Northern Ireland Protocol Bill

Baroness Hoey Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, it is a fact that the protocol has downgraded Northern Ireland’s position within the union and left it out on a limb, subject to still being part of the EU single market. It is a fact that it leaves our fellow British citizens there subject to foreign laws and foreign courts and under the constant enforcement of new EU regulations, with businesses in Northern Ireland forced more and more to buy from the Irish Republic rather than Great Britain. Increased bureaucracy, staff resources, cost and delivery times have, as we all know, made many businesses refuse to trade in Northern Ireland.

For me, this is a very simple debate. Our Government decided that protecting the EU single market was more important than protecting the sovereignty of their own country and the internal market of the UK. The Irish Government made threats about the return of violence if there were ever customs posts or anything at the border. They got the EU to weaponise the border, and our Government then decided to put a border between parts of their own territory. Now they are recognising, quite rightly, that they got it wrong and it is not working. As the Prime Minister said at Second Reading:

“The reason why I am putting the Bill forward is that I am a patriot, and I am a democrat. Our No. 1 priority is protecting peace and political stability in Northern Ireland and protecting the Belfast … agreement.”—[Official Report, Commons, 27/6/22; col. 45.]


We have heard much today about the Belfast agreement, but a great deal of it is a bit hypocritical. We constantly hear about protecting it in all its aspects and all its parts, but somehow the part whereby the principle of consent is supposed to protect the constitutional status of Northern Ireland within the United Kingdom is not mentioned by many. Where is the concern about those parts of the agreement when the protocol subjugates the Act of Union—not my words but those of the High Court judge in Belfast—which is the very constitutional basis of the United Kingdom, or when the protocol consent vote expressly disapplies cross-community consent in order to deprive the unionist community of that protection?

When many in your Lordships’ House and elsewhere talk about protecting the Belfast agreement, it seems to mean that they are concentrating on protecting the north-south aspect of it and the nationalist interests within it, yet the citizens in Northern Ireland, who put up with over 30 years of terrorists and everything that was put upon them because of their loyalty to the UK, seem to be ignored. How do we repay them for that loyalty? We do so by abandoning Northern Ireland and leaving it in the European Union single market.

Now, when the Government at long last bring forward a Bill to correct that historic and shameful injustice, we have Peers here in this House who want to torpedo it. They use the language of “pause”, which sounds much better than “torpedo”, but I ask those Peers: whose side are you on? We are Peers in the British Houses of Parliament who are here to represent our national interest, yet some seem to want to represent only the interests of the European Union.

This Bill finally gave hope to people in Northern Ireland, but unionists generally are not naive. We have been sold out before; we do not forget how our Government defended the subjugation of the Act of Union in court while at the same time saying publicly that they would fix the injustice. When we get to the Supreme Court in November, it will be very interesting to see if His Majesty’s Government take a very different view.

What other country would abandon sovereignty over a piece of its territory in this way? Have the Bill’s opponents no sense of patriotism or any care for national interest? Would Zelensky agree such a deal for the Donbass—ironically, described as the “Ulster of Ukraine”? I speak with anger today because I believe that you all need to understand what a grave injustice has been perpetrated on your fellow British citizens in Northern Ireland, and whether you like it or not, efforts to stop this Bill constitute taking a side; it is lining up with the European Union and the Irish Government, an Irish Government who stand up proudly for their nationalist community in Northern Ireland but demand that the British Government be neutral. It is betraying the British people that live there who have the fundamental right to equal citizenship.

I was ashamed when Parliament passed the grave injustice of the protocol. The only thing that will top that is sitting here, watching Peers wanting actively to try to keep Northern Ireland in captivity by preventing the progress of this Bill, which does nothing other than seek to restore Northern Ireland’s place in the United Kingdom. On the breaking of international law—I think the noble Lord, Lord Bew, dealt with that brilliantly—while I accept the Attorney-General’s view, I care more about the fundamental constitutional law of the United Kingdom. After 300 hours of negotiations already, does anyone think that the EU will change its views if this House delays this Bill? It will not even widen Šefčovič’s mandate. I believe that it will be helping to put an end to power sharing in Northern Ireland possibly for ever. No self-respecting unionist will return to Stormont until the protocol is removed. As for those who are attacking the DUP, I look to see whether they attacked Sinn Féin when it took Parliament down in Stormont for three years.

