Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Mackay of Clashfern Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, my intention is to speak about Clause 4 only and the legal situation which is the background to it. I am taking no position on the substantive issues which underlie the clause, but it is quite clear that the intention of those who promoted the Motion put to approve Clause 4 as an amendment in the House of Commons, on a free vote, was to bring the law on abortion in Northern Ireland into line with modern law on the other side of the Irish Sea. The position is that abortion has been made a devolved subject. Therefore, the only statutory authority with authority to alter the statutes and statutory instruments is the Legislative Assembly of Northern Ireland and Ministers of that Assembly. There is no power whatsoever in the United Kingdom Parliament to interfere with that while it is devolved.

The noble Lords, Lord Steel of Aikwood and Lord Bruce of Bennachie, mentioned that there is a border in the Irish Sea on this point. That is certainly true. There are borders between here and Scotland on a number of things, including, for example, free prescriptions in the health service. It is part of devolution that the law on one side of the devolved border may be different from the law on the other side. I am a little surprised that exponents of devolution found that surprising, but that is the fact. That is part of the background of the law on this matter. The devolved issue is one, as I say, for the Northern Ireland Assembly and Ministers acting as Ministers of that Assembly.

Where that is the law, the question of the Human Rights Act is important. Your Lordships will recollect that the Human Rights Act does not modify existing law. There is a power in the courts to declare a provision of British law—this would apply in Northern Ireland as well—incompatible with the convention provision in the Human Rights Act. That decision of the courts does not affect the law unless and until it is acted on by Parliament. Perhaps the best example of that was the relationship between the Westminster Parliament and prisoners’ voting rights. That was declared incompatible with the convention rights by a Scottish court many years ago and the English court followed it, saying it was not necessary to do it twice because there was nothing wrong with the way that the Scots had done it—which is a compliment that I always like to hear. Anyway, that is what happened, and it remained the law of the United Kingdom for a long time. There have been some slight modifications recently but the idea that the Human Rights Act changes existing statutes is wrong. It is part of the provision of the Human Rights Act that it does not do so.

Therefore, the only authority to alter the existing law and bring it into conformity with the Human Rights Act is the legislature in question, if it is a statute that is in issue. Therefore, there is no question that the Secretary of State could by guidance alter the law in this matter, which is to a considerable extent defined by statutes which are in existence and in force in Northern Ireland. The Secretary of State is mandated to do this—she must do this—but if she were to make an order, it would be immediately set aside because it is quite clear from the statistics that have been given that not everybody in Northern Ireland is of exactly the same mind in connection with abortion. If it were so, it might pass without any challenge but in Northern Ireland that is extremely unlikely. Therefore, if the Secretary of State were to make an order trying to escape the existing statutes of Northern Ireland relevant to this subject, she would be immediately struck down as doing something which she is not entitled to do. The fact that she would have been asked to do that by Parliament is an extraordinary situation.

I know that those who moved this amendment in the House of Commons did so with that in mind—that this might be a way forward—but in this House we must take the view that that is not possible. I tabled an amendment for Committee—the last one, which will presumably come fairly late this evening—about that. I am proposing to move the amendment so that discussion will be possible but I do not intend to press it to a Division because abortion has always been—rightly, because it is a matter of conscience—on a free vote. This amendment was passed on a free vote in the House of Commons and therefore I do not intend to press it here. There may be others who want to do that and the fact I have tabled the amendment makes that possible. I just make it clear that I am not going to do that because it would be completely ineffective in producing the result that the movers of it wanted.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Adonis]

My Lords, my response to the noble Lord, Lord Alton, is that of course the devolved institutions are not even sitting in Northern Ireland at the moment, so we face two issues in this respect. The first is that the Northern Ireland Assembly should be given an opportunity to address this matter. Clearly, it does not have that opportunity at the moment because it is not sitting. The Bill seeks to ensure that the Northern Ireland Assembly does sit and is sustaining an Executive by the end of next March. The second point concerns the situation if the Assembly is not, even when it is sitting, able to address this issue, I do not believe it is consistent with the poll that the noble Lord has just cited that the people of Northern Ireland would regard it as satisfactory for the Assembly in Northern Ireland not to address this issue of fundamental rights. One way or another, in a short time, this issue must be resolved. It will not be satisfactory either for the Assembly in Northern Ireland to fail to address this issue or for this Parliament to allow fundamental breaches of civil rights to take place in a substantial part of the United Kingdom. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, my Amendment 16 has the honour to be joined to the two amendments of the noble Lord, Lord Adonis, Amendments 10 and 11. It seems to me that Amendment 10 breaches a fundamental aspect of the constitution, namely that it is not right for anyone not connected with the prosecution to intervene to alter or to direct a prosecution decision. That is what Amendment 10 does. Amendment 11 again breaches the constitutional rule that our judiciary is not to be directed by departmental guidance. The Secretary of State for Northern Ireland has no authority whatever to direct the prosecuting authorities in Northern Ireland not to prosecute existing statutory provisions there, and certainly no authority to order the judiciary in Northern Ireland not to obey a part of the rule that is there already.

