Northern Ireland (Executive Formation) Bill

Lord Lexden Excerpts

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

[Lord Tebbit (Con)]

My Lords, it is a fairly good general rule that, when we are faced with legislation that is the sort of dog’s dinner that no reasonable dog would look at—complex and everybody has misunderstandings, with comments that they cannot accept this bit or that bit—the legislation is fatally wrong. When Parliament gave devolved rule to the people of Northern Ireland, it was a clear act. Now we are saying, “If you are not using it, we are going to take it back and use it for you”. The only honest way to go about that is to repeal the Act that gave devolved government and take over in an honest manner. To do it like this is a mess—and I will oppose this mess because, in all my experience, when legislation is as complex and muddled as this, it is fatally flawed.

[Lord Lexden (Con)]

My Lords, I support Amendment 11 in the name of my noble friend Lord Hayward and other noble Lords, and the other amendments associated with it. The House will recall the skill with which my noble friend Lady Stowell of Beeston took through the equal marriage legislation in this House, and it is good to see her in her place as we debate this amendment.

Since 2013, I have, on several occasions, called for the extension of same-sex marriage to Northern Ireland, and I am delighted that my noble friend Lord Hayward has taken up the issue with such skill and determination, strongly supported by others across the House who share our particular interest in gay rights, including the noble Baroness, Lady Barker, who is in her place today.

I take a simple, unionist view. People in Northern Ireland ought not to be deprived of this human right, which is now firmly established in Great Britain. I do not think that the unfortunately named Sewel convention should, on this matter, deter this Parliament from exercising the right, which it undoubtedly possesses, to legislate in a devolved area. Before its collapse, the Northern Ireland Assembly had reached a majority view in favour of reform, and opinion polls in Northern Ireland show that public support for same-sex marriage is running at much the same level as in the rest of our country.

It should be remembered that it was this Parliament that decriminalised homosexuality in Northern Ireland, after a courageous Ulster Unionist, Jeffrey Dudgeon MBE, had brought a case at the European Court of Human Rights. That legislation in this Parliament came 15 years after gay consenting adults elsewhere in our country had ceased to be treated as criminals. Let not gay people in Northern Ireland have to wait so long for the right to marry if that is their wish.

[Baroness Massey of Darwen (Lab)]

My Lords, I support these amendments, to which I have added my name. I commend the eloquence of the noble Lord, Lord Hayward, who spoke about the issues clearly and in detail.

I have followed these debates for a number of years and, for me, this is a matter of human rights, on which we have clear laws. It is also a matter of respecting diversity. I have known several same-sex couples who have suffered from not being able to make a deeply felt commitment to each other through marriage. Many of these couples have deeply felt religious faiths. As I recall, at the most recent Assembly elections in Northern Ireland, a number of Members who support equal marriage were elected. I think that 55 out of 90 Assembly Members have declared that they would vote to introduce marriage equality.

Marriage equality has enjoyed clear and growing majority support among the Northern Ireland public over many years, as various surveys have shown. The recently published Northern Ireland Life and Times Survey shows that 68% of people—70% including don’t-knows—support legislation for same-sex marriage. Amnesty International has produced a well-thought-through document on this, saying that the UK Government and Parliament are in a weak position as long as the ban on same-sex marriage continues in part of the UK.

The timetable proposed will allow for a statutory public consultation in Northern Ireland and provide sufficient time for the Government to make the necessary changes to regulations. I do not accept that this is being done in a hurry. The amendment will allow for the law on civil partnerships for opposite-sex couples in Northern Ireland to be brought into line with other parts of the UK, thus addressing the Human Rights Act compliance concern raised by the noble Lord, Lord Duncan of Springbank. This is an issue that we should grasp firmly now and I firmly support these amendments.

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This is not so much about the subject matter of the Bill, so far as I am concerned, except that it is outside its original purpose. The matter is also in a Bill that our Constitution Committee strongly recommended should not be dealt with by this method. These are very important matters. Should regulations be created in this way for Northern Ireland without every possible respect being paid to the attitude of the people of Northern Ireland to this subject? I have received a very large number of emails and other communications suggesting different points of view on this matter. Not all have been in one direction, but most were against doing anything about this. That is not why I support this: it is because I believe it essential that the devolution settlement should be observed as far as we possibly can. We cannot make the Executive meet, unfortunately —that is a matter that they have to agree—but we can secure their point of view on this important matter and I strongly support this amendment for these reasons.

[Lord Lexden]

May I ask my noble and learned friend, if a majority of Members of the Assembly are against the proposed reforms in the consultation, should that then halt the change?

[Lord Mackay of Clashfern]

I sincerely hope that that will not happen: that is the reason we have put it on the basis of the majority being in favour of the change. If we were to ask them and they were against it, that would be a real slap in the face for devolution. I have enough confidence in the Government’s consultations, and I believe the result would be so reasonable, that I expect the majority of the already elected Members of the Assembly to support this. Otherwise, it creates quite a difficult situation so far as devolution is concerned. We still have devolution—devolution to Northern Ireland is there at the present moment, it has not been withdrawn—so I think it is right to acknowledge and hope that the result of the negotiations and the regulation will be acceptable to the Members of the Northern Ireland Assembly.

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[Lord Morrow]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Lexden]

My Lords, the noble Lord, Lord Morrow, has described the case for the amendment and the consultation that would follow. It is overwhelming. I agree with him and I shall vote for the amendment.

[Lord Dubs]

My Lords, I find this disappointing. I thought that the point made by the noble Lord, Lord Morrow, was the subject of the previous amendment but, never mind, we occasionally stray from one amendment to another.

Let me deal with the substance of it. If we were talking, as the noble Lord, Lord Cormack, has on previous occasions—although not tonight—about making use of Members of the Assembly to make general comments about policies in Northern Ireland, we would be in a different place. However, what we see today, under the pretext of giving the Assembly a new lease of life, is the picking out of one issue in the Bill and saying, “That is the way in which we should move forward”. If we want Members of the Assembly to be consulted, they should be consulted over the whole range of policies, rather than us picking the one policy which noble Lords do not like and saying, “We will proceed on that basis”. This is the wrong way to go about it and the principle of consulting the Assembly is negated by wishing to do it only in this partial sense.

We have already discussed the previous amendment and voted on it. I understand that feelings are strong—I respect them even if I do not agree with them—but it is quite inappropriate at this stage to deal with this sort of amendment. If Members of this House want to bring the Assembly back in some form another, let us talk about it—let us do it properly—not pick on abortion as being the pretext for doing it.