Already we have no north-south ministerial councils, no Executive and no Assembly. How can anyone argue that the protocol is not a threat to the Belfast agreement? Please remember that when you vote tonight.

I finish by paraphrasing one of the greatest men to sit in our Parliament, Sir Edward Carson: “There are none so loathsome as those who will sell their friends for the purposes of conciliating their enemies.” Sadly, that is true just as much today as it was over 100 years ago.

Northern Ireland Protocol Bill

Baroness Hoey Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, in any negotiation, parties will consider their position as discussions continue. What I have sought to do is provide an update to your Lordships’ House of the current position. I think the current trajectory of the talks, discussions and engagement is positive. As I have already highlighted, I will certainly seek—under the conditions of the discussions, with the sensitivities of many of these negotiations—to update your Lordships’ House accordingly.

[Baroness Hoey (Non-Afl)]

I appreciate that there cannot be day-to-day updates on negotiations; that would be nonsense. I also do not agree with the noble Lord, Lord Cormack, that we should spend the day having briefings; that, I think, is another pointless way of simply delaying. Can the Minister confirm something important—a big issue but easily answered: that at this stage the negotiating mandate of Šefčovič has not changed?

[Lord Ahmad of Wimbledon (Con)]

The noble Baroness is right. The point of contention for us in any discussion has remained the ability to amend the protocol itself; that remains a key point. In all of these areas, as the discussions earlier have indicated, there are ways and means through. Of course, people will state their negotiating positions at the start and there are discussions to be had. What is clear to us is that the reason for the Bill, as well as for the good faith in which we continue to negotiate, is to find the desired outcome, which works for all communities in Northern Ireland and, importantly, addresses specifically some of the issues—including the east-west issue, which has been talked about quite extensively during Second Reading and in other debates.

I now turn to Amendment 6 in the name of the noble Baroness, Lady Chapman. The Bill is designed to bring swift solutions to the issues that the protocol has created in Northern Ireland. These solutions are underpinned by the designation of elements of the protocol as excluded provision. This is a domestic legal action to reflect the operation on the international plane of the UK’s assertion of the application of the doctrine of necessity, which was referred to earlier in relation to relevant parts of the protocol. Put simply, it is by excluding some elements of the protocol and withdrawal agreement in domestic law that the Bill is able to introduce, with necessary clarity and certainty for users, the changes to the law that are needed in Northern Ireland.

These amendments, through the conditions they impose, would undermine the ability to exclude elements of the protocol and, therefore, undermine the entire operation of the Bill. The first condition, in particular, that provision is excluded only if the EU and the UK agree to that, is, frankly, unworkable. While we are engaging in constructive dialogue with the EU to find solutions to these problems, it is surely quite evident that, if the EU were currently amenable to the full provisions of the Bill, we would already have agreed them; of course, that is not the position.

The second condition—that provision is excluded only if necessary as part of an Article 16 safeguard—also fails to meet the needs of the situation. Article 16 has inherent limitations in its scope. While the Government reserve their position in relation to Article 16—again, a point raised earlier in the debate—there would be a different action on the international plane to the operation of the doctrine of necessity. In sum, these amendments would in our view undermine the co-operation in the Bill, preventing it from delivering the solutions desired in Northern Ireland, which it is intended to provide.

On Amendments 3 and 67, in the names of the noble Lord, Lord Purvis, and the noble Baroness, Lady Ludford—

Northern Ireland Protocol Bill

Baroness Hoey Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

I put it to my noble and learned friend the Advocate-General that if, as he argued earlier, particularly in response to the noble Lord, Lord Purvis, it is the case that the protocol is not being applied and implemented as was intended, then the doctrine of necessity is not the appropriate legal base—it has to be Article 16. With those few remarks, I ask that Clauses 1, 2 and 3 do not stand part of the Bill.

[Baroness Hoey (Non-Afl)]

My Lords, I oppose the removal of Clauses 1, 2 and 3 from the Bill. We had a long debate earlier this evening in which the word “delay” was used a number of times: we needed to delay, be more careful, reflect and consider. However, removing these three clauses, as proposed in the name of a number of noble Lords, shows that this is a wrecking proposal. Those Members and many others in the House do not want to see this Bill go forward. The purpose is to rip out the very heart of the Bill. If they are removed, we may as well all go home.

