Windsor Framework (Democratic Scrutiny) Regulations 2023
(1 year, 7 months ago)
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20:03 - Division on the amendment to the Motion. - Ayes: 14 / Noes: 227 - Amendment disagreed.
Lord Caine
That the draft Regulations laid before the House on 20 March be approved.
Relevant document: 34th Report of the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, the Stormont brake is at the heart of the Windsor Framework. In the view of His Majesty’s Government, it addresses the democratic deficit, restores the balance of the Belfast agreement and ends the prospect of dynamic alignment. It restores practical sovereignty to the United Kingdom as a whole and to the people of Northern Ireland in particular.
In a democracy, people should have a say over any change to the laws under which they live but, under the old protocol, that was not the case, as noble Lords from Northern Ireland have frequently pointed out in this House. Changes to laws were automatically imposed on Northern Ireland whether it wanted them or not, and I, like many in this House, found that an unacceptable state of affairs.
The Stormont brake not only ends that situation but ensures that changes to rules and regulations have the consent of both main community designations in the Northern Ireland Assembly, asserting a fundamental principle of the Belfast agreement. The process works as follows: once an amendment to existing EU law within the scope of the Windsor Framework has been adopted, this will be notified by the United Kingdom Government to the Northern Ireland Assembly. The brake is triggered if, within two months of notification, 30 MLAs from two or more parties object to an amending rule or regulation. These MLAs can be from the same community designation so, in theory and in practice, they can come from two or more unionist parties or two nationalist parties. The exercise of the brake will require no other process and no vote in the Assembly. Once the brake has been pulled, the law will automatically be disapplied in Northern Ireland after two weeks. The EU could challenge the use of the brake only through international arbitration after the law had been suspended, where the bar to overturn it would be exceptionally high.
In our view, the Stormont brake is one of the most significant changes that my right honourable friend the Prime Minister has secured. It is a robust change that gives the United Kingdom a veto over dynamic alignment with EU rules. Just as importantly, the regulations put the democratically elected representatives of the people of Northern Ireland in charge of whether and when that veto will be used.
The old protocol had some measures aimed at giving it democratic legitimacy; for example, the Government had—and still retain—a veto over any new laws that the EU wanted to add to the protocol. However, that veto did not extend to amendments to laws that are already here. Crucially, there was no role for the Northern Ireland Assembly in deciding whether and when to use the veto. Of course, the old protocol also contained a democratic consent mechanism as a means of giving the Assembly the right to end the application of its Articles 5 to 10. Those measures are maintained in the Windsor Framework but they were not in themselves enough to address the democratic deficit, as my noble friend Lord Dodds of Duncairn and others have pointed out to your Lordships’ House many times.
To address that, the regulations will add a new democratic scrutiny schedule to the Northern Ireland Act 1998 to codify the brake in domestic law. There will be a binding statutory obligation in domestic law on Ministers to pull the brake when a valid notification is provided by 30 or more MLAs. The UK Government must notify the EU when a valid notification of the brake has been provided by MLAs. This is an important new function for Members of the Assembly. It is vital that they can exercise this new function with the right information and expertise, which is why these regulations also provide for a Standing Committee of the Assembly to scrutinise the relevant rules properly.
Some have described these arrangements as tantamount to a consultative role for MLAs. The Government do not agree. In our view, this is a robust power for MLAs to stop the application of amended rules—a power that neither the UK Government nor the EU can override provided that the conditions in the framework are met. Some have also claimed that the EU must have some means of blocking the brake. These regulations are clear that the process is an entirely internal one for the United Kingdom; the process is firmly and unambiguously within strand 1 of the Belfast agreement, relating to the internal affairs of Northern Ireland. There is no role for any institutions outside the United Kingdom, whether the EU or anyone else, to determine whether the brake is pulled. It will be a choice for the United Kingdom and its sovereign Government alone, alongside elected MLAs, whether the brake is pulled.
Some also claimed that the Government might simply ignore the brake. These regulations make clear that the Government have no discretion and MLAs cannot be ignored. Valid notifications of the brake must be made to the EU, with the subsequent disapplication of any new law automatically after two weeks.
The Government’s actions will be subject to all the normal public law principles that attach to decision-making and cannot be abused for reasons of political expediency. For the avoidance of doubt, the regulations are clear that the prospect of remedial measures by the EU cannot be a relevant factor in the Government’s determination.
It is not enough simply to allow MLAs temporarily to halt the application of a rule but to allow the UK Government simply to override them when the joint committee decides whether the rule should be permanently disapplied. These regulations go much further and provide a clear, robust, directive role to determine whether the Government should use our veto or not.
The regulations are very clear: unless there is cross-community support in the Assembly, Ministers will be legally prohibited from accepting an amended or new EU law which creates a regulatory border between Northern Ireland and the rest of the United Kingdom, except in varying exceptional circumstances. To be clear, “exceptional circumstances” means just that; the threshold is very high and any Minister invoking exceptional circumstances must be able to defend that decision robustly and in line with normal public law principles. Moreover, a Minister must account to Parliament where they have concluded that exceptional circumstances apply or where they consider that a measure would not create a regulatory border.
In the view of His Majesty’s Government, this represents one of the strongest statutory constraints on the exercise of ministerial functions under any treaty codified in domestic law. These regulations could scarcely make it clearer: the overwhelming presumption is that, unless the Northern Ireland Assembly says yes, the United Kingdom Government must say no.
Finally, as with any international agreement, if the EU considers that the UK has pulled the brake improperly, it may choose to initiate a dispute. We need to be clear that any dispute could arise only after the rules have been disapplied in Northern Ireland and that the resolution of that dispute would be for an international arbitration panel. The European Court of Justice would have no role in resolving that dispute.
These regulations also make the case for functioning devolved institutions in Northern Ireland even more compelling. These measures will become operable only once the institutions are restored. The regulations give domestic legal effect to this democratic safeguard and restore the UK’s sovereignty. Without this measure, Northern Ireland would continue to have full and automatic dynamic alignment with EU goods rules, with no say for the Northern Ireland Assembly and no veto on amending or replacing measures. That is not a situation that I can support. Should we vote on this measure, I would urge all Members of this House to back an end to that full and automatic dynamic alignment. I therefore commend the regulations to the House and beg to move.
Amendment to the Motion
Lord Morrow
Leave out after “that” and insert “this House declines to approve the draft Regulations because rather than eliminating the democratic deficit they make provision for law to be made for Northern Ireland in 300 policy areas by the European Union in whose parliament the people of Northern Ireland have no representation; because they only give the Northern Ireland Assembly the right to try to prevent the amending or replacing of EU law in relation to laws pertaining to product regulation, and give no such right in relation to other legislation in areas such as VAT, State Aid, customs, electricity etc.; because the freedom of the Assembly to try to prevent the application of changes made to EU law applying to Northern Ireland is further constrained by the requirement that the change in product regulation must have a significant and lasting effect, and even then the EU can object, sending the matter to arbitration which might find against the position of the Northern Ireland Assembly, a situation which confirms that the Stormont brake is not a veto, and even if arbitration finds in favour of the position of the Northern Ireland Assembly, the consequences of this are very limited and this highly constrained expression of democracy is subject to retaliatory remedial action by the EU; and because the requirement to subject the existing Westminster brake to an applicability motion from the Assembly can be ignored by His Majesty’s Government”.
Lord Morrow (DUP)
My Lords, when announcing the arrival in another place of the statutory instrument that is now before this House, the leader of the House described the provision as a “keystone” in the Windsor framework. This is interesting because, until February, government engagement with the problems associated with the protocol had focused almost entirely on the practical economic difficulties relating to having a customs border dividing the UK in two.
In truth, however, the democratic problem is the place to start because it precedes the economic problem. The only reason to have a border down the Irish Sea is to protect the integrity of the different legal regime in Northern Ireland that results from the imposition of a different legal order on us, in 300 different areas of law, by the European Union—a polity of which we are not part, with a legislature in which we have no representation at all. Thus the border down the Irish Sea is, first and foremost, the border of our disfranchisement before it is the border that sets us apart from the rest of the UK economically. Both result from the partial suspension of the Acts of Union.
Lord Clarke of Nottingham (Con)
Does the noble Lord accept that if Northern Ireland does not in future accept the bulk of the single market rules, it will have to leave the single market? That will entail a border between Northern Ireland and the Republic, and the end of the Belfast agreement. Is that the alternative that he is suggesting? If it is not, does he have any positive alternative suggestion that is compliant with the Belfast agreement?
Lord Morrow (DUP)
My Lords, we joined Europe as one identity. Why are we not leaving it as a single identity? Are our votes not important any more?
Lord Jay of Ewelme (CB)
My Lords, the Windsor Framework is a compromise between the United Kingdom and the European Community. As with all compromises, neither side gets everything it wants. But it seems to me that, although the Windsor Framework is not perfect, it is a distinct improvement over the original protocol. The Stormont brake we are debating is an essential part of the Windsor Framework. It, too, is imperfect, and, despite the explanations of the Government and the Minister this afternoon, it is not clear to me exactly how it will work in practice.
Among other things, it will need the European Commission to provide the British Government with the right information about legislative proposals in good time, and it will need the British Government to pass the right information to the Northern Ireland Assembly in good time. “In good time” must surely mean “before EU legislation is set in store”, so that Northern Ireland concerns can be taken fully into account when it really matters. Could the Minister confirm that that will be the case?
Can the Minister also confirm that the Northern Ireland institutions will be strengthened to enable them to carry out the proper scrutiny under the terms of the Stormont brake? That will help the committee on the protocol, and now the Windsor Framework—which it is a great privilege to chair—in our current examination of the Windsor Framework, including the Stormont brake. The committee looks forward to hearing from the Foreign Secretary shortly on that subject.
Therefore, the Windsor Framework is not perfect, and neither is the Stormont brake. There is much still to examine, and they will both, no doubt, evolve. But the great advantage of the Windsor Framework is that it not only proposes a potential solution to the intractable problems of the protocol but opens up the prospect of a constructive relationship with the European Union and its member states, and a less fractious relationship with the United States. Those are important gains that will benefit the whole of the United Kingdom, including Northern Ireland.
I note that, although the polls must be taken with caution, they suggest that majority opinion in Northern Ireland is in favour of the Windsor Framework. On the other hand, history teaches us that policies introduced in Northern Ireland without the support of all main communities may not lead to the stability that Northern Ireland needs and craves. I hope the Government can square that circle.
The Earl of Kinnoull (CB)
My Lords, a plethora of issues between the UK and the EU are currently unresolved and in cold storage due to the impasse over the Ireland/Northern Ireland protocol. If resolved, many, if not all, of these issues would give mutual benefits to both sides. The trade and co-operation agreement has 24 committees, one of which is the very powerful Partnership Council, which would approve the output of the other 23, which are staffed not by politicians but largely by officials. The agendas and minutes of those committees are public, and I have observed before that they are operational but not really operating, held back by the cold hand of the protocol impasse.
I cite one example in particular: Horizon Europe. The European Affairs Committee has been active in trying to persuade the parties of the mutual benefit of co-operation in science, research and innovation—in short, that Horizon was a win-win for both sides. In response to the committee’s March 2022 letter advancing this point, respected EU Commissioner Gabriel wrote, in April last year, that
“the current political setting of this relationship should be recalled: there are at present serious difficulties in the implementation of the Withdrawal Agreement”.
