Identity and Language (Northern Ireland) Bill [HL]

Lord Empey Excerpts

Committee stage
Wednesday 22nd June 2022 Grand Committee

[Lord Deben (Con)]

My Lords, I wish to associate myself with those noble Lords who are sad that this is not being debated in the Assembly. Let me say how sad I am that it is not recognised by some in Northern Ireland that it is their responsibility to be part of that Assembly and that that is the deal. It is a deal that the rest of the United Kingdom, a little bit of which I hope to be able to speak for in this Committee, wants to hold them to instead of being held by them.

Secondly, I opposed the Government’s successful attempt to impose on Northern Ireland changes that were opposed by both communities. I thought that it was wrong. It is not subsidiarity and we should not have done it. However, in this case, we are having to discuss something that has been agreed in principle and which we must carry through. This is therefore a different circumstance, which is why we are doing this. I entirely agree with the noble Baroness who last spoke from the Opposition Bench.

I say to my noble friend that the reference to the European Court of Human Rights is important. It is extremely important that we tie this into the international agreements that we have. If I may say this to the noble Lord, Lord Murphy, I do not much mind what Mr Raab has said. The truth is that we signed up to it—we more or less invented it—and we did so to make sure that everybody stood to the same standards in this area. If ever there were a case for making sure that we insist on the standards enforced by the European Court of Human Rights, this certainly is it.

[Lord Empey (UUP)]

My Lords, like the noble Lord, Lord Deben, I deeply regret that this issue is being dealt with here. It is obvious from the first quarter of an hour of debate, from the many local issues that have arisen, that local MLAs would understand the nuances far better. It is a crying shame that this is not being dealt with there.

I have one point to make to the noble Lord, Lord Murphy. My party did not agree to New Decade, New Approach. In fact, I deeply regret a lot of the proceedings that led up to it and a lot of what is included in it because I fear that this Bill has within it the seeds of a grievance factory, where it is going to be very difficult to make everybody feel that their particularly identity is being represented. Indeed, it may be a shock to many that people do not go round the place wondering who they are each day; it is not something at the top of people’s agenda when they cannot even put money in the meter to keep their lights on. We must understand that it is not the sort of thing that is necessarily top of people’s agenda.

We must avoid two things. First, because this Bill is not subject to debate in the Assembly where implementation of it would take place, this House cannot amend it —because, if the Assembly is not there, the only process is here, and therefore we should not be afraid to do that. Secondly, and equally, we must be wary of imposing conditions that prove to be difficult for the Assembly.

I think there is some merit in what is suggested in Amendment 1. I take the point about other languages, but one has to be careful about who is included in that and who is not. Within the past 36 months, we have had the arrival on our shores of people from varying backgrounds—from Syria and Afghanistan—we have had a significant indigenous Chinese population for as long as I can remember, and we have had people coming from eastern Europe as part of the European Union for many years, who have built up considerable numbers, particularly in the past 15 years or so. So who is included in that and who is not is very difficult. I ask colleagues to bear those points in mind.

My noble friend Lord Morrow makes a valid point about the boundaries where one public body ends and another begins. There could be quite a lot of overreach and overstretch there. If an office dealing with identity issues becomes specifically involved in rights and equality, there is some overlap, but they would be two quite distinct areas, and we must take great care that we do not create a scrambled egg of bodies all competing about where the boundaries of their activities begin and end. I urge a bit of caution from the Minister in that regard.

Bearing in mind that it is a matter of very deep regret that we have to do this, I suggest that the one thing that we try to avoid is making things worse by confusing the role of one public body with another. I do not think it was ever the intention of the negotiators of New Decade, New Approach that the existing equalities and human rights commissions would be subject to override in this area. In the event that somebody feels that their human right has been overruled, they still have the opportunity to have their case taken up by those bodies. The right to do that is not conflicted in any way by anything in this, but we must avoid confusion. The existing lines are relatively clear, and I think we should adhere to them.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, once again we are dealing with an issue that was the responsibility of the Northern Ireland Assembly. Once again, the Government have taken it out of the hands of the Assembly. This has not just arrived since the last Assembly election; this was from before that. I remind some noble Lords that the history of this goes back to the previous three-year suspension of the Northern Ireland Assembly by Sinn Féin. Sinn Féin would not come back into the Assembly but made certain demands before it would come back in. One of the demands was on the abortion legislation; it wanted abortion on demand. The second was an Irish language Act. It has to be admitted that it did not get an Irish language Act, because this is the Identity and Language (Northern Ireland) Bill, but nevertheless it was part of its demands.

The truth of the matter is that the Government yielded to the demands of Sinn Féin which is why we are having this debate here at Westminster. The new Assembly has certainly not been given the opportunity to debate it, because the Assembly election was just recently. With all the demands that are being made on public finances, I must say that, right across this legislation, I have deep concerns. When one bears in mind that people are fighting to pay their bills and all the demands on public finances at the present moment, I would certainly ask whether this is the best expenditure of public money at this particular time.

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[Lord Morrow (DUP)]

My Lords, with permission, I will speak to Amendments 2, 20, 37 and 39. This set of probing amendments relates to the definition of public authorities that are subject to the Bill’s provisions. We are against it for the following reasons. We are convinced by the case for an expansionist approach to the range of public authorities captured by the Bill. Given the Minister’s insistence that the statement of funding accompanying the Bill does not give rise to any responsibility for the Government, it seems unconscionable that the Executive should have to bear the cost of UK-wide bodies adhering to requirements or requests issued by the offices created under the legislation. More than that, at a time of a crippling cost of living crisis and with mounting challenges facing our health service and criminal justice system, we believe that a precautionary approach is preferred.

Implementation should be targeted. We have consistently expressed concern about whether this legislation is proportionate or reflective of the priorities of the majority of people in Northern Ireland. There is a fear that expanding the extent even further would impact on public confidence. There is already concern about the framing of certain provisions, namely the identity and culture principles and their potential impact on competing fundamental freedoms. It may be prudent, therefore, to display caution and monitor the impact of the Bill before making further wholesale changes. There is already provision in the Bill allowing Ministers to amend the definition of “public authority” moving forward.

The proposed new clause in Amendment 39 would oblige public authorities to comply with obligations accepted by the United Kingdom under the Council of Europe’s European Charter for Regional or Minority Languages. It is worth noting that the Ulster-Scots/Ulster-British commissioner would already be under an obligation to advise on the effect and implementation of the charter under proposed new Section 78R(3)(a).

