Northern Ireland (Executive Formation) Bill

Lord Browne of Belmont Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 15th July 2019 Lords Chamber

[Baroness Barker (LD)]

My Lords, I speak as someone who has had the great joy of recently being married under the legislation as it applies in England and Wales. I simply observe to the noble Lord, Lord Morrow, that, as someone who wished to be married, I had absolutely no wish to do so in a place or in circumstances that other people would have found offensive. That would have been deeply offensive to me. I wished to celebrate in my community, and I did. I was quite happy to abide by the laws of this country, which insist that my marriage had to be completely secular. It was a wonderful, wonderful experience and I hope that many other people, including my brothers and sisters in Northern Ireland, will be afforded the similar dignity.

Like the noble Lord, Lord Hayward, I think we are closer on this than we are on other issues, but my one concern is this. It is to be found in proposed new subsection (1A)(e) in the amendment, which refers to education. I understand that in the preceding proposed new paragraphs, the noble Lord, Lord Morrow, seeks to obtain the same provisions that obtain in England and Wales, but I am not sure that how the proposed new paragraph is worded is exactly the same. It may go further, because in England and Wales we debated the matter of schools elsewhere. I simply say to the noble Lord that I have concerns about that aspect of his amendment, but I hope that the Minister will be able to accept the majority of what the noble Lord has put forward and address this matter in his response.

[Lord Browne of Belmont (DUP)]

My Lords, I support Amendment 17, to which I have added my name. Once again, we should be discussing a simple administrative Bill, but instead we find ourselves considering one that would impose huge cultural changes on Northern Ireland without the consent of the people and over the head of their devolved Government. I am sure I do not need to remind your Lordships that the Bill is being fast-tracked in a manner that noble Lords who sit on the Constitution Committee have criticised as constitutionally unacceptable.

However, those present for the debates on the Marriage (Same Sex Couples) Bill will recall the protections carefully carved out for religious liberty and free speech. As has been outlined, at present there is nothing in Clause 8 to secure such protections for the people of Northern Ireland. My noble friend Lord Morrow spoke about the need to uphold religious freedoms, but I wish to focus on freedom of expression. It is a right that belongs to everyone in Northern Ireland, regardless of their religion or philosophical views. Proposed new paragraphs (d) and (e) outline fundamental protections for free speech, which go to the heart of any democracy. Discussions about marriage arouse strong emotions, and this is especially true in the context of Northern Ireland, where not only are there large religious communities, but a wider culture that holds more strongly to traditional values around marriage and the family than other parts of the United Kingdom.

There should be absolute protection for such people to discuss and critique same-sex marriage in the classroom, the boardroom and, indeed, in the street. Proposed new paragraph (e) outlines a vital protection in the specific context of educational institutions. Universities, schools and colleges are platforms for discussion, debate and criticism of ideas, and this must not come under threat following any change in the law on marriage.

Earlier this year, robust new free speech guidance was issued for universities in this country. David Isaac, chair of the UK Equality and Human Rights Commission, underlined the continuing importance of this historical principle, saying:

“The free expression and exchange of different views without persecution or interference goes straight to the heart of our democracy and is a vital part of higher education. Holding open, challenging debates rather than silencing the views of those we don’t agree with helps to build tolerance and address prejudice and discrimination”.


I am sure we are all united on the right to free speech and against compelled speech. For these simple and fundamental reasons, I am happy to support Amendment 17.

[Lord McCrea of Magherafelt and Cookstown]

My Lords, I join with my colleagues. I am a signatory to this amendment and rise to support it. Introducing same-sex marriage is a move that has been highly divisive in Northern Ireland. I acknowledge that, as in the rest of the United Kingdom, there are people who hold strong views concerning this. I certainly know that many in Northern Ireland believe strongly, as I do, that marriage is between a man and a woman and is the fundamental building block of our society, and therefore that the definition of marriage should remain unchanged. However, having listened to the debate and that in the other place, I realise that it seems this legislation is going to be forced on the people of Northern Ireland.

In a relatively short period, there has been an alarming abandonment of the teaching of scripture on marriage as ordained by God. This contempt for biblical marriage includes not only the abandonment of it as a divine institution but a direct attack on it in the promotion of same-sex marriage. This is spear-headed in open defiance of God’s moral law, and those who hold to the scripture view are held in utter contempt.

I do not wish in any way to be hurtful to any person, but I also have to be faithful to and express what I believe. That is why I am in this House. I was an elected Member in another place for some 25 years and was certainly known to express—genuinely, earnestly and honestly—what I believe. As a Christian minister, I believe that in Genesis, chapter 1, verse 27, under the inspiration of the Holy Ghost, Moses wrote:

“So God created man in His own image; in the image of God created He him; male and female created He them”.


This is a general statement of the creation of man in God’s image but stressing the distinction of gender. In Genesis, chapter 2, the Holy Spirit gives us further details not only of human creation but of the institution of marriage. The clear message is that God’s intention for marriage was that two human beings would come together. Chapter 2, verse 24, says:

“therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they two shall be one flesh”.

Northern Ireland people have never been consulted on whether they want same-sex marriage. One of our most fundamental social structures is being changed over the heads of those whom it will affect. It is notable that, when same-sex marriage was introduced in England and Wales, strong safeguards were included in the legislation to protect those who did not want to be forced to go along with something they disagreed with. It is vital that the people of Northern Ireland are given the same legal guarantees.

I appreciate the words of the noble Lord, Lord Hayward, and the manner in which he has responded to the amendment. All this amendment seeks to do is address the free speech and freedom of religion concerns that inevitably arise when such a huge moral change is brought in. It will merely establish the same protections that those in the rest of the UK are afforded.

The Northern Ireland (Executive Formation) Bill requires the Secretary of State to introduce regulations to legalise same-sex marriage, but the simple fact is that regulations do not allow for the appropriate level of scrutiny and debate that such a monumental change requires. There is a real danger that, with this legislation and subsequent regulations being rushed through Parliament so quickly, those who object to the new law will be forgotten about and their freedom to disagree threatened.

Those who are against same-sex marriage may feel they have particular cause to be concerned in Northern Ireland if this amendment is not accepted. Even while the law has always been in line with their view, they have seen a Christian-run bakery hauled through the courts for its decision not to support a campaign for same-sex marriage. That case was pursued by a body, the Equality Commission for Northern Ireland, which should be protecting everyone’s freedom. Without robust reassurances, many will feel that the Equality Commission for Northern Ireland’s hostility to those with traditional beliefs about marriage will only increase. For example, many churches, as my noble friend has said, hold their services in community centres or school halls. They need to be reassured that they will not be forced to leave those premises because they hold to the biblical teaching that marriage is between a man and a woman.

The Marriage (Same Sex Couples) Act 2013 in England and Wales states on the face of the legislation that no religious organisation or minister can be compelled by any means to marry same-sex couples or to permit same-sex marriages on their premises. It also contains explicit protections to ensure that any person who publicly expresses disagreement with same-sex marriage cannot be accused of stirring up hatred under the Public Order Act. The Government equalities spokes- person at the time, the noble Baroness, Lady Stowell, said:

“A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society”.—[Official Report, 17/6/13; col. 75.]


