Identity and Language (Northern Ireland) Bill [HL]

Lord Caine Excerpts

Report stage
Wednesday 6th July 2022 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, first, I apologise for my non-participation at Second Reading, due to the fact that I was at Queen’s University on that day receiving an honorary professorship, and in Committee because I had Covid. However, I watched that stage from the comfort of my bedroom and found that some very interesting points were made on that day. I support and endorse the comments made by my noble friend Lord Murphy and those of the noble Baroness, Lady Suttie.

The Bill would have been much better dealt with in the Northern Ireland Assembly by its Members. Obviously, however, there is a necessity for the UK Government, via the Northern Ireland Office, to bring forward this legislation in Parliament because it could not seem, regrettably, to be progressed through the Northern Ireland Assembly. I support the clauses and central purpose of the Bill: to deliver on large aspects of the New Decade, New Approach agreement, which was the basis of an agreement between the five main parties in Northern Ireland, resulting in the formation of the Executive, the Assembly and other institutions in early January 2020. I support the Bill and want to see it implemented, subject, obviously, to the amendments in my name and that of my noble friend Lord Murphy, and the noble Baroness, Lady Suttie, along with others that I have tabled in respect of powers to do with the Secretary of State.

I believe in and support the Irish language. I did Irish at school up to GCSE/O-level and then attended, on two separate occasions, the Gaeltacht in north-west Donegal. You were expected to speak Irish in the house you were allocated there and in the school—the Irish College. I am also a firm believer that place names in Ireland, both north and south, and many words in Irish inform and teach us about her heritage, our unique geographical landscape and our environment. In fact, many of our towns on the island, north and south, have Anglicised versions of the old Irish names. That is not by way of a political point; it is simply a historical fact of heritage.

I also support the provisions for Ulster Scots as a linguistic grouping that transcends traditions in Northern Ireland. In many ways, perhaps it should not be conflated with identity, but I understand the pressing amendments in that respect. My name is from the lowland Scots, so I represent the Gael and the Planter, which I do not see as an offensive personal identification mechanism. Like the Ulster poet John Hewitt, I see that as a means of identification because it represents the richness and beauty of diversity and challenges us all on that necessary path to reconciliation.

To revert to the amendments on public authorities, I am very much in agreement with my colleagues who have just spoken. I suppose part of the reasoning behind the original drafting was that the Bill was meant to be dealt with by the Northern Ireland Assembly and Executive, hence there was no reference to the Northern Ireland Office and the Human Rights Commission, which has direct responsibility and derives that authority from the Northern Ireland Office.

I make a special plea to the Minister, because we are dealing with this in the UK Parliament, to give due consideration to and accept these amendments. I also suggest, if that is not possible today, that he goes back to his ministerial colleagues in the NIO to see what may be possible and considered acceptable through the passage from this House to the other place, and in so doing that have a period of reflection. I know that these issues were also discussed in Committee because other areas are not included, such as the UK Passport Office, vehicle tax and registration, the Parades Commission, Covid testing and money and tax services.

I believe that for the provisions of the Bill to have meaning in government circles, the two mentioned here—the NIO and Human Rights Commission—need to be immediately included and the Government should give consideration to those and others in the fullness of time. I fully support this amendment.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am very grateful to the noble Lords who have spoken to these amendments. I say at the outset how grateful I am to the noble Lord, Lord Murphy. As I made clear in my first speech from this Dispatch Box as a Minister, while we might not agree on everything all the time, when it comes to Northern Ireland I will always try to adopt as consensual, bipartisan and open an approach as possible. I am very grateful to the noble Lord.

He mentioned the Bill being a faithful implementation of the New Decade, New Approach agreement from January 2020 and that is what the Government have sought to do. However, I agree with other noble Lords that this really should have been dealt with in the Northern Ireland Assembly and not within this Parliament. It is a matter of regret that this is the case. I remember first-hand the period from 2017 to 2020 when these issues paralysed politics in Northern Ireland and led to a prolonged lack of functioning devolved government. It was a particularly frustrating period and I am very sorry that we are going through a similar period now, which I hope will be much shorter lived than last time.

