Northern Ireland (Executive Formation) Bill

Lord Cormack Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Baroness Deech (CB)]

My Lords, they say that Brexit drives people crazy and I think there is something in this. It certainly makes people cerebral. May I put forward a few general points? First, it has been said that Her Majesty might be embarrassed by such a request. Her Majesty has been on the Throne for 70 years or so and faced many a constitutional crisis. I think she would survive.

Secondly, be careful what you wish for. Suppose we pass this amendment requiring Parliament to meet in October. It is not for the benefit of Northern Ireland. I feel rather sorry for the people of Northern Ireland, who are being used as a sort of wedge in a door—not for their benefit. Suppose there is a general election in the meantime. Suppose there is a vote of no confidence in the Commons. Is it seriously considered that requiring Parliament to meet in October would take precedence over these other events, which may very well occur in the next few weeks? If there is a general election before October, what will happen to the will of some that Parliament should meet in the run-up to the possible leaving of the European Union? If there is a vote of no confidence, the same thing might well happen.

It seems to me that the constitution is not clear on what motives have to lie behind the call for a general election, the call for a vote of no confidence or the Prorogation of Parliament. It is a somewhat ambiguous area. The speculation about this has led people to believe that it is better placed in the hands of the judges than of politicians. That may well be. I am not disputing for a moment that the rule of law is upheld by judicial review and allowing judges to decide. However, where an issue is as ambiguous as this, noble Lords should realise what they are doing in putting these decisions in the hands of judges, who might very well be summoned to meet in a great hurry; the issue would then be rushed all the way through the courts. We would be leaving it to judicial wisdom.

A great deal may happen between now and the end of October. It worries me that we should be using parliamentary procedure in this way. It would be an unfortunate precedent. As I said, think about Motions of no confidence; think about a general election and the assumption, so readily made, that the notion of Prorogation would be a terrible breach with everything that has ever happened in the 1,000-year constitution of this country.

Moreover, the action of judicial review, which is already being talked about in this House—somewhat prematurely—will depend on one wealthy individual bringing that action. Suppose there is a vote of no confidence and by some method the Queen is advised that Mr Corbyn should be summoned to form a Government. Unfortunately, I cannot afford the services of my noble friend Lord Pannick, but I am sure there are those among us and in the country who would say that the possibility of a Prime Minister widely regarded as an anti-Semite was a constitutional outrage and must be judicially reviewed.

I beg noble Lords to consider what sort of precedent might be set by using the people of Northern Ireland, speculating on what might happen with judicial review and not allowing the normal course of events to continue. To support this amendment will have repercussions way beyond what we might expect this afternoon.

[Lord Cormack (Con)]

My Lords, the noble Baroness, Lady Deech, reads far too much into this simple amendment, which is unambiguous and makes the point that power should rest not with the Executive but with Parliament. It would require Ministers to report on a Bill’s progress where progress is essential, such as with this Bill. Of course, most importantly, we should not give the Prime Minister of a minority Government, whoever he may be—let us all, particularly those of us on this side of the House, recognise that we are talking about the Prime Minister of a minority Government—the opportunity to suspend our constitutional proprieties.

I should like to make another point. I deplore the fact that the rules of my party have allowed this decision to be protracted over almost five weeks and to be taken by 0.3% of the electorate, a number of whom are 15 years of age; they are entirely eligible to vote, as I established earlier today. Many people do not realise that; I did not realise it myself until two or three days ago. The party in the country has had great power—way beyond what any party should have, particularly when it represents such a tiny percentage of the electorate. I believe that the real constitutional impropriety that the noble Lord, Lord Anderson, seeks to deal with is that of conferring on the Prime Minister of a minority Government—I repeat: a minority Government—the powers to dispense with the services of Parliament and to absolve himself of being answerable to it. As I said on Monday, the Government are answerable to Parliament, which must never be the creature or subject of government. This is a safeguard. We should support it.

[Lord Kerr of Kinlochard (CB)]

My noble friend Lady Deech would have made a marvellous Permanent Secretary. We heard about a dangerous precedent, unripe time and the risk of judicial review. I cannot see that risk; the amendment moved by the noble Lord, Lord Anderson, seems designed to reduce the risk of a situation that might go to judicial review arising.

I support the noble Lord’s amendment. As he said, it is strange and alarming that we should find ourselves in this situation, having to resort to a device to prevent a constitutional outrage—which it would be if Parliament were sent away so that the Prime Minister of the day could follow a course that both Houses of Parliament have consistently and regularly rejected.

