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House of Lords Hansard
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Northern Ireland (Executive Formation and Exercise of Functions) Bill
30 October 2018
Volume 793

Committee

Clause 1: Extension of period for Executive formation

Amendment 1 not moved.

Clause 1 agreed.

Amendment 2

Moved by

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

“Executive formation: appointment of a mediator

(1) During the period while there is no Executive, the Secretary of State may specify in regulations the appointment of a mediator to facilitate formation of an Executive.(2) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before both Houses of Parliament by 1 December 2018 and approved by a resolution of both Houses within the period of 10 sitting days beginning with the day on which the instrument is laid.(3) For the purposes of this section, a “sitting day” means a day on which both the House of Commons and the House of Lords are sitting.”

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My Lords, I spoke to this amendment at Second Reading and I will not say anything further, as I want to give the Minister an opportunity to say more about the progress which he and the Secretary of State are making with the parties in Northern Ireland on identifying and appointing a mediator and what the timescale for that might be. This is clearly of huge importance to our debate and to progress towards establishing a new Executive in Northern Ireland. I beg to move.

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My Lords, thank you for bringing this matter before the Committee. I will make some general points and then some specific ones. The amendment would place the question of a facilitator or mediator in the Bill. We can do that without it going on the face of the Bill. As I indicated earlier today, we now intend to move from the statement which I gave the previous time I addressed your Lordships—that this is part of the mix—to stating that we are now actively consulting with the parties in order to move this matter forward. All elements of the timescale are not yet fixed but I can say that this will be moving forward within the realisable timetable that we have set for the overall movement of the parties gathering. In order for this to be meaningful, such an individual would have to be in play from the earliest stages, in order to move the most intensive form of dialogue forward. We hope and intend that such an individual would be able to act in a much more expansive role than just as a chair. I would rather use the word “Sherpa” in its European context; someone who can be part of the play and engage directly with each participant both behind and before the scenes.

We hope to move this forward with the consent of all the parties involved to make sure that it is a meaningful contribution. I cannot comment further on the individuals who might be in scope for this role, but others have already sent information through to the department, and we are in the process of sifting and examining it in some detail.

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My Lords, we have heard the suggestion of the noble Lord, Lord Adonis, that we have a mediator, but we are not comparing like with like. Going back to the time of George Mitchell, we have to remember that everything—the whole constitutional process, from scratch—was on the table. My fear is that if you appoint a mediator, they are not going to be able to confine their activities to the narrow issues that brought the Executive down. I believe Sinn Féin would want to completely open up the whole process, putting on the table the constitution, the principle of consent—all those things. I can see where people are coming from, but it seems to me that it is not beyond the ability of the parties to find a mechanism within themselves whereby talks could be held. To get a mediator to come in to deal with the Irish language Act and the RHI—the two things that brought the Executive down—does not seem particularly realistic.

The agenda would grow and grow, and the process could go on for years. Everything will end up on the table, including the constitution and the principle of consent. I do think we have to try to keep as open a mind as possible, but there may be a difference between a mediator and a facilitator, or a question as to whether the parties can find a mechanism among themselves; but bear in mind where this could go. If some people want to open up a process, there is no better place for Sinn Féin to be than in a process. They are serial negotiators; they want to continue to negotiate, which avoids having to take any tough decisions, particularly decisions in government. We have been warned by others that there are many who would take the view that Sinn Féin will do nothing until the Irish election is over. They do not want to have to take any tough decisions in government, which they would have to do because of the arithmetic, if nothing else.

Bear that in mind when considering the options before us. I would caution that that needs to be taken into account.

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My Lords, the Committee is listening with great attention to the noble Lord. Would he care to elaborate on the distinction between a mediator and a facilitator?

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I am not personally advocating either, but a mediator is somebody who is negotiating between the parties. A facilitator may be somebody who simply organises the meetings, the paperwork, the breakout sessions and so on. A mediator is playing a Mitchellesque role in meeting the parties, negotiating, putting papers to them and so on. I see it as a step down, if you like, in those terms. I am not personally convinced. If people are not mature enough at this stage, after all these years, to arrange meetings among themselves—and we did have one, admittedly, that was an initiative by one party. I do not believe that we are so far down the road that we could not arrange meetings between ourselves. If the will to talk is there, surely it is not beyond the bounds of possibility that the parties can arrange that among themselves. We have an Assembly Speaker and we have Deputy Speakers. They could chair the meetings. All parties are represented, more or less. There are ways in which it could be done, but believe me, once you get into a process with a mediator, it could go on for years.

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My Lords, I listened with great attention to the noble Lord, but I listened with equal attention to his speech at Second Reading in which he said that no progress was being made whatsoever in establishing an Executive, and that it was about time that some was made. If it has not been done by the process he has just suggested—the parties coming together—it is hard to see how some external stimulus could lead to a less advantageous situation than the current one.

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I take the noble Lord’s point, which is pertinent. However, do not forget that if we keep to this three-stranded model, we have a Secretary of State and, where appropriate, an Irish Foreign Minister, and in the proper format there is no reason why they cannot be engaged. I am saying that maybe it would be an incentive if the Secretary of State made it clear that a process was starting and that the parties understood that if they were not prepared to participate in that, perhaps she and others would start to take decisions. I am not trying to be obstructive or rule anything out. I am simply saying, be careful. It sounds like a good idea, but bear in mind that people who are serial negotiators—they have been doing this for 25 or 30 years —will put things on the table and open the whole thing up. My only worry about this is that it just postpones the decisions even further, although I understand fully the noble Lord’s good intentions.

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I will intervene for a few seconds. The issue is that because the “talks” and “negotiations” have been notoriously unsuccessful over the last couple of years, there has to be some form of structure—although I agree with the noble Lord, Lord Empey, that it has to be on a very restricted number of issues, otherwise you go back to a Good Friday agreement mark 2, and we do not want that. You want to work within the agreement but have some sort of structure. If there is a person who could organise that structure and be acceptable to all the parties, I see nothing wrong with that. I understand that if you expand it beyond the current issues, that could be difficult. However, there are a number of issues beyond those the noble Lord, Lord Empey, mentioned—for example, the Irish language and equal marriage. All those things can be on the table, but it is about getting some form of structure which simply does not exist at the moment. Anything that could help that would be useful.

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My Lords, I invited the Minister to set out the Government’s thinking, which he did, clearly, and I took him to say that they are minded to move towards some form of external mediation at some early date. I take that as a significant statement, and on that basis, I am content to withdraw the amendment.

Amendment 2 withdrawn.

Clause 2 agreed.

Clause 3: Exercise of departmental functions during period for Executive formation

Amendment 3

Moved by

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3: Clause 3, page 3, line 7, at end insert—

“( ) The guidance must direct senior officers of Northern Ireland departments, giving due regard to advice from the Northern Ireland Commission for Victims and Survivors, to prepare a scheme to provide a pension to those who are regarded as seriously-injured arising from an incident associated from the conflict in Northern Ireland.”

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My Lords, Amendment 3 is in my name and that of the noble Lords, Lord Bruce and Lord Cormack, and, I think, the noble Lord, Lord Bew, indicating Cross-Bench support. I will also speak to Amendment 13A in my name and that of the noble Lord, Lord Bruce.

When I spoke in March, I raised the plight of the 500 or so people severely injured because of the Troubles in Northern Ireland. The overwhelming majority were injured through no fault of their own, and face growing into old age desperately unsure about what the future holds for them. Because of their injuries, most of them were unable to build the kind of occupational pensions that they would otherwise have had. Just recently, one of the WAVE Trauma Centre’s injured group, which has been campaigning for a special pension, received a final settlement on her pension contributions in the form of a lump sum. It was taxed at 20%. She received a magnificent £25.39, which, frankly, is an insult to somebody in her situation.

Jennifer had her legs blown off in a no-warning IRA bomb in 1972, when she was 21 years of age. Paul, who was 21 when loyalists shot him six times because their target who lived next door did not turn up, is paralysed from the waist down. He describes the constant pain he lives with as like,

“sitting in a pool of lava”.

Every two days his carers—his wife and his brother—have to use a colonic irrigation system to empty his bowels into a bucket. That is Paul’s reality.

This especially vulnerable group of victims have had to deal with much more than the physical damage inflicted upon them. Peter was 26 when he was shot and paralysed in a case of mistaken identity in 1979. His wife, his childhood sweetheart, was tormented by misplaced guilt because she opened the door and,

“let evil into their home”,

as she described it. Peter had to watch her drink herself to death by the age of 51.

Mary was 17 when she was paralysed in a drive-by sectarian shooting. She was told that a realistic life expectancy was that she would not see her 32nd birthday. More than 40 years on, she is still here. She has had three shoulder replacements because of the strain on her upper body, being confined in a wheelchair. She has had to pay for these privately because if she joined an NHS waiting list she would be immobile.

Those who suffered severe physical injuries during the Troubles in Northern Ireland are, in many ways, the forgotten victims of the conflict. Perhaps there was an assumption that they had been looked after at the material time with generous compensation payments that would see them financially secure for the rest of their lives, but that simply did not happen. Many of the severely injured have lived much longer than the life expectancy assumptions made at the time. Most of the severely injured sustained their injuries during the 1970s and 1980s. Many predated disability discrimination legislation so, even if they could have found work, the chances that the workplace would have been adapted to their needs—for example, for those confined to wheelchairs—were more than remote. All they want is a degree of modest financial security so that they—and in many cases their carers—can live the rest of their lives with as much independence and dignity as possible.

To that end, I urge the Government to act swiftly to address this cruel legacy of Northern Ireland’s violent past and provide support for the severely injured through the provision of a special pension. Getting the Government both to recognise and to act upon that obligation is the purpose of these two amendments. In terms of the level of pension, the then Victims Commissioner for Northern Ireland suggested a figure of £150 per week or around the current state pension provision. Given the age profile, a lump sum for those aged over 75 would probably be more appropriate.

In any event the cost, including the administration of the pension, either by the Northern Ireland Civil Service or through the DWP, would not be prohibitive. This total cost has been authoritatively estimated to be between £3 million and £5 million annually. These figures clearly indicate that the pension commitment will diminish through the passage of time, even allowing for some provision for a proportion of the pension to go to the carer when the injured person dies. But for the pension to make a real difference to those who need it, it cannot be counted as income for the purposes of qualifying for existing benefits. That is a very important point. It must be “as well as” and not “instead of”, and be in addition to any other pensions and/or benefits that the injured person either is, or will be, in receipt of.

There is a subsidiary issue to be dealt with in relation to the relatively very small number of people who were severely injured by their own hand, but it is quite wrong that the vast majority who were injured through no fault of their own should be denied support because of a specific political blockage that could and should be resolved. These were not people in the wrong place at the wrong time. They were at work. They were at home with their family. They were having a coffee in a café. They were walking home after an evening at the cinema. They were in the right place, where they should have expected to be safe and secure.

Now is the time for the Government to act swiftly, with I hope wide parliamentary backing, after years and years of this case having no response. That is why I speak to this amendment, which simply seeks that the guidance referred to in Clause 3(3) must direct or, as Amendment 13A puts it, provide for,

“senior officers of Northern Ireland departments, giving due regard to advice from the Northern Ireland Commission for Victims and Survivors, to prepare a scheme to provide a pension to those who are regarded as seriously-injured arising from an incident associated from the conflict in Northern Ireland”,

and for that to be backdated, as Amendment 13A requires, to 1 January 2018. I say that because, if this takes some time to implement—if it requires legislation, as I understand may be the case—there must be certainty that this will happen and that, however long it takes to process, it will be backdated so that at least these victims can have something to look forward to.

This is an opportunity for the Government to show some real compassion for those who have suffered most. I know from conversations that I have had with the Minister that he is on the side of the angels on this matter. I respect him for that. I think that he is trying to do his best, and I hope that in his response he can take this matter forward. I do not want to make his life more difficult by anticipating and rebutting the Government’s likely official response, at least so far as it has been stated in the other place and elsewhere.

However, we have been told that this is a devolved matter and that the Government cannot undermine the devolution settlement by interfering or, as I would prefer to describe it, intervening. I will come back to the question of whether the plight of the severely injured is in fact a devolved matter or whether it should properly be treated as a reserved matter for the UK Government, like other legacy issues. However, there are precedents for the Government intervening in devolved areas because it has been the right thing to do. Health is devolved to Northern Ireland. Thanks to the amazing work of Charlotte Caldwell, literally arguing for the life of her son Billy, who suffers from life-threatening epilepsy, the Home Office was forced to move on the use of medical cannabis, which is absolutely essential for his and other sufferers’ treatment. The use of medical cannabis is now permitted in Northern Ireland. Did that interfere with the devolution settlement? Presumably not or it would not have happened.

Recently, the Independent Reporting Commission, set up to bring an end to paramilitary activity and to tackle organised crime in Northern Ireland, reported for the first time. Twenty-five million pounds to back the IRC came from the British Government, not from devolved budgets, to pave the way for those involved in paramilitary activity to make the transition from mafia-style gangsterism to being ordinary law-abiding citizens. Apart from a small but highly dangerous number of dissident republicans, the paramilitary activity that the IRC is focused on is pure gangsterism. Indeed, the highly respected former assistant chief constable of the Police Service of Northern Ireland and now chief executive of Co-operation Ireland, Peter Sheridan, argued that these groups should be called paramilitary no longer, but criminal gangs, and I agree. However, this is not a national security issue. Primarily it is a matter for the criminal justice system in Northern Ireland. It is a devolved matter. Criminal justice is devolved yet the Government intervene—absolutely rightly, in my view—to the tune of £25 million. Did that interfere with the devolution settlement? Presumably not.

