Northern Ireland (Executive Formation and Organ and Tissue Donation) Bill

2nd reading
Monday 27th February 2023 Lords Chamber

Second Reading

15:39

Moved by

[Lord Caine]

That the Bill be now read a second time.

Relevant document: 26th Report from the Delegated Powers Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, before I turn to the main business, it is only right that I invite the House to join me in condemning unreservedly the despicable and cowardly attack on DCI John Caldwell on Wednesday evening. The terrorists who commit such evil acts are not wanted by society and they will never succeed in their objectives; democracy and consent will always prevail in Northern Ireland. The people of Omagh and Beragh spoke for us all over the weekend when they rallied together to say there can be no going back. Our thoughts and prayers are with DCI Caldwell, his family and his colleagues—some of whom I met at Omagh police station on Thursday morning—at this terrible time.

Over a year has passed since the then First Minister of Northern Ireland resigned his post. Twelve months and one Assembly election later, people in Northern Ireland still do not have a properly functioning Government, as set out in the Belfast agreement and subsequent agreements. In the absence of those institutions, this Government have stepped in to protect the interests of the people of Northern Ireland. We have set a Budget, delivered vital energy support funding of £600 per household and legislated to provide clarity on the decision-making powers of Northern Ireland civil servants to enable them to maintain public service provision.

On each of those occasions, I have stood at this Dispatch Box and expressed my deep disappointment that we still await the return of a functioning Assembly and Executive. I wish to restate that profound disappointment once again today. The restoration of the Executive, in line with the 1998 agreement and its successors, remains the Government’s top priority. It was on that basis that we legislated last autumn to extend the Executive formation period through the Northern Ireland (Executive Formation etc) Act 2022. Since that period ended in January 2023, the Secretary of State has once again been under a statutory duty to call an Assembly election, which would have to be held within 12 weeks—on or before 13 April this year.

We have spent some time since then engaging with Northern Ireland’s political and community leaders, assessing the options available to His Majesty’s Government, and it is the Government’s conclusion that a further Assembly election at this time would be unwelcome and expensive and, crucially, would bring us no closer to our objective of delivering fully functioning devolved institutions. On that note, I will briefly summarise the overall intention of the Bill. Before I do so, I again express my gratitude to the Benches opposite, including to the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Suttie, for the cross-party approach that they continue to take in relation to the delivery of key legislation for Northern Ireland.

The Bill itself will provide for a retrospective extension of the Executive formation period of one year from 19 January 2023, meaning that, if the parties are unable to form an Executive on or before 18 January 2024, the Secretary of State will again fall under a duty to call an Assembly election to take place within 12 weeks. We believe, however, that flexibility is necessary if we are to play our part in encouraging and facilitating the return of the institutions. On that basis, the Bill will also provide the Secretary of State with the power to call an earlier election, providing that offices have not been filled.

Taken together, these provisions represent a delicate balance. Eventually, if the political impasse in Northern Ireland continues, people will rightly expect to return to the polls and have their say. The prospect, however, of forcing an election when that would be unwelcome or unhelpful would, in our view, run contrary to our broader goal of forming an Executive.

Noble Lords with a keen eye for detail will have noticed that, unless an earlier election is called, the extension provided by this Bill would run past the date on which the decision-making powers contained in the Northern Ireland (Executive Formation etc) Act 2022 will lapse: namely 5 June 2023. We are therefore keeping those arrangements under review, in the continued absence of devolved government, but we sincerely hope that an Executive will be in place before these arrangements expire.

In the meantime, the provisions of the 2022 Act and its accompanying guidance provide civil servants with the clarity that they need on how and when they should be taking decisions. The decisions that have been taken by civil servants using the 2022 Act are being published to ensure transparency. We are grateful for the work that Northern Ireland civil servants are doing in making use of those provisions. The current arrangements are not, however, and never can be, a substitute for a fully functioning devolved Government.

I will speak briefly to the amendments the Government brought forward in the other place that now form part of the Bill. I know that all of us in your Lordships’ House have been deeply moved by the courage shown by Dáithí Mac Gabhann and his whole family in fighting for the implementation of organ donation changes. The Secretary of State, my right honourable friend Chris Heaton-Harris MP, has met Dáithí and his family. He was incredibly moved by his story and by the family’s dedication to seeing important changes to the law implemented as quickly as possible.

As a Government we have recognised that this issue is exceptional, both in the sheer importance it holds and the cross-party support it commands both in Northern Ireland and in this House. Clause 2 will therefore change the procedure for making regulations defining permitted material for transplantation in Northern Ireland under Section 3 of the Human Tissue Act 2004, as amended by the Organ and Tissue Donation (Deemed Consent) Act (Northern Ireland) 2022. This would allow regulations to be made in the absence of devolved institutions regarding rules for organ donation.

Before I conclude, I will make a very short statement on legislative consent, which is required in relation to the section on organ and tissue donation. Clearly, we have been unable to secure an LCM, a legislative consent Motion, from the Northern Ireland Assembly, given that it is currently not sitting—indeed, if it was sitting, we would not have needed this Bill, but its continued absence, and that of the Executive, mean we have to take action here.

I have spoken this afternoon about dates and timelines in the light of the nature of this Bill. As I conclude, I also want to note one anniversary of which noble Lords across this House will be keenly aware: the upcoming 25th anniversary of the Belfast agreement. I see the noble Lord, Lord Murphy, opposite, who played such a key role in negotiating particularly strand 1 of that agreement. Noble Lords will no doubt join me in noting the progress that Northern Ireland has made since that historic agreement. This Government will always work to implement, maintain and protect the agreement. As I said in opening, the restoration of the Executive remains our top priority. The Bill will help assist those objectives by avoiding an unwelcome election and providing time for us to work together to end the current impasse. But of course the Bill alone will not be enough to achieve that. All of us now, including His Majesty’s Government, need to make the most of the opportunity presented by the Bill. In that spirit, I beg to move.

15:47

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I take this opportunity to thank the Minister for presenting the details of this important Bill—all three clauses of it. I offer my support, prayers and thoughts to detective chief inspector John Caldwell and his family. He was brutally attacked by gunshots on Wednesday evening in Beragh, in County Tyrone. I commend the people of Beragh, and Omagh, who have been tremendously steadfast in the face of such adversity.

I want to make it quite clear that murder, terrorism and paramilitarism was always wrong, and something that I and my colleagues have always condemned, believing that the political process is the only way forward. Dialogue is the only way forward. Violence, terrorism and paramilitarism solve absolutely nothing. In that respect, I was pleased to see the five political party leaders come forward with the chief constable on Friday to denounce what happened to John Caldwell and to offer support on behalf of the community in Northern Ireland—all of the community—to John and his family. It is vitally important, at this stage, that there is cross-party solidarity against such violence and terrorism. We never ever want to go back to that place. That is a message to those paramilitaries: please get off our backs and leave us to get on with our lives in Northern Ireland in peace and prosperity.

However, in considering the Bill, today is Groundhog Day in many ways, because as we debate this the Prime Minister and the EU president, Ursula von der Leyen, are outlining—they may have already done so—the details of the agreement on the protocol, which I understand has got a new name: the Windsor framework. It sounds like the title of a play down at the West End, but it is much more serious than that. It is about the future economic, social and political prosperity of the people of Northern Ireland.

If anything could be said about last week, it is this: it is important that paramilitarism is not allowed to take over or undermine any political process. It is in that vein that I come to the debate today. It is vitally important that there is a restoration of political institutions to give the political and economic stability that is urgently required in Northern Ireland, and it is important that people feel they can subscribe to that. I hope that the new protocol, or framework, provides the necessary mechanisms to enable us to avail ourselves of tariff-free access to both markets, to allow our economy to grow, to enable political stability and to restore those most-needed institutions of the Good Friday agreement, as we approach the 25th anniversary on 10 April.

The Bill is an interim measure to enable negotiations, which have now been completed, between the UK and the EU. I hope that the political parties will allow this document—we have all to see the legal text—to be investigated in depth, but I also hope that we can get on with our lives, economically, politically and socially. I hope that the Bill will become redundant in time and that the institutions will be up and running, but that is very much in the hands of others—I look forward to a positive response from the DUP and other unionists in relation to that. I come from the position that political principles should never prevent the successful operation and functioning of our political institutions. We must remember—I speak as a former MLA and Minister in the Northern Ireland Executive—that the Executive and Assembly have operated for only 40% of the time over the last 25 years. We must get away from that stop-start situation and vetoes and move on to working in the best interests of the people.