It is vital that those who disagree with same-sex marriage feel that they are valued members of society and not in any way ostracised by the new law. I and my colleagues believe that this amendment will help that. Maria Miller, the Minister in charge of the 2013 Act, said:

“Whatever one’s view about the marriage of same-sex couples, it is legitimate and the Government will protect the right to express it”.—[Official Report, Commons, 16/7/13; col. 1027.]


This reasonable amendment is the least that can be done.

Northern Ireland (Executive Formation) Bill

Lord Browne of Belmont Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Empey (UUP)]

My Lords, the proverbial visitor from outer space might have been somewhat surprised a short time ago when we were discussing the previous set of amendments about what piece of legislation we were debating. It is the Northern Ireland (Executive Formation) Bill. I was so pleased to see a packed Chamber and all these people taking such a keen interest in Northern Ireland, but they have deserted us all of a sudden. The great, the good and the not so good have gone. It just shows how fickle fortune is in the political arena.

On a more serious note, I think that there is merit in this amendment. At the end of the day, since the 2014 date, donors have known that their details might potentially be released. I accept that it would not have been fair to release the names of donors who donated before that date because they would not have known at that stage that their names might end up in the public domain. There is a perfectly solid and reasonable case for that. Subsequent to that, people have known. I therefore see no reason why 2017 was called into account when 2014 was the kick-off date for this process. That is not an unreasonable thing to suggest and therefore I am supportive of it.

I would like to make a serious point about the proceedings relating to the previous amendment. I am sure that, when we talk about Prorogation, the people on the streets of Belfast talk of little else. They will be bemused that we have been caught up in this firefight which is not strictly speaking relevant to this legislation. The noble Lord, Lord Cormack, is not in his place at the moment, but he was more than right when he called this a Christmas tree Bill last week. In fact, Christmas implies celebration and something to look forward to, so maybe that is not the right phrase for it; it is a jumble, a mess and a sorry piece of legislation, with all these things included. Then we find ourselves getting involved in a national debate on a totally different matter. Her Majesty’s Government will have to look at this. I must say to colleagues in the other place as well that I know things can be drawn too tightly, but we have gone to the other extreme with this legislation. However, I would be more than content to support the amendment tabled by the noble Lord, Lord Bruce.

[Lord Browne of Belmont (DUP)]

My Lords, I firmly believe that there should be full openness and transparency regarding donations and loans to all the political parties in Northern Ireland, just as there is in the rest of the United Kingdom. As many noble Lords will be aware, the Secretary of State sought the view of all the Northern Ireland political parties on this matter in January 2017. As I emphasised in February 2018, there was clear support for full transparency. However, only one party—the Alliance Party—took the rather unusual position that the implementation of the new rules should be backdated to January 2014.

I acknowledge that the earlier date was referred to in the Northern Ireland (Miscellaneous Provisions) Act, but in my view retrospective legislation is acceptable only in exceptional circumstances. It is not fair to reveal the identities of those who made donations assuming that the law at the time would always apply. It is strange that the noble Lord, Lord Bruce, is intent on reopening issues that have been fully considered in the House and elsewhere, rather than concentrating on providing an effective framework for the future. The treatment of foreign donations to Northern Ireland political parties, for example, is an important and unresolved issue. The Electoral Commission is in full receipt of all the facts regarding donations before 2014, so although I support full transparency, I believe that the date of 2014 is a fair way to treat this.

[Lord Murphy of Torfaen]

There is something which is right about the amendments tabled by the noble Lord, Lord Bruce: the whole of the United Kingdom should have similar regulations regarding transparency of donations and loans. The Committee will be aware that for decades this was virtually impossible in Northern Ireland, because people would be intimidated and worse if their donations to various political parties were made public and they were identified as possible targets. That was an obvious reason why the law in Northern Ireland was not the same as it was in the rest of the United Kingdom. Happily, the world has changed. There should be regulations which are common to all parts of our country.

There is an issue about people who were unaware when they gave donations that their names would be revealed; would they have given them if they had known that? We must take this into account, but we must not allow Northern Ireland to be used as a back-door conduit for donations simply because the law and regulations in Northern Ireland are different from those in the rest of the United Kingdom.

--- Later in debate ---

If the Government choose to respond by further violating constitutional due process, casting aside the Sewel convention, we will be looking at a constitutional crisis the likes of which we have not seen in a very long time indeed. In a constitutional democracy such as our own, the end never, ever justifies the means. I say, finally—it is important—that ends, no matter how noble you might deem them to be, are always sullied in a manner that darkens the pretensions of any polity to be constitutional, if they are secured by means that are anything but. The Attorney-General of Northern Ireland has indicated that there are no legal reasons why the matters that this Bill properly seeks to address should not be so addressed in September. So my counsel to the Government is to pull this Bill, at least for now. Failing that, they must delete Clause 9.

[Lord Browne of Belmont]

My Lords, I support the amendment of my noble friend Lord Morrow. As a former Member of the Northern Ireland Assembly, I do not believe it can be said enough in this place that, in 2016, the Northern Ireland Assembly considered the matter of abortion. It did not just have a general debate. It voted on primary legislative amendments to our abortion law and determined not to change the law in any way at that time.

I believe that the last time Westminster voted on primary legislative changes to a real Bill, as opposed to a 10-minute rule Bill, was back in 2008. This means that Northern Ireland has the law with the most recent democratic sanction of anywhere in the United Kingdom. In that context, it simply cannot be right for Great Britain MPs to overrule every Northern Ireland MP.

The only justification that I have heard is human rights—but there are two problems with that approach. First, there is a supposition that access to abortion services is a human right. In the other place, the mover of the amendment, the honourable Member for Walthamstow, said,

“There is a specific definition of human rights”,—[Official Report, Commons, 8/7/19; col. 106.]


implying that there is universal agreement on what human rights mean. I support honourable Members in that debate who rightly said that there is no international right to abortion. The noble Lord, Lord Alton, made the point last week that the right to an abortion is not included in the Universal Declaration of Human Rights. There is no right to abortion under the United Nations Convention on the Elimination of All Forms of Discrimination against Women—CEDAW—which is the locus of the authority cited by Clause 9.

The second supposition is that a determination by a UN committee is binding on a member state in a way that a declaration by the UK Supreme Court of incompatibility with the European Convention on Human Rights would not be. The latter can make a ruling on incompatibility with human rights in any given situation, but it is for Parliament to decide whether it wishes to act on that ruling. As the Supreme Court has said, Parliament can decide to do nothing about the court’s ruling. None the less, we are being advised that we must change the law, and change it now, in a way that is manifestly undemocratic.

[Lord Bruce of Bennachie]

Does the noble Lord not acknowledge that the Supreme Court has already indicated that it believes that the law in Northern Ireland is not consistent with human rights, which evolve? There is a judgment pending from the Supreme Court that could put the law in breach of the European Convention on Human Rights. The United Kingdom is a signatory to that convention. Does that not give the United Kingdom Government and Parliament an obligation to legislate on the law in Northern Ireland?

