Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Baroness Hoey Excerpts

Report stage
Wednesday 19th January 2022 Lords Chamber

Moved by

[Baroness Hoey]

5: Clause 5, page 7, line 42, at end insert—
“(9) This section has effect notwithstanding section 7A of the European Union (Withdrawal) Act 2018.(10) No inference is to be drawn from subsection (9) as to whether this section would otherwise have effect subject to section 7A of the European Union (Withdrawal) Act 2018.””Member’s explanatory statement
This amendment would ensure that section 7A of the 2018 Act cannot transport the requirements within the Protocol into domestic law, and thus nullify the cross community consent mechanisms.

[Baroness Hoey (Non-Afl)]

My Lords, I beg to move Amendment 5 and will speak to Amendment 7, both of which are in my name and that of the noble Lord, Lord Dodds. In Committee, the name of the noble Lord, Lord Trimble, was also on this. Unfortunately, through a communications error, his name did not appear. He could not be here today, but he wanted me to say clearly at the beginning that he wishes that his name was on it and he supports it fully.

I believe that this amendment goes to the heart of everything that we have been talking about today and, indeed, everything that we talk about in Northern Ireland and in relation to it at the moment: the word “consent”. I have been making a note of every time that consent has been mentioned in this debate, and it is well into double figures, even in this short time.

I will talk about how the Government changed the consent principle in Northern Ireland last year, by inserting a provision, in paragraph 18(5) of Schedule 6A, into the Northern Ireland Act 1998 to expressly disallow the requirements for cross-community consent when it comes to the key vote in the future on the Northern Ireland protocol, if it is still there. Quite simply, this demolishes a core plank of the Belfast agreement and so causes many people to wonder what purpose is actually served by a cross-community protection for key decisions, as set out in paragraph 5(d) of strand one of the Belfast agreement. The consent principle was one of the reasons that men and women in Northern Ireland supported the Belfast agreement in the end, despite their concerns about many aspects of it, like prisoner release, which has been mentioned already. They went in and voted, many of them with a heavy heart, because they thought that it was best for Northern Ireland at the time. As a pro-union community, they had a safeguard to stop something that was harmful in the future to their community.

So the Belfast agreement has been unbalanced with this government move. Even the Government’s own barristers, in the High Court proceedings that I am part of in Belfast, accepted that this subjugated the Acts of Union. As I said in Committee, how can any noble Lord in this House stand over that approach? In their Command Paper, the Government themselves have conceded that the protocol has no consent from the unionist community and identified this as a core problem.

So, in these amendments, we seek to undo that injustice. Amendment 7 seeks to repeal Schedule 6A to, and Section 56A of, the 1998 Act and would undo the Government’s unilateral move to disapply community consent. Amendment 5 ensures that the 2018 Act provisions cannot, by implication or otherwise, subjugate the cross-community consent protections, which are so vital to peace and stability in Northern Ireland.

Of course, the move to disapply cross-community consent conflicts even with the protocol itself, which contains an express requirement to protect the Belfast agreement “in all its parts”. This is further replicated in domestic law in Section 10(1)(a) of the European Union (Withdrawal) Act 2018, whereby there is a requirement to

“act in a way that is compatible with the terms of the Northern Ireland Act 1998”.

The Government’s approach to apparently acting compatibly with the 1998 Act and protecting the Belfast agreement “in all its parts” was to unilaterally, without the consent of a single unionist elected representative at any political level, disapply one of the key provisions of the agreement and of the 1998 Act. I am sure that many Members of your Lordships’ House did not realise that this was happening. There was never a vote on any of this in our Parliament.

When faced with this issue, the Government’s response was that the protocol consent vote is not devolved. I will make three observations on this. Paragraph 5(d) of strand one of the Belfast agreement and Section 42(1) are directed, respectively, to “key decisions” of the Assembly and

“a matter which is to be voted on by the Assembly”.

There is no constraint on the provision only being applicable to devolved matters. Secondly, if the provision had, in any event, no force or effect, why was it disapplied? Thirdly, in any event, the protocol consent matter is devolved. The 1998 Act lists matters that are excepted or reserved, and any that are not listed are therefore devolved. In paragraph 3 of Schedule 2 to the 1998 Act, “International relations” is listed as an excepted matter. However, paragraph 3(c) of Schedule 2 makes clear that this does not include

“observing and implementing international obligations”.

