Identity and Language (Northern Ireland) Bill [HL]

Lord Morrow Excerpts

2nd reading
Tuesday 7th June 2022 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I wish to make some comments in the gap. At the outset, I would just like to come alongside what the noble Lord, Lord Caine, has said in relation to the McAreavey and Harte family. I visited the Harte family at the time of that great tragedy, along with three of my colleagues Peter Robinson, Arlene Foster and Nelson McCausland. We wanted to assure them of our support. The Harte family come from the same village where I lived the first 16 years of my life, Ballygawley. I also want to assure the Minister that he was not alone in singing the national anthem many times over recent times. I too had a hoarse throat and I am putting it down to my rendering of the national anthem on many occasions.

I have many questions for the Government about the Bill before us today, but in the limited time available I will be able to touch only on one or two of them. New Section 78H(1)(d) refers to the following principal aim:

“to support, and promote the celebration of, the cultural and linguistic heritage of all people living in Northern Ireland.”

However, there is not one reference in the entire Bill to any languages other than Irish Gaelic and Ulster Scots, apart from a passing reference to English. Is this credible? Does the remit of the Ulster Scots commissioner refer only to Ulster Scots, or does it include Hiberno-English as spoken in Northern Ireland?

The provision of two commissioners—one to have regard to the interests of the unionist community as they relate to Ulster Scots, the other having regard to the interests of the nationalist community as they relate to Irish—seems like a balanced expression of commitment to parity of esteem. But it seems to me that they have been designed very differently such that they will be destined to have very inequitable impact. The Irish commissioner has a clear function in terms of facilitating the use of Irish in public service provision, while the role of the Ulster Scots commissioner is far more opaque both in terms of what the commissioner will do and who will be engaged by them. Whereas all public authorities which provide public services can obviously be engaged in terms of the languages in which they provide their services, it is completely unclear that the development of the Ulster Scots language art and literature will engage anything more than a tiny number of public authorities.

In this context, while the Irish language commissioner looks to have a very big impact on Northern Ireland, the Ulster Scots commissioner looks destined to have a much more limited impact. The latter does not even have any monitoring or enforcement powers—how does this demonstrate parity of esteem? In addition, the drafting of the Bill seems to suggest a blatant inequality: the Ulster Scots commissioner for the unionist community is given a role that engages various international legal conventions because Ulster Scots is a minority language, whereas the nationalist community is afforded a commissioner whose language is apparently not deemed a minority language. Put another way, the Bill lays the foundation for normalising the sense in which the concerns of unionists should be legitimately regarded as a minority interest, whereas the concerns of nationalists should not be. As such, this feels like a Bill drafted not by the UK Government but, indeed, by the Irish Republic Government, set on breaking up the United Kingdom and placing Northern Ireland in a nationalist state. I think this is an attempt to assimilate Northern Ireland with the Irish Republic. We are always told that the status of Northern Ireland will not change without the consent of the people—in other words, without a referendum—and the Bill goes far past that.

The protocol has been mentioned and I will finish on this matter. The protocol has driven a horse and coach through the Belfast agreement. Sadly, however, I do not hear from the opposite Benches the cry to deal with this issue. I plead with your Lordships’ House today that the protocol must be dealt with; it is stymying devolution and its return.

Identity and Language (Northern Ireland) Bill [HL]

Lord Morrow Excerpts

Committee stage
Wednesday 22nd June 2022 Grand Committee

[Lord Morrow (DUP)]

My Lords, the NDNA deal has been mentioned, as it often is. NDNA was not a single issue. There were many issues in that package. It is with some regret that we find that certain things are being plucked out and described as being agreed. It was all agreed in the context that nothing was agreed until everything was agreed and enacted as one package.

Having said that, to set the context, Amendment 1 would replace the current requirement for a person expressing identity and culture to have regard to the sensitivities of others with an obligation to respect their rights. Of course, we are not averse to this. There needs to be an examination of the merits of any limitation on cultural expression based on the sensitivities of others and vis-à-vis the rights of others.

The Northern Ireland Human Rights Commission has said that

“consideration should be given to whether restricting the cultural expression and identity of one individual to accommodate the ‘sensitivities’ of another individual is a disproportionate interference with one or other’s right to freedom of expression”.

It is possible that Section 6 of the Human Rights Act and references to convention rights may provide more certainty in this regard. The term “sensitivities” could be construed in various ways. We need to eliminate the risk of the national and cultural identity principles being weaponised in order to interfere with the legitimate expression of, or suppress, unionist culture. What would taking account of sensitivities actually mean in real terms and in practice? Would this cover mere offences or basic intolerance of others? Surely there is a need to ensure that “sensitivities” captures only grievances based on substantive and recognised rights.

We are certainly not suggesting that the HRA or existing interpretation of convention rights are a panacea or a safeguard for our culture. One has to look only at the outworking of the parading issue in Northern Ireland, where the system is often seen to reward violence and restrict public expression and assembly. That, unfortunately, has been the norm for quite a while and gives us great concern.

While I am on my feet, I will speak briefly to Amendment 5, which would enable the office of identity and cultural expression to issue guidance on the implementation of relevant human rights standards. We are against this. In our view this amendment wrongly conflates the proposed operation of the office of identity with the separate and distinct roles of statutory bodies such as the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland.

First and foremost, the role of the OICE should be to promote the different cultural and national identities in Northern Ireland. This amendment would open up the risk of the OICE assuming the role of enforcer rather than facilitator of culture and identity. Clause 3 already places the Ulster Scots and Ulster British commissioner under an obligation to

“publish such advice, support and guidance … to public authorities in relation to … the effect and implementation of the international instruments”.

There would be the risk of duplication or conflict, not just between the regional statutory bodies but between the cultural bodies established under the Bill. This does not seem to be the best path forward.

Amendment 6 in this group is a probing amendment. It would

“require the Office of Identity and Cultural Expression to develop a comprehensive language strategy to include other languages used in Northern Ireland.”

We are against this because we do not believe that this is the right vehicle to take forward progress on producing strategies for spoken and sign languages in Northern Ireland. Section 28D of the Northern Ireland Act 1998 and the NDNA commitments pertaining to the programme for government envisage this function remaining in the gift of devolved Ministers.

