Northern Ireland Protocol Bill

Baroness Ritchie of Downpatrick Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Baroness Altmann (Con)]

My Lords, I support Amendments 36 and 38 for the reasons that have been so eloquently set out already—I do not think that I need to repeat them. The idea that Parliament is passing a law to allow a Minister to do whatever he likes without coming back to Parliament seems to be quite breathtaking. That is nothing to do necessarily with Northern Ireland or Brexit; that is to do with our parliamentary democracy. On the question of whether Clause 18 should stand part of the Bill, I would certainly support its removal.

I confess that I find it difficult to accept that just changing “appropriate” to “necessary” will actually sort out the problem that is inherent in so many of the measures in this Bill, because a Minister could easily just say that they are doing it because they think it “necessary”. Who is going to be able to challenge that? The law would still be changed.

I support the idea put forward by the noble Baronesses, Lady Ritchie and Lady Suttie, of at least having approval from the Northern Ireland Assembly. This would once again be an example of the British Government doing something with Northern Ireland, rather than to Northern Ireland—as the current wording would imply.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, who highlights quite clearly the central proposition in Amendment 38, tabled in my name and that of the noble Baroness, Lady Suttie. It is about limiting the control of Ministers under the Bill by ensuring that the Northern Ireland Assembly is given necessary approval of the conduct in relation to the provisions within the Bill.

Amendment 38 seeks to amend Clause 18, “Other Ministerial powers”, to ensure a limitation of delegated powers to Ministers—the very issue that was discussed by the Delegated Powers and Regulatory Reform Committee—and to ensure that

“the exercise of the Minister’s power to engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol that is not otherwise authorised by the Act to a motion approving the conduct in the Northern Ireland Assembly.”

It throws up the accountability issues relating to the Northern Ireland Assembly—I hope that all the institutions will be up and running eventually—and would ensure that devolved regions and nations have particular control in relation to this issue.

It is worth noting that there were two important developments in the long road of the protocol. Today, the Prime Minister, Rishi Sunak, and the President of the European Commission, Ursula von der Leyen, met in the margins of the climate conference in Egypt and agreed to work together to end the turmoil in relation to the protocol. Also today, at the meeting of the UK-EU Parliamentary Partnership Assembly in this building, Vice-President Šefčovič said that if this Bill were to become law, the UK Government would put Northern Ireland’s unique access to the EU market of 450 million customers at risk.

I again urge the Government to put this Bill into cold storage and ensure that there is renewed political vigour given to the negotiations. It is only through joint negotiations that all the issues around the protocol in relation to east-west issues and to trade between GB and Northern Ireland can be satisfactorily resolved to the benefit of all businesses and people in Northern Ireland.

[Lord Pannick (CB)]

My Lords, when the purpose and the intended effect of a clause are unclear, it sometimes helps to look at the Explanatory Notes to the Bill. These are produced, of course, by the Government, and are designed to explain. But if we look at the Explanatory Notes to Clause 18, we see that the confusion and uncertainty are even more manifest.

Look at paragraphs 96 to 98 of the Explanatory Notes. Paragraph 96 tells us that:

“Clause 18 clarifies the relationship between powers provided by this Bill and those arising otherwise, including by virtue of the Royal Prerogative.”


That is what Clause 18(2) says. Paragraph 97 deals specifically with Clause 18(1). It says:

“Subsection (1) provides that Ministers can engage in conduct (i.e.”—


and I emphasise that it is “i.e.” and not “e.g.”—

“sub-legislative activity, such as producing guidance) relevant to the Northern Ireland Protocol if they consider it appropriate in connection with one or more of the purposes of this Bill.”

