Northern Ireland (Miscellaneous Provisions) Bill

Debate between Baroness Randerson and Lord Lester of Herne Hill

Tuesday 25th February 2014 Lords Chamber

[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 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.

--- Later in debate ---

[Baroness Randerson]

It has been said several times this afternoon—more times than I can count—that the Northern Ireland Executive have not given any explanation. Of course, the most important group to which the explanation is owed is the people of Northern Ireland.

The second question asked by the noble Lord was whether we would establish what the Executive intend to do. I repeat that it is for the Assembly and not the Government to hold the Executive to account, and it is for the Assembly to seek an explanation. That goes along with my comment that the people of Northern Ireland are those to whom the Executive should be explaining themselves in the first instance.

In response to the third question put by the noble Lord, Lord Lexden, we have of course set out to the Executive what we see as the benefits of the Act and we will continue to discuss the issue. When my noble friend Lord McNally was Minister for Justice, he wrote to the Executive commending the Act, and I am absolutely sure that the Executive will in due course become aware of our debate this afternoon.

Therefore, the Government have been active in encouraging the Executive to consider the need for change. Prior to the introduction of the Defamation Bill before Parliament, there was contact at official level to establish whether the Executive wished to seek the approval of the Assembly to a legislative consent Motion. Following completion of the Bill’s passage, as I said, my noble friend Lord McNally wrote commending it to the Executive.

[Lord Lester of Herne Hill]

My noble friend has emphasised the importance of the Law Commission in Northern Ireland. Can she correct my misunderstanding, if that is what it is? My understanding is that the Northern Ireland Law Commission consists of a part-time commissioner and a chief executive, and that is it. Am I wrong about that?

[Baroness Randerson]

I am not aware of the exact size of the Law Commission. However, I am aware that the Law Commission’s reputation is not affected by any issue regarding its size, in that it is clearly a body with a good reputation. If the commission is as small as my noble friend indicates, that might explain why it will take it some time to consider this issue. However, I am not able to give a precise answer to his question.

I wish to remind noble Lords that the civil law of defamation is of course a devolved matter, and under the Sewel convention decisions on whether legislation in transferred areas should apply to Northern Ireland usually fall to the devolved Administration. A number of noble Lords have set out why they believe the Government should consider breaching the Sewel convention. I urge them to consider the wider ramifications of doing so for our relations with all the devolved legislatures in the United Kingdom. I welcome the words of the noble and learned Lords, Lord Carswell and Lord Hope, in this regard. It is important that we respect devolution. It is not just in respect of Scotland that we should be wary of breaching the Sewel convention; I believe that it would be destabilising in Northern Ireland if we were to pick and choose which bits of devolution we decided to observe. My noble friend Lord Lester has eloquently explained the weaknesses of our non-federal system of devolution, but I urge noble Lords who are of the mind that we should breach the Sewel convention to look at this from the viewpoint of the nations of the UK. We should be considering what it looks like from Scotland, Wales and Northern Ireland if we pick and choose which aspects of devolution we observe.

Defamation Act 2013: Northern Ireland

Debate between Baroness Randerson and Lord Lester of Herne Hill

Thursday 27th June 2013 Grand Committee

[Baroness Randerson]

My Lords, I congratulate the noble Lord, Lord Lexden, on securing this debate and I thank all noble Lords who have spoken for their positive remarks on the merits of the Defamation Act, which was recently passed by Parliament. I can confirm that the Government are taking forward the necessary procedural steps to enable the Act to be brought into force in England and Wales by the end of the year.

As the Committee is aware, defamation, in common with other civil law issues, is a devolved area, so the law in Northern Ireland is a matter for the Northern Ireland Executive and Assembly. That theme has run throughout this debate, although I have detected a strong requirement from the noble Lords who have participated that the UK Government should step in at this point. I recognise the concerns expressed about the possibility that the law in Northern Ireland may become out of step with that in England and Wales. I do not wish to speculate about the extent to which those concerns may come to be justified, but it is inevitable, as part of having devolved responsibilities, that differences in the law may arise between the different parts of the United Kingdom.

My noble friend Lord Lester expressed his frustration at the lack of a federal system and at the shortcomings of our constitutional settlement. I might share some of his frustration from time to time, but it is very important in this debate that we recognise where we are now in our constitutional settlement. Under the Sewel convention, the UK Parliament remains sovereign but will not normally pass primary legislation relating to areas in which a devolved legislature has legislative competence, except with the agreement of the devolved legislature in the form of a legislative consent Motion. I will give way.

[Lord Lester of Herne Hill]

I am grateful to the Minister. Will she accept the fundamental point made throughout this debate that Northern Ireland law, like all our law, must comply with the European human rights convention, which is embedded in the devolution statutes and the Human Rights Act?

[Baroness Randerson]

I accept that of course, and I will return to that issue later. The memorandum of understanding between the UK Government and the devolved Administrations recognises that the UK Government retain authority to legislate on any issue, whether devolved or not. However, in this instance we do not consider that it would have been right for us to have sought to impose the Defamation Act on Northern Ireland without any concession to the sentiments of the Northern Ireland Executive on the constitutional propriety of such a move, or to its views on the substance of the proposed legislation.

