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

Baroness Hoey Excerpts

Committee stage
Monday 13th December 2021 Grand Committee

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support Amendment 6, to which I have added my name. I also see merit in the amendment proposed by the noble Baroness, Lady Suttie, although I see that as an area where a manner of negotiations would be required, which I suggest might happen in the post-election scenario. I recall my colleague, Mark Durkan, at a meeting of the British-Irish Association in 2008 talking about the removal of the “ugly scaffolding”—I think that the noble Lord, Lord Caine, was there that evening. In the fullness of time, the Good Friday agreement was meant to evolve and our society was meant to evolve, through working together, through partnership, through the consent principle and through agreement. We have not necessarily achieved that position, but it is an area where further negotiations might be required.

I support the idea that Ministers should have to take account of the need for and the views of a civic forum. I recall the original Civic Forum that was established as a result of the agreement and the Northern Ireland Act back in 1998. I know many people who were involved in that and made a contribution, from the trade union movement and from civic society, from farming and fishing, because they were policy focused. That can only be good, because they bring their knowledge and their experience, which no doubt can inform Assembly Members and Ministers of the issues that are pertinent at a particular time. In my old constituency of South Down, such issues might be agriculture and fisheries. Nothing lasts for ever; things change, and Brexit was obviously a major change in terms of fishing. People involved directly in those industries can add much, and there is a role for the civic forum, but, more importantly, for Ministers to have due regard to what is said in that. There have been very powerful tools in the form of citizens’ assemblies in the Republic of Ireland, which have helped to change and mould society as it has developed.

I have received a copy of a letter that was sent to the then chair, or former chair, of the Executive Office, who was making inquiries about the outstanding issues of New Decade, New Approach. Reference was made in that agreement to a civic advisory panel, which would be not unlike a civic forum. New Decade, New Approach states:

“The parties recognise the value of structured and flexible engagement with civic society to assist the Government to solve complex policy issues. The Parties have agreed that the existing Compact Civic Advisory Panel should be reformed to include a renewed membership appointed within 6 months”—


that should have been by June 2020—

“by way of a Public Appointments process.”

It is to be noted that this remains an outstanding commitment which was interrupted by the impact of Covid on public engagement generally. The letter to which I referred, from October 2021, stated that work would be initiated to enable the panel, subject to the availability of supporting resources, to come into operation as soon as circumstances permitted to fulfil its intended remit as effectively as possible. I see that as a staging post on the way to the establishment of a civic forum by way of this legislation.

It is interesting that the civic advisory panel has not yet been established. Surely the impetus should have been Covid and the need for an organisation such as that, consisting of people from the trade union movement, civic society, health and social services, the economy, business and manufacturing, and from the retail organisations, to discuss the ingredients of what was required in a Covid recovery plan and help inform Ministers and Members of the Assembly of the most up-to-date thinking in this regard.

While I speak in support of both amendments, recognising that a new set of negotiations would be required in terms of Amendment 7, I ask the Minister: where is the civic advisory panel? Will the Minister and the Government talk urgently to the Northern Ireland Executive about the establishment of this panel? It would only be of benefit, and not a hindrance or impediment, as sometimes Members in the Assembly and even Ministers could think, but they should always see things in terms of compromises and solutions. I support both amendments.

[Baroness Hoey (Non-Afl)]

My Lords, I will just say something briefly on Clause 4 and the amendment moved by the noble Baroness, Lady Smith of Basildon, and supported by the noble Baroness, Lady Ritchie of Downpatrick. A civic forum sounds brilliant, does it not? But I am really not sure what we mean by a civic forum. I presume that this is a probing amendment, because clearly we could not support something where we have no real idea of how anyone would get on to it; who would be representing who; what the rules would be; whether they would get paid to come—would someone coming up from Londonderry/Derry get their fair pay?—or whether it would move around and people would be moving around with it.

I think this is one of those ideas that sound great but in practice would become just another group of people—mainly the same people, probably, who are already involved in politics in the wider sense in Northern Ireland. Northern Ireland is quite a small place, as those of us who come from there know, and everybody knows everybody, really. Wherever you go, people know somebody who knows somebody—probably sometimes they are even a relative. I am therefore not quite sure how this would work. We have, for example, a very strong Women’s Institute in Northern Ireland, where WI groups meet in the country areas regularly and do great work; we have the Young Farmers’ Clubs; we have all sorts of other organisations already, such as residents, tenants and community associations; and a huge amount of work is being done by churches and community groups. I am just not sure about introducing another layer of supposed democracy and accountability—I am not sure who it would be accountable to, anyway.

I hope that the Minister will treat this with great care, because it is one of those things that sounds good and could be set up, but then we discover that it is in fact pretty meaningless and does not do anything to move things forward in Northern Ireland.

[Lord Alderdice (LD)]

My Lords, I had not intended to speak on this, but I just want to pick up on some of the things that the noble Baroness, Lady Hoey, has just said. We know exactly how such a thing would be established, because it was—it was running. When I was the Speaker, I met regularly with Chris Gibson, who was the chair of the Civic Forum, so this is not some kind of thing where we can say, “We’re really not sure what it is, how it will happen or where it would be”—it was operating. The puzzle is not whether it could operate, but why, as a part of the agreement that was voted on, it stopped operating.

