Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Duncan of Springbank Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Adonis (Lab)]

My Lords, I spoke to this amendment at Second Reading and I will not say anything further, as I want to give the Minister an opportunity to say more about the progress which he and the Secretary of State are making with the parties in Northern Ireland on identifying and appointing a mediator and what the timescale for that might be. This is clearly of huge importance to our debate and to progress towards establishing a new Executive in Northern Ireland. I beg to move.

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

My Lords, thank you for bringing this matter before the Committee. I will make some general points and then some specific ones. The amendment would place the question of a facilitator or mediator in the Bill. We can do that without it going on the face of the Bill. As I indicated earlier today, we now intend to move from the statement which I gave the previous time I addressed your Lordships—that this is part of the mix—to stating that we are now actively consulting with the parties in order to move this matter forward. All elements of the timescale are not yet fixed but I can say that this will be moving forward within the realisable timetable that we have set for the overall movement of the parties gathering. In order for this to be meaningful, such an individual would have to be in play from the earliest stages, in order to move the most intensive form of dialogue forward. We hope and intend that such an individual would be able to act in a much more expansive role than just as a chair. I would rather use the word “Sherpa” in its European context; someone who can be part of the play and engage directly with each participant both behind and before the scenes.

We hope to move this forward with the consent of all the parties involved to make sure that it is a meaningful contribution. I cannot comment further on the individuals who might be in scope for this role, but others have already sent information through to the department, and we are in the process of sifting and examining it in some detail.

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[Baroness Smith of Basildon (Lab)]

My Lords, I support my noble friend Lord Hain and the noble Lords, Lord Cormack and Lord Bruce, in their Amendment 13A. I spent two and a half years as Victims Minister in Northern Ireland. As we heard from other noble Lords, there is great understanding in this House of the suffering that many have endured. Indeed, the Eames-Bradley report—written by two great men—really brought home to many what was required for the needs of victims, though it was unpalatable and difficult for some.

The victims whom my noble friend Lord Hain spoke about are ageing—they are getting older. Their conditions are getting worse and their circumstances more difficult. One of the things that struck me as both Victims Minister and Health Minister was how, in so many cases, the help that the health service was able to provide was inadequate to meet the needs of those who required support, particularly in cases of mental health. When you spoke to the group of people we are talking about—I do not know whether other noble Lords felt the same—and heard their stories and about the impact of what had happened on their lives, you would be very conscious that you could turn around and take the story with you, but they were living with what they told you and the consequences would never leave them.

We understand the limitations of the Bill and what can be done within it. We understand the problems caused by there being no Executive or Assembly, but this is an occasion when, I hope, the Government could take some action to right a wrong and address an injustice. They could take a step in the right direction to see what support can be given. I congratulate noble Lords on bringing this forward, and I hope that the Minister—who I know is giving considerable thought to this—can give a positive response this evening.

[Lord Duncan of Springbank]

I am struck, as I gaze around the Chamber, by how many people are wearing poppies. And I am struck again by the poetry:

“Age shall not weary them, nor the years condemn”.


But of course we are talking about people who will be wearied by the passage of years and who will be condemned to live through that period—victims of a great iniquity done to them. I have spoken of the situation a number of times now with the noble Lord, Lord Hain. I will preface my remarks by saying that it is our hope that we will secure an Executive who can take this matter forward. Were I to stop with that answer, it would be inadequate, so I will not stop there but carry on.

The important issue here is that we have commissioned from the Victims Commissioner a thorough report into all aspects of this serious issue. We have asked her to expand her remit to look at not just physical but mental anguish and I am able to say today that the Secretary of State will write to the Victims Commissioner, asking her to include a date from which payments shall be made. This is not a future point but rather some point where we can be very clear going forward.

As I said, it is our hope that an Executive will take this matter forward. However, if, despite our best efforts, that Executive have not been restored by the time updated advice on a pension issue has been provided by the Victims Commissioner, the Northern Ireland Office will consider how the matter can be progressed. That is not to put it into the long grass or put it away, but to recognise that it must be progressed.

[Baroness O’Loan]

Has the Victims Commissioner indicated a date by which she might report?

[Lord Duncan of Springbank]

The Victims Commissioner has not indicated such a date, but I am led to believe that we should be able to see progress in good time, if I can use that term. It is not an answer that the noble Baroness would want. I would like to give her a date but I cannot bind the Victims Commissioner to a date.

[Lord Cormack]

Of course my noble friend cannot bind her, but could she not be asked to do it within six months at the most? These people’s lives are coming to an end very frequently and we do need to have a date.