In undertaking the vote derived from Article 18 of the protocol, the Assembly is implementing and observing an international obligation. Therefore, it is devolved.

The Belfast agreement is essential for protecting peace and stability in Northern Ireland. Protecting that agreement must mean protecting its provisions for the betterment of all citizens in Northern Ireland, rather than simply viewing the agreement through what effectively amounts to a principle of nationalist interpretation. It cannot be the case that cross-community protections are for one community, when it suits, but not the other. Either the Belfast agreement serves the entire community equally or it has no point, from a pro-union perspective. So these amendments are fundamentally about restoring the careful balance negotiated by the noble Lord, Lord Trimble, and others in 1998.

I am for ever genuinely astounded by those who shout loudest, as guardians of the Belfast agreement, if they do not really mean it. They seem to demand that the Belfast agreement be construed in a manner conducive to certain objectives by certain communities. So we hear nothing from the SDLP, Sinn Féin or even the Alliance Party on the heinous move to trash cross-community consent protections at the very time that it seems to be working to the benefit of those who have overwhelmingly rejected the protocol.

Over many months, the record will show that many of us have warned the Government and raised the alarm on this issue. If the Belfast agreement is to continue, the fundamental balance must be restored. Otherwise, even those within unionism who supported the agreement could not conceivably recommend continuing in a process that is fundamentally imbalanced and to the detriment of the pro-union community and, indeed, the union as a whole of Great Britain and Northern Ireland—the United Kingdom.

We met with the shadow Ministers and, obviously, the government Ministers on this, and the former showed some genuine understanding of this and an acceptance of how it was causing real problems in Northern Ireland. I also know that the noble Lord, Lord Caine, was given very little time in Committee when this was proposed, because it came in quite late, and I am hopeful that he will be able to give us a little more of his real views on it today, having, I hope, gone back and talked to people in government.

I do not need to say much on the second amendment because its objective is clear: it seeks again to undo the damage done to the Belfast agreement by the unilateral move to disapply cross-community consent. It is restoring cross-community protections on the protocol vote to ensure that, if there is to be a protocol applying in Northern Ireland, it will require cross-community consent. Without that, it cannot survive. It fixes these amendments and the Government’s error—I will put it no stronger than that—in inserting these provisions into the Northern Ireland Act without the consent of a single unionist elected representative at any level in Northern Ireland.

As I and many of us have said many times before, ultimately, the Government will have to choose between the protocol and the Belfast agreement. That is something I do not want our Government to have to do. But the reality of the situation in Northern Ireland, as has been said by many Members in this House, is very serious indeed, and there is very little time to get this sorted. It is not going to go away.

I am pleased there is a statement on the BBC because it probably means there are a few more people here than are normally here when we have debates on Northern Ireland. I appeal to noble Lords who may not have looked into this in great detail to think about this carefully, because this is crucial if we are serious about moving forward in Northern Ireland. If we cannot get this right and we break the Belfast agreement in this deliberate way, I am afraid that its long-term future is at risk.

I hope noble Lords will understand what may seem very technical but is actually very simple: do we mean what we said in the Belfast agreement and the Northern Ireland Act 1998? I beg to move.

[Lord Bew (CB)]

I have great respect for the gritty texture of the speech of the noble Baroness, Lady Hoey—initially, what is important to understand is why we have got to this point. She is absolutely right; there is a major problem with the one-sided, nationalist appropriation of the Belfast agreement and the willingness, on the whole—if you read Michel Barnier’s memoir on the EU, for example—to accept that version. Getting it back to a balance—and in this respect I absolutely agree with the noble Baroness—is the clue to stability in Northern Ireland. That balance has departed.

The reality is that in 2017 the May Government lost an election they were not expecting to lose, and the UK negotiating position on these points collapsed in the autumn. Anybody who looks at it closely can see that Irish officials in recent times have published how amazed they were; one Irish official at the centre of these negotiations writes about how easily they were accepted as the only guardian of the Belfast agreement. That being the case, noble Lords will not be surprised that the version of the agreement that starts to play into the 2018 protocol in particular is one-sided. On 6 November, the noble Lord, Lord Murphy of Torfaen, said in this House that he considered that the negotiators of the 2018 withdrawal agreement for the May Government had failed to take into proper account the complexity and commitments of the Good Friday agreement across the board. To that extent, the underlying emotion impelling the noble Baroness, Lady Hoey, today is entirely correct.

