Northern Ireland (Executive Formation) Bill

Lord Duncan of Springbank Excerpts

2nd reading (Hansard): House of Lords
Wednesday 10th July 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the Bill be now read a second time.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, I would like, first, to take this opportunity today to express my sadness at the death of Sir Anthony Hart, who was chair of the inquiry into historical institutional abuse. Sir Anthony was a dedicated public servant and highly respected High Court judge. My thoughts and condolences are with his family and friends at this difficult time.

At the end of April, the Secretary of State, with the support of the Tánaiste, set out a new approach to the Northern Ireland talks aimed at restoring all the political institutions of the Belfast/Good Friday agreement. This has required addressing some challenging but important issues on which accommodation must be found if the political institutions are to be fully and sustainably restored. Talks have continued to be positive and constructive. There remain, however, a number of issues on which the parties have yet to reach agreement.

The two largest parties have over recent days been considering how an accommodation can be reached on these remaining issues. It is clear that more time is needed. We have therefore agreed that the parties continue to engage with each other in consideration of their positions before reconvening next week for further discussions. They need this additional time to secure agreement.

While the talks continue, the Government’s overriding responsibility remains to provide good governance in Northern Ireland and to ensure that civil servants have the power they need to maintain public services. The law allowing limited decision-making to ensure the effective delivery of public services to continue in the absence of an Executive expires on 25 August. After that, the Northern Ireland Civil Service will revert to the restrictions applied to decision-making by civil servants following the Buick High Court judgment, leaving Northern Ireland without the powers to ensure good governance.

That is why the Bill is essential: it will extend the period for devolved government to be restored by two months, from 26 August 2019 to 21 October, with provisions that allow for a further extension of that period to 13 January 2020. A new deadline of 21 October creates the time that parties need to get an agreement, and there is provision for a short extension with the consent of both Houses.

It will not have escaped your Lordships’ attention that the Commons made amendments to the Bill last night. Those amendments largely cover reporting requirements and requirements for debates on certain topics. However, your Lordships will be aware that, in addition to reporting requirements, the Bill was amended to oblige the Government to introduce regulations to provide for same-sex marriage and abortion. Those votes demonstrated the strength of feeling of the Members of Parliament. However, these are sensitive issues and careful consideration needs to be given to both the policy details and their implementation. Crucially, the amendments as drafted do not function properly, and so do not enable the Government to deliver on the instruction of Parliament.

I have just met Conor McGinn and Stella Creasy to discuss how best to take this forward and to ensure that the changes agreed by the Commons can be delivered. I know that a number of noble Lords have also been involved with these issues, and I will of course work with them as we go forward. I will come back to your Lordships on the changes we need to make to the Bill but in the meantime, I commend it to the House.

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[Lord Duncan of Springbank]

My Lords, this has been a long and, I might add, challenging afternoon in many ways. I shall try as best I can to engage with each of the issues as they have been presented.

The first thing that I think we can all agree on is that devolution is needed now more than ever. It is self-evident that the absence of devolution is why we are sitting here today to try to resolve these matters. There is no doubt that, were these decisions being discussed in Northern Ireland, those in the chamber would immediately understand the issues. The media and the wider community would be involved, integral and essential. That is what devolution is meant to be. However, we do not have devolution.

Looking at some of the issues which have come to the fore in the debate, you cannot define Northern Ireland by two issues alone. Any attempt to do so is to miss the point of devolution. I listened to the remarks of the noble Lord, Lord Empey, and the noble and right reverend Lord, Lord Eames, and others who spoke about the communities themselves and what they need. I read the report of the professor from Northern Ireland and recognise the challenges in the health service, and I wonder why that issue is not front and centre in the discussions, with demands for amendments to be moved forward to sort it out. It is critical for Northern Ireland.

If the parties can use the time made available by this extension to return to not just the talks but the formation of the Executive, these decisions will not rest in our hands or the hands of the other place. They will rest in the hands of the democratically elected Members of the Assembly. Anything which can take that forward is important. The Bill itself is straightforward and remarkably simple at heart. It aims to ensure that there is adequate time available to the parties in Northern Ireland to continue those talks to resolution and complete the discussions to the point at which an Executive can be formed.

There is no point pretending that the landscape between now and Christmas is an easy one to cross. It is not. The next few weeks alone carry with them various points in the calendar which are of such importance to people in Northern Ireland. Changes will take place in my own party, which will no doubt have an impact—I cannot even tell you whether I will be the Minister taking these matters forward by the time we reach August, because I do not know. Then we face the reality of the findings of the RHI inquiry which will be presented. We recognise the challenges of Brexit and the approach to it. Each of these will make it more challenging, but that is not the point.

The parties need to come together because the issues are about more than just abortion, same-sex marriage or the other issues which emerged from yesterday’s debate in the other place. They are the bread-and-butter issues listed by various noble Lords, which have gone untended. The reality remains that, until an Executive is formed, they will remain where they are now: in a mad, limbo world where nothing which can and should be done in Northern Ireland is done. That is what we face.

As several noble Lords suggested, if we are unable to re-form the Executive, then what we saw in the other place yesterday will be the beginning of a wider, drip-by-drip intervention in Northern Ireland on issue after issue. Decisions will be taken not by the elected Members from Northern Ireland, although some will no doubt be present, but by the wider Parliament. They will do this on the basis of issues which may not be critical to Northern Ireland.

The remarks of the noble and right reverend Lord, Lord Eames, reminded me that I am astounded by how many newly qualified experts there are on Northern Ireland; they seem to emerge with each passing debate. Their knowledge is vast and their experience great, but their residence time in Northern Ireland can be measured in minutes, sometimes even less. We hear time and again from people whose experience is, sadly, far too limited for the sorts of discussions we face. We need to find a way forward.

Turning to the notion of an Assembly, an Assembly can be reconvened now. That is not at issue; it could be done. The problem we face is that it must be able to secure a Presiding Officer and it needs to be an Assembly of the communities. It cannot be an Assembly reflecting the views of only one side, because that takes us back to where we began. If we hear the voice of only one side, we create a greater problem for ourselves.

On the talks, there have been a range of discussions about how we can move these matters forward. In truth, I believe there is positivity. I hope that the remarks of certain noble Lords today are not reflected in the negotiating room, but I recognise the challenges they represent.

There is the discussion about whether there should be a facilitator. It is important to stress that in putting together these talks, for the first time we have brought in six independent individuals to chair the individual strands, to try to bring this together. We have done the best we can to provide the right facilities to bring these talks to fruition. The rest will rest in the hands of the principal parties there. I believe that the distance between the two sides is remarkably small, and the things which unite the two sides, the bread and butter issues of Northern Ireland—

[Lord Maginnis of Drumglass]

I am grateful and will try not to delay the Minister’s response. He talked about five facilitators. Were those Northern Ireland civil servants?

[Lord Duncan of Springbank]

No, they were not. They were drawn from a wide background of experience and knowledge to try to facilitate those talks.

[Lord Maginnis of Drumglass]

Who were they?

[Lord Duncan of Springbank]

We can provide that information in a Written Answer. That would be helpful to the House. I will lodge it in the Library and write to the noble Lord so that he has that information.

[Baroness O'Loan]

The Minister has just told us that there are very few issues still dividing the parties. Since we are effectively being threatened in this Parliament tonight, can he tell us what those issues are?

[Lord Duncan of Springbank]

I do not think anything I have said this evening should be interpreted as a threat—not in the slightest. What I am trying to ensure is understood is that these are perennial issues which we are fully aware of. An Irish language Act and a culture Act, and how these might fit together, remain challenging issues which need to be resolved. There are other, smaller issues, but these can be addressed and achieved in the right safe space in Northern Ireland. That is the ultimate ambition. It must be done by those parties in Northern Ireland.

Going back to the earlier point, there are five facilitators, not six, and they represent current and retired civil servants, but I will provide the details. I am grateful for that very helpful clarification.

The important thing to stress is that the Bill itself is, at its heart, simple. Its ambition is sensitive and straightforward. However, we are actively considering both abortion and same-sex marriage, and how we can take this matter forward, reflecting, as we are, the significant majorities, voices and views of the other place. It is important that I touch upon the issues that have come from the other place, because they have dominated much of the discussion. We need to ensure that those amendments—

[Lord Kilclooney (CB)]

I require clarity on this. Is it correct—or did I misunderstand the Minister’s initial statement—that he has been having meetings with the honourable Members from the other place, Creasy and McGinn, and trying to facilitate amendments to this Northern Ireland Bill about abortion and same-sex marriage?

[Lord Duncan of Springbank]

That is what I was about to say. Just before I came into this debate today, I was part of a wider meeting with the two Members of Parliament, together with some representatives from the Labour Party. I am going to be very correct by reading out exactly what has happened, so that there is no dubiety about what I am about to say:

“We are actively considering how we can take this matter forward, reflecting as we are upon the wider considerations from the other House, to ensure the amendments are workable, recognising the clear message which we have received from the other place. We need to ensure that we do not end up with defective laws, which would not serve the interests of the people of Northern Ireland”.


We have heard, we will reflect upon that and we will act in accordance with that to ensure that we can deliver what has been passed to us by the other place.

[Lord Alton of Liverpool]

Before the Minister leaves that point, can I return to the point I made in my remarks? If legislation of this kind is being produced in Parliament, surely due process requires that there should be adequate scrutiny before amendments are made before the House of Commons or the House of Lords to be incorporated into legislation? Also, if these amendments, which were known about only as recently as last Thursday, are defective, why is it now the Government’s job to sort that out, when these were not government proposals in the first place?

[Lord Duncan of Springbank]

The thing to note is that these have now been voted on by the other place in a significant number. The majority is there. They will move forward in this way. We in this House cannot look to the other place and seek to undermine or strip out these particular parts; that would be a mistake of some significance.

[Lord Cormack]

I apologise for intervening, but is not a way forward to extend the dates in this Bill so that, instead of having 21 October, we have 13 January, and instead of having 13 January, we have 10 April? If we have a more realistic timetable, is it not then possible that we can enable the Assembly to come together, the Executive to be formed and, therefore, enable this House and the other place not to impose their will upon Northern Ireland?

[Lord Duncan of Springbank]

My noble friend, as always, provides a very sensitive approach. I have a suspicion that there will be a number of amendments tabled over the course of the next few days, which may well, indeed, reflect the very point my noble friend raises. I suspect we will know more when we are able to see what they are. That will provide us with the perfect opportunity then to try to address these things as best as we can in moving it forward.

[Lord Empey]

I apologise for interrupting the Minister, but the Public Bill Office told me this afternoon that a Marshalled List will be produced tomorrow. Many of us will leave tomorrow afternoon, so we will have only tomorrow morning to draft amendments, and we will not know how these current arrangements in the clauses will be handled by the Government. There is the opportunity for a separate list of amendments to be produced on Friday, but there is a remarkably short time in which we can do this.

[Lord Duncan of Springbank]

I certainly do not wish to curtail the ability of the Members in this regard, but noble Lords can lodge amendments just now. The Government have to actively engage to try to establish how they can move these matters forward. As I said at the outset, the challenge we face is that the amendments which have arrived with us have certain technical deficiencies.

[Baroness O'Loan]

I do not want to be difficult, and I thank the Minister for giving way. If I want to table an amendment, draft it on the basis of the Bill before us and then something different is produced, my amendment will be pointless. What about the report of the Constitution Committee, which said that law relating to Northern Ireland should not be dealt with in this rushed way, and that it is totally unacceptable?

[Lord Duncan of Springbank]

The noble Baroness has raised this point before, but I say again that we have received from the other place a very clear instruction and we will have to move forward within the constraints of the time available to us. I do not doubt that noble Lords will table amendments, and they will be part of a reconciled list at the time when we are having these discussions. We will seek to move them forward in a manner appropriate to this House, as we would do with any of these matters. That is our ambition. It is not our—

[Lord McCrea of Magherafelt and Cookstown]

The other House has voted upon these clauses and sent them to this House. That is what the majority was based upon: the clauses that were voted on in the other House. Why is this House, therefore, deciding to make changes, not knowing what the other House thinks about the changes we are about to make?

[Lord Duncan of Springbank]

To be frank, it is almost the sole purpose of this House to take those matters which come from the other place to ensure they can be revised in a manner which is appropriate, particularly in light of legal realities. That is our responsibility, and we would be derelict were we not to do that, if we were aware of deficiencies in the law. That is our role.

I am conscious, as I try to draw these remarks to a close, that some other things need to be mentioned. I am aware of the issue of the victims’ pensions—the noble Lord, Lord Hain, is of course not in his place. We have been working together to establish how we can make some progress on this. A noble Lord asked: can it be so—that there is a prospect of terrorists themselves receiving benefits through this? The answer is no. If the harm came by their own hand, they would be precluded from any attempt to provide a pension, for very clear and obvious reasons.

The noble Lord, Lord Dubs, asked about refugees in Northern Ireland. We have had a meeting on this very point and I am looking again to the noble Lord to work with me on this matter. The challenge we experienced at the time was that the number of suitable recipient families, as judged by the Northern Ireland Civil Service, was not adequate for the purpose; the noble Lord may recall that discussion. I am very happy to continue that dialogue to see how we can make some progress and will be happy to commit again to meet with the noble Lord to do that very thing if he is amenable to it.

