Omagh Bombing

Lord Dodds of Duncairn Excerpts

Thursday 9th February 2023 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I too join in tributes to the families of the victims of the Omagh atrocity, and to Michael Gallagher in particular, whom many of us have met, for his courage and bravery. I also plead that, in all of this, we remember that terrorists were responsible for this atrocity.

I add to the calls for the Irish Republic to be put under pressure to do more in relation to this, and to other areas where the IRA carried out terrorist activity in Northern Ireland and found a safe haven in the Irish Republic for many, many years. I refer to the recent case where the sole survivor of the Kingsmill massacre, which again has been found to be a totally sectarian murder of Protestant workmen by the IRA, has been forbidden from revealing secret Garda evidence about the attack, following special legislation passed in the Dáil to prevent that becoming transparent and open to the public. Many of us are really concerned about the lack of input from the Irish Republic in getting justice for victims. I urge the Minister to continue to press the Irish Republic on this matter.

[Lord Caine (Con)]

I am of course aware of the case to which he refers. I do not think it would be appropriate for me, at the Dispatch Box, to comment directly on a case which is still live and ongoing. However, I do hear the comments of my noble friend very loud and clear and, as I said in response to the noble Baroness, Lady Foster, I will raise these issues when I next meet Ministers from the Irish Government.

Protocol on Ireland/Northern Ireland: Supreme Court Judgment

Lord Dodds of Duncairn Excerpts

Thursday 9th February 2023 Lords Chamber

[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.

Northern Ireland Budget Bill

Lord Dodds of Duncairn Excerpts

2nd reading & Committee negatived & 3rd reading
Tuesday 7th February 2023 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I will speak to my amendment to the Motion and make some more general comments about the budget the Minister has brought forward. I join with the noble Lord, Lord Hain, in his remarks about the noble Lord, Lord Empey, and his family. I offer him our best wishes at this time.

It is important to remember how we got to this sad point, because we certainly believe that the budget for Northern Ireland should be set in the Northern Ireland Assembly in Stormont. It is a matter of deep regret that we find ourselves in this position this evening because the Government brought forward the Northern Ireland protocol and continue to implement it, albeit with significant grace periods and other measures that have not been fully implemented.

For the purpose of context, we should remember that, when the Executive ceased to function in Northern Ireland, the Sinn Féin Finance Minister, Conor Murphy, had been working on a budget from October 2021 to the spring of 2022. When he brought forward a budget, he failed to find any other party in the Northern Ireland Executive, which discussed the matter, to agree to it. So nobody should run away with the idea that having the Executive and the Assembly back will lead to some kind of wonderful outcome as far as the budget is concerned, because Sinn Féin brought forward a budget which was rejected by all the other parties—that was the state of play when the Assembly and the Executive finished. I remind your Lordships that at the start of 2017, Sinn Féin again held the Finance Minister position and the then Minister and his colleagues collapsed the Assembly and the Executive and refused to bring forward a budget for Northern Ireland, even though we were facing a very short timescale. It is important for context that your Lordships are aware of those points.

On the amendment to the Motion in the name of the noble Lord, Lord Hain, I fail to recall that any such amendment was brought forward at any point during the three years when Sinn Féin collapsed the Executive. Indeed, I asked the Library to check how many vociferous statements had been made by members of the Northern Ireland Affairs Committee, Northern Ireland spokespersons, people who take an interest in Northern Ireland, and Front-Bench spokespersons, and I found very few examples of them being prepared to come out and say, “Sinn Féin is at fault for the collapse of the Assembly”, or to seek any kind of punishment or redress. Instead, it was dressed up in all sorts of talk about the parties needing to come together. So it is interesting—and it will not be lost on unionists in Northern Ireland—that we have this approach to unionist parties, at a time when unionists are making the point that they cannot operate a protocol which is injurious to the union, the very thing we are there to defend and promote. The purpose or import of the amendment to the Motion would be, in effect, to expel a party from the political process: it would have no resources for offices, no staff and no salaries—nothing.

It is interesting, again, that when Sinn Féin refused to take their seats in the other place, extraordinary efforts were made to ensure that they received all the benefits of office, including salaries and staff. They even get a parliamentary allowance; it is not Short money, but it is actually looser than Short money and can be spent on all sorts of political promotion, courtesy of the UK taxpayer. Not a word is said about any of that; there is silence. That too is not lost on unionists.

The fundamental reason we are in this position this evening is the Northern Ireland protocol. The Minister said that he was disappointed about the lack of a functioning Executive, but I thought he would have mentioned the protocol and the disappointment we all feel in the unionist community in Northern Ireland—and, indeed, people beyond that—at the damage done by the protocol over the last few years. To suggest that we should now, in effect, expel parties—including the main unionist party—from the political process in Northern Ireland, which is the real import of the suggestion of the noble Lord, Lord Hain, is a fundamental rewriting of the Belfast agreement. We are that told that it is important to have all these safeguards for the agreement, but the very things that are now being suggested are completely undermining any basis on which the Belfast agreement, as amended by St Andrews, is predicated. People talk about protecting the Belfast agreement, but they are quite happy to jettison at the first opportunity the fundamental requirements of the agreement when it suits them. When the rules come up with a result they do not like, they then change the rules. Yet we are told that the protocol is necessary to protect the agreement.

I have set out in the amendment to the Motion the reasons why the Bill is, unfortunately, necessary and why the Northern Ireland protocol, in our view, has to be replaced. It is incompatible with the Belfast agreement, as amended by St Andrews; it breaches the principle of consent; it undermines the three-strand approach of the political process in Northern Ireland, which has been the basis of people’s approach to the Northern Ireland situation for many years; and it undermines the cross-community voting mechanism. The idea that we have any kind of democratic consent in the Northern Ireland Assembly to the protocol, many years after it was implemented, but only on the basis of a majority vote—the only vote of any significance, which cannot be held without a consensus, or which is capable of being turned into a consensus with a cross-community vote—again undermines the agreement. It is undemocratic.

It is important to spell this out, because anyone listening to this debate, having heard the Minister outline the position, would think, “It is all just some arcane dispute between the Northern Ireland parties in Belfast; if only they would get their act together”, but it is far more fundamental than that. The Northern Ireland Assembly, if restored, will be denuded of powers to legislate over vast swathes of the economy: agri-food, manufactured goods and so on. VAT will be applied differently in Northern Ireland from the rest of the UK. We have already seen some of the outworking of that in the Budget Statement by the former Chancellor, now Prime Minister. State aid rules are applied completely differently, as we are under the EU regime. What self-respecting elected representative of the Northern Ireland Assembly, of whichever party, wants to celebrate and argue for a situation where they are deprived of the ability to make laws in over 300 areas of legislation that, rightfully, are mainly devolved to the Northern Ireland Assembly, but reserved to Parliament in some cases? It defies logic, it is not democratic and it is contrary to the New Decade, New Approach agreement, the basis on which the devolution settlement was restored in 2020 and which committed to the restoration of the United Kingdom internal market.

As has been illustrated in the court action taken by the noble Baroness, Lady Hoey, among others, the protocol has breached the Acts of Union themselves. Of course, we will no doubt hear more about that tomorrow in the Supreme Court. The Government have vigorously defended the argument that the Acts of Union have been subsumed or derogated from to accommodate the Northern Ireland protocol.

For all those reasons, unionists who have any concern whatever for the future of Northern Ireland, or indeed anyone who is concerned with democracy and the betterment of the people of Northern Ireland, should have concerns about the protocol. Over many months before the Executive ceased to function, when the Democratic Unionist Party actually held the position of First Minister, we warned that we were coming to the point where we had to have some progress on these issues—and eventually that came to a head, as we know. Other noble Lords will no doubt talk about the costs of the trader support services, the digital assistance scheme and the movement assistance scheme, and all that. Taxpayers are paying out almost half a billion pounds—£500 million—and that is purely taxpayers’ support to help people fill in forms digitally, and all the rest of it. That sum could be in this budget, but it has been diverted to deal with the complications of the protocol. That is before adding in the costs to business and all that—and those of us who sit on the Protocol on Ireland/Northern Ireland Select Committee will have heard from companies such as Marks & Spencer, which has spent up to £30 million setting up facilities for moving goods to Northern Ireland. That is just one company. These are extraordinary amounts of money—£500 million on that alone will go a long way to helping some of the problems that we have in Northern Ireland with education, health, policing and so on.

I hope sincerely that we can make real, significant progress towards finding a solution to the protocol problem. The Government have laid out their position in the Command Paper of July 2021, and the Explanatory Memorandum for the protocol Bill said very clearly what needed to be done to have a permanent, sustainable solution. I hope that the Government will hold firm to those commitments. They were not made by the DUP; they were not tests set by us. These were statements made by the Government of what needed to be done, and they cannot easily be put forward and then retracted. Indeed, the current Prime Minister, Rishi Sunak, when he came to Belfast, at a meeting in Bangor when he was running for the leadership, committed to the objectives of the protocol Bill. We will measure what comes out of the talks against those commitments and against our seven tests.

If we are hearing, as we seem to be, that we will be left in a situation going forward where we will still be under EU jurisdiction and EU laws, with the oversight of the European Court of Justice at arm’s length, or whatever it is, that gross breach of sovereignty, as I have already outlined, will be something that unionists cannot accept. We are entitled to be part of the United Kingdom, to have our laws made by our elected representatives and to have internal trade of the United Kingdom flow freely between all parts of the United Kingdom. So we have to have something that will work, going forward.

