Northern Ireland (Stormont Agreement and Implementation Plan) Bill

Lord Lexden Excerpts

Thursday 21st April 2016 Lords Chamber

[Lord Browne of Belmont]

What I said was that the veto would rest within the Office of the First Minister.

[Lord Lexden (Con)]

My Lords, like all who have spoken in this very interesting and wide-ranging debate, I warmly endorse and support the amendment of the noble Lord, Lord Alderdice. We seem to have strayed also into Amendment 2, in the name of the noble Lord, Lord Empey, and I have great sympathy with what he said about it. However, I think that this debate is primarily about Amendment 1.

We all remember the deep sense of crisis that existed last summer in Northern Ireland with regard to the extent and viciousness of paramilitary activity. It has been touched on from time to time in this debate, bringing it home to us again. The latest police figures show that nearly 100 people were injured last year as a result of paramilitary assaults or shooting incidents. The sooner the new commission is able to get to work, the better it will be. The effectiveness of its work would surely be most usefully demonstrated by regular twice-yearly reports. No one speaks with more authority on this matter than the noble Lord, Lord Alderdice, who is hugely respected for the work that he did on the Independent Monitoring Commission, to which tribute has been paid today. I would like to be part of that tribute.

The Government will have noted the strength of feeling that exists and I hope they will respond in the way that all of us who have spoken in this debate would wish.

[Lord McAvoy (Lab)]

My Lords, I welcome the contributions of all noble Lords on these amendments. I record the Labour Party’s appreciation of the Independent Reporting Commission, the creation of which is extremely important. The Labour Party also expressed that appreciation in the other place.

As regards representation, the noble Lord, Lord Rogan, echoed almost completely the view put forward by the Labour Front Bencher in the Commons, Steve Pound. The only thing that I think Steve Pound missed out was the square mileage, but he certainly referred to the saying that everybody knows one another. I have listened to many debates on representation in Northern Ireland on various bodies. With due respect to those who have far more experience than I do and who live in the place, no one has come up with a solution that is accepted by everyone. That is the difficulty we face with the representation issue. It is important that the view of the noble Lord, Lord Empey, on that issue is heard.

On the amendment of the noble Lord, Lord Alderdice, I make it clear that if the Government can come up with a form of words in an amendment to reflect that position, we would support it. On the other hand—there are always three hands in Northern Ireland—if that would delay the passage of the Bill in any way, we would support the Government on that.

Although the legislation refers to reporting once a year, does that preclude further reports? Can the commission of itself respond to any given situation and issue a report or carry out an investigation and comment on any incidents that arise, or is an amendment needed to enable it to do so? The legislation does not strike me as restricting the commission to producing only one report. As we all know, events can move very quickly in Northern Ireland. Therefore, I would be grateful if the Minister could clarify that the commission will be able to carry out reports as and when required.

In ending my remarks, and as I think that everything has been said, I just echo the view expressed by the noble and right reverend Lord, Lord Eames, that although we know that not everybody listens to what is said in this place, there is a place for us in appealing in moderate language for cross-party and cross-community support. I value his point of view very much.

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Moved by

[Lord Lexden]

2A: Clause 2, page 2, line 6, at beginning insert “Republic of”

[Lord Lexden]

My Lords, at Second Reading I raised an issue of terminology in relation to the Bill. The text of it contains four references to Ireland as a state, which led me to wonder how this usage had arisen. Surely in international law the name of the state referred to in the Bill as “Ireland” is in fact “the Republic of Ireland”. I have tabled this probing amendment so that the issue could be explored and discussed.

Twenty-six counties of Ireland left the United Kingdom in 1922 to become the Irish Free State in international law. That state significantly amended its constitution in 1937 and, in 1948, its Government declared their intention to create a republic. The legislation which passed through its parliament is entitled the Republic of Ireland Act 1948. Its purpose was,

“to declare … the description of the state”,

as “the Republic of Ireland”. This Parliament brought itself into line with the new state of affairs when the then Labour Government of Clement Attlee passed the Ireland Act 1949. It stated that the “part of Ireland” which had declared itself a republic would,

“after the passing of this Act be referred to, by the name attributed thereto by the law thereof, that is to say, as the Republic of Ireland”.

So in 1949, an admirably clear state of affairs came into existence. Northern Ireland was plainly part of the United Kingdom and the rest of Ireland, now named the Republic of Ireland, was equally plainly a separate state on the same divided island.

Why depart from that clear position, settled in law by Acts of the United Kingdom Parliament and the parliament of the Republic of Ireland, sometimes referred to in everyday usage as the Irish Republic? As far as I can see, neither country departed from that for many years after 1949. I have been in touch with a number of constitutional experts, for whose advice I am deeply grateful, and they tend to take the same view.