[Lord Browne of Belmont]

I thank the noble Lord for his intervention, but I understand that that was on a very narrow case of fatal foetal abnormality. I will address that matter shortly, which should answer his question.

The chief commissioner of the Northern Ireland Human Rights Commission recognised that the recommendations were non-binding in oral evidence to the Women and Equalities Select Committee in the other place when it was reviewing the law in Northern Ireland. Professor Mark Hill QC wrote an opinion about the CEDAW report, in which he stated:

“The Committee does not have the capacity or standing to give a binding adjudication on the United Kingdom’s obligations under CEDAW or on the proper interpretation of CEDAW”,


made the point that the International Court of Justice had not interpreted CEDAW as providing a right to abortion, and said:

“The interpretative function under the CEDAW is reserved, not to the Committee, but to the International Court of Justice.”


If this is not enough to convince your Lordships that the authority being given to this Committee is flawed, I shall quote from a Supreme Court judgment —R (A and B) v Secretary of State for Health—in which Lord Justice Wilson said:

“The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path. But, as a matter of international law, the authority of their recommendations is slight”.


Here we come to the case that the noble Lord, Lord Bruce, referred to. The judgment in that case stated:

“If the Supreme Court rules in the case of Sarah Ewart that there is a right in relation to fatal fetal abnormality, then that would create a very strong case for a small but important change to the law. It would not, however, create anything resembling a general right to abortion”.


Indeed, the basis for thinking that the court might support a right in relation to fatal foetal abnormality is what was said in relation to a case last year, in which the plaintiff did not have standing, so no rule was made. The court also gave another indication, to the effect that there is no human right to abortion on the basis of disability generally—something permitted in Great Britain.

Secondly, the medium of human rights is normally expressed as a check on the majority expressed through constitutional due process. This is highly ironic, given that the only reason we are here is the complete disregard of constitutional due process manifested last week in the other place, where we saw: dispensing with scope; debate being permitted in relation to out-of-scope issues that should have been the subject of their own Bill, even though the Bill before the House was being fast-tracked; and the imposition of a change on the part of the UK with the smallest population, and thus the smallest number of MPs, by MPs from outside Northern Ireland

The ethic that the end justifies the means is the kind of thing that constitutional checks are supposed to guard against, not encourage. If the proponents of Clause 9 press their case on the basis of the end justifying the means, as at present, that will cast a great shadow over the integrity of their human rights pretensions. If we want to live in a functioning union, by all means let us talk about human rights, but do not use them wrongly to suggest that there is a general right to abortion when no such right exists, and do not use them to dispense with the respect for constitutional due process, the presence of which can facilitate a functioning union, whereas disrespect for it will bring about its demise.

[Lord Judge (CB)]

My Lords, I wonder whether I may be allowed two minutes to look at the provision that we are considering, which is Clause 3(6). What is proposed is,

“a review of the current legal framework on abortion in Northern Ireland with an analysis of how that … could be amended by Parliament … when there is no Executive”,

followed by these very important words, which I have not heard this afternoon,

“subject to a sunset clause to respect devolution”.

I read that to mean that whatever we may do, when there is an Assembly in Northern Ireland, it will be up to the Assembly to decide what the law should be in that country. It may revert to the law as it is now—but we hope that it will not.

--- Later in debate ---

[Baroness Smith of Basildon]

I support the right reverend Prelates on this issue. This is one of those issues where if the Government were to take some action it might get support from the Assembly—very moderate action is proposed in the amendment. Anyone who has seen late-night or daytime TV will have seen adverts for gambling, aimed particularly at women in many cases, that encourage viewers to roll their winnings and depict all the glorious things that will happen to those who gamble. If there is a gap in legislation or enforcement in Northern Ireland—and I had not realised the extent of the differences until they were explained to us tonight—it is clearly a serious problem and I hope that the Minister will be able to respond positively.

[Lord Browne of Belmont]

My Lords, I fully support all that has been said about the problem of gambling in Northern Ireland. Northern Ireland has the highest proportion of problem gamblers. I know of one sad case where this has led to suicide. It also leads to the breaking-up of families and marriages and loss of homes. A report on this matter would be extremely useful, but to be consistent with the arguments already made, I have to say that, at the end of the day, legislation should be reserved for the Northern Ireland Assembly.

[Viscount Younger of Leckie]

My Lords, the right reverend Prelate the Bishop of Newcastle, on behalf of the right reverend Prelate the Bishop of St Albans, is quite right to raise the outdated gambling laws in Northern Ireland and I thank her for her remarks.

These laws are complex, but in Northern Ireland they have not kept pace with emerging technologies such as electronic and online gambling. Such technologies have made it much easier for people to gamble, including from inside their own homes, thus changing the entire gambling landscape.

The gambling laws in Northern Ireland date back to 1985 and are modelled on a much older Great Britain law which was repealed and replaced by the Gambling Act 2005. A few aspects of the 2005 Act have been extended to Northern Ireland. In particular, if a remote gambling operator does not hold the remote gambling licence from the Gambling Commission that it would need to be permitted to advertise in Great Britain it cannot advertise in Northern Ireland either.

Although the legislation has not kept pace, I am pleased that businesses have in some instances led the way in taking steps in line with the more updated GB regulations and applied them across the whole UK, including in Northern Ireland. For example, GVC, which owns Ladbrokes Coral, has voluntarily reduced fixed-odds betting terminal stakes in all its UK operations from £100 to £2 in line with GB regulations. I understand that other NI bookmakers have committed to this voluntary reduction. Any such actions to improve social responsibility by NI operators is to be welcomed.

As the right reverend Prelate will be aware, gambling is a devolved matter in Northern Ireland. The reform of this legislation should be for a restored Executive and Ministers to consider, informed by the results of that review. I am pleased to say that I am content to accept the amendment and to commit to reporting on progress, but I repeat that this is a devolved matter and thus the depth and detail of such a report will not be something over which I have control.

Northern Ireland (Executive Formation) Bill

Lord Browne of Belmont Excerpts

2nd reading (Hansard): House of Lords
Wednesday 10th July 2019 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, it is interesting to note that the consternation felt in Northern Ireland is given some support by the Select Committee on the Constitution, which has today issued a report expressing its very serious concerns about the fast-tracking of Northern Ireland legislation and the negative impact that this has had on the resulting law. The report says at paragraph 9:

“We reiterate our concern about the routine nature of fast-tracking legislation relating to Northern Ireland. It is constitutionally unacceptable save for exceptional and urgent circumstances. Given this will be the fourth (and potentially fifth) extension of the period for forming an Executive, and the lack of progress in the cross-party talks, it can hardly be argued that the need for this legislation was not foreseeable and that it could not have been introduced earlier and proceeded with less haste”.


Paragraph 10 states:

“In our 2009 report, Fast-track legislation: constitutional implications and safeguards, we recommended that, for legislation subject to fast-tracking, the Government should set out its justification for fast-tracking in the explanatory notes to the bill. In our recent report on the Legislative Process, we noted that the Government had observed this recommendation in respect of most recent bills that have been fast-tracked. We regret that no such justification has been provided in the explanatory notes to this Bill”.


