Northern Ireland

Lord Bew Excerpts

Tuesday 27th February 2024 Lords Chamber

[Lord Bew (CB)]

My Lords, first, I pay tribute to Lord Cormack, as have others in this House. He was a friend of mine. In 2015, I was asked by the then Lord Speaker to chair a Committee of both Houses along with Tristram Hunt, a Member of the other House, on the anniversaries of that year—mainly Magna Carta. It was also the 50th anniversary of Churchill’s death. Lord Cormack was my senior adviser on that committee. He was an enormously well-informed historian, as everybody here knows. He prevented me from making many stupid, callow errors, for which I was really grateful. I extend my sympathies to his family on this very sad day. I will miss Patrick Cormack, as will many others.

I speak in favour of this humble Address. In my opinion, it ends an era of instability in Northern Irish affairs which has existed since the 2017 joint report—an international agreement with the EU, which, for example, had the British Government supporting an island economy on the island of Ireland. It corrects and ends an era of painful instability in Northern Ireland. This had to be done, but it takes time and negotiation is painful. I watched the debate yesterday in the other place. I had the feeling that one was looking at some of the acrimonious debates which have marked our life here for the past six years through the rearview window. I hope that we are moving away from those.

The point was made yesterday and alluded to briefly by the Minister tonight, about the definition of “joint authority”. I agree with the terms that he expressed on this. Yesterday, in the other place, it was stated that we do not have a definition. We have an official working definition. The New Ireland Forum Report from the Irish Government in 1984 states quite clearly that joint authority means shared responsibility by the two Governments for the administration of the affairs of Northern Ireland. It is clear to me that the humble Address closes the door firmly on this prospect. I do not think there is any ambiguity nor uncertainty about what joint authority is. We know what it is. The humble Address is absolutely clear-cut in this respect.

I have a sense that there is still a misunderstanding about what has been happening in the last few years, particularly around the standing of the Good Friday agreement. Members of this House will remember that there was a great dislike of the idea that the United Kingdom might ever tear up an international treaty. Quite apart from the protocol, the joint report of 2017 is also an international treaty. We would never unilaterally tear up an international treaty. Again and again, it was said to be the sort of thing that ill-tempered Putinesque regimes did, but certainly not the United Kingdom. What we witnessed instead was a long struggle in which the United Kingdom has said to the European Union, “You say you are also keen to support another international agreement—the Good Friday agreement. This is an international agreement lodged at the United Nations by the United Kingdom and the Government of Ireland, but there are tensions; for example, in the joint report and the protocol. We want to work with you to find the correct balance so that we can get back to something closer to the Good Friday agreement”. The Good Friday agreement states that the UK Government, being the sovereign Government, has a responsibility to deal with the alienation of one or other community. In this case, the alienation over the issues in the protocol is clearly within the unionist community. Every single unionist public representative made clear their alienation on that point.

At the beginning of this Parliament, the first letter that went from the UK Government to the European Union said that they were concerned that it had not got the correct balance of the Good Friday agreement. It was a delicate balance. A long labour to reach that point has now concluded. The important work on the island economy was part of that. The Good Friday agreement in no way mandated an island economy. I was present at some of the key discussions in the late 1990s. I remember the Irish Government, let alone the British Government, talking about co-operation between two economies on the island of Ireland.

I accept what the noble Baroness, Lady Ritchie, said about electricity and agri-food. I do not quite accept what she said about Coca-Cola, but I shall come to that. The slide towards something called the island economy is essentially an ideological concept which puts pressure on unionists and has played a major role in the negative public mood in Northern Ireland in the last three or four years. This is not to say that there are not elements of an island economy. The case of Coca-Cola, which the noble Baroness mentioned, indicates a deeper complexity. Coca-Cola has to work with two taxation systems and two currencies. You would not normally call that a simple operation of island economy logic. This is more usually the case. To a greater extent, the Northern Irish economy remains integrated within the UK economy. That the UK Government were apparently committed to working against that was one of the destabilising factors. This is now over. It was essential, as the Safeguarding the Union Command Paper acknowledges.

There are two communities in Northern Ireland which both have rights under the Good Friday agreement. It is impossible to imagine a solution which did not involve some kind of compromise—which this still is. It is not the full achievement of a unionist wish list, nor could it ever be. It is a restructuring, a rebalancing of a previously highly unsatisfactory state of affairs. It is not the achievement of a unionist wish list, which, to be honest, would not be entirely desirable, given the balance of the two communities and the commitment of the UK Government. There is no point is replacing the alienation of one community with the alienation of another.

I note that Irish nationalists were perfectly happy with the provisions I have talked about concerning the role of the UK Government in facing up to the alienation of one community, when it came to the Irish language Act, which went through in this House and not in the Northern Ireland Assembly. They were very relaxed about that, but there has been much complaint about the Safeguarding the Union document. I understand why there is irritation, but I have tried to explain what it is. It is all about restoring the Good Friday agreement and the centrality of making it work again in future. To do this, the institutions have to be functioning—which they now are.

I will say a few words on the amendment and the issues around the Act of Union. The noble Baroness, Lady Hoey, complains, and the noble Lord, Lord Morrow, complains around irrelevant references about whiskey taxes. Had the proponents of the argument that was put about the Act of Union said at any point that they were aware of the schedule in Article VI which lists all these taxes which provide an Irish Sea border, it would not have been possible in the last couple of weeks for the debate to develop in the way in which it has. Suddenly, it has appeared for the first time that there is an issue, and that Article VI of the Act of Union included a series of what would be called pretty strong Irish Sea border measures. The difficulty would not be felt quite so clearly. It raises the question: had the proponents of this particular argument actually read the full text of the Act of Union? They would not have been vulnerable to what has happened in the last fortnight. They are quite right to say that it is not of itself a decisive point, but they would not have been vulnerable to the point at all had they shown any signs of having read the full document.

In general, I have a feeling that the whole question around the Act of Union lacks any proper historical dimension—any proper respect for the history of ideas. Isaiah Berlin, once said, quoting Immanuel Kant:

“Of the crooked timber of humanity, no straight thing was ever made”.


We are dealing here with the crooked timber of humanity. In the last few days, I have been reading Pitt’s speeches introducing the Act of Union. In general, he calls for equality of treatment for the King’s Irish subjects but then says that there are “unavoidable necessities” which mean “we cannot deliver that”. Straight away we are into the crooked timber of humanity. There is a very important commitment to equal treatment. The Command Paper is an attempt to restore that basic commitment but, for 80 years—or 79, to be precise—there was no equal treatment.

One thing that also frustrates me is the lack of serious discussion of the Command Paper and its historical sections, and the quite trivial level of public debate. It is not just about the history of the Act of Union. It reveals that customs and duties were paid throughout the large life of the Stormont Parliament. Again, this is a function of something else. The Act of Union was designed to create one nation across two countries. It failed. After 120 years, what is now the Republic of Ireland left. The core project failed. On the other hand, it worked in economic and social terms for Northern Ireland, and it emerged that parts of Northern Ireland had been alienated from British rule. Some 120 years later, as Lloyd George put it very precisely in 1920, there is not one people across two islands, there are two peoples on one island.

The Government of Ireland Act comes in at that point. It absolutely specifies that trade is an international matter and not a matter for the Stormont Parliament. We may disagree with that and we may dislike it, but it is absolutely clear. In 1938, when the Anglo-Irish trade agreement was signed, the unionist MPs hated it. They said that it was unequal treatment of Northern Irish businesses. They were completely right in everything that they said in the other place in May 1938, but they also made it clear that it was a matter for this Parliament and we have to accept the will of this Parliament. There is no question of these trade matters being a matter for the Stormont Parliament.