I am pleased to speak to Amendment 32 in my name and those of my noble friends Lord Dodds of Duncairn, Lord McCrea of Magherafelt and Cookstown and Lord Hay of Ballyore. As I will reflect in more detail in the debate on subsequent groupings, the integrity of the provision of the Irish language commissioner and the Ulster-Scots/Ulster-British commissioner depends not only on the commissioner having identical functions but on their being accorded equal importance, and on this equal importance being made manifest—certainly through each having a similar cost footprint, in terms of both the running of their offices and their impact on the action and spending of public authorities. In this context, it is absolutely imperative that the existing functions of the Ulster-Scots/Ulster-British commissioner are given access to as robust an enforcement mechanism as those pertaining to the Irish language commissioner.

In this context, it is really concerning to note that, as currently defined, the Irish language commissioner is favoured with powers of enforcement on two bases that are denied the Ulster-Scots/Ulster-British commissioner, one of which we will address in this grouping and another in the eighth grouping. In my Amendment 32 in this grouping, a public authority is required by proposed new Section 78N to

“have due regard to any published best practice standards”

produced by the Irish language commissioner and to

“prepare and publish a plan setting out the steps it proposes to take to comply with”

this duty. Inexplicably, while the Ulster-Scots/Ulster-British commissioner is similarly given the responsibility of issuing guidance to public authorities, the Bill before us today contains no parallel obligation on public authorities to have due regard to their guidance. Neither does it contain any parallel obligations on public authorities to prepare and publish a plan setting out the steps they propose to take to comply with this duty.

I very gently express the hope to the Minister that the Government can understand why some within the unionist community regard this extraordinary difference of treatment as discrimination. It is vulnerable to be characterised as a crude attempt to set up two commissioners with the apparent intention of generating the sense that the two communities are being treated equally, hoping that one will not have the sense to check and see that the standards of protection afforded it are dramatically weaker than those afforded the other. This discriminatory difference of treatment can be resolved by Amendment 32, which affords the Ulster-Scots/Ulster-British commissioner the same respect as the Irish language commissioner in the form of placing equal statutory obligations on public authorities to have regard for his or her advice and to publish a plan setting out how they intend to comply with his or her advice.

I am genuinely at a loss to understand how anyone sensitive to the challenges we face in Northern Ireland, let alone a body supposedly committed to the notion of equality of esteem, can have regarded the enforcement provisions afforded unionists in the Bill as anything other than discriminatory when compared with the enforcement provisions afforded nationalism. I urge the Minister to recognise that this inequality of treatment is utterly indefensible and flies in the face of the principle of equality of esteem. I plead with him to accept this modest amendment.

[Lord Empey (UUP)]

My Lords, I note all the probing amendments from the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie. The noble Baroness raises an interesting point. Mr Adams has not gone away. He may not be the Dáil or the Assembly and he may not be here, but he has not gone away. Her point is quite interesting because the Belfast/Good Friday agreement enshrined the constitutional position very clearly. Mr Adams’s quote effectively ignores that and pretends that Northern Ireland is a condominium—in other words, a piece of territory that is being run by two other powers. The protocol is getting us into that sort of territory where we have rules made by a foreign power over which no one in this building has any say.

Dealing specifically with the noble Baroness’s point, I am not a lawyer, but we would need to be sure that there is not a gap in what we do through which some person can prosecute lawfare against the process. I take that point very clearly and will interested to hear what the Minister has to say about it. There may be an unintended consequence, which is why I said at the outset that I fear a lot of this legislation and all these bodies have the potential to form a grievance factory. That is what I fear about this legislation.

I would have signed Amendment 32, had there been space, but my colleagues took it up. The fact is that there is an inequality. We can dress it up whatever way we like, but it is there. The perception is clearly that one section of the community with certain aspirations and cultural identities is to be treated in one way and another section is to be treated in another, subservient, way. Perhaps that is not the right word, but noble Lords know what I mean. That should be avoided at all costs, because it undermines any confidence that identity and so on has finally been addressed. We are creating a hierarchy here, and the lessons of recent history tell us that that is not a good thing to do.

With regard to the amendment tabled by the noble Baroness, Lady Hoey, I would like an assurance from the Minister that no such premises will be left for people to pursue spurious cases or seek to pretend that the settlement that was entered into in 1998 has a clear constitutional position that is not subject to being equated with a constitutional position that does not currently exist. That is a real fear that that could arise.

I would also like the Minister to take away Amendment 32 and have a look at it, because I assure him that even those of us who are very unenthusiastic about all this are even less enthusiastic about having a hierarchy.

I shall also make a point about Mr Adams and his colleagues. If we go back to 1998 and the years leading up to that negotiation, at no stage whatever in those negotiations did his party seek an Irish language Act. They never put it on the table; they never asked for it. Its first iteration in a public document was at St Andrews, and it was a commitment by the UK Government, knowing full well that the subject was going to be devolved. Sinn Féin only got on the bandwagon after an SDLP Member of the Assembly—Patsy McGlone—put forward a Private Member’s Bill in the Assembly to bring in an Irish language Act. I am sure that the former speaker well recalls that. Sinn Féin did nothing in 1998 with regard to the Irish language Act; anything that we were asked to do in 1998 during the negotiations was done and implemented in full. I just put that point on the record.

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None of this is to deny that NDNA mentioned an arts and literature remit; the point is simply that in order to be faithful to the breath of what was agreed directly and implicitly within the national minority community commitment, the reduction of the remit to language, arts and literature does not work. I hope the Minister will feel able to support these four modest amendments. I beg to move.

[Lord Empey (UUP)]

My Lords, I support the four amendments that have just been spoken to. However, my worry about all of this is that people cannot be corralled into particular identities. Among those who do not identify with, say, an Irish or a Scottish background, there are lots of people whose identity is much more fluid and relaxed. People see themselves as Irish and British; some people see themselves as Irish and Irish. We are in a quagmire. We could have 50 commissioners with no difficulty if we really drilled down to it, and that is the risk with all this.

Sinn Féin has religiously pursued the whole question of the Irish language, not for the love of language—the vast majority of them could not speak a word of it—but because it provides a difference. The quotation given by the noble Baroness, Lady Hoey, from Gerry Adams’ speech, or comments, in 1998 illustrates that and what the name of the game is: it has to be different. Indeed, I came across the minutes of a Sinn Féin meeting not long ago, I think it was last year, which had an agenda about the greening of Northern Ireland—the street names and so on. It was not to give respect to the Irish language; it was to show difference and prevent the community coming together and being cohesive. That is the one thing that it cannot cope with, because it implies the status quo.