I might add that those constitutional due process concerns have been greatly compounded by dispensing with the rule about scope in the other place yesterday. That means that the amendments that now constitute Clauses 8 and 9 of the Bill were ruled out of scope by the clerks. That in itself is hugely concerning because it means that we undermine our rules-based approach to law-making. However, the immediate implications of the jettisoning of scope feed back into, and massively compound, the problems of fast-tracking. They mean that two huge, highly controversial social issues have been added to the Bill, massively widening its remit, but without changing the fact that the Bill is still being introduced via the shoddy first-tracking procedure. It is bad enough to subject us to fast-tracking. To compound the problems by also jettisoning scope is to make the problem of fast-tracking far more serious and to treat Northern Ireland with total contempt.

To regain any sense of the problems with this, one must have some appreciation of the enormity of these issues. Abortion is a sensitive issue in England and Wales, but it is much more sensitive in Northern Ireland, where our distinctive approach to this issue is an important part of our history and identity. As the noble Lord, Lord Alton, remarked, 100,000 people are alive today who would not be had we embraced the 1967 Act. Not only that, it is a matter on which the democratically elected Northern Ireland Assembly expressed a view very recently, in 2016, when it chose not to amend our law in any way.

It is naturally disappointing that we are debating legislation that should have been debated in a Northern Ireland Assembly. Bills require scrutiny, analysis and examination. This fast-tracking process does not permit the level of accountability that one should expect. At this time, the people of Northern Ireland are receiving only the bare minimum of governance. None of us wants to be in the current situation, with no local decision-makers. At this crucial time, when the current political talks between all the Northern Ireland parties are taking place, it is only right that the possible date of an Assembly election be extended. That would, I hope, allow time for an agreement to be reached.

There has been no shortage of elections in Northern Ireland in the past three years: to be precise, there have been five. There was an Assembly election in 2016, followed by another in 2017. We all know about the UK referendum in 2016 and the General Election in 2017. The electorate in Northern Ireland have had ample opportunity to express their views and to air the issues that relate to everyday lives. The clear message received by canvassers on doorsteps throughout the Province was that there was an overwhelming desire to see a functioning Assembly return. MLAs were elected to serve the people. Unfortunately, they have been prevented from carrying out their legislative function by the action of one political party—namely, Sinn Féin. None of us wants to be in this situation. The electorate cannot go on being punished because of the political stalemate. The people of Northern Ireland know the issues that need to be addressed and that impact on their daily lives and those of their families. They want to get on with their lives, just as the rest of the people in the United Kingdom do.

As it stands, the legislation continues to present many challenges to the senior civil servants in Northern Ireland, who have been tasked with taking decisions in their departments for a considerable period. Though we must commend their hard work and dedication, it is true that, in many instances, vital decisions are being put on hold or are simply not being made at all, because of the threat of court action. There is a limited scope at present for key decision-making.

We have heard that there are specific long-standing decisions in a wide range of areas such as housing and education, with school resources shortages and issues regarding school allocations. Long-standing decisions are also needed on infrastructure projects. We have a general practitioner shortage in Northern Ireland. People are living in pain and are on long hospital waiting lists. Decisions still need to be made on the budget and, on health, transformation projects to tackle long waiting lists. Victims of terrorism are still awaiting decisions. Many victims do not have work-related pensions because of their appalling injuries, nor do they have access to work. To obtain the support they richly deserve, legislation needs to be brought forward.

My noble friend Lord Morrow outlined many of the decisions and projects that have been held up in Northern Ireland and cannot proceed. I make no apology for adding to his list. For example, the next phase of the 2021-22 school enhancement programme is delayed. The School Shared Education Campuses programme—something that we all want in Northern Ireland; we want the communities to work together—is now funded from the capital pot in the department but now has affordable risk-procurement since suspension. School building schemes, 10 currently at design or feasibility stage, are not being pursued. Tender prices are increasing and projects stalling as, due to the fall in the pound, prices have now become much higher than the original estimates. We have a crisis in housing—a housing shortfall. What can we do? Addressing the shortfall in new-build homes requires policy intervention.

I turn to the environment and energy—very important, the environment, these days. We have environmental NGOs, difficult-to-plan organisational budgets and work programmes. We have the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2017, the consultation on the draft version of which closed on 9 February 2017. The closure of the Northern Ireland Renewables Obligation scheme in April 2017 has left a policy gap. On renewable energy development, the Minister ordered research to be conducted but was unable to translate this work into new policies. I could go on and on. I will add some examples from the public sector. On public sector pay, there is delay in making awards. The Community Relations Council requires an annual business plan, but it has not been approved. Would the citizens of any other region in the UK tolerate such inaction for such a long time?

I turn to the new Clauses 9 and 10 on abortion and same-sex marriage. Regardless of our views—there is a wide divergence of views right across this House—we can surely agree that these issues deserve proper attention and debate and, in the first instance, should be decided by a Northern Ireland Executive. There is a risk that these poorly drawn-up amendments will create a dangerous precedent for interference that could have wider consequences for constitutional arrangements. If these two devolved matters can be resolved here in Westminster, why can the other 69 outstanding priority issues vital to the enhancement of the daily lives of the people in Northern Ireland not be treated in the same way? Indeed, are we about to witness the potential dismantling of the Northern Ireland devolution settlement? If we take this path, which may indeed prove popular with some, any hope of a successful outcome to the Stormont talks may be dealt a fatal blow.

The people of Northern Ireland want to see devolved government working and they deserve accountable local decision-making. My party, the DUP, entered the talks in good faith and will continue to work hard in the interests of all sections of society in Northern Ireland.

Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Lord Browne of Belmont Excerpts

Wednesday 3rd April 2019 Lords Chamber

That solution would resolve the problem neatly throughout the United Kingdom: we would bring the order of the noble Lord, Lord Mandelson, up to date and include the Council of Europe in it. It would not in any way prevent the Minister pursuing his SI today but I like to think it would be an excellent solution. It means that people who identify themselves in a European context will still be able to do so and get official commemoration right across the United Kingdom if the Department for Digital, Culture, Media and Sport were minded to do it. The Minister might also speak to his right honourable friend the relevant Minister there. It would be good to have a cross-departmental solution happening simultaneously and I hope that would avoid any disputes.

[Lord Browne of Belmont (DUP)]

My Lords, my remarks shall be rather brief. I welcome this having been a serious debate on the flying of flags in Northern Ireland and I am pleased that it is taking place in these peaceful surroundings. However, I still find it a little bizarre that we would continue to fly the flag of an organisation that we will, eventually, have left. I point out that the general public in Northern Ireland can, if they so desire, continue to fly and display the European flag, just as we have regularly witnessed the display of many European flags outside this building. Also, local councils in Northern Ireland, if they agree the policy, can fly the European flag on their civic buildings on 9 May.

People in Northern Ireland often point out, when discussing the flying of flags, that there is one arrangement whereby, for example, City Hall and Parliament buildings fly a flag but a different arrangement exists for the flying of flags on government buildings and, indeed, the Royal Courts of Justice. They are governed by quite different provisions. Does the Minister accept that this can often lead to a degree of confusion over why a certain flag is flying on a particular building but not on another? Does he agree that, for this reason, in future we may need a more uniform approach?