Some of the talk about green lanes and red lanes and all the rest of it means different things to different people. It seems to us that it is very much based on the proposals put forward by the European Union last October. It could be that it has moved on from that—but we should remember that, even if we solve the issue of red and green lanes and all that, it does not get to the heart of the problem of the differences in terms of divergence and diversion of trade, and the problems that will exist if you have a lot of the laws of Northern Ireland being made by a foreign political entity in its interests, and not in the interests of Northern Ireland, and with no say or vote by anyone in Northern Ireland. That cannot be sustainable going forward.

If we find ourselves in a position whereby the Government do not hold fast to their stated position and the commitments that they have made to the people of Northern Ireland and that they have made about the sovereignty of the United Kingdom and the free flow of trade within the UK internal market, we will be in a position of looking to the longer term governance of Northern Ireland without an Assembly and an Executive. That is unfortunate, but it will be the reality of the situation.

There may be attempts, as we have heard already, to chuck out the Belfast agreement, St Andrews and all the rest of it. I would suggest that that is a very dangerous course to embark on—a very dangerous course to embark on. We need to work to try to restore those institutions, but on the basis of agreements that are already there. As we heard previously from the Dispatch Box and on the Front Bench, the only means of making changes to the current arrangements is by a sufficient consensus of unionists and nationalists to make those changes, and anyone who suggests that you breach that fundamental principle of political decision-making and institution-making in Northern Ireland is going down a very dangerous path, as I said.

So what should happen? We cannot have a return to the situation where, over a long period, civil servants are left to run Northern Ireland, even with so-called guidance. We cannot have years of stasis with no political guidance. This is the Parliament of the United Kingdom. Ministers in His Majesty’s Government are responsible for the good governance of Northern Ireland. Indeed, I think that those words were part of a previous election manifesto commitment of the Conservative Party, where it was made clear that, in the absence of devolution, it is the responsibility of the Westminster Government to make decisions—decisions that will be accountable, whereby we can question and query and hold Ministers to account. Civil servants cannot be put in that position; it is unfair to them and to the people of Northern Ireland.

The choice is not between having no Executive and therefore no Government. There is an alternative—we can have government—and it is up to the Government here to take on that responsibility. I have to say that some people may say that that means that there is decision-making from London as opposed to Belfast, but, over recent times we are already seeing a constant working against the devolved settlement, in any case. We have seen it with abortion regulations and with the legacy proposals, and we have seen it with changing the voting mechanism for the protocol. We have seen it most recently in relation to the statutory instrument due to be brought forward soon in relation to border control posts. All those are devolved issues, yet the Government decided to intervene. So they are already doing it, but it seems that they pick and choose which areas to override the devolved settlement on. So what I am saying is that we cannot go back to the situation where civil servants are running Northern Ireland; we have to have a situation where there are accountable Ministers, if not at Stormont then here.

It is important that these matters are explored in detail, and they have to be explored in this House in this Parliament by the representatives of the people of Northern Ireland.

Northern Ireland Budget Bill

Lord Dodds of Duncairn Excerpts

2nd reading & Committee negatived & 3rd reading
Tuesday 7th February 2023 Lords Chamber

Tabled by

[Lord Dodds of Duncairn]

At end insert “but this House regrets that the bill is necessary given the imposition of the Protocol on Ireland/Northern Ireland which (1) is incompatible with the Belfast Agreement, as amended by the St Andrews Agreement, because it breaches the principle of consent, undermines the three stranded basis of the political process in Northern Ireland and cross-community voting mechanism of the Northern Ireland Assembly, (2) is undemocratic given that the laws in Northern Ireland are made by a foreign political entity in its interests with no vote by any elected representative of the people of Northern Ireland, (3) is contrary to the New Decade, New Approach Agreement by giving effect to a customs and regulatory border that divided the United Kingdom, and (4) is injurious to Northern Ireland’s constitutional position as part of the United Kingdom”.

[Lord Dodds of Duncairn (DUP)]

I shall not move my amendment.

Lord Dodds of Duncairn’s amendment to the Motion not moved.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I just want to comment on a small but important point that the noble Baroness, Lady O’Loan, made; I wondered whether the Minister would like to respond to it. The noble Baroness said that the advice being issued potentially by a Minister about the restriction on evidence could be quite worrying. As an investigator, I share that view, as I am sure the judiciary would in a court hearing. There are some present restrictions but the list is a small one; it includes the interception of communications, journalistic material, legally privileged material and, most of the time, medical advice. I suspect that this is something to do with foreign intelligence material, which is provided only under certain conditions. That is usually about source protection, and the usual condition is that the material can be shared further only in the event that the provider of the information agrees. I suspect that is what this is about but, if it is not, some reassurance ought to be offered; however, if it is, it could probably be explained quite quickly.

[Lord Dodds of Duncairn (DUP)]

My Lords, I want to comment briefly on the amendments in this group. Before I do so, once again, I put on record our thanks to the Minister and his officials for their continued engagement with us on the matters under consideration in the Bill.

I also want to put on record—the noble Baroness, Lady Ritchie of Downpatrick, referred to this—the meeting that we held yesterday with the victims’ group SEFF. Many of its members travelled from Northern Ireland to speak with your Lordships and highlight their concerns about the Bill. It is right that we pay tribute to those victims and the efforts that they are making to try to get across their profound concerns about it. Again and again, they emphasised something that I want to emphasise. While we discuss these amendments and debate independence, appointments and all that, no matter what improvements we make to the Bill, it is—in their view, certainly in my view, and in our view—irredeemable in its terms and fundamental aspects as a piece of legislation. Whatever we do in relation to justice, victims and getting at the truth, it cannot be right to have at the heart of government policy and a piece of government legislation the idea of immunity from prosecution for those who have committed crimes in the United Kingdom.

I want to touch on Amendment 14 in the name of the Minister. It concerns appointing a commissioner who has international experience. Can the Minister develop his thinking in relation to the motivation behind this amendment? I know that this was raised in the other place but it has not really been explained why it is thought necessary that someone should have international experience. It should be relevant to the work of the commission, okay, but what does that mean? Does it mean that they have done some academic studies or spent a bit of time abroad? Does it mean that they have been part of an international organisation? If so, what is the effect of the singling out of a particular position for such a person in relation to other appointments in the commission where other people may be better qualified but lack that particular qualification? I just think it is superfluous, as has been mentioned. There was nothing in the draft legislation to prevent the appointment of such a person, if it was thought necessary, but to put it in the Bill seems puzzling and I would like the Minister to develop his thinking on that.

On Amendment 12 and the other amendments in the name of the noble Lord, Lord Browne, I am not entirely convinced by the arguments that have been put forward. We have to remember that the commission and the commissioners, as has been said, will have the power of a constable. They will play more than just a judicial or quasi-judicial role; they will also have investigatory powers, they will be carrying out reviews and so on, so it is much wider than just a judicial-type role. Fundamentally, it gives more accountability if a Secretary of State, accountable to Parliament, is responsible for this, rather than a judicial appointments commission, whose appointments we really cannot question. Given the role of the judicial appointments commission in Northern Ireland and the fact that, throughout all the period of the Troubles, it has been above party politics and has never been dragged into any real controversy, here we are putting it into a position where it will be responsible for making what will be controversial appointments that could be the object of some criticism, in terms of balance and so on. I am not sure that that is a healthy or sensible position in which to place it.

Fundamentally, we come back to the point that was emphasised and re-emphasised to me at our meeting last night with the victims: whether the commissioners are appointed by the Secretary of State or a judicial appointments committee or whoever, fundamentally, they do not have the confidence and will not have the confidence of the victims. Therefore, all this is very interesting and important—absolutely—but it does not actually deal with the real fundamental flaw at the heart of this legislation.

[Baroness Suttie (LD)]

My Lords, I start by agreeing with the noble Lord, Lord Dodds, in thanking the Minister for his general approach to the Bill. I think we all feel that, unlike so many Bills at the moment, this is a Bill where we have the opportunity to get the Minister to genuinely listen and change it. That is very much to be welcomed in this Chamber. I also agree with the comments of the noble Lord, Lord Dodds, that many of us think the Bill is fundamentally irredeemable, to use his word. It is irredeemable in the eyes of the victims and, therefore, however many amendments and proposals we put forward this afternoon and this evening, it is, for many, an utterly irredeemable Bill and we have to view it through that prism.

However, going back to the amendments in this group, I feel that the noble Lord, Lord Browne of Ladyton, set out very clearly in his probing amendments the concerns about the significant amount of power that is being granted to the Secretary of State for Northern Ireland in the Bill. I very much share his views and concerns about that. I will not repeat the many points he made, other than to say that these are views shared by the House of Lords Constitution and Delegated Powers Committees, which both felt that this was giving far too much power to the Secretary of State for Northern Ireland. As the noble Lord, Lord Browne, and the noble Baronesses, Lady O’Loan and Lady Ritchie, have also said, if we are going to proceed with the ICRIR, the new commission, it is vital not only that it is seen to be independent but that this independence is maintained and seen so that the trust of all the people concerned with it can be maintained. It is also incredibly important that the process for how people are appointed to the ICRIR is seen as genuinely independent and, as others have said, above party politics. I think this is an area we really need to return to and look at in more detail before Report.