I remind the Committee that things were divided during the strand 1 negotiations; my friend, the noble Lord, Lord Kilclooney, keeps referring to this, and he is right. As the noble Lord, Lord Murphy, will know, strand 1 was Northern Ireland only, but that seems to have moved along since the NDNA. It was announced jointly by the UK Secretary of State and the Irish Foreign Minister and, while some of the rest of the parties were still reading the draft in the building, they were down at Carson’s statue releasing it to the press. That was how seriously they took it. But that is another matter.

The fundamental point is that the reason Sinn Féin did not propose an Irish language Act and did not deal with this in the talks was that it did not want to have what it called an internal settlement, because that is anathema to its whole rationale. I fear that the danger with all this is that it goes along with its divisive approach that everybody has to be in a particular box to be recognised. That is not where most people are today, particularly our younger generation, who do not see themselves in these boxes.

Nevertheless, we are where we are, as they say. These amendments cover some of the inevitable consequences, and I support them. I hope that the Minister will take them away with him and reflect on them before Report, because I suspect that if we come to Report and things remain as they are, some of us may have to test the opinion of the House on these matters. This is a relatively modest set of amendments that will at least make people feel that, as far as this particular identity is concerned, it is respected and treated equally.

[Lord Dodds of Duncairn (DUP)]

My Lords, I will speak to Amendment 43A in the name of my noble friend Lord Morrow, but, before I do, I too send my best wishes to the noble Baroness, Lady Ritchie, since she cannot be here. I hope that she is enjoying the proceedings by video; I am sure she is. We hope to see her back in her rightful place very soon.

I also agree with noble Lords who have mentioned that it is a matter of regret that we are debating this matter at all here in this place and that it should be a matter for the Assembly. Of course, it is not by accident or some kind of inevitability that it is being debated here; it is a deliberate decision of the Government to bring it here. That is something that we debated yesterday on another matter to do with abortion regulations. These are devolved matters, and the devolution settlement should be respected, whatever the issue and whatever our view of that issue may be. If it is a matter that is devolved to the Northern Ireland Assembly and Executive, it should remain there. That is the clear position as far as I am concerned; otherwise, we pick and choose the issues that we decide to legislate on in this place, which cannot be right.

On the NDNA agreement, I just say to the Government that we look forward to all aspects of it being delivered. There is an outstanding matter in relation to the restoration of the internal market of the United Kingdom, and I look forward to rapid progress on that, in line with taking forward these other matters under NDNA—there are others matters under that agreement that are outstanding.

Talking of agreements, there has been reference to 1998, going back to the Belfast agreement and the subsequent agreement at St Andrews that amended it. It is true that none of this demand by Sinn Féin for Irish language provision was a part of the main negotiation on the Belfast agreement. Of course, much more recently we had the Assembly elections in 2016 and then the unfortunate collapse of the Northern Ireland Assembly in 2017, when Sinn Féin walked out of the Executive and Martin McGuinness resigned as Deputy First Minister. We then had three years in which the Assembly did not operate. We need to remember that, just prior to that, Sinn Féin has agreed a draft programme for government with the DUP—those two parties were in government together. Sinn Féin did not put forward Irish language provision in that, yet it became Sinn Féin’s cause célèbre in the subsequent years.

There is a lot of revisionism in terms of the importance of all this and the priorities, but when you work through the timelines and so on, a lot of this is not borne out by the actuality and reality of the situation. This was not a matter that Sinn Féin made a priority at the time, but it subsequently made it a priority in order to keep the institutions down for three years. That is worth bearing in mind in the context of where we are at the moment with the institutions and the need to implement the whole NDNA agreement.

I turn to Amendment 43A in the name of the noble Lord, Lord Morrow. When the Minister made the case for the Bill at Second Reading, he referred to the fact that the Government had made available some funds—I think it was in the region of £4 million—to the Irish Language Investment Fund

“to support capital projects associated with the Irish language.”—[Official Report, 7/6/22; col. 1097.]

This commitment, it was said, was based in the section of the NDNA agreement that dealt with Northern Ireland’s “unique circumstances”.

However, when you read that section of the document, it contains merely a passing reference:

“This could include areas such as … Support for languages and broadcasting”.


There was no explicit commitment to £4 million or any other sum for capital projects, yet this passing reference has crystallised into a hard figure for investment. This £4 million of investment follows £8 million that has already been spent by the UK Government on building Irish language centres in Northern Ireland. My understanding is that this £4 million is likely to be matched by the Irish Government, so the total for building Irish language centres is likely to be nearer £16 million. I would be grateful if the Minister could confirm whether he has had any discussions with or heard from the Irish Government on that point. Has there been any similar investment for the Ulster Scots community? I am sad to say that the answer is, no, there has not been—not a single penny.

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In this regard, I know that some noble Lords made reference at Second Reading to the “small Ulster Scots community”; the implication seemed to be that, because it was small, it did not merit much attention. That characterisation is wrong. The sector of organisations dedicated to Ulster Scots is small, but that is a reflection of decades of underinvestment compared with their Irish language counterparts.

[Lord Empey (UUP)]

Does the noble Lord agree that the expenditure undertaken in these areas by local authorities also needs to be taken into account, as they have roads? The behaviour of some local authorities appears to me very partial and one-sided.

[Lord Dodds of Duncairn (DUP)]

The noble Lord makes a very good point, which is often overlooked when we talk about these issues—certainly, in this place because there is a lot of concentration, necessarily and inevitably, on the functions of Northern Ireland departments, the Assembly and the Executive. There has undoubtedly been a very aggressive campaign on this, lavishly funded by certain councils, particularly those west of the Bann. Taking that into account, as the noble Lord has pointed out, makes my point about the necessity of catching up all the more relevant, pertinent and urgent.

The Ulster Scots community is representative of the lion’s share of the unionist community in Northern Ireland, disadvantaged by years of underinvestment in its identity. We must ensure that it is not short-changed. Broadcasting is one example where we could see a very immediate change, I hope, if funding is made available. We need to see financial equality between the two broadcast funds and the footprint of the Ulster-Scots Broadcast Fund extended to include greater coproduction with Scotland and a presence on the UK-wide network in recognition of Ulster Scots as a national minority of the United Kingdom.

We also need to see dedicated and sustained resources to support Ulster-Scots projects on the east-west axis, in line with Amendment 30 in this group, between communities and schools—cultural and educational institutions—to engage the Ulster Scots community and diaspora throughout the United Kingdom. Recognition of the Ulster Scots nature of the commissioner’s brief, in line with Amendment 30 and more specifically through Amendment 43A, will facilitate this. I look forward to hearing what the Minister will say. I hope he will take these amendments on board, take them away and reflect on how, if implemented, they would go some way to restoring equality and parity of esteem in this area.