If that is the intended purpose of Clause 18(1), why not say so? Why not limit the scope of Clause 18(1) specifically to say that Ministers can produce guidance? We could then have a debate about whether it is properly drafted, whether it is too broad or whether there should be some controls. I am afraid that what we find in Clause 18(1) bears no relationship whatever to what the Explanatory Notes tell us that Clause 18(1) is designed to achieve. My conclusion from that is that there must be real doubt here; that Ministers know what Clause 18(1) is designed to achieve and are reluctant to be specific because they do not want proper controls on the scope of their powers.

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The noble Lord’s point about wider delegations and representations is noticed. We value our devolved Administrations very highly in our engagements over international agreements, even when they are under reserved powers. On the wider point of engagement with the devolved Administrations, a point also raised in this debate, my understanding is that those have taken place, continue to take place and will continue to be updated as we make progress.

[Baroness Ritchie of Downpatrick (Lab)]

The Minister just indicated that discussions have taken place with the devolved Administrations. Maybe he can give us a little more colour about the type of discussions that have taken place. In that regard, I very much take the point made by the noble Lord, Lord Empey, that there is a need for the Northern Ireland parties to be involved in the negotiations.

[Lord Ahmad of Wimbledon (Con)]

I know that these discussions have certainly taken place at an official level. My understanding is that the Foreign Secretary has also written to the devolved Administrations on the issue of seeking consent, but if there is more detail I will update the noble Baroness.

The noble Baroness also rightly mentioned the importance of understanding the issues on the ground. As I have indicated, I believe passionately that, irrespective of where you are coming from on the Bill—whether you are from Northern Ireland itself or wherever you are sitting in this Chamber—our ultimate objective in the discussions we are having is to ensure that the protocol, and indeed any other arrangements put in place after the negotiations and debates taking place, work in the interests of all communities in Northern Ireland. That is the premise of the Government’s approach.

The amendment the noble Baroness has tabled would require an approval Motion to be passed by the Northern Ireland Assembly before a Minister may act in accordance with Clause 18

“in relation to any matter … in the Northern Ireland Protocol (where that conduct is not otherwise authorised by this Act)”.

However, in the Government’s view, the amendment is unworkable in practice, because it would require the Northern Ireland Assembly to pass a vote every time any number of actions were taken in connection with the Bill. That could be as innocuous as providing instruction to civil servants or guidance to industry. Such a situation would clearly be prohibitive to the implementation of swift solutions to the problems caused by the protocol, and therefore would not work. Nor would it be appropriate or in line with the devolution settlement for actions—

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[Baroness Suttie (LD)]

My Lords, Amendment 40 in my name is co-signed by the noble Baroness, Lady Ritchie of Downpatrick. Like so many of the earlier and similar amendments, it aims to ensure that the democratically elected Northern Ireland Assembly would have the final say on whether Clause 20 is to be implemented. In many ways, this is a probing amendment following what I felt was a very constructive and useful speech from the noble Lord, Lord Empey, who I am very glad to see back in his place after an absence. In doing this, it is incredibly important that we make sure that there is greater involvement of the Northern Ireland political parties at every stage. Perception is all in politics and, whether or not the Minister says that meetings are taking place, the representatives here from Northern Ireland do not feel that they are taking place. Therefore, they are obviously not working as they should be.

As the noble Lord, Lord Hain, who is not in his place, spelled out so clearly on an earlier group of amendments, Clause 20 would mean that domestic courts and tribunals cannot refer any matter to the European Court of Justice in relation to the Northern Ireland protocol. Last week, the noble Lord, Lord Hain, also spelled out very clearly the potential impact of this clause on the single electricity market on the island of Ireland. My honourable friend Stephen Farry MP, when speaking in the House of Commons about a very similar amendment, made the point that if the ultimate jurisdiction of the European Court of Justice is removed, Northern Ireland’s ability to access the single market for goods will be jeopardised or destroyed. A level playing field overseen by the European Court is surely in the interests of many Northern Ireland businesses and can protect access to the market in years to come. It will also protect such businesses against situations that may arise in future if any EU member state were to attempt to refuse goods coming from Northern Ireland.

