Protocol on Ireland/Northern Ireland (EUC Report)

Lord Moylan Excerpts

Monday 13th September 2021 Grand Committee

[Lord Moylan (Con)]

It is a pleasure to rise in the wake of the speech by the noble Baroness, Lady Ritchie of Downpatrick. I want to make a small preliminary remark, which is that, although I count myself as a unionist in the general terms of supporting the United Kingdom, I am not and never have been connected with the unionist tradition in Northern Ireland. In fact, before I entered your Lordships’ House, I do not think I had met a unionist politician from Northern Ireland, with the exception of one meeting with the former First Minister, Peter Robinson, and even then, he was judiciously balanced by his deputy, Martin McGuinness. That is the extent of my connection with the unionist tradition.

I make that point because the points I want to focus on today in the time allotted are ones that I regard as having constitutional and democratic significance for every part of Northern Ireland and every person there, irrespective of which community they belong to and whether they belong to any community at all. In my doing so, it may be thought that I am making some remarks about the report of the committee which are less than wholly obliging. If that is the case, let me assure noble Lords that it is not meant to detract from the report as a whole, which I found extremely valuable, informative and useful, and I have learnt much both from the report and in sitting in this debate. I can say that without hurt to anyone since I appear to be the last Back-Bench speaker.

Let me come to my three points. First, there is a tone throughout the second, more recent report of a parity of treatment of the two parties to the Northern Ireland protocol, the British Government and the European Union, and that, in so far as the mechanisms are not working, blame can be equably distributed in a sort of Olympian fashion between the two. This is a huge mistake. While it may be perfectly true that, looked at purely from the point of view of the Northern Ireland protocol, the two parties have entered it as sovereign equals, the responsibilities of the British Government in Northern Ireland go way beyond simply the management of trade and a trade border in a way that is simply not true of the European Union. It is the British Government, working with the devolved Administration when appropriate under the devolution settlement, who are responsible for housing people, for their health, for their transport, for their connectivity and, crucially, for their safety and security. Those responsibilities are not shared by the European Union and they place a different burden on the British Government as they approach and interpret the protocol.

His Excellency the EU ambassador is quoted in the report as saying that the EU has

“an economic, diplomatic and even an emotional and financial commitment to Northern Ireland”.

That is all very well, but that is not to share in the responsibility for the government of Northern Ireland and the accountability to the world at large and to the democratic world at large for how the country is conducted. That should be recognised. In my own case, that would lead me to cut the British Government a bit more slack in this Olympian allocation of blame between the two parties. The pressures and demands on them are so very much greater.

Secondly, as referred to in the report and explicitly referred to by the noble Baroness, Lady Suttie, the fact is that a significant constitutional change in Northern Ireland has been imposed. I know that the Northern Ireland protocol, in paragraph 1, page 1, or something—really early—says that it represents no change from the constitutional position of Northern Ireland. I have always thought, however, that that is a little bit like the burglar leaving a note saying that he has not actually burgled you. It reads well, but it bears no relation to the facts. The fact is that there has been a very significant constitutional change and it is one that clashes with the Good Friday agreement. We have seen, for example, that the vote that is to take place in the Northern Ireland Assembly has required legislation since the protocol was put in place in order to change the Good Friday agreement so that the vote can take place on the basis that the protocol agreed.

That seems to leave us in no doubt that, whereas the pre-eminent constitutional document under which Northern Ireland was governed until recently was the Good Friday agreement, it now seems that, without that being abrogated or abolished, none the less the pre-eminent document that now governs it is the Northern Ireland protocol. Nobody in Northern Ireland has been asked about this. The riposte that people in Northern Ireland voted by a majority of 55% to stay in the European Union just does not cut it, because people were not asked should Northern Ireland stay in the European Union. In fact, that would have been to ask a question that invited a major contravention of European Union law, because the European Union does not admit bits of states to membership, only whole states. The question asked was whether the United Kingdom should leave or stay, and the answer was not necessarily what the people of Northern Ireland wanted, but the outcome was clear by a majority vote. It was a vote for the status quo; I think we can all agree on that. And I think we can all agree that what they have got in return is not the status quo. That is why I think that argument simply fails.

This deserves more prominence. If we were talking about a change in Government and a change in constitutional status for another country, there would be many people in your Lordships’ House who, quite understandably, would say that such a change would require the consent of the people involved. That has not been achieved. After all, we offer referendums for much lesser matters than this. The people of London were offered a referendum, in which they voted yes, in order for the introduction of the Greater London Authority. That is merely, if I may say so—even though I had some involvement with the Greater London Authority—a modest constitutional change compared with what has happened in Northern Ireland, yet the people of London were consulted and asked. This is the sort of thing that should be high on the committee’s agenda and something that the Government, if I may say to my noble friend the Minister, should be much more voluble about. However implicated they may be in it, it simply is not right.

My third point, which is also mentioned in the report—I trespass on dangerous ground for me because I am not a lawyer—is the reference to Article 3 of the first protocol to the European Convention on Human Rights, which of course guarantees as a human right, without any qualification on the face of the convention that I can see, the right to a regular, secret vote for a legislature. That is presumably the legislature that is making your laws, as opposed to a different legislature. That is implicit, and I think we can all agree on that.

A judge in Northern Ireland has decided that the current situation does not breach that convention right. I understand this is subject to appeal, but I will not go further into the legalities of that. My reading of the judgment was that he did not actually dispute the facts, but felt that there were circumstances justifying departure from the application of the right, but I am not a lawyer and will be careful what I read into that.

I will make a slightly different point. Even if it turned out that the current situation—in which amendments to the existing legal framework can be made without any say by the people of Northern Ireland in laws that they are obliged to live under—was compliant with the convention, is that what we would want in Britain? Would the rest of the world welcome that? My noble friend Lord Hannan of Kingsclere disappointed me slightly when he said that these are difficult issues. They are not difficult: the response to a lack of democracy in a democratic state is democracy. We should start to address that.

I would like to see these issues brought more to the fore in the discussion. They affect the entire community and we would expect other countries to address them and put them at the forefront, if we were talking about them. We owe it to the people of Northern Ireland and ourselves to do the same when discussing their affairs.