She went on to discuss the impasse:
“We look forward to a prompt resolution, and to the enhanced cooperation in research, space and other areas with the establishment of the association to Union programmes, including Horizon Europe.”
This is a polite, frank and clear expression of the wider impasse effects.
While our sister sub-committee, the Protocol on Ireland/Northern Ireland Sub-Committee, is looking at the specifics of the Windsor Framework agreement and is in the process of taking evidence, as my noble friend Lord Jay laid out very clearly, the European Affairs Committee has for a long time been well aware of the wider benefits to both sides that would accrue from the resolution of the protocol impasse. It is in that spirit that I fully support the statutory instrument and will vote against the fatal amendment.
Finally, can the Minister inform the House of what discussions are currently under way about the accession to the Horizon Europe programme?
Lord Lexden (Con)
My Lords, we should recognise that it is entirely understandable that the Democratic Unionist Party should find it impossible to support the Windsor Framework in its current form. It was betrayed by Boris Johnson in 2019, and it is natural that it should seek a complete reversal of that betrayal. In the Northern Ireland elections last year, it set out fully the tests against which it would judge any proposals to deal with the acute problems created by the Northern Ireland protocol. The party has examined the Windsor Framework carefully against its tests and concluded that it does not meet them all.
At some point, the DUP itself will be tested—at the ballot box, when the next elections take place in Northern Ireland. Those elections will show whether the party has correctly interpreted the wishes of that part of the electorate which supports it. In the meantime, the Windsor Framework will be implemented, and our country—our union as a whole—will be able to judge its efficacy. Surely that is the right way to proceed. Our Prime Minister conducted the negotiations which led to the framework with immense tenacity and skill, showing a mastery of detail that we have not seen in a holder of his office for quite some time.
Let us see what the implementation of the framework brings. It may show that further change is needed. In that case, the astute negotiator in No.10 will have further work to do. For now, let us rejoice that, surely, there are grounds for satisfaction that Northern Ireland’s union with the rest of the country is infinitely stronger than it was just over a month ago, before the Windsor Framework was agreed. It is a compromise, of course—just like the Belfast agreement 25 years ago.
Lord Hain (Lab)
My Lords, I agree with the noble Lord’s last point. I congratulated the Prime Minister on the Windsor Framework when it was discussed the other week, and I repeat now that I think it was an outstanding achievement which can lead to great progress with the European Union on Northern Ireland’s behalf. I also salute the work of the Secretary of State in that respect.
I cannot support the fatal amendment to the Motion. I supported, and continue to support, the Windsor Framework as improving and amending the protocol in a way that is beneficial overall to Northern Ireland, and as a way of making the consequences of Brexit for Northern Ireland and the Good Friday agreement less disruptive than they were always going to be. I thank the Minister for the letter he sent us a few days ago on the security situation in Northern Ireland. However, I worry about the vacuum that has opened up because politics are not functioning; when politics do not function in Northern Ireland, darker forces move in.
Having said that, a lot of the detail of the Windsor Framework is still unclear. I will ask a series of questions about it, which I hope the Minister will be able to answer. In that respect, I acknowledge the lecture by Professor Katy Hayward of Queen’s University Belfast to Birkbeck College on 23 March 2023 for raising many questions that need answering. Questions have also been raised by the former director-general of international relations at the Executive Office for Northern Ireland, Dr Andrew McCormick, in his evidence to the Protocol on Ireland/Northern Ireland Sub-Committee meeting on Wednesday 22 March. I followed the excellent speech by the chair of that committee, who conducts the proceedings with great expertise and empathy among a very diverse series of members.
Dr McCormick pointed out that the requirement under this statutory instrument for a Northern Ireland Assembly cross-community consent vote on applying new EU law in Northern Ireland could enable a minority in the Assembly to take Northern Ireland out of the EU single market if the EU deemed the law essential to its functioning but the Assembly minority objected. Can the Minister say whether he agrees with Dr McCormick and, if he does not, in what way Dr McCormick’s view might be wrong?
Can the Minister assure us that the potential ramifications of this statutory instrument have been properly considered, and in full? Professor Hayward has asserted that the operation of the mechanisms it contains could reshape the legislative landscape in Northern Ireland, increase tensions between the parties in the Assembly, hinder the effective operation of the institutions of the Assembly and their public accountability, and bring some disturbance to relations across all three strands of the agreement, as well as United Kingdom-European Union relations.
Lord Robathan (Con)
My Lords, there is a much-overused and rather ghastly cliché: “we are where we are”. As a unionist who absolutely supports Ireland in the union and as somebody who voted to leave the European Union, it frankly sticks in my craw that the EU maintains some rule over the United Kingdom. This is not what people voted to leave the European Union for and, frankly, it shows dogmatic behaviour by the European Union which I think is unfortunate; indeed, unfriendly. However, we are where we are.
I congratulate my right honourable friend the Prime Minister on his great skill in negotiation; he has done an extremely good job. The Windsor Framework is not perfect—goodness, it most certainly is not, and we have heard from all sides of the House what is wrong with it—but I really believe that it is a good step in the right direction. It is helping our relations with the European Union, which have been somewhat fraught, shall we say, and it is calming people down. As the noble Lord, Lord Hain, has just said, it appears that the majority of people in the Province wish it to succeed. I for one will therefore certainly back this statutory instrument.
Before I sit down, may I just nail one canard? The idea that there will be a physical border on the island of Ireland is for the birds. For those who know Northern Ireland, there are some 320 crossing points—I may have got that wrong; if so, somebody will correct me —and my colleagues in the British Army, when I was serving there, spent a great deal of time trying to stop the crossing points, without any success whatever. It is the same now: there is smuggling across the border as we speak. Before either the Republic or we joined the EU, there was no border. We do not want to put up a border. If there were to be one, it would have to be put up by the Irish or by the EU, and it will not happen.
This framework is of course not perfect—in fact, it is quite a lot less than that. However, it is a good step in the right direction and for that reason, I am sorry that the DUP has put forward a fatal amendment to the Motion. I understand why it has done so, but we would do better to support the framework, because it is a good way forward.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I support the Windsor Framework. I have some issues with the Stormont brake, but this discussion today has centred on the principle of democracy. I am opposed to the amendment in the name of the noble Lord, Lord Morrow, supported by his colleagues, because explicit and implicit in that amendment, and in our discussions today, is the principle of democracy. I live in Northern Ireland, I am a former public representative in Northern Ireland and I am a democratic Irish nationalist who obviously wants to see a new Ireland, but having said that, I believe that for that to happen there have to be functioning institutions under the Good Friday agreement.
The greatest lack of democracy in Northern Ireland at the moment is the lack of an Assembly, an Executive, a North/South Ministerial Council and a British-Irish Council. I implore the DUP to please get back into government and make sure that the Windsor Framework can work, because the people of Northern Ireland currently face very high waiting lists for health, a crumbling education system and budgets that have not been defined because there is no Government in place. For that to happen, there need to be an Executive and an Assembly.
Please, listen to the people, because the vast majority of people in Northern Ireland support the framework. They want to get on with business. I can say that the many people that I talk to right across the political spectrum are sorely fed up with the lack of political institutions and the fact that nobody can seem to make a decision. It is left to the Secretary of State, who is with us today, to make decisions in relation to budgets and put that type of responsibility with senior civil servants and Permanent Secretaries in government departments, who do not like that role because they could be forced into making political decisions.
I shall move on and ask the Minister, the noble Lord, Lord Caine, a few questions about the Stormont brake. I have some issues with it because I feel that there is an inbuilt minority veto that could put another type of brake on political progress and on delivering for our economy. I seek assurances today that the Stormont brake could not prevent north-south institutions and bodies working. While the Explanatory Memorandum says that there will be no impact on strand 2, and this is solely the responsibility of strand 1, there is no doubt that there could be EU directives that could have a north-south implication. Therefore, I ask the Minister to outline how it safeguards that in its operation.
Secondly, how will the principle of consent, as enshrined in the Good Friday agreement, which is the constitutional guarantee, be honoured, be accepted and be respected?
Thirdly, in relation to one aspect of the Stormont brake, the Windsor Framework Democratic Scrutiny Committee, I have read the information and the papers from Professor Katy Hayward, who, as my noble friend Lord Hain said, made a speech last week at Birkbeck College. Her paper clearly states that there is no clear role for the Democratic Scrutiny Committee with respect to the pulling of the Stormont brake. Therefore, is it involved in engagement, or is it like a normal scrutiny committee, in terms of taking evidence from stakeholders, from other politicians and from Ministers? Is that the committee’s role? I think we need to see some leeway, shall we say, in relation to that issue.
Also, there seems to be no requirement for the Assembly to be fully functioning, although it states in the paper and in the Explanatory Memorandum that it has to be. I want to see evidence that that requires a fully functioning Assembly and Executive to take place. What is the actual process under Article 13(3a) in relation to that?
I am happy to support the framework. I am definitely opposed to the amendment under discussion today, because the greatest democratic deficit for the people of Northern Ireland is the lack of political institutions. Notwithstanding my queries and concerns regarding the Stormont brake, I want to see the framework implemented, because I believe that is the key that will unlock the path to the restoration of political institutions in all the strands of the Good Friday agreement and the Northern Ireland Act. I believe that this needs to happen quickly and promptly, and I urge the DUP, which is currently sitting outside those democratic institutions, to quickly see that path to helping the restoration of much-needed institutions in the interests of the wider public in Northern Ireland, whether it is in terms of health, education, the economy or infra- structure.
Lord Browne of Belmont (DUP)
My Lords, I support my noble friend Lord Morrow’s amendment to the Motion. He has forensically analysed the Windsor Framework and the protocol, leaving one in no doubt that the documents are seriously, if not fatally, flawed. Although limited progress has been made, regrettably it is clear that many fundamental problems remain. As things stand, the Windsor Framework does not make substantive legal changes to the Northern Ireland protocol and the supremacy of EU law over many aspects of life in Northern Ireland.
This deal and the framework make only a few limited changes to the Northern Ireland protocol. The Windsor Framework and the withdrawal agreement itself do not permit any changes to “essential elements”. Claims have been made in the other place and in the media that these changes amount to substantive legal changes and it has been suggested that this is a brand-new structure. This is simply not correct.
Fundamentally, the root cause of the problems with the Northern Ireland protocol and these arrangements is the continued application of EU law in Northern Ireland, in particular that it covers all manufacturing of goods in Northern Ireland regardless of whether they are sold in the United Kingdom or to the European Union. The vast majority of all goods manufactured in Northern Ireland—£65 billion out of the £77 billion of goods manufactured—is sold here in the United Kingdom.
The complex easings referred to in the Windsor Framework are limited in number. They will not directly help small or medium-sized traders and in no way do they resemble a “green lane” in which it is claimed— I stress that word—that burdensome checks would no longer be required. These very limited easings are not available to all businesses. The schemes will remain incredibly complex and, crucially, the EU would retain the right unilaterally to withdraw its trusted trader system underpinning the so-called green lanes. To date, very little progress has been made and there remains a long way to travel.
No evidence has been supplied that the 1,700 pages of EU law have been disapplied. As we have heard from my noble friend Lord Morrow, Northern Ireland will continue to remain subject to the power and control of EU law, the ECJ and the European Commission on EU single-market laws governing the manufacturing and sale of goods in Northern Ireland. No evidence points to one EU single-market law being removed from Northern Ireland. Can the Minister publish a list of the laws that have been removed?