[Lord Caine (Con)]

My Lords, again, I am very grateful to all noble Lords who spoke to this group of amendments. I start by saying that the Government are committed to supporting the culture and heritage of the Ulster Scots and the Ulster British tradition in Northern Ireland. This includes £1 million in funding for Northern Ireland Screen’s Ulster-Scots Broadcast Fund, which was delivered last year, and the formal recognition this year of Ulster Scots as a national minority under the Council of Europe’s Framework Convention for the Protection of National Minorities. The Bill does not in any way take away from the recognised status of Ulster Scots in a number of international instruments. Indeed, its provisions protect that status and actually broaden it.

As I have said on a number of occasions, the Bill seeks faithfully to deliver on the legislative commitments in what the then leader of the Democratic Unionist Party, Dame Arlene Foster, described in January 2020 as a “fair and balanced” package. It was very clear in that package that the remit of the commissioner in respect of the Ulster Scots and Ulster British tradition would be matters of “language, arts and literature” and not culture and heritage. In the Bill we are sticking faithfully to what was in New Decade, New Approach.

Perhaps I might give some reassurance. In the new cultural framework provided for by the Bill, the office of identity and cultural expression will have an important grant-making power and will be able to commission research, support educational programmes and provide guidance reflecting Northern Ireland’s diversity of national and cultural identities. That would seem naturally to include the Ulster Scots/Ulster British tradition, given its prominence, and I hope that provides some small degree of reassurance on that point.

I also highlight that the Irish language commissioner’s role is limited to language, reflecting the particular needs of Irish speakers. If we were to widen the provision for one commissioner to include cultural matters, it is perfectly possible, given the nature of Northern Ireland, that demands could then follow from those expecting the same of both. So we need to be slightly careful on these matters.

[Lord Empey (UUP)]

I am most grateful to the Minister. I am not constrained by anything Dame Arlene might have said at the time about “fair and balanced”. The Minister knows my views on this. We have to be careful. I am attracted to the use of the word “heritage”. That is because the—let us say—profile of the respective identities is different. The Irish have coalesced around language to an extent to which the Ulster Scots and Ulster British have not. When you are looking at equality of treatment—I see the point the Minister is making; and I said earlier that we should not be constrained in our deliberations because this is being debated here and not at Stormont, as we would all prefer—there is a difference between the profiles. Heritage matters greatly and is expressed in different ways. I fear that we are boxing people in with the definitions in the legislation.

[Lord Caine (Con)]

I am grateful to my noble friend. On this, as on many issues, I have a huge amount of respect for what he says. But in this particular area, and on the point he makes, all we are doing in this legislation is reflecting the language and the remit set out in New Decade, New Approach. I completely appreciate that my noble friend and his party were not signatories to or supporters of that agreement. Nevertheless, there was an agreement in January 2020 which formed the basis of the restoration of devolved government and that is what we are seeking faithfully to implement here.

Amendments 7 and 22 are important. Taken together, they seek to differentiate between the Ulster Scots and the Ulster British tradition by pluralising them and making them “traditions”. I note the sensitivity of this matter and, indeed, of the title of the associated commissioner in this context, and I am grateful to the noble Lord, Lord Morrow, for the way in which he spoke about these matters.

Let me say this: although I am not in a position to commit fully to anything today, I genuinely have a great deal of sympathy with the noble Lord’s amendments and the intention behind them. If he will allow it, I will therefore endeavour to explore them further ahead of Report.

Amendment 43A—a late addition to the Marshalled List on which the noble Lord, Lord Dodds, spoke—seeks to place the Secretary of State under a duty to

“establish and maintain a fund to … connect Ulster Scots in Northern Ireland with Ulster Scots in the rest of the United Kingdom.”

On this, again, I say that the Government are committed to supporting the Ulster Scots and Ulster British tradition —or traditions, if you like—which forms an integral part of Northern Ireland’s rich tapestry. However, the creation of such a fund as provided for by this amendment would go way beyond what was set out in New Decade, New Approach. We therefore cannot accept this amendment.

The noble Lord, Lord Dodds, asked me a number of detailed questions regarding funding, the answers to which I do not have readily to hand. However, I think he referred to Irish language centres; from memory, that was a commitment under the Hillsborough Castle agreement back in 2010, although I would have to double-check that. Anyhow, if the noble Lord will allow me, I will write to him in detail well in advance of Report so that, if he wishes to explore these matters further, he will be able to do so.

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However, those devoted to peaceful habits have reason today to reflect once again on the suffering that occurs when the IRA assaults them. On 22 June 1922, IRA terrorists murdered the unionist MP for North Down, Field Marshal Sir Henry Wilson, on the doorstep of his London home. They claimed quite falsely that Sir Henry wanted to oppress the Catholic minority in Ulster. This great man believed in equal treatment for all law-abiding people. His career would perhaps be a suitable subject for study by the Castlereagh foundation. I beg to move.

[Lord Empey (UUP)]

My Lords, I added my name to this amendment. It reminds me of an issue in a negotiation that has been brought in at the last minute as a kind of balancing act. It has all the hallmarks that it is not thought-through, but looks good and allows people to point to it as a great opportunity and success. However, there is a very serious point here and my noble friend paints it, as usual, in a very significant historical context.

Has the Minister had the opportunity to look in some detail at this? Obviously, with the terms of reference, there is a cost involved and all sorts of things that will need to be established—are we going to seek funding from third-party sources, whether it be academia, business or various trusts or foundations? Nevertheless, I do not think that this should be treated as a throw-away; there is a very serious purpose here. If we understand the background and history that we have come from, perhaps it is not too much to hope that we can avoid some of the mistakes that we might otherwise make in the future. Our history can teach us a lot. Some objective academic work would be warmly welcomed and would contribute to progress in Northern Ireland.

[Lord Murphy of Torfaen (Lab)]

My Lords, briefly, I support the noble Lord, Lord Lexden, in his amendment. I am currently reading the biography of Castlereagh by Professor Bew—I also commend his biography of Clement Attlee, which is very good. I am not quite sure that there is a connection between the two, other than the author.

It is a very good idea to establish an organisation such as this. Anything that promotes reconciliation is bound to do good. I merely reflect, on the previous—rather heated—group of amendments on costs, that, of course, the issue of cost is important, particularly at the current time with all the pressures on the health service and everything else; however, if the costs of these things mean that you can establish the Assembly and Executive, then it will be worth it.