There is an argument that it could have done more at the time. One of the discussions that I had with Chris Gibson as chair was to encourage him to take more initiative in enabling the forum to do things. My goodness, we sit in the House of Lords, which is in itself not entirely different from this proposition, which is that you have people who are not always involved directly and immediately in party politics but nevertheless have a role to play.

Therefore, I just flag up, after what the noble Baroness says about being puzzled as we do not know what it would be like or who would be appointed and so on, that it was in fact in place.

[Baroness Hoey (Non-Afl)]

That was 20 years ago.

[Lord Alderdice (LD)]

Twenty years ago, indeed. The agreement itself, which is the basis for the Assembly, from 20 years ago, was the basis for the Civic Forum as well. The puzzle is how it has been possible to talk about implementation of the agreement and not talk about something that was voted on and supported in a referendum. I just flag that up.

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Moved by

[Baroness Hoey]

7A: Clause 5, page 7, line 42, at end insert—
“(9) This section has effect notwithstanding section 7A of the European Union (Withdrawal) Act 2018. (10) No inference is to be drawn from subsection (9) as to whether this section would otherwise have effect subject to section 7A of the European Union (Withdrawal) Act 2018.”Member’s explanatory statement This amendment at subsection (9) would ensure that s7A of the 2018 Act cannot transport the requirements within the Protocol into domestic law, and thus nullify the cross community consent mechanisms.

[Baroness Hoey (Non-Afl)]

My Lords, I am sorry that this amendment came in rather late. I thought there were going to be two days in Committee, and I had checked that I would be able to put something in today. I am very grateful to the Public Bill Office for its support.

Amendment 7A in my name and that of the noble Lord, Lord Dodds of Duncairn, is designed to restore the balance at the heart of the Belfast agreement. The agreement has been unbalanced by the manner in which the protocol has sought to nullify cross-community protections to prevent them being utilised by unionists to vote down the protocol. This has been accepted by the Government’s barristers in the High Court as subjugating the Acts of Union. The very essence of the union is being subjugated by the protocol. How can any Peer who values the union stand over that approach?

The Government in the Command Paper and in subsequent contributions by the noble Lord, Lord Frost, have conceded that the protocol has no consent from the unionist community and identified that as a core problem. It is therefore time to restore the fundamental balance and cross-community protections inherent within the Belfast agreement. In the absence of those core pillars being restored, there is no basis for any pro-union person to continue to support the agreement. This amendment would restore the principle of cross-community consent for key decisions, which is a core commitment in strand 1(5)(d) of the Belfast agreement. The Committee will note that this relates to any key decisions coming before the Assembly.

Later there were efforts to create some technical loophole to justify demolishing this cross-community consent mechanism for the protocol vote because, it is claimed, it is not devolved. As noble Lords will know, the Secretary of State by regulations unilaterally amended the 1998 Act by inserting Section 56A and Schedule 6A. That has the effect of disapplying cross-community consent. In practical terms it is designed to nullify cross-community protections being utilised in this case by unionists. Can this Committee and noble Lords imagine for a moment the outcry there would be if the Northern Ireland Act was unilaterally amended to nullify cross-community protections for nationalists?

We have heard much talk of protecting the Belfast agreement. What that really seems to mean is protecting certain aspects of the Belfast agreement and certain interests in the agreement—namely, those who have more of a nationalist view. All those who claim adherence to the Belfast agreement should support it in all its parts. That means the protections must apply every bit as much for those who are pro-union.

This amendment restores the fundamental principle of cross-community consent and the ultimate outworking of that is that, if these amendments are passed, come 2024—though I hope it is gone long before that—the protocol cannot continue in the absence of a resolution which commands cross-community support. A simple vote of nationalists would not suffice. A vote against such a restoration of balance will send a message to the unionist community that cross-community protections do not really matter. I do not need to point out how corrosive that is at the moment in the Northern Ireland—the idea that cross-community does not really matter, that it matters only when certain people have decided it does.

If the Government wish to be loyal to their Command Paper and their New Decade, New Approach promise to protect the UK internal market, the way to do that is to insert these amendments and correct the monumental error in disapplying cross-community consent. Repealing Section 56A and Schedule 6A would cut out the corrosive infection which has been injected into the Belfast agreement by the protocol. It is also important to restore the primacy of the cross-community protections and to make very clear that the constitutional statue in the form of the Northern Ireland Act cannot be subjugated to the general words in Section 7A of the withdrawal Act.

Of course, those of us who went to court on this say that Section 7A has no such effect in any event, but given that the Government and their lawyers have come to the High Court and made that case, these amendments will make expressly clear the primacy of the key cross-community protections. I accept that the Minister has had very little time to study the amendments. I hope that he will not simply say that this should not be in this Bill, because if it cannot be in this Bill, then the Government are really saying that there is no way to change what has happened in respect of those consent principles.

I hope that the Minister will give this some thought and that the Government will perhaps come back with an amendment of their own, if not this amendment, on Report. I beg to move.

