25 Feb 2014 : Column 821

House of Lords

Tuesday, 25 February 2014.

2.30 pm

Prayers—read by the Lord Bishop of Wakefield.

Introduction: Lord Richards of Herstmonceux

2.38 pm

General Sir David Julian Richards GCB, CBE, DSO, having been created Baron Richards of Herstmonceux, of Emsworth in the County of Hampshire, was introduced and took the oath, supported by Lord Armstrong of Ilminster and Lord Guthrie of Craigiebank, and signed an undertaking to abide by the Code of Conduct.

Businesses: Town-centre Parking


2.44 pm

Asked by Baroness Williams of Trafford

To ask Her Majesty’s Government what assessment they have made of town-centre parking policies and their impact on local businesses.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con): My Lords, the Government’s assessment is that town-centre parking policies can have a significant impact on local businesses. If parking is too expensive or difficult, shoppers will drive to out-of-town supermarkets or just shop online, undermining the vitality of town centres and leading to “ghost town” high streets. The Government intend to support local shops in town centres by reforming overzealous and unfair rules on parking enforcement.

Baroness Williams of Trafford (Con): I thank my noble friend the Minister for her response. Can she assure me that the Government will clamp down on the use of car parking as a means of revenue-raising for local authorities?

Baroness Stowell of Beeston: I thank it is worth offering your Lordships a little context in responding to my noble friend’s Question. Local authorities’ total income and net profits from parking more than doubled under the previous Administration and councils are still making net profits. We also know that there is public concern. The Transport Select Committee said in a report published last year:

“There is a deep-rooted … perception that local authorities view parking enforcement as a cash cow”.

All independent reports show that parking is affecting high streets and local businesses. Therefore, I am very pleased to be able to confirm to my noble friend today that the Government have just completed a consultation

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on new measures to tackle this problem, and are considering those responses before announcing what action they are going to take.

Lord McKenzie of Luton (Lab): My Lords, with the Government’s renewed interest in tackling parking charges and easing the burden on local businesses, can the Minister explain why the three London councils with the highest parking charges and fines per person are Conservative? In fact, in London, Conservative boroughs took double the amount in parking fines and charges per residence compared with Labour boroughs.

Baroness Stowell of Beeston: As the noble Lord heard me say, this is a problem that we think started under measures introduced by the previous Government.

Noble Lords: Oh!

Baroness Stowell of Beeston: In fact, Labour’s Local Government Minister at the time, John Healey, called for councils to charge for more services, including parking. When Labour was in office, he said:

“Only one in five councils are using charging to the full potential”.

Labour’s current shadow Minister has admitted that the Labour Government too easily reached for increasing costs as a way to drive change on things such as car usage. It is this Government who are tackling that problem.

Lord Bradshaw (LD): Is the Minister aware that in a typical city, buses and trains convey twice as many shoppers to the centre as come by car and taxi? The Government’s consultation paper, to which the Minister referred, obviously will make parking enforcement more difficult. It also will forbid the use of TV cameras to police the areas outside schools. Will the Minister ensure that the review that is being undertaken of the responses to the consultation document looks particularly at the effect on the efficient operation of bus services, road safety and nitrogen oxide emissions?

Baroness Stowell of Beeston: As my noble friend will understand from my earlier responses, we are carrying out this review because we think some of the parking measures already in place are having a negative effect on the vitality of our high streets and towns. The measures that we are considering are there to address the importance of parking. My noble friend mentioned specifically the use of CCTV cameras. I stress that we are considering the use of those cameras in parking bays, and what is important is that they are proportionate in their use.

The Lord Bishop of Wakefield: My Lords, I want to focus particularly on the impact on small towns, which may not necessarily have trains and buses bringing people into them. Where there are not just large-scale out-of-town developments but also small-scale shopping centres, where it is easy to park for nothing, the impact on the high street is significant. In Mirfield, in the diocese from which I come, free parking has had a

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very good impact. In Berwick-upon-Tweed, another town I know very well, there is no free parking and that is seriously affecting local businesses. Can we be assured that Her Majesty’s Government will encourage local authorities to look at ways of finding more parking spaces in small towns?

Baroness Stowell of Beeston: The right reverend Prelate is right to raise the issue of more free parking. In a recent report published by Deloitte, more free parking was the single biggest issue raised by people who responded. In examining some options, we are trying to ensure that local people have a greater say in the parking arrangements of their local areas—and, clearly, access to free parking should be one of those things.

Lord Hughes of Woodside (Lab): My Lords, since the Minister chose in the first Answer to politicise this matter when she defended Conservative local government by saying that it was following Labour Party policy, will she invite her colleagues in Conservative local authorities to follow Labour Party policy in opposing the bedroom tax?

Baroness Stowell of Beeston: The point that I am making to the noble Lord is that parking is an issue that affects all areas and is of great importance, and that we are not afraid to address an important issue in a proper manner.

Lord West of Spithead (Lab): My Lords, about 51 years ago Admiralty Fleet Order 150/63 was produced, which taught one how to treat snake bites. The first step was: kill the snake. Does the Minister believe that the snakes here are people who dislike and hate car owners? As the right reverend Prelate says, in small towns people have to use cars and there should be a concerted effort to ease restrictions in those sorts of places.

Baroness Stowell of Beeston: The noble Lord is right, and I am disappointed if my response to the right reverend Prelate did not give him the right impression. Clearly, access to free parking is an important matter for people. The Government are trying to make changes in order to ensure that, in particular in small towns and those that are not thriving in the way that they deserve, we are not blocking their progress.

Lord Marlesford (Con): My Lords, does my noble friend agree that the purpose of parking meters is to allocate scarce space for parking, so that if at peak times one cannot find a place, it means that the charges are too low, and, if there are a lot of empty places, it means that parking charges are too high?

Baroness Stowell of Beeston: That is a rather philosophical question. The most important thing is that charges are appropriate, and the Government are trying to ensure that the charges imposed by local authorities are appropriate and are seen as fair and reasonable by the people who have to pay them.

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Schools: Careers Guidance


2.52 pm

Asked by Baroness Humphreys

To ask Her Majesty’s Government what progress has been made in implementing the recommendations of the Ofsted report of September 2013 Going in the Right Direction? Careers Guidance in Schools from September 2012.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, we want all schools to follow the example of the best and provide inspiring careers advice for young people, based on more real- life contact with the world of work. In response to Ofsted’s report, we are strengthening statutory guidance, particularly with respect to contact with the workplace, and in improving information on apprenticeships and vocational options. We are developing the role of the National Careers Service. Ofsted is ensuring that careers guidance and pupil destinations will be given greater priority in inspections.

Baroness Humphreys (LD): I thank my noble friend for his reply. Ofsted reported that in more than three-quarters of the schools visited,

“the new arrangements for careers guidance were not working well”.

What specific guidance have the Government given to schools on what constitutes a comprehensive careers guidance strategy, which was recommendation 1 in Ofsted’s report? How will that ensure that all pupils receive appropriate and impartial guidance to enable them to make educated choices concerning their educational pathway post-16?

Lord Nash: My Lords, the revised guidance will make it clear that schools should have a strategy for the advice and guidance they provide to young people. The strategy should be embedded within a clear framework linked to outcomes for pupils rather than an ad hoc set of activities. It should reflect the school’s ethos and meet the needs of all pupils. We will share case studies so that schools can learn from the very best practice. The revised guidance will also set out clearly what schools can do to ensure that pupils have information about all the types of education and training they can pursue, and hear directly from different types of providers, including further education and sixth-form colleges, and employers delivering apprenticeships.

Baroness Bakewell (Lab): My Lords, there is an ongoing problem of informing young people about apprenticeships. This is a long-running story, found to be inadequate by the Ofsted report, which said that the careers advice being given in schools is not addressing that. The dilemma is that when a teacher on the staff of a school is also the careers officer, their loyalty to the school inclines them to advise children to stay on in the sixth form. What can the Government do to generate a new national careers service energy, so that this particular problem is more swiftly answered?

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Lord Nash: I take the noble Baroness’s point, although I think that more people staying on in school is hardly our biggest problem in education. Ofsted is very focused on making sure that guidance is given well. In relation to apprenticeships, we fund the National Apprenticeship Service that funds the Education and Employers Taskforce to deliver a programme of apprenticeship knowledge and employability skills to 16 to 18 year-olds. More than 70 advisers from the National Careers Service, the National Apprenticeship Service and Jobcentre Plus were stationed in the Skills Show in November last year, and the National Careers Service and the National Apprenticeship Service ran a jobs bus road show. A wide range of marketing materials and resources about apprenticeships are available on the National Apprenticeship Service website and it has also developed a free mobile app. So this is something we are very focused on.

Baroness O'Cathain (Con): My Lords, can my noble friend tell the careers advice people that we must make sure that we get the right jobs for the right people? The mismatch at the moment is horrendous, particularly with ICT jobs. It is estimated that by the end of next year there will be something like 400,000 to 700,000 mismatched jobs. The competition in the BRIC and MINT countries is making hay when it comes to these jobs. What are we doing to try to rise to that challenge?

Lord Nash: My noble friend is quite right. The UK’s long-term economic future depends on high-level technology skills, and the Government are committed to strengthening the teaching of computing and in particular computer science in schools. That is why the new computing curriculum, which is to be taught from September this year, will be mandatory at all key stages. It has a greater focus on how computers work and on the basics of programming, as well as covering digital literacy and the application of information technology. It encourages pupils to design computer programmes to address real-world problems. The inclusion of computer science in the EBacc will help ensure that more pupils obtain a high-quality GCSE qualification.

Baroness Lane-Fox of Soho (CB): My Lords, is the Minister aware of a report that came out of the EU two weeks ago valuing the internet app economy at several billion and stating that it will need one million jobs by 2020? Does he agree that the changing nature of the ICT world and of jobs needed within it is complex and should be reflected in careers guidance?

Lord Nash: I agree entirely with the noble Baroness. We cannot be competitive unless we take these points on board and I will take back what she says, particularly about the assimilation into careers guidance.

Baroness Hughes of Stretford (Lab): My Lords, despite the Minister’s claims, Ofsted, the Education Committee, the British Chambers of Commerce and the CBI have criticised the Government’s hands-off approach to careers guidance. The CBI said recently that careers advice is on life support now in many

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schools in England. Does the Minister accept that it was wrong to give schools sole responsibility for careers advice but no money to deliver it? Will the Government now act to eradicate the postcode lottery in careers guidance and insist, as my noble friend said, on independent, face-to-face advice for all young people?

Lord Nash: I know that the noble Baroness and I share aspirations for what we expect for young people, but the answer to her question is a firm no. As noble Lords know, the fact that the country is short of money is not this party’s fault. However, I also think that the assumption that a face-to-face interview with a careers adviser is the gold standard is a very outmoded model. As noble Lords will see when we publish our guidance, I hope shortly, we have a very strong emphasis on employer engagement, which we believe is the secret to good careers advice. I give an example: Westminster Academy, which has built up partnerships with more than 200 employers, has 73% FSM and 75% A* to C, including English and maths. I can think of no better example or argument for employer engagement on the ground, giving pupils a direct line of sight to real-life workplaces rather than just career advisers.

Lord Storey (LD): My Lords, my noble friend will know that one of the hardest things in career education is building up those networks, contacts and opportunities for work experience. It is particularly difficult for children from disadvantaged backgrounds—one has only to look at interns in Parliament itself. How do we ensure that children and young people from disadvantaged backgrounds have those opportunities?

Lord Nash: My noble friend is quite right. We have to ensure that work experience and internships are not just available from daddy’s or mummy’s friends. The Social Mobility Foundation has done a great deal of work in this regard, and I know that it is developing a focus on providing work experience and internships for pupils from backgrounds who would not normally be able to access them. Even it struggles sometimes to engage with schools, but that is something that we are very focused on.

Local Authorities: Local Plans


3.01 pm

Asked by Lord Tyler

To ask Her Majesty’s Government what steps local communities may take where a local authority has not prepared an up-to-date local plan; and what powers Ministers possess to encourage timely development of such plans.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con): My Lords, local plans enable communities to participate in planning and are the best way to create great places and meet their needs. This Government

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have therefore put local plans at the heart of the planning system and will consult on introducing a statutory requirement on authorities to put plans in place. However, in the absence of a local plan, communities can still exercise a range of community rights, establish neighbourhood plans, and make their views known on all development proposed locally.

Lord Tyler (LD): My Lords, I am delighted with my noble friend’s Answer—it is not often one can say that—but can she confirm that the Government recognise the urgency of this issue if there is to be a consistent pattern of district plans nationwide by the end of 2014? What steps can Ministers take now in advance of any statutory powers to ensure that a district such as the Cotswolds, which I know very well, of which 70% is in areas of outstanding beauty, does not drag its feet any longer? Does my noble friend agree that the absence of an up-to-date district local plan can make development control arbitrary, unfair and open to large-scale speculative development, threatening communities such as Tetbury and Chipping Camden?