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[Baroness Suttie (LD)]

My Lords, I add my best wishes to the noble Baroness, Lady Ritchie, and wish her well. This morning, she sent me an email saying that she is feeling a little better, but we are certainly missing her contributions to this afternoon’s debate.

I have added my name to Amendments 2, 20 and 37, which, as the noble Lord, Lord Murphy, said, are probing amendments to understand a little better from the Minister why this particular definition of “public authority” was chosen in the Bill. I want to add to the questions already asked by the noble Lord, Lord Murphy. Can the Minister expand on paragraph 23 of the Explanatory Notes and say what kind of circumstances he can imagine where public authorities would be added or removed as a result of this legislation? I should note that the Northern Ireland Human Rights Commission has suggested that Section 6 of the Human Rights Act would provide a better, wider definition of “public bodies”. Does the Minister agree, and can he explain why that definition was not used in this Bill?

[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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Moved by

[Lord Morrow]

7: Clause 1, page 3, line 22, leave out from first “the” to end of line 24 and insert “Ulster Scots and Ulster British Traditions);”
Member's explanatory statement
This amendment would revise the title of the Commissioner for the Ulster Scots and Ulster British traditions within the Bill. It would remove references to the purpose of the Ulster Scots and Ulster British Commissioner from its title in parity with the position adopted toward the Irish Language Commissioner.

[Lord Morrow (DUP)]

Not moved. Oh, sorry—I was not listening intently. I beg your pardon. I will move my amendment; noble Lords might regret this.

In moving Amendment 7, I will also speak to Amendment 22 in my name and that of my colleagues. One of the most egregious manifestations of careless discrimination in this Bill finds expression in the proposal to afford the Irish language commissioner a sensible title while affording the Ulster Scots/Ulster British traditions commissioner an absurdly wordy title that invites mockery rather than respect—

“the Commissioner for the enhancement and development of the language, arts and literature associated with the Ulster Scots and Ulster British tradition”—

compared with “the Irish Language Commissioner”.

In the first instance, it is unwieldy. Rather than using it, people will call the commissioner something else. In the second instance, when set against the crisp title of “Irish Language Commissioner”, it will become just a joke. In the third instance, the length has the effect of narrowing and truncating the function of the commissioner in a way that makes no sense. The Government have recognised that Ulster Scots is a national minority in the framework convention for national minorities and is subject to its obligations and those associated with the European Charter for Regional or Minority Languages. In a context where we are supposed to be concerned about upholding parity of esteem, affording one community a commissioner with a serious, credible title and the other community one with a ridiculous, truncated title is as transparently discriminatory as it is absurd.

Unionists will not be disrespected in this way and will settle for nothing less than an equally credible title to that afforded the Irish language commissioner. We suggest the “Ulster Scots and Ulster British traditions commissioner”. Of course, the term “Ulster Scots and Ulster British tradition” is already used in the Bill so linking it to the commissioner makes sense. There is, however, the need for a further, very modest amendment, which amounts simply to the adding of an S. The phrase “Ulster Scots and Ulster British tradition” is problematic because it suggests that Ulster Scots and Ulster British are a single tradition. That is erroneous and needs to be changed.

Ulster Scots is one of the three traditional strands of cultural identity present in Ulster and, in turn, Northern Ireland since the early 1600s. The earliest written use of the term “Ulster Scot” in relation to the community dates to 1640. The historically minded will immediately notice that the Ulster Scots community as a distinct group actually pre-dates the United Kingdom, which did not come into existence until 1707. The Ulster Scots community has a rich heritage and culture and its own language, a local variant of the Scots language.

The two historic minority cultures in Northern Ireland are Irish and Ulster Scots. There are, however, people from the indigenous community in Northern Ireland who do not identify as either Irish or Ulster Scots. They are from the broad unionist community and refer to themselves as “Ulster British”. This terminology is much more recent but it is nevertheless strongly held by those who identify with it, including the Orange Order, which is one of Northern Ireland’s largest community organisations. It is worth noting that there is no animosity between those who identify as Ulster British and those who identify as Ulster Scots. Much Ulster Scots cultural activity happens in Orange halls and many individual Orange Order members are Ulster Scots. It is simply that not everyone in the community has Scottish roots or identifies as an Ulster Scot.

It is important to ensure that there is a cultural space for those who identify as Ulster British and that they are not excluded from protection or support simply because they do not identify as Ulster Scots. In seeking to curate this space, however, we must not inadvertently muddy the waters in relation to Ulster Scots, and that is what the Bill is in danger of doing, in suggesting that it can be collapsed into Ulster British and vice versa.

Ulster Scots was well known in Northern Ireland up until the 1960s. But during the Troubles all the cultural emphasis moved to ideas of national identity—Irish and British—and Ulster Scots was squeezed into the background. Generations of Ulster Scots grew up without the opportunity to learn about their cultural identity. In 1998, Ulster Scots re-emerged, with the Belfast agreement, but has been under regular assault from politically motivated individuals, who have sought to deny its very existence, even though they are contradicted by a mountain of evidence. They have regularly attacked and ridiculed the community, its culture and its language. The very name of the Ulster Scots community cannot be found in Northern Ireland’s museums—even museums that were set up specifically to tell its story.

Given this backdrop, it is essential that nothing is done here which tends to detract from the status of Ulster Scots as a strong and distinct cultural identity. Ensuring that the name of the commissioner refers to the Ulster Scots and Ulster British traditions—plural—is a small change but would be significant in ensuring proper recognition and respect for diverse groups within our society.

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[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.

[Lord Morrow (DUP)]

My Lords, I listened carefully to what the Minister said. Perhaps I am overconfident but I detect a glimmer of hope here. Keeping that in mind, I beg leave to withdraw my amendment.

Amendment 7 withdrawn.

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[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.

[Lord Morrow (DUP)]

My Lords, Amendment 10 is in my name. I have good news for noble Lords: this will be my briefest contribution because there is no way that I can gainsay anything that has already been said. I will not move my amendment because I give way to the learned, able, capable noble Lord, Lord Lexden, and all those who have spoken on this issue. That is all I have to contribute on that issue.