The Stormont brake is not a brake in any true sense of the word. It applies only to future changes to EU law and provides no right to change any part of the existing EU laws imposed on Northern Ireland manufacturers under the Northern Ireland protocol. It is of very limited application in theory and is likely to be unworkable in practice. I cannot envisage a scenario where a British Government would seek to apply it if it meant retaliatory action from the EU.
Governance in Northern Ireland must operate on the basis of cross-community consensus. As has remained the case throughout this process, there remains no consent within unionism for additional tariffs and barriers being implemented between Northern Ireland and the rest of the United Kingdom. There remains no consent for any arrangements that will see further EU regulations cause Northern Ireland to diverge from Great Britain on a range of issues. Continued divergence and regulatory differences will continue to create new hurdles and new sets of everyday problems for producers and manufacturers in Northern Ireland.
In the text of the Windsor Framework, the rights of the people of Northern Ireland under the Act of Union 1800 have not been restored. The Windsor Framework has therefore failed a key test: to legally restore the constitutional integrity of the United Kingdom. Unlike the rest of Great Britain, Northern Ireland will remain subject to the power and control of EU law. The people of Northern Ireland will have no ability to vote to change or remove the body of EU laws that applies to them under the Northern Ireland protocol, whereas in Great Britain, and in this Parliament, decision-makers will have the ability and the power to change or remove retained EU laws. If Northern Ireland citizens and businesses are to be treated as equal to our fellow Britons elsewhere in the United Kingdom, the integrity of the UK internal market must be restored.
It is quite clear that the Windsor Framework document does not provide the answer to solve this. Regrettably, we are a long way from this being acceptable to a large proportion of the population of Northern Ireland. Indeed, unless the necessary legal changes are made, and the integrity of the UK and its single market is restored, this will remain unacceptable to the vast majority of those who label themselves as unionists.
Like my noble friend Lord Morrow, I want to see Stormont restored. However, the institutions at Stormont cannot work without the restoration of the delicate political balance negotiated over many years. This will not be achieved by arrangements that do not respect Northern Ireland’s place within the internal market of the United Kingdom. I am sure noble Lords will agree that the best outcome is for Stormont to get back up and running. My party is committed to doing that, and to continuing to work with the Minister and the Government, but that work has to be about delivering on the commitment given to protect Northern Ireland’s place within the United Kingdom. Northern Ireland’s constitutional arrangements must be respected. I regret that we are not at that point yet, and therefore I support the amendment before your Lordships’ House.
Lord Swire (Con)
My Lords, one of the reasons I voted, rather reluctantly, to remain in the EU at the time of the referendum was that I could not see a way around a border between Great Britain and Northern Ireland, and the EU. I could not see my way around that for many months; indeed, when I was in the other place I tabled an amendment that I hoped would break through the logjam. It was not selected by the then Speaker, in a display of the usual lack of bias for which he was well known. Many of us were trying to navigate our way through what seemed to be an impenetrable fog and an irreconcilable series of arguments as to how we could ensure that Northern Ireland remained an integral and vibrant part of the United Kingdom while sharing a land border with a country that was not.
I have wrestled hard with this ever since. I am a passionate unionist. I believe passionately in the future of Northern Ireland being within that United Kingdom. Yet I cannot bring myself to support the fatal amendment tabled by the noble Lord, Lord Morrow. I think it is too late, and I think it is wrong. I have studied this new agreement and it is imperfect—of course it is—but, as far as I can see, it is the only way forward. I urge all those who are tempted to vote for this fatal amendment to raise their eyes a little higher and to look at the larger prize. The larger prize must be to ensure the economic prosperity of Northern Ireland and the safety of its citizens.
Shortly we will host a visit from the President of the United States, Mr Biden—a man who, like a lot of American Presidents, is extremely quick to stress his Irish ancestry and credentials. I took the opportunity of looking this up this morning; in fact, the Biden family come from Sussex. He has many Irish ancestors, as do we all, but I very much hope that he will make a speech about the future of Great Britain and Northern Ireland in Sussex at some future date. He might even know where he is in the world, unlike the Vice-President, who sometimes gets confused, as we know. When he comes to Northern Ireland, he should see a place with huge opportunity. That can be brought about only by security.
One of my concerns about this whole agreement with the EU was about the continuing role of the ECJ. That made me extremely uneasy—indeed, it makes me extremely uneasy to be arguing against the Democratic Unionist Party, which I respect hugely. I was very concerned about the continuing involvement of the ECJ. I listened very carefully to my noble friend the Minister, a man in whom I have implicit faith, not least because he was our esteemed special adviser when I was a Minister of State in the Northern Ireland Office. In that great circle of politics, here I am, a humble Back-Bencher in your Lordships’ House, and there he is, spreading his thighs across the Front Bench and dominating all who go before him—and quite right too. I ask my noble friend—and friend he is indeed—about the role of the international arbitration council and what any appeal process would be, were that council to rule against the legislation or the disagreement taken to it.
As I have said, I will never vote for anything that endangers, to my way of thinking, the future of Northern Ireland within the United Kingdom. I understand where the DUP is coming from. There are elections, and the DUP has its supporters. There is a prospect of a First Minister from Sinn Féin at Stormont and of, down the road, a Sinn Féin Taoiseach in Dublin. That is going to make Northern Ireland a more challenging and very different place. I think my friends in the DUP are slightly behind the curve in all this. They are better, more cunning and more intelligent than this, and they need to think about that prospect. They need to think about how to represent not only the unionists in Northern Ireland but those who are not unionists and want good government. I tried to be apolitical in my role in Northern Ireland as far as I could, but I am a unionist. I want to see one unionist party arguing for a modern unionist Northern Ireland within the United Kingdom.
The noble Baroness, Lady Ritchie, is right, as are others: it is absolutely hopeless to have these discussions without any sort of Government in Northern Ireland. This agreement itself says very clearly that the brake—which we have heard a lot about this afternoon—cannot become available until the Northern Ireland Executive are restored and operational; yes, that means a First Minister and a Deputy First Minister. My friends in the DUP keep on saying that they are committed to the restoration of government in Northern Ireland, and yet by tabling this fatal amendment to the Motion they would set the whole prospect of that back. They cannot have it both ways.
Lord Thomas of Gresford (LD)
The noble Lord, Lord Robathan, referred to his experience in the forces in Northern Ireland. It reminded me that when I was defending in the Brighton bomb trial in 1986, I was surprised to discover that Daniel O’Connell, the leader in the 19th century of the fight for Catholic emancipation and the scrapping of the Act of Union 1800, was, despite his nickname of “The Liberator”, dismissed as a traitor. The inspiration of the IRA was the rebellion of 1798, when Wolfe Tone and Emmet sought full independence for Ireland, with French republican support. That rebellion was a horrific episode, characterised by the dragooning of Ulster and other atrocities. I was appalled to discover that the Ancient Britons, a Welsh regiment of fencibles who were foremost in that savagery, had been raised in my neighbourhood in north Wales.
I therefore have some understanding of the deep and historic roots of the divide between the Catholic and Presbyterian communities, although not of course the lived experience of the noble Lords who are speaking in this debate. The more I come to understand the issues as a member of the Protocol on Ireland/Northern Ireland Sub-Committee, the more I am led to the conclusion that the Belfast/Good Friday agreement was something of a miracle, wrought by many across the political divide. Surely today’s politicians on all sides can emulate Paisley and McGuinness and sit together, to co-operate in government and to resolve issues by discussion and compromise.
The Windsor Framework is by no means perfect, as the noble Lord, Lord Jay, remarked. In my view, although there are many improvements in the Windsor Framework to the previous protocol, the Stormont brake is so surrounded by qualifications that it is unlikely ever to be used. It is instructive to look at what the European Commission has published in its commentary on the framework:
“The Stormont Brake is a new emergency mechanism that will allow the UK government, at the request of 30 Members of the Legislative Assembly in Northern Ireland … in the most exceptional circumstances, as a last resort as set out in a unilateral UK Declaration, to stop the application of amended or replacing provisions of EU law, that may have a significant and lasting impact specific to the everyday lives of communities in Northern Ireland.”
That is the EU view.
Thus, the Stormont brake goes only a short way to address the undoubted democratic deficit. Further, since it can be triggered by a petition of concern advanced by a minority of Members of the Northern Irish Assembly, it creates a positive Grand National of high jumps and fences which could easily lead to political conflict and a new impasse. The brake comes into play only after the 27 continuing members of the EU, having engaged in the necessary discussions and compromises needed to reach agreement, have put together a final legislative Act or regulation. It is then presented as a fait accompli to the people in Stormont.
What the people of Northern Ireland need is input into the pre-legislative discussions. But let us not despair. I believe that changes can be made without renegotiation of the Windsor Framework, and certainly without placing the protocol in the dustbin. In the same EU commentary to which I referred, the EU states that it recognises that Northern Ireland stakeholders have valuable insights to offer on Northern Ireland’s unique circumstances, and it will take into account their views in a timely and meaningful manner:
“The Commission will, in particular, be guided by the Commission Work Programme to identify specific Protocol-relevant measures for which space for intensified engagement with Northern Ireland stakeholders will be created.”
In the same spirit, the framework agreement strengthens the work of the joint consultative working group by the creation of themed subgroups, which are designed to be the conduit by which advanced notice of policy proposals in the EU will be conveyed to the UK Government.
In my view, the UK Government should now give firm assurances that a major part of the team which attends the joint consultative working group formed by the protocol should come from Northern Ireland. After all, most of the measures are concerned with devolved matters. This would of course have implications for expanding the Northern Ireland Civil Service to allow it take on such responsibilities.
Similarly, the joint committee to which the JCWG reports should have expanded representation from the Northern Ireland Assembly. Currently the First Minister and Deputy First Minister are invited to attend. No doubt they have an expert team of advisers, but token membership of the joint committee would most certainly not be enough. There must be room, where a particular measure or set of measures is referred to the joint committee, for the Minister responsible in the Northern Ireland Executive to attend as of right. The issue of who attends these committees is in the hands of the UK Government and does not require the assent of the European Commission.
The democratic deficit can never be completely resolved in the absence of a vote in the European Parliament. But the views of NI stakeholders and elected representatives can be fed in at an early stage through the revived and reformed joint consultative working group. This would give to the people of Northern Ireland not just the convoluted and clumsy mechanism of the Stormont brake but an essential and effective voice in the creation or subsequent amendment of EU measures.
Baroness Hoey (Non-Afl)
My Lords, I welcome the tabling of the fatal amendment to the Motion. At the very least, it has given your Lordships’ House an opportunity to discuss something that has been rushed through by His Majesty’s Government. I see that they are called the Windsor Framework (Democratic Scrutiny) Regulations. We are not really having much scrutiny. We have this SI on one aspect, although Downing Street said that this was the way that we could discuss the Windsor Framework. If I was going back to my days way back when I taught, I would want to start by asking how many people have actually read the detail of the Windsor Framework, and then how many people have actually read the EU legal text interpretation of it, because the two things are very different.