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[Lord Caine (Con)]

My Lords, I thank the noble Baroness, Lady Hoey, for her manuscript amendments. Obviously, she referred to a number of arguments that are currently being considered by the courts and on which I have no intention of commenting today. As my noble friend Lord Dodds of Duncairn generously pointed out, this amendment only came in this afternoon, so I hope noble Lords will forgive me that I have not had the opportunity to study it in detail or discuss it more broadly within the department.

The protocol came up extensively at Second Reading and, on that occasion, I set out the Government’s position on this issue. It is clear that in the construction and implementation of the protocol we have seen a diversion of trade, burdens on business, an impact on consumers and how it has affected confidence in the Belfast agreement and its institutions throughout the community. The irony is not lost that a protocol that was designed primarily to support and uphold the 1998 agreement now risks undermining it.

As I also pointed out at Second Reading, my noble friend Lord Frost is currently engaged in intensive negotiations with the European Commission on a number of the problems I have referred to arising from the protocol. As he has made clear to the House on a number of occasions, while progress has been made there still remain substantial gaps. The Government’s hope and intention is that these differences can be resolved through agreement; that is our clear preference. If that is not possible, then we will take whatever steps we feel are necessary to safeguard not just the interests of Northern Ireland but the United Kingdom as a whole, because the protocol impacts the whole of the UK and not just one part of it.

I assure both the noble Baroness, Lady Hoey, and my noble friend Lord Dodds of Duncairn that the Government are firmly of the view that any solution to the issues arising from the protocol can be lasting only if it has democratic support from across the community in Northern Ireland, ensuring a balanced settlement which is sustainable in the long term. As my noble friend has made clear, the current arrangements are not sustainable, and he is trying to address that issue.

Beyond that, I am not in a position to say a great deal more. At the risk of repetition, this Bill is primarily about implementing New Decade, New Approach, which was instrumental in securing the re-establishment of the devolved institutions after the hugely frustrating period from 2017 to 2020. I respectfully suggest to the noble Baroness, Lady Hoey, that we should press on with passing this Bill, allow my noble friend Lord Frost to press on with his negotiations and secure the right outcome for Northern Ireland. In the meantime, I urge her to withdraw the amendment.

[Baroness Hoey (Non-Afl)]

I thank the noble Lords, Lord Dodds, Lord Trimble and Lord Morrow. All noble Lords here should be concerned about the seriousness of the situation in Northern Ireland; it will not get better if the protocol stays. As we have said many times, in the end the Government have to choose between the Belfast agreement and the protocol. Of course, the Belfast agreement is now being fractured—I think that is the word. I thank all noble Lords who have spoken. I am assuming, perhaps wrongly, that those who did not speak are in agreement or have been thinking so carefully about it all that they will come back on Report. I thank the Minister because the amendment was tabled this morning and I appreciate that he may not have seen it until later in the day. Obviously Members need to look at it, study it and think about it.

Normal dealings in Northern Ireland are not going to continue unless this is sorted. We can no longer ignore it. It is not going to go away. We are wasting our time with the New Decade, New Approach if this is not sorted. Things will get very difficult indeed. In view of what the Minister has said, I hope that he will go away and perhaps discuss the amendment with the noble Lord, Lord Frost, and other members of the Government, including the Prime Minister, and that by the time we get to Report we may have a different view and a different outcome in terms of what can be put on the Order Paper. I beg leave to withdraw the amendment.

Amendment 7A withdrawn.

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8A: Page 8, line 7, at end insert—
“(c) section 56A of the Northern Ireland Act 1998 and Schedule 6A to that Act.”
Member’s explanatory statement
This repeals the Protocol consent mechanisms which were made by regulation by the NI Secretary of State. These consent mechanisms expressly transport the Protocol into domestic law by ensuring the consent of the NI Assembly for its continuation requires only a majority vote (and expressly disapplies cross community consent protections of section 42 of the 1998 Act), rather than cross community consent protections applying pursuant to Strand One (5)(d) of the Belfast Agreement.
The Protocol requires (at least in respect Articles 5-10) that positive consent be given for its onward existence.

[Baroness Hoey (Non-Afl)]

Amendment 8A stands in my name and is very short—

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

If I may, I enjoyed the debate earlier, but the convention is that you do not move it formally in Committee.

[Baroness Hoey (Non-Afl)]

My Lords, I have in front of me, from the Public Bill Office, “If you wish to move your second amendment, you say, ‘My Lords, I beg to move manuscript Amendment 8A, standing in my name, which is as follows’, and read it out. You then make your speech.”

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

I think that was put down just in case something odd happened. The convention for right now is not to move it.

[Baroness Hoey (Non-Afl)]

I am sorry; I am new. I do not know the conventions. Shall I go on to move it?

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

I do not think you want to move it. It was spoken to earlier.

[Baroness Hoey (Non-Afl)]

This is a separate amendment.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

I know, but it was grouped with Amendment 7A and was spoken to there.

[Baroness Hoey (Non-Afl)]

That is fine, because it is very short and was simply going to repeal the Act, which would mean that we would not have the protocol consent principles.

Clause 6 agreed.