Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Baroness Hoey Excerpts

Tuesday 13th February 2024 Lords Chamber

I have one final point about the achievement embodied in these statutory instruments and the re-establishment of the Assembly. The Conservative Party is in the position where it supports the union willy-nilly; it has no conditions on that. That is not the Labour Party position in recent times. Since Tony Blair’s famous speech at Balmoral, which I and the noble Lord, Lord Murphy, remember, the position of the Labour Party is that it supports the union, so it is not neutral on that, but only on the basis of a working power-sharing devolved north-south set of arrangements. That is the classic position of the Labour Party as I understand it, and I do not hear any sign that it has changed. As a result of this agreement, the instability that might have flowed from the possible election of a Labour Government will not flow because we now have power-sharing devolution. The possible tensions between a London Government and Northern Irish unionism will not be there. That is a very significant point but so far, in all the recent debates, it is not a point that I have heard made on behalf of the deal that has been done.

[Baroness Hoey (Non-Afl)]

My Lords, I start by stating strongly, at the beginning of my contribution, my agreement with the noble Lords, Lord Dodds and Lord Morrow, that not one word of the protocol, rebranded as the Windsor Framework, has been altered. That is reality. The Irish Sea border remains with the same force that it always did. Despite the claims made by the Prime Minister, the Secretary of State and Sir Jeffrey Donaldson that the Irish Sea border is removed and the Act of Union restored, nothing could be further from the truth. Indeed, a quarter of the glossy Command Paper is spent basically explaining why the Acts of Union must remain suspended, as the Supreme Court said they were, while at the same time trying to mislead people into believing that in fact they have not been. That is confusing, but that has been the purpose of the way this whole thing has been presented: smoke and mirrors to distract, mislead and cause enough confusion that the deal would be accepted by those who had not looked at it in great detail.

There is a natural desire among MLAs to get back to the Assembly and the Executive. Indeed, whenever the protocol was mentioned in this place, noble Lords would say, “Oh, if only we could get the Executive back”, as if that would sort everything out. Many of the MLAs wanted to get back because they thought that they would be able to sort out the health service, the public service problems and other issues. We will see how that works out.

Before I turn directly to the statutory instruments themselves, I pay tribute to the grass-roots movements in Northern Ireland that, along with many members of the DUP, stood firm on their promises to the electorate, and to the MLAs who stood firm and were not taken in by offers of Speakerships, red boxes or committee chairs. The noble Lords, Lord Morrow, Lord Dodds, Lord McCrea and Lord Browne, and the MPs Carla Lockhart, Sammy Wilson, Paul Girvan—my MP—and Ian Paisley were also opposed to the deal.

It is interesting that Sir Jeffrey and indeed other new Ministers in the Assembly spent the first few hours having a go at, and being really angry about, Jim Allister, the leader of the TUV. They went on about how he had simply shouted and not achieved anything. That is interesting because I appeared on lots of platforms all over the country in Northern Ireland with Jim Allister, Sir Jeffrey, Jamie Bryson and a number of others at the anti-protocol rallies, and it is rather ironic that they turned their fire on Jim Allister for shouting when I recall many occasions when Sir Jeffrey shouted even louder.

The reason that Sir Jeffrey and others turned their fire on Jim Allister and others was to hide the embarrassment of not having kept their promises. They had shredded all their promises. The word “honesty” has to come into politics. When people make promises and then do not keep them, that does not do the cause of politics and politicians any good.

I want to deal particularly with the red lane in the statutory instrument, and how that is being dealt with. We have heard over and again that the red lane is acceptable because it pertains only to goods that are going to the Republic of Ireland. If that were so, that would not be a problem. The difficulty is that this legislation does not touch the definition of the red lane, so it continues to be concerned with goods going to the Republic and with the crucial inputs that go into Northern Ireland manufacturing that come from the rest of the United Kingdom. It is important to be very clear that the green lane—or the UK internal market system—pertains only to completed consumer goods. The initial name for the green lane was the internal market system, so that has not been changed. The idea that it pertains only to completed consumer goods is deeply worrying, suggesting that the Northern Ireland part of the UK economy had become a consumer element, not a producer. Economic life based just on consumption is completely unsustainable; it must be based on a balance of consumption and production.

