Relevant documents: 3rd Report of the Delegated Powers Committee, 2nd Report of the Constitution Committee
Clause 1: National and cultural identity
1: Clause 1, page 2, line 5, after “means” insert “the Northern Ireland Office, the Northern Ireland Human Rights Commission and”
My Lords, I cannot say that the Report stage in front of us will excite people in the same way that other events might today, but it is still very important for the future stability of Northern Ireland.
Before I go into some small details, I will mention one or two general things about Report stage, and I hope that at the appropriate time, the Minister will be able to comment on them. The first thing is his own letter that he sent to Members of the House of Lords, on the various issues that arose in Committee. He very kindly agreed to reflect on the points that were made in Committee and has come up with a number of ideas and suggestions that I entirely agree with and thank him for. They deal, of course, with the Ulster Scots commissioner, with the Castlereagh Foundation, and with the step-in powers of the Secretary of State. On all three issues, Members of the Committee who spoke some weeks ago will be very pleased with the Minister’s response.
The other general point is to ask what we can do on Report with a Bill that was essentially formed from an agreement made some years ago in Belfast. As your Lordships will know, the New Decade, New Approach deal was struck between the then Secretary of State, the political parties in Northern Ireland and the Irish Government. One reason that they decided to look at this issue of identity and language is, of course, that that issue brought down the Assembly for some three years. So it is hugely significant. However, it means that this Bill really reflects the agreement; I am sure it mostly does. The agreement made in Belfast is incorporated in the Bill and any amendments that we might make should really be in the light of the principle that it should stick as closely as possible to the agreement made. There may be some examples where the wording and other issues can be improved upon in the Bill, but that is the principle.
Another issue that is important, and likely to come up in our debates over the next couple of hours, is the equality of the commissioners: the Irish language commissioner and, of course, the Ulster Scots and Ulster- British tradition commissioner. This is, again, reflecting what was in the agreement made in Belfast.
The amendment that I am moving, signed by my noble friends, is really very simple. When the agreement touched on which public bodies should be put into the Bill—with regard to the Irish language commissioner, for example—some specific government bodies and agencies in Northern Ireland were not included when it seemed logical that they should have been. One was the Northern Ireland Human Rights Commission; the other was, of course, the Minister’s own department, the Northern Ireland Office—my former department. What is significant is that that body is wholly about Northern Ireland. It is about no other part of the United Kingdom; its duty is to deal with Northern Ireland. The Secretary of State and his or her Ministers’ duties concern Northern Ireland.
Although there is of course a London office for the NIO, there is a more substantial base in Belfast. That is why it seems logical that those bodies should be under the same umbrella of public bodies mentioned in the Bill. I shall be very interested in what the Minister has to say in response to this amendment and I beg to move.
My Lords, I echo many of the points just made by the noble Lord, Lord Murphy. I also repeat the comment that many of us made in Committee: it is with regret that we are debating this Bill at all. It should be debated in Northern Ireland by the Northern Ireland Assembly. Having said that, we broadly support the Bill, but we tabled these amendments in Committee and have tabled them again here to probe the Minister further. Having reread the debate from when we discussed similar amendments in Committee on the definition of public authorities, I do not believe that the Minister gave a substantial explanation of why the Northern Ireland Office and the Northern Ireland Human Rights Commission were not explicitly included under the Bill. It seems, to me at least, that both bodies would have a substantial role to play in these matters. Like the noble Lord, Lord Murphy, I ask the Minister to give an explanation in his concluding remarks for why they were not covered in this legislation.
My Lords, first, I apologise for my non-participation at Second Reading, due to the fact that I was at Queen’s University on that day receiving an honorary professorship, and in Committee because I had Covid. However, I watched that stage from the comfort of my bedroom and found that some very interesting points were made on that day. I support and endorse the comments made by my noble friend Lord Murphy and those of the noble Baroness, Lady Suttie.
The Bill would have been much better dealt with in the Northern Ireland Assembly by its Members. Obviously, however, there is a necessity for the UK Government, via the Northern Ireland Office, to bring forward this legislation in Parliament because it could not seem, regrettably, to be progressed through the Northern Ireland Assembly. I support the clauses and central purpose of the Bill: to deliver on large aspects of the New Decade, New Approach agreement, which was the basis of an agreement between the five main parties in Northern Ireland, resulting in the formation of the Executive, the Assembly and other institutions in early January 2020. I support the Bill and want to see it implemented, subject, obviously, to the amendments in my name and that of my noble friend Lord Murphy, and the noble Baroness, Lady Suttie, along with others that I have tabled in respect of powers to do with the Secretary of State.
I believe in and support the Irish language. I did Irish at school up to GCSE/O-level and then attended, on two separate occasions, the Gaeltacht in north-west Donegal. You were expected to speak Irish in the house you were allocated there and in the school—the Irish College. I am also a firm believer that place names in Ireland, both north and south, and many words in Irish inform and teach us about her heritage, our unique geographical landscape and our environment. In fact, many of our towns on the island, north and south, have Anglicised versions of the old Irish names. That is not by way of a political point; it is simply a historical fact of heritage.
I also support the provisions for Ulster Scots as a linguistic grouping that transcends traditions in Northern Ireland. In many ways, perhaps it should not be conflated with identity, but I understand the pressing amendments in that respect. My name is from the lowland Scots, so I represent the Gael and the Planter, which I do not see as an offensive personal identification mechanism. Like the Ulster poet John Hewitt, I see that as a means of identification because it represents the richness and beauty of diversity and challenges us all on that necessary path to reconciliation.
To revert to the amendments on public authorities, I am very much in agreement with my colleagues who have just spoken. I suppose part of the reasoning behind the original drafting was that the Bill was meant to be dealt with by the Northern Ireland Assembly and Executive, hence there was no reference to the Northern Ireland Office and the Human Rights Commission, which has direct responsibility and derives that authority from the Northern Ireland Office.
I make a special plea to the Minister, because we are dealing with this in the UK Parliament, to give due consideration to and accept these amendments. I also suggest, if that is not possible today, that he goes back to his ministerial colleagues in the NIO to see what may be possible and considered acceptable through the passage from this House to the other place, and in so doing that have a period of reflection. I know that these issues were also discussed in Committee because other areas are not included, such as the UK Passport Office, vehicle tax and registration, the Parades Commission, Covid testing and money and tax services.
I believe that for the provisions of the Bill to have meaning in government circles, the two mentioned here—the NIO and Human Rights Commission—need to be immediately included and the Government should give consideration to those and others in the fullness of time. I fully support this amendment.
My Lords, I am very grateful to the noble Lords who have spoken to these amendments. I say at the outset how grateful I am to the noble Lord, Lord Murphy. As I made clear in my first speech from this Dispatch Box as a Minister, while we might not agree on everything all the time, when it comes to Northern Ireland I will always try to adopt as consensual, bipartisan and open an approach as possible. I am very grateful to the noble Lord.
He mentioned the Bill being a faithful implementation of the New Decade, New Approach agreement from January 2020 and that is what the Government have sought to do. However, I agree with other noble Lords that this really should have been dealt with in the Northern Ireland Assembly and not within this Parliament. It is a matter of regret that this is the case. I remember first-hand the period from 2017 to 2020 when these issues paralysed politics in Northern Ireland and led to a prolonged lack of functioning devolved government. It was a particularly frustrating period and I am very sorry that we are going through a similar period now, which I hope will be much shorter lived than last time.
Turning to the amendments, I am grateful to noble Lords for the spirit in which they were moved and spoken to. As noble Lords made clear, they seek to widen the definition of “public authorities” in the Bill beyond those captured in the Public Services Ombudsman Act (Northern Ireland) 2016. As noble Lords have mentioned, we had a very wide-ranging discussion in Committee. I am very sorry that the noble Baroness, Lady Ritchie of Downpatrick, was unable to be present. I hope that watching proceedings from her bedroom helped mitigate some of the Covid symptoms she might have experienced and aided her recovery, which we all very much welcome.
I do not intend to cover the same ground today as I covered extensively in Committee. However, the definition of public authorities for the purposes of the Bill, as with other parts of the legislation—this goes back to the comments of the noble Lord, Lord Murphy, about being faithful to New Decade, New Approach—is consistent with the legislation that was drafted by the Office of the Legislative Counsel in Stormont and published alongside New Decade, New Approach. As a result, the Bill does not seek to innovate in respect of that definition by removing or adding public authorities. It seeks to make provision comparable to a situation in which the Assembly, rather than this Westminster Parliament, had taken forward these commitments. The Northern Ireland Office and the Northern Ireland Human Rights Commission, and indeed any of the bodies to which the noble Baroness referred, such as the Passport Office, were not intended to be captured by these commitments. That was never agreed and, as I said in Committee, the range of public authorities listed under the Public Services Ombudsman Act (Northern Ireland) and in this Bill is substantial and comprehensively covers devolved areas.
The Government consider that it would be inconsistent to expand the definition of public authorities beyond that set out in the draft legislation to which I have referred. Further, adding two or indeed more organisations with functions outside the devolved competence, such as the Northern Ireland Office and the Northern Ireland Human Rights Commission, would undermine the overarching approach, which is that the First and Deputy First Ministers should be the sole arbiters when designating public authorities. There are of course provisions in this Bill that would allow the First and Deputy First Ministers to add or subtract from the public authorities that this legislation covers within Northern Ireland. To introduce organisations for which the First and Deputy First Ministers do not have direct responsibility would, I gently suggest, muddy the waters and detract from their role.
I would also suggest that the public in Northern Ireland do not routinely interact with the Northern Ireland Office, which for the most part does not deliver or provide day-to-day front-line services to the public that would seem to trigger the relevant provisions on Irish language and Ulster Scots. Of course, given the close interest of the Northern Ireland Office in the New Decade, New Approach commitments on which the Bill delivers, I would still expect consideration to be given to the national and cultural identity principles set out in the first part of the Bill, and the guidance issued by the respective commissioners. I would expect much the same with the Northern Ireland Human Rights Commission.
However, the extension of the legal duty as proposed in these amendments would, in our view, be inconsistent with New Decade, New Approach and seem impractical for the reasons I have given. I therefore hope that noble Lords will not press their amendments.
My Lords, I understand the points the Minister makes. He also makes the point that, eventually, as this Bill is embedded in Northern Ireland law over the years ahead, the Assembly itself might decide to make changes and that, in the meantime, the bodies to which I have referred—the NIO and Northern Ireland Human Rights Commission —must still stand by the principles that underlie this legislation. So in that regard, I am happy to withdraw the amendment.
Amendment 1 withdrawn.
2: Clause 1, page 3, line 22, leave out from “Commissioner” to “Ulster” in line 24 and insert “for the Ulster Scots and the”
My Lords, these amendments in my name all concern proposed changes to the differentiation in the Bill between Ulster Scots as a recognised national minority and the Ulster British tradition. Following the extensive debate on these matters in Committee, I undertook to consider proposals put forward by noble Lords and, in tabling these amendments, I hope I have fulfilled that commitment.
Since the original drafting of the Bill, the Government recognised Ulster Scots as a national minority under the framework convention in May. I therefore agree with noble Lords that the Bill as drafted would not seem to draw a clear and adequate distinction between Ulster Scots as a distinct national minority and the Ulster British tradition. This lack of clarity is particularly acute in the title of the relevant commissioner—as drafted,
“the Commissioner for the enhancement and development of the language, arts and literature associated with the Ulster Scots and Ulster British tradition.”
I defy anybody to come up with an acronym for that. Subject to the agreement of noble Lords, the amendments in this group will change the title of the relevant commissioner to “the Commissioner for the Ulster Scots and the Ulster British Tradition”, the inclusion of a new instance of the definite article—the word “the” —to differentiate between the two, being crucial here.