I welcome Clause 2, which will ensure that Dáithí’s law becomes a reality. I was very much taken by young Dáithí Mac Gabhann, who requires a new heart. The campaign is spearheaded by his father, Máirtín, his mother, Seph, and Fearghal McKinney of the British Heart Foundation. It lit the hearts and minds of the people of Northern Ireland and the political fraternity. It is interesting that five parties supported this, which is another example of political resilience, political coming together and resolute action on behalf of the political parties. That is the type of determination that we now need to see.

Notwithstanding that, it is important that Chris Heaton-Harris, as Secretary of State, did this. Currently, 146 people are on the waiting list for a heart transplant. Without the enactment of the Bill, particularly Clause 2, this could not have happened. On average, around 10 people per year die for the lack of access to that soft opt-out option for organ donation. So congratulations must go to Dáithí’s family—his father, Máirtín, and his mother, Seph—working with Fearghal McKinney, on their resilience and dogged persistence in spearheading and leading this campaign.

It is also interesting to note the affirmation of the organ donation legislative measures from the Delegated Powers and Regulatory Reform Committee:

“We consider that ordinarily it would be inappropriate for the regulation making power conferred by section 3(9A) of the 2004 Act to be made subject to any procedure other than the affirmative resolution procedure. However, we take the view that the exceptional circumstances applying in Northern Ireland make the application of the negative resolution procedure not inappropriate during the period when there is no Assembly to carry out the approval function under the affirmative procedure.”


That is an affirmation, from that important legislative committee here in your Lordships’ House, of the importance of going ahead with this from the point of view of the Government and both Houses of Parliament.

Nevertheless, this issue should have been dealt with by a fully functional Northern Ireland Assembly and Executive, because that is what devolution is about and what the 90 MLAs were elected last May to do—not solely constituency work. Yes, there are two prongs to their responsibilities, constituency and legislative work, and it is time those institutions were up and running. Political principles should not be used to prevent progress within our institutions, and I hope that the concerted joint political action we have seen over the last few days, of politicians working together, will be the hallmark and benchmark of the future weeks and months.

The Bill also highlights the need for us now to move forward. We have now had an outcome to the UK-EU negotiations and the protocol—or the framework—and it is necessary and required that parties reflect on that. But there needs to be resolute action that results now in the restoration of political institutions. As I said on 5 December during the discussion on the last piece of legislation which dealt with the extension to 19 January, there should be inter-party talks in parallel looking at the future appointment of joint Ministers to underscore equality, an end to the vetoes which have prevented the political institutions working properly, and the need to put inclusion, reconciliation and equality—the central principles of the Good Friday agreement—back in government. There should be inter-party talks, with both Governments looking at the outstanding issues of the NDNA and putting a plan in place to implement them.

In conclusion, I support the legislation, but concerted resolve is required by both Governments and the five parties to ensure the restoration of political institutions and not to allow the actions of armed people to take over.

15:58

[Lord Alderdice (LD)]

My Lords, I too thank the Minister for clearly presenting the elements of the Bill. I identify with the sentiments of sympathy and concern expressed for DCI John Caldwell and his family. I also identify with the comments made by the noble Baroness, Lady Ritchie of Downpatrick, who pointed out the need to consider not only those who do violence, as was apparently done by people from the so-called “new IRA” in the attempted murder of DCI John Caldwell, but those who threaten violence if they do not get their own way, in particular at the moment on the loyalist side. It is very important for us all in this House and the other place—indeed, all political representatives—to make it very clear, as the community is doing, that neither doing violence nor threatening to do violence is acceptable any more, if it ever was.

That is the sad side, the worrying side, the downside, of today. But, of course, there is a very positive element to this Bill. I want to take the second part of the Bill first, if I may, the so-called Dáithí’s law element. Some of us spend much of a lifetime trying to get a little piece of legislation passed. Young Dáithí, at a very early age, with the support of his parents Máirtín and Seph, and with friends and colleagues such as Fearghal McKinney, as the noble Baroness said, and others, has ensured not only that he is getting legislation passed but getting his name attached to it. That is a remarkable achievement and I hope it presages well for him in the future, making a positive contribution not only on his own behalf but on behalf of many other people as well. He started off life with difficulties, with hypoplastic left heart syndrome, and we all hope he will receive a transplant soon to enable him to be fit and lively and enjoy his life. But he has made a tremendous contribution, by endearing himself to people, by persuading them and by being such an attractive character.

I am delighted, as a doctor who came from Northern Ireland and qualified at Queen’s University Belfast, to see this legislation coming forward. But I am also a little bit sad. We are the last part of the United Kingdom to get this legislation, this so-called opt-out clause that enables us to have more organs for transplant. I am a little sad because it was not always so. One hundred years ago, in 1923, a young girl was born in Lurgan, County Armagh—the town I was born in—and she went on to be one of the world’s leading nephrologists. Her name was Molly McGeown. She qualified in medicine and, like many other women of the time, found it difficult to get an appointment as a consultant because the senior staff said they could not afford to employ people like her, a married woman with children, at that level. It is wonderful how things have changed, although I have to tell your Lordships that my own wife ran into similar problems herself when she was working as a young doctor. But things have changed, and they changed because of people like Molly McGeown. She was absolutely determined to go ahead, and she did. She established the renal unit at Belfast City Hospital; took forward renal dialysis; developed what became known as the Belfast recipe, a particular approach to renal dialysis that massively improved survival rates; developed a renal transplant programme that was of benefit not just to the people of Northern Ireland but way beyond; produced huge numbers of academic papers in her work as a professor at Queen’s University Belfast; and was a star, not just in Northern Ireland, not just in the NHS, but across the world.

So there was a time when we were able to lead things. Now, we find ourselves coming in behind the rest of the United Kingdom. It does not have to be like that, but part of the reason it is, is the political difficulties and stalemate. It is not that the legislation was not approved and passed by the Northern Ireland Assembly, or that politicians in Northern Ireland did not want to see such legislation. Of course they did, and they passed it, but other political difficulties supervened, and it got held back.

I hope that on this auspicious day, we are able to look forward to substantial progress, which takes us to the second part of my speech and the first part of the Bill: the difficulties of establishing an Executive and, because of that, the Assembly itself being in suspension. There were other, political ways that protests could have been made against what people did not want to see with the Northern Ireland protocol. It did not have to involve the suspension of the Assembly and the Executive, and everything that went with it. That this House is having to pass Dáithí’s law here shows just what a disaster it is for the people of Northern Ireland to have elected representatives but not be able to pass their own legislation—that it has to be done here and be delayed. I desperately hope we can move forward, and quickly.

When I heard about the Bill and the talk of a delay of another 12 months, my first reaction was for my heart to sink and I thought, “Oh, my goodness, another year waiting around for things to move forward”. But I often try to look on the bright side and I began to think, “Wait a minute, the Prime Minister may have something here. He may know perfectly well that he is not that far from an agreement; he may also know that that agreement might not be immediately accepted by some of those who have been negative about the Northern Ireland protocol; and he may well be creating a bit of space and time where it is possible for them to find their way towards supporting it”. Maybe some of them want to get to the other side of the local government elections before they will give support to it, or maybe there are some discussions that they need to have internally. Whatever the case, creating that space may give an opportunity for a positive result. I hope that that is the case.

I look at friends and colleagues on the other side of the Chamber and I very much hope that they will use their best offices and realise that if Northern Ireland’s Assembly is not put in place, and power devolves back to London, it will not be exercised by London alone: it will be exercised by London in collaboration with colleagues in Dublin. Therefore, I think we have to be thoughtful about the future and about the prospects, and I very much hope that they and their colleagues will find it possible to move quickly. We do not want to wait another 12 months until good legislation such as this is passed at the Northern Ireland Assembly, where it ought to be passed. We want to see it happening quickly, for the betterment of all the people of Northern Ireland.

So, I congratulate the Minister and his colleagues, especially today, on trying to take things forward in Northern Ireland and I very much hope that all of us, together, whatever our differing perspectives, can find ways of ensuring that Northern Ireland legislation is done, as much as possible, in Northern Ireland by the elected representatives there, for the betterment of all the people. Young Dáithí has given an example to us that the people who attacked John Caldwell can never give, because he has pointed a positive way forward for all of us and the next generation.