Injured victims recognise that the paramilitaries who so grievously damaged them have to leave the stage and they do not begrudge this money being used to help Northern Ireland transition, but they wonder how the Government could find this money so quickly when they are told in effect, “Your case is nothing to do with us. Wait for the local politicians to finally bring themselves to discharge the responsibilities for which they were elected, whenever that is—next year, the following year, maybe whenever, if ever”. The reality is that the Government already intervene in devolved matters when it is the right thing to do in the absence of functioning devolved government and a functioning Assembly, and that is as it should be. Indeed, this Bill is a form of intervention.

The Secretary of State made a welcome move in May when she asked the Victims Commissioner to revisit and update her advice on this claim for a pension, and I thank the Minister for his role in that. I have absolutely no doubt that the Victims Commissioner will produce advice that is rigorous, objective, costed and workable, and I hope she produces it soon. No one will be plucking figures out of the air. There will be a template that can and should be speedily implemented.

When the Bill was debated in the other place last week, the Secretary of State said that the Victims Commissioner’s advice would sit on a shelf until devolution was restored. That is, in effect, telling those injured victims that they will not be assisted. Instead, they will be abandoned, as they have been for a very long time. An unarguable case for recognition and reparations has been made for nearly eight years now. For most of that time, there has been devolution in Northern Ireland, and all they have got is tea and sympathy because the question of eligibility in relation to the very small number of those “injured by their own hand” is just too difficult for the local parties to resolve. That is why it should and must be done by this Parliament.

We rightly praise politicians in Northern Ireland who are trying to take it to a better place than it was in when I and other noble Lords, including my noble friend Lord Murphy, were charged with building new political foundations out of the wreckage of a violent past. At the same time, we have to call them out when they dig in behind their entrenched or sectarian positions and refuse to compromise for the greater good of victims, such as those severely injured. So far, the DUP and Sinn Féin remain deadlocked on this issue, and nothing has moved. That is why we must do it for them, so that justice for this most vulnerable and desperate group of citizens can prevail, and when I speak about them I mean the vast majority who were not “injured by their own hand”. The latter can be dealt with separately.

Nevertheless, I firmly believe that the Government’s insistence that this is solely a devolved issue is misplaced and simply wrong. Those campaigning for a pension who were injured through no fault of their own are as much a part of the legacy of Northern Ireland’s violent past as anything else, and the Government are trying to address this. Indeed, it would be hard to find a more physical manifestation of that legacy than Margaret, who has no eyes, pushing the wheelchair of Jennifer, who has no legs. Has the Secretary of State so little compassion for her plight that she will not put the local parties to shame by providing a pension, and quickly? The Government have an overarching responsibility for legacy issues. That is why they are considering responses to their recent consultation paper on legacy issues, for which they have set aside £150 million. It would be absolutely shameful if the people who have suffered so much were told, “We feel sorry for you, but not sorry enough to do anything about it”.

Finally, I wish to say something about the Bill before us that relates directly to the amendment but has wider and deeply worrying implications. I could have made this point at Second Reading, but I make it now. The Government want us to focus on the narrow issue of the supposed clarity given to civil servants in Northern Ireland, in relation to their capacity to maintain public services and keep the business of government ticking over in the absence of an Executive and Assembly. What is seriously concerning is how long the Government envisage this democratic void persisting before anything happens. They do not envisage any movement before March next year, and then an additional five months is built in. It is shocking that the Government do not seem to realise that hoping something will turn up is nothing approaching a coherent political strategy to restore devolution. Sadly, while the Government procrastinate, the condition of severely injured victims deteriorates daily, and many fear that they will die before their plight is acknowledged and support given. Time is not on their side. The Government must show that they are prepared to act in the name of justice and decency, and I appeal for support for this amendment if the Minister resists it.

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My Lords, I will be very brief. I was delighted to add my name to Amendment 3, which is also in the names of the noble Lords, Lord Hain and Lord Bruce. I do not need to make the case, because it a powerful case that has been powerfully made by the noble Lord, Lord Hain. All I would say is that during my five years as chairman of the Northern Ireland Affairs Committee in another place I met many people and heard many distressing accounts that underline the points made by the noble Lord, Lord Hain. We are talking about people whose futures were destroyed, whose hopes were blighted and whose lives were changed for ever by an evil act and not by anything that they had done to themselves.

As the noble Lord, Lord Hain, said, there were those who were responsible for their own injuries. They deserve some compassion for their terrible mistakes and evil deeds, but that is not what we are talking about tonight. We are talking about those who were blameless and whose need is great, who are advancing in years as they advance in decrepitude, and who are less and less able to do anything for themselves. The only way to help those people, who are as deserving of help as any category I can think of, is for us to do something along the lines advocated in Amendment 3.

I hope that my noble friend the Minister, for whom I have a genuinely high regard and who is a real master of his brief and really concerned with the subjects for which he is responsible, will be able to say enough to prevent any thought of dividing the House. The House should not be divided on an issue such as this. We should be totally united in our determination to do a little for those who have lost so much. I have great pleasure in supporting this amendment.

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My Lords, I too support this amendment, which I have signed, and which was powerfully moved by the noble Lord, Lord Hain. All I add is that it encapsulates the dilemma that the Bill represents. These are people who have suffered for decades and who are towards the end of their lives, although they have lived a lot longer in many cases than they were expected to, with psychological and physical difficulties. There is a cross-party and, indeed, administrative and political consensus that they should be compensated, but there is no mechanism for doing so because that mechanism has effectively foundered or is in deep freeze. In that situation, to say to these people that they will have to wait until such time as an Assembly is re-established would be heartless in the extreme.

There are two issues. First, it should be within the capacity of the Government to make this happen, either in the Bill or by some other mechanism. The cost is relatively low. Secondly, to suggest that it is not possible to do something as sympathetic and compassionate as this, which has such cross-party support, would be very distressing to people who have been led to believe that their case is understood and that there is a willingness to deliver it, when, because of the incapacity of the political system, they might have to wait too long even to benefit. The amendment is well made and there are one or two others that fall into the same category. If the Minister can provide the assurance, he should really be talking not to the House but to the victims.

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My Lords, I support the noble Lord, Lord Hain, on this issue. We need the issues of the past to be dealt with. This needs to be dealt with by means of a separate ring-fenced budget so that it does not come out of the Northern Ireland budget. Particularly on pensions, I know many of the people to whom the noble Lord referred. I have worked with them and met them, and spoken to and for them. There is an ongoing campaign that is wearing them out. I ask that there be support, as there seems to be right across the House.

I also ask for support for additional resources for trauma services, for the ongoing search for the disappeared, such as Captain Robert Nairac and the 17 year-old Columba McVeigh, and for an independent historical investigations unit that is not constrained to a five-year period.

The suffering of those to whom the noble Lord, Lord Hain, referred has been enormous. It has lasted for so long. The Government could make a difference here and I ask them to do so.

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My Lords, I add my support to that which the noble Lord, Lord Hain, has received already. In my own experience over the years, I have been in these people’s homes; I have been at their bedsides; I have been with their families; I have tried to advise their young people, who were bereft of parental support. Time and time again, the efforts of clergy of all denominations have somehow come to a shuddering stop over this simple question: who is a victim?

Right back in the early stages, when Denis Bradley and I were asked to produce a report on the legacy of the Troubles, we came head-on to this question of definition. In my reading of the words that the noble Lord, Lord Hain, just used in his speech, I have no hesitation in adding my support to his request. These are the real victims of legacy: through no fault of their own, they will carry to their deaths the scars—mental and physical—of the Troubles. I am so glad to support the amendment.

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My Lords, I briefly add my support for the amendment moved so passionately by the noble Lord, Lord Hain. From personal experience, I know what it is like to campaign for a pension that one desperately needs. It is soul-destroying. The relief when the pension finally arrives is also life-changing.

The Government already intervene in devolved issues, as the noble Lord, Lord Hain, said, while the functioning Assembly is not operational. The case for recognition and reparations for these severely injured victims seems absolutely clear. I implore my noble friend, who I know is a compassionate man, to urge the department to show the compassion for which so many across the House have expressed the need.

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My Lords, I support my noble friend Lord Hain and the noble Lords, Lord Cormack and Lord Bruce, in their Amendment 13A. I spent two and a half years as Victims Minister in Northern Ireland. As we heard from other noble Lords, there is great understanding in this House of the suffering that many have endured. Indeed, the Eames-Bradley report—written by two great men—really brought home to many what was required for the needs of victims, though it was unpalatable and difficult for some.

The victims whom my noble friend Lord Hain spoke about are ageing—they are getting older. Their conditions are getting worse and their circumstances more difficult. One of the things that struck me as both Victims Minister and Health Minister was how, in so many cases, the help that the health service was able to provide was inadequate to meet the needs of those who required support, particularly in cases of mental health. When you spoke to the group of people we are talking about—I do not know whether other noble Lords felt the same—and heard their stories and about the impact of what had happened on their lives, you would be very conscious that you could turn around and take the story with you, but they were living with what they told you and the consequences would never leave them.

We understand the limitations of the Bill and what can be done within it. We understand the problems caused by there being no Executive or Assembly, but this is an occasion when, I hope, the Government could take some action to right a wrong and address an injustice. They could take a step in the right direction to see what support can be given. I congratulate noble Lords on bringing this forward, and I hope that the Minister—who I know is giving considerable thought to this—can give a positive response this evening.

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I am struck, as I gaze around the Chamber, by how many people are wearing poppies. And I am struck again by the poetry:

“Age shall not weary them, nor the years condemn”.

But of course we are talking about people who will be wearied by the passage of years and who will be condemned to live through that period—victims of a great iniquity done to them. I have spoken of the situation a number of times now with the noble Lord, Lord Hain. I will preface my remarks by saying that it is our hope that we will secure an Executive who can take this matter forward. Were I to stop with that answer, it would be inadequate, so I will not stop there but carry on.

The important issue here is that we have commissioned from the Victims Commissioner a thorough report into all aspects of this serious issue. We have asked her to expand her remit to look at not just physical but mental anguish and I am able to say today that the Secretary of State will write to the Victims Commissioner, asking her to include a date from which payments shall be made. This is not a future point but rather some point where we can be very clear going forward.

As I said, it is our hope that an Executive will take this matter forward. However, if, despite our best efforts, that Executive have not been restored by the time updated advice on a pension issue has been provided by the Victims Commissioner, the Northern Ireland Office will consider how the matter can be progressed. That is not to put it into the long grass or put it away, but to recognise that it must be progressed.

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Has the Victims Commissioner indicated a date by which she might report?

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The Victims Commissioner has not indicated such a date, but I am led to believe that we should be able to see progress in good time, if I can use that term. It is not an answer that the noble Baroness would want. I would like to give her a date but I cannot bind the Victims Commissioner to a date.

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Of course my noble friend cannot bind her, but could she not be asked to do it within six months at the most? These people’s lives are coming to an end very frequently and we do need to have a date.

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I am in a slightly invidious position because I cannot give a date—but I know that six months would be very far away and would be unacceptable to us. I cannot say that specifically, if my noble friend will forgive me, but we will make progress as quickly as we can because we recognise that this is not a matter that can be left to languish. The individuals are living through their own fate and we will not allow that to be the case. I hope that noble Lords will accept these words for what they mean and what they can deliver.

My word—I have been given a sheet of paper. We will guarantee within six months. So, yes, we will be able to do it within six months and I hope that that will therefore give some comfort to noble Lords that we take this matter with the utmost seriousness and we will move it forward.

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My Lords, I am grateful for the support from the noble Lords, Lord Cormack and Lord Bruce, from the noble Baronesses, Lady O’Loan and Lady Altmann, from the noble and right reverend Lord, Lord Eames, with his passion, and from my noble friend Lady Smith, because of course she worked with many victims, both when I was Secretary of State and before and did a fantastic job. She, perhaps more than anybody, knows about the issues at stake here, from a ministerial point of view at least. I am grateful to the Minister for the discussions we have had and for the efforts he has made both to understand and respond to the issue. He has showed more conviction to do something about this than I have detected from the Government so far. I do not want to put him in an invidious position, and I certainly do not want to injure his future career by praising him, but he has shown real compassion as well as some determination to resolve this.

I think that six months, with due respect, is a long way away, as the Minister said. The Victims Commissioner has had this instruction since May. That is a while ago and I hope that this can be weeks rather than months. Maybe some of his officials listening to this debate might ring the Victims Commissioner and suggest that she at least read the debate and make her own mind up.

This has to happen—and it has to happen within a specified time. I am not asking the Minister to do that specifically tonight, but I do not want to be in the position of facing some future legislation in six months’ time and then being told, “Well, maybe next year”. I am grateful to the Minister for saying that there will be a date from which it will be applied, even if the actual decision to do something about it comes in the future. I think that that will be a reassurance to the severely injured victims. I look forward to receiving the letter which may give us some clarity. On that basis, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by

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4: Clause 3, page 3, line 7, at end insert—

“( ) The guidance shall direct senior officials of Northern Ireland Departments to take all reasonable action to prepare to deliver, within the existing legal framework, a redress scheme for victims of historic institutional child abuse, taking into account the recommendations of the Historical Institutional Abuse Inquiry and the reports of the Panel of Experts on Redress.”

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My Lords, I think this again indicates the dilemma that we are having, although the framework is possibly slightly clearer and it may therefore be possible to implement it at least as well as the previous amendment, which we hope will be delivered. The reality is that the historical institutional abuse inquiry was the largest inquiry into child abuse ever held in the UK. I think it is fair to say that the backdrop was not just the need to investigate: in reality, movies have been made, novels have been written, many testimonies have been given to the systematic and appalling treatment that people have received, north and south of the border, over decades and in many institutions. It is quite shocking. When we read these things, it makes most people very angry that that kind of abuse could have been perpetrated—sometimes, and too often, in the name of religion. However, the point is that an inquiry happened, it reported and made clear recommendations. It was chaired by retired judge, Sir Anthony Hart, and lasted for four years. It is more than two years since it reported. It included a public apology, a memorial and a financial redress scheme

There is political agreement—and yet, because we have no Executive and no Assembly, we have no ability to deliver that agreement. We are talking about victims who, as in the case of the previous amendment, have been waiting for up to 40 years for redress and have had to live with consequences of that abuse. We are seeing them, again, approaching the end of their lives without having received anything more, at the moment, than an apology and a memorial. There is a need to address this.