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[Lord Morrow (DUP)]

My Lords, I will seek to be brief but I will not be as brief as the last time I spoke. I know that will please noble Lords. I will speak to Amendments 33, 34, 35 and 36 in which are tabled in my name and those of my noble friends Lord Dodds, Lord McCrea and Lord Hay.

As I have expressed previously, the integrity of the provision of the Irish language commissioner and Ulster Scots/Ulster British tradition commissioner depends not on each commissioner having identical functions but on them being accorded equal importance and on this equal importance being made manifest, certainly through each having a similar cost footprint in terms of both the running of their offices and their impact on the action and spending of public authorities.

As I noted in earlier debates, I have real concern that the functions of the two commissioners as currently defined are such that the Irish language commissioner is likely to have a bigger impact, absorbing more taxpayers’ money and engaging extensively with more than 70 public authorities, while the impact of the Ulster Scots/Ulster British commissioner is likely to be much narrower.

In this context, two things follow. First, it is absolutely imperative that the existing functions of the Ulster Scots/Ulster British commissioner are given access to as robust enforcement mechanisms as those pertaining to the Irish language commissioner. Secondly, it is absolutely imperative that while the functions of the Ulster Scots/Ulster British commissioners are not made identical, they are made similarly extensive, affording both the nationalist and unionist communities commissioners who will have an equally extensive impact on the governance of the nation and the allocation of public spending.

In this context, where there are already grounds for thinking that the current definition of the two commissioners is such that one is likely to have a significantly bigger impact on public spending than the other, it is really concerning to note that, as currently defined, the Irish language commissioner is favoured with powers of enforcement on two bases that are denied the Ulster Scots/Ulster British commissioner.

In the first instance, all public authorities are required by new Section 78N to have

“due regard to any published best practice standards”

produced by the Irish language commissioner and to

“prepare and publish a plan setting out the steps it proposes to take to comply with”

this duty. Inexplicably, while the Ulster Scots/Ulster British commissioner is similarly given the power to provide guidance to public authorities, the Bill before us today contains no parallel obligation on public authorities to have due regard to this guidance. Neither does it contain any parallel obligations on public authorities to

“prepare and publish a plan setting out the steps it proposes to take to comply with”

this duty.

I gently express the hope to the Minister that the Government can understand why some within the unionist community regard this extraordinary difference of treatment as discrimination. It is vulnerable to be characterised as a crude attempt to set up two commissioners with the apparent intention of generating the sense that the two communities are being treated equally, hoping that one will not have the sense to check and see that the standards of protection afforded it are dramatically weaker than those afforded to the other.

This particular discriminatory difference of treatment can be resolved by my Amendment 32, which affords the Ulster Scots/Ulster British tradition commissioner the same respect as the Irish language commissioner in the form of placing equal statutory obligations on public authorities to have regard for the commissioner’s advice and to publish a plan setting out how they intend to comply with the commissioner’s advice.

Unbelievably, however, the inexplicable, discriminatory difference of treatment afforded the Ulster Scots/Ulster British commissioner compared with the Irish language commissioner in terms of enforcement also extends to the provisions on complaints. Whereas a member of the public can complain to the Irish language commissioner about any public authority that has not followed the Irish language commissioner’s guidance where this has negatively impacted the complainant—which gives the commissioner the opportunity to take action—the scope for a member of the public to complain to the Ulster Scots/Ulster British tradition commissioner pertains only to the failure of public authorities to comply with one aspect of the commissioner’s functions, specifically one which is not deemed sufficiently central to appear in the principal role in new Section 78R(1), and which, when mentioned, is mentioned only in brackets.

Quite apart from any other concerns about unequal treatment, it seems clear that even at this very basic level of definition in the Bill, we are already letting go of the principle of parity of esteem and affording one community a commissioner with enforcement powers with respect to all the commissioner’s main functions, while affording the other commissioner enforcement powers only in relation to a secondary function in brackets, leaving the commissioner’s principal functions as defined by new Section 78Q(1) without an enforcement mechanism. My Amendments 33 to 36 address this discriminatory difference of treatment and enable a member of the public to complain to the Ulster Scots/Ulster British tradition commissioner if they are negatively affected if any advice issued by the commissioner is ignored and they similarly give the commissioner power to take action.

I very much hope that noble Lords will be able to appreciate why the unionist community has been shocked by the difference of treatment afforded it by this Bill. I am genuinely at a loss to understand how anyone sensitive to the challenges we face in Northern Ireland, let alone a body supposedly committed to the notion of equality of esteem, can regard the enforcement provisions afforded unionists in this Bill as anything other than direct discrimination when compared with the enforcement provisions afforded nationalism. This is wholly indefensible and inexplicable. I urge the Minister to recognise this and the fact that this inequality of treatment is utterly indefensible and flies in the face of the principle of equality of esteem. I plead with him to accept these modest amendments.

[Lord Empey (UUP)]

My Lords, unlike a good wine, sometimes negotiations do not age well. Sometimes we get it right; sometimes we get it wrong. I think the noble Lord has a fair point. I do not know, because I was not involved in the detail of these negotiations, what the rationale was to reach the final form of New Decade, New Approach. No doubt the Minister will say to me that he is trying to follow as faithfully as possible the agreement that was reached, but that does not mean that we have to be slavish in our acceptance of the provisions.

There is a perception issue here; there is no doubt about that. The Minister may have a very convincing explanation—he is usually very capable at providing them—but he has a bit of an uphill task, given the fairly broad, fairly substantial gap between the powers of the two commissioners. Perhaps he can put our minds at rest, but even if he is following New Decade, New Approach as far as I am concerned that does not mean that he has to be a slavish follower of it. I look forward to him perhaps considering before Report whether something can be done to remove the perception of inequality between the powers of these respective commissioners.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, accepting the points made by the noble Lord, Lord Empey, I do not believe that there is only a perception of a difference; this legislation would actually make a difference between the two. NDNA did not give acceptance or credence to lack of parity of esteem; in actual fact, it was demanding that. It was not seeking to be used for discrimination against the unionist community; in actual fact, it was demanding that both communities in Northern Ireland were treated with that parity of esteem.

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[Lord Empey (UUP)]

My Lords, I must say, I take a similar view to the noble Lord, Lord Morrow. For three years, when the Assembly was closed following Sinn Féin’s withdrawal in 2017, the noble Viscount, when he was answering at the Dispatch Box, would say, “Well, because of the Sewel convention, we cannot do this; it is a devolved matter. The Northern Ireland Office cannot do that”. We now seem to have moved. We do not hear the Sewel convention mentioned very much around this place. We seem to have a situation now where, effectively, we are fireproofing bits of legislation against disagreements even though they may be legitimately expressed and exercised by Ministers in Northern Ireland.