However, we are in the process of trying to correct this now, and it is inevitably an imperfect process. What should have happened—it must have been obvious to any child looking at the current negotiation trying to work out how the protocol is to work out—is that we should have said to the Irish Government and the EU: “We will protect the single market, now tell us what you will do to make sure the trading arrangements for Northern Ireland are flexible.” We did not do that. It is so elementary it makes one cry looking at it. We are now desperately trying to reclaim ground that we lost in that negotiation. The trouble is that that ground is lost. When this Government came in, the first letter from the Prime Minister to the EU said we were trying to restore the delicate balance of the Good Friday agreement, which indicated that he recognised the problem—as the noble Lord, Lord Murphy, recognised the problem—and that there was work to be done.

At this point, the agreement with the EU came. The one key difference between the 2018 and 2019 agreements of the Johnson Government is the reference to assent for the Northern Ireland Assembly. It is absolutely clear that the terms of that agreement are not accepted by many unionists. In the earlier version, there were a lot of people in Northern Ireland without democratic rights. It is far better for the people of Northern Ireland across the board that their say at key points, and on how this protocol is implemented, is democratically inscribed.

--- Later in debate ---

[Lord Caine (Con)]

The noble Baroness, Lady Ritchie of Downpatrick, attended the meeting with the Minister for Europe yesterday at which I was present. I think that issue was raised then, and he was unable to put an absolute timeframe on this. If he cannot do so, I do not think I can answer that question directly from the Dispatch Box other than to say that the Government are seized of the urgency of this matter and the need to come to a resolution as expeditiously as possible. I take on board what the noble Baroness said and the comments in this respect from a number of Members from Northern Ireland behind me from the Democratic Unionist Party and the Ulster Unionist Party, and from the noble Lord, Lord Bew.

My final point relates to the nature of the amendments, which effectively would ask Parliament unilaterally to change an existing agreement between the United Kingdom and the European Union as set out in the unilateral declaration, the protocol and the withdrawal agreement. While negotiations are going on with the EU, it would not necessarily be helpful to those negotiations if we were to change an existing international agreement with the EU. That does not strike me as probably the most helpful way forward in negotiations. With those comments, I urge the noble Baroness, Lady Hoey, to consider withdrawing the amendment.

[Baroness Hoey (Non-Afl)]

My Lords, I thank everyone for their contributions. This has been a thoughtful and useful debate on a part of the United Kingdom that gets far too little attention at any time other than when there is trouble. I will briefly address a couple of points that were raised.

I get tired of people going on about how the protocol is all about Brexit. Northern Ireland voted as part of the United Kingdom, and we voted as the United Kingdom to leave. Let us be realistic. What happened then is that Northern Ireland has not left the European Union. We are in the internal market for all sorts of aspects, and we are now seeing that working through in the constitutional issue which is part of this debate tonight: the question of consent.

I thank the noble Lord, Lord Hannan, for his short speech of support. As someone who was a long-time Member of the European Parliament, perhaps he more than anyone here realises, when we say, “We are waiting for these negotiations and so we cannot talk about this, vote on it or do anything now,” just how very unlikely it is that the European Union will cave in and give back what should never have been signed away. I am not interested in who made the bad decisions, who is blaming who in Northern Ireland, or in which Government did it; I am interested now in sorting it. The only way we will do that is to stand up for our country—for a United Kingdom—and not use the excuses that have always been made about why we have a protocol.

When do we get a vote on this? The noble Lord, Lord Caine, talks about the legal action. Will we get a vote after that? I believe that all the other arguments used to explain why there cannot be a vote tonight are just procrastination. The people of Northern Ireland are fed up with this place and the other place not really ever accepting that they are part of the United Kingdom. I wish people would be honest. There are Members in this House who do not want Northern Ireland to be part of the union but they will not say it. Behind the scenes, we in Northern Ireland do not believe that we have the total support of Peers in this House and Members of Parliament in the other House. I believe that we should be voting on this tonight, but I am aware that there are Members here who have said to me that they genuinely do not think that this is part of this Bill—that it should not be in it. I do not agree with them, but I know that they will use that as their reason—understandably and perhaps genuinely honestly—not to support it.