To add one more point, I hope that the noble Baroness the Leader—I am sorry she is not in her place—is pursuing with the other place the proposal that we in this House put forward a fortnight ago for a Joint Committee to examine the costs and implications of a no-deal crash-out. In this House, the Leader represents not just the Government but all of us. We put forward the proposal but, to my knowledge, the other place has not yet done us the courtesy of even considering it. I hope that the noble Baroness is advancing our proposal and urging the other place to respond positively to it. I support the amendment.

[Lord True (Con)]

My Lords, I spoke against these amendments in Committee, and will not repeat all my arguments. But there are four strands in why I believe that these amendments are unwise and unwanted. Before proceeding, I say to the noble Lord, Lord Anderson —who, again, introduced his amendment with great courtesy, charm and skill—that, on a point of fact, 16 out of 23 Prime Ministers of this country have first come to office without a general election, as a result of actions within their own party and within Parliament, including, I say for the benefit of the Liberals, David Lloyd George.

The idea, therefore, that the next Prime Minister would somehow be constitutionally dubious—a proposition that has been advanced by the noble Lord, Lord Cormack—is, frankly, absurd.

[Lord Cormack]

I did not suggest that it would be improper. I was merely stating a fact. The next Prime Minister will be a Prime Minister of a minority Government—as the present Prime Minister is.

[Lord True]

The noble Lord also said other things, which the Hansard writers will record, including his saying that somehow a power was being conferred on Mr Johnson to do something that Mr Johnson has never said he would do, which is to advise the monarch to prorogue. That has been an inherent right of the Prime Minister and of the Crown for generations. It is an absurd statement, I am afraid, by my noble friend.

The first reason that these amendments should be resisted is, of course, one that I share but most of your Lordships will not: they are clearly designed to frustrate one route to Brexit on 31 October. That is freely admitted by all concerned. I can see that that is not a clinching argument with many of your Lordships, and, if we have learned anything in this House, it is that there is a dialogue of the deaf in this place between the remainer majority who wish to stop at nothing to prevent Brexit and those of us in the minority who believe that the vote of the public should be respected.

I fear that your Lordships’ House is getting itself into a worse and worse place in resisting Brexit. The very future of your Lordships’ House is now in play. That was made clear, not by me, but in the recent campaign for the European elections. I think these amendments take us to the outer fringe of where an unelected House should go.

The second strand of why I think they should be rejected is this canard of “constitutional outrage”, et cetera. This is an Aunt Sally. Mr Johnson—its target—has never said that he would use Prorogation to secure Brexit on 31 October. This danger, this threat, this crisis, this calamity, this catastrophe, this outrage—it is all got up by the remainers.

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[Lord Alderdice]

I wholly accept what the noble Lord says: he does not intend to push things towards direct rule. However, the implication of him having to raise these matters through amendments here, rather than them being raised by colleagues back in Belfast—despite what all of us wish, which is to move towards devolution—is that we cannot continue with no Government in the medium term. That is what we have. I entirely accept his bona fide commitment to devolution but that is an inevitable consequence.

[Lord Cormack]

My Lords, I do not think that the noble Lord, Lord Alderdice, was here on Monday, for reasons that I am sure we all understand. The message then was exactly what he says: we are moving inexorably towards direct rule.

I want to make one point to the people of Northern Ireland. They are being served incredibly well in your Lordships’ House by the noble Lord, as well as by the noble Lord, Lord Empey, and my noble friend Lord Trimble, a winner of the Nobel Peace Prize. They are active in your Lordships’ House after all the distinguished service they have given, and continue to give, in Northern Ireland. I hope that that will send a reassuring message.

I hope, above all, that their unity on the subject of devolution will spur on our colleagues from the DUP and others to redouble their efforts to get the Assembly meeting and an Executive formed. If we have to wait a little time, as the noble Lord has said, and many of us have said, time and again, can we please have the Assembly meeting, its committees meeting? That, at least, is something. I very much hope that long before any of the dates in this Bill come, we will at least see that happen.

[Lord Mackay of Clashfern (Con)]

My Lords, I strongly support the view that what we need is a devolved Government in Northern Ireland. Paying attention to items that separate us is very detrimental to making progress. On the items that the noble Lord, Lord Empey, has cited, perhaps reliable legislation is not quite so important as the others, but all the others are vital for day-to-day life in Northern Ireland. I sincerely hope that the Northern Irish parties, all elected to the Assembly with the responsibility that they have, can come together on such items to get things done. Otherwise, if we have a progress report on implementation, what is it going to tell us? That nothing has happened. That is absolutely useless.