Noble Lords may wonder why the Government have not simply changed the references in the Bill to “the Ulster Scots and Ulster British traditions”, plural, as was suggested by some in Committee. We have taken this approach to reflect the fact that the Ulster Scots are a distinct people and now a recognised national minority. To pluralise “tradition” would be to disregard this new status, which delivers on paragraph 24 of Annexe A to New Decade, New Approach. It would overlook the work of the relevant commissioner advising on the Framework Convention for the Protection of National Minorities, as set out in paragraph 5.16.2 of Annexe E. I should add that in looking into this issue, my officials consulted both the Ulster-Scots Agency and the Northern Ireland Human Rights Commission, which share our understanding. Indeed, the Ulster-Scots Agency confirmed that it would be content with the approach set out in these amendments. I beg to move.
Amendment 2 agreed.
2A: Clause 1, page 3, line 33, at end insert—
“(5) The First Minister and deputy First Minister acting jointly must annually assess and report on the costs arising from the operation of the Office in line with the duties prescribed in section (Assessment of expenditure) of the Identity and Language (Northern Ireland) Act 2022.”
My Lords, I am pleased to speak to Amendments 2A, 4, 16, 35A and 37, and I point out at the commencement that the noble Lord, Lord Empey, is a signatory to them but regrettably is unable to be with us today due to domestic circumstances. We wish him well and I thank him for attaching his name to them. My noble friend Lord Browne, to my left, will speak on some of these amendments in place of the noble Lord, Lord Empey.
I want to be very clear from the outset that the view of the DUP is that the two commissioners are different and their functions do not need to be made identical; indeed, we do not believe that making them identical would be appropriate. However, it is vital, not least in order to respect the principle of parity of esteem, that both commissioners be respected by all parts of government and society as equally important. One key way in which this respect needs to be manifest is in ensuring that the amounts of public money devoted to both are comparable. In making this point, I observe that the Explanatory Notes suggest that the funding for both commissioners will be similar, but it is my contention that this assertion is made on a problematic basis. The costing is assessed narrowly, in terms of the direct costs of running the offices of two commissioners, but that is surely just a fraction of the impact—certainly of the Irish language commissioner—on the public purse.
One can only have any hope of assessing the impact of the provision of the commissioners if, in addition to assessing the relevantly limited cost of running their offices, one has regard also for the budgetary impact they will have in placing additional demands on public authorities. It is in relation to their impact on public authorities that the real cost of the commissioners will be felt, and it is important, especially in the context of the current cost of living crisis, that we are open and honest about this fact.
The relevant public authorities are defined by the Public Services Ombudsman Act (Northern Ireland) 2016, which lists well over 70 public authorities in Northern Ireland. If we consider the principal aim of the Irish language commissioner, described in new Section 78K(1) as,
“enhance … the use of the Irish language”,
it is possible that every single public authority in that long list will be in receipt of significant new obligations and costs, relating to the provision of the services of the public authority in question in Irish. They will, however, also benefit from a duty to have regard to obligation being placed on public authorities in relation to them and the complaints procedure with respect to the entirety of their obligations as defined by the Irish language commissioner.
By contrast, the role of the Ulster Scots commissioner is also defined in terms of the same list of public authorities, the principal aim of the commissioner, to
“enhance … the language, arts and literature”,
of Ulster Scots, rather than enhancing the use of the language, as described in new Section 78Q(1), is such that while it is clear that some public authorities concerned with culture and the arts will be engaged, it is also likely that the demands placed on the long list of others, including, for example, the Northern Ireland Fishery Harbour Authority, the Health and Safety Executive, the Agri-Food and Biosciences Institute, et cetera, will be very limited indeed.
Put another way, while every public authority is equally and extensively open to engagement by the Irish language commissioner, because all public authority services must be provided in the context of the use of language, it seems to me that every public authority is not as equally and as extensively engaged by the Ulster Scots/Ulster-British commissioner.
At this point, I should perhaps anticipate the response that the Bill makes reference to the role of the Ulster Scots/Ulster-British commissioner in terms of,
“facilitating the use of Ulster Scots in the provision of services to the public or a section of the public in Northern Ireland”.
However, while the principal role of the Irish language commissioner, as described in new Section 78K(1), is focused on enhancing the use of the language in public service provision, the parallel principal role of the Ulster Scots commissioner is defined in terms of enhancing the language, literature and arts of Ulster Scots. Although facilitating the use of Ulster Scots by public authorities in service provision is by no means off limits, the fact that it is not front and centre, as in the case of the Irish language commissioner, is underlined by the fact that reference to it does not occur in the principal role definition when it is mentioned lower down, as in new Section 78R(2)(b) where it is only in brackets.
In response to the debate on costs in Committee, the Minister referred simply to the Explanatory Note, which focuses narrowly on the costs of running the three organisations, not on the cost to the public purse with respect to public authorities. In responding to that debate, the Minister stated also that it was not the business of Westminster to get involved in monitoring the costs of the new bodies. I accept that point, after the bodies are established.
My Amendment 37, however, pertains to the period before the Bill comes into force and so is directed at Westminster and Whitehall. While it is not our job to run offices, it is our job to make this legislation very clear about the costs for which Northern Ireland must prepare. Amendment 37 requires that, before this Act can come into force, the Secretary of State must lay before Parliament a report assessing both the operational costs of setting up and running the three offices, and the costs to public authorities of engaging with the new commissioners and their requirements. Critically, it requires also that this assessment demonstrates how the resulting spending allocation, including that from the public authorities, will give effect to the principle of the parity of esteem between the unionist and nationalist communities.
Amendments 4, 16 and 35A would place a similar obligation on the First and Deputy First Ministers for once the two commissioners are up and running in order to ensure that the spending allocations to each community are broadly comparable. Amendment 2A applies the same obligation in relation to their assessment of the spending of the office of identity and cultural expression.
I hope that the Minister is in a position to give the following assurances that I am looking for in speaking to these amendments today: first, that the role of both commissioners should be accorded equal importance; and, secondly, as a function of this, that the budgetary footprint left by each commissioner in terms of their impact on public authorities should be broadly the same. In responding to the debate today, I ask that the Minister directly addresses these two points. I beg to move.
My Lords, I will very briefly add a word or two. By way of general introduction, I agree with noble Lords who have already said that this is a matter that should be decided and debated in the Northern Ireland Assembly rather than in this place. Of course, had the Government wished that to be the case, they could have left it to the Northern Ireland Assembly. However, it was a decision taken by Her Majesty’s Government to bring it here, and we are therefore debating it today. Nevertheless, we are now examining these matters in detail, and the other place will deal with this in due course.
Since I had spoken on this issue of accountability and financial responsibility in Committee, I wanted to agree with the noble Lord, Lord Morrow, in the amendments that he has set out, and to stress the point that the Minister in Committee said that these were matters for the Northern Ireland Assembly and therefore that it would be inappropriate to have Whitehall, the Northern Ireland Office or this Parliament have reports presented to them on expenditure in relation to these commissioners, bodies and so on. But the amendment to which the noble Lord, Lord Morrow, has referred on the costs to public authorities, which would require that a report be laid before the commencement of the Bill, is right and proper for this Parliament to consider. It is entirely right that the Comptroller and Auditor-General will examine the accounts of the commissioners’ offices, and I urge that that should also look at the parity issue in relation to the fairness of expenditure across the board between the two offices and the office of identity and cultural expression.
However, the impact on public authorities has not been adequately investigated or probed thus far. While the Minister referred to cost, which the noble Lord has alluded to, in the Explanatory Notes, as I understand it, the estimated cost to public authorities of fulfilling the requirements in terms of guidance and so on has never been set out. I would be grateful if the Minister could deal with that point in his response and indicate whether any study or work has been done with those public authorities which will be engaged and affected by this legislation and by the guidance that emerges from the commissioners’ offices. Has any work been done with them about the impact on them in terms of costs, where any budgetary pressures may emerge and how those will be met? This matter deserves a little more scrutiny. We have had representations on it, and I hope that the Minister can address it when he sums up.
My Lords, I am very grateful to the noble Lords, Lord Morrow and Lord Dodds of Duncairn, and to my noble friend Lord Empey. I too regret that he cannot be here this afternoon; I understand that family commitments in Belfast detain him, and we all wish him well.
The amendments in the names of the noble Lord, Lord Morrow, and my noble friend Lord Empey all seek to require the publication of various pieces of information on the three bodies and commissioners established by the Bill, largely on their running costs and the cost of the associated duties.
I again refer noble Lords to what I said on this in Committee, some of which was raised by the noble Lord, Lord Morrow. I do not intend again to go over in detail what I said but, consistent with the responsibilities of the Executive that were agreed by parties in the New Decade, New Approach agreement and the associated draft legislation, all provisions of the Bill are a matter for the Executive to administer, support and fund. It follows, therefore, that expenditure from the Northern Ireland Consolidated Fund, including expenditure on the three public authorities established by the Bill, is for the Northern Ireland Assembly to scrutinise and not this Parliament.
That is why the financial accounts of all three authorities must be laid before the Assembly alongside the statement of the Comptroller and Auditor-General for Northern Ireland, as mentioned by the noble Lord, Lord Dodds of Duncairn. I am in no doubt whatever that a restored Assembly will provide appropriate and robust scrutiny of the annual accounts of the three authorities, including where these raise any questions of parity of esteem.
I am also in no doubt that the reporting and governance mechanisms for public authorities to which the duties will apply will provide sufficient transparency if there are any significant or notable costs in their work to meet these duties. Indeed, the Bill expressly provides for public authorities to publish a plan saying how they will comply with any best practice standards. I expect this mechanism will support the scrutiny of the work and any cost impacts, to which the noble Lord referred, on public authorities seeking to meet their legal duty in this regard.
I will respond more directly to a couple of the points made. The functions of the respective commissioners in the Bill reflect New Decade, New Approach almost word for word. Although the budget for each commissioner will be a matter for the Executive, we envisage that they will be comparable. We estimate that the cost for all three authorities will be in the region of £9 million per annum.
The Government therefore feel that the amendments proposed by noble Lords are not required, although I completely understand and recognise the intent behind them. I urge the noble Lord, Lord Morrow, to withdraw his amendment.
My Lords, I have listened carefully to what the Minister said. As I said earlier, and on another occasion, he demonstrates that he listens to what is being said. I will watch with great care as the Bill proceeds and goes elsewhere, but I will withdraw my amendment.
Amendment 2A withdrawn.
3: Clause 1, page 3, line 33, at end insert—
“78IFurther functions: establishing the Castlereagh Foundation(1) The Office may—(a) establish a body corporate or other organisation to be known as the Castlereagh Foundation, or(b) provide grants for the establishment of such a body or organisation by another person.(2) A body or other organisation established or funded under subsection (1) must—(a) have as its principal objective the funding and support of academic research into identity, including national and cultural identity and shifting patterns of identity, in Northern Ireland, and(b) be operationally and financially independent from the Office (though this does not affect the Office’s functions under section 78H).(3) The Office may dispose of any interest in the Castlereagh Foundation.”
My Lords, I have great pleasure in speaking to Amendments 3 and 30 in my name, on the establishment of the Castlereagh Foundation. We had an excellent discussion on the merits of establishing the Castlereagh Foundation in Committee following amendments tabled by my noble friend Lord Lexden and the noble Lords, Lord Morrow, Lord McCrea and Lord Dodds. I do not wish to cover the same ground here, but we also had an excellent debate about the merits of Lord Castlereagh as Foreign Secretary and Chief Secretary for Ireland in taking through the Acts of Union in 1800. I do not wish to embarrass the noble Lord, Lord Bew, but we also raised on a number of occasions the brilliant biography of Castlereagh by his son John.
