Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Tuesday 13th February 2024 Lords Chamber

Motion to Approve

19:30

Moved by

[Lord Caine]

That the draft Regulations laid before the House on 31 January be approved.

Relevant document: 12th Report from 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, I shall speak also to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024. I offer my gratitude to my noble friend Lord Hunt of Wirral, chair of the Secondary Legislation Scrutiny Committee; the Joint Committee on Statutory Instruments; and members of those committees in this House and the other place for their expeditious consideration of both instruments.

These regulations deliver on key commitments set out in the Safeguarding the Union Command Paper, the contents of which I set out on the Floor of the House on 1 February. The commitments made in that Command Paper will strengthen our union and the UK internal market now and for the long term. I am pleased that the Command Paper has created a situation whereby the Democratic Unionist Party agreed with the recommendation of its leadership to end the boycott of Stormont and has provided the basis on which the devolved institutions in Northern Ireland have returned, with support from across the community; a Speaker of the Northern Ireland Assembly has been elected with a full complement of Assembly Members now able to serve fully their constituents; a First Minister and deputy First Minister are now in office, and a full complement of Executive Ministers is now forming the Administration in Northern Ireland. It is in that context that I ask noble Lords to consider the two regulations before the House.

I turn to the first of these, the draft Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, which seek to strengthen and future-proof Northern Ireland’s place within our union in law. They do so consistent with the vital protections contained in the Acts of Union 1800 and by the terms of the Northern Ireland Act 1998. They seek to address sincere concerns among some in the unionist community that Northern Ireland’s status within the union has somehow been diminished. The Government have been clear in our determination to see our union strengthened, and these regulations have been designed with that in mind. They clarify that Section 7A of the European Union (Withdrawal) Act 2018, the sovereign Act of Parliament that gives effect to the Government’s commitments under the withdrawal agreement, operates subject to the democratic safeguards in the Windsor Framework. That, of course, includes the Stormont brake, which gives the Assembly, now that it is up and running once again, powerful and vital democratic oversight over new, amending and replacing EU laws.

These regulations also provide a safeguard against any prospect of regulatory borders between Great Britain and Northern Ireland emerging from future agreements with the European Union. They mean that no Government in the future can agree to another protocol or form of agreement which would undermine the integrity of the United Kingdom internal market. On matters of domestic legislation, the regulations will introduce new safeguards so that government Bills that might affect trade between Northern Ireland and other parts of the UK are properly assessed. Ministers in charge of such a Bill would need to provide a Written Statement to Parliament on whether legislation would have a significant adverse effect on trade between Northern Ireland and other parts of the UK.

I should be clear that this provision does not bind Parliament’s hands, but rather ensures that Parliament is properly informed by the Government. The approach we are taking will deliver clarity to businesses that Northern Ireland’s unfettered access to the UK internal market will not be frustrated.

Finally, this legislation provides for how any independent review of the Windsor Framework would operate, requiring the Government to commission such a review one month after the Assembly having passed a consent vote on the Windsor Framework without cross-community consent. In those circumstances, the Government would be obliged to respond to a report from the independent review within six months and raise its contents at the UK-EU Withdrawal Agreement Joint Committee.

I now turn to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations. The Government are clear that the old protocol created unacceptable barriers to the United Kingdom internal market. In response, the Windsor Framework sought to restore the functioning of the internal market by ensuring the smooth flow of trade within the UK. It disapplied a range of EU law, including ensuring that Northern Ireland benefits from the same VAT and alcohol taxes as the rest of the UK. We saw the framework commence at the start of October, with its benefits now being enjoyed by over 3,000 businesses registered on the internal market scheme.

Following the Windsor Framework, the Government announced the border target operating model. In line with this approach, we have now, for the first time, started to phase in checks and controls for Irish goods and non-qualifying goods moving from the island of Ireland to Great Britain. This is a powerful demonstration of Northern Ireland’s integral place within the UK’s internal market and rebuts claims that it is a member instead of the EU’s single market. The reality is that third-country members of the EU single market will now have full third-country processes applied, while Northern Ireland’s businesses have unfettered access to their most important market by far, in Great Britain.

As a result of these regulations, this now includes guarantees for qualifying Northern Ireland goods moving from Northern Ireland to the rest of the United Kingdom via Dublin. This unfettered access is future-proofed, ensuring that it will persist regardless of how rules evolve in either Northern Ireland or Great Britain. These regulations will more squarely focus the benefits of unfettered access on Northern Ireland traders. The regulations both tackle avoidance of the rules and ensure that agri-food goods are exempt from SPS processes only if they are dispatched from registered Northern Ireland food and feed operators. We will also expressly affirm through these regulations that export procedures will not be applied to Northern Ireland goods moving directly to other parts of the UK internal market. This reflects the legal guarantees secured in the Windsor Framework and achieves the effect of provisions dropped in the then United Kingdom Internal Market Bill by the previous Government in 2020.

The Government are also determined to ensure that public authorities are clear-minded about their existing legal duty to have special regard to Northern Ireland’s place within the UK internal market. We are therefore taking a power to make guidance on Section 46 of the UK Internal Market Act. That guidance will set out how public authorities should have special regard to Northern Ireland’s place in the UK’s internal market and customs territory, and the need to maintain the free flow of goods from Northern Ireland to Great Britain. Public authorities will be bound to have regard to it, ensuring they meet the UK’s international obligations in a manner that is also consistent with ensuring the smooth flow of goods within the internal market.

The Government are now working with vigour to deliver on the commitments set out in the Command Paper, because we want to make Northern Ireland work well for all who live there today and allow it to remain a thriving, prosperous part of the United Kingdom. On that note, I beg to move.

[Lord Hain (Lab)]

My Lords, before I get to the specifics of these two statutory instruments, I ask, in relation to legacy inquests under way in Northern Ireland, is the Minister not extremely perturbed—indeed, embarrassed—by the fact that state bodies appear to be openly running down the clock to 1 May, when the due process that we set such store by in the United Kingdom will no longer apply in Northern Ireland thanks to the shameful legacy Act? In one case, a Ministry of Defence official told an inquest, “We have only a single officer supporting Northern Ireland inquests.” In another, the legal representative of the PSNI admitted that further resources could be deployed and more progress made, but said, in terms, “What’s the point?” Is this not a disgraceful way to treat victims of the Troubles, who have suffered so much already? An abject failure by state officials and agencies to produce the necessary files in anything like a timely fashion also continues, despite the relevant state bodies being directed to do so by a serving coroner acting with the full authority of the Lady Chief Justice.

What on earth makes the Minister think that a body which the legacy Act sets up outside the judicial system headed by a retired former Chief Justice, however distinguished, will fare any better? Or, as many suspect, will those who will be denied proper inquests have to make do with a vastly inferior process on the cheap?

Having said that, I congratulate both the Secretary of State and Sir Jeffrey Donaldson MP on the resurrection of Stormont. We hope that the people of Northern Ireland will see the tangible benefits of functioning devolved government without delay. Sir Jeffrey’s detractors would be wise to bear in mind that having functioning devolution is absolutely critical to safeguarding the union. The DUP recognised at St Andrews in 2006—I remember it well—that the future of Northern Ireland is necessarily shared, and its governance will always entail compromise.

Appropriately, therefore, the package of measures presented in the Safeguarding the Union Command Paper manages to address DUP concerns within the boundaries of the UK’s international legal obligations. Those obligations relate both to the EU and to the Irish Government and remain sensitive and vital relationships for the UK, particularly as they affect Northern Ireland. What happens in Northern Ireland will continue to be crucial to those relationships.

With this in mind, it is worth being exceedingly careful in legislating in this area, and I seek clarification from the Minister on four specific areas. First, relating to the amendment of Section 13 of the European Union (Withdrawal) Act 2018 regarding the transparency obligation, what is the definition of—or criteria for measuring—what would constitute

“a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”?

Furthermore, the Command Paper states in paragraph 146 that, if there was to be such a significant adverse effect,

“the Government will set out any measures it proposes to protect the internal market”.

In such an eventuality, how might such measures be made known to Parliament by the Government? I would be grateful for an answer to that question.

Secondly, how is the House to understand the

“prohibition of certain Northern Ireland-related agreements”

that is to be added to Section 38 of the 2018 Act? This regulation specifically prevents only a future UK-EU agreement that

“would create a new regulatory border between Great Britain and Northern Ireland”.

In the Government’s view, does this constitute the complete fulfilment of the Command Paper’s claim to protect against

“future EU agreements which create new EU law alignment for Northern Ireland and adversely affect the UK’s internal market”?

My third question relates to the amendment of the Northern Ireland Act 1998 on the independent review after the democratic consent vote. Why is the independent review to include consideration of any effect of the Windsor Framework on, first, the constitutional status of Northern Ireland, and, secondly, the operation of the single market in services between Northern Ireland and the rest of the United Kingdom? I ask because the Windsor Framework does not cover services and because it is without prejudice to the constitutional status of Northern Ireland as part of the UK. Indeed, the latter point is to be made law with the amendment of the European Union (Withdrawal Agreement) Act 2020 that we are currently considering.

Fourthly, the Safeguarding the Union Command Paper announces some ambitious new structures and bodies. Given their importance to the realisation of the objectives of this legislation, I would like clarification from the Minister on the following matters. How does the new UK east-west council relate to existing bodies affecting all-UK and east-west governance, including the Prime Minister and Heads of Devolved Governments Council, the Interministerial Standing Committee, and the British-Irish Council? How, too, would it relate to the new ministerial group that, according to paragraph 152 of the Command Paper, is

“to oversee the implementation of the new arrangements”?

How is “political” and “governmental” participation in the east-west council from Northern Ireland to be decided? Is it to be the same as for the North/South Ministerial Council, with two Northern Ireland Ministers designated to attend each meeting, both of whom have to be jointly signed off by the First Minister and Deputy First Minister? How does the function of these new bodies and structures relate to the common frameworks programme?

19:45

Finally, I ask something for clarification. The Command Paper states in paragraph 17 that this deal will

“end dynamic alignment with EU law”.

Surely this is particularly misleading. Ministers are spinning the Stormont brake—which can be used only in very specific conditions and on amendments to or replacements of EU law under the protocol—as if that ends dynamic alignment. It does not. Northern Ireland remains dynamically aligned to the same portion of European Union law. To claim that the Stormont brake ends that is like saying, because one could occasionally choose to put a finger over one of the tiny nozzles in a shower head, that the shower no longer has a full-flow function. There are dangers in misrepresenting the facts or in overspinning this deal. No matter how welcome the end—the restoration of Stormont power-sharing, and I very much welcome that—this does not justify any means of getting there.

There are serious questions to be asked as to how much of an honest broker this Government really are regarding Northern Ireland. That the Secretary of State for Northern Ireland held a joint press conference with the DUP leader, but with no other party leader, and that the Prime Minister did not hold one with the Taoiseach—as is usual on such important occasions, and as I remember witnessing—is deeply worrying. The Government claim they negotiated solely with the DUP because the other parties did not have a problem with the Windsor Framework or with the resurrection of Stormont. However, that breaches the process established under the Good Friday agreement of negotiating with all parties—for example, the multi-party talks resulting in New Decade, New Approach in 2020, to which the Minister was an important party as an adviser.

The fundamental conundrum is that Brexit meant a stark choice for English Conservatives and unionists. The harder the Brexit—and both the Tories and the DUP chose a very hard Brexit—the harder the trade border in the Irish Sea and the greater the discomfort for unionists and those Conservatives who trumpet their support for the union but—notably like Boris Johnson and the noble Lord, Lord Frost, did with their Brexit deal—in fact often betray it. None of us knows how all this will play out over the next decade or so, but we can be sure that Brexit will continue to poison the shallow well of peace and stability on the island of Ireland, and that is a cause of continuing concern.

[Baroness O'Loan (CB)]

My Lords, I endorse the remarks of the noble Lord, Lord Hain, in relation to the wind-down of the inquests as a consequence of the legacy Act. What is happening in Northern Ireland is outrageous at the moment and causes huge distress to victims.

These instruments derive from the Command Paper Safeguarding the Union, which was stated to be the product of detailed discussions with the Democratic Unionist Party. Paragraph 2 of the paper refers to these discussions being conducted alongside

“engagement with other Northern Ireland political parties and the business community”.

Could the Minister tell the House with whom that engagement took place, since other parties were apparently not sighted of the content of this Command Paper? Can the Minister tell your Lordships’ House why the agreed processes of the Good Friday agreement, which are intended to ensure inclusivity and all-party engagement in order to make change or develop matters, and the Northern Ireland Act 1998, which was passed to make provision for the Government of Northern Ireland for the purpose of implementing the agreement reached at the multi-party talks in Northern Ireland, did not operate in this case?

It may have been predicated on enabling the DUP to return to government in the Northern Ireland Assembly—and I am glad to see the Assembly back and running. However, exclusion of all but one party at this critical time, and the failure to follow the principles established in the Northern Ireland Act in the creation of government policy affecting Northern Ireland, are unlikely to generate trust among the political parties or in the UK Government.

In the multiparty document recommending the Good Friday agreement to the people of Northern Ireland, the signatories said:

“We acknowledge the substantial differences between our continuing, and equally legitimate, political aspirations … we will endeavour to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements … we will, in good faith, work to ensure the success of each and every one of the arrangements to be established under this agreement. It is accepted that all of the institutional and constitutional arrangements—an Assembly in Northern Ireland, a North/South Ministerial Council, implementation bodies, a British-Irish Council and a British-Irish Intergovernmental Conference and any amendments to British Acts of Parliament and the Constitution of Ireland—are interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on … the other”.


In that context, there is a regrettable tone to parts of the Command Paper Safeguarding the Union. The agreements made seem to have been totally ignored, as the Government state in paragraph 14 of the executive summary of the Command Paper:

“Overall, this package of measures reflects the outcome of the negotiations with the Democratic Unionist Party; builds upon the progress secured by the Windsor Framework while securing further changes to its operation; looks forward with a broad range of significant further protections for the UK internal market, including in statute; and establishes the structures that will preserve these protections for the long-term”.


The Government say that there needs

“to be ongoing reflection … The Government is fully committed to that ongoing engagement and work, so that all agreed arrangements operate fully consistently with Northern Ireland’s place in the UK and its internal market, now and in the future”.