The whole mechanism that was agreed in 1998 is not what many of us would ultimately like, but the concept of a mutual veto is there for a purpose. We would not have devolution, as the noble Lord, Lord Murphy, knows, if people did not feel a sense that they each had a hand on the steering wheel. As the noble Lord, Lord McCrea, mentioned, some of the people with whom we have shared power are not necessarily dinner companions. Once you take away the exercise of a veto, you take away a part of the settlement.

I know that colleagues here did not agree with it in 1998; I am well aware of that, and I understand the rationale for it, but perhaps they now understand our rationale for not agreeing with New Decade, New Approach. As far as I can see, all people would have to do is not agree, and all that those who would like to see a particular measure would have to do is sit on their hands and wait for the Secretary of State to overrule. If we get into that, Sewel is out the window and you start to decay the whole process; we need to take very great care that we do not undermine it. It is an awkward, difficult and complicated system because, if you know that you do not have to agree with the person across from you, the temptation is to wait it out until the Secretary of State intervenes and takes your side.

For a brief period, I held the office at the OFMDFM. I know how complicated this is. The first week I held the office, I and the Deputy First Minister could not agree on the notepaper; as a consequence, the department could not send a letter out for a week until we agreed. We agreed because we had to, and we got a compromise. However, if I had known that I could sit it out and that the Secretary of State would come over and take my side, I would have been under no obligation to agree.

[Lord Kilclooney (CB)]

He would not have taken your side.

[Lord Empey (UUP)]

Or the other side. Whichever—the point is still valid. I am just saying that, if you throw out or undermine the concept that people have to agree, however difficult it is, for one thing, the temptation is that it will spread. That will be my only contribution.

[Lord Moylan (Con)]

My Lords, I will speak to Amendment 43, to which I have put my name. I would in fact have put my name to Clause 7 stand part if the field had not been too crowded when I arrived at the Public Bill Office. I speak to Amendment 43 in the absence of the noble Baroness, Lady Hoey, who I think noble Lords know has had to leave for Northern Ireland and who was the tabler of the amendment.

I am in danger of making the same, or a very similar, speech to the one I made at Second Reading. Indeed, I am in danger of making the speech I might have made yesterday on the abortion regulations if I had not constrained myself and kept silent. I should avoid doing that, so I shall be fairly brief.

My concern is that, while the Government proclaim their rock-solid adherence to the Good Friday agreement, as noble Lords have already said, the increasing number of powers being given to the Secretary of State to appoint or conduct himself effectively as a Minister in the Northern Ireland Executive is undermining the Good Friday agreement, and manifestly so.

I know a great deal less about Northern Ireland than practically every other noble Lord in this Committee. However, I know something about planning law. One of the features of planning law is that, if a local planning committee made up of local councillors finds itself in a position where it is legally obliged—there is no way out—to grant a planning permission that it does not want to grant because it is politically unattractive, it has the option of sitting on its hands or simply refusing it and allowing the applicant to appeal to an inspector appointed by the Secretary of State. Then it can say, when the inspector has granted the planning permission, “Ah, well, it was nothing to do with us. You see, we opposed it but the inspector has forced it upon us”. This creates a dishonesty in local government that should not really be allowed.

The noble Lord, Lord Empey, put his finger on this in relation to Northern Ireland. If you have a devolved Administration that requires some form of consent and collaboration but you know that the decision will be taken by the Secretary of State if you refuse or fail to achieve that level of consent and collaboration, that is of course the easy way out, as it is for planning committees that do not want to confront their residents and explain why they have granted an unpopular permission. That is the position that the Government are getting themselves into. It was clear in the discussion yesterday of the abortion regulations and it is clear here today. No rationale has been presented by the Government for how they see devolution in the light of these new powers that are constantly being conferred on the Secretary of State to appoint himself as a Minister and conduct himself in that way.

Amendment 43 is very simple. It says that the Secretary of State cannot exercise these powers if there is a functioning Assembly or if there has been a delay of less than six months since the Assembly and Executive were operating. It puts a firebreak in and puts the pressure back on local politicians in Northern Ireland to reach consent, collaborate and work together in the way that the Good Friday agreement was framed. It is a very simple measure in that respect and should commend itself to the Government. From what I understood of the remarks of the noble Lord, Lord Murphy of Torfaen, he might see it as having some merit, too. I very much hope that, when he comes to reply, my noble friend the Minister will be able to give some succour to those of us who would like to see this amendment pass.

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[Lord Dodds of Duncairn (DUP)]

My Lords, the noble Lord, Lord Moylan, has eloquently set out the dangers of the approach that the Government are taking through the insertion of Clauses 6 and 7. I support Amendment 43 in his name and that of the noble Baroness, Lady Hoey. Our position that Clause 7 should not stand part of the Bill would go further in deleting the Secretary of State’s override powers completely. However, I understand entirely that, when we have a functioning Assembly, there certainly should be no question of the Secretary of State having the power to intervene.

The issue is very clear, as was illustrated yesterday in the debate on the abortion regulations. These clauses are another example of what one noble Lord described as the Government’s pick-and-mix approach to devolution and the Belfast agreement as amended by the St Andrews agreement. Some issues are picked out to be legislated for here in Westminster and other issues are not touched at all; we saw this between 2017 and 2020, when the Government’s attitude was that they could do nothing at all to move issues forward, legislate or step in.

However, now, they are doing so on other issues. We had it with yesterday’s regulations on abortion, which is a devolved matter for the Northern Ireland Assembly and was lifted out of it to be legislated for here. We had it on the protocol, where the Belfast agreement and the Northern Ireland Act were disgracefully amended by secondary legislation to ensure that, for the vote on the protocol—it was given to the Assembly and therefore, by definition, was devolved to it—the voting mechanism was changed. The very architecture of the Belfast agreement was changed at the Government’s whim without agreement among the parties.

Here is another example. As the noble Lords, Lord Moylan and Lord Empey, have said, this goes to the heart of the operation of the institutions in Northern Ireland. There is no doubt that people will inevitably feel that, going forward, if there are intractable or difficult issues, they will go with their competing demands to whoever is in power at Westminster and demand that it should act in their favour—although I suspect that unionists will be less keen to do that than nationalists, given the track record of success at getting Westminster to legislate over the wishes of the Assembly. I fear that it seems to be a rather one-sided approach. There is no justification on this issue in terms of the principle of devolution, which applies throughout the United Kingdom; the Sewel convention has been mentioned. It undermines the principle of devolution and the Belfast agreement as amended.