Following the amendments in Committee, I promised to look at this issue further. The Government committed to fund the establishment of the Castlereagh Foundation in annexe A of New Decade, New Approach, at paragraph 25. It was envisaged that the foundation would explore the shifting patterns of social identity in Northern Ireland. The amendments that I have tabled will enable the establishment of that foundation and therefore meet a key commitment of New Decade, New Approach. I am delighted to bring them forward. I beg to move.
My Lords, I thank my noble friend. His amendment represents a very satisfactory response to the probing amendment that I moved in Committee alongside a similar amendment in the name of unionist noble friends. He reminded the House of the historical background, which we went over quite thoroughly in Committee, so I will not repeat it, following his example. I hope that the new foundation will conduct its work in ways that enrich and enlarge understanding, of the unionist tradition in particular, and help to increase support for unionism in all parts of the community in Northern Ireland. That is something that Viscount Castlereagh himself would have wanted.
Amendment 3 agreed.
Clause 2: Irish language
Amendment 4 not moved.
4A: Clause 2, page 6, leave out lines 10 to 23
Member's explanatory statement
The NDNA does not commit to assisting the Irish Language Commissioner or the Ulster Scots Commissioner with the provision of a duty on public authorities to have regard to them. This amendment would mean that neither of the Commissioners benefit from public authorities being subject to having a duty to have regard to them.
My Lords, I am pleased to speak to Amendments 4A and 17, in my name and that of the noble Lord, Lord Empey. I have given some indication as to why he is not in his place today. By way of introduction, I say that I am very grateful to the Ulster-Scots Agency for drawing my attention to the highly significant problem that these amendments seek to address.
In his response to Amendment 17, which I moved in Committee, the Minister pointed out that the two commissioners approach their different remits in different ways, and that we should not try to change that. I completely agree—100%. One commissioner is very focused on language, the other is less concerned with language and much more concerned with public culture, broadly conceived. This reflects the relative priorities of the different communities, as acknowledged by the NDNA process. However, appreciating this point does not provide any reason to oppose our amendments. While it is vital that we make space for the differences of focus, both communities require commissioners with similarly robust powers to pursue their different purposes. If one commissioner is given one role and provided with the requisite authority to discharge that role, while the other commissioner is given another role but not the same level of authority to discharge it, we are left with the image of two commissioners but the reality of only one that is worth while.
In his response to the debate in Committee, the Minister seemed to suggest that the lack of a duty to have regard in relation to the Ulster Scots/Ulster-British commissioner was compensated for by another difference between the two commissioners, namely that the Ulster Scots commissioner would have a broader brief. There are two difficulties with this assertion. In the first instance, the extension beyond language to cover arts and literature does not give the Ulster Scots commissioner a broader brief in public affairs. While the expectation is that the Irish language commissioner would make language demands on all 70-plus public authorities, the Ulster-Scots commissioner would not, and the compensating provision of arts and literature would engage only a small number of them.
In the second instance, no self-respecting community could accept a proposition that something being unenforceable in relation to a large number of issues was compensation for it being enforceable in relation to a smaller group of issues. That, of course, would be absurd.
The other argument deployed by the Minister in defence of the proposal that public authorities should not be required to have a duty to have regard to the Ulster Scots commissioner while they should be so obliged in relation to the Irish language commissioner relates to the wording of the NDNA, which does not explicitly state that a statutory duty should be imposed on public authorities to have regard to what the Ulster Scots commissioner says. Crucially, however, the NDNA does not state that no duty to have regard should be placed on public authorities in relation to the commissioner. Rather, it is silent on that matter.
There is a big difference between advocating something that the NDNA affirms or rejects on the one hand, and advancing something it is silent on, on the other. More importantly, however, an enforcement mechanism along the lines of a duty to have regard to is logically implicit in the NDNA, in that if there was no duty to have regard to what the commissioner says, the provision of the commissioner would be pointless.
Put another way, one can test the silence of the NDNA by imagining whether it would have stood up if it stated there should be a commissioner but that there should be not even a statutory duty for those engaged by it to have regard for what it says, since they would no longer be engaged in any meaningful way. That would make the provision absurd. Furthermore, the act of actually calling on legislators not to pass an amendment to make explicit a duty to have regard makes it explicit that there should be no duty to have regard, and thereby makes the provision of the commissioner explicitly pointless. In agreeing that there should not even be something as minimal as a duty to have regard, Parliament would be telling public authorities they can effectively ignore the commissioner. This is not defensible in my book.
There is a further, and in some ways even more profound, difficulty with the Government’s position. The truth is that in the same way the NDNA is silent on placing the duty to have regard on public authorities in relation to the Ulster Scots commissioner so too is it silent on that point as it relates to the Irish language commissioner, yet the Government have provided the Irish language commissioner with this crucial right, even as they have denied it to the Ulster Scots commissioner. This is indefensible.
The only relevant provision of the NDNA in relation to a duty to have regard is one that assumes a duty rather than a provision that proposes creating such a duty. Paragraph 5.8.4 in Annex E of the NDNA states that the commissioner should
“investigate complaints where a public authority has failed to have regard to those standards.”
On the basis of simple logic, it makes sense that the Bill before us today does place a duty to have regard on public authorities in relation to the Irish language commissioner, because if there are no obligations the provision of the commissioner would be a waste of public money. The difficulty, however, with concluding that this justifies the provision of a duty to have regard to in relation to the Irish language commissioner but not the Ulster Scots commissioner arises from the fact that paragraph 5.16.3 makes an identical commitment in relation to the Ulster Scots commissioner, stating that they should
“investigate complaints where a public authority fails to have due regard to such advice provided by the Commissioner in respect of facilitating the use of Ulster Scots.”
In this context, on the basis of both simple logic and what the NDNA says, we face a simple choice if we are to uphold the parity of esteem and do what is right by Northern Ireland.
The two amendments that I have tabled set before us the options that define that choice. Either we can say that the Ulster Scots commissioner must be endowed with the same authority to command respect as the Irish language commissioner, so that the two communities are equally respected by placing a duty on public authorities to have regard to the Ulster Scots commissioner, as set out in Amendment 17, or we can secure this end by removing that existing duty in relation to public authorities with respect to the Irish language commissioner, as set out in Amendment 4A.
In my view, the answer is obvious: since it would be absurd for this House to state that the public authority should not be subject to at least the lowest level of obligation to have regard to the commissioners we are creating, we have to make one change or the other. We cannot leave the Bill as it is, without actively undermining the principle of the parity of esteem and treating one community with contempt. I beg to move.
My Lords, I can understand much of what the noble Lord, Lord Morrow, is saying. I entirely agree with the Bill where it says that the Irish language commissioner should have powers of due regard if public authorities do not come up to the standards that the commissioner expects. I entirely agree with and in no way denigrate that.
However, I am slightly puzzled, especially in light of what the Minister said earlier about the sensible change that there has been in the title of the commissioner. There is a difference between the way in which the commissioners operate, because they have different functions. Clearly, the Irish language commissioner is concerned about the Irish language, but the Ulster Scots commissioner goes beyond that. The noble Lord, Lord Morrow, referred to paragraphs 5 and 6 of the NDNA agreement. Paragraph 5.14 in Annex E says that the commissioner will deal with
“the language, arts and literature associated with the Ulster Scots/Ulster British tradition in Northern Ireland.”
This is followed by another sentence:
“The Commissioner’s remit will include the areas of education, research, media, cultural activities and facilities and tourism initiatives.”
In paragraph 5.16, it goes on to say:
“The functions of the Commissioner will be to … provide advice and guidance to public authorities, including where relevant on the effect and implementation, so far as affecting Ulster Scots, of commitments under”
various charters. So it is quite clear that the agreement meant that the two commissioners, in their different ways, would oversee the work of public authorities in Northern Ireland on the issues that were debated and agreed before that agreement was signed.
There is a case based on getting confidence across the community because, as the Minister knows, nothing can happen properly in Northern Ireland unless there is confidence and trust across all communities in Northern Ireland. Not just the nationalist and unionist communities but everybody has to see that there is fairness, and that people are being treated equally.
There is an opportunity before this Bill goes to the other place for the Government and the Minister—provided there is still a Government in situ over the next few weeks; I rather fancy that, by the time this session has finished, the Minister might be the last Minister of this Government still in office, but we will have to wait and see—to reflect on the points that the noble Lord, Lord Morrow, and others have made and to listen to other people in Northern Ireland on what the answers to these things might be. It also seems an ideal opportunity, and the noble Lord, Lord Morrow, might have mentioned this, to talk to the Ulster- Scots Agency and to the bodies dealing with the Irish language in Northern Ireland to get their views on the progress of the Bill. There is an opportunity to have another look at this to ensure that there is full confidence, across the board, in what is an essential piece of legislation.
My Lords, on Monday I had an extremely useful meeting with Ian Crozier of the Ulster-Scots Agency. Although I cannot support these amendments, they do raise some very important points, as the noble Lord, Lord Murphy, just said.
The Bill as drafted places a duty on public authorities to have “due regard” to the Irish language commissioner, as has been discussed, but creates no such duty in respect of the commissioner responsible for Ulster Scots and the Ulster-British tradition. This is therefore causing some lack of trust and some concern. This difference of approach was not specifically set out in New Decade, New Approach, which suggested that both commissioners should be treated the same way on this point.
Will the Minister respond to the fears that have been expressed in the debate and, indeed, by the Ulster-Scots Agency that treating the two commissioners differently through this legislation risks undermining the credibility of one of the commissioners? Like the noble Lord, Lord Murphy, did, I ask whether the Minister has already met the Ulster-Scots Agency. If not, will he do so and listen directly first-hand to its very real concerns?
My Lords, like other speakers, I have very considerable sympathy for the views that the noble Lord, Lord Morrow, expressed. I urge my noble friend the Minister to keep the key words “parity of esteem” constantly in mind. That is the heart of the matter. I hope he will indeed reflect further, as he has been encouraged to do. It really would be a tragedy not to do all that is possible to allay the considerable misgivings with which this legislation is currently viewed by many unionists in Northern Ireland.
My Lords, following on from the noble Lord, Lord Murphy, I hope the Minister will remain in his place, because he brings a large degree of experience and knowledge to the situation. I certainly hope he can continue in his post for as long as possible.
I welcome what the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, said about these amendments. There are two issues. The first is parity of esteem, as the noble Lord, Lord Lexden, said. This legislation has been very controversial and it no doubt will be. It must be implemented with people feeling that they are being treated equally. I was involved in some of the negotiations and if anyone had suggested at the time that the New Decade, New Approach agreement meant that there would be this difference in duty, it would never have been agreed on that basis. It is clear that the two should be treated equally, with the same duties on public authorities regarding each of them. I echo the calls for this to be considered further before it gets to the other place.
Secondly, if we are talking about reflecting accurately the NDNA agreement—we will come on to this with more significant clauses later in the Bill—it is important that there is not a piecemeal approach. If NDNA is to be faithfully replicated and the duty is placed on public authorities with regard to the Irish language commissioner, then we either have Amendment 4A, which would take it away from the Irish language commissioner, which I do not wish to see happen, or we have Amendment 17, which would make it an equal approach. That is something the Government should think about very seriously, in the interests of boosting confidence and giving reassurance.