16:06

[Lord Dodds of Duncairn (DUP)]

My Lords, I too join in thanking the Minister for outlining the contents of the Bill before the House today and in condemning the awful attack on Detective Chief Inspector John Caldwell last week. Our hopes and prayers are with John Caldwell as he lies in hospital and we hope and pray that he makes a full recovery. We think of his family and we also think of those young children who were forced to witness a despicable, murderous attack. They are not the first set of children to have gone through this in Northern Ireland; many have grown up with the scars of having witnessed heinous and horrendous events. So many families were scarred, not just those who were on the end of physical attacks but those who witnessed these things. We think of those children and their families and what they are going through today.

This violence is wrong. There is no excuse. There has never been any excuse for violence. As the noble Baroness, Lady Ritchie, pointed out, it has been condemned by right-thinking people throughout the last number of decades of Northern Ireland’s Troubles, as they are euphemistically called, but we have to point out that today we are seeing a rise in people who seem to have forgotten the obscenity of violence and are now running around singing, “Up the Ra” and eulogising IRA atrocities. At the forefront of that are Sinn Féin leaders who, despite standing with other leaders the other day, continue to make a distinction. They eulogise and praise the IRA murders of police officers and innocent civilians, many of whom were killed in horrendous circumstances in front of their children. The Sinn Féin putative First Minister has recently eulogised such murders and, as long as that continues, it will set the environment and set a context in which others will follow. They will see it as legitimate to carry out this kind of violence. So we need to see an end to this eulogising of violence. It has always been wrong, there have never been circumstances in which it was justified, and Sinn Féin, if it really wants a shared future and if it really wants respect when it talks about human rights, should stop praising murder and terrorism.

I also join those who have spoken of Dáithí and his achievement. I echo what the noble Lord, Lord Alderdice, said about young Dáithí and the courage and bravery of his family in carrying this campaign forward with such eloquence. Whatever our view may be on the particular piece of legislation, they have achieved an awful amount and a lot of credit goes to them. I am just sorry that there was an attempt by the Government to politicise the issue, trying to use it as a ruse to get the Assembly back, knowing full well that the legislation could be introduced at Westminster without putting the family through all of that. So I welcome the fact that the Government have taken action, just as action was taken on the energy payments which recently came to Northern Ireland. 

I hope we do not hear too much about the fact that things cannot be done in the absence of the Assembly; of course they can be done, if there is a will. This Bill proves it. A few months ago, we were here debating the Bill which put back the elections in Northern Ireland to the Assembly for 12 weeks or so. Many of your Lordships warned—I remember speeches from both the Labour Front Bench and the Lib Dem Front Bench—that it was very clear that we would have to return to this, because there was no way that the deadline could be met. The Government refused to accept that at the time; we were told, “Oh, well, you know, primary legislation will be needed and we won’t have time for that going forward”. Here we are: the legislation is before us and time has been made. I respectfully and gently urge the Government, when they are bringing forward legislation, to be slightly more open and transparent with your Lordships about the reasoning.

One of the problems we have is that the reason we do not have an Executive is the current situation regarding the protocol. Remember that the Democratic Unionist Party First Minister—who was referred to by the Minister—resigned in office as First Minister. So this has not come about as a result of the Assembly elections; this happened before the Assembly elections. The reason why we do not have an Executive in Northern Ireland is that Ministers in that Executive have to administer and implement laws handed down by the European Union which they rightly believe do damage to the union of Great Britain and Northern Ireland, and no self-respecting unionist is going to put their hand to that. The Government were given plenty of time and plenty of warning right through from early February 2021 that action had to be taken; promises were made to the people of Northern Ireland by successive Prime Ministers on the Conservative side about addressing this matter, but nothing actually ever got done.

I do recognise that we are now on the cusp of hearing about what will be revealed very soon, and we look forward to studying the detail of that. But the reason that we are in this predicament today and the reason we do not have an Executive is that it does breach the principles of democracy itself. It does breach the Acts of Union, as upheld in the Supreme Court recently; it does breach the New Decade, New Approach document, which was the basis on which the Assembly returned in January 2020; and it does breach the consent principles of the Belfast agreement, based on the consent of both unionists and nationalists. There is not a single unionist in the Northern Ireland Assembly who supports the current protocol, for the reasons I have previously outlined.

In the coming hours and days, we will see the usual spin and propaganda from many people concerning the proposals we are due to hear about and have been, as I understand it, just released. Obviously, we need to take our time to study exactly what is being said; very often when we get the legislative detail, we find that it is very different from what is portrayed, what is spun and what is the subject of much commentary. Many people told us in emphatic terms—commentators, the media, politicians and many others—that the original protocol should be accepted. But they were wrong, and today proves that they were wrong. Have we heard any apologies for that? No, of course not. The political parties in Northern Ireland—other than the unionists—all called for the rigorous implementation of the protocol, which is now fully accepted to be flawed. So unionists will rightly not be taking advice, much of it coloured by political viewpoint. We will make up our minds on what is right for the union.

However, it is deeply regrettable that the Government have brought the monarchy into this matter through the decision to have the agreement take place in the circumstances in which we understand it to have taken place. This has been warned about over a number of days; I think it is deeply counterproductive and not helpful.

There are fundamental constitutional and democratic principles at stake. Fixes and carve-outs may solve some problems today, but the danger is that if the architecture—the superstructure—of the arrangements gives primacy to foreign law, people will need to think very carefully about the future implications for the separation of Northern Ireland from the rest of the United Kingdom, including what it means for democracy. We are talking here about elections to the Assembly and its restoration. Any Assembly Member in Northern Ireland—not just unionist Members—should surely want to have the power and the basic right to say yes or no to laws that apply to their constituents. What self-respecting legislator would willingly see that handed over to a foreign entity?

There are fundamental issues at stake. Will the Assembly be able to have the final say? That is key, and we will see. The Supreme Court, as I mentioned, recently handed down a very important ruling on the way that the protocol changes the foundation Acts of Union without consent, and any new deal will need to remedy that. That is one of the tests that the Democratic Unionist Party has laid down about removing the supremacy of EU law—in fact, it is the first test. Will that be removed? We shall see, but that is key. Is it too much to ask that people in Northern Ireland have the same rights of citizenship as people in the rest of the United Kingdom? We shall see. Is it too much that we exit the EU along with the rest of the United Kingdom? Again, we shall see in a very short time.

Many who advocate for the retention of EU jurisdiction over Northern Ireland would be the first to rail against any similar arrangements for themselves. That hypocrisy is not lost on unionists. Whatever concessions from the EU, whatever improvements on the original protocol, unionists will judge any deal on sovereignty and democracy. Are our rights, as His Majesty’s subjects, equal to those of our fellow citizens in the rest of the United Kingdom? If the answer is no, we must not give up in our rightful quest and desire to have those rights fully restored.

16:17

[Lord Lexden (Con)]

My Lords, I am glad to follow that interesting and carefully considered speech by my noble friend Lord Dodds. There is widespread agreement that the interests of our fellow country men and women in Northern Ireland would not be served by another election in the present circumstances, and what is happening today must reinforce that view. This Bill is entirely appropriate, and there can be no objection to its rapid progress through both Houses. The legal position must be regularised.

But, of course, it is painful to contemplate a further period in which the Northern Ireland departments will not be under ministerial control. Northern Ireland civil servants who continue to administer departmental affairs deserve the highest praise, but as we all know, they labour under serious constraints. Policies agreed by Ministers before their departure cannot be amended; spending plans cannot be adjusted in response to changing needs. It is truly tragic and heartbreaking to hear of the ever-growing problems affecting the great public services in Northern Ireland. Hospital waiting lists spiral to extraordinary lengths, and standards in Northern Ireland’s schools—some of the finest in our country—are under severe threat.

Serious consideration should surely be given to a major programme of reconstruction and reform when devolution is restored. Would there not be merit in undertaking such a programme in close partnership with the Northern Ireland Office—indeed, with the United Kingdom Government as a whole?

Funding will, as always, be a central issue; so will the full and successful incorporation in the great public services—the NHS in particular—of all the latest digital and other remarkable advances that are transforming today’s world. I listen to what our Health Minister, the noble Lord, Lord Markham, says about the plans that are unfolding for the long-term benefit of patients in the NHS in England, and I think, “Ulster should have that, too.” Northern Ireland must enjoy the full benefits of the union, and that will not happen without a close partnership between it and the rest of the union.

The imponderable factor in all this is the attitude of Sinn Féin. There have been—and will almost certainly continue to be—great difficulties securing Sinn Féin’s successful involvement in the devolved institutions. It is shocking that a Sinn Féin Finance Minister should set irresponsible budgets that the Northern Ireland Assembly turns down. Yet it is hardly surprising. Sinn Féin’s goal is not a secure and flourishing Northern Ireland within our union, but its absorption by one means or another into another state.