Finally, I once again regret that there is no functioning and workable Northern Ireland Assembly to consult on these matters. I hope that will not be the case for much longer and remain optimistic that, with political will on all sides, talks about reforming, workable institutions in Northern Ireland can resume soon. I am happy to support this statutory instrument and I concur with the decision made by the other House.

[Lord Murphy of Torfaen (Lab)]

My Lords, it is estimated that 3 million to 4 million people are currently watching BBC Parliament. I rather fancy that today their attention will be drawn to the other place, and that they will have to listen to our proceedings, as they generally do, at about 2 or 3 am. If those insomniacs—who occasionally include myself—switch on, they would I suppose be bewildered that we are discussing flags in the Chamber of the House of Lords while the whole world is collapsing around us because of what is happening on Brexit.

They would of course be mistaken, because flags are a hugely sensitive issue in Northern Ireland. The unfortunate author of the Explanatory Memorandum, which says that this is a “minor, technical change”, would have to listen to only the last hour in this Chamber to realise that it is a lot more than that. I recall thinking about a quarter of a century ago, when I first started going to Northern Ireland as a shadow Minister, that only the union flag and the Irish tricolour were flags of general interest and controversy in Northern Ireland. That was until I happened to see on one occasion the Israeli flag and the Palestinian flag also flying in parts of Belfast. I had no idea what the relationship was, but apparently unionist or loyalist areas would fly the Israeli flag and nationalist or republican areas would fly the Palestinian flag.

It is a huge matter, and my noble friend Lord Mandelson, when he was Secretary of State, introduced—as the noble Lord, Lord Deben, has told us—this important piece of legislation. I wonder—and the noble Lord, Lord Deben, referred to this also—whether sufficient consultation has occurred on this matter. Again, the Explanatory Memorandum says that:

“Consultation is not considered necessary”,


because this is a minor technical matter. It is necessary, because people have different views on flags. I am told by some that the last time the negotiators in Belfast talked about flags the discussions went on for 11 weeks just on that issue. Flags symbolise things in a very special way in Northern Ireland. They go to the heart of the issue of identity. They go to the heart of the problems that the other place is discussing today—the Northern Ireland/Ireland border and the issue of the backstop. All that is about identity, and flags symbolise it. It is an important issue.

These particular regulations of course refer to the union flag no longer flying on government buildings on the day commemorating the European Union. However, the noble Lord, Lord Bruce, and my noble friend Lord Touhig have eloquently told us that the flag is not simply that of the European Union—it is the flag of the Council of Europe as well, a much earlier institution. If we are trying to wipe the importance of Europe in the peace process from the public memory of Northern Ireland, we should remember that it brought much-needed funding through Objective 1 status and other schemes, and that the common membership of the European Union of the Republic of Ireland and the United Kingdom meant that we were able to be successful over 20 years in that peace process. We have been reminded tonight that a majority of people in Northern Ireland—in any event 56%—voted to remain in the European Union. If we think that taking away the right to fly the flag on 8 May also takes away the public memory of the benefits of being Europeans, we are gravely mistaken. No—the Government should think again. We have been given some interesting ideas. The noble Lord, Lord Empey, tells us, quite rightly, that we ought to think in terms of the whole of the legislation affecting flags in Northern Ireland in a fresh way, which would include the Council of Europe flag being flown. The noble Lord, Lord Alderdice, told us the same thing.

Cannot the Minister therefore just withdraw this Motion for the time being? It does not matter about this year, because it is extremely likely that on 8 May we will still be members of the European Union. The Northern Ireland Assembly and Executive should be deciding these matters—I hope, please God, that by this time next year, those bodies will be up and running and will be able to discuss this. Rightly and properly, it is for them to decide what happens on public buildings in Northern Ireland, and how important Europe is to them.

Therefore, there should be a rethink. People should understand the significance of the symbolism of flags and should remember what Europe, both in the form of the Council of Europe and the European Union, has done to make peace in that part of the world.

Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Lord Browne of Belmont Excerpts

Monday 25th March 2019 Grand Committee

[Lord Touhig (Lab)]

My Lords, my noble friend Lord Murphy will speak shortly from these Benches. I am reminded as I listen to this debate of the words of his predecessor, Leo Abse, MP for Pontypool and then Torfaen for 30 years and responsible for more social legislation than any individual MP. When he announced his retirement, he said: “I do not know who will succeed me. My only advice is: tolerate everyone, tolerate everything, but never ever tolerate the intolerant”.

This provision is a crass act of intolerance. It is not just silly. Those of us who have served in both Houses—a number of us in the Committee today have served in the Commons and in this House—know that at times Parliament has done some silly things, but this is a stupid and offensive thing. I have the honour to serve on the Council of Europe. Together with parliamentarians from both Houses, I will be going there on 7 April for the next full session of its parliamentary assembly.

This is the 70th anniversary of the Council of Europe —we were its co-founders—which predates the European Union. We have heard Ministers and members of the Government saying time and again, “We are leaving the EU, not leaving Europe”. That point was made earlier in the debate. This is a symbol of us all in Europe. The Council of Europe is larger, older and more united than the European Union. This is the barmiest thing to do, and it is offensive. A leading Conservative, Sir Roger Gale, leads Britain’s representatives in the Council of Europe. He does it with pride and does a good job. Please do not think this is blowing our own trumpet, but I can tell the Committee that the British delegation to the Council of Europe makes a huge contribution. We take part in most of the debates; some very powerful arguments and good ideas are put forward. We are listened to and benefit from being part of this greater, wider assembly.

The symbol of the Council of Europe, of us all within Europe, should be retained. We should use it, we should fly it and—as the noble Lord, Lord Deben, has just said—if we have an issue about the date we should move it to 5 May, the date on which the Council of Europe was set up. The Government really ought to think again. As I say, this is not just silly; it is stupid and offensive.

[Lord Browne of Belmont (DUP)]

My Lords, Northern Ireland is the only part of the United Kingdom where under the current legislation there are 18 designated days for flying the flag on government buildings. Usually these discussions are highly contentious back in Northern Ireland; as we have heard, in extreme cases—I am thinking of Belfast City Hall—unfortunately they can lead to civil unrest. This is a delicate matter and has to be discussed in a reasonable fashion.

I take a different point of view. I think it would no longer be appropriate to fly the flag, especially if we leave Europe through Brexit, so I support the instrument before us. On a slightly wider issue, as part of the fresh start agreement negotiated by the Stormont parties in November 2015, a 15-person commission was set up to study a range of long-standing, complex and challenging areas in relation to the expression of mutual and cultural identity in Northern Ireland. One of the issues which was to be addressed in that was the unofficial flying of flags in outdoor spaces such as on lamp-posts and so on. Has that draft report been completed? If so, can its findings be published in the absence of a sitting Executive? Maybe this committee, if it is still sitting, could take up the issue. I support the flag not being flown if indeed we leave Europe.

