Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020
Viscount Younger of Leckie
That the Grand Committee do consider the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.
Relevant document: 34th Report from the Secondary Legislation Scrutiny Committee
Viscount Younger of Leckie (Con)
My Lords, these regulations have a straightforward aim: to reflect in domestic law the consent mechanism set out in Article 18 of the Ireland/Northern Ireland protocol and the UK Government’s unilateral declaration of 17 October 2019. The protocol itself is an annexe to the withdrawal agreement and was developed with the intent of protecting the Belfast/Good Friday agreement. That intent was at the heart of our negotiations with the EU last year and is reflected here in the consent mechanism. It is something we will always uphold.
These regulations provide for the locally elected politicians of Northern Ireland to decide whether Northern Ireland remains aligned with certain aspects of EU law set out in Articles 5 to 10 of the protocol. These articles cover customs, the UK internal market, technical regulations of goods, VAT and excise, the single electricity market and state aid. The unilateral declaration published by the Government concerning the operation of the consent mechanism provides further detail on the obligation described within the protocol. These regulations implement that consent process by providing for a vote in the Assembly as to whether to continue this alignment. These commitments have been set out and committed to in international law, and now it is for us to bring them into domestic law with this instrument.
It will perhaps help to begin with the fundamentals. The Belfast/Good Friday agreement was ratified by referenda in both Northern Ireland and Ireland and is built on the principle of consent. In the protocol, the necessity of consent is recognised in the provision for Northern Ireland’s alignment with certain aspects of EU law to be disapplied if Northern Ireland’s political representatives decide that it is no longer what is wanted. Be in no doubt that reflecting this principle of democratic consent in the protocol was intrinsic to its acceptance by the Government. As noble Lords will know, the protocol was designed as a practical solution to avoiding a hard border on the island of Ireland while ensuring that the UK, including Northern Ireland, could leave the EU as a whole. The protocol necessarily included, therefore, a number of special provisions which apply only in Northern Ireland for as long as the protocol is in force. That is why it is for the elected representatives in Northern Ireland to decide what happens to the protocol alignment provisions in a consent vote that can take place every four years, with the first vote taking place in 2024. Only elections to the Northern Ireland Assembly and its Members’ votes will decide the outcome.
I will now turn to the detail of the process. These regulations implement both a default consent process and an alternative consent process. The default process will apply if a First Minister and Deputy First Minister are in office on the day the Secretary of State issues the notification to begin the process. In 2024 that will be on 31 October. Under that default process, the First Minister and Deputy First Minister have one month during which they can, acting jointly, table a consent resolution. This is our central scenario: that the Executive will be functioning normally in 2024 and the First Minister and Deputy First Minister will jointly table the Motion, which will be debated in the normal way in the Assembly. Everything else that follows in these highly technical regulations is designed to cater for increasingly unlikely scenarios, but they are reflected here in the regulations to ensure that a consent decision can always be reached.
In that vein, if, before 1 December, the First Minister and Deputy First Minister have not tabled a Motion for a consent resolution, any Member of the Assembly can table a consent Motion before 7 December. It would then be debated in the normal way, although if the Motion has not been decided by 17 December, the debate will be scheduled automatically and the Speaker will move the Motion.
The process I have just described will operate if the political institutions in Northern Ireland are functioning as expected. That is our central scenario, as I said earlier, and the path we expect to go down. But we must be prepared for all scenarios. The alternative process will therefore apply if, on 31 October 2024, or any future such point, a First Minister and Deputy First Minister are not in office. We should remember that the protocol was drafted at such a time—a deeply challenging time for Northern Ireland. While we all welcome the restoration and subsequent stability that the Executive have achieved, it is right that we have this in reserve.
The alternative process enables any MLA to bring forward the consent Motion in the absence of a First Minister and Deputy First Minister at any time from 1 November until 7 December. If no Motion has been tabled or has not been decided on by 7 December, the Speaker must summon the Assembly to sit and consider the Motion. The alternative process also puts in place a procedure to enable the consent vote to happen under the alternative process even if the Assembly is unable to elect a Speaker when required to do so. In this case, the Assembly would move to elect by simple majority an interim Speaker, whose only role would be to preside over the consent debate and transmit the result to the Secretary of State. The interim Speaker would have no wider role beyond this narrow task. This provision ensures that MLAs will always be able to take a decision on a consent Motion, discharging the obligation in international law to facilitate this process.