Much of what is of substance and contained in the Command Paper is not new; it derives from work done more than a year ago with the EU. Notwithstanding that, given the importance of trust to the functioning of the Northern Ireland Assembly, can the Minister assure the House that future reflection, negotiation and legislative activity will be the product of discussion with all the parties and that there will be no further situation in which the Government negotiate and then legislate on the basis of a document agreed with one party only?

Regulation 2(3) of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations prohibits the UK ratifying a Northern Ireland-related agreement with the EU that would give rise to a “regulatory border”. Apart from the fact that no Parliament can bind its successor, that provision lacks clarity and could result, given the significant economic consequences involved in future EU-NI agreements, in complex and lengthy litigation between parties seeking to assert that a particular measure does or does not involve a regulatory border.

Much good work has been done between the EU and the UK, and there are now vastly simplified procedures applicable in a range of areas such as medicines, customs, the transportation of goods, agri-food, the movement of pets and the entry of plants, shrubs, trees and seeds to Northern Ireland. All that indicates good and constructive work between the UK and the EU, but it is most important that this constructive working relationship is not damaged by unilateral action on the part of the UK.

Many issues remain to be agreed between the EU and the UK. For example, while UK public health standards will apply to goods entering Northern Ireland from Great Britain, EU requirements for animal health and plant health remain fully in place to prevent any risk of transmissible diseases on the island of Ireland and such diseases spreading to other parts of the EU single market. There is also a significant outstanding problem with veterinary medicines, which requires urgent action to prevent significant problems for the agri-food industry in Northern Ireland.

Complex new arrangements have been introduced through the Command Paper for internal market assessments, which will require consideration of whether a new regulation may result in increased red tape or barriers for trade between the constituent parts of the UK and within our internal market. The Government have committed themselves in the Command Paper and the SI to

“an enforceable means for the economic rights of Northern Ireland to be upheld in accordance with the Windsor Framework”.

The amendment of Section 13 of the European Union (Withdrawal) Act 2018, to provide a new transparency obligation, is to be welcomed. But as the noble Lord, Lord Hain, said, in the absence of a definition of the term “significant adverse effect”, it is not clear how that provision will be interpreted and to what extent it will be effective. Can the Minister provide any more information than that provided to the Secondary Legislation Scrutiny Committee that this will be a matter for government departments to assess?

The second SI seeks to ensure unfettered access for Northern Ireland goods to the UK internal market—that is to be welcomed. Some very burdensome processes resulted from the Northern Ireland protocol. The evidence received by the Northern Ireland protocol committee—now the Windsor Framework committee, on which I serve—was extensive and indicative of significant additional costs being imposed on businesses seeking to import goods from GB, which might pass through that part of the EU internal market in goods that exists in Northern Ireland to EU states such as the Republic of Ireland. It articulates a number of provisions for the Secretary of State for Northern Ireland to issue guidance to assist business and authorities operating in what can be a complex environment. However, the Command Paper refers to the fact that two separate regulatory systems will continue to apply in Northern Ireland: that of the UK and that of the EU in so far as goods are affected.

Today’s disclosure that the financial settlement that accompanied the return of the Northern Ireland Assembly is to be accompanied by conditions to be detailed “in due course” does not encourage hope. Northern Ireland is the lowest-earning region of the UK. It has 130,000 long-term sick people and has economic inactivity rates of 26.8%, including those who care for the long-term sick and injured, many of whom suffered and continue to suffer as a result of the Troubles. If the whole of the UK suffered from those levels of long-term sickness, some 4.5 million people would be long-term sick, rather than the current 1.1 million. Can the Minister assure the House that the conditions to be imposed will not make life even harder for the Northern Ireland population, in effect stealth taxing them further and thus reducing the existing very low incomes of so many people in Northern Ireland?

These instruments will be passed by your Lordships today. What is important is that future government legislative activity is the product of consultation and discussion with all the parties in Northern Ireland, so that trust in the Government develops, and that it takes into account the knowledge and experience of those who do business in and with Northern Ireland, so as to ensure maximum future prosperity in the whole United Kingdom.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady O’Loan, and to take part in the debate. There are two aspects to the package that the Government have brought forward. One is the Command Paper itself, which contains much in the way of the presentation, justification, pledges and promises of new bodies and so on. I hope that there will be an opportunity, at some time in the near future, to debate in full the Command Paper, because what we are also dealing with tonight is the second aspect of the package: the legal instruments and provision. They are what really matter, because it is only legal change—by legislation—that can alter the current arrangements under the protocol/Windsor Framework.

What do these statutory instruments actually do? In essence, the critical question for many unionists in Northern Ireland, from various parties and none, is: do they remove the Irish Sea border and its cause—the subjection of Northern Ireland to foreign jurisdiction regarding the production of goods and agri-food, a large part of our economy?

20:00

Looked at objectively, clearly and forensically, the answer is that, clearly, they do not. Whatever else they represent, they do not remove, at all, the serious constitutional, democratic and, for many, economic damage of the Windsor Framework. However, I accept that they do provide reassurances, clarifications and modifications to certain procedures in how the Irish Sea border and EU jurisdiction operate in practice. Many will see positives in that, and I fully understand it. However, these are all within the context of the continuing application of the framework and the protocol, since not a word of the protocol has changed.

I accept that, in the overall package that has been put forward by the Government in their Command Paper, there are things which are positive, which have been referenced already, such as the east-west council, InterTrade UK and the changes to the budget with the new formula, although I share the concerns about the intervention that appears to be taking place in terms of revenue raising. On the one hand, we are told by many that we need to get devolution back to allow Northern Ireland politicians to make decisions; then, almost immediately, we have senior politicians, including former Secretaries of State, warning that if Stormont does not act in a certain way, Westminster will intervene —so much for respecting the Sewel convention and devolution. I commend the work in other areas too and congratulate those who have been involved in achieving this. There are some significant promises and pledges, although we have heard some of them before; I hope that this time they will be delivered.

Coming back to the legislation, which is the key and operable part of what changes or does not change as far as the current position is concerned, these regulations are being made under Section 8C of the European Union (Withdrawal) Act 2018. These enable Ministers to make regulations for the purpose, importantly, of implementing the Northern Ireland protocol and for related purposes. That is the purpose of the section under which these relations have been found—to implement the protocol. That guides us in terms of what is presented in these SIs.

The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 contain five parts. First, we have the new provision, inserted into Section 38 of the 2018 Act, about the union. It is positive in words and declaratory in nature. I take no issue with its contents. However, it does not and cannot change or reduce any obligation under EU law in Northern Ireland. It is not operable or effective, nor has it any efficacy in terms of changing anything that is applied to Northern Ireland under the protocol following the Windsor Framework.

The second change under these regulations is that there will be a new Section 38A, which is said to future-proof Northern Ireland against any future UK-EU agreement which relates to the subject matter of the framework and creates a new regulatory border between Great Britain and Northern Ireland. However, paragraph 7.13 on page 4 of the Explanatory Memorandum states that:

“This provision does not apply to decisions or agreements made under the existing Windsor Framework”.

That is everything that currently applies, and which creates a regulatory border or which will continue to create new regulatory borders under the current Windsor Framework. Nothing is affected that alters that position. If it is wrong and the Government recognise that they need to legislate to prevent regulatory borders in the future, then what about the present position—or the new borders that can be created under the current Windsor Framework? We saw, on the issue of Parliaments binding their successors, how easily the Acts of Union themselves were set aside—“subjugated” according to the High Court, “modified” according to the Appeal Court—but all set aside when new legislation was brought forward.

The third change relates to Section 7A of the 2018 Act. It clarifies that the application of Section 7A is subject to the Stormont brake. Section 7A, as the Explanatory Memorandum explains, is, in the Government’s words, the “conduit pipe” by which EU law flows into Northern Ireland and takes precedence over UK law, whether made at Westminster or in the Assembly. There is nothing new in that; the Stormont brake is already in law, so this is a presentational matter. We have already debated the Stormont brake. The noble Lord, Lord Hain, has pointed to the difficulties with it. Our Select Committee on the protocol—on the Windsor Framework as it now is—on which I have the honour to serve, has looked at this and taken evidence on the very difficult and limited circumstances in which the Stormont brake operates only in relation to new law or to changes to existing law. Remember that the 300 areas of law to which Northern Ireland is subject under Annexe 2 to the protocol itself are not affected at all by the Stormont brake; the Stormont brake does not apply to them.

Fourthly, new Section 13C provides for statements to be made regarding Bills that affect trade between Northern Ireland and another part of the UK. What is the actual effect of this? The Explanatory Memorandum —I sometimes find the Explanatory Memorandum more illuminating than many other things that are brought to bear in relation to statutory instruments—states that this is simply a new “transparency obligation”. That is all. Section 13C requires a statement from the Minister that, in his view, the Bill does not contain provision having significant adverse effect on trade with Northern Ireland. However, the very next subsection gives the Minister a get-out: if he cannot make such a statement, he just declares that he cannot but that he wishes to proceed anyway, and that has to be in the form of a Written Ministerial Statement. I do not underestimate the importance of Written Ministerial Statements, but they do not bind in any shape or form this Government from deviating when it suits them from Northern Ireland. Lots of claims have been made about this in recent days. In response to concerns raised on the Tory Back-Benches, Ministers were at pains to reassure them that the deal does not constrain the Government from freedom to diverge from Brussels rules.

Fifthly, there is an amendment to Schedule 6A to the Northern Ireland Act 1998, to provide for the review mechanism procedure after the 2024 vote later this year—the so-called “democratic consent” mechanism. This review will be a significant milestone, but remember: the rules of the Assembly were deliberately changed. I well remember the debate in Committee on that matter in December 2020. Everybody who was present from Northern Ireland railed against the fact that here, for the first time in the Northern Ireland Assembly, a significant vote would be done by a majority vote, not by a cross-community vote; the cross-community safeguard was swept aside. Now we have a review which is designed to ensure against the vote being taken simply by a majority and not on a cross-community basis in November or whenever it will be held. How can we ensure that we get cross-community support having done away with the cross-community voting mechanism?

The second SI is on unfettered access. The issue in Northern Ireland has not been about access from Northern Ireland to Great Britain but about Great Britain to Northern Ireland. We were told from day one that there was no issue about access from Northern Ireland to Great Britain. The fact that we now have to put all this in law and in statutory form illustrates the nature of the problem of who controls trade between Northern Ireland and Great Britain. The issue here is about legal access, but it is about more than that. It is about competitiveness of businesses in Northern Ireland in their own market and in Great Britain, because Northern Ireland companies will be subject to producing according to EU standards. They may have the legal right of access to the market in Great Britain, but they will be competing against other businesses in Britain that could be producing to standards that are different from EU standards—less onerous perhaps or cheaper. It is not a question only of having legal access but of having a competitiveness in your own market. Why should businesses in Northern Ireland that are trading within Northern Ireland or within the United Kingdom be subject to EU law in terms of their production and so on? It does make any sense. It is not necessary for the protection of the EU single market .

The Minister mentioned guidance provisions that the Secretary of State can issue to appropriate authorities on access arrangements to Northern Ireland. Again, he did not mention that, on the very next line of the legislation, there is a provision that allows the Secretary of State to

“revise or revoke (in whole or in part) any guidance issued under this section”.

There is not much of a safeguard there in terms of that aspect of it.

I have gone through the statutory instruments and the changes in the time that is available, but I wish I had more time to go through them in even more detail. One thing, however, is clear: try telling people in Northern Ireland who are ordering plants and seeds and stuff from the rest of the United Kingdom that they can get those delivered to their home. They cannot. That is an Irish Sea border. Try telling people after the debate we had on the Rwanda Bill last night, in which Northern Ireland is still subject to the EU Charter of Fundamental Rights, that there is not some kind of Irish Sea border. That is the result of the Windsor Framework protocol still being in place.

We will debate the animal welfare legislation next week. The reason why banning live exports does not apply to Northern Ireland—whatever you may think of the issue, whether you are for it or against it—is that we cannot decide for Northern Ireland. It is decided for us because we are under EU law on that matter. None of that has been changed by this Command Paper.

On the lanes, three-quarters of non-exempted sectors of manufacturing in Northern Ireland—engineering, electronics, chemicals, et cetera—comes from companies with a turnover of more than £2 million. They are left under full red lane EU border controls as if importing from a foreign country, even when goods are staying in Northern Ireland or moving back to Great Britain. The Government have portrayed the red lane—I am hearing this all the time—as “This is for everything that is going into the Irish Republic or the European Union”. That is not the case. The manufacturing sector does not say that that is the case. It says that even stuff it is producing for the internal market has to go through the red lane.

As for the green lane, we are told that it has been scrapped and replaced by a new UK internal market system. But in the Windsor Framework Command Paper last year, there was reference to the UK internal market scheme, and then it had in brackets “or the green lane” in paragraph 10. The real test—and I ask the Minister to respond to this when he replies to the debate—is: which of the regulations or SIs setting up the green lane is going to be replaced or removed? Will it be the Windsor Framework (Retail Movement Scheme) Regulations 2023, the Windsor Framework (Enforcement etc.) Regulations 2023 or the Windsor Framework (Plant Health) Regulations 2023? Are any of those going to be taken away and replaced, modified or changed in any form? They are not here in front of this House tonight. They set the rules. Whatever else these SIs do—and some of it might not do any damage whatever to the union and might be positive in some respects—they do not undo the problems that we have with the framework. Can the Minister tell us whether EU regulation 2023/1231, which governs the trade between Britain and Northern Ireland for many types of food, is going to be modified or changed?

We do have the Assembly back now in Northern Ireland. The fact of the matter is that that means that we cannot just go on ignoring the matters relating to the Irish Sea border or the framework or the protocol. There are people who would now prefer that it goes away. However, for unionists in Northern Ireland not to highlight these matters, not to show the damage that has been done, not to demonstrate the iniquity of the constitutional and democratic injuries that have been done to the people of Northern Ireland, would be to simply accept and acquiesce in all of this. If we are to have any prospect of making any change in the review later on this year, or in the TCA talks next year or whenever, we will not achieve any progress if none of these issues is being highlighted, because people will say, rightly, “There is no issue; everything has been agreed or accepted”. We must, therefore, continue to put a spotlight on these issues. We owe it to the people of Northern Ireland to keep doing that, and certainly on these Benches we will.

