Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) (Amendment) Regulations (Northern Ireland) 2017

Lord Patten Excerpts

Wednesday 6th December 2017 Lords Chamber

[Lord McAvoy (Lab)]

My Lords, I am moving this Motion to express the loyal Opposition’s regret that the Government have pushed through an ill-thought-through and detrimental policy without proper consideration of the specific context of law in Northern Ireland or of the women and professionals who will be affected by this policy.

The regulations provide for exemptions to be introduced in Northern Ireland to the Government’s two-child limit on the child element of universal credit—previously child tax credits. These exemptions match those introduced across the UK and include an exemption for “non-consensual conception”—that is, where a woman has conceived a third child as a result of rape. The Government’s policy provides for women who are entitled to access this exemption to make a disclosure to an appropriate third-party professional, including, for example, midwives, social workers and designated third sector professionals.

The Labour Party has put on record its opposition to the two-child limit being introduced across the UK, expressing concern about its consequences. However, there are, as the Secondary Legislation Scrutiny Committee has reported, additional concerns regarding the legal situation in Northern Ireland. Section 5 of the Criminal Law Act (Northern Ireland) 1967 provides a legal duty on an individual who knows or believes a serious crime has been committed to report it to the police. To withhold information regarding a serious crime is in itself an offence. In the case of a disclosure by a woman to an assessor regarding the exemption for rape, this duty under Section 5 will apply to both the victim, who is disclosing a crime, and the professional to whom the disclosure is made.

The Government’s response to those who have raised this issue has so far, regretfully, been unclear and unsatisfactory. The Government have advised that a woman will not be expected to name the person who committed the offence and that professional assessors will not be expected to seek any further evidence following the disclosure. However, the form that must be completed to allow the exemption will explicitly include a warning regarding the Section 5 duty.

In a letter to my honourable friend Owen Smith, the shadow Secretary of State for Northern Ireland, the Minister for Employment explained that details of the Section 5 duty are included on the form to ensure that,

“both the claimant and the third party professional are clear on the legal position before a claimant choses to disclose”.

Can the Minister explain this legal position to the House? Does a Section 5 duty apply to a disclosure made under the non-consensual conception exemption in this order? If a victim discloses a rape but not the name of the perpetrator, does that in legal terms have any impact on whether the duty applies?

It is well known that the Director of Public Prosecutions for Northern Ireland, Barra McGrory QC, has given a clear answer in respect of criminal law in Northern Ireland. In a letter in response to my honourable friend the shadow Secretary of State for Northern Ireland, Mr McGrory wrote that it is,

“a potential offence to withhold information regarding an act of rape. The legislation does not distinguish between a victim and third parties to whom a disclosure is made; each is potentially liable for prosecution”.

I am sure the Minister will refer to the fact, also referred to in the letter from Mr McGrory, that no prosecution has ever been brought against a victim of rape who has delayed making a report. This is an appropriate fact for the DPP to bring to our attention as background to this issue. It is not, however, a satisfactory defence for the Government to use for the situation they have created.

The result of this policy operating in Northern Ireland is that victims risk being criminalised, and professionals are put in a position of choosing purposefully to ignore the law in order to carry out their duties. We have not had a situation before in which victims are required to disclose a rape in order to claim social security. Victims and professionals are being asked to make decisions based on faith that although they are liable to be prosecuted for committing an offence, it is unlikely to happen. This is not a sound legal position for the Government to adopt.

The Director of Public Prosecutions has said explicitly that a guarantee cannot be given that prosecutions will not be brought because a criminal offence does exist. Serious concerns over the impact of this policy on victims and professionals in Northern Ireland have been raised by Women’s Aid, the Royal College of Midwives, the Northern Irish Association of Social Workers and many more organisations.

We regret that the Government failed to include proper and detailed consideration of Northern Ireland and the specific context of Northern Ireland criminal law in their policy design and implementation. We ask that they now act to respond with legal clarity on this issue. If they intend to go ahead with this policy in Northern Ireland, the Government must provide a guarantee that victims and assessors will not be prosecuted.