Baroness Stowell of Beeston: My noble friend makes some interesting points. My first response to him is to restate that local plans are indeed the best way for local people to decide how best to meet their own planning needs. The Government are supporting local authorities to publish and adopt their plans, because we recognise that this is a complex process. We have trebled the number of local authorities with adopted plans since 2010. However, as I have said, because this is so important, we will consult shortly on whether to make adopting a plan a statutory requirement and, if so, by when.

Lord McKenzie of Luton (Lab): My Lords, we know that a number of local authorities are frustrated in facilitating the provision of housing, particularly affordable housing, where there is inadequate land supply within their boundaries and neighbouring authorities are ignoring their duty to co-operate on housing growth. The needs of Stevenage and Oxford are just two examples. As the Minister is aware, local authorities are required to provide evidence that they have complied with the duty in their development plans if the plans are not to be rejected by the examiner. How many local plans have, to date, been sent back for that reason? Does the Minister not agree that the duty to co-operate is proving to be a totally inadequate policy, given the scale of housing provision that our country needs?

Baroness Stowell of Beeston: I do not have the specific data to respond to that question from the noble Lord, but I can say to him that 75% of local authorities have now published a plan and 52% have adopted that plan. As I have already said, this is a massive increase on where we were in 2010, so there is real progress. However, because this is so important, we may, as I have said, introduce a statutory requirement to ensure that this happens across the board.

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Baroness Gardner of Parkes (Con): Is the Minister aware that there is a conflict between the minerals plans that are being developed and the local plans? It is rather important, particularly in view of the previous question, which emphasised the need for housing, that the mineralogical, underground plans should be finished in time for the local authority to know that it is not going to build on top of what could be a huge local asset for the community. Having attended the mineralogical group, I think there is some problem of liaison because these two items are covered by two different departments. Can the Government liaise between these departments in such a way that the necessary first one will actually be completed first?

Baroness Stowell of Beeston: In drafting and publishing local plans for consultation, local authorities are required to produce those plans in line with Government policy with the planning policy framework. Clearly, if there is any specific matter, there are ongoing discussions on that, but I am pretty sure that the way things are working is adequate.

Lord Foulkes of Cumnock (Lab): Will the Minister make clear which country she is talking about?

Baroness Stowell of Beeston: I am talking about England. If I were to talk about Wales, where the Labour Party is in government, things are a lot worse over there.

Lord Avebury (LD): My Lords, in the case of planning for Travellers, the DCLG issued a paper requiring local authorities to provide, by the end of March 2013, a five-year supply of specific deliverable sites against targets based on up-to-date assessments of local need. Will my noble friend say whether the Government will ask local authorities to submit returns by the end of March this year showing how they have satisfied that requirement? If the answer is that hardly any have done so, will they embody the requirement in statute? Is there ministerial power to enforce it?

Baroness Stowell of Beeston: As my noble friend knows, the policy is clear that, through local plans, local authorities should plan to meet housing needs and the needs of Gypsies and Travellers. This Government do not impose or monitor targets, but the Planning Inspectorate is applying the policy robustly in examining local plans.

Lord Teverson (LD): My Lords, someone well beyond my pay grade has suggested that villages should be able to expand with small and proportionate developments in order to ensure that we build housing in rural areas and make villages vital communities again. Would the Government agree with that?

Baroness Stowell of Beeston: The most important thing as far as planning is concerned—which is why we are so committed to local plans—is that all housing decisions be locally driven.

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NHS: Patient Data


3.08 pm

Asked by Lord Turnberg

To ask Her Majesty’s Government what is their assessment of the proposal to establish a national collection of data about patients, in the light of the decision by NHS England to postpone its introduction.

Lord Turnberg (Lab): My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare my interest as scientific adviser to the Association of Medical Research Charities.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, NHS England’s care.data programme takes forward the ambitions set out in the Government’s information strategy for health and care in England, The Power of Information, published in 2012, in particular elements of chapter 5 of the strategy. The Department of Health strongly supports NHS England’s decision to do more engagement work before data collection takes place. This is a vital programme which will bring real benefits to patients.

Lord Turnberg: My Lords, I am grateful to the noble Earl for his response. Few people doubt that there are enormous benefits to be gained from patient data, both for the care and treatment of patients at the moment and for research into treatment for future patients. However, does the noble Earl agree that NHS England has been remarkably unsuccessful so far in communicating both the benefits and the safeguards to confidentiality? Does he further agree that it is vital that NHS England uses the next six months, which is the delay, to develop some robust and convincing methods of communicating with the public?

Earl Howe: I entirely agree with the noble Lord. This is a vital programme which will bring real benefits to patients. It has major potential benefits for research and public health. It commands generally wide stakeholder support. However, there is no doubt that concerns over how this has been explained to patients have been raised and those concerns need to be addressed. I agree that the next six months will be crucial in pursuing that aim but it is essential that this programme commands public support.

Lord Kakkar (CB): My Lords, I declare an interest as professor of surgery at University College London. What assessment have Her Majesty’s Government made of the proposed European data protection regulation which, if passed, has the potential to impact seriously on our national strategies with regard to health informatics and biomedical research?

Earl Howe: My Lords, we take that concern extremely seriously. The draft text that has been published by the so-called LIBE committee would, if enacted, pose serious obstacles for our research effort in this country.

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We are taking every opportunity and using every effort to persuade both the Parliament and the European Commission that the original text is the one we should go with. That work is on-going and the Ministry of Justice is leading on it.

Lord Walton of Detchant (CB): My Lords—

Lord Cormack (Con): My Lords—

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con): Let us hear briefly from the noble Lord, Lord Cormack, and then we can go to the other side.

Lord Cormack: Will my noble friend assure the House that the leaflet which was recently sent out, and which was far from satisfactory, will be replaced by something that really communicates what people need to know?

Earl Howe: My Lords, I am aware of concerns around the leaflet. Many people have said that they have not received it, which is clearly a concern. NHS England, which is leading on the development of the programme, will consider how to ensure that it engages fully with stakeholders and the public over the coming weeks and months and respond to the concerns that have been raised. The Government will also be engaging with stakeholders to see what we can do from a broader perspective.

Lord Hunt of Kings Heath (Lab): My Lords, I refer noble Lords to my health interests. Is not one of the problems that if a patient wants to opt out of the system they have to go to or communicate with their general practitioner? I am sure the noble Earl will have seen the report at the weekend from the Royal College of General Practitioners that GPs are sometimes rather difficult to find. Would it not give the public more confidence if they could opt out in a straightforward way rather than have to go to see their GP and then depend on the GP to enact that in practice?

Earl Howe: My Lords, I cannot agree with that. The GP surgery is where the records are kept and would seem to be the natural place for patients to go. They do not have to make an appointment to do that. If they are concerned, they can write a letter or send an e-mail to the GP practice and then have a conversation later if they would like to. I do not think this is a difficult process.

Baroness Brinton (LD): My Lords, it is clearly illegal for pseudonymised data to be worked back and then aggregated with other available data. Can the Minister assure the House that the Government will consider increasing the penalties for infringing personal data, including prison sentences for serious breaches and a ban on the offenders and their organisations accessing any data for up to 10 years? This is because current organisations are often not taking seriously breach-of- data fines.

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Earl Howe: My Lords, I have seen quite a lot of comment on this aspect of the issue in the press. At present, the Information Commissioner’s Office already has the power to impose a fine under Section 55A of the Data Protection Act and the current penalty is up to £500,000, which is quite a severe penalty. To amend that would require changing the Data Protection Act and, at the moment, the Government have no plans to do that.

Lord Walton of Detchant: My Lords, does the Minister accept that all appropriate steps are being taken to protect the anonymity of these data? In the light of that, is it not more important to the future of medicine in this country that the availability of this massive database should be taken advantage of in relation to medical research, which will in turn have the undoubted effect of giving huge potential for improvement in patient care?

Earl Howe: The noble Lord is absolutely correct. It is worth pointing out that the vast majority of medical research in this country relies on fully anonymised data. It does not require patient-identifiable data. An organisation making an application for information that is identifiable would be allowed to do so only if it had obtained patient consent or had been granted legal approval to do so, either by the Secretary of State or the Health Research Authority, or where there is a public health emergency of some kind.

Divorce (Financial Provision) Bill [HL]

First Reading

3.15 pm

A Bill to amend the Matrimonial Causes Act 1973 and to make provision in connection with financial settlements following divorce.

The Bill was introduced by Baroness Deech, read a first time and ordered to be printed.

House Committee

Liaison Committee

Membership Motions

3.15 pm

Moved by The Chairman of Committees

House Committee

That Baroness Walmsley be appointed a member of the Select Committee in place of Lord Alderdice, resigned.

Liaison Committee

That Baroness Walmsley be appointed a member of the Select Committee in place of Lord Alderdice, resigned.

Motions agreed.

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Citizenship (Armed Forces) Bill

Order of Commitment Discharged

3.16 pm

Moved by Lord Trefgarne

That the order of commitment be discharged.

Lord Trefgarne (Con): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to speak in Committee or move a manuscript amendment. Accordingly, and unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

International Development (Gender Equality) Bill

Order of Commitment Discharged

3.16 pm

Moved by Lord McColl of Dulwich

That the order of commitment be discharged.

Lord McColl of Dulwich (Con): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Leasehold Reform (Amendment) Bill

Order of Commitment Discharged

3.17 pm

Moved by Baroness Williams of Trafford

That the order of commitment be discharged.

Baroness Williams of Trafford (Con): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Deep Sea Mining Bill

Order of Commitment Discharged

3.18 pm

Moved by Baroness Wilcox

That the order of commitment be discharged.

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Baroness Wilcox (Con): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

National Insurance Contributions Bill

Third Reading

3.18 pm

Bill passed.

Northern Ireland (Miscellaneous Provisions) Bill


3.18 pm

Amendment 1

Moved by Lord Empey

1: After Clause 7, insert the following new Clause—

“Opposition status in the Assembly

(1) Schedule 6 to the Northern Ireland Act 1998 (standing orders: further provision) is amended as follows.

(2) After paragraph 4(2) insert—

“(3) The standing orders shall include provision in relation to the allocation of the Chairmanship and Deputy Chairmanship of the Public Accounts Committee.”

(3) After paragraph 5 insert—

“Opposition status

6 (1) The standing orders shall provide for official opposition status to be allocated to any party with at least one seat in the Assembly which is not a part of the Executive.

(2) Official opposition status shall only be introduced under sub-paragraph (1) if approved by a cross community vote in the Assembly.

(3) For the avoidance of doubt, it shall not be possible for the Assembly to revoke the official opposition status accorded to members under the provisions of this paragraph without the consent of the Secretary of State.””

Lord Empey (UUP): My Lords, perhaps I will be permitted a brief pause while your Lordships’ huddled masses leave.

As we discussed this topic in Committee and also had a significant debate on it at Second Reading, there will be no need to repeat many of the concerns that were expressed at that stage. However, the amendment approaches the matter from a different point of view. It was made clear that there was an anxiety that changing the effect of the 1998 Act through the miscellaneous provisions Bill could be seen as imposition of the idea of official opposition status over the head of the Northern Ireland Assembly. Under the amendment, the trigger for any action would be a request from the Assembly itself.

The noble Baroness will be well aware of my anxiety and that of a number of others that although of course the Assembly has powers to change its Standing Orders which could give effect to opposition status, the weakness in that argument is that what is given by the Assembly can be taken away by the Assembly. The

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danger is that, if an Opposition are established, it is on a grace and favour basis and will only have sufficient independence as long as that is the will of the other parties in the Assembly.

My purpose in moving the amendment, and that of my noble friend Lord Lexden, is to ensure that we move one step closer to providing additional accountability, so that the Executive can be held to account. Parties would have the option of achieving a status that will give them some additional speaking rights and supply day debates and provide for the very significant issue of the future chairmanship and deputy chairmanship of the Public Accounts Committee. In other jurisdictions within the United Kingdom, those offices are held by parties that are not in the Government, whereas under the current arrangements in Belfast, they are occupied by parties that are in the Government. So that issue is fairly self-explanatory.

One issue that has come to my attention is that some elements within Sinn Fein feel that if opposition status is granted to parties in the Northern Ireland Assembly, that might in some way encourage parties not to share power with them. Parties are not going to decide not to share power with Sinn Fein on the basis of whether or not they could have opposition status, they are going to make that decision on a bigger political picture, so that is an Aunt Sally of an argument. Nobody is going to refuse to share power with Sinn Fein simply on the basis that they could get opposition status, a couple of supply day debates and so on. That argument is not credible.

If your Lordships think that there is no need for looking at opposition status in the Bill, I draw your attention to the fact that last year, an attempt was made to take away powers of one of the Northern Ireland departments, the Department of the Environment. An eight-page amendment was introduced at the very last minute which had the effect of removing some powers from that department and moving it to another one. That was done without any consultation through the committee and at the very last minute, so therefore there was no opportunity to have proper scrutiny of that proposal.