20:15

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Dodds, although he and I disagree on the fundamentals of the Windsor Framework and on the fundamentals of Brexit. I say at the outset that this debate tonight and many other debates that we have are a consequence of Brexit and the decision that was taken in 2016 in relation to the referendum. I declare my interests: I am a member of the Secondary Legislation Scrutiny Committee of your Lordships’ House and of the Windsor Framework Sub-Committee, where we have given in-depth scrutiny to all the various aspects of the protocol and the Windsor Framework.

In fact, we had a very good visit in Belfast some two weeks ago on the whole issue of veterinary medicines. We heard directly—I was going to say “from the horse’s mouth”—from the veterinarians and those who supply the veterinarians about the issues and challenges that they are presented with, because even before Brexit, there was the issue of product rationalisation. These issues about the availability of and accessibility to vaccines, which were constrained by Brexit, need to be addressed.

I welcome the restoration of the political institutions—the Assembly, Executive, North/South Ministerial Council and British-Irish Council. I congratulate those who were involved in those discussions, the Ministers who have been appointed, the members appointed to the committees and my own colleagues, who now form the Opposition under Matthew O’Toole. In the Assembly, the Executive, the North/South Ministerial Council and the British-Irish Council, public representatives from Northern Ireland will have that opportunity to voice their issues and challenges, and to try to find solutions.

However, as a democratic Irish nationalist, I do not like this Command Paper much. It represents a one-sided deal between the UK Government and the DUP, and there is no evidence of intergovernmental partnership with the Irish Government on inclusivity; there is no evidence of that inclusivity, of multi-party talks, of parity of esteem or of rigorous impartiality. Those concepts, which characterised previous agreements, do not exist. While I understand that this was important to get a deal over the line and to ensure the restoration of the political institutions, I say gently to the Minister that it is most important that the UK Government work according to a programme of inclusion and revert to the basis of bipartisanship with the Irish Government, parity of esteem and the principle of consent. They are vital to the resolution of any of the outstanding issues with which we are confronted.

There are those who would say that this represents a departure from the Downing Street declaration of 1993 about the UK Government’s position and the Good Friday agreement, to which the principle of consent was central. I refer and defer to my colleague on the Front Bench, the noble Lord, Lord Murphy, who was a negotiator on behalf of the UK Government on the strand 1 proposals, along with my colleagues in the SDLP, the noble Lord, Lord Empey, and the Ulster Unionists, and other parties.

But, as a nationalist, when I read this document I fear that my colleagues and I do not exist. We need a departure from that to ensure that all of us together can achieve that level of bipartisanship, partnership and parity of esteem. I urge the Government to move towards that.

My noble friend Lord Hain referred to bodies in the Command Paper that will be subject to subsequent legislation—Intertrade UK and the east-west council. How do they fit within the existing structures of the Good Friday agreement? I refer to InterTradeIreland, the British-Irish Council and the British-Irish Intergovernmental Conference. Are they superfluous to what already exists?

The actual regulations are, in many ways, the legislative outworking of the Command Paper, as was already referred to by the noble Lord, Lord Dodds. What will be their impact on the Windsor Framework? Do they represent a departure from or a building on the Windsor Framework that was negotiated with the European Union? What consultation and discussions took place with the European Union on these statutory regulations? Was there any need for such discussions, because there might not have been any material change to the Windsor Framework? What is the impact on the Good Friday agreement and the principle of consent? What is the impact of these and future SIs on the all-island economy and the existing north/south structures? We have, for example, the North/South Ministerial Council and all the north/south implementation bodies that look at cross-border issues such as tourism, the dairy industry, Coca-Cola, food processing and the drinks industry.

As the Secondary Legislation Scrutiny Committee stated in its report on these regulations:

“Given the complexity of the interaction of two regulatory systems in NI”—


accessing the EU single market and being part of the UK internal market—

“we note the importance of the forthcoming guidance to provide clarity to businesses and other stakeholders on how the new arrangements should be applied in practice”.

Can the Minister precisely outline the framework for the publication of that guidance, and what engagement and consultation will take place with your Lordships’ House and the other place, and with the devolved institutions and communities in Northern Ireland, on planned future legislative measures?

Finally, what is the relationship between these regulations and the border target operating model, and what is their impact? I welcome that with these regulations there will be a lessening—I hope, an eradication—of the restrictions to unfettered access between the UK and Northern Ireland. But we must remember that these regulations, the protocol and the Windsor Framework are the result of Brexit. The protocol and the Windsor Framework were clearly seen as mitigating measures to deal with the particular circumstances on the island of Ireland.

I would like to know what impact these regulations will have on the operation of north-south co-operation and trade. I firmly believe that, whatever happens, we have to build on good will, believe in the commonality of interest, and build on friendships and relationships, in order to create a better place for all of the people in Northern Ireland.

[Lord Morrow (DUP)]

My Lords, I will not repeat in detail what has already been said but will briefly underline some of the most important points as I see them, before looking in more detail at some of the specific provisions in the regulations before us today.

The green lane has neither gone nor been replaced. Paragraph 10 of the Windsor Framework Command Paper, published triumphantly by the Prime Minister on 27 February 2023, states that the Windsor Framework

“puts in place a full set of new arrangements, through a new UK internal market system (or green lane) for internal trade”.

The Safeguarding the Union paper, by contrast, commits the Government to:

“Replacing the green lane with a default UK internal market system”.


The green lane and the internal market system are the same thing. You cannot replace something with itself. The Government are doing their best to pull off the sleight of hand of the century, but in my opinion they have failed. The people of Northern Ireland are not fools. These regulations change nothing fundamentally in what were called the red and green lanes until the week before last.

Call them what you like. While we have some innovations from the monitoring committee, Intertrade UK, and the new dispensation from the EU on those rest-of-the-world products that have been through UK customs being allowed to move from one part of the UK, that is GB, to another, that is Northern Ireland, the basics remain unchanged. This is demonstrated most clearly by the fact that the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024, before us today, do not repeal or amend the legislation introduced last year to give effect to the green lane UK internal market system legislation.

As such, fundamentally, the legislation before us today leaves the Irish Sea border untouched. Goods that do not travel through the red lane will have to travel through the green lane—aka the UK internal market system—which requires the companies concerned to join the trusted trader scheme. In relation to that scheme, just yesterday the Trader Support Service contacted businesses which bring goods from Britain to Northern Ireland. In that correspondence, the Trader Support Service confirmed that Northern Ireland is treated as EU territory, with Northern Ireland products treated not as UK goods but EU goods. That speaks volumes.

Some of the companies have had this information brought to them. They have an export number and they complete both customs and SPS border paperwork, and are subject to 100% documentary checks, mandated by Regulation 12 of the unamended Windsor Framework (Retail Movement Scheme) Regulations 2023, and 10% to 5% identity checks, mandated by Regulation 13 of the same 2023 Regulations.

This confronts us with the central difficulty with the name of the “UK internal market system” and the title of the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024 before us today. What they describe is not unfettered access or an internal market but rather the negation of both. The fact that in order for goods to cross from GB to Northern Ireland one needs an export number and to submit customs and SPS forms, albeit simplified, and be subject to 100% documentary checks and 10% to 5% identity checks, is not unfettered movement within the same internal market. If it was, there would be no need for an export number, and there would be no customs paperwork or customs documentary checks, and no identity checks at a border control post. These border demands give effect to fettered access, as goods move from one internal market to another. If we want to see unfettered access within an internal market, we need to look instead at goods moving from the UK to the Republic of Ireland, across the land border. Here there are no requirements for customs forms, simplified or otherwise, and no customs documentary checks and no identity checks.

20:30

Regulation 2 of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 states:

“The Windsor Framework is without prejudice to … Northern Ireland’s part in the economy of the United Kingdom, including its customs territory and internal market”.

That is simply declaratory. It makes an assertion, but we all know it is not true. The Windsor Framework places Northern Ireland in a different internal market for goods than the rest of the United Kingdom. These regulations, as we have seen, do nothing to remove the border in the Irish Sea which places Northern Ireland in a different internal market for goods and can be crossed outside the red lane only if you have an export number, if you complete customs and SPS paperwork, and if you are subject to 100% documentary checks and 10% to 5% identity checks.

Regulation 2 is supposed to provide reassurance on the basis that it states that the Windsor Framework is without prejudice to Parliament’s sovereignty over the Act of Union. What that really says is that, while Parliament has the power to stand up for the equal rights of all UK citizens and to reverse the arrangements flowing from the partial suspension of Article 6 of the Act of Union that have resulted in the partial disfranchisement of 1.9 million UK citizens who can no longer stand for election to make the laws to which they are subject in 300 different areas, Parliament is not intervening to put this right. What a tragedy. I am not sure on which planet being presented with these facts would be deemed to be reassuring. It is profoundly disturbing and suggests that, notwithstanding their ability to correct the present injustice, Parliament and the United Kingdom Government do not have the moral courage to stand up for all their citizens against the wholly unacceptable demands of foreign powers.

The SI then continues with evasion, hoping that it can avoid the need to take responsibility in the areas where hitherto it has not taken responsibility, by changing the subject and saying that it will not take any further irresponsible decisions, but ignoring the key issue—the irresponsible decision it has already taken to facilitate the partial disfranchisement of 1.9 million of its own citizens.

The EU might have a preference for managing a border in a particular way, but the United Kingdom and this Parliament cannot allow it to create the impression that its preferred way of handling the border is the only way of managing the border when other ways exist. Mutual enforcement may not be the EU’s preference, but in a context where that option exists and where the alternative involves the partial disfranchisement of 1.9 million people, violating the heart of the Good Friday agreement principle of consent and disrespecting the territorial integrity of the United Kingdom, the EU’s preference for managing the border cannot be the last word on the matter. What UK Government worth their salt could possibly settle for such a shameful outcome?

In this regard, it is important to remember that mutual enforcement is actually a way of managing the border that was developed within the EU by three supporters of the EU: Sir Jonathan Faull, the then director for competition policy and deputy director-general at the directorate general for competition in the Commission, Professor Weiler and Professor Daniel Sarmiento. It is also important not to forget that this solution was described by the Financial Times as a “win-win” and that, writing after the EU decided to reject mutual enforcement in favour of the current approach, Weiler wrote:

“( … We continue to believe that there were answers to all the objections that were raised, but the Commission team seemed to be locked into their repeated assurance that there were no alternatives to the backstop). Be that as it may … eventually the original backstop had to be modified, though at the price of a huge concession by Boris: the introduction, however disguised, of a customs frontier within the UK. But does anyone believe that is a stable solution?”

What we need now is not SIs but a Prime Minister who is prepared to stand up for our country: the UK. He should declare the Windsor Framework void on the basis that it is not a valid treaty because, despite Article 1, the effect of the framework is to disrespect the territorial integrity of the United Kingdom. That means that it is not a valid treaty. He should tell them that if they want to revisit the trade and co-operation agreement, they can, but they must realise that, going forward, the territorial integrity of the United Kingdom and the equal rights of its citizens to stand for election to make the laws to which it is subject are not up for debate.

[Lord Bew (CB)]

My Lords, I rise, first, to make clear my strong support for these two statutory instruments. I say one thing straightaway: there was no possibility of a settlement to the difficulties created by Brexit that did not involve an element of compromise. I have heard the phrase “the people of Northern Ireland” used several times tonight, as if there were one people of Northern Ireland. There are in fact two peoples in Northern Ireland; that is very brutally the case. The latest agreement reflects the compromise, and I will come back to why that is so.

Equally, I have heard a lot of talk about business opinions. The truth is that the great bulk of business in Northern Ireland is solidly in favour of the Windsor Framework; again, I think it is worth recording that. But the most important thing of all is to record the fact that there are two communities.

I have heard a lot tonight about how the Good Friday agreement has been in some way flouted. I want to say something quite important about this. The international agreement places certain responsibilities on the hand of the sovereign Government. Where a situation of alienation arises in one community or the other, the sovereign Government—in this case, obviously, the United Kingdom Government—have a responsibility to deliver: to act in a way that ends that alienation, if at all possible. That is what the international agreement means.

I have heard aggrieved nationalists protest about the unionist content of the Command Paper. I did not hear that when, for example, the Irish languages Act went through this House. That was clearly designed to deal with the alienation of one section of the community, which wanted that Act. I am not aware, rightly or wrongly, that there was any enthusiasm for it in the unionist community.

This is another version of a similar attempt by the Government to fulfil their functions, which were given to them in an international agreement. It is as simple as that. There was no other way of restoring Stormont had the Government not faced up to the fact that every unionist public representative was against the protocol as it then existed. That includes the Ulster Unionist Party as well as the DUP. There was no other way of restoring Stormont but by the route that has been chosen. I am slightly surprised tonight to hear people say, “I’m glad Stormont’s come back but I don’t like the way it was done”. Let us be clear: there was no way of doing it other than the way that the Government chose—none whatever. Everything else is just pie in the sky. There was only one way of doing it, and this Command Paper is part of that way.

Perhaps I could put that in some context. This Command Paper, which is basically unionist in tone, is number five in a series of key documents. The first was the joint report of December 2017, then came the withdrawal agreement that the May Government agreed, which did not in the end get through Parliament, then the withdrawal agreement that the Johnson Government did agree, and finally we have the Command Paper Safeguarding the Union. It is the fifth item on the bookshelf.

The crucial thing to understand is that the joint report of 2017, because of the weakness of the then UK Government, was a huge victory for the Irish Government—so much so that senior Irish officials regarded it as having gone too far. In particular, there is the commitment to the island economy. The island economy may be said to exist in agri-food; otherwise, it does not exist in substance. There are two economies on the island of Ireland. This was a flouting of the Good Friday agreement.

I can remember the days of 1997 and 1998. I am looking at the noble Lords, Lord Rogan and Lord Empey, who may remember this. The Irish Government never talked in those discussions about an island economy. The Irish Government, let alone the British Government, talked about two economies on the island of Ireland. That was the basis of the agreement reached in 1998. It did not stop those people who insist that the Good Friday agreement was about an island economy—the TUV said 25 years ago, “This is an island economy; political unification is just about to come”. Exactly the same thing is being said 25 years later, with equally little evidence, about the Windsor Framework. It is just a repetition of a tired old trope.