Turning to the amendments, I am grateful to noble Lords for the spirit in which they were moved and spoken to. As noble Lords made clear, they seek to widen the definition of “public authorities” in the Bill beyond those captured in the Public Services Ombudsman Act (Northern Ireland) 2016. As noble Lords have mentioned, we had a very wide-ranging discussion in Committee. I am very sorry that the noble Baroness, Lady Ritchie of Downpatrick, was unable to be present. I hope that watching proceedings from her bedroom helped mitigate some of the Covid symptoms she might have experienced and aided her recovery, which we all very much welcome.

I do not intend to cover the same ground today as I covered extensively in Committee. However, the definition of public authorities for the purposes of the Bill, as with other parts of the legislation—this goes back to the comments of the noble Lord, Lord Murphy, about being faithful to New Decade, New Approach—is consistent with the legislation that was drafted by the Office of the Legislative Counsel in Stormont and published alongside New Decade, New Approach. As a result, the Bill does not seek to innovate in respect of that definition by removing or adding public authorities. It seeks to make provision comparable to a situation in which the Assembly, rather than this Westminster Parliament, had taken forward these commitments. The Northern Ireland Office and the Northern Ireland Human Rights Commission, and indeed any of the bodies to which the noble Baroness referred, such as the Passport Office, were not intended to be captured by these commitments. That was never agreed and, as I said in Committee, the range of public authorities listed under the Public Services Ombudsman Act (Northern Ireland) and in this Bill is substantial and comprehensively covers devolved areas.

The Government consider that it would be inconsistent to expand the definition of public authorities beyond that set out in the draft legislation to which I have referred. Further, adding two or indeed more organisations with functions outside the devolved competence, such as the Northern Ireland Office and the Northern Ireland Human Rights Commission, would undermine the overarching approach, which is that the First and Deputy First Ministers should be the sole arbiters when designating public authorities. There are of course provisions in this Bill that would allow the First and Deputy First Ministers to add or subtract from the public authorities that this legislation covers within Northern Ireland. To introduce organisations for which the First and Deputy First Ministers do not have direct responsibility would, I gently suggest, muddy the waters and detract from their role.

I would also suggest that the public in Northern Ireland do not routinely interact with the Northern Ireland Office, which for the most part does not deliver or provide day-to-day front-line services to the public that would seem to trigger the relevant provisions on Irish language and Ulster Scots. Of course, given the close interest of the Northern Ireland Office in the New Decade, New Approach commitments on which the Bill delivers, I would still expect consideration to be given to the national and cultural identity principles set out in the first part of the Bill, and the guidance issued by the respective commissioners. I would expect much the same with the Northern Ireland Human Rights Commission.

However, the extension of the legal duty as proposed in these amendments would, in our view, be inconsistent with New Decade, New Approach and seem impractical for the reasons I have given. I therefore hope that noble Lords will not press their amendments.

[Lord Murphy of Torfaen (Lab)]

My Lords, I understand the points the Minister makes. He also makes the point that, eventually, as this Bill is embedded in Northern Ireland law over the years ahead, the Assembly itself might decide to make changes and that, in the meantime, the bodies to which I have referred—the NIO and Northern Ireland Human Rights Commission —must still stand by the principles that underlie this legislation. So in that regard, I am happy to withdraw the amendment.

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Moved by

[Lord Caine]

2: Clause 1, page 3, line 22, leave out from “Commissioner” to “Ulster” in line 24 and insert “for the Ulster Scots and the”

[Lord Caine (Con)]

My Lords, these amendments in my name all concern proposed changes to the differentiation in the Bill between Ulster Scots as a recognised national minority and the Ulster British tradition. Following the extensive debate on these matters in Committee, I undertook to consider proposals put forward by noble Lords and, in tabling these amendments, I hope I have fulfilled that commitment.