The recommendations of the Hart commission provide a clear template. It looks, on the face of it, as if this could fall within the terms of the Bill. In other words, there is enough detail in those recommendations to enable the civil servants to implement them. Again, without guidance, maybe the civil servants feel that they cannot or should not, or that they need the authority of Ministers from an Executive or the Assembly.

If the Minister agrees with the basic analysis I have presented, is it his interpretation that the Bill could provide the guidance that would enable the recommendations of the Hart commission to be implemented within the terms of the Bill as advice and recommendations that civil servants would actually have the capacity to implement? If that is not possible, the same argument will apply as to the previous amendment—that the UK Government need to do something about it. I beg to move.

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My Lords, I support the amendment of the noble Lord, Lord Bruce. It would be absolutely ridiculous if the amendment which has previously been accepted were to supersede this particular case of sexual abuse of young people, which predates to a large extent what has already been dealt with in Amendment 3.

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My Lords, my Amendment 6 is in this group. The argument is the same. This is not the first discussion we have had on the Hart report. It has been raised whenever we have dealt with budgetary matters, and we have had two budgets. To put it in context, there is one complication in that the funds are not exclusively a government responsibility because presumably the people who operated the institutions have insurance. We have seen examples, particularly in the United States and elsewhere, where insurers have had to contribute. I am totally in favour of that but it should not paralyse us and prevent us moving forward.

The other characteristic of this proposal is that there is all-party support in Northern Ireland for it. There is not a single, solitary MLA in Stormont who is opposed to it, so there is no reason to say that there is a political issue here. There is no political issue with regard to support. There is unanimity—a rare commodity in Northern Ireland. The victims came to the other place to lobby—I met them in the Public Gallery—and spoke to Members of Parliament. This is a very similar demographic to that referred to by the noble Lord, Lord Hain, including people who were traumatised more than 40 years ago. This is not just a Northern Ireland issue; it applies right across the board, as the noble Lord, Lord Bruce, indicated.

Where do the funds come from? As of yesterday there are unhypothecated Barnett consequentials of £320 million. Where Barnetts are concerned, the money that comes from London does not have to go to particular subjects, such as education or roads; it can go to whichever department the previous Executive directed it to. It would not be difficult to check again whether there is unanimity for this, which I believe there is. I understand the Minister’s dilemma—is this creeping direct rule?—but there is a different dimension here, just as in other amendments that we will come to shortly. There is compassion. There is time. There is the degree of suffering that people endured. Is it right that we add to that when there is no financial, political or any other rational reason for doing so?

I just do not believe that the ordinary person in the street back home, whatever their view of devolution or Stormont, would be that upset if these people who have suffered for so much of their lives receive redress and we deal with this on humanitarian grounds. That is the best approach. There is unanimity of support, there is a humanitarian issue and I believe the resources are available. On those three issues, I hope the Minister will see fit to give us a positive response.

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The people affected by the historical institutional abuse inquiry were also affected by the Troubles. Many of them ended up in residential institutions because of the Troubles. Billy McConville, the son of Jean McConville—who was abducted and murdered by the IRA—died before the payments recommended by Hart were made. I support the proposal and hope that the Government will find some way of dealing with this in the interests of those victims.

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My Lords, I, too, have some sympathy with the amendment moved by the noble Lord, Lord Bruce. As the noble Lord, Lord Empey, said, this issue is supported by all the political parties in Northern Ireland in trying to address this very serious problem.

It is quite some time since the Hart report was delivered to the Government. I know that David Sterling, head of the Civil Service, was working up a Bill to try to resolve the issue, but I am told that he is now saying clearly that it has to be dealt with by a Minister, which slightly worries me. None the less, if there is anything that all the parties can agree on, the Government should grab it, because that does not often happen.

I have raised this subject in the House before, because I believe that the institutions responsible for the abuse should pay up as well. It would be totally wrong if all the money came from the Government. I know that the issue has been raised in the other place as well, and I say to the Government that nothing should stop them trying to address it. Some survivors of the abuse are getting old: some are very elderly, and some have died. Relations have died, too, and those people have not seen the full output of what they deserve. I appeal to the Government and I hope that, with the support of all the political parties in Northern Ireland, and the support shown throughout this House and in the other House as well, when the issue has been raised, they will find a way of dealing with it. We should make sure that we do not create a major problem for devolution in Northern Ireland when it comes back.

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My Lords, it is not often that we find unanimity in such a fashion, so let us grab it with both hands. I fully recognise the importance that Members accord this issue. It stands alongside the earlier matter raised by the noble Lord, Lord Hain. I hope the House will welcome the fact that the Northern Ireland Civil Service has advised that it is currently preparing draft legislation based on the recommendations of the Hart inquiry, which it will publish very soon. On the basis of that there will be a full public consultation, to ensure that we can move this matter forward, and it will be our intention to do so within a sensible time. There is unanimity on this issue and I believe we can make progress on it. I hope that is enough to give the noble Lord who moved the amendment some comfort.

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I am grateful to the Minister for his characteristically sympathetic response, and obviously for the practicality that civil servants are bringing forward legislation. That does, of course, raise the question of how and when such legislation could be implemented, given the present lacuna. So I add the proviso that I hope the Government will ensure that the timetable is not open-ended. This does not have to wait for ever, or for the return of the Assembly.

A point has been raised about the responsibility of those who perpetrated the abuse. Yes, I agree—but I also caution that I would not want that to be used as an excuse to create an argument that would delay things. It seems to me that there is absolute agreement about what should be done and how it should be done. It is good that legislation is happening, but it is slightly concerning that this requires legislation rather than executive action. There seems to be enough in the Hart recommendations to pretty well constitute the basis of legislation, which could be implemented as an executive action. With the proviso that I hope the Government will not allow this simply to languish as one of the issues waiting for the Assembly to return, I am willing to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Moved by

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5: Clause 3, page 3, line 7, at end insert—

“(4A) The Secretary of State must establish an advisory panel which senior officers of Northern Ireland departments may consult in cases where they are required to exercise a function of the department under subsection (1).(4B) If a senior officer consults the advisory panel under subsection (4A), then the senior officer must have regard to the advice of the advisory panel.”

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My Lords, before I speak to the amendment I should like to say that the noble Lord, Lord Hain, is right in his belief that he has my support on the earlier amendment and I am happy to give it. Amendment 5 is about a less emotive matter, but it still addresses a serious question. Noble Lords will have heard, particularly in the speech by the noble Lord, Lord Empey, but also in an allusion just now by the noble Lord, Lord Hay, about the morale at the top of the Northern Ireland Civil Service. It is in a very bad way. Part of the context has already been described by the noble Lord, Lord Empey: the incredible bullying by spads. Of course you hear about bullying by spads in Whitehall but believe me, as someone who knows both worlds, this is a qualitatively different level of bullying. The consequence has been that the Civil Service has lost some of its élan and, to be blunt, self-confidence.

Related to that is the fact that at the beginning of the Brexit crisis the Irish Government, under Enda Kenny, the then Taoiseach, had allowed practical discussions about the border and other questions to go on with Northern Ireland civil servants, but that was then stopped under a new Irish Taoiseach. In fact, the Northern Ireland Civil Service has not had the sort of practical impact on Brexit discussions—even with our own Government, in a weird kind of knock-on effect—that it might be expected to have. When you read that three or four weeks ago Michel Barnier was asking for figures on the trade flows on the island of Ireland—east-west and north-south—your jaw drops because you know that the senior officials at the Northern Ireland Office all know these things just like that but apparently we have been conducting a negotiation with the rather important issue of exactly what is going on in this trade relationship not even known. Perhaps it is not that surprising; there are things at stake in this negotiation other than the actual practicalities of the trade relationships from north to south and east to west, but still they seemed to have disappeared from the scene.

I think, by the way, that this issue has constitutional significance. The NICS has a strong sense of the way in which the Good Friday agreement was established, particularly the notion that if you are going to adhere to the agreement then north-south regulatory arrangements, however they develop, depend on the co-operation and support of the Northern Ireland Assembly. That point is critical: if you are going to defend the Good Friday agreement, you also have to be careful about what is projected in terms of regulatory arrangements north and south, and the Assembly has an effective veto.

We have lost a lot through a lack of morale. It means that when this legislation came down the pipe, officials could be heard rather nervously saying, “I don’t want that authority”, even though, to be absolutely blunt, the Queen’s Government must go on and these decisions are necessary to prevent extreme cases of waste, if nothing else. So it must happen and the Government are right to take the powers. However, in the context in which we are now living, it is right to offer the officials, who strongly suspect that they will be subject to judicial review and all manner of clamour locally about decisions that people do not like, some sort of advisory panel—which might include Assembly Members—as a kind of cushion against some of the pressures that will come their way. It is hard in the current public climate in Northern Ireland to ask a single Permanent Secretary of a given department to, as it were, take on the burden of these decisions on their own because all hell will break loose, even over decisions that we consider the simplest, and the most obvious and clear-cut. There will calls for judicial review and major public controversies. So there is a case for having some kind of advisory panel so that officials would, in effect, be able to say, “I took the advice of the advisory panel”. That is the case for this amendment, given the current public climate. When the morale of the NICS was somewhat stronger I would not have made it, but let us be clear that everyone knows—the noble Lord, Lord Empey, explained why today—that its morale at the top levels could not now be lower. That is why this is the specific moment at which to advocate this point.

I have one final point. In a slight aside, the Minister talked about the legislation as having been designed to progress public appointments that have lapsed or are not happening. One of those categories is QCs, and I wonder whether the Government have anything to say to clarify their general position on quite rightly wanting to speed up public appointments.

This is essentially a probing amendment and I am strongly in favour of the Bill in general terms. Whatever happens today, though, the Government should be very mindful of the exposed state now of those who head up, as Permanent Secretaries, the individual Northern Irish ministries.

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My Lords, I have Amendment 13 in this group. I am not quite sure that it sits precisely with Amendment 5. To follow up on what the noble Lord, Lord Bew, said, I asked whether senior civil servants were members of the First Division Association, the trade union for people in senior positions in the Civil Service, because these civil servants are being asked to do things that no other civil servants are being asked to do. There is a risk here that is not fully appreciated. We are taking it for granted.

The noble Lord, Lord Trimble, made the point about the law and the department being different. Here, the power is vested in the Secretary of State and back home it is vested in the department—we understand that—and a Minister’s role, when one is in place, is to direct and control the department. What we found when we had a period between devolution before—even though there was direct rule—was that civil servants ended up having to implement policies that they knew those of us who had been devolution Ministers and were again did not approve of. They were put in an embarrassing position when devolution was restored because they suddenly found they were having to work for somebody whom they had previously actively opposed. We have to understand that you cannot take a public institution such as this and simply mould it to whatever circumstances you find on a day-to-day basis. These people have a career. They do not want to get into a firefight with politicians but that is where we are pushing them. We have to be very careful.

My amendment covers audit office reports and, like everything else, these come regularly. Each year the auditor decides an agenda of what issues might come up. These reports are extremely valuable because they look at what is happening to taxpayers’ money. Incidentally, there is another big question. What happens when Sir Patrick Coghlin reports on his inquiry? Where does that go? It certainly will not go into the ether. Who will deal with it? Does the department prepare and publish a response? Will important lessons be learned from these audit office reports? We have to be careful that they do not just disappear because valuable lessons are learned from them here as well as everywhere else. I simply say to the Minister that reports should not just be in the ether, without our knowing what happens to them. It is taxpayers’ money at the end of the day and Parliament has an overall responsibility for that, even though it is devolved. I should like to think that departments will publish a response, even if it is merely to some of the technical matters that may be resolved.

I support the noble Lord, Lord Bew. Practically every week over the last couple of months, senior civil servants have been appearing in that inquiry and getting a hard time—some of them have been there for days—and coming back and revealing what has been going on. I have to say that, even though I knew things were not great, like most other people, I have been shocked by the extent of the abuses that have been allowed to take place and the culture that permitted it to happen. Huge issues need to be discussed here. In this case, I should like to think that responses to audit office reports can be published so that we can learn and, I hope, not repeat the mistakes.

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My Lords, it has been a very interesting short debate. I think that it has to be dealt with in the context that this is a temporary arrangement. The issue at the end of the day is that if we have anything like an elaborate panel set up, it will give permanence to this totally unsatisfactory system where a part of our country is run by civil servants who are unaccountable in any way to the electorate.

My experience is that as a Minister you would have in the department a system by which you would consult civil society on various decisions that you have to make anyway—at least there should be consultation. Perhaps there is some method by which that could be made a little bit stronger, so that there is a sounding board for the civil servant. The danger always is that the civil servant will be very reluctant to take a decision that might be controversial but which is necessary. That is worth examining, but in the context that this has to be seen as a highly temporary arrangement. It also highlights how terribly unsatisfactory the whole situation is that we do not have a proper elected Government or Assembly in Northern Ireland.

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My Lords, I am grateful to the noble Lord, Lord Bew, for his thoughtful Amendment 5, and for giving us advance notice of it. I also note the support given to the amendment by the noble Lord, Lord Empey.

I say at the outset that I appreciate the intent—seeking to give Northern Ireland civil servants some further cover. I listened very carefully to the analysis of the noble Lord, Lord Bew, of the status quo, especially on the question of morale: that was very much taken note of. I want to assure the noble Lord that we have considered options for providing support in this way to the Northern Ireland Civil Service, and will keep them under review.

The decision-making provisions in the Bill are needed urgently, and while the case could possibly be made that there would be some merit in having advice from an external body such as an advisory panel, the challenges and time commitment associated with setting one up mean that we have opted to proceed without one at this particular stage. I should say also to the noble Lord that my noble friend Lord Duncan and I have spoken in this Chamber before about the burden on civil servants, and I add my voice to the understanding that has been given today about the genuine burden that falls on the Northern Ireland Civil Service.