I throw this point in also; obviously the Minister can deal with it when he comes to reply. He said that the New Decade, New Approach document should be faithfully followed, that part of this legislation is about putting into practice and law the provisions of that agreement, and that it should be departed from very rarely—if at all—but can he point to anywhere in the NDNA agreement that says that the Secretary of State would have override powers or intervention powers? Where is that provision to be found?

Of course, the Secretary of State and the Government always implicitly have such powers but it seems to me that, when parties make an agreement in the context of an operational assembly and an agreement on how things should be agreed between them, that assembly is where the matter should lie. Yes, there will be difficulties in reaching agreements—the noble Lord, Lord Empey, pointed to one particularly good example about notepaper—but the point is that there have been serious issues on which there was disagreement initially but agreement was eventually reached between the First Minister and Deputy First Minister, or between the parties in the Executive, because it had to be.

I hear Ministers continually referring to their support for the Belfast/Good Friday agreement and how committed they are to it, yet their actions in recent months have been very concerning in terms of their approach to the institutions and powers of the Executive and the Assembly as set out in that agreement. They are effectively undermining it.

I believe that Clause 7 should not stand part of the Bill and I lend my support to Amendment 43. I also happen to agree with Amendment 40, moved by the noble Lord, Lord Murphy of Torfaen, in the sense that, if there is a situation where this clause does go through and the Secretary of State does have that power, he or she should be required to come and make a Statement to Parliament, as opposed to not having that obligation. Again, that would be an opportunity to hold people to account.

[Lord Empey (UUP)]

Not having been intimately involved in the New Decade, New Approach negotiations, is the noble Lord saying that there were no provisions in that agreement for Secretary of State override powers? Am I right in taking that as his position? If that is the case, could it be that a deal has been done with Sinn Féin to guarantee that, irrespective of what happens in the Assembly, its particular version of events will be implemented by the Secretary of State? Is that possible?

The genesis of the Irish language Act is in the final communiqué of the St Andrews agreement, where the British Government commit to introducing such an Act. I just wonder whether a private understanding has occurred; I am sure that the Minister can clarify that if that is the case. However, if the noble Lord is saying that we are putting into this piece of supposedly devolved legislation a clause that means that the Assembly in and of itself is not the final arbiter of its decisions, the sooner we have that clarified, the better.

[Lord Dodds of Duncairn (DUP)]

I am grateful to the noble Lord. A lot of those questions are for the Minister; I look forward to hearing what he has to say in relation to these matters.

I want to clarify the point about the St Andrews agreement and the Irish language provisions, which were also referred to by the noble Lord, Lord Murphy. He is quite correct that Sinn Féin went to the Government at the very last minute and wanted provision to be made but, of course, it was not a matter for the negotiations between the parties; it was a last-minute effort by the Sinn Féin negotiators to get the Government to commit to doing it. Of course, the Government made some commitments but they were not binding on the local parties and, because it was a devolved matter, that is where it stayed.

As far as we are concerned, just like abortion, the issues of identity and language are matters for the Northern Ireland Assembly. That is the basis on which agreements were made. Going forward, I believe that it is dangerous for the stability of the Assembly and all the other institutions if the Government take this pick-and-mix approach and decide that they will act unilaterally on certain issues. That is not sustainable and will ultimately cause major problems. It has done so already but it will cause more problems down the line.

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[Lord Caine (Con)]

My Lords, I again thank noble Lords across the Committee for the amendments that have been tabled and for their contributions. If I may, I will try to speak to all of them in this group.

Turning first to Amendment 41 in the names of the noble Baronesses, Lady Ritchie of Downpatrick and Lady Goudie, to which the noble Lord, Lord Murphy, referred, it would introduce a threshold to the step-in powers conferred on the Secretary of State if the First Minister and Deputy First Minister do not appoint an Irish language commissioner or approve best practice standards, either once the legislation comes into force or when a vacancy arises.

I again understand the noble Baronesses’ intention in wanting to ensure that the provisions of this long-awaited Bill are not stymied by inaction on the part of the Executive, and their desire for the Secretary of State to move quickly if such inaction were to present itself. This is an issue that was raised with the Irish language group Conradh Na Gaeilge when I met it in Belfast three or four weeks ago.

My starting point is, of course, that the Government would not wish to intervene routinely in transferred matters and the use of any powers in the Bill would require careful consideration. Judging by the comments that have been made, I am sure that noble Lords share my belief that deviating from that principle would be undesirable. However, the Government believe that it is important to have these powers as a contingency to avoid inaction. They have been carefully drafted to allow the Secretary of State to use his discretion and to consider the circumstances at the time.

I think the noble Lord, Lord Murphy, wanted me to elaborate a little on that. Some of the considerations that the Secretary of State might want to take into account in exercising these powers and having regard to the circumstances at the time might include: whether the matter of identity and language was causing political instability in Northern Ireland; whether the institutions were functioning; whether the First and Deputy First Ministers were acting in good faith in implementing the legislation; and, indeed, whether these issues were surmountable without such an intervention. They would be the kinds of considerations that he would take account of.

The stipulated timeframe of 30 days in the amendment seems impractical, particularly in respect of public appointments that take time and need to be conducted with rigour. Such a timeframe would almost certainly preclude the correct process from taking place and the proper and thorough consideration of best practice standards by the First and Deputy First Ministers.

Finally, my understanding is that the amendment would apply solely with reference to the Irish language commissioner and not the commissioner to enhance and develop the language, arts and literature associated with the Ulster Scots and Ulster British tradition; nor would it apply to the appointment of the director and members of the office of identity and cultural expression. Therefore, the Government will not be able to accept such an amendment.

Amendment 42 seeks to give the Secretary of State a further area where step-in powers could be exercised; namely, in relation to strategies relating to the Irish language and Ulster Scots, as set out in Section 28D of the Northern Ireland Act 1998. This is a separate undertaking from the legislative commitments on identity and language that were set out in New Decade, New Approach and, for that reason, we have decided not to include such a provision here.

Amendment 40, moved by the noble Lord, Lord Murphy of Torfaen, would require the Secretary of State to make a statement to Parliament when the direction powers under Clause 6 are used. I hear the comments of my noble friend Lord Empey, the noble Baroness, Lady Suttie, and others, who gave some support to the comments by the noble Lord, Lord Murphy. If I may put it like this, I understand the desire for more scrutiny and transparency to be introduced if the Secretary of State were to be in the unfortunate position of having to use these powers. The powers, as I have said, have been carefully drafted, but I assure noble Lords that I will go away and look further into this issue following our discussions today.