Politically, it is worth stressing once again that the majority of businesses in Northern Ireland have adopted our somewhat pragmatic approach to the protocol and that the jurisdiction of the European Court has not previously been seen as a major area of concern. It is therefore hard not to draw the conclusion that Clause 20 has more to do with Conservative Party divisions and the ERG than it has to do with genuine political and business concerns in Northern Ireland. For those businesses that primarily deal with north-south trade or with the EU, any reduction of the jurisdiction of the ECJ would potentially have a profound impact on them. It is for that reason that it is very important that the Northern Ireland Assembly should be able to have its say on these matters. I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I will speak in favour of Amendment 40 in my name and that of the noble Baroness, Lady Suttie, and will refer to Amendments 42 and 43A in my name.

In many ways, Amendment 40 seeks to protect the role of the European Court of Justice and to ensure adherence to the accountability mechanisms of the Northern Ireland Assembly. Adherence to the provisions in the GFA—the Good Friday agreement—are of vital importance, and any change in the protocol with respect to Clause 20 can go nowhere unless approved by the Northern Ireland Assembly.

While this is a probing amendment, like the noble Baroness, Lady Suttie, I go back to the comments made by the noble Lord, Lord Empey, about the role of Assembly Members in the Northern Ireland Assembly. Absolutely no account, recognition or acknowledgement has been taken of the role of locally elected Members of the Northern Ireland Assembly in relation to this Bill. He is absolutely right when he says that, if they have buy-in and ownership, there is greater likelihood that the UK Government and the EU will achieve a degree of resolution on many of these vexatious issues.

Many elements of the protocol are already working well for business in Northern Ireland; for example, in relation to dairy, beef and agri-food industries. But it is important to note, as the noble Lord, Lord Empey, and other noble Lords have said—and I think the point has been made by my noble friend Lord Murphy—that negotiations succeed in Northern Ireland only when the parties are sitting around the table with the UK and the EU. So I ask the Government, in their discussions with the European Union, to try where possible to exercise a degree of flexibility that would facilitate such discussions taking place in a more all-encompassing manner.

I move on to Amendment 42, which seeks to ensure that, when the UK-EU joint committee has discussed regulation of goods in connection with the protocol, there is a full report to Parliament detailing those discussions within 21 days of the meeting. In the previous discussion on the first group of amendments, when queries were put by noble Lords about the nature and content of the negotiations with the European Union, I am afraid we did not get very much back about the actual content or level of solutions. Therefore, we are left with a query in our minds about what progress is actually being made in those technical discussions; hence the need for renewed vigour in continuous, senior political engagement at a UK/EU level.

Amendment 42 rightly emphasise the role of the Assembly and the north-south institutions of the Good Friday agreement. That is further emphasised in Amendment 43A, which requires adherence by a UK Minister in the UK-EU joint committee meetings

“to respect, reflect and support proposals made by the Strand 2”

GFA implementation bodies. That goes back to the fact that many of the implementation bodies are inextricably linked to membership of the European Union—I am thinking of InterTradeIreland and Tourism Ireland. It is important that Ministers support proposals on the regulation of goods made by the strand 2 bodies in the joint committee meetings.

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[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I am grateful to noble Lords for their participation in this debate. I will first address Amendment 40 in the name of the noble Baroness, Lady Suttie. I am delighted to see her in her place and will do my utmost to address her points, as I turn to the first group.

The amendment would require a positive resolution of the Northern Ireland Assembly before the provisions of Clause 20 can be brought into force. I point out, and it is a matter that the whole Committee is seized of, that we need to see the restoration of the institutions as quickly as possible. It is because of the breakdown of those institutions that the Government consider that the Bill is needed.

Clause 20 engages a complex combination of the transferred, devolved and reserved matters relating to foreign affairs and the court systems of the United Kingdom’s three jurisdictions. It would not be appropriate for the Northern Ireland Assembly to constrain the UK Parliament’s power to legislate, even if that legislation relates to a reserved matter.