I appreciate that the notion of historical abuse, raised by the noble Lords, Lord Bruce and Lord Empey, remains a very important issue, and it is important. They will be aware, as I have said before, that the challenge we face is that if the Hart recommendations had simply been left as they were, we could have moved forward. However, those recommendations were then passed on to the parties in Northern Ireland, which have had engagement with and made some fairly significant changes to the initial recommendations. It will take time for those to progress towards a legislative basis upon which progress could be made. I would hope that it can be expedited but I am not clear about the timescale. It is not being delayed; it is now simply a question of it being drafted in the appropriate way to reflect the parties in Northern Ireland.

I am aware of the legacy issues and I note that in raising this matter the noble Lord, Lord Empey, suggested that they had not been front and centre in the talks that have gone on thus far. It is a challenging issue and the Government recognise their responsibility in this area. They would be derelict if they were in any way to abandon these issues. We will need to find a resolution as we progress in some way. Whether they form part of the discussions and talks remains to be seen.

I do not believe that I can bring to a satisfactory conclusion the nature of today’s debate. It is not in my gift or the gift of any us. We now have a number of serious issues before us and shall on Monday have ample opportunity, I hope, to engage directly with the amendments as they are presented to facilitate the proper debate that we in this House can deliver. Out of that will emerge, I hope, a wider consideration and appreciation of the reality which we face. Out if it will emerge the next stage, which will take place on the Wednesday of the following week as well. I hope through those stages to be available to your Lordships if there is a need for discussion. I remain open to that discussion in all fashions, so if noble Lords need to reach out I am happy to work with them. I note again to the noble Baroness, Lady O’Loan, that I am happy to sit down at an appropriate time and engage directly with this.

[Lord Cormack]

My noble friend just referred to the week after next. I thought that we were having Report next week.

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[Lord Duncan of Springbank]

Yes, that is an old Scottish failing of mine—getting the weeks in the wrong order. To be clear, it is next week. It will be Monday and then Wednesday of next week; I do not want there to be any confusion about those dates.

While I appreciate that my words will not be supported by all, I hope that noble Lords recognise that we are trying to engage diligently with these matters and take them forward in a way which reflects the will of the other place and the realities that we face here in our job as a revising Chamber: to try to make improvements as best we can. On that basis, I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

Northern Ireland (Executive Formation) Bill

Lord Duncan of Springbank Excerpts

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

[Lord Murphy of Torfaen]

That is because we are not dealing with Brexit at the moment, but with Northern Ireland. Had we resolved the Northern Ireland situation over the past two years, we would possibly have resolved the backstop issue. Had we done that, Brexit could have been much easier. However, the Government have not been negotiating well on either issue.

I do not hold huge confidence in our new Prime Minister—assuming it will be Mr Johnson—or his interest in Northern Ireland. However, I hope that the Secretary of State, whoever that might be, will be able to concentrate on the issues in front of us. The Irish and British Governments are joint guarantors of the Good Friday agreement. They must therefore do an awful lot more over the coming weeks to ensure that these dates are met.

We have suggested, for example, that there should be an independent adjudicator or chairman such as George Mitchell, and all-party meetings—not just meetings of the two parties—to resolve these issues. Above all, there must be constant pressure on the two Governments, who must constantly be present, at the highest levels in Belfast to resolve this situation. There is always a reason why we cannot come to a conclusion in Northern Ireland—there always has been: elections for this, elections for that, marching season or whatever it might be. We cannot go on like this. Of course, the Bill as it stands means that we can go on to January, though I hope we will not have to do so. But Parliament is losing patience in all this.

Decisions must be made in Northern Ireland by Ministers of one sort or another. I would be utterly opposed to the reintroduction of direct rule. As a former direct rule Minister, I always felt that I should not be taking those decisions. But we cannot go on like this. That is why the Opposition will support the Government on this issue and not, I fear, the amendment of the noble Lord, Lord Cormack, and his noble friends.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the noble Lord, Lord Murphy, said that Parliament is losing patience. It is more serious than that. The people of Northern Ireland are losing patience with this process. In our Bill today, we seek to give a little more time—to extend the deadline that falls in August to October, with the potential for an extension onward to January. In so doing, we recognise the value of a deadline; it is required to ensure a consequence for those at the table if there is a failure. The first step, if there is indeed a failure, will necessarily be an election in Northern Ireland and thereafter, that step that none of us here would wish to take: towards direct rule.

My noble friend Lord Cormack puts forward his amendment in the correct spirit, as he always does in these matters. In many ways, I welcome what he is trying to do: he is exactly trying, as we have tried for some time, to give space for the parties in Northern Ireland to reach the necessary steps and conclusions to form an Executive. But there comes a point when you cannot keep kicking that can down the road. The parties in Northern Ireland must recognise that there can no longer be an absent Government, or a situation in which we here are called upon to do the bare minimum to keep ticking over the Government and governance of Northern Ireland.

I believe these deadlines give enough time for those parties to come together—and they are close together—and to reach the resolution they require. If they fail to do that, we will have to act. My right honourable friend the Secretary of State for Northern Ireland has today travelled back to Northern Ireland to try to move these matters forward. There can be no let-up in the pressure or, indeed, the presence. I welcome the contributions of all noble Lords in this debate and previous debates to try to move these matters forward. Ultimately, this is a matter for Northern Ireland. While I understand the sentiment behind the amendment —to give that little bit more time and that safety valve, should it still be required—unfortunately, I do not on this occasion believe that that will deliver. Only a deadline will deliver, and I believe that deadline should be sooner rather than later. I recognise the landscape in which these deadlines fall; it is not where we wish to be.

[Baroness O'Loan]

Is the Minister aware of what has happened with deadlines in the past in Northern Ireland, and that they quite simply do not work? Is he aware that the former chair of the talks, George Mitchell, said that there must be talking until they are ready to reach an agreement? That was the advice he gave to me when I was heading off as a peace envoy. We cannot set deadlines and expect peace to be made and talks and the Assembly to continue. Is the Minister aware of that?

[Lord Duncan of Springbank]

I am fully aware of that, but I am also aware of how long there has been no government in Northern Ireland, and that that cannot continue. It cannot continue because there are things that need to be done: not the issues being dealt with inside those rooms, but issues such as health, education, schools and agriculture—the list recited by the noble Lord, Lord Empey, during our last discussion on the Bill. The noble Lord, Lord Morrow, said the same thing. We cannot allow this to continue. What we need now is good governance in Northern Ireland. This is an opportunity for those parties, within the extension foreseen in the Bill, to deliver on that. If they cannot do so in that time there will be consequences, and we must address those sooner rather than later.

[Lord Hain (Lab)]

I very much sympathise with the Minister’s sentiments and the logic of his arguments but, on the subject of focusing minds, may I ask him to consider that the Government have already docked Assembly Members’ salaries a bit? To be honest, I think that was water off a duck’s back. He should be willing to consider the funding that goes to parties in Stormont for their Assembly operations, together with their staffing allowances, which amounts to millions of pounds, and to say that if this continues, their staff will need to be given proper notice of the end of their service—and that that will be the consequence of failing to agree. That was something I did in 2006-07, and it did focus minds.

[Lord Duncan of Springbank]

The noble Lord again brings his experience to the debate. We cannot keep funding futility, however that manages to manifest itself. There will be consequences if we cannot move these matters forward, and they need to be felt by those who are affected directly inside those rooms. I will take away the noble Lord’s point and think it over.

[Lord Trimble]

My apologies for interrupting the Minister, but following on from what has just been said about salaries for people who are not doing what they should be doing, could that principle not be extended to the other end of the building? It would have a significant effect if it were, because for a certain party that does not send its Members to carry out their tasks in this building, that money is then diffused into the funding of that organisation as a whole. It would bring significant pressure to bear if we were to apply that principle to the other end of the building, and we would see quite significant movement as a result.

[Lord Duncan of Springbank]

The noble Lord takes me into even deeper waters—and we are only in the first half hour of what may well be a long day. I understand the point he makes, of course; I appreciate exactly what he is saying. But that may be a discussion for another time. If he will allow me, I shall return to the amendment in hand.

With some regret, I say to my noble friend Lord Cormack that I hope he will understand that I am asking him to withdraw the amendment, not because it is not necessary to have time, but because we need to balance out that time—the carrot—with the stick of a deadline. We need to make sure that we are making progress to allow for the necessary secondary steps—an election to take place and so forth—in good time. Otherwise we will reach ever more frequent deadlines and anniversaries relating to the absence of an Executive in Northern Ireland, which the people of Northern Ireland can, unfortunately, little bear.

[Lord Cormack]

My Lords, I always listen carefully to what my noble friend says, but on this occasion I have to say that I believe he is making a mistake. The calendar is such that, as the noble Baroness, Lady O’Loan, pointed out, we are in the holiday season already in Northern Ireland, and we are about to enter a period of recess in this Parliament. We also have the looming Brexit date. Most importantly, elements have been injected into the Bill in the other place—we will be dealing with them later today—which create a much more difficult Bill and a much more difficult situation in Northern Ireland. These are highly sensitive and difficult issues. The very future of devolution as a concept is at stake. I believe that the dates that I suggest in my amendments would create a much more realistic timetable.

I am one of those who believe in the convention—it is certainly not a rule—that one does not normally vote in Committee in this House. In moving amendments I have always honoured that convention, and I will do so again today. However, I cannot promise that I will not return to this issue on Report in 48 hours’ time, when colleagues will have had the chance perhaps to reflect on the totality of today’s debate. I think they will then realise that a part of the United Kingdom that needs handling with acute sensitivity and that does not willingly respond to the deadline philosophy perhaps ought to be given a little more time. For the moment, though, I beg leave to withdraw the amendment.

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[Lord Goldsmith (Lab)]

My Lords, I think it is fair to say that this has been a robust debate. Obviously, I support the amendment to which my name has been added and oppose Amendment 7A, proposed by the noble Lords, Lord True and Lord Forsyth, which would wreck that amendment.

I will deal with the arguments that have been raised against this amendment. I shall start with the first of them, which is that it is inappropriate in the context of Northern Ireland. I would have thought that the question of what parliamentary oversight and intervention are possible in relation to Northern Ireland is of the greatest importance. The Bill as it stands proposes, rightly, that reports will be published about the progress towards the formation of an Executive in Northern Ireland. Should Parliament not be there to receive those reports, to debate them, to consider them and to make recommendations on them, that would be the consequence of stopping Parliament sitting during that period.

I note that David Sterling, the head of the Northern Ireland Civil Service, said only the other day:

“We have lacked that ministerial voice in Whitehall that has championed the cause of Northern Ireland”.


So to find that Parliament was not sitting just at the time when the issues with which this Bill is concerned were coming up would be a great tragedy. So it is very much an issue which Northern Ireland should be concerned about.

But of course it is broader than that. The debate has made that very clear. The argument that the noble Lord, Lord Anderson of Ipswich, started with must be right. If what we are talking about is the possibility that Parliament will be banned from meeting and expressing views during the critical period when we are leaving the European Union—I accept of course that the Bill says what the date is, but it is open to Parliament to do something else if it chooses to do so—to say that Parliament should not be there at that stage is a constitutional impropriety and would be a great assault on our current constitution.

It is said, and it is argued by the opponents of this amendment, that it is there to frustrate the will of the people in relation to leaving. Well, it cannot do that. Nobody suggests that it can do that. As one of those who signed the amendment, I do not suggest that it does that. What it would do is make sure that Parliament was there at the time that decisions were being made so that we did not have a situation where at the time of one of the greatest decisions this country has made in recent times there was simply an Executive and no Parliament to oversee or control them. That would be the greatest assault on the constitutional traditions of which I am so proud, as are so many Members of this House.

As the noble Lord, Lord Forsyth, knows, I admire his debating skills and his opinions, but he has not responded to the question put by my noble friend. I hope that when the Minister gets to his feet he may be able to give a clear answer on whether in fact this can all be brought to an end by a statement that there is no risk and that there will be no Prorogation. Unfortunately I expect that that is outside his power—and I see he is nodding. I suspected that was the case, and we all know why that is so. That would be an end to this debate. As it is, with that uncertainty as to whether Parliament will be allowed to sit during that critical period, we have to do something to allow an opinion to be expressed about that. The gambit would not be doing this; the gambit would be making sure that Parliament was not there at a time of crucial national emergency. That would be the constitutional gambit.

I congratulate the noble Lord, Lord True, on a speech that succeeded in insulting everybody in this House: the Liberal Democrats for not being the party that supported leaving, obviously my Front Bench and me—I fully expected that—his former leader, Sir John Major, for what he said, and others as well, including his current leader, as I have just been reminded. But be that as it may; he is entitled to do that and to take those views. But what he said in attacking the judiciary and the rule of law was completely off target. I fully agree with the noble Lord, Lord Pannick, on this. The judiciary is indeed unelected. I remember losing an important case in the House of Lords—I think that the noble Lord, Lord Pannick, may have been on the other side; he is nodding both enthusiastically and with a smile on his face, so I would guess that he enjoyed the victory—precisely because the House of Lords said in answer to my arguments, “No, we are not unelected. We are there to carry into effect the law, even though that is something that the Government do not want to happen at this particular time”.