There are two problems with the protocol that are important. One of these, the way that the United Kingdom is affected, has been mentioned a lot this evening. I know that the noble Lord, Lord Dodds of Duncairn, mentioned this earlier, but those who oppose these clauses, and Clause 3 in particular—the noble Baronesses, Lady McIntosh of Pickering and Lady Chapman of Darlington, the noble Lord, Lord Purvis of Tweed, and the noble and learned Lord, Lord Judge—all got a letter from McBurney Transport Group, a big transport group in Northern Ireland. I hope that they read the letter and will respond. More importantly, I hope that they will listen to what was said in the letter about visiting Northern Ireland, meeting McBurney and finding out about the practical implications for a business such as that, which really understands the moving of goods back and forth. The letter said very clearly that implications would flow from the amendments they have tabled, especially their joint proposal that Clauses 2 and 3 be removed from the Bill, which would render it inoperable. The removal of these two clauses would have a particularly devastating impact on Northern Ireland.

There are all sorts of examples of how the protocol is affecting business. I am not intending to go into any more on that now. We have a lot of very eminent lawyers in this House, making very strong legal speeches. I sometimes wonder just how many people back home in Northern Ireland, sitting in the streets of east Belfast or up the Shankill Road, really feel that people in this House understand the effects of the protocol on them as a community, as a country and as individuals.

For me, the important thing about the protocol, and the second reason why I hope these clauses are not removed, is that the Irish Sea border checks are only a symptom of the core constitutional incompatibility of the protocol—the way that Northern Ireland is left subject to EU law and under the jurisdiction of the European court. This has been said over and over again. For those Peers who think it is just a matter of technical changes, and that negotiations will lead to a green line or a red line or that all these different things will happen, that will not change a single person in Northern Ireland who opposes the protocol because it has fundamentally changed how they feel and how, obviously, His Majesty’s Government feel about the status of Northern Ireland.

All the Bill is doing is trying to restore the balance that the Belfast/Good Friday agreement gave, which has been broken. It is also there to protect peace in Northern Ireland. Somehow, out of this misplaced loyalty, which we have heard again tonight, of the EU always being right and the British Government always being wrong, we are finding that people want to remove these clauses really to make the Bill not worth going forward with. I urge everyone in the Committee to think carefully about what they are doing.

We have heard a lot of very true things tonight about how sad we are at the death of Lady Blood last week and about the contributions she made to Northern Ireland. I remind noble Lords of Lord Trimble, who also recently died, and his contribution to Northern Ireland and to this place. He was Nobel Peace Prize winner. He sounded warnings when he said that the protocol is a potent threat to peace and stability in Northern Ireland. It must be removed as a matter of urgency.

We would all love to see negotiations work, of course we would, but as the Minister said earlier, Mr Šefčovič’s mandate has not changed one single bit in all these months. I genuinely do not believe that we are going to get very far with negotiations. Yes, we have a new Prime Minister and new people, and I am glad that the Foreign Secretary stayed the same, and I hope those negotiations will speed up and will get some movement. But we have to have security, and people in Northern Ireland need to know that the Government are prepared to act for the citizens of the United Kingdom and that they come first.

I hope that noble Lords will reflect before we get to Report and listen to what people in Northern Ireland are saying, particularly to those who understand just how easily peace in Northern Ireland can be threatened. We do not want that to happen.

Northern Ireland Protocol Bill

Baroness Hoey Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I keep hoping that the noble Lord, Lord Cormack, will say something with which I can disagree—but he keeps on letting me down. I strongly support Amendment 20, of course, for the obvious reasons that I need not repeat. I also support Amendment 21B, put forward by the noble Lord, Lord Hain, and strongly supported by the noble Lord, Lord Deben.

I ought to declare an ex-interest. I used to be a director of a power company and, if I remember right, Northern Ireland is a net importer of electricity but a large net exporter to the Republic. The trade with the Republic is less than the trade that comes in from Scotland on the interconnector. It follows that, if the Bill goes through in the form it is in now, unamended by the noble Lord, Lord Hain, the collapse of the common electricity market will do very grave damage to the Republic as well as to Northern Ireland. For Northern Ireland, it is important for security of supply and to keep costs down; in the Republic, it is much more important because the Republic is a net importer; it is very short of generating capacity.

