Protocol on Ireland/Northern Ireland: Supreme Court Judgment

Lord Caine Excerpts

Thursday 9th February 2023 Lords Chamber

[Lord Morrow]

To ask His Majesty’s Government (1) what assessment they have made of the Supreme Court’s ruling on the status of the Northern Ireland Protocol and its effects on the Acts of Union 1800 and the Northern Ireland Act 1998, and (2) what urgent proposals they plan to implement to prevent any deterioration in relations between Northern Ireland and the rest of the UK.

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

My Lords, yesterday the Supreme Court considered the appeal brought to it last year and found in the Government’s favour. Regardless of this outcome, significant problems with the protocol remain. These will require political, not legal, remedies. The Government remain determined to find a solution that protects Northern Ireland’s place within the United Kingdom’s internal market and respects all three strands of the Belfast agreement. Intensive talks with the EU continue to that end.

[Lord Morrow (DUP)]

I thank the Minister for his reply. The Supreme Court judgment handed down yesterday states that the protection regarding constitutional change in the Northern Ireland Act 1998 pertains only to a situation where it is proposed that Northern Ireland fully leaves the United Kingdom to become fully part of the Irish Republic. This means that the critical prohibition in the Good Friday agreement on

“change in the status of Northern Ireland save with the consent of a majority of its people”

is not upheld in law. Given that, without this protection, the Good Friday agreement cannot stand, will the Government now introduce emergency legislation to give effect to the consent protections in the Good Friday agreement?

[Lord Caine (Con)]

I am very grateful to the noble Lord for his question. I gently point out that in the Supreme Court the Government won on all counts brought by the applicants. On his specific points, the Supreme Court was very clear that Northern Ireland remains an integral part of the United Kingdom. The position set out in the Belfast agreement is very clear: Northern Ireland is either fully part of the United Kingdom or it is fully part of a united Ireland, which will only ever be determined by the consent of the people in Northern Ireland. That remains unchanged.

[Baroness Smith of Basildon (Lab)]

My Lords, the Supreme Court judgment is welcome in that it provides legal certainty where there was uncertainty. The protocol negotiated by this Government—I see that the noble Lord, Lord Frost, who was responsible for it, is in his place—is by no means perfect. There are problems with it, which is why it is being renegotiated. I distinctly recall Ministers in your Lordships’ House saying that the protocol was essential to protect the Good Friday agreement, but now the Government tell us they have to change it to protect the Good Friday agreement. Only one of those statements can be true.

Businesses in Northern Ireland have been forced to adapt to their circumstances. They have put a lot of effort into adjusting to this. To unilaterally remove it would be the worst thing for businesses in Northern Ireland. There are reports that some limited progress is being made in negotiations. How confident is the Minister that the outstanding issues can be resolved quickly and in a manner that can draw broad, if not unanimous, support from across Northern Ireland?

[Lord Caine (Con)]

I am very grateful to the noble Baroness. As I have said on many occasions, she is a very distinguished former Northern Ireland Office Minister. We debated these issues at some length on Tuesday evening during the passage of the Northern Ireland Budget Bill. I was very clear that evening that for many businesses and sectors there are elements of the protocol that are working well. I referred to a recent meeting I had with the Dairy Council and Lakeland Dairies in Newtownards. For those businesses, EU single market access, as provided for in the protocol, is not just desirable but essential. We are committed to preserving that. I also said that there are many problems with the protocol for other sectors. It has led to diversions of trade and increased burdens on business. It has disadvantaged consumers and led to political instability—witness that there are no institutions at the moment.

On the noble Baroness’s question, I will not comment on what may have been written in newspapers. The Government’s preference is to resolve these matters through a negotiated agreement with the European Union. As I said in my initial Answer, we are working tirelessly towards that end.

[Baroness Suttie (LD)]

My Lords, further to that answer, does the Minister agree that this ruling increases the urgency to make real progress on the negotiations as soon as possible? The sooner there is a return to Stormont and the Executive, the better this will be for the people of Northern Ireland, given the cost of living crisis they currently face.

[Lord Caine (Con)]

The noble Baroness will be aware that I have been a consistent supporter of the Belfast agreement since it was reached on 10 April 1998. We are about to mark its 25th anniversary. I agree with her earlier comments. A protocol that was designed to prevent a hard border on the island of Ireland and to protect the 1998 agreement in all its parts is now having the unintended consequence of undermining and placing strain on that agreement. I agree with the noble Baroness entirely that we need to resolve these issues as quickly as possible and get Stormont back to work.

[Lord Cormack (Con)]

My Lords, I thank my noble friend for all that he continues to do in the interests of good sense and Northern Ireland. Is he confident that, given sufficient time—we do not need to rush this or try to accomplish it as soon as we can—negotiation is the only sensible way to resolve this issue? The dairy industry, which has been to see me and others, will then feel that its protection is complete and will be very happy that others should have similar benefits.

[Lord Caine (Con)]

I agree with my noble friend and thank him for his kind words. We are seeking to achieve, as I indicated in my opening Answer, a situation that respects the integrity of the EU single market and the UK’s internal market, and Northern Ireland’s constitutional position as an integral part of our United Kingdom—a position, I hasten to add, that I wish never to see change.

[Lord Dodds of Duncairn (DUP)]

My Lords, the Minister referred to having won in the court, but the Government have won on the basis of the argument that the Acts of Union have been suspended. Are the Government proud of arguing in the Supreme Court of the United Kingdom that the Acts of Union have been suspended? What action will the Minister take to restore the union?