I must say right at the beginning that the problem with His Majesty’s Government on this issue has been that they started off by overselling hugely what was in the framework. The Prime Minister went to Northern Ireland, spoke at the Coca-Cola factory and made out as if everything had been solved; it was just wonderful. He was almost jumping up and down with delight, as has been the Secretary of State—who I am very pleased to see here listening to us today. Of course, there were all the things said in that first 24 hours: the blandness such as
“Removes the Irish Sea Border … Restores the free-flow of trade … Protects NI place in our Union”—
that was a tweet from the Secretary of State. Northern Ireland people are not stupid, and Northern Ireland people then went on to read the framework document and what the EU said and, as I said, they are very different indeed.
In his speech, the noble Lord, Lord Morrow, talked about the new issues that arose just yesterday following a contribution from a spokesman in the European Parliament. I will mention that in a moment, but I want initially—and this should be a wider debate, because that is what the Prime Minister said we would have in discussing the framework and this SI—to deal with the actual brake. I genuinely think it is a bit of a sham. It is similar to what takes place in Norway, which is not in the EU although it is aligned with it in certain respects. That measure has been invoked only once, when Norway tried to stop something called the post office workers directive. I remember being involved in helping to support people in Norway on that issue. They campaigned and worked extremely hard but, in the end, the EU set out the many penalties it was going to impose if the directive did not go through. So I do not think that anyone should think that this is a proper brake.
Even if the brake worked and was brilliant and everyone said, “There’s no problem with it”, I do not accept that we should have to have it in Northern Ireland. Northern Ireland had the same ballot paper in the referendum. We voted to leave the European Union as a United Kingdom. We joined the original common market as one United Kingdom. Why are we even having to discuss this?
It is interesting how many of your Lordships have talked about how we must compromise. One noble Lord said that we could not possibly have a border between Northern Ireland and the Republic of Ireland because it would be absolutely dreadful, and he asked what would happen if there were some kind of border. Let us think about why we say these things. We say them because the republican movement, the IRA, bombed all over Northern Ireland and on the mainland. The pro-union people in Northern Ireland did not bomb in Northern Ireland or on the mainland, although there were of course paramilitary terrorists on all sides. The reality is that we would not even be thinking of talking about some kind of structure—we do not need structures anyway; even the EU has said that a border could be invisible—yet we immediately put an Irish Sea border into our own country because there is no threat there. All noble Lords should examine their consciences on this matter in terms of what we are prepared to do. We are letting violence and threats of violence attack our sovereignty. So let us not talk about this Stormont brake as being anything other than a wonderful bit of camouflage that has been applied in the hope that it will be agreed to—as, of course, it will.
I refer again to what Bernard Van Goethem, one of the senior veterinary officers in the European Commission, said yesterday. One sometimes thinks that perhaps this is why the Government wanted to rush all this through—because so much is now coming out about what the framework actually says and does. He said that the EU has now said that new light-touch arrangements for the movement of retail food consignments from GB to Northern Ireland will not be fully implemented until SPS inspection facilities at Northern Ireland ports have been completed and audited. He told the European Parliament that officials from the EU veterinary office in Grange, Co. Meath, will carry out an audit of the facilities before the new system under the Windsor Framework becomes fully operational. He went on to say that the process to change EU law through so-called implementing Acts to facilitate the arrangements was conditional on the completion of agri-food inspection at four Northern Ireland ports. He told members of the European Parliament’s Agriculture Committee that none of the implementing acts will be adopted
“unless we are sure controls are done in a proper way … The controls currently in NI are not up to the standard required by EU legislation. We have the assurance from the UK Government that the current facilities … will be upgraded by October 2023 and that the final definitive SPS inspection facilities will be built by July 2025.”
Finally, he said that EU officials will be present to oversee the operation of border control posts where agri-food controls will be carried out under EU rules. What sovereign country would allow a foreign entity to be responsible for examining borders, checks and customs in its own country?
Lord Taylor of Holbeach (Con)
My Lords, I will follow on from the speech by the noble Baroness, Lady Hoey. I emphasise that I support the Windsor Framework; I think that it is a real and good step forward. I also share some of the anxieties that she expressed about its commercial implications.
Noble Lords will know that I have an interest: we are horticulturalists who supply quite a number of the retail outlets in Northern Ireland. I hope noble Lords will not object to me explaining that things are not as I thought they were. If noble Lords remember, I was very much relieved that we would be able to maintain our trade with Northern Ireland in seed potatoes, which are banned under EU law in European countries. I thought that the Windsor Framework would be pragmatic enough to realise that it was nonsense that we would not be able to sell them. But I now find—and I know this to be the case because it has been ratified in discussions between the Horticultural Trades Association, of which my son is a recent president, and the UK Government—that it is not possible for Taylors, my family business, to supply seed potatoes to retail outlets in Northern Ireland. They can be sold only from a grower in Scotland or the north country to a grower in Northern Ireland. The retail trade has gone completely for that particular product.
This applies to a whole series of things listed as being non-negotiable across the United Kingdom border with European Union countries. Those products include snowdrops—the noble Lord, Lord Kilclooney, will be most upset that he cannot buy these from the UK and have them delivered to Northern Ireland, even if they originated in the Netherlands at some stage or another. This is one of the paradoxes of this framework.
I hope that the Minister can say that this is not set in stone and that there will be pragmatic solutions. I do not take the pessimistic view of the noble Baroness, Lady Hoey, that this is the end of the story. This is the start of the story and is about a new relationship between us and Europe. This is why I support this statutory instrument. I regret that the only method that we have of debating the issues around this is through an amendment to the statutory instrument. That cannot be right. It cannot be in the interest of the people of Northern Ireland and is certainly not in the interest of British commercial interests in trade with Northern Ireland.
I too have known my noble friend the Minister for quite a long time and trust him implicitly, as indeed is true for my noble friend in front of me, the Minister of State for the Foreign Office. It is the Foreign Office that negotiated this agreement. I hope that this agreement can be an ongoing process and that we who are economically connected with Northern Ireland will be able to continue to trade with it.
Lord Hay of Ballyore (DUP)
My Lords, I congratulate my noble friend Lord Morrow on bringing forward the amendment to the House this afternoon.
It is perhaps good to look back at how we arrived at the situation we have; it certainly did not happen overnight. When the decision was made by the then Prime Minister, Boris Johnson, to move ahead with the Northern Ireland protocol without unionist support, a delicate balance was upset and a long-established commitment to cross-community power-sharing was disregarded. It gives me no pleasure to say that, in getting Brexit done, Boris Johnson split the UK by agreeing a border down the Irish Sea. This was a Conservative and Unionist Prime Minister, who knew exactly what he was doing.
To add insult to injury, after telling the people of Northern Ireland that having a border down the Irish Sea would be over his dead body, Boris Johnson came back to Northern Ireland and, when the business community asked him what they would do with the mountain of paperwork, do you know what he said? He said bin it or send it to him. Then we had the Secretary of State, Brandon Lewis, telling the people of Northern Ireland that there was not a border down the Irish Sea—in fact, he said that he could not see one. How ridiculous the whole situation has got in Northern Ireland.
What has happened in Northern Ireland is that there is a total lack of trust in this Government. That is the issue. After all that has happened with former Prime Ministers and Secretaries of State, there is, unfortunately, a total breakdown of trust around how we move forward. Then of course we had the leader of the SDLP out; we had Naomi Long out; and we had Michelle O’Neill telling the Government to fully implement a protocol that was destroying the economic life of Northern Ireland, as if unionist concerns did not exist.
Let us be in no doubt: we are in this unsatisfactory situation because of a failure of the Government to listen to the concerns of unionists when we were operating the Assembly. The Government just sat back and did nothing. Our party leader at the time, Sir Jeffrey Donaldson, said on a number of occasions that we could not continue in government in Northern Ireland if the Government did not do something to address the issues within the protocol. We were quite clear, as our party leader said on many occasions, that we could not stay in government. Unfortunately, neither the Secretary of State nor the Prime Minister did anything to try to resolve the issue. That was the point at which to try to resolve it—when we had the Assembly up and running. Unfortunately, that did not happen, and we are now in a total and absolute mess around all these issues.
Baroness Lawlor (Con)
My Lords, I pay tribute to my noble friend the Minister for the efforts he continues to make to promote the peace process—as he did through a number of Administrations—of which these regulations are a step. But it would be curmudgeonly not to acknowledge the efforts of other Governments in promoting the peace process, of which the Belfast agreement, which your Lordships have mentioned across the House today, was a major step.
The fact that the Belfast agreement was accepted reflected two truths. First, it was accepted across the majority of parties who were party to the sad legacy of Northern Ireland—a legacy that was a historical inevitability, perhaps. But it was also a success because it built on recognition of the constitutional status of Northern Ireland within the UK, and that that status would not be overturned except with a majority vote of the people.
We have heard today how the Northern Ireland protocol has undermined the Belfast agreement in a number of ways. It has also undermined the economic integrity of the United Kingdom and the UK’s economic area. That it was signed or reached was the result of a determined plan by the EU from 2017 to play the orange card against the green, and to use that card to undermine Brexit and its success economically and politically.
While the negotiations leading to the Windsor arrangement and the Stormont brake are to be welcomed as a step in the right direction, I do not think we should forget that the real problem remains. It is the problem of the constitutional status of Northern Ireland and its part as an integral part of the UK’s economic area. Therefore, until the protocol itself is addressed, as noble Lords have acknowledged today and have urged my noble friend to take account of, these problems will remain. I therefore urge my noble friend to do all he can to address the constitutional problems that remain within the Northern Ireland protocol so that we can move to a position where the UK and the EU are not the sole parties—indeed, not the major parties—in this arrangement and the Dublin Government and the UK Government continue the process they reached in the Good Friday agreement in 1998 without the help, for better or worse, of the EU.
Baroness Fox of Buckley (Non-Afl)
My Lords, noble Lords will remember that, in the course of debates on the retained EU law Bill, we have heard complaints from noble Lords across the House, largely from opposition parties but also from government Back Benchers, that it is outrageous to be asked to sign off legislation without a chance to scrutinise it in detail. We have been told that decisions on whether to retain or discard laws needs close parliamentary oversight and debate. I have to say that I was somewhat taken aback that, even before the publication of the Windsor Framework, the Opposition committed to supporting the Government. Since then, skeleton documentation has been enough to have politicians across all parties vote en masse for the framework, despite the fact that actually that equates to voting blind on yet-to-be-written laws that will apply to the UK that will not be scrutinised, let alone with an opportunity to be opposed, by the UK Parliament.
Today, what we have been asked to do is to nod through an agreement that allows the EU, which we have left, to draft brand-new EU laws to govern trade taking place solely within UK borders. There has been no outrage, though. We are just quite calmly accepting that the future rules on the movements of goods, plants, foodstuffs, medicines, parcels, pets and so on from Great Britain to Northern Ireland will be decided by direct regulation made in Brussels and voted on not here but in the European Parliament, all of which we will never get to scrutinise in the UK Parliament. You sort of could not make it up. It seems an ironic twist as well that the people who will have close oversight of UK laws are—wait for it—the EU. Under the framework, the EU is granted new rights through EU law to be consulted in advance on huge swathes of legislation on UK trade and tax legislation governing the UK economy, all to monitor the so-called competitive risks within the UK single market.