In that context, I can confirm that, in accordance with the Sewel convention, prior to the introduction of the Defamation Bill officials at the Ministry of Justice contacted their counterparts in the Northern Ireland Executive. They asked whether the Executive wished to seek the approval of the Northern Ireland Assembly for an LCM in relation to any aspects of the Bill. In the event, an LCM was not requested, and I am not in a position to comment or speculate as to why that was.

Concerns were raised by the noble Lords, Lord Lester and Lord Bew, at a very late stage in the passage of the Bill—namely, during the Lords’ consideration of Commons reasons. In the light of that, following completion of the Bill’s passage, my noble friend Lord McNally wrote to the Minister for Finance and Personnel in the Northern Ireland Executive to commend the Act to him, and to set out the benefits which we believe it has—and which have been expressed around this Chamber today—so that these can be taken into account by the Executive in considering the way forward in Northern Ireland. As the noble Lord, Lord Lester, indicated, the Minister for Finance and Personnel has just replied to the letter from my noble friend Lord McNally indicating that he currently has no plans to review the law. However, as has also been mentioned, the relevant departmental committee in the Assembly is currently taking evidence on the issue and a Private Member’s Bill on the subject may well be introduced.

It is important to point out that, although the debate in the Assembly has taken some time to ignite, it is alive at this moment. I have here a research paper produced for the Northern Ireland Assembly on the Defamation Act 2013, so efforts are now being made to inform the debate in the Assembly. I hope that these developments will ensure that the issue is fully debated and considered in Northern Ireland and throughout civil society in Northern Ireland.

In that context, it continues to be our view that the action that we have taken represents the limit of what it is proper for the Government to do. I join noble Lords in hoping that the Northern Ireland Executive and Assembly give very careful consideration to the question of whether legislation along the lines of the Act is appropriate in Northern Ireland. However, we retain the view that the matter is entirely one for them.

The noble Lord, Lord Browne, said that this has been an extremely good debate and indeed it has. However, it is important that we draw it to the attention of those in the Northern Ireland Assembly and Executive to contribute to the public debate that several noble Lords have referred to this afternoon.

I will reply briefly to some specific points. My noble friend Lord Lexden referred to the “antiquated” libel laws and pointed out what he saw as the anomaly that the responsibility for this issue in Northern Ireland is with the Minister for Finance and Personnel. Noble Lords are very well aware of this, but it is important to point out for the record that the arrangements in the Northern Ireland Executive are complex and balanced. It is therefore possible that which department it lies with is of less significance than those balanced and complex relationships. The noble Lord, Lord Lexden, also pointed out that the Executive have not taken this decision; this issue has not come to the Executive. He also pointed out the potential importance of Mike Nesbitt’s Private Member’s Bill on defamation. I am confident that this debate will run in Northern Ireland.

I have already referred to the comments from my noble friend Lord Lester, who intervened to refer to the importance of the human rights implications. It is obviously key that UK Ministers have regard to our international obligations on human rights at all times. However, it is always a matter of balancing one set of human rights against another. Those human rights also bind and oblige the Northern Ireland Executive in the way that they make their decisions. I refer, particularly, to the reference by the noble Lord, Lord Lester, to the ECHR memorandum that was prepared by the MoJ at the request of the Joint Committee on Human Rights to assist its consideration of the Defamation Bill. That memorandum focused on issues relating to the compatibility of the provisions contained in the Bill, not on the compatibility of the existing law.

I move rapidly on to the noble Viscount, Lord Colville, who speculated on why Northern Ireland politicians were not keen to have free comment. The key point that I want to draw out from what he said is the possibility of libel tourism. We do not consider that likely. However, we acknowledge that, once the Act is brought into force in England and Wales, there might be attempts to exploit the differences in law between the two jurisdictions. I am sure that the Northern Ireland Executive and Assembly will take that into consideration as they look at this issue. The noble Lord also pointed out that newspapers cross borders and spoke of the complexities of the situation for the newspaper industry. That was also referred to by my noble friend Lord Black.

The noble Viscount talked about the liberalising and modernising Act and making our law fit for the digital age. He talked about the importance of global media and said that we cannot declare UDI on that. His core point, which will perhaps be of particular interest to those in Northern Ireland reading or possibly even listening to this debate, was on the 6,000 people who work in the media—the publishing and broadcasting industries—and the implications for them and, indeed, for the blogging citizen journalists to whom he referred. I very much hope that the prediction that UK newspapers might withdraw from Northern Ireland will prove to be unfounded, but I understand the logic of what he said.

The noble Lord, Lord Bew, referred to the human rights at the heart of the Belfast agreement. He made a very important point—a new one, not emphasised by other noble Lords—about the impact on academics and the fact that leading academics might not be encouraged to go to Northern Ireland universities if they felt that they were not given the freedom that they get elsewhere.

Finally, the noble Lord, Lord Browne, asked whether I accepted the dilemma at the core of the question whether the UK Government should intervene. I say to noble Lords and, in particular, to the noble Lord, Lord Browne, that I have observed the frequency with which UK Ministers are asked to intervene in Northern Ireland for one side or another. I acknowledge the cause of concern on this issue. However, I feel as I do every time people say that UK Ministers should intervene. I acknowledge the frustration but, as the noble Lord said, this is a period of transition. It is important that we support and encourage the Northern Ireland Executive and Northern Ireland democracy. We must resist the temptation to take over whenever we have a sense of frustration.