[Lord Duncan of Springbank]

I am in a slightly invidious position because I cannot give a date—but I know that six months would be very far away and would be unacceptable to us. I cannot say that specifically, if my noble friend will forgive me, but we will make progress as quickly as we can because we recognise that this is not a matter that can be left to languish. The individuals are living through their own fate and we will not allow that to be the case. I hope that noble Lords will accept these words for what they mean and what they can deliver.

My word—I have been given a sheet of paper. We will guarantee within six months. So, yes, we will be able to do it within six months and I hope that that will therefore give some comfort to noble Lords that we take this matter with the utmost seriousness and we will move it forward.

[Lord Hain]

My Lords, I am grateful for the support from the noble Lords, Lord Cormack and Lord Bruce, from the noble Baronesses, Lady O’Loan and Lady Altmann, from the noble and right reverend Lord, Lord Eames, with his passion, and from my noble friend Lady Smith, because of course she worked with many victims, both when I was Secretary of State and before and did a fantastic job. She, perhaps more than anybody, knows about the issues at stake here, from a ministerial point of view at least. I am grateful to the Minister for the discussions we have had and for the efforts he has made both to understand and respond to the issue. He has showed more conviction to do something about this than I have detected from the Government so far. I do not want to put him in an invidious position, and I certainly do not want to injure his future career by praising him, but he has shown real compassion as well as some determination to resolve this.

I think that six months, with due respect, is a long way away, as the Minister said. The Victims Commissioner has had this instruction since May. That is a while ago and I hope that this can be weeks rather than months. Maybe some of his officials listening to this debate might ring the Victims Commissioner and suggest that she at least read the debate and make her own mind up.

This has to happen—and it has to happen within a specified time. I am not asking the Minister to do that specifically tonight, but I do not want to be in the position of facing some future legislation in six months’ time and then being told, “Well, maybe next year”. I am grateful to the Minister for saying that there will be a date from which it will be applied, even if the actual decision to do something about it comes in the future. I think that that will be a reassurance to the severely injured victims. I look forward to receiving the letter which may give us some clarity. On that basis, I beg leave to withdraw the amendment.

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[Lord Hay of Ballyore (DUP)]

My Lords, I, too, have some sympathy with the amendment moved by the noble Lord, Lord Bruce. As the noble Lord, Lord Empey, said, this issue is supported by all the political parties in Northern Ireland in trying to address this very serious problem.

It is quite some time since the Hart report was delivered to the Government. I know that David Sterling, head of the Civil Service, was working up a Bill to try to resolve the issue, but I am told that he is now saying clearly that it has to be dealt with by a Minister, which slightly worries me. None the less, if there is anything that all the parties can agree on, the Government should grab it, because that does not often happen.

I have raised this subject in the House before, because I believe that the institutions responsible for the abuse should pay up as well. It would be totally wrong if all the money came from the Government. I know that the issue has been raised in the other place as well, and I say to the Government that nothing should stop them trying to address it. Some survivors of the abuse are getting old: some are very elderly, and some have died. Relations have died, too, and those people have not seen the full output of what they deserve. I appeal to the Government and I hope that, with the support of all the political parties in Northern Ireland, and the support shown throughout this House and in the other House as well, when the issue has been raised, they will find a way of dealing with it. We should make sure that we do not create a major problem for devolution in Northern Ireland when it comes back.

[Lord Duncan of Springbank]

My Lords, it is not often that we find unanimity in such a fashion, so let us grab it with both hands. I fully recognise the importance that Members accord this issue. It stands alongside the earlier matter raised by the noble Lord, Lord Hain. I hope the House will welcome the fact that the Northern Ireland Civil Service has advised that it is currently preparing draft legislation based on the recommendations of the Hart inquiry, which it will publish very soon. On the basis of that there will be a full public consultation, to ensure that we can move this matter forward, and it will be our intention to do so within a sensible time. There is unanimity on this issue and I believe we can make progress on it. I hope that is enough to give the noble Lord who moved the amendment some comfort.

[Lord Bruce of Bennachie]

I am grateful to the Minister for his characteristically sympathetic response, and obviously for the practicality that civil servants are bringing forward legislation. That does, of course, raise the question of how and when such legislation could be implemented, given the present lacuna. So I add the proviso that I hope the Government will ensure that the timetable is not open-ended. This does not have to wait for ever, or for the return of the Assembly.

A point has been raised about the responsibility of those who perpetrated the abuse. Yes, I agree—but I also caution that I would not want that to be used as an excuse to create an argument that would delay things. It seems to me that there is absolute agreement about what should be done and how it should be done. It is good that legislation is happening, but it is slightly concerning that this requires legislation rather than executive action. There seems to be enough in the Hart recommendations to pretty well constitute the basis of legislation, which could be implemented as an executive action. With the proviso that I hope the Government will not allow this simply to languish as one of the issues waiting for the Assembly to return, I am willing to withdraw the amendment.