I think that we might suggest that something has gone a bit awry here. Certainly, the process should be scrutinised and our own process should be scrutinised. In this place, concerns are rightly often raised about the overuse of statutory instruments and the delegation of powers to the Executive, yet here we are faced with a statutory instrument and we are able to look at only one part of the framework in the Stormont brake. There is no feasible way of changing anything. That is why I welcome the amendment from the noble Lord, Lord Morrow, because it gives us a chance to have a debate. I thought the noble Lord, Lord Hain, asked some important questions about delegated powers, but in the end, this House, the other House and Stormont —none of us—have no way of challenging an important document about the conflict about which legal authority will govern the UK. In the other place, the discussion was reduced to a derisory 90 minutes. We should remind ourselves that the whole framework was announced as a done deal at a press conference that put Ursula von der Leyen centre stage and the UK Parliament, never mind the public, was reduced to being a bystander.
Lord Dodds of Duncairn (DUP)
I very much regret the fact that we are not able to debate the Windsor Framework as a whole. I regret that we are having to debate these matters in a short space of time in relation to one statutory instrument. People have to question why the Government are behaving in this way.
It is clear that one of the reasons why this is happening is that the more the details of the framework are subjected to forensic analysis and detailed scrutiny, the more the claims of the Government for it are found wanting. A number of examples have been put forward this afternoon by noble Lords in relation to that matter. Specifically, this statutory instrument does not do what the Secretary of State claimed on BBC television that it would, in relation to a veto for the Northern Ireland Assembly. It is so convoluted and hard to operate that, as the noble Lord, Lord Thomas of Gresford, said, it is unlikely ever to be used. The fact of the matter is that not only has the statutory instrument before us been found wanting but a whole range of issues—claims about state aid having been dealt with; VAT and excise; red and green lanes to allow no checks—have all been found wanting and to be inaccurate.
The Government’s refusal to answer Parliamentary Questions, worded in plain and simple language and asking for facts, is frankly disgraceful in the way it has been dealt with. I urge noble Lords to look at Hansard: look at the Written Questions and the replies that have been given. They are a desperate attempt to reject transparency and not to give the full facts. When facts emerge they have to be dragged from the Government, and it is often from EU sources that you actually find out what is happening.
That makes people in Northern Ireland gravely suspicious, if they were not already suspicious, about what they have been told at every turn of the process. They were told first that the protocol was a wonderful invention and should be rigorously implemented. We were told that by the SDLP, Sinn Féin and many in this House. Now we find that the Government and all these parties are rubbishing it in terms that we in the DUP put forward at the time. It is just as when the St Andrews agreement came along: it rectified many of the issues to do with the Belfast agreement after many years of work and hard slog by unionists, who stood by their principles and demanded that the IRA should give up its arms, and at least support the police, if they were to be in the Government of Northern Ireland. We achieved that after many years; we were told at the time that it could not be done.
I have said previously in this House that the DUP has been prepared to go into government and say yes to agreements with people who are still eulogising the murderers of our kith and kin. We are still prepared to do that today, but what we ask for is a simple thing: that we should have the institutions of the Belfast agreement, as amended by St Andrews, respected in the way in which they were set up. That is to have cross-community support and consent for all matters of significance governing the internal affairs of Northern Ireland. That has been set aside; it is not addressed in the Windsor Framework or this SI, which allows us only to address a very small subset of changes to law.
The fundamental application of 300 areas of law by the protocol is still subject to a straight majority vote next year, in 2024, in the Northern Ireland Assembly. The Government deliberately changed the cross-community voting consent mechanism of the Assembly to prevent one of the fundamental aspects of the Belfast agreement applying because they thought the result would not turn out right and would not be to the pleasing of the European Union.
So forgive us, noble Lords and noble Baronesses, if we take a cynical approach to now being told—and sometimes patronised—about our need to go into government. We will go into government but we will do so only when the Belfast agreement, as amended by St Andrews, is properly implemented and respected across all strands. You cannot elevate strand 2 of the agreement, which deals with north-south relations, and have a completely open border with no restrictions, yet at the same time put barriers on the strand 3 relationship between Northern Ireland and the rest of the United Kingdom. That will not work, because it does not have the consent of the unionist community.
I therefore appeal to noble Lords to back the amendment in the name of my noble friend Lord Morrow. Let us continue with the work of getting to a situation where both nationalists and unionists can give their assent to the post-Brexit arrangements, because we left as one United Kingdom. There were other parts of this United Kingdom that voted other than to leave and the overall vote of all its citizens needs to be respected, because the citizens of Northern Ireland are equal citizens to those of Scotland, England and Wales.
Lord Lilley (Con)
My Lords, it is a great privilege to follow the noble Lord, Lord Dodds, in what has been a fascinating debate. I have agreed with a lot of what every speaker has said but not the entirety of what any speaker has said. But what has surprised me most is what I have not heard. Over recent months, I have sat through many debates in this Chamber and listened, often with sympathy, to noble Lords calling passionately for parliamentary control over the Executive, declaring that no laws should be passed without scrutiny and accountability to Parliament, deploring the use of Henry VIII powers enabling the Executive to pass primary legislation by statutory instrument, and calling for international agreements to be subject to debates and votes in this House before they are ratified.
So I thought it quite reasonable, as did the noble Baroness, Lady Fox, to suppose that noble Lords would be up in arms about the constitutional implications of the Windsor deal, whatever their views about the substance of it and the Northern Ireland protocol. It has already been ratified by Messrs Šefčovič and Cleverly before this House has had any opportunity to debate it, and before any comprehensive text has even been published for this House to consider. Some 90% of the changes, such as they are, will be implemented without any legislation by our Parliament, since they are being implemented by EU regulations applying directly in Northern Ireland, without this Parliament having any say. This will leave 300 laws, which neither this Parliament nor Stormont will have any power to alter or remove, directly applicable in Northern Ireland. Yet we have heard scarcely a peep out of the normal defenders and great guardians of parliamentary supremacy on the Labour, Lib Dem and Cross Benches. That is extraordinary. It seems they are perfectly happy to see executive power exercised with no scrutiny or accountability to Parliament, and not answerable to the electorate in any part of this country, as long as it is exercised by the EU under the sacred Northern Ireland protocol.
Although all the aspects inherent in the Northern Ireland protocol, with or without the Windsor Framework, are in many ways objectionable, I found the Northern Ireland protocol tolerable as a temporary measure to ensure that there would be no infrastructure and checks on the Irish border, even if the UK had left the EU without a trade and co-operation agreement. It was, and is, temporary and transitional, because it was negotiated under Article 50 and the EU has always said that that only enabled it to enter into temporary and transitional arrangements. It remains temporary and transitional because the EU has been very insistent that the Windsor Framework makes no change to the legal basis of the Northern Ireland protocol. Indeed, I understand that the changes it will make are being introduced by the EU using a procedure designed for what it calls “small and minor” amendments to existing laws. That tells us what it thinks about the substance of what has been negotiated. It is not quite as significant as some claim.
This statutory instrument is heralded as very important. I want my noble friend to confirm, first, that the Stormont brake gives the UK no substantive power, in practice, that it did not already possess. Secondly, I want him to confirm that the powers given to Stormont are in fact being transferred from the UK to Stormont, not from the EU. Let me explain. Under the protocol, pre Windsor, the UK could entirely veto, in a qualified way, any new EU laws and regulations under Article 13(4) of the protocol. We could not use that article to veto changes to existing EU laws that it may choose to make, but we could veto them under Article 16, again in a qualified way, if they threatened serious disruption. That is all we can do now under the Windsor Framework, so there is no change in the powers we possess. This is much the same situation as will be enshrined under the new Article 13(3a) of the protocol, following the Windsor Framework. So the only significant change introduced by this statutory instrument is the transfer from Westminster to Stormont of control of the trigger to exercise the qualified veto powers we already possess in respect of both new laws and changes to existing laws. That transfer could have been made unilaterally by the UK, with or without the Windsor Framework—it is not thanks to any concession by the EU—and there is no particular reason why we should make any concessions in return to the EU for something we could do ourselves.
One aspect of the Stormont brake and its antecedents in the original protocol is illogical to me, although, strangely, no one else seems to find it so. Remember that the sole justification for the protocol is to protect the EU single market without creating border infra- structure and checks at the border between Northern Ireland and the Republic. So surely the Stormont brake should enable Stormont, or the UK, to veto any new or amended EU law unless that would cause serious and permanent problems to the EU single market—not serious and permanent problems within Northern Ireland, which is the test applied under the Stormont brake. If there were problems on both sides, surely it should weigh the problems for the single market against those created in Northern Ireland. I merely ask the Minister: why is there this strange and illogical approach to the protocol?
I hope that, overall, the Windsor deal will to some extent alleviate the problems caused by the Northern Ireland protocol, and that it will mean there is less of a problem now, while we have all the grace periods that we have unilaterally taken. Those grace periods will end, which could make things much worse, but I hope this will make things better. We cannot tell from the statutory instrument we will vote on today, or from the whole thing, because it has not been published yet.
However, I am pretty sure that in the long term, the Northern Ireland protocol, with or without the Windsor Framework, will prove unsustainable. Any solution must ensure that there continues to be no infrastructure and no checks between Northern Ireland and the Republic. But it surely means that we must also ensure that there are no checks and infrastructure at the border, or non-border, between Great Britain and Northern Ireland. I can see only one way that that can be achieved while maintaining the integrity of the European single market, which is a perfectly legitimate objective of the European Union that we wish to respect. It is using the powers—which I, as Secretary of State for Trade and Industry, had under the predecessor Act to the Export Control Act 2002—to make it an offence to export to the EU anything that does not meet its standards. We can do so using the SPIRE system, which makes it user-friendly.
Normally, export controls are not implemented by checks at the border but, when there is suspicion of wrongdoing, via inspections at the company’s headquarters, warehouse or point of dispatch. We know that this sort of thing can be done: the Republic would not need to monitor the border any more than it has needed to monitor it since it unilaterally introduced controls on imports of coal and other fuels from the EU a few months ago. When people asked, “How are you going to do that without border infrastructure and controls?”, it said, “Oh, we’ll do it by a market surveillance mechanism in the shops and outlets in the Republic”. That is how these things should be done and, in future, could be done.
Although I will not be voting for the fatal amendment to the Motion today, I have great sympathy with the position of the DUP. If the party goes back into government and the Assembly, it will be asked to implement controls at the border between two parts of the United Kingdom—but the DUP’s whole raison d’être is to belong to the union and it would find that very difficult. I have no doubt that, if Sinn Féin were required to implement one single camera on the border between Northern Ireland and the Republic as a condition of participation in the Assembly, it would refuse to participate in the Assembly. So we should not think that the DUP is being unreasonable, any more than I would think that Sinn Féin were being unreasonable if it refused to participate on those grounds.
We have to find a way to enable the DUP back into power sharing which does not blame the party for the problems created by the protocol—which, as I said, is almost certainly unsustainable. I hope that the Windsor Framework will make things better, not worse. It will not solve the problem in the long term; we must find a solution that means no border with the Republic and no border between two parts of the United Kingdom.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, the noble Lord, Lord Jay, at the commencement of the debate, said that a majority in Northern Ireland supports the Windsor Framework. But I respectfully say to him that his comments display a lack of knowledge of the Belfast agreement, because majority rule is no longer the foundation of the political settlement in Northern Ireland; instead, cross-community support is demanded, and, in the past, I believed that this House strenuously supported that.
The noble Lord, Lord Hain, told us that a lot of the detail in the SI is unclear. But it seems that we are asked, as a House, just to let it pass through, even though it is unclear and imperfect. In fact, I have not heard one Member of this House who has spoken already suggest that either the SI or the Windsor Framework is a perfect document—but it is good enough for Northern Ireland.