So I say to the Minister that I really hope he will buy Amendment 21B from the noble Lord, Lord Hain —I cannot see any reason why he should not. If he does not buy it, would the Government please produce before Report a clear statement of the discussions they will by then have had, if they have not already had them, with the Government in Dublin about how the crisis that this would create for the Government in Dublin is to be avoided or mitigated.

I will also add a word on the very important point made by the noble Earl, Lord Kinnoull. He made it very gently. There is no doubt that the European Union means what it says when it says that, if we put this Bill in its present form on our statute book, the TCA bets are off. We are heading for a trade war if we do this. I hope the DUP will bear that point in mind because, although the trade war would be acutely damaging to the whole United Kingdom, it would do particular damage to the economy of Northern Ireland.

[Baroness Hoey (Non-Afl)]

I understand what the noble Lord is saying—that the European Union would likely invoke some kind of trade war—but does he understand that, for many people in Northern Ireland, this Bill is the only thing that is giving them some hope that there will be real change? A trade war is very worrying, but there are also very worrying signs in Northern Ireland of deep unrest, concern and instability. That is why the suggestion from the noble Lord, Lord Cormack, that we should get rid of this Bill would be deeply damaging to relations in Northern Ireland.

[Lord Kerr of Kinlochard (CB)]

With great respect to the noble Baroness, that is not what the public opinion polls are telling us. At present, they seem to be telling us that what a majority of people in Northern Ireland, and a great majority of younger people in Northern Ireland, are looking for is certainty, and they are reasonably content with the protocol.

[Baroness Hoey (Non-Afl)]

The opinion polls told us that remain was going to win the referendum—they were very wrong.

Northern Ireland Protocol Bill

Baroness Hoey Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Lord. I take the point that he made about Clause 22(6). As a Member of the Northern Ireland Assembly for many years, I know how much Members of the Assembly value their right to make laws in the areas that are devolved to it. However, I must say gently to your Lordships that, in recent times, there have been a number of examples of this House and the other place interfering in the devolved settlement in Northern Ireland. Although some of us have pointed that out, it has been with your Lordships’ positive assent and approval that the overriding of the devolved settlement in Northern Ireland has taken place in a number of areas. I would like to see a consistent approach to the devolved settlement in Northern Ireland, not this pick-and-choose approach where something being okay appears to depend on the issue of the day but, if you do not like what the Assembly has done, you can interfere—as seems to have happened on a number of recent occasions in this Parliament.

I want to highlight Clause 22(3). On the face of it, it appears—I am open to correction by those who are much more learned and have more legal expertise in these matters than me—to put some kind of restriction on the wide Henry VIII powers that are given under this particular clause. The one thing that it is apparently not possible for regulations under the Bill to do is

“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland which feature at the border … physical infrastructure (including border posts), or … checks and controls, which did not exist before exit day.”

Having listened to the debate, I think that may well be able to be swept aside at any point. However, why is emphasis put on the one thing that is mentioned? I look to the Government Front Bench as to why it is mentioned, given that it really has no effect. Of course, we do not want any extra infrastructure at the border between Northern Ireland and the Irish Republic and it has never been the desire or wish of anyone in the Northern Ireland political parties, or the Irish Government, the British Government or the EU, to have such infrastructure. But it would be quite helpful and an acknowledgement of unionist concerns if there were a similar provision which acknowledged—under strand 2, the north-south approach in the Belfast agreement and the importance of that relationship, but also strand 3, the east-west dimension—that regulations may not create or facilitate border arrangements between Northern Ireland and the rest of the United Kingdom.

[Baroness Hoey (Non-Afl)]

I am following the noble Lord closely on this point. Does he realise that today Maroš Šefčovič talked about the need for fewer border checks and, in fact, that they could be invisible on the Irish Sea border. Does the noble Lord agree that if they can be invisible on the Irish Sea border, they can be invisible at the frontier, where of course checks should happen between one country and another independent country?