[Lord Caine (Con)]

I will resist the attempt to turn the House of Lords into another branch of the Supreme Court and relitigate the case on which judgment was reached yesterday. All I will say to my noble friend is that we are well aware of the defects in the protocol, which have become apparent. Some might say that they were apparent at the time, but they are very apparent today. We are determined to remedy what does not work, while preserving what does.

[Baroness Foster of Aghadrumsee (Non-Afl)]

My Lords, as one of the applicants to the Supreme Court yesterday, I welcome the clarity the Supreme Court has given to the legal position. I also welcome the Minister’s comment that there needs to now be a political solution to this problem for Northern Ireland, which has been ongoing since 2021. Paragraph 67 of the Supreme Court judgment yesterday, as my noble friend Lord Dodds has just referred to, says:

“The Acts of Union and article VI remain on the statute book but are modified to the extent and for the period during which the Protocol applies.”


At the time of the withdrawal agreement, we were told that the Acts of Union had not been changed and that the union was safe. The Supreme Court has ruled that the Acts of Union have been modified as long as the protocol is in existence. What plans do His Majesty’s Government have to reinstate Article VI of the Act of Union?

[Lord Caine (Con)]

I am grateful to the former First Minister of Northern Ireland for her comments. We will of course continue to study the judgment very carefully, because, as I indicated to my noble friend Lord Dodds, I do not plan to get into a legal rehearsal of all the arguments that we were played out in the Supreme Court. As her former right honourable friend, the current leader of the Democratic Unionist Party, made clear yesterday, this issue was never going to be solved in the courts; it requires a political solution, and that is what the Government are striving to achieve.

There have been modifications to the Acts of Union in the past; if there had not been, 100 Irish representative Peers would still be sitting in your Lordships’ House and the Church of Ireland would not have been disestablished.

[Baroness Foster of Aghadrumsee (Non-Afl)]

Shame!

[Lord Caine (Con)]

I note that the former First Minister is a proud Anglican. While there have been modifications, I take on board the noble Baroness’s comments. As I said in answer to an earlier question, the Government’s intention is to ensure that Northern Ireland’s position within the UK internal market is fully respected, along with its constitutional position as part of the United Kingdom.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, a group of 18 year-olds from Northern Ireland visited Parliament yesterday. They told me that they were jealous of me because, for years, I had the opportunity to stand for election and to debate and make all the laws to which I was subject—an opportunity they will now be denied under the protocol, with laws being forced upon them over which they have no say. They told me that they felt like second-class citizens in the United Kingdom because of that. What does the Minister say to them?

[Lord Caine (Con)]

Clearly, we do not want anybody in any part of the United Kingdom to feel like a second-class citizen. As I set out in my comments on the Northern Ireland Budget Bill on Tuesday, dealing with issues around governance and the democratic deficit, to which the noble Lord referred, are extremely important, and they will have to form part of a final negotiated agreement with the EU.

[Lord Weir of Ballyholme (DUP)]

My Lords, we used to have a situation where there was a common citizenship across the United Kingdom and that every citizen of the United Kingdom was able to vote for representatives at either regional or national level who could set their laws. It is clear that the Supreme Court ruling yesterday has confirmed that that is no longer the case. As we rightly, as a nation, seek to propagate the values of democracy internationally, can the Minister tell us what message it sends to the outside world that we are tolerating a major democratic deficit in our own backyard?

[Lord Caine (Con)]

As I just pointed out in response to his noble friend, the noble Lord, Lord McCrea, this is an issue we are seeking to resolve in the negotiations. I cannot really go into any detail at the Dispatch Box.

[Lord Hannan of Kingsclere (Con)]

My Lords, the Acts of Union were our country’s foundational charter. If the United Kingdom had a national day analogous to the independence days of other countries, it would commemorate 1 January 1801, when the Acts of Union took effect. How can any British Government, least of all a Conservative and Unionist British Government, tolerate legislation that is now held in the courts to be at odds with that foundational document?

[Lord Caine (Con)]

I can assure my noble friend that, as a staunch unionist, I would have no issue whatever in commemorating or marking 1 January 1801 every year. I have already answered his question: issues around governance and the democratic deficit have to be resolved in our ongoing and intensive dialogue and negotiations with the EU.

[Lord Hay of Ballyore (DUP)]

My Lords, can the Minister comment on the issue whereby people elected to the Northern Ireland Assembly are then subject to laws in some 300 areas made by a legislature of which they are not a part and to which they have no representation?

[Lord Caine (Con)]

I am grateful to the noble Lord, Lord Hay, for his question, which I think I have covered in my previous answers.

[Lord Lilley (Con)]

My Lords, up to half of all goods and produce exported across the border from Northern Ireland to the Republic are produced in Northern Ireland, and therefore cannot be validated as to whether they meet EU conditions at the border between GB and Northern Ireland. Should we not remove the border between GB and Northern Ireland and rely on export controls and the SPIRE system, which I used to exercise as the Secretary of State for Trade and Industry, to ensure that goods exported to the European Union meet European standards? That would solve the problem.

[Lord Caine (Con)]

My noble friend, as a former Secretary of State for Trade and Industry, makes a valuable point. He will of course be aware that the Government have proposed, and are currently discussing, a system of green channels and red channels at points of entry, whereby goods that will never leave the United Kingdom will not be subject to the controls that will be placed upon those goods that will enter the single market.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, would the Minister care to speculate as to why the guilty men who got us into this mess in the first place remain silent?

[Lord Caine (Con)]

I have great admiration for the noble Lord, but I am never one to speculate, especially at the Dispatch Box. As I have said on many occasions, I prefer to dwell less on how we got into this place and more on how we get out of it.