The noble Lord, Lord Hain, went further, saying that the Northern Ireland protocol—the original protocol—had a glaring democratic deficit. But that is not how it was sold when it came to this House before. In fact, the SDLP, the Alliance Party and Sinn Féin said that it was to be rigorously implemented, with no changes and no negotiation. Yet it has now been acknowledged by His Majesty’s Opposition that it has a glaring democratic deficit, even though, in the previous debate, it was sold as the jewel in the crown for Northern Ireland and we should be very honoured to be given the opportunity to embrace it. I believe that certain Members of this House should blush at how they sold and championed the original protocol when it was debated in our House. This debate, like the framework—
Lord Hain (Lab)
I am very grateful to the noble Lord for giving way; I will be brief. I would like to put on record, as I think he knows, that I have consistently said that the democratic deficit should be addressed by giving Northern Ireland Ministers, MLAs and the Assembly as a whole proper accountability for what is going on. The Windsor Framework actually improves that, although I think that there are lots of unanswered questions.
Lord McCrea of Magherafelt and Cookstown (DUP)
I thank the noble Lord for his intervention. I must say that that was not how this House sold the original protocol to my colleagues in this House. In fact, we were derided for ever suggesting that we would be opposed to the protocol, even though it is now acknowledged that there is a democratic deficit.
In many ways, this debate, like the framework itself, is something of a sham, because the deed is already done and signed. In fact, we were told that the Government had no intention of heeding any changes that we might decide upon, because, as the Secretary of State said at the weekend, the DUP has
“yet to come to terms with the significance”
of the vote. He added:
“There is no renegotiating of that deal”.
I have heard Members saying that matters should be renegotiated, but the Secretary of State has emphatically stated—as has the Prime Minister—that there will be no renegotiation of the deal. That means that any comments we make at this time in the debate are meaningless, as far as the Government are concerned. I respectfully suggest that seeking to demean the unionist leadership, as the Secretary of State did, does not restore confidence in the good will of this Government, and neither will it assist with the restoration of Stormont. Yes, the vote was taken in the other place, and although your Lordships’ House is supposed to scrutinise legislation and to improve it, if necessary, we were not granted the opportunity to do so.
Baroness Foster of Aghadrumsee (Non-Afl)
My Lords, at this stage of the debate everything has been said but not by everybody, so I want to add my voice, given my experience when I was First Minister of Northern Ireland, during the initial workings of the joint committee, which I attended in that capacity.
I welcome this detailed debate on the Stormont brake; it is important that, at least in this House, there is a detailed discussion. There is the story in Northern Ireland of a tourist asking for directions of a farmer he meets to go to a certain destination, and the farmer replying, “Well, I wouldn’t start from here.” That is certainly true, and not just in relation to the Windsor Framework or indeed the protocol. To go back to the seeds of what we are dealing with today, one has to go back to December 2017. Do not worry—I am not going to go back there, because it would take me a long time to get up to date to where we are.
In the interests of brevity, I have three queries for the Minister. Before I put them to him, I want to acknowledge that there are members of the Conservative and Unionist Party here today who have acknowledged that the Windsor Framework was oversold. It would have been much better had the Prime Minister come out and said what the noble Lord, Lord Robathan, said—it is not perfect, we are trying to move forward and that is where we are. You know what—if that had been said to the people of Northern Ireland, I think that there would have been a much better response than to the overselling that has taken place.
In any event, I turn to the three issues that I want to raise with the Minister. First, I thank him for his explanation of how the Government view the operation of the Stormont brake. I have two sub-questions. We are told that the brake is not available for trivial reasons; there has to be something significantly different about the new rule proposed by the European Union. Perhaps he could give us the Government’s definition of what they view as significant. The second issue on the operation of the brake is around the divergence from EU laws already in place, referred to by my noble friend Lord Morrow when he opened the debate. As I see it, the brake purports to deal with new laws and amendments by the EU to existing laws—but if the EU law is already in place and there is a decision to diverge here in Great Britain from that law, how will that apply in Northern Ireland and how does the Minister see that operating in terms of divergence for those of us who live in Northern Ireland?
Some concerns around the operation of the brake are due to the operation of the joint committee, which I have attended in the past. When I was permitted to speak, the EU, if it did listen to concerns, gave a very good impression that it was not interested. I am thankful to noble Lords in this House for raising the issue—not just in a tick-box exercise but with actual engagement with new laws and regulations coming down the track. That is a very important point.
The second point I want to make is around clarity on how the new rules will apply in respect of the Windsor Framework. If a company is doing business in the European Union, one can understand why EU regulations would need to be complied with. But the greater balance of trade, as my noble friend Lord Browne of Belmont said, is not with the EU but internally within the United Kingdom. If a company is trading solely in the United Kingdom, surely it should apply UK regulations and not European Union regulations. Can the Minister give us some clarity in relation to that?
The third and last issue I raise is around the constitutional issue and the court case that I and the noble Baroness, Lady Hoey, were party to. The judgment in that case clarified the impact of the protocol on the Act of Union; to paraphrase Lord Stephens, that part of the Act of Union, Article 6, has been suspended by parliamentary sovereignty. That is, because the protocol was part of the withdrawal Act 2019 and had been approved by Parliament, and Parliament is sovereign, therefore it suspends the operation of Article 6. It follows, then, that Parliament can, through its sovereignty, confirm the operation of Article 6 of the Act of Union. Will the Minister ask the Prime Minister to clarify the constitutional issue in relation to this in another place? He has the mechanisms to do so, and I urge him to do so. That ruling from the Supreme Court still stands in relation to Article 6 of the Act of Union.
For three years, the people of Northern Ireland were kept out of government by Sinn Féin demanding language rights. We did not have a Government to deal with health issues, budget issues in our schools and other issues; it was incredibly frustrating. As someone who held the post of First Minister, I want devolution to return to Northern Ireland, but it must be done on a fair and sustainable basis. I look forward to the Minister’s response.
Baroness Bennett of Manor Castle (GP)
My Lords, we have heard many individual voices in this debate, but far from all the perspectives in Northern Ireland. This really could not be called a representative debate. The Green Party of Northern Ireland held its spring conference at the weekend. I speak today in an attempt to broaden the range of perspectives that your Lordships’ House hears from. In doing so, and in reflecting the debate at that spring conference, I can only agree with the words of the noble Baroness, Lady Ritchie, that the greatest democratic lack in Northern Ireland is the lack of a functioning Assembly and Executive. That is key to the people of Northern Ireland being able to exercise their democratic rights and have their voices heard.
I do not think anyone has commented on the fact that today marks the six-year anniversary of the UK invoking Article 50, beginning the process of EU withdrawal. I must admit that I have been feeling an acute sense of irony hearing speech after speech lamenting how we do not have any control over EU rules and regulations any more. Of course, we did once have democratic control over those EU regulations, rules and laws—and the Green Parties of the United Kingdom hope that, one day in the not too distant future, we will again have democratic control over those EU rules.
None the less, it is clear that Brexit has been a disaster for all, particularly the most vulnerable. I have to remark on something that was discussed a great deal at the conference at the weekend: in two days, European social funding for charities and community groups will end. That is an absolute cliff edge that the Westminster Government promised would not happen. My direct question to the Minister is: will the Government take some emergency action to deal with that cliff edge, which will rob vulnerable people of essential services and support? That matter has to be raised in the context of this debate.
I come to the much-debated issue of the Irish Sea border. Yes, it is still there under this Windsor Framework, but it is less visible and less expensive. Here we are at the practical reality of Brexit. I had a flashback to a debate at the Greenbelt Festival in 2017, where I found myself in the unusual position of leaping to the defence of a speaker from the Institute of Economic Affairs—it was partly because she was a young woman and I am always inclined to leap to the defence of young women. She was asked what we do about the issues of Northern Ireland and trade, and her answer was, “I don’t know”. The crowd started to barrack her and I said, “There is no answer to this problem. There is no solution. We just have to find the best way forward that we can.” That is essentially what we are trying to do here.
To address the particular point about the Stormont brake, it has been described as similar to the much-contested petition of concern. However, a deep read into the mechanisms makes it clear that this is not the case. I note that, at a recent event by the QUB law school, Gordon Lyons described it as a “sophisticated” piece of constitutional engineering. I admit that the word “sophisticated” is concerning to a degree, but that is what it is. It is structured, from the Northern Ireland Greens’ perspective, to ensure that it cannot be disruptive and destabilising, which is crucial.
I come back to the point that this is about the reality of the lives of people in Northern Ireland. Some of the things that the Windsor Framework will do are really practical. The green lanes will reduce customs paperwork and the need for checks and will cover parcels from GB to friends and family in Northern Ireland—that is practically sensible and covered by the EU-UK data-sharing agreements. The volume of EU law that traders need to comply with will be reduced. Northern Ireland will be exempt from certain VAT provisions, and the UK will be able to lower the VAT rate on certain goods such as heat pumps and alcohol served in hospitality venues. For pet owners, things will not be completely simple but travel will be simplified.
Where we are is far from ideal, but we are where we are and we need to find a way forward. The position of the Green Parties of the UK is that we support the Windsor Framework and oppose the fatal amendment.
Lord Bew (CB)
My Lords, I have been studying the seven tests referred to by the noble Lords, Lord Lexden and Lord McCrea. It might surprise Members of your Lordships’ House that there is no mention of EU law and only two or three words on the ECJ in the crucial seven tests that the DUP lays out. We have heard an awful lot about it this afternoon; it is the grounds for the objection that we have heard. The DUP, in a very wise statement by Sir Jeffrey Donaldson, made no mention of the seven points.
This is really quite important, because trust cuts both ways. The people who worked on the Windsor Framework took the DUP’s seven tests seriously; they assumed that was what the DUP wanted. I totally accept that it is for the DUP to decide whether they have been met, but those people worked to these seven tests. This is of some importance. Some of the tests are indisputably met, despite claims in the other place by DUP Members that none of the tests has been met. There is no argument that the second test is met, because our statistics show that there has been no diversion of trade. If there were diversion of trade, Article 16—the much-loved Article 16—is designed to deal exactly with that. Unless our statistics can be said to be wrong—and there is no real belief in that—then that test is met already.
There is no question that, if you had worked on the Stormont brake, you might think that it met in part the question of giving people in Northern Ireland a say in making the laws that govern them—I have heard all the criticisms but, none the less, you might think that you had made a contribution to that. You might think that you had done something to stop new regulatory borders developing between Northern Ireland and the rest of the United Kingdom.
I say these things because I am among those who always believed that the protocol, in its form under Theresa May, was not to be supported in this House; I spoke against it. The noble Lord, Lord Murphy, and I said on 5 and 6 December 2018 that this was not the Good Friday agreement—and it was not the Good Friday agreement, as we both knew. It was a downward imposition. Strand 3 of the Good Friday agreement talks about a harmonious model of east-west relations. The layer of endless checks under the protocol was clearly not a harmonious model of relations between Northern Ireland and the rest of the United Kingdom. Now, there has been a clear and definite movement towards something that, though not perfect, could much more reasonably be described as a harmonious model of a relationship in trade between Northern Ireland and the rest of the United Kingdom.