I appreciate that Amendments 14 and 15, tabled by the Minister, are intended to ensure that there is greater flexibility in the ability to appoint the best people to these roles, but, even given these amendments, there remains very real concern about the amount of power being given to the Secretary of State. Like the noble Lord, Lord Dodds, I wonder whether the Minister could expand a little on Amendment 14 and the requirement to appoint one or more people with relevant experience outside the UK. I think this is generally to be welcomed as a means of ensuring that the best commissioners with the broadest relevant experience are appointed.

Given the complexities and the history involved, it is not always going to be the case that someone from outside Northern Ireland will automatically understand the Northern Ireland context. But, in the history of the peace process, external people have often played an extremely valuable role, and for that reason I cannot support the position taken by the noble Baroness, Lady Hoey, in Amendment 14A. It would, however, be useful to hear from the Minister what sort of people he has in mind—although obviously he cannot name them, because that would be inappropriate in terms of due process. I would also be interested to know if the phrase

“as far as it is practicable”

in his amendment is intended as a sort of get-out clause if no sufficiently qualified people put their name forward.

Finally—I gave earlier notice of this question—is this going to be a proactive process of recruitment, where the Secretary of State for Northern Ireland and others go out and try to find international experts, or will it be more of a sort of passive process? I would be interested to hear how the Minister views this being introduced in reality.

--- Later in debate ---

[Viscount Brookeborough (CB)]

My Lords, I would like to mention one factor which may be naïve and maybe I just cannot see it, but we appear to be talking about amnesty for individuals who have committed a heinous crime of some type. I wonder whether noble Lords understand what actually occurred in practical terms? This is from my own experience of living there and serving there.

Early on in the Troubles there were cowboy shoots. There were people who went out just to murder a person. But after a certain time, I would like to think that the security forces not only became better, but they also became much more numerous. There were patrols all over the place. How was it that these people—supposedly individuals, as we seem to be talking about—were not caught? I will tell you why: after several years of the Troubles, no one except a madman carried out an incident on his own. It was not one person; it was a group of people.

When they went into Derryard checkpoint and reversed a lorry in and used flamethrowers, there were about—I am not sure—six people involved. Forty people were involved in that incident in total, and they were accomplices to murder. On every occasion, there were other people involved. Sometimes there was a change of gunman at the last minute. Does that make the other person any less guilty?

What I am really coming to is this: what is the evidence the commission will ask for in order to give immunity to a person? What can he say without giving evidence on some of the other people involved? Is he expected to do that, and how would it work? What evidence does the commission require to say that it knows he is telling the truth? If the commission asks how many were involved and he says, “Nobody. I carried a Mark 5 mortar on my back, crawled down the road and blew up the police station”, which is patently rubbish because you cannot do that, what is the proof it will require? What is the threshold of admission? Does that admission include any other names? If so, what is going to happen to these other people? Can the commission take it any further? This is really getting down into the practical side of how on earth this will work.

We talk about reconciliation—the noble Lord, Lord Browne, mentioned it a minute ago—saying that the truth would lead to reconciliation. Rubbish. What on earth are we talking about? There are people there who have lost loved ones and their families, and friends, who are equally hurt. In our case, in Fermanagh—I am talking about victims of all types, but these are my examples—every single one of my soldiers who was killed was killed off duty. They were killed feeding calves in the backyard; delivering vegetables; visiting a wife who happened to be Catholic, on a housing estate which was more Catholic; driving a lorry; leaving home in the morning.

How did they kill them? It was not the next-door neighbours; it was somebody close. If he is going to tell the truth, he is also going to say that his accomplice was his next-door neighbour. Do you call that reconciliation? Let us be realistic about this. There is a big hole here. How can you give immunity to individuals when there were multiple people in every incident who are equally guilty? Sometimes more so, because the gunman could be somebody who is instructed just to do it and is told: “I will drive you there and we will make sure that there are no patrols”. They did it to such an extent that they might have laid it on five mornings previously, one after the other; but lo and behold, there was a patrol and somebody said: “Don’t do it. They are closer to you than they can be”. The gunman, although he may have pulled the trigger, may never have done it without 20 people behind him, without the planning, without everything else.

Maybe I am being naïve but I just do not know where we are going with this at all, and I agree with everybody else that it is going to create rubbish and as far as reconciliation goes, which I would like to see in my own area, it is further from completion than anything I have ever heard.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is an honour to follow the very powerful speech of the noble Viscount, Lord Brookeborough, who brings us back to the reality of the sordid terrorism, the violence and the campaign of the IRA—and other paramilitaries —during the period of the Troubles. It struck me very powerfully because just yesterday evening, Pam Morrison, who the noble Viscount will know well, as will others in this House, came to meet us as part of the delegation from SEFF, the victims group. In the space of six years from 1981, in the county of Fermanagh, she lost her three brothers to IRA terrorism—Jimmy, Cecil and Ronnie Graham. They were all slaughtered in the manner to which the noble Viscount referred: not on duty but going about their daily business. Pam also lost her sister, who was a Greenfinch in the UDR, as a result of the violence in Northern Ireland. This is the reality of what we are talking about. She was here at Westminster, along with others who have suffered terribly, basically to plead with lawmakers here to think of them, to bear in mind their loss and not to deprive them of hope, however difficult, as one of them said. They realise more than anyone the difficulty of getting justice, but to take away the hope of justice is a terrible thing.

I will deal with the amendments briefly because we have had a long debate, but this group of amendments on immunity is an important one; it goes to the heart of the Bill and it is right that we take time to examine it in detail. I just want to pick up on what the noble Lord, Lord Bew, said at the start of our debate on this group. He was absolutely right when he said about the concentration now by so many on this legislation that it is as if it is the first time there has been an attack on the equality of justice. We hear people in the United States complaining about this Bill. We hear people who have defended the IRA and raised money for it complaining about this Bill. We hear people in the Irish Republic who provided a safe haven over many years for terrorists and would not extradite them complaining about this Bill.

A number of examples have been listed, such as the letters of comfort to on-the-run terrorists, the royal pardons—we have never had a proper explanation of what crimes, and who, were covered by those—and, let us be frank, the 1998 agreement itself. To be fair, the noble Lord, Lord Hain, referenced the point about victims and that agreement, which released some of the most hardened criminals who had carried out some of the most obscene atrocities in Northern Ireland after only two years’ imprisonment. That was a grievous body blow to the victims, and many of us spoke out about it at the time. There has been a litany of issues affecting victims. I thank the noble Lord, Lord Bew, for making this point because it puts all this into context.

Having said all that, I want, if I can, to focus briefly and concisely on the amendments in this group in my name and those of my noble friends. The first is Amendment 149, which is

“intended to allow the offences for which immunity has been granted to be taken into account in sentencing for post-Troubles offences.”

That means offences committed after 10 April 1998. In my view, it is only right that, if a perpetrator or defendant committed a crime after that date and was convicted of that crime, a court of law should be able to take into account all previous convictions, including crimes for which they may have received immunity. Otherwise, we will have a perverse situation where post-Troubles crimes and sentencing are also affected by this legislation, which would be entirely wrong.

Amendment 114, also in my name and those of my noble friends, would

“require the Commissioner for Investigations to refer a file to the PPS when an individual is found to have provided false statements to the ICRIR in the course of its functions.”

I take the point made by the noble Baroness, Lady O’Loan, in relation to that. The Government have conceded that making a false statement should be an offence and that, if someone is found guilty of it, their immunity should be revoked. I very much welcome that limited progress, which my colleague, Gavin Robinson MP, spoke about and pushed an amendment on in the other place. I am glad that the Government have now come forward with something, albeit in a different form than we originally proposed, by creating an offence and then having a court revoke the immunity. However, in our view, Amendment 114 would tackle a deficiency in the Government’s drafting: the offence is established but it is not apparent who is to bring proceedings and where the burden falls. Although the Government are making provision to ensure that compelled material can be inadmissible in criminal proceedings, there is no provision to require the ICRIR to provide that material and evidence of false statements to the PPS. I just want to probe the Minister on that issue and see whether that gap can be rectified.

I very much welcome Amendment 130 in the names of the noble Baroness, Lady O’Loan, and others; indeed, we sought to table the same amendment. Again, there was a bit of a competition to get some of these amendments in, but it shows the level of cross-party support on many of these issues, in an effort to improve the Bill. If it can be improved, we should try to do that as part of the function of our House. Clause 21(4), which this amendment would remove, does need to be removed. It is wrong for the ICRIR not to be required to seek information from others in relation to someone who comes forward and gives their point of view on crimes they may have committed.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I too would like to thank the noble Baroness, Lady O’Loan, for tabling this amendment to the Motion to move into Committee. It provides us with the opportunity to once again ask the Government to consider very carefully how they wish to proceed, given the level of opposition that there is to this Bill, which has again been laid bare in the contributions that we have heard from those from Northern Ireland already this afternoon.

The Minister, about whose personal integrity I have no doubt whatever, is fronting for the Government on this issue, and he did give a commitment that the Government would take their time before proceeding, or would move very carefully and consider amendments —and some amendments have been forthcoming. But I would urge the Minister to think very carefully about what has been said already, and also what has been said over the previous months since the Bill was published.

We have been told repeatedly throughout the period of what is euphemistically called “the Troubles” that the victims should be at the centre of any process which is about legacy, truth recovery, justice and so on. It is very clear that victims have been treated abominably by this Bill and by this Government, and that is a terrible thing to have to say about a Government who are committed to the union—although their actions in recent times, both in the protocol and on this, would cause many unionists to doubt what exactly is now going on with the Conservative and Unionist Party. It is certainly not the case for all members of that party, and certainly not all parliamentarians, but at the centre there is something deeply and fundamentally wrong with how Northern Ireland is now being treated as part of this United Kingdom. This is one of the most egregious examples of where victims and their views are being set aside. There is universal opposition, yet this Government are intent on proceeding.