If these draft regulations are approved, the first consent process would, as I have set out, take place in 2024. If consent is given at that point, the process will then be repeated every four or eight years. So, if consent is given with a simple majority, that is four years. If consent is given with cross-community support, it will be eight years. Cross-community support means the support of a majority of the Members voting, a majority of the designated nationalists voting and a majority of the designated unionists voting, as set out in the Northern Ireland Act 1998. This illustrates that the mechanism itself is designed to encourage cross-community support, giving the Assembly the chance to provide eight years of certainty to Northern Ireland’s businesses through cross-community agreement.
There are arguments that this approach is not compatible with the Belfast agreement. That could not be further from the truth: our approach is entirely compatible with the agreement; let me explain why. The principle of cross-community consent as set out in the Belfast agreement applies to matters for which the Northern Ireland Assembly is responsible. The consent mechanism, as contained in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU. This is an excepted matter in Northern Ireland’s devolution settlement. This means that the matter at hand falls outside the responsibility of the Assembly and outside the principle of requiring cross-community consent in order for it to pass.
I can assure noble Lords that the Government remain fully committed to implementing the withdrawal agreement and the protocol, which was specifically designed to protect the 22 year-old Belfast/Good Friday agreement and the huge gains of the peace process. That is why the alignment provisions in the protocol depend for their legitimacy on consent. This ensures that democratically elected local politicians will decide the future of the protocol in Northern Ireland. By making these regulations, we will ensure that this can be delivered for the people of Northern Ireland by the institution established by the Northern Ireland Act 1998. I beg to move.
Lord Empey (UUP)
It is difficult to know where to start. The Minister said that this was all about protecting and upholding the Belfast agreement. I do not know where he has been in recent years, but if he, or whoever wrote the notes for his contribution, thinks that any of this is compatible with the Belfast agreement, they are way off. This is a corruption of the agreement.
First of all, we are in this mess because of a terribly badly negotiated protocol which severs the economic activity of Northern Ireland from the rest of the United Kingdom. Our regulatory functions will be governed by European Union law, and, while a fig leaf of a customs territory has been invented, I refer the Minister to a House of Commons Library note of October last year which specifically sets out that, to all intents and purposes, we are in the customs union as well.
What we have actually done is the antithesis of the Belfast agreement, which insisted that the status of Northern Ireland would not be changed without the consent of its people. Nobody can claim that the status of Northern Ireland has not changed, with the result that our regulatory activities are governed by Brussels, where we will have no say whatever in the regulatory environment in which we operate. Border inspection posts will be established, one of which, in Larne Harbour, will occupy 14 acres. Every item of food that comes into Northern Ireland will have to be notified in advance to the relevant authorities and will be subject to inspection, including physical inspection if required. Each of the statutory instruments in this whole apparatus separates Northern Ireland by minute amounts each time. Nevertheless, a border has been constructed in the Irish Sea, which is the antithesis of the Belfast agreement.
The document refers to consent. Where was the consent from the people of Northern Ireland to enter into this twilight zone, this constitutional mess whereby we are neither in nor out of the United Kingdom but we have a new status—whatever that may be? It is like saying that you are married but every four years you can divorce; however, you are not given any choice in how you go into the arrangement in the first place. I have to say to the Minister that I find nothing remotely compelling in his argument.
The mechanisms governing how this consent is to be given are also against the Belfast agreement, because it set out to remove simple majoritarianism from key decisions so that each section of the community could protect its own interests, thereby having a cross-community vote. There has been no cross-community vote to enter into this process. Rather than some kind of protection, this is a fig leaf covering the fact that a border has been created against the wishes of the people. I did not want to see a border on the island—nobody wants to—but there should not be a border in the Irish Sea, either. Any border on either side does not uphold the agreement but is a repudiation of it.