[Lord Caine (Con)]

My Lords, it is a great pleasure to respond to the speeches that have been made on this group of amendments. I thank, in particular, my noble friend, Lord Lexden and the noble Lords for the DUP for tabling the amendment. It is hard for me to add a great deal to what my noble friend Lord Lexden said about Castlereagh. A few weeks ago I had the great privilege of spending two or three hours at Castlereagh’s childhood and family home, Mount Stewart in County Down. For noble Lords who have not been, the restoration carried a few years ago by the National Trust is outstanding. It is impossible to leave Mount Stewart without being very conscious of the towering contribution that Castlereagh made to Irish, British and European history and politics. I concur with everything that my noble friend Lord Lexden said about Castlereagh, Pitt and the union. I think I am right in saying—he will correct me if I am wrong—that the Catholic hierarchy at the time welcomed the Act of Union on the understanding that Catholic emancipation would be delivered, and I agree that it is one of the great tragedies of history that what was the right measure in 1800 was not accompanied by those measures which were blocked by King George III. I also concur with every word that has been said about Professor John Bew’s outstanding biography of Castlereagh, which I read a number of years ago. It managed to fill quite lot of time on flights between London and Belfast at the time of the Stormont House agreement.

My noble friend also referred to Field Marshal Sir Henry Wilson, who was murdered by republicans on this day 100 years ago. I had the great privilege this morning of attending a ceremony in the Chamber of the House of Commons where the Speaker, Sir Lindsay Hoyle, unveiled a plaque to the former Member of Parliament for North Down.

On the amendment, I can assure noble Lords that the Government are committed through New Decade, New Approach to fund the establishment of the Castlereagh foundation. It is envisaged that the foundation will explore matters of identity, which my noble friend Lord Empey raised, and the shifting patterns of social identity in Northern Ireland. It appears to me that the amendments that have been tabled are important and can assist the Government in meeting the commitments in New Decade, New Approach. If noble Lords will allow, I would like to take away the amendments, look at them more closely, discuss their contents with noble Lords and return to this subject on Report.

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Moved by

[Lord Morrow]

33: Clause 3, page 9, line 30, leave out “facilitation”

[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 Caine (Con)]

Once again, I am most grateful to the noble Lord, Lord Morrow, for the way in which he moved his amendment. To comment briefly on the words of my noble friend Lord Empey, I think it was Duff Cooper whose memoirs were entitled Old Men Forget. I am sorry to disappoint my noble friend but even I have forgotten some of the details of the New Decade, New Approach negotiations that took place over those torturous three years between 2017 and 2020.

I am grateful to the noble Lord, Lord Morrow, for tabling these amendments, which relate to extending the grounds upon which an individual can make a complaint to the process for the Ulster Scots commissioner. I have a number of concerns regarding the amendments; I will set them out briefly.

My first concern is that it would not be appropriate to amend one of the commissioner’s complaints procedures but not the other. The amendments in the name of the noble Lord would undermine the position reached in New Decade, New Approach that the commissioner should be able to investigate relevant complaints about a public authority’s lack of due regard to advice provided in respect of facilitating the use of Ulster Scots. That is why the Bill specifically refers to “published facilitation guidance”.

I highlight to noble Lords that, in preparing this legislation, the Government have provided the essential clarity on the complaints process for the commissioner so that it provides similar clarity and certainty to the complaints process provided for the Irish language commissioner. The role of the Ulster Scots/Ulster British commissioner and their work to provide advice and guidance will cover the same public authorities as the office of identity and cultural expression and the Irish language commissioner. The public will be able to make complaints to each commissioner in the same way.

On the parity of esteem point made by my noble friend Lord Empey and the noble Lord, Lord McCrea, as I said on an earlier group of amendments, the commissioners have been designed to meet the different needs of different parts of the community. They are different in function, and therefore there are certain disparities in their powers. Again, that was the position reached in New Decade, New Approach; the Government are faithfully trying to follow it.

I suspect that I have not reassured the noble Lord on this issue. He may wish to return to it but, for now, I would be grateful if he would withdraw his amendment.

[Lord Morrow (DUP)]

My Lords, having listened carefully to the Minister—again, he has enticed me enough for me to withdraw my amendment at this time—I just want to say this to him: I am not going away. We will be watching carefully. I think that he has taken on board what we have said; I appreciate that. I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

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[Lord Murphy of Torfaen (Lab)]

My Lords, we now come to quite a difficult part of the Bill, in my view. The Minister referred to the fact that he could not quite remember all the detail in New Decade, New Approach. Of course, there have been so many agreements that even my memory is starting to fade now, and I am much older than the Minister. My other impression is that, if you are an old man or woman in Northern Ireland, you are likely to remember far more than if you were from Wales, for all sorts of different reasons.

Memories go back a long way. One of my memories, which I do not like, is of being on a plane between Belfast and London and having to sign a document that suspended the Assembly. I thought that that was one of the most unpleasant things I would ever have to do, because the whole purpose of the Good Friday agreement and the subsequent agreements was to ensure that Northern Ireland had its own Government, Parliament and apparatus of government. To see that go caused huge distress—I use that word specifically—to all of us who had been involved in trying to bring about change in Northern Ireland. When the Secretary of State and this Parliament, this House of Lords and the House of Commons, are given powers to intervene, whether it is in this Bill or on the abortion regulations yesterday—whatever it may be—it is awful that it has to happen, because it goes completely against everything that we thought, and I hoped, devolution would bring to Northern Ireland.

Again, these are probing amendments. Obviously, we will not put them to votes, but we need to know in what capacity the Secretary of State would intervene. I understand that the First Minister and Deputy First Minister must make agreements on various issues affected by this legislation. I also understand that there could be considerable differences in view between them. However, there comes a time when there is no mechanism by which this legislation could go forward if either the First Minister or the Deputy First Minister effectively vetoed the other. The legislation would not go forward. I hope that it will not happen, and that the Minister can indicate in his reply that he believes that it will not happen. When the Secretary of State has to step in, could that be constrained a bit more by way of scrutiny? All the legislation says is that the Secretary of State must lay before Parliament the direction that he or she makes. I do not know whether that is sufficient. The Secretary of State should be made to make a statement, preferably an Oral Statement, to both Houses about why he or she has decided to step in and intervene. The balance would then be struck a little more.