Having had the privilege of serving in that role, I know what the rule of law means. You have to defend things in front of an independent and sometimes critical judiciary. Sometimes you persuade the judges and sometimes you do not. However, it is absolutely critical to our democracy that they remain and are not attacked in any way.

Where does that leave us? I was struck by the remark by the noble Lord, Lord True, that the judiciary were not elected, so should not have a say. Of course, the people who are elected are in the other place. We are talking about making sure that those in the elected place are there to express the views that their constituents—the people of this country—believe are right. That is what should happen. This debate can be put to an end by whoever becomes the leader of the Conservative Party in the coming days making it clear that that will not happen—but until then, I respectfully say that this Committee should take the step of following the House of Commons by saying, “We should pass this amendment to make sure that Parliament is there and doing its job when Brexit comes around”.

[Lord Duncan of Springbank]

My Lords, I expect that in years to come constitutional scholars will study this debate and explore many of the arguments. I suppose that it is my purpose to return us to what I hope is the principal purpose of the Bill to which this particular amendment has been appended. This Bill aims to ensure that we can restore an Executive in Northern Ireland in good time. This is a noble aim, with which I think we all agree.

We ought to start by recognising that Members in the other place have already debated and voted on these issues. Of course, the Government agree that Parliament must be kept apprised of progress towards restoring an Executive in Northern Ireland. The Government has already responded to the concerns here by agreeing to bring forward to 4 September the date by which a report will be made.

In many respects, the key issue here—which a number of noble Lords raised, for perfectly understandable reasons—is the need to keep focused on what we are trying to achieve through the reports we are discussing today. That is to ensure that Parliament is kept abreast of the ongoing aspects of the talks in Northern Ireland. However, I have stood here on many occasions and said that it would be inappropriate for me or my right honourable friend in the other place to give a running commentary. That is for one simple reason: we must give a clear and safe space in which those negotiations and talks can unfold. It is perhaps not enough for us to simply say, “Nothing to see here, move on”. We need to recognise that.

The votes were close in the other place, so some noble Lords might argue that we should give Members there an opportunity to think again. However, it is important to point out that the closest vote of all was on the addition of fortnightly reporting requirements, which the Government lost—although noble Lords are not proposing that the other place should be asked to think again on that one.

These amendments tabled by noble Lords are broadly very similar to those already rejected by the other place. They would require the initial progress report, as well as fortnightly ones thereafter, to be considered by Parliament and be subject to an approval Motion. However—again—in many respects, each element of this has nothing to do with the situation in Northern Ireland, which has necessitated the Bill in the first place.

As we speak to one another and the people of Northern Ireland, it is important that we recognise that this Bill serves a principal and singular purpose, which is to ensure that we give an Executive the appropriate space to reform.

[Baroness O’Loan]

I thank the Minister for giving way. If the Bill serves a principal and single purpose, why are the other clauses being admitted to it and why are the Government supporting them? It seems to me that this contradicts the position that the Minister has just articulated.

[Lord Duncan of Springbank]

The noble Baroness raised those points before. I say once again that the question of scope is not for this House; it was a question determined by the other place. On that point, it was not the Government or Opposition who won or lost; it was the will of the other place taken in a vote of conscience. There was no government Whip whatever in the other place. Those majorities were singular and significant; we as a Government heard them and must respond.

On the issues that we are discussing here, the majorities were not significant or singular; indeed, they were remarkably anything but. I stress, as I say these things now, that we need to recognise that which is germane to the issues in Northern Ireland and that which is a vehicle for another purpose—perhaps a Brexit purpose, divorced and distant from the thing we are here to discuss. I do not doubt that noble Lords will seek to find by other means a way to ensure that the future leader of this country, whoever that individual may be, is held to account by both the other place and this place. That is right and proper, but there are other means by which it can be done; this is not the right vehicle by which to do it.

[Baroness Smith of Basildon]

I thank the Minister for giving way. I am intrigued by his argument that there are other ways in which this could be done. Will he expand and tell us what they are?

[Lord Duncan of Springbank]

The noble Baroness almost got me on that one, but she will not be surprised to know that I, too, will not be drawn on those matters. It is important, as we circle back to where we began—

[Lord Cormack]

Does my noble friend the Minister agree that it is always right that the Government should be accountable to Parliament and not the other way around, and that Parliament should never be the creature of government?

[Lord Duncan of Springbank]

It would be easy to answer that in a simple way, but I suspect that tucked inside the question is a matter for greater constitutional scholars than I. I stand before noble Lords not, I am afraid, as a lawyer but as a humble geologist. I therefore feel ill-equipped to answer a question of that august nature.

In returning to the point before us, I say that this is not the right way to achieve these ends. The other place has spoken on these matters. It has spoken in a voice which we have heard on other issues and should hear today. I would ask that these amendments should not be pressed. I do not believe that they give comfort to the ongoing talks in Northern Ireland, and nor do they progress the important aspects for which those talks have been set up.

[Lord Anderson of Ipswich]

My Lords, I am grateful to the Minister and noble Lords, and for the support that these amendments attracted. I hope it is now clear that it is not the purpose of this amendment to prevent the United Kingdom from leaving the European Union on or before 31 October; it would not be apt, and it is not intended, to do that. I am grateful to the noble Lord, Lord True, for his research and I am delighted to have him as a social media follower, but my views on the wisdom or otherwise of Brexit are no more to the point of this amendment than are his.

I listened carefully to everything that was said and it still seems inescapable that, if there are any fetters at all on the absolute power of the Government in this matter, those fetters must be in the courts, in Parliament or, as a last resort, in the person of the monarch. I did not detect any enthusiasm from those who spoke against the amendments for any of those options. I found myself wondering what checks or balances on the authority of the Executive they were minded to acknowledge —but there we are. In short, I am undeterred by what I have heard. It may be—it is very likely—that I will come back to this on Wednesday. But, for the time being, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Smith of Basildon]

I think the noble Baroness misunderstood. I agree that Northern Ireland should sort it out, but a victim of violent rape who becomes pregnant and seeks an abortion faces a harsher penalty than her attacker. That seems quite wrong.

The House of Commons has voted on two issues, with substantial majorities. On Wednesday, we will have an opportunity to look at how the Government have responded to Conor McGinn and Stella Creasy; the noble Lord, Lord Hayward, will be bringing it here. We look forward to seeing what will happen. This debate has highlighted how sensitive this is, and that there are intransigent different points of view which I think cannot meet. We must do what we believe is right.

[Lord Duncan of Springbank]

My Lords, this debate has stirred a great many emotions. We have heard very powerful speeches from all sides of the House. To ensure that there is no confusion, I will be very specific, and, if you will forgive me, I will break precedent and read what I have to say; it will be easier for me.

Abortion is a sensitive issue. There are strongly held views on all sides of the debate, in Northern Ireland and the rest of the UK. Many of those views have been expressed during this debate and during the passage of the Bill in the other place.

We must recognise the clear will of the other place. That House sought a commitment that the Government would legislate in these matters. The Government respect the views expressed in the other place. Those views were expressed on a free vote, which is a matter of conscience. I stress that the amendments which have come from the other place are procedurally correct, and we must recognise them for what they are. My honourable friend in the other place, John Penrose, the Minister, very clearly set out the challenges represented by the devolution settlement before these votes took place. In doing so, he was careful to ensure that the other place was fully informed.

As I made clear at Second Reading, there are technical problems with the drafting of this clause which need to be resolved. On an issue as important as abortion, which relates to the health and safety of women in Northern Ireland, it is not enough to express the desire for change. The Government must ensure that the drafting of the Bill is effective and can, in practical terms, deliver the change that the Members in the other place want to see. Discussion is ongoing, with the support of the Government, to try to deliver a clause that works. Discussions have taken place with the two Members of Parliament who moved the amendments. I hope that, when we come back to consider these on Report, we will have amendments which are fit for purpose.

I appreciate that there have been a number of views on this issue, not least those that have touched upon the question of devolution itself within a constitutional framework, and not least those that have touched upon the moral questions underpinning abortion. It is right that the Government take no view on these matters; these are matters of conscience, and each individual noble Lord must look to themselves on these matters. We hope that we can make progress on these matters at the next stage. On that basis, and rather than for me to do a full round—

[Lord Kerr of Kinlochard (CB)]

The Minister referred to the constitutional argument, and he is the greatest living expert on the Sewel convention, mentioned by the noble Lord, Lord Morrow. The noble Lord implied —or perhaps was explicit—that, if we passed this Bill, we would be in breach of the Sewel convention. In my recollection, the Sewel convention says that we will not normally legislate without the approval or consent of the devolved Assembly. This situation, where we do not have an Executive and an Assembly, seems completely abnormal. Therefore, I cannot see how we could be in breach of the Sewel convention. I would be very grateful if the Minister, as the expert, could give a ruling.

[Lord Duncan of Springbank]

I am loath to use the term “ruling” on this one, if I may be frank. I understand the noble Lord to be correct; the Sewel convention allows for not acting under normal circumstances, but by any definition the situation that Northern Ireland finds itself in today is not normal. However, I would not like that to carry with it the weight of greater minds than I. I may have to put a very formal note to your Lordships later to confirm that, just in case I am in any way in error.

On that basis, I ask the noble Lord to withdraw the amendment.

[Lord Cormack]

My Lords, this has been a long and, at times, a difficult debate. When I introduced the amendments, with the support of my noble friend Lord Trimble—who has had to go to another engagement —and, in the case of the abortion amendment, the noble Baroness, Lady O’Loan, I said that this was an extremely sensitive and delicate subject, and the Leader of the Opposition the noble Baroness, Lady Smith, referred to that. I think that every word that has been uttered has at least underlined that I was correct on that.

The only thing I regret is that some people, perhaps because they felt hurt, have reacted in a slightly unfair way. Noble Lords must remember that my noble friend Lord Trimble, who supported both these amendments, is a man who perhaps has done more than any other individual in Northern Ireland to bring about the Good Friday agreement and serve his part of our great United Kingdom and his country with diligence and honour, and he is the last man who would be insensitive in these issues. Indeed, at Second Reading, he referred in a slightly jocular way to his own family experience of a daughter marrying another woman. When I was chairman of the Northern Ireland Affairs Committee in the other place, I had a great deal to do with the noble Baroness, Lady O’ Loan, who was then the Police Ombudsman for Northern Ireland. She is a great public servant, and it was an honour to deal with her. I met nobody at any stage in Northern Ireland who was more fair, more dispassionate or more concerned about the fate of those who had suffered in the Troubles. She was even-handed, almost to a fault. I was sad when I heard what the noble Baroness, Lady Boycott, said. It would be sad to believe that anyone who has spoken in this debate has done so with anything other than a passionate sincerity and belief.

When I introduced the two amendments, I began by saying that I was doing so for one reason only. It is nothing to do with my views on either of these subjects but because I have a very passionate view about Northern Ireland and the need to restore devolution. It was because of that that I tabled these amendments, which have received some support and some opposition. I am grateful to those who supported and I completely understand the deep feelings of those who have opposed them but, I repeat, the only reason I introduced these amendments is that I see devolution slipping away. I made the point at Second Reading that I see that we are moving inexorably towards direct rule, and I deeply regret that. I hope that, when those in Northern Ireland read this debate, they will realise—to quote again a current catchphrase—it is time for them to take back control. We need a Northern Ireland Assembly and Executive. I hope that what has been said collectively in this debate, from all sides of the argument, will convince people in all parties in Northern Ireland that they will be guilty of a dereliction of duty if they do not take back control.

Northern Ireland (Executive Formation) Bill

Lord Duncan of Springbank Excerpts

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

I just hope that, when the Minister goes back to his boss, who is involved in these talks, he makes it plain to her that, overwhelmingly and across the political divide in this Chamber, people are concerned that not taking the decisions that apply to schools, hospitals, roads, social services and welfare is talked about in the talks, rather than the limited issues that divide people. I know that ultimately what has caused these long two and a half years is a lack of trust between parties. It is mistrust. There is no trust and confidence between them. Until you have that, you cannot have a coalition set up by the Good Friday agreement. Of course it is that. While all this is happening, while they distrust each other, the people in Northern Ireland are suffering.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, I thank the noble Lord, Lord Empey, for once again bringing these matters before us. Yes is the answer to the question; we will commit to report on each of these items. I could sit down now, but let me flesh that out a little more. There is no point in producing a report that sits on the shelf. It needs to set out in detail the scale of the issue and the challenges to resolve it, and put forward means by which we can address them. We commit to reporting back on each of the issues the noble Lord has raised. Either I or, depending on events, my successor will do so. It is important to stress that we need to make progress on each of these.

On the RHI question, I had hoped to bring about more progress, but I was reminded of the limited powers that a Westminster Minister has when trying to deal with devolved civil servants where there are no direct means of instruction. We hope, as my noble friend Lord Lexden again said, that we will be able to address the hardships and the widest possible definition of them, bringing up the points made by the noble Lords, Lord McCrea and Lord Empey. It is important to see these in their broadest sense, as I said when I addressed these matters previously.

I can think of no issue more important to mental health in Northern Ireland than the question of suicide strategy. The noble and right reverend Lord, Lord Eames, was right to remind us of what a challenge it has been. I thank him again for the work he has done with the former paramilitary bodies seeking to return to a wider community base. We will be able, I hope, to do something with that. We need to understand the scale of the problem. The figures in Northern Ireland are shocking and we should be able to scale that, so we can see what has to be done. On the question of welfare mitigation, I give the same commitment: we will produce a report that sets out those aspects of mitigation that need to be addressed.