The Safeguarding the Union paper reflects the hard reality that the European dimension of the British economy and the all-Ireland dimension of the Northern Irish economy are limited; 20% in total, probably something of that order, of the Northern Irish workforce will have to think about European law in these firms. Most of these are extremely enthusiastic to embrace it because it is important to their export concerns. Having said that, the bulk of the economy in Northern Ireland, with its large state sector and so on, is locked into the rest of the United Kingdom. These are just brutal facts; no amount of rhetoric will change it. But it was very dangerous for the UK Government to agree in 2017 that they would foster an island economy.

Five years on, we have now moved to a very different place. The withdrawal agreement that Theresa May brought to this House makes absolutely no reference to the existence of a Northern Irish Assembly. It does matter what the people of Northern Ireland think—both sections of them. It matters what they think about these events and they should not be imposed. There should be a mechanism for consent. The 2019 withdrawal agreement opened the door to a mechanism of consent, and later that year the Assembly would have that vote on the mechanism of consent. I do not accept the idea that it is only the views of one community that matter in this respect. The views of both communities matter. For all its faults, the 2019 withdrawal agreement had a role for the Assembly and moved away from the idea that you can just impose willy-nilly on the people of Northern Ireland these arrangements without any mechanism of democratic consent.

That is the context. Yes, there is a unionist tone to Safeguarding the Union, but it has to be seen as an answer to a progress of four other documents. It is the fifth document in a process to sort this out. It is a point of rebalancing these arrangements and it was the only way to achieve the return of devolution in Northern Ireland, which we all recognise is a good—although some of us do not seem willing to accept the means by which it was done.

I want to say a word about how this debate is progressing in Northern Ireland today. I accept completely that there is an argument, as the noble Lord, Lord Dodds, eloquently raised, about European law. However, the seven tests of the DUP, put to the people of Northern Ireland in June 2021, do not make European law the central issue—or any type of issue. It is just indisputable. It is only two little words; they are not there. The people of Northern Ireland were asked to vote on this matter; they were not asked explicitly to vote on the question against, “I will not live with any form of European law”. They simply were never asked this. The seven tests are absolutely explicit about the issues. There will be an argument about how well they have been met, and the current DUP leadership argues in substance that there has been substantial progress in meeting the seven tests.

What has happened is that there has been an interaction in the way that I have talked about between the Good Friday agreement and the Act of Union, properly understood. Again, those who argued on the Act of Union had apparently just never read it. If they had, they would have warned their supporters that it includes tariffs and an Irish Sea border far stronger than anything that is included here. It was intended to be temporary but operated for 79 years. They would have told their supporters that there were customs borders between Britain and Northern Ireland for most of the life of the union, unless they wanted to frighten them and say, “This is the most frightening thing in the world”. It is fairly clear that those who made an enormous storm about the Act of Union were unaware of its full contents and the provision that it makes—for example, taxes on Bibles crossing the Irish Sea.

20:45

That is now over and Northern Ireland has moved on, but we have to understand that there is a serious attempt in the Command Paper, which is a very detailed historical exegesis, to deliver on the part of the Act of Union that is living. The people of Northern Ireland should be treated fairly in these matters, and it is a serious attempt to expand that part of the Act of Union in so far as that is possible. I assure the House that compromise is unavoidable on these issues.

I have one final point about the achievement embodied in these statutory instruments and the re-establishment of the Assembly. The Conservative Party is in the position where it supports the union willy-nilly; it has no conditions on that. That is not the Labour Party position in recent times. Since Tony Blair’s famous speech at Balmoral, which I and the noble Lord, Lord Murphy, remember, the position of the Labour Party is that it supports the union, so it is not neutral on that, but only on the basis of a working power-sharing devolved north-south set of arrangements. That is the classic position of the Labour Party as I understand it, and I do not hear any sign that it has changed. As a result of this agreement, the instability that might have flowed from the possible election of a Labour Government will not flow because we now have power-sharing devolution. The possible tensions between a London Government and Northern Irish unionism will not be there. That is a very significant point but so far, in all the recent debates, it is not a point that I have heard made on behalf of the deal that has been done.

[Baroness Hoey (Non-Afl)]

My Lords, I start by stating strongly, at the beginning of my contribution, my agreement with the noble Lords, Lord Dodds and Lord Morrow, that not one word of the protocol, rebranded as the Windsor Framework, has been altered. That is reality. The Irish Sea border remains with the same force that it always did. Despite the claims made by the Prime Minister, the Secretary of State and Sir Jeffrey Donaldson that the Irish Sea border is removed and the Act of Union restored, nothing could be further from the truth. Indeed, a quarter of the glossy Command Paper is spent basically explaining why the Acts of Union must remain suspended, as the Supreme Court said they were, while at the same time trying to mislead people into believing that in fact they have not been. That is confusing, but that has been the purpose of the way this whole thing has been presented: smoke and mirrors to distract, mislead and cause enough confusion that the deal would be accepted by those who had not looked at it in great detail.

There is a natural desire among MLAs to get back to the Assembly and the Executive. Indeed, whenever the protocol was mentioned in this place, noble Lords would say, “Oh, if only we could get the Executive back”, as if that would sort everything out. Many of the MLAs wanted to get back because they thought that they would be able to sort out the health service, the public service problems and other issues. We will see how that works out.

Before I turn directly to the statutory instruments themselves, I pay tribute to the grass-roots movements in Northern Ireland that, along with many members of the DUP, stood firm on their promises to the electorate, and to the MLAs who stood firm and were not taken in by offers of Speakerships, red boxes or committee chairs. The noble Lords, Lord Morrow, Lord Dodds, Lord McCrea and Lord Browne, and the MPs Carla Lockhart, Sammy Wilson, Paul Girvan—my MP—and Ian Paisley were also opposed to the deal.

It is interesting that Sir Jeffrey and indeed other new Ministers in the Assembly spent the first few hours having a go at, and being really angry about, Jim Allister, the leader of the TUV. They went on about how he had simply shouted and not achieved anything. That is interesting because I appeared on lots of platforms all over the country in Northern Ireland with Jim Allister, Sir Jeffrey, Jamie Bryson and a number of others at the anti-protocol rallies, and it is rather ironic that they turned their fire on Jim Allister for shouting when I recall many occasions when Sir Jeffrey shouted even louder.

The reason that Sir Jeffrey and others turned their fire on Jim Allister and others was to hide the embarrassment of not having kept their promises. They had shredded all their promises. The word “honesty” has to come into politics. When people make promises and then do not keep them, that does not do the cause of politics and politicians any good.

I want to deal particularly with the red lane in the statutory instrument, and how that is being dealt with. We have heard over and again that the red lane is acceptable because it pertains only to goods that are going to the Republic of Ireland. If that were so, that would not be a problem. The difficulty is that this legislation does not touch the definition of the red lane, so it continues to be concerned with goods going to the Republic and with the crucial inputs that go into Northern Ireland manufacturing that come from the rest of the United Kingdom. It is important to be very clear that the green lane—or the UK internal market system—pertains only to completed consumer goods. The initial name for the green lane was the internal market system, so that has not been changed. The idea that it pertains only to completed consumer goods is deeply worrying, suggesting that the Northern Ireland part of the UK economy had become a consumer element, not a producer. Economic life based just on consumption is completely unsustainable; it must be based on a balance of consumption and production.

The ultimate destination of the inputs that travel on the red lane to facilitate manufacturing in Northern Ireland is completely unknown at the time that the inputs travel. The products that will result from the productive process in which they play a part have not even been made at that time. The majority of goods that are made in Northern Ireland and do not remain in Northern Ireland end up going to Great Britain but, because there is a chance that they will be sold in the Republic, the EU says that those goods must be produced to EU standards, in line with EU law and that, to secure this, the whole of Northern Ireland must be subject to the EU and not UK law in that aspect of trade.

That takes us to the very heart of the problem with the protocol—it is EU law. It is because of the possibility that goods manufactured in Northern Ireland entirely on the basis of Northern Ireland inputs could be sold in the Republic that the EU claims the right to make Northern Ireland law, notwithstanding that Northern Ireland is not in any way represented in any parts of the EU’s legislative chambers or the European Parliament. It claims the right to make not just one law for Northern Ireland or 300 laws, but law in 300 areas.

Some try to suggest that it is no longer a problem because of the Stormont brake. Although the Stormont brake gains a new reference in the constitutional status of Northern Ireland regulations 2024, nothing in this statutory instrument changes how the brake operates in any way, as has already been said by the noble Lord, Lord Dodds. It suffers from the same fatal flaw—rather than addressing the problems of the Windsor Framework, it partly disfranchises 1.9 million UK citizens so that in 300 areas of law, people in Northern Ireland can no longer stand for election to make the laws to which we are subject. The brake fobs us off with the demeaning lesser right of standing for election to try to stop laws coming into force that have already been made for us by a foreign parliament.

This problem must be understood from both the domestic and international sides. Viewed domestically from within the UK, the essence of our political settlement is that we all have the positive right to stand for election to make all the laws to which we are subject, not a negative right to try to stop laws made by legislators from other countries. The idea that any UK citizen, from any part of the UK, should be asked by Parliament to settle for such an arrangement is really extraordinary. I believe it effects a breaking of faith with respect to the basic covenant that underscores our politics. It also creates two classes of citizens: UK citizens in England, Wales and Scotland continue to have the right to stand for election to make all the laws to which they are subject, while in Northern Ireland we have the right to stand for election to make only some of the laws to which we are subject. As someone living now in Northern Ireland and from Northern Ireland, but who represented an English constituency in another place for 30 years and was elected eight times, I cannot admit this profound breaking of faith within the body politic. This is a real rupture and it is doing untold damage overall to politics in this country.

Of course, that is not the full extent of the difficulty because the brake does not apply, as has been said, to all the laws imposed from Brussels. To that extent, rather than being fobbed off with a negative rather than a positive citizenship, we have to make do with no citizenship at all. That is not all: if the change in the imposed law is made to existing law, any attempt by Stormont to block the law can be stopped by the EU—and if the UK does not agree with the EU then the matter goes to international arbitration, which could side with the EU against Stormont. If the change is by way of creating new EU law, meanwhile, the Government can overrule Stormont if the Minister believes that there are exceptional circumstances that justify the adoption of the decision.

These limitations were in the brake as introduced last year and the regulations before us do nothing to address them in any way. In this regard, the suggestion that Regulation 2 of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations provides reassurance is based on a complete misunderstanding of our political system and of the people of the United Kingdom. The sovereignty of Parliament is not in doubt. It is precisely because Parliament is sovereign and yet has decided to partly disenfranchise 1.9 million UK citizens, in response to European Union pressure—when it could just as well have decided not to give in to that pressure—that makes the current arrangement so objectionable and so destructive of the trust upon which our politics depends.

How can we tell the people of Northern Ireland that it is important to go out and vote when we so happily acquiesce to the process of undermining the value of the vote in Northern Ireland? Indeed, how can we tell citizens that it is important to go out and vote in other parts of the UK when our actions in Northern Ireland suggest that having a voice is so unimportant that its value can be rendered null and void in so many areas of law? It is a shameful arrangement. It is very sad that so many noble Lords and Members of Parliament in the other place do not seem to realise this. This shameful arrangement places the trust and integrity on which our whole body politic depends in jeopardy.

If we look at the international aspect, that is exactly the same. It is wrongly asserted by some that international law rests on the foundation of pacta sunt servanda—that agreements must be kept—but that is not the case. If it was, a treaty effecting disenfranchisement or slavery would be unimpeachable because it rests in a treaty. In truth, however, in international law there is a clear understanding of certain ground rules that must be respected in making valid treaties. These testify to respect for the first move of international relations: the move of recognition, when one state recognises the right of another to exist and its territorial integrity, with state A thus renouncing any claim to making law for its territory or any part of its territory, in return for reciprocation from state B.

21:00

To this end, the statement that nothing may be construed as permitting any activity contrary to the purposes of the principles of the United Nations, including sovereign equality, territorial integrity and the political independence of states, is a constant refrain in international agreements of all kinds. Drawing the domestic and international perspectives together, we can see that implicit in it is renouncing any claims to make the laws of another jurisdiction. Implicit in respecting the principle of territorial integrity is respecting the integrity of the citizenship of its citizens.

Rather than being different things, these are two sides of the same coin. While article 1 of the Windsor Framework involves the EU saying that it respects the territorial integrity of the UK, most of the rest of the framework claims the right to make laws for part of the UK. Thus, it refuses, as a matter of practice, to recognise the territorial integrity of the UK. As the noble Lord, Lord Morrow, said, the Windsor Framework should be declared void on account of its failure to respect the basic ground rule of international relations and recognise the territorial integrity of the UK.

The truth is that the framework might suit the European Union, and particularly the Irish Government. I say to the noble Baroness, Lady Ritchie, who spoke about good relations between the Irish and British Governments, that we do not have very good relations when the Irish Government are taking the British Government to court over the legacy Act; that does not show very much good will from that particular Government. This has been in their interest, yet they say that the motivation is to respect the Good Friday/Belfast agreement.

What has been effected is the most dramatic assault on the Belfast agreement’s consent and cross-community principles. It is just outrageous. I know that the Minister thinks it is outrageous because he was there when we were discussing it at one stage before he became a Minister. The only thing that has been changed to suit was moving from cross-community to majority vote for the protocol. You have to ask why that was done. That has changed the whole feeling of trust in our Government for many people in Northern Ireland.

I will add one more thing. The noble Lord, Lord Dodds, talked about seeds and potatoes and other things that might not be able to come in easily to consumers. I got a message this morning from someone who works in a supermarket. I am not going to name it. At the supermarket, a whole pile of flowers had arrived, presumably because it is apparently St Valentine’s Day tomorrow—it is long past when I think about St Valentine’s Day. Those flowers, after appearing in the supermarket, had to be withdrawn because they had a message from the people who had sent them saying, “Sorry, EU law has been broken”. Those flowers had to be taken away from the supermarket. This is happening in Belfast today. Every single day people find there is something new and different.

All those who think that somehow this is going to go away now that the Assembly and Executive are back, and we have a First Minister and Deputy First Minister walking around very happily together—that everything is solved—are going to find that every single day, every single week there will be something new.

What we do not need are statutory instruments. These are nice fluffy documents, with some quite helpful things in them, but it is just all words about good relationships with the British Government and their support for the union. We need a Prime Minister and Government who will stand up for the United Kingdom against the European Union and recognise that we voted to leave the European Union, but that Northern Ireland has been left in the European Union for so many aspects of its work and life. That is where the real problem is going to come over the next month or two.