Northern Ireland (Regional Rates and Energy) (No. 2) Bill

Lord Browne of Belmont Excerpts

Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 19th March 2019 Lords Chamber

[Lord Kilclooney (CB)]

My Lords, I support the amendments and, as I said during Second Reading, I feel inclined to oppose the Government on this Bill.

The position we are in has arisen due to people having been somewhat misled, as the noble and learned Lord, Lord Mackay, said. They were given guarantees by government that are now not being honoured. People feel very aggrieved about that, and not just farmers. Someone said that it was an act of faith, and I notice that some gospel halls were also involved in this heating scheme. They feel aggrieved because there is no Assembly, as Sinn Féin, the DUP, the Ulster Unionists and other parties have not reached an agreement about an Assembly. This is a devolved matter, and we are debating it here in this Chamber because the other opportunities have come and gone. The Stormont Assembly failed.

The other place did not make a decision favourable to those involved in the scheme. Those who now feel aggrieved—there are thousands of them—and who will be hit financially very hard are holding up the House of Lords as the last place in which they might be rescued. Therefore, this is a very serious matter for this Chamber.

As the noble Lord, Lord McCrea, said, there is a deadline of 1 April. The European Commission ruled that the present scheme was contrary to the European Union’s state aid rules, and therefore—I do not like saying this phrase in relation to Northern Ireland—we basically have a gun to our head. We have to reach a decision. It has been suggested that there will be an interesting report from the Northern Ireland Affairs Committee in the other place. I keep asking myself: is it far too late for that committee to discuss this matter? This issue has been going on for well over a year. At this late moment, the Northern Ireland Affairs Committee will eventually—I am told promptly—consider this subject.

There is great praise for the Minister, and deservedly so. He is embarrassed by the praise that he gets from Northern Ireland, but he takes a genuine interest in our problems across the entire community. My question to him is this: since we have a deadline of 1 April from the European Commission, should the Northern Ireland Affairs Committee come out with different proposals in a month or two, will it be possible to rescue this scheme and save the farmers and the other people who are suffering as a result of doing what the Government asked them to do?

[Lord Browne of Belmont (DUP)]

My Lords, I said at Second Reading that this legislation is controversial and far-reaching. We all know it is regrettable that there is a lack of scrutiny. The legislation is extremely complicated and, indeed, was flawed from the outset. People genuinely entered into the scheme in good faith; they deserve to be treated fairly so that they do not suffer hardship.

However, we have to pay attention to the legalities of all this. The tariffs in the Northern Ireland (Regional Rates and Energy) Act 2018 are sunsetted. Therefore, if this Bill does not pass today, the department will have no legal authority to make payments in respect of boilers accredited under the scheme before 18 November 2015—some 1,800 boilers are, I believe, involved. So there are legal aspects to this that we must pay attention to. The other thing is that an independent review—the Ricardo report—said quite clearly that, under European Commission state aid rules, we had to stick to a rate of return of 12%. Can the Minister confirm that the base case tariffs or a compulsory buy-out have to be compliant with European state aid rules?

I can be brief—I think my other points have been made—but I hope that noble Lords will pay attention to the legalities involved in this scheme. We do not want anyone to suffer hardship, but we have to be very careful that these payments can be made. If we stop them there will be more suffering.

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the amendments in the names of my noble friends Lord Empey and Lord Rogan. I call them both my noble friends of over 20 years, despite the eccentric seating in place today.

This is a sorry business, all of it—a terrible mess. The whole situation in Northern Ireland for the last two years started with the collapse of this appallingly planned scheme. We cannot get away from that. Sir Patrick Coughlin is currently conducting an inquiry into the scheme, the courts are ready to pounce and the Northern Ireland Affairs Select Committee has been asked to look at it as well. The difficulties go back to the way the legislation first came to us. There should not have been a Bill that, on the one hand, decided the regional rate in Northern Ireland and, on the other, decided the details of the RHI.

Equally wrong was the length of time taken by the department in Northern Ireland to deal with its consultation process. As a result, apparently, all the details that we need to consider for the Bill did not arrive until January, even though it was known full well that the previous Bill put forward was sunsetted to end at the end of March. This meant there would be totally inadequate scrutiny of the Bill by Parliament. What is done is done, but it means that we are in a mess. The noble and learned Lord, Lord Mackay, referred quite rightly to the fact that some of the people who, in good faith and on the advice of the Government, went to their banks and decided to take out loans to deal with this issue are now in a terrible mess. What happens to them? The Government are in a dilemma—partly one of their own making, because of what I have just referred to with respect to process.

If we do not pass the Bill, there will be no regional rate in Northern Ireland and the scheme will collapse, so people who are currently benefiting from it, in whatever sense, will not have any money to deal with it. At the same time, in the other place, the Secretary of State welcomed the Select Committee on Northern Ireland looking at it. Perhaps she did not realise that, under the circumstances of the Bill, it would have just under two weeks to consider it, which of course is impossible.

The Government and the Minister in particular, who has been rightly praised by all sides of the House on this and other issues, have to come up with a solution that will satisfy my noble friends Lord Empey and Lord Rogan, and the rest of us, about what can be done. They to ensure that the rates are collected and that the scheme does not collapse but, at the same time, looks after the people who took part in this scheme in good faith. There may well be ways the department could look sympathetically at cases in Northern Ireland. There may also be a way, although I cannot see what it would be at the moment, for the Northern Ireland Affairs Select Committee’s recommendations to be taken into account after the legislation has been improved, unless further primary legislation could be brought before this House to amend the Bill we are considering—it may come to that.

A general point has to be made: so long as there is no devolution in Northern Ireland, with no Assembly or Executive, we cannot have Northern Ireland legislation coming to us in bits or as emergency legislation that denies proper scrutiny. The dilemma that all of us, and the Government in particular, are in today results from the fact that the business managers have not taken Northern Ireland legislation seriously. That has to change, until such time when the institutions are revived in Northern Ireland, which I hope will not be that long away.

These Benches will support a Division, if my noble friend Lord Empey calls one. I hope that can be avoided with what the Minister is about to tell us, because we want to ensure that the legislation goes ahead. However, we also want to ensure that the hundreds of people in Northern Ireland who are now in a sorry state because of this RHI can be dealt with in a proper, decent, humane manner.

Northern Ireland (Regional Rates and Energy) (No. 2) Bill

Lord Browne of Belmont Excerpts

2nd reading (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, I start by thanking the Minister for bringing forward these essential Bills today. They ensure that public services continue to be provided in Northern Ireland and give departments some certainty going forward. In the unfortunate continued absence of decision-makers at a local level, I welcome the Government taking these necessary steps but I know that they too will recognise that this is far from an ideal situation. Regrettably, this is the third consecutive occasion that expenditure in Northern Ireland has been considered through an unusual, fast-track process in your Lordships’ House, with little scrutiny or knowledge of how allocations to specific departments have been decided. I would much prefer that Bills such as these were being presented in a fully functioning Stormont Assembly by a locally accountable Minister. Equally, I wish that local representatives were able regularly to debate, scrutinise and analyse specific spending, and raise matters relating to their areas. Unfortunately, this is impossible to the same degree right now.