Again, I am grateful to noble Lords for their contributions, in particular the noble Lord, Lord Murphy, for elevating me to the position once occupied by the first Duke of Wellington in the 1830s, when, in his caretaker Administration, I think he occupied every position in the Government bar Lord Chancellor and Chancellor of the Exchequer—my noble friend Lord Lexden will correct me if I am wrong. Let us hope that it does not come to that.
This was another a matter of great interest and extensive and lengthy debate in Grand Committee and I will try to respond without necessarily repeating all the same arguments that we examined in detail there. The Government’s view is that it is very clearly set out in Annexe E of New Decade, New Approach, a document that I gently remind some noble Lords was hailed at the time by the Democratic Unionist Party as “fair and balanced”. The roles and functions of the two commissioners are different, reflecting the respective needs of Irish as a language, Ulster Scots as a national minority, and the Ulster-British tradition. That is why the provision for those respective groups is set out differently in New Decade, New Approach, including in respect of the legal duties set out in this Bill. The Government believe that that was for good reason.
I hope this goes some way to answering concerns from a number of noble Lords, including the noble Baroness, Lady Suttie: to answer her question directly, I had a very constructive meeting with Ian Crozier from the Ulster-Scots Agency and am very happy to continue to engage with the Ulster-Scots Agency and with Irish language groups that I have already met. I have absolutely no issue with doing that at all.
To go back to the point, the role of the Irish language commissioner pertains to matters of language alone. Its work focuses on best practice standards on the Irish language for public authorities to follow in providing their services. Accordingly, there is a specific legal duty in this regard. In comparison, the commissioner associated with the Ulster Scots and the Ulster-British traditions will cover arts and literature in addition to language. The legal duty proposed here by Amendment 17 from the noble Lord, Lord Morrow, would therefore have the effect of being far broader than that on the Irish language, covering public authorities’ work on arts and literature.
I will just come back on one point made by the noble Lord, Lord Morrow, when I think he stated that the Irish commissioner would cover 70-plus authorities but the Ulster Scots commissioner would not. The Government’s position is very clear that the Ulster Scots and Ulster-British commissioner will cover exactly the same public authorities as the Irish language counterpart and will still be able to receive complaints where its advice and guidance are not followed. I want to be clear on that.
Therefore, the amendments proposed by noble Lords this afternoon, in the Government’s view, seem to go far beyond the fair and balanced package reached in New Decade, New Approach, and as such the Government cannot accept them.
I understand that we will return to this matter later, but I highlight also that there is a specific new legal duty for Ulster Scots in relation to the education system provided by the Bill. This will address the current lack of statutory provision for Ulster Scots in the education system. I also highlight that the commissioners will be able to administer complaints in relation to the compliance with public authorities on their guidance and standards issued and lay reports before the Assembly.
Amendment 4A would remove the legal duty in relation to the Irish Language best practice standards. Those standards were a key function of the Irish language commissioner, as set out in paragraph 27(d) of New Decade, New Approach. The standards provided for in the Bill are, therefore, consistent with New Decade, New Approach and the legal duty set out in the proposed draft legislation accompanying it, in new Section 78I(1) of the Northern Ireland Act 1998.
Annexe E of New Decade, New Approach, in paragraph 5.9, accordingly speaks of public authorities fulfilling their “requirement” under the standards and it would seem clear from a reading of both that document and the draft legislation together that the legal duty provided for in this Bill is consistent with the position reached by the parties in the talks. Reflecting the fact that the standards are associated with a legal duty, these will require the approval of the First and Deputy First Ministers, acting jointly, to be given effect. This is intended to provide a level of assurance and oversight over the requirements set by the commissioner.
I highlight that no such approval from the First Minister and Deputy First Minister is required for the guidance and advice of the commissioner for the Ulster Scots and the Ulster-British tradition; nor is approval required for guidance so that complaints can be made in relation to the failure of public authorities to comply with it. With this context in mind, I hope noble Lords will appreciate that the provision for the commissioners and the associated legal duties reflects the delicate and fair balance and the particular needs of the groups that they will serve. The Government cannot accept propositions that would deviate from New Decade, New Approach or the legal duties set out in the original draft legislation that accompanied that document. I would therefore be grateful if the noble Lords did not press their amendments.
My Lords, I again listened intently to what the Minister said. He remarked that it was said that NDNA was a fair and equitable package. We still stand by that, but we are not convinced that the Bill reflects that; that is what we are looking to be addressed.
I thank everyone who has spoken here. If my hearing is right, in the main those who have spoken agree with what I said. It is just unfortunate that the Minister did not go a step or two further here today, but maybe there will be another opportunity.
It is very clear that there is a discriminatory element in all this and it has to be addressed. It is better that we get it right from day one than wonder, when we are in the middle of it all, “How did we get into this?”. We just have to stop and think for a while, look at it and see where the deficiencies are.
I know the Minister has been sent here today by the Government to say these things, so I do not blame him personally—it is no reflection at all on his duty here at the Dispatch Box—but any objective person who reads this debate will conclude that the arguments for Amendment 17 are overwhelming and that no good reason has been provided today to justify not putting that right. We have heard from the Labour and Lib Dem Front Benches, the noble Lord, Lord Lexden, and my noble friend Lord Dodds. We have heard what everybody has said, yet we seem to just want to go on. Well, we know where going on sometimes takes us—into the wrong place altogether.
What should we do? In this context, while I feel disappointed, I will not divide the House on this issue today, because this will go to another place and I hope it will come back from there different from how it is today.
Amendment 4A withdrawn.
Amendment 5 not moved.
6: Clause 2, page 7, line 24, leave out from “Commissioner” to “Ulster” in line 26 and insert “for the Ulster Scots and the”
Amendment 6 agreed.
Clause 3: The Ulster Scots and Ulster British Tradition
Amendments 7 to 9
7: Clause 3, page 8, line 11, leave out from “Commissioner” to second “Ulster” in line 12 and insert “for the Ulster Scots and the”
8: Clause 3, page 8, line 14, leave out from “Commissioner” to second “Ulster” in line 16 and insert “for the Ulster Scots and the”
9: Clause 3, page 8, line 18, leave out from second “Commissioner” to second “Ulster” in line 20 and insert “for the Ulster Scots and the”
Amendments 7 to 9 agreed.
10: Clause 3, page 8, line 24, leave out “arts and literature” and insert “heritage and culture”
Member’s explanatory statement
This amendment would revise and expand the functions of the Commissioner for the Ulster Scots and Ulster British traditions provided in the Bill. The Commissioner would be responsible for developing the language, culture and heritage associated with these traditions, reflecting the body of established work and existing human rights law.
My Lords, in moving Amendment 10, I am pleased to speak also to Amendments 12, 13, 14, 15 and 30A. Amendment 10 proposes replacing “arts and literature” with “heritage and culture” so that the remit of the Ulster Scots commissioner relates to language, heritage and culture rather than language, arts and literature.
In Committee the Minister stated that it was not possible to accept a similar amendment because it was contrary to NDNA, but I do not accept that. In the first instance, while I accept that NDNA refers to arts and literature, nothing in it states that the role of the Ulster Scots and Ulster-British commissioner should be limited to this. When read in the context of the wider Ulster Scots commissioner commitment in NDNA, seeking to constrain the role of the Ulster Scots commissioner in this way makes no sense at all.
The critical provisions in NDNA in this regard are the Council of Europe’s Charter for Regional or Minority Languages, to which the UK is a signatory, and the Council of Europe’s Framework Convention for the Protection of National Minorities, under which Ulster Scots has now been registered as a minority language, as a result of the NDNA commitment. To quote just one relevant provision of the framework, although there are many, Article 5 states:
“The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.”
Aligning itself with these international instruments and defining the role of the Ulster Scots commissioner in relation to them, NDNA plainly commits itself to an understanding of the Ulster Scots and Ulster-British tradition, the best interests of which are not caught by the narrow, arbitrary and exclusive focus on language, arts and literature.
The failure of the Bill to align the role of the commissioner with the established human rights framework has been highlighted by the Northern Ireland Human Rights Commission. In advice to the Government in 2020, the commission spoke of the need to move beyond language, art and literature, stating:
“The NIHRC recommends that other aspects of Ulster-Scots culture including heritage, religion, history, music, dance are also effectively protected by including them within the Commissioner’s mandate.”
The problem with the language, arts and literature constraint has been highlighted by the expert panel appointed by the current Northern Ireland Communities Minister, Deirdre Hargey MLA, to advise on a new strategy for Ulster Scots language, heritage and culture, which is required by NDNA.
In the second instance, when one appreciates the lack of the Ulster Scots commissioner’s statutory focus on the use of the Ulster Scots language by public authorities, it is plain that the arbitrary and exclusive addition of just arts and literature cannot provide the Ulster Scots/Ulster-British tradition with something as meaningful as the provision made for the Irish-language tradition. While the Irish language commissioner will engage all public authorities, since there is not a public authority that does not make its service available through language, there are few public authorities with a focus on arts and literature.
To provide the Ulster Scots/Ulster-British tradition with a commissioner with as meaningful a role for them as the Irish language commissioner would be for the Irish-language community, one would need to make up for the very limited statutory focus on the use of the Ulster Scots language by public authorities by providing a significantly wider additional focus on arts and literature. This is precisely what is afforded by NDNA in its deliberate alignment with the obligations set out in the Council of Europe Charter for Regional or Minority Languages and the Council of Europe Framework Convention for the Protection of National Minorities.
The departure from NDNA, with a negative effect on the interests of unionism, is also evident in the extraordinary failure of the legislation to recognise the breadth of the focus of the Ulster Scots commissioner, recognised by NDNA in paragraph 5.15, which states:
“The Commissioner’s remit will include the areas of education, research, media, cultural activities and facilities and tourism initiatives.”
There is no comparable commitment to the Irish language commissioner in NDNA. It is randomly left out of the Bill, and it is the purpose of Amendment 12 to put that right. Moreover, the Bill also seeks to limit the remit of the commissioners in relation to the international instrument compared with the NDNA agreement. NDNA commits to
“provide advice and guidance to public authorities, including where relevant on the effect and implementation, so far as affecting Ulster Scots, of commitments under the European Charter for Regional and Minority Languages, the European Framework Convention for the Protection of National Minorities, and the United Nations Convention on the Rights of the Child”.
The Bill before us today, however, inexplicably narrows that to
“provide or publish such advice, support and guidance as the Commissioner considers appropriate to public authorities in relation to … the effect and implementation of the international instruments specified in subsection (3) in relation to the relevant language, arts and literature”.
The plain meaning of “Ulster Scots” when the language is not specified is that it pertains to Ulster Scots culture in the round. Moreover, this interpretation makes much more sense, given the breadth of focus of the international instruments. Mindful of this, the purpose of my Amendment 13 is to restore the clear breadth of meaning, communicated by NDNA, which the current drafting of the Bill seeks to truncate. It is deeply concerning to unionists that those who drafted the Bill have departed from the plain commitments of NDNA repeatedly, in a way that damages the best interests of unionism.
This grouping also includes Amendments 14 and 30A. If one is to engage with the reality of Ulster Scots and honour our international commitments, with which NDNA seeks to align itself, it is vital to understand that Ulster Scots is what it says on the tin: a cultural phenomenon that extends between Ulster and Scotland. It is not possible to engage with the reality of Ulster Scots by putting it in a framework that engages only with Ulster. That would constitute a very basic category error. Moreover, for those of us in the UK who support our union, the opportunity to strengthen the relationship between parts of the union—Scotland and Northern Ireland—should not be set aside, especially in this year, when Nicola Sturgeon has announced another independence referendum and when, in October, we mark the 100th anniversary of the Conservative Party gaining its Ulster Scots Prime Minister, Andrew Bonar Law.