The amendment, however, causes problems in terms of how such a panel, if mooted, would be constituted: under what authority; how it would operate; and what would happen if it could not agree a position. I am sure that the House will understand those questions and the difficulties involved, again alongside the need for speed and urgency today. We will continue to consider carefully whether Northern Ireland civil servants need further support, and, as the noble Lord, Lord Murphy, said, it would have to be temporary. For today I hope that the noble Lord will feel able to withdraw his amendment.

I turn to the second amendment in this group—Amendment 13, tabled by the noble Lord, Lord Empey—which seeks to direct departments to publish their responses to the Northern Ireland Audit Office. As the noble Lord, Lord Duncan, made clear in his opening speech, the Bill and guidance are not a move to direct rule. To include this amendment in the Bill would introduce a level of formality that we believe is not appropriate and runs too close to directing Northern Ireland departments. That goes against the spirit of the guidance, which is intended to assist departments in deciding whether exercising their functions is in the public interest but does not direct them to take specific actions.

We fully recognise the importance of transparency, which is why the guidance published alongside the Bill seeks to build on the arrangements agreed with the Northern Ireland Civil Service as part of the budget. In addition to Northern Ireland Audit Office reports on budgetary matters, this guidance sets out that all reports and the respective departmental responses will be presented to the Assembly and shared with the Secretary of State, who will promptly lay these in Parliament. This effectively makes them available to the public. The Secretary of State will also now be writing to share these with the Northern Ireland political parties to encourage their scrutiny of all Northern Ireland reports and departmental responses.

The noble Lord, Lord Bew, raised the question of QC appointments. The Bill deals with the bodies that are currently considered to be the most pressing cases. Making the necessary appointments to those bodies is essential to the good governance of vital public bodies in Northern Ireland. The Bill enables the Secretary of State to extend this to other offices by regulation, and we will continue to monitor the situation and assess whether further offices—including QCs—should be included in regulation, which would then be debated by affirmative procedure.

The noble Lord, Lord Empey, raised a point about the RHI inquiry. As the noble Lord says, the inquiry is ongoing, so there is a limit to what I can say on this, as I am sure he will appreciate. However, the House will recall that it agreed legislation earlier this year for external cost-capping regulations to ensure that scheme continuity can be kept. This allows the Northern Ireland department to consult on a way forward to develop options for a longer-term solution.

I hope that this short debate will provide sufficient comfort for the noble Lord, Lord Bew, to withdraw his amendment on the basis that it is already provided for in what we are proposing.

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I am happy to withdraw my amendment.

Amendment 5 withdrawn.

Amendment 6 not moved.

Amendment 7

Moved by

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7: Clause 3, page 3, line 7, at end insert—

“( ) The guidance must direct the Department of Health in Northern Ireland to take all reasonable action, within the existing legal framework, to prepare to—(a) reduce waiting times and waiting lists for the provision of all health services;(b) improve the timeliness and quality of cancer treatment services, including a new cancer strategy; and(c) implement the recommendations of the Strategy for Suicide Prevention in Northern Ireland (“Protect Life 2”).”

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My Lords, I have raised issues pertaining to health in Northern Ireland before. I think I quoted figures before that show that, out of a population of 1.8 million, we have 280,000 people waiting for their first consultant-led out-patient appointment. Of those, approximately 90,000 are waiting over 12 months. At the end of June this year, a further 83,746 patients were waiting for admission to hospital. Of these, 18,000 had been waiting longer than a year. For performance figures for A&E, sadly we are at the bottom of the table for the whole of the United Kingdom again—not meeting any targets, but in fact at a worse level than any other part of the United Kingdom. Whichever way you look at it, this crisis in health has been building up for some time. Its origins date from before the Executive ended, because the trend had already been established, but it has now accelerated. These figures refer to the summer, and we have not even begun to get into the issue of winter pressures.

I have drawn your Lordships’ attention before to the fact that I believe that the Government should take control of health back here to Westminster on humanitarian grounds, on a temporary basis. Bear in mind that it happened with welfare reform—the decisions were taken and then the powers were sent back to Stormont. That happened because there was a political disagreement. These figures may mean a lot to somebody or they may mean nothing to anybody, but I can assure Members that what we are seeing here is real harm done to a significant number of people. That is why we really need to take action.

The problem we have at the moment with the absence of a Minister is that nobody can take long-term financial decisions. We are taking decisions within a very short timescale, and anybody who knows anything about health knows that you cannot do that. It requires time and planning and it is very inefficient if it is all done at the very last minute. A Minister could enter the scene and take decisions on even mid-term financial planning. Immediately an Executive is formed it can be taken back to Stormont. Some people say that there is a risk of creeping direct rule. I am not in favour of direct rule; I believe in devolution, but we are dealing with a magnitude of something here. There are 5,600 vacancies. Last week, I visited a hospital. One of the bays in the ward had to be closed because there were not sufficient staff.

This leads me on neatly to Amendment 8, which deals with pay. At the moment, there is nobody to agree even agreed payments. The health service has not had increases; the Police Service of Northern Ireland did not get payments for 2017-18, to say nothing of 2018-19. We are depending on these civil servants, front-line workers in the health service and police to keep us safe yet, as I understand it—I hope I am wrong—there is no mechanism to deliver a pay rise. What would the reaction be if that were happening here? With all the publicity there has been on policing issues, on the Department of Justice, and on the pressures of numbers in prisons, we say: “You are not getting your pay rise”. These are not demands; they are agreed through the proper mechanisms yet they are just lying there.

I appreciate the Minister’s dilemma on this and the political issues surrounding it. However, just like the Hart issue and the pension issue, this is a step above and beyond a simple matter of politics. People’s lives will be blighted by these waiting lists and they are getting longer and longer. I respectfully ask that the Minister recognise the significance of this. I can imagine nobody objecting to having a proper Minister appointed, on a short-term basis, to deal with these matters. I beg to move.

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My Lords, these two amendments in the name of the noble Lord, Lord Empey, seek to direct the Northern Ireland departments regarding health issues and public sector pay. As we have consistently said, the proposed legislation is not a move to direct rule, and decision-making must remain within the remit of Northern Ireland departments. To use this guidance to direct individual decisions would therefore go against this principle.

It is important that senior officers are able to apply the principles in the guidance in determining whether it is in the public interest to exercise functions. I understand the concern to ensure that effective decisions are made on the important issues of health, such as waiting lists, and public sector pay—as the noble Lord, Lord Empey, pointed out. However, as we have heard today, these are certainly not the only important—I stress that word—issues in Northern Ireland. Prioritising certain functions in the guidance could suggest that they should be followed at the expense of others. We are confident that the draft guidance as it stands allows Northern Ireland departments to exercise functions such as those raised in this amendment, although whether and how to exercise functions must remain a matter for Northern Ireland departments.

The Department of Health is already working intensively to respond to increasing demands on the Northern Ireland health service, and will continue to do all it can to uphold its duties in the public interest in this interim period. We of course recognise, however, that there are some decisions not enabled by this Bill. The Bill and guidance simply seek to enable senior officers in Northern Ireland departments to take a limited range of decisions using existing powers where it is in the public interest to do so now rather than wait for Ministers. That is in the context of providing the space and time for political talks to help restore devolved government, an issue that has been much discussed today in the Chamber.

Intervening in individual areas in this manner would be tantamount to direct rule—the noble Lord, Lord Empey, used the expression “potential creeping direct rule”—and would undermine our commitment to devolution and the Belfast agreement. The Prime Minister and the Conservative and Unionist manifesto are crystal clear that we will uphold our obligation to the people of Northern Ireland to ensure that their vital public services are protected. We have always said that we do not rule out further legislative intervention if it is necessary. I realise that my response will disappoint the noble Lord, Lord Empey—he will probably not be too surprised—but on the basis of these points I hope that he will feel able to withdraw his amendment.

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Before the Minister sits down, I want to say that he is not quite clear as to the Government’s exact position. He is saying that senior officers should be able to take certain decisions. Of course, this could be seen as direct rule. Look, folks, this is life—this is people’s lives here. We are not talking about a road junction or something casual. We are talking about people not being treated within any guideline that currently exists on these islands. In other words, these are to be sacrificed because of some political ideal of devolution versus creeping direct rule, or “Who are we going to annoy? We are going to annoy Sinn Féin. We are going to annoy this party or that party”.

Think of the people affected by this. This is not going to go away. It is getting worse. The statistics have been going like this not just recently, but for a long time. The suicide strategy is another one where there is total agreement. It is a big problem back home and it has not been addressed, yet everybody agrees that it should be addressed. What does it take?

I ask the Minister to clarify what he means. He thinks the guidance will allow officers to take decisions, yet on the other hand they are afraid that this would be seen as creeping direct rule. This is a qualitatively different subject matter, and it is on humanitarian grounds that I put this forward, not on a political platform.

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It may appear that, because the noble Lord, Lord Empey, is leading this on his own, he may not have support. I think he has support from everybody. I declare an interest in that I have had cancer of the throat. This sort of thing does not just affect the people. It affects their families and dozens of other people; it affects their friends. I feel that it affects their friends and families more because they are so worried that they cannot do anything to help, and yet the state, in the form of the National Health Service, is not helping them. Therefore, I cannot conceive that this is not in the public interest, yet the Minister is almost saying that if a senior civil servant thinks it is in the public interest he may come out in support of it.

The other point is that, on another amendment, on the PSNI, we have just spent five or six hours debating the fact that the primary aim of the Government is to restore the Assembly. Policing is absolutely vital to that, and we cannot see the police force denuded of pay or resources to achieve this end. I am afraid that all afternoon, whenever we have talked about any other part of it, the Government have been saying, “Our primary aim is to restore the Assembly”. We will not restore it without enabling our security forces, the police, to manage the day-to-day situation. The Minister should give a slightly more reassuring answer than, “We’ll post it back and see what they think about it”.

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I hope the noble Viscount does not think I said that. First, I am left in no doubt about the passion of the arguments presented by the noble Lord, Lord Empey, and by the noble Viscount in supporting him. However, I think the Committee will appreciate that there is an extremely difficult line to take. We have said that we do not wish to go down the line, whether it is creeping or not, of direct rule. On the other hand—perhaps this is what I really want to say—the reassurance has to be given from this Dispatch Box that upholding our obligation to the people of Northern Ireland is a high priority, as is ensuring that vital public services are protected. This includes the issues raised on health. We are not afraid to step in, if or when we think it is right, and we have said that we will not rule out further legislative intervention. If that is not clear enough, I have to say that this is very much a subjective decision and constantly under review. I cannot say anything more. Finally, I clarify that the Bill enables the Department of Health to take these decisions, and if the UK Government intervened to step in, it could easily be construed as direct rule. I cannot go any further to clarify that point.

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I do not want to hold the Committee up, but I am having some difficulty. The aim of the legislation is to enable the continuity of the delivery of services, yet vital services such as our health service do not receive that attention. I do not understand what is covered by the Bill if things such as this are not.

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I hope I have made the point that health is very much a priority. I cannot say anything more. I have also attempted to define the line that we have to take, which is an extremely difficult one in the circumstances that we have been presented with. With that, I hope the noble Lord will agree to withdraw his amendment.

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My attention is not quite as close as it was earlier today and I did not hear my noble friend’s reply on the question of paying the police. Am I confused? I understood that Amendment 8 would enable the payment of the sums due and already agreed. I did not hear his reply to that; he may have given it, but I did not hear it.

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I am not sure I gave it, but in the interests of time, I will look over what I said and write to my noble friend to give a succinct answer.

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My Lords, we have all sympathy with what the noble Lord, Lord Empey, is trying to achieve; when it comes to health, we would all like to see waiting lists reduced in Northern Ireland, and there is cancer care and health as well—there are so many issues within health. This is putting the Minister in an awkward position. I have sympathy with what has been said in the Committee. However, I could also make a strong case for education. If you speak to many principals of schools in Northern Ireland, they will tell you that they are suffering because of the lack of budget and cannot deliver the service they want to deliver. They are even asking parents to pay for some things in their schools. Do we appoint an Education Minister temporarily? Then you will have other departments saying, “I think we need a Minister temporarily”, and you end up with direct rule. Is that what we want?

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My Lords, I have listened carefully to what colleagues from Northern Ireland said. I am no particularly strong supporter of the Government but it seems that, in a way, this debate demonstrates a kind of learned helplessness, not just of politicians in Northern Ireland but of the Civil Service. If there is a problem, it is someone else’s responsibility—such as the Government’s—to sort it out. The Bill is clearly handing power back to civil servants in Northern Ireland and saying, “You’re covered for making any kind of reasonable decision; that’s not a legal problem now. And by the way, if the politicians in Northern Ireland would get their act together and go back, that would rather help things as well”.

What I am hearing is people trying to pass it back and say, “Come and sort the whole thing out but, by the way, we know that that will disrupt all kinds of agreements we have reached—the Good Friday agreement and so on”. I say to colleagues, in fairness, what the Government are trying to do is to give people the legal cover to do what is necessary. That includes senior civil servants in Northern Ireland, who have not covered themselves in glory over the RHI scheme or anything else. This is a chance for them to take responsibility and actually do the governing work that they need to do, and that we all need them to do. To that extent, I hope we can move on with some acceptance of what the Government are trying to do, albeit that it is not as satisfactory as we would all like it to be.

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My Lords, I know the noble Lord, Lord Hay, mentioned education—we could all mention that—but there is a qualitative difference between something affecting life and something affecting bad administration. I need to read Hansard—I am not particularly clear on what the Minister means by his decisions—but I will read it. I assure him that if things continue to deteriorate in that area as they have been, I will certainly be holding his feet to the fire. There will be other opportunities; I am not going to let this drop. Having said that, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendment 8 not moved.