I appeal to the Government: listen to the victims. We heard the noble Baroness mention various organisations, institutions, foreign bodies, and all the rest of it, and I have respect for very many of them. However, I do make the point that some of these people now speaking out against this Bill supported, against the views of victims in Northern Ireland, the proposals to reduce the length of any sentence on conviction of the most heinous terrorist crimes, some of which we have heard about just now, to two years, and to allow those who have already served two years to walk free. Regardless of that, we should listen to the victims and, even now, pause, and urge the Government to withdraw and not move into Committee.

Victims have listened very carefully to the voices that have been raised in opposition to this Bill, and among the voices that have been raised are the voices of the victim-makers. We have the appalling situation where the representatives of terrorist organisations, who glorify and eulogise murder and the murderers—I am talking about Sinn Féin—have the audacity to come out and use this piece of legislation to bash the Government. Their support for victims is mock support: it is a pretence. Their agenda is completely different. They are pocketing the concession for their members, and those who carried out violence, then turning it to bash the Government.

So the Government cannot win on this. They are in the invidious position of doing something that has no support across the board. Therefore, I urge them to withdraw the Bill. They need to counter the twisted narrative of the Troubles that is out there, and to be more proactive in terms of the balance of the past. There is a widely shared view in Northern Ireland that there is an imbalanced process, where the story of the terrorists and their organisations is continually played out in the media. We have had some examples of that even this week—but where is the balance, with the countless thousands of families, their extended families and their communities and neighbours who were terrified daily by the threat of terrorists living among them, spying on them and betraying them at their work?

I do not advocate looking at Twitter too much, but I urge noble Lords to look at one that talks about “on this day” and an atrocity carried out by the IRA almost every day. It details the normal day-to-day activities of ordinary people going about their daily business—dropping their children at school, driving a bus, being in a bakery, carrying out a profession—who were murdered. They were cut down by terrorists who now claim that they have the right to talk about human rights and lecture everybody else about them. The Government are doing those people, their relatives and their kith and kin such a disservice. Therefore, I urge the Government and the Minister to think again at this stage.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, as a Member of this House coming from Northern Ireland, having represented a constituency in the other place, I—like others from Northern Ireland—have met many victims. The Troubles have imbued the lives of all of us from Northern Ireland because, in some way, we have been deeply affected, either by the deaths of loved ones or neighbours or by the destruction of property. All of that has left many victims searching for truth recovery and justice. The ordinary people I am talking about feel that the Bill robs them of their opportunity to access justice, investigations and inquests which they believe, quite rightly, is their right.

I agree that there should be a pause placed on the Bill and that the Government should go away and think again—and think in terms of the Stormont House agreement. We said this at Second Reading, but other things have happened since then. Other organisations in the human rights field have raised important considerations to be taken into account. The European Commissioner for Human Rights, the UN High Commissioner for Human Rights, the victims’ commissioner and the Northern Ireland Human Rights Commission, which has a statutory responsibility in all of these areas, have all highlighted the faults in the Bill and the fact that the very premise on which it is based—immunity from prosecution—goes against the very heart of what the UK democratic system should be about, and what we as Members of your Lordships’ House should be fighting for.

I can understand what the noble Baroness, Lady O’Loan, is talking about as a former Police Ombudsman for Northern Ireland, and what the noble and right reverend Lord, Lord Eames, said, as he was part of the Eames-Bradley commission which looked into this area in detail with a microscope. There is no doubt that the deaths, injuries and massacres have caused immense pain, whether to members of the security forces or to people on whatever avenue of any political perspective or whatever location they came from on the island of Ireland, as well as here in Britain. People suffered pain and anxiety and were deeply affected.

I believe that the fulfilment of rights and the rule of law must be central to the legacy process. That goes to the very heart of the Bill; immunity from prosecutions and the prevention of civil actions will not deal with what was already agreed in the Stormont House agreement and will not bring peace, justice and reconciliation. I firmly ask the Minister, who was involved with Stormont House and many other agreements to do with victims and legacy in Northern Ireland, to go back to the drawing board and the Stormont House agreement. The Bill, with the amendments, and particularly the government amendments that we will deal with later, is an exercise in denying justice. It will breach the European Convention on Human Rights and threaten the Good Friday agreement. It is bad for justice, for human rights and for the thousands of people who lost loved ones, who were injured during the Troubles, or whose property was destroyed, and who have very bad memories of what happened to them, their families, their communities and their colleagues.

--- Later in debate ---

Amendment 63 does not take into account the fact that, when one investigates some cases, one encounters evidence that is relevant to other cases. It would not be compliant with the law to prevent the ICRIR from investigating simply because the victim or their family have no compelling new evidence. We should not change the law to make the commission reject requests, as proposed by this amendment. I will conclude my remarks at this point.

[Lord Dodds of Duncairn (DUP)]

My Lords, I want to briefly comment on Amendment 52, which the noble Baroness raised, in relation to the five-year limit. When the Minister replies to this group of amendments, I hope he will respond to this point.

The Minister said in the previous debate that, if someone did not co-operate with an ICRIR investigation or review, a criminal route remains open—I think I am quoting him directly. But this amendment points to the fact that the Bill provides for a five-year limit: unless a case is brought to the commission within five years it cannot be brought, and the commission is the only body that can investigate Troubles-related crimes. Therefore, if somebody does not co-operate, after five years the body will continue to exist but it will not be able to take on or open any new investigations. How is it that a criminal route remains open, as there is no other body and the police will be prohibited from investigating? There is no other body that can do any investigations, so after five years, there is no criminal route open; it ends at that point. I would like an explanation as to what the Minister meant by his statement that a criminal route remains open if you do not co-operate. Under the Bill, after five years no further new investigations can be launched, nobody can make a complaint and there is nobody else who can do any investigations.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a deeply respectful debate. A number of issues have come to light, and it would be helpful if the Minister could respond to them. Some of the issues are quite complex. I am grateful particularly to the noble Baroness, Lady O’Loan, for the experience that she brings to this.

I turn first to Amendment 1, in the name of the noble Baroness, Lady Suttie. This definition is something that the victims’ commissioner has raised with a number of Members of your Lordships’ House. The phrase “serious physical or mental harm” is really key here. Many of us have met victims who have suffered harm that is not always immediately evident. We have to look at this again, because there is no power for the definitions to be amended. Given the Government’s fondness for Sis—not that I am recommending this route—there possibly needs to be some discretion for the commission. We discussed this briefly with the Minister, and he is rightly wary of having a list, which can never be exhaustive, but this has to be revisited and looked at again. Some discretion might possibly be the way forward.

On the amendment of my noble friend Lord Hain, I do not know whether the Minister is considering opening this up. Operation Denton is due to report in spring next year—I know that is an elastic term in government announcements. We will come to our amendment on this later in proceedings, but to have this investigation running for so long and for it then to be ended by the Bill would clearly be the wrong thing to do. It seems a sensible process, and one that started in 2020, and the point made by my noble friend Lord Hain is well made. I would like to hear the Minister’s response to that so I can understand the timing.

There is no commencement time in this Bill. It would be helpful to know when, if the Bill were to conclude all its stages and become law, the Minister envisages that it would start. That is important in this context.

My noble friend Lord Browne talked about transparency. That is clear-cut: if we are to have confidence in a process, it needs to have transparency. I think it might be a mistake in the Government’s drafting that someone could be compelled to attend but not compelled to give evidence. That seems to be a bit of a loophole, and I hope that the Minister can come back with something positive on that. did

I turn to the amendment of the noble Baroness, Lady Hoey. I can see the point that she is trying to address, which was repeated by the noble Lord, Lord Weir—that in repeated inquiries it is the people who shout the loudest who have more access to the various mechanisms in place—but it seems to me to be a very absolute point. If compelling new evidence was brought forward, in any circumstances and by anybody, surely there should be the option for the commission to consider that compelling new evidence.

Northern Ireland (Executive Formation etc) Bill

Lord Dodds of Duncairn Excerpts

2nd reading
Monday 5th December 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, it gives me enormous pleasure to follow my noble friend Lord Weir of Ballyholme. I congratulate him on his maiden speech. We are fortunate that he delivered his first speech in your Lordships’ House on the subject of the devolved institutions in Northern Ireland, given his service, as we have heard, over 24 years as a long-standing Member of the Legislative Assembly in Northern Ireland.

My noble friend and I have a number of things in common. He is also a barrister, having been called to the Bar of Northern Ireland in 1992, some years after me, I have to say—many years after me, in fact. He was a member of the Northern Ireland Forum, along with me, which was elected in 1996 and which led to the talks and the Belfast agreement. Like me, he was elected to the first Northern Ireland Assembly in 1998. The major difference was that, at that time, he was a member of the Ulster Unionist Party. However, in 2002 he made the wise, sensible and courageous decision to join the ranks of the Democratic Unionist Party. He has played an important role in our party from that moment.