That raises a question: what, therefore, is the pre-protocol status of the Act of Union? It does not have any. At that moment of great challenge, just as a matter of reality, no unionist MP even thought to refer to that Act. Why? It is because they thought the new reality was the Government of Ireland Act, reflecting the fact that there are two Parliaments on the island of Ireland. That is why they do not refer to it, and that is why it is quite difficult to talk about the pre-protocol status of the Act of Union. No unionist MPs seemed to have thought there was any status for the Act of Union at that point.

All this comes down to one thing. For at least 100 years of the union—perhaps more like 120 to 130 years—there was a fairly vigorous Irish Sea border and customs to be paid. The union survived. It tells you something: that the so-called Irish Sea border is not, however defined, and what is intended under Safeguarding the Union is really light compared with the actual provisions that had been the case for more than 100 years of the life of the union. What matters is the political will of the people of Northern Ireland. It is very simple in this respect.

I know it will be said that European law is a separate matter and complicates the issue. Of course it does, but it is also the case that the DUP’s seven tests cannot be made to include European law. When the history is written, the various arguments that they contain something to do with European law will run up against a very obvious problem: “EU law” is a small few words; if you wanted to be explicit about European law it would have been the easiest thing to include them in the seven tests. I know that people will say that this or that other test implies it, but it would have been the easiest thing to be explicit about. This is so obvious that it is an insult to the intelligence of the House to imply anything else. It was obviously a deliberate decision not to mention it in the seven tests. By the way, the idea is that the tests are based on commitments made by British Ministers. They are—they are all based in some way on things that Ministers had said that the people of Northern Ireland should get—but no British Minister said at the time the seven tests were announced, “We’re getting rid of European law”, which is the second reason why there is no possible argument that the seven tests are about European law.

It has also been said tonight that Sir Jeffrey Donaldson is saying some things that he did not say on platforms or during this long campaign. That is true, and a fair point, but the trouble is that people on the other side of this argument are also saying things today that they did not say during this long campaign. It is a game if we get to throwing around quotations. Personally, I do not think we should go there. We should move on. There is a moment now for a new, modernising unionism. I do not know whether the arguments at the weekend in the local press that the centre parties have peaked in Northern Ireland are correct—some of the polling suggests that—but it is certainly the case that a new, modernised unionism has opportunities electorally now that it did not have two weeks ago.

Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Lord Bew Excerpts

Tuesday 13th February 2024 Lords Chamber

What we need now is not SIs but a Prime Minister who is prepared to stand up for our country: the UK. He should declare the Windsor Framework void on the basis that it is not a valid treaty because, despite Article 1, the effect of the framework is to disrespect the territorial integrity of the United Kingdom. That means that it is not a valid treaty. He should tell them that if they want to revisit the trade and co-operation agreement, they can, but they must realise that, going forward, the territorial integrity of the United Kingdom and the equal rights of its citizens to stand for election to make the laws to which it is subject are not up for debate.

[Lord Bew (CB)]

My Lords, I rise, first, to make clear my strong support for these two statutory instruments. I say one thing straightaway: there was no possibility of a settlement to the difficulties created by Brexit that did not involve an element of compromise. I have heard the phrase “the people of Northern Ireland” used several times tonight, as if there were one people of Northern Ireland. There are in fact two peoples in Northern Ireland; that is very brutally the case. The latest agreement reflects the compromise, and I will come back to why that is so.

Equally, I have heard a lot of talk about business opinions. The truth is that the great bulk of business in Northern Ireland is solidly in favour of the Windsor Framework; again, I think it is worth recording that. But the most important thing of all is to record the fact that there are two communities.

I have heard a lot tonight about how the Good Friday agreement has been in some way flouted. I want to say something quite important about this. The international agreement places certain responsibilities on the hand of the sovereign Government. Where a situation of alienation arises in one community or the other, the sovereign Government—in this case, obviously, the United Kingdom Government—have a responsibility to deliver: to act in a way that ends that alienation, if at all possible. That is what the international agreement means.

I have heard aggrieved nationalists protest about the unionist content of the Command Paper. I did not hear that when, for example, the Irish languages Act went through this House. That was clearly designed to deal with the alienation of one section of the community, which wanted that Act. I am not aware, rightly or wrongly, that there was any enthusiasm for it in the unionist community.

This is another version of a similar attempt by the Government to fulfil their functions, which were given to them in an international agreement. It is as simple as that. There was no other way of restoring Stormont had the Government not faced up to the fact that every unionist public representative was against the protocol as it then existed. That includes the Ulster Unionist Party as well as the DUP. There was no other way of restoring Stormont but by the route that has been chosen. I am slightly surprised tonight to hear people say, “I’m glad Stormont’s come back but I don’t like the way it was done”. Let us be clear: there was no way of doing it other than the way that the Government chose—none whatever. Everything else is just pie in the sky. There was only one way of doing it, and this Command Paper is part of that way.

Perhaps I could put that in some context. This Command Paper, which is basically unionist in tone, is number five in a series of key documents. The first was the joint report of December 2017, then came the withdrawal agreement that the May Government agreed, which did not in the end get through Parliament, then the withdrawal agreement that the Johnson Government did agree, and finally we have the Command Paper Safeguarding the Union. It is the fifth item on the bookshelf.

The crucial thing to understand is that the joint report of 2017, because of the weakness of the then UK Government, was a huge victory for the Irish Government—so much so that senior Irish officials regarded it as having gone too far. In particular, there is the commitment to the island economy. The island economy may be said to exist in agri-food; otherwise, it does not exist in substance. There are two economies on the island of Ireland. This was a flouting of the Good Friday agreement.

I can remember the days of 1997 and 1998. I am looking at the noble Lords, Lord Rogan and Lord Empey, who may remember this. The Irish Government never talked in those discussions about an island economy. The Irish Government, let alone the British Government, talked about two economies on the island of Ireland. That was the basis of the agreement reached in 1998. It did not stop those people who insist that the Good Friday agreement was about an island economy—the TUV said 25 years ago, “This is an island economy; political unification is just about to come”. Exactly the same thing is being said 25 years later, with equally little evidence, about the Windsor Framework. It is just a repetition of a tired old trope.

The Safeguarding the Union paper reflects the hard reality that the European dimension of the British economy and the all-Ireland dimension of the Northern Irish economy are limited; 20% in total, probably something of that order, of the Northern Irish workforce will have to think about European law in these firms. Most of these are extremely enthusiastic to embrace it because it is important to their export concerns. Having said that, the bulk of the economy in Northern Ireland, with its large state sector and so on, is locked into the rest of the United Kingdom. These are just brutal facts; no amount of rhetoric will change it. But it was very dangerous for the UK Government to agree in 2017 that they would foster an island economy.

Five years on, we have now moved to a very different place. The withdrawal agreement that Theresa May brought to this House makes absolutely no reference to the existence of a Northern Irish Assembly. It does matter what the people of Northern Ireland think—both sections of them. It matters what they think about these events and they should not be imposed. There should be a mechanism for consent. The 2019 withdrawal agreement opened the door to a mechanism of consent, and later that year the Assembly would have that vote on the mechanism of consent. I do not accept the idea that it is only the views of one community that matter in this respect. The views of both communities matter. For all its faults, the 2019 withdrawal agreement had a role for the Assembly and moved away from the idea that you can just impose willy-nilly on the people of Northern Ireland these arrangements without any mechanism of democratic consent.