Unionism, which expresses the wish of Northern Ireland’s majority, exists to stop that happening. It needs reinforcing to enable it to go on succeeding in its historic aim, so that we can continue to confound those who have said throughout my lifetime that Northern Ireland’s departure from the union is inevitable.

As someone who thinks of himself as a unionist first and Conservative second, I want to see a reversal of the betrayal that took place in 2019. Mr Boris Johnson said that there would not be a border down the Irish Sea and then created one. He presented himself as the person who would restore full sovereignty to the United Kingdom and then left one integral part of it subject to laws made in the European Union. What kind of unionist is that? Real, responsible unionists throughout the country—not just in Northern Ireland but everywhere—should look for a settlement that puts a decisive end to the weakening of the union for which Mr Johnson was responsible.

Last week, Jeffrey Donaldson said:

“The wrong deal will not restore power-sharing, but will deepen division for future generations.”


For the sake of Ulster today and for future generations in which divisions lessen and not deepen, our country needs a settlement that will, in the words of the Conservative manifesto at the last election, help sustain

“a proud, confident, inclusive and modern unionism that affords equal respect to all traditions and all parts of the community”.

16:22

[Lord Hain (Lab)]

My Lords, briefly, I support the Bill and thank the Minister for moving it. I also associate myself with the condemnation of the barbarous attack on a police officer who represents the Police Service of Northern Ireland, which is supported and overseen by every one of the main political parties, republican and unionist alike, in Northern Ireland today. The fact that it was such an indiscriminate attack on a police officer coaching children at sport underlines its seriousness.

I want to put just one question to the Minister. We have these repeated Bills in this situation. It is not easy. We have a kind of quasi-direct rule—it is not full direct rule—which represents a failure of democratic politics in Northern Ireland. Is there a case for taking the powers to the Secretary of State to authorise elections or hold them off until the political process is ready for them to take place, rather than having these repeated Bills that keep taking important parliamentary time? I should be very interested in hearing the answer to that question.

16:24

[Lord Weir of Ballyholme (DUP)]

My Lords, I join others in supporting this Bill, but particularly in adding my prayers and thoughts—and I believe that everyone in this Chamber is of a like mind—for DCI John Caldwell and his family, in connection with the despicable attack which took place last week in Omagh. It was an attack in front of children. DCI John Caldwell was making a contribution to the community and was horrendously injured. We are glad at least that he has survived this attack, and I am sure that all in this House pray for his full recovery. I join the noble Baroness, Lady Ritchie, and others, in saying not only that this is this fundamentally wrong but that violence, terrorism and the threat of terrorism have always been fundamentally wrong.

It is important that we learn the lessons of this attack. This House has spent some time dwelling on how we should deal with crimes of the past. The events last week show that crimes of the past have a deep resonance in the present and for the future. Every time a signal is sent out that in some way crimes of the past are to be treated differently from what happens this week, it gives a level of tacit approval, or at least acceptance, of what happens in future. We have seen this all too pointedly with this attack. Obviously, the police must do their job in bringing those people to prosecution. However, it is deeply disturbing that some of the suspects who have been arrested were born since the ceasefire and the Belfast agreement. There is a new generation which sees the prospect of using violence as something that is acceptable. Again, the signal was sent when we saw footage on social media of one of the suspects being arrested, in which his neighbours were applauding him as the police came to arrest him. Therefore, with regard to glorifying terrorism and how crimes are treated, we have to realise that the decisions taken have implications, not just in how we look at the past but in how we look towards the future.

As has been indicated, there are two main parts to the Bill. Dealing first with organ retention and donation, I welcomed the Government’s amendment in the other House, coming as it does after a similar amendment was tabled by the three main constitutional parties from Northern Ireland that are represented in the House of Commons. As my noble friend Lord Dodds has indicated, at one stage there was an unfortunate attempt to use this issue as some form of leverage. I am glad that has been abandoned and that the Government have seen sense by bringing those amendments forward. As my party and others have said, the key issue is: what is the route by which this can be achieved in the quickest possible fashion? It was always the case that attachment to legislation such as this was the quickest and easiest way of bringing this about.

There has never been a consensus on the broader issue of how best to achieve the maximum amount of organ donation. At one stage a few years ago, clinicians disagreed on the best way forward. I have always wanted an organ donation system which worked best, and have always been supportive of the sort of legislation that Dáithí’s law has brought about. I believe that I am the only member of this House who, in the Assembly, voted in favour of Dáithí’s law, which was supported by all the parties of the Assembly. Like many within this House, I am sure, I have a long-standing commitment to organ donation. I am an organ donor, although as years pass by the desirability of my organs may reduce—and I may not be unique in this Chamber on that. Nevertheless, taking action which has the maximum amount of help for those waiting for transplants is something which is deeply responsible, and us supporting this piece of legislation means that this is a good day. It is a tribute to Dáithí and his family, and to the work that they and others have done to bring this about.

The other aspect of the Bill relates to the date of any future Assembly elections. I welcome this as a level of common sense. I have seen that some cynical commentators have said that the Government have put this on the long finger for a year because they may be concerned about the results of an election. I scorn such cynicism, and I know that that would never have entered the Government’s minds. If it had, perhaps they would be restoring the 19th-century practice of having Parliament run for seven years, with the prospect of putting off an election—but I do not want to put ideas into any Ministers’ heads.

Nevertheless, this is a sensible measure. At a previous debate, when we were effectively renewing this on a six-weekly basis, I remember that the noble Lord, Lord Murphy, highlighted with a certain level of scepticism that, while he was in favour of the short postponement, he questioned whether it was really likely to sort everything out in such a short timeframe. I believe that he was right: giving a certain level of space is appropriate. The Government did not simply get themselves in a position where they were effectively renewing the law every six weeks, but we also had the slightly farcical spectacle of the Government wanting to take us to the nth degree prior to Christmas and threatening that an Assembly election would be called at one minute past midnight, while the time passed by. I think that the Government have learned from that mistake. It is right that we give a little bit of space to ensure that we can hopefully see a restoration of government. I agree with the noble Lord, Lord Alderdice: as much as possible, I want to see the laws affecting Northern Ireland decided in Northern Ireland. That is one of the fundamental reasons that having 300 areas of law decided not in Northern Ireland or even at Westminster but by Brussels is fundamentally wrong. That is why we need to deal with the issues in front of us.

It is useful to give a certain amount of time to resolve things. However, that is useful only if that opportunity is taken by the Government and others to resolve the fundamental problems. Undoubtedly, the poison at the heart of our political system, which has been causing instability in Northern Ireland, is the Northern Ireland protocol. Probably in the next few hours, we will see what text has emerged from the deal by the Prime Minister and the European Union, and it would be wrong to prejudge that. But it is undoubtedly the case that any deal or any other way of resolving the protocol needs to deal with the key fundamentals. It needs to ensure that there is frictionless trade between Northern Ireland and other parts of the United Kingdom, and a restoration of the UK internal market; that democracy is restored; that our equal citizenship within the United Kingdom is restored; and, above all, that the Act of Union is restored.

To some, these concerns may seem esoteric. I appreciate that there will be some in this House for whom these are not matters of great conviction. But for any of us who feel our citizenship under threat, it is not surprising why we hold this so dear. The solutions which are required go to the very core of our existence, which is why we need to see resolution of those issues. It is how some would portray some of the concerns raised by unionists—and shared by all unionists, well beyond those on these Benches from the Democratic Unionist Party—but we are not seeking some fantastical solution or indeed perfection. In those basic demands, we seek a restoration of the basics: the basic rights of the people of Northern Ireland, and what is basically required to protect our future. These are not just for today but for five or 10 years’ time and into the future. In the hope that the Government grasp that problem and come forward with solutions that deal with all those problems is the hope that we can see a level of restoration, but that can be only when those fundamentals have been directly delivered. That is what we will judge this by. I believe that it is useful that we see the Bill passed today but, as others have indicated, it is only a means to an end rather than an end in and of itself.

16:34

[Lord Sentamu (CB)]

My Lords, I have just returned from Sierra Leone as chair of Christian Aid to see what this country has achieved there. People there speak with great affection of the actions taken by the UK Government to restore peace—at an absolutely awful time, when people’s hands were being chopped off. Sierra Leone is to go through a general election. Already, there are a lot of fears, but I hope that it will progress in a way that will lead to greater and greater peace in that country.