Indeed, my noble friend led the way in many respects by being the first Ulster Unionist Assembly Member to make that seminal change. He would be followed into the DUP from the Ulster Unionists two years later by another distinguished Member of your Lordships’ House, the noble Baroness, Lady Foster of Aghadrumsee, and the current leader of our party in the other place, Sir Jeffrey Donaldson. I well remember my noble friend coming to see me in our offices in the City Hall at around the start of 2002 to discuss that switch, and it gives me great pleasure to sit beside him and to follow him in speaking today in your Lordships’ House. In the 20 years since that moment, he has served first as a Member of the Assembly for North Down up until 2017 and then latterly as a Member for Strangford. He was also a member of North Down Borough Council from 2005 to 2015 and, as he mentioned, he has served twice as Minister of Education.

Shortly after taking office in 2020, he, like other Ministers in the devolved Government, faced the enormous challenges of the Covid pandemic. It is right to put on record that he strove valiantly during that time to put the interests of children first, and to endeavour to keep our schools open, so far as possible, for the education of our children, something which most people now acknowledge and accept should have been of an even greater priority across the United Kingdom during the pandemic. During his time in office, he also set up an expert panel to produce a report, A Fair Start, on educational underachievement among the most disadvantaged in Northern Ireland. It has produced a very far-reaching and long-sighted plan identifying key actions to support children from birth and throughout their early years, up to and including the time they start school. This is one of the most important pieces of work in recent years commissioned by the Department of Education. It will make a real difference—as I know, speaking from experience of my constituency of Belfast North, which I had the honour to represent—if properly implemented and resourced.

We are blessed to have my noble friend in our presence, in terms of his future membership of this House. He has been a person of honour, integrity and ability in his political life, in the Assembly and, as increasingly rare attributes in politics, he has exemplified loyalty, dedication to his principles and service to his constituents and party. I, for one, am truly delighted to see him in your Lordships’ House. I think he will make, as we have seen today, a considerable contribution to your Lordships’ deliberations in the years to come.

I turn to the Bill before your Lordships. Like others, I welcome, reluctantly, its contents: it is necessary but unfortunate. Although I know we have been through a number of iterations of government in recent months, it is clearly the case that had Governments under different Prime Ministers moved with greater alacrity to deal with the protocol issue, we would not be in the position we are in today.

I well remember that after the European Union decided to invoke Article 16 in order to put a vaccines border on the island of Ireland, to prevent vaccines coming to Northern Ireland at the start of the Covid pandemic, the then Prime Minister undertook that there would be action to deal with the protocol by March. We were then told that there would be action by the beginning of the summer, and instead we got a Command Paper in 2021 that set out the Government’s position. It was a welcome paper, but clearly only a set of proposals. We were then told that there would be a short, intensive period of negotiations starting in early September 2021, which would last three or four weeks and then, if the talks were successful, great; if not, action would be taken. Again, that was extended to Christmas, we had the resignation of the noble Lord, Lord Frost, and then we were into another period of delay.

During this time, the leader of the Democratic Unionist Party warned that time was running out, because we could not have a situation where unionist Members of the legislative Assembly—all of whom, regardless of whether they are members of the DUP or other parties, are opposed to the protocol; they object to it and they voted against it—were required to implement that protocol. Despite the warnings and the passage of time, unfortunately nothing was done. That has led to the position that we now find ourselves in.

As other noble Lords have said already, we want to get devolution back and up and running as quickly as possible; that is the aim and objective of all sensitive people. But it cannot be sustainable if we continue with a position that sees the imposition of a protocol which trashes strand 3 of the Belfast agreement, as amended by the St Andrews agreement, and which also does great damage to strand 1 of that agreement. The fact of the matter is that not only are those strands impacted by the effects of the protocol but the principle of consent has been completely undermined. In the New Decade, New Approach document—which led to the restoration of the Assembly in January 2020—annexe A commits this Government to ensuring that Northern Ireland is a fully integral part of the UK internal market. So when we talk about the implementation of New Decade, New Approach commitments, we are still waiting for that to happen.

Although the protocol Bill has been introduced—it has had its Second Reading debate and Committee stage—we are still waiting for it to be progressed in the absence of any progress on the talks. I would be very interested in hearing from the Minister when he comes to wind up what the latest state of play is in relation to the talks, because, like others, I am concerned that we do not have very much time. This Bill institutes a six-week delay and then a further six weeks to the calling of an election, and that takes us to 19 January. It seems to me that there is going to have to be an enormous amount of heavy lifting in the negotiations and talks that have to take place between now and that date. There is no indication, as yet—though perhaps the Minister can indicate—of any change in the negotiation mandate of the European Union. There are aspects, even under the Government’s proposals in the July 2021 Command Paper, and in order to get to an agreement which will see devolution restored, that will require changes to the protocol itself. Therefore, it seems that time is very short indeed.

Although reference has been rightly made to concerns around giving civil servants powers such that are contained in this Bill—all of us regret seeing the situation where civil servants are put in that position—we have to remember that these are Northern Ireland civil servants. Even if the Assembly was restored overnight, under the current conditions it is not civil servants from Northern Ireland who would be making decisions; it would be civil servants in the Commission of the European Union proposing laws which apply to Northern Ireland. So when we talk about democratic deficit, concerns about the role of civil servants and unaccountability, it should be the concern of everyone—unionists, nationalists and non-aligned; anyone who is concerned about democracy, decision-making, accountability and transparency—that the powers over large swathes or our economy, agri-food, VAT, customs and so on should be made by people in Northern Ireland who are accountable to the electorate of Northern Ireland, or certainly accountable to someone in the United Kingdom at least. But that is not what we have at the present time.

We have the current court case that is going on in relation to the Acts of Union; judgment has been reserved in that, so I do not want to say a lot about it. However, the fact of the matter is that courts in Northern Ireland have ruled that there has been a breach of the Acts of Union as a result of the protocol—“subjugated” is the word that has been used.

For all these reasons, we find ourselves in a very difficult position, where it is unsustainable to imagine the operation of the institutions of the Belfast agreement, as amended by St Andrews, operating until the protocol is sorted out. As I have said, I look forward to hearing of progress on talks, but that seems to be some way off. The noble Baroness, Lady Ritchie, mentioned talks among parties in Northern Ireland. That is all very well, and I have no particular objection to that, but this issue is not going to be solved by talks among parties in Northern Ireland, unlike previous situations. This is going to be solved either by decisions made here in this House through legislation or by talks between the European Union and the United Kingdom. I am not against having input from Northern Ireland parties, but this is not going to be solved by them sitting down together, because they cannot effect the changes that are needed. That is just a fact of life.

My final point is about the discussion that has emerged over recent weeks and months on changing the agreement to overcome some of the difficulties we have in relation to the operation of the devolved institutions, the north-south bodies, the east-west bodies and so on, and the idea that we can sort this out—as some people crudely put it—by simply removing vetoes or, more precisely, by excluding some people. Northern Ireland operates today, and has for 50 years, on the basis of cross-community consensus for decision-making. There is no such thing as majority rule in Northern Ireland, and there has not been since the early 1970s. The Belfast and St Andrews agreements were both predicated upon a sufficient consensus of unionists and nationalists coming to an arrangement which could carry both communities. Talk of moving on and excluding the unionists is the road to disaster, just as in the period between 2003 and 2007—as has been referred to—when the Assembly was down because Sinn Féin/IRA robbed the Northern Bank and was still out murdering people in the streets and yet wanted to be in government. The Government then rightly said, “No, that can’t happen; you have to decommission your weapons”, and eventually a form of decommissioning did take place, and eventually it had to support the police. It is unimaginable that people would be in the Government of Northern Ireland without supporting the police and doing these things, but that is what we were expected to accept at that time.

I would be grateful if the Minister could confirm that, going forward, the principle of sufficient consensus—the requirement to have unionist and nationalist support—is absolutely essential both to the operation of institutions of governance in Northern Ireland and for any change there. Anything else would be a severe undermining of confidence and would do a great deal to set back any prospect of getting the devolved institutions restored.

We will obviously have a further opportunity to consider some more practical details when we come to Committee. The Minister looks surprised by that, but there may be some debate—who knows? I look forward to him responding to some of the issues I have raised so far.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Dodds of Duncairn Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I start by remembering the thousands of innocent victims of terrorism who died or were injured in the decades of the Troubles in Northern Ireland and elsewhere—ordinary people going about their everyday lives who were cut down by terrible violence—the families and loved ones left behind to grieve and the survivors left with life-changing injuries. We should not forget the heroic efforts and sacrifice, as have been mentioned, of the tens of thousands of people in the security forces without whom many more innocent people would have died at the hands of terrorists. Hundreds of police officers and soldiers laid down their lives in serving the cause of peace and security.

Just recently the Sinn Féin vice-president Michelle O’Neill, in remarks that have sickened victims and all right-thinking people, stated that there had been no alternative to all this wanton carnage and bloodshed. Terrorism was never justified. There was always an alternative to murder and the destruction of the livelihoods, hopes and dreams of generations of people in Northern Ireland, no matter who they were or what background they came from.

One would think that in speaking of victims today there would be at least a degree of reflection or self-examination on the part of those who spoke for terrorists during the Troubles and who now apologise for them even 25 years later, but no. Virtually every day we are subjected to the glorification of violence and the eulogising of terrorist murderers by leading Sinn Féin figures. This is happening in 2022, 25 years after the Belfast agreement, not in 1972. Fifty years on and still the innocent victims are being traumatised.