That is the context. Yes, there is a unionist tone to Safeguarding the Union, but it has to be seen as an answer to a progress of four other documents. It is the fifth document in a process to sort this out. It is a point of rebalancing these arrangements and it was the only way to achieve the return of devolution in Northern Ireland, which we all recognise is a good—although some of us do not seem willing to accept the means by which it was done.

I want to say a word about how this debate is progressing in Northern Ireland today. I accept completely that there is an argument, as the noble Lord, Lord Dodds, eloquently raised, about European law. However, the seven tests of the DUP, put to the people of Northern Ireland in June 2021, do not make European law the central issue—or any type of issue. It is just indisputable. It is only two little words; they are not there. The people of Northern Ireland were asked to vote on this matter; they were not asked explicitly to vote on the question against, “I will not live with any form of European law”. They simply were never asked this. The seven tests are absolutely explicit about the issues. There will be an argument about how well they have been met, and the current DUP leadership argues in substance that there has been substantial progress in meeting the seven tests.

What has happened is that there has been an interaction in the way that I have talked about between the Good Friday agreement and the Act of Union, properly understood. Again, those who argued on the Act of Union had apparently just never read it. If they had, they would have warned their supporters that it includes tariffs and an Irish Sea border far stronger than anything that is included here. It was intended to be temporary but operated for 79 years. They would have told their supporters that there were customs borders between Britain and Northern Ireland for most of the life of the union, unless they wanted to frighten them and say, “This is the most frightening thing in the world”. It is fairly clear that those who made an enormous storm about the Act of Union were unaware of its full contents and the provision that it makes—for example, taxes on Bibles crossing the Irish Sea.

--- Later in debate ---

[Lord Browne of Belmont (DUP)]

My Lords, the two statutory instruments before us tonight are supposedly designed to protect the union and to promote the free movement of goods. I contend that both these regulations fall well short of meeting their objectives. It is clear that the Northern Ireland protocol remains largely intact. The Irish Sea border remains largely in place and, ultimately, the European Union has the final say in many significant areas in Northern Ireland. Indeed, Ministers and Assembly Members in Northern Ireland will be expected by law to adhere to, and implement, new laws that are made in Brussels, not in Belfast, and not here in London.

As I have said consistently in your Lordships’ House, the Windsor Framework does not make substantive legal changes to the Northern Ireland protocol and the supremacy of European law on many aspects of Northern Ireland. Very little in these new arrangements would contradict that view. Indeed, this deal and the framework that underpins it, make only a few limited changes. The Windsor Framework and the withdrawal agreement itself do not permit any changes to essential elements. It would be wrong to suggest that recent changes amount to substantive legal changes.

Fundamentally, the root cause of the problem with the Northern Ireland protocol and with these arrangements is the continued application of EU law in Northern Ireland—particularly in the circumstances in which it covers all manufacturing of goods in Northern Ireland, regardless of whether those goods are being sold in the United Kingdom or to the European Union. The vast majority—84%—of all goods manufactured in Northern Ireland are sold here in the United Kingdom.

The complex easings referred to in the Windsor Framework are limited in number. They will not directly help small or medium-sized traders and are not available to all businesses. The schemes will remain incredibly complex and, crucially, the EU retains a right unilaterally to withdraw its trusted trader system underpinning any new arrangements.

We arrive at a point where the Irish Sea border remains in place, according to the former Northern Ireland Attorney-General John Larkin KC. Paperwork will still be required for customs purposes and, as we can see back in Northern Ireland, customs or border posts are currently being constructed.

Northern Ireland will continue to be treated as an EU territory in many ways. Under Article 12 of the Northern Ireland protocol, which remains unchanged, the EU can direct UK authorities at ports. It is clear that we have not yet arrived at a point where friction has gone and there are zero checks and paperwork for goods from Great Britain destined for Northern Ireland. However, we must continue to work towards achieving this. While I welcome that some progress has been made here, there is still a long way to go.

To date, we have not seen evidence that the thousands of pages of EU law have been disapplied. Northern Ireland will continue to remain subject to the power and control of EU law, the European court and the European Commission on EU single market laws, which govern the manufacture and sale of goods in Northern Ireland. In some 300 areas, EU jurisdiction applies in Northern Ireland. It is a fact that Northern Ireland producers and consumers will still be subject to foreign laws, even when they do not trade with the EU at all.

To date, there is no evidence that points to a single EU single market law being removed from Northern Ireland.

[Lord Bew (CB)]

I just wish to ask the noble Lord, Lord Browne, why, if EU law is so important, it is not mentioned in the seven tests that went before the electorate in Northern Ireland last year as the DUP’s position. I understand the sentiment behind what he says about EU law, but why was it not mentioned in the seven tests? Which of the seven tests does he think has not been met?

[Lord Browne of Belmont (DUP)]

I assert to the noble Lord, Lord Bew, that this is referred to in our first objective:

“The Irish Sea border must go”.


This Government pledged to protect and strengthen the UK internal market as part of New Decade, New Approach. We said that this will involve the European Union.

Regrettably, the Stormont brake, if successfully applied, would apply only to future changes to EU law. It provides no right to change any part of the existing EU laws imposed on Northern Ireland under the protocol. The brake allows for an objection to be raised to a new or amended EU law but, ultimately, the final say on its application would not be a matter for the Assembly, Executive or even this sovereign Parliament. The final decision would rest with an international body that can decide whether a new EU law applies.

The brake is also of limited application in theory and is likely to be unworkable in practice, as such a high bar is set. As I have said previously in your Lordships’ House, I cannot envisage a scenario in which a future British Government would seek to apply a brake if it meant a retaliatory action from the EU. Northern Ireland remains governed by many EU laws that we did not make and cannot legally change. There remains no consent for arrangements that will see further EU regulations causing Northern Ireland to diverge from the rest of the United Kingdom.

The rights of the people of Northern Ireland under the Act of Union 1800 have not been fully restored. While I welcome some government promises—indeed, I welcome any future legislation that will bring us closer together as a nation—there is some way to go before we can say that these issues have been adequately addressed. These arrangements, much like the heralded launch of the Windsor Framework last year, have ultimately failed a key test: to legally restore the constitutional integrity of the United Kingdom.

--- Later in debate ---

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I am delighted to follow the noble Lord, Lord Hay. At the commencement, before I deal with the two statutory instruments, there are some things that have to be said in reply to some of the charges that have been made against us.

The noble Baroness, Lady Ritchie, seems to be concerned about the tone of the Command Paper. I remind her that it has no legislative force. We are dealing with the two statutory instruments, which are vital. The Command Paper is important to set, as it were, the backdrop to what is being sought to be done.

I understand the point that the noble Lord, Lord Alderdice, is making: he hopes that the new arrangements will allow that never again will anyone be killed or children left without their parents. But I have to say, and he will agree with me, that there never was a reason why anyone was to be killed, or was killed, or any child was left without a father or a mother, or parents left without their children.

The noble Lord, Lord Bew, challenged my noble friend a few moments ago concerning the seven tests. Like many others whom I have listened to, he has tried to interpret the DUP’s seven tests. We set the tests. We know exactly what those tests meant. We know their interpretation. The first test is the fulfilment of Article 6 of the Act of Union. The Supreme Court has ruled that this is suspended because EU law takes precedence through Section 7A of the European Union (Withdrawal) Act 2018. It is therefore wrong to say that our test did not require EU law to be lifted from Northern Ireland. Noble Lords need only listen to the statements and speeches, and to read the articles written by leading spokesmen of the Democratic Unionist Party over the last two years to know that the issue of EU jurisdiction was vital to our manifesto commitment. I say to noble Lords: no, we will not allow others to rewrite the meaning of our tests.