Clause 20 is a key part of the Bill. It addresses how we treat CJEU case law, principles, and references, including in relation to those parts of the protocol that we are excluding in domestic law. I will come back to this point, but to reiterate matters taken at earlier stages before your Lordships, this is not a ripping up or tearing up of the protocol, but a recognition that parts of the protocol are not working and parts are. We seek to retain those parts that are working and dispense with those that are not.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for giving way. Does he not agree that it would be much better to undertake such discussions through negotiations themselves to correct those parts of the protocol that may be causing concern at this moment in time?

[Lord Stewart of Dirleton (Con)]

I stress, not for the first time from the Dispatch Box by myself or my noble friends on the Front Bench, that the Government’s preference remains for a negotiated solution.

The Chamber and the other place have heard from representatives of the unionist community that the presence of the European Court of Justice in the protocol is at the heart of the democratic deficit issue. Absent the provisions of Clause 20, we could end up in an incoherent position whereby substantive provisions of the protocol are disapplied but new CJEU case law associated with those provisions continues to apply. For that reason, and the others I have outlined, I urge the noble Baroness to withdraw her amendment. I emphasise that bringing back the democratic institutions in Northern Ireland is the Government’s priority.

The noble Baroness, Lady Ritchie, my noble friend Lord Cormack and others raised the matter of engagement with Northern Ireland politicians. I look to the noble Lord, Lord Empey, as well, on this matter, and the noble Lord, Lord Dodds of Duncairn, touched upon it too in his submission to your Lordships at this stage. This is an important point. The Government have committed to ensuring that representatives of the Northern Ireland Executive are invited to be part of the United Kingdom delegation in meetings of the specialised and joint committees discussing Northern Ireland matters, which are also attended by the Irish Government. Also, when the Northern Ireland Executive was functioning, the then Foreign Secretary regularly met the First Minister and Deputy First Minister of Northern Ireland, along with the Secretary of State for Northern Ireland, to discuss the protocol.

However, to reiterate the principal point, the point which brings this Bill before your Lordships’ House, the institutions are not functioning, and precisely because of the protocol. We will continue to engage, but the protocol has made things that bit more difficult.

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[Lord Stewart of Dirleton (Con)]

My Lords, the courts of the United Kingdom are fully competent to interpret and apply the law. The Government’s intention is that the laws of the United Kingdom should prevail and that the Court of Justice of the European Union should not henceforth have a role, unless a reference is made to it.

[Baroness Ritchie of Downpatrick (Lab)]

In relation to the European Court of Justice and access for the people and businesses of Northern Ireland to the EU single market, how will that be facilitated if there is no ECJ? It has legislative control there.

[Lord Stewart of Dirleton (Con)]

I think this perhaps overlaps with the point that the noble Lord, Lord Purvis of Tweed, raised, but I reiterate our commitment to Article 2. That will be covered in a letter we are presently framing to the noble Baroness. At an earlier stage, she raised the point and gave the Government until the commencement of Report to furnish her with an answer. That answer is now being drafted.

There is a Clause 20 stand part notice. I will summarise what I have said. This clause allows for the proper functioning of domestic court proceedings following the removal of the domestic effect of CJEU jurisdiction under Clause 13. Domestic courts will no longer be bound by CJEU principles or decisions when considering matters relating to the protocol. I emphasise that restoration of these democratic institutions is what we seek to accomplish. Subsection (3) provides a further power to make new provision in connection with this. Regulations made under this power could set out how the UK courts are to regard CJEU jurisprudence or provide a procedure to refer questions of interpretation of EU law to the CJEU if a domestic court considers it necessary to conclude proceedings. The clause is important to ensure that the Government can provide legal and judicial certainty for domestic courts considering proceedings relating to the protocol without being subject to CJEU jurisdiction, in line with the general principles of the Bill. For those reasons, I recommend that the clause stand part of the Bill.

