster Scots diaspora elsewhere in the United Kingdom, which is what noble Lords aspire to with this amendment. However, the functions agreed in New Decade, New Approach did not specify that a strand of the commissioner’s work would include promoting cultural connections outside Northern Ireland. Indeed, it would be outside the competence of the Northern Ireland Assembly to legislate for functions exercisable other than in regard to Northern Ireland itself, which is why such provisions were never planned in the draft Assembly legislation published alongside NDNA. I cannot accept an amendment that would broaden the work of the commissioner in the Bill beyond what was intended, although I can understand the noble Lord’s intention. I am, as I say, personally very sympathetic to what he is trying to do.

In the same vein, Amendment 30A seeks to place the Secretary of State under a legal duty to establish a dedicated fund to support projects connecting the Ulster Scots in Northern Ireland with those elsewhere in the UK. Again, such a fund was not envisaged in New Decade, New Approach and the Government cannot accept this amendment. I should add that this Government have demonstrated, on a number of occasions, their commitment to Ulster Scots through—to take one example—changing the BBC charter and framework to include support for Ulster Scots output.

Amendment 15 would also seem to be a further innovation on the position reached in New Decade, New Approach, as it seeks to widen the functions of the commissioner beyond public authorities and more broadly to “Northern Ireland society”, which again would greatly extend the scope of the commissioner beyond what was envisaged. There would be no comparable change to the functions of the Irish language commissioner, which are concerned solely with the provision of services by public authorities in Northern Ireland. The Government cannot accept amendments that would broaden the scope of the commissioner’s work in this way—in our view, it would be contrary to the position set out in New Decade, New Approach. On that basis, I urge the noble Lord to withdraw his amendment.

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Moved by

[Lord Browne of Belmont]

18: Clause 3, page 9, line 30, leave out “facilitation”
Member's explanatory statement
This amendment would extend the grounds on which an individual can submit a complaint to the Commissioner for the Ulster Scots and Ulster British traditions to cover the conduct of public authorities in relation to all the guidance issued by the Ulster Scots and Ulster British Commissioner, as is already the case with respect to all the guidance issued by the Irish Language Commissioner. It would thus help restore/achieve the parity of esteem.

[Lord Browne of Belmont (DUP)]

My Lords, in the absence of the noble Lord, Lord Empey, and with the permission of my noble friend Lord Morrow, I shall speak to Amendments 18 to 21. When these amendments were dealt with in Committee, the Minister objected that if they were accepted, they would make a change to one commissioner but not the other, as if they must be treated in exactly the same way. He stated:

“My first concern is that it would not be appropriate to amend one of the commissioner’s complaints procedures but not the other.”—[Official Report, 22/6/22; col. GC 99.]


This, however, is wholly inconsistent with what the Minister has rightly been insistent on, and in relation to which he has my full agreement; namely, that this legislation does not provide commissioners with identical functions and responsibilities but with different and equally meaningful and valuable roles for their respective communities.

The limitation of the complaints procedure to the use of the Ulster Scots language by public authorities is the consequence of the drafters losing sight of the fact that the two commissioners have different functions in order to provide something of equal value to each community. In this regard, it is useful to compare and contrast the provisions in the Bill that define the principal role of the Irish language commissioner and then that of the Ulster Scots/Ulster-British tradition commissioner. Of the former, new Section 78K(1) states:

“The principal aim of the Commissioner in exercising functions under this Part is to enhance and protect the use of the Irish language by public authorities in the provision of services to the public or a section of the public in Northern Ireland.”


Thus, it is about the use of the Irish language by public authorities.

The parallel clause defining the role of the Ulster Scots commissioner, meanwhile, does not mention the use of the language by public authorities. New Section 78R(1) states:

“The principal aim of the Commissioner in exercising functions under this Part is to enhance and develop the language, arts and literature associated with the Ulster Scots and Ulster British tradition in Northern Ireland.”


Indeed, this is underlined by the very name of the Ulster Scots/Ulster-British commissioner.