The noble Lord, Lord Hain, brought up the question of younger people. That was not part of the point of the noble Lord, Lord Empey, but I think it should have been, so we will commit to that as well. We have to see exactly how younger people are affected by this, so we will commit to that additional report alongside. It is important that we have that.

As to the question of libel legislation in Northern Ireland, we will report on that, although I am not sure exactly how. I am aware that my noble friend Lord Black of Brentwood will be bringing up this issue shortly. I will happily commit to meeting him and the noble Lord, Lord Empey, to talk about this separately, in addition to committing to that report. On that basis, I hope that the noble Lord, Lord Empey, will be willing to withdraw his amendment.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, in some ways the debate strayed further than the amendment itself. I was grateful to the noble Lord, Lord Hayward. His explanation of what he was seeking to do with the amendment before the Committee was very helpful. When the same-sex marriage legislation went through this House, there was a lot of debate about some of the issues that noble Lords from the DUP have addressed. It was made clear that that legislation is permissive. It is not compulsory: it is permissive.

I disagreed when the noble Lord, Lord McCrea, spoke about the fundamental building blocks of society. People in a committed, loving relationship should have the same opportunities as everyone, whether same-sex couples or couples of different genders, to be able to celebrate and demonstrate that commitment to each other as being a long-term, permanent commitment, and not be ostracised for doing so.

Having said that, I think the points about this being similar to the legislation in England and Wales were entirely well made, as the noble Lord, Lord Hayward, said. Like the noble Baroness, Lady Barker, the only part I have some concerns about is the educational institution. I was recently fortunate enough to meet the head teacher of Anderton Park School in Birmingham and was deeply impressed by her dignity and her commitment to her pupils. I would hate to think that we would be getting into a position where other head teachers who are trying to do their best for their pupils, trying to instil in them tolerance and a commitment to understanding society as it is, would face such difficulties as she and her staff have had to in very difficult circumstances.

I look forward to hearing what the Minister says but I would imagine that any legislation he is discussing with the noble Lord, Lord Hayward, and Conor McGinn from the other place would be along the lines of the legislation that we have here in GB.

[Lord Duncan of Springbank]

My Lords, this has been a thought-provoking discussion. I am often guided by my own beliefs and I recognise Ecclesiastes chapter 4, verses 9 to 10:

“Two are better than one … for if they fall, one will lift up the other”.


I am heartened by the remarks of the noble Lord, Lord Hayward, because I do not doubt that he will be working closely with Conor McGinn from the other place to ensure that what comes to this House carries with it the exact protections and care that we have seen in England and Wales and in Scotland. There are elements which need to be recognised in terms of the wider question of freedom of religion and freedom of expression, and I hope to see those protections coming through in an emerging amendment. As I said, the amendment from the other place has certain deficiencies and we hope to see those improved through the work which I do not doubt the noble Lord, Lord Hayward, among others, will help move forward.

It is important, again, that we balance rights, obligations and protections throughout, not least in schools, and we must make sure that we are teaching the reality of what is going on. We need to make sure that pupils understand the wider question of relationships before they ever engage in sex education. I draw a distinction between relationships and sexual elements; I think they need to be seen in that context. It is important to remember that these issues have been addressed previously in different parts of the United Kingdom. These are not new issues. The concerns of particular bodies are not new and on each occasion I believe that the different authorities, whether in Scotland or in England and Wales, have learned from the challenges and have ensured that the protections which they have put together are adequate to address the concerns raised by noble Lords.

I appreciate the concerns which noble Lords have expressed. They are right to recognise that there is throughout Northern Ireland and elsewhere a particular constituency which sees the faith-based approach to marriage as an integral part of it. I do not doubt the validity of that or the importance of recognising why that must be accepted and trusted, but at the same time the wider context needs to be considered. I hope the amendment we see coming forward addresses these issues. On that basis, we hope that this amendment can be withdrawn. My final point is: congratulations to the noble Baroness, Lady Barker.

[Lord Morrow]

My Lords, I have listened carefully to what has been said in response to this debate and sometimes I end up more confused, but that is maybe more to do with me than anyone else. I take some comfort from the fact that the noble Lord, Lord Hayward, has grasped exactly what we are trying to do here, and I will be watching the progress of this with deep interest. Maybe on this occasion I can look more to the noble Lord, Lord Hayward, for some protection because he has not tried to throw in other issues that are not there.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I rise very briefly to endorse and thank my noble friend Lord Hain and his supporters for bringing this forward. As he mentioned, of all the posts I ever had in government, my role as a victims Minister in Northern Ireland was the one that stayed with me and affected me the most. The euphemistically named Troubles left a legacy of not just physical pain but mental pain and anguish that affects later generations and both sides of the community, as we have heard. A lot of people were caught up in things that they knew nothing about. I remember talking to one man about his experiences. Every year, a paper would print a photograph of a bus that had been wrecked in a bombing. His father had died on that bus, yet nobody thought of the pain it caused him to see that photograph printed on the anniversary year after year.

This is not just about the financial need people are in. It also gives recognition to those victims and survivors who will receive a pension and those who will not but who recognise how important it is that the suffering and trauma experienced by victims over many years has been recognised. This is also about health. Many have not undertaken the employment they could have done, which had a financial knock-on effect. This is long overdue. I am sure there is more that can be done over time for those who have survived, but I think this is a really important step. I am encouraged that we are all anticipating a very positive response from the Minister.

[Lord Duncan of Springbank]

My Lords, I believe I can give that positive response. The noble Lord, Lord Hain, has given a great deal of leadership. A number of Members of your Lordships’ House have worked very hard on this matter, as have members of my team in the Northern Ireland Office. The noble Lord and I discussed earlier some technical improvements that need to be made, which I believe we can make tomorrow. The noble Lord has also raised the question of a money resolution and a consolidated fund. I believe we can address that.

I was privileged to meet a number of the survivors from the WAVE Trauma group. I recognise what they have been through. I thank the noble Lords here who have given that commitment to ensure that their voices have not been lost or forgotten. Every day we lose from here on in is one day too many. On that basis, I hope the noble Lord, Lord Hain, will withdraw his amendment.

[Lord Hain]

My Lords, I thank the Minister for his very positive response and all those who have contributed to the debate, including the noble Lord, Lord McCrea. I am happy to withdraw this amendment and table a revised version tomorrow, which I hope will be acceptable to the whole House, including the Government.

--- Later in debate ---

[Lord Hayward]

I do recognise the difference. It is in the noble Baroness’s own words, “some form”. The form in which this is laid out is quite specific, and it is no more and no less than a blocking amendment.

[Lord Duncan of Springbank]

My Lords, this has been a challenging discussion. I will be very clear. We have received from the other place an instruction on a free vote where it was a matter of conscience. No party set out to move this matter forward. It belonged to no party in particular; it was a free vote. We have received a clear instruction; indeed, the majorities were very significant on this matter. It is therefore important that we recognise that we have an obligation to fulfil.

On that basis, we will not be able to support the amendment as put forward. I will briefly explain. Consulting the MLAs does not absolve us of the responsibility of ensuring that the amendment is delivered in a practical, workable and timely fashion. Those are the instructions that we have received from the other place and those are the instructions that we shall follow. On that basis, we will hopefully be able to move this matter forward.

I do not doubt that many views will be expressed on this, and that is important. Indeed, I suspect that the noble Baroness and I agree that this would be far better resolved by the Executive reforming. That is the purpose of the talks. If that Executive can reform, this matter can be addressed in Northern Ireland. Get the Executive reformed. On that basis, I hope that the amendment can be withdrawn.

[Baroness Smith of Newnham (LD)]

The Minister suggested that this was an instruction from the House of Commons. I am still relatively new to this House. I thought that this Chamber was essentially bound by manifesto commitments from the ruling party going through the House of Commons. As the Minister said, that was a free vote in the House of Commons. If a free vote in the House of Lords gave a different result, would that not count? How is the Minister bound only by the House of Commons?

[Lord Duncan of Springbank]

If this House divides, it will be a matter of conscience. If this House divides and takes a different opinion, we will send that opinion to the other place. On that basis, I hope the noble Baroness will withdraw her amendment.

[Baroness O’Loan]

My Lords, I thank noble Lords for their contributions. I particularly thank the noble Lord, Lord Shinkwin, for a magnificent defence of those who are disabled even before they are born. As I said, I have listened carefully. I alluded to the timescale of this Bill. Second Reading was last Tuesday in the Commons; we got the amendments here on Wednesday morning. We have had a few days when Northern Ireland has been off, and now we are forced into a position in which we still do not have the government amendments for the day after tomorrow that are going to make this unworkable Bill workable. We have very little time to reconsider, think, contemplate and consider what the Government are suggesting. How terrible that the future of a generation of unborn babies should rest on these few hours in this place or the other place. I beg leave to withdraw the amendment tonight, but I reserve the right to return to the issue in future.

--- Later in debate ---

[Lord Eames]

My Lords, the question of the definition of a victim has bedevilled many efforts to deal with the legacy of the past. My mind goes back years to when Denis Bradley and I produced our report. We struggled way back then with the definition of who was a victim. As the noble Lord, Lord Empey, just said, the exchange with the noble Lord, Lord Hain, earlier on threw considerable light because until there is a definition of victim, not for Northern Ireland alone but across the United Kingdom, that is accepted and incorporated in legislation and used in political dialogue, we will continue to come up against the brick wall of this definition.

Therefore, I welcome what the Minister said in his exchange with the noble Lord, Lord Hain, because in the work that we have already done on the disabled and the victims of the Troubles, as the Minister knows, we have found many new avenues of dealing with disability and legacy in these matters. I am very hopeful, as has been said already, that we are on the verge of getting an acceptable definition of a victim.

[Lord Duncan of Springbank]

My Lords, I appreciate that the definition of a victim has bedevilled a number of people over a great number of years. I read with great interest the Eames-Bradley report, of which the noble and right reverend Lord is one author, Applying appropriate caveats to our earlier discussion with the noble Lord, Lord Hain, regarding the victims’ pension, there are distinctions. None the less, if indeed, as the noble Lord, Lord Empey, has said, these could perhaps be the seeds of a particular solution, we may be closer to a definition than has been the case for some time.

The Government have already accepted a reporting requirement to publish a report on or before 4 September 2019 on whether the definition of “victim” in Article 3 of the Victims and Survivors (Northern Ireland) Order 2006 should be revised to apply only to a person who is injured or affected wholly through the actions of another person. In addition, my honourable friend the Minister of State John Penrose committed in the Commons that Her Majesty’s Government recognise that the definition of a victim is something that a number of honourable and right honourable Members have campaigned on for a number of years, and commit to looking UK-wide at how we can make sure that victims are duly protected. That is a step in the right direction. We are closer than we have been before. Of course, there is still some way to go. I recognise that historically there have been challenges, which I noted earlier, and I am aware that the parties in Northern Ireland themselves have not always reached consensus on this particular approach. If we are indeed closer, I hope that we can make some progress and on that basis I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Morrow]

My Lords, when I introduced my amendment, I said that I would keep before me what was said during the earlier debate on the amendment of the noble Lord, Lord Hain. Having listened to what has been said, I will not press the amendment tonight. Rather, we will watch progress on this matter. But the Government should take note that this matter has to be dealt with. It will not go away. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Empey]

My Lords, this issue has been raised many times. The noble Baroness, Lady Smith, may have deprived the House of 12 minutes of her prepared speech, but the parties in Belfast could still surprise us. It has perhaps been a depressing day listening to these debates, but there is always hope. I hope that they will surprise us and start to deal with this matter themselves. However, I have to say to the Minister that this is a bit like the carrot in front of the donkey: the closer we seem to get the more it keeps moving away, and it never gets to the point when something actually happens. I accept that the fact that there is money involved has its own implications, but I hope the noble Lord will be able to tell us that this will happen, and happen on a realistic timescale. Sadly, Sir Anthony did not live to see this, but it would be a tribute to him if it could be introduced as soon as possible.

[Lord Duncan of Springbank]

My Lords, I think we can make some progress this evening. I thank the noble Baroness for tabling her amendment. There is urgency. The last time the matter was discussed I said that the Government stood ready to move this through Westminster with a degree of urgency. The issue now, of course, is that Sir Anthony Hart’s recommendations have been considered by the parties, which have reached a consensus—but it differs from the original proposals in the Hart recommendations, so there needs to be some redrafting. We anticipate the redraft coming towards the Government in the next couple of weeks.

The route that the noble Baroness has chosen is one that might introduce a delay, and I do not think we need to do that. If she is willing, I will commit, in the absence of a sitting Assembly, to the Government introducing primary legislation on historical institutional abuse before the end of the year—which I believe would satisfy her requirements. On that basis, I ask her to withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister. On that basis, I am very happy to withdraw my amendment.

Northern Ireland (Executive Formation) Bill

Lord Duncan of Springbank Excerpts

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

I therefore hope that noble Lords will support the amendment if the noble Lord, Lord Anderson, decides to divide the House. I hope he will, and if he does we will follow him.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, we have begun a debate today on the extension of Executive formation opportunities in Northern Ireland. I take the opportunity to return our focus to Northern Ireland for a brief moment. I do so recognising that precious few of the noble Lords who have thus far spoken chose to focus on Northern Ireland today. There have recently become a remarkable number of experts on Northern Ireland, but it appears they are not here during this part of the discussion.