My noble friend Lady Ritchie has tabled amendments that go into a bit more detail about that and put down a timescale. They intend that the First Minister and Deputy First Minister should appoint a commissioner within 30 days, say, and if that does not happen the Secretary of State should be given another 30 days so that it is done in a day. This is all meant to bring out the Minister’s views on what should happen if the Secretary of State intervenes.

I should also point out the excellent report by the Constitution Committee of your Lordships’ House. The very last paragraph is important. It states:

“The powers could be exercised by the Secretary of State even if there were a functioning Executive and Assembly. The Government states in the Explanatory Notes to the Bill that the powers may be used when the Secretary of State deems it ‘necessary’ to do so, but this is not reflected in the Bill. Clause 6(3) should be amended so that the power of direction in clause 6(2)(b) may be used only when the Secretary of State considers it necessary, rather than appropriate.”


There is a big difference between the two words. What is also interesting about this report is that it expresses exactly the same view that I have just expressed to the Committee about the difficulties—and sorrow, in many ways—of the Secretary of State having to come in and intervene. In a way, it underlies this Committee—indeed, all the stages of this Bill. This Bill simply should not be a matter for this House or the House of Commons; it should be a matter for the Northern Ireland Assembly. That is why we set it up 25 years ago.

I am interested in what the Minister has to say on this. I do not oppose the Secretary of State having such powers but there should be more scrutiny of and restrictions on how he or she would exercise them. I beg to move.

[Lord Morrow (DUP)]

My Lords, this amendment would require the Secretary of State to make a Statement to the Commons and the Lords when he or she exercised the override powers established in Clause 6. This would be in addition to an existing obligation to lay a copy in both Houses of any direction given to a Minister or department in Northern Ireland.

I have to say, the amendment is a bit of window dressing. It misses the point completely. Granting the Government powers to take decisions unilaterally in the absence of cross-community agreement rides roughshod over the Belfast agreement as well as the delicate safeguards contained in New Decade, New Approach. It is not enough to suggest that an extra half hour on the Order Paper of this House would make up for the gulf in democratic accountability established by it. For that reason, I and my colleagues are opposed to it.

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I can be very brief. I have listened intently to what the Minister has said, and to what the noble Lords, Lord Murphy and Lord Empey, and others have said. It strikes me that the Minister has said that the Government are doing this to implement NDNA, but if the truth be told, NDNA is not being implemented. Rather, it is being cherry-picked: “We’ll do that, but we won’t do that.” It is getting a bit monotonous, and suspicion is rife across Northern Ireland as to what exactly is going on here.

[Lord Caine (Con)]

I apologise for having to take issue with the noble Lord right at the conclusion of the debate, but I challenge the assertion that New Decade, New Approach is being cherry-picked. The legislation I took through this House at the end of last year and the beginning of this one focused primarily on the robustness and resilience of the institutions. The noble Lord will remember that in all the discussions on New Decade, New Approach, they were key demands of the Democratic Unionist Party. I was involved in those talks quite intimately; they were key demands of the DUP, and they have been delivered to the best of our ability.

There is a whole host of other commitments in New Decade, New Approach about the veterans’ commissioner, support for the Northern Ireland centenary, et cetera—I could go on. I tabled a Written Ministerial Statement a few weeks ago, setting out in great detail all that had been delivered on New Decade, New Approach, to the extent that members of the Opposition were quite surprised at just how much had been delivered by this Government. The idea that we are cherry-picking or favouring one side over the other is, frankly, not correct.

[Lord Morrow (DUP)]

I am speaking now about Clause 7, which the Minister is very familiar with. Furthermore, as was mentioned earlier, we were told that the Irish language Act was not a part of the Belfast agreement. I accept that; it was not. It was not a part of the St Andrews agreement. Was a private arrangement made? Somehow, mysteriously, this all started to evolve. Those were issues for the Northern Ireland Assembly and the Northern Ireland Executive. They should be allowed to get on with that. Was the protocol included in any of this? Was the Executive consulted in relation to that? I can clearly state that the answer is no—although I am not a member of the Executive, I have enough party colleagues who are in it.

Finally, in the 1998 Act, there are very narrow grounds, to put it mildly, on which Westminster can actually intervene. One of those grounds is national security, as I referred to yesterday. So this is being expanded all the time—“Oh, we’ll do this, and we’ll do that”—and it leaves one side or the other totally demoralised. I suspect that the architects of the Belfast agreement, some of whom are here, and those who signed up to it are bitterly disappointed at the way the whole thing has been treated and pulled. At times, they must wonder whether it will survive. It is kicked into touch when it has to be, and then parts of it are implemented and parts of it are not. We have to get to the stage where trust is built between the communities in Northern Ireland and the Government in London.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, I hope the procedural gods will forgive me for allowing that, but I think it was very important to get those things on to the record, and I stand by my decision.

Identity and Language (Northern Ireland) Bill [HL]

Lord Morrow Excerpts

Report stage
Wednesday 6th July 2022 Lords Chamber

Noble Lords may wonder why the Government have not simply changed the references in the Bill to “the Ulster Scots and Ulster British traditions”, plural, as was suggested by some in Committee. We have taken this approach to reflect the fact that the Ulster Scots are a distinct people and now a recognised national minority. To pluralise “tradition” would be to disregard this new status, which delivers on paragraph 24 of Annexe A to New Decade, New Approach. It would overlook the work of the relevant commissioner advising on the Framework Convention for the Protection of National Minorities, as set out in paragraph 5.16.2 of Annexe E. I should add that in looking into this issue, my officials consulted both the Ulster-Scots Agency and the Northern Ireland Human Rights Commission, which share our understanding. Indeed, the Ulster-Scots Agency confirmed that it would be content with the approach set out in these amendments. I beg to move.

[Lord Morrow (DUP)]

My Lords, the Minister has proved that he has been listening. I know the Bill in its entirety is a wee bit like the curate’s egg—good in parts—but on behalf of my party, I welcome what he has committed himself to here today.

Amendment 2 agreed.

Moved by

[Lord Morrow]

2A: Clause 1, page 3, line 33, at end insert—
“(5) The First Minister and deputy First Minister acting jointly must annually assess and report on the costs arising from the operation of the Office in line with the duties prescribed in section (Assessment of expenditure) of the Identity and Language (Northern Ireland) Act 2022.”