It should not be forgotten that the Ulster Scots community is to be found in not only Scotland and Northern Ireland but other parts of the United Kingdom. Mindful of this, Amendment 14 recognises the reality of the nature of Ulster Scots in the Ulster Scots commissioner, by giving him the role of promoting cultural connections between the Ulster Scots community in Northern Ireland and the Ulster Scots community in the rest of the kingdom. This is an elementary provision without which it is very difficult to honour the basic reality of Ulster Scots.
Amendment 30A furthers this step by requiring the Secretary of State to
“establish and maintain a fund to support the provision of projects and programmes which connect Ulster Scots in Northern Ireland with Ulster Scots in the rest of the United Kingdom”.
Again, this is a vital provision if we are to take the reality of Ulster Scots seriously.
Finally, I come to my probing Amendment 15, tabled in response to comments made by the Minister in Committee when he said,
“By comparison, the commissioner associated with the Ulster Scots/Ulster British tradition will have a far more wide-ranging role than their Irish language counterpart, going beyond language, as we will probably discuss later, into arts and literature. The proposed legal duty on this wider range of activities would go far beyond the matter of services provided to the public, unlike those on the Irish language best practice standards.”—[Official Report, 22/6/22; col. GC 76.]
From this statement, I rather get the impression that the commissioners might have official responsibilities in relation to bodies other than public authorities. Is that what the Minister was saying? To my mind, that seems rather unlikely, and perhaps rather improper, given that the Bill before us seems to engage public authorities only in relation to the commissioner. If other bodies are engaged, surely the nature of that engagement should be set out by the Bill. I beg to move.
My Lords, I thank the noble Lord, Lord Morrow, for his exposition and the detail behind these amendments. I have a little query. I understand the point about parity of esteem and think that is the central theme running through those amendments. I note that Amendment 14, in particular, refers to communities rather than language speakers. Perhaps, in his summing up, he could indicate his specific intention. Is it to link speakers of the Ulster variant of Scots to other speakers of Scots in Scotland or other parts of the UK, or is it a means of identification in terms of an ethnic group? How do you define that issue? Maybe in summing up he could provide a little more detail in relation to this. I recognise that there is a difference in the legislation and can understand where he is coming from, but we just have to be a little careful.
My Lords, I support Amendment 10 in this grouping but, first, having taken part at Second Reading I apologise for not having been able to contribute in Committee. Like the noble Baroness, Lady Ritchie, I had succumbed to the dreaded Covid—although I do not think there was any connection between us.
I am very grateful to the Ulster-Scots Agency for helping me to appreciate the importance of securing the change that Amendment 10 addresses. It proposes to replace “arts and literature” with “heritage and culture” to make the Bill reflect the provisions of NDNA, and to bring it into line with the established policy and human rights framework, in particular as it applies to the Ulster Scots community. The Minister told the House in Committee that the Government are
“sticking faithfully to what was”
agreed in NDNA. He also said:
“It was very clear in that package that the remit of the commissioner in respect of the Ulster Scots and Ulster British tradition would be matters of ‘language, arts and literature’ and not culture and heritage”.—[Official Report, 22/6/22; col. GC 86.]
I contend that this is wrong. I quote verbatim from pages 34 and 35 of NDNA:
“A further such commissioner will be appointed by the First Minister and deputy First Minister to enhance and develop the language, arts and literature associated with the Ulster Scots/Ulster British tradition in Northern Ireland … The Commissioner’s remit will include the areas of education, research, media, cultural activities and facilities and tourism initiatives … The functions of the Commissioner will be to … increase awareness and visibility of relevant services which are provided by public authorities in Northern Ireland … provide advice and guidance to public authorities, including where relevant on the effect and implementation, so far as affecting Ulster Scots, of commitments under the European Charter for Regional and Minority Languages, the European Framework Convention for the Protection of National Minorities, and the United Nations Convention on the Rights of the Child”.
Here we have a series of paragraphs, with each expanding on the last, to build an overall picture of the commissioner’s role. NDNA does not stop in the middle of the first sentence after “language, arts and literature”, as the Government would have us believe. Oddly, the vital linking sentence from NDNA, which lists five key areas in the commissioner’s remit—and, through the use of the words “will include”, makes it clear that this is not an exhaustive list—is not reflected in the Bill.
The Minister says it is “very clear” that the remit of the commissioner does not include culture, but that assertion is flatly contradicted by the NDNA document, which says that it includes “cultural activities and facilities”. The commissioner’s remit could not include cultural activities and facilities if it did not include culture. Clearly, the Government have got it wrong.
The Government have sought to use these three words, “language, arts and literature”, to limit the human rights provisions in relation to the commissioner for the Ulster Scots and Ulster-British tradition. That limitation, however, is not to be found in NDNA. There is one clear, explicit limitation on the commissioner’s power to issue guidance and it is
“so far as affecting Ulster Scots”.
As far as NDNA was concerned, anything covered by international instruments affecting the Ulster Scots community is within scope of the commissioner. The misreading of NDNA needs to be corrected and what was agreed needs to be properly reflected in the legislation. Failure to address this misunderstanding will lead to a situation where the Bill is at odds with 20 years of law and policy, not to mention the human rights framework which the Minister says this legislation is built on.
The applicable human rights framework—the scope of the Framework Convention for the Protection of National Minorities—under which the Government have just recognised the Ulster Scots community as a national minority of the United Kingdom, goes far beyond language, arts and literature. This can be seen in examples in Articles 5, 6, 15, 29 and 30.
The position of the Northern Ireland Human Rights Commission and the Minister’s expert panel, appointed by the current Northern Ireland Communities Minister, is also supported by the Ulster-Scots Agency. They all agree that the role of the commissioner needs to reflect established law and policy. To do otherwise risks excluding the commissioner from addressing issues that they should be addressing and undermines both the effectiveness of the commissioner and their standing in the eyes of the community.
The Government have stated that the function of the commissioner in respect of the human rights instruments reflects the Government’s recent recognition of Ulster Scots under the framework convention. In truth, that objective is much better reflected in the text of NDNA than it is in the text of the Bill. The text of NDNA provides space for the commissioner’s work to reflect the true breadth of the human rights instruments instead of applying a groundless, arbitrary restriction that will seriously impair the realisation of human rights. I support Amendment 10.
My Lords, once again, I am very grateful to noble Lords for moving and speaking to their amendments, and for the spirit in which they have done so. Amendments 10 and 13 return to the question of the functions of the commissioner. At the risk of repeating myself, I respectfully disagree with noble Lords who have spoken. The Government are quite clear that the Bill is faithful to New Decade, New Approach and the relevant legislative commitments it set out.
That document was very clear that the commissioner’s functions would encompass matters of language, arts and literature. Indeed, both New Decade, New Approach and the draft legislation published alongside it, to which I referred earlier, used that precise formulation no fewer than 15 times. Paragraph 27E of New Decade, New Approach sets out that the main function of the commissioner would pertain to “language, arts and literature”. The Bill replicates this in its principal aim essentially word for word.
The reference to heritage and culture in New Decade, New Approach, on which I believe noble Lords are drawing, specifically in Amendment 10, appears in paragraph 5.12.3 of Annexe E and relates to a separate commitment for the Executive to agree to an Irish language and Ulster Scots strategy. This is already provided for in Section 28D of the Northern Ireland Act 1998, which is a clear legal duty. I hope that the Executive continue to meet their legal duty to adopt these two important strategies; however, the operation of this duty is clearly separate from the legislative commitments on which the Bill delivers. I shall speak to the amendments on this matter more fully later.
On Amendment 13, specifically, the commissioner’s role of providing advice and guidance on three international instruments was also always intended to be in relation to matters of language, arts and literature. Comparable provision was made in the draft legislation published alongside New Decade, New Approach, to which I refer again. The widening of the provision in the Bill beyond language, arts and literature, as proposed in Amendments 10 and 13 would, in the Government’s view, be inconsistent with the conclusion reached. The Government therefore cannot accept them.
I turn to Amendment 12, which seeks to make provision for the commissioner’s remit as set out in paragraph 5.15 of Annexe E to New Decade, New Approach. I understand the thrust of the noble Lord’s argument, as that paragraph specifies that the commissioner’s remit includes
“the areas of education, research, media, cultural activities and facilities and tourism initiatives.”
However, this amendment would have the effect of altering the commissioner’s functions. Those functions are separately set out in the same annexe to NDNA, in paragraph 5.16, and were also provided for in the draft Assembly legislation. I hope, however, to reassure noble Lords on this point. The Government consider that the commissioner’s functions, particularly in relation to Ulster Scots services, would also cover the remit envisaged by New Decade, New Approach. Separate provision on the commissioner’s remit therefore would not be necessary and the widening of its functions was not agreed.
Reference was made by the noble Lords, Lord Morrow and Lord Browne of Belmont, to the recommendations of the Northern Ireland Human Rights Commission in respect of these matters. The Government have consulted a wide range of bodies on the Bill, which included conversations with the Human Rights Commission. This has helped us reach a conclusion on the commissioner’s name, for example. However, we have to stay within the bounds of NDNA and it would be wrong to innovate on these commitments unilaterally. I should point out that the Assembly would be able to amend this legislation were it functioning once again, which we all hope it will be very shortly.
Amendment 14 seeks to introduce a new function for the commissioner for Ulster Scots and Ulster-British tradition to promote cultural connections between Ulster Scots in communities in Northern Ireland and those in Scotland. The noble Lord, Lord Morrow, referred to the centenary of the coming to office as Prime Minister of the Ulster Scots leader of the Conservative and Unionist Party, Andrew Bonar Law. I assure the noble Lord that, as a committed and staunch unionist myself, I am very much in sympathy with the intention behind his amendment, which highlights the importance of the connections between Northern Ireland and Scotland.
I hope to reassure the noble Lord on this point: the commissioner will be able to co-operate with other bodies, such as those elsewhere in the United Kingdom, if this were conducive to its functions within Northern Ireland. The commissioner doing so may have the effect of promoting those cultural connections between the Ulster Scots diaspora elsewhere in the United Kingdom, which is what noble Lords aspire to with this amendment. However, the functions agreed in New Decade, New Approach did not specify that a strand of the commissioner’s work would include promoting cultural connections outside Northern Ireland. Indeed, it would be outside the competence of the Northern Ireland Assembly to legislate for functions exercisable other than in regard to Northern Ireland itself, which is why such provisions were never planned in the draft Assembly legislation published alongside NDNA. I cannot accept an amendment that would broaden the work of the commissioner in the Bill beyond what was intended, although I can understand the noble Lord’s intention. I am, as I say, personally very sympathetic to what he is trying to do.
In the same vein, Amendment 30A seeks to place the Secretary of State under a legal duty to establish a dedicated fund to support projects connecting the Ulster Scots in Northern Ireland with those elsewhere in the UK. Again, such a fund was not envisaged in New Decade, New Approach and the Government cannot accept this amendment. I should add that this Government have demonstrated, on a number of occasions, their commitment to Ulster Scots through—to take one example—changing the BBC charter and framework to include support for Ulster Scots output.
Amendment 15 would also seem to be a further innovation on the position reached in New Decade, New Approach, as it seeks to widen the functions of the commissioner beyond public authorities and more broadly to “Northern Ireland society”, which again would greatly extend the scope of the commissioner beyond what was envisaged. There would be no comparable change to the functions of the Irish language commissioner, which are concerned solely with the provision of services by public authorities in Northern Ireland. The Government cannot accept amendments that would broaden the scope of the commissioner’s work in this way—in our view, it would be contrary to the position set out in New Decade, New Approach. On that basis, I urge the noble Lord to withdraw his amendment.