It is no surprise that this is a challenging time for Northern Ireland. It had been our hope that by the coming August we would have secured a resolution and brought the parties together in such a way that an Executive could have been formed. I believe we are moving in the right direction; I now genuinely believe that there are real prospects of doing so.

This Bill has a very simple purpose. As it began its journey, it was simple and in very few paragraphs. We need a little more time, and the ambition is to extend that to 21 October, with a possible extension thereafter into January to allow for that Executive to re-form.

The request for updates on the talks in Northern Ireland is important; I do not doubt that for a moment. The noble and learned Lord, Lord Goldsmith, rightly says that Northern Ireland has been at the centre of so much of Brexit, but I must draw a distinction between Northern Ireland at the centre of Brexit as the border question has played through and the talks themselves. They need to be recognised as being in two different categories, and it is important to do so.

A number of noble Lords—not least the noble Lord, Lord Anderson, who opened the debate—said that this is really not just about the reports. The debate that followed expressly shows that it is not just about those reports. He quoted Iris Murdoch. I am a big fan of Iris Murdoch. I was reading her book not long ago. Thinking about these reports coming in in small doses, there is a quote from The Sea, The Sea:

“One of the secrets of a happy life is continuous small treats”.


Whether these reports will be continuous small treats remains to be seen. My fear is that those reports will not show a great deal because the discussions within that room are not particularly useful for wider debate at this time. But I dearly hope that we do not need this extension and that we will return to normal government in Northern Ireland. But I fear right now that it would be remiss of us as a Government if we did not seek to extend.

The amendments touch on much deeper issues than I am normally called on to talk about. It will not come as a surprise to the noble and learned Lord, Lord Goldsmith, that I have not received a call from Mr Johnson. Who knows? I might receive one next week. Who knows what is going on at this particular moment.

The important thing for me to stress today—and I do not think it is labouring the point—is that we need to be sure that when we speak of Northern Ireland we are clear in the message that we are sending to the people of that Province. The message that we send today with this particular suite of amendments is a simple one, which is that we can use Northern Ireland for different purposes when we choose to do so. I know that the rest of the debate will focus very significantly on the serious issues of Northern Ireland, but we have not started that part yet. This part is about a constitutional question and, as a number of noble Lords have said, it is about Brexit. So be it. I cannot change the motion in which we have moved in this particular direction. But a number of noble Lords have expressed their views on different sides. For me, the key thing is to keep us focused on the important aspect, which is the delivery of an Executive in Northern Ireland. That must be our principal aim. On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Goldsmith]

We all hope that the Minister receives a call next week, whether from Mr Johnson or Mr Hunt. We want to see him back in that place. But does he not agree that for the people of Northern Ireland, whom I know—although maybe not as much as the Minister—because I was Attorney-General for Northern Ireland for six years, the consequences of a no-deal Brexit, which have been widely described as so damaging, would be just as bad for them as for the rest of the United Kingdom?

[Lord Duncan of Springbank]

The aspect of a no-deal Brexit that has been discussed here is an important one and has been discussed on a number of occasions in your Lordships’ House and in the other place. It is important to Northern Ireland: I do not doubt that because I have seen it myself. I recognise and have said on more than one occasion how important it is and how different it would have been had an Executive been in place during this period, when those voices could have been part of a wider debate. There is not a single person who does not regret the fact that those voices have been silent for far too long when we could have had them contributing, not least on the question of the Irish border. But we are talking today about a simple and focused aspect, which is extending the window during which there shall be no elections in order to secure a newly formed Executive. That is the key to the discussions today and should be the focus. I am also very happy to get a call from Mr Hunt.

The important thing to stress now is that at this point, I do not believe that the amendment takes us in the right direction. On that basis, I ask the noble Lord, Lord Anderson, to withdraw his amendment.

[Lord Anderson of Ipswich]

I am most grateful to all noble Lords who have spoken and in particular to the Minister for his courteous response, I do not think that we should prolong things by hearing any more from me. The issues are clear. I do not propose to press Amendment 2, but I want to test the opinion of the House on Amendment 3.

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[Lord Duncan of Springbank]

My Lords, this is a historic moment. I am struck. Let me begin in an unusual way, with a quote from Sara Canning, the partner of Lyra McKee. She made a statement to Theresa May, saying that:

“I wanted her to know that Lyra and I had a right to be treated as equal citizens in our own country. Surely that’s not too much to ask?”


I am grateful to my noble friend Lord Hayward for tabling Amendment 11, and doing so in a manner which addresses the technical deficiencies in the initial amendment from the other place.

I have heard comments on a number of issues tonight. I do not make a habit of quoting scripture, but I will tonight; I think it is important to do so. I quote 1 Corinthians, chapter 13, verse 7:

“Love never gives up, never loses faith, is always hopeful, and endures through every circumstance”.


The majority by which the other place made its decision was quite significant—a majority that my party can now only dream of. It is a reminder that, had the Executive re-formed in the past, this matter would have been taken forward in Northern Ireland. That is the important part to stress, but we cannot overlook what has arrived from the other place.

I will touch on a number of the issues raised, because it is important to do them justice, but I will do this slightly the wrong way around. The noble Lord, Lord Morrow, raised the issue of religious protection and religious freedom. He is right to do so, because there needs to be an understanding among all faith-based groups in Northern Ireland that they will not be compelled to act against their faith, their religion or even their opinion.

However, I come back to how we seek to move this forward. The question centred around the words “may” and “must”. I need to drill down into that to make sure this is fully understood. The words “may” and “must” are not about the protections or the fundamental realisation of them. Article 9 of the European Convention on Human Rights guarantees the right to freedom of religion and freedom of conscience. That is not in doubt, not debated and not disputed, and will not be in any way eroded by anything we do here today—full stop. It is important to remember that all the legislation will comply with that and ensure we move that forward. Absolutely at the heart of this must be a belief in Northern Ireland that faith-based groups will not experience some sort of prejudice because they express their faith in fashions which do not recognise the situation today.

As the noble Baroness, Lady Barker, said only the other day, she would not wish to get married somewhere where she did not experience that love. Marriage is not a confrontation with other religions or an attempt to undermine them. Marriage is not an attempt to do any of those things at heart. It is, at heart, about love; that is the important thing we need to stress.

I thank my noble friend Lord Hayward for moving forward in this fashion. I commend his speech to the House; he has done most of the heavy lifting that I would have had to do. He has done justice to the task of addressing a number of technical deficiencies. It will be important to recognise how these will play out in Northern Ireland. This is an issue where we need to be as careful as we can be.

I need to stress that I do not have any concerns with Amendment 11 as now drafted. The dates in there will be a challenge—I put that front and centre—but we will meet those deadlines, by hook or by crook. I apologise to the officials who we will look to for this, but I am making that commitment. The reason the timelines are as they are is to recognise that this is not straightforward. When we looked at some of the aspects of same-sex marriage and civil partnership elsewhere in these islands, we recognised that they carried challenges to other pieces of legislation, which needed to be addressed. That is why we need a timeframe of nine months post Royal Assent. The amendment necessitates that we move faster than that. However, this is the truth of it, as we recognise some of the stumbles and challenges which have been experienced elsewhere in this kingdom and learn from them. It is important to draw on the experiences in Scotland, England and Wales, which should help us. Addressing the point made by the noble Lord, Lord McCrea, I say that it is important to stress that we are looking at an opt-in process. One would not be compelled to act against one’s faith or strongly held beliefs.

I am aware that this provision will not be welcomed in every quarter of Northern Ireland, just as it was not welcomed in every quarter of Scotland, England or Wales, but, as other noble Lords have said, time has moved on. It is time to move this one on. A message is being sent to Northern Ireland. I wish this had been done in Stormont; it would have been stronger had it been done there. I would much rather not be standing here doing it, but it needs to be done. We are acting on a very clear instruction from the other place, having recognised that the instruction required certain adjustments, for which we are very grateful to the noble Lord, Lord Hayward. On this basis, I hope that the noble Lord, Lord Morrow, will recognise that we are not seeking to undermine in any way the religious freedom or the conscience of anyone in Northern Ireland who holds a faith dear. I hope that the noble Lord, Lord Morrow, will not press his amendments, and that we can move forward with Amendment 11 tabled by the noble Lord, Lord Hayward.

[Lord Morrow]

My Lords, I have listened very carefully to what has been said around the House this evening. I thank all noble Lords who have taken part in this debate. It was remiss of me at the beginning not to thank the staff of the Bill office for their assistance. They have been very busy of late—I suspect they are busy all the time, and this is just a normal day for them—but they were very gracious and helpful.

Some noble Lords, including the Minister, have quoted other people. I had intended to say more, but I am not going to. I am not going to say his name, because he does not come from the same side of the political spectrum as me, but I want to quote one of our well-known politicians, known to everybody in this House:

“In Northern Ireland, we have a tendency to look at who is saying something rather than what is being said”.


I trust and pray that, tonight, your Lordships’ House will not be guilty of the same. It is my intention to test the opinion of the House on this matter.

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I realise that this is a very contentious subject; anybody who has followed our debates so far will know that. But it is reasonable for noble Lords to be aware that those of us who have brought forward this amendment have done so following extensive consultation with people in Northern Ireland who have, for many years, tried to ensure that women there have access to services that mean that their human rights are no less than those of women in other parts of the United Kingdom. I realise that this subject may be slightly more complicated than that which we have just left, but I hope that the Minister and other noble Lords will join with me in seeking to expedite this, because women in Northern Ireland are in very grave need of change.

[Lord Duncan of Springbank]

My Lords, forgive me for rising at this particular juncture, which I would not normally do; I will return to the wider debate once it has completed. I think it is important that I respond to the noble Baroness, Lady Barker, and her important questions and provide some information to the House that may inform the debate as we progress.

The noble Baroness asked several questions that I wish to give some clear answers to. The first was on the consultation—that it should focus on provision, not on law, enabling women to access rights, rather than restricting them. A period of consultation is the right thing to do and would ensure people in Northern Ireland and all relevant organisations can provide input and views. However, I want to be clear: consultation would not be on the question of whether this should be done, but only on how CEDAW’s recommendations can be implemented in Northern Ireland. As to the question of human rights compliance in the regulations, let me absolutely clear: in setting up the new regulatory regime and relevant non-legislative matters, we will comply fully with our human rights obligations.

To answer the question of how we would meet our requirements if we publicly consult on measures that would restrict access to abortion, any consultation will not be about restricting abortion. It will be about how, in practical terms, to establish a new regulatory regime that fully delivers on the CEDAW recommendations. I confirm that the Northern Ireland Office is clear that human rights commitments mean that women will never be forced to disclose rape and that a consultation will not lead to this. That is a very important question. The CEDAW recommendations set out that abortion must be provided in cases of rape and incest, but not how this should be done. This will need to be considered carefully, given the sensitive and distressing nature of these circumstances. In doing so, the health and well-being of women will be first, foremost and paramount in these considerations.

Reference to the Criminal Law Act (Northern Ireland) 1967 and the obligations on the medical professions is an important consideration. That is why in developing proposals to meet the CEDAW recommendations, we will give the most careful consideration to issues such as rape and sexual assault; and why it is important that we make these proposals in discussion with medical and other organisations, which understand and support women who have endured these horrors.

On the question of why consultation itself has to be carried out under Section 75, the equality duty under that section requires designated public authorities in Northern Ireland, including the Northern Ireland Office, to,

“have due regard to the need to promote equality of opportunity”,

in relation to the nine equality categories, and to the desirability of promoting good relations,

“between persons of different religious beliefs, political opinion”,

and racial groups when carrying out their functions in Northern Ireland. The Northern Ireland equality scheme notes that consultation is usually undertaken over a 12-week period but that in exceptional circumstances, it can be reduced to a period of eight weeks or less. In any case, our equality scheme requires us to consult on the equality impact assessment at the appropriate stage, so consultation in one form or another will be required.

We also undertake to ensure that consultations will seek the views of those directly affected by the policy reform: the Equality Commission, representative groups of Section 75 categories, other public authorities, voluntary and community groups and other groups with a legitimate interest in the matter. It is our strong preference that, given the significant reform Clause 9 seeks to achieve—creating a decriminalised and, instead, a medical-model regime for the provision of abortion services in Northern Ireland—we undertake a consultation period of between eight and 12 weeks. We appreciate that there is existing evidence supporting the type of case for reform; that includes legal judgments, domestic inquiries and international reports. But these do not set out a clear path forward that can be directly translated into regulatory and other measures. That is why consultation is required.

Generally, there is a strong argument for consultation in terms of making good public law and a reduced risk of future legal challenge, which I cannot emphasise enough. I am sure that my colleagues on all sides would agree that we must ensure that the reform is correct, for the health, safety and well-being of the women affected, and that it is appropriate to provide clarity regarding the safeguards in place for the medical profession. That brings up the conscience concept.

I can confirm that the Government will work expeditiously between now and 21 October 2019 to ensure that we take all possible steps to be ready to implement changes if the Executive are not restored thereafter—let me get that right: restored before. The whole thing could hinge there, so let me reread that sentence to avoid any dubiety. I can confirm that the Government will work expeditiously between now and 21 October 2019 to ensure that we take all possible, necessary steps to be ready to implement changes if the Executive have not been restored by that time.