There are many valid criticisms that can be made of this deeply flawed Bill. Many of the innocent victims of terrorism whom I have spoken about feel deeply aggrieved, and understandably so, but their anguish is compounded by the sight of these apologists for terrorism pretending to defend victims’ rights in their attacks on the Bill. The victim-makers who slaughtered thousands of people over 30 years are busy whitewashing their own crimes, selectively singling out certain crimes for condemnation while celebrating their own violence. They have actively encouraged the now toxic atmosphere where many nationalists feel it is okay to chant “Up the Ra”, even in the face of IRA victims. These people do not speak for victims.

The criticism of the legislation which we have heard here today and from outside the House is widespread. This is not the first piece of legislation which has done victims a grave injustice. They have already had to endure seeing people who were convicted of some of the most brutal and heinous crimes given early release after serving only two years in jail. That was and remains a terrible injustice for many victims. It was, of course, opposed by some of us at the time but many in the other place and in your Lordships’ House who now vehemently oppose this piece of legislation vigorously backed that injustice. In my view, many of those people who were released after two years literally got away with murder.

A previous Government secretly handed out letters of comfort to IRA terrorists on the run. It is estimated that about 300 such letters were given out. One was famously used by John Downey to escape prosecution. There would be no harm if this Bill included a provision that these letters could not be used to evade future prosecution. We are assured that this is the case, but a specific provision to make it absolutely clear and certain would be helpful to victims. Some 365 royal pardons have been handed out over the years to people convicted of terrorist-related offences. It would be good to know exactly who received these letters of comfort and the royal pardons. In his reply, maybe the Minister can agree to furnish us with all the details. The 2006 definition of a victim is widely felt by innocent victims to be defective in including the perpetrators of violence. A move to bring forward a proper, up-to-date definition would be helpful to victims.

We have heard the concerns of the Irish Government about the Bill. For decades, they allowed their territory to be a safe haven for IRA terrorists who crossed the border. If there had only been the same desire over the years to put victims first and at the centre of our concerns, both here and in the Irish Republic, perhaps we would not find ourselves in this place, facing this piece of legislation. The cause of justice should never be sacrificed on the altar of expediency. No matter how difficult or challenging the situation, people should have the right to expect that, if there is evidence, all possible avenues of investigation will be explored.

I fully accept the argument about the current one-sided nature of the approach to legacy. People are tired of it. Soldiers and police are being harried and harassed into court. It is coupled with an industrial-scale propaganda effort to besmirch and denigrate the Army, the UDR, the RUC and the PSNI. We have had large, costly inquiries into Bloody Sunday and many others against the state. There has been no inquiry into the Enniskillen and Teebane atrocities, La Mon or Narrow Water or into the role of leading republican politicians in terrorist acts.

The approach taken by this Bill is wrong and an affront to justice. It would extinguish the flame of justice for countless families. It would draw a moral equivalence between terrorists intent on bloodshed and those who served our communities with dedication and professionalism. The way to address legitimate concerns about vexatious investigations against veterans who served in Northern Ireland is not simply to impose a wholesale restriction on historical investigations or prosecutions. It is to restore balance, ensure that investigative activity is proportionate and bring an end to the growing culture of politically motivated actions against those who served in uniform. Closing down routes to justice arbitrarily would not be tolerated for hate crimes or gang crimes in Great Britain. As the noble and learned Lord, Lord Judge, said, it has not been tolerated in relation to war criminals. It should not be deemed acceptable in relation to victims of terrorism in Northern Ireland and across the rest of the United Kingdom.

As we consider this legislation going forward in your Lordships’ House, changes need to be made to tackle some of the worst excesses of the Bill. It has to be said that even if accepted, those changes will fall short of making its overriding aims justifiable or honourable.

I welcome what the Minister has said today about his willingness to be open to considering some changes, and about there being no incentive in the Bill as drafted for perpetrators to come forward or any material consequences for their failing to engage. In fact, the Bill incentivises not engaging. Under the current arrangements, people can be convicted and serve two years, but under the Bill, if a person stays quiet and does not co-operate, under Schedule 11 there will be no possibility or prospect of any kind of prison, whether they engage in the process, seek immunity, tell the truth or do nothing. I welcome what the Minister said about looking at that again, and I look forward to examining the detail.

We need to look at the issue of people who have evaded prosecution in this jurisdiction and fled elsewhere. For them to be eligible for immunity under the framework of the Bill is perverse. It would encourage offenders to return to Northern Ireland to live out their final days, in close proximity to those they terrorised, because there is no stipulation that anyone previously subject to a warrant, arrest or charge and who subsequently fled Northern Ireland would be prohibited from claiming immunity.

There are a significant number of active PPS files under threat from the sunset clause on criminal enforcement proposed by the Bill. This has undermined previous decisions by the Government to establish far-reaching investigations into Troubles-related activity, including Operation Kenova. Those files need to be processed and should be allowed to take their course.

There needs to be something to deal with the glorification of terrorism. As I mentioned earlier, right across the entire community in Northern Ireland people are tired of and sickened by the continuing glorification of violence by Sinn Féin. I know that the victims’ commissioner has raised this with the Government and pointed out the great hurt felt by many who served in the security forces, and by innocent victims. There needs to be something that deals with this open and public display of glorification, the commemoration of murder, in Northern Ireland in the 21st century. To expect people to continue to put up with this, given that we are now almost 25 years on from the Belfast agreement, is something the Government have to address. I welcome what the Minister said about a mechanism for revoking immunity where individuals are proven later to have lied or not co-operated properly with the commission.

There are many issues here, and I am sure that we will go into many more of them in detail in Committee—the definition of a Troubles-related offence, the investigation review and so on. However, the fundamental point is that innocent victims must continue to have hope and the prospect of justice. That is all they seek, and it would be wrong for this House, and Parliament, to take that away from them.

Northern Ireland Protocol Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Suttie (LD)]

I thank the noble Lord for that clarification. However, probably lots of people out there would regard statutory instruments and secondary legislation, and such phrases, as sounding rather technical—but the point that my noble friend was making is that they are important. If we get the laws wrong, they will directly impact on the people of Northern Ireland, who have gone through a difficult situation since the passing of Brexit.

The effect of Amendment 25 would be to safeguard Article 18 of the protocol and allow the democratically elected Northern Ireland Assembly to have its say. I think the noble Lord, Lord Caine, is going to respond, as he is sitting in the middle of the three noble Lords. I would be very interested to hear, for the record, whether he considers that there are circumstances under which he could imagine using the powers granted under Clause 15(2) of this Bill to remove Article 18 of the protocol and remove the right of the Assembly to have that vote in 2024. If that possibility exists, can he imagine that it would ever actually be used?

On a second issue, in an article in June this year, Tony Connelly of RTÉ raised an interesting question about which version of the protocol would be voted on in 2024 by MLAs. Would it be the original EU version of the protocol, or the version as amended by this Bill, if it were to be passed and enacted? It is an interesting question, and I would like to know the Minister’s view on it. Tony Connelly says that those parties that want the protocol to stay

“will have a very strong case to say in 2024 they are being denied a democratic vote that has been mandated by international law.”

[Lord Dodds of Duncairn (DUP)]

I shall just intervene briefly in this interesting debate on the amendment proposed by the noble Baroness, Lady Ritchie. Just to follow on on what the noble Baroness, Lady Suttie, has said about which form of the protocol will be voted on, I do not mean this in a trite or trivial way, but I suspect that, if it were the original form of the protocol, it is unlikely that there would be a meeting of the Assembly to vote on it. That is just the reality. As the noble Lord, Lord Bew, said, it brings us back time and again to the fundamental reasons why this Bill is before your Lordships’ House.

I listened to the noble Baroness, Lady Ritchie, say that the protocol is not subject to cross-community consent because it is a reserved matter and does not fall within the purview of the devolved institution. There are a couple of answers to that; the first one is that the idea that we can dismiss the issue of unionist dissent from the protocol on that technical ground is complete political nonsense. It just will not work. We are in a dire situation politically in Northern Ireland, and to use a technical argument is not going to persuade anyone; it is not a good argument to use.

On the actual position, if we believe that the protocol is a reserved matter, then the decision is for this House and this Parliament. However, the Government, by agreement with the EU, decided that there should be some kind of consent mechanism and a vote in the Northern Ireland Assembly. Then they decided to change the rules of the Belfast agreement and the consent mechanisms within strand 1, the Assembly, having given the decision to that Assembly, by taking away the cross-community element of the vote and saying that it had to be by a majority vote. I have said this before: this is the only single major issue in Northern Ireland that can be decided by a majority vote. Everything else is subject to either cross-community agreement or susceptible to being turned into a cross-community vote by a petition of concern. Why did that happen? In order to prevent unionist dissent from derailing the protocol.

When the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 were debated in Grand Committee on 1 December 2020—the statutory instrument brought in to implement Article 18—the noble Lord, Lord Empey, and the late Lord Trimble were both present and indicated their strong concerns, as architects of the original Belfast agreement, about how this drove a coach and horses through the consent principle of the Belfast agreement. People in Northern Ireland are mystified, continually, by people who stand up and say, “We are protecting the Belfast agreement; this is all about protecting the Belfast agreement”, and then they want to change the rules of the Belfast agreement when it does not suit them. They cannot have it both ways.

The fact is that Article 18 of the protocol is a vote four years after the event, four years after Northern Ireland is brought under the auspices of the protocol, four years after there has been dynamic alignment with EU law and four years after gradual separation between regulations and laws in Great Britain and the rest of the United Kingdom, in Northern Ireland. We will have had four years during which trade continues to diversify and so on, where laws are being made with no say, and then the Northern Ireland Assembly is to be given a vote, but not on a cross-community basis. No one says, “Are unionists happy? Are nationalists happy? Is there an overall majority?”, which is what the cross-community voting mechanism is. No, it is to be a straight majority vote.