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[Lord Bew (CB)]

My Lords, I thank the noble Baroness, Lady Doocey, for introducing the amendment; much that she said is extremely pertinent.

It is useful at this point to remind the Committee of quite why we are in this predicament over veterinary matters. From one point of view, you can acknowledge it as a simple function of our departure from the European Union. However, the protocol, in both the May and Johnson versions, contains a way of handling veterinary matters, which is essentially to say, “We will not accept UK veterinary testing. Pirbright is gone and you are out of the system. The only form of veterinary testing we will be able to accept is that within the European Union itself”—presumably, in the case of Ireland, in Dublin. In the EU documents of the time, there are rather interesting green pictures with little arrows showing power departing from the island of Ireland to the EU, which has now taken control of this area.

There is an obvious basic problem with that. The Good Friday agreement, whose importance has been increasingly acknowledged and accepted, was not accepted as the prior agreement when we began this debate, but I notice with pleasure that it is increasingly accepted as the key agreement; that has some significance, as it was not when we opened these discussions. The Good Friday agreement established food safety and animal health boards. For the life of me, I have never known why, in the negotiation, it was quite so necessary to have the approach of extraction of powers from the island of Ireland to the EU that the protocol, lodged by the May Government and signed by the Johnson Government, contains.

That is another example of why what the Good Friday agreement suggests, and obvious pathways that follow from everything that the noble Baroness, Lady Doocey, said, should be followed, rather than a strict obsessive acceptance of the fact that, “We signed it in this protocol and therefore it can’t be changed”. A negotiation is going on and it is bound to touch on these matters. In this case, as in so many others—including, I dare say, the issue we have been discussing for the last half hour—the canopy for the settlement is acceptance of the Good Friday agreement and the way in which it approached this problem. Then you get into the possibility of consensus and agreement.

It is not all the UK Government’s fault that they find themselves, to put it mildly, on the back foot. It is arguable that they have not behaved particularly effectively in sorting this problem out, but it is not all their fault. The root of the matter is the failure of the EU to understand—and how could it?—the north-south dimension of the Good Friday agreement. That failure is radically revealed in Michel Barnier’s memoir in these documents. The explanation has been given in various books and articles by the officials involved on the Irish side in Dublin in the negotiation on the 2017 agreement, which then set the template for the two later agreements. The explanation is that the Irish Government appropriated a particular version of the Good Friday agreement—their version—and sold it to the EU, and it was accepted in Europe and by us. We cannot revisit any of these issues in any simple sense but it remains an intellectual reality that is the clue to understanding how we can redress these processes.

All these problems that seem so insoluble—I absolutely respect the spirit in which the noble Baroness, Lady Doocey, moved the amendment—are much more easily resolved if we follow what the noble Lord, Lord Murphy, said, accept the prior importance of the Good Friday agreement and realise that the institutions and the concepts to be found there are the institutions and concepts that provide the basis for a benign compromise that both the UK and the EU can live with.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the noble Baroness, Lady Doocey, for her amendment because it goes to the heart of the protocol and the protocol Bill issues in relation to the need for an SPS veterinary agreement. The dairy and farming industries on the island of Ireland require an SPS agreement. I have written to the noble Lord, Lord Caine, today, following last week’s debate on this issue following further discussions with elements of the dairy industry. The bottom line is that unless there is an SPS agreement, that could very much interfere with our dairy industry and totally undermine it.

I shall give a short explanation from the letter. Those in the dairy industry acknowledge the issues that the Northern Ireland retail sector is dealing with regarding the protocol and support for a dual regulatory regime, but such a regime would not work for the dairy industry because we are looking at the very survival of Northern Ireland dairy farmers. Approximately 30% of all Northern Ireland milk is processed in the Republic of Ireland because there is not the capacity to do so in Northern Ireland. It may be worth visiting some of the processing factories in Northern Ireland that are part of a greater co-operative group to see what they do and what they are trying to tell us.