Amendment 9

Moved by

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9: Clause 3, page 3, line 7, at end insert—

“( ) The guidance shall provide for senior officials of Northern Ireland Departments to report to the Secretary of State at the end of every six month period, beginning with the day on which this section comes into force, on which recommendations of the Report of the Inquiry into Hyponatremia-related Deaths—(a) have been implemented,(b) are being considered and the process by which they are being considered, or(c) have been rejected and why they have been rejected.”

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My Lords, I rise to move Amendment 9 on the hyponatremia inquiry, which may not be something that is well known to many noble Lords, but I have to tell the House that I have special interest in this issue. As a direct rule Minister in Northern Ireland and Minster for Health, I announced the setting up of this independent public inquiry on 18 November 2004. It was to be chaired by a highly regarded QC, Mr John O’Hara, now Mr Justice O’Hara.

For background information, hyponatremia is a condition where the concentration of sodium in the blood falls below safe levels. It can occur for different reasons: it may be that somebody has been vomiting or has diarrhoea and needs to be rehydrated. In hospital, where patients’ fluids are monitored, it is a preventable condition.

The inquiry was started because five children were identified who had died in hospital. They were Adam Strain, aged four; Claire Roberts, aged nine; Raychel Ferguson, also aged nine; Lucy Crawford, aged just 17 months; and 15 year-old Conor Mitchell. The deaths of Adam and Claire, the events following Lucy’s death, Raychel’s case and the issues presented by Conor’s treatment were all investigated by this inquiry.

Surely, there can be no greater or more painful loss for a family than that of a child. When this happens in hospital and that child was receiving treatment, a fundamental role for any inquiry has to be to understand precisely what happened both before and after, and to give recommendations for future actions to prevent something like that ever happening again. The inquiry, announced in 2004, was originally delayed because of police investigations. For other reasons, the report of inquiry was not published until January this year, nearly 14 years after I initiated it. That report has 96 recommendations. I have just re-read large parts of the report before the debate today, and in places it makes grim and very sad reading.

I want to refer to two key aspects that Mr Justice O’Hara identified, and they will form the background to my explanation for bringing this amendment before us tonight. The first is the number of errors made in treating the children, which, rightly, have been very carefully and painstakingly investigated and recorded. The second is the unacceptable difficulties in getting witnesses to be open and frank. In places, Mr Justice O’Hara refers to what he calls “unsatisfactory evidence”, with an attitude of deceit and defensiveness. He describes this as “frustrating and depressing”. That led to his first recommendation being a “statutory duty of candour”—in other words, a legal duty to tell the truth—and there are 95 other recommendations.

My amendment is about the implementation of those recommendations and to ask what has happened since that report was produced in the absence of a Northern Ireland Assembly, an Executive or Ministers to consider them and take action. Paragraph 1.70 of Mr Justice O’Hara’s report said:

“It is for the Department of Health to take them forward. Many will doubtless require significant detailed consideration to enable implementation. I expect the Department to indicate not only which of my recommendations it accepts but also to make clear how and when implementation is to be achieved. Further and subsequent reports should then be made detailing progress towards implementation with a final published confirmation of same”.

So Mr Justice O’Hara and his team took on this inquiry and made their report with every expectation that it would be properly considered and acted on, and the purpose of my amendment is ensure progress.

In the intervening years since 2004, I would have expected that, as problems were identified, some of those recommendations would already have been evident and acted on, with new systems and practices being put in place, but we just do not know. Also, some recommendations—particularly the statutory duty of candour—require political decisions. Others might need political direction in terms of funding and others will be purely clinical.

Given the difficulties faced in the 14 years before the inquiry was able to complete and publish its investigations, what is needed now is a totally transparent and open process. However, the difficulty is that, because there is no Assembly and no Ministers or Executive, we do not know what progress has been made and there is no political direction. It seems wrong that a lack of political responsibility in Northern Ireland, with no Ministers and no Assembly, should prevent action, and prevent those concerned—particularly the families of the children I have mentioned—knowing what action is being taken. Even the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, has described the situation as “shocking” and “appalling”. Ideally, local Ministers—I think there is also a role for a Stormont health committee here—should deal with this as a matter of urgency.

Therefore, my amendment provides for the Secretary of State to bring some humanity to this issue and to seek six-monthly reports with updates on progress—the amendment details the kinds of updates that we are seeking—so that the people of Northern Ireland can be confident that there is some political oversight and openness about what happens now. Whatever the political situation in Northern Ireland, this is too important a report to allow it just to fade away.

I am grateful to the noble Lord, Lord Bruce, for his amendment, and I know that he supports my amendment as well. I am also grateful to the Minister for the discussions that he and I have had on this issue. I know that he recognises the importance of and urgency behind it. I have had a letter from him this evening which indicates to me that, in so far as the limitations of this legislation allow, he is looking to see what can be done, and I shall be grateful if he can put that on the record tonight.

This matter is key. The families of these children are desperate to know what is happening and how progress will be made. In asking the Minister to respond and outline the commitments that he has been able to make to me in the letter so that they are on the record, perhaps I may press him a little further. In his letter to me, he says that he will seek that information at regular six-monthly intervals from the Department of Health. What is his expectation of the department’s responding? We need some expectation that it is going to respond and is prepared to do so. I note also that the Permanent Secretary of the Department of Health, Richard Pengelly, is prepared to meet with the noble Lord, Lord Bruce, and myself to discuss the issue. I hope the Minister can endorse the comments in his letter and explain what this House would expect. It is difficult—we understand that the Government do not want to have direct rule creep towards it, as it were—but unless there is some political responsibility, who else do the families have to turn to in order to see that justice is done and this report’s recommendations are seriously considered and implemented? I beg to move.

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My Lords, I am very grateful to the noble Baroness, Lady Smith, who brings her first-hand experience to this amendment, which I have also tabled, and has given us in detail the history of this very sad set of circumstances involving children who appear to have died in circumstances of negligence within the health service. The fact that it took so many years is in itself a problem, but I do not need to reiterate what has been said.

I noted that on Friday the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, said that it was “shocking” and “appalling” that the inquiry recommendations could be fully implemented because of the lack of an Executive in Northern Ireland. In particular, legislation is needed to introduce a legally enforceable duty of candour—a key recommendation of the inquiry. In light of our debates, I wonder how many times politicians in this House or in Northern Ireland are going to be saying to the public in Northern Ireland, their constituents and voters,“We can’t do anything because we don’t have an Executive”, and at what point the people themselves will say, “When on earth are you going to do something for us?”. They are living in a democratic and political vacuum, with no time limit. I take the point about direct rule, but it is heartless to say to people that we had an inquiry, we got recommendations, but because of political incompetence—the mildest way you could describe it—there is nothing we can do. I hope that the Minister can give some reassurance that this vacuum can be at least partially filled.

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My Lords, when I knew I was going to give some relief to my noble friend Lord Duncan in responding, I wanted to look up what hyponatremia actually means, and what happens to your body when it is low on sodium. I wanted to add a little to what the noble Baroness, Lady Smith, said. Low blood sodium hyponatremia occurs when you have an abnormally low amount of sodium in your blood, or when you have too much water in your blood. Signs and symptoms of hyponatremia can include altered personality, lethargy and confusion. Severe hyponatremia can cause seizures, coma and even death—so I am left in no doubt about the seriousness of this particular matter.

Amendment 9 in the name of the noble Baroness, Lady Smith, and Amendment 12 in the name of the noble Lord, Lord Bruce, provide that the guidance should require Northern Ireland departments to update the Secretary of State to implement the recommendation of an important inquiry into hyponatremia that reported earlier this year. As has been said, the proposed legislation is not a move to direct rule. Northern Ireland departments are not subject to the direction and control of the Secretary of State. As a consequence, to have this requirement on the Northern Ireland Department of Health to report to the Government in such a way on the face of the Bill is not consistent with the aim and intention of the guidance, which is to provide guidance as to the exercise of functions in the public interest, not to direct specific action. To use this guidance to direct individual decisions or to seek to introduce formal reporting mechanisms would therefore go against this principle.

However, I am sympathetic to the noble Baroness’s desire to see progress on this matter. We have therefore sought an update from the Northern Ireland Department of Health and have been assured that a team was established in June to consider options for implementation of the inquiry’s recommendations. A meeting has already been scheduled for that team, led by the Deputy Chief Medical Officer, to brief Justice O’Hara QC at the end of November on progress, and I intend that the Government should write to the Northern Ireland Department of Health to seek an update following that meeting on implementation of the inquiry’s recommendations. We will ensure that this update can be made public and will request further updates on a six-monthly basis.

To take the matter further with the noble Baroness, Lady Smith, the Department of Health Northern Ireland has said that it will respond. The letter, which I believe she has received, commits that we will write to the Department of Health Northern Ireland, asking for an update on the recommendations in the manner proposed by the noble Baroness’s amendment. We shall share those updates publicly. On the basis that work is ongoing and with the reassurances we have given that regular updates will be provided, I hope that the noble Baroness will feel able to withdraw her amendment.

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I am grateful to the noble Viscount. I was rather surprised that he answered; I had expected the noble Lord, Lord Duncan, to respond as the letter is from him. Could I have one clarification? In the letter to me from the noble Lord, Lord Duncan, he said that he would be writing personally. The noble Viscount, Lord Younger of Leckie, said that the Government will write. This has to be done at ministerial, not official, level. Will he confirm that to me?

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I can give a complete reassurance to the noble Baroness on that basis. It might be a good idea if I can commit that my noble friend Lord Duncan will write to her. I will also put my name on that letter.

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No, the noble Lord, Lord Duncan, has already written to me and I am happy with the letter he sent. I want to confirm that the letter to the Department of Health in which the noble Lord, Lord Duncan, will seek at six-monthly intervals to get an update, which the Minister has said the Department of Health will respond to, will be a letter from a Minister, not an official.

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I was having a bit of a breather, but I am very happy to confirm that. It is important that we do this—absolutely essential.

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I am grateful to the noble Lord. I understand and appreciate the time that he has invested in this. He has been very generous with his time and his views. On that basis, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10

Moved by

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10: Clause 3, page 3, line 7, at end insert—

“( ) The guidance may direct departments after 1 May 2019 not to enforce sections 58 and 59 of the Offences Against the Person Act 1861.”

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My Lords, in moving Amendment 10 I shall speak also to Amendment 11. The intent of these amendments, although they had to be drafted in a more complex way, is very simple: if the Northern Ireland Assembly has not legislated for equal marriage and abortion rights in Northern Ireland by next May, equal marriage and abortion should, by the authority of this Parliament, be made legal in Northern Ireland next May.

I do not intend at this late hour to press this matter to a vote, but my first comment is that I believe, based on the balance of parliamentary opinion in this House and the other House, that if the Northern Ireland Assembly does not move to address these basic issues of civil rights over the next year or so, Parliament will be left with little choice but to act in this manner. Particularly on the basis of the vote held in the House of Commons last week, where there was a majority of 100 in favour of Stella Creasy’s amendment, the intent of which was clearly that abortion and equal marriage should be legalised, although it is not possible to do it through this Bill, I believe that it is the very clear view of the House of Commons that it would move pretty swiftly in that direction if the Northern Ireland Assembly does not.

Clearly, this needs to be reconciled, if possible, with devolution. The right way to do that is to give the opportunity for a new Executive to be formed in Northern Ireland and for the Northern Ireland Assembly to consider this issue, in the expectation that Northern Ireland will not remain the only part of the British Isles where equal marriage and abortion rights are not recognised. It is my belief, however—and I can only express my view—that if the Northern Ireland Assembly is not prepared to act in that regard, the Parliament of the United Kingdom will be obliged to do so in due course. Sending that message out from this House is quite an important signal to politicians in Northern Ireland that there is really not an option for Northern Ireland to continue for any long period of time to deny what many of us would regard as fundamental human rights.

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I have a simple point. I am sorry to repeat myself from earlier on today, but abortion is legal in Northern Ireland. There is only one small point of difference in the law between Northern Ireland and England and Wales. Therefore, to talk about denial or otherwise is wrong: it is not a matter of law. The problems lie elsewhere.

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My Lords, your Lordships will be very open to different ways of resolving this issue, but it is a fact at the moment that some 28 women a week travel from Northern Ireland to Great Britain for the purpose of having an abortion, because it is not possible to access these services in Northern Ireland. So whether it is theoretically legal or not, women in Northern Ireland are not able to access these services at the moment, so to all intents and purposes abortion is not available to them.

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That is a different matter.

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It is not a different matter in terms of the impact on the women affected. This is surely the fundamental issue.

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The solution must be in Northern Ireland.

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I am entirely open to the solutions being found in Northern Ireland, but if those solutions are not found, the only course open to this Parliament is to change the law. The reason that I speak in such direct terms is that it is very important to be able to offer assurances to the people of Northern Ireland themselves that this Parliament is not prepared to allow this abuse of civil rights to continue for any substantial further period. That appears to be in line with majority opinion in Northern Ireland itself. An Amnesty International poll taken earlier this year showed that 65% of people in Northern Ireland think that abortion should be decriminalised and 66% think that Westminster should act in the absence of the Assembly.

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Is the noble Lord aware that Amnesty is promoting abortion in Northern Ireland, hence the results?

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My Lords, that in no way invalidates the findings. Those figures are from a poll; they do not represent Amnesty’s own view. A Sky News poll earlier this year found that 76% of people in Northern Ireland support an equal marriage law, and also wish this Parliament to carry such a law if it is not carried in Northern Ireland. I state all this because this is the situation as I see it. My own view is that we are not standing by the people of Northern Ireland in guaranteeing these basic rights at the moment. If I was the responsible Minister, I would think very seriously about seeking to change the law now, but, because of the great respect that I have for the devolution settlement and the Good Friday agreement, it is right that we should allow one last opportunity for the devolved institutions of Northern Ireland to resolve these issues of fundamental rights. If they are unable to resolve them, I do not believe that there is any realistic alternative to this Parliament doing so at some early date.