In essence, that makes my case for me, because it is precisely to counteract that risk that I believe that we require to provide certainty and a guarantee that if the Assembly chooses to go down the route of providing for an Official Opposition, which I hope it does, that Opposition will be a proper, free-standing Opposition who will have certainty that they cannot find themselves hobbled later should they fall out of favour with the executive parties of the day. We must remember that we cannot look at this simply in the context of the current make-up of the Assembly. We are looking years ahead—that make-up may change over time. It is for those reasons that I believe we need to go a bit further than the Minister has indicated in the past. Will the Minister tell us if she agrees with the proposition? I believe, reading her response at the previous stage—in Committee—that she does, and that she believes that there is this issue, raised by some people, that, in the absence of a guarantee which is not confined to the Assembly, the opposition status would be left in a fairly weak position.

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I have an open mind on the methods we might choose to deal with this. This is one proposal. If we look at the Northern Ireland Act, and Schedule 6 to that Act—which deals with the question of Standing Orders—there are indicative Standing Orders set out in relation to committees and other matters, so we are not proposing anything wildly different. I also re-emphasise that the trigger for this has to be the Assembly itself, so that we are not forcing something on the Assembly that it does not want. At the end of the day, we need to put in place a mechanism that ensures that, if an Opposition are formed, they are free, independent and not subject to pressure. I believe that that would be an extremely valuable element in improving accountability. I support the mandatory coalition arrangements—although one would like to see a day when that is not necessary, it is necessary and will be for the foreseeable future; I doubt very much that anyone in this House today will see the day when it is not necessary. We are not getting into the argument about whether we are trying to replicate the Westminster system—we are not. That argument should be set to one side. However, that does not mean that the system is not capable of being improved or evolving. I draw the attention of the House to some speakers at the previous stage who said, “Oh well, we cannot impose things and we cannot interfere”. Parliament has imposed and interfered, and in fact a later amendment in the name of the noble Lord, Lord Trimble, is a classic example of both interference and imposition. This Parliament has already interfered and imposed and it has done so with its eyes wide open. Indeed, in a debate in this House in 2006, the implications of pursuing the imposition were made clear—and that has proved to be correct.

Let us not hide behind the argument that you cannot look at an issue simply because it is not necessarily provided for in the current arrangements. Political deals have been done, and political deals have been imposed, and that is how the system works. We are not proposing that sort of methodology. As can be seen from this amendment, the trigger is the Assembly itself. It has to make the move, it has to ask, and it has to decide that it wants to go down this road. This amendment seeks to ensure that there is a guarantee and certainty that that Opposition, once established, will be free and able to pursue their objectives without let or hindrance from whichever happen to be the governing parties of the day.

Will the Minister comment in her response on how we can achieve these objectives, if she is not content with this proposal? I hope the Government understand that we are not here to impose; we are here to improve and to see the institutions evolve. I know that we are aware of the sensitive situation with regard to devolution throughout the United Kingdom. We know that eyes will be looking from Scotland at what we do here on this issue, and I understand fully that most of your Lordships do not want to give any hostages to fortune or provide any ammunition so that people in Scotland could say, “There you go. They are trying to impose something and if they’ll do it on Northern Ireland, they’ll do it on Scotland or on Wales”. I fully understand that argument, and the anxieties which those who hold those views feel over Scottish independence.

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I do not want to provide ammunition to anybody in Scotland who seeks to break the union, but I repeat: the trigger for this has to be the Assembly itself, which takes it out of the realms of imposition. Between now and the next stage of the Bill, it ought to be possible to find a means of achieving these objectives without doing damage to the principle of non-interference. In that spirit, I beg to move.

3.30 pm

Lord Lexden (Con): My Lords, I supported my noble friend Lord Empey’s amendment in Committee and I support the current version of this valuable amendment with no less vigour. He has explained its aims and objectives fully and I have only a little to add from my own Conservative and Unionist perspective, which is identical to that of my noble friend, who is the chairman of the Ulster Unionist Party. The not unimportant constitutional issue which the amendment seeks to address is simple and straightforward. The Northern Ireland Act 1998, which created the devolved institutions through which the Province is largely governed today, made no provision for the establishment of an Official Opposition with the appropriate rights and privileges. My noble friend has explained the reasons for that omission and this amendment would fill that constitutional lacuna.

It contains, as my noble friend has emphasised, no element of dictation or compulsion. It makes soundly based constitutional provision for the establishment of an Official Opposition, while leaving the Northern Ireland Assembly entirely free to judge when it would be appropriate to invoke this valuable addition to the constitutional order under which it conducts its affairs. In other words, by inserting provision for an Opposition into the 1998 Act, this amendment would supply the one element which is missing from Northern Ireland’s remarkable constitutional dispensation that followed from the Good Friday agreement, and so complete that dispensation. It therefore has great significance but it would do something else of importance as well. It would signal this Parliament’s support and encouragement for the evolution of Northern Ireland’s devolved institutions in the direction that public opinion in the Province increasingly favours: towards a state of affairs in which the Government are challenged in detail, day by day, by an Opposition who fulfil the great constitutional function prescribed for them of providing,

“a standing censorship of the government, subjecting all its acts and measures to a close and jealous scrutiny”,

as one leading late 19th-century authority on the constitution put it in resounding language.

Is it not right—is it not indeed the duty of the Parliament which brought into being Northern Ireland’s unique constitutional order—to support and encourage its evolution so that the devolved institutions that operate under it can carry out their work with ever growing success as the years advance? Your Lordships might consider what beneficial effect an Official Opposition could have had if they had been in existence today. They could have prevented the restrictions that limit so worryingly the operations of the new National Crime Agency in Northern Ireland—a matter that

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aroused grave disquiet when we discussed it in Committee. An Official Opposition might also have made it unnecessary for us to hold the debate on defamation which is to follow shortly.

Some say, “Leave the Assembly entirely free to follow its own course. Do not trouble it with advice from Westminster. Do not disturb it by strengthening the constitutional basis on which it operates by making statutory provision for an Opposition and placing that provision at the Assembly’s disposal for its introduction”. That does not seem to me the right, constitutionally sound approach. As my noble friend has explained, the Assembly could establish an Official Opposition under its own Standing Orders. However, that, in his own striking phrase, would be a grace and favour Opposition, existing through the good will of the Executive with their commanding majority in the Assembly. To work well, an Opposition would need stability and confidence. If they rested on a statutory basis under this Parliament’s legislation they could not be removed precipitously or capriciously. Let us now take the Northern Ireland Act 1998 to the point that is now needed by adopting this amendment.

In replying to the debate in Committee the Minister said:

“It is important that a formal Opposition should have sufficient status if they are to be effective in holding the Executive to account. The Government will reflect on what has been said in the debate and we will certainly return to this on Report”.—[Official Report, 3/2/14; col. 22.]

I hope at the end of this debate my noble friend will be able to tell the House that the Government will either adopt this amendment or will bring forward something similar at Third Reading.

Lord Trimble (Con): My Lords, when the noble Lord, Lord Empey, tabled his amendment on this matter in Committee I added my name to it. I make clear that the absence of my name from this amendment today does not mean that I have changed my mind. I agree with what the noble Lord has said and I hope he gets a very positive response from the Minister.

Lord Alderdice (LD): My Lords, in Committee I made it clear that I was very supportive of the principle of establishing an Opposition in the Northern Ireland Assembly. I remain of that view. In fact, I think it could be a very helpful improvement and evolution of the constitutional arrangements. It is clear that Standing Orders in the Assembly can accommodate this. When the Assembly was first established it had a very flimsy little pamphlet of Standing Orders. It was very important that the Assembly on all sides agreed to a process of negotiating and ultimately passing Standing Orders with cross-community support in the Assembly. That meant that all Members of the Assembly felt they were their Standing Orders. I would prefer to try to find that way forward. I do not accept the proposition that the noble Lord, Lord Empey, referred to about this being an imposition. I agree with him that this is not about imposition; it is about facilitation. The dilemma is, as he described, that it requires the larger parties in the Assembly to buy into the proposition before his amendment, even if passed, would come into operation. It is a bit of a Catch-22 situation. To

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achieve the things he and the noble Lords, Lord Lexden and Lord Trimble, want to achieve will require a process of negotiation between the party or parties that wish to have the possibility of being an Official Opposition and the current parties of government. Of course, these things can change—they have changed since the agreement, with the size of parties and their influence and so on.

Is there any leverage? I think there is considerable leverage. For example the Ulster Unionist Party, which is no longer as substantial in this House as it once was, has a substantial number of Members of the Northern Ireland Assembly and indeed has ministerial positions. It would be possible to negotiate with the two largest parties in the Assembly on the basis that, as vacating ministerial presence on the Executive to take up opposition status would be to the advantage of the other parties, appropriate recognition as the Opposition would be sought in return.

This leads me to two areas where I feel some dissatisfaction with the specifics of this amendment. First, there is the suggestion that a party with one Member could become the Official Opposition. I would rather see a slightly higher bar than that in the Northern Ireland Assembly. The idea that a single Member could form a party of their own and have the status of Official Opposition seems unwise. There should be some more substantial number; it is going to be a bit arbitrary whatever it is, but one is both arbitrary and unwise. I can think of many individual Members of the Assembly who might choose to adopt that status and create merry hell for everyone, including themselves and the Speaker. I would rather that there were more.

The second is related to that: the special position that is accorded in the chairmanship of committees, as suggested in the amendment. Again, for a very small party of one or two people to be able to corral those significant positions seems unwise. However, I emphasise again that the principle that is being supported by the noble Lords, Lord Empey and Lord Lexden, and indeed the noble Lord, Lord Trimble, is one that anyone who wants to see the evolution of the Assembly should espouse, and if there are things that can be done by the Secretary of State and our own Minister here or by others in your Lordships’ House to move that forward, we should certainly do so. However, I remain to be persuaded that this amendment is going to take us in quite the direction and for quite the distance that its proposers might hope.

Lord McAvoy (Lab): My Lords, in Committee there was a broad consensus—that is the key word—that the creation of an Opposition, or the allocation of opposition rights to parties in Stormont, lay within the scope of the Assembly and could be achieved through its Standing Orders. That consensus is again confirmed today. The Assembly’s Standing Orders have the power to grant informal recognition to non-executive parties in the Assembly on a proportional basis. There was also unanimous agreement as to the value of opposition and the additional effectiveness that an Opposition would bring to scrutinising the Executive and holding it to account. In fact, “consensus” appears to be the key word in this discussion.

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In Committee, several noble Lords raised concerns about the vulnerability of any arrangements that were determined solely by Stormont. Concerns were also raised about the efficacy of the Assembly’s committees, particularly the chairmanship and deputy chairmanship of the Public Accounts Committee. The current amendment represents an understandable attempt to overcome those anxieties. By placing the creation of Standing Orders that grant opposition status within the Northern Ireland Act 1998, and by making it impossible for the Assembly to revoke official opposition status, the independence of an Opposition would appear to be guaranteed. Through this amendment, any Opposition would not be dependent on the continued good will of the Assembly for their status and associated rights. Bearing in mind the word of the noble Lord, Lord Alderdice—“evolution”, which is particularly relevant—that might not be welcomed.

We all wish to see the continued normalisation of politics within Northern Ireland. Great strides have been made. It is a rocky road at times but it is still a great road to be on. However, as I have said before, the situation and structures in Northern Ireland are unique. It is for this reason that I and the Official Opposition share the doubts mentioned by the noble Lord, Lord Alderdice. Is this the way ahead? Unless you are sure about something, you should not support it in Northern Ireland.

After so much division, the 1998 agreement established an Assembly and Executive in Northern Ireland that would be inclusive and make decisions consensually. These very same principles apply to the creation of an Opposition within the Assembly today. It is not a case of hiding behind the mantra of devolution. Devolution has a capital “D”. It is not a mantra. It is an effective way of delivering power and devolving power down in a very centralised society, which the United Kingdom can be at times.

In June 2013 the Assembly and Executive Review Committee concluded that, as yet, no cross-community consensus had been reached. This followed a government consultation in 2012 that reached the same conclusions.

3.45 pm

A consensus must be reached in Northern Ireland before we can accept thisamendment. This must precede legislation; it surely cannot be forged afterwards. While the principle of the proposed amendment—I again quote the noble Lord, Lord Alderdice—is one of which we, as Westminster politicians, see the benefits, the doubts that some have expressed show that the timing is not yet correct to accept it. If the Assembly were to pass Standing Orders to create an Opposition and the Executive were to ask the Secretary of State to consider legislation, then it would be right to give the proposed amendment serious consideration.