[Lord Dodds of Duncairn (DUP)]

Of course. It appears that things may have moved on, because once all these ideas were dismissed as completely fanciful. Indeed, “unicorns” were brought into play and all sorts of dismissive language was used. I am glad that now there is at least an acknowledgement that some of these checks can be done in the way that the noble Baroness has described Maroš Šefčovič as talking about.

The important point here is that we have been told throughout the Brexit process that there cannot be a single check or single piece of infrastructure on the Irish border because otherwise that will lead to violence—it will be attacked and that will undermine the Belfast agreement—without anyone, hardly, making the obvious point that, if that is unacceptable north-south, then it is doubly unacceptable between Northern Ireland and the rest of the United Kingdom. What does that say to the unionist population?

One of the reasons we have the alienation of people in Northern Ireland is the one-sided approach and interpretation of the Belfast agreement. I would just like an explanation. Whatever its actual import or ability to be enforced, or the fact that it can be superseded by a ministerial direction, why do the Government highlight that issue and not the fact that the reason why we have such a problem in Northern Ireland with the political institutions is that we have this similar kind of infrastructure and checks between one part of the United Kingdom and the other?

On the point that has been raised very powerfully by noble Lords on the legal issue, I fully understand why they take the position they do and, as has been said, it has been raised in relation to other Bills and Acts. I would love to see the same outrage and anger expressed more widely; it may well have been during the passage of the then Bill, before my time in your Lordships’ House.

You can imagine therefore that if there is such outrage about powers being given by Parliament to the Executive and UK Ministers, how citizens of Northern Ireland—British citizens, fully part of the United Kingdom—feel about powers being not just taken from Parliament and given to Ministers but given to foreign officials of the European Commission to propose law. They are totally unaccountable to anyone in the United Kingdom. They do not have to answer to anyone or answer any questions. There is no parliamentary process whatever within the United Kingdom that can even challenge the directives and regulations that cover 300 areas of law affecting the economy of Northern Ireland. Therefore, while accepting entirely the points made about delegated legislation and Henry VIII powers, I would like to see reflected some of the same concerns about how we in Northern Ireland feel about the way that laws are now made by a foreign polity in its own interest. It is not in our interest; it is made in its own interest.

The Bill is part of an effort to try to remedy that problem. People have said we will have negotiations. But given that we have already had communicated to us that the EU is not open at this stage to changing the mandate of its main negotiator, certainly, how else are we going to get to a situation where that outrageous situation in Northern Ireland is remedied?

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Moved by

[Baroness Hoey]

45: Clause 22, page 11, line 16, at end insert “, but may not amend, repeal, or create an incompatibility with, the Act of Union (Ireland) 1800 or the Union with Ireland Act 1800.”
Member’s explanatory statement
This amendment prevents a Minister of the Crown making provision by regulation which has the effect of repealing, subordinating or otherwise interfering with the United Kingdom’s foundational constitutional statutory framework.

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[Baroness Hoey (Non-Afl)]

My Lords, in moving this amendment I will also, in some detail—I apologise, but I have not spoken very much in Committee—make a constitutional plea to the Government on behalf of British citizens in Northern Ireland.

This amendment is very simple. It seeks to remedy an important gap at the heart of the Bill. I believe the Bill is good. It creates the framework for a fair and balanced solution and, if the powers it confers are used appropriately, will restore Northern Ireland’s place within the union. Clause 1(c) is clear that one of the Bill’s primary purposes is to remedy the present subjugation of the Union with Ireland Act 1800 and the Act of Union (Ireland) 1800, which together are known as the Acts of Union.

The Prime Minister before the previous Prime Minister, speaking in the House of Commons, claimed that the withdrawal Act was not intended to affect the Acts of Union, yet a few months later senior counsel, on behalf of the then Government, went to court in our protocol case in Belfast and argued exactly the opposite. As the late Lord Trimble simply put it:

“The Act of Union is the union.”


That is undeniably true. In Halsbury’s Laws, the Acts of Union are described as

“the statutory warrant for the continued incorporation of Northern Ireland with the United Kingdom”.

The High Court and Court of Appeal in Northern Ireland have been clear—we should not really need a court to tell us this—that the Acts of Union remain in force and together have the status of constitutional statutes.

