Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020

Viscount Younger of Leckie Excerpts

Tuesday 1st December 2020 Grand Committee

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[Viscount Younger of Leckie]

That the Grand Committee do consider the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.

Relevant document: 34th Report from the Secondary Legislation Scrutiny Committee

[Viscount Younger of Leckie (Con)]

My Lords, these regulations have a straightforward aim: to reflect in domestic law the consent mechanism set out in Article 18 of the Ireland/Northern Ireland protocol and the UK Government’s unilateral declaration of 17 October 2019. The protocol itself is an annexe to the withdrawal agreement and was developed with the intent of protecting the Belfast/Good Friday agreement. That intent was at the heart of our negotiations with the EU last year and is reflected here in the consent mechanism. It is something we will always uphold.

These regulations provide for the locally elected politicians of Northern Ireland to decide whether Northern Ireland remains aligned with certain aspects of EU law set out in Articles 5 to 10 of the protocol. These articles cover customs, the UK internal market, technical regulations of goods, VAT and excise, the single electricity market and state aid. The unilateral declaration published by the Government concerning the operation of the consent mechanism provides further detail on the obligation described within the protocol. These regulations implement that consent process by providing for a vote in the Assembly as to whether to continue this alignment. These commitments have been set out and committed to in international law, and now it is for us to bring them into domestic law with this instrument.

It will perhaps help to begin with the fundamentals. The Belfast/Good Friday agreement was ratified by referenda in both Northern Ireland and Ireland and is built on the principle of consent. In the protocol, the necessity of consent is recognised in the provision for Northern Ireland’s alignment with certain aspects of EU law to be disapplied if Northern Ireland’s political representatives decide that it is no longer what is wanted. Be in no doubt that reflecting this principle of democratic consent in the protocol was intrinsic to its acceptance by the Government. As noble Lords will know, the protocol was designed as a practical solution to avoiding a hard border on the island of Ireland while ensuring that the UK, including Northern Ireland, could leave the EU as a whole. The protocol necessarily included, therefore, a number of special provisions which apply only in Northern Ireland for as long as the protocol is in force. That is why it is for the elected representatives in Northern Ireland to decide what happens to the protocol alignment provisions in a consent vote that can take place every four years, with the first vote taking place in 2024. Only elections to the Northern Ireland Assembly and its Members’ votes will decide the outcome.

I will now turn to the detail of the process. These regulations implement both a default consent process and an alternative consent process. The default process will apply if a First Minister and Deputy First Minister are in office on the day the Secretary of State issues the notification to begin the process. In 2024 that will be on 31 October. Under that default process, the First Minister and Deputy First Minister have one month during which they can, acting jointly, table a consent resolution. This is our central scenario: that the Executive will be functioning normally in 2024 and the First Minister and Deputy First Minister will jointly table the Motion, which will be debated in the normal way in the Assembly. Everything else that follows in these highly technical regulations is designed to cater for increasingly unlikely scenarios, but they are reflected here in the regulations to ensure that a consent decision can always be reached.

In that vein, if, before 1 December, the First Minister and Deputy First Minister have not tabled a Motion for a consent resolution, any Member of the Assembly can table a consent Motion before 7 December. It would then be debated in the normal way, although if the Motion has not been decided by 17 December, the debate will be scheduled automatically and the Speaker will move the Motion.

The process I have just described will operate if the political institutions in Northern Ireland are functioning as expected. That is our central scenario, as I said earlier, and the path we expect to go down. But we must be prepared for all scenarios. The alternative process will therefore apply if, on 31 October 2024, or any future such point, a First Minister and Deputy First Minister are not in office. We should remember that the protocol was drafted at such a time—a deeply challenging time for Northern Ireland. While we all welcome the restoration and subsequent stability that the Executive have achieved, it is right that we have this in reserve.