[Lord Morrow (DUP)]

My Lords, I am pleased to speak to Amendments 2A, 4, 16, 35A and 37, and I point out at the commencement that the noble Lord, Lord Empey, is a signatory to them but regrettably is unable to be with us today due to domestic circumstances. We wish him well and I thank him for attaching his name to them. My noble friend Lord Browne, to my left, will speak on some of these amendments in place of the noble Lord, Lord Empey.

I want to be very clear from the outset that the view of the DUP is that the two commissioners are different and their functions do not need to be made identical; indeed, we do not believe that making them identical would be appropriate. However, it is vital, not least in order to respect the principle of parity of esteem, that both commissioners be respected by all parts of government and society as equally important. One key way in which this respect needs to be manifest is in ensuring that the amounts of public money devoted to both are comparable. In making this point, I observe that the Explanatory Notes suggest that the funding for both commissioners will be similar, but it is my contention that this assertion is made on a problematic basis. The costing is assessed narrowly, in terms of the direct costs of running the offices of two commissioners, but that is surely just a fraction of the impact—certainly of the Irish language commissioner—on the public purse.

One can only have any hope of assessing the impact of the provision of the commissioners if, in addition to assessing the relevantly limited cost of running their offices, one has regard also for the budgetary impact they will have in placing additional demands on public authorities. It is in relation to their impact on public authorities that the real cost of the commissioners will be felt, and it is important, especially in the context of the current cost of living crisis, that we are open and honest about this fact.

The relevant public authorities are defined by the Public Services Ombudsman Act (Northern Ireland) 2016, which lists well over 70 public authorities in Northern Ireland. If we consider the principal aim of the Irish language commissioner, described in new Section 78K(1) as,

“enhance … the use of the Irish language”,

it is possible that every single public authority in that long list will be in receipt of significant new obligations and costs, relating to the provision of the services of the public authority in question in Irish. They will, however, also benefit from a duty to have regard to obligation being placed on public authorities in relation to them and the complaints procedure with respect to the entirety of their obligations as defined by the Irish language commissioner.

By contrast, the role of the Ulster Scots commissioner is also defined in terms of the same list of public authorities, the principal aim of the commissioner, to

“enhance … the language, arts and literature”,

of Ulster Scots, rather than enhancing the use of the language, as described in new Section 78Q(1), is such that while it is clear that some public authorities concerned with culture and the arts will be engaged, it is also likely that the demands placed on the long list of others, including, for example, the Northern Ireland Fishery Harbour Authority, the Health and Safety Executive, the Agri-Food and Biosciences Institute, et cetera, will be very limited indeed.

Put another way, while every public authority is equally and extensively open to engagement by the Irish language commissioner, because all public authority services must be provided in the context of the use of language, it seems to me that every public authority is not as equally and as extensively engaged by the Ulster Scots/Ulster-British commissioner.

At this point, I should perhaps anticipate the response that the Bill makes reference to the role of the Ulster Scots/Ulster-British commissioner in terms of,

“facilitating the use of Ulster Scots in the provision of services to the public or a section of the public in Northern Ireland”.

However, while the principal role of the Irish language commissioner, as described in new Section 78K(1), is focused on enhancing the use of the language in public service provision, the parallel principal role of the Ulster Scots commissioner is defined in terms of enhancing the language, literature and arts of Ulster Scots. Although facilitating the use of Ulster Scots by public authorities in service provision is by no means off limits, the fact that it is not front and centre, as in the case of the Irish language commissioner, is underlined by the fact that reference to it does not occur in the principal role definition when it is mentioned lower down, as in new Section 78R(2)(b) where it is only in brackets.

In response to the debate on costs in Committee, the Minister referred simply to the Explanatory Note, which focuses narrowly on the costs of running the three organisations, not on the cost to the public purse with respect to public authorities. In responding to that debate, the Minister stated also that it was not the business of Westminster to get involved in monitoring the costs of the new bodies. I accept that point, after the bodies are established.

My Amendment 37, however, pertains to the period before the Bill comes into force and so is directed at Westminster and Whitehall. While it is not our job to run offices, it is our job to make this legislation very clear about the costs for which Northern Ireland must prepare. Amendment 37 requires that, before this Act can come into force, the Secretary of State must lay before Parliament a report assessing both the operational costs of setting up and running the three offices, and the costs to public authorities of engaging with the new commissioners and their requirements. Critically, it requires also that this assessment demonstrates how the resulting spending allocation, including that from the public authorities, will give effect to the principle of the parity of esteem between the unionist and nationalist communities.

Amendments 4, 16 and 35A would place a similar obligation on the First and Deputy First Ministers for once the two commissioners are up and running in order to ensure that the spending allocations to each community are broadly comparable. Amendment 2A applies the same obligation in relation to their assessment of the spending of the office of identity and cultural expression.

I hope that the Minister is in a position to give the following assurances that I am looking for in speaking to these amendments today: first, that the role of both commissioners should be accorded equal importance; and, secondly, as a function of this, that the budgetary footprint left by each commissioner in terms of their impact on public authorities should be broadly the same. In responding to the debate today, I ask that the Minister directly addresses these two points. I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, I will very briefly add a word or two. By way of general introduction, I agree with noble Lords who have already said that this is a matter that should be decided and debated in the Northern Ireland Assembly rather than in this place. Of course, had the Government wished that to be the case, they could have left it to the Northern Ireland Assembly. However, it was a decision taken by Her Majesty’s Government to bring it here, and we are therefore debating it today. Nevertheless, we are now examining these matters in detail, and the other place will deal with this in due course.

Since I had spoken on this issue of accountability and financial responsibility in Committee, I wanted to agree with the noble Lord, Lord Morrow, in the amendments that he has set out, and to stress the point that the Minister in Committee said that these were matters for the Northern Ireland Assembly and therefore that it would be inappropriate to have Whitehall, the Northern Ireland Office or this Parliament have reports presented to them on expenditure in relation to these commissioners, bodies and so on. But the amendment to which the noble Lord, Lord Morrow, has referred on the costs to public authorities, which would require that a report be laid before the commencement of the Bill, is right and proper for this Parliament to consider. It is entirely right that the Comptroller and Auditor-General will examine the accounts of the commissioners’ offices, and I urge that that should also look at the parity issue in relation to the fairness of expenditure across the board between the two offices and the office of identity and cultural expression.