My Lords, I thank all noble Lords who have spoken on these amendments. I begin by welcoming the positive comments the Minister has made about the importance of recognising the Ulster Scots and the Ulster-British tradition as something that cannot, by definition, be confined to Ulster alone. If I heard him correctly, he seemed to suggest that Amendment 12 was not necessary because the Bill should be read as meaning that the Ulster Scots commissioner already has responsibilities in relation to
“the areas of education, research, media, cultural activities and facilities and tourism initiatives.”
Will he confirm that my interpretation is correct?
The noble Lord is correct to say that NDNA sets out the functions of the commissioner and then expands to set out the remit, which includes the areas to which he just referred. In our view, the Bill as drafted, in replicating the functions of the commissioner as set out in NDNA, means it is not necessary also to include the remit within the functions—the functions will cover the remit.
I am very grateful to the Minister for that.
Turning to his response to Amendment 10, I have to say that I do not believe that his defence of the exclusive focus on language, arts and literature is faithful to the NDNA, given what the international instruments with which it identifies say about the importance of heritage and culture, broadly considered. I urge him to go back and reread the international instruments, and then the NDNA in light of them, to study the important speech given today by my noble friend Lord Browne and to talk to the Ulster Scots Agency. I know that others have asked him to do that, and I hope that he takes that on board. If he does, I think he will be forced to conclude that it is wholly wrong to seek to justify limiting our focus on language, arts and literature.
Finally, I note that the Minister argues that the Bill gives the Ulster Scots commissioner powers in relation to bodies beyond the public authorities mentioned in the Bill. I believe, however, that if that is the Government’s intention, the other bodies should be referenced in some way in the Bill. I urge the Minister to give matters very careful consideration over the summer and I beg leave to withdraw the amendment.
Amendment 10 withdrawn.
11: Clause 3, page 8, line 25, after “and” insert “the”
Amendment 11 agreed.
Amendments 12 to 17 not moved.
18: Clause 3, page 9, line 30, leave out “facilitation”
Member's explanatory statement
This amendment would extend the grounds on which an individual can submit a complaint to the Commissioner for the Ulster Scots and Ulster British traditions to cover the conduct of public authorities in relation to all the guidance issued by the Ulster Scots and Ulster British Commissioner, as is already the case with respect to all the guidance issued by the Irish Language Commissioner. It would thus help restore/achieve the parity of esteem.
My Lords, in the absence of the noble Lord, Lord Empey, and with the permission of my noble friend Lord Morrow, I shall speak to Amendments 18 to 21. When these amendments were dealt with in Committee, the Minister objected that if they were accepted, they would make a change to one commissioner but not the other, as if they must be treated in exactly the same way. He stated:
“My first concern is that it would not be appropriate to amend one of the commissioner’s complaints procedures but not the other.”—[Official Report, 22/6/22; col. GC 99.]
This, however, is wholly inconsistent with what the Minister has rightly been insistent on, and in relation to which he has my full agreement; namely, that this legislation does not provide commissioners with identical functions and responsibilities but with different and equally meaningful and valuable roles for their respective communities.
The limitation of the complaints procedure to the use of the Ulster Scots language by public authorities is the consequence of the drafters losing sight of the fact that the two commissioners have different functions in order to provide something of equal value to each community. In this regard, it is useful to compare and contrast the provisions in the Bill that define the principal role of the Irish language commissioner and then that of the Ulster Scots/Ulster-British tradition commissioner. Of the former, new Section 78K(1) states:
“The principal aim of the Commissioner in exercising functions under this Part is to enhance and protect the use of the Irish language by public authorities in the provision of services to the public or a section of the public in Northern Ireland.”
Thus, it is about the use of the Irish language by public authorities.
The parallel clause defining the role of the Ulster Scots commissioner, meanwhile, does not mention the use of the language by public authorities. New Section 78R(1) states:
“The principal aim of the Commissioner in exercising functions under this Part is to enhance and develop the language, arts and literature associated with the Ulster Scots and Ulster British tradition in Northern Ireland.”
Indeed, this is underlined by the very name of the Ulster Scots/Ulster-British commissioner.
Given that Ulster British is not a language in any sense, restricting the complaints facility to the use of the Ulster Scots language transparently limits it to less than half the commissioner’s title, even while the Irish language commissioner’s function is such that the right to complain applies to the entire scope of their engagement with public authorities. As if to underline the point, not only is the use of the Ulster Scots language by public authorities not mentioned in the principal role clause but when it is mentioned later on such is its secondary importance it is only in brackets so that it is not forgotten entirely. Thus, if anyone should respond by saying that the nationalist community is subject to exactly the same constraints as the unionist community, then let us be clear: no, it is not.
The roles of the two commissioners are, as the Minister pointed out, different, and while the Irish language commissioner will make extensive demands of all public authorities in relation to the use of the Irish language, the Ulster Scots commissioner will not in relation to the use of the Ulster Scots language—hence the compensating broader cultural remit. However, to make a comparable, meaningful provision for unionists through the Ulster Scots commissioner to that afforded to nationalists through the Irish language commissioner, it is necessary to endow the former with a different set of functions to the latter. This must come with a complaints facility across the spectrum of functions required, in order for unionists to be afforded something of equal value to that which is afforded to nationalists. Not to do so is to live in denial about the fact that the two commissioners are different, servicing the needs of two different communities, with different concerns and priorities. Far from giving effect to parity of esteem, this would be to snub one community in a context when they have already been snubbed by the inexplicable decision also to weaken the Ulster Scots commissioner compared to the Irish language commissioner by denying the former the protection of the “duty to have regard” obligation dealt with in a previous grouping.
The only thing the Government could possibly do to seek to justify this arrangement would be to say that the NDNA agreement does not specify that a complaints procedure should be applied in relation to the other areas of the Ulster Scots commissioner's responsibility, but that does not provide a justification for inaction.
In the first instance, it is important to appreciate that the NDNA agreement does not say that the unionist community should not be given the right to complain about the conduct of public authorities through the Ulster Scots commissioner beyond the use of language. It is silent on the matter. In this context, we must test the silence and ask whether it makes sense that the commissioner should be provided with areas of responsibility in relation to the conduct of public authorities but no ability to respond to complaints from his or her community about the failures of public authorities in those areas, while the nationalist community is afforded the right to complain in relation to the principal functions of the Irish language commissioner. No, it does not.
In the second instance, and importantly, we have to interpret NDNA through the lens of the imperative for the parity of esteem principle. This means that if we conclude that one community cannot receive meaningful support through a narrow focus on language because of its different priorities—such that the commissioner needs to be given a different function—it would be perverse for that community to be denied the right to complain about failures of public authorities across the remit of the commissioner while making provision for such a complaints mechanism in relation to the other community.
It is one thing to snub a community by not placing a duty to have regard on public authorities with respect to its commissioner—even as such a duty is applied to the other community and its commissioner—but to also deny the former community the right to complain about the conduct of public authorities in relation to the definition of its commissioner’s principal role, even as this right is afforded the other community, is extraordinary. Moreover, when this is seen in the light of how the unionist community has been dealt with in relation to the protocol since 2019, one can perhaps begin to understand why Northern Ireland unionists feel they have become the subject of contempt.
Stepping back from this point, however—and finally coming to a conclusion—forgetting for a moment that I am a Northern Ireland unionist, I am also at a loss to understand why the Government, who surely want to make the unionist-nationalist relationship easier, should bring forward a Bill containing such a transparently antagonising provision. I most sincerely hope that the Government will reconsider and accept these amendments, which bring a modest extension of the right of unionists to complain so that it includes practices contrary to the international instrument mentioned in Clause 3. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Browne of Belmont, and I will be very brief in my remarks. As I said in Committee, New Decade, New Approach is very clear in paragraph 5.16.3 that the commissioner should be able to investigate relevant complaints about a public authority’s lack of due regard to advice provided in respect of
“facilitating the use of Ulster Scots.”
For that reason, the Bill makes provision so that complaints may be made to the commissioner concerned only in relation to “published facilitation guidance”. Neither New Decade, New Approach, nor the draft legislation accompanying it, proposed that this complaints power be made broader, as the noble Lord proposes through these amendments.
I am content that the provision in the Bill as it stands reflects the position reached in New Decade, New Approach—the agreement described by the noble Lord’s former leader Arlene Foster as a “fair and balanced” package—and the legislation prepared by the Office of the Legislative Counsel of the Northern Ireland Assembly alongside it. The noble Lord, Lord Browne, referred to himself as a Northern Ireland unionist; as a British unionist, I do not accept that we are snubbing a community in Northern Ireland. We are simply implementing New Decade, New Approach faithfully. On that basis, I urge the noble Lord to withdraw the amendment.
My Lords, I thank the Minister for his reply. I believe that NDNA is a fair package, but I am not convinced that the Bill is totally fair. It is important for the Government to engage with this problem, and nothing that the Minister has said provides a compelling reason for concluding that NDNA stipulates that while the Irish-speaking community should have access to a right to complain in relation to all matters within the mandate of its commissioner, the Ulster Scots and Ulster-British tradition should be denied this right in relation to all that commissioner’s work, apart from something whose secondary importance is acknowledged by virtue of the fact that it is mentioned only in brackets. I hope that this will be debated further in the other place, and, therefore, I wish to withdraw my amendment.
Amendment 18 withdrawn.
Amendments 19 to 22 not moved.
23: Clause 3, page 11, line 7, leave out from “Commissioner” to second “Ulster” in line 9 and insert “for the Ulster Scots and the”
Amendment 23 agreed.
Clause 5: Use of Ulster Scots in education
24: Clause 5, page 11, line 17, at end insert—
“89B The Department may, subject to such conditions as it thinks fit, pay grants to any body appearing to the Department to have as an objective the encouragement or promotion of Ulster Scots in education.”Member’s explanatory statement
This amendment would give effect to the proposed duty to promote the use and understanding of Ulster Scots in education by providing an explicit power for the Department of Education to pay grants in pursuance of its obligations as is the case already in relation to the Irish Language. The wording of this amendment mirrors the existing provision in relation to the Irish Language, maintaining the parity of esteem.
My Lords, again, in the absence of the noble Lord, Lord Empey, who unfortunately has matters to deal with back home—we wish him well—and with the kind permission of my noble friend Lord Morrow, I am pleased to move Amendment 24 in their names. I intend to be brief.
Paragraph 27c of the NDNA agreement commits to legislation placing
“a legal duty on the Department of Education to encourage and facilitate the use of Ulster Scots in the education system.”
This is vital, given that we are a signatory to the European Charter for Regional or Minority Languages, Article 8 of which requires the state to make available pre-school, primary school, secondary school and university education
“in the relevant regional or minority languages; or … to make available a substantial part … in the relevant regional or minority languages”,
or at least to provide it for those families who request it.
It is also vital because Ulster Scots has now been registered with the framework convention on minority languages, Article 14 of which states that
“the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.”
Critically, the understanding of language and the national minority language commitment are located very much in terms of a history and a commitment to history in education. The framework agreement asks parties to
“take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority.”
Clause 5 of this Bill seeks to rise to aspects of this challenge. Its language reflects exactly, so far as it goes, an existing provision in the Education (Northern Ireland) Order 1998 with respect to Irish-medium education, which states:
“It shall be the duty of the Department to encourage and facilitate the development of Irish-medium education.”