Given that Ulster British is not a language in any sense, restricting the complaints facility to the use of the Ulster Scots language transparently limits it to less than half the commissioner’s title, even while the Irish language commissioner’s function is such that the right to complain applies to the entire scope of their engagement with public authorities. As if to underline the point, not only is the use of the Ulster Scots language by public authorities not mentioned in the principal role clause but when it is mentioned later on such is its secondary importance it is only in brackets so that it is not forgotten entirely. Thus, if anyone should respond by saying that the nationalist community is subject to exactly the same constraints as the unionist community, then let us be clear: no, it is not.

The roles of the two commissioners are, as the Minister pointed out, different, and while the Irish language commissioner will make extensive demands of all public authorities in relation to the use of the Irish language, the Ulster Scots commissioner will not in relation to the use of the Ulster Scots language—hence the compensating broader cultural remit. However, to make a comparable, meaningful provision for unionists through the Ulster Scots commissioner to that afforded to nationalists through the Irish language commissioner, it is necessary to endow the former with a different set of functions to the latter. This must come with a complaints facility across the spectrum of functions required, in order for unionists to be afforded something of equal value to that which is afforded to nationalists. Not to do so is to live in denial about the fact that the two commissioners are different, servicing the needs of two different communities, with different concerns and priorities. Far from giving effect to parity of esteem, this would be to snub one community in a context when they have already been snubbed by the inexplicable decision also to weaken the Ulster Scots commissioner compared to the Irish language commissioner by denying the former the protection of the “duty to have regard” obligation dealt with in a previous grouping.

The only thing the Government could possibly do to seek to justify this arrangement would be to say that the NDNA agreement does not specify that a complaints procedure should be applied in relation to the other areas of the Ulster Scots commissioner's responsibility, but that does not provide a justification for inaction.

In the first instance, it is important to appreciate that the NDNA agreement does not say that the unionist community should not be given the right to complain about the conduct of public authorities through the Ulster Scots commissioner beyond the use of language. It is silent on the matter. In this context, we must test the silence and ask whether it makes sense that the commissioner should be provided with areas of responsibility in relation to the conduct of public authorities but no ability to respond to complaints from his or her community about the failures of public authorities in those areas, while the nationalist community is afforded the right to complain in relation to the principal functions of the Irish language commissioner. No, it does not.

In the second instance, and importantly, we have to interpret NDNA through the lens of the imperative for the parity of esteem principle. This means that if we conclude that one community cannot receive meaningful support through a narrow focus on language because of its different priorities—such that the commissioner needs to be given a different function—it would be perverse for that community to be denied the right to complain about failures of public authorities across the remit of the commissioner while making provision for such a complaints mechanism in relation to the other community.

It is one thing to snub a community by not placing a duty to have regard on public authorities with respect to its commissioner—even as such a duty is applied to the other community and its commissioner—but to also deny the former community the right to complain about the conduct of public authorities in relation to the definition of its commissioner’s principal role, even as this right is afforded the other community, is extraordinary. Moreover, when this is seen in the light of how the unionist community has been dealt with in relation to the protocol since 2019, one can perhaps begin to understand why Northern Ireland unionists feel they have become the subject of contempt.

Stepping back from this point, however—and finally coming to a conclusion—forgetting for a moment that I am a Northern Ireland unionist, I am also at a loss to understand why the Government, who surely want to make the unionist-nationalist relationship easier, should bring forward a Bill containing such a transparently antagonising provision. I most sincerely hope that the Government will reconsider and accept these amendments, which bring a modest extension of the right of unionists to complain so that it includes practices contrary to the international instrument mentioned in Clause 3. I beg to move.

[Lord Caine (Con)]

My Lords, I am grateful to the noble Lord, Lord Browne of Belmont, and I will be very brief in my remarks. As I said in Committee, New Decade, New Approach is very clear in paragraph 5.16.3 that the commissioner should be able to investigate relevant complaints about a public authority’s lack of due regard to advice provided in respect of

“facilitating the use of Ulster Scots.”