[Lord Alderdice (LD)]

My Lords, one of the strengths of your Lordships’ House is that it can look at legislation with a microscope and draw back and look at the larger picture. I want to try to do the latter for a few minutes.

There is not much doubt that the reason that we are addressing these statutory instruments, and indeed the wider question, is as a consequence of Brexit. Without Brexit, none of these issues would have been around. The majority of people in Northern Ireland did not vote for Brexit—they voted to remain—so when we talk about the people of Northern Ireland wanting this, that or the other, one of the things we should remember is that they did not want Brexit.

The consequences of Brexit were all known in advance. They were not all paid attention to in advance—some people did not want to see what the consequences were—but they were there to be seen. Ironically, the idea of Brexit was supposed to be that we would be free in the United Kingdom—whatever exactly that meant. But what do we find so many years later? That we cannot talk about anything at all without paying attention to Brexit and giving off about the fact that we cannot ignore the European Union and we wish we could. That is what I hear, but we cannot ignore it.

The reason for the protocol was not to address problems in Northern Ireland; it was—and I have said this many times—that a consequence of Brexit was to damage the relationship with the European Union and the United States. After a couple of Prime Ministers not making much of a show of things, Prime Minister Rishi Sunak realised that the key thing for him to do was to repair the relationships with Europe and the United States, because, despite all the talk of being able to have lots of agreements, co-operation and all sorts of things, it was not possible at all; you have to have relationships with these two powerful entities.

The idea that the wishes of some of the people of Northern Ireland should drive the interests and decisions of the British Prime Minister and the wider world is not very realistic. We end up having to address the reality and the consequences. We can be cross about it, and I understand that. We can feel let down, even betrayed, and I understand that. But in the real world there are consequences and we have to try to find some way of addressing them.

Another thing I have heard about is inclusivity. Of course, the Good Friday agreement was not inclusive, because the DUP and the UKUP, as it was at that time, walked out. They were not part of the Good Friday agreement; they never supported it. In fact, there was talk about the only thing that ever changed, but actually there were changes under the St Andrews agreement and they turned out to not be a very good idea in the long run for some of the people who wanted to see those changes. For example, it brought about the fact that we have a Sinn Féin First Minister, which is not something that some of the people who demanded changes would have wanted to see. We have to be very careful what we ask for.

It is also the case that the whole structure of the Good Friday agreement and the Assembly was not entirely inclusive. It included unionists and nationalists—and the noble Lord, Lord Bew, was talking about the two communities—but there is an emergent third community, which has a very strong view about things and which is not partisan unionist and not partisan nationalist. It takes a view that what we want to do is to find what is in the best interests of the people of Northern Ireland at the particular point when that generation is making a decision. At the moment, that may well be to stay within the United Kingdom, and in a generation or two generations’ time a different decision may be taken. It is not a partisan view, but the whole structure of the Assembly’s voting arrangements is not inclusive from that point of view.

Some people will not sign up for agreements—and almost all of us at one point or another do not want to sign up for an agreement—but the one thing we must understand is that, when we do not like an agreement or want an arrangement, the solution is not to bring down the whole system of government. If we do not agree with something in Westminster, we vote against it and we argue against it, and we try to persuade people of it, but we do not bring Westminster down, because that would bring chaos. Both Sinn Féin and the DUP have found ways of bringing down the structure of governance in Northern Ireland, and it has not made for a better life for the people of Northern Ireland or for more stability in Northern Ireland. We have to remember that. I say to the Minister, and to any future Minister on the other Benches who may have the responsibility, that we need to end the notion that, if you do not like what is happening, the solution in Northern Ireland is to bring down the whole system of government. Whatever else happens, we have to find a way of making sure that that does not happen.

I have a good deal of sympathy with some of the things that have been said on the other Benches, particularly the presentation by the noble Lord, Lord Dodds. There is a great deal of truth in what he says. Promises have been made, undertakings have been given and a certain spin has been presented about what is said in these documents, what the outcome of them is and so on. He is quite right. But the question is: what is the alternative?

I have said a number of times, in your Lordships’ House and in other places, that in my political judgment—we can all be wrong—the people who need a Northern Ireland Assembly most are the pro-union people of Northern Ireland. That is the only place where they will really have a platform to express their views and have their say. It is absolutely not an unlimited say, but at least it has the possibility of being expressed. That is why I have said, on a number of occasions, that, without an Assembly, there will be a drift towards what I have called de facto joint authority, not de jure—we will not see votes and things like that. What will happen? The people on this side of the water will find themselves wanting to co-operate with others who have a more powerful economy and position in the world than Northern Ireland on its own, and that is where the drift of politics will go.

I understand the protest and the anger, and that things do not look as they were meant to and so on. But there is a sense in which Sir Jeffrey Donaldson has tried to save unionist people from themselves, in a way, and from what some of them were trying to do. There is a limit to where protests can take you, and they can take you to the point of self-destruction. At some cost to his own skin, I suspect, Sir Jeffrey has pulled things back and said, “Look, this is the best I can get. I’ve tried really hard—I honestly have—and this is absolutely the best that I can do. You may not like it and you may be disappointed in it, but I’m trying to do the best for Northern Ireland”. I think he probably has done the best that he can do, and we have to see it in that context and in the wider and longer context: the question of what the relationships will be further down the line with this country, with our other neighbours, with a changing global economy, with a changing demography in Northern Ireland and with a changing set of views among the different groups of people in Northern Ireland.

Northern Ireland is not a homogenous entity, and those people have to find a way of living together with their differences. That is a real challenge. The whole world has not found a way of living with difference, which why we are hurtling into the third global conflict at the moment. Actually, Northern Ireland is finding its way out of a conflict. It is an awful struggle, and it is very difficult and extremely painful, and it will not necessarily bring the outcome that any particular group wants. But now, and in the future, it is a place where people are not being killed, children are not being left fatherless and motherless, and parents are not frightened about their children going out for the evening because they might not come back. That is a change for the better.

For me, it is not the detail of these instruments but the symbolism that has given the possibility of getting stability within Northern Ireland, which is in the interests of all the people of Northern Ireland—albeit that almost every section and group has had to make some sacrifice and compromise in the interests of that better future.

[Lord Empey (UUP)]

My Lords, I am pleased to follow the noble Lord, Lord Alderdice, and I will do a bit of both the things he mentioned: look at the detail and, I hope, look at the bigger picture. Northern Ireland has had to endure another two years of rudderless governance at a time of the worst cost of living crisis in living memory and of burgeoning waiting lists—the noble Lord, Lord Hain, will know that I have raised this issue so many times in this House.

I was always opposed to the boycott of the institutions at Stormont. For unionism to adopt Sinn Féin tactics never seemed to be a strategic good idea to me. Of course, I refer to the previous three-year collapse of Stormont brought about by republicans between 2017 and 2020. The big difference between those two periods of collapse has been the outcomes. Sinn Féin got what it wanted with the language legislation, while the DUP failed to shift the border in the Irish Sea, returning to Stormont with the protocol/Windsor Framework unaltered. All this chaos is due to the disastrously negotiated Brexit deal. None of the legislative contrivances before us tonight would have been necessary had we remained in the EU, or had there been a properly prepared and effectively negotiated departure of the UK from the EU.

21:15

These SIs are bits of sticking plaster but, however well intentioned they may be, they are riddled, clause by clause, with the confirmation in the domestic law of the United Kingdom that a foreign power has already legislated for significant areas of policy in part of our country, and that the EU will continue to do so. We are actually incorporating that into domestic legislation. We are saying in these SIs that in fact we are looking over our shoulder at what the EU is going to do and how we interact with it; I will come to that a bit later.

An attempt is being made in the constitutional SI, in an amendment to the EU withdrawal act 2018, to provide assurance that further divergence between Great Britain and Northern Ireland will be avoided with an obligation placed on a Minister by Section 13C, where a Minister must make a statement that, if enacted, a Bill would not have

“a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”.

The noble Lord, Lord Dodds, drew attention to that. This provision is completely undermined by the next paragraph, which says that if a Minister cannot make such a statement, the Government can go ahead with the Bill in any event. Can the Minister clarify for the House that this means that the Government could in future legislate even if this meant adversely affecting trade between Great Britain and Northern Ireland? That seems the inevitable consequence of the proposal.

In the Explanatory Notes to these SIs—I agree that they are sometimes the better place to look—frequent references are made to the UK’s international obligations. For example, in the EM on the constitutional status of Northern Ireland, paragraph 7.3 confirms that

“The Government remains fully committed to meeting its international legal obligations in all circumstances”.

Can the Minister confirm that this means full implementation of the Windsor Framework? Again, I agree with the noble Lord, Lord Dodds, on this: I have asked two Parliamentary Questions, I have been fobbed off, and that is entirely unsatisfactory. I hope that we can have a debate on this, because there is a whole area on the Windsor Framework—we are finding it in your Lordships’ Committee—where we are not getting responses quickly enough. We got one today two years late. There is a huge issue of parliamentary accountability there.

Paragraph 7.1 points out that the protocol

“raised concerns over the status of Northern Ireland”

in the United Kingdom, but in response the Government negotiated the Windsor Framework with the EU, and that agreement is now being implemented. Paragraph 7.13 again excludes any

“decisions or agreements made under the existing Windsor Framework”.

It is therefore essential to know whether the Windsor Framework has been changed and, if so, in what way? Can the Minister confirm that and will he point to the relevant text of such changes? I mentioned the Parliamentary Questions and I will probably want to come back to those at another time.

Paragraph 6.2 of the internal market EM, in the “Legislative Context” part, again qualifies the Government’s intentions with respect to their international obligations. Parliament can judge the effectiveness of these SIs only in the context of how His Majesty’s Government see and interpret their international obligations. Will the Minister clarify this for the benefit of Members?

With regard to the internal market SI, reference is made to goods in transit between Northern Ireland and GB going via the Republic of Ireland, and goods coming from Northern Ireland to GB where a load may contain products from the EU travelling via Northern Ireland. Can the Minister tell the House how such mixed loads are to be handled, whether they enter Great Britain from the Republic of Ireland or from Northern Ireland with mixed loads?

I appreciate that some of these issues are quite complicated, and I fear that His Majesty’s Government may not have worked them all out yet—shock horror at such a prospect. However, we must have answers. That being the case, I am sure the Minister will write to me and other Members with detailed answers in due course.

I have touched on only a few issues; there are so many one could mention. Nearly two years ago, I was part of an Ulster Unionist Party delegation that went to Brussels. I remember it very well, because it was the day that President Zelensky addressed the European Parliament. It was a very emotional day. Later that day, we spent 90 minutes talking to European Commission Vice-President Maroš Šefčovič. During that discussion, he said he could get rid of 95% of the checks that were being performed. That was his figure, and that was two years ago. Negotiation with the EU from a functioning Stormont and improved relations with the EU were perfectly capable of delivering change without the blunt instrument of boycott and collapse of the institutions.

Further than that, we have to be honest with the people of Northern Ireland about what has been achieved by these measures and the accompanying documents. The aims of the boycott, as I understand them, were to eliminate a regulatory border in the Irish Sea, remove the remit of the ECJ in Northern Ireland and prevent the imposition of EU laws and regulations in Northern Ireland, as this would mean a foreign power making laws for Northern Ireland without the ability of the Northern Ireland Assembly or Westminster to stop this. As far as I can see, none of these objectives has been achieved. The border in the Irish Sea remains, the role of the ECJ is unchanged, and Brussels law continues to apply to Northern Ireland and will do so into the foreseeable future.

Like other Members of this House, I spent some time this afternoon as a member of your Lordships’ Sub-Committee on the Windsor Framework. We looked at page after page of detailed correspondence with His Majesty’s Government dealing with proposed EU regulations to be applied in Northern Ireland, and letters to and from Ministers to that effect. In fact, I discovered that in the cc list on some of the ministerial letters, one of the recipients of this communication is the EU document scrutiny manager. Such a person exists. The idea that, somehow or other, there has been some miraculous change, is false. We are integrated into the EU law and regulatory system by dint of the agreements and legislation that have already been passed. That, of course, was the decision of this Parliament.

In this House, we criticised the former Northern Ireland Secretary Brandon Lewis, who said there was no border in the Irish Sea. Last year, we criticised the Prime Minister because he made similar claims. I am very surprised and disappointed that Sir Jeffrey Donaldson and some of his colleagues are saying the same thing today. They must have taken leave of their senses if they have come to that conclusion. It is nonsense. The border is there now, and these SIs are now further woven into domestic law.

I understand that people will always try and oversell what they have achieved—we have all done it. However, these claims, far from being the spoils of victory, are anything but. In many respects, it has resulted in a significant defeat. I also note that two years ago, when the rallies against the protocol started, people came out in towns like Markethill in the freezing cold to join a platform to protest—perfectly legitimately—about the protocol and its impact constitutionally, and potentially economically. We have heard reference to the platform party already. Many of us could see then that the platform party would not survive any length of time. Difference was inevitable. How many times have loyalists been marched up the hill to be marched down again? It happens again and again—and now it has happened once again.

I was a bit perturbed by my noble friend Lord Bew’s comments on how the negotiations to get the Assembly back were conducted. I make it clear that, despite the reference in some of the documentation to other parties being engaged, my party was not engaged in the discussions and negotiations. There were a couple of perfunctory meetings, including one with officials, at a very late stage, but we were not part of the negotiating process. Had that attitude been adopted, we never would have had the Good Friday agreement or some of the other deals that were done. People must be engaged so that they have ownership of what comes out of it. This back-stairs stuff has all been done before, and we have all been engaged in it, but it does not work in the long term.

My noble friend Lord Bew put this matter in the context of a series of documents, and I take his point. He also made a very valid point about the Acts of Union. Drawing from our conversation, I got some material pertaining to the Acts of Union, particularly the schedules, which are very shocking to read in today’s context. We use phrases that unionists like to hear: “copper-fastening” the union and “future-proofing” the constitution. But this Parliament could not future-proof the lock on its Door, because one Parliament is not bound by what another one does. If the Acts of Union, when they were enacted by 1801, were such a great piece of kit for unionism, why is it that there is an Irish Republic? If that document was supposed to protect a unionist in Dublin, it did not work very well. If the referendum in Scotland found that one more person voted to leave the United Kingdom than voted to stay in it, the Acts of Union with Scotland would have had no impact whatsoever on the unionists of Scotland.