In the Assembly, John McCallister MLA is contemplating presenting a Private Member’s Bill on the issue of opposition in the coming months. This should be seized upon as providing a prime moment for a forward-looking discussion around this issue within Northern Ireland. This amendment acknowledges the powers of the Assembly regarding an Opposition,

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and behind it is an understandable concern to prevent the Assembly withdrawing anything it were to grant. However, I repeat that, unfortunately, this does not seem to be the time to accept this amendment. The Assembly must reach a cross-community consensus on the creation of an Opposition before Parliament can consider legislating in this way. The impetus to the creation of an Opposition within the Assembly must come from within Northern Ireland and cannot be imposed—yes, I am using that word—from here at Westminster. Consensus cannot be created retrospectively as this amendment would seek to do. It is for the Assembly to make the first moves towards creating an Opposition: only then can Parliament legislate on the basis of a request from the Assembly.

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, I am grateful to the noble Lords, Lord Empey and Lord Lexden, for tabling this amendment. As I have acknowledged previously, they have done us a service in raising the profile of this important issue and they are to be strongly commended for that. I think that we have agreement at the very least on one thing across the Chamber this afternoon: that is, an Opposition is an important part of democracy. The Government agree that the creation of an Opposition would be a welcome step on the road to rigorous scrutiny of the Northern Ireland Executive and an important part of the democratic development of Northern Ireland.

This afternoon several noble Lords—the noble Lord, Lord Alderdice, for example—emphasised the development of the Assembly as a democratic institution and the importance of that development. I myself, from my own experience as a Member of the Welsh Assembly, recall that the original Welsh Assembly as set up did not have a strong Opposition embedded within it. It did not have the institutions of an Opposition, and the positions to which the noble Lord, Lord Empey, refers in his amendment, were not necessarily there for the Opposition to take up.

As the Opposition grew within the Welsh Assembly, one could see—day by day and month by month—the effectiveness of scrutiny growing within the Assembly. To my mind, therefore, there is no argument about the importance and desirability of an Opposition. The key thing we have here is a discussion as to whether that should be done, as the noble Lord, Lord McAvoy, suggested, through the internal standing-order processes of the Assembly—the noble Lord, Lord Alderdice, suggested the same approach—or whether it should be something that has safeguards imposed from outside. There we have the issue of the development of Standing Orders within an organisation.

The personal experience I just referred to includes being chair of the Welsh Assembly’s Standing Orders Committee, which I always regard as one of the more challenging roles that I have taken in politics. Clearly, as the organisation develops, the Standing Orders become more sophisticated and more difficult to overturn. If the approach within the Northern Ireland Assembly is taken via Standing Orders, that of course does not necessarily mean that they are likely to be overturned—although I recognise entirely the example given by the

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noble Lord, Lord Empey, of the challenge last year to the power of the Department of the Environment, and the point that there are unsettled moments in the development of Northern Irish democracy.

Therefore, as I set out in Committee and as has been referred to this afternoon, the Government previously consulted on the issue of an Opposition in the Assembly and concluded that there was a lack of broad support between the parties in the Assembly for changes to the current legislative framework.

Lord Kilclooney (CB): The Northern Ireland Assembly is losing credibility across Northern Ireland and is passing very little legislation. I am very worried that the turnout at the next election will be poor. The Minister says—and the spokesman for the Opposition said the same—that the initiative must come from the Northern Ireland Assembly itself, but if all five main political parties are now in the Government, what incentive is there for any of those parties to resign from the Government and become the Opposition?

Baroness Randerson: The noble Lord makes a very important point. However, because there may not immediately be an obvious incentive to do so, that does not necessarily mean that in other circumstances one or more of those parties might not find it appropriate to go into opposition. In the history of party politics in general, from time to time a party believes that the time has come to renew itself, and the party also might believe that the time has come for it to take a stronger role of scrutiny. It is important that we do not regard the current situation in Northern Ireland in terms of the balance of political parties as one that will necessarily exist in decades to come. There have been remarkable changes in Northern Ireland among the political parties since the establishment of devolution, so we should not think that the current situation will necessarily always continue as it is.

I return to the point I was making. Noble Lords will be aware that the Assembly can in effect facilitate an Opposition at present through its Standing Orders, as has been referred to here this afternoon. However, as I said earlier, I recognise the concerns that those Standing Orders could be overturned at the behest of the larger parties in the Assembly. In response to the question asked by the noble Lord, Lord Empey, the Government understand the desirability of sufficient protection being afforded to an Opposition against such a threat if it is to be truly effective in holding the Executive to account. It is important that the Opposition are enabled to do their work without feeling that their position is under threat. However, of course it is also possible to protect an Opposition internally, through Standing Orders.

However, as the noble Lord, Lord McAvoy, highlighted in Committee and again this afternoon, this is about the Assembly’s internal procedures. I disagree with the noble Lords, Lord Empey and Lord Lexden. It would not be appropriate for the Secretary of State to have authority over the Assembly’s internal affairs, as the amendment suggests. In the view of this Government, it is not appropriate for the Secretary of State to intervene internally in the processes of the Assembly. We also believe that it would be inappropriate to

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impose a requirement for the Assembly to make particular provision in this field. Indeed, we ought to show great circumspection, given that there has been no opportunity for consultation on these matters with the Northern Ireland Assembly in recent months. However, we will reflect further on the issue in the light of today’s debate. I make no promises of particular action, but we commit to considering whether there is more we can do within the constraints of the Government’s view that we should not intervene directly within the Assembly. Above all, I hope that the parties in Belfast are listening and will think carefully about amending Assembly arrangements in the light of what has been said today. With that in mind, I hope that the noble Lord, when he comes to reply, will feel able to withdraw his amendment.

Perhaps I might add a word about another issue, since otherwise we will not have an opportunity to consider it today. In Committee, concerns were expressed about the current provision in Clause 6 to make the reduction in the size of the Assembly a reserved matter. I would like to respond in more detail to some of the concerns debated in Committee. The current provision would enable the Assembly to legislate, with the Secretary of State’s consent, to reduce the number of Members returned to it for each Westminster constituency. The noble Lords, Lord Alderdice, Lord Empey and Lord Bew, expressed reservations about the current provision in that it did not provide sufficient protection, notably for smaller parties in the Assembly. In their view, the Secretary of State’s ability to withhold consent from such an arrangement was not a sufficient safeguard.

The Government recognise those concerns. There is a significant body of opinion that favours some reduction in the Assembly’s size, but it is certainly not our intention that it should become a radically smaller institution. When it was established, it was the intention that it should be a widely inclusive body, and that remains an essential element of the Northern Ireland settlement. Accordingly, we propose to bring forward an amendment at Third Reading that would limit any reduction in the Assembly’s size to five Members per constituency. The amendment would make clear that such a reduction would require cross-community support in the Assembly.

We will, of course, return to the detail of this amendment at Third Reading, but I hope that I have given a clear indication of the Government’s intentions and reassured noble Lords. Following my comments on this amendment and in the light of my reassurance that we will consider further the issue of our position in the Assembly, I hope that the noble Lord, Lord Empey, will feel able to withdraw his amendment.

4 pm

Lord Empey: My Lords, I welcome the debate that we have had. As Members of this House will be well aware, when a miscellaneous provisions Bill passes your front door, a variety of things inevitably appear in it. Of course, at the end of the day the Government brought the Bill here, so it is their fault that all these issues are being raised.

Throughout this process we have been trying to raise the profile of this issue. Earlier, I made the point that changes have been made to the architecture of the

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Assembly without the consent of the Assembly, without the consent of all the parties and, indeed, without any consultation with all the parties. It is against that backdrop and in that context that these amendments are being brought forward.

I am sure that I speak for my noble friend Lord Lexden when I say that we have no particular allegiance to this amendment vis-à-vis another. We are trying to achieve an objective, which is to allow the Assembly to evolve. I take the point made by the noble Lord, Lord Alderdice, that there is a Catch-22 situation. If you want the Assembly to have the trigger mechanism to seek an opposition status, to some extent you are giving it a veto. Equally, the only alternative to a veto is an imposition, but it has already been said around the House that that is not where we would seek to go.

I thank the noble Baroness for saying that she wishes to reflect further on the issue without commitment. We are open to finding a way to evolve the situation, whether that is through consultation with the parties, led by the Secretary of State, or by another mechanism or other means. All we want is to see progress.

The noble Lord, Lord Kilclooney, raises a very important point. I have been a lifelong supporter of devolution, as have many noble Lords here, but credibility is being lost. Sometimes things need to be refreshed and people need to see change and delivery. It is important that we do not confuse the facts. For instance, my noble friend Lord Lexden and I have brought forward this proposal but that does not mean that the party that I represent necessarily wishes to seek a status for itself now. It may very well be that other considerations, such as the stability of the institution, have to be taken into account. However, we have to look to the future and, as the noble Baroness said, the future generations of politicians need the best structure that we can give them.

With regard to the Minister’s point about the size of the Assembly and her intention to bring forward an amendment on that, I would just suggest that in the mean time she does an exercise on the impact that it would have had on the Assemblies that have been elected so far to see what it would have produced. The noble Baroness is a great advocate of proportional representation; her party sought to introduce it for this House and the other place. However, whenever people talk about it, I get the impression that they do not fully understand its implications. I suggest that people have a look at the figures to see what PR would have produced in the context of the Assembly elections in 1998, 2003, 2007 and 2011—what those elections would have looked like and what impact it might have had.

We had a proposal to reduce the number of constituencies in the United Kingdom Parliament. That would have been a perfect solution to the situation in Belfast because a reduction in the size of the Assembly would have been taken care of without the Assembly having to get involved; 12 seats would have disappeared and the Assembly would have gone down to a more reasonable size.

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However, we are where we are and, on the basis of the noble Baroness’s assurances that she wishes to reflect without commitment, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 10: Civil Service Commissioners for Northern Ireland

Amendment 2

Moved by Lord Empey

2: Clause 10, page 9, line 7, at end insert—

“(3) Subsections (1) and (2) shall only enter into force after the remaining provisions of this section have been complied with.

(4) The Secretary of State shall establish a body corporate called the Northern Ireland Civil Service Commission (“the Commission”).

(5) The Commission must publish a set of principles to be applied for the purposes of recruiting persons on merit on the basis of fair and open competition.

(6) Before publishing the set of principles (or any revision of it), the Commission must consult the Secretary of State.

(7) Northern Ireland Civil Service management authorities must comply with the recruitment principles.”

Lord Empey: My Lords, this is a very simple amendment. In Committee we discussed at considerable length the fact that we were seeking to ensure that the principles of merit and of equality of opportunity were always at the forefront of Civil Service recruitment. I take the point that in this case we have the anomaly that civil servants effectively are answerable to the devolved Parliament, whereas the Civil Service Commission is not. I believe, too, that if we cannot agree on the principles of merit and equality in terms of the Civil Service Commission, we are in severe difficulties.

I refer to the letter that the noble Baroness sent to us and to the fact that in Committee many people praised the Civil Service for its work in very difficult times over a prolonged period. Many civil servants conducted almost political negotiations on behalf of Ministers, in some cases at great risk to their personal safety. We owe them a debt of gratitude in that regard. The point was made that the situation in the 2010 Act gave the Whitehall Civil Service Commission one status, whereas the Civil Service Commission in Northern Ireland has a different one. The amendment was drafted to deal with that anomaly. I am interested to know how the Minister has reflected on these matters since Committee and whether she feels able either to support the amendment or to bring forward her own. I beg to move.

Lord Bew (CB): My Lords, I support the amendment. The shadow of history lies over it. When the Northern Ireland Civil Service was established in 1921-22, something like 60 appointments were made without any normal procedures of recruitment being applied. Over a period of time a struggle to achieve a professional Civil Service began. The time between 1925 and 1944 when Sir Wilfrid Spender was head of the Civil Service was

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key. In the memoirs of a Catholic civil servant, Patrick Shea, who reached the top of the Northern Ireland Civil Service, one can see the degree to which great efforts were made to institutionalise procedures that reflected what Sir Wilfrid thought were the best procedures in Whitehall.

That backdrop explains why, when direct rule came, Ministers of all parties—I do not just mean Conservative, Labour or Liberal Democrat Ministers who had dealings with the Northern Ireland Civil Service, but Ministers who leant to one particular side or the other in Northern Ireland—always found that the Northern Ireland Civil Service delivered excellent and objective advice. If one looks at the non-controversial nature of north-south relations, which is of particular importance at the moment, it is clear that the big political decisions in such a context were made by the noble Lord, Lord Trimble, who is in his place today.

It is also the case that the work done by the Northern Ireland Civil Service in looking at areas of viable co-operation between north and south is a very important reason why the settlement is so stable. As the noble Lord, Lord Empey, has said, we owe a debt of gratitude to the Northern Ireland Civil Service. As I have argued, that integrity and professionalism has been hard won. The pressures of localism do not go away: it is not 1921 anymore. At this symbolic moment, it seems to me that noble Lords who supported this amendment want to say that a stronger message is desirable in terms of defining the principle of merit and of fair and open competition. That essentially is the idea behind this amendment: that that signal should be sent in a firm way.