This also creates uncertainty, because investors will not know what regulatory environment their company will be operating in in every four-year cycle. People in the Republic and in Great Britain will know, but we will be in this twilight zone of uncertainty, which is a negative push against investment.
I have to say to the Minister that I have seen absolutely nothing in this document that is compelling in any way. To prove my point, the Government are putting forward £355 million to handle the trading consequences over the first two years—£355 million. People tell us, and the Government will not admit, that they have created a border in the Irish Sea. I think we would be as well to be straightforward with each other: I do not find anything in this document that is remotely compelling or advantageous to the people of Northern Ireland.
Lord Dodds of Duncairn (DUP)
My Lords, it is a pleasure to follow the noble Lord, Lord Empey, on this issue. These regulations are described as a “Democratic Consent Process”. In the view of many people in Northern Ireland, it is neither democratic nor is it a proper definition of consent.
I want to take the Committee through the background to this issue. It goes back to the joint report of 2017 agreed between the United Kingdom and the European Union, which said in paragraph 50 that “no new regulatory barriers” will
“develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement”—
the Belfast agreement—
“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.”
Of course, under devolution for Scotland, Wales and Northern Ireland, within the union, there can be different laws in place, but that can happen only with the democratic consent of the institutions in each of those countries. In paragraph 50, Her Majesty’s Government and the European Union made a commitment that there would have to be the agreement of the Executive and the Assembly—I will come back to the point about the Executive, because that is significant as well.
Then, of course, in October 2019 Her Majesty’s Government committed to the same thing. Prime Minister Boris Johnson wrote to Jean-Claude Juncker on 2 October 2019 setting out proposals for a new protocol on Ireland/Northern Ireland, based on five principles. The fourth said that any potential regulatory zone on the island of Ireland must have the endorsement of the Northern Ireland Executive and the Assembly before it enters into force—that is, during the transition period and every four years afterwards. Paragraph 13 of the Explanatory Notes sent by Downing Street to the European Commission states:
“Our proposal is that before the end of the transition period and every four years afterwards, the UK will provide an opportunity for democratic consent to these arrangements in the Assembly and the Executive within the framework set by the Belfast Good Friday agreement.”
The point I am trying to make is that these regulations do not faithfully implement what was set out by Her Majesty’s Government and the European Union back in December 2017 and do not set out the proposals put forward by Her Majesty’s Government in October 2019. The Government have dropped any prior consent by the Northern Ireland Assembly to the implementation of this regulatory regime by the European Union in Northern Ireland. What they are saying is that you can have a vote after four years, but you are not to be allowed any vote to actually begin the process, contrary to all previous assurances. How on earth is that democratic? How on earth is that consent?
The Government are also saying that only the Assembly will be included, not the Executive. That is important because the powers of the Executive in terms of the parties being able to proceed by consensus or to veto proposals are very significant; that is why “Executive” was included, but it has been completely dropped. The whole customs regime is also included. Originally, only single market regulatory issues were to be considered. Now the whole panoply of customs is also included, as the noble Lord, Lord Empey, pointed out. Again, that is contrary to what the Government and the EU set out in December 2017, and to what Her Majesty’s Government committed to in October 2019.
These regulations are extremely defective and are opposed by anyone who believes in democracy and proper consent in Northern Ireland. They are contrary to the Belfast agreement—there is no doubt about that. These points have been clearly made by the noble Lord, Lord Empey, who was instrumental in negotiating it, and by the noble Lord, Lord Trimble, who is also here and was one of its main architects. Yet, their voices are not listened to. I would have thought that they were worthy of respect and of being harkened to on this very issue.