However, the impact on public authorities has not been adequately investigated or probed thus far. While the Minister referred to cost, which the noble Lord has alluded to, in the Explanatory Notes, as I understand it, the estimated cost to public authorities of fulfilling the requirements in terms of guidance and so on has never been set out. I would be grateful if the Minister could deal with that point in his response and indicate whether any study or work has been done with those public authorities which will be engaged and affected by this legislation and by the guidance that emerges from the commissioners’ offices. Has any work been done with them about the impact on them in terms of costs, where any budgetary pressures may emerge and how those will be met? This matter deserves a little more scrutiny. We have had representations on it, and I hope that the Minister can address it when he sums up.

--- Later in debate ---

The Government therefore feel that the amendments proposed by noble Lords are not required, although I completely understand and recognise the intent behind them. I urge the noble Lord, Lord Morrow, to withdraw his amendment.

[Lord Morrow (DUP)]

My Lords, I have listened carefully to what the Minister said. As I said earlier, and on another occasion, he demonstrates that he listens to what is being said. I will watch with great care as the Bill proceeds and goes elsewhere, but I will withdraw my amendment.

Amendment 2A withdrawn.

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[Lord Lexden (Con)]

My Lords, I thank my noble friend. His amendment represents a very satisfactory response to the probing amendment that I moved in Committee alongside a similar amendment in the name of unionist noble friends. He reminded the House of the historical background, which we went over quite thoroughly in Committee, so I will not repeat it, following his example. I hope that the new foundation will conduct its work in ways that enrich and enlarge understanding, of the unionist tradition in particular, and help to increase support for unionism in all parts of the community in Northern Ireland. That is something that Viscount Castlereagh himself would have wanted.

[Lord Morrow (DUP)]

In Committee, in deference to the excellent speech on the amendment tabled by the noble Lord, Lord Lexden, I withdrew my amendment. However, I welcome what the Minister has said here today.

[Lord Caine (Con)]

My Lords, I am very grateful for the support of my noble friend Lord Lexden, and that of the noble Lord, Lord Morrow.

--- Later in debate ---

Moved by

[Lord Morrow]

4A: Clause 2, page 6, leave out lines 10 to 23
Member's explanatory statement
The NDNA does not commit to assisting the Irish Language Commissioner or the Ulster Scots Commissioner with the provision of a duty on public authorities to have regard to them. This amendment would mean that neither of the Commissioners benefit from public authorities being subject to having a duty to have regard to them.

[Lord Morrow (DUP)]

My Lords, I am pleased to speak to Amendments 4A and 17, in my name and that of the noble Lord, Lord Empey. I have given some indication as to why he is not in his place today. By way of introduction, I say that I am very grateful to the Ulster-Scots Agency for drawing my attention to the highly significant problem that these amendments seek to address.

In his response to Amendment 17, which I moved in Committee, the Minister pointed out that the two commissioners approach their different remits in different ways, and that we should not try to change that. I completely agree—100%. One commissioner is very focused on language, the other is less concerned with language and much more concerned with public culture, broadly conceived. This reflects the relative priorities of the different communities, as acknowledged by the NDNA process. However, appreciating this point does not provide any reason to oppose our amendments. While it is vital that we make space for the differences of focus, both communities require commissioners with similarly robust powers to pursue their different purposes. If one commissioner is given one role and provided with the requisite authority to discharge that role, while the other commissioner is given another role but not the same level of authority to discharge it, we are left with the image of two commissioners but the reality of only one that is worth while.

In his response to the debate in Committee, the Minister seemed to suggest that the lack of a duty to have regard in relation to the Ulster Scots/Ulster-British commissioner was compensated for by another difference between the two commissioners, namely that the Ulster Scots commissioner would have a broader brief. There are two difficulties with this assertion. In the first instance, the extension beyond language to cover arts and literature does not give the Ulster Scots commissioner a broader brief in public affairs. While the expectation is that the Irish language commissioner would make language demands on all 70-plus public authorities, the Ulster-Scots commissioner would not, and the compensating provision of arts and literature would engage only a small number of them.

In the second instance, no self-respecting community could accept a proposition that something being unenforceable in relation to a large number of issues was compensation for it being enforceable in relation to a smaller group of issues. That, of course, would be absurd.

The other argument deployed by the Minister in defence of the proposal that public authorities should not be required to have a duty to have regard to the Ulster Scots commissioner while they should be so obliged in relation to the Irish language commissioner relates to the wording of the NDNA, which does not explicitly state that a statutory duty should be imposed on public authorities to have regard to what the Ulster Scots commissioner says. Crucially, however, the NDNA does not state that no duty to have regard should be placed on public authorities in relation to the commissioner. Rather, it is silent on that matter.

There is a big difference between advocating something that the NDNA affirms or rejects on the one hand, and advancing something it is silent on, on the other. More importantly, however, an enforcement mechanism along the lines of a duty to have regard to is logically implicit in the NDNA, in that if there was no duty to have regard to what the commissioner says, the provision of the commissioner would be pointless.

Put another way, one can test the silence of the NDNA by imagining whether it would have stood up if it stated there should be a commissioner but that there should be not even a statutory duty for those engaged by it to have regard for what it says, since they would no longer be engaged in any meaningful way. That would make the provision absurd. Furthermore, the act of actually calling on legislators not to pass an amendment to make explicit a duty to have regard makes it explicit that there should be no duty to have regard, and thereby makes the provision of the commissioner explicitly pointless. In agreeing that there should not even be something as minimal as a duty to have regard, Parliament would be telling public authorities they can effectively ignore the commissioner. This is not defensible in my book.

There is a further, and in some ways even more profound, difficulty with the Government’s position. The truth is that in the same way the NDNA is silent on placing the duty to have regard on public authorities in relation to the Ulster Scots commissioner so too is it silent on that point as it relates to the Irish language commissioner, yet the Government have provided the Irish language commissioner with this crucial right, even as they have denied it to the Ulster Scots commissioner. This is indefensible.

The only relevant provision of the NDNA in relation to a duty to have regard is one that assumes a duty rather than a provision that proposes creating such a duty. Paragraph 5.8.4 in Annex E of the NDNA states that the commissioner should

“investigate complaints where a public authority has failed to have regard to those standards.”