Edmund Burke, commenting on the French Revolution, said these words:

“The only thing necessary for evil to triumph in the world is that good men do nothing.”


Whenever the Minister has commented on, or introduced a Bill on, Northern Ireland, he speaks with such candour and sensitivity. I thank him for the way in which he handles matters vis-à-vis Northern Ireland.

We have to support the Bill. Organ and tissue donations are vital because medical science has so improved. It is not on for Northern Ireland to be lagging behind the rest of the United Kingdom in this, so I hope that the Bill will get through pretty quickly and be passed.

I admire greatly the noble Lord, Lord Hain, for his work both in Northern Ireland and, more importantly, during the time South Africa was facing a bad apartheid. He resolutely wanted to see things change and improve. I congratulate the noble Lord on that. However, I am slightly puzzled by his question to the Minister around why this Bill has come here instead of the power being with the Secretary of State. My understanding of the law is this: if powers have been devolved by law, nothing can take them back unless a new law is passed. If I were in Northern Ireland, I would not want the Secretary of State suddenly being given greater powers, because it might suggest that we have not quite devolved those powers. They were devolved by an Act of Parliament, and so to intervene in any situation—because of the absence of power-sharing—requires a Bill; it can be done only by a Bill. The Minister and I are tired of hearing endless Bills, but that is the only way to do it, because the Government who are supposed to be working are not really working.

There is one more thing I want to say. When people shoot a police officer while he is training children, it leaves everybody with a chill on their back. No matter what political views you may have, I believe that violence in the end defeats those who want to go by violence. The time has come for all of that to stop. I am glad that, when I came back from Sierra Leone, I saw people protesting, saying, “We are not going back. Enough is enough.” If that is the case, I hope that the good men and women of Northern Ireland will resolve the whole question of why the devolved Government are not doing their job.

The amended protocol, of course, may not have everything in it, but I suggest that we are going towards goods coming out of Great Britain and into Northern Ireland, and vice versa, in exactly the same way, and clarification about goods that are likely to end up in the EU, where we are not in the customs union. Having been involved in the past, for a number of years, in reconciliation around the Drumcree marches, I sincerely hope that the dawn has come—although there may still be a number of questions that will not actually be resolved.

In the end, the only way to prove that a thing is good is if it works. I make a plea to my very good friends in Northern Ireland: if Sierra Leone can begin to find a way not to be ruined by tribalism—it even changed its legislation to allow a third of the people in Parliament to be women, which was not previously the case in that society—and to move forward, surely Northern Ireland ought to do better.

16:40

[Baroness Hoey (Non-Afl)]

My Lords, I add my condolences to the family of DCI John Caldwell following the terrible terrorist act last week. It is an act that has been condemned universally but sent a chilling message. Even more chilling has been the official declaration by the New IRA over the weekend that it was responsible and the warning in that message to members of the security forces that it had gathered data and that further attacks on the security forces were in the planning. It described this as a “military operation”. That is a very chilling message that we in your Lordships’ House should all be well aware of and condemn utterly.

I absolutely agree with the noble Lord, Lord Dodds of Duncairn: it is so hypocritical of the leaders of Sinn Féin to stand there condemning what happened last week and, literally two days later, attend a memorial for people killed because they had been involved in shooting policer officers. Let us not think that somehow the leaders of Sinn Féin have the moral superiority that they sometimes try to put forward.

I am very pleased that Dáithí’s law has come through. As I said in my last contribution, I am an integrationist and believe that Northern Ireland should have been added when the organ Bill was going through Westminster. So many things happen where it would be much better if the decision could be taken in the Houses in Westminster. I hope there will be a new Assembly at some stage before next year, when this legislation will come into force, but I also hope we will be able to see that an awful lot of things could be done here.

As everyone knows, we are here only because, long before the election in Northern Ireland last year, the Democratic Unionist Party made it very clear that it would not go back into government until it was satisfied that the problems with the protocol had been fixed—the protocol that so many other parties in Northern Ireland said had to be rigorously implemented. Of course, now they have a very different attitude, which I welcome.

The seven tests that the DUP put forward before the last election were not just plucked out of the air but grounded in promises already made in one form or another to the people of Northern Ireland by various Ministers and Prime Ministers in government. Sitting here, we do not yet know the exact details of the arrangements made today and the deal that has been coming for so long and has finally, apparently, been signed today. But it is worth reminding your Lordships’ House what those seven tests are and that they have not been just plucked out of the air, as I said.

As a staunch loyalist, I am deeply saddened by the fact that the President of the European Commission and our Prime Minister have chosen today to bring about this cup of tea with His Majesty the King. I think that is a deliberate act of the Prime Minister, which presumably his advisers and he thought would be welcomed by the loyal people in Northern Ireland. I have to say that it is misguided. As the former First Minister in Northern Ireland, the noble Baroness, Lady Foster, said today that it is a “crass” act. It was very mistaken of our Prime Minister and he will live to regret that, whatever happens to the deal today.

I would like to go through the seven tests quickly and without much detail. The first and most important is the constitutional issue of the Act of Union. Any deal must fulfil the guarantee of Article 6 of the Act of Union. It is not an ordinary statute; it is a constitutional statute which created the United Kingdom. It makes it clear that everyone in the United Kingdom is entitled to the same privileges and is on the same footing as regards goods in either country and in respect of trade in the United Kingdom. We know that that is no longer the case, because of the protocol.

The second test is that any new arrangements must avoid any diversion of trade. We have seen the diversion of trade that has been taking place. In fact, so much diversion of trade has taken place that Article 16 of the protocol could have been implemented and was said to have been broken over a year ago. If that had happened then, we might not have had to spend so long on this as we have over the last year. That is a very important test; will it be changed?

Thirdly, it is essential that any new arrangements do not constitute a border in the Irish Sea. The Secretary of State said on many occasions that we need new arrangements to see that that border disappears. I know that there has been talk of green and red lines. If a business in Bristol is trading with Belfast, it has to do exactly the same thing and have exactly the same issues as it would if it were dealing with Glasgow, for example, or Cardiff—no difference. That is another crucial test. We will see whether the green lanes and the dropping of the word “customs” is somehow meant to make us all feel that everything will be okay.

The fourth test—I have nearly finished—must give the people of Northern Ireland a say in the making of the laws which govern them. I expect there will be some compromise that says that the Executive in Northern Ireland will be involved in some way when new laws come in from the European Union to Northern Ireland, but if they do not have a veto, they are worthless. That is another important test.

Fifthly, the new arrangements must result in

“no checks on goods going from Northern Ireland to Great Britain, or from Great Britain to Northern Ireland”.

That is exactly what the Prime Minister said on 8 December 2019. We will see how that ends up after today.

Sixthly, the new arrangements should ensure no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless agreed by the Northern Ireland Executive and Assembly. That must be on a cross-community consent basis. Everything else in Northern Ireland, because of the Belfast/Good Friday agreement, is cross-community consent. Suddenly, the Government changed that to make it majority consent—we cannot have that.

Finally, the seventh test is, again, very important. New arrangements must

“Preserve the letter and spirit of Northern Ireland’s constitutional guarantee”,

as set out in the Belfast/Good Friday agreement, by requiring, in advance, the consent of a majority of the people of Northern Ireland

“for any diminution in its status as part of the UK”.

That is crucial too; we have already seen the status change and go against the Belfast agreement, which is why the late Lord Trimble said that the Belfast agreement had been broken by the protocol.

While I accept that this legislation needs to go through and hope that it will not be necessary for it to come back again in a year, I agree with those who said that, if the Government had listened more quickly, they could have put this through right at the beginning and not had this nonsense of the Secretary of State coming over, threatening people that there would be an election and then going back on it as we all knew he would have to do. Let us make sure that this does not happen again.

Finally, I ask noble Lords what other country in the world would be in the middle of signing off a deal with a foreign body—the European Union—to talk about getting control over a part of its own country back from that body. What other country would have allowed that to happen in the first place? We have an opportunity now to change that and make it last. If not, if the deal is not satisfactory, there will be no devolution. If there is no devolution, we will be back discussing this time and time again, and any deal that the Prime Minister thinks that he has signed off today will not last.

16:51

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I thank the Minister for his introduction to this legislation and agree wholeheartedly with his opening remarks concerning the murderous attack on DCI John Caldwell. The attack happened in Omagh, and he came from Beragh. I represented that area for 14 and a half years. I am thankful that his life may have been spared but it is tragic that, we are told, he will have life-changing injuries if he comes through and survives. We extend our good wishes and earnest prayers to John and his wife and family. We thank God that his little boy was spared; however, he was not spared the horrors of watching his father being gunned down in front of his eyes.