To say that this is a reserved matter really misses the point. Agriculture and the regulation of manufacturing are devolved matters. Okay, the rules are set down in European Union directives, but many are implemented through legislation in the Northern Ireland Assembly: they are devolved. A mechanism of approval is going to be given to the Northern Ireland Assembly after four years, not immediately—not now, when it should be happening. I challenge the Minister in his response to give me one example of a significant controversial issue in the Northern Ireland Assembly which is not based on cross-community voting or is not susceptible to being turned into a cross-community vote through the petition of concern. There is not a single one; yet, on this most significant issue of all, it is to be a bare, simple majority. If this is a reserved matter, you would say it is a matter for Westminster to vote on, but it has been given to the Northern Ireland Assembly, so the mechanism set out in the Belfast agreement, the St Andrews agreement, and so on, for implementing how the Assembly should work should be respected.
Finally, this measure is contrary to the basic tenets of democracy, as has been said. The rules for a whole swathe of manufactured goods and agriculture products in Northern Ireland—the laws—will now be made in Brussels. No one at Stormont will be able to have any say or vote. Nobody at Westminster will have any say or vote. How on earth can that be democratic? I agree with the basic principle of taking back control through Brexit, but I challenge the Minister: how can the people of Northern Ireland be left in this position of having no say or control over laws affecting the basics of the economy of Northern Ireland—laws that could be put in place in Brussels, and which could actually be injurious to the position of Northern Ireland? Nobody here, and nobody at Stormont, will be able to do anything about it. The Minister really does need to deal with these issues.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
My Lords, before we go to the next speaker, just to alert you, the clock is not working on the screen, so I am relying on noble Lords to self-regulate and to be aware that the time limit is seven minutes. If you do go substantially over, I am sure that someone will drag you off. On that basis, I call the next speaker, the noble Baroness, Lady Hoey.
Baroness Hoey (Non-Afl)
My Lords, I thank the Minister, who has probably drawn the short straw today. He has just heard from two noble Lords who understand hugely the history and the whole process of the Belfast/Good Friday agreement and subsequent policies. It is also a privilege to have here the noble Lord, Lord Trimble, who also knows it inside out. I therefore sympathise with the Minister because clearly, even the title of this statutory instrument—“Democratic Consent Process”—is amazing. As the noble Lord, Lord Moylan, who is also here today, said in a debate on a statutory instrument last week, the only place in Europe where we are de-democratising is Northern Ireland. We have had an explanation from the Northern Ireland Office of the administration of this process in four years’ time which is genuinely full of gobbledegook. It would require quite a lot of concentration even to work out how it could possibly happen. Of course, that is four years away.
What concerns me is that, as both noble Lords have already said, we are talking about consenting in four years’ time. We have not agreed, and Northern Ireland has not agreed, to the protocol. It is ironic that we are talking about how it could be changed in four years’ time, given that we have not even had the opportunity to discuss how we could change it now, because we have not been asked.
Obviously, I continue to be very involved with Northern Ireland, but I bow to the experience of those who have already spoken. The Minister, the various interpretations given and the Library briefing talk about protecting the Belfast/Good Friday agreement. My question to the Minister is: how can you protect something that has already been broken, and broken so clearly? The withdrawal agreement overall rips the Good Friday agreement apart. The laws governing some 60% of economic activity in Northern Ireland will no longer be made at Westminster or by the devolved Assembly, but by an outside law-making body—the European Union—and will be subject to interpretation by a non-UK court. Clearly, anyone who looks at this issue will see that the constitutional position of Northern Ireland has been changed, without the consent of the people of Northern Ireland as required by the Belfast agreement. No one is going to have a say in this.
The noble Lord, Lord Dodds, talked about no one having a say in these decisions. Of course, the people who will likely have more of a say in Northern Ireland are the Irish Government, who are members of the European Union and are well in with the European Commission. We will find more and more that decisions will be taken based on what the Dáil and Ministers in the Irish Government think, rather than our own Government in the United Kingdom.
The whole issue of consent has been based on the fallacy that it was impossible to have a trade arrangement between Northern Ireland and the Republic of Ireland, whereas it was very simple, apparently, to have a trade border between Great Britain and Northern Ireland. I appreciate that the Government have to try to defend this, but I cannot see how anyone cannot accept that this has broken the Belfast agreement. It has broken the trust of many, many people in Northern Ireland in their own Government and their protection of their right to be British.