For that reason, the Bill makes provision so that complaints may be made to the commissioner concerned only in relation to “published facilitation guidance”. Neither New Decade, New Approach, nor the draft legislation accompanying it, proposed that this complaints power be made broader, as the noble Lord proposes through these amendments.

I am content that the provision in the Bill as it stands reflects the position reached in New Decade, New Approach—the agreement described by the noble Lord’s former leader Arlene Foster as a “fair and balanced” package—and the legislation prepared by the Office of the Legislative Counsel of the Northern Ireland Assembly alongside it. The noble Lord, Lord Browne, referred to himself as a Northern Ireland unionist; as a British unionist, I do not accept that we are snubbing a community in Northern Ireland. We are simply implementing New Decade, New Approach faithfully. On that basis, I urge the noble Lord to withdraw the amendment.

[Lord Browne of Belmont (DUP)]

My Lords, I thank the Minister for his reply. I believe that NDNA is a fair package, but I am not convinced that the Bill is totally fair. It is important for the Government to engage with this problem, and nothing that the Minister has said provides a compelling reason for concluding that NDNA stipulates that while the Irish-speaking community should have access to a right to complain in relation to all matters within the mandate of its commissioner, the Ulster Scots and Ulster-British tradition should be denied this right in relation to all that commissioner’s work, apart from something whose secondary importance is acknowledged by virtue of the fact that it is mentioned only in brackets. I hope that this will be debated further in the other place, and, therefore, I wish to withdraw my amendment.

Amendment 18 withdrawn.

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Moved by

[Lord Browne of Belmont]

24: Clause 5, page 11, line 17, at end insert—
“89B The Department may, subject to such conditions as it thinks fit, pay grants to any body appearing to the Department to have as an objective the encouragement or promotion of Ulster Scots in education.”Member’s explanatory statement
This amendment would give effect to the proposed duty to promote the use and understanding of Ulster Scots in education by providing an explicit power for the Department of Education to pay grants in pursuance of its obligations as is the case already in relation to the Irish Language. The wording of this amendment mirrors the existing provision in relation to the Irish Language, maintaining the parity of esteem.

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[Lord Browne of Belmont (DUP)]

My Lords, again, in the absence of the noble Lord, Lord Empey, who unfortunately has matters to deal with back home—we wish him well—and with the kind permission of my noble friend Lord Morrow, I am pleased to move Amendment 24 in their names. I intend to be brief.

Paragraph 27c of the NDNA agreement commits to legislation placing

“a legal duty on the Department of Education to encourage and facilitate the use of Ulster Scots in the education system.”

This is vital, given that we are a signatory to the European Charter for Regional or Minority Languages, Article 8 of which requires the state to make available pre-school, primary school, secondary school and university education

“in the relevant regional or minority languages; or … to make available a substantial part … in the relevant regional or minority languages”,

or at least to provide it for those families who request it.

It is also vital because Ulster Scots has now been registered with the framework convention on minority languages, Article 14 of which states that

“the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.”

Critically, the understanding of language and the national minority language commitment are located very much in terms of a history and a commitment to history in education. The framework agreement asks parties to

“take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority.”

Clause 5 of this Bill seeks to rise to aspects of this challenge. Its language reflects exactly, so far as it goes, an existing provision in the Education (Northern Ireland) Order 1998 with respect to Irish-medium education, which states:

“It shall be the duty of the Department to encourage and facilitate the development of Irish-medium education.”


Crucially, however, this intervention to assist the Ulster Scots language not only testifies to an inequality of treatment, in that it comes much later than the provision for the Irish language, but transparently does not seek to end this inequality of treatment. It fails to honour parity of esteem; the Irish language provision also gives effect to the obligation to encourage and facilitate through the possibility of the allocation of grants, whereas Clause 5 does no such thing. Specifically, the order states:

“The Department may, subject to such conditions as it thinks fit, pay grants to any body appearing to the Department to have as an objective the encouragement or promotion of Irish-medium education.”