If you create a hard border for milk, which the dual regulatory scheme outlined in the Bill will, there will be enormous environmental issues. Northern Ireland does not have the capacity to dump 30% of its milk, and milk has special regulations for its disposal. You could then move to the culling of perfectly healthy animals which, in a cost of living crisis, is inconceivable. Finally, this would lead to devastating consequences for the economy of Northern Ireland, as the agri-food industry is its bedrock.

So I say to the Minister that those in the dairy industry have looked at the impact of a 30% reduction in sales to an average Northern Ireland farmer. When you consider their average interest on loans and their loan repayments, this would result in an annual negative cash flow. In other words, their costs would be greater than their income.

In summation, it is vitally important that the negotiations achieve an SPS veterinary agreement. From what I have read in the non-papers from the EU of October last year, it is very prepared to enter into such an agreement as part of the negotiations. However, the dual regulatory regime will not work for the agri-food sector. Maybe a bespoke arrangement is required for the retail sector where some of the problems lie.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Doocey, for her amendment because it roots our discussions in the real world of farmers and manufacturers and focuses our minds on jobs and prosperity. The noble Baroness, Lady Ritchie, as usual, got it completely right and explained the impact on the dairy industry very powerfully. I will not repeat some of what she has already said, although I was intending to.

We ought to be working towards an SPS agreement. We on these Benches have thought that we should be working towards that sort of agreement for the whole of the UK and we have held that position for over a year because of the very clear benefits it would bring to food and drink manufacturers. I think the food and drink industry is still our biggest manufacturing sector in England, so there would certainly be significant benefits to the whole of the UK of this approach.

One benefit would surely be to assist—not to resolve completely—in overcoming some of the issues experienced by producers, hauliers and those wishing to trade east-west. We are reminded quite rightly by the noble Lord, Lord Bew, that we need to be concerned about this. It would be hugely beneficial to our industries in Northern Ireland and beyond. We understand that not every problem will be solved this way and we know that some SPS checks were there prior to the protocol, for other reasons. That seemed to work fairly well for quite a long time, so that may still be necessary. It will be interesting to see what the Minister thinks about that.

At this stage, we think we need this to help with the costs and administrative burdens faced by producers, distributors and retailers. A couple of examples have been referred to. I will briefly refer to the Swiss deal. They have an agreement where regulations are aligned, eliminating virtually all documentary, identity and physical checks. New Zealand, as we have heard, has an equivalence model that has made processes simpler and reduced checks. We probably would not want to replicate either of those models directly. Obviously there are differences, such as the volumes coming from New Zealand and the fact that many of the loads going east-west in our situation are mixed, that make neither model directly replicable. We think we probably need a bespoke agreement and the door to that seems to be open with the EU, so it is curious that the UK Government seem quite so reluctant to explore that option.

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[Lord Bew (CB)]

My Lords, I thank the noble Baroness, Lady Hoey, for this amendment. She knows from many discussions and from what I have said in this House that, despite the distinguished legal heft behind her argument on the Acts of Union, I do not accept it. By the way, I do not accept the argument that the protocol subjugates the Acts of Union, but I do not want to repeat things that I and others have said during this debate.

However, the noble Baroness’s speech is very important for a particular reason. I look over at the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Hoey, and remember that we were all in exactly the same place in April 1998—in favour of the agreement. All of us were determined to get that agreement going. The speech from the noble Baroness, Lady Hoey, reflected a significant degree of disillusionment, largely provoked by events since the protocol.

The issue that the noble Baroness homed in on was the Acts of Union. The White Paper which preceded the Bill does not reference the issues around the Acts of Union, whereas the Bill does. It is more briefly than the noble Baroness would like, but it none the less references upholding the Acts of Union. That reflects the deterioration that has occurred in public opinion in Northern Ireland, even since the publication of the White Paper. The Government decided—I understand for tactical reasons—to include a reference to the Acts of Union in the Bill.