Obviously, we will get the internal market Bill and I will fight very hard to ensure that your Lordships’ House reinserts the clauses that were taken out, because they are absolutely crucial, and just a little bit of help in what is a very dangerous situation.
I ask the Minister: what happens if all this breaks down before the four years is up? We have no idea what could happen. Hopefully, the Assembly and the Executive will continue, but what happens if the Assembly breaks down and there are no MLAs? Frankly, if the Assembly breaks down again, I doubt whether the people of Northern Ireland will accept MLAs continuing to be paid fully for another three years. It appears that the word “consent”, as interpreted by the Government, means “consent” only if it something that suits the Government; if it does not, it is no longer required.
As someone who campaigned very hard to get us to leave the European Union, I voted for the whole of the United Kingdom to do so. Let us not forget that 44% of the people of Northern Ireland voted to leave the European Union, and as part of the United Kingdom—not as this little sideshow, separated out, with new rules, new business difficulties and extra costs that taxpayers will pick up. Very little can be done between now and the beginning of January, but I just want Ministers and the Government to be honest about this and accept the situation. I know that when this was finally signed up to, the Government were under great pressure from those who wanted us to stay in the European Union, and there was time pressure, but it should not have happened without the people of Northern Ireland being taken along with them.
I find it very difficult to support this SI, but I know that my vote will not make any difference, so I will not be calling any kind of vote.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I thank the Minister for his explanation of the regulations. It is important to remember the political reasons for the Northern Ireland protocol and to recall and emphasise that the purpose of the Good Friday agreement was to ensure that those who come from a unionist background, from a nationalist background and from neither can work together and build relationships. It is not one-sided by any manner of means. The whole purpose of the protocol was to prevent a hard border on the island of Ireland and to protect our peace and political process—the delicate political architecture that was carved out of the Good Friday agreement and the Northern Ireland Act 1998.
I remind your Lordships that Northern Ireland voted on a majority vote to remain in the European Union and did not ask for Brexit, so it is important that those delicately balanced relationships are nurtured and built on. The Good Friday agreement was not an end in itself: we need to be able to build the healing process on our island, which has been painfully slow, characterised by long interruptions to the political institutions over the past 22 years. No political impediments should be put in the way of such processes taking place in a natural way.
I remind my unionist colleagues here today that I, as a democratic Irish nationalist, do not want a border in the Irish Sea, nor on the island of Ireland. I think that characterises the view of democratic Irish nationalism. We have to get around this in some way or another. The protocol is important, but I have a problem with the way the Government have invoked the consent principle contained in the Good Friday agreement. The point was raised in the House of Commons Delegated Legislation Committee by Karin Smyth of Labour’s Front-Bench team. The UK Government are stretching the idea of consent way beyond the real, explicit consent principle which is in the Good Friday agreement—the provisions around a border poll and a change in the constitutional status of Northern Ireland.
It may be helpful if I quote from that agreement. I bear in mind that certain people in this debate, such as the noble Lords, Lord Empey and Lord Murphy, were part of the negotiating process of the agreement, but the principle of consent is set out clearly in the Good Friday agreement in the constitutional issues provision, which recognises that it is
“for the people of … Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland”.
It also specifically only requires a majority of the people of Northern Ireland, not a majority of any one community. It is important to be clear that the principle of consent is in no way undermined by the protocol to the withdrawal agreement, which specifically reaffirms it and the territorial integrity of the UK.
Even if it could be legitimately argued that the principle of consent applies more broadly, or should apply to any implementation of the protocol, it is difficult to see why, then, it should not also apply to Brexit itself, which a clear majority of the people in Northern Ireland expressly voted against. In practice, the Government seem selective about what consent really means and whose consent they are really talking about.
In this respect, I ask the Minister: what discussions have taken place with the Northern Ireland Executive, Northern Ireland political parties and the Irish Government, with whom the Government are supposed to be in a bipartisan approach in the implementation and working out of the agreement? Did the Government talk to those various people in the Irish Government, the Northern Ireland Executive and the Northern Ireland Assembly about the content of this statutory instrument? If so, what was the outcome of those discussions; and, if not, why did they not talk to them, because surely they are the people who will be most directly affected, as well as the people of Northern Ireland.