[Lord Bew (CB)]

Was EU law mentioned in the DUP manifesto? It is definitely not mentioned in the seven tests—there is no doubt about that—and it is a rather contorted argument about the Act of Union implying this.

[Lord McCrea of Magherafelt and Cookstown]

In speech after speech, article after article, statement after statement, from our party leader and from our chief spokesmen on these issues, it was constantly said. To suggest that it was not a vital part is not factual. I will not allow to stay on the record a charge made against us that is not factual.

It is also true that the majority of Northern Ireland voted to remain in the EU; that is a fact. But so did the majority in Scotland, so did the majority in London, and so did the majority in other regions and parts of the United Kingdom. It is interesting that no one suggests that those counties or regions should be subjected to foreign laws and the special arrangements ordered by the EU that we are expected to accept.

Northern Ireland Executive Formation

Lord Bew Excerpts

Thursday 1st February 2024 Lords Chamber

[Lord Caine (Con)]

I welcome the fact that my noble friend supports the restoration of the institution; where I part company is on the issue of alignment. There is absolutely nothing in this deal that prevents the United Kingdom diverging from European rules and European law, should Ministers believe that is in the interests of the UK. Fundamentally, that will be a matter for the Parliament of the United Kingdom, which remains sovereign. Indeed, the pipeline of automatic alignment is ended through this agreement by the introduction of the new robust democratic safeguards and checks, such as the Stormont brake.

So far as my noble friend’s final comments are concerned, there is absolutely no diminution in Northern Ireland’s position within the United Kingdom. As the statutory instruments make clear, Northern Ireland is a full integral part of the United Kingdom and of its internal market.

[Lord Bew (CB)]

My Lords, I am very glad to add to the congratulations to the Minister, who has been central to the success of this process. In the other place, the Secretary of State for Northern Ireland talked about a breakdown of trust between the United Kingdom Government and the local parties. One of the people who has worked hardest to restore that trust is the Minister.

Does the Minister agree that this is in fact also a tribute to three Prime Ministers, who worked very hard from the beginning of this Parliament, with great difficulty and often very slowly, and often under great criticism in this House, to put the Good Friday agreement back in place? This includes the commitment in the agreement to address the alienation of one or other community—in this case it was the unionist community, but not that long ago it was the Irish nationalist community on the Irish language question—and to act in the spirit of the Good Friday agreement by putting that at the centre of affairs in a way which makes quite a dramatic change.

The Minister will remember us both studying the 2018 withdrawal agreement. There was no mention at all of a role for the Northern Irish Assembly—look how far we have moved in that respect. The December 2017 agreement between this Government and Europe committed the British Government to supporting an all-island economy, which then fuelled all those in the TUV, for example, to believe that that means a politically united Ireland. In fact, 25 years ago they said the same thing about the Good Friday agreement. Does the Minister agree that that scenario has also passed as a result of the Command Paper?

Finally, does the Minister agree that there was a certain irony when we debated the Bill of the Johnson Government in this House? I can remember being told very firmly that the DUP will always let you down. Does he think that we can now smile at that? I should say that was from the noble Lord, Lord Clarke of Nottingham.

[Lord Caine (Con)]

I thank the noble Lord, who is my good friend, for his kind words. I pay tribute to him for the many hours of work he put into this process behind the scenes in bringing us to this place—and, if I am allowed to say, to members of his wider family. In the interests of brevity, I endorse entirely his comments. I reiterate my tribute to the Prime Minister and the Secretary of State for Northern Ireland for the fantastic work they have done in bringing us to this place.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, there are a lot of technical amendments to this and obviously we support those, as we support the other amendments in this group. Annual reports, work plans—all very sensible—but, in the nature of things, this is a relatively small part of this controversial Bill, and we will not oppose the amendments.

[Lord Bew (CB)]

My Lords, I wish to return to something I focused on in Committee: the role of the ICRIR and its officers. Tomorrow, I have the honour of addressing former Chief Constable Boutcher’s staff who are working on the Kenova inquiry. There are some 80 staff and a budget, so far, of over £40 million. We must have in our mind’s eye the criteria for people who work for the ICRIR. The concerns I had in the past have been greatly mollified by the fact that Sir Declan Morgan will now play such a key role in this new body. It is important to recall that there is no obstacle to employment in the ICRIR for those officers with, for example, HET experience, who did a good job, and former officers of the PSNI, and I am simply asking for reaffirmation of this from the Minister. We have to think about the complexity of issues, such as expense. Kenova is running to a cost of £40 million now, dealing with only a tiny percentage of the case load that the ICRIR might have, and therefore we do need experienced officers who know the ground working in this area. The Minister has been helpful in the past, but I am looking for a degree of reassurance.

[Baroness O’Loan (CB)]

Before the noble Lord sits down, I have a question. He talks about the tiny proportion of the cases which are dealt with by Operation Kenova. The reality is that Operation Kenova has dealt with over 200 cases of the 1,000 which currently remain to be dealt with. My understanding is that the budget of the ICRIR is to be £50 million a year, which will come to £250 million, so the approximate cost will be very much the same.

[Lord Bew (CB)]

I am grateful to the noble Baroness for the intervention. I did not express it quite correctly; I was thinking of the likely number of prosecutions, which is a substantially lower number. She is right to make the correction.

[Lord Caine (Con)]

I am grateful to noble Lords for their contributions. I turn first to Amendment 10 to Clause 4, in the name of the noble Lord, Lord Bew. The legislation is clear in relation to the powers provided to the ICRIR to assist in the performance of its functions. That includes Clause 5, in relation to disclosure, and Clause 6, which provides for ICRIR officers to have the powers and privileges of a constable. Clause 14 provides the ICRIR with the power to compel individuals to provide information, a power which is not provided to police officers but, in the Government’s view, is necessary to ensure that the commission can deliver effective legacy mechanisms while complying with our international obligations. Although I am sympathetic to the intent behind the amendment, I suggest that it is not necessary.

In respect of the noble Lord’s comments about the employment of former Royal Ulster Constabulary officers—former members of the Historical Enquiries Team—there is absolutely no prohibition, as I made clear in earlier comments in Committee. I think he is aware of my steadfast support and gratitude for the service and sacrifice of the Royal Ulster Constabulary over many years.

I turn to Amendments 21 and 26 in the name of the noble Baroness, Lady O’Loan. We had an extensive discussion about this issue yesterday afternoon so she will be unsurprised by my response. In our view, the Bill’s definition of a “close family member” is already extensive and covers spouses, civil partners, cohabitees, children, parents and siblings, as well as stepchildren, step-parents and half-step-siblings, and the ICRIR must accept a request for a review from any of these individuals. Therefore, this is a provision which is unlikely to be required in the majority of cases, given the comprehensive scope of the definition of close family member. However, where no close family member exists, it is right that the ICRIR has discretion—I repeat, discretion—to consider whether that request is appropriate. This could, for example, be considering the nature of the relationship to the deceased by the person requesting the review, both in terms of how they are related or the reality of that relationship. Factors such as whether they were estranged or were closely involved in the individual’s life could be relevant.

In respect of the comments made by the noble Baroness about data, we discussed this extensively. I am afraid I do not know the details of the circumstances in which Kenova has made the request to which she referred, but I think the Government’s position on this is solid.

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Tabled by

[Lord Bew]

10: Clause 4, page 4, line 26, at end insert—
“(d) would create or exercise police powers additional to those exercised by the PSNI, or(e) would create or exercise new duties towards prosecutors, additional to those exercised by the PSNI.”Member’s explanatory statement
These additional paragraphs in Clause 4(1) make clear that the ICRIR will not be exercising additional powers of any description not normally available to police officers.