If it is accepted that a consultation has to be carried out under Section 75, can I confirm that the substantive point will be how women will obtain access to abortion and not whether they should be able to do so? I want to be absolutely clear: consultation would not be on the question of whether this should be done but only on how the recommendations of CEDAW can be implemented in Northern Ireland. How will this be reflected in a drafting process and consultation? The consultation will make it explicit that we are consulting on how to deliver CEDAW recommendations most effectively, not on whether we should be taking forward this reform. We will want to engage with the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission to ensure that our consultation is drafted in the most effective way, to ensure targeted engagement on how we propose to proceed. I hope that this information is helpful to the House.

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[Baroness Smith of Basildon]

I listened carefully to the noble Baroness, Lady O’Loan, and there is some distance between us; we do not agree. As I pointed out, this is a matter of conscience and we should all respect other people’s views. We have to do what we believe in our own conscience to be right.

[Lord Duncan of Springbank]

My Lords, I have a large number of pieces of paper. If you will forgive me, I will just assemble them into an order I can make sense of.

As it was at earlier stages, this has been an emotive and thought-provoking discussion. I spoke earlier to, I hope, help the debate to be informed. On choreography, I always welcome people giving me the questions beforehand, because it helps me work out the answers. It really is as simple as that; it is not collusion in any sense. It may well have been that I gave the noble Baroness answers she did not like, but the point was that I knew at the outset what the questions would be.

The noble Lord, Lord Dubs, began his contribution by asking why the length of consultation could not be the same for abortion as for same-sex marriage. There is a relatively simple explanation for that. On same-sex marriage, we have established precedent in England and Wales, and in Scotland, that can be built on in a straightforward manner. What we seek to do in Northern Ireland is quite different; there is no roll-across regime we can borrow from. As a consequence, the new elements of that will require a fuller consultation. We cannot equate the two consultations, because they seek to consult on quite distinct and different elements.

I welcome the thought-provoking contribution today from the noble Baroness, Lady Finlay. She raised the issue of conscience. I know that a number of Peers have been concerned about the conscience element. As I did during previous discussions, I stress again that the conscience element must be at the heart of this. We cannot compel any practitioner to act beyond their own conscience. We must make sure that that is understood in the guidance that will be issued thereafter to all those involved in this process; that is absolutely critical.

The noble Baroness, Lady O’Loan, raised a number of issues. If she will allow me, I will do my best to do justice to them. The first, which I think I touched on the last time we discussed this, was the Sewel convention. The important thing to recognise is that under normal circumstances we shall use the Sewel convention, but I do not think there is any doubt that we are not in normal circumstances. The Sewel convention in this instance will not apply.

The question that I suspect my noble friend Lord Elton, the noble Baroness, Lady O’Loan, and others will raise is that of what happens during that limbo period when we move away from where we are now but before we have brought into play the functioning abortion regime. It is important to stress that, although we are looking at the 1861 Act and the elements we shall remove from it, during this limbo period the Criminal Justice Act (Northern Ireland) 1945 will still apply. Section 25 will still apply; this makes it a criminal offence to destroy any life of a child capable of being born. That will apply during that limbo period, until we have got to the stage where we have the newly functioning regime.

[Baroness O’Loan]

To what period does that apply? My understanding was that the legislation said “twenty-eight weeks”. I just want to clarify that.

[Lord Duncan of Springbank]

There seems to be some discussion on this, but I have the answer to that as well. There is some debate on the exact number of weeks at which a foetus will be viable, but it is around 22 to 24 weeks. The important thing to stress here is that we are not repealing that Act, and there will be no period during which there will be any sense of an opportunity or free-for-all for that aspect to be in play. It is important to recognise that. We cannot have that misunderstood as we move through.

[Lord McCrea of Magherafelt and Cookstown]

The Minister was talking about 22 to 28 weeks; then he said “the foetus”. A child born at 22 weeks who lives—that is happening; as a minister I have seen and visited many little ones born at that time—is not a foetus but a child.

[Lord Duncan of Springbank]

In response to the noble Lord, I am a scientist. On occasion I will use scientific words, and on this occasion I just did. That was snippy. I am sorry; that was not my intention. Forgive me for that, but frustrations can come out in debates such as this.

As we look at these matters, it is important to try as best we can to be as sensitive as we can. I fully understand the point raised by the noble Lord. There will be a range of views across this House on these matters. It is right that we understand and respect those. As we move this matter forward, we seek to give effect to the legislation as it progressed from the other place. The important part that I need to stress—it is important for me to do so and be understood—is that the date within the Barker et al amendment, as currently drafted, would cause the Government some difficulty, because we would be unable to deliver the very consultation we have discussed within that timeframe.

[Baroness Browning]

I am sorry; I must be missing something here. Can my noble friend just explain to me why it is that if this amendment proceeds the timescale for the foetus is not the same as in the legislation in the 1967 Act? Foetal viability—whether it survives—is gauged only after the foetus is born and becomes a child. What does 22 to 28 weeks refer to? I have not been able to find it in any of the words on any of the papers available tonight.

[Lord Duncan of Springbank]

It is important to recognise here that we are not discussing the 1967 Act at all, I am afraid. That will not be moved across in any way. Right now, we are looking at a new regime that will be constructed in Northern Ireland. In answer to the earlier question from the noble Lord, Lord Dubs, about why the consultation period is longer, were we moving across the 1967 regime we would, in truth, be able to do this a little more swiftly. We would be doing so on the basis of established precedent and rules that exist within the current scheme. However, we are not doing that. The instruction we received from the other place was quite clear.

There is this question about why there are no government amendments to move forward on this matter. The simple answer to that is that, at present, we have received an instruction from the other place—

[Lord Elton]

No, it is not an instruction.

[Lord Duncan of Springbank]

Let me answer my noble friend Lord Elton. If we are not able to move it forward, it will not be just an instruction—he is quite right—but the law. That is different, because it will be the law that will move forward, and we as a Government will struggle with that deliver what we need, which is a safe and secure system that places women at its heart. We will not be able to do so in the time limit we have set out, and that is the reason we have a problem. My noble friend Lord Elton, is absolutely right: we are not talking about an instruction. This is a law that will come into force, which we will have some difficulty trying to maintain and will potentially allow itself to be opened up to further judicial interrogation and review. Ultimately, this will do a disservice to honourable Member in the other place who has tried to move this forward in the manner in which he has.

[Lord True]

This is a minor point, in some ways, but it is fundamental. Nothing can be law unless both Houses agree to it, so while this is not agreed by both Houses and assented to by the monarch, it is a law in the making. I am concerned about the process here, as I referred to in an earlier debate. It is not desirable. In the light of that, in a fast-track process we must have clarity. This has been asked by various Members in this House: what is the guarantee that there will not be a case in Northern Ireland where a child—or foetus, if the Minister likes—is aborted after more than 24 weeks in the period after the passage of this law? What is the guarantee? What is the safeguard in law? What is the case law on the subject? Perhaps my noble friend the Minister will able to advise the House before Third Reading.

[Lord Duncan of Springbank]

The challenge that my noble friend sets me is a difficult one. I cannot give a guarantee in that regard because I am not in a position to control the situation in Northern Ireland nor the medical profession. It is beyond my ability to do so. What I have said is that before we have been able to bring in the necessary elements of the new regime, there will be a period during which we will be bound by the established earlier Act from the 1940s which will give the confidence that we are not seeking to undermine in any sense the practice that has gone on there. But we have to recognise that during that limbo period, health practitioners, doctors and others will not be in receipt of guidance from us because we will not be in a position to draft that guidance by that point and that will be the reality that we will face. It is not one, unfortunately, that I can answer or offer or afford any guarantees on.

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[Baroness Barran (Con)]

I remind the noble Lord that we may speak only once at this stage.

[Lord Duncan of Springbank]

I heard the noble Lord, if that helps, so I understand the point that was about to be made. I welcome that and appreciate it, as indeed I appreciate the comments from the noble Lord, Lord Empey. There is no doubt that, as the consultation process unfolds, these elements will be drawn on. We cannot simply ignore them.

It is important to ensure that the regime that we bring in to Northern Ireland is human rights-compliant—that is absolutely at the heart of this—and that within those human rights remain elements of conscience and freedom of expression which we also spoke of earlier when we spoke about same-sex marriage. The amendment would also see the repeal of Sections 58 and 59 of the Offences Against the Person Act 1861, together with putting in place a moratorium against current and future investigations and prosecutions, which will decriminalise abortion in Northern Ireland, allowing terminations to take place where they fall within the framework of other existing protections and laws.

As this change will come in before the details of the new medical regulatory regime are finalised and that scheme is introduced, to mitigate the risk of abortions being carried out in circumstances that would fall outside the prospective regulatory scheme, we will ensure that appropriate measures are put in place, such as guidance issued by relevant Northern Ireland bodies, to provide legal clarity for the people affected and for the medical profession. Therefore, in answer to my noble friend Lord True’s point, our ambition is for this process to be recognised—and it will be a significant change—but to allow each step to take place in a carefully considered legal manner.

In putting in place the new regulations, it is only right that a period of consultation is taken forward, not on the question of whether this should be done but focusing on how it will be done and to seek views on the proposals for how best the recommendations of CEDAW can be implemented in Northern Ireland. That is our purpose. We appreciate that there is existing evidence supporting this type of case for reform, which we have spoken about before, such as legal judgments, domestic inquiries and international reports. We recognise those and have heard that case.

We will need to think very carefully about how we implement the CEDAW recommendations generally, including how we meet the recommendation to provide an exception in cases of rape and incest, which will require very careful consideration of the sensitive and distressing nature of these circumstances.

We will also consider all the necessary other amendments which may be required as part of the introduction of the new abortion regime. We will carefully consider the impact of Section 5 of the Criminal Law Act (Northern Ireland) 1967, including whether any amendments are required as part of the changes made elsewhere in legislation. The Government will work expeditiously between now and 21 October 2019 to ensure that all possible necessary steps are taken, but I return to the fact that I am still struggling with the ultimate deadline in the amendment. It is also important to stress at this point that our ambition is to try to realise this in a safe and secure manner for the women of Northern Ireland. That is the guiding point of this.

I was asked a question about abortions at 24 weeks. We can guarantee that no abortions will be carried out over 24 weeks. In this limbo period, it would be an offence under the 1945 Act as these would indeed be deemed to be viable, and would be children. I say that in response to the noble Lord, Lord McCrea. After the new regime, we would not introduce legislation that allowed later abortions than are taken in England or Wales. We would seek harmony.

[Baroness O'Loan]

I am sorry. I need clarity on this. It is very important. The Minister just said that, under the Criminal Justice Act (Northern Ireland) 1945 it would be a limit of 24 weeks. Is that what was said?

[Lord Duncan of Springbank]

Yes.

[Baroness O'Loan]

But the Criminal Justice Act would need amendment to get to 24 weeks.

[Lord Duncan of Springbank]

Not as I understand it, no. It would not. If I am incorrect, I will happily correct the record.

[Baroness Hayman (CB)]

I will attempt to be helpful. I think the focus on the 28 weeks comes from the Infant Life (Preservation) Act, which gave the number of weeks as that when we had the debates on the Act from the noble Lord, Lord Steel. As I understand from the Minister, the 1945 Act—which I am not familiar with—talks about viability and his solution to that problem was guidance that viability would have occurred by 24 weeks.

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[Lord Duncan of Springbank]

I thank the noble Baroness. That is very useful indeed. I ask my officials in the Box to remember that.

In drawing these remarks to a close, I am also conscious of the remarks about the affirmative procedure. I would be minded to accept that if things came forward in a fashion that would allow me to do so. As we are potentially at an impasse, I turn my attention directly to the noble Baroness, Lady Barker. We can discuss the date of the amendment before Third Reading in the hope that we can find that common ground. Returning to the question from the noble Baroness, Lady Finlay, I say that we may also be able to consider that as part of a common approach on the affirmative procedure.

I appreciate that this has not been an easy debate. I am fully aware—as a number of noble Lords have said—that this matter appears not to come under the title of the Bill. However, I return to the point made by the noble Baroness, Lady Smith, that these procedures have been deemed to be in scope. Indeed, I will go further and say that criticism of the other place in this regard is deemed to be out of order in this House.

[Baroness Smith of Newnham]

When I spoke before, the noble Lord indicated that he would respond on the issue of consultation.

[Lord Duncan of Springbank]

The noble Baroness wants a piece of paper that has now become buried in the strata on my desktop. It is important that we now recognise the reality of the time we have. The holiday period primarily limits our ability to begin any serious consultation. We will have to design it carefully. We anticipate being able to initiate such a consultation in the early autumn. In an ideal world, we could see it being 12 weeks but we may be able to pull it forward to eight. We have to recognise thereafter that simply doing a consultation is not enough: we have to consider its elements. We are not able to deliver the outcome of that by the October date.

Oh, I have the piece of paper with the questions that the noble Baroness asked—forgive me. I think I will be able to answer the affirmative vote question, which we can take forward at Third Reading, if that is possible. The question of freedom of conscience rests within our human rights commitments, to which we remain committed. The guidance must be very clear that no doctor, health practitioner, nurse or anyone else will be compelled to act beyond their conscience or beyond their tolerance in that regard. She asked about events. I have no idea what is going to happen, but we must plan in a smooth and careful manner. I am not looking forward to any serious election issues; I hope that does not happen.