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[Baroness Smith of Basildon]

No, the noble Lord, Lord Duncan, has already written to me and I am happy with the letter he sent. I want to confirm that the letter to the Department of Health in which the noble Lord, Lord Duncan, will seek at six-monthly intervals to get an update, which the Minister has said the Department of Health will respond to, will be a letter from a Minister, not an official.

[Lord Duncan of Springbank]

I was having a bit of a breather, but I am very happy to confirm that. It is important that we do this—absolutely essential.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. I understand and appreciate the time that he has invested in this. He has been very generous with his time and his views. On that basis, I beg leave to withdraw the amendment.

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[Baroness Smith of Basildon]

My Lords, I had not expected to be on so soon. Many of us in the Labour Party have some form on debating Clause 4. I am nothing if not consistent: I want to keep Clause 4. It is worth reminding ourselves what Clause 4, which was voted into the Bill by a cross-party majority of almost 100 in the House of Commons, says. It came on the back of a decision by the Supreme Court in June that Northern Ireland abortion law was “untenable and intrinsically disproportionate” in relation to rape and incest, which are criminal matters, and fatal foetal abnormality. The House of Commons looked at this issue within the confines and context of the Bill and also at gay marriage, which is possible in the rest of the UK as a result of a law passed in your Lordships’ House.

Noble Lords have rightly said that Clause 4 does not change the law but states that, in the absence of a Northern Ireland Executive to scrutinise the impact of laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations, the Secretary of State for Northern Ireland is required to provide clear guidance to Northern Ireland civil servants on the operation of these laws, and to update the House each quarter on how she plans to address the laws’ impact on the UK’s human rights obligations. This is exactly what has been agreed by the House of Commons by a large majority.

I understand why the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan, have brought forward this amendment. It recognises that the existing law may contravene the European Convention on Human Rights but then says that the Secretary of State can do nothing about it. That does not seem to be a position which your Lordships’ House would want to be in. Like my noble friend Lord Cashman, I understand the sentiments and principles behind the amendment in the name of my noble friend Lord Adonis. We think alike on these issues. I struggle with the concept of issuing guidance to civil servants not to enforce legislation. Guidance is not the way to do it, and that is why the House of Common has taken the approach that it has.

All noble Lords understand that these issues evoke emotional responses. They are difficult, personal issues, which is why this is a matter of conscience and there is a free vote in both Houses of Parliament. The House of Commons sought a way forward which is both proportionate and within the terms of this legislation. As I said once before within my own party: I urge your Lordships’ House to protect Clause 4.

[Lord Duncan of Springbank]

My Lords, this has been a thought-provoking, considered contribution to the debate this evening. At the outset, I draw the attention of the Committee back to the functioning and purpose of the Bill itself. The Bill is designed to ensure an opportunity to re-establish a functioning Executive. That is the ambition behind the Bill and its subsequent elements. A functioning Executive would go a long way to addressing the issues which have been raised this evening. We can be fairly clear that this matter most correctly rests with an Assembly in Northern Ireland.

The noble and learned Lord, Lord Mackay, has put forward an amendment and has graciously said that he will not put it to a vote. However, his contribution has allowed an open opportunity to explore each of the elements within the wider debate. The noble and learned Lord has been clear about the constitutionality of the amendments in the name of the noble Lord, Lord Adonis. However, the purpose behind them is understood. He too was seeking to send a message with his amendments this evening. He has done that; we have heard the message.

I also listened very carefully to the impassioned remarks of the noble Lord, Lord Shinkwin; everyone here will have been moved by them and recognised the passion with which they were given. The Government have no intention of undermining or diminishing the position of persons with disabilities. That was never an attempt or an endeavour. This Bill and any guidance it puts forward would not influence Northern Ireland departments to act in any way which is not compliant with Section 75 of the Northern Ireland Act 1998, which includes provisions to ensure equality between people with disabilities and people without disabilities. I recognise, however, exactly the points the noble Lord made, and they are perhaps for us all to reflect upon this evening. This is, as a number of noble Lords have made plain, a matter of conscience, and I have no doubt that many this evening will be considering these elements as they listen to the ongoing remarks.

I am also taken by the ideas put forth by the noble Lord, Lord Alderdice. Two things become clear to me. Public opinion is a curious thing. Sometimes we think that we know what it is, and sometimes we are wrong, but I think he is absolutely correct that there has been an evolution in public opinion within Northern Ireland. Exactly what it is and how it can be determined can be captured in snapshots of opinion polls, which are like the blink of an eye. Sometimes they change, and it is very hard to pin them down. I cannot make any commitment regarding his novel idea of referendums, but I would like to discuss that further. If he is amenable, I would like to sit down in the future to explore that very thing. However, it is of course not for this particular Bill to move that matter forward.