[Lord Bew (CB)]

My Lords, I rise to address the subject of the fairness of the working of the commission in future. This amendment is alongside Amendments 37 and 47, which essentially have the same effect.

[Lord Caine (Con)]

Just to clarify: does the noble Lord wish to speak to Amendment 12, which we have not yet reached?

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[Lord Bew (CB)]

Yes, I wish to speak to Amendment 12.

Amendment 10 not moved.

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Moved by

[Lord Bew]

12: Clause 4, page 4, line 31, at end insert—
“(4) Before carrying out any reviews, the ICRIR must publish, and in carrying out any reviews, the ICRIR must take into account, guidelines containing best practice on the rights of those likely to be named in any reports.”Member’s explanatory statement
This new subsection makes it clear that when carrying out reviews and in the exercise of its power to make findings in reports the ICRIR will follow best practice for the due protection of the rights of any person who may be named with critical comment.

[Lord Bew (CB)]

My Lords, I apologise for being, as they say in Northern Ireland, a little bit previous. I want to address the fairness of the functioning of the commission. My concerns on this matter, like many people in Northern Ireland and on this island, have been greatly allayed by the appointment of Sir Declan Morgan as the chair of the commission. None the less, fairness has to be at the heart of the future working of the commission. This applies both to people who might work for the state forces who come before it, and those who do not.

It has been established in recent years that good practice in such inquiries is what might be called pre-Maxwellisation. I recall the Green report to the Commons Treasury Committee of 2016, which laid out ground rules for handling people who come before a commission in guaranteeing fairness. I know that to some, these will be seen as exaggerated concerns, but we have talked a lot about the international requirements and obligations that the United Kingdom has under Article 2. There is also an international requirement in, I think, Article 6 to protect reputation and to be fair to the reputation of individuals.

I wish to return to the theme—the Minister has listened already with some responsiveness to it—of the importance of guaranteeing as much as we can that when the commission is set up, it works as fairly as possible in respect of the rights of the individuals who may be coming before it.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, with permission, and in the unavoidable absence of my noble friend Lord Hain, I will speak to Amendment 31, upon which a vote will take place on Monday. The amendment is in his name and those of the noble Baroness, Lady O’Loan, the noble Lord, Lord Blair, and my noble friend Lord Murphy of Torfaen. This amendment seeks to turn a terrible Bill into one that could at least act in the interests of victims, rather than the perpetrators of horrendous crimes of violence, by inserting as a method of bringing some form of justice a model based upon Operation Kenova, led by former Chief Constable Jon Boutcher. This model was referred to by the noble Baroness, Lady O’Loan.

Operation Kenova has the interests of victims, survivors and their families at its core, in stark contrast to the current legislation, in which victims and survivors are barely mentioned and to which they are universally opposed, along with each and every political party in Northern Ireland, as well as the Irish Government. In Operation Kenova, there is a proven model of the way to deal effectively with the legacy of Northern Ireland’s violent past.

After his remarks on this amendment in Committee, my noble friend Lord Hain wrote a detailed letter of rebuttal to the Minister. Sadly, the Minister’s reply completely failed to rebut any of my noble friend’s arguments. While acknowledging the excellent work of Operation Kenova, the Minister, the noble Lord, Lord Caine, made a number of assertions that simply do not stack up. The first was that, in some cases, a full Kenova-type investigation would not be appropriate if a family simply wanted information that could be readily found. The second was that an Operation Kenova model could not be upscaled and it would take too long to deal with the legacy case load. The third was that it would not be value for money. Each of these contentions does not stand up to scrutiny.

On the first, this circumstance has arisen with Operation Kenova, and it has been dealt with in a sensible and pragmatic way by the Kenova team, as the family requested. It is simply not an issue. Indeed, Kenova has been praised by victims’ groups precisely because of its effective truth recovery, providing information never before revealed on what actually happened to loved ones. In fact, Jon Boutcher visited a gentleman who lived quite close to me and whose son was brutally murdered. He did so before the gentleman, sadly, passed away, to explain the circumstances in which his son was murdered. That person was deeply grateful for that information and then, sadly, died some days later.

On the other contentions, I urge the Minister to take note of the independent National Police Chiefs’ Council’s review of Operation Kenova. The reviewers are recognised nationally as experts in investigations, especially homicide investigations—they deal in analysis, not assertion. On upscaling to deal with outstanding legacy cases, they said that

“the Terms of Reference … included the question as to whether Kenova might offer a ‘scalable’ model upon which to build any future Legacy Investigative capability for Northern Ireland. Having exhaustively reviewed its strategy, governance, partnerships and all facets of its operations, the review team firmly believes that Kenova would form the best possible foundation for this purpose”.

In his evidence to the Northern Ireland Affairs Committee on 2 September 2020, Jon Boutcher, who leads Kenova, said that legacy cases could be addressed within “five to 10 years” because Operation Kenova has developed processes that can now carry out comprehensive investigations expeditiously, not least because it now has unfettered access to security and police files that have hitherto been hidden. This is the considered view of a hugely experienced and highly regarded senior investigator.

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[Lord Caine (Con)]

If I am honest, I am not entirely sure I follow the point the noble Baroness is making, but I stand by the point I have just made, that our intention is not to impose unnecessary restrictions through this legislation but to allow the commission to access information and be in a position to put more information about what happened into the public domain than has been the case.

Turning to Amendment 28 in the name of the noble Baroness, Lady Hoey, I understand the intention behind this amendment, but Clause 11(7) already requires the commissioner for investigations to ensure that the commission does not do anything that duplicates any aspects of a previous review, unless duplication is deemed absolutely necessary. We believe this is a proportionate approach that ensures the resources of the commission are not wasted through unnecessary duplication, while providing limited discretion for the commission where that might be required. In our view, the effects of the amendment tabled by the noble Baroness would be to hamper the ability of the commission to conduct reviews which might lead to the effective provision of information to many families, which would run counter to a key objective of the legislation. I therefore urge noble Lords not to press their amendments.

[Lord Bew (CB)]

I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.

Northern Ireland (Interim Arrangements) Bill

Lord Bew Excerpts

2nd reading
Thursday 18th May 2023 Lords Chamber

[Lord Bew (CB)]

My Lords, I support the Bill, but I want briefly to echo the words of the Minister on Lord Brooke and the major contribution he made to the affairs of Northern Ireland as part of the United Kingdom.

There is no alternative at this moment to the appearance of the Bill, which I think I can say safely that the whole House regrets. I welcome the fact that the Northern Ireland Affairs Select Committee in the other place is taking a closer look at the general question of Northern Ireland funding and the longer-term problems of the financing of Northern Ireland. I note with great interest the point made by the noble Lord, Lord Morrow, that there may be lessons to learn from Wales: I think we should listen carefully to what he said on that.

As I said, there is no alternative at this moment, but of course there could be an alternative in quite quick order if the DUP were to take up its share of the co-premiership of Northern Ireland. Our briefing note from the Library is absolutely excellent—it is of very high quality—but it refers to the DUP taking up the deputy premiership as if it were, like the deputy premiership in the other place, a subordinate position, whereas of course Northern Ireland is a co-premiership and it is worth just making the point that the DUP would have half a share of the co-premiership were it to take up that position. Indeed, I remind the House that, on the basis of its previous work in this respect, it actually delivered 10 years of stability to Northern Ireland—something that is all too casually forgotten.

I conclude by briefly referring to the words of the Foreign Secretary at the Select Committee of the noble Lord, Lord Jay, on the working of the protocol. That committee, which has done important work, will soon, I hope, be the Select Committee on the Working of the Windsor Framework. The Foreign Secretary stressed the way in which, if the DUP returned to government, it would not lose agency, it would actually gain agency. At this point, it is a passive spectator with respect to realities which, however objectionable, are actually not going to change.