Crucially, however, this intervention to assist the Ulster Scots language not only testifies to an inequality of treatment, in that it comes much later than the provision for the Irish language, but transparently does not seek to end this inequality of treatment. It fails to honour parity of esteem; the Irish language provision also gives effect to the obligation to encourage and facilitate through the possibility of the allocation of grants, whereas Clause 5 does no such thing. Specifically, the order states:
“The Department may, subject to such conditions as it thinks fit, pay grants to any body appearing to the Department to have as an objective the encouragement or promotion of Irish-medium education.”
Moreover, it is notable that this duty, in respect of Irish, followed the form of a statutory duty in respect of integrated education set out in the Education Reform (Northern Ireland) Order 1989. Again, that duty was supported by a power to make grant payments. Article 64(1) states that:
“It shall be the duty of the Department to encourage and facilitate the development of integrated education, that is to say the education together at school of Protestant and Roman Catholic pupils.”
Article 64(2) adds that the department
“may, subject to such conditions as it thinks fit, pay grants to any body appearing to the Department to have as an objective the encouragement or promotion of integrated education.”
Once again, this inequality of treatment is inexplicable and sends out the clear message that it is sufficient to generate an image of concern regarding Ulster Scots and the Ulster Scots language without providing a credible delivery mechanism comparable with that afforded the Irish language or other concerns, such as integrated education. This is of real concern to the Ulster- Scots Agency and constitutes a completely indefensible form of difference of treatment. Amendment 24 puts this right by ensuring the equal treatment for the Ulster Scots language that is vital if the principle of the parity of esteem is to be upheld.
I very much hope that the Minister can support this modest, permissive but very important amendment. I beg to move.
My Lords, I have some sympathy with the amendment, or at least with what lies behind it. I do not see any point in pushing such an amendment to a vote, but it raises the issue. I fully support the statutory duty on the Executive in Belfast to fund Irish language education through the various means. However, bearing in mind that this Bill is new, introducing three new public offices—the office and the two commissioners—the Minister might make inquiries with the Department of Education there over the next few weeks regarding this difference of approach in terms of funding. Perhaps the meeting that he intends to have with the Ulster-Scots Agency can clear this up, but it appears to be a dichotomy.
My Lords, I am very grateful again to the noble Lord, Lord Browne of Belmont, for his comments in moving Amendment 24. As I pointed out earlier, New Decade, New Approach and this Bill provide a new specific legal duty for Ulster Scots in relation to the education system in Northern Ireland. This will address the current lack of statutory provision for Ulster Scots within that system.
However, a specific new grant-making power, which would be the effect of Amendment 24, was, of course, not committed to in New Decade, New Approach. It would be inappropriate in this context for the UK Government to impose financial commitments beyond those set out in that document. I also recall that noble Lords in Committee raised what the duty that is already set out in the Bill, on encouraging and facilitating the use and understanding of Ulster Scots in the education system, would mean in practice. I am therefore pleased to provide a clearer view to noble Lords on what this new and important legal duty might entail. I hope that this will speak to their concerns on this matter.
The new education duty in the Bill will enable the use and understanding of Ulster Scots to become part of the framework of the education system in Northern Ireland and the Northern Ireland Department of Education will be able to do anything necessary to meet that duty. In that context, I note that the Education (Northern Ireland) Order 1998 provides for the encouragement and facilitation of Irish-medium education and the mechanism of supporting this specific type of schooling, with the grant-making powers provided to specifically support Irish-medium schools.
Noble Lords will understand that, as a UK Minister, I cannot speak on behalf of the Northern Ireland Department of Education. The department has a Minister, a member of the DUP, who will need to consider this matter too, but it would seem to me that meeting this new duty in respect of Ulster Scots would perhaps entail the commissioning of educational materials for use in schools. Steps to meet the duty could also include seeking appropriate consultancy on the facilitation of Ulster Scots in schools, or encouraging relevant organisations in providing tuition in schools. I would stress, however, that this remains a matter for the Northern Ireland Department of Education to consider.
In respect of the comments of the noble Lord, Lord Murphy, I am very happy to reflect on what he said. In that spirit, I would encourage the noble Lords to withdraw the amendment.
My Lords, first I would like to thank the noble Lord, Lord Murphy, for his very useful contribution, and I hope the Minister will take up the offer to meet with the Ulster-Scots Agency, which I am sure can put its case very forcefully. I know this Bill will be going to the other House, where I am sure it will receive serious consideration, so under those circumstances I wish to withdraw the amendment.
Amendment 24 withdrawn.
Clause 6: Concurrent powers and powers of direction
25: Clause 6, page 12, line 1, at end insert—
“(4A) Where a Northern Ireland Minister or Northern Ireland department does not perform their identity and language functions, the Secretary of State must act if no progress has made in regard to those functions.(4B) Where the First Minister and deputy First Minister do not act jointly to appoint an Irish Language Commissioner in accordance with section 78J(1) of the Northern Ireland Act 1998 within the period of 30 days of that section coming into force or a vacancy arising, the Secretary of State must act to appoint an Irish Language Commissioner within a further period of 30 days.(4C) Where the First Minister and deputy First Minister do not act jointly to approve best practice standards in accordance with section 78L(2) of the Northern Ireland Act 1998 within the period of 30 days of best practice standards being submitted to them, the Secretary of State must within a further period of 30 days approve the best practice standards with or without modifications.”Member's explanatory statement
This amendment would provide a timescale for the Secretary of State to step in if there is no Northern Ireland Executive in place in order to execute the functions of the legislation.
My Lords, Amendments 25 and 27 in this group are in my name, and they address the powers of the Secretary of State. It is a matter of regret that this legislation is not being dealt with by the Northern Ireland Assembly and Executive, and that it has to be dealt by this House, because all of the issues are a matter of devolution. They impinge on those issues within the devolution settlement in relation to Irish language and Ulster Scots and the culture and heritage thereof. Political circumstances mean that we do not have a Northern Ireland Assembly and Executive, and so therefore, of necessity, the UK Parliament has to deal with this particular legislation, bringing it forward in both Houses and ensuring its implementation.
Amendment 25 will provide a timescale for the Secretary of State to step in if there is no Northern Ireland Executive in place to execute the functions of the legislation. History dictates that this has been—and is currently—the case, and noble Lords addressed this particular issue at Committee. The legislation contains new powers under Clause 6 for the Secretary of State to step in where there is no Executive or Executive Office to exercise the functions of the legislation, or if one member of the Executive decides to block progress on any aspects of the legislation that requires their approval.
Given that we do not have an Executive at present, and in a situation where even if we did we may not have political agreement from within the Executive Office on the legislation—and I can say that having previously been a Minister, there is precedent for the First and Deputy First Ministers not finding agreement, even though both officers are joint officers—the appointment of a commissioner, or an approval of best practice standards, is a problem.
These step-in powers for the Secretary of State include a timescale in which a decision must be taken by him or her. As per the amendment, the Secretary of State must act within 30 days of progress being restrained, and that 30-day period will commence only after an initial 30-day window for the First and Deputy First Minister to agree progress. This leaves the Executive Office with an opportunity to act, albeit that window will now be time-bound to ensure focused action and attention. This will ensure that the functions of the legislation are implemented within that limited timeframe.
This Amendment 25 is in keeping with the fundamental principles of NDNA. The amendment also faces political reality, rather sadly, and seeks to avoid further political stalemate on this long-overdue legislation. I cast my mind back to 2006. I recall that the noble Lord, Lord Dodds, was at St Andrews then and, from memory, I think there was a deal on the Irish language. It was one of the side deals that was included in the announcement given by Prime Minister Blair and Taoiseach Bertie Ahern at the conclusion of discussions on the Friday afternoon.
In respect of that, I ask the Minister to reflect further on Amendments 25 and 27, which make provision in the legislation to include an Irish language strategy as a function of complying with the requirements of NDNA. Paragraph 5.21.3 of that document states that
“under Section 28D of the Northern Ireland Act 1998 the re-established Executive will produce a draft Irish Language Strategy and a draft Ulster Scots Language, Heritage and Culture Strategy for consultations within 6 months. This will include programmes and schemes which will assist in the development of the Irish language and the Ulster Scots language, culture and heritage.”
In that vein, I would very much like it if the Minister could indicate his acceptance of these amendments today or, following a period of reflection, ensure that those amendments are brought forward by his ministerial colleague in Committee in the Commons, with an indication that this would be done on Second Reading. Therefore, adherence to NDNA commitments and protection of the Irish language and Ulster Scots would be provided. I beg to move Amendment 25.
My Lords, I support my noble friend Lady Ritchie’s amendments. Furthermore, I ask the Minister to consider that committees and other organisations around the strategy should have equal numbers of men and women, and of various religions and others, so that this truly bears out the Good Friday agreement and the Bill. This would be a great move, and I know the Minister could see to this. Perhaps it could also be debated fully in the other House. I raised this on Second Reading.
My Lords, I speak in support of Amendments 28, 29 and 36 in the names of the noble Lords, Lord Morrow and Lord Empey, but I will first deal with Amendment 25 in the name of the noble Baroness, Lady Ritchie.
I understand where the noble Baroness is coming from with this amendment, which we also discussed in Committee. Part of the reason for it is to allow decisions to be made if there is no Northern Ireland Executive in place, but from my reading of it—I stand to be corrected—if it were to be agreed, these powers to act after 30 days would apply whether there were a Northern Ireland Executive or not. In other words, even if the Assembly and the Executive are in place but a period of 30 days elapses between the trigger point and a decision being made, it is open to the Secretary of State to intervene. That seems a quite draconian suggestion. I have been in the Northern Ireland Executive, like the noble Baroness and others, and many decisions take longer than 30 days, for all sorts of good reasons and considerations of all sorts of circumstances. It seems an amazing proposition that the Secretary of State would be compelled to act if the Office of the First Minister and Deputy First Minister could not agree something within 30 days. I can think of nothing more designed to undermine the principle of devolution than that. From my reading of the amendment, it clearly would apply not just to the circumstances where there was no Executive but even if the Executive were in place.
The other thing I point out is that the amendment would apply only to the appointment of the Irish language commissioner, so there is no compulsion for the Secretary of State to act if there is a failure to appoint the Ulster Scots/Ulster-British commissioner. It seems one-sided in that approach. Nor indeed would it apply to appointments relating to the office of identity and cultural expression. It seems to be very much overstepping the mark. It would not fulfil the purposes it purports to and would create a one-sided approach in relation to appointments. For those reasons, I trust that the Government will maintain their position from Committee and not support the amendment.
Amendments 28, 29 and 36 in the names of my noble friend Lord Morrow and the noble Lord, Lord Empey, would remove the override powers from the Bill. In his opening remarks, the noble Lord, Lord Murphy, made the very important point that the Bill is designed to stick as closely as possible to the NDNA agreement. That is what we are about. On a number of occasions, the Minister cited in support of his arguments in knocking down some amendments that we must reflect the NDNA agreement and that those provisions were not in it. It is certainly not in the NDNA agreement that the Secretary of State for Northern Ireland would be given override powers, as the Minister admitted in Committee.
If it had been suggested that this would be part of the agreement, I do not think there would have been an agreement. If we had set up a series of checks and balances, and requirements for the First Minister and Deputy First Minister to agree, and then said, “If they can’t agree, don’t agree, or it appears to the Secretary of State to be appropriate then he can intervene and take on all the powers of the First Minister and Deputy First Minister in this respect”, which is a devolved matter, there would not have been an agreement. It so undermines the NDNA agreement and devolution itself that I find it hard to see how the Minister can justify it. He cannot do so on the basis that it is a faithful replication of the agreement, or on the grounds that it faithfully adheres to the devolution arrangements throughout the United Kingdom. It is clearly in breach of the Sewel convention and it acts as a clear disincentive to find agreement.