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[Lord Dodds of Duncairn (DUP)]

My Lords, I will very briefly add a word or two. By way of general introduction, I agree with noble Lords who have already said that this is a matter that should be decided and debated in the Northern Ireland Assembly rather than in this place. Of course, had the Government wished that to be the case, they could have left it to the Northern Ireland Assembly. However, it was a decision taken by Her Majesty’s Government to bring it here, and we are therefore debating it today. Nevertheless, we are now examining these matters in detail, and the other place will deal with this in due course.

Since I had spoken on this issue of accountability and financial responsibility in Committee, I wanted to agree with the noble Lord, Lord Morrow, in the amendments that he has set out, and to stress the point that the Minister in Committee said that these were matters for the Northern Ireland Assembly and therefore that it would be inappropriate to have Whitehall, the Northern Ireland Office or this Parliament have reports presented to them on expenditure in relation to these commissioners, bodies and so on. But the amendment to which the noble Lord, Lord Morrow, has referred on the costs to public authorities, which would require that a report be laid before the commencement of the Bill, is right and proper for this Parliament to consider. It is entirely right that the Comptroller and Auditor-General will examine the accounts of the commissioners’ offices, and I urge that that should also look at the parity issue in relation to the fairness of expenditure across the board between the two offices and the office of identity and cultural expression.

However, the impact on public authorities has not been adequately investigated or probed thus far. While the Minister referred to cost, which the noble Lord has alluded to, in the Explanatory Notes, as I understand it, the estimated cost to public authorities of fulfilling the requirements in terms of guidance and so on has never been set out. I would be grateful if the Minister could deal with that point in his response and indicate whether any study or work has been done with those public authorities which will be engaged and affected by this legislation and by the guidance that emerges from the commissioners’ offices. Has any work been done with them about the impact on them in terms of costs, where any budgetary pressures may emerge and how those will be met? This matter deserves a little more scrutiny. We have had representations on it, and I hope that the Minister can address it when he sums up.

[Lord Caine (Con)]

My Lords, I am very grateful to the noble Lords, Lord Morrow and Lord Dodds of Duncairn, and to my noble friend Lord Empey. I too regret that he cannot be here this afternoon; I understand that family commitments in Belfast detain him, and we all wish him well.

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Moved by

[Lord Caine]

3: Clause 1, page 3, line 33, at end insert—
“78IFurther functions: establishing the Castlereagh Foundation(1) The Office may—(a) establish a body corporate or other organisation to be known as the Castlereagh Foundation, or(b) provide grants for the establishment of such a body or organisation by another person.(2) A body or other organisation established or funded under subsection (1) must—(a) have as its principal objective the funding and support of academic research into identity, including national and cultural identity and shifting patterns of identity, in Northern Ireland, and(b) be operationally and financially independent from the Office (though this does not affect the Office’s functions under section 78H).(3) The Office may dispose of any interest in the Castlereagh Foundation.”

[Lord Caine (Con)]

My Lords, I have great pleasure in speaking to Amendments 3 and 30 in my name, on the establishment of the Castlereagh Foundation. We had an excellent discussion on the merits of establishing the Castlereagh Foundation in Committee following amendments tabled by my noble friend Lord Lexden and the noble Lords, Lord Morrow, Lord McCrea and Lord Dodds. I do not wish to cover the same ground here, but we also had an excellent debate about the merits of Lord Castlereagh as Foreign Secretary and Chief Secretary for Ireland in taking through the Acts of Union in 1800. I do not wish to embarrass the noble Lord, Lord Bew, but we also raised on a number of occasions the brilliant biography of Castlereagh by his son John.