I must follow this with a further regret before I close. It was agreed in the fresh start agreement that the UK Government would legislate for key welfare reforms. It was also, however, part of the agreement that it was for the Northern Ireland Executive to bring forward payments, as they felt appropriate, to mitigate the effects of welfare provisions on communities in Northern Ireland, as was done for the bedroom tax.

The Government have chosen to implement this policy in Northern Ireland at a time when a sitting Northern Ireland Assembly and power-sharing Executive are not in place. The Minister will be aware that all of the political parties in Northern Ireland have explicitly expressed their opposition to the two-child limit—and the non-consensual conception exemption that is a result of it—and the impact it will have on their constituents. It is deeply regrettable that the Government would seek to implement a policy that is inappropriate for Northern Ireland, at a time when Northern Ireland is not able to scrutinise and mitigate its effects.

Your Lordships’ House is aware that the Opposition believe there are a great many reasons why the Government should do the responsible thing and pause and fix the rollout of universal credit. Serious consideration should be given to pausing the rollout in Northern Ireland until there is basic clarity on the legal impact of these proposals and a functioning devolved Executive is in place to consider the impact of this policy for women and organisations in Northern Ireland.

It is the Opposition’s view that the Government owe the people of Northern Ireland clarity. We still have not heard why this was not taken into account. If it is shoddy government, the responsibility lies with the Government and they should try to do something about it. I beg to move.

[Lord Patten (Con)]

My Lords, it is a tragedy that the voice of the people of Northern Ireland is presently not being heard on this issue. While it is very good of the noble Lord to have raised this issue in this House—and I respect everything that he has said—because of the self-imposed suspension of the Assembly and thus the Executive, it has not been examined by the people who should be examining it. We can have cross-party agreement on that, I hope. The absence of an Assembly at the moment is a big risk for the people of Northern Ireland on everything from this order to Brexit and back. The better and quicker they come back to the Assembly the better.

That said, I am a believer in the parity principle in the application of legislation in the United Kingdom, for Northern Ireland, Wales, Scotland and England. Of course, the parity principle in considering this order is a good starting point. For example, Northern Irish voters pay the same rates of income tax and national insurance contributions as people across the rest of the United Kingdom. This parity principle was maintained by the November 2015 fresh start agreement that was agreed by all political parties.

This instrument exactly mirrors the mainland regulations. The principles are the same. The issue that arises—the noble Lord, Lord McAvoy, has pointed the attention of the House to this—is the interaction with Section 5 of the Criminal Law Act (Northern Ireland) 1967. This is not one of the problems with having devolved legislation; this stuff is bound to happen when you have devolved legislation. Her Majesty’s Government really have no role at all in determining whether the 1967 Act should be used here or there, or is appropriate under this or that circumstance. That is for Northern Irish law as passed.

While I appreciate the noble Lord’s genuine concern, it is important to remind your Lordships that there has been no use of the Section 5 powers for the whole half century since they were first enacted. They have laid dormant on the statute book. Under present circumstances, no official of Her Majesty’s Government could cross-question or have any link at all with any claimant, and nor indeed could any member of the Northern Ireland Civil Service. As a quick aside, I hope all of us can agree that we should be very grateful to the Northern Ireland Civil Service for doing what it can in a thoroughly bipartisan way to keep stuff rolling on under the present difficult circumstances.

Having examined the issue in front of us, although I am not a lawyer, it seems that there is protection for claimants inherently under this provision, including for their confidential data, as the only role of third-party professionals involved is to attest by certification—as I have seen—that a claimant has made a proper declaration consistent with the criteria for claiming the non-consensual exception for their child—or children if a multiple birth has occurred, which is always possible. So I fully support the statement of the Government so far on this issue. I believe in the parity principle and I support the Minister.