I will leave it there with the Minister and hope that the Government will reconsider this use of the consent principle and will not bring forward these regulations in this form.
Baroness Suttie (LD) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Ritchie, and I agree with so much of what she just said. This has been an extremely interesting short debate and has clearly illustrated the strength of feeling on this matter. It would not be an exaggeration to say that none of us taking part in this debate from our very different perspectives would have wanted to start from here—but we are where we are.
The withdrawal agreement and the Northern Ireland protocol are both compromises and are far from perfect, for many of the reasons set out this afternoon. Very few people—including many on the government Benches—would now claim otherwise. But, as the noble Baroness, Lady Ritchie, said so powerfully just now, the Northern Ireland protocol has none the less been an essential element in maintaining the peace and progress on the island of Ireland since 1998. We should also acknowledge, as did the Minister in his opening remarks, that the Northern Ireland protocol is an internationally agreed treaty. As part of that internationally recognised agreement, it was agreed to allow the MLAs in the Northern Ireland Assembly an opportunity every four years—or eight years, as the case may be—to indicate their support for continuing with the arrangements laid down in the protocol. In that context, somewhat reluctantly from these Benches, we will support the statutory instrument before us today.
In this afternoon’s debate, we have heard views from many of the political parties represented in the Assembly, although we have not heard from Sinn Féin or Alliance. I add in passing that, as a result of the mechanisms set out before us today, my colleagues from Alliance in the Assembly may very well find themselves having the casting vote. It is also worth noting that this consent mechanism was not asked for by most of the Northern Ireland political parties or by the Northern Ireland Assembly. The debate this afternoon has illustrated one of the concerns about this consent process. The consent vote, potentially taking place every four years, risks creating a new layer of instability and friction in what is already a fragile and polarised political system. The position taken on this vote by the Northern Ireland political parties risks becoming a key issue during Assembly elections at the expense of other hugely important issues that affect the lives of ordinary Northern Ireland people. As the noble Lord, Lord Empey, said so clearly in his speech, the whole process will add significantly to the general feeling of uncertainty.
During the debate in the House of Commons, as the noble Baroness, Lady Ritchie, said, Karin Smyth MP raised concerns about the use of the word “consent”. Language and the use of words are hugely important in any political context, but most especially in the context of debate in Northern Ireland. As Karin Smyth said in the debate in the other place, it may have been preferable to use different language in this context. The carefully crafted principle of consent as set out in the 1998 Good Friday/Belfast agreement is based on a different mechanism from that set out in this order, and this produces an inevitable tension. There is tension, too, about inconsistencies of approach as to when and how a majoritarian rather than cross-community vote is applied.
I will conclude by asking the Minister for a little further clarification on how the independent review mechanism set out in Part 6 of the instrument would work in practice. There is an understandable view that there has been insufficient consultation across the board throughout the Brexit process. Can the Minister therefore say whether it would be the intention of the Government to seek the approval of the Assembly on the remit and content of the review in advance of it beginning its work, and will they consult the Assembly on who will carry out such a review? I would be very grateful if the Minister could expand a little on these processes, as the unilateral declaration does not make it entirely clear.
Lord Murphy of Torfaen (Lab) [V]
My Lords, this has been a very interesting short debate. The Opposition will—reluctantly—support the Government on this, but I endorse what the noble Baroness, Lady Suttie, just said. It is with reluctance because, although obviously it is important to get as much consent and consensus as possible, the invocation of the principle of consent, as defined in the Good Friday agreement, is not absolutely right in this context.
Like the noble Lords, Lord Empey and Lord Trimble, I was heavily involved in establishing the Good Friday agreement and chaired many of the talks that led up to it being signed in 1998. I have to say that the definition of consent that the Minister referred to, as it applies to this issue, is not quite right. The main reason for that is that the consent, as opposed to the consent to get either a united Ireland or to remain as part of the United Kingdom, for other issues within the Good Friday agreement was based on agreement: it was based on consensus. The problem here is that because, among other things, the Northern Ireland Assembly and Executive were not operating when all these negotiations took place, no one in Northern Ireland has really had any say on Brexit or the protocol, in the way that they did when the Good Friday agreement was constructed.