[Baroness O'Loan]

The noble Lord, Lord O’Shaughnessy, told me that the Government’s position was that there would be no move on abortion by this Parliament as long as the Northern Ireland Assembly was in devolution mode. I do not think it is helpful for the noble Lord to suggest that there be a referendum on abortion in Northern Ireland at this time of night, in this Bill. Even to discuss it, I think, is most unhelpful.

[Lord Duncan of Springbank]

I hope the noble Baroness will forgive me, but I disagree with her on this. I do not think that, in opening up a discussion with the noble Lord, Lord Alderdice, we are doing anything other than recognising that there are challenges ahead, in respect of which this is but one opportunity to progress. It is not my intention that we will do any more than discuss this; indeed, it is far too great a discussion to have. Equally, this is perhaps not the correct Bill through which to do it, and this is not the right time of day to have such a detailed discussion.

I recognise a number of the points which were made by the noble Lords this evening. I am guided, in truth, by one simple fact. Clause 4 as drafted does not in any way instruct the Secretary of State to issue guidance to civil servants in Northern Ireland to disobey the law. It cannot do that in any way whatever. Given our earlier discussions about the challenges facing the civil service in Northern Ireland, perhaps this would be one burden too far, to try to encourage movement in that direction. Our purpose here is to ensure that, in recognising that Clause 4 came to us with overwhelming cross-party support from the other place, we acknowledge that that came from a democratic House. We must recognise what it represents and understand how best to take it forward. That is exactly what we will do, and we will do so carefully and in a very transparent manner. That is what is required from this particular clause. We will not be issuing guidance that seeks to undermine the letter of the law, in effect usurps it or changes it in any fashion whatever. We cannot and should not do that. I stress again that this is a matter correctly to be taken forward by the democratic Assembly of Northern Ireland.

On those points, my Lords, I hope that you will find it acceptable not to move your amendments to a vote.

[Lord Adonis]

My Lords, I assure the noble Lord, Lord Morrow, that I have no intention of becoming King James III, and can I assure the noble and learned Lord, Lord Mackay, that I am only too well aware of the defective drafting of Amendments 10 and 11. It was no part of my purpose to abrogate the proper operation of the law. I was simply advised by the Clerks that, because of the limits of the current Bill, it was not possible to have a straightforward proposal in it to legalise abortion and equal marriage, so in order to enable a debate to take place, the amendments were moved in the form that they were. However, I recognise that the noble and learned Lord does not intend to press his amendment, and nor do I intend to press mine. As the Minister rightly said, I was simply seeking to set down a marker for what the Northern Ireland Assembly will need to deliberate on—assuming there is an Assembly. I need to say in conclusion that if there is not a Northern Ireland Assembly within a reasonable period of time, I do not see how this Parliament can abrogate its responsibility for maintaining fundamental human rights in Northern Ireland.

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[Lord Hay of Ballyore (DUP)]

I did not intent to speak on this particular issue, but we are talking about the Assembly meeting to discuss issues. This has already been on the table. All the other parties are keen for the Assembly to meet to discuss Brexit, and there are other serious issues that the Assembly could come together on—public representatives meeting and coming, as far as possible, to a consensus. This has been on the table for some time. All the other parties are happy to move in that direction, at least for the Assembly to meet without an Executive. The only party which has said no to that is Sinn Féin—so anything suggested this evening is already on the table, and it has failed. The noble Lord, Lord Empey, is right—why do we pander to Sinn Féin? We will never achieve what may be achieved in trying to get devolution up and running.

It is important that the Assembly does meet, even without Ministers and an Executive. That would be a start—discussing some major issues that deeply concern the people of Northern Ireland.

[Lord Duncan of Springbank]

My Lords, in my head I have a New Yorker cartoon of a very elegant gentleman with a cat on the floor next to its litter tray. The gentleman is pointing and saying, “Never think outside the box”.

We do need to think afresh—Amendment 13B from the noble Lord, Lord Trimble, and the other amendments from the noble Lord, Lord Adonis, do have certain impediments. The noble Lord, Lord Empey, referred to the question of the Speaker and the question of cross-party consent being one of those impediments. I do not want to end this evening’s discussion on that negative statement. Let me take away some of the ideas that have been expressed tonight. Let me think and reflect on them in discussion with my right honourable friend the Secretary of State for Northern Ireland, and let us see if we can live up to that statement of “thinking outside the box”. On that basis, I hope that noble Lords will not press their amendments.

[Lord Trimble]

I beg leave to withdraw the amendment.