Amendment 16, which was passed in the House of Commons, is intended to deal with both matters as the noble Lord, Lord Adonis, has explained them. It seeks to get the Secretary of State to issue guidance, which will have effect as they wish, but the amendment is so drawn that it does not specify that the guidance has to be of a particular kind. It is obvious from the way it was introduced in the Commons that that is what they would like to see, but the amendment does not require the Secretary of State to do anything that is unconstitutional or wrong. That is why, as far as I am concerned, I shall not press the amendment. It is a matter that was decided on a free vote, on the issue of abortion—which is always subject to a free vote in both Houses of Parliament—and therefore I shall not press it to a Division. However, I thought it might be necessary to have further discussion on it. Having regard to the amount of discussion that took place at Second Reading, it may not be necessary to do more than introduce it and see whether anybody wants to speak.

As for the first two amendments, in the name of the noble Lord, Lord Adonis, these are quite unconstitutional. Indeed, the first, on interference in a prosecution, was a constitutional disaster in, I think, the 1920s, and as a result the constitution of the United Kingdom has not had the law officers be part of the Cabinet ever since. Decisions about prosecution are not Cabinet decisions; they are the responsibility of the law officers. In Northern Ireland, in the present situation, the Director of Public Prosecutions is the authority. Nobody has authority under our constitution to tell him what to do in relation to an existing law. The amendment is framed on the basis that this is still an existing law not to be enforced by the department. That is a completely unlawful order. The Secretary of State would be quite wrong to give guidance on that aspect in Amendment 10, and in relation to the judiciary in Amendment 11.

Amendment 16, which I have tabled, is the way that the House of Commons decided to deal with this same matter, which the noble Lord, Lord Adonis, will improve on with his amendments. The Commons agreed the amendment by a majority of about 100. As far as I am concerned, it can stand, because it does not direct the Secretary of State to do anything unlawful. It obviously hopes that the Secretary of State may manage to do something that the Commons had not quite thought of how to do itself. Anyway, that is the way it is. There is no attempt in Clause 4, as it is now as part of the Bill, to direct the Secretary of State to do anything that is necessarily unlawful.

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[Lord Bruce of Bennachie]

My Lords, my noble friend Lord Alderdice has made a fairly constructive suggestion, which has already been replicated in the Republic, with quite dramatic results. But my question relates to the amendment in the name of the noble and learned Lord, Lord Mackay. I accept that the law is where it is and that if it is devolved, it is for the Northern Ireland Assembly, which does not exist, to change the law. However, the Supreme Court has already indicated that it questions whether or not the law in Northern Ireland is compatible with the European Convention on Human Rights, and has indicated that if an individual case was brought, it is likely to rule that it is not. In those circumstances, if a ruling was made that said that the law in Northern Ireland is not consistent with the convention, but there is no Assembly and no devolution, what is the mechanism by which the law can be changed to bring it into line with the European convention?

The issue on gay marriage could also move in that direction. It has not yet but given the acceptance of gay marriage more and more widely across the world, it may well become an issue where human rights law says that the right to gay marriage is a human right. If that became the case, somebody would need to change the law to bring it into line with the convention. In the absence of an Assembly—which would have to do it, whether it liked it or not, but is incapacitated because it does not exist—who would do it?

[Lord Mackay of Clashfern]

My Lords, the answer is that the Human Rights Act makes it absolutely plain that the declaration of incompatibility does not of itself change the law. If the law is to be changed, that has to be done by the appropriate legislature. In this case, because of the devolution, that would be the Assembly in Northern Ireland if it was functioning. Because of the devolution, that is the way it is: it is the Legislative Assembly that has the power to do this. There is no question of the Secretary of State being able to do it by guidance. That is out of the question. The Human Rights Act made that very plain.

There was quite an important discussion on this during the passage of the Human Rights Bill. Some people thought that the courts should be able to overrule existing statutes that were contrary to the human rights convention. But the politicians of that day, including Jack Straw, were very keen on the view that in our constitution Parliament should be supreme and the courts should not be able to overturn Acts of Parliament. That is a matter for Parliament itself. Of course, as I said at Second Reading, the great example of that in our arrangements recently has been the issue of prisoners’ voting rights because it was declared incompatible and yet Parliament decided not to change the law for some considerable number of years.

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Tabled by

[Lord Mackay of Clashfern]

16: Clause 4, page 4, line 4, leave out from “State” to end of line 15 and insert “shall issue guidance to Northern Ireland departments on the exercise of their functions in a manner which is compatible with section 6 of the Human Rights Act 1998”

[Lord Mackay of Clashfern]

My Lords, I said earlier that I would move this amendment, but since it has been grouped with the amendment in the name of the noble Lord, Lord Adonis, I think we have had plenty of opportunity to discuss it, so I will not move it now.

Amendment 16 not moved.