All this is obvious to unionists in Northern Ireland. This is why we have the problems we do. Anyone who tries to pretend, without addressing these matters, without fixing these problems, that we are going to get anywhere is living in cloud-cuckoo-land. We are not going to get devolution restored, because unionists—not just the DUP—will not accept it. I respect greatly what the noble Lord, Lord Purvis, has said on the issue of delegated legislation and Henry VIII clauses. I understand all that and the noble Lord, Lord Bew, made that point. He talks about this draconian power to rip up Acts of Parliament and all the rest of it, but the protocol itself allows, in 300 areas, for EU law to rip up statute. It also provides for the addition of annexes to new EU legislation within the scope of the protocol, in addition to the 300 areas where we dynamically align. That can rip up Acts of Parliament.

So, I accept the problems that have been highlighted by some about giving Ministers sweeping powers, but we have to fix the problems that are there. We have to do it, acknowledging that if we do not, there is real damage being done to the Belfast agreement, as amended by the St Andrews agreement. That should be the priority. Articles 1 and 2 of the protocol make it clear that the Belfast agreement, as amended, is the key overriding objective. If people believe in that, then they should be prepared to consider carefully what we are saying, and they should therefore accept the rules of consent within the Northern Ireland Assembly itself. I look to the noble Baroness, Lady Ritchie, to uphold this. It is ironic, given the changes that were made by St Andrews, that somehow there is now a drawing away from that consent principle.

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[Lord Dodds of Duncairn (DUP)]

With respect, I will answer the noble Lord’s question first. We had a UK-wide referendum. Northern Ireland is part of the United Kingdom, as provided for under the Belfast agreement. The United Kingdom is the sovereign Government. Therefore, it is not that Northern Ireland is some kind of hybrid or special joint condominium with the Irish Republic, and it can go its own way if the rest of the United Kingdom is doing something else. It was a UK-wide referendum and, just as in Scotland, where people voted a different way, so in Northern Ireland—but we had to respect the outcome of the UK referendum.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the noble Lord, Lord Dodds, for giving way. Further to the point made by the noble Lord, Lord Hannay, would the noble Lord, Lord Dodds, accept that around 56% of the people of Northern Ireland voted to remain within the EU, and we did not give our consent to Brexit. While it may have been a UK vote, and the noble Lord and I will remember well the debates in the other place on this specific matter in terms of the post-referendum Bill and the arrangements thereof, would he accept that the 56% who voted to remain did not give their consent to Brexit and to leaving the European Union?

[Lord Dodds of Duncairn (DUP)]

The 44% who voted to come out was a much higher figure than people had expected—but I accept what the noble Baroness says. But we are part of the United Kingdom and, just as Scotland and London and other parts of England voted in a certain way, we had to respect the overall vote. And if every single person in Northern Ireland had voted to remain—never forget—there would still have been a majority for Brexit and Northern Ireland would still have left the European Union, because we are part of the United Kingdom. The Belfast agreement did not create a hybrid situation in Northern Ireland. The sovereign UK Government are the responsible Government. We are United Kingdom citizens. Special arrangements were made for governance, but not for sovereignty, and that needs always to be borne in mind by those who try to conflate the two things. I think I have said enough on the specific detail.

[Lord Purvis of Tweed (LD)]

Before the noble Lord sits down, I am grateful. I understand his arguments. It is not a question with regards to the result of the referendum. My question is in the context of having scrutinised many trade agreements and treaties, and the deficiencies in the CRaG process. I agree with the noble Lord that there are challenges when it comes to agreements made by the Executive under their prerogative power to negotiate, and then what ability do we have, even quasi-representatives in an unelected Chamber such as this, to raise issues? I get that entirely. But, if the Government secure agreement as a result of these talks, has the noble Lord given any thought to the mechanism for seeking consent for what the Government bring forward?

[Lord Dodds of Duncairn (DUP)]

Well, there are a lot of “ifs” there. If I understand the noble Lord, he is asking, “If there’s an agreement, what should the Government do in terms of getting an endorsement of it?” I presume they would come to both Houses of Parliament and consult with the parties in Northern Ireland. As we learned from the original Brexit negotiations, the Government would be very wise to consult with the parties in Northern Ireland before any final arrangements are entered into.

I have a lot of sympathy with the view expressed by the noble Lord, Lord Hannay, that there is a lot of secrecy around the negotiations. Nobody is quite sure what is going on—technical talks, negotiations or whatever. However, I remember living through one particular week when the UK Government went off to Brussels and then came back again because they had not consulted properly. I would not like to see that happen again, because the whole objective here is to ensure that we can get arrangements which allow the devolved Government to get up and running again, with the support of nationalists and of unionists. So, before we came to any formal vote, I suspect that there would need to be quite considerable discussions and consultations with the parties in Northern Ireland.

[Baroness Chapman of Darlington (Lab)]

I would expect that, too, and I think it is regrettable that we have got to where we are. I was one of those people in the other place who very regularly got up and asked Ministers about Northern Ireland and what the plan was, because there were obviously going to be these issues. There were other solutions; we could have had a customs union or some kind of single market arrangement that would have maybe dealt with this in a slightly different way. I remember talking to one of the noble Lord’s colleagues who said, “Well, we don’t mind what it is as long as we’re all treated the same within the United Kingdom”. Ministers cannot be surprised that we are still having these discussions now.

I want to talk a little bit about this issue of cross-community consent; I am just reflecting on the speech made by my noble friend Lady Ritchie on Monday. It seems clear that the intention of Ministers is to protect the Article 2 rights of individuals, the Article 3 common travel area and the north-south co-operation in Article 11. We have debated the protection of the rights of individuals before, but what we really need is some sort of assurance from the Government that those intentions are reflected throughout the Bill in a consistent and watertight way. So can the Minister confirm that there is no prohibition on the overriding of Article 18 of the protocol, which deals with cross-community consent? We have rightly heard a great deal about this issue, and I would like the Minister to address it to make sure that I have understood it correctly.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, we will build up a fair canter with the next couple of groups because their principles are similar.

Part of the thrust of the argument is that we should be considering how we approach a new regime regarding Northern Ireland as we would for all other parts of the UK. The amendments in this group would do exactly that. They would adopt commitments provided by the Government in other legislation for the implementation of other agreements, including trade agreements, the operation of the single market and consideration of how that market will operate.

For example, Amendment 31 seeks that when the Government wish to operate the framework, they do so informed by the statutory bodies that Parliament has placed in legislation that would operate for all other parts of the UK single market. They should therefore, similarly, consult the Trade and Agriculture Commission, a statutory body tasked with looking at what Governments propose for the operation across the whole United Kingdom, and the Competition and Markets Authority, in relation to the operation of the UK internal market.

These have not been considered burdensome or lacking in timeliness, since these are all provisions in other pieces of legislation. If the thrust of the argument is that there should be consistency in operation for these, surely the Government would want to put in place the consultation of the statutory bodies to inform and advise, on the same statutory basis as in the other pieces of legislation. These amendments should not be too troublesome for the Minister to accept. I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, as the noble Lord, Lord Purvis, said, I hope we are speeding up a little. I will speak very briefly to Amendments 27 and 28 in this group, in his name and that of the noble Baroness, Lady Ludford.

In relation to consultation with various organisations —not statutory bodies—such as the chamber of commerce, the CBI, the Federation of Small Businesses, Trade NI, and, as mentioned in Amendment 28, the UFU, Food NI and the Northern Ireland Food and Drink Association, I wonder why those ones were chosen. If you are a member of Hospitality Ulster, you might be feeling a bit left out. If we are putting this in statute, why are certain groups put into statute and others left out?

Also, picking up on concerns raised earlier—I listened very carefully—proposed new subsection (3A)(e) talks about

“any other persons whom the Minister considers appropriate as representatives of business, trade and economic interests”.

The Government could be consulting for a very long time. Is the noble Lord not concerned that that could give a very open-ended power to the Minister, and would maybe provide him with too much discretion? I am very concerned about anything given to Ministers that allows them an open-ended process. Surely that would be of concern. I agree with the necessity of consultation with bodies such as this, and statutory bodies and so on, but I do not think it is necessary to put it in statute.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I have a 25-minute speech on VAT and tax, but I might just summarise it for the benefit of the Committee. Again, the Delegated Powers and Regulatory Reform Committee has highlighted an inappropriately wide delegation of power. Here, it is on what would genuinely be an extremely controversial and sensitive issue of tax powers, excise and tax policy. The Government have said it is “not possible” to make such provisions in the Bill. I am just testing why it is not possible to state what a framework would be for provision of taxes, VAT and excise duties.

Everywhere else, what the framework would be is in the Bill—and for good reason. People need to know what the tax powers are and who holds them, and of course it is of controversy that the protocol has these linked elements. So I am simply seeking for the Government to fill in the gaps, state in clear terms why it is not possible and give a bit more information about what they consider to be their proposed framework when they move away from the protocol in these areas. This is the first attempt to get some more information from the Government—because the memorandum was not clear—in order for us to consider it, review it and perhaps return to this issue.