Some people say that the Good Friday agreement could have been written in a few weeks. That may well be the case—but it would have failed, because the agreement had to be written by the people involved on both sides, with the parity of esteem that is the central part of the Good Friday agreement. The fact that there was nobody involved in the working out of the protocol or the withdrawal agreement, or of course the particular issue we are dealing with today, means that it has been in a sense imposed on the people of Northern Ireland—and that is very unfortunate.
The other issue of course is that there is a bit of a muddle about what consent is. Is it a simple majority or cross-community approval? They are two very different issues. The absence of Northern Ireland people as Members of either the Executive or the Assembly in establishing what has now happened to Northern Ireland because of the withdrawal agreement and the protocol has meant that there has been a deep misunderstanding about how these issues work.
The other issue of course is that the majority of people in Northern Ireland actually voted to remain in the European Union. Of course, we voted as a United Kingdom to stay in or go out, but it is a factor that people in Northern Ireland voted to remain and a substantial minority voted to leave. So there is a divided position in Northern Ireland. That is all the more reason why consensus among people, and particularly among politicians in Northern Ireland, would have been much more acceptable than the situation we are in today. So to invoke the consent issue as defined in the Good Friday agreement does not work. I understand the plight of the Government, and the need to try to get that consensus. This is a genuine attempt to do it, but it will be very difficult.
The other problem is that this has the potential to create enormous instability every four years. In between in Northern Ireland, there are elections for local government, elections to the Assembly and elections to Parliament. All those things are destabilising in themselves, but the fact that the Assembly then has to vote in the way that is prescribed by this statutory instrument is indeed a recipe for instability over the next eight years.
I honestly do not know what the alternative is, but I must say that this is not ideal—far from it—and it is a great pity indeed that the Northern Ireland Executive and the Assembly were not functioning when all this was agreed, because frankly they would have come up with a solution that would have been better than the one we have today.
Viscount Younger of Leckie (Con)
My Lords, I will start by saying that I am grateful to all noble Lords for their contributions to this debate. I am also very aware, having listened to some passionate and hard-hitting speeches from certain noble Lords, that this is not an easy subject. Those speeches came in particular from the noble Lords, Lord Empey and Lord Dodds. I am very happy to welcome the noble Baroness, Lady Hoey, and of course I take into account the experience of the noble Lord, Lord Murphy. I will also say that I welcome the presence of my noble friend Lord Trimble. I know that he could have put his name down to speak today.
I will do my best to address the points raised in the debate. I will start with some of the basics. I may sound a bit like a long-playing record, but I will reiterate that the UK Government are committed to implementing the Northern Ireland protocol, with work being progressed across government and in partnership with the devolved Administrations. Our top priority is to protect the Belfast/Good Friday agreement and the gains of the peace process, and to preserve Northern Ireland’s place in the UK. Our approach, whether we agree or do not agree, is at all times guided by these priorities, and our Command Paper and the guidance we published in August set out how we will meet our obligations under the protocol.
I remind the Committee that the protocol states that it should
“impact as little as possible on the everyday life of communities”.
These communities were certainly alluded to in the interesting speech of the noble Baroness, Lady Ritchie. The Committee will also know that the proposals will deliver unfettered access for Northern Ireland business to the whole of the UK market; ensure no tariffs on goods remaining within the UK customs territory; uphold our obligations without the need for any new customs infrastructure; and guarantee that Northern Ireland businesses benefit from the lower tariffs that we will deliver through trade agreements with third countries.
I will go straight in to answer a question raised by the noble Baroness, Lady Suttie, who asked about Part 6 of the regulations and the independent review, which I have a copy of here. She asked whether we would need to seek the approval of the Assembly on the remit and content of the review, and whether the Assembly would be consulted. I note her comments and can say to her that the review will include close consultation with Northern Ireland political parties, businesses, civil society groups, representative organisations, including of the agriculture sector, and trade unions, as stated in paragraph 9 of the unilateral declaration made by the UK Government on 17 October 2019. The review will be chaired by an independent person, who will be decided on, if needed, at the time. Of course, this is in circumstances where a consent Motion has been approved by a simple majority but not by cross-community consent.