The Government of the Republic of Ireland who signed the European Convention on Human Rights did so in that name; so did the later Government who signed the Anglo-Irish agreement of 1985. Legislation passed by this House which made reference to the Republic used the established legal terminology but suddenly, in an Act passed just 16 years ago in 2000 to amend the Northern Ireland Act 1998, there appears a reference to a Minister of “the Government of Ireland”. How could this have happened? The Ireland Act 1949 defined the name of the 26 counties of Ireland outside the United Kingdom as the Republic of Ireland, not as Ireland tout court.

Was this Parliament asked to approve the change of terminology? I have not been able to trace such approval and, in its absence, three questions immediately arise. Was the change the result of a ministerial decision? Could the change be legitimately made in that way without explicit parliamentary approval? If those were the circumstances, should Parliament reassert the law as defined in 1949? I pose those questions and make no party-political points. I accept that constitutional arrangements evolve but surely they should evolve clearly and openly, with full explanations of changes being provided to Parliament. This probing amendment seeks to draw attention to what seems a not unimportant issue. I beg to move.

[Lord Bew (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Lexden. On Second Reading, he said that it was a terminological point but it is rather more than that, as he has demonstrated today. It is actually a substantive point of some significance. I will draw attention to the fact that the loose use of the phrase “the Government of Ireland” has a bad history. The noble Lord said in his remarks on the Anglo-Irish agreement of 1985, accurately, that in the British text it is defined as an agreement between the Republic of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, but there were two texts of this agreement. In the Irish text, the agreement was defined as between the Government of Ireland and the Government of Great Britain.

The consequences of that are really severe for something vital to the whole peace process: the protection, preservation and respect for the principle of consent. When the McGimpsey brothers challenged the agreement of 1985 in Dublin’s Supreme Court, that Supreme Court ruled that it was an agreement between something called the Government of Ireland and the Government of Great Britain, and that any apparent remarks in the agreement of 1985 acknowledging the right of the people of Northern Ireland to determine the status of Northern Ireland were therefore of no substance because it was not clear what Northern Ireland was. It could conceivably have been the case that it was part of the Government of Ireland. This is fairly obviously a spurious argument; none the less, it was so used and accepted by the Irish Supreme Court. It therefore diluted what Her Majesty’s Government thought that they had achieved in 1985: an acknowledgement of the right of the people of Northern Ireland to determine their own future, which exists in the British version of the documentation.

Given the rather difficult history of the loose use of the phrase “Government of Ireland” it seems very surprising that it now not only appears in Irish government documents, which is to some degree understandable, but is starting to appear in the documents of the United Kingdom Government. This is surely a step too far. It has a dangerous prehistory and we need to be very careful about it. I believe that the Irish Government today fully support the principle of consent and that one of the great achievements of the agreement of 1998 was the fact that that support became absolutely explicit through a referendum of the Irish people, passed by a large majority. But having achieved this remarkable development, and therefore the possibility on which the whole peace process rests, we should not be playing around in any of our internal documents by using this loose language, which has such a troubled prehistory.

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It is true that the term “Republic of Ireland” continues to be used in some legislation. This is mostly in the interests of clarity, where it is necessary to avoid any misunderstanding about the place referred to. For example, in the Counter-Terrorism and Security Act 2015, the term “Republic of Ireland” is used to distinguish between Ireland the state and Ireland the island. The Government are of the view that this Bill does not require such a distinction to be made as the meaning is clear. On this basis, I ask my noble friend to withdraw his amendment.

[Lord Lexden]

My Lords, this has opened up an interesting and quite valuable debate. It has brought me some mildly critical comments from the noble Lord, Lord McAvoy. In the past his criticisms have been slightly stronger: thus I am grateful to the noble Lord, Lord Bew, for achieving a degree of change. I sometimes wonder whether I will ever be able to produce anything that will appeal wholly to the noble Lord, Lord McAvoy. He even picks me up from time to time on passages that he finds in publications to which I have contributed. Of course, I am extremely grateful for the kind references from my noble friend Lord Dunlop.

The essential point that I would ask the Government to bear in mind is that in 1949, this Parliament voted for a Bill that clearly defined the 26 counties as the Republic of Ireland. This point was stressed by my noble friend Lord Kilclooney. It is important in our documents and laws that the 1949 position should be very clearly borne in mind. I thank all noble Lords who have contributed to the debate and I beg leave to withdraw the amendment.

Amendment 2A withdrawn.