What we really need is to do our level best to get the Executive into action. I understand that there are some matters that divide the principal parties in Northern Ireland. In fact, there are things that divide people continually, but having a Government who can carry out the essential matters referred to in the amendment of the noble Lord, Lord Empey, is an urgent matter, and the responsibility primarily lies with those who have been elected to the Assembly. I hope that the Government will do the best they can on these items, but surely the main message is that those responsible, elected by the people to serve in the Assembly, should come together and form an Executive to carry these things out.

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[Lord Elton]

My Lords, I will make three brief points. First, if I were a better historian, I would be able to tell your Lordships when the parliamentary procedure that brought the Bill to this House in this state was more or less outlawed. It was called “tacking”: the Government would bring in a Bill and the Opposition would let it pass only if they could stick on other things that had nothing to do with it. That is what has happened here; it should not happen again.

Secondly, what emerges from this is that it is urgent to get the Assembly sitting again. I hope that, behind the scenes—they are certainly not doing it in front of us—the Government are straining every nerve and sinew to persuade Assembly Members to get together and do their job. One obstruction to that is the Good Friday agreement itself; perhaps, timidly but carefully, we should start looking at whether it can be amended without cataclysm.

Thirdly, it is clear that there is a total democratic deficit in what is being proposed. The noble Baroness, Lady O’Loan, her two co-signatories and the 19,000 signatories of her letter all propose that, even if they do not get together, Assembly Members should for once express the views of the Province, to great betterment.

[Lord Cormack]

My Lords, I wish to add brief words of support. It is a disgrace that this steamroller legislation is going through the House. It is quite appalling and it must never happen again. It is not about direct rule. We do not have devolution. What the noble Baroness, Lady O’Loan, and her two co-signatories propose is very simple. Time without number, I have advocated calling the Assembly together. All the Assembly Members could be invited to Stormont and seen individually by the Secretary of State and her fellow Ministers within the space of a single day. That would be something, at least.

Analogies are never exact but the noble Baroness was right to refer to the poll tax. I happened to be the chairman of an art gallery in Edinburgh at the time of the poll tax; I went up there every month for two or three years. I was one of two Conservatives to refuse to vote for it in Scotland; I am always proud of that because it was an appalling way to legislate. This is even worse. I will support the noble Baroness’s amendment for that reason.

[Lord Morrow]

My Lords, I speak in defence of the amendment in the name of the noble Baroness, Lady O’Loan, to which my name is attached. Since the commencement of this debate at around 4 pm today, I have received some 500-plus emails on this issue. I suspect that I am not unique in this respect. I suspect that others are finding the same response, and I think that this demonstrates that people are exercised, and there is real concern about what your Lordships’ House does this evening.

The way in which this Bill has been handled, the way in which scope has been dispensed with and the way in which huge issues have been inserted into a fast-track Bill designed for completely different purposes is deeply distressing to many people in Northern Ireland. When this Bill entered your Lordships’ House we expressed huge concerns about the way in which scope had been dispensed with. This problem has been massively compounded by the events tonight and the passing of the Barker amendment.

We are now looking at a situation where abortion is legal up to 28 weeks, while in GB the limit is 24, for any reason, including disability and gender, so we will have imposed on us a definition of viability that is 50 years out of date, a situation where abortion clinics will be able to set up in Northern Ireland from the end of October, and people in England will be able to travel to Northern Ireland to get abortions that are not available at home.

Does this House really want devolution? Do we want to give it any chance of success, or are we saying, through our decisions here tonight, that we would prefer that devolution did not exist? I suspect that that is the interpretation that many will put on it. It seems that this House wants direct rule. If the answer is no, then the case for Amendments 16 and 16A is simply overwhelming. How, in a context where we have 90 MLAs, can we change a key area of devolved policy over their heads when we have the opportunity to engage them?

Despite the fact that we are now in the school holiday season in Northern Ireland, with many people away, the letter of the noble Baroness, Lady O’Loan, has gathered some 19,000 signatures. That represents a UK population equivalent of more than half a million. That could not be overstated. I know that the noble Baroness, Lady O’Loan, has already made reference to that, but I make no apology for repeating it.