One of the themes of this debate has been consent, which was raised by the noble Baroness, Lady Ritchie, the noble Lords, Lord Dodds, Lord Murphy, and, of course, the noble Lord, Lord Empey. I note their comments but want to offer them further reassurance that it is the firm intent and desire of the Government to preserve Northern Ireland’s place in the UK. I say again that the approach is entirely compatible with the Belfast/Good Friday agreement. The principle of cross-community consent applies to matters for which the Northern Ireland Assembly is responsible. The consent mechanism, contained as it is in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU—an excepted matter in Northern Ireland’s devolution settlement. That is why the principle of cross-community consent does not apply.
Following on from that, the noble Lords, Lord Empey and Lord Dodds, made some strong comments about consent and where it came from. My response is that consent was intrinsic in the withdrawal agreement Act, including provisions to implement the Northern Ireland protocol. That received the approval of both Houses in January of this year. However, it is rightfully a matter for Northern Ireland’s political representatives to determine whether provision for alignment in the protocol should continue to apply, and that is why these regulations are necessary, as I set out in my opening remarks.
Let me clarify that the Government see the consent principle in the Belfast/Good Friday agreement as relating to the right of the people of Northern Ireland to decide whether to remain part of the United Kingdom. That is not the matter at hand, which is about the application of an international treaty to Northern Ireland. Therefore, it would not be right to allow one community to veto that decision. This matter was raised also by the noble Baroness, Lady Hoey.
The noble Lords, Lord Empey and Lord Murphy, spoke about businesses needing certainty, and of course they are quite right. On the points raised about the difficulty of returning to this matter every four or eight years—that is, if we get cross-community consent—it is essential that the continued application of certain aspects of EU law maintains the democratic consent of Northern Ireland’s elected representatives.
The noble Lord, Lord Empey, talked about a border down the Irish Sea. I say in response—he would expect me to say it, but I mean it—that trade between Great Britain and Northern Ireland is vital to the prosperity of the four nations of the UK, and we have committed to delivering unfettered access for Northern Ireland to the whole UK market. That is why we have provided legal protections against new checks or controls on Northern Ireland goods. Ensuring there are no barriers to the UK market for Northern Ireland firms is extremely important.
The noble Baroness, Lady Hoey, asked what would happen if the Northern Ireland Assembly broke down. I alluded in my opening remarks to the alternative mechanism, which is designed specifically for a scenario in which the Executive are not functioning. I point out to the noble Baroness that MLAs remained in office even when the Executive were not functioning, during their previous challenges.
The noble Baroness, Lady Ritchie, rightly raised a point about communication and asked what communication regarding the regulations there had been with the Northern Ireland Executive and the Assembly, and what discussions had been had. I say first that the Irish Government have been kept fully informed of the regulations. The noble Baroness can rest assured that working with Northern Ireland’s businesses and citizens to prepare them for the end of the year continues to be a top priority for me, the team and this Government. My department continues to work intensively with the Northern Ireland Executive, industry stakeholders and civic society, including through more than 20 meetings of the Business Engagement Forum and multiple meetings with community leaders over the past six months. I hope that this gives some reassurance that strong communication is at hand.
As I said in my opening remarks, the Government remain fully committed to implementing the withdrawal agreement. Our intent and purpose are to protect the Belfast agreement, and these regulations are an important part of that. This must be done in order to fulfil our obligations in international law. The regulations recognise the unique situation of Northern Ireland and give responsibility to those whom the people of Northern Ireland have elected to represent them. It will be up to those elected representatives whether Northern Ireland’s alignment with aspects of EU law continues. That is the essence of the regulations and I commend them to the Committee.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
The Grand Committee stands adjourned until 3.34 pm. I remind Members to sanitise their desks and chairs before leaving the Room.