Identity and Language (Northern Ireland) Bill [HL]

Lord Murphy of Torfaen Excerpts

Committee stage
Wednesday 22nd June 2022 Grand Committee

[Baroness Goudie (Lab)]

My Lords, I will be moving the amendments in the name of the noble Baroness, Lady Ritchie, today, as she has Covid—she is very sorry not to be here. I will not speak as well as she would on these issues, but I will speak shortly and to the point, as I know that we are under time pressure.

Clause 1 provides that the office of identity and cultural expression may publish guidance on the duty to have regard to the national and cultural identity principles and other principles relating to national and cultural identity. Amendment 5 in this group provides that “other matters” include the

“effective implementation of international human rights standards relevant to cultural identity and language”.

This is to probe how strong the human rights framework is and whether this is incorporated in the work and language of human rights. I hope that the Minister might look at this and see if we could make the clause much better and warmer, so that more people feel that they could go with it. This amendment also fits in well with New Decade, New Approach.

[Lord Murphy of Torfaen (Lab)]

My Lords, I very much support my noble friend in her amendment, but I will speak to Amendment 5 in my name and that of the noble Baroness, Lady Suttie. It is similar to the amendment tabled by the noble Baroness, Lady Ritchie, and it provides that “other matters” include the

“effective implementation of international human rights standards relevant to cultural identity and language”.

It is a probing amendment, which emphasises the human rights standards that we have come to expect in Northern Ireland over the last 25 years.

In the Bill, Clause 3 on Ulster Scots and Ulster British traditions includes reference to three specific international instruments, including the Council of Europe’s Charter for Regional or Minority Languages and the Convention on the Rights of the Child. This clause requires the commission to provide advice, support and guidance on the effect and implementation of those instruments in relation to relevant language, arts and literature. I am aware that further amendments later on deal with that, but this is the only reference in the Bill to the wider human rights framework, so Amendment 5 would build on that. Do we need to look more closely at how relevant human rights standards will be embedded across the work of all the bodies established under the Bill?

Of course, this issue goes all the way back to the Good Friday agreement of 1998, a copy of which, by pure chance, I happen to have with me today. It says:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights … with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”


It goes on to say:

“These additional rights reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and—taken together with the ECHR—constitute a Bill of Rights for Northern Ireland.”


We have never had a Bill of Rights for Northern Ireland. Over the last 25 years there has not been one. I blame my own Government as much as anybody else for that, as we should have had one. I suppose it is appropriate that the Minister’s colleague, the Deputy Prime Minister, made a Statement a few hours ago in the House of Commons with regard to the European Convention on Human Rights. I wonder whether, in answering us later, the Minister might touch on how important the ECHR is in Northern Ireland and say whether the announcement today will have any implications for Northern Ireland.

I also support Amendment 6 in the name of the noble Baroness, Lady Suttie, which widens the debate out to look at the future of other languages in Northern Ireland, including sign language, and what could be achieved.

I will make a general point. We are in Committee and are unlikely to be voting on the amendments, which are overwhelmingly probing amendments, but it seems to me that they have to be in the context of New Decade, New Approach, and as closely related to that agreement as possible. They might not be able to have every single word of it, but it was an agreement across the board in Northern Ireland among all parties represented in the Executive and the British Government, so I hope that when we table amendments we all have that important principle in mind.

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Moved by

[Lord Murphy of Torfaen]

2: Clause 1, page 2, leave out lines 5 to 11
Member's explanatory statement
This is part of a set of probing amendments. This is to probe the chosen definition of “public authority” in relevant Clauses.

[Lord Murphy of Torfaen (Lab)]

My Lords, I add my thoughts to those of the Minister regarding my noble friend Lady Ritchie, who is seriously disappointed that she could not attend this session. She is on the mend and hopes that she can take part on Report.

Before moving on to Amendment 2, I have two general points on who should be doing this. Of course, I agree that it should not be us. When we put forward these ideas all those years ago in the Good Friday agreement and later in New Decade, New Approach, the idea that this should be done in the Moses Room of the House of Lords was anathema. But it has to be done, as the commitment has been made. I understand the point made by the noble Lord, Lord Empey, that his party had some reservations about New Decade, New Approach, but the agreement was made between the two Governments and is the only one we have before us. It at least forms the basis of this legislation. I also agree with him that, if there are amendments which improve the legislation and are acceptable across the board—that is the essence—I see no reason why we should not accept them.

I turn to the amendment on public bodies. Again, it is probing. Clause 1 of the Bill provides a strange definition of public authorities—those in Schedule 3 to the Public Services Ombudsman Act (Northern Ireland) 2016, with the exception of the office of identity and cultural expression. Added to it are the commissioners themselves, the office I have just mentioned, the implementation body to which Part VI of the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999 applies, and any body referred to in note 2 of the schedule.