[Lord Empey (UUP)]

I am most grateful to the Minister for his last comment, but this is a fundamental issue around the devolution settlement. If we are making big distinctions over the areas of transferred powers in which a Secretary of State has the potential to intervene, it is an encouragement for people in the relevant devolved Administration because it is a disincentive to agree.

We also have to bear in mind the implications of this for the other devolved institutions. I wonder how we would sell this to the Scottish Parliament, or the Welsh Senedd for that matter. If we take one issue and put it on a pedestal, the potential is there for that boundary—that envelope—to be pushed further forward. I can assure the noble Lord of that, though I am sure he is well aware of it.

[Lord Caine (Con)]

I am grateful to my noble friend; I will touch on what he said shortly, I think. I give my assurance to the noble Lords who have spoken on this amendment that I will go away and look at this further before Report.

I am also grateful to the noble Baroness, Lady Hoey, for her amendments, which were spoken to by my noble friend Lord Moylan, and to the members of the Democratic Unionist Party who are in the Committee today for their amendments, which all focus on the powers conferred on the Secretary of State arising from the provisions in Clauses 6 and 7. I will turn to those clauses now, if I may.

I completely understand the noble Lord’s intent that these powers should be exercised only in exceptional circumstances, if at all. I repeat my earlier assurances: the Government would not wish routinely to intervene in transferred matters and the use of any powers in the Bill would require very careful consideration indeed. I have set out some of the factors that the Secretary of State might have to take into account in deciding whether to use the powers in these clauses because we agree that deviating from the overall principles—protecting the devolution settlement and not routinely intervening in transferred matters—would be undesirable.

However, in our view, it remains important to have these powers in the event that matters such as those we are discussing today—identity and language—remain a source of instability. I need not remind the Committee of the potential and capacity that they have to poison and paralyse politics in Northern Ireland, as they did during the period between 2017 and 2020. That is why these powers have been drafted and included; they afford the Secretary of State the latitude to use his discretion if these issues remain a matter of discord.

I complete accept the comments of my noble friend Lord Dodds of Duncairn in referring to New Decade, New Approach. However, the reason we are taking these powers—almost as an insurance policy, if you like—is to deal with the fact that, some two and a half years after New Decade, New Approach, key elements and provisions of that agreement have not been implemented. The Government feel that they have an obligation to ensure that they can be delivered.

At the risk of opening an entirely new front at this late stage, I have heard a number of comments about the Belfast agreement. Noble Lords have heard me express on many occasions my support for that agreement, which has been consistent since 10 April 1998. I gently remind noble Lords that there is a provision in the Belfast agreement that explicitly states that Parliament’s ability to make law for Northern Ireland remains unaffected. That is also reflected in the Northern Ireland Act 1998.

As I said, the powers have been drafted to give the Secretary of State latitude to use his discretion in these areas. They also reflect the fact that the UK Government are necessarily bringing forward in this United Kingdom Parliament primary legislation that was originally for the Northern Ireland Executive and Assembly to introduce. In our view, it is right in those circumstances that the Secretary of State has the power to ensure the implementation of these commitments, as I have just said.

Of course, as has been stated many times, it is our sincere hope that a new Executive will be formed soon, will implement this legislation and will set up the new bodies for which this Bill provides. With Clause 6, though, the Government are seeking to ensure that there is a path to the implementation of the legislation. The Government are committed to ensuring that the legislation works in practice, and that the commissioners and the office can function effectively so that these New Decade, New Approach commitments are conclusively delivered. Clause 7 is necessary to ensure the effective operation of the provisions made in Clause 6 should the Secretary of State judge it necessary to intervene.

Finally, I very much take on board the comments of my noble friend Lord Lexden. I will reflect on what he said. With those remarks, I urge the noble Lord, Lord Murphy, to withdraw his amendment.

[Lord Murphy of Torfaen (Lab)]

Well, there we are. My Lords, it is not easy. My heart tells me that the noble Lords, Lord Empey and Lord Dodds, and others are right that the devolution settlement should be protected. If you set up an Assembly and a Government, they should be allowed to get on with things and should not be interfered with every 24 hours by the United Kingdom Government; I accept that. That is one reason I tabled what I thought was a fairly modest amendment to just say, let us have a Statement instead of a directive. It could even go further and have a parliamentary debate, or whatever.

As always, the issue boils down to a short supply of trust. That has to be built up. It has been lost over the past number of years, inevitably, for all sorts of reasons, but there is a difference between this legislation and others, which is that this is essential to the restoration of the Assembly. Sinn Féin brought the Assembly down because of the lack of an Irish language Act, and therefore, if we are saying, “Look, there is so much disagreement we can’t pass this; it’s not going to happen”, the chances are we will go back to square one again. The problem is that people in the unionist community will say, “Well, that’s a veto too, over the Assembly being set up.” I am uncomfortable with it, but I cannot see off the top of my head any way around it. There may be people much cleverer than me who can think of a solution—there we are; there is a good example of someone much cleverer than me.

[Lord Empey (UUP)]

The solution is the agreement. Let us suppose Sinn Féin proposes a convicted murderer or somebody who is anathema to a large section of the community to be a commissioner and a DUP Deputy First Minister says, “I can’t appoint that individual, my conscience won’t allow me”. All Sinn Féin has to do is sit it out, whereas if we both know that we have to get agreement, we have to compromise. That is the core of the agreement, and we are taking it out. We have taken it out since the agreement was made. In my opinion, we took it out at St Andrews—the same principle—but that is one example.

[Lord Murphy of Torfaen (Lab)]

Yes, I understand, and if I was the Secretary of State under those circumstances, I would not invoke special powers, which this Act would eventually do; I would get on a plane and go over there and have a chat for the next two weeks to try to resolve it, negotiate around it and deal with it that way. That is how we have always dealt with things in Northern Ireland. Frankly, that is how what is going on there now should be dealt with. That is the way to do it. That is why I am less than comfortable with this, but I just cannot see a way around it.

The noble Lord, Lord Empey, makes a good point. We assume in all the agreements we have made that we can resolve these issues among ourselves. It could be that the Secretary of State could be a referee in all this, and that could be somehow put into legislation. Then, at the end of the day, the decisions are taken by those who should be taking the decisions, rather than a rather clumsy, clunky entrance which says, “All right, you lot, I’ve had enough of you, I’m going to pass the legislation.”