The alternative process enables any MLA to bring forward the consent Motion in the absence of a First Minister and Deputy First Minister at any time from 1 November until 7 December. If no Motion has been tabled or has not been decided on by 7 December, the Speaker must summon the Assembly to sit and consider the Motion. The alternative process also puts in place a procedure to enable the consent vote to happen under the alternative process even if the Assembly is unable to elect a Speaker when required to do so. In this case, the Assembly would move to elect by simple majority an interim Speaker, whose only role would be to preside over the consent debate and transmit the result to the Secretary of State. The interim Speaker would have no wider role beyond this narrow task. This provision ensures that MLAs will always be able to take a decision on a consent Motion, discharging the obligation in international law to facilitate this process.

If these draft regulations are approved, the first consent process would, as I have set out, take place in 2024. If consent is given at that point, the process will then be repeated every four or eight years. So, if consent is given with a simple majority, that is four years. If consent is given with cross-community support, it will be eight years. Cross-community support means the support of a majority of the Members voting, a majority of the designated nationalists voting and a majority of the designated unionists voting, as set out in the Northern Ireland Act 1998. This illustrates that the mechanism itself is designed to encourage cross-community support, giving the Assembly the chance to provide eight years of certainty to Northern Ireland’s businesses through cross-community agreement.

There are arguments that this approach is not compatible with the Belfast agreement. That could not be further from the truth: our approach is entirely compatible with the agreement; let me explain why. The principle of cross-community consent as set out in the Belfast agreement applies to matters for which the Northern Ireland Assembly is responsible. The consent mechanism, as contained in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU. This is an excepted matter in Northern Ireland’s devolution settlement. This means that the matter at hand falls outside the responsibility of the Assembly and outside the principle of requiring cross-community consent in order for it to pass.

I can assure noble Lords that the Government remain fully committed to implementing the withdrawal agreement and the protocol, which was specifically designed to protect the 22 year-old Belfast/Good Friday agreement and the huge gains of the peace process. That is why the alignment provisions in the protocol depend for their legitimacy on consent. This ensures that democratically elected local politicians will decide the future of the protocol in Northern Ireland. By making these regulations, we will ensure that this can be delivered for the people of Northern Ireland by the institution established by the Northern Ireland Act 1998. I beg to move.

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[Viscount Younger of Leckie (Con)]

My Lords, I will start by saying that I am grateful to all noble Lords for their contributions to this debate. I am also very aware, having listened to some passionate and hard-hitting speeches from certain noble Lords, that this is not an easy subject. Those speeches came in particular from the noble Lords, Lord Empey and Lord Dodds. I am very happy to welcome the noble Baroness, Lady Hoey, and of course I take into account the experience of the noble Lord, Lord Murphy. I will also say that I welcome the presence of my noble friend Lord Trimble. I know that he could have put his name down to speak today.

I will do my best to address the points raised in the debate. I will start with some of the basics. I may sound a bit like a long-playing record, but I will reiterate that the UK Government are committed to implementing the Northern Ireland protocol, with work being progressed across government and in partnership with the devolved Administrations. Our top priority is to protect the Belfast/Good Friday agreement and the gains of the peace process, and to preserve Northern Ireland’s place in the UK. Our approach, whether we agree or do not agree, is at all times guided by these priorities, and our Command Paper and the guidance we published in August set out how we will meet our obligations under the protocol.

I remind the Committee that the protocol states that it should

“impact as little as possible on the everyday life of communities”.

These communities were certainly alluded to in the interesting speech of the noble Baroness, Lady Ritchie. The Committee will also know that the proposals will deliver unfettered access for Northern Ireland business to the whole of the UK market; ensure no tariffs on goods remaining within the UK customs territory; uphold our obligations without the need for any new customs infrastructure; and guarantee that Northern Ireland businesses benefit from the lower tariffs that we will deliver through trade agreements with third countries.