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I do not know whether the noble Lord was present earlier to hear the noble Baroness, Lady Stroud, challenge the poll to which he referred. I draw his attention to the ComRes poll that was carried out only last week in Northern Ireland. It found that 64% of the general population and 66% of women in Northern Ireland agreed that changing the law on this issue should be a decision for the people of Northern Ireland and their elected representatives. It also found that 70% of 18 to 30 year-olds agreed that Westminster should not dictate that change to them.

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Will the noble Lord, Lord Alton, say who commissioned the poll from ComRes and make available the questions so that the House can see them?

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My Lords, for clarity, we should allow the noble Lord, Lord Adonis, to finish his speech. There have been a number of interventions and I am sure other Peers will have a chance to intervene afterwards.

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My Lords, my response to the noble Lord, Lord Alton, is that of course the devolved institutions are not even sitting in Northern Ireland at the moment, so we face two issues in this respect. The first is that the Northern Ireland Assembly should be given an opportunity to address this matter. Clearly, it does not have that opportunity at the moment because it is not sitting. The Bill seeks to ensure that the Northern Ireland Assembly does sit and is sustaining an Executive by the end of next March. The second point concerns the situation if the Assembly is not, even when it is sitting, able to address this issue, I do not believe it is consistent with the poll that the noble Lord has just cited that the people of Northern Ireland would regard it as satisfactory for the Assembly in Northern Ireland not to address this issue of fundamental rights. One way or another, in a short time, this issue must be resolved. It will not be satisfactory either for the Assembly in Northern Ireland to fail to address this issue or for this Parliament to allow fundamental breaches of civil rights to take place in a substantial part of the United Kingdom. I beg to move.

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My Lords, my Amendment 16 has the honour to be joined to the two amendments of the noble Lord, Lord Adonis, Amendments 10 and 11. It seems to me that Amendment 10 breaches a fundamental aspect of the constitution, namely that it is not right for anyone not connected with the prosecution to intervene to alter or to direct a prosecution decision. That is what Amendment 10 does. Amendment 11 again breaches the constitutional rule that our judiciary is not to be directed by departmental guidance. The Secretary of State for Northern Ireland has no authority whatever to direct the prosecuting authorities in Northern Ireland not to prosecute existing statutory provisions there, and certainly no authority to order the judiciary in Northern Ireland not to obey a part of the rule that is there already.

Amendment 16, which was passed in the House of Commons, is intended to deal with both matters as the noble Lord, Lord Adonis, has explained them. It seeks to get the Secretary of State to issue guidance, which will have effect as they wish, but the amendment is so drawn that it does not specify that the guidance has to be of a particular kind. It is obvious from the way it was introduced in the Commons that that is what they would like to see, but the amendment does not require the Secretary of State to do anything that is unconstitutional or wrong. That is why, as far as I am concerned, I shall not press the amendment. It is a matter that was decided on a free vote, on the issue of abortion—which is always subject to a free vote in both Houses of Parliament—and therefore I shall not press it to a Division. However, I thought it might be necessary to have further discussion on it. Having regard to the amount of discussion that took place at Second Reading, it may not be necessary to do more than introduce it and see whether anybody wants to speak.

As for the first two amendments, in the name of the noble Lord, Lord Adonis, these are quite unconstitutional. Indeed, the first, on interference in a prosecution, was a constitutional disaster in, I think, the 1920s, and as a result the constitution of the United Kingdom has not had the law officers be part of the Cabinet ever since. Decisions about prosecution are not Cabinet decisions; they are the responsibility of the law officers. In Northern Ireland, in the present situation, the Director of Public Prosecutions is the authority. Nobody has authority under our constitution to tell him what to do in relation to an existing law. The amendment is framed on the basis that this is still an existing law not to be enforced by the department. That is a completely unlawful order. The Secretary of State would be quite wrong to give guidance on that aspect in Amendment 10, and in relation to the judiciary in Amendment 11.

Amendment 16, which I have tabled, is the way that the House of Commons decided to deal with this same matter, which the noble Lord, Lord Adonis, will improve on with his amendments. The Commons agreed the amendment by a majority of about 100. As far as I am concerned, it can stand, because it does not direct the Secretary of State to do anything unlawful. It obviously hopes that the Secretary of State may manage to do something that the Commons had not quite thought of how to do itself. Anyway, that is the way it is. There is no attempt in Clause 4, as it is now as part of the Bill, to direct the Secretary of State to do anything that is necessarily unlawful.

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My Lords, I put my name to Amendment 16. I should like to speak to it and, briefly, to Amendments 10 and 11.

I have no doubt that the ultimate purpose of Clause 4 and Amendments 10 and 11 is to change Northern Ireland and United Kingdom law by decriminalising abortion. This would mean that abortion would cease to be illegal in all circumstances. That means that any baby, at any stage of gestation, right up to birth, could be aborted. No human right exists to do that. I think noble Lords would wish to accept that that, at least, is true. There is no human right to abort babies as described. To decriminalise abortion would be, to my mind, the act of an uncivilised society.

We do not have any declaration of incompatibility. If we had such a declaration, it would not change primary legislation, nor would it create an imperative for changing primary legislation. The law is provided for in Section 4 of the Human Rights Act, which says:

“A declaration … does not affect the validity, continuing operation or enforcement of”,

any provision, and,

“is not binding on the parties”,

to the action. The effect of a declaration of incompatibility, which we do not have, would be not to change the law, but to ask the Northern Ireland Assembly to think about changing the law. Having considered a declaration of incompatibility, were one to exist, the Government would have the option to do nothing. The noble and learned Baroness, Lady Hale, in her Supreme Court judgment, said that Strasbourg would have regarded doing nothing,

“as within the UK’s margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day”.

The Secretary of State is the representative of the UK Executive. She is not the Northern Ireland legislature for any purpose of considering a change in the law. It is not for the Secretary of State to assume the role of the Northern Ireland Assembly to change primary legislation—nor has she indicated any wish to do so—or to issue new guidance pursuant to primary legislation.

Since health and justice are devolved matters, since this Bill does not change the law on abortion in Northern Ireland, and since the courts have no power to change the law in this respect in Northern Ireland and have not done so, the law stands. Since the matters referred to in Clause 4 and Amendments 10 and 11 are matters of law in Northern Ireland, and since only the legislature in Northern Ireland may make law in respect of those matters, it must surely be illogical to ask the Secretary of State to issue guidance, which would be incompatible with that law.

I have nothing more to say on the matter, other than that we need to think very carefully, and that Amendments 10 and 11, as the noble and learned Lord, Lord Mackay, says, direct the Secretary of State to do something that would be unlawful.

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My Lords, it may have come to your Lordships’ attention that anybody from this side of the water telling Northern Ireland politicians what to do is likely to bring about exactly the opposite result to the one they want. What is much more likely to affect Northern Ireland politicians is when their own people start to say things to them. On issues such as abortion and divorce, it is very clear that on the island of Ireland the views of the population have changed quite dramatically in a relatively short period. That is why I do not depend on opinion polls, which are notoriously unreliable in all sorts of ways, as has already been pointed out, depending on what questions you ask, in what kind of way, of what group of people at what particular stage. That is why at Second Reading I asked the Minister whether he might give consideration, at an appropriate time, to whether it would be in order under the terms of the Bill, as it has come to us from the other place, for the Secretary of State to consider recommending referendums on these two issues to be carried out with the people of Northern Ireland.

If the people of Northern Ireland said to their elected representatives, “Actually, we have a different view from the one you think we have and things have changed a lot for us in the last little while”, that would be a much more appropriate and effective way of making change, although if the people of Northern Ireland take a different view from that which might be expected, that is an important issue that must also be respected. It is not reasonable or acceptable to say that something is a devolved matter but if you do not make the decision that the people in London like we will stop it being a devolved matter. That is not a very human rights-based approach to things. But I believe that dramatic changes are taking place in the views of the people of Northern Ireland on many issues and the only way for us to become clear about that is to put it to the people in a clear fashion. I wonder whether the Minister might be able to help us on this, either tonight or in the relatively near future.

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My Lords, my noble friend Lord Alderdice has made a fairly constructive suggestion, which has already been replicated in the Republic, with quite dramatic results. But my question relates to the amendment in the name of the noble and learned Lord, Lord Mackay. I accept that the law is where it is and that if it is devolved, it is for the Northern Ireland Assembly, which does not exist, to change the law. However, the Supreme Court has already indicated that it questions whether or not the law in Northern Ireland is compatible with the European Convention on Human Rights, and has indicated that if an individual case was brought, it is likely to rule that it is not. In those circumstances, if a ruling was made that said that the law in Northern Ireland is not consistent with the convention, but there is no Assembly and no devolution, what is the mechanism by which the law can be changed to bring it into line with the European convention?

The issue on gay marriage could also move in that direction. It has not yet but given the acceptance of gay marriage more and more widely across the world, it may well become an issue where human rights law says that the right to gay marriage is a human right. If that became the case, somebody would need to change the law to bring it into line with the convention. In the absence of an Assembly—which would have to do it, whether it liked it or not, but is incapacitated because it does not exist—who would do it?

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My Lords, the answer is that the Human Rights Act makes it absolutely plain that the declaration of incompatibility does not of itself change the law. If the law is to be changed, that has to be done by the appropriate legislature. In this case, because of the devolution, that would be the Assembly in Northern Ireland if it was functioning. Because of the devolution, that is the way it is: it is the Legislative Assembly that has the power to do this. There is no question of the Secretary of State being able to do it by guidance. That is out of the question. The Human Rights Act made that very plain.

There was quite an important discussion on this during the passage of the Human Rights Bill. Some people thought that the courts should be able to overrule existing statutes that were contrary to the human rights convention. But the politicians of that day, including Jack Straw, were very keen on the view that in our constitution Parliament should be supreme and the courts should not be able to overturn Acts of Parliament. That is a matter for Parliament itself. Of course, as I said at Second Reading, the great example of that in our arrangements recently has been the issue of prisoners’ voting rights because it was declared incompatible and yet Parliament decided not to change the law for some considerable number of years.

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My Lords, I shall speak to Amendment 16, in the names of my noble friend Lord Mackay and the noble Baroness, Lady O’Loan. I thank them for tabling the amendment because I have a direct personal interest in it, having been born with a severe disability. My objection to the current Clause 4, which I appreciate was not part of the original Bill, is twofold.

First, I object on the grounds of inequality. As noble Lords will know, I do not take a position on abortion itself, but I most definitely do take a position on disability equality. Though supposedly about advancing human rights, Clause 4 is actually about a hierarchy of human rights. It is, in effect, about denying the right to exist of, and the equality of, human beings diagnosed with a disability before birth, and ensuring that the power—dressed up as rights—of stronger human beings reigns supreme.

A world in which one group’s equality is more important than another’s is not equality; it is inequality. Clause 4, perversely, would achieve the opposite of its presumed purpose: it would entrench inequality. The argument which was advanced forcefully in the other place—that this is somehow about equality—is therefore bogus. The fact is that if Clause 4 becomes law, more human beings with my condition and other disabilities will be aborted. As it stands tonight, Northern Ireland is the safest place in our United Kingdom to be diagnosed with a disability before birth. That will change if Clause 4 is allowed to stand part of the Bill, because the presumed protection against the most lethal form of disability discrimination—death for disability—will be gone, in time.

A quick glance at the Department of Health’s own statistics tells us everything we need to know about what would happen. I wonder, would any noble Lord care to hazard a guess at the trends in disability-related terminations? Only last week noble Lords may have read about the amazing breakthrough in intra-uterine surgery on human beings diagnosed with spina bifida before birth. Indeed, human beings diagnosed with my condition—brittle bones, which put me in hospital for most of my childhood—can now be treated from the moment of birth with medicines such as bisphosphonates, to ameliorate even some of the most severe forms of the condition. Some people with my condition lead perfectly normal lives, to the extent that they can play sport.

Yet the direction of travel is one way, and we are going at a disturbingly faster and faster rate. Despite wonderful medical advances, between 2007 and 2017 the number of terminations on the grounds of disability increased by a massive 63%. In the same 10-year period, terminations for Down’s syndrome increased by 45%, and the figures for the 20 years between 1997 and 2017 are even worse. If you took the disability death toll as the key performance indicator of the success of this measure, we could not get a higher score, for the simple reason that the increase in Down’s syndrome abortions in that 20-year timeframe is 100%. That means that in 2018, in the rest of the UK we can “boast” that 90% of human beings diagnosed with Down’s syndrome before birth never see the light of day. So much for human rights. So much for equality.

If Clause 4 is left in the Bill, the one part of the UK that has done so much to challenge and break down bigotry since the Good Friday agreement will have bigotry foisted upon it under the perverse pretence of advancing human rights. No wonder, as we have heard, that recent polling shows that the people of Northern Ireland are dead against it.

My second objection is that it is not for us to tell the people of Northern Ireland what to do on this most contentious of issues. We should respect the people of Northern Ireland, not belittle them.

I close by asking this question. What is the message that your Lordships’ House will be sending to people born with a disability if we allow Clause 4 to stand part of the Bill? Surely it is this: “We believe that you would be better off dead; we believe it would be better if you had never been born, because of your disability”. So I ask my noble friend the Minister to take this opportunity to reassure me that the Government do not believe that I, as a Member of your Lordships’ House, would be better off dead and indeed that the Government do not believe that disabled human beings like me would be better off never having been born. I also ask my noble friend the Minister to reassure me that the Government will insist on protections, so that that message can never be given in practice by changes to the law and to practice in Northern Ireland.

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My Lords, I congratulate the noble Lord, Lord Shinkwin, on his excellent speech. I think he has captured it all here this evening, and I put on the record my appreciation of what he said.