While I welcome the fact that five leaders at Stormont stood with the chief constable in condemnation of this dastardly, despicable attempted murder of John, it is sad, and has to be condemned that Sinn Féin yesterday honoured the 35th anniversary commemorating Brendan Moley and Brendan Burns, who were on a mission to murder members of the security forces. With one side of the mouth they condemn, then their actions prove that their hearts have in reality not changed. To move forward in Northern Ireland, a big step will have to be taken in proving to the people of Northern Ireland that Sinn Féin has completely turned its back on its terrorist past.

It is also regrettable that, on this day, His Majesty has been brought into the situation concerning the discussions between the European Commission President and the Prime Minister. This was a cynical act by the Government and has certainly done nothing to enhance their reputation among the unionist population of Northern Ireland, who are loyal citizens and subjects of His Majesty the King.

In many ways, this debate is overshadowed by the other developments happening today. As I said, the Prime Minister and the European Commission President are meeting and we are told that they have signed off a new agreement on the protocol. Yet they did so without the elected representatives of the people of Northern Ireland having seen it. They have not learned the lessons of the past. The DUP will not be blackmailed or cajoled by anyone into accepting any deal that is not in the best interests of Northern Ireland and does not fulfil the seven tests set out by our party. These tests are grounded not in a unionist wish list but in promises that have been given to the people of Northern Ireland. For us, the stakes could not be higher, as the protocol that is already being operated poses the greatest threat to the integrity of the United Kingdom and Northern Ireland’s part in it.

I will wait for the apology that will be forthcoming from Sinn Féin, the Alliance Party and the SDLP, who called for the rigorous implementation of the failed protocol, which they now acknowledge had to be done away with or replaced by another agreement. Our party is not out to enhance the credibility of the Prime Minister, the Secretary of State or indeed anyone within the unionist family. All along, our genuine concern is for the future well-being of the people of Northern Ireland. It seems that all efforts are being put into trading matters. These are indeed very important for the prosperity of Northern Ireland businesses but there is a vital constitutional matter, which must be faced up to honestly and honourably, concerning who governs us. Northern Ireland has in effect been left in the single market for goods and is still bound by many EU regulations and subject to a foreign European court. We are being treated differently from the rest of the United Kingdom; no real unionist can accept the people of Northern Ireland being treated as second-class citizens within our kingdom. The Minister should not be surprised that the Assembly has not been able to function over the past year when, through the protocol, the fundamental consent principle has been removed.

We cannot judge what this so-called deal will or will not hold but the protocol presently being operated violates the Belfast agreement and its commitment to uphold the rights of the people of Northern Ireland to

“pursue democratically national and political aspirations”

with respect to all the laws to which they are subject. The Assembly was brought down because of the democratic deficit, where the protocol stripped the people of Northern Ireland of their rights in relation not only to 300 laws but to 300 areas of law to which they are subject. Currently, 670 laws have been imposed, and the number is rising all the time. This constitutes an attack on other legal protections, such as Article 25 of the International Covenant on Civil and Political Rights, and would be wrong whether or not the Belfast agreement existed. It is deeply offensive when we are being told daily that the Belfast agreement is considered one of the most famous treaties in the world. Indeed, many of our laws are being forced upon us, having been decided in Brussels, without being scrutinised by our Members of Parliament at Westminster. If the past 50 years teaches us anything, it is that, if political arrangements are to last, they require support from right across the community.

I was somewhat disappointed by the threat, as it were, from the noble Lord, Lord Alderdice, to the unionists: “If you do not accept this, remember, you are going to be governed by Dublin”. The noble Lord was a Member of the Northern Ireland Assembly many years ago. He was elected by the people of Northern Ireland then, before he left the Province. I suggest to him that he ought to know better than to threaten the unionist population with Dublin rule if they do not abide by what has been decided for them.

I have no doubt that the great and the good, Uncle Tom Cobley and all, will be wheeled out to sell any deal whether it satisfies genuine unionist concerns or not, but that will not move my party from faithfully adhering to our legitimate and stated tests. I will not prejudge what the Prime Minister has to say but any deal must fulfil the guarantee of the sixth article of the Acts of Union 1800, which requires that everyone in the United Kingdom is to

“be entitled to the same privileges and be on the same footing, as to”

goods in “either country” and in respect of trading in the United Kingdom. Under the present protocol, this is clearly not the case. It will take more than words at a press conference or an address to Parliament to convince the people of Northern Ireland because it will be of vital importance that, on the constitutional position, the unionist population study carefully the actual text of any agreement.

I will not say that we will be served up with a bowl of fudge later on tonight, as in the past, but the unionist people need clarity. That is why our legal experts must scrutinise every line of the deal. There cannot be a restoration of the Assembly at Stormont until the unionist community is satisfied that there is integrity in the deal. We are certainly not going to allow any politician to pull the wool over the eyes of the people of Northern Ireland. We will look the people of Northern Ireland in the eye and in the face; if it is right for Northern Ireland, we will agree, but if it does not fulfil the seven tests—especially the constitutional test—that cannot be right for the people of Northern Ireland.

We wait to see but, in the meantime, we have the executive formation Bill. It is essential, to allow the political parties to carefully consider the way forward, to have that legislation passed in this House.

17:02

[Lord Morrow (DUP)]

My Lords, we are here to debate a Bill that is concerned with the formation of a new Executive. While we can talk about changing the date of the next election, which essentially puts back the formation of a new Executive, we should be mindful of what needs to happen so that an Executive can be re-formed. The truth is that we would have a functioning Northern Ireland Executive at the moment if it were not for the Northern Ireland protocol, which some called to be fully implemented.

In engaging with the protocol, we have to understand that it is first and foremost not about the border but about what creates the border: a legal regime in Northern Ireland that is different from the rest of the United Kingdom and, critically, that is imposed on Northern Ireland by a polity of which it is not a part and in which it has no representation at all. In that sense, before anything else, the Irish Sea border is a border of disfranchisement.

The people of Northern Ireland can no longer stand for election to make the laws to which they are subject in 300 different areas. Let me be clear: I am talking about not the imposition of 300 statutes over the heads of the people of Northern Ireland, which would be monstrous, but the imposition of multiple laws in 300 areas. As things stand, as has been said, 670 new laws have been imposed on us. That is after just two years and two months; the figure will just go up and up. Unless the United Kingdom wishes to turn its back on any conception of British values and a commitment to democracy, which would be deeply damaging not only to Northern Ireland but to the entire United Kingdom, this is plainly completely unsustainable.

The essence of citizenship in the United Kingdom is the right to stand for election to make all the laws to which you are subject and/or to vote for a fellow citizen to represent you in this regard. The relationship between the citizen and the citizen-legislator is all-important. Our democratic traditions mean that citizens can engage with their representatives in the making of the laws to which they are subject and the legislator can shape the laws, mindful of the needs of their constituents. The legislator can move amendments and, if he or she persuades Parliament, the law can be changed. This is a central ingredient of what it means to be a United Kingdom citizen, yet this right has been subject to radical debasement in Northern Ireland thanks to the Northern Ireland protocol. This cannot be allowed to continue.

I read in the Times this morning a suggestion that Stormont should be given the ability to reject legislation that it does not like—as if that was the answer. It is not in our political tradition. Our political tradition is not one which infantilises its citizens such that they are told they are no longer mature enough to make the laws to which they are subject; instead, they will just have to make do with a right to reject legislation, which others make for them, if they do not like it. Could anything be worse? How can we countenance such an arrangement after years of exercising the right to make the legislation to which we are subject? There can be no Executive unless and until we are afforded a voice in the making of the legislation to which we are subject. That has defined the United Kingdom as a polity and is enjoyed by the people of Wales, Scotland and England. Northern Ireland will not accept anything less.

17:06

[Lord Browne of Belmont (DUP)]

My Lords, I join with noble Lords who have condemned the attempted murder of Detective Chief Inspector John Caldwell. I trust that he will make a speedy and good recovery. This debate occurs at a pivotal moment for Northern Ireland and the United Kingdom as a whole. We have been reminded again today by my noble friends that, if not for the imposition of the Northern Ireland protocol, we would not be debating this Bill in your Lordships’ House.