One political party aside, all the other parties want to get back into government and into a functioning Assembly. MLAs were elected to serve the people, but unfortunately they are prevented from doing their jobs. None of us wants to be in this situation, but the people of Northern Ireland must not be punished further because of a political stalemate.

As with any budgetary allocations, challenges are presented—and specifically when allocations are based on historic decisions. When allocations are made by individual departments, we cannot always be certain that the finances will go towards areas that the public might expect to be prioritised. In addition to looking at the amounts being allocated, we must also look closely at how effectively that money is being spent. For example, significant additional money was secured for education as a result of the confidence and supply arrangement. This money was originally meant to go towards front-line services in education. After numerous inquiries, it was eventually revealed that the department allocated this money to finance the Education Authority, which was running a deficit. After further such inquiries to the department relating to spending, a number of my party colleagues met with a series of principals in the education sector. These principals were unanimous in the view that action, in the form of ministerial involvement in the decision-making process, needs to happen soon to rescue their sector from what they describe as an impending crisis.

While the current situation presents considerable challenges, those have been reduced significantly by the welcome additional money obtained for the reform of the health service and for front-line services. On health transformation, the Permanent Secretary to the Department of Health recently made it clear that £100 million was invested in health transformation funding last year, and a further £100 million will be invested this year, as a result of the confidence and supply arrangement. This must be welcomed by all, because it provides an opportunity for the rolling out of multidisciplinary teams and other measures that will save money in the long term. These substantial amounts of money are going directly into transforming the health service, and I welcome that.

While always remaining challenging, there is positive news for our schools, with increased spending on front-line services. I trust that key services such as health and schools can also benefit from regular monetary round allocation in year. For homes and businesses struggling with slow—or no—broadband, the ultra-fast broadband project is also moving forward, along with a clear pathway for spending the £150 million secured through the confidence and supply negotiations. I look forward to the tender process starting and the infrastructure being laid. This investment will make a real difference—according to independent estimates, it could be worth over £1 billion for our local economy.

There is also good news for areas of deprivation, with £20 million from the confidence and supply deal being allocated to help some of the most vulnerable communities. This budget reflects the priorities of an Executive of more than three years ago. Indeed, if we look closely at the heads of spending for 2018-19 and 2019-20, we see that they are virtually identical. Very little is new, because of the current situation.

This legislation allows permanent secretaries to take decisions that could redirect spending. Senior civil servants have been tasked with taking the majority of the decisions within departments for over two years. However, in a number of instances key decisions are still not being made. A growing number of key decisions still need to be made on health, education, infrastructure and public services. In many cases, these decisions are about prioritisation—for example, decisions still need to be taken on school places and teaching staff.

Given all available information, it is clear that further action is required in order to deliver good government for Northern Ireland. Can the Minister provide some assurances to the departments that the relevant ministerial direction and involvement in the decision-making process will be provided? The people of Northern Ireland require further assurances, because at the minute, they are only receiving the bare minimum level of governance. We cannot allow the decision-making process to grind to a halt.

My party will continue to work towards a return to locally accountable government. I am of the firm belief that, with political will on all sides, it is possible to see local government back up and running. In its absence, my party will continue to work hard, here and in the other place, as it has done in relation to the confidence and supply arrangements. We will continue to press the Government on all of these matters in the weeks and months ahead.

Turning to the Northern Ireland (Regional Rates and Energy) (No.2) Bill, I have reservations about the level of the domestic rate increase, which is above the rate of inflation. In fact, it is the rate of inflation plus 3%. In some cases, this will cause considerable difficulty for households that do not qualify for housing benefit on their rates but are still in low-paid employment and wish to stay in employment. However, it was initially proposed that the increase would be much higher, and in that regard I am grateful to the Government for listening to the concerns expressed by my colleagues in the other place.

I welcome and appreciate the efforts made by the Government in relation to city deals. These projects could lead to a potential increase in employment and opportunities for local businesses; I hope and trust that the relevant measures will shortly come before the other place and your Lordships’ House.

On the renewables scheme, I thank the Minister for arranging briefings on this very complicated matter. The issue is controversial and far-reaching, and its consequences will be felt by a lot of people for a long time. I honestly do not know of anyone who can say that this scheme has in any way been a success. In fact, the way it was set up and ultimately abused by some was disgraceful; fundamental change was required. Why was this not stand-alone legislation?

It is important to say that the scheme was not abused by everyone. As we all know, some certainly did abuse it and their subsidies were rightly cut. However, many people entered into the scheme in genuine good faith and, as a result of the information they were given, ultimately installed more expensive boilers, expecting to get a return at some point in the future.

The historical problems associated with the RHI tariff are the subject of an ongoing public inquiry, so it would be wrong to press those matters in too much detail today. However, the Minister will be aware of our concern that there has been a lack of proper scrutiny of the new proposals. There needs to be further scrutiny, even after this has gone through, so that there can be an opportunity for revision if at any point the figures are proved to be wrong.

While we await the report of the public inquiry, one of the issues on which it makes recommendations may be how we scrutinise measures such as this going forward. We would have hoped that Parliament could set an example on that. Will the Minister address the concern about the timing of this proposal, coming as it does so close to the end of the financial year?

My Lords, I give my support to these Bills.

Northern Ireland: Devolution

Lord Browne of Belmont Excerpts

Thursday 14th February 2019 Lords Chamber

[Lord Duncan of Springbank]

I say that because we cannot be; this is too important. We are now at a critical stage of making sure that we are able to bring the parties back together. As I said in answer to the previous question, I do not doubt that we have missed the valuable voices from that area. It is important that we use the time which we have now before 23 March to demonstrate that we have through our work delivered an outcome which is bringing the parties back together. Whether we are able to achieve a fully restored Assembly before that point remains to be seen, but your Lordships will recall that there is a second five-month window if we have made sufficient progress in the first five months. Bringing back sustainable government to Northern Ireland remains the steadfast policy of this Government.

[Lord Browne of Belmont (DUP)]

My Lords, no Assembly or Executive has been in place for more than two years, but there is a real desire in both communities to restore them so that vital services such as housing, health, education and policing can be effectively delivered. Does the Secretary of State have any new initiatives to bring both or all the parties together so that we can have this restoration, or are we travelling fast down a road to the appointment of direct-rule Ministers?

[Lord Duncan of Springbank]

We are not travelling fast down a road toward direct rule, but it remains one of the options if we are unable to deliver what we believe is the most important outcome: a sustainable Executive. Good governance is clearly the most important aspect of this whole function. On whether my right honourable friend the Secretary of State for Northern Ireland has initiatives, she has been actively and tirelessly engaged in discussions to try to bring about the early stages of these talks. It has not been easy, but I hope that we will have some progress within the period—I want to correct myself from earlier: it is 26 March and not 23 March. Forgive me.

Brexit: Negotiations

Lord Browne of Belmont Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, this is a most significant moment for our nation. It is vital that everyone’s right to debate and examine the draft deal is respected. My position on the proposed deal and that of my party—the Democratic Unionist Party—is in line with what we have previously said in your Lordships’ House, in the other place and in private conversation with Her Majesty’s Government.