I shall speak to Amendments 16, 10 and 11. I begin by responding to the amendments tabled by the noble Lord, Lord Adonis. I shall first touch briefly on the effect of each before reflecting on their immediate implication and then on their broader constitutional consequence. If the departments were advised not to enforce Sections 58 and 59 of the Offences Against the Person Act, it would allow abortion for absolutely any reason up until 28 weeks’ gestation. It would propel Northern Ireland from a place where it has the highest abortion legislation in the British Isles to having the loosest. In supporting this measure, parliamentarians from England, Scotland and Wales would be thrusting on Northern Ireland a far more liberal abortion law than they think appropriate for themselves. There is simply no justification whatever for this approach.

Setting aside the fact that no declaration of incompatibility was made by the Supreme Court in June—and that even if it had been, it would not have changed the law—the only criticism in the obiter comments was in relation to abortion in two very narrow contexts: first, when a baby is so severely disabled that there is a likelihood that it will die in the womb, will not survive birth or will die soon after; and, secondly, when a baby has the misfortune that the father was a rapist. This would not justify anything remotely resembling not enforcing Sections 58 and 59. Indeed, adopting such a course would be diametrically opposed to the statement by the court that Northern Ireland’s abortion law—Sections 58 and 59—is human rights compliant in prohibiting abortion on the basis of severe malformation.

The amendment is also deeply problematic because of the way in which it would expose people to the risk of prosecution. In the first instance, where these amendments would direct departments not to enforce the law, the law would remain in place. The Secretary of State would effectively be directing departments to make people aware that the law would not be enforced by them—which is likely to result in some people feeling more at liberty to break the law. This, however, would not stop private prosecutions. It is not right that we ask the Secretary of State to put officials in a position where they send out messages that are likely to result in some people breaking the law, thinking they will not end up in court when they will. This would be monstrous.

Amendment 11 is also deeply problematic. If the hope is that officials enforce Article 15 of the Matrimonial Causes (Northern Ireland) Order 1978, the amendment is misconceived. That piece of legislation relates to the conduct of judges, not departmental officials. If the hope is that officials will enforce Article 15 of the order by directing judges, that also will not work because it would contradict the principle that the judiciary is independent and not instructed by the Executive.

There is an even more profound difficulty with both amendments and their attempt to encourage the Executive to dispense with enforcement of the law. In examining them both, one cannot help but think of that very formative period in our history that, arguably, has done more than anything else to give us the constitutional system of government that we enjoy today. The Glorious Revolution was, in part, a response to the tendency of James II to dispense with the enforcement of laws—laws that remain on the statute book. His actions created a constitutional crisis that provoked the Glorious Revolution.

I know that the parallels are not exact. The noble Lord, Lord Adonis, is not a king: nor does he claim to be. He is raising this as a parliamentarian and suggesting that Parliament takes this step. However, I feel deeply uncomfortable about the idea of Parliament sanctioning one law to undermine another one that remains on the statute book. There is a real sense in which effectively he is asking Parliament for permission to overthrow the sovereignty of Parliament. This request is wrong-headed, and acceding to it would be destructive of our laws.

I support Amendment 16, in the name of the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan. It seems to me that Clause 4 is one of the most problematic provisions in the Bill. Although those who secured the inclusion of Clause 4 believe that Northern Ireland’s abortion law has been declared incompatible with human rights, no such declaration has been made. Even if a declaration of incompatibility had been made, it seems that the champions of Clause 4 have completely misunderstood what it means. When a declaration of incompatibility is made, the law is not changed and does not have to change. This point is made absolutely clear by Section 4(6) of the Human Rights Act 1998. The fact that, constitutionally, a declaration of incompatibility brings with it no imperative for legal change is set out very clearly by the noble and learned Baroness, Lady Hale, in paragraph 39 of her judgment in the recent Northern Ireland Supreme Court case back in June.

I now turn to examine some of the specific problems with the understanding of how the declaration of incompatibility applies in the context cited by Clause 4. The first specific example of incompatibility is set out in paragraph (a). This statement is problematic for two reasons. First, as I have already noted, no declaration of incompatibility was made; and secondly, again as already noted, the majority of the noble and learned Baroness’s commentary in the Supreme Court judgment also questioned the balance struck by the law in Northern Ireland in two very narrow contexts—foetal abnormality and rape. The commentary did not provide any justification for suggesting a general problem with Sections 58 and 59 of the Offences against the Person Act. Repealing Sections 58 and 59 would result not simply in adjusting the balance of rights in relation to those two specific contexts, but instead would permit abortion on demand for any reason up to 28 weeks’ gestation. The idea that the majority of her commentary suggests a problem with Sections 58 and 59 of the Offences against the Person Act per se is extraordinary. Subsection (1)(b) is equally confusing.

It is plain wrong to suggest that the Supreme Court has identified any human rights problem with Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003. There is a challenge to that provision before the Northern Ireland Court of Appeal, the case having already been rejected by the High Court. To date, however, the definition of marriage has not been considered by the Supreme Court.

Having considered the immediate problems with both provisions, I now turn to the wider constitutional point. It cannot be right to require the Secretary of State to produce guidance for officials that has the potential to critique or undermine existing legislation. The only guidance that it would be proper for the Secretary of State to provide, mindful of Section 4(6) and Section 6 of the Human Rights Act, is guidance that upholds current primary legislation unless and until it changes. For the Secretary of State to do anything else would undermine the rule of law.

Mindful of this I have asked the Minister for an assurance that any guidance issued under Clause 4 will make plain, first, that even binding declarations of incompatibility do not have the effect of changing the law or of creating a legal imperative requiring the law to be changed in line with Section 4(6) of the Human Rights Act; and secondly, that no convention right can negate contrary to domestic legislative obligations in line with Section 6 of the Human Rights Act. Unless and until such a time as the law is changed, any guidance provided by the Secretary of State must require officials to uphold that law as it stands.

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My Lords, I speak in favour of the principles outlined by my noble friend Lord Adonis in Amendments 10 and 11, and against Amendment 16. I will be very brief indeed. Basically I am speaking in defence of Clause 4 because I believe that I have listened to a misrepresentation of that clause. For me it is as simple as this: the women of Northern Ireland and the lesbian, gay and bisexual people of Northern Ireland should be afforded exactly the same rights and opportunities as other citizens across the rest of the United Kingdom, and no one should face discrimination based on where they were born or where they now live. For those reasons, I support my noble friend’s amendments, but particularly Clause 4 as it stands.

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My Lords, I have listened very carefully to the wise words spoken by the noble and learned Lord, Lord Mackay, so I very much welcome Amendment 16. I want to say a few words about Clause 4. The architects of Clause 4 in the other place were very clever, and I pay tribute to their ingenuity. The word “functions” is dropped into Clause 4 in an attempt to make it fit, but it is no more than a fig leaf. Clause 4 is not about functions; it is about policy. This is not the appropriate legislative vehicle for this clause, touching as it does on sensitive issues that are highly controversial, particularly in Northern Ireland.

Regardless of our views on abortion and marriage—and there is a divergence of views right across this House—we can surely agree that they are issues deserving of proper attention and debate. A clause of this kind in a Bill of this kind does not provide that opportunity. What we have here, I rather suspect, is an attempt to change the law through guidance. It cannot work—any change would require legislation—but it is seeking to influence key devolved policy matters that should be decided by a Northern Ireland Executive and Assembly. It is proper for those matters to be dealt with by the devolved institutions. Northern Ireland is the most recent part of the UK to vote on abortion law. In 2016 a clear majority of Assembly Members voted to retain the current law. We should be very wary of undermining devolution, or being seen to undermine it. There is a risk that this clause creates a dangerous precedent for interference that could have wider consequences for our constitutional arrangements. Clause 4 is inappropriate, poorly drafted and should have no place in this Bill.

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The noble Baroness, Lady O’Loan, and the noble Lord, Lord Alton, have repeatedly said that there is no right to abortion, but your Lordships will know that time and again international courts and the UN have agreed that access to abortion is a right under Article 8. There are many rights that are not set out specifically in the convention, but the right to privacy and the right to family life are inextricably linked to control over one’s body and reproductive rights.

Therefore, I ask your Lordships to vote against the amendment of the noble and learned Lord, Lord Mackay, if it is put a vote, which I hope it is not. It inserts a reference to Section 6 of the Human Rights Act, and that is designed to constrain what the Secretary of State for Northern Ireland could include in guidance. That would be most likely used to declare that the current criminalisation of women who end their own pregnancies in Northern Ireland is acceptable under human rights law, because it is as a result of one or more of the provisions of primary legislation and the authority could not have acted differently. Specifically mentioning Section 6 of the Human Rights Act could require that guidance be issued that knowingly contravenes Article 8 of the European Convention on Human Rights—the right to privacy and family life. There have been many mentions of the court case in June, and we know that there will be a case before the Supreme Court later this year. It is important, therefore, that the guidance issued in Northern Ireland is sufficiently up to date to ensure that the men and women of Northern Ireland do not lose the access to human rights that the rest of us have.

This is a wrecking amendment, it would overturn the decision made by a majority in another place, and I hope therefore that all noble Lords will resist the amendment of the noble and learned Lord this evening.

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My Lords, I had not expected to be on so soon. Many of us in the Labour Party have some form on debating Clause 4. I am nothing if not consistent: I want to keep Clause 4. It is worth reminding ourselves what Clause 4, which was voted into the Bill by a cross-party majority of almost 100 in the House of Commons, says. It came on the back of a decision by the Supreme Court in June that Northern Ireland abortion law was “untenable and intrinsically disproportionate” in relation to rape and incest, which are criminal matters, and fatal foetal abnormality. The House of Commons looked at this issue within the confines and context of the Bill and also at gay marriage, which is possible in the rest of the UK as a result of a law passed in your Lordships’ House.

Noble Lords have rightly said that Clause 4 does not change the law but states that, in the absence of a Northern Ireland Executive to scrutinise the impact of laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations, the Secretary of State for Northern Ireland is required to provide clear guidance to Northern Ireland civil servants on the operation of these laws, and to update the House each quarter on how she plans to address the laws’ impact on the UK’s human rights obligations. This is exactly what has been agreed by the House of Commons by a large majority.

I understand why the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan, have brought forward this amendment. It recognises that the existing law may contravene the European Convention on Human Rights but then says that the Secretary of State can do nothing about it. That does not seem to be a position which your Lordships’ House would want to be in. Like my noble friend Lord Cashman, I understand the sentiments and principles behind the amendment in the name of my noble friend Lord Adonis. We think alike on these issues. I struggle with the concept of issuing guidance to civil servants not to enforce legislation. Guidance is not the way to do it, and that is why the House of Common has taken the approach that it has.

All noble Lords understand that these issues evoke emotional responses. They are difficult, personal issues, which is why this is a matter of conscience and there is a free vote in both Houses of Parliament. The House of Commons sought a way forward which is both proportionate and within the terms of this legislation. As I said once before within my own party: I urge your Lordships’ House to protect Clause 4.

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My Lords, this has been a thought-provoking, considered contribution to the debate this evening. At the outset, I draw the attention of the Committee back to the functioning and purpose of the Bill itself. The Bill is designed to ensure an opportunity to re-establish a functioning Executive. That is the ambition behind the Bill and its subsequent elements. A functioning Executive would go a long way to addressing the issues which have been raised this evening. We can be fairly clear that this matter most correctly rests with an Assembly in Northern Ireland.

The noble and learned Lord, Lord Mackay, has put forward an amendment and has graciously said that he will not put it to a vote. However, his contribution has allowed an open opportunity to explore each of the elements within the wider debate. The noble and learned Lord has been clear about the constitutionality of the amendments in the name of the noble Lord, Lord Adonis. However, the purpose behind them is understood. He too was seeking to send a message with his amendments this evening. He has done that; we have heard the message.

I also listened very carefully to the impassioned remarks of the noble Lord, Lord Shinkwin; everyone here will have been moved by them and recognised the passion with which they were given. The Government have no intention of undermining or diminishing the position of persons with disabilities. That was never an attempt or an endeavour. This Bill and any guidance it puts forward would not influence Northern Ireland departments to act in any way which is not compliant with Section 75 of the Northern Ireland Act 1998, which includes provisions to ensure equality between people with disabilities and people without disabilities. I recognise, however, exactly the points the noble Lord made, and they are perhaps for us all to reflect upon this evening. This is, as a number of noble Lords have made plain, a matter of conscience, and I have no doubt that many this evening will be considering these elements as they listen to the ongoing remarks.

I am also taken by the ideas put forth by the noble Lord, Lord Alderdice. Two things become clear to me. Public opinion is a curious thing. Sometimes we think that we know what it is, and sometimes we are wrong, but I think he is absolutely correct that there has been an evolution in public opinion within Northern Ireland. Exactly what it is and how it can be determined can be captured in snapshots of opinion polls, which are like the blink of an eye. Sometimes they change, and it is very hard to pin them down. I cannot make any commitment regarding his novel idea of referendums, but I would like to discuss that further. If he is amenable, I would like to sit down in the future to explore that very thing. However, it is of course not for this particular Bill to move that matter forward.

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The noble Lord, Lord O’Shaughnessy, told me that the Government’s position was that there would be no move on abortion by this Parliament as long as the Northern Ireland Assembly was in devolution mode. I do not think it is helpful for the noble Lord to suggest that there be a referendum on abortion in Northern Ireland at this time of night, in this Bill. Even to discuss it, I think, is most unhelpful.

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I hope the noble Baroness will forgive me, but I disagree with her on this. I do not think that, in opening up a discussion with the noble Lord, Lord Alderdice, we are doing anything other than recognising that there are challenges ahead, in respect of which this is but one opportunity to progress. It is not my intention that we will do any more than discuss this; indeed, it is far too great a discussion to have. Equally, this is perhaps not the correct Bill through which to do it, and this is not the right time of day to have such a detailed discussion.