We have listened tonight to quite a lot of esteemed legal opinion, but the truth is that this is a political problem. It has to be faced up to. The truth is that we are in a very difficult moment when it comes to the possibility of making the Good Friday agreement’s institutions operate as we head toward its 25th anniversary. The strong conviction that I have—I think the noble Lord, Lord Murphy, also feels this—is that there is no other show in town, and so that is what we should be working to do.

One of the reasons why I am a little uncomfortable about the eloquent discourses on Henry VIII powers—I have been in this House long enough to have heard many such—is the point forcefully made by the noble Lord, Lord Dodds, tonight. The House gets very excited about Henry VIII powers when it suspects that the uses will not be loved by the House but, when it is a Henry VIII power which is pretty unpopular with large sections of opinion in Northern Ireland, the House has no qualms. We have seen it most recently on the abortion issue. What matters is not Henry VIII powers but the purposes to which they are put, and in this case the purposes to which these powers would be put would be essentially dealing not with a sea of anonymity but with EU interventions of one sort or another in the laws of the United Kingdom.

The way in which the House approaches this really makes me uncomfortable, because it is an attitude of mind that does not reflect the political nature of the problem. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, as a very esteemed legal mind in this House, actually faced up to what the Good Friday agreement, an international agreement, says quite clearly at Article 1(5). He used the expression: “You cannot live with long-term alienation.” The British Government—the sovereign Government—have a responsibility to address the long-term alienation of a community, as they did only recently on the Irish language. There is no question about that. “Alienation” is a perfectly fair translation, but that piece of legislation actually says that the British Government as the sovereign Government have to deal on the basis of equality of esteem with the long-term aspirations of both communities. There is no question but that the protocol as it now stands is seen by the unionist community as a whole as flouting its long-term aspirations.

I suppose that just after Brexit came into our lives—unhappily, for many—former Taoiseach Bertie Ahern, who was present in 1998, came to this House and addressed the House of Lords Select Committee. He said, “You can talk all you like about Europe but there is the little matter of the Good Friday agreement, held as an international agreement in the United Nations.” The House has tended to forget that. Therefore, while I am sympathetic to the fundamental legal thrusts at the beginning of the amendment in the name of the noble Baroness, Lady Hoey, the fact that many people in Northern Ireland will see her case as, if anything, too soft and too moderate is a sign of how we are losing control of public opinion in Northern Ireland and our ability to intervene in that public opinion. That is extremely worrying.

The noble Lord, Lord Empey, who was in his place earlier this evening, is quite right: we cannot afford to give the impression that Northern Ireland is an ungovernable entity. There must be a return to power sharing. I will be clear about this: it will not occur on any other basis than a renewed form of historic compromise. We should take the amendment in the name of the noble Baroness, Lady Hoey, as a warning about how public mood is evolving away from compromise, and all the lectures on Henry VIII powers in the world are not anything like as significant as that fact for the political history of this country.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I have three amendments in this group but, before referring to them, I say that obviously this set of amendments really deals with the restrictions on the use of ministerial powers. In fact, the noble Lord, Lord Bew, referred to the kernel of the issue, which is about the politics of Northern Ireland. I think that is what the noble Baroness, Lady Hoey, also said. Obviously, as a democratic Irish nationalist I come from a very different position, and I make no bones about it. In the fullness of time, subject to agreement and to consent, I would like to see the island of Ireland politically united, but that is united according to the principle of consent and united by agreement. The land is already united, but I mean the uniting of people on the island.

In this discourse, we must not forget that we have to move towards compromise and achieve it. I go back to the point made by my noble friend Lord Murphy: the most important thing is that there is an urgent need for the parties in Northern Ireland to be directly involved in the negotiations with the UK, the Irish Government and the EU. Unless that happens, we will go down the road of technical negotiations and discussions ad infinitum but they will not solve the political issues that exist, and those political issues urgently require to be resolved if we are to have the restoration of political institutions.

