Northern Ireland (Miscellaneous Provisions) Bill

Lord Lester of Herne Hill Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

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

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

I take that to mean that that statutory enforcement would be introduced before devolution takes place. Can the Minister explain how that is to be done? Since the only further legislative move that is necessary before devolution takes place is a statutory instrument introducing it, is that the means by which she says the statutory defence of Civil Service impartiality will be introduced? That is my first question.

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

[Lord Lester of Herne Hill (LD)]

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

[Baroness Smith of Basildon (Lab)]

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

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

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

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

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

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

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

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

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[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.

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[Lord Alderdice]

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

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

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

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

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

[Lord Lester of Herne Hill]

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

I agree with my noble friend about the great importance of the independence of the commission from the Executive, and I wish that this was not a devolved function at all. I think that the commission would be better protected if it was not being devolved. However, given that it is to be devolved, and in accordance with the Paris principles and the Belgrade principles, it is vitally important that it is seen to be independent and properly buttressed. In supporting the amendment, I do not know whether the particular solution would be the right one because I can envisage a situation in which the Assembly might be guilty of improper interference. However, I am certain that the independence of this body is vital. The Joint Committee on Human Rights has been in frequent touch with the Human Rights Commission in Northern Ireland and we have been very concerned about the need for its independence to be properly protected.

[Baroness O'Loan (CB)]

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

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[Lord Lexden]

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

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

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

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

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

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

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

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

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

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

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

[Lord Lester of Herne Hill]

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

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

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

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[Lord Hope of Craighead (CB)]

My Lords, I hesitated as to whether or not to intervene, as my experience of devolution is in regard to matters relating to Scotland, but I have also had experience in the UK Supreme Court of devolution matters relating to Wales. I think it is right that I add a word of caution in support of what the noble and learned Lord, Lord Carswell, said. The amendment seems to me to raise a constitutional issue not quite in the terms suggested by the noble Lord opposite. The issue is really how one balances the structure of the devolved legislature’s powers between what is reserved and what is devolved.

In Scotland, the language is different. As noble Lords will know, the position is that matters open to any legislation are called reserved matters. In Scottish parlance, what we have been talking about here is a devolved matter, which would be a matter for the Scottish Parliament. It is well established by convention that it is not open for Westminster to enter into legislation relating to devolved matters unless there is a Sewel convention which permits that. It is arranged with the Scottish Parliament and a Motion is passed through the Scottish Parliament that approves of the measure that this House or the other place seeks to pass. That is well established and happens quite frequently. It helps one get over the difficulties of demarcation, if there be any.

I am certain that north of the border—I am talking about Scotland, on this side of the Irish Sea—to use the word alarm would be to put it rather softly. It would be regarded as quite offensive for Westminster now, having devolved matters, to tell the Scottish Parliament how it should deal with an issue such as this. I make absolutely no comment on the nature of defamation law in Northern Ireland; that is not the issue. The question is whether it is really properly open to this House to engage with the matter, given the nature of the devolution arrangement which both Houses have approved and which is in legislation. As was suggested, there are other mechanisms for bringing about reform of the law. It may be extremely frustrating that it would take so long, but the law commissions exist to take these matters on board. Unpalatable though it may be, I would respectfully suggest that the advice of the noble and learned Lord, Lord Carswell, is absolutely sound. It would be most unwise of this House to disregard it.

[Lord Lester of Herne Hill]

Before the noble and learned Lord sits down, I wonder whether I could just ask this question. Given that the European convention limits the powers of the devolved institutions in Scotland and Northern Ireland and given that it expressly empowers the Secretary of State to require action if inaction would lead to a breach, would it not therefore be the case that it is within the competence of the Executive in London, and if necessary the Parliament in London, to secure compliance with the convention rights to free speech and a good reputation?

[Lord Hope of Craighead]

The noble Lord is quite right that the powers of the Executive are controlled by convention rights. The legislative competence of the Parliament is controlled in the same way and it is open to a court to pronounce an affirmative order requiring a member of the Executive to do something. There are mechanisms, and these would be put into place through the existing devolved system. This is something that could be arranged, but that is quite different from what is being suggested here, which is, without that background and without that attempt being made, to simply legislate from this House. I underline the caution which is being properly urged on the House by the noble and learned Lord.

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[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.