Northern Ireland Protocol Bill

Baroness Suttie Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, Amendment 25 is in my name and that of the noble Baroness, Lady Suttie. The purpose of this amendment is to prevent Ministers using powers in the Bill to make Article 18 of the protocol excluded provision. Article 18 sets out a democratic consent mechanism that provides for votes to be held in the Northern Ireland Assembly on whether Articles 5 to 10 of the protocol can apply to Northern Ireland. We have already had considerable debate tonight, in the previous two sessions and during Second Reading about the issue of democratic consent. My only regret is that at the moment, we do not have the facility of the Assembly, the Executive and the institutions to provide that necessary democracy to the people of Northern Ireland.

Through this amendment I want to ensure that the wishes of people in Northern Ireland will be respected. I would also like to address the issue of the difference between the protocol and the Belfast/Good Friday agreement. There is a variation of the false assertion that the protocol can be sustained only if it enjoys cross-community support in Northern Ireland. While the Good Friday agreement provides for cross-community support on certain key decisions within the devolved competence of the Assembly or Executive, the protocol as an excepted matter is outside that scope and therefore no such requirement arises.

We must not forget that it was the UK Government, along with the EU, who negotiated this. I would like the Minister to explain how democratic consent as prescribed in Article 18 will be protected. I beg to move.

[Baroness Suttie (LD)]

My Lords, I also speak in support of Amendment 25, to which I have added my name. The noble Baroness, Lady Ritchie of Downpatrick, has clearly set out the importance of Article 18 of the protocol in allowing the democratically elected Northern Ireland Assembly to give its consent on whether to continue with the protocol in a vote in 2024. I will not repeat the many powerful arguments that she has used, but it is deeply concerning that Clause 15(2) as drafted provides potentially sweeping powers for a Minister of the Crown to remove this right by regulations. It is worth repeating the view of the Constitution Committee, which set out in its report on the Bill that Clause 15

“undermines the rule of law for the UK Government to invite Parliament to pass legislation in breach of the UK’s international obligations. Enabling ministers to do this through secondary legislation, particularly via the negative resolution procedure, is even less constitutionally acceptable.”

To refer to a discussion on an earlier amendment, I understand the frustration of the constituent of the noble Lord, Lord Browne, with what sounds like procedural issues. However, my noble friend Lord Purvis gave a powerful explanation as to why what seem like procedural niceties really matter, because they make a difference in the end to people’s lives if we get them wrong. It is not true to say that we have ignored them; in fairness, in every single debate I have said that I understood the strength of feeling of the unionist community. I have said that in every single contribution that I have made on this Bill. I understand that it is something that people feel extremely strongly about.

[Lord Browne of Belmont (DUP)]

In fairness to my constituent, I quoted only a very short paragraph. Before that, he went on in quite a lot of detail about what has been discussed here. So, in fairness to my constituent, it was a much fuller letter that we received from him.

[Baroness Suttie (LD)]

I thank the noble Lord for that clarification. However, probably lots of people out there would regard statutory instruments and secondary legislation, and such phrases, as sounding rather technical—but the point that my noble friend was making is that they are important. If we get the laws wrong, they will directly impact on the people of Northern Ireland, who have gone through a difficult situation since the passing of Brexit.

The effect of Amendment 25 would be to safeguard Article 18 of the protocol and allow the democratically elected Northern Ireland Assembly to have its say. I think the noble Lord, Lord Caine, is going to respond, as he is sitting in the middle of the three noble Lords. I would be very interested to hear, for the record, whether he considers that there are circumstances under which he could imagine using the powers granted under Clause 15(2) of this Bill to remove Article 18 of the protocol and remove the right of the Assembly to have that vote in 2024. If that possibility exists, can he imagine that it would ever actually be used?

On a second issue, in an article in June this year, Tony Connelly of RTÉ raised an interesting question about which version of the protocol would be voted on in 2024 by MLAs. Would it be the original EU version of the protocol, or the version as amended by this Bill, if it were to be passed and enacted? It is an interesting question, and I would like to know the Minister’s view on it. Tony Connelly says that those parties that want the protocol to stay

“will have a very strong case to say in 2024 they are being denied a democratic vote that has been mandated by international law.”

[Lord Dodds of Duncairn (DUP)]

I shall just intervene briefly in this interesting debate on the amendment proposed by the noble Baroness, Lady Ritchie. Just to follow on on what the noble Baroness, Lady Suttie, has said about which form of the protocol will be voted on, I do not mean this in a trite or trivial way, but I suspect that, if it were the original form of the protocol, it is unlikely that there would be a meeting of the Assembly to vote on it. That is just the reality. As the noble Lord, Lord Bew, said, it brings us back time and again to the fundamental reasons why this Bill is before your Lordships’ House.

I listened to the noble Baroness, Lady Ritchie, say that the protocol is not subject to cross-community consent because it is a reserved matter and does not fall within the purview of the devolved institution. There are a couple of answers to that; the first one is that the idea that we can dismiss the issue of unionist dissent from the protocol on that technical ground is complete political nonsense. It just will not work. We are in a dire situation politically in Northern Ireland, and to use a technical argument is not going to persuade anyone; it is not a good argument to use.

On the actual position, if we believe that the protocol is a reserved matter, then the decision is for this House and this Parliament. However, the Government, by agreement with the EU, decided that there should be some kind of consent mechanism and a vote in the Northern Ireland Assembly. Then they decided to change the rules of the Belfast agreement and the consent mechanisms within strand 1, the Assembly, having given the decision to that Assembly, by taking away the cross-community element of the vote and saying that it had to be by a majority vote. I have said this before: this is the only single major issue in Northern Ireland that can be decided by a majority vote. Everything else is subject to either cross-community agreement or susceptible to being turned into a cross-community vote by a petition of concern. Why did that happen? In order to prevent unionist dissent from derailing the protocol.