There has been some commentary suggesting that the Acts of Union were somehow repealed or overridden by the Government of Ireland Act 1920 or later statutory provisions, but that is simply not so. The 1920 Act simply made provision for separate devolved arrangements in two parts of Ireland, each of which remained fully part of the United Kingdom and subject to the United Kingdom Parliament. There was and is nothing in the Acts of Union to prevent the creation of subordinate legislatures, provided that the King in Parliament remains sovereign.

Section 1(2) of the Irish Free State (Agreement) Act 1922 provided that the southern parliament be dissolved, and the Irish Free State (Consequential Provisions) Act 1922 provided that the 1920 Act no longer had effect beyond Northern Ireland. This has the effect of a non-textual amendment to Section 75 of the 1920 Act, maintaining the untrammelled authority of Parliament over Northern Ireland. In consequence, southern Ireland no longer remained within the UK but Northern Ireland did, and therefore remained firmly under the constitutional protections of the Acts of Union. These legislative events in 1922 at most altered the territorial extent of the Acts of Union but did not alter the fundamental constitutional foundation of the union itself.

Here is the simple question I pose to noble Lords. Article 3 of the Acts of Union creates our Parliament, and Article 6 prescribes the economic constitutional framework—essentially, the UK internal market. Could a majority in Parliament constitutionally abolish Parliament, and thus our democratic constitutional system itself, and in its place usher in new authoritarian arrangements? If noble Lords think not, because Parliament is a constitutional fundamental, then that constitutional fundamental is derived from Article 3 of the Acts of Union. If Article 3 of the Acts of Union is a constitutional fundamental, as a matter of simple logic there is no reason to give some lesser status to Article 6. Why should one receive greater constitutional deference or protection than the other?

In our largely unwritten constitution, something may be unconstitutional—that is, offensive to or subversive of our constitutional order—without being necessarily unlawful. Our constitution, however, is entrusted primarily to us and our colleagues in another place. We are here as guardians of the constitutional arrangements of the United Kingdom as much as we must be guardians of the rule of law. But if a law, even one made by Parliament, is unconstitutional, it is our duty to stand against that in discharge of our functions in this House. In my view and that of many others, Section 7A of the European Union (Withdrawal) Act 2018, which brings the protocol into domestic law, is unconstitutional, given that its effect is the subjugation of the Acts of Union and thus the fundamental constitutional basis of the union itself.

While this Bill may well conflict with international obligations under the protocol—although I think that Article 16 of the protocol itself makes any such claim doubtful—any such obligations must yield for two reasons. The first is the doctrine of necessity, which has been set out by the Government and dealt with expertly by many Members of this House, including the noble Lord, Lord Bew. I need not repeat those contributions but, in so far as I have heard them relate to international law, I support them.

The second, which I think needs to be gone into a little more fully, is that the protocol subjugates the fundamental constitutional foundation of the United Kingdom. The Government have an overriding constitutional obligation to remedy that and, if that requires acting against a previous treaty, so be it. The Bill as it stands would remedy the present breach of the Acts of Union if Clause 4 were brought into force via commencement order. However, there still seems to be a hole. Although the Bill, in line with its intent in Clause 1, would remedy the present breach of the Acts of Union by removing the most offensive elements of Article 5 of the protocol from having effect in domestic law, it does not prevent a Minister of a Crown using the Henry VIII powers that we have heard so much about to replace the current arrangements with new arrangements that would again breach the Acts of Union. The superficially attractive answer to that point is to say that Parliament could legislate again to subjugate the Acts of Union if it so wished. As a matter of parliamentary sovereignty, it could—notwithstanding the validity of my point around how it is constitutionally improper.

The distinction here is that Parliament, with all the checks and balances, could do it or try to do it. As it stands, Clause 22 permits—or, to put it another way, does not prevent—a Minister of the Crown by regulation to alter the foundational constitutional arrangements of the United Kingdom. If it were to stand, it would mean that a Minister of the Crown, in exercising powers as specified in Clause 22, could again subjugate the Acts of Union and thus act in a manner contrary to what is, superficially at least, a fundamental aim of the Bill, which is to restore the Acts of Union.