Of all the amendments that we discussed today, many of which are dominated by people who do not come from or represent Northern Ireland, let us be very clear, this amendment has more co-signatories than any other, thousands of them, and almost all come from Northern Ireland. It will be very important to reflect on the message that will be sent today if noble Lords vote against this straightforward amendment.

What will we be saying to the people of Northern Ireland? What would Parliament be saying to you if, by virtue of parliamentary arithmetic, it was able to impose something on your part of the UK, and despite being given the opportunity to give your elected representatives a say, chose not to do so?

I am aware that some say that engaging the Assembly is not relevant because it is not a matter of votes but of human rights. That argument, however, simply does not stand up to scrutiny. Of course, human rights are engaged, but the idea that they trump consideration and sweep away all others is ultimately a recipe for replacing parliaments with courts. The truth is, as the Supreme Court has made very clear, there is no general international human right to abortion, so the debate is not with me on that issue but with the Supreme Court.

Moreover, on CEDAW specifically, the expert legal opinion of Professor Mark Hill QC is very clear that the pontifications of the CEDAW committee are not binding and that the CEDAW convention does not even mention abortion and does not have standing to read it in. Lest anyone should say I do not care about human rights, I care about them passionately. I am not sticking my fingers in my ears and saying that there is not a human rights discussion to be had here. That is not the point I am making. The Supreme Court may issue a declaration of incompatibility on one very narrow aspect of our law as it relates to abortion and babies with very serious disabilities. In 2016, when the Assembly voted not to change the law in any way, it did so pending an inquiry on fatal foetal abnormality, which was published after suspension and recommended legal changes narrowly on this particular point.

The idea, however, that amendments passed tonight are the answer to that problem is absurd. These changes open up abortion for any reason up to 28 weeks. There is no case for that in any binding, proper, international legal instrument. In fact, the Supreme Court has indicated that Northern Ireland’s abortion law is compliant with international human rights obligations in relation to disability generally because there is no human right to abortion on the basis of disability. The idea, therefore, that Northern Ireland has to settle for this approach to abortion because of human rights is plainly wrong.

Some people might like to adopt an approach to human rights that says that this is necessary, but it is not mandatory. In this context, if we are serious about breathing confidence into devolution and respecting Northern Ireland, we must engage MLAs as proposed by these amendments. If the Supreme Court makes a binding declaration or if there are other human rights developments that necessitate a legal change—indeed, if there are any other developments that necessitate a change—the Northern Ireland Assembly is capable of making those changes.

In this context—particularly given the manner in which Northern Ireland has been denied constitutional due process hitherto in terms of the dispensing of scope and the insertion of major issues in a fast-track Bill on the decision to move Northern Ireland from having the most restricted abortion law in the British Isles to having the most liberal, such that it will make the laws of the home jurisdictions of those who press these changes on Northern Ireland look conservative—it is only right that, first, before any repeal of primary legislation is agreed MLAs are consulted, and if a majority agree, repeal can proceed; and, secondly, draft regulations are sent to MLAs and, if they agree, that again can be laid before Parliament.

I urge noble Lords to vote for devolution and to support these amendments.

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[Lord Eames]

My Lords, my name is also on this amendment. I could keep the House sitting for hours to tell your Lordships of people I know who have suffered terrible injuries to mind, body and spirit. I simply want to back up the noble Lord, Lord Hain, and hope that the Minister will give the assurances we have asked for.

[Lord Cormack]

My Lords, as the fourth name on the amendment I pay my tribute not just to the noble Lord, Lord Hain, who has led this campaign with real, dogged determination, but to the noble and right reverend Lord, Lord Eames, and the noble Lord, Lord Bruce. We have worked together with other colleagues and we all are extremely grateful to the Minister, who has met us on a number of occasions. He has listened carefully and, far more importantly, acted.

It is crucial that in every piece of literature distributed, and in every announcement made, those words,

“through no fault of their own”,

are emphasised time and again. So long as that is done, I am confident that we will maintain the unanimity we have so far enjoyed. We have had two long and quite difficult days. There is no one who is happy about the suspension of devolution or about the hurried manner in which we have to deal with this legislation. But there has been one bright, shining light: this amendment and the Minister’s response. We should all be extremely grateful and thank him most warmly.

[Lord Tunnicliffe]

My Lords, for the avoidance of doubt, my noble friend Lord Hain’s amendment has our full support.