On the basis of simple logic, it makes sense that the Bill before us today does place a duty to have regard on public authorities in relation to the Irish language commissioner, because if there are no obligations the provision of the commissioner would be a waste of public money. The difficulty, however, with concluding that this justifies the provision of a duty to have regard to in relation to the Irish language commissioner but not the Ulster Scots commissioner arises from the fact that paragraph 5.16.3 makes an identical commitment in relation to the Ulster Scots commissioner, stating that they should

“investigate complaints where a public authority fails to have due regard to such advice provided by the Commissioner in respect of facilitating the use of Ulster Scots.”

In this context, on the basis of both simple logic and what the NDNA says, we face a simple choice if we are to uphold the parity of esteem and do what is right by Northern Ireland.

The two amendments that I have tabled set before us the options that define that choice. Either we can say that the Ulster Scots commissioner must be endowed with the same authority to command respect as the Irish language commissioner, so that the two communities are equally respected by placing a duty on public authorities to have regard to the Ulster Scots commissioner, as set out in Amendment 17, or we can secure this end by removing that existing duty in relation to public authorities with respect to the Irish language commissioner, as set out in Amendment 4A.

In my view, the answer is obvious: since it would be absurd for this House to state that the public authority should not be subject to at least the lowest level of obligation to have regard to the commissioners we are creating, we have to make one change or the other. We cannot leave the Bill as it is, without actively undermining the principle of the parity of esteem and treating one community with contempt. I beg to move.

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[Lord Morrow (DUP)]

My Lords, I again listened intently to what the Minister said. He remarked that it was said that NDNA was a fair and equitable package. We still stand by that, but we are not convinced that the Bill reflects that; that is what we are looking to be addressed.

I thank everyone who has spoken here. If my hearing is right, in the main those who have spoken agree with what I said. It is just unfortunate that the Minister did not go a step or two further here today, but maybe there will be another opportunity.

It is very clear that there is a discriminatory element in all this and it has to be addressed. It is better that we get it right from day one than wonder, when we are in the middle of it all, “How did we get into this?”. We just have to stop and think for a while, look at it and see where the deficiencies are.

I know the Minister has been sent here today by the Government to say these things, so I do not blame him personally—it is no reflection at all on his duty here at the Dispatch Box—but any objective person who reads this debate will conclude that the arguments for Amendment 17 are overwhelming and that no good reason has been provided today to justify not putting that right. We have heard from the Labour and Lib Dem Front Benches, the noble Lord, Lord Lexden, and my noble friend Lord Dodds. We have heard what everybody has said, yet we seem to just want to go on. Well, we know where going on sometimes takes us—into the wrong place altogether.

What should we do? In this context, while I feel disappointed, I will not divide the House on this issue today, because this will go to another place and I hope it will come back from there different from how it is today.

Amendment 4A withdrawn.

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Moved by

[Lord Morrow]

10: Clause 3, page 8, line 24, leave out “arts and literature” and insert “heritage and culture”
Member’s explanatory statement
This amendment would revise and expand the functions of the Commissioner for the Ulster Scots and Ulster British traditions provided in the Bill. The Commissioner would be responsible for developing the language, culture and heritage associated with these traditions, reflecting the body of established work and existing human rights law.

[Lord Morrow (DUP)]

My Lords, in moving Amendment 10, I am pleased to speak also to Amendments 12, 13, 14, 15 and 30A. Amendment 10 proposes replacing “arts and literature” with “heritage and culture” so that the remit of the Ulster Scots commissioner relates to language, heritage and culture rather than language, arts and literature.

In Committee the Minister stated that it was not possible to accept a similar amendment because it was contrary to NDNA, but I do not accept that. In the first instance, while I accept that NDNA refers to arts and literature, nothing in it states that the role of the Ulster Scots and Ulster-British commissioner should be limited to this. When read in the context of the wider Ulster Scots commissioner commitment in NDNA, seeking to constrain the role of the Ulster Scots commissioner in this way makes no sense at all.

The critical provisions in NDNA in this regard are the Council of Europe’s Charter for Regional or Minority Languages, to which the UK is a signatory, and the Council of Europe’s Framework Convention for the Protection of National Minorities, under which Ulster Scots has now been registered as a minority language, as a result of the NDNA commitment. To quote just one relevant provision of the framework, although there are many, Article 5 states:

“The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.”


Aligning itself with these international instruments and defining the role of the Ulster Scots commissioner in relation to them, NDNA plainly commits itself to an understanding of the Ulster Scots and Ulster-British tradition, the best interests of which are not caught by the narrow, arbitrary and exclusive focus on language, arts and literature.

The failure of the Bill to align the role of the commissioner with the established human rights framework has been highlighted by the Northern Ireland Human Rights Commission. In advice to the Government in 2020, the commission spoke of the need to move beyond language, art and literature, stating:

“The NIHRC recommends that other aspects of Ulster-Scots culture including heritage, religion, history, music, dance are also effectively protected by including them within the Commissioner’s mandate.”


The problem with the language, arts and literature constraint has been highlighted by the expert panel appointed by the current Northern Ireland Communities Minister, Deirdre Hargey MLA, to advise on a new strategy for Ulster Scots language, heritage and culture, which is required by NDNA.

In the second instance, when one appreciates the lack of the Ulster Scots commissioner’s statutory focus on the use of the Ulster Scots language by public authorities, it is plain that the arbitrary and exclusive addition of just arts and literature cannot provide the Ulster Scots/Ulster-British tradition with something as meaningful as the provision made for the Irish-language tradition. While the Irish language commissioner will engage all public authorities, since there is not a public authority that does not make its service available through language, there are few public authorities with a focus on arts and literature.

To provide the Ulster Scots/Ulster-British tradition with a commissioner with as meaningful a role for them as the Irish language commissioner would be for the Irish-language community, one would need to make up for the very limited statutory focus on the use of the Ulster Scots language by public authorities by providing a significantly wider additional focus on arts and literature. This is precisely what is afforded by NDNA in its deliberate alignment with the obligations set out in the Council of Europe Charter for Regional or Minority Languages and the Council of Europe Framework Convention for the Protection of National Minorities.