I argued this about the Good Friday agreement, because it was essential that, under our international commitments, neither community should be permanently alienated. That is in Article 1 of our international agreement, on a major issue of concern. The unionist community was alienated on this point, as was the nationalist community on the Irish language issue. Rightly, some months ago in this House we voted on the Irish language issue, which dealt with that matter within that community. There has been a major effort here by His Majesty’s Government to deal with the alienation of the unionist community and the concerns raised. They presumed—indeed, I presumed—that the DUP’s seven tests were some indicator as to what needed to be dealt with. European law was something that His Majesty’s Government never offered to deal with at any point during this process. Bluntly, we are coming from too far behind. If you are going to have this type of economic relationship and border arrangements between Northern Ireland and the Republic of Ireland, there will be some role for EU law in Northern Ireland.
If you have accepted, as the Johnson Government and the Truss Government did, no hard border on the island of Ireland and the protection of the UK single market, then there is nothing new in what this Government have done. There was never an offer, during this negotiation, to remove EU law, and never a demand. It is now the demand, but there was never a demand. There was an offer to deal with the alienation of the unionist community; to deal, for example, with its concern that the east-west relationship was not as offered in the Good Friday agreement—this was an entirely correct analysis, which I fully supported—and we had a negotiation which responded to those problems of the incompatibility of the May protocol, and the Johnson protocol, altered in one significant respect to try to meet this problem but fundamentally also deeply flawed. We had a negotiation designed to deal with the argument that the Government stated again and again: “We have a problem; we are not delivering the Good Friday agreement to the people of Northern Ireland”.
That negotiation is over. Questions and answers were involved in that; it has been; it is done. These are the questions, there is now an answer, and everybody accepts that, realistically, it is an improvement. Everybody knows in their heart of hearts, on all sides, that the Windsor Framework is on the upside of what was expected. There is nobody in Northern Ireland who thought, “I have heard the criticisms of the brake. Can I say something? People seem to have forgotten about state power.” The noble Lord, Lord Frost, demonstrated that whatever the EU wanted, if he thought it was important, then there would be derogations and grace periods. He demonstrated this over a two-year period. There was some legal action, somewhere in the sky, which has now disappeared, but the United Kingdom has state power in Northern Ireland.
On the implementation of the details of this thing—in the case of the brake, an international agreement; the EU has signed up to the operation of this brake—is there any reason to believe that the United Kingdom, if it believes it is essential for the stability of Northern Ireland, will suddenly become weak-wristed in the operation of the brake? Is it suddenly going to say, “Oh, we promised all that, but we are not going to do it”, when the almost certain consequence will be the collapse of the Assembly, with the DUP having a genuine grievance, as opposed to what I regard as a much more impossibilist set of arguments at the present time? That is the key thing, really: we just forget these simple things. State power is what is going to matter, ultimately, and what the interests of the United Kingdom will be in any controversy around the brake.
I want to comment on one observation of the noble Baroness, Lady Hoey, who talked about those going back in the Assembly, if they do go back in, having responsibility for the implementation of this. She is absolutely right, and it is a serious point. Whether she was right to talk about Vichy France in the same breath is another argument. She is absolutely right that those who go back in will get a vote on these arrangements anyway in 2024. They did not get a vote on the arrangements in Vichy France. There is a crucial thing here: the people of Northern Ireland, whose opinions have been much invoked today, and their representatives, will be able to deal with this.
One of the interesting things not discussed, by the way, is the unilateral document that the British Government produced on the operation of the consent mechanism. That was a very interesting new discussion, not discussed at all today. The fundamental thing is that there is a provision for democratic consent if the Assembly restarts.
Then there is the issue of, “I am so unhappy because they’re EU laws”. I am afraid that, at that point, if democratic consent is given, that issue becomes of secondary significance and I respect it, except that I would also say, as a matter of common sense, that Northern Ireland has, for example, a very large state sector. Nobody who works in that sector will ever hear of it: if it is an EU law, it will never impinge significantly on their lives, or on many other areas of economic life. As a practical matter, EU law is not going to be a significant factor. I just say that very simple thing, but I still understand the theoretical objection, until there is democratic consent. But there is going to be a moment when that is going to be available under these arrangements, and at that point, arguments about Vichy France, for example, will really not apply.
Lord Weir of Ballyholme (DUP)
My Lords, I support the amendment in my noble friend’s name. I welcome some of the remarks of the noble Lord, Lord Bew. It is good to know that we have achieved such success with this agreement that we are at least better than Vichy France. That seems to be setting a very high bar, which fortunately enough we have overcome. I also say that it is abundantly clear, and I shall deal with this, that a lot of the problem around this is the issue of spin.
Anybody who takes even a cursory examination of the seven tests that the DUP put down will see that they are not met. Issues around the Act of Union, around the consent principle and around the democratic deficit, and even around the diversion of trade, are not met. Anybody, for instance, who takes time, post-Windsor Framework, to meet the haulage industry and hear it tell not only of the problems but of the many millions of pounds it is spending in anticipation of additional diversion once the grace period ends will see that that is not the case.
Like my noble friend Lady Foster, I was recently appointed by my party leader to the Windsor Framework panel. I should say, for the avoidance of doubt, because there has been a little misconception, that our job is to listen to what people are saying and to consult a wide range of groups. We are doing that. The situation is ongoing but soon to come to a conclusion. It is not, as has sometimes been alleged, some form of Star Chamber panel, or indeed intended to produce a recommendation. That may disappoint some who hear that news. Others, by the end of my speech, may be mighty relieved that we have not been given that role; nevertheless, that is the role that we are performing.
I want to concentrate, as discussions are ongoing, on the plethora of obfuscation, contradictory documents and oversell that have been the hallmarks of the Government’s approach since the signing of the Windsor Framework. Noble Lords will note that I do not accuse the Government of being deceitful on the Windsor Framework. To accuse this Government of being deceitful would be utterly ridiculous. We know, over the last number of years, that this Government, particularly in the other place, have been a paragon of virtue; they have held aloft the bright light of truth and probity, so no one could make any accusation of deceitfulness towards this Government stick. So, I will concentrate on the other aspects.
On obfuscation, mention has been made already that on the day, I think, that the Windsor Framework was reached, in another place the Prime Minister on a number of occasions said that if there was clarification to be given, he would give it. Yet, as my noble friend Lord Dodds said, a number of us have put down question after question on, for example, the 1,700 pages, the 300 areas of law, or the 3% that is claimed, and we have got, in terms of answers, no real clarification. And it is not simply in a parliamentary fashion: again, if you talk to people in the haulage industry, who are probably the people at the sharpest end of this issue—they are the people who, whatever happens, will have to implement what is there—they will tell you they have myriad questions, as indeed the noble Lord, Lord Hain, did today, that remain unanswered. Yet we see this statutory instrument pushed through very quickly, before we know what the answer to those is.
On the issue of contradictory documents, anybody who takes the time to read the Command Paper and the proposed EU laws will see myriad differences across a range of areas. Gerald Kaufman referred to the infamous 1983 Labour manifesto as the longest suicide note in history. This Command Paper may be the longest press release ever written, and it does not seem to bear a great deal of similarity to the EU text. At the end of the day, I do not know exactly where the truth lies, but it is not helpful to have these contradictory messages.
We have been faced with a level of oversell. As the noble Baroness, Lady Foster, said, a much better judgment could be made if it was put before us warts and all, for example on the green lanes. I am sure that noble Lords have experienced green lanes when going through airports unchecked and untroubled. The Command Paper tells us that the level of paperwork required to transport goods through the green lane would be the equivalent, for example, of that required to transport goods between Southampton and the Isle of Wight. Yet we know that information will need to be given, albeit a reduced amount, and customs declaration forms put in place; as time moves on, between 5% and 10% of goods will have checks on them; lorries will need to be sealed and their movements monitored, so they cannot move about. If the Government were arguing that this was a lighter-touch version of what was proposed, it would have some credibility, but it is an oversell to pretend that this is frictionless trade.
We were told in a government social media message on the significant issue of transporting guide dogs, one of a series, that things were now an awful lot easier and how wonderful it is that dogs can move from Northern Ireland to Great Britain. It is, but to make that claim is to say that we should be very grateful for being permitted, within our own country, to move pets about. Not only do many of us find that a bit offensive but it is entirely counterproductive from the Government’s perspective, because it builds up resentment in the psyche of the people of Northern Ireland over something that so obviously should be done.
In selling this deal, the Prime Minister came to Lisburn and said that not only would there be a level of advantage to it but that Northern Ireland would become
“the world’s most exciting economic zone”.
One can draw two conclusions from that. Clearly, it was tying in Northern Ireland to follow the rules of the single market and have access to it while having access to the UK market—effectively, being in a unique position. Either he was overhyping that in a desperate attempt to oversell it, or he genuinely believes it. If it is the latter, why is he not advocating a similar position for the whole United Kingdom? Many noble Lords who might take a slightly different view of Brexit from me would say that the whole of the United Kingdom should be in the single market, or it should never have left the European Union in the first place. We need to know whether the Prime Minister supports that view, because that is the logic of what he said in Lisburn—assuming that he is not simply trying to oversell it.
This brings me to the Stormont brake. For its provisions to be operable, there are a large range of hurdles to be overcome that might challenge even Sally Gunnell or Kriss Akabusi. The Secretary of State told us that the Government would be bound to veto anything brought forward from Northern Ireland, but there is plenty of wriggle room within that. If the Government were saying of the Stormont brake, “This is an opportunity for Members of the Assembly to raise issues and concerns”, that could be acknowledged as correct. However, it is not a Stormont veto. The problem with what the Government have said on this is that it is yet another example of overselling.
We want to make progress. We need the Government to deliver something that properly deals with a range of issues: to ensure that the consent principle, as enshrined in the Belfast agreement, and the internal market of the United Kingdom are properly restored; to deliver arrangements with frictionless trade, as the Government promised of the Windsor Framework; to make sure that there are effective mechanisms to ensure that Northern Ireland does not diverge economically from the rest of the United Kingdom and that those opportunities are still there; and above all—this is crucial to unionists—to ensure that the Act of Union is properly restored. Those are reasonable demands. We are being treated a bit like some distant province in the Roman Empire. However, these are not things that the mighty Caesar needs to deliver; they lie largely within the competence of the Government.
I mentioned Lord Trimble in my maiden speech. One of my earliest meetings with him, as a student, was as part of a team working with him on a publication he was producing to analyse the governance of Northern Ireland. Its title was Ulster—The Internal Colony. More than 30 years later, Northern Ireland is still being treated as a colony. Let us see not just words but action and legislation from the Government to enable proper progress, because what we have at the moment is totally inadequate.
Baroness Suttie (LD)
My Lords, it is probably time to move on to the concluding speeches, as we have heard from every DUP Peer present. This has been a thoughtful and comprehensive debate. Like the noble Lord, Lord Lilley, I have agreed with bits of many speeches—although, I suspect, slightly different bits from the noble Lord—and it has shown some of the strengths and weaknesses of how we debate in this Chamber.
These Benches welcome the Windsor Framework and will vote against the amendment to the Motion if there is a Division. As noble Lords have said, the framework is not perfect—far from it. To quote the noble Baroness, Lady Foster, we would not have wanted to start from here. However, it is a significant improvement on the original Boris Johnson deal. Perhaps most importantly, I sincerely hope the Windsor Framework marks the beginning of a normalisation of our working relations with Brussels, as the noble Lord, Lord Robathan, said—a return to negotiation and constructive dialogue rather than the threats and bad faith that have characterised the last three years during the Boris Johnson and Liz Truss era. In that respect, I agree with the short but powerful speech of the noble Lord, Lord Lexden.
