Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Debate between Baroness O'Loan and Lord Dodds of Duncairn

Tuesday 13th February 2024 Lords Chamber

[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?

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Baroness O'Loan and Lord Dodds of Duncairn

3rd reading
Tuesday 4th July 2023 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I welcome the Minister’s amendments and I will confine my remarks to them. First, I observe that this shows how quickly the Government can move when they decide to legislate in respect of Northern Ireland to remedy an obvious injustice. Therefore, I hope that, on future occasions when we raise issues of concern that have support in Northern Ireland, the Government will be loath to use the argument that parliamentary time does not permit.

Secondly, people from right across all communities and all parties in Northern Ireland—except Sinn Féin, of course—will breathe a sigh of relief at the prospect that the godfather of terrorism over many decades, Gerry Adams, will not, on a technicality, be able to benefit from the largesse of the British taxpayer, when so many widows and the thousands of families that he and his organisation caused such suffering to, have struggled with very little compensation or recompense for many years. That injustice will be put right in this House and this Parliament. That will be warmly welcomed by those who really believe in true justice.

[Baroness O’Loan (CB)]

My Lords, Clause 42, to which this amendment applies, deprives those who suffered loss or damage as a consequence of the Troubles of the ability to bring or continue any civil action after 17 May 2022—some 14 months ago. A relatively small group of UK citizens from every part of these islands is to be deprived of their rights not only to bring a civil action but to inquests and to full human rights-compliant criminal investigations by virtue of the restrictions still placed on the investigative powers of the ICRIR by this Bill.

The long title of the Bill is amended by one of the amendments. It describes the purposes of the Bill as being to

“promote reconciliation by establishing an Independent Commission for Reconciliation and Information Recovery, limiting criminal investigations, legal proceedings, inquests and police complaints”.

The purpose of the Bill is clearly stated, but at no stage has the Minister explained how it is expected that limiting criminal investigations, legal proceedings, inquests and the investigation of police complaints will promote reconciliation. I am unaware of anyone who thinks it will.

The real purpose of the Bill is to protect the Government from having to pay damages for those occasions on which investigation reveals that the state acted in breach of its duties to protect life. At its simplest, if somebody was murdered, and the state had prior knowledge and did not intervene or prevented proper investigation—and we know that these things happened right across our communities—a cause of action is disclosed. Now, in addition to the provisions of these amendments, there will be no right of action for bereaved and grieving families. That is the first purpose: to stop civil actions. The second purpose is to control access to information so that some people will never be able to prove what happened in cases involving state actors. The third purpose is to protect those veterans—they are few—both police and military, who may have committed the greatest crime, that of murder, from being subjected to due process. This Bill, as everyone has said, has been roundly and consistently condemned in the UK, by the Council of Europe, by the European High Commissioner for Human Rights, by the UN and by many others. It is a terrible breach of our international legal obligations.

Internment without trial was introduced on 9 August 1971 and continued until 5 December 1975. About 340 people were detained initially, often just scooped up by the Army because of their age and where they lived. About 100 were released within 48 hours; 17 people died in the rioting which followed and an estimated 7,000 Catholics had to flee their homes when they were attacked by loyalists. Initially, internment was carried out under regulations made under the special powers Act. All those detained were from the Catholic community. The interpretation of the Detention of Terrorists (Northern Ireland) Order 1972—introduced that November—by the Supreme Court is the subject of today’s government amendment. Overall, 1,981 people were detained without trial, 1,874 from the Catholic/nationalist/republican community and 107 from the Protestant/unionist/loyalist community. That began in 1973. It is generally accepted that internment without trial was a major recruiting agent for the IRA, and the Government said decades ago that they would never introduce it again.

It is also generally accepted in Northern Ireland and elsewhere that Gerry Adams was in the IRA and that he served on the IRA army council. As one who, as a young woman, lost my baby when I was caught in an IRA bomb explosion, I fully understand the revulsion at the idea that he and others who were involved in violence might now be able to recover even more money as a consequence of the Supreme Court decision in this case. A briefing on the Supreme Court judgment by Richard Ekins KC and Sir Stephen Laws is helpful in defining the justification for and the parameters of the amendment. Ekins and Laws describe how the process worked. Detention began with the making of an interim custody order, which was an exercise of a power conferred by the 1972 order on the Secretary of State. The order specified that only the Secretary of State, a Minister of State or an Under-Secretary of State could sign an interim custody order.

They went on to say that

“detention under the 1972 Order only began with the making of an interim custody order. Detention was only able to continue for more than 28 days when the Chief Constable had referred the matter to the Commissioner (a former judge or senior lawyer) who would consider the matter afresh. If the Commissioner was satisfied that the person in question was involved in terrorism, the Commissioner would make a detention order. When Mr Adams escaped from custody, his continuing detention, beyond the period of the interim custody order, had been authorised by a Commissioner who had made a fresh decision”.

This amendment seeks only to address the consequences of the Supreme Court’s decision. It is not about the merits of detention without trial. It is about whether the Carltona principles should have applied to prevent the Secretary of State having to consider each application personally. It is also about stopping the significant number of civil actions lodged after the Supreme Court judgment.

Internment without trial should never have happened, but this amendment is not about that. For that reason, while I will not oppose these amendments, I look forward to the Minister giving the assurance sought by the noble Lord, Lord Faulks, as to the extent of the exercise of powers anticipated to make secondary legislation under the powers conferred by the Bill.