Lord Alderdice: My Lords, whatever reservations I might have had with regard to the previous amendment I have none at all about putting my name to this one as it is very important. There was some talk in the debate on the previous amendment about the imposition of the will of the Westminster Parliament or Westminster Government on Northern Ireland. In a sense, this amendment and the next one refer to two clauses where it is almost as though the Westminster Parliament and Government are intentionally withdrawing their involvement and moving from excepted to reserved matters that were rather carefully put in the excepted category. Why? Many of us were conscious of the fact that over a substantial time in the historical period referred to by the noble Lord, Lord Bew, the United Kingdom Parliament and Government were less involved in that part of the United Kingdom than might have been advisable, and things went awry.

It does not seem to me that we have learnt from that. Indeed, some indications over the past two or three years are that people on this side of the water, relieved to some extent that Northern Ireland is less in the headlines than it was for 20 or 30 years, are just hoping that everything will go on all right. The noble Lord, Lord Kilclooney, has rung a warning bell that maybe things need attention, and I think he is right on that score. I have heard no demand in Northern Ireland for the issues referred to in this amendment or the next to be changed, so I am a little puzzled why these propositions have come forward in the first place. If they do proceed, they must be addressed properly.

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I have two concerns. First, while I accord entirely with the positive remarks of the noble Lords, Lord Empey and Lord Bew, about the Northern Ireland Civil Service, and from my positive experience in most circumstances over some years, nevertheless, particularly as I was trying to get the Assembly up and running, it became apparent that many of the more senior civil servants were operating off a kind of Civil Service rulebook from 20 or 30 years before. They really had not kept up with the kind of developments of Civil Service culture on this side of the water. There was nothing malign about it but it seemed that things took rather a long time to get across the Irish Sea in terms of cultural change. So, one of my concerns is that if we simply offload and do not put appropriate rules in place, those cultural changes that take place on this side of the water may not be picked up as quickly back at home, and I do not want to see that.

Secondly, when appointing senior civil servants it is suggested that the Civil Service as a whole, and the basis on which it recruits, is entirely a devolved matter. That is clearly legally true. However, I ask my noble friend to consider—she may not be able to respond immediately—whether, if it became apparent that the merit principle did not apply and proper recruitment was not happening in Northern Ireland, would that not be a matter of concern to this Parliament? If it became apparent that there was discrimination, inappropriate appointments were being made or that the merit principle was not the key principle, is it seriously being suggested that this Parliament would have no locus, interest or legitimate concern, and that the Secretary of State who was responsible for negotiating the resources that those civil servants would spend, and who might have a legitimate concern for the propriety of appointments, could say nothing about it? I am not entirely persuaded that that argument stands up. I do not necessarily say that we would ever get to that position but if we talk ourselves into the notion that this Parliament and the Government have no say in the overwhelming majority affairs in Northern Ireland, that is a recipe for neglect, benign or otherwise. I do not want to contribute to that.

I support the amendment not only because, technically, I think it is important, and historically it is appropriate, but because it gives us the opportunity again—as the noble Lord, Lord Empey, said, they do not come by too often—to raise the issue of Northern Ireland and the responsibility of this place and the Government here on what is a devolved institution, not an independent one.

4.15 pm

Lord Butler of Brockwell (CB): My Lords, in Committee the Minister sought to reassure me about why the opportunity was not being taken in this Bill to introduce the defences of Civil Service impartiality in Northern Ireland that exist for the rest of the United Kingdom under the 2010 Act. She said:

“It is the Government’s intention that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exists for England”.—[Official Report, 3/2/2014; col. 36.]

I take that to mean that that statutory enforcement would be introduced before devolution takes place. Can the Minister explain how that is to be done? Since

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the only further legislative move that is necessary before devolution takes place is a statutory instrument introducing it, is that the means by which she says the statutory defence of Civil Service impartiality will be introduced? That is my first question.

My second point is the reason why I support this amendment now. If and when that statutory instrument comes before the House, we will have a chance to vote only for or against the whole statutory instrument. That is a less satisfactory means for the House to deal with it than if we were able to debate this sort of amendment to the Bill before it comes into force.

Lord Lester of Herne Hill (LD): My Lords, I was not intending to take part in the discussion of this part of the Bill, but I would be grateful if my noble friend the Minister could clarify whether the existing legal regime in Northern Ireland forbids any form of discrimination within or by the Civil Service. It was my understanding that that was the position under the Northern Ireland Act as it stands. I know that in Northern Ireland there is some backwardness in amending equality law. It still has not, as we have done, produced a single Equality Act. That is most regrettable. It is true that it was Labour that first sought to initiate that reform. But in terms of the Civil Service and public administration, I understood that not only in common law but under the Northern Ireland Act any form of arbitrary discrimination, direct or indirect, would be unlawful. I would be very grateful if that can be clarified.

Baroness Smith of Basildon (Lab): My Lords, I suspect that the noble Baroness has a sense from the tone of this debate, as in Committee, of how strongly your Lordships’ House feels on this issue. The noble Lord, Lord Alderdice, made the point that we have devolution, not disengagement, and there is a responsibility here for your Lordships’ House.

The noble Lords, Lord Alderdice and Lord Bew, made the point about the differences—not just cultural but practical—between the Northern Ireland Civil Service and the Westminster Civil Service. As a Northern Ireland Minister, I was struck by the far higher profile that senior civil servants have in Northern Ireland than they do here in GB. This is partly because, particularly when the Assembly has been suspended or there have been different governance arrangements, it has often been a civil servant who has undertaken the role that Ministers have here in defending or promoting policies and engaging with the public. So the difference is cultural and practical.

The timing of the Minister’s letter on this issue to noble Lords, dated yesterday and which I received today, is rather unfortunate. I appreciate that we have just had a recess, but it would have been helpful to have had the letter earlier; it may well have informed more of the debate today and the amendment that is being put forward.

There are a couple of points in the Minister’s letter on which I would like some clarification. I think that there is some confusion about what has been devolved and what is excepted. In her letter, she mentioned the debate in Committee and said that,

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“many of the points made in debate related to the impartiality of the Northern Ireland Civil Service as a whole, which is of course a transferred matter”.

But the reason why there was a debate around impartiality was that we were discussing the role of the Northern Ireland Civil Service Commission, which is not an excepted matter. It was the role of the commission that brought about that debate. I think that people fully understand that the Northern Ireland Civil Service is devolved, but it is the role of the commission and its responsibility in ensuring the independence and impartiality of the Civil Service.

The point of the amendment and the whole tone of the debate is that, when the Northern Ireland Civil Service Commission is transferred, it is with the statutory understanding that it retains its remit for ensuring impartiality in appointments to the Northern Ireland Civil Service. I do not think that there was any misunderstanding in the debate in your Lordships’ House about what was transferred or excepted, but the reassurance was required, which was not really explicit enough in the Committee debate, that before being a devolved organisation there would be statutory protection on its remit for impartiality.

The Minister said in her letter that there would be further parliamentary scrutiny in both Houses, but the point made by the noble Lord, Lord Butler, is relevant here—it would be secondary legislation. But she also says that she intends to bring forward an amendment at Third Reading. I think that it is a great shame that we do not have the amendment before us today, because it would have been helpful to your Lordships’ House to be able to discuss it today. What we will seek from her today is to understand exactly what that amendment would say. If the earliest time we see that amendment is at Third Reading, it is rather late in the day, and I am disappointed that we do not have that government amendment before us today. If she could clarify exactly what it will say and what the process of debate and vote will be, that would be extremely helpful to your Lordships’ House and might allay some concerns. I hope that she is able do that—but, to put it on record again, it would have been helpful to have that amendment today.

Lord Brooke of Sutton Mandeville (Con): My Lords, I mean no disrespect to the shadow spokesman for the Opposition in speaking immediately after her. I hesitated to speak in the debate because I had played no part whatever in the proceedings so far, but I detected some mild anxiety in the exchanges between the government Front Bench and the advisers behind me. Therefore, I reckoned that uttering for a moment might provide enough time for any matters of that sort to be resolved with total confidence.

Like many in your Lordships’ House, I was alerted to this problem by the original letter expressing concern about the difference between Northern Ireland and the rest of the kingdom at the moment in these regards. For reasons that are in no remote sense the responsibility or fault of the Minister, I was unable to attend any of the briefing meetings that she very generously provided for people interested in this Bill. It is possible, because I have not taken any part, that I have not received correspondence that may have come to other noble Lords.

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Having listened to the debate this afternoon and read the debate that occurred in Committee, I have a sense of unease. I do not have a sense of confidence that all is well. We are rather late in the proceedings of this Bill to be dealing with these sorts of concerns. I hope that my noble friend the Minister will be able to give a significantly clearer position of exactly where we are and why at this particular moment.

Baroness Randerson: My Lords, I thank the noble Lord for his amendment. I know from Committee, and this afternoon, that this issue gives rise to considerable debate, in which of course there is very wide interest. I am grateful to the noble Lord for bringing the matter back on Report.

The noble Baroness, Lady Smith, criticised the timing of my letter. My letter was dependent on knowing on which aspects I had not been able to satisfy noble Lords following the debate in Committee. There were a number of other issues of debate that have not come back to us because clearly the debate produced a satisfactory response to what I had said. I was therefore picking up those issues which had been raised in amendments by noble Lords or which had been raised with me directly in that noble Lords had told me that they intended to table amendments on those issues. Therefore, having got a picture of what noble Lords were interested in and concerned about, I wrote in the hope that, by giving some advance notice, I would enable your Lordships to prepare your points for debate with an eye to what I was planning.

Returning to the points made this afternoon, noble Lords will be aware that this amendment is the same amendment that the noble Lord tabled in Committee. As I outlined then, while we have much sympathy with the concerns that underlie it, to which the noble Lord, Lord Brooke, has just referred, the Government cannot accept it; first, on the basis that it is technically problematic; and, secondly, because it will pre-empt a public consultation on the future devolution of the Civil Service Commissioners.

It is worth emphasising again that Clause 10 is concerned only with the appointment of the Civil Service Commissioners and not the wider Civil Service. There have been a number of references today, as there were in the previous debate in Committee, to the issue of the Civil Service as a whole. That is, however, a devolved issue, and therefore it is important that we bear in mind that we are talking only about the appointment of the Civil Service Commissioners.

Clause 10 does not change the current procedure for the appointment of Civil Service Commissioners for Northern Ireland. Appointments are currently an excepted matter, and the Bill proposes to make them a reserved matter, as is currently the case with the commissioners’ functions and procedures. But the Bill opens the possibility of responsibility for the appointment of the commissioners and their functions and procedures to be devolved at a later stage.

I recognise that noble Lords have concerns that the principle of appointments to the Northern Ireland Civil Service should be made on merit and through open and fair competition, and that this should be protected, as is the case with the Home Civil Service

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here. In Committee I made it clear that the Government are certainly open to the possibility of new statutory safeguards being put in place in the context of devolution. But as I indicated previously, attempting to write them in now would pre-empt a consultation on the future devolution of the commissioners, not least in Northern Ireland itself.

In any event, we do not have the time to put in place provision on the complex issues involved during the remaining stages of this Bill. Some of these matters, as I have said, are anyway a devolved responsibility on which we should not legislate without the consent of the Northern Ireland Assembly. It is unnecessary to make such provision at present because the House, along with another place, would have the final say over whether devolution should take place when an order to that effect was proposed.

On the point made by the noble Lord, Lord Butler, about the opportunities for the House to vote on a statutory instrument prior to devolution and that it would be a yes or no vote, the process for this is that the Secretary of State would bring an Order in Council to the House and the House can decide whether there are sufficient safeguards in place. If there are not, presumably the House would vote against that order.

4.30 pm

Lord Butler of Brockwell: I am grateful to the noble Baroness but I am afraid that she is not assuaging my concerns. In Committee, she gave me a precise undertaking. Today she has said that the Government were open to the idea of introducing the same kind of statutory safeguards for the Northern Ireland Civil Service as exist in the rest of the United Kingdom. In Committee she went much further than that and said that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exist for England. Is that going to happen before devolution or not?

Baroness Randerson: I hope to come to that in the latter part of my response. I was attempting to respond to the noble Lord, Lord Butler, on the specific issue of the process. Prior to the intervention I was saying that the House would have the final say on whether devolution should take place when an order to that effect was proposed. However, in responding to the comment of the noble Lord, Lord Butler, I should make it clear again that the Government are committed to protecting the independence of the Civil Service Commissioners and that we fully understand the concerns expressed about the future independence of the Northern Ireland Civil Service.

We recognise the significant and important role played by the Civil Service in Northern Ireland and, in the light of the concerns expressed, the Government propose to bring forward an amendment at Third Reading which would require the Secretary of State to lay a report before both Houses on the independence of the Northern Ireland Civil Service prior to bringing a devolution order. In her report the Secretary of State will be required to set out her view of the effect of devolution on the principle that persons should be

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selected for appointment to the Northern Ireland Civil Service on merit and on the basis of fair and open competition. That approach flags up the importance your Lordships attach to the question. We would wish the House to be reminded of that at a later date when and if a devolution order is brought forward.