Following the amendments in Committee, I promised to look at this issue further. The Government committed to fund the establishment of the Castlereagh Foundation in annexe A of New Decade, New Approach, at paragraph 25. It was envisaged that the foundation would explore the shifting patterns of social identity in Northern Ireland. The amendments that I have tabled will enable the establishment of that foundation and therefore meet a key commitment of New Decade, New Approach. I am delighted to bring them forward. I beg to move.

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[Lord Morrow (DUP)]

In Committee, in deference to the excellent speech on the amendment tabled by the noble Lord, Lord Lexden, I withdrew my amendment. However, I welcome what the Minister has said here today.

[Lord Caine (Con)]

My Lords, I am very grateful for the support of my noble friend Lord Lexden, and that of the noble Lord, Lord Morrow.

Amendment 3 agreed.

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[Lord Dodds of Duncairn (DUP)]

My Lords, following on from the noble Lord, Lord Murphy, I hope the Minister will remain in his place, because he brings a large degree of experience and knowledge to the situation. I certainly hope he can continue in his post for as long as possible.

I welcome what the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, said about these amendments. There are two issues. The first is parity of esteem, as the noble Lord, Lord Lexden, said. This legislation has been very controversial and it no doubt will be. It must be implemented with people feeling that they are being treated equally. I was involved in some of the negotiations and if anyone had suggested at the time that the New Decade, New Approach agreement meant that there would be this difference in duty, it would never have been agreed on that basis. It is clear that the two should be treated equally, with the same duties on public authorities regarding each of them. I echo the calls for this to be considered further before it gets to the other place.

Secondly, if we are talking about reflecting accurately the NDNA agreement—we will come on to this with more significant clauses later in the Bill—it is important that there is not a piecemeal approach. If NDNA is to be faithfully replicated and the duty is placed on public authorities with regard to the Irish language commissioner, then we either have Amendment 4A, which would take it away from the Irish language commissioner, which I do not wish to see happen, or we have Amendment 17, which would make it an equal approach. That is something the Government should think about very seriously, in the interests of boosting confidence and giving reassurance.

[Lord Caine (Con)]

Again, I am grateful to noble Lords for their contributions, in particular the noble Lord, Lord Murphy, for elevating me to the position once occupied by the first Duke of Wellington in the 1830s, when, in his caretaker Administration, I think he occupied every position in the Government bar Lord Chancellor and Chancellor of the Exchequer—my noble friend Lord Lexden will correct me if I am wrong. Let us hope that it does not come to that.

This was another a matter of great interest and extensive and lengthy debate in Grand Committee and I will try to respond without necessarily repeating all the same arguments that we examined in detail there. The Government’s view is that it is very clearly set out in Annexe E of New Decade, New Approach, a document that I gently remind some noble Lords was hailed at the time by the Democratic Unionist Party as “fair and balanced”. The roles and functions of the two commissioners are different, reflecting the respective needs of Irish as a language, Ulster Scots as a national minority, and the Ulster-British tradition. That is why the provision for those respective groups is set out differently in New Decade, New Approach, including in respect of the legal duties set out in this Bill. The Government believe that that was for good reason.

I hope this goes some way to answering concerns from a number of noble Lords, including the noble Baroness, Lady Suttie: to answer her question directly, I had a very constructive meeting with Ian Crozier from the Ulster-Scots Agency and am very happy to continue to engage with the Ulster-Scots Agency and with Irish language groups that I have already met. I have absolutely no issue with doing that at all.

To go back to the point, the role of the Irish language commissioner pertains to matters of language alone. Its work focuses on best practice standards on the Irish language for public authorities to follow in providing their services. Accordingly, there is a specific legal duty in this regard. In comparison, the commissioner associated with the Ulster Scots and the Ulster-British traditions will cover arts and literature in addition to language. The legal duty proposed here by Amendment 17 from the noble Lord, Lord Morrow, would therefore have the effect of being far broader than that on the Irish language, covering public authorities’ work on arts and literature.