I would be happy for the Minister to write to me on my final point, rather than answer at this stage, because it is genuinely a probing question. Noble Lords may well recall that there had been successful attempts to amend the cross-border trade Act in Section 54, which is the prohibition on the collection of certain taxes or duties on behalf of country or territory without reciprocity. That includes in Section 54(2) that it shall be unlawful for HMRC to account for any duty or customs or VAT or excise duty collected by HMRC to the Government of the country outside the United Kingdom unless reciprocal.

The Government seem to be proposing a breach of Section 54, because the regime that they seem to be proposing is that we would be accounting to the European Union for taxes which we have set ourselves. I am happy to be contradicted about that and similarly happy if the Minister wishes to write on that point. I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, I rise to speak to Amendment 35A in my name on VAT and excise. I do not wish to prolong the debate at this hour. Very briefly, noble Lords will remember back in March when the then Chancellor Rishi Sunak announced measures in the fiscal event—mini-budget, estimate, whatever it was—that there was a zero VAT cut for households installing energy-efficiency measures, which would apply throughout Great Britain, but not to installation in homes in Northern Ireland of materials such as solar panels, insulation or heat pumps.

Consumers in Northern Ireland could not benefit from that VAT cut because of the protocol. Something that was warmly welcomed across the rest of the United Kingdom provoked concern and outrage across the communities in Northern Ireland. Mr Sunak announced that there would be extra money provided by way of Barnett consequentials to make up for it, but, as people with experience of the operation of the Executive know, sometimes the direct tax cut is the most effective and efficient way of getting these things done.

I have tabled this amendment to explore and seek the Government’s reasoning on their approach to the VAT issue. They have not gone down the route that they have in relation to state aid in Clause 12 of excluding Article 10 and annexes 5 and 6 of the protocol. They have not decided to exclude the relevant article of the protocol which applies the VAT rules. Instead, they have adopted the approach of saying there are large areas where we simply disapply that article and we can make provision by regulations in relation to the VAT excise duties and other taxes.

It is more akin to the situation that we find ourselves in with the protocol itself in relation to customs: Northern Ireland is nominally within the UK customs regime, but all the rules of the EU apply. What is the impact of the Government taking this approach in relation to VAT? Why are they not taking the same kind of approach to VAT as they have to state aid? What are the implications? It says clearly in the subsections what steps can be taken in relation to differences in VAT and making sure that the situation that we saw in March may not arise in the future, but what are the implications of not taking out the relevant article in the protocol completely?

[Baroness Chapman of Darlington (Lab)]

I was wondering pretty much the same thing. This is a slightly odd clause, because it says a lot but actually leaves the door open to not doing anything at all. It gives Ministers the right to change

“any other tax (including imposing or varying the incidence of any tax), which they consider appropriate”.

That is fine, but they might not consider anything appropriate and might not do anything.

Subsection (2) says:

“The regulations may, in particular, make any provision”


to bring closer together, or reduce differences between, various taxes in Northern Ireland and Great Britain. I am sure that that is how the Government want to signal their intention, but the Bill does not do that—it leaves it open to Ministers to do nothing at all, or even to create greater variance in the situation. So I was curious about why the Bill says that, rather than saying, “We will make the situation in Northern Ireland the same as it is in the rest of the UK, notwithstanding the various revenue-raising powers that there are in devolved Administrations.”

Northern Ireland Protocol Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I want to bring the focus back to Article 2. The noble Lord, Lord Bew, said that this Bill is modest but the problem is that the law of unintended consequences could come into play here.

My noble friend Lord Purvis of Tweed coined the phrase “Rumsfeld clauses”. I do not want to detract from his trademark on that phrase—he will kill me—but, as concerns Article 2, the Bill shows some evidence of having been written on the back of an envelope. Concerns about human rights and equality have been at the heart of the conflict in Northern Ireland, so those concerns were central to the Good Friday agreement.

Thus Article 2 of the protocol, ensuring a non-diminution of the wide range of rights set out in the Good Friday agreement, is a key clause. However, there are worrying implications of the Bill for human rights and equality protections, which are in danger of being overlooked. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland point out that the Explanatory Notes to the Bill make no reference to any consideration having been given to compliance with Article 2 of the protocol. Those two commissions have previously recommended that this should be the case regarding all relevant legislation. I understand that the Leader of the House of Commons, the right honourable Penny Mordaunt, is talking about draft guidance to Bill teams on this matter. This is in response to concerns that have been raised for quite a few months now by various committees, such as the Northern Ireland Affairs Committee and Women and Equalities Committee in the other place, the Joint Committee on Human Rights, on which I have the pleasure to sit, and our own Northern Ireland Protocol Sub-Committee. They have all raised concerns about compliance with Article 2 of the protocol.

The Government gave assurances about their commitment to Article 2, and it is true that this article gets a degree of protection under the Bill; for instance, that Clause 15 does not permit Ministers to make regulations defining Article 2 among “excluded provisions”. However, even Clause 15 needs completion, as the noble Baroness, Lady Ritchie, pointed out. The logic of protection of Article 2 is far from fully reflected in other clauses of the Bill. Hence these amendments—and I support all those tabled by the noble Baroness, Lady Ritchie, not just the two I have co-signed—propose a strengthening of Clauses 9, 10, 13 to 15 and 20.

This Government do not like the European Court of Justice, but its role is essential at various points in relation to Article 2. That article includes a commitment to keep pace with EU laws, as the noble Baroness pointed out, with EU law developments falling within the scope of the six equality directives listed in Annexe 1 to the protocol. As these directives are updated or replaced under the normal process of EU legislation, the UK Government are committed to ensuring that domestic legislation in Northern Ireland reflects any substantive enhancements in relevant protections. There are also other relevant EU laws beyond the six equality directives that underpin rights in the Good Friday agreement, such as the victims’ directive, the parental leave directive, and the pregnant workers’ directive.

The Government are committed to ensuring that there will be no diminution of protections as contained in relevant EU law on 31 December 2020. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have acquired additional powers to oversee the Government’s commitment under Article 2. However, it is essential that Clause 20, which removes the binding nature of judgments of the European Court of Justice, is amended to ensure that the dynamic alignments—the keeping pace—guaranteed under the protocol for citizens’ rights in Northern Ireland can be delivered. The same applies to Clause 13.

The UK-EU joint committee supervises the implementation of the withdrawal agreement, but where there is a dispute regarding the interpretation of EU law which the joint committee or the arbitration panel cannot resolve, then under Article 174 of the withdrawal agreement, the ECJ must be asked to give a binding interpretation. This needs to be recognised and incorporated in Clause 13.

I mentioned Clause 15. The remaining problem there is that it does not prevent Article 14(c) of the protocol, which provides for the UK-EU specialised committee to consider matters brought to its attention by the two commissions in Northern Ireland—human rights and equalities—from becoming excluded provision by sort of oversight. The same applies to the lack of protection of the protocol’s Article 15, which provides for a joint consultative working group on the effective operation of Article 2.

The other amendments in this group raise similar and related issues. For reasons of time, I will not dwell on them. I am sure that noble Lords get the drift. One is left to conclude that there was either a lack of thorough preparation on the Bill—hence my quip about the back of an envelope—or a disturbingly cavalier disregard for Article 2 of the protocol. I am not sure which is worse. Neither is excusable, but I hope the Minister can tell me that the Government will take away especially all those excellent, very dense and precise questions raised by the noble Baroness, Lady Ritchie. Quite honestly, what is in the Bill at the moment is not remotely satisfactory to honour and safeguard Article 2 of the protocol.

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

“The United Kingdom shall ensure no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.

[Lord Purvis of Tweed (LD)]

My Lords, I want to rise very briefly in support of these amendments and also to say that my noble friend Lady Ludford made an extremely clear and very good case. I just want to add three very brief points.

The first is that I refer the noble Lord, Lord Dodds, to Hansard in 2019 and my contributions, among others from these Benches. We debated these issues and highlighted them, and he knows that. I am sure this evening it is just rhetoric in our Committee. He knows we have raised the concerns that he just outlined now. They are why we opposed it. So I do not think he can present that fact towards these Benches.

The second is that in my view Article 2 of the protocol should not be seen in a static form. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights … results from its withdrawal from the Union”.


This is a permanent agreement, a permanent commitment, and therefore it cannot be seen that those that were in place in 2019 are now kept in aspic. So my noble friend is absolutely right that if you are taking away what is case law and when those rights and freedoms protected by Annexe 1 powers are adapted, unless they are dynamic, there is a diminution of those rights, by definition. The Bill proposes retaining them in aspic. The noble Baroness, Lady Ritchie, is absolutely right to highlight the fact that those Article 2 rights need to continue to be dynamic.

I know the hour is late, but I want to remind the noble Lord, Lord Bew, and others of Northern Ireland Protocol Bill: UK Government Legal Position, which is the founding basis upon which this Bill has been brought for our consideration. The final sentence of the penultimate paragraph is:

“The UK urges EU Member States to provide a new negotiating mandate to the Commission, wide enough to change the terms of the Protocol to respond to the full range of issues addressed by this legislation.”


So far, I have not heard a squeak from any Minister saying that the position of the Government is still that there should be a new negotiating mandate from the Commission to EU member states. I have not heard that; I am willing to be intervened on, or, if not, I want to hear from the Minister whether that is still the position. That was the legal position of the Government: that they are seeking a new negotiating mandate from the Commission. It is there in black and white, but I have not heard whether that remains the same. When it comes to putting faith in the negotiations, what is the basis of these negotiations if the Government’s legal position is that there has to be a new mandate and that is not forthcoming?