In that context, I pose this question: do all parties and all peoples want those political institutions restored? For my part, I would like them restored because they are based on the principle of consent and it is all about power sharing and co-operation. Because of the nature of the divided society in Northern Ireland, it cannot go any other way and the only solution is via the Good Friday agreement. I hope we will get back to that, and the best way to do it is through negotiations between not only the UK and the EU but the parties in Northern Ireland that are most directly affected, representing all the people, and of course the Irish Government, who could take on the role of the EU or work in partnership with the EU as a member state.

Amendment 46 seeks to circumscribe and limit the regulations to ensure adherence to Northern Ireland Assembly approval for a legislative consent Motion. The regulations are referred to only in the Bill; they are not specified and will be subject to secondary legislation. The noble Lord, Lord Bew, referred to Henry VIII powers. If this were just about Henry VIII powers then it might be quite simple, but it comes back to the overarching umbrella of the political situation and the need for a political solution. Here, there is a total disregard for the democratic consent of the Assembly and the importance of what it is there to do as an organ of the Good Friday agreement. It is important that that is built into this legislation, although obviously I would prefer that the legislation was not there and that it was replaced totally by negotiations.

Amendment 54 seeks the agreement of the First and Deputy First Ministers acting jointly on behalf of the Executive or Assembly. In that, I am building in joint accountability. There is a case for reverting to the appointment of the Ministers jointly as joint First Ministers. In fact the noble Lord, Lord Empey, referred to the earlier situation where, at St Andrews, that principle was undermined. Appointing Ministers and calling them joint First Ministers would emphasise power sharing, co-operation and jointery. It would recognise the principle of consent as prescribed by the Good Friday agreement, and it would get away from the idea of one side saying, “Make me First Minister”, and the other side saying, “No, make me First Minister”. We have to ensure that equality and parity of esteem are recognised in the Bill if the Bill is to go ahead.

Amendment 55 proposes a new clause requiring the Minister yet again to obtain the consent of the Northern Ireland Assembly to exercise the power to make regulations conferred by the Bill. It would also require a Minister to obtain the consent of the Assembly for the continued application of the regulations beyond the relevant period. It would therefore require the consent and the accountability of the Assembly. There should be no imposition of these unspecified regulations without the agreement of the Assembly. The fundamental point is that the people of Northern Ireland and their elected representatives in the Assembly are key and fundamental to the whole process, and should be directly involved in the negotiations in deciding the way forward.

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I come back another point I want to make, concerning the amendment tabled by the noble Baronesses, Lady Ritchie and Lady Suttie. Once again, I point out that they say the regulations must be passed by the Northern Ireland Assembly. A few moments ago, the noble Baroness, Lady Ritchie, said that as an Irish nationalist, she wanted a united Ireland. No one can deny that as a legitimate aspiration for her. It is certainly not my aspiration, but it is hers. However, she said that she believed it would be united by consent. The very basis of the Belfast agreement is cross-community consent. I ask the noble Baroness, Lady Ritchie, “What would you do with a million unionists or loyalists going into a united Ireland who didn’t want to be there?”

[Baroness Ritchie of Downpatrick (Lab)]

For the avoidance of doubt, and for the information of the noble Lord, Lord McCrea, when I say “consent and agreement” I mean consent, and it must be the consent of all the people—unionists and nationalists.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I thank the noble Baroness. That then begs the question: why is it not in her amendment? Why is it simply the consent of the Northern Ireland Assembly, which in fact removes it from cross-community consent? That is not what they are talking about here. If it had been, it would be in this. I listened very carefully to the noble Baroness, Lady Suttie, saying that this would be looked at on a later date. I trust that this will be taken on board. We will not move forward unless there is cross-community consent, and there is no cross-community consent and no unionist consent for this protocol, which they believe is a vehicle for taking Northern Ireland out of the United Kingdom.