I support the Bill because it is a sensible and measured response in the current circumstances. I also welcome the Government’s decision to bring forward the amendment to address organ donation. This is an incredibly important cause, and it is right that it progresses here. I commend the Minister and the Government for their work in making this possible. I join other noble Lords in paying tribute to the efforts made by young brave Dáithí, his parents, family and friends and, in particular, Fearghal McKinney and Denise McAnena from the British Heart Foundation. They have worked very hard to enable this legislation.

There are over 300 areas of law, such as our ability to trade with the rest of the United Kingdom, which are now determined by the EU. These regulations and diktats have been imposed on Northern Ireland by Brussels without any say or scrutiny. These laws can be amended and will continue to be imposed on Northern Ireland. In all decisions, the European Court of Justice will continue to be the ultimate arbiter on all protocol-related trade disputes. No unionist could countenance a scenario in which UK law is secondary to EU law in Northern Ireland. In England, Scotland and Wales, UK law is supreme. Why should this be any different in Northern Ireland?

As things stand, Northern Ireland is semi-detached from the rest of the United Kingdom, subject to ever-changing diktats being made elsewhere and with no say over them, as I have said. Is it fair that manufacturers and producers in Northern Ireland should continue to operate under a different set of regulations and guidelines to their counterparts in mainland Britain? Continued divergence and regulatory differences will continue to create new hurdles and new sets of everyday problems for producers and manufacturers in Northern Ireland. Why should these business owners be punished purely for sharing a land border with a foreign state?

In a UK context, if Northern Ireland is still left behind and solely subject to the EU’s customs code and EU law, regrettably, very little of constitutional significance will have been achieved. Any arrangement or deal with the European Union that fails to achieve the removal of the supremacy of EU law from Northern Ireland will fail to restore the constitutional integrity of the United Kingdom. To date, the implementation of the Northern Ireland protocol has cost £506 million. Specifically, Treasury figures confirm that the trader support service, a by-product of the protocol that helps companies to deal with its additional paperwork, has cost the taxpayer £318 million in just over two years—that is £436,000 per day. This could be invested elsewhere in Northern Ireland: in health, education or roads. Recently, noble Lords discussed cuts to the Northern Ireland budget—yet we were able clearly to point to hundreds of millions of pounds-worth of bureaucracy to implement the protocol. What was true in 2022 is true in 2023: transformative investment should be saved for schools, hospitals and roads in Northern Ireland.

As I have said in your Lordships’ House previously, I would prefer Stormont to be up and running again as soon as practically possible. However, the institutions at Stormont cannot work without the restoration of the delicate political balance negotiated over many years. No unionist supports the protocol or the supremacy of EU law. No one who uses the label “unionist” could sign off on any arrangement that does not respect the supremacy of UK law and the constitutional integrity of the United Kingdom. I urge the Minister and the Government to recognise this.

As it stands, Northern Ireland remains in limbo and, unlike the rest of the United Kingdom, it is ultimately still bound to decisions made by politicians in Brussels and the European courts. A Northern Ireland left behind was not what the people in any part of the United Kingdom assented to in 2016. I am sure that noble Lords will agree that the best outcome is for Stormont to get back up and running. To get to that place, we must restore the integrity of the UK internal market as urgently as possible. Northern Ireland’s constitutional position and arrangements must be respected. Such uncertainty and disruption are unwelcome—the people of Northern Ireland need these issues to be resolved, and I regret that we are not at that point yet.

No matter what has been achieved by the deal today, Northern Ireland will still be in the single market, subject to EU rules and the European court. Does this protect the sovereignty of Northern Ireland? Anyone who cherishes our historic union must view any new deal with extreme caution.

17:13

[Baroness Suttie (LD)]

My Lords, I also thank the Minister for his clear presentation of the Bill. I utterly condemn the shooting and attempted murder of Detective Chief Inspector John Caldwell in Omagh, a community that has already suffered so much pain and loss. As the joint statement from the political leaders said so powerfully, there should be

“absolutely no tolerance for such attacks by the enemies of our peace.”

From these Benches, we commend the continued dedication of the PSNI and wish John Caldwell a full and speedy recovery. Our thoughts are with his family at this very difficult time. That appalling act last week also served to remind us just how fragile the peace process is and that it should never be taken for granted. As the noble Baroness, Lady Ritchie, said, it was none the less encouraging to see how quickly the political leaders in Northern Ireland came together and united in condemning this truly awful and barbaric act.

As my noble friend Lord Alderdice said so movingly in this speech, we congratulate Dáithí and his family on their remarkable campaign that has led us to this point. I also thank the British Heart Foundation for its support. Although it is very much to be welcomed that the Bill has facilitated, finally, the introduction of Dáithí’s law, we should not forget that this should have been happening in the Northern Ireland Assembly, which brings me back to the primary purpose of the Bill: trying to deal with the consequences of the ongoing absence of a Northern Ireland Executive and Assembly.

From these Benches, we support the Government on the Bill. We think that it is the right thing to do, but we deeply regret that it is once again necessary. It is right to give time and space for a resolution to be reached without the inevitable heat of an election campaign, but we hope, as others have said, that the Executive and the Assembly are back up and functioning long before the deadline contained in the Bill. We have had so many debates on the situation in Northern Ireland recently, but almost no matter what subject we are debating, we always end up looking back at the protocol. Today there is obviously a very different background to our debate, and, clearly, we all have to examine the proposals announced today in detail.

Since the referendum in 2016, at times we have seen ideology dominate our politics across the United Kingdom at the expense of finding pragmatic solutions to the situation in which we find ourselves. The unionist population was treated very badly, perhaps most of all by the former Prime Minister, Boris Johnson, who ignored political realities and complexities in Northern Ireland for his own political ideological purposes. In that regard, I very much agree with the comments made by the noble Lord, Lord Lexden.

I worked for nearly 10 years in the European Parliament—mostly for an Irish politician, as it happens—and I know that, if you have a positive working relationship based on trust with key players in the EU, you can always find pragmatic solutions to problems and issues. For my speech this afternoon, I had prepared a set of remarks on the two parallel democratic deficits currently faced by Northern Ireland because of the protocol and the absence of a functioning Assembly and Executive, but, given the circumstances and the announcement of the deal today, I shall limit myself to a direct appeal to all parties in Northern Ireland. There was a problem with the protocol—everyone accepts that—and the Government and Brussels have listened. The deal may not be perfect, and we all need to look at it in detail, but for the sake of the people of Northern Ireland, get the Assembly and the Executive back up and running and, if necessary, change and improve this deal from within.

17:17

[Lord Murphy of Torfaen (Lab)]

My Lords, this year is of course the anniversary of the Good Friday agreement, but, tragically, it is also the anniversary of the Omagh bombing. Twenty-five years ago, it fell on me to visit that town three days after the bomb went off, and I had to talk to the parents of children who had been massacred in that appalling event. It was something of unparalleled wickedness. In many ways, what has happened to Detective Chief Inspector Caldwell is a terrible echo of that: it was cowardly and wicked and has left a family in ruins. I am sure that all of us in this Chamber share the views said collectively in today’s debate.

On a much happier note, the organ transplant part of the Bill is to be very warmly welcomed. As my noble friend Lady Ritchie said, 146 people in Northern Ireland are waiting for a transplant, including Dáithí, after whom this law will be named. I congratulate the Government on moving so very quickly on something which has complete and unanimous support, not only in this House but in Northern Ireland.

Of course, we support the Bill. As the noble Lord, Lord Weir, reminded me, I said a few months ago that the timescale that the Government gave themselves was far too tight, that it was not going to work and that it would have been better if we had had a much longer period, to which the Bill now agrees, at an earlier date, but we support it. It has to be done, and I just hope that it is unnecessary in many ways and that we can have a functioning Assembly, Executive and all the other institutions of the Good Friday agreement up and running well before January next year.

Some weeks ago, the Belfast Telegraph published a list of decisions have been held up in Northern Ireland because they have no Government and no Parliament. Thirty-nine major issues were identified, and I will just mention a few of them: services for oncology; services for breast cancer; an environment strategy; sign-language legislation; independent living funds; funding for victims payments; a strategy for refugees. This is all against the difficult financial background throughout the United Kingdom and the need for ministerial decisions. Civil servants in Northern Ireland, however good they are—and they are good—cannot ultimately make decisions in a democratic way on behalf of the people of Northern Ireland. They cannot set their priorities. They cannot make decisions that properly should be made by elected politicians.