It is worth remembering that we are on a road and on a process. The Theresa May iteration of the withdrawal agreement that arrived in this House contained absolutely no reference to the existence of the Northern Ireland Assembly. The Johnson iteration changed that, and it has been changed much more again by the new Windsor Framework. It is perfectly clear that the role of the Northern Ireland Assembly going forward in handling the relationship of these tricky problems—and they are tricky problems, to which there is no perfect solution—is now considerably enhanced. Parliament as a whole has moved very substantially on what is called the democratic deficit: indeed, the committee of the noble Lord, Lord Jay, has laid a lot of emphasis on that.

I remind the House that the brake which has been introduced in the new arrangement is a new development. It is increasingly clear, from listening carefully to the debates, that it is not disputed on any side that it is of significance. There is an argument, given the totality of developments, about how important it is, but there is no argument any more about its specific effectiveness, on either side. That is one of the few points of clarity in what I think has been a very confused debate in Northern Ireland which has not focused enough on the exact details of what has been before the people of Northern Ireland over the last few weeks; it has become increasingly clear.

I draw brief attention to the unilateral declaration by the UK Government on the democratic consent mechanism in Article 18, posted on 24 March of this year on the EU website and noted by the EU. This again raises a whole space for political play in dealing with the possible difficulties that might well arise. Of course, ultimately there is a simple reality. As Lord Trimble did twice, with my total support, if it turns out that undertakings have been given—for example, the apparent undertakings in the very important White Paper the Government have laid out—and if the DUP enters the Executive and it turns out that the undertakings, or the apparent basis on which the DUP is entering, are not correct, there is the option of actually withdrawing again. Nobody can dispute this. Lord Trimble effectively did it twice. It is not very nice and I would deeply regret seeing it happen. I deeply regretted it being done twice in a different era, but it was actually the right thing to do and it sustained the process in the end. But it is indisputably an option.

So the alternatives are either to be a passive recipient of things that cannot be changed or to engage in genuine political debate about the future.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to support the amendments in my name and the name of the noble Lord, Lord Godson, and to comment on Amendment 174B in particular; he has given a full exposition of the thinking that lies behind it. I would like to add one thing, and one thing only, to his exposition: the reference to the way in which the Saville inquiry created a kind of patent for this type of investigation. We definitely need a public history. I have long been an advocate of it; it is now a point in time when it is a job for a younger cadre of historian to carry out the work.

Let us stop and think what happens if we do not do that. I was a historical adviser to the Bloody Sunday inquiry, which led to the very eloquent apology given by David Cameron, to which the noble Lord, Lord Swire, referred. As a professional historian, you are often scrubbing around for documents, pleading with the Government and the Public Record Office for them. The amazing thing about the inquiry was that they were delivered to my door by trucks, and the material is still in my garage, now published by the Saville inquiry. It lays out a lot of really sensitive stuff: Cabinet minutes and discussions about Northern Ireland which were not then in the public domain—they mostly are now, but they certainly were not at the time of the inquiry —and intelligence documents about the debriefing of IRA informers and discussing the role of Martin McGuinness. These are really sensitive things which were released to me to work on. I produced an analysis which played into the statement to the inquiry by Christopher Clarke KC. In a Leverhulme lecture on contemporary British history, I was subsequently allowed to give my own take on what those documents meant.

That is why I strongly support Amendment 174B: that type of openness should be the patent for any subsequent work or research carried out. The world did not fall in; I have tried to indicate that this material was sensitive—it included discussions between the most senior military officers in the days and weeks before Bloody Sunday. This was not low-grade stuff. We did it, we published it, we took an honest decision about what it all meant—there was other evidence that Lord Saville had to consider—and we had the final conclusion, reached by David Cameron. However, if we say, “That’s it”, we will be saying that the only real public history the UK Government are interested in is—let us be clear—one of the very embarrassing moments of British history and the British state’s role in Northern Ireland, and that we are not interested in the rest of it. We will reveal stuff, and spend money and resources for that purpose, but we are not going to discuss in the round what really happened, which will inevitably lead to other occasions which are less than glorious.

None the less, it seems to me a simple proposition: if you do not support this proposal for a public history, you are saying that we need to deal only with that one particular inquiry—that is all; the rest is closed. For some reason not clear to me, it is the only time we are going to open to scholars the sensitive material which will allow—as it did—a full evaluation of the political, military and other dimensions to Bloody Sunday. It is in the interest of totality and a broader approach to history that I strongly support Amendment 174B.

[Lord Bilimoria (CB)]

My Lords, I support the noble Lord, Lord Godson, and Amendment 174B, to enshrine in law the duty of the Secretary of State to ensure the production of an independent public history of the Troubles. I came as a boy, accompanying my late father, General Bilimoria, when he was a lieutenant colonel attached to the British Army at the School of Infantry in Warminster. Even as a young boy, I can remember the high security, the fear under which everyone lived, and the sad stories of people we knew and heard about on a regular basis. Fast forward to when I came to London as a student in the late 1980s, and then when I started my business: we lived under this fear, on a constant basis, and we witnessed the atrocities and tragedies that took place right until 1998 and the Good Friday agreement.

Successive Governments—of all political parties, to be fair—have sought to maintain peace during the Troubles, and at what a price. It is important that we record and acknowledge the history of those awful and terrible years, and the Government correctly regard a public history as playing an important role in addressing the legacy of Northern Ireland’s past. However, I hope the Minister will acknowledge that there is no mention of it in the Bill. It could in theory be managed through the Cabinet Office’s official history programme, but to my understanding that programme has been in a state of limbo in recent years. It is also insufficiently resourced to produce an official history on the Troubles—a topic that is going to be vast and require a huge amount of work from leading historians with substantial research support.

If the Government intend that the public history should support other academic research support programmes proposed by the Bill, we should note that these are to be concluded within seven years. Unless this public history is properly resourced through the Bill’s memorialisation programme, it is unlikely to be able to add meaningful value to other memorialisation activities within this timeframe.

We require an authoritative history to be produced in good time and to act as an absolute gold standard, and that this thoroughly informed history be communicated to the public, being both affordable and available to everyone who wants to read it. Additionally, it is a matter of equal concern to Ireland as well.

It is crucial that we support the proposal of the noble Lord, Lord Godson, for an additional clause in Part 4 after Clause 46, and I encourage the Government to accept this change.

Windsor Framework (Democratic Scrutiny) Regulations 2023

Lord Bew Excerpts

Wednesday 29th March 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, we have heard many individual voices in this debate, but far from all the perspectives in Northern Ireland. This really could not be called a representative debate. The Green Party of Northern Ireland held its spring conference at the weekend. I speak today in an attempt to broaden the range of perspectives that your Lordships’ House hears from. In doing so, and in reflecting the debate at that spring conference, I can only agree with the words of the noble Baroness, Lady Ritchie, that the greatest democratic lack in Northern Ireland is the lack of a functioning Assembly and Executive. That is key to the people of Northern Ireland being able to exercise their democratic rights and have their voices heard.

I do not think anyone has commented on the fact that today marks the six-year anniversary of the UK invoking Article 50, beginning the process of EU withdrawal. I must admit that I have been feeling an acute sense of irony hearing speech after speech lamenting how we do not have any control over EU rules and regulations any more. Of course, we did once have democratic control over those EU regulations, rules and laws—and the Green Parties of the United Kingdom hope that, one day in the not too distant future, we will again have democratic control over those EU rules.