I do not disagree with any of those bodies being named or relevant, but the purpose of the amendment is to see whether the legislation should go more widely than that—such as in Wales, for example, where United Kingdom government departments, as well as those of the Government of Wales, are subject to the Welsh Language Act within Wales. For example, if the NIO is a body operating in Northern Ireland specifically about Northern Ireland, should it be subject to the same regulations as a body defined in the legislation? The Northern Ireland Human Rights Commission has some doubts about that, because it is not named either as a public body under the definition of “public authority” in the legislation.

This is a probing amendment, and it would be helpful to hear from the Minister what was taken into account when deciding on the definition and what has been done to take note of possible gaps in it. I note the power of the First Minister and Deputy First Minister to add or remove authorities from the list. Does the Minister believe that that power would have to be used often and, indeed, whether it should be there at all?

The other amendments in this group go into further detail on the meaning of “public authority” and the expectations and duty that such bodies will be under to engage with the framework and bodies established under the Bill. It will be interesting to hear the Minister’s reply: should other public bodies be added to the list? I beg to move.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

The noble Baroness, Lady Harris of Richmond, is taking part remotely. I invite the noble Baroness to speak.

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[Lord Caine (Con)]

I can: there has been a review of the number of days on which the union flag is flown officially throughout Great Britain. There has been a reduction in the number of such days, and that will be reflected in Northern Ireland legislation which I will bring before your Lordships’ House fairly soon. All that is doing is ensuring that Northern Ireland is in step with the rest of the United Kingdom.

In conclusion, the provisions of the Bill do not have the effect that has been suggested in the noble Baroness’s speech, and for that reason I cannot accept the amendment.

[Lord Murphy of Torfaen (Lab)]

My Lords, I have just a few brief points to make. At the moment, 1998 appears to be a favourite date. I reflect on the fact that the Northern Ireland Act 1998 was the last Act that I took through Committee from the Front Bench, 25 years ago—it did reflect the agreement, of course.

I was interested in the point made by the noble Lord, Lord Empey, on how much about the Irish language was mentioned in the Good Friday agreement; it was not reflected in the 1998 Act, of course. What we did say—I was responsible for these issues 25 years ago—was that the British Government would take “resolute action” to promote the Irish language; they had in a previous paragraph referred to Ulster Scots but also, interestingly, to the languages of other ethnic minorities, by which I suppose they mean the languages of Chinese minorities, for example. The only statutory duty was placed

“on the Department of Education to encourage and facilitate Irish medium education in line with current provision for integrated education”.

The noble Lord, Lord Empey, is therefore right that this was not legislated for by way of an Irish language Act but, of course, things changed later with the St Andrews agreement, where further details emerged about what should or should not happen to the Irish language Act. The difference between that agreement and this agreement is what we are dealing with today, I suppose. I absolutely agree with the noble Lord about the need for equality of treatment for both traditions and languages. We should not deviate from that principle at all.

I am still a bit puzzled about why the Northern Ireland Human Rights Commission is not covered by this legislation—or, for that matter, the Northern Ireland Office. The Minister will of course know that the Welsh Language Act 1993 is applicable to the Wales Office, the equivalent territorial department, even though the Wales Office is a United Kingdom Government department with a small office in Wales and an office in Whitehall.

We have had some interesting debate on this issue. Nevertheless, I beg leave to withdraw the amendment in my name.

Amendment 2 withdrawn.

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[Lord Empey (UUP)]

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

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

[Lord Murphy of Torfaen (Lab)]

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

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

[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.

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Moved by

[Lord Murphy of Torfaen]

40: Clause 6, page 11, line 36, at end insert—
“(aa) arrange for a statement to be made to each House of Parliament, and”Member’s explanatory statement
This probing amendment would require the Secretary of State to make a statement to Parliament when they use the powers of direction under this Clause.

[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.

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[Lord Caine (Con)]

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

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

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

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

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

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

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

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

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

[Lord Murphy of Torfaen (Lab)]

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

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

[Lord Empey (UUP)]

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

[Lord Murphy of Torfaen (Lab)]

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

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

[Lord Caine (Con)]

I am following the noble Lord very closely. He is absolutely right to say that these are uncomfortable powers. He will be aware, since he has been around in politics a long time, that one does not always necessarily have to be comfortable with something to deem it necessary. He referred earlier to his act on the aeroplane of signing the suspension order of the Northern Ireland Assembly in 2000. I recall that suspension was deemed necessary to preserve the institutions.

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[Lord Murphy of Torfaen (Lab)]

Of course. No one said that any of this is easy; far from it. When he wound up, the Minister was very kind to say that he would look at all the different ideas that have emerged from the discussions and debates here today and come back on Report with something that might satisfy all Members, which will be very difficult in these circumstances. I am sure he understands the feeling behind what is being said: we want this to work, not just because it sets up the Assembly and the Government but because it is right in itself for the Irish language and the Ulster Scots tradition. However, at the same time, we have to ensure that progress is made. I beg leave to withdraw my amendment and hope that the Minister will come back with a slighter better one on Report.