The noble Lord, Lord Lester, asked whether discrimination is possible at this point in time in the Civil Service. There are extensive safeguards in Northern Ireland law and in the 1998 Act against discrimination in employment and, more generally, against discrimination by public authorities. I am sure that on this issue it would be more significant if I responded to the noble Lord in detail, possibly by letter, which I could place in the Library.

Lord Lester of Herne Hill: I am extremely grateful to my noble friend for her reassurance. I want to make it clear that my understanding, as a matter of law, is that if the commission were not to recruit on merit, on the basis of fair and open competition, that would already be unlawful both by statute and common law. The House may need that reassurance in considering whether the proposal now being made, for a report in the future, would be sufficient safeguard against abuse. If the Minister finds it more convenient to confirm that in writing, I would be grateful for that.

Baroness Randerson: As an issue of principle, my understanding is that that is the situation. However, in order that noble Lords might understand it in more detail, I will ensure that a letter is sent to my noble friend and a copy placed in the Library in order that we can make the current situation clear. As I listened to this debate and read the Hansard report of our previous one, it became clear that this is a complex issue in which we are, in practice, moving between the appointment of the Civil Service Commissioners on a fair, equal and open basis and the standards by which we would expect the Civil Service in Northern Ireland to operate. Some of these issues are devolved but it is important to be clear about which safeguards are already in place, at which level, and which points are devolved. I give way to the noble Baroness.

Baroness Smith of Basildon: I am grateful to the noble Baroness. She is trying to be very clear and I wish I could be equally clear at this point. The noble Baroness used two phrases that give me concern. At some points she talked about the independence of appointments to the Northern Ireland Civil Service Commission but in her letter, and at other times, she referred to the independence and impartiality of appointments to the Northern Ireland Civil Service for which the commission is, at some levels, responsible. That is where there is some confusion.

We are just a few days away from Third Reading and I would be very concerned if an amendment were tabled quite late in the day and the only discussion we had was on the Floor of your Lordships’ House. Would it be possible for the Minister, before tabling the government amendment at Third Reading, to discuss it with noble Lords who have raised concerns to

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ensure that they are content with its wording and feel that it does what they are asking for it to do? The noble Lord, Lord Brooke, is quite right. We are very late in the day to be at this stage with the matter not resolved. It would be very helpful if the Minister could agree to circulate the amendment and discuss it with noble Lords prior Third Reading.

Baroness Randerson: One our problems is that the Bill refers to the appointment of Civil Service Commissioners but the amendment goes beyond that because, as has been pointed out, this is a miscellaneous provisions Bill and things are put into it which add to its scope. In attempting to respond to the debate, we have all been discussing the qualities of the Civil Service in Northern Ireland—its free and open appointment and independence. We have therefore been ranging well beyond the point in the Bill. I am absolutely happy to organise a meeting with noble Lords who are concerned about this issue. It is essential to have a full discussion of any proposed amendment and ensure, as far as possible, that noble Lords are satisfied with the direction of the amendment.

As the noble Baroness has pointed out, there is an issue with timing. We have Third Reading next week so it is essential that we move on under a realistic timetable. The Government are absolutely committed to having public consultation before making fundamental changes to the appointment of the Civil Service Commissioners. We are not considering devolution of anything without wide public consultation and the agreement of the Assembly. We have a relatively limited period of time in which to produce an amendment that works within those parameters.

Lord Alderdice: I hesitate to intervene, but will my noble friend clarify something else? She talked about the importance of public consultation. I do not ask her to clarify this now, but perhaps she could do so in writing before the Bill’s next stage. The noble Baroness on the Opposition Front Bench said that culturally and socially there is a difference in the roles of the heads of the Civil Service departments in Northern Ireland. It is my recollection that there is a legal and constitutional difference from this part of the world as well. I recollect that the heads of Northern Ireland government departments are the civil servants, not the Ministers, which is a different position from that in the rest of the United Kingdom. I am not certain that all noble Lords are aware of the fact that it is a quite different position. Therefore, sensitivities that some of us have on these matters are all the more acute. I see my noble friend Lord Trimble nodding his head, and that ought to be confirmation sufficient for me, but I ask the Minister to confirm between now and the next stage precisely what is the position and, in particular, the status of heads of department as civil servants.

Baroness Randerson: My noble friend is correct in his general point, which is that the Civil Service in Northern Ireland has a different status from that in the rest of the country. The situation changed in 2010, when additional safeguards were introduced for the rest of the country.

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I suggest that the best way in which I can deal with the detailed approach for which my noble friend is asking is to add it to the letter that I originally said that I would write to the noble Lord, Lord Lester, because it is very much in the same field and at the same level of detail. Then we can have the precise legal and historical background to the different situation that exists for the Civil Service in Northern Ireland. My noble friend makes an important point that we are looking historically at a different situation.

I draw your Lordships’ attention to my proposal of an amendment that the Secretary of State should bring forward a report. I think that our approach flags up the importance that your Lordships clearly attach to this very important question. Requiring a report will feed back into the consultation process that we have committed to undertake on the question of whether the responsibility should be devolved and in which circumstances. I hope that your Lordships will agree that such an amendment goes much further than the current clause. We will of course return to the detail of these amendments. It is obvious that we are going to have ongoing discussion on this and we will return to it at Third Reading. I hope that this will provide the noble Lord with the necessary assurances and that he will consider withdrawing his amendment.

4.45 pm

Lord Empey: My Lords, when this amendment was tabled, I thought it was going to be a fairly simple, straightforward matter—but as very often happens, that has not proved to be the case at all.

The Northern Ireland Assembly has not asked for any powers to be devolved with regard to the Civil Service Commissioners. Indeed, as we look at the next amendment, it has not asked for any of those powers to be devolved either. Contrary to the rumours, the people on the Newtownards Road do not speak of little else. My point is that this proposal has come from the Government of their own volition. It has not been sought. I have never heard anybody raise the issue at all.

The noble Lord, Lord Brooke, referred to the letter that some of us received in January from the chief commissioner. If I may be permitted to quote a little from it, it says:

“We have a similar role to that of the UK Civil Service Commission chaired by Sir David Normington, which regulates appointments to the Home and Diplomatic Civil Service. However, unlike Sir David’s Commission, the Northern Ireland Commissioners do not have the benefit of formal legislative provisions”.

It goes on further:

“Rather, our role continues to be governed by a Prerogative Order in Council”.

The noble Baroness is suggesting new proposals. We know that there is a clash between what is devolved and what is not devolved, but what is not devolved is currently excepted. As the noble Lord, Lord Alderdice, said, a number of issues were deliberately left as excepted issues because they were potentially so sensitive. They went to the core of areas where people felt that things had not been well handled in the past, and it would be better for the long term to leave them to the one side.

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The other point to bear in mind about the Civil Service in Northern Ireland is that the statutory role, function and power lies with the department, not the Minister. There is a complete difference. If the Minister is not there for whatever reason, the department can continue to apply policy that has already been decided. The law states that the Minister directs and controls the department, but in the absence of the Minister, the department itself has the power to continue implementing policy. That is a very distinct difference.

Lord Trimble: I must apologise as my memory is not clear enough on whether the noble Lord was present at a discussion I am going to mention. However, he will recall the time when, for political reasons which are not relevant to this point, I had resigned and I was proposing that my other Ministers would also resign. There was a discussion of senior officials about what we do in this situation. I cherish the comment made by someone who I will not identify, who said, “We must be very careful because we don’t want people to find out that we can take decisions without Ministers”.

Lord Empey: The noble Lord is perfectly correct. I recall being at a number of meetings where that issue was discussed. The law states that the Minister directs and controls the department when the Minister is there, but the power is vested in the department. That is why this is such a sensitive issue. We are in the House of Lords but the department Permanent Secretaries were known as the six barons in the direct rule years, because it was to them that people turned for resources and other things. There is a very distinct difference, and that is why this is such a sensitive issue. As I have said, the Civil Service Commissioners themselves clearly have anxieties. The Assembly has not asked for this but the Government, for their own reasons, have decided to bring it forward. If they were prepared to drop it, I am quite sure that Members here would be more than content. However, in view of what the Minister has said and in view of her letter, and the fact that she intends to hold further consultations, I believe it appropriate that I now beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Clause 11: Northern Ireland Human Rights Commission

Amendment 2A

Moved by Lord Alderdice

2A: Clause 11, page 9, line 8, at end insert—

“( ) In subsection (2) of section 68 of the Northern Ireland Act 1998 (The Northern Ireland Human Rights Commission), for “approved by the Secretary of State” substitute “nominated by the First Minister and Deputy First Minister and confirmed by a vote of the Northern Ireland Assembly”.

( ) In subsection (3) of section 68 of that Act, for “appointments” substitute “nominations”.

( ) In subsection (3) of section 68 of that Act, for “Secretary of State” substitute “First Minister and Deputy First Minister”.

( ) In subsection (2) of section 69 of the Northern Ireland Act 1998 (The Commission’s functions), for “Secretary of State” substitute “the Northern Ireland Assembly”.

( ) In subsection (3) of section 69 of that Act, for “Secretary of State and the Executive Committee of the” substitute “Northern Ireland”.”

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Lord Alderdice: My Lords, this amendment follows on in a sense from many of the principles of the previous amendment, but there are also some significant differences. The question of human rights and how to maintain them has been a long-standing interest and concern of mine. My first formal involvement in the issue occurred in my late teens and early 20s when I was a youth representative in the human rights commission of the Irish churches. However, I have never been a human rights fundamentalist. I remember one of the senior clergy in that commission describing the question of human rights in a way that I have always found helpful. He said that “human rights” is an important and helpful disturbing notion. In other words, it is something which should always make us ask certain kinds of questions, but on its own it does not determine all human behaviour—in particular, the balance of human rights and human responsibilities.

As I say, human rights has always been a matter of concern to me. When I got involved with Liberal International, which is the worldwide organisation of liberal political parties, I found that its only standing committee—apart from the bureau, executive and congress—is the one on human rights. I got involved with that committee and became its chairman, and I was the chairman for some time. As I tried to help that organisation move forward, I thought that it would be a good idea to consult an old friend and colleague from Ireland, Mary Robinson, who at that point was the High Commissioner for Human Rights at the United Nations. When I went to discuss this in her office in Geneva she said, “If you’ve got an issue and you have a campaign, and if you are successful in your aims, you will have achieved success in one campaign; but if you can put in place a structure or an organisation, or an institution which has longevity and good people in it, then you will address not just one issue but one issue after another”. She encouraged me to encourage my colleagues in different parts of the world to set up parliamentary human rights committees, ombudsmen and, importantly, independent human rights commissions and institutions, and I spent quite a number of years trying to do that.

However, it is not just about human rights commissions but about independent human rights commissions. In particular, these commissions need to have an independence from the Executive in those countries. It is enough that they frequently find themselves dependent on the Executive for funding; it is even worse if they are wholly dependent for their nomination and appointment on the Executive. One of my concerns about this proposal to open up devolution of the Northern Ireland Human Rights Commission, with appointments made by the First Minister and Deputy First Minister, is that it would undermine this question of independence. I am puzzled about it because the other area of devolution that we are conscious of is not just Wales—with respect to my noble friend on the Front Bench—but also Scotland. What is the situation in Scotland? The Human Rights Commission there is responsible to the Scottish Parliament, not to the Scottish Government or Executive. I was completely unsurprised to find that when the Northern Ireland Human Rights Commission was asked to respond to the Northern Ireland Affairs Committee in another

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place, it said, “If the Government want to move ahead on this, that is all very good. But it would conform much more closely to the Belgrade principles if it were accountable to the Assembly and not to the Northern Ireland Executive”.

I have therefore tabled this amendment. It is not a complete amendment or an amendment which I intend to press—it is entirely a probing amendment. I urge colleagues not to get involved in finding flaws with it because that would be much too easy a job. I am simply setting down the principle that, if and when the Government move forward with this proposal—and perhaps my noble friend can even give me some encouragement that at Third Reading there might be an amendment that will address this question—the Northern Ireland Assembly is the key body to which the Human Rights Commission is accountable, and the Assembly and not just the Executive should have a say in the appointment of Northern Ireland Human Rights Commission members and chair. In practice, it may well be the Office of the First Minister and Deputy First Minister that makes nominations. In political terms, it is hugely important that the members are accountable to the Assembly, perhaps with a vote for their appointment and the tabling of an annual report to it.

There are many ways in which the Human Rights Commission already involves itself with the Assembly; for example, it advises the Speaker, when he requests it, on the human rights compliance of legislation before it comes to First Reading and before it leaves the Assembly. That is not the issue. It is the question of principle. If it is to be and to remain an independent body there should be a clear significance of that by it being accountable to the Assembly and not just to the Executive. I beg to move.