None the less, it is clear that Brexit has been a disaster for all, particularly the most vulnerable. I have to remark on something that was discussed a great deal at the conference at the weekend: in two days, European social funding for charities and community groups will end. That is an absolute cliff edge that the Westminster Government promised would not happen. My direct question to the Minister is: will the Government take some emergency action to deal with that cliff edge, which will rob vulnerable people of essential services and support? That matter has to be raised in the context of this debate.

I come to the much-debated issue of the Irish Sea border. Yes, it is still there under this Windsor Framework, but it is less visible and less expensive. Here we are at the practical reality of Brexit. I had a flashback to a debate at the Greenbelt Festival in 2017, where I found myself in the unusual position of leaping to the defence of a speaker from the Institute of Economic Affairs—it was partly because she was a young woman and I am always inclined to leap to the defence of young women. She was asked what we do about the issues of Northern Ireland and trade, and her answer was, “I don’t know”. The crowd started to barrack her and I said, “There is no answer to this problem. There is no solution. We just have to find the best way forward that we can.” That is essentially what we are trying to do here.

To address the particular point about the Stormont brake, it has been described as similar to the much-contested petition of concern. However, a deep read into the mechanisms makes it clear that this is not the case. I note that, at a recent event by the QUB law school, Gordon Lyons described it as a “sophisticated” piece of constitutional engineering. I admit that the word “sophisticated” is concerning to a degree, but that is what it is. It is structured, from the Northern Ireland Greens’ perspective, to ensure that it cannot be disruptive and destabilising, which is crucial.

I come back to the point that this is about the reality of the lives of people in Northern Ireland. Some of the things that the Windsor Framework will do are really practical. The green lanes will reduce customs paperwork and the need for checks and will cover parcels from GB to friends and family in Northern Ireland—that is practically sensible and covered by the EU-UK data-sharing agreements. The volume of EU law that traders need to comply with will be reduced. Northern Ireland will be exempt from certain VAT provisions, and the UK will be able to lower the VAT rate on certain goods such as heat pumps and alcohol served in hospitality venues. For pet owners, things will not be completely simple but travel will be simplified.

Where we are is far from ideal, but we are where we are and we need to find a way forward. The position of the Green Parties of the UK is that we support the Windsor Framework and oppose the fatal amendment.

[Lord Bew (CB)]

My Lords, I have been studying the seven tests referred to by the noble Lords, Lord Lexden and Lord McCrea. It might surprise Members of your Lordships’ House that there is no mention of EU law and only two or three words on the ECJ in the crucial seven tests that the DUP lays out. We have heard an awful lot about it this afternoon; it is the grounds for the objection that we have heard. The DUP, in a very wise statement by Sir Jeffrey Donaldson, made no mention of the seven points.

This is really quite important, because trust cuts both ways. The people who worked on the Windsor Framework took the DUP’s seven tests seriously; they assumed that was what the DUP wanted. I totally accept that it is for the DUP to decide whether they have been met, but those people worked to these seven tests. This is of some importance. Some of the tests are indisputably met, despite claims in the other place by DUP Members that none of the tests has been met. There is no argument that the second test is met, because our statistics show that there has been no diversion of trade. If there were diversion of trade, Article 16—the much-loved Article 16—is designed to deal exactly with that. Unless our statistics can be said to be wrong—and there is no real belief in that—then that test is met already.

There is no question that, if you had worked on the Stormont brake, you might think that it met in part the question of giving people in Northern Ireland a say in making the laws that govern them—I have heard all the criticisms but, none the less, you might think that you had made a contribution to that. You might think that you had done something to stop new regulatory borders developing between Northern Ireland and the rest of the United Kingdom.

I say these things because I am among those who always believed that the protocol, in its form under Theresa May, was not to be supported in this House; I spoke against it. The noble Lord, Lord Murphy, and I said on 5 and 6 December 2018 that this was not the Good Friday agreement—and it was not the Good Friday agreement, as we both knew. It was a downward imposition. Strand 3 of the Good Friday agreement talks about a harmonious model of east-west relations. The layer of endless checks under the protocol was clearly not a harmonious model of relations between Northern Ireland and the rest of the United Kingdom. Now, there has been a clear and definite movement towards something that, though not perfect, could much more reasonably be described as a harmonious model of a relationship in trade between Northern Ireland and the rest of the United Kingdom.

I argued this about the Good Friday agreement, because it was essential that, under our international commitments, neither community should be permanently alienated. That is in Article 1 of our international agreement, on a major issue of concern. The unionist community was alienated on this point, as was the nationalist community on the Irish language issue. Rightly, some months ago in this House we voted on the Irish language issue, which dealt with that matter within that community. There has been a major effort here by His Majesty’s Government to deal with the alienation of the unionist community and the concerns raised. They presumed—indeed, I presumed—that the DUP’s seven tests were some indicator as to what needed to be dealt with. European law was something that His Majesty’s Government never offered to deal with at any point during this process. Bluntly, we are coming from too far behind. If you are going to have this type of economic relationship and border arrangements between Northern Ireland and the Republic of Ireland, there will be some role for EU law in Northern Ireland.

If you have accepted, as the Johnson Government and the Truss Government did, no hard border on the island of Ireland and the protection of the UK single market, then there is nothing new in what this Government have done. There was never an offer, during this negotiation, to remove EU law, and never a demand. It is now the demand, but there was never a demand. There was an offer to deal with the alienation of the unionist community; to deal, for example, with its concern that the east-west relationship was not as offered in the Good Friday agreement—this was an entirely correct analysis, which I fully supported—and we had a negotiation which responded to those problems of the incompatibility of the May protocol, and the Johnson protocol, altered in one significant respect to try to meet this problem but fundamentally also deeply flawed. We had a negotiation designed to deal with the argument that the Government stated again and again: “We have a problem; we are not delivering the Good Friday agreement to the people of Northern Ireland”.

That negotiation is over. Questions and answers were involved in that; it has been; it is done. These are the questions, there is now an answer, and everybody accepts that, realistically, it is an improvement. Everybody knows in their heart of hearts, on all sides, that the Windsor Framework is on the upside of what was expected. There is nobody in Northern Ireland who thought, “I have heard the criticisms of the brake. Can I say something? People seem to have forgotten about state power.” The noble Lord, Lord Frost, demonstrated that whatever the EU wanted, if he thought it was important, then there would be derogations and grace periods. He demonstrated this over a two-year period. There was some legal action, somewhere in the sky, which has now disappeared, but the United Kingdom has state power in Northern Ireland.

On the implementation of the details of this thing—in the case of the brake, an international agreement; the EU has signed up to the operation of this brake—is there any reason to believe that the United Kingdom, if it believes it is essential for the stability of Northern Ireland, will suddenly become weak-wristed in the operation of the brake? Is it suddenly going to say, “Oh, we promised all that, but we are not going to do it”, when the almost certain consequence will be the collapse of the Assembly, with the DUP having a genuine grievance, as opposed to what I regard as a much more impossibilist set of arguments at the present time? That is the key thing, really: we just forget these simple things. State power is what is going to matter, ultimately, and what the interests of the United Kingdom will be in any controversy around the brake.

I want to comment on one observation of the noble Baroness, Lady Hoey, who talked about those going back in the Assembly, if they do go back in, having responsibility for the implementation of this. She is absolutely right, and it is a serious point. Whether she was right to talk about Vichy France in the same breath is another argument. She is absolutely right that those who go back in will get a vote on these arrangements anyway in 2024. They did not get a vote on the arrangements in Vichy France. There is a crucial thing here: the people of Northern Ireland, whose opinions have been much invoked today, and their representatives, will be able to deal with this.