In its current guise, the text of the draft withdrawal agreement would establish fundamental differences between Northern Ireland and the rest of the United Kingdom. Indeed, as my noble friend Lord Morrow has already pointed out, Annexe 5 in particular would mean that Northern Ireland remains in the European Union single-market rules for goods, including food standards, while Great Britain would not. In practical terms, this would mean increased checks on food and agricultural products entering Northern Ireland from Great Britain, which would create new barriers for businesses, including supermarkets. In our eyes, such a solution is unthinkable and cannot be described as anything other than a border in the Irish Sea.

The deal that has been negotiated by the Prime Minister and the Government is much different to that described in speeches and announcements during the course of the past two years. Indeed, if we take Lancaster House as one example, one would have expected that any draft before us would have freed the UK from the customs union, the single market and the diktats of the European Court of Justice. This is not the case and in our opinion the draft agreement fails to deliver the referendum result across the United Kingdom. It leaves Northern Ireland subject to the rulings of the European Court of Justice. It creates a democratic deficit whereby Northern Ireland would become subservient to EU legislation with zero representation. In real terms, Dublin legislators would have vast influence over swathes of rules governing us, while elected representatives in Belfast or London would have none. This violates the principle of consent. It also extends the role of devolved institutions and grants a joint committee a significant input into local affairs. This collectively amounts to a breach of the Belfast agreement.

The precise wording of the draft agreement also ensures that Dublin and Brussels hold an active veto on whether the backstop ceases to apply in Northern Ireland in the future. Both options—the review mechanism or the extension to the transition period—fail to allow the United Kingdom to unilaterally move away from these arrangements should it ever wish to do so. This could leave us in a state of permanent limbo and make it difficult to leave the backstop. The ability to supersede the backstop,

“in whole or in part”,

also expresses a danger that Great Britain may be able to leave the backstop but Northern Ireland has to remain. That is not taking back control.

Under the plans before us, Northern Ireland would be locked into an arrangement whereby a substantial number of our laws will be made elsewhere. Regardless of how damaging they are to our economy, we will have no choice as to whether they should be implemented, nor will we be in a position to amend them. The extent of the barriers between Northern Ireland and our main market in Great Britain will be dependent on what the EU deems necessary. We are not alone in our resolve to oppose the risks that this deal presents to our precious union. Departing Cabinet members hold the view that this agreement presents a real threat to the United Kingdom. The Labour Party Front Bench has described it as,

“a de facto border in Irish Sea”.

My party—the Democratic Unionist Party—will not step back from its commitments to defend the security of the union and protect the long-term economic interests of Northern Ireland people alongside those in Great Britain. Ultimately, neither of these things can be guaranteed by this withdrawal agreement, and for this reason I cannot support it in its present form.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Browne of Belmont Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, regrettably we are again discussing another piece of legislation that should not have been necessary. Once more, we are holding a debate against the backdrop of a Northern Ireland with no locally accountable decision-making body in place. None of us wants to be in the current situation with no local decision-makers. As I have said many times before in this House, it is vital that we move forward positively. Northern Ireland has moved on considerably during the last decade and, despite the present situation, none of us wants to go back to where we were in the past. In the context of the continued absence of a fully functioning Assembly and Government, legislation such as this is necessary to facilitate the continued governance of public services. Bills require scrutiny, analysis and examination. This is the level of accountability that one should expect. Time does not allow for a great deal of that today and I would, naturally, prefer that such matters were scrutinised in the context of Stormont. Unfortunately, this is not the present reality.

I support the Bill, but I do so cautiously as it is limited in scope and far from an ideal solution. Before focusing on a couple of specific concerns, it is important to look at how we have reached this situation. It is worth repeating that we are discussing these matters in your Lordship’s House, and in the other place, only because of one party’s narrow agenda. Instead of a fair and balanced way forward, the party that collapsed the Stormont Assembly in January 2017, and refused to return, continues to halt progress in re-establishing a Government. One party continues to place the fulfilment of demands ahead of governing in the interests of everyone in Northern Ireland. Unfortunately, the result is that there is little prospect of a return to local decision-making at this time.

The legislation before us, although welcome, will continue to present challenges. Unaccountable senior civil servants have been tasked with taking decisions within departments for a considerable period of time. It is true to say that in some instances, decisions have been delayed and many are still not being made. I commend the Government for being proactive in issuing supporting guidance to the Civil Service so that it can get on with its job of doing the necessary work to advance day-to-day living in Northern Ireland.

The Buick ruling undoubtedly undermined the status of officials. Although the legislation and guidance are aimed at dealing with this directly and at providing some advice and clarity to reassure officials, I remain concerned that it gives limited scope for decision-making. There are still real concerns that decisions will be subject or open to judicial review or legal challenges. Does this legislation do enough to minimise the possibility of such a scenario?

It is to be welcomed that there is some assurance that decisions can be made, although it is likely that these will be non-controversial, covering planning and investment, which enjoy a broad consensus. I welcome the Government’s clarity in the other place that a decision such as that on the transport hub, which is crucial to Northern Ireland’s economy, can be advanced under the terms of the legislation. Policing Board members and other appointments can now be made, and this is extremely important.

There is now a specific requirement for senior department officials to report monthly directly to Her Majesty’s Government on decisions that have been taken under the Bill. This is an important point which deals with transparency, and I am pleased to see that it has been included.

There are some understandable fears of a continuation of the current situation, in which decisions in a range of areas, such as education, health, housing and major projects are not being taken. The Bill provides no certainty on key decisions. Permanent Secretaries in a number of departments have been cautious to date about advancing the number of decisions which have been in the pipeline for a considerable time. More than 200 decisions have lain in abeyance across departments since the suspension of the Assembly, and although we have made some progress within this Bill, there is no compulsion for officials to make key decisions that impact on the people of Northern Ireland.

These decisions need to be made if we are to see day-to-day public services restored to the level at which they should be. Budgetary decisions also need to be taken urgently, and policing and departmental spending challenges will continue to be an issue in some cases, as the allocations officials are working with are based on historic decisions taken by the previous Assembly.

On Clause 4, regardless of one’s personal views on abortion, it must objectively be accepted that this is a controversial issue in Northern Ireland. An amendment has been tagged on to this Bill, and this does not allow enough time for proper consideration or scrutiny of this matter. It is also the case that, in the United Kingdom, this is clearly defined as a devolved matter. The courts have recognised that this issue is, rightly, for the relevant democratic body, which, in this instance, is the Assembly. This is an attempt to change the law. As the Government have previously noted, guidance cannot do that. Any change in the current law in Northern Ireland will require legislative change. This provision is asking the Government to ask officials to do something that is impossible in law. This clause is therefore an inappropriate vehicle, regardless of the substantive issue involved.

Given that we are now approaching two years since the Assembly last met, we have reached a point where there needs to be some level of political decision-making, accountability and public scrutiny. Decisions will need to be made on a range of issues. I ask the Minister to provide assurance to departments that relevant ministerial approval will be provided.