Lord Lester of Herne Hill: My Lords, I support the object of my noble friend’s amendment and I want to explain why. I have practical experience in Northern Ireland. Between 1975 and 1977 I had the privilege of being the special adviser to what was then called the Standing Advisory Commission on Human Rights in Northern Ireland. At that stage the commission was examining the highly controversial question of whether the European human rights convention should be given direct effect in UK law or in Northern Ireland law. The Northern Ireland Office, like others within that Government, was strongly opposed to the idea of incorporation at that time. I regret that there was undoubted interference behind the scenes with the commission by the Northern Ireland Office. A member of the Executive was present throughout and reported back to them. At one stage there was an attempt to remove me because they saw the way that the body was going, and when we produced the report in November 1977 three members of the commission who had been—in my view—on the right side were removed summarily in a way that I thought was quite wrong.

I agree with my noble friend about the great importance of the independence of the commission from the Executive, and I wish that this was not a devolved function at all. I think that the commission would be better protected if it was not being devolved. However, given that it is to be devolved, and in accordance with

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the Paris principles and the Belgrade principles, it is vitally important that it is seen to be independent and properly buttressed. In supporting the amendment, I do not know whether the particular solution would be the right one because I can envisage a situation in which the Assembly might be guilty of improper interference. However, I am certain that the independence of this body is vital. The Joint Committee on Human Rights has been in frequent touch with the Human Rights Commission in Northern Ireland and we have been very concerned about the need for its independence to be properly protected.

Baroness O'Loan (CB): My Lords, I had not intended to speak to this amendment. I have not been present in previous discussions on this Bill in your Lordships’ House. I simply wish to endorse all that the noble Lords, Lord Alderdice and Lord Lester, have said about the importance of the independence of the Northern Ireland Human Rights Commission. The separation of that commission from the Executive is profoundly important not least because it gives assurance to people that the commission itself will act independently. We still have very profound constitutional issues at stake in Northern Ireland and I urge your Lordships to support the noble Lord, Lord Alderdice, in this matter.

5 pm

Lord Empey: My Lords, I have great sympathy with the point that the noble Lord, Lord Alderdice, has made. It is another of these proposals that have not been asked for but have been arbitrarily put forward. One could almost have the sense in the back of one’s mind that the department was pushing these things out just to get them off its desk and out of its file and pass them on, and that would be a mistake. As the noble Lord said at the outset of his remarks today, certain issues were deliberately not included, and this is one of them.

We know that the Executive and the Office of the First Minister and Deputy First Minister have had difficulties with the appointment of other commissioners. It set out to appoint one victims’ commissioner, I think it was, but after a prolonged period of time we ended up with four. At this stage, there is not a good track record.

My own personal view is that matters should be left alone. I do not know where the demand is for this; it is not there. To pile more pressure on the Office of the First Minister and Deputy First Minister over other sensitive issues at this time is not particularly helpful, to be honest. As it is, that office is struggling to get decisions out on a whole range of issues, and I cannot see any rational reason why we would deliberately add to that, particularly when no one has sought this power. It is almost the inverse of the argument that was being made in respect of opposition: we do not want to impose something, but here we are shovelling things out that have not even been asked for. The best solution to this would be to leave well alone.

I had the privilege of serving on SACHR for a couple of years. It was a wonderful forum at times when things were really difficult. Let’s face it, it is very difficult to separate the politics from the appointments, and especially to separate the two from the budget.

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These are all things that come together. You know what people say: you get someone in the long grass. It might not be straight through the front door but there are other ways of doing it. I support the amendment and my personal opinion is that the Government should leave this alone; it is not worth the risk.

Lord McAvoy: My Lords, I understand the concerns that have led the noble Lord, Lord Alderdice, to table this amendment. The discussion of human rights has played an important part in the establishment of devolved structures within Northern Ireland. Today the Northern Ireland Human Rights Commission continues to play a key role in maintaining these institutions. Throughout the Assembly’s legislative process, the Human Rights Commission can intervene at any point to prevent the governing parties from creating legislation that does not conform to proper international standards of human rights. Given the importance of the commission to the legislative process, there is an understandable need to preserve its independence and impartiality.

The noble Lord, Lord Kilclooney, echoed by the noble Lord, Lord Empey, mentioned that there seems to be an air of lack of faith in the Assembly in Northern Ireland. There is certainly anecdotal evidence in conversations to justify that complaint, or at least to make a valid one. I urge all representatives from Northern Ireland and noble Lords and noble Baronesses here to use what influence they can to try to move things along. If the public start to lose faith in the Assembly, we are all in trouble, so we should all be trying to inspire faith in it. The noble Lord, Lord Kilclooney, was absolutely right to refer to that.

In Northern Ireland, the devolution of the relevant power to the Assembly would appear to offer a firm guarantee of the commission’s continued independence. While recognising the valid intent of the amendment, I think it would be a mistake to accept it at this time. As acknowledged by the noble Lord, Lord Alderdice, a very valuable service is being performed by having this discussion.

The actual powers concerning the Human Rights Commission have not yet been devolved. Prior to the actual devolution, the Government have committed to carrying out extensive consultation and encouraging debate within Northern Ireland. It will not be until after this that the actual form that the devolution of these powers will take will be decided. Only then will it potentially be necessary to consider an amendment such as this.

Everyone agrees about the fundamental importance of human rights to the exercise of devolved government in Northern Ireland. It is also agreed that this is ensured through the independence of the Human Rights Commission and the impartial nature of its work. The preservation of this impartiality will be foremost in discussion when we come to actually devolve these powers. However, since the precise model for the devolution of these powers has not yet been agreed—and it will only be agreed after consultation within Northern Ireland, which will hopefully include a large say for the public—I feel that at this time the amendment has been quite rightly described as a probing amendment and the Official Opposition cannot support it.

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The noble Lord, Lord Alderdice, made a strong case that the devolution of these responsibilities should be to the Assembly, as is the case in Scotland. The point was made in Committee that the impartiality and independence of the commission is crucial and must be both retained and maintained. Therefore, we welcome the Government’s commitment to ensure that proper consultation and debate on this takes place in Northern Ireland before a vote is taken to devolve these responsibilities. I conclude by thanking once again the noble Lord, Lord Alderdice, for the service that he has provided the House.

Baroness Randerson: My Lords, I hear strong echoes in this debate of the concerns raised in the previous debate. The Government have a similar potential solution to assuage the concerns of noble Lords. I am grateful to my noble friend for tabling this amendment and I understand his concerns in relation to the independence of the Northern Ireland Human Rights Commission should it be devolved in future. I make that point to my noble friend Lord Lester: it is by no means a foregone conclusion that the Human Rights Commission will be devolved in the future. It will be subject, of course, to consultation and discussion.

Indeed, let me say at once that we share the concerns that several noble Lords have expressed today and we are clear that they must be addressed before devolution. For that reason we will propose amendments at Third Reading that will ensure that they are addressed, albeit not quite in the way suggested in my noble friend’s amendment. It is worth reminding the House that Clause 11 of the Bill moves certain functions relating to the commission from the excepted to the reserved category.

The Government made a commitment in their response to the Northern Ireland Affairs Committee’s pre-legislative scrutiny report on the draft version of this Bill to consult formally on any future devolution of responsibilities relating to the commission and the other arm’s-length bodies discussed, prior to any devolution taking place. I want to reiterate that commitment today. The concerns expressed in the debates here will obviously inform that consultation. We will also ensure that the commission retains its responsibility for the scrutiny of non-devolved matters relating to Northern Ireland—such as national security and terrorism—in the event of any future devolution of responsibilities for the institution.

My noble friend raised the issue of the Belgrade and Paris principles. The Government are fully aware of the huge significance of those principles and we are absolutely committed to the idea that they are fundamental to the future independence of the Human Rights Commission. Nothing we do in future will challenge that. We know the importance that the commission attaches to the high regard in which it is held internationally.

At this stage we are not considering in detail the model for how eventual devolution will look. The Bill would simply move certain policy areas from the excepted to the reserved field so that devolution could take place by order later. That would require a vote in the Assembly to accept the new powers. Ultimately it would be for the devolved institutions to determine

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the structures and lines of accountability they wanted in operation. However, it seems obvious that if there are already models in operation which seem to work well they could provide a suitable starting point when these issues are considered in detail. In Scotland, for example, the devolution is to the Scottish Parliament, which has proved to be a very successful model.

As I said, the model of devolution needs to be determined in the light of the public consultation. There are many detailed questions to be addressed about the devolved arrangements, if it is eventually decided to devolve. We obviously have to take the views of the Human Rights Commission itself into account, those of others in the community, those of the receiving institutions, the Assembly and the Executive. Your Lordships will have an opportunity to debate those detailed arrangements at a later stage. Any proposal to devolve requires a vote here, as well as in another place and in the Assembly. However, we believe that it would be right to put on record now the view of the House that those questions require close scrutiny.

The noble Lord, Lord Empey, expressed the view several times during the debate today and previously that the Government are deliberately pushing things off the desk. I say to him and to others who go along with his viewpoint that there is another way of looking at this. The Government see this as part of building a broader base for devolution in Northern Ireland. As the noble Lord, Lord McAvoy, said, it is part of moving things on in Northern Ireland and creating a more normal political model. It is hoped that by broadening the base of devolution in Northern Ireland it will be made firmer and stronger as a result. However, to noble Lords who expressed concerns about this, I acknowledge that the Government are very sensitive to the issues of timing and very much aware that the progress of devolution in Northern Ireland is not always as trouble-free and speedy as we would wish to see.

In recognition of the concerns expressed about that issue, the Government intend to put forward an amendment at Third Reading which makes clear that the future independence of the commission is something that needs to be guaranteed at the point of eventual devolution. Accordingly, the amendment will propose a requirement on the Secretary of State to lay a report in both Houses prior to bringing forward a devolution order. The Secretary of State would be required to set out in her report the effect of that devolution order on the commission’s independence.

We will of course return to this at Third Reading, but I hope that my noble friend is reassured that the Government take the matter seriously, and that he will be willing, as he has indicated, to withdraw his amendment.

5.15 pm

Lord Alderdice: My Lords, I am very grateful to my noble friend Lord Lester, the noble Baroness, Lady O’Loan, the noble Lords, Lord Empey and Lord McAvoy, and my noble friend the Minister for their very constructive and positive contributions. Noble Lords may recall that in Committee I spoke in opposition to the Question that Clause 11 stand part of the Bill, so I started from

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the same position as my noble friend Lord Lester and the noble Lord, Lord Empey, that “‘twere better it weren’t here at all in the first place”. That did not find favour.

I have therefore brought forward a probing amendment to encourage the Government to do the right thing, which is at least to ensure that if this comes forward there will be very clear requirements. I welcome the assurance—perhaps even reassurance—from my noble friend the Minister that there will be an amendment at Third Reading. However, she said that it will not be the same solution as the one that I propose. Let me just remind the House of some of the things that the Belgrade principles actually set out. They include the principles that:

“Parliaments should ensure the financial independence of NHRIs”—

national human rights institutions,

“by including in the founding law the relevant provisions”;


“NHRIs should submit to Parliaments a Strategic Plan and/or an Annual Programme of Activities”;


“Parliaments should take into account the Strategic Plan and/or Annual Programme of activities submitted by the NHRI while discussing budget proposals”;


“NHRIs should report directly to Parliament”,

not to the Executive; and that:

“NHRIs should submit to Parliament an annual report on activities, along with a summary of its accounts, and also report on the human rights situation in the country and on any other issue that is related to human rights”.

There is nothing about the Executive because it is about holding the Executive and others to account. The reference is to “Parliaments”.

The Belgrade principles are not something from the distant past; they were agreed in February 2012. NHRIs produced these principles along with academics from the United Kingdom, one of the 10 jurisdictions involved. It will not be good enough if we decide that these are good principles for other places but not for ourselves. I want to make it clear that, while reassurance will certainly be helped by a report from the Secretary of State, the problem about the approval of this House and another place, as was pointed out with regard to the previous amendment by the noble Lord, Lord Butler, is that it is a bit of a nuclear option. By the time it comes to the House, it is a question of voting yea or nay, and the House, quite properly, is very reserved about using that power. Therefore, it is either about sorting the matter out before it comes to this place or it is a real problem getting it sorted out.

I made it clear that this is a probing amendment and I look forward to the amendment that my noble friend will bring forward at Third Reading. But I should make it very clear that this is no marginal matter. The issue of human rights is a fundamental one in general terms, but in my part of the country it has very particular important resonances. Any sense of disengagement or diminution of the importance of such an issue by making it subject to the whims and wishes of the Executive would be a serious error. I find it difficult to see how it would fit with the Belgrade

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principles if it were not made accountable to the Northern Ireland Assembly, much as is the case in Scotland between the Human Rights Commission there and the Scottish Parliament. However, with those concerns and reservations, and with genuine appreciation of the efforts of my noble friend and the amendment which she promises us at Third Reading, I beg leave to withdraw the amendment.

Amendment 2A withdrawn.