I recognise a number of the points which were made by the noble Lords this evening. I am guided, in truth, by one simple fact. Clause 4 as drafted does not in any way instruct the Secretary of State to issue guidance to civil servants in Northern Ireland to disobey the law. It cannot do that in any way whatever. Given our earlier discussions about the challenges facing the civil service in Northern Ireland, perhaps this would be one burden too far, to try to encourage movement in that direction. Our purpose here is to ensure that, in recognising that Clause 4 came to us with overwhelming cross-party support from the other place, we acknowledge that that came from a democratic House. We must recognise what it represents and understand how best to take it forward. That is exactly what we will do, and we will do so carefully and in a very transparent manner. That is what is required from this particular clause. We will not be issuing guidance that seeks to undermine the letter of the law, in effect usurps it or changes it in any fashion whatever. We cannot and should not do that. I stress again that this is a matter correctly to be taken forward by the democratic Assembly of Northern Ireland.

On those points, my Lords, I hope that you will find it acceptable not to move your amendments to a vote.

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My Lords, I assure the noble Lord, Lord Morrow, that I have no intention of becoming King James III, and can I assure the noble and learned Lord, Lord Mackay, that I am only too well aware of the defective drafting of Amendments 10 and 11. It was no part of my purpose to abrogate the proper operation of the law. I was simply advised by the Clerks that, because of the limits of the current Bill, it was not possible to have a straightforward proposal in it to legalise abortion and equal marriage, so in order to enable a debate to take place, the amendments were moved in the form that they were. However, I recognise that the noble and learned Lord does not intend to press his amendment, and nor do I intend to press mine. As the Minister rightly said, I was simply seeking to set down a marker for what the Northern Ireland Assembly will need to deliberate on—assuming there is an Assembly. I need to say in conclusion that if there is not a Northern Ireland Assembly within a reasonable period of time, I do not see how this Parliament can abrogate its responsibility for maintaining fundamental human rights in Northern Ireland.

The suggestion of the noble Lord, Lord Alderdice, of a referendum is an interesting one, which I am glad to hear the Minister say he is prepared to discuss further. After the experience of the last few years, I am not wildly enthusiastic about referendums. I note that the reason why the referendums on equal marriage and abortion needed to take place in the Republic of Ireland was that its own constitutional provisions enabled the constitution to be amended only by means of a referendum. I hope that these matters can be resolved by the Northern Ireland Assembly but if it cannot, a way will need to be found to resolve them. I do not believe that your Lordships’ House or the other place, on the basis of the vote in the House of Commons last week, will be prepared to see the existing law continue for long. On that basis, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

Amendments 11 to 13A not moved.

Amendment 13B

Moved by

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13B: Clause 3, page 3, line 11, at end insert—

“(4A) If the Secretary of State deems it in the public interest for a senior officer of a Northern Ireland department to exercise a function or functions of that department during the period for forming an Executive, the Secretary of State may summon the Northern Ireland Assembly to debate the issue.(4B) A debate under subsection (4A) may not extend beyond four hours.”

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My Lords, I welcome the opportunity to stand after sitting for so long. Amendment 13B, in my name, is grouped with two amendments in the name of the noble Lord, Lord Adonis, but I see no overlap between the two. The noble Lord’s amendments relate to the early stages of the process, when the Secretary of State has to formulate and issue guidance, whereas I look beyond that to what the operation might be.

From the point when the Assembly collapsed, I turned my mind to ways in which we might get it going again or find some way of substituting, or other ways of carrying out what Northern Ireland needs. I still feel that the suggestion of the Welsh model was quite good, but it became clear that it was far too much for the Northern Ireland Office to digest and that my rather ambitious proposals would not get anywhere. I have therefore gone to the other extreme and drafted something as short and simple as can be, but which would give the opportunity for a significant step forward.

The amendment takes off from the provisions in the Bill whereby senior officials in the Northern Ireland Administration can exercise, if they think it is in the public interest, the powers that they have under the legislation, which goes right back to the 1920 Act. I took that and added to it a proposal that the Secretary of State may, where she or he is satisfied that it is in the public interest, summon the Northern Ireland Assembly to debate the issues that they have in mind. This is entirely discretionary on the part of the Secretary of State. It does not compel her to take any particular action but gives her the opportunity to bring the Northern Ireland Assembly together to discuss how the powers referred to in this legislation are carried out. That would be beneficial to the Northern Ireland Office and to the Government. They would then have the opportunity to discuss what they are doing, or to see other people discussing what they are doing at some length and, I hope, with some degree of careful examination of the matter. This would improve the quality of what has been done and, as I say, would give the opportunity to move in that way. I will not go into this in detail, but a serious debate by the elected representatives is bound to add something to the quality of the Administration and is worth having.

There is also a political aspect to this, because if we had this implemented—again, it is entirely at the discretion of the Secretary of State; I am not saying that she must do this, and it could be that it is not operated—by bringing the Northern Ireland Assembly together, we would be taking a concrete step towards it coming back as it should. It adds something to the discussions that the Government may be having in trying to persuade the parties to sort out their differences and then return to the Administration. By having it in operation, even if only for a few hours on particular issues, we would make it clear that it is possible that the Assembly can work again, and will work again. Having got that initial first step, it will be easier, I hope, to take other steps beyond that.

This is a very modest amendment and I shall not press it to a vote. It is purely discretionary; nobody is obliged to do anything with regard to it. I shall not spin out the discussion any further. I think the best thing I can do for the House tonight is to sit down and let things take their course. I beg to move.

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My Lords, there is one reason why I would support the amendment that the noble Lord, Lord Trimble, has put forward: from the beginning, the element of the Northern Ireland institutions that worked rather well was the Assembly itself. When it came to the Executive functioning, that was much more contentious and difficult, but the Assembly functioned rather well. The idea of finding ways in which the Assembly could start to meet again, to debate issues of some substance that would increase, to some extent, the accountability of the Government side—be it civil servants or others—is a good one. To simply bring the Assembly back together for one occasion to debate a contentious issue would potentially be damaging because the old splits would re-emerge. To come together on a number of occasions to debate issues that are not necessarily of high contention but are nevertheless important seems to me a good idea. Whether one follows the very specific proposal in this amendment, or some of the other ideas that the creative mind of the noble Lord, Lord Trimble, has produced over the last little while, the principle is important and merits exploration by the Government. To that extent, I support the amendment.

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My Lords, I have Amendments 14 and 15 in this group. I think the noble Lord, Lord Trimble, undersold his own amendment. It seems to me that he was raising a very important principle: it should be possible for the Assembly to meet in the absence of an Executive. As somebody who looks at this from outside, it has always seemed strange to me that, because of the architecture of the Good Friday agreement, the Assembly cannot meet if it has not sustained an Executive. I do not know whether the noble Lord can tell me if it legally cannot meet. It certainly has not met in the absence of the Executive. It seems, in terms of seeking to engage the elected representatives of Northern Ireland, and encouraging them to create a context in which an Executive can be formed, what the noble Lord has proposed is extremely constructive. The Minister will be able to tell us whether legally it is possible to proceed in the way the noble Lord, Lord Trimble, has proposed. My amendments facilitate a meeting of the Assembly for the specific purpose of discussing Brexit, given that that is one of—not the only, but one of—the most important decisions that will be taken affecting Northern Ireland over the next six months. It seems highly detrimental to the people of Northern Ireland that their voice is not being taken account of in any formal way, apart from the impact that they are able to have through their elected representatives in the House of Commons. If it were possible to bring the Assembly together for the purpose of discussing Brexit in the absence of Ministers, I cannot see any good reason why that should not happen.

I understand the point that the noble Lord, Lord Alderdice, has made, which is that summoning the Assembly purely for the purpose of discussing one issue—a contentious issue—may not be the best way of proceeding. Enabling the Assembly to meet to discuss a wider range of issues and issues of immediate local concern, including many that were raised at Second Reading, such as infrastructure, public services and so on in Northern Ireland, could help to inform the decisions that officials take. That would seem to be an eminently sensible way forward, and it appears to be what the noble Lord, Lord Trimble, has in mind. However, if it were legally possible for the Assembly to meet in the absence of Ministers, I would have thought that that would be an excellent way of proceeding, and my amendments would simply include Brexit among the issues that should be discussed by any such meetings of the Assembly.

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My Lords, there might be a couple of technical issues surrounding this. As I understand it—perhaps the Minister can confirm this—under the current law the first item of business when the Assembly meets is the election of a Speaker. The Assembly would refuse to do that under the current circumstances, so that would have to be addressed.

However, there is a wider point that I want to make. I am sure that the Minister or his predecessors have been saying for more than a year that they are prepared to think outside the box. However, this is a hermetically sealed box; it has a number of combinations on it but nobody knows what they are; and it has not been opened in the past year. Not a single idea has been brought forward. For months the noble Lords, Lord Alderdice and Lord Trimble, have been putting forward options—but they are talking to a brick wall, because the principal holy grail at the moment is, “Don’t upset the Sinners”. As long as that is the driving force, we will never move a yard forward.

So I hope that the Minister will, with the Secretary of State, genuinely be prepared to look outside the box. We will be sitting here having this conversation in several months’ time, and I do not know whether these are the right options but I think that they certainly merit discussion. The Northern Ireland Office has to start thinking outside the box. I understand that the Prime Minister and everybody else is Brexit focused. The noble Lord, Lord Adonis, rightly said that this is the biggest change that has happened to us in the last 20 years and we are out to lunch. Our voice is not being heard, yet the people of Northern Ireland will be the most directly affected. It is barking mad that we are in this position—so let us genuinely think outside the box.

I hope that when he winds up, the Minister will be able to refer back to Amendments 7 and 8, which I spoke to earlier, concerning the circumstances in which our health service and other matters could be addressed in the future. These are all parts of a bigger picture. I just hope that he will persuade his right honourable friend in the other place to start thinking outside the box, because we are trapped, it is wrong that we are trapped and people are hurting. This Parliament has a responsibility towards those people, and we are not doing our duty.

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My Lords, I think that there is a case for putting this on the table as a matter for discussion in the forthcoming negotiations. Obviously the Good Friday agreement is a structure that means that all sorts of different organisations have to operate at the same time. You have to have an Assembly, an Executive, a north/south ministerial body and a British intergovernmental conference with the Republic of Ireland. However, the noble Lord, Lord Empey, is right: you have to think outside the box. There has to be imagination. The noble Lord, Lord Trimble, has been talking for at least a year about using what could have been the original Welsh model, when the Welsh Assembly was effectively a very large county council. It has changed considerably over the years—in my view, for the better. But that was an opportunity for elected people in Wales to get together. We have just under 100 Members of the legislative Assembly in Northern Ireland. They do not meet formally or informally. This would give them a chance to go to Stormont and talk about issues, and also talk among themselves—to start talking again—because this is all about talking in many ways.

In the late 1990s there was an Assembly before the original Executive was set up. I was the Finance Minister in Northern Ireland and spent at least one or two days presenting the budget to the Northern Ireland Assembly, because there was no Executive. They then had an opportunity to question me as a Minister about these issues—but why cannot the same happen again? I hope that the Secretary of State and the Minister will also look at the conclusions of the Northern Ireland Select Committee in the other place, which put forward a number of suggestions not unlike the ones noble Lords have put forward in the last few minutes. It is worth thinking about—anything that brings people together is worth thinking about. It would also, as my noble friend Lord Adonis said, provide the opportunity to at least address the most significant issue facing the people of Northern Ireland—other than the restoration of the institutions—which is Brexit, which affects Northern Ireland so uniquely and strongly. It is worth thinking about, and I hope it is on the agenda for the negotiations.

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Before the Minister replies, may I add that if he is minded to make a constructive response to this, might it involve scrutiny committees meeting again? That is a way of getting people to work together, and within those scrutiny committees could be a Brexit committee. The best way to break the deadlock is to get people used to the idea that they did work together and they could do it again.

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I did not intent to speak on this particular issue, but we are talking about the Assembly meeting to discuss issues. This has already been on the table. All the other parties are keen for the Assembly to meet to discuss Brexit, and there are other serious issues that the Assembly could come together on—public representatives meeting and coming, as far as possible, to a consensus. This has been on the table for some time. All the other parties are happy to move in that direction, at least for the Assembly to meet without an Executive. The only party which has said no to that is Sinn Féin—so anything suggested this evening is already on the table, and it has failed. The noble Lord, Lord Empey, is right—why do we pander to Sinn Féin? We will never achieve what may be achieved in trying to get devolution up and running.

It is important that the Assembly does meet, even without Ministers and an Executive. That would be a start—discussing some major issues that deeply concern the people of Northern Ireland.

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My Lords, in my head I have a New Yorker cartoon of a very elegant gentleman with a cat on the floor next to its litter tray. The gentleman is pointing and saying, “Never think outside the box”.

We do need to think afresh—Amendment 13B from the noble Lord, Lord Trimble, and the other amendments from the noble Lord, Lord Adonis, do have certain impediments. The noble Lord, Lord Empey, referred to the question of the Speaker and the question of cross-party consent being one of those impediments. I do not want to end this evening’s discussion on that negative statement. Let me take away some of the ideas that have been expressed tonight. Let me think and reflect on them in discussion with my right honourable friend the Secretary of State for Northern Ireland, and let us see if we can live up to that statement of “thinking outside the box”. On that basis, I hope that noble Lords will not press their amendments.

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I beg leave to withdraw the amendment.

Amendment 13B withdrawn.

Amendment 14 not moved.

Clause 3 agreed.

Amendment 15 not moved.

Clause 4: Equal rights for people of Northern Ireland

Amendment 16

Tabled by

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16: Clause 4, page 4, line 4, leave out from “State” to end of line 15 and insert “shall issue guidance to Northern Ireland departments on the exercise of their functions in a manner which is compatible with section 6 of the Human Rights Act 1998”

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My Lords, I said earlier that I would move this amendment, but since it has been grouped with the amendment in the name of the noble Lord, Lord Adonis, I think we have had plenty of opportunity to discuss it, so I will not move it now.

Amendment 16 not moved.

Clause 4 agreed.

Clauses 5 to 11 agreed.

House resumed.

Bill reported without amendment.