The ultimate destination of the inputs that travel on the red lane to facilitate manufacturing in Northern Ireland is completely unknown at the time that the inputs travel. The products that will result from the productive process in which they play a part have not even been made at that time. The majority of goods that are made in Northern Ireland and do not remain in Northern Ireland end up going to Great Britain but, because there is a chance that they will be sold in the Republic, the EU says that those goods must be produced to EU standards, in line with EU law and that, to secure this, the whole of Northern Ireland must be subject to the EU and not UK law in that aspect of trade.

That takes us to the very heart of the problem with the protocol—it is EU law. It is because of the possibility that goods manufactured in Northern Ireland entirely on the basis of Northern Ireland inputs could be sold in the Republic that the EU claims the right to make Northern Ireland law, notwithstanding that Northern Ireland is not in any way represented in any parts of the EU’s legislative chambers or the European Parliament. It claims the right to make not just one law for Northern Ireland or 300 laws, but law in 300 areas.

Some try to suggest that it is no longer a problem because of the Stormont brake. Although the Stormont brake gains a new reference in the constitutional status of Northern Ireland regulations 2024, nothing in this statutory instrument changes how the brake operates in any way, as has already been said by the noble Lord, Lord Dodds. It suffers from the same fatal flaw—rather than addressing the problems of the Windsor Framework, it partly disfranchises 1.9 million UK citizens so that in 300 areas of law, people in Northern Ireland can no longer stand for election to make the laws to which we are subject. The brake fobs us off with the demeaning lesser right of standing for election to try to stop laws coming into force that have already been made for us by a foreign parliament.

This problem must be understood from both the domestic and international sides. Viewed domestically from within the UK, the essence of our political settlement is that we all have the positive right to stand for election to make all the laws to which we are subject, not a negative right to try to stop laws made by legislators from other countries. The idea that any UK citizen, from any part of the UK, should be asked by Parliament to settle for such an arrangement is really extraordinary. I believe it effects a breaking of faith with respect to the basic covenant that underscores our politics. It also creates two classes of citizens: UK citizens in England, Wales and Scotland continue to have the right to stand for election to make all the laws to which they are subject, while in Northern Ireland we have the right to stand for election to make only some of the laws to which we are subject. As someone living now in Northern Ireland and from Northern Ireland, but who represented an English constituency in another place for 30 years and was elected eight times, I cannot admit this profound breaking of faith within the body politic. This is a real rupture and it is doing untold damage overall to politics in this country.

Of course, that is not the full extent of the difficulty because the brake does not apply, as has been said, to all the laws imposed from Brussels. To that extent, rather than being fobbed off with a negative rather than a positive citizenship, we have to make do with no citizenship at all. That is not all: if the change in the imposed law is made to existing law, any attempt by Stormont to block the law can be stopped by the EU—and if the UK does not agree with the EU then the matter goes to international arbitration, which could side with the EU against Stormont. If the change is by way of creating new EU law, meanwhile, the Government can overrule Stormont if the Minister believes that there are exceptional circumstances that justify the adoption of the decision.

These limitations were in the brake as introduced last year and the regulations before us do nothing to address them in any way. In this regard, the suggestion that Regulation 2 of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations provides reassurance is based on a complete misunderstanding of our political system and of the people of the United Kingdom. The sovereignty of Parliament is not in doubt. It is precisely because Parliament is sovereign and yet has decided to partly disenfranchise 1.9 million UK citizens, in response to European Union pressure—when it could just as well have decided not to give in to that pressure—that makes the current arrangement so objectionable and so destructive of the trust upon which our politics depends.

How can we tell the people of Northern Ireland that it is important to go out and vote when we so happily acquiesce to the process of undermining the value of the vote in Northern Ireland? Indeed, how can we tell citizens that it is important to go out and vote in other parts of the UK when our actions in Northern Ireland suggest that having a voice is so unimportant that its value can be rendered null and void in so many areas of law? It is a shameful arrangement. It is very sad that so many noble Lords and Members of Parliament in the other place do not seem to realise this. This shameful arrangement places the trust and integrity on which our whole body politic depends in jeopardy.

If we look at the international aspect, that is exactly the same. It is wrongly asserted by some that international law rests on the foundation of pacta sunt servanda—that agreements must be kept—but that is not the case. If it was, a treaty effecting disenfranchisement or slavery would be unimpeachable because it rests in a treaty. In truth, however, in international law there is a clear understanding of certain ground rules that must be respected in making valid treaties. These testify to respect for the first move of international relations: the move of recognition, when one state recognises the right of another to exist and its territorial integrity, with state A thus renouncing any claim to making law for its territory or any part of its territory, in return for reciprocation from state B.