I will just come back on one point made by the noble Lord, Lord Morrow, when I think he stated that the Irish commissioner would cover 70-plus authorities but the Ulster Scots commissioner would not. The Government’s position is very clear that the Ulster Scots and Ulster-British commissioner will cover exactly the same public authorities as the Irish language counterpart and will still be able to receive complaints where its advice and guidance are not followed. I want to be clear on that.

Therefore, the amendments proposed by noble Lords this afternoon, in the Government’s view, seem to go far beyond the fair and balanced package reached in New Decade, New Approach, and as such the Government cannot accept them.

I understand that we will return to this matter later, but I highlight also that there is a specific new legal duty for Ulster Scots in relation to the education system provided by the Bill. This will address the current lack of statutory provision for Ulster Scots in the education system. I also highlight that the commissioners will be able to administer complaints in relation to the compliance with public authorities on their guidance and standards issued and lay reports before the Assembly.

Amendment 4A would remove the legal duty in relation to the Irish Language best practice standards. Those standards were a key function of the Irish language commissioner, as set out in paragraph 27(d) of New Decade, New Approach. The standards provided for in the Bill are, therefore, consistent with New Decade, New Approach and the legal duty set out in the proposed draft legislation accompanying it, in new Section 78I(1) of the Northern Ireland Act 1998.

Annexe E of New Decade, New Approach, in paragraph 5.9, accordingly speaks of public authorities fulfilling their “requirement” under the standards and it would seem clear from a reading of both that document and the draft legislation together that the legal duty provided for in this Bill is consistent with the position reached by the parties in the talks. Reflecting the fact that the standards are associated with a legal duty, these will require the approval of the First and Deputy First Ministers, acting jointly, to be given effect. This is intended to provide a level of assurance and oversight over the requirements set by the commissioner.

I highlight that no such approval from the First Minister and Deputy First Minister is required for the guidance and advice of the commissioner for the Ulster Scots and the Ulster-British tradition; nor is approval required for guidance so that complaints can be made in relation to the failure of public authorities to comply with it. With this context in mind, I hope noble Lords will appreciate that the provision for the commissioners and the associated legal duties reflects the delicate and fair balance and the particular needs of the groups that they will serve. The Government cannot accept propositions that would deviate from New Decade, New Approach or the legal duties set out in the original draft legislation that accompanied that document. I would therefore be grateful if the noble Lords did not press their amendments.

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Moved by

[Lord Caine]

6: Clause 2, page 7, line 24, leave out from “Commissioner” to “Ulster” in line 26 and insert “for the Ulster Scots and the”

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Moved by

[Lord Caine]

7: Clause 3, page 8, line 11, leave out from “Commissioner” to second “Ulster” in line 12 and insert “for the Ulster Scots and the”

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[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.

[Lord Morrow (DUP)]

My Lords, I thank all noble Lords who have spoken on these amendments. I begin by welcoming the positive comments the Minister has made about the importance of recognising the Ulster Scots and the Ulster-British tradition as something that cannot, by definition, be confined to Ulster alone. If I heard him correctly, he seemed to suggest that Amendment 12 was not necessary because the Bill should be read as meaning that the Ulster Scots commissioner already has responsibilities in relation to

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

Will he confirm that my interpretation is correct?

[Lord Caine (Con)]

The noble Lord is correct to say that NDNA sets out the functions of the commissioner and then expands to set out the remit, which includes the areas to which he just referred. In our view, the Bill as drafted, in replicating the functions of the commissioner as set out in NDNA, means it is not necessary also to include the remit within the functions—the functions will cover the remit.

[Lord Morrow (DUP]

I am very grateful to the Minister for that.

Turning to his response to Amendment 10, I have to say that I do not believe that his defence of the exclusive focus on language, arts and literature is faithful to the NDNA, given what the international instruments with which it identifies say about the importance of heritage and culture, broadly considered. I urge him to go back and reread the international instruments, and then the NDNA in light of them, to study the important speech given today by my noble friend Lord Browne and to talk to the Ulster Scots Agency. I know that others have asked him to do that, and I hope that he takes that on board. If he does, I think he will be forced to conclude that it is wholly wrong to seek to justify limiting our focus on language, arts and literature.