It is notable that Clause 22 prevents a Minister of the Crown doing anything by regulation that would create a north/south border. This inherent imbalance, which my amendment seeks to remedy, once again eliminates the entirely one-sided nature of the so-called “peace process” in Northern Ireland. A Minister of the Crown, as we heard from the noble Lord, Lord Dodds, earlier, is prohibited in exercise of these powers from doing anything to facilitate or create a land border where it should be, but there is no such constraint on creating a border in our own country and subjugating the Acts of Union. That simply is an absurdity. I know that the Minister could not really give a reason why this had not gone in but I trust—being very naive, perhaps—that it was simply an oversight on the part of the drafters.

There is no reason why the Government could not adopt this amendment. In answer to a question posed in the House of Commons by Sir Jeffrey Donaldson MP, the then Secretary of State—the previous Secretary of State, not the current Secretary of State; it gets a bit confusing—gave an assurance that the exercise of powers under the Bill would have to be in a manner compatible with the Acts of Union. He made that assurance in the House. If that assurance, given to Parliament, is to be worth while, why would the Government not give effect to it by way of a straightforward clause in this Bill?

I therefore ask again for clarity from the Government. I know the Minister may well need to go back and discuss whether they will perhaps be able to adopt this amendment, so I do not expect an answer right now, but I do pose a question—and, if possible, I would like a response in the wind-up—about the commitment made by Brandon Lewis MP. Is the Minister willing to reaffirm to this House that any new arrangements to be made by regulation will have to be compatible with the Acts of Union?

This is fundamental. If the Government cannot do so, they will be saying to pro-union people, who the Conservative Government continue to urge to trust them, that the promises made to them about the restoration of the Acts of Union are in fact hollow and that once again they may well be being tricked. There seems to be little point in remedying the Acts of Union breach via the commencement of the relevant provision in this Bill and then replacing that which has been removed with another breach of the Acts of Union. It brings us back to the same place, because no self-respecting unionist will support arrangements which occasion a breach of the Acts of Union.

The fundamental issue for unionists—the clue is in the name—is that the Acts of Union must be restored, and the Acts of Union require equal footing in matters of trade. Let us be clear: the restoration means an end of EU law applying in Northern Ireland. If it continues to apply in Northern Ireland but not in the rest of the United Kingdom then the Acts of Union are breached. A breach of the Acts of Union is also a breach of the principle of consent because it fundamentally alters the constitutional position of Northern Ireland within the union.

That brings me to another pertinent point. Last week, after a lot of procrastination, the Northern Ireland Office ruled out lawmaking powers over Northern Ireland for Dublin. It did so correctly, on the basis that this would breach the principle of consent. Can the Government therefore explain how they reconcile the plainly correct position that lawmaking powers being handed to Dublin would breach the principle of consent with their continued entirely illogical claim that handing lawmaking and judicial powers to Brussels does not? What, tell me, is the difference between Brussels exercising lawmaking powers over Northern Ireland and Dublin doing the same? In truth, I do not think that there is any coherent answer to that.

This amendment would offer protection to the fundamental constitutional basis of the United Kingdom. We do not want any more trickery, clever footwork or compromising that ends up with Northern Ireland’s constitutional position not absolutely restored—not just in the present but protected in the future—to being an integral part of the United Kingdom. Amending Clause 22 would provide some measure of constitutional safeguard, which I am afraid is necessary. A little under two months ago, the Government again went before the court in Northern Ireland and argued that the territorial extent of the United Kingdom should be interpreted as meaning only Great Britain, with Northern Ireland instead treated as part of the EU’s territory. That was the Government’s case. Noble Lords can see why so many pro-union citizens in Northern Ireland have voted in huge numbers to give the DUP the mandate to take nothing on trust. I am really sad to say that this Government are increasingly losing the trust of those who cherish the union.

Over the years, unionists and loyalists in Northern Ireland have been betrayed by Conservative and Labour Governments, again and again. They had courage in times of war, fighting for the UK, and through 40 years of terrible terrorism, and their loyalty has been rewarded by being treated like second-class citizens, with constant appeasement to the Irish Government and those who are dedicated to destroying the union and the very birthright of unionists to live as equal citizens under the protection of His Majesty’s Government. They were betrayed during the home rule crisis, betrayed after the First World War and betrayed in 1985, and, sadly, many in Northern Ireland now feel that, even in the 1998 agreement, the unionist community was deceived. That is partly why many of us are determined to get rid of those injustices and ensure that what was promised by the sovereign Government of this country to its British citizens in Northern Ireland is upheld.