That touches on the answers to the questions, I think. On that basis, I look across the divide to the noble Baroness, Lady Barker, in the hope that she is willing to consider it.

[Baroness Barker]

My Lords, I thank all noble Lords—particularly the noble Baroness, Lady O’Loan—for their contributions. It is extremely important that we have discussed these matters in the fashion that we have. At this late hour, I do not intend to say anything in great detail. I thank the Minister for the very thorough way in which he has addressed questions from all sides of the House. He has managed to put to rest a number of fears.

There are just three matters on which I need to respond. The first concerns Amendment 19A in the name of the noble Baroness, Lady Finlay. In the light of comments—not least those of my noble friend Lord Steel—I hope that she will understand why it would be inadvisable to go ahead with her amendment, and I hope that she will not press it.

The second and key point, made by a number of noble Lords, was whether there would be an interregnum in which there would be no regulation whatever on abortion in the Province. The answer to that is quite clear: there will not be. Notwithstanding what the Minister has said about what the Government intend, there are the professional ethics of bodies such as the RCOG, the RCGP and the Royal College of Midwives. Those bodies have backed this amendment but they have professional standards to which they must adhere. There is also general guidance in general medical law which would be unaffected by any of this.

Thirdly, I say to the noble Lords who pointed out the anomalies between different Acts of Parliament in relation to 24 or 28 weeks that that makes the case for updating the law, and this is an occasion on which we could do so. I take the Minister’s point about his problem with the deadline in my amendment, and I hope that we might be able to discuss that between this stage and the next.

This is an important matter and we have had an important debate. I therefore wish to test the opinion of the House.

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[Lord Shinkwin (Con)]

My Lords, I will speak in support of Amendments 16 and 16A. We have already heard how understandably upset the people and the politicians of Northern Ireland are at not having been consulted about our imposing massive changes on them on such hugely sensitive issues. But what we have not heard are the views of disabled people in Northern Ireland. For the simple fact is that, if the Bill becomes law, human beings in Northern Ireland with conditions like mine will suffer the death penalty for the crime of being diagnosed with a disability before birth.

I asked my noble friend the Minister several questions in Committee on Monday; he answered not one of them, so I will have another try. First, can he tell me what consultation has been carried out of people with Down’s syndrome or their families in Northern Ireland? The Prime Minister prides herself on the Government’s professed commitment to equality, so perhaps my noble friend the Minister could tell the House what effort the Government have made to establish how people with Down’s syndrome and their families in Northern Ireland feel about the prospect of human beings with Down’s syndrome being aborted and denied their equal right to exist? I would be very happy to give way if my noble friend would care to answer.

[Lord Duncan of Springbank]

Absolutely. This remains, at present, a fully devolved matter, and that consultation would be undertaken by the devolved entity. At the present time there is no devolved entity, and that consultation has not been undertaken by those MLAs or by the restored Executive; it is not there. We have been able to move this matter forward only since the instruction of the other place only a short time ago.

[Lord Shinkwin]

I thank my noble friend for his answer. In that case, I hope very much that he will accept Amendments 16 and 16A, since he has just emphasised his commitment to consultation.

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[Lord Duncan of Springbank]

I would not normally stand up at this point, but it is important to note that the consultation envisaged in the early amendments, which have already passed, would have that full consultation because disabled people in Northern Ireland are a protected group.

[Lord Shinkwin]

I wonder whether my noble friend could possibly help me with this question. Could he tell me why—

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[Baroness Smith of Basildon]

Amendment 16 actually proposes inserting a new clause, but that is slightly irrelevant. We have had a debate on Amendment 12 and are now looking at the requirement to consult MLAs. There is something slightly uncomfortable about this. I am certainly not opposed to consultation. I think that the best consultation that we could have on this issue would be more than consultation. I would want to see the Assembly up and running and making these decisions itself—a point that the noble Lord, Lord Bruce, made. It is not just a question of taking consultation on one issue in isolation; what is really important is the process of governance, where issues are weighed against each other, talked through and looked at in detail along with other information. I fully—100%—support local decision-making and the local responsibility that goes with it, but that is not what we are talking about here.

In some ways, we are almost talking about imposing a double lock on the Government. The amendment that they want to consult on—the new law, as it will be—requires the Secretary of State to bring forward regulations in the absence of a Northern Ireland Executive. Therefore, only in the absence of an Executive would the Government be able to bring forward regulations. However, it would seem somewhat strange to then say, “We haven’t got an Executive. The Government must take the decisions, but we’ll go and consult them anyway”. That seems almost like a double lock, preventing the Government taking any action at all while the Assembly is not sitting.

If that principle were imposed across the board, it would be very difficult for there to be any governance on any issue in Northern Ireland. It would be inappropriate to put the Government in that position when the Assembly has not sat for well over two years. Therefore, despite what I think are good intentions behind the amendment, I cannot give it any support.

[Lord Duncan of Springbank]

My Lords, in many respects this has been a longer extension of the earlier debate. I almost wish that someone had asked me a question at the beginning so that I could have stood up then. In fact, the MLAs will be consulted as part of the ongoing consultation envisaged with the stakeholders. However, the difference is that they will not get a lock on that, which would mean that only a majority could help us move forward. Therefore, the views of the MLAs will be taken and heard but they will not be a determining factor in arresting progress on this amendment. It is important to be aware of that as we make progress. It is also important, as I said when we discussed this issue a longer time ago, that the scope we are discussing is the scope we have received from the other place. The criticism of proceedings in the House of Commons, and those issues, are deemed out of order in the Companion. We have to accept that what has arrived here is something that we can act on and take forward, which we must do.

It is important to stress, throughout each of our discussions on this wider question, that the Government are not seeking to take forward an abortion amendment. We have received from the other place a clear statement, by a clear majority, on a conscience issue and a free vote. For good or ill, in response to my noble friend Lord Shinkwin, the Prime Minister, in this instance, would be able to exercise her conscience in the same way as anybody else in that House. This is not the UK Government’s policy, nor is it the policy of my party, but responsibility rests with this Government to ensure that what we are able to do in moving this matter forward is safe, sound and secure. That responsibility rests with us, and that is what we have sought to do in engaging with all noble Lords throughout this process—to ensure that we are able to deliver on that.

The discussion has ranged more widely than the question of consulting with the MLAs. I do not wish to extend the debate significantly in this direction, given that one of noble Lords’ concerns has been the scope from the other place, but I will touch on a few elements. By any definition, we have to accept that the situation in Northern Ireland is dysfunctional. The devolution structures that have been put together are not working. One can argue that the structures are at fault, or that the problem rests elsewhere, but the problem we face now is that the outcome is the same no matter which you decide is responsible. The situation that we face is serious, and I do not think there is a single Member in the House tonight who would not wish to see these matters taken forward by an Assembly and an Executive in Northern Ireland. For reasons that are all too apparent, however, certain parties in Northern Ireland are not able to deliver against that instruction. That is a great shame, as we probably all agree. We all recognise that noble Lords sitting here at this late hour should not be taking these matters forward in this fashion, but we are doing so because of a failure and a fault in the system in Northern Ireland

As the people of Northern Ireland look at what we are doing here, I have a sneaking suspicion that they are sick and tired of all politicians, of all rank and measure. They are tired and weary now because they seem to be in a situation where politicians are all over them when it comes to an election, then—lo and behold —seem to disappear when it comes to the heavy lifting. They now see all politicians of all parties, of all ilk and all places, in exactly the same way. That is a terrible situation to be in, and we need to restore the confidence and trust of the people of Northern Ireland in the elected system. We need to get the Executive up and working, and get this moving forward, but that is not what we are able to do through this amendment.

The noble Baroness, Lady O’Loan, has made a passionate speech this evening, and she has received a number of emails in response to a particular letter. I am sure we all have a large number of those in our inboxes now, but the number of emails needs to be judged against the population of Northern Ireland. The population is 1.871 million, and we need to recognise that the passion of those who have responded should be applauded, but it is not a means by which we can determine the view or the will of the people of Northern Ireland; nor should we consider it so. It is an important measure, but it is not in itself an adequate measure.

The amendment before us now broadly says that the MLAs must be consulted and their response to the consultation will determine what happens next. We cannot accept the amendment, but I stress that the MLAs will be consulted, and I can go further by ensuring that MLAs receive an update on each of the aspects that noble Lords will be updated on as a consequence of the earlier amendments from the other place. If your Lordships are so minded, we can ensure that MLAs receive exactly the same information that comes from the reports we have commissioned, or are about to commission, to ensure that they are fully abreast and aware of all of these aspects. We will do all we can to engage directly with the MLAs to ensure that they are fully aware of each step. I have no problem with committing to do that now, but I cannot have a lock placed on progress on this matter. That would place the Government in the invidious position of having been, both from the other place and through our own vote this evening, in a clear position, but then having to say that they must await the views of MLAs. We cannot have that, I am afraid; it would not be appropriate. I therefore ask that the amendment be withdrawn.

[Baroness O’Loan]

My Lords, I have listened with care to everyone who has spoken. I thank noble Lords who have spoken in support of my amendments. I will address a couple of issues before I give noble Lords my decision. There is a democratic deficit. The Minister is right: people are tired of politics. That is why I did not expect a response to the letter which the noble and right reverend Lord, Lord Eames, and I drafted, yet the responses continue to come in.

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[Lord Empey]

My Lords, I add my congratulations to the noble Lord, Lord Hain, on his persistence. I come back to the point that a number of victims appeared in the local press in Northern Ireland today and one theme went right across. Yes, they would welcome recognition through a pension—we often forget that a lot of these people have been unable to earn a proper living and provide for their retirement because of their disabilities, physical and mental—however, they would all be horrified if the people down the road who caused those injuries were to get a benefit out of this process.

I am not a lawyer but I understand that one of the critical things when people take the Government to court over a piece of legislation is what the intention of Parliament was when the debate was being held. The Minister can clarify that, of course, because his statements will be part of the evidence in any case. I also ask him to give some thought to the use of terminology in the criminal injuries compensation legislation in this part of the United Kingdom. I believe that the word “blameless” appears in that legislation, so it is the eligibility, together with the fact that mental health is to be taken into account, as well as physical injuries. That is much more difficult, because the service availability to provide that kind of backup and assessment is in short supply, as we heard repeatedly earlier today. We do not want people with genuinely severe mental health problems to feel that they are second-class citizens in all this, so that has to be taken into account. The key thing is to ensure that it is blameless; that people cannot then find some loophole to climb in and get money, which would be rewarding them for their evil deeds.

[Lord Duncan of Springbank]

My Lords, I am very happy to speak on this and I will get right to the point. I am very happy to confirm for the record that the intent and purpose of,

“through no fault of their own”,

is the principal criterion by which we will ensure that victims secure their pension. We will also ensure that all eligibility criteria procedures abide by the “no fault of their own” principle. I hope that these words will stand alongside any interpretation of the Bill as it passes from our House to the other place. I recognise the “blameless” comment as well: we need to recognise that concept that the noble Lord, Lord Empey, put into the discussion. This is to ensure that those who have suffered through no fault of their own, not by their own hand, and who are survivors of a difficult and troubled time, are able to secure a pension now. That pension will be backdated to December 2014, so I hope that for some there will be a serious lump sum. I hope that that money can do some good.

I thank the noble Lord, Lord Hain, for bringing this before us, for pushing it and for keeping us on track all the way through. I think noble Lords who have been part of those discussions will agree that it is through his leadership that we are where we are today. I would not normally do this, but it is also important that I praise one of my officials, Chris Atkinson. He has been instrumental in helping move this matter forward: without him, we would not be where we are today, and I put on record, from all of us who have been involved, how critical he was to securing success. On that basis, I am very happy to accept the amendment.

[Lord Hain]

In thanking the Minister, I also thank his official, Chris Atkinson. I also place on record what is, I am sure, the view of the whole House that the WAVE Trauma Centre, which has campaigned for this for 10 years, deserves to be acknowledged for what has been magnificent persistence: I think we should pay tribute to it.

Northern Ireland (Executive Formation) Bill

Lord Duncan of Springbank Excerpts

3rd reading (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

1: Clause 8, page 7, line 34, leave out “section 11(4)” and insert “section (Regulations: supplementary)(2)”

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, these amendments rationalise the clauses to make procedural provision in respect of each of the new regulation-making powers in the Bill, so they can be dealt with together. They rationalise the commencement provisions for each power and, importantly, they will not come into force if an Executive is formed on or before 21 October. We are also seeking to amend the Long and Short Titles of the Bill to reflect its purpose. It is now—goodness me—nearly 1.30 am and I would like to thank the staff who have helped us by staying late.

[Noble Lords]

Hear, hear!

[Lord Duncan of Springbank]

They are appreciated. We would not be in the same fit state without them. I beg to move.

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[Lord Hayward (Con)]

Before we conclude, I will my comments. I thank people who were unseen throughout my efforts—there are even members of the DUP who have said, “Keep going”. That is the different voice that one has heard. I also pay tribute to No. 10 and the PM, who have also encouraged me in the process. When I made my speech earlier this evening—or was it this afternoon, yesterday afternoon, I am not sure—I referred to people whom I knew. We should bear in mind that the changes that we have made relate so much to people whom we do not know. We will never know that we have helped a lot of people.