Amendment 3

Moved by Lord Lexden

3: After Clause 25, insert the following new Clause—


(1) Section 17 of the Defamation Act 2013 (short title, extent and commencement) is amended as follows.

(2) In subsection (2), after “Wales” insert “and Northern Ireland”.”

Lord Lexden: My Lords, I brought forward this amendment in Committee. I am reintroducing it because of the immense importance of the issues that it seeks to address and because of the urgent need to make progress with regard to it in Northern Ireland. My interest in Northern Ireland is of very long standing, stemming from the days when I lived there while teaching at Queen’s University in Belfast in the 1970s.

On 1 January, a new Defamation Act came into effect in England and Wales. By common consent, it will confer great benefits. Those benefits were three years in the making, they have the full support of all three main political parties, they were subject to careful scrutiny by a Joint Committee of both Houses and a full public consultation took place across the whole United Kingdom. The new, widely welcomed libel law has perhaps been more carefully thought through than any other piece of legislation in recent years, and your Lordships will immediately think of many other pieces of legislation that could usefully have been thought through with the care given to the new Defamation Act.

There is practically universal agreement that the new law strikes the right balance between protecting individual reputations and upholding freedom of expression. The benefits of this major, far-reaching reform will be enjoyed fully throughout England and Wales but not in Northern Ireland. For the first time ever, Northern Ireland now has a different libel law—the old law, which belongs firmly in the past because it cannot provide properly for the needs of the present, let alone the future.

In this immensely important area of our law, which directly affects so many people and so many publications, Northern Ireland has been split from England and Wales. The union of our country has been weakened. A common jurisdiction has been divided into two—not after careful consideration of the effects of such a rupture but without any inquiry whatever into the consequences. Whereas the new law in force in England and Wales was prepared with great care, the old law has been retained in Northern Ireland without any explanation being offered by the Northern Ireland Executive, who are responsible for its retention there.

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The Executive do not even seem to have held a collective discussion on the matter, despite its importance. It was only through the persistence of journalists that it finally emerged last year that a single Minister was responsible for the Executive’s inaction because he had withdrawn a proposal that would have led to collective discussion in the Executive. Not a word of all this formally reached the Assembly, to which the Executive are accountable. It is an extraordinary state of affairs. I have the words of my old friend the noble Lord, Lord Kilclooney, about the danger of declining faith in the Assembly ringing in my ears.

The Northern Ireland Executive’s inaction is fraught with risk and peril for the community whom the Executive exist to serve. More than 6,000 people work in publishing and the broadcast media in this part of our country. Their jobs are now at risk. The costly hazards of the old law could drive out the media companies which provide those jobs. New investment by international companies at the cutting edge of the digital revolution—so badly needed to bring down unemployment and enlarge the Province’s shrunken private sector—will be seriously imperilled. The impact on ordinary people using the internet could be severe. The new defences to an action enshrined in the new law will not be available to our fellow countrymen and women in the Province. They could find themselves facing huge bills, long-running court cases and financial ruin for what they believe to be a piece of harmless content on the web.

Consider, too, the position of those who might have to use the law to protect their reputation. Fortunately, it is rare that people have to take out injunctions on grounds of a potential libel to protect their reputation, but it does happen and it can often mean the difference between protecting and destroying someone’s life. A man or a woman in Northern Ireland faced with such a prospect would, in order to make an injunction work, now have to take one out in four jurisdictions under very different laws: one in Northern Ireland under the out-of-date common law; one covering England and Wales with a modern regime; one covering Scotland; and potentially one covering the Republic of Ireland, where the law is different again. Failure to do so would mean that the injunction is not worth the expensive paper on which it is written. Such a prospect, and the huge costs involved, would be beyond the ability of most people other than the super-rich. Therefore the action—or rather, inaction—of the Northern Ireland Executive is, in effect, not only exposing ordinary people to great risk but removing the ability of ordinary people to use the law to protect themselves.

The old libel law that the Northern Ireland Executive has retained without explanation can have literally fatal consequences. Last July a senior NHS cardiologist told a committee of the Northern Ireland Assembly that a large American company had used the old law to prosecute him and suppress his research evidence that revealed serious problems with one of its products, used to close holes in the heart. He told the committee that while he was gagged by the old law some patients who had been forced to have faulty heart devices surgically removed had died as a result. He said that

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Northern Ireland must ditch the old law to stop such outrageous instances of the suppression of freedom of speech.

Yet the Northern Ireland Executive ignore such powerful evidence of the need for change. All they have been prepared to do is to seek a review by the Northern Ireland Law Commission, but all the relevant information is in the public domain already. A review could take a very long time. The Executive should back the Private Member’s Bill introduced at Stormont by the Ulster Unionist leader, Mr Mike Nesbitt, to replace the discredited old law with the new one. That they have so far failed to do. Freedom of speech, human rights and the integrity of the law itself: those three fundamental elements of our democracy and our free society stand at the heart of the crisis—I do not think that that is too strong a word—that my amendment seeks to address.

This issue cannot be evaded by maintaining, as the Labour Front Bench has sought to do, that devolution removes from the Government and this Parliament the duty or the responsibility to take action. My amendment is about freedom of speech above all. While devolution is a core value of modern British constitutionalism and the Sewel convention is the central principle within our current devolutionary arrangements, freedom of speech is an even more fundamental value of our constitution.

In conclusion, I have three questions for the Government and I would be grateful for my noble friend’s comments. First, will the Government secure from the Northern Ireland Executive a clear, public explanation of their inaction, which they have so far failed to provide? Secondly, will the Government establish and place on public record what, if anything, the Northern Ireland Executive now intend belatedly to do? Thirdly, if the Executive prove unresponsive, what further action will the Government take? I beg to move.

Lord Lester of Herne Hill: My Lords, I was unable to be present for the earlier stages of the Bill, but I have read all the debates, including the discussion on 3 February about the amendment then moved by my noble friend Lord Lexden, with the powerful support of the noble Lords, Lord Bew, Lord Black of Brentwood and Lord Empey, and now moved again by my noble friend Lord Lexden, with my support and that of the noble Lords, Lord Black and Lord Pannick. I noted then the welcome support from the Minister for the aim of the amendment, even though she was unable to support the amendment itself.

I have a particular interest—I say this with some trepidation, as I sit opposite the noble Lord, Lord Carswell, in case what I am about to say in any way disturbs him—in that my experience as leading counsel for the Irish News in the Northern Ireland Court of Appeal in the Convery case brought home to me, as nothing else had, the importance of persuading Parliament to strike a fair balance between the right to protect a good reputation and the right to freedom of expression.

The Irish News was sued for libel for a review written by Caroline Workman, an experienced food critic. She was highly critical of the quality of the food, drink, staff and smoky atmosphere at the Belfast

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Italian restaurant, Goodfellas. The owner, Ciarnan Convery, claimed that the article was a hatchet job, and the jury agreed. After a lengthy trial, he was awarded £25,000 damages and four times that amount in legal costs. Caroline Workman was subjected to detailed and lengthy cross-examination about the accuracy of her article. The experience was so traumatic that she gave up her profession as a journalist. Everyone at the trial was confused about the difference between truth, fact and honest opinion. We succeeded in the appeal but the state of the common law remained unsatisfactory. That is one of the factors that caused me to think that it was about time Parliament intervened.

5.30 pm

I was therefore surprised to read a polemic by Mr Mick Hume in the Belfast Telegraph on 7 February under the headline:

“It may not be perfect but keep your oar out all the same”.

It continued:

“Northern Ireland’s libel law is an affront to freedom of expression. But the House of Lords should keep their fingers off plans to reform it”.

The article described the state of libel law in Northern Ireland as,

“an execrable affront to freedom of expression”,

but said that,

“it is none of the House of Lords’ business”.

Mr Hume is a British journalist and former editor of Living Marxism. He is also author of a book, There is No Such Thing as a Free Pressand We Need One More Than Ever, published in 2012 in response to the Leveson inquiry. It is a splendid polemic for the freedom of the press with which I largely agree. One might have expected Mr Hume to have welcomed the work done by the coalition Government, with support from the Opposition and Parliament, in scrutinising proposals to reform the common law of libel, which, as the noble Lord, Lord Lexden, explained, has historically applied to Northern Ireland as well as to England and Wales. As the noble Lord, Lord Lexden, said, that work was informed by wide public consultation. Newspaper editors, broadcasters and journalists all welcomed the Defamation Act 2014 that came into force on 1 January. Both Houses of Parliament include Northern Irish politicians. The Joint Committee on the Government’s draft Bill and my own Bill was chaired by none other than the noble Lord, Lord Mawhinney, and included the noble Lord, Lord Bew. It received evidence from right across the United Kingdom.

One might have expected the Northern Irish coalition of opposites—the Democratic Unionist Party and Sinn Fein, in particular—to have been keen to see the Defamation Act applied to Northern Ireland. The DUP is in favour of the union and Sinn Fein has good reason to support free speech. Years ago, I attempted unsuccessfully, with the noble Lord, Lord Pannick, to challenge the Home Secretary’s ban on Sinn Fein broadcasts. Alas, as the noble Lord, Lord Kilclooney, has said, there is a total political impasse in Northern Ireland, so one can expect nothing of this Government of opposites.

Free speech is the lifeblood of democracy. People are more ready to accept policies, decisions and ideas that go against them if they can seek to influence

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them. It is also a safety valve. It acts as a brake on the abuse of power by public officials, by exposing errors in governance and in the administration of justice. The press are public watchdogs—the eyes and ears of the public, informing them of matters of public interest and importance.

During the debate in Committee only the noble Lord, Lord McAvoy, shadow spokesman for Northern Ireland as well as Scotland, said that he was opposed to the amendment moved by the noble Lord, Lord Lexden. He said:

“We have devolution, and devolution is the principle that we have to go by”.—[Official Report, 3/2/2014; col. 70.]

That is not a very good principle: in this context it is flawed. Unlike in the United States, for example, we do not have a federal, overarching principle of free speech. In the United States, if the American Supreme Court says, as it has done, that the states of the union may not enact, nor may the common law declare, principles of libel law inconsistent with the First Amendment, all the states of the union and the courts must obey the federal rule.

Under the flawed devolution scheme, which is not federal, the only safeguards are the power of the Secretary of State to be able, under Section 26(2) of the Northern Ireland Act 1998, to require the Northern Ireland Government to take action because she thinks that it is necessary to comply with free speech under the European convention. There is a political override power in the flawed Northern Ireland Act that she could exercise, but she would no doubt hesitate long before doing so for fear of inflaming opposition.

Alternatively, it can in a particular case be left to the poor old courts—the Northern Ireland courts and, if necessary, the Supreme Court of the United Kingdom—to try to solve the following problem. What are they to do when a newspaper or other periodical is published across the United Kingdom and they find themselves confronted by an archaic, uncertain, unsatisfactory, chilling old common law of libel, of the kind that I exemplified in the Goodfellas restaurant case, applying to Northern Ireland, and meanwhile in England and Wales they find a modern, well balanced, new defamation code? What are the courts to do? It is unfair on the judiciary to leave it to solve the problem because Parliament will not solve it itself.

I understand why the Secretary of State is unwilling to use the power conferred in the Northern Ireland Act. But if freedom of speech is to be enjoyed in London and Cardiff to a greater extent than in Belfast—where the common law is unsuited, in another kind of example, to the internet—we have a ludicrous situation. This will lead to litigation, to which in principle I am opposed, even though my profession would no doubt be delighted by the opportunity for litigation.

The Minister may argue in her reply that the amendment of the noble Lord, Lord Lexden, would breach the Sewel convention. But that is just a convention. It is not enshrined in the Northern Ireland Act and has not been approved by Parliament. Parliament as a sovereign body retains full legal power to legislate on devolved matters. Normally the power would not be exercised in relation to a devolved matter without the consent of the Northern Ireland Assembly, but we are not dealing with a normal situation.

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Since the Secretary of State will not use the power given by the Northern Ireland Act to require legislation on defamation to comply with the convention, it seems to me—the Minister will correct me in her reply—that the only course left is for Parliament to pass this amendment, or for the Northern Ireland authorities to do what they are supposed to do, which is to exercise their public powers in accordance with freedom of speech and the right to protect a good reputation.

Almost 50 years ago, when Parliament was debating the Race Relations Bill in 1965, two Conservative MPs tried to persuade the then Government to include religious discrimination in the Bill and to apply it to Northern Ireland. The Home Secretary—I think that it was Sir Frank Soskice—explained that the Northern Ireland Government had opposed the application of the Bill. Robert Chichester-Clark, the then Member for Londonderry, claimed that the safeguards against religious discrimination in the Government of Ireland Act 1920 were, in his words, “completely adequate”. Another Ulster MP, Captain Orr, insisted that Parliament had,

“set up a subordinate Parliament representing the people of Northern Ireland. Surely that is the place to test the matter”.—[

Official Report

, Commons, 3/5/65; col. 971.]