Of course, the final betrayal was the Northern Ireland protocol. It was said that no British Prime Minister could allow a border in the Irish Sea—and yet we saw what happened. When such a border was put there, subjugating Northern Ireland and its citizens, it was an historic wrong. There is no justifying or explaining it. It plunged a knife into the back of British citizens in Northern Ireland, the part of the United Kingdom which I call my home. The historical record will show those who stood up for our country, the United Kingdom, and those who stood with the EU and a foreign Irish Government.

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In response to the noble Baroness’s final point about taking these issues seriously, I assure her that we are. That is why we brought forward this legislation in the first place to enable us to fix the elements of the protocol that are not working, to facilitate a return to functioning devolved government in Northern Ireland and to protect the Belfast agreement in all its forms. On that basis, I ask her to withdraw her amendment.

[Baroness Hoey (Non-Afl)]

My Lords, I thank the Minister for his response, and particularly for his reassertion of the United Kingdom Government’s commitment to the union and to Northern Ireland’s integral place within the union. I do not accept his reason for not accepting this amendment. I will look at what he said and I hope he will reflect between now and Report.

I thank noble Lords who spoke. The noble Lords, Lord Bew and Lord Dodds, both gave a very serious warning about the situation in Northern Ireland. The comment of the noble Lord, Lord Bew, that this is no small matter is something we should all reflect on. I am actually very pleased that the noble Lord, Lord Purvis, did not speak. I will take that as a sign, and hope that the Lib Dems will support this when it comes to Report. But I do not assume the same about the noble Lord, Lord Kerr, who also did not speak on this amendment.

Seriously, this is an important issue and it is not going to go away. I hope that, at this stage, we have given everyone a bit of thinking to do before Report. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

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[Lord Purvis of Tweed (LD)]

My Lords, I think the noble Baroness, Lady Hoey, brought about some cross-community consensus earlier when she said that she was glad that I had not spoken. As I am trying to ingratiate myself with all colleagues, it may assist if I speak to the last two groups together, if that is acceptable to the Minister and the Committee, just for efficiency’s sake.

I found it curious earlier when the Minister said that he rejected an earlier amendment because it might give the impression that agreement was in reach and talks would go on. That does seem to be the Government’s approach and, at some stage, we will need much greater clarity about not only the status of the talks—or negotiations, as the noble Lord, Lord Murphy, indicated —but what they are about. We know what the mandate of the EU is, but we still do not know what the position of the UK is. The purpose of Amendment 72 is to indicate that, before any regulations come into force, we would need to know exactly what is likely to be agreed.

Amendment 73, the final amendment in Committee, relates to the points that were very well made by the noble Baroness, Lady Chapman, regarding the fact that there will be a stage when we need to see the regulations, and I need not rehearse that argument again. We cannot do our job without seeing drafts or indications before Report, and it really should be impossible to commence the legislation unless we have seen the regulations. That is the purpose behind Amendment 73, but I beg to move Amendment 72.

[Baroness Hoey (Non-Afl)]

My Lords, I want to make it very clear to the noble Lord, Lord Purvis, that I love listening to him speak and I have no aspersions against him whatever. I was just pleased that perhaps he felt that my amendment was worth considering enough to not contribute.

On this, I know it is extremely difficult for the Minister to do so, but could he give us some idea of how long he visualises—he is smiling, so I think he knows what I am going to ask—the negotiations going on before someone actually says that this is not going to work? One of the reasons I am very keen to get this Bill through as quickly as possible is so that we have it there as a safeguard. It would be helpful to know if there are any discussions going on behind the scenes on timing and just how long we can keep negotiating if we are not getting anywhere.

[Lord Dodds of Duncairn (DUP)]

My Lords, I commend the noble Lord, Lord Purvis of Tweed, because I think I heard him say earlier that he returned from Buenos Aires this morning and then went straight into this debate on the Northern Ireland protocol. It is very appropriate that he is the proposer of the last two amendments. I commend him on his stamina. I agree with the idea that regulations should be published as quickly as possible.