Of course, the DUP is right that there is a democratic issue, so far as the protocol is concerned, but there is a democratic deficit equally as big, if not bigger, in not having an Assembly and an Executive. When we say that the Good Friday agreement is invalidated, violated, because of the protocol, it is the same issue that violates the Good Friday agreement with regard to the institutions. The agreement is violated by the absence of an Assembly and an Executive and by north-south bodies as well as east-west institutions. You cannot pick and choose which bits of the agreement you want; you have to look at it as a whole.

I fully understand the problems that the Democratic Unionist Party highlights and the issue of being part of a single market without any say about what the laws are going to be. Of course, we understand that, but which is the greater? I have just outlined a few of the issues that cannot be discussed or decided in Northern Ireland without a Government. What bigger democratic deficit is there than no Government at all? There is none in Northern Ireland and no Parliament. There is nowhere for views to be expressed. However good Dáithí’s law is—and it is good—it is not the place of this Parliament to deal with the domestic issues that were agreed in the agreement and the referendum 25 years ago to be for the people of Northern Ireland themselves.

The other issue is that the people of Northern Ireland do not simply consist of unionists, though the unionists have a very valid point. I will say it again: I accept it, but 56% of people in Northern Ireland voted to stay in the European Union, and I assume that those people actually agree with parts of the protocol—not all of it, but parts of it. In other words, in order for success to be had, you have to compromise. You have to compromise between nationalists and unionists. That was the genius of the agreement 25 years ago.

I do not know what is in the protocol. I have had a little look on my phone now and again during the course of the debate. There are some very interesting things, and I actually congratulate the Prime Minister on what he is trying to do. The protocol was the creature of a previous Prime Minister. It is Boris Johnson’s fault—no Boris Johnson, no protocol—but now the current Prime Minister is doing his best to try to ensure that we can overcome this issue. I will just take one example that I have looked at on my phone, the Stormont brake. There is likely to be, in this agreement, a measure by which the Assembly in Northern Ireland can reject laws from the EU. If they can reject laws from the EU, I suspect that that is a major development in the situation with regard to the protocol that the Prime Minister and the European Union have agreed.

It looks to me like a genuine attempt to solve the issue. It is not just about President Biden coming across to Northern Ireland in April; it is not just about celebrating the 25 years; it is about ensuring that public services operate in Northern Ireland, full stop. They are not operating at the moment, not properly, so at the end of the day, the people who matter are not us: the people who matter are the men, women and children who live there. Nearly 2 million people rely on the Assembly and the Executive for the quality of their life; therefore, those institutions must be restored and this, I believe, is a genuine attempt to do precisely that. It has to be a compromise, I just hope that in this space, which I understand the Prime Minister is suggesting should be made available for everybody to look at the detail of this agreement, all of us will look at it very seriously and, when we do, think not of ourselves but of the people of Northern Ireland.

17:26

[Lord Caine (Con)]

My Lords, I am very grateful, as always, for the contributions on the short Bill before your Lordships’ House this afternoon. I thank noble Lords at the outset for their unanimity in condemning what happened in Omagh last Wednesday evening. The noble Baroness, Lady Ritchie of Downpatrick, referred to violence never being justified and of course she is absolutely correct: paramilitary activity in Northern Ireland was never justified in the past and is certainly not justified today. I completely agree with the noble Lord, Lord Alderdice, when he refers to the threat that has been made by some on the loyalist side in recent days. Loyalist violence, or the threat of loyalist violence, should always be condemned with equal vigour as republican violence, and it is very important that we do not differentiate.

A number of noble Lords from Northern Ireland referred to the glorification of terrorism by certain parties. They will not be surprised to hear that I have considerable sympathy with that point. I was involved, a number of years ago, with framing a response to a parade organised by republicans in Castlederg which commemorated two IRA men who had blown themselves up bringing a bomb into the town in the early 1970s, so I understand the strength of feeling. I say to noble Lords that we now have a third day scheduled for Committee on the legacy Bill, and my recollection is that the amendments on glorification will be the first group that we take, so we can have a much longer discussion and debate on that issue very shortly. I sympathise with a number of the points that noble Lords behind me have made.

I turn to the Bill. Of course, there has been no opposition to it at all in the House. Almost uniquely, I think I have been asked only one direct question during the couple of hours we have been debating it. That was from the former Secretary of State, the noble Lord, Lord Hain, on taking powers. I said in my opening remarks that should the situation regarding the Assembly not be resolved, the existing powers for civil servants run out in June and we would have to make an assessment as to how we deal with that situation. It is clearly untenable, for a number of reasons that were pointed out by his noble friend Lord Murphy of Torfaen in his very powerful and typically insightful and sensible winding-up speech for the Opposition. Of course, in this piece of legislation we have tried to avoid coming back any time soon with further legislation on election timing. It is the hope of many of us that we will get back to a position where the powers in the previous Executive formation Act 2022 and the timetable in this legislation become irrelevant, because we have the institutions back up and running.

Aside from that, there was strong support for the legislation: both the provisions relating to the date of the election and, of course, Dáithí’s law. I join noble Lords in paying tribute again to Dáithí and his family. I also pay tribute to those who have been very prominent in the campaign, including my old friend Fearghal McKinney, the former party colleague of the noble Baroness, Lady Ritchie of Downpatrick, who has played a key role in all this. I bumped into him last week in Westminster and was able to talk through a number of the issues.

My noble friend Lord Lexden made a typically powerful intervention in the debate. He and I go back many years; we are a part of the Tory tradition that owes a huge amount to the late, great TE Utley in the way we have always approached Northern Ireland affairs. As ever, my noble friend’s speech was in what I might call the great Utley tradition of moderate Tory unionism. My noble friend talked about Northern Ireland enjoying the benefits of the union and questioned the widespread view that has been held over many years that a united Ireland is inevitable. I agree with him entirely that a united Ireland is not inevitable. However, the priority has to be to make Northern Ireland work; the more it works, the better that is for the union and for Northern Ireland’s position within it. He also talked about the inadequacies of the current legislation and the powers; I dealt with that point a few moments ago.

Unsurprisingly, the debate was dominated not necessarily by the provisions of the Bill but by events that have taken place elsewhere this afternoon in Windsor. We have debated the protocol many times; I have been here late at night during Committee of the Northern Ireland Protocol Bill before Christmas and I answered a PNQ from the noble Lord, Lord Morrow, two or three weeks ago. I hope noble Lords will forgive me if I do not rehearse all the arguments around the protocol this afternoon. The Prime Minister is due to make a Statement in the other place very shortly, and I would be astonished if there was not an opportunity for that Statement to be repeated in your Lordships’ House at some point fairly shortly, which will enable noble Lords to ask questions based upon actually having been able to read some of the documentation which has been published. The Windsor Framework: A New Way Forward has now been published and is available on GOV.UK.

I heard the comments of many noble Lords, and the noble Baroness, Lady Hoey, reiterated the DUP’s seven tests, as did a number of members of the Democratic Unionist Party this afternoon. It will be for them to judge whether the agreement that my right honourable friend the Prime Minister has come to with the European Commission satisfies those tests; no doubt they will want to go through with a fine-toothed comb, as is customary. For our part, the Government are confident that the agreement reached will ensure free-flowing trade by removing the border in the Irish Sea; it will safeguard Northern Ireland’s position within the United Kingdom; and it will restore sovereignty for the people of Northern Ireland through what the noble Lord, Lord Murphy, referred to accurately as the so-called Stormont brake. However, it would be better for noble Lords to listen to what the Prime Minister has to say, go through the documentation and then, of course, they will have an opportunity to return to these matters when the Statement is repeated in your Lordships’ House.

I think we all hope that the agreement that has been reached this afternoon in Windsor will provide a basis for the restoration of the devolved institutions so that we do not have to come back again to this House and debate the kind of legislation we have seen over the past number of months, and so that responsibility for the running the domestic affairs of Northern Ireland within the United Kingdom will once again be in the hands of locally elected politicians at Stormont, who are responsible and accountable to the electorate there. We fervently hope that that will happen so that we can work together. My noble friend Lord Lexden gave me a very powerful point about the United Kingdom Government and the Northern Ireland Executive at Stormont working closely together on issues of great importance, such as public services in particular—which, as the noble Lord, Lord Murphy of Torfaen, reminded us, need a great deal of attention over the coming months. If this agreement does provide the basis for restoration—I do hope it will—I think the Government will be working extremely hard with a newly-formed Executive to address those issues so that we can get on with building a Northern Ireland that works for everyone across the entire community. On that note, I beg to move.

Bill read a second time and committed to a Committee of the Whole House.