When the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 were debated in Grand Committee on 1 December 2020—the statutory instrument brought in to implement Article 18—the noble Lord, Lord Empey, and the late Lord Trimble were both present and indicated their strong concerns, as architects of the original Belfast agreement, about how this drove a coach and horses through the consent principle of the Belfast agreement. People in Northern Ireland are mystified, continually, by people who stand up and say, “We are protecting the Belfast agreement; this is all about protecting the Belfast agreement”, and then they want to change the rules of the Belfast agreement when it does not suit them. They cannot have it both ways.

The fact is that Article 18 of the protocol is a vote four years after the event, four years after Northern Ireland is brought under the auspices of the protocol, four years after there has been dynamic alignment with EU law and four years after gradual separation between regulations and laws in Great Britain and the rest of the United Kingdom, in Northern Ireland. We will have had four years during which trade continues to diversify and so on, where laws are being made with no say, and then the Northern Ireland Assembly is to be given a vote, but not on a cross-community basis. No one says, “Are unionists happy? Are nationalists happy? Is there an overall majority?”, which is what the cross-community voting mechanism is. No, it is to be a straight majority vote.

All this is obvious to unionists in Northern Ireland. This is why we have the problems we do. Anyone who tries to pretend, without addressing these matters, without fixing these problems, that we are going to get anywhere is living in cloud-cuckoo-land. We are not going to get devolution restored, because unionists—not just the DUP—will not accept it. I respect greatly what the noble Lord, Lord Purvis, has said on the issue of delegated legislation and Henry VIII clauses. I understand all that and the noble Lord, Lord Bew, made that point. He talks about this draconian power to rip up Acts of Parliament and all the rest of it, but the protocol itself allows, in 300 areas, for EU law to rip up statute. It also provides for the addition of annexes to new EU legislation within the scope of the protocol, in addition to the 300 areas where we dynamically align. That can rip up Acts of Parliament.

So, I accept the problems that have been highlighted by some about giving Ministers sweeping powers, but we have to fix the problems that are there. We have to do it, acknowledging that if we do not, there is real damage being done to the Belfast agreement, as amended by the St Andrews agreement. That should be the priority. Articles 1 and 2 of the protocol make it clear that the Belfast agreement, as amended, is the key overriding objective. If people believe in that, then they should be prepared to consider carefully what we are saying, and they should therefore accept the rules of consent within the Northern Ireland Assembly itself. I look to the noble Baroness, Lady Ritchie, to uphold this. It is ironic, given the changes that were made by St Andrews, that somehow there is now a drawing away from that consent principle.

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[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am very grateful, as ever, to the noble Baroness, Lady Ritchie of Downpatrick, for moving Amendment 25. Much to my astonishment, the debate has veered away somewhat from the strict terms of her amendment. However, let me say at the outset, as I have said before, that I very much share the noble Baroness’s frustration at the lack of a sitting and functioning Northern Ireland Executive and Assembly. Of course, one of the motivations behind this legislation is to try to facilitate a situation in which those institutions might be restored. It is sensible that we always go back to why we are doing this and why we are legislating.

I can also sympathise with the intention behind the noble Baroness’s amendment, but the Government’s view is that it is unnecessary. To answer the noble Baroness, Lady Suttie, and I think to some extent the noble Baroness, Lady Chapman of Darlington, the Government have absolutely no intention whatever to use the powers in Clause 15 to alter the operation of the democratic consent mechanism in Article 18.

I appreciate that there are different views on the mechanism itself; they were aired to some extent a few moments ago. They have been debated extensively in this House, and I seem to recall that they even managed to make their way into the debate on the Ministers, elections and petitions of concern Bill at the end of last year and the beginning of this one—so, if my noble friend Lord Dodds of Duncairn will forgive me, I do not really wish to reopen that whole debate again at this late hour of the evening.

To answer the further question from the noble Baroness, the vote in the Assembly will be on Articles 5 to 10 of the protocol.

[Baroness Suttie (LD)]

Is that the protocol as amended, or the original?

[Lord Caine (Con)]

The vote will be on Articles 5 to 10, regardless of any changes in domestic law made by this Bill.

The noble Baroness, Lady Ritchie, will recall that securing the consent mechanism was, in the view of the Government at the time, one of the key measures which paved the way for them to agree to the revised Northern Ireland protocol in the autumn of 2019. It follows therefore that it would make no sense for the Government subsequently to remove what was seen at the time as a key part of the protocol. It is perhaps because this point is so self-evident to the Government that we did not see the need to protect this element of the protocol under Clause 15(1). The clause is not intended to provide an exhaustive list of every single article of the protocol that we do not intend to alter and therefore we have not listed other articles which we have no intention to amend.

For the avoidance of doubt, I can confirm to the noble Baroness that the democratic consent process remains an integral part of the Northern Ireland protocol. The protocol should not, and indeed cannot, continue unless it retains the support of a majority of Members voting in the Northern Ireland Assembly. Again, I hear the points made by my noble friend Lord Dodds of Duncairn in that respect, but I am just setting out the position as it stands.

I hope that this reassures the noble Baronesses, Lady Chapman, Lady Suttie and Lady Ritchie of Downpatrick, that we have no intention of using the powers to alter in any way the mechanism in Article 18.