Finally, I note that the Minister argues that the Bill gives the Ulster Scots commissioner powers in relation to bodies beyond the public authorities mentioned in the Bill. I believe, however, that if that is the Government’s intention, the other bodies should be referenced in some way in the Bill. I urge the Minister to give matters very careful consideration over the summer and I beg leave to withdraw the amendment.

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Moved by

[Lord Caine]

11: Clause 3, page 8, line 25, after “and” insert “the”

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[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.

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Moved by

[Lord Caine]

23: Clause 3, page 11, line 7, leave out from “Commissioner” to second “Ulster” in line 9 and insert “for the Ulster Scots and the”

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[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.

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I look forward to hearing what the Minister has to say. It is a difficult dilemma, respecting devolution on the one hand but ensuring the protection of this legislation on the other.

[Lord Caine (Con)]

My Lords, I am incredibly grateful to all noble Lords who have participated in this Report stage for their contributions. I single out my noble friend Lord Lexden, who appears to be the only Conservative who has sat through the entire Report stage. Given that there might be one or two things happening outside the Chamber of interest to members of my party and beyond, that is commendable.

I agree with the noble Baroness, Lady Ritchie of Downpatrick, echoing some of the comments made by a number of noble Lords at the outset. If this debate has highlighted anything, it is precisely why it should be taking place in the Northern Ireland Assembly, not in this Parliament. It touches on very local, devolved matters that would be much better dealt with in the Assembly by local politicians, accountable to their local electorates. I hope we can reach such a situation. I very much take on board the sensible and wise comments of the noble Lord, Lord Murphy, about the need to discuss and negotiate. I hope we can resolve that very quickly, whatever the immediate future might hold for some of us.

The amendment in the name of the noble Baroness, Lady Ritchie of Downpatrick, seeks to place further obligations on the Secretary of State in relation to the appointment of the Irish language commissioner and Irish language best practice standards after a certain threshold is met. As I made clear in Committee—I appreciate that the noble Baroness was unable to be present, although I am reliably informed that she could watch proceedings from her bedroom while recovering—I sympathise with the intention of wanting to ensure that the provisions of the Bill are not stymied by inaction on the part of the Executive.

I also appreciate the noble Baroness’s desire for the Secretary of State to move quickly if such inaction were to present itself. I have had conversations with Irish language groups, in particular Conradh na Gaeilge, on that point. However, my starting point is, as I have said throughout the passage of the Bill, that the Government would not wish to intervene routinely in devolved matters and that the use of any powers in the Bill would require careful consideration.

The powers in the Bill have been carefully drafted to allow the Secretary of State to use his or her discretion and to consider the political circumstances at the time. I fear that introducing a timeframe within which he or she had to act would detract from that flexibility. The noble Lord, Lord Murphy, was Secretary of State for Northern Ireland and a senior Minister during the Good Friday agreement negotiations, so he will appreciate that sometimes the Secretary of State needs a degree of flexibility in exercising his or her judgment.

As I laid out before the Committee, in our view the stipulated timeframe of 30 days set out in the amendment would be wholly impractical, particularly in respect of public appointments, which need to be conducted with rigour and, quite rightly, need a longer timeframe to complete, as my noble friend Lord Dodds of Duncairn made clear in his comments. Such a timeframe would almost certainly preclude important public appointment procedures from taking place, which I suspect is not the noble Baroness’s intention.

I also suspect that the consequences of the Secretary of State’s intervention being compelled would set us further back from securing the public’s long-term confidence in the measures set out in this legislation. Lastly, as my noble friend Lord Dodds pointed out, the proposed amendment applies in this case only in respect of the Irish language provisions of the Bill, not those pertaining to the Ulster Scots and Ulster-British tradition or the new office established by it.