It is also welcome that, as a result of the negotiations, progress has finally been made on veterinary, sanitary and phytosanitary measures, which we have been calling for consistently from these Benches. The vote last week in the House of Commons was overwhelming: 515 to 29. Although it was nominally about the Stormont brake, which we are debating today, in reality it was a vote on the wider Windsor deal. It is in that spirit that I will focus my remarks today.
Lord Murphy of Torfaen (Lab)
My Lords, it has been a long debate and I will not detain your Lordships for much longer, but I want to deal with a couple of issues which have been the theme of today’s debate. The Labour Party will support the Government, as it did in the House of Commons, and it will urge Members to vote against the DUP’s amendment to the Motion.
Much has been said about the hype which the Prime Minister is supposed to have used when he was selling this measure. Well, that is what Prime Ministers do, in my experience; they do an awful lot of hyping. In this case, I think he was right to hype it, compared to what his two predecessors had done over the last few years, when they simply did not address the issue of their own making. The irony is that those two former Prime Ministers, who wanted to see change, then promptly voted against the current Prime Minister’s own proposal. It is a bit daft, really.
The point made by the noble Lord, Lord Swire, was extremely valid: this all goes back to the whole issue of Brexit. I am not saying whether we should be for or against it, but the fact that Brexit occurred had a disproportionate impact on Northern Ireland, more than any other part of the United Kingdom. I was there when that agreement was made 25 years ago, and it was made much easier because both Ireland and the United Kingdom were members of the European Union. It meant we were in the same club, and that officials and Ministers dealt with each other all the time, in Brussels and elsewhere. And it meant, of course, that the border between Ireland and Northern Ireland was very different from any other border that could be envisaged, outside Brexit. As soon as Brexit happened, there was inevitably an effect upon Northern Ireland. The noble Lord, Lord Swire, is right that far too much inattention was given to the problem of Northern Ireland during the referendum debate. People in Northern Ireland discussed it, but elsewhere in the United Kingdom it did not figure at the top of the lists, but every year since, it has dominated because we knew that we had not dealt with the situation in the way that it should have been.
You cannot be in a single market without rules; it is as simple as that. If you do not want any rules, you get out of the single market. I think this framework means that those rules are simplified; they are fewer and less cumbersome; they allow things to happen between Great Britain and Northern Ireland which could not happen before.
The Stormont brake is complicated and convoluted, but it is an answer to the difficulties that we are in. The only way the brake can be applied is if there is an Assembly up and running. The biggest democratic deficit is not EU laws affecting Northern Ireland, as difficult as that is for many people; it is the fact that there is no Assembly, no Government, no Executive, no north-south bodies, no Good Friday agreement in parts operating in Northern Ireland—that is the deficit.
The irony is that the Stormont brake can operate within the structures of a restored Assembly and Executive. More than that, where is the best forum to discuss all the issues that people, including the DUP and others, are concerned about? Not here, but in Belfast. This issue should be decided in Belfast, not in London or in Brussels, and the only way that can happen is if you have an Assembly and Executive up and running again. I say to the DUP, “Go into the Assembly and argue your case. Ensure that the Assembly and all its Members listen to the points that the DUP has made during the last three hours”.
Excepting my noble friends Lord Hain and Lady Ritchie, very little has been said about the fact that it is not just unionists who are in the Assembly; the majority are not unionists. That is not for one second to say that the unionist view should be ignored; of course it should not, because consent between the communities is the basis of the Good Friday agreement. Little has been said about what nationalists think about the Windsor Framework, the protocol, the Stormont brake and how it could affect them, because they would inevitably see it as a means by which unionists have to be assuaged, whether that is right or wrong.
The other thing that has been ignored is that there is a shift in Northern Ireland politics. The last number of elections have shown us that there are large swathes of people who no longer identify either as nationalists or unionists. That has been seen in the election results for the Alliance Party, which now has 17 seats in the Assembly, only eight fewer than the Democratic Unionist Party. Its views ought to be taken into account as well, but none of that can happen if there is no Assembly or Executive.
Much has been made tonight, particularly by the DUP Members of your Lordships’ House, of the importance of the union and of sustaining it. But as we approach the 25th anniversary of the Good Friday agreement in two weeks’ time, central to that—the core of it, really—is the issue of consent. That is not just the consent of unionists and nationalists but the consent of the people of Northern Ireland to make a change in their constitutional status. The union is absolutely safe so long as the principle of consent is agreed to, and it will be. If the people of Northern Ireland democratically wish to leave the United Kingdom, they will leave. But they have not said that, and there is no indication that they will.
When I took the Northern Ireland Act 1998, as it became, through the House of Commons 25 years ago, it enshrined in our constitution and in our law that people in Northern Ireland will have the final say. However difficult it is to accept that EU law is law above British law in Northern Ireland, the union is safe so long as the principle of consent is there. We will celebrate the 25th anniversary of the Good Friday agreement in two weeks’ time. Most Members of this House, including myself, can take our minds back to 30 years ago and think about what Northern Ireland was like then, and what it has been like since 1998. We must not jeopardise that.
Lord Caine (Con)
Forgive me, my Lords, if I just try to get my circulation going.
I am extremely grateful to all noble Lords who have participated in this debate, which noble Lords will recall was time-limited in the House of Commons to 90 minutes. We have now spent three hours and 23 minutes on it, which at least gives some indication of the diligence and seriousness with which noble Lords take the scrutiny functions of this House. I am grateful at the outset to all those who have spoken. I fear that, if I tried to address every question and every point that has been raised, the Chief Whip might have to cancel the Easter Recess, which I do not think would make us very popular. I hope noble Lords will forgive me if I cannot cover every speech and every point.
As ever, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for his wise counsel and support, and to the noble Baroness, Lady Suttie, from the Liberal Democrats. The noble Lord referred to the importance of getting the institutions back up and running. As we mark the 25th anniversary of the Belfast agreement in a couple of weeks’ time—I think he and I will be at some of the same events—that is an urgent priority for His Majesty’s Government. I give the assurance that we will continue to work strenuously towards that objective.
I am also grateful to a number of my noble friends behind me. My noble friend Lord Lexden made a customarily powerful intervention, and I share his assessment of the Windsor Framework. My noble friend Lord Swire said some kind words about my thighs on the Bench. His dilemma, if you like, and the issues he confronted back in 2016, entirely echoed my own when it came to the referendum. I think we found ourselves voting in the same way in the end. My noble friends Lord Robathan and Lord Taylor of Holbeach also expressed support, for which I am grateful.
We are being asked to consider the amendment in the name of the noble Lord, Lord Morrow, so I believe it would be helpful if I tried to address at least some of the points that he and all his DUP colleagues who spoke in the debate raised this afternoon and this evening. I acknowledge the concern expressed by a number of noble Lords, including DUP Peers but also my noble friend Lord Robathan, that the mechanism in these regulations does not apply to EU law already in place and that it applies only to future new or replacement EU law. To this I simply say that the amount of EU law that applies in Northern Ireland is less than 3% of the whole. Of course, as has been pointed out during the debate, democratically elected representatives in Northern Ireland retain the right to reject that 3% through next year’s consent vote. I know noble Lords have views on the democratic consent mechanism, but I do not think it would be fruitful to reopen that debate at this moment. It is the case that through the Windsor Framework we have removed 1,700 pages of EU law. In response to a recent Question from my noble friend Lord Dodds of Duncairn, I highlighted that in annexe 1 of the EU regulations concerning SPS rules to accommodate Northern Ireland, 67 EU rules are disapplied. All the disapplied law is, I think, contained in the legal text published on 27 February.
Lord Morrow (DUP)
My Lords, this has been a fairly long debate. Sometimes those of us who come from Northern Ireland feel that we do not get a fair crack of the whip in time, and sometimes we complain that our business is put back to a late hour. However, there is no complaint about that today. I will not be very long, because I know that people are straining at the knot to get voting, and I am not going to deprive them much longer. However, I wish to respond to one or two things, and I will be brief.
I am slightly disappointed with what the Minister has said in his response. Rather than disagreeing with me that the protocol or the Windsor Framework—dear knows what else it will be called—creates an arrangement wherein the people of Northern Ireland can no longer stand for election to make the laws to which they are subject, his point is that this was a result of the protocol in 2021 and that the regulations make a bad situation slightly better. That is a poor win, and with respect, I disagree. When the protocol was introduced, many believed that it was a temporary arrangement and did not believe for a moment that they were voting for the long-term partial disenfranchisement of the people of Northern Ireland. Such a proposition was plainly absurd in a context where the peace process is based on the renunciation of violence and a commitment to exclusively democratic means.
We could go on to talk about the behaviour of the Taoiseach going round Europe with an old newspaper saying, “This is what’s going to happen”; it was something he pulled out from 1971 or some time when the Troubles were at their height, and that was a disgraceful way to behave. However, in this context the primary significance of today’s regulations is not that they address the injustice of our being disenfranchised but that they actively seek to make it permanent.
Rather than representing something positive, these regulations try to sanitise, albeit it very ineffectively, the basic disfranchisement and debasement of Northern Ireland citizens through the provision of a slightly stronger but still second-class citizenship in some very narrow contexts. If the United Kingdom is to have a future, no part of our country can be treated in this way, and I ask Members to note that.
I want to respond to the noble Lord, Lord Swire. He said to me very directly, “You’re too late.” I must have missed an opportunity to bring this amendment earlier. When do you vote against anything? Surely it has to be on the Floor of the House, and my recollection is that this is the first opportunity. Maybe I am not the one who is late here; maybe it is the Minister or someone else. I never had an opportunity to vote against this before, so I can only do it today. So it is a bit disingenuous to say that, but anyway, we will forgive him.
The noble Lord, Lord Clarke, asked, what is the alternative? I am sorry he is not here but there is an alternative—one that does not interfere with the Belfast agreement, Ireland, Northern Ireland, the UK or Europe. It is simply called mutual enforcement. Maybe sometime, when they get round to thinking straight, we will all take a look at that and see where it can take us.
I also have to say that the noble Lord, Lord Bew, was slightly disingenuous. He is not always like that; I do not know why—maybe we are all tired. I remind everyone that the DUP will decide whether our seven tests are met or not. What is unreasonable about that? Furthermore, it will not be the Prime Minister—no disrespect to him in his high position—nor Members of your Lordships’ House. It is pure, unadulterated nonsense to pretend that our tests have nothing to do with EU law. Come on: where have we all been this last while? The reason why most of the tests exist is that Northern Ireland is subject to EU law: nobody, but nobody, could miss that. To meet these tests, you have to clearly deal with the underlying problem, and we are not dealing with that underlying problem tonight. For example, checks between GB and Northern Ireland exist because we are under EU law. I do not know how we can make it any clearer. That has to be dealt with to get rid of these checks.
Further, it is time to stop the spin, which has been referred to here on a number of occasions. It needs to stop and reality needs to be played into the centre. I listened to the noble Lord, Lord Murphy, who said that our problem is Brexit. I believe there are Members of your Lordships’ House who will never forgive the 17.4 million people who voted for Brexit. That seems to be unforgivable, and they will never get over it. I cannot help them get over it; it is just a fact.
I will not say anything more. Everybody is ready to do what they have to do, and I will not delay it any more. I wish to test the opinion of the House.