The only way you can preserve the union is to ensure that there are more people on the ground that want it than do not want it. Everything one does, as a unionist, should be engaged to maximise the number of those people. No Act of Parliament and no statement from a Minister will do it. So I feel that people have been led up a trail that has no prospect of success.

I am against the boycott and was always against it; I think that it was a strategic mistake. However, another strategic mistake has been made in mis-selling it, and misrepresenting what it is trying to achieve, to the people they are trying to convince. If they are not lies, very significant misrepresentations are certainly being propagated, and people will find that out. Examples such as the flowers that the noble Baroness, Lady Hoey, mentioned do not matter; it used to be bendy bananas in the days when people were attacking the European Union. There will always be something—I accept that—but let us not get focused on something that is irrelevant to the long-term preservation of the union.

The only thing that will preserve the union is making the case and ensuring that there are more people in Northern Ireland who want it than do not. As far as I am concerned, everything we do in this place should be measured in that way. I appreciate that a lot of work and negotiations have gone into these SIs—they have probably been done with the best of intentions—but trying to keep these things secret and bounce people at the last minute is not the right way ahead.

[Baroness Foster of Aghadrumsee (Non-Afl)]

My Lords, I hope to change tack a little and bring a bit positivity to the debate. I say to the noble Baroness, Lady Hoey, that I hope that Mr Foster has gone to somewhere other than a supermarket to get his flowers for tomorrow.

I say to the noble Lord, Lord Alderdice, that I listened very carefully to what he had to say; it is not the first time that he has made his de jure and de facto point about joint authority. I was pleased to see that that issue is addressed in the Command Paper. It is said that there is no halfway house: we are either in the United Kingdom or we are not.

21:30

I agree with the noble Lord, Lord Empey, that it is important that people in Northern Ireland recognise the advantages of being in the United Kingdom. We need to focus on making that point more strongly, particularly because of his point about the so-called third community, which a lot of people speak about now. For me, that is the critical point—to say to people in Northern Ireland that you are much better off within the United Kingdom than leaving the United Kingdom.

Much has also been made of the DUP and Sinn Féin leaving the Executive and collapsing the institutions when I was First Minister. Of course, that was not the first time that the institutions collapsed. They collapsed in 2002, and for understandable reasons at the time as well, not coming back until 2007. This is not the first time that the institutions have collapsed. It is important that we find a sustainable way to keep the institutions going, but for that to happen, I go back to the issue of both communities. I know that it is not the issue that the noble Lord, Lord Alderdice, wants me to address, but it has always been the case that we need to bring everybody along with us. I hear what people are saying about Brexit and people have raised those issues, but the difficulty about the protocol is that it did damage to those east-west relations and therefore caused that rift which led to the issues that brought us to where we are today.

The noble Baroness, Lady O’Loan, referred to the 1998 Belfast agreement. The problem is that the agreement was ruptured by the protocol. That is why we ended up where we were. In passing, she also made references to reconciliation. We would all love to see genuine reconciliation in Northern Ireland, but I despair a little when I hear the now First Minister say that there was no alternative to murder and mayhem happening in Northern Ireland over a period. I regret that, and it is absolutely wrong that it was said in the way that it was said.

There is a lot of noise about the fact that one party, the DUP, was involved in negotiations and no one else. No one else took up the cudgel to deal with the issues that were there. Other people wanted rigorous implementation of the protocol. They did not want to step up and take on the issues that were so obvious to everybody in and outside Northern Ireland. I hear what has been said, but this all came about because there was a break with the fact that unionist people in Northern Ireland simply could not abide by what was there. If we want to see Stormont work, both communities must be involved. It is important that we recognise that.

Sometimes those of us from Northern Ireland who travel to this place will complain about our journey. I was thinking about that this morning as I was travelling over, in the context of this issue and the fact that we are discussing it tonight. I was thinking about the architect of our modern United Kingdom, namely Viscount Castlereagh. As Chief Secretary for Ireland, he ensured that the Act of Union was put in place and therefore since 1801 politicians been travelling to this place and the other place to advocate, first, for Ireland and, now, for Northern Ireland. It was a different journey to that which I undertook; I had a very nice journey this morning. Castlereagh is mentioned in the Command Paper. I very much welcome that because at long last, something that was promised in 2020, in New Decade, New Approach, is going to be delivered. It is important that we have a foundation to explore identity and history from an academic point of view and to honour Viscount Castlereagh’s legacy. I very much welcome that it is there.

I welcome the repudiation of this notion of an all-Ireland economy. I am grateful for the points made by the noble Lord, Lord Bew, in relation to this. It did come about in that joint report, but it did not just appear. It came about because civil servants in Northern Ireland were tasked to look at cross-border co-operation. Cross-border co-operation happens for all the right reasons. Some of it is very sensible, but somehow that was conflated into an all-Ireland economy, and that is not the case.

I am glad that that is repudiated in this document, and that we are seeing a sensible way forward, because Northern Ireland remains an integral part of the United Kingdom constitutionally and politically, and important from an economic point of view in the UK internal market. We are in the UK internal market and we have access to the European single market. I have heard other areas saying: “We only wish that we could have that for our part of the United Kingdom”. I have heard people say as well: “Northern Ireland did not vote for Brexit”. That is right, but we are part of the United Kingdom, which did vote for Brexit. That is the point. Now we have the internal market of the United Kingdom but access to the single European market. Yes, there are difficulties associated with that, and we have to acknowledge them.

When I spoke about the Act of Union previously, the Minister pointed out to me that the Act of Union had changed. I think the noble Lord, Lord Empey, has referenced that as well tonight, not least in relation to partition. The noble Lord and I were talking about the disestablishment of the Church of Ireland at that time, which I was saying was a real shame. In any event, there is no doubt that the union of the United Kingdom has evolved over this past century. What unionists and those who really care about economics wanted to see was that internal market of the United Kingdom working properly. I am pleased that that has been addressed; I know there are difficulties and there are still challenges ahead in relation to that. I accept all the points that my noble friends have made, but, given that, can the Minister indicate when we might see the creation of the east-west council, which will then allow for InterTrade UK to be set up, and also the independent monitoring panel? Those bodies will have a key role going forward, looking at where the challenges are and dealing with those challenges. For me, those bodies are key to the future of what happens here and, indeed, what happens in Northern Ireland.

As is often the case, good work has been done; there have been gains, but, as we say in my part of the world, eaten bread is soon forgotten. We need to be constantly vigilant against those who seek to harm the United Kingdom for their own narrow ends, and therefore I look forward to those bodies being set up. I hope that the Minister will be able to give us some clarity in relation to that.

[Lord Browne of Belmont (DUP)]

My Lords, the two statutory instruments before us tonight are supposedly designed to protect the union and to promote the free movement of goods. I contend that both these regulations fall well short of meeting their objectives. It is clear that the Northern Ireland protocol remains largely intact. The Irish Sea border remains largely in place and, ultimately, the European Union has the final say in many significant areas in Northern Ireland. Indeed, Ministers and Assembly Members in Northern Ireland will be expected by law to adhere to, and implement, new laws that are made in Brussels, not in Belfast, and not here in London.

As I have said consistently in your Lordships’ House, the Windsor Framework does not make substantive legal changes to the Northern Ireland protocol and the supremacy of European law on many aspects of Northern Ireland. Very little in these new arrangements would contradict that view. Indeed, this deal and the framework that underpins it, make only a few limited changes. The Windsor Framework and the withdrawal agreement itself do not permit any changes to essential elements. It would be wrong to suggest that recent changes amount to substantive legal changes.

Fundamentally, the root cause of the problem with the Northern Ireland protocol and with these arrangements is the continued application of EU law in Northern Ireland—particularly in the circumstances in which it covers all manufacturing of goods in Northern Ireland, regardless of whether those goods are being sold in the United Kingdom or to the European Union. The vast majority—84%—of all goods manufactured in Northern Ireland are 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 are not available to all businesses. The schemes will remain incredibly complex and, crucially, the EU retains a right unilaterally to withdraw its trusted trader system underpinning any new arrangements.

We arrive at a point where the Irish Sea border remains in place, according to the former Northern Ireland Attorney-General John Larkin KC. Paperwork will still be required for customs purposes and, as we can see back in Northern Ireland, customs or border posts are currently being constructed.

Northern Ireland will continue to be treated as an EU territory in many ways. Under Article 12 of the Northern Ireland protocol, which remains unchanged, the EU can direct UK authorities at ports. It is clear that we have not yet arrived at a point where friction has gone and there are zero checks and paperwork for goods from Great Britain destined for Northern Ireland. However, we must continue to work towards achieving this. While I welcome that some progress has been made here, there is still a long way to go.

To date, we have not seen evidence that the thousands of pages of EU law have been disapplied. Northern Ireland will continue to remain subject to the power and control of EU law, the European court and the European Commission on EU single market laws, which govern the manufacture and sale of goods in Northern Ireland. In some 300 areas, EU jurisdiction applies in Northern Ireland. It is a fact that Northern Ireland producers and consumers will still be subject to foreign laws, even when they do not trade with the EU at all.

To date, there is no evidence that points to a single EU single market law being removed from Northern Ireland.

[Lord Bew (CB)]

I just wish to ask the noble Lord, Lord Browne, why, if EU law is so important, it is not mentioned in the seven tests that went before the electorate in Northern Ireland last year as the DUP’s position. I understand the sentiment behind what he says about EU law, but why was it not mentioned in the seven tests? Which of the seven tests does he think has not been met?

[Lord Browne of Belmont (DUP)]

I assert to the noble Lord, Lord Bew, that this is referred to in our first objective:

“The Irish Sea border must go”.


This Government pledged to protect and strengthen the UK internal market as part of New Decade, New Approach. We said that this will involve the European Union.

Regrettably, the Stormont brake, if successfully applied, would apply only to future changes to EU law. It provides no right to change any part of the existing EU laws imposed on Northern Ireland under the protocol. The brake allows for an objection to be raised to a new or amended EU law but, ultimately, the final say on its application would not be a matter for the Assembly, Executive or even this sovereign Parliament. The final decision would rest with an international body that can decide whether a new EU law applies.

The brake is also of limited application in theory and is likely to be unworkable in practice, as such a high bar is set. As I have said previously in your Lordships’ House, I cannot envisage a scenario in which a future British Government would seek to apply a brake if it meant a retaliatory action from the EU. Northern Ireland remains governed by many EU laws that we did not make and cannot legally change. There remains no consent for arrangements that will see further EU regulations causing Northern Ireland to diverge from the rest of the United Kingdom.

The rights of the people of Northern Ireland under the Act of Union 1800 have not been fully restored. While I welcome some government promises—indeed, I welcome any future legislation that will bring us closer together as a nation—there is some way to go before we can say that these issues have been adequately addressed. These arrangements, much like the heralded launch of the Windsor Framework last year, have ultimately failed a key test: to legally restore the constitutional integrity of the United Kingdom.

21:45

Finally, I would like to make it quite clear that our party, the Democratic Unionist Party, is not against the Assembly. We have been pro-devolution when many other unionist parties were vehemently integrationist —they did not want any Assembly. However, the point I am trying to make is that the Assembly must be sustained on the basis on which it was set up. That is on a cross-community basis, with the balance of the various strands of the agreements respected. That is not the case with the protocol, or the Windsor Framework document that is in force.

[Lord Hay of Ballyore (DUP)]

My Lords, it is a pleasure to follow my noble friend Lord Browne. I want to say at the outset that I have been listening to the debate very attentively; I have listened to a number of speakers. I believe in and welcome the restoration of the Assembly in Northern Ireland. My personal view is, and has been for some time, that, for now and the future, we need Northern Ireland to work to protect the union, because we can convince people to vote for the union only with a Northern Ireland that is settled within itself. So I welcome the establishment once again of the Assembly.

Over the last number of years, many of us here in this House and in the other place have campaigned to seek significant changes to the arrangements first agreed by the United Kingdom Government in 2020. If we are being honest, the agreement reached with the Government, and the package of measures negotiated, go much further than previous agreements to undo the harm and damage of the deeply flawed Northern Ireland protocol. The new arrangements go a long way towards safeguarding Northern Ireland’s place within the United Kingdom.

I have always believed that there should be no barriers to trade or tax within this United Kingdom and its internal market. While some limited progress was undoubtedly made at the time of the Windsor Framework, the Northern Ireland protocol was not significantly dealt with then. The Windsor Framework made only limited changes to the protocol. Unamended, it was clear that a full range of customs checks and formalities would remain for many businesses importing goods from the mainland to Great Britain.

As a result of the stance my party took, the Government and the European Commission came back to the negotiating table. We judged that more work was required if we were to reach the point of securing arrangements that unionists as well as nationalists could support.

There is a great argument for why we did not involve other parties in these negotiations: they did not want to be involved. In fact, these were the parties that were very clear that we should implement the protocol in full. They stood outside the door and said: “No, no, no, we’re not involved, but we want you to rigorously implement the protocol”. That was their answer, right from day one until now. It is nonsense that we should have involved other parties—it did not happen because they shut themselves outside the door. Let us bring a bit of honesty to the debate.

[Baroness Ritchie of Downpatrick (Lab)]

I think I was quite clear in my comments that I was referring to the tone of the Command Paper, which involved only one party with the British Government, which represented a major departure from negotiations that had taken place in the past.

[Lord Hay of Ballyore (DUP)]

We got the clear impression that that was exactly what the other parties wanted. They complained outside the door but did not really want to come inside, and that was the theme right through the negotiations. As I said, a wee bit of honesty in the Chamber would certainly help the debate.

There is still some way to go. I believe the package of measures negotiated, including the legislation before us and the assurance from the Government regarding further legislation, will make a real difference in Northern Ireland. That is my personal view. In all these issues we have to wait to see the workings of this on the ground, which will certainly tell the tale of whether it is working. The jury is still out on a lot of these issues and on how we deal with some of them now and in the future.

It should not have taken the withdrawal from the Assembly and the Executive to get the UK Government to act to protect the union. It was only because this action was taken that negotiations were reopened and these new arrangements were brought before your Lordships’ House. I remember that for two years we said to the British Government and the European Union that the protocol was not working and that we needed to deal with certain issues in the protocol. They totally and absolutely ignored us while we were working in the Assembly. My party leader has been criticised here tonight by the noble Baroness, Lady Hoey, and some other people, which is totally and absolutely wrong. Their assumptions on the issue need to be challenged.