I will go straight in to answer a question raised by the noble Baroness, Lady Suttie, who asked about Part 6 of the regulations and the independent review, which I have a copy of here. She asked whether we would need to seek the approval of the Assembly on the remit and content of the review, and whether the Assembly would be consulted. I note her comments and can say to her that the review will include close consultation with Northern Ireland political parties, businesses, civil society groups, representative organisations, including of the agriculture sector, and trade unions, as stated in paragraph 9 of the unilateral declaration made by the UK Government on 17 October 2019. The review will be chaired by an independent person, who will be decided on, if needed, at the time. Of course, this is in circumstances where a consent Motion has been approved by a simple majority but not by cross-community consent.

One of the themes of this debate has been consent, which was raised by the noble Baroness, Lady Ritchie, the noble Lords, Lord Dodds, Lord Murphy, and, of course, the noble Lord, Lord Empey. I note their comments but want to offer them further reassurance that it is the firm intent and desire of the Government to preserve Northern Ireland’s place in the UK. I say again that the approach is entirely compatible with the Belfast/Good Friday agreement. The principle of cross-community consent applies to matters for which the Northern Ireland Assembly is responsible. The consent mechanism, contained as it is in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU—an excepted matter in Northern Ireland’s devolution settlement. That is why the principle of cross-community consent does not apply.

Following on from that, the noble Lords, Lord Empey and Lord Dodds, made some strong comments about consent and where it came from. My response is that consent was intrinsic in the withdrawal agreement Act, including provisions to implement the Northern Ireland protocol. That received the approval of both Houses in January of this year. However, it is rightfully a matter for Northern Ireland’s political representatives to determine whether provision for alignment in the protocol should continue to apply, and that is why these regulations are necessary, as I set out in my opening remarks.

Let me clarify that the Government see the consent principle in the Belfast/Good Friday agreement as relating to the right of the people of Northern Ireland to decide whether to remain part of the United Kingdom. That is not the matter at hand, which is about the application of an international treaty to Northern Ireland. Therefore, it would not be right to allow one community to veto that decision. This matter was raised also by the noble Baroness, Lady Hoey.

The noble Lords, Lord Empey and Lord Murphy, spoke about businesses needing certainty, and of course they are quite right. On the points raised about the difficulty of returning to this matter every four or eight years—that is, if we get cross-community consent—it is essential that the continued application of certain aspects of EU law maintains the democratic consent of Northern Ireland’s elected representatives.

The noble Lord, Lord Empey, talked about a border down the Irish Sea. I say in response—he would expect me to say it, but I mean it—that trade between Great Britain and Northern Ireland is vital to the prosperity of the four nations of the UK, and we have committed to delivering unfettered access for Northern Ireland to the whole UK market. That is why we have provided legal protections against new checks or controls on Northern Ireland goods. Ensuring there are no barriers to the UK market for Northern Ireland firms is extremely important.

The noble Baroness, Lady Hoey, asked what would happen if the Northern Ireland Assembly broke down. I alluded in my opening remarks to the alternative mechanism, which is designed specifically for a scenario in which the Executive are not functioning. I point out to the noble Baroness that MLAs remained in office even when the Executive were not functioning, during their previous challenges.

The noble Baroness, Lady Ritchie, rightly raised a point about communication and asked what communication regarding the regulations there had been with the Northern Ireland Executive and the Assembly, and what discussions had been had. I say first that the Irish Government have been kept fully informed of the regulations. The noble Baroness can rest assured that working with Northern Ireland’s businesses and citizens to prepare them for the end of the year continues to be a top priority for me, the team and this Government. My department continues to work intensively with the Northern Ireland Executive, industry stakeholders and civic society, including through more than 20 meetings of the Business Engagement Forum and multiple meetings with community leaders over the past six months. I hope that this gives some reassurance that strong communication is at hand.

As I said in my opening remarks, the Government remain fully committed to implementing the withdrawal agreement. Our intent and purpose are to protect the Belfast agreement, and these regulations are an important part of that. This must be done in order to fulfil our obligations in international law. The regulations recognise the unique situation of Northern Ireland and give responsibility to those whom the people of Northern Ireland have elected to represent them. It will be up to those elected representatives whether Northern Ireland’s alignment with aspects of EU law continues. That is the essence of the regulations and I commend them to the Committee.

Motion agreed.