One of the miracles of modern technology is such that, since I referred to Rainey Endowed School this afternoon, I have had a message from another of its former members who happened to be watching us—there is a salutary warning to us all—and he has written to say thank you. He has announced to a number of people—I shall never know them and we all never will—these two sentences, which I hope summarise what we have achieved here in the last few days: “You, perhaps like me, know far too many people who killed themselves back in the 1970s and 1980s, rather than bringing shame on their families”. He then goes to say, “I was fortunate. I had another guy who lived in the same village and we kept each other sane”. Those are very appropriate thoughts for what we have achieved here in the last few days.

[Lord Duncan of Springbank]

My Lords, I will not detain us for long. I think it is important to thank certain noble Lords, many of whom are in the Chamber tonight, but particular commendation should go to the noble Baroness, Lady Barker, for the work she has done in helping us move towards consensus. On an issue such as this, consensus is far better than division. It has been a pleasure and a privilege to work with the Front Benches on the Labour and Liberal sides—the noble Baroness, Lady Smith, and the noble Lord, Lord Bruce—and my own side and others to try to deliver what has been a difficult Bill, in remarkably difficult circumstances, over a remarkably short timescale, even though we have allowed for it to be extended; I think that is important. This would still be far better done by a reformed and resolved Executive in Northern Ireland, but that was not to be on this occasion. The sun will shortly rise and it will be a brave new world upon which it shines.

Amendment 1 agreed.

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Moved by

[Lord Duncan of Springbank]

3: Clause 10, page 9, line 39, leave out “section 12(4)” and insert “section (Regulations: supplementary)(2)”

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Moved by

[Lord Duncan of Springbank]

4: After Clause 10, insert the following new Clause—
“Regulations: supplementary
(1) A power to make regulations under section 8, 9 or 10 may be used to make different provision for different purposes.(2) Regulations under section 8, 9 or 10 may make incidental, supplementary, consequential, transitional or saving provision.”

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Moved by

[Lord Duncan of Springbank]

6: Clause 11, leave out Clause 11

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Moved by

[Lord Duncan of Springbank]

7: Clause 12, leave out Clause 12

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Moved by

[Lord Duncan of Springbank]

8: Clause 13, leave out Clause 13

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Moved by

[Lord Duncan of Springbank]

9: Clause 14, page 10, line 36, leave out subsection (2) and insert—
“(2) Section 9 extends to Northern Ireland only.”

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Moved by

[Lord Duncan of Springbank]

12: In the Title, line 4, at end insert “and other matters; to impose duties to make regulations changing the law of Northern Ireland on certain matters, subject to the formation of an Executive; and for connected purposes.”

Northern Ireland (Executive Formation etc.) Bill

Lord Duncan of Springbank Excerpts

Ping Pong (Hansard): House of Lords
Monday 22nd July 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That this House do disagree with the Commons in their Amendment 1A.

Commons Amendment 1A to Lords Amendment 1

1A: At end insert—
“(2C) If, as a result of Parliament standing prorogued or adjourned, a Minister of the Crown cannot comply with the obligations in subsection (2A) or (2B), a proclamation under the Meeting of Parliament Act 1797 (c. 127) shall require Parliament to meet on a specified day within the period within which compliance with subsection (2B) is required and to meet on the five following days (other than Saturdays, Sundays or a day which is a bank holiday in the United Kingdom or in any part of the United Kingdom) to allow for compliance with subsection (2B).”

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[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the other place has chosen to accept the amendment from the noble Lord, Lord Anderson, requiring that fortnightly reports under Clause 3 be subject to Motions and debate in both Houses. That amendment has been further amended. The further amendment seeks to require that if Parliament stood prorogued or adjourned at any point when a debate might be expected under the terms of the noble Lord’s amendment, a proclamation would have to be made requiring Parliament to meet within the five-day period and for the following five days.

The Government’s position has been to oppose amendments which amount to procedural gambits in this area. Amendment 1A has little to do with Northern Ireland. This Bill is about enabling an Executive to be reformed and Clause 3 is concerned with ensuring that Parliament can be kept up to date on progress towards that aim. It is disappointing that the other place has chosen to take the issue of restoring devolved government to Northern Ireland and to misuse that as a wedge to manufacture debates around Brexit, drawing on a precedent designed for entirely different circumstances under the Civil Contingencies Act 2004.

This amendment seeks to take this Bill and the vital and sensitive issue of re-establishing an Executive and use it as an opportunity to create highly unusual procedural requirements here at Westminster to address UK-wide Brexit issues. That is not the message our Parliament should send to the people of Northern Ireland about the importance we accord to devolution there. The Government urge the House not to agree with the amendment from the other place. I beg to move the Motion in my name.

[Viscount Hailsham (Con)]

I rise briefly to support the amendment passed in the House of Commons last Thursday by a majority of 41 and thus express my strong opposition to the Motion of disagreement moved by my noble friend Lord Duncan. In doing so, I say to your Lordships that I make no personal criticism of my noble friend; he always conducts himself with considerable dignity in this place and I know he is always listened to with great respect.

Last Monday, and on previous occasions, I expressed my strong opposition to Brexit. It is my belief that this is a matter that should be decided by the House of Commons through a meaningful vote and not by Ministers alone. I do not intend to repeat the detail of those arguments today and will confine myself to three points.

First, in the debates last week, some of your Lordships suggested that it was constitutionally improper for this House, an unelected Chamber, to pass the amendment then under consideration and subsequently accepted by the Commons. We were told by one of my noble friends that, by acting in such a way, we were putting the very future of this House in jeopardy; doubtless some of those who held such views will troop through the Government Lobby today. Keeping that in mind, it is truly bizarre that the opponents of the Commons amendment, the Government themselves, are now asking us—the unelected House—to frustrate a decision made by the elected House with a very substantial majority. The positions adopted by the Government last week and this are inconsistent and cannot sensibly be reconciled. To those who are about to do it, I say that to stand on one’s head in such circumstances is not credible, comfortable or dignified.

Secondly, I have said that I believe Brexit was an extraordinary act of national self-harm that was not supported by plausible assumptions or credible evidence. On Thursday last week, the country received the expert opinion of the Office for Budget Responsibility. Its conclusion is that, on any of the credible assumptions, a no-deal Brexit will cause Britain very serious economic damage. This is not Project Fear; it is a professional assessment of the likely outcome of a no-deal Brexit. It must surely be the subject of serious parliamentary consideration before any decision is taken to leave the European Union, whether on 31 October or some other date. Prorogation to prevent that consideration would be unpardonable.

Thirdly and lastly, the amendment in the Commons that we are now discussing is prompted largely by the well-founded anxiety that Mr Johnson—the likely next Prime Minister—might seek to suspend the sitting of Parliament to prevent the Commons challenging and perhaps overriding the decisions of Ministers. Last Thursday, in the debate in the House of Commons, Mr Johnson could have provided the appropriate reassurance. He was in the House. I am sure that the Speaker would have called him. Mr Johnson could have said that upon his honour he would do no such thing. He could have written to my noble friend the Minister, copied to all of us, giving such an assurance. He could indeed have used his well-remunerated pen to craft an article in those terms, though had he done so I would have liked to have inspected his computer to see whether another and quite different version was to be seen on the screen. But he has done none of those things. Quite the contrary: Mr Johnson voted against the cross-party amendment passed and now being discussed, and in his article in today’s Daily Telegraph he ignored the position completely.

Your Lordships are entitled to assume that such a constitutional outrage is indeed within the contemplation of Mr Johnson. Given that, this House—indeed, all of those who respect parliamentary government—must take every proper step to prevent such a disgraceful act happening. The Commons amendment now before the House is one such measure. Your Lordships should affirm it and reject the Motion moved by my noble friend.

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[Baroness Smith of Basildon]

I do not think that I am; I shall tell the noble Lord why. Patience is a great virtue, because I was about to come on to it.

The die is now cast. At 5 pm today, the ballot on who is to be the next leader of the Conservative Party and therefore the next Prime Minister will close. Neither candidate rules out no deal—that is a slightly separate issue. However, only one of them—the one most likely to win, Boris Johnson—has not ruled out shutting down Parliament in order for it not to take a view on crashing out of the EU. It may be that a no-deal Brexit is exactly what happens; I do not know—I am worried sick about it like most other people, but I do not know whether that will happen. But what I do know and firmly believe is that if any Prime Minister wants to take this country down that road they should stand at the Dispatch Box in front of their Parliament and say so as it happens.

Only Boris Johnson has not ruled out a no-deal Brexit. I find that deeply shocking. He is behaving more like a medieval monarch than a Prime Minister-in-waiting. King Boris might have a good ring to it, but he should remember Charles I.

As always, it is a matter for the House of Commons whether it accepts our amendments or not. Both Houses know that and respect that, yet this Government have always found it easiest, when the House of Lords disagrees with them, to dress it up as a disagreement between the House of Lords and the House of Commons. We saw that on tax credits and the Strathclyde report. Let us be absolutely clear today what we, the House of Lords, did in passing that amendment last week. We gave the House of Commons an opportunity, if it so wished, to insert a no-Prorogation clause into the Bill for the interests of Northern Ireland and on Brexit. The MPs did not just welcome the principle that we put forward, they felt that they should go further, be more explicit, clearer and put it beyond any doubt that, even if in recess, adjourned or prorogued, Parliament must be recalled. I think the public would expect Parliament to be here.

The noble Lord, Lord Empey, said there was no debate in the House of Commons. I listened to that debate. It was obviously shorter, because it was on ping-pong and just on our amendments, but this was referred to on a number of occasions through the debate. There was strong support, as was evidenced in the vote. So we support the amendment from the House of Commons and we disagree with the Government in disagreeing with it.

[Lord Duncan of Springbank]

My Lords, I thank all noble Lords for their brevity today. Last week was quite an odyssey, so I am very grateful for that. I listened with interest to the noble Lord, Lord Newby, who described this situation as being very much like Alice in Wonderland. It is not: it is like Through the Looking-Glass, and we have an interesting point to consider. A quote from Humpty Dumpty springs to mind:

“‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less’. ‘The question is’, said Alice, ‘whether you can make words mean so many different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master — that’s all’”.


We now find ourselves in a debate that is no longer about Northern Ireland; we have departed from that considerably. Those who say that Northern Ireland is just as affected are, of course, quite right, but this Bill is about the talks in Northern Ireland: we should not lose sight of that.

What I am most concerned about are the words of the noble Lord, Lord Empey, who says that the very fact we are discussing this in this way may have an impact upon the talks. There may be unintended consequences of words meaning what we choose them to mean here but being heard in Northern Ireland in quite a different way. The real risk we face today is that last week we passed an amendment from the noble Lord, Lord Anderson, with some majority, to the House of Commons. What has come back to us is something significantly different: we have now moved beyond the idea of enabling the House of Commons to discuss these matters, to royal proclamations. We have gone beyond the notion of where we stand, to what we think we now ought to be able to control, and all this because we are anticipating what is in the mind of one of the candidates for the leadership of my party: that is all we are doing. Again, I come back to the point that this is about Northern Ireland’s talks process. We are here because we need extra time; because the talks have made progress but not enough progress. What we have done instead is conflate the talks in Northern Ireland, which have been challenging and have not gone at the pace I would have liked, with Brexit in all its manifest glory.

I am reminded of the law we are invoking today, dating back to 1797. The noble Lord, Lord West, is not in his place, but were he here he would remind us that in 1797 Great Britain won a great naval victory. Admiral Lord Duncan, a Member of this place at one time, secured a great victory at the Battle of Camperdown. Camperdown Park in Dundee takes its name from that noble battle. But 1797 is perhaps not a precedent we should be drawing upon just now: this Bill is primarily about restoring the talks in Northern Ireland. Instead we are attaching to it the desire of this place to frustrate the potential ambitions of one of the candidates in a leadership contest. I repeat, not in any way anticipating a call from either of the candidates, that it is important to stress that it would be presumptive of either of them to declare what they would do were they to be Prime Minister, because neither of them is Prime Minister. It is important that we keep focused, as we do today, on what the Bill is about.

[Lord Framlingham (Con)]

Am I right in thinking that this amendment originally was put down in the Commons, but the Speaker in the Commons did not accept it, as he did not think that it was appropriate? Then your Lordships’ House, in its wisdom, put it down, because we do not have those kinds of rules, so anybody can put amendments down here, and that has allowed the Commons to get at it by a totally different route. If that is not a ruse, I do not know what is.

[Lord Duncan of Springbank]

My noble friend brings an important point to the discussion at this late stage.

[Baroness Smith of Basildon]

Would the Minister accept that it was completely within the remit of the House of Commons to vote that down if it had wished to do so?

[Lord Duncan of Springbank]

Absolutely. Yet we find ourselves, once again, returning to where we began the journey—an Executive formation extension Bill, which now has a new bauble dangling upon it.

I have discovered in my two years in Northern Ireland how much I care about that place. This is an unfortunate hijacking of what we need to be able to ensure in Northern Ireland. But the will of this House will determine that. I believe that I have done all I can to suggest why we should indeed reject the amendment from the other place, but it will be for your Lordships to decide upon that matter. I commend this Motion to the House.