We said to the British Government and the European Union that there are real difficulties here. The real difficulty is that this has been done over the head of unionism. It needs to be addressed. If we are to have agreement in Northern Ireland, there has to be agreement on both sides of the community. The European Union and the British Government ignored that. There was no choice for my party leader, Sir Jeffrey Donaldson, but to pull the First Minister out. Once again, let us be absolutely clear and get the facts right. Let us not think of these issues but get the facts right. If we could have done this without pulling the First Minister out, we would have done it, but it was not going to happen.

Progress has been made, and I welcome the fact that we now have a functioning Northern Ireland Assembly back. The Assembly now has a backlog of work and has to prove to the people of Northern Ireland that it can deliver. It is my hope that a new starting point can provide a solid basis for future devolved government in Northern Ireland. There is more work to be done. It does not stop here. That is vital.

I hope the Government have learned the lesson, because it took some time to build trust with this Government. There was a total lack of trust in this Government from within the unionist community. We can go back in history to former Prime Ministers letting us down and all that—saying one thing and doing another—so it took us some time to build trust in this Government. I hope we have now built that trust.

I want to say in closing that it is time for unionists to get on the front foot rather than indulge in wishful thinking. We can bank the gains and campaign for further progress while addressing the bread and butter issues that matter to the people of Northern Ireland; or we can throw them away without a strategy in the hope of securing the untenable. I have been in the unionist cause for over 50 years; I am not a Johnny-come-lately to this cause. There are some people in this Chamber who have come late to the cause. I have not, and there are many colleagues here like me who have been fighting this cause for well over 50 years.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I am delighted to follow the noble Lord, Lord Hay. At the commencement, before I deal with the two statutory instruments, there are some things that have to be said in reply to some of the charges that have been made against us.

The noble Baroness, Lady Ritchie, seems to be concerned about the tone of the Command Paper. I remind her that it has no legislative force. We are dealing with the two statutory instruments, which are vital. The Command Paper is important to set, as it were, the backdrop to what is being sought to be done.

I understand the point that the noble Lord, Lord Alderdice, is making: he hopes that the new arrangements will allow that never again will anyone be killed or children left without their parents. But I have to say, and he will agree with me, that there never was a reason why anyone was to be killed, or was killed, or any child was left without a father or a mother, or parents left without their children.

The noble Lord, Lord Bew, challenged my noble friend a few moments ago concerning the seven tests. Like many others whom I have listened to, he has tried to interpret the DUP’s seven tests. We set the tests. We know exactly what those tests meant. We know their interpretation. The first test is the fulfilment of Article 6 of the Act of Union. The Supreme Court has ruled that this is suspended because EU law takes precedence through Section 7A of the European Union (Withdrawal) Act 2018. It is therefore wrong to say that our test did not require EU law to be lifted from Northern Ireland. Noble Lords need only listen to the statements and speeches, and to read the articles written by leading spokesmen of the Democratic Unionist Party over the last two years to know that the issue of EU jurisdiction was vital to our manifesto commitment. I say to noble Lords: no, we will not allow others to rewrite the meaning of our tests.

[Lord Bew (CB)]

Was EU law mentioned in the DUP manifesto? It is definitely not mentioned in the seven tests—there is no doubt about that—and it is a rather contorted argument about the Act of Union implying this.

[Lord McCrea of Magherafelt and Cookstown]

In speech after speech, article after article, statement after statement, from our party leader and from our chief spokesmen on these issues, it was constantly said. To suggest that it was not a vital part is not factual. I will not allow to stay on the record a charge made against us that is not factual.

It is also true that the majority of Northern Ireland voted to remain in the EU; that is a fact. But so did the majority in Scotland, so did the majority in London, and so did the majority in other regions and parts of the United Kingdom. It is interesting that no one suggests that those counties or regions should be subjected to foreign laws and the special arrangements ordered by the EU that we are expected to accept.

22:00

[Lord Alderdice (LD)]

I wonder if I might just respond to that point. It seems to me that Northern Ireland, Scotland, Wales and England are important separate jurisdictions with their own statute books and so on. That is not the case for some of the other areas that the noble Lord refers to. The point I was making was that when people talk about the people of Northern Ireland wanting this, that and the other thing, one of the things that they did not want—it is right that the Scots did not want it either—was to leave the European Union, with all the consequences. That was the point.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I accept what the noble Lord is saying. Are he and others suggesting that Scotland should get the same as we got and that it should receive the same benefit that we are told we have got? I know in fact that Scotland has been suggesting it should be getting it, because it thinks we are getting something that it did not get. You cannot have it both ways. The parties across this House that have been in government, those leading parties in this House, realise that the United Kingdom went into the referendum as a United Kingdom. We went into Europe as a United Kingdom. We were withdrawing as a United Kingdom—not parts here and parts there. It is not a patchwork quilt that we are talking about. We are talking about the rights of the peoples of the United Kingdom to make the decision. Just because some people do not like the decision that was made, they cannot suggest that it was not done in a democratic way.

The Northern Ireland protocol cut our Province off from the rest of the United Kingdom economically and handed political power over a part of the United Kingdom to the EU. Because of this, the DUP and my party colleagues refused to implement a policy that deliberately undermined our precious union and our right to trade on the same footing as Great Britain. I stand by that decision without apology. The Northern Ireland Assembly was suspended and did not function for two years. It was only through the actions of the DUP that the Government and the EU sat up and listened to the legitimate concerns of unionism. Up to that moment, they seemed to have only one concern—to listen to the endless demands of republicans.

Now, after two years, the Government have produced the Command Paper Safeguarding the Union and the two statutory instruments we are debating today, but there are questions that must honestly be asked and answered. Do these fully address the issues confronting unionists? Do they, for example, stop the damage done by the Northern Ireland protocol and the Windsor Framework with reference to the free movement of trade between Northern Ireland and Great Britain, and do we now have the right to trade on the same footing as GB? Do they restore the constitutional rights to the people of Northern Ireland that have been totally undermined by the protocol and Windsor Framework, and have they restored our equal citizenship as British citizens, which has been eroded?

We were told that these measures were vital for the restoration of the Northern Ireland Assembly, but how does this equate with the Assembly being already restored before we in your Lordships’ House were granted a chance to scrutinise or debate one line of their content or their ever becoming law—because they are not law. We have to debate and pass it here. Therefore, how did this happen? One has to ask what was the undue haste—or was scrutiny of the details contained in these SIs the last thing the Government wanted before the Assembly was restored?

I place on record my appreciation for all the hard work that was done by my colleagues over many months and the due diligence that they applied to their labours, but I have no doubt that intolerable pressure was exerted on them by the Prime Minister, the Secretary of State for Northern Ireland, the NIO and, no doubt, the Irish Government—although the internal affairs of Northern Ireland are not the business of the Irish Government—to get the Executive up and running. Indeed, we had an example of the Government’s panic when the Secretary of State used the £3.3 billion as bait and deliberately withheld the rightful pay rise from our hard-working public sector workers, seeking to create a crisis. In my opinion, again, such an action was despicable.

Now, there is breaking news today. We learn that the Stormont Executive have been told by Westminster that they must raise at least £113 million of their own revenue in their next budget, and that this was a part of the £3.3 billion funding package. Is it not strange that we were not informed of those details until now? There is an old adage: “All that glitters is not gold”.

Over the weekend, an article was published in Northern Ireland media by the Belfast News Letter—written by three of my esteemed colleagues, two of whom are in this House—pointing out that scrutiny of the SIs before us today confirms that the border in the Irish Sea remains. I can tell the House that the genuine concerns expressed by my colleagues have already been expressed not only by myself but by the greater number of the parliamentary party, a majority of the Members of the House of Lords from my party, and indeed a number of MLAs. These concerns cannot be cast aside or overlooked but must be honourably answered, for they will not go away. Relying on promises made by a Government who have broken so many promises before will not suffice. We all know that the outworkings of these SIs will be evident for all to see, and no amount of flannel or spin from the Secretary of State or any other Minister will wish away the facts that the people see before their eyes.

I ask the Minister to tell the House if the green lanes legislation has gone or if it is completely untouched by these SIs. Is it true that, under the current legislation, companies moving goods outside the red lane must have an export number and must be subject to customs and SPS border paperwork, as well as subject to 100% documentary checks and 10% identity checks, moving to 5%? That is what Regulation 13(2) of the Windsor Framework (Retail Movement Scheme) Regulations 2023 requires. Lest anyone should doubt me, Regulation 13(2) states:

“From the date specified in the first column of the table below, the Northern Ireland competent authority must carry out an identity check by breaking the seal on at least the percentage of consignments of specified retail goods moving into Northern Ireland under the Scheme specified in relation to that date in the second column of that table”.


The minimum percentage of consignments on which identity checks must be carried out are, from 1 October 2023, 10%; from 1 October 2024, 8%; and, from 1 July 2025, 5%. Meanwhile, Regulation 12 requires 100% documentary checks. That is what the law requires—a law that I believe the SIs before us today, whose purpose is to give effect to the deal, do not amend, let alone appeal. I want the Minister to tell us whether or not that is true.

Companies moving goods from Wales do not have an export number. They do not have to fill in customs paperwork, simplified or otherwise. They are not subject to 100% documentary checks, and they do not have to go through border control posts where they are subject to identity checks of between 10% to 5%. Crucially, before 1 January 2021, companies moving goods to Northern Ireland from England, Wales or Scotland similarly did not need an export number. They did not need to fill in customs paperwork or be subject to 100% documentary checks and 10% to 5% identity checks at border control posts. The reason was very simple. At that time, Northern Ireland was not cut off from the rest of the United Kingdom by the Irish Sea border—a border that I fear the deal before us leaves in place. I ask the Minister: is this scenario as I have outlined it right or wrong? We do not need waffle, we need answers.

I notice people pointing to their watches, but this is the first time I have had the opportunity of looking at this in the House of Lords, and I am taking my time to deal with a matter that is so important to the people who live in Northern Ireland.

The protocol/Windsor Framework was designed to make special provision for Northern Ireland that was not made for the rest of the United Kingdom. While I welcome the east-west council, the greater flexibility in dealing with rest-of-world goods, and the commitment from the UK Government to stand with us if the EU refuses to move veterinary medicines, none of those things removes the border or restores Article 6 of the Act of Union, which remains as partially suspended today as it was this time last year.

Without apology, I am a unionist. That means that I prioritise the relationship between the different nations that occupy these islands. It means that, if borders have to divide us, I am on the side of the border that is in a relationship with England, Scotland and Wales, for it was not unionism that divided the island of Ireland but nationalism.

There has never been any question that some businesses have prioritised having no border to interrupt the flow of goods between Northern Ireland and the Republic of Ireland. But the idea that business as a whole prioritises the free movement of goods between Northern Ireland over the free flow of goods between Northern Ireland and the rest of the United Kingdom is difficult to sustain in the context where most of the goods flowing into and out of Northern Ireland come from the United Kingdom.

In a world where one cannot have unfettered border-free access to both the rest of the United Kingdom and the Republic of Ireland—indeed, if we could, this deal and the SI before us would have delivered it—then unionism exists to promote unfettered access with the rest of the United Kingdom. This deal prioritises something entirely different: unfettered border-free access to the Republic of Ireland, and fettered, bordered access to the rest of the United Kingdom. As I have said, I believe that there is still a border in the Irish Sea.

We must not forget that the existence of a border is a function of the more profound dividing of Northern Ireland from the rest of the United Kingdom, and its insertion in a different governance structure and subjection to the same laws as the Irish Republic in some 300 areas, rather than those of the United Kingdom—laws that are imposed on it from outside. I know that Parliament is sovereign, but simply telling us that does not make matters better, only worse. It tells us that even though Parliament has the power to insist that 1.9 million UK citizens are left to abide under 300 areas of law over which they have no influence or power to amend, His Majesty’s Government are happy to leave them as second-class citizens without the right to stand for election to try to stop some of the laws imposed on them by a foreign power.

The EU might prefer this way to protect the integrity of its single market, but in a context where another way of dealing with the issue exists—the mutual enforcement that my noble friend Lord Morrow mentioned—that does not involve the largest disenfranchisement exercise in the history of the western world or violate the consent principle of the Belfast agreement, and that does not involve disrespecting the territorial integrity of the United Kingdom, no responsible UK Government could ever countenance settling for anything less.

22:15

In conclusion, previously when we had a Statement in this House I asked the Minister a number of questions. He indicated then that he would answer when we came to these SIs, so he has certainly had plenty of time to prepare the answers. Does Northern Ireland remain under EU single market laws for production of food and agri-food? Do His Majesty’s Government believe that the Irish Sea border has fundamentally been changed and has the EU agreed? Is there a fundamental change to the Windsor Framework or is it still fully operational? Will Northern Ireland be able to enjoy UK state aid, like every other part of the United Kingdom, without reference to or interference from the EU?

We desperately need, out of regard for truth, to be honest with the people of Northern Ireland about the situation that we face, and we are facing challenging times. I renew my call to fellow unionists, not only in this House but across Northern Ireland, to be faithful to their conscience and convictions but to be respectful to those with differing views. I have no doubt there are those who want to weaken and destroy unionism but together we can stand strong. I also believe that it is vital for all the people of Northern Ireland to enjoy the benefits of our precious union.

[Baroness Suttie (LD)]

My Lords, like the noble Baroness, Lady Foster, I will try to inject a little positivity into what has been a very long and unfortunately rather negative debate, although I understand the many comments and justifiable criticisms made by the noble Lords opposite. Given the hour, I shall also endeavour to be brief.

I start by greatly welcoming that the institutions in Northern Ireland are once again up and running. That is an achievement and it needs to be celebrated. From these Benches I commend the political leadership and courage, and the ability to see the bigger picture, that have taken us to this point—not least the personal drive and commitment shown by the Minister himself. It is still early days, but I believe there are grounds for optimism that this time the Assembly will continue to sit.