Moreover, it is notable that this duty, in respect of Irish, followed the form of a statutory duty in respect of integrated education set out in the Education Reform (Northern Ireland) Order 1989. Again, that duty was supported by a power to make grant payments. Article 64(1) states that:

“It shall be the duty of the Department to encourage and facilitate the development of integrated education, that is to say the education together at school of Protestant and Roman Catholic pupils.”


Article 64(2) adds that the department

“may, subject to such conditions as it thinks fit, pay grants to any body appearing to the Department to have as an objective the encouragement or promotion of integrated education.”

Once again, this inequality of treatment is inexplicable and sends out the clear message that it is sufficient to generate an image of concern regarding Ulster Scots and the Ulster Scots language without providing a credible delivery mechanism comparable with that afforded the Irish language or other concerns, such as integrated education. This is of real concern to the Ulster- Scots Agency and constitutes a completely indefensible form of difference of treatment. Amendment 24 puts this right by ensuring the equal treatment for the Ulster Scots language that is vital if the principle of the parity of esteem is to be upheld.

I very much hope that the Minister can support this modest, permissive but very important amendment. I beg to move.

[Lord Murphy of Torfaen (Lab)]

My Lords, I have some sympathy with the amendment, or at least with what lies behind it. I do not see any point in pushing such an amendment to a vote, but it raises the issue. I fully support the statutory duty on the Executive in Belfast to fund Irish language education through the various means. However, bearing in mind that this Bill is new, introducing three new public offices—the office and the two commissioners—the Minister might make inquiries with the Department of Education there over the next few weeks regarding this difference of approach in terms of funding. Perhaps the meeting that he intends to have with the Ulster-Scots Agency can clear this up, but it appears to be a dichotomy.

[Lord Caine (Con)]

My Lords, I am very grateful again to the noble Lord, Lord Browne of Belmont, for his comments in moving Amendment 24. As I pointed out earlier, New Decade, New Approach and this Bill provide a new specific legal duty for Ulster Scots in relation to the education system in Northern Ireland. This will address the current lack of statutory provision for Ulster Scots within that system.

However, a specific new grant-making power, which would be the effect of Amendment 24, was, of course, not committed to in New Decade, New Approach. It would be inappropriate in this context for the UK Government to impose financial commitments beyond those set out in that document. I also recall that noble Lords in Committee raised what the duty that is already set out in the Bill, on encouraging and facilitating the use and understanding of Ulster Scots in the education system, would mean in practice. I am therefore pleased to provide a clearer view to noble Lords on what this new and important legal duty might entail. I hope that this will speak to their concerns on this matter.

The new education duty in the Bill will enable the use and understanding of Ulster Scots to become part of the framework of the education system in Northern Ireland and the Northern Ireland Department of Education will be able to do anything necessary to meet that duty. In that context, I note that the Education (Northern Ireland) Order 1998 provides for the encouragement and facilitation of Irish-medium education and the mechanism of supporting this specific type of schooling, with the grant-making powers provided to specifically support Irish-medium schools.

Noble Lords will understand that, as a UK Minister, I cannot speak on behalf of the Northern Ireland Department of Education. The department has a Minister, a member of the DUP, who will need to consider this matter too, but it would seem to me that meeting this new duty in respect of Ulster Scots would perhaps entail the commissioning of educational materials for use in schools. Steps to meet the duty could also include seeking appropriate consultancy on the facilitation of Ulster Scots in schools, or encouraging relevant organisations in providing tuition in schools. I would stress, however, that this remains a matter for the Northern Ireland Department of Education to consider.

In respect of the comments of the noble Lord, Lord Murphy, I am very happy to reflect on what he said. In that spirit, I would encourage the noble Lords to withdraw the amendment.

[Lord Browne of Belmont (DUP)]

My Lords, first I would like to thank the noble Lord, Lord Murphy, for his very useful contribution, and I hope the Minister will take up the offer to meet with the Ulster-Scots Agency, which I am sure can put its case very forcefully. I know this Bill will be going to the other House, where I am sure it will receive serious consideration, so under those circumstances I wish to withdraw the amendment.

Amendment 24 withdrawn.