One of the interesting things not discussed, by the way, is the unilateral document that the British Government produced on the operation of the consent mechanism. That was a very interesting new discussion, not discussed at all today. The fundamental thing is that there is a provision for democratic consent if the Assembly restarts.

Then there is the issue of, “I am so unhappy because they’re EU laws”. I am afraid that, at that point, if democratic consent is given, that issue becomes of secondary significance and I respect it, except that I would also say, as a matter of common sense, that Northern Ireland has, for example, a very large state sector. Nobody who works in that sector will ever hear of it: if it is an EU law, it will never impinge significantly on their lives, or on many other areas of economic life. As a practical matter, EU law is not going to be a significant factor. I just say that very simple thing, but I still understand the theoretical objection, until there is democratic consent. But there is going to be a moment when that is going to be available under these arrangements, and at that point, arguments about Vichy France, for example, will really not apply.

Stormont Brake

Lord Bew Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Caine (Con)]

I very much agree with the sentiments behind my noble friend’s question. As I have indicated, the Secretary of State will speak to all the Northern Ireland parties in the very near future. I agree with my noble friend about the achievements of the 1998 Belfast agreement; as we approach its 25th anniversary, it is important that we seek to move that forward. He is absolutely right.

[Lord Bew (CB)]

My Lords, I thank the noble Baroness, Lady Ritchie, for her Question. I fully accept that both the SDLP and the Alliance Party have difficulties with the Stormont brake. On the other side of the argument, the Centre For The Union published overnight its eagerly awaited text, which argues that, in principle, it is sympathetic to the Stormont brake. That is an important moment in this struggle to see the return of Stormont.

There is a lot of concern about how the brake might work in practice. I want to put a question to the Minister. Over the past two years, Northern Ireland has been much dominated by the efforts initiated by the noble Lord, Lord Frost, who is in his place, to introduce derogations from the operation of the original protocol. As far as I can see, most of those derogations are now embodied in the new deal, but this was done to effect stability and was done unilaterally. Now that there is an international agreement that underpins the actions of the British Government with respect to the Stormont brake, surely it is logical that, when a decision is not unilateral but is based on the international agreement, the British Government can be relied on to pursue again the objective of stability in Northern Ireland as firmly as they have done over the past two years—and in rather more favourable international circumstances.

[Lord Caine (Con)]

I thank the noble Lord. I must call him my noble friend, because we go back so many years. He makes very important points. I thank him for his contributions on these subjects, not only today but over a number of months and years. Of course, he is right to highlight the importance of stability, to which I referred in an earlier answer. That is the surest foundation for the union and for strengthening Northern Ireland’s position within the United Kingdom.

On the broader point, he referred to derogations. So much of what we have had to do through grace periods and easements has now been made permanent because of the Windsor Framework. That allows us to move on. In a similar vein to my noble friend Lord Cormack, I hope that one of the consequences of this is that we can now move forward, not just in Northern Ireland but in our broader relationships with friends, partners and colleagues in the European Union.

Northern Ireland Budget Bill

Lord Bew Excerpts

2nd reading & Committee negatived & 3rd reading
Tuesday 7th February 2023 Lords Chamber

[Lord Bew (CB)]

My Lords, I support this Second Reading and thank the Minister—the noble Lord, Lord Caine—for his careful and detailed introduction. He delivered it with such calmness of tone that, once or twice, I wanted to say something that I am sure he is well aware of: that the crisis in the public finances in Northern Ireland is acute. I fully respect his observation that the Government intend to look after education and health in particular but, at the moment, the shortfalls look remarkable in those areas, and we may have to look at other ways of raising funds. But that explanation of how we have got here was totally fair.

We have two regret amendments. Although that of the noble Lord, Lord Hain, does not directly do so, it implicitly follows a line of argument that has been increasingly common in the last few weeks: that the behaviour of the DUP means that we should call into question the whole structure of the Good Friday agreement. That is exceptionally dangerous, and I am very glad that Rory Montgomery—one of the key Dublin officials at the time of the negotiation of the agreement, and recently its lead official in negotiations with Europe—has pointed out that this would be extremely dangerous and risky. The DUP has a mandate for its action, which is legitimate within the terms of the Good Friday agreement and the way it operates. This is very frustrating, and I fully respect the frustration with it of the noble Lord, Lord Hain—but it is legitimate. Any attempt to move away from the agreement would be remarkably destabilising.

I very much agree with the argument of the noble Baroness, Lady Foster, that the EU has to come to terms with its commitments to maintain the Good Friday agreement. In recent days, the EU has acknowledged that there were unforeseen consequences. The big and obvious elephant in the room in that respect is that the institutions of devolution and the Good Friday agreement are down. As Rory Montgomery said, a particularly narrow Irish version of the Good Friday agreement was unfortunately internalised by the EU in the early stage of these negotiations, and in some ways we are still trying to unpeel all that.

The Bill depends on a functioning democratic deficit, if I can put it like that. This is very hard for the departments and the Permanent Secretaries in Northern Irish departments: they have been drawn into making decisions that they should not have to make, especially in very difficult circumstances—there is no doubt about that or that you can just about get away with it in the short term. But it is a functioning democratic deficit. I absolutely accept that the EU has to come to terms with the democratic deficit, and increasingly the signs are that people now acknowledge this in a way that they did not when, for example, the first iteration of the withdrawal agreement—the Theresa May document —made no mention of the Northern Ireland Assembly at all. Now the question changes: the Northern Ireland Assembly must be part of the resolution of this democratic deficit question, but it is very difficult to do this. But at least it is acknowledged on all sides that, in this area, something has to be attempted that was not even attempted in the first phase of this negotiation.

In that sense, the democratic deficit cuts both ways. There is a point at which there will have to be consideration. It is absolutely true that there is democratic deficit regarding the function of the protocol at present in Northern Ireland, but it is also true—and it probably cuts into more serious areas of public life for ordinary individuals—that there is a democratic deficit as regards how the Assembly is not operating. That is a political choice of the DUP, and what it has attempted to do so far is entirely legitimate within the framework of the Good Friday agreement. None the less, the democratic deficit question cuts two ways, and that is a responsibility of moderate politicians; we can no longer throw that question away.

Briefly, in defence of the Permanent Secretaries, the red and green scheme was not the EU’s idea—as the noble Lord, Lord Dodds, suggested in his important speech, most of which I agreed with—but came from the Northern Ireland Permanent Secretaries. The idea of the red and green lanes, if we get them back, was originally broached in 2017 from the higher reaches of the Northern Ireland Civil Service. Clever as its members are, they should not be asked to make decisions which should be made by the Assembly—the noble Lord, Lord Hain, is right on that point. It will not be magical, and everything that has been said tonight about the inadequacies of the Assembly’s previous functioning is true—I say that while looking at four former Ministers of the Assembly. None the less, we ought to have a proper, functioning and democratic Assembly. To get that, we need the United Kingdom Government to live up to their commitment under the Good Friday agreement, the very beginning of the international agreements, to deliver equality of esteem, which they have done for the nationalist community with the recent Irish language legislation in this House. However, the long-term aspirations of the unionist community on the protocol also require a response from the United Kingdom Government.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

Moved by

[Lord Bew (CB)]

36: Clause 4, page 4, line 31, at end insert—
“(4) Before carrying out any reviews, the ICRIR must publish, and in carrying out any reviews, the ICRIR must take into account, guidelines containing best practice on the rights of those likely to be named in any reports.”Member’s explanatory statement
This new subsection makes it clear that when carrying out reviews and in the exercise of its power to make findings in reports the ICRIR will follow best practice for the due protection of the