This is one of the many areas where the First and Deputy First Minister—and, indeed, the Executive—are required to reach agreement without the fallback that if they do not then the Secretary of State will intervene. That forces agreement to be made in the vast bulk of cases. If it is clear to some people that the Secretary of State will intervene if they simply dig in their heels and do not agree, then that is likely what will happen. I think this is a very misconceived part of the Bill. I understand that the argument may well be that it is a difficult area and we need contingency powers, as the Minister set out in Committee, but, again, contingency powers to avoid this problem arising were not part of the NDNA.
I come back to the basic principle. This Bill is about implementing that agreement. We are all agreed on that. These clauses were not part of the agreement. They are unilateral actions on the part of the Government to reserve unto themselves powers to override the Executive. We have seen this in a number of areas recently and I have raised with the Secretary of State and with others within government that we are going down a very dangerous path with this selective overriding of the devolved settlement. We have seen it in relation to the abortion issue, in relation to this issue and in relation to the protocol issue, where the voting mechanism of the Assembly, which is meant to be cross-community and cross-party agreement—there has to be a majority of unionists, nationalists and an overall majority—has been set aside arbitrarily.
Where does this end? What criteria do the Government apply for where they respect devolution and where they set it aside? Can the Minister tell us what are the overall considerations as to when powers are taken by the Secretary of State to override devolution, the Belfast agreement or the NDNA agreement? Is it on a case-by-case basis? What is it? I think it raises very serious questions.
I hope that when this matter is dealt with in the other place, the Government will reconsider this approach because, as I say, it is not a faithful replication of the NDNA agreement.
My Lords, I must say that the final debate of this evening has been fascinating. There are times where I am glad I am not the Minister, and this is one of them. There are quite convincing and interesting arguments on both sides. I remember that the late Lord Cledwyn Hughes, when he chaired the Parliamentary Labour Party, would start his deliberation as chairman by saying: “There are pros and cons for and there are pros and cons against.” That is the case here.
It is about protection. My noble friends Lady Ritchie and Lady Goudie were talking about protecting this legislation, protecting the agreement that has produced the legislation so that something which in the past, as we all know, brought down the Assembly for three years ought not to happen again. Of course, we have to ensure that the legislation is balanced for both nationalists and unionists and, indeed, other members of the community in Northern Ireland. I quite understand the need for reassurance but then there is the other protection: the protection for devolution. It would be much easier, by the way, if the Assembly and the Executive were functioning because the argument would be much more effective but, of course, they are not and that is one of the problems. Because there is no real, effective Assembly or Government in Northern Ireland, it is very difficult to ensure that there is certainty about this legislation when they are not there. I can understand that too.
As I said in Committee, when I was the Secretary of State I felt deeply uncomfortable about making decisions for people in Northern Ireland when I was a Member for a Welsh valley constituency. It was for the people of Northern Ireland to decide what they had to do. On schools, education, language, culture or whatever it might be, it is for those people in Northern Ireland who were elected by the people of Northern Ireland to make the decisions. They have elected them and, frankly, it is about time they got into government. I understand all the issues that underlie why that is not happening.
I urge one thing on what I assume will be a sort of new Government over the next couple of weeks, perhaps even days: for heaven’s sake, start negotiating and talking. Start getting around the table with the political parties in Northern Ireland, the Irish Government and whoever is involved to try to resolve all these issues. Half the difficulties we have had, whether with the Northern Ireland protocol, this or anything else, are because people are not trying to resolve it by having decent negotiations. That has to happen.
We are uncomfortable with this; we do not like it. I know the Minister has given us a concession in the amendment I moved in Committee, which was that if the Secretary of State takes these powers there will be an opportunity in both Houses to debate the decision that he or she has taken. Without pre-empting what the Minister is going to say, I note that there will be two Statements a year indicating what has happened. I ask only that if the Statement is due in July and there is a crisis in March, the Secretary of State comes along to Parliament and gives the Statement then—not automatically at certain times of the year, irrespective of what happens in Northern Ireland.
I look forward to hearing what the Minister has to say. It is a difficult dilemma, respecting devolution on the one hand but ensuring the protection of this legislation on the other.
My Lords, I am incredibly grateful to all noble Lords who have participated in this Report stage for their contributions. I single out my noble friend Lord Lexden, who appears to be the only Conservative who has sat through the entire Report stage. Given that there might be one or two things happening outside the Chamber of interest to members of my party and beyond, that is commendable.
I agree with the noble Baroness, Lady Ritchie of Downpatrick, echoing some of the comments made by a number of noble Lords at the outset. If this debate has highlighted anything, it is precisely why it should be taking place in the Northern Ireland Assembly, not in this Parliament. It touches on very local, devolved matters that would be much better dealt with in the Assembly by local politicians, accountable to their local electorates. I hope we can reach such a situation. I very much take on board the sensible and wise comments of the noble Lord, Lord Murphy, about the need to discuss and negotiate. I hope we can resolve that very quickly, whatever the immediate future might hold for some of us.
The amendment in the name of the noble Baroness, Lady Ritchie of Downpatrick, seeks to place further obligations on the Secretary of State in relation to the appointment of the Irish language commissioner and Irish language best practice standards after a certain threshold is met. As I made clear in Committee—I appreciate that the noble Baroness was unable to be present, although I am reliably informed that she could watch proceedings from her bedroom while recovering—I sympathise with the intention of wanting to ensure that the provisions of the Bill are not stymied by inaction on the part of the Executive.
I also appreciate the noble Baroness’s desire for the Secretary of State to move quickly if such inaction were to present itself. I have had conversations with Irish language groups, in particular Conradh na Gaeilge, on that point. However, my starting point is, as I have said throughout the passage of the Bill, that the Government would not wish to intervene routinely in devolved matters and that the use of any powers in the Bill would require careful consideration.
The powers in the Bill have been carefully drafted to allow the Secretary of State to use his or her discretion and to consider the political circumstances at the time. I fear that introducing a timeframe within which he or she had to act would detract from that flexibility. The noble Lord, Lord Murphy, was Secretary of State for Northern Ireland and a senior Minister during the Good Friday agreement negotiations, so he will appreciate that sometimes the Secretary of State needs a degree of flexibility in exercising his or her judgment.
As I laid out before the Committee, in our view the stipulated timeframe of 30 days set out in the amendment would be wholly impractical, particularly in respect of public appointments, which need to be conducted with rigour and, quite rightly, need a longer timeframe to complete, as my noble friend Lord Dodds of Duncairn made clear in his comments. Such a timeframe would almost certainly preclude important public appointment procedures from taking place, which I suspect is not the noble Baroness’s intention.
I also suspect that the consequences of the Secretary of State’s intervention being compelled would set us further back from securing the public’s long-term confidence in the measures set out in this legislation. Lastly, as my noble friend Lord Dodds pointed out, the proposed amendment applies in this case only in respect of the Irish language provisions of the Bill, not those pertaining to the Ulster Scots and Ulster-British tradition or the new office established by it.
The noble Baroness’s Amendment 27 seeks to give a further area where step-in powers could be exercised—namely, in relation to strategies relating to the Irish language and Ulster Scots as set out by Section 28D of the Northern Ireland Act 1998. As I said earlier today and in Committee, this is a separate undertaking from the legislative commitments on identity and language set out in New Decade, New Approach. For that reason, we have decided not to include such a provision in this legislation.
The noble Baroness, Lady Goudie, who I welcome to her place here, talked about appointments. At the risk of repeating what I said in Committee, there are well-established appointment procedures in Northern Ireland but these would essentially be matters for the Northern Ireland Executive to take forward rather than Her Majesty’s Government.
I turn to Amendments 28, 29 and 36 in the names of my noble friends Lord Morrow and Lord Empey and spoken to by my noble friend Lord Dodds of Duncairn. In Committee, I set out at length the Secretary of State’s step-in powers more broadly. I realise that these are difficult areas. Throughout the Committee debates, I stressed that the Government would not wish to intervene routinely and that the use of these powers would require careful consideration, and that remains the case.
I have a good deal of sympathy with the comments of my noble friend Lord Dodds of Duncairn and the noble Lord, Lord Murphy, in respect of these powers. The only reason they are there is to ensure that a key element of New Decade, New Approach is capable of being delivered—something that, regrettably, was not happening after the Assembly was restored in January 2020. Agreeing again with the noble Lord, Lord Murphy, I think I said in Committee that one does not always have to be totally comfortable with something to regard it as necessary, and I believe that the powers are proportionate and necessary.
However, as the noble Lord alluded to, the need for appropriate scrutiny of these powers and the importance of accountability before this House are paramount. I therefore make a commitment to noble Lords today on the step-in powers, following my promise in Committee to look further at these issues. Having reflected, I can commit that the Northern Ireland Office will make Written Statements to both Houses every six months from commencement to provide updates on the Bill’s implementation. Those statements will include details on any use of the step-in powers within the relevant six-month period and will enable the Government to keep both Houses informed of the delivery of NDNA commitments more broadly. I will also reflect further on the comments of the noble Lord, Lord Murphy, about timings.
I hope that this commitment, from the Dispatch Box, will provide some reassurance to noble Lords and go some way—probably not all the way—to allaying their concerns. The Government remain of the view that these powers are required in the Bill, however uncomfortable some may be. On this basis, I urge the noble Baroness to withdraw her amendment.
My Lords, I thank all noble Lords who participated in this short debate. It was very interesting and different views were offered. I was trying to ensure the protection of the legislation and, obviously, the protection of devolution. I would still urge the Minister to give consideration to the content of both amendments. If he could meet Conradh na Gaeilge in the coming months, in advance of the Bill coming to the other place, to discuss these particular issues, I would be extremely grateful. I beg leave to withdraw Amendment 25.
Amendment 25 withdrawn.
26: Clause 6, page 12, line 6, leave out from “Commissioner” to “Ulster” in line 8 and insert “for the Ulster Scots and the”
Amendment 26 agreed.
Amendments 27 and 28 not moved.
Clause 7: Concurrent powers and powers of direction: supplementary provision
Amendment 29 not moved.
30: After Clause 7, insert the following new Clause—
“Establishing the Castlereagh Foundation(1) The Secretary of State may—(a) establish a body corporate or other organisation to be known as the Castlereagh Foundation, or(b) provide grants for the establishment of such a body or organisation by another person.(2) A body or other organisation established or funded under subsection (1) must— (a) have as its principal objective the funding and support of academic research into identity, including national and cultural identity and shifting patterns of identity, in Northern Ireland, and(b) be operationally and financially independent from the Office of Identity and Cultural Expression (though this does not affect the Office’s functions under section 78H of the Northern Ireland Act 1998).(3) The Secretary of State may dispose of any interest in the Castlereagh Foundation.”
Amendment 30 agreed.
Amendment 30A not moved.
Clause 8: Consequential amendments
Amendments 31 to 35
31: Clause 8, page 13, line 21, leave out from “Commissioner” to second “Ulster” in line 22 and insert “for the Ulster Scots and the”
32: Clause 8, page 13, line 23, leave out from “Commissioner” to second “Ulster” in line 24 and insert “for the Ulster Scots and the”
33: Clause 8, page 13, line 30, leave out from “Commissioner” to second “Ulster” in line 31 and insert “for the Ulster Scots and the”
34: Clause 8, page 14, line 6, leave out from “Commissioner” to second “Ulster” in line 7 and insert “for the Ulster Scots and the”
35: Clause 8, page 14, line 13, leave out from “Commissioner” to second “Ulster” in line 14 and insert “for the Ulster Scots and the”
Amendments 31 to 35 agreed.
Amendment 35A not moved.
Clause 9: Commencement
Amendments 36 and 37 not moved.