The noble Baroness’s Amendment 27 seeks to give a further area where step-in powers could be exercised—namely, in relation to strategies relating to the Irish language and Ulster Scots as set out by Section 28D of the Northern Ireland Act 1998. As I said earlier today and in Committee, this is a separate undertaking from the legislative commitments on identity and language set out in New Decade, New Approach. For that reason, we have decided not to include such a provision in this legislation.

The noble Baroness, Lady Goudie, who I welcome to her place here, talked about appointments. At the risk of repeating what I said in Committee, there are well-established appointment procedures in Northern Ireland but these would essentially be matters for the Northern Ireland Executive to take forward rather than Her Majesty’s Government.

I turn to Amendments 28, 29 and 36 in the names of my noble friends Lord Morrow and Lord Empey and spoken to by my noble friend Lord Dodds of Duncairn. In Committee, I set out at length the Secretary of State’s step-in powers more broadly. I realise that these are difficult areas. Throughout the Committee debates, I stressed that the Government would not wish to intervene routinely and that the use of these powers would require careful consideration, and that remains the case.

I have a good deal of sympathy with the comments of my noble friend Lord Dodds of Duncairn and the noble Lord, Lord Murphy, in respect of these powers. The only reason they are there is to ensure that a key element of New Decade, New Approach is capable of being delivered—something that, regrettably, was not happening after the Assembly was restored in January 2020. Agreeing again with the noble Lord, Lord Murphy, I think I said in Committee that one does not always have to be totally comfortable with something to regard it as necessary, and I believe that the powers are proportionate and necessary.

However, as the noble Lord alluded to, the need for appropriate scrutiny of these powers and the importance of accountability before this House are paramount. I therefore make a commitment to noble Lords today on the step-in powers, following my promise in Committee to look further at these issues. Having reflected, I can commit that the Northern Ireland Office will make Written Statements to both Houses every six months from commencement to provide updates on the Bill’s implementation. Those statements will include details on any use of the step-in powers within the relevant six-month period and will enable the Government to keep both Houses informed of the delivery of NDNA commitments more broadly. I will also reflect further on the comments of the noble Lord, Lord Murphy, about timings.

I hope that this commitment, from the Dispatch Box, will provide some reassurance to noble Lords and go some way—probably not all the way—to allaying their concerns. The Government remain of the view that these powers are required in the Bill, however uncomfortable some may be. On this basis, I urge the noble Baroness to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank all noble Lords who participated in this short debate. It was very interesting and different views were offered. I was trying to ensure the protection of the legislation and, obviously, the protection of devolution. I would still urge the Minister to give consideration to the content of both amendments. If he could meet Conradh na Gaeilge in the coming months, in advance of the Bill coming to the other place, to discuss these particular issues, I would be extremely grateful. I beg leave to withdraw Amendment 25.

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Moved by

[Lord Caine]

26: Clause 6, page 12, line 6, leave out from “Commissioner” to “Ulster” in line 8 and insert “for the Ulster Scots and the”

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Moved by

[Lord Caine]

30: After Clause 7, insert the following new Clause—
“Establishing the Castlereagh Foundation(1) The Secretary of State may—(a) establish a body corporate or other organisation to be known as the Castlereagh Foundation, or(b) provide grants for the establishment of such a body or organisation by another person.(2) A body or other organisation established or funded under subsection (1) must— (a) have as its principal objective the funding and support of academic research into identity, including national and cultural identity and shifting patterns of identity, in Northern Ireland, and(b) be operationally and financially independent from the Office of Identity and Cultural Expression (though this does not affect the Office’s functions under section 78H of the Northern Ireland Act 1998).(3) The Secretary of State may dispose of any interest in the Castlereagh Foundation.”

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Moved by

[Lord Caine]

31: Clause 8, page 13, line 21, leave out from “Commissioner” to second “Ulster” in line 22 and insert “for the Ulster Scots and the”