The people of Northern Ireland are entitled to expect a period of stability, so that the many health, educational and economic crises can begin to be addressed. Before I turn to the details of the regulations I would like to recall, as other noble Lords have done, that we are facing all these highly complex issues, and the equally complex set of proposals and solutions in front of us, because of Brexit. I felt that the noble Lords, Lord Bew and Lord Hain, made that case extremely powerfully in tonight’s debate.

A colleague was reminding me just the other day of the excellent report on Brexit and the island of Ireland that the EU Select Committee of your Lordships’ House published way back in December 2016. That report so accurately anticipated so many of the issues that we are still trying to tackle, nearly eight years on from the EU referendum.

I would also like to commend the excellent job done by the Northern Ireland protocol committee, now the Windsor Framework committee, of this House. Several noble Lords referred to it and several are indeed members of it. It has done so much to scrutinise the realities being faced by Northern Ireland on these issues. No matter which of the latest solutions we are debating, I have always felt that it is the elected politicians in Northern Ireland who are best placed to find pragmatic solutions. They are also in the best position to resolve any continuing barriers.

This evening, so much of the focus has been on the understandable concerns about unfettered access and trade between Northern Ireland and Great Britain, but perhaps too little is made—at least in this Chamber this evening—of the potential opportunities offered by joint access to the EU market.

In that regard, it is important that the Stormont brake is considered only as an instrument of last resort. It is important that the recently restored Northern Ireland institutions have a strong dialogue with Brussels and are in a position to flag potential issues as soon as possible. Can the Minister say whether he has had conversations with the Executive to investigate mechanisms for ensuring that effective dialogue takes place with the EU at an early stage in the process? It is extremely important that maximum attention is given to particular concerns facing Northern Ireland businesses at an early stage of the decision-making process in the EU.

Turning to the regulations themselves, the excellent short report from the Secondary Legislation Scrutiny Committee on these regulations—as quoted by the noble Baroness, Lady Ritchie—states:

“Given the complexity of the interaction of two regulatory systems in NI, we note the importance of the forthcoming guidance to provide clarity to businesses and other stakeholders on how the new arrangements should be applied in practice”.


When does the Minister expect that this additional guidance will be published? Can he give continued reassurance about ongoing consultation with both the Executive and Northern Ireland businesses to ensure that this guidance is as effective and user friendly as possible?

As the noble Lord, Lord Hay, said in his very powerful speech, the devil will be in the detail on how these new mechanisms will work in practice. In a similar vein, can the Minister say when he expects further details and guidance to be published on how the new independent monitoring panel, InterTrade UK and the new east-west council will operate in practice? As other noble Lords have asked, how will they work with existing institutions?

It is also very important that other parts of the UK understand these new bodies and regulations and understand how they will work. This is particularly true for the business community and the rest of the UK Civil Service. Does the Minister anticipate a communications plan to ensure that the details set out in the Command Paper, as well as the future guidance, is widely understood by relevant stakeholders across the wider UK?

In conclusion, I believe there is every reason to be optimistic, despite the many speeches this evening. But we need to learn from the lessons of the recent past. We need to see a return to trust and inclusiveness in Northern Ireland politics.

[Lord Murphy of Torfaen (Lab)]

My Lords, it has been a long night, but an important night. I hope there will be another debate in the not-too-distant future which will allow more Members of your Lordships’ House to take part on this important issue. The Opposition support the statutory instrument, as we support the deal done by the Government and the DUP. I add my own congratulations to the Minister personally, to his boss the Secretary of State and, of course, to Sir Jeffrey Donaldson and others involved in the negotiations in the last months.

It is significant that this is probably the first major debate we have had on Northern Ireland that has not been about emergency legislation and giving powers to civil servants. It has not been about bringing down the Assembly because of what has happened over the last couple of years. It is very positive in that respect. We are talking about the restoration of those institutions of government in Northern Ireland, and the Executive and Assembly in particular. That is hugely significant. I take the point about the money—it is the Treasury again, I suspect—but we will have an opportunity to debate that in future weeks. It is great news for the people of Northern Ireland, whatever their background and community, that they now have democratic government restored. For that, all of us, I am sure, should be grateful.

The noble Lord, Lord Bew, in an extremely interesting contribution to tonight’s debate talked about the Act of Union—which was a long time ago—and how that was not set in stone over the centuries. If you look back at it since 1801, particularly in the 20th century when there was the old Stormont Parliament, of course there were customs regulations. When I was an Opposition spokesman on Northern Ireland, there were customs regulations on agriculture and horticulture coming from Great Britain into Northern Ireland. It is not new, and the idea that somehow or other Northern Ireland should not be different really is nonsense, because Scotland and Wales are different and Northern Ireland is different in all sorts of ways.

The issue is that it is different within the context of our leaving the European Union; of course I understand that. The noble Lord, Lord Alderdice, and my noble friends Lord Hain and Lady Ritchie all mentioned the fact that Brexit caused it. Whatever our views on Brexit—and I was very much a remainer, and I am deeply disappointed that my country, Wales, did not vote to stay in the European Union—it was Brexit that caused this and there are two points about that I want to make.

The first one is that the majority of people in Northern Ireland voted to remain. I agree that the law is quite clear: you leave as a whole, as the United Kingdom. But it is the only measurement we have of what the people of Northern Ireland thought about the whole idea of Brexit. The second one is that I and lots of politicians failed when those Brexit referendum debates were going on to actually deal with the issue of Northern Ireland and Ireland; we were all to blame for that. We did not realise—I certainly did not—that the turmoil that would result in Northern Ireland and the island of Ireland as a consequence of Brexit would lead to the protocol and to the Windsor Framework and to this.

It is quite clear why we were in this mess and why we still have a long way to go to assuage people in Northern Ireland on the unionist side that things can only get better. This deal is not perfect; deals never are. It is a comprise; all deals are compromises. The Good Friday agreement was a compromise; the St Andrews agreement was a compromise. If we are to look at that Good Friday agreement, which is quoted all the time in the Command Paper, the two big issues that come out are the principle of consent and parity of esteem. The unionist argument over the last couple of years has been on both those issues: that the consent across Northern Ireland was not there with regard to the arrangements on leaving the European Union and, as a consequence, the parity of esteem was not there.

However many statutory instruments this House or the other House agrees, the union is safe, not because of statutory instruments but because, as the noble Lord, Lord Empey, said, of the people. The people of Northern Ireland by their consent will agree whether to remain in the United Kingdom. When I first came into the House of Commons a long time ago, the policy of the Labour Party was a united Ireland. When Tony Blair became the leader of the Opposition, he changed it and said you could not argue for that; you had to argue for what we agreed in the Good Friday agreement, which was the principle of consent. All this other stuff in the deal, in the statutory instruments, is nothing compared to that basic principle that it is safe so long as the people of Northern Ireland so agree. Even if they did agree to leave the United Kingdom, that would not be easy either but that is for us to consider another day; it is safe at the moment.

This deal—this restoration of the Assembly and the Executive—is about not just strand 1 but strands 2 and 3 as well. If you bring down the Assembly and the Executive, there are no north-south bodies. But strand 2 was an integral part of the Good Friday agreement, which would not have happened without it. The nationalist community had to be satisfied that it was being regarded with parity of esteem as much as the unionists—and strand 2 did that. I do not have many questions for the Minister, but I will ask this: what precisely will happen with regard to the North/South Ministerial Council and the north-south bodies as a consequence of the restoration of the institutions of strand 1?

22:30

I will make the point that the noble Baroness, Lady Ritchie, powerfully made: in all this argument over the last two years, the nationalist point of view has inevitably taken second place because, to get this agreement, we had to get the unionist parties on side with the protocol. This has meant that there has been a gap in looking after the interests of that other community—and, as the noble Lord, Lord Alderdice, said, the increasing number of people in Northern Ireland who do not identify with either. That is not insignificant: if you look at the figures, there are 27 members of the Assembly from Sinn Féin, 25 from the DUP and 17 from the Alliance Party. That would have been impossible in the days when I was a Minister for Northern Ireland. It has changed dramatically, so we have to take that into account.

I make a plea that I think everybody here and in Northern Ireland would make: we do not want this to happen again. Sinn Féin brought the Assembly down for three years. The DUP walked out, and that meant that the Assembly went down for two years. That is five years altogether without a Government. There has to be a system, agreed by the parties in Northern Ireland, that will never let that happen again.

[Lord Caine (Con)]

My Lords, I thank all those who contributed to this brief debate. I will endeavour not to keep us much beyond midnight. I jest—but, in all seriousness, if there is one thing that I think we can all agree on, it is that this debate has demonstrated once again the importance of Northern Ireland to all of us who have contributed, no matter where we stand on the deal, the Command Paper or these statutory instruments. We all care immensely and passionately about Northern Ireland and its future, and that is shared right across this Chamber. I am particularly grateful for the comments of the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Suttie, and for their general support for the regulations. I am grateful for their kind words about me personally—that is very much appreciated. I am in a position to give the noble Baroness the assurances she sought from me.

The noble Lord, Lord, Lord Murphy of Torfaen, mentioned strand 2 of the agreement. He is absolutely right that it is a three-stranded agreement in which all parts are interlocking and interdependent on each other. We look forward to an early meeting of the North/South Ministerial Council, and I look forward to the First Minister and Deputy First Minister of Northern Ireland taking up their seats once again when the British-Irish Council next meets to carry out its important work. The restoration of strand 1—the Assembly and the Executive—which I think most of us in this House support, makes possible the proper functioning of the agreement once again in all its dimensions. I say that conscious that a number of noble Lords present were instrumental in the reaching of that agreement back in April 1998.

I also commend what I thought was an outstanding and typically learned contribution by the noble Lord, Lord Bew. I also commend many of the wise words of the former First Minister of Northern Ireland, the noble Baroness, Lady Foster of Aghadrumsee, and I very much welcome the tone of the contribution from the noble Lord, Lord Hay of Ballyore, from the DUP Benches. I very much welcome the fact that the DUP has decided, under the leadership of Jeffrey Donaldson, to go back into the Executive. It is a matter of record that we did not think it was the right move to pull out of the Executive. For the record, we did not agree with Sinn Féin coming out of the Executive between 2017 and 2020.

I agree with the noble Lord, Lord Alderdice, and my noble friend Lord Empey that bringing down the institutions in order to get one’s way is not the right way forward—we probably need to look at how, again agreeing with the noble Lord, Lord Murphy, we can make the institutions more robust and resilient in future, although that is necessarily a conversation that would have to take place with Northern Ireland’s political parties. I agree also with the comments of the noble Lords, Lord Hain and Lord Murphy, and my noble friend Lord Empey about the importance of a functioning Assembly for the strength of the union. To me and others, it seems that devolved power-sharing is the surest foundation for the governance of Northern Ireland within the United Kingdom.

I put something on the record, for the avoidance of any doubt, and state once again that the Government are steadfastly committed to upholding the Belfast agreement in all its parts—all three strands—including the undertaking to deliver for everyone in Northern Ireland, no matter their community background or their political aspirations. We are committed to governing in the interests of the entire community in Northern Ireland: I hope that reassures the noble Baroness, Lady O’Loan, and others who raised the point about impartiality and parity of esteem, that we are committed to governing in the interests of the whole community. The UK Government recognise and respect the legitimacy of different constitutional ambitions for the people of Northern Ireland, although our clear preference, and mine personally, is very strongly for the union. I should add that nothing in the agreement prevents the United Kingdom Government having a view about the future of the United Kingdom.

The agreement is also explicit that any change to the constitutional position of Northern Ireland would require the consent of a majority of its people. At present, our view is that there is no evidence to suggest that a majority of people in Northern Ireland wish to separate from the United Kingdom. The restoration of the Northern Ireland Executive is an enormous achievement by my right honourable friend the Secretary of State, the Prime Minister and others. It is right that we now give the Executive sufficient space to focus on delivering for the people of Northern Ireland without, if I may say so, other constitutional distractions. I agree also with what the noble Baroness, Lady Foster of Aghadrumsee, said about joint authority: that is clearly not something that this Government would countenance—either de facto or de jure, I say in response to the noble Lord, Lord Alderdice. The agreement is very clear that there are two constitutional outcomes for Northern Ireland: one is to remain part of the United Kingdom; the other is to be part of a united Ireland. Our preference is strongly for the United Kingdom, but of course we abide totally by the principle of consent which is in the 1998 agreement.

It has been a very long debate and a number of Members on the Benches behind me set out their opposition to the Command Paper in terms that are well known—and indeed the position, if I can say it gently, of some other members of their party in this respect. At this stage, if I were to answer every question that I have been asked this evening, we would be here beyond midnight. Therefore, if noble Lords will be so kind, I will take away the very detailed and technical questions that were asked of me and commit to writing in detail, with full answers to each of the points raised.

I place on record the Government’s view that this legislation ensures that Northern Ireland’s constitutional status within the United Kingdom is put beyond any shadow of a doubt. The presumption of automatic alignment with EU goods law is ended; Northern Ireland’s access to the UK internal market is safeguarded; treaties that might create barriers within the UK’s own internal market are prohibited; Bills that are put before this House that impact trade with Northern Ireland will be rigorously screened; the operation of a consent vote in the Assembly is enshrined; and action by public authorities consistent with protecting the UK internal market is ensured.

As a number of noble Lords made clear, the important point that we should not lose sight of is that these regulations help to deliver a power-sharing devolved Government in Northern Ireland, serving all parts of the community with parity of esteem. As I said earlier, a functioning Northern Ireland Executive working with the UK Government is the surest foundation for Northern Ireland’s stability and its future as part of our United Kingdom. The Government believe that the new Executive provide fantastic new opportunities for Northern Ireland to take advantage of its place within our internal market and of its privileged access to the EU single market. It is already a fantastic place for business and investment, but it could become even more so as a result of the arrangements we have in place. I heard that at first hand when speaking with a number of businesses and potential investors in Boston and New York last year, on foot of the Northern Ireland Investment Summit that took place in Belfast and Hillsborough in September.

I am conscious of time. I promise to write in great detail to noble Lords. In conclusion, Northern Ireland has enormous potential. It is our view that Northern Ireland’s potential can be realised, and that Northern Ireland can move forward as a place where politics now starts to work, where the economy grows and where society is more united and strong. As my noble friend Lord Empey said, the imperative for any unionist now has to be to make Northern Ireland a place where more people want the union than oppose it.

On that note, it is with the greatest confidence in the future for Northern Ireland as an integral part of the United Kingdom that I beg to move.

Motion agreed.