The departure from NDNA, with a negative effect on the interests of unionism, is also evident in the extraordinary failure of the legislation to recognise the breadth of the focus of the Ulster Scots commissioner, recognised by NDNA in paragraph 5.15, which states:

“The Commissioner’s remit will include the areas of education, research, media, cultural activities and facilities and tourism initiatives.”


There is no comparable commitment to the Irish language commissioner in NDNA. It is randomly left out of the Bill, and it is the purpose of Amendment 12 to put that right. Moreover, the Bill also seeks to limit the remit of the commissioners in relation to the international instrument compared with the NDNA agreement. NDNA commits to

“provide advice and guidance to public authorities, including where relevant on the effect and implementation, so far as affecting Ulster Scots, of commitments under the European Charter for Regional and Minority Languages, the European Framework Convention for the Protection of National Minorities, and the United Nations Convention on the Rights of the Child”.

The Bill before us today, however, inexplicably narrows that to

“provide or publish such advice, support and guidance as the Commissioner considers appropriate to public authorities in relation to … the effect and implementation of the international instruments specified in subsection (3) in relation to the relevant language, arts and literature”.

The plain meaning of “Ulster Scots” when the language is not specified is that it pertains to Ulster Scots culture in the round. Moreover, this interpretation makes much more sense, given the breadth of focus of the international instruments. Mindful of this, the purpose of my Amendment 13 is to restore the clear breadth of meaning, communicated by NDNA, which the current drafting of the Bill seeks to truncate. It is deeply concerning to unionists that those who drafted the Bill have departed from the plain commitments of NDNA repeatedly, in a way that damages the best interests of unionism.

This grouping also includes Amendments 14 and 30A. If one is to engage with the reality of Ulster Scots and honour our international commitments, with which NDNA seeks to align itself, it is vital to understand that Ulster Scots is what it says on the tin: a cultural phenomenon that extends between Ulster and Scotland. It is not possible to engage with the reality of Ulster Scots by putting it in a framework that engages only with Ulster. That would constitute a very basic category error. Moreover, for those of us in the UK who support our union, the opportunity to strengthen the relationship between parts of the union—Scotland and Northern Ireland—should not be set aside, especially in this year, when Nicola Sturgeon has announced another independence referendum and when, in October, we mark the 100th anniversary of the Conservative Party gaining its Ulster Scots Prime Minister, Andrew Bonar Law.

It should not be forgotten that the Ulster Scots community is to be found in not only Scotland and Northern Ireland but other parts of the United Kingdom. Mindful of this, Amendment 14 recognises the reality of the nature of Ulster Scots in the Ulster Scots commissioner, by giving him the role of promoting cultural connections between the Ulster Scots community in Northern Ireland and the Ulster Scots community in the rest of the kingdom. This is an elementary provision without which it is very difficult to honour the basic reality of Ulster Scots.

Amendment 30A furthers this step by requiring the Secretary of State to

“establish and maintain a fund to support the provision of projects and programmes which connect Ulster Scots in Northern Ireland with Ulster Scots in the rest of the United Kingdom”.

Again, this is a vital provision if we are to take the reality of Ulster Scots seriously.

Finally, I come to my probing Amendment 15, tabled in response to comments made by the Minister in Committee when he said,

“By comparison, the commissioner associated with the Ulster Scots/Ulster British tradition will have a far more wide-ranging role than their Irish language counterpart, going beyond language, as we will probably discuss later, into arts and literature. The proposed legal duty on this wider range of activities would go far beyond the matter of services provided to the public, unlike those on the Irish language best practice standards.”—[Official Report, 22/6/22; col. GC 76.]


From this statement, I rather get the impression that the commissioners might have official responsibilities in relation to bodies other than public authorities. Is that what the Minister was saying? To my mind, that seems rather unlikely, and perhaps rather improper, given that the Bill before us seems to engage public authorities only in relation to the commissioner. If other bodies are engaged, surely the nature of that engagement should be set out by the Bill. I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the noble Lord, Lord Morrow, for his exposition and the detail behind these amendments. I have a little query. I understand the point about parity of esteem and think that is the central theme running through those amendments. I note that Amendment 14, in particular, refers to communities rather than language speakers. Perhaps, in his summing up, he could indicate his specific intention. Is it to link speakers of the Ulster variant of Scots to other speakers of Scots in Scotland or other parts of the UK, or is it a means of identification in terms of an ethnic group? How do you define that issue? Maybe in summing up he could provide a little more detail in relation to this. I recognise that there is a difference in the legislation and can understand where he is coming from, but we just have to be a little careful.

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I thank all noble Lords who have spoken on these amendments. I begin by welcoming the positive comments the Minister has made about the importance of recognising the Ulster Scots and the Ulster-British tradition as something that cannot, by definition, be confined to Ulster alone. If I heard him correctly, he seemed to suggest that Amendment 12 was not necessary because the Bill should be read as meaning that the Ulster Scots commissioner already has responsibilities in relation to

“the areas of education, research, media, cultural activities and facilities and tourism initiatives.”

Will he confirm that my interpretation is correct?

[Lord Caine (Con)]

The noble Lord is correct to say that NDNA sets out the functions of the commissioner and then expands to set out the remit, which includes the areas to which he just referred. In our view, the Bill as drafted, in replicating the functions of the commissioner as set out in NDNA, means it is not necessary also to include the remit within the functions—the functions will cover the remit.

[Lord Morrow (DUP]

I am very grateful to the Minister for that.

Turning to his response to Amendment 10, I have to say that I do not believe that his defence of the exclusive focus on language, arts and literature is faithful to the NDNA, given what the international instruments with which it identifies say about the importance of heritage and culture, broadly considered. I urge him to go back and reread the international instruments, and then the NDNA in light of them, to study the important speech given today by my noble friend Lord Browne and to talk to the Ulster Scots Agency. I know that others have asked him to do that, and I hope that he takes that on board. If he does, I think he will be forced to conclude that it is wholly wrong to seek to justify limiting our focus on language, arts and literature.

Finally, I note that the Minister argues that the Bill gives the Ulster Scots commissioner powers in relation to bodies beyond the public authorities mentioned in the Bill. I believe, however, that if that is the Government’s intention, the other bodies should be referenced in some way in the Bill. I urge the Minister to give matters very careful consideration over the summer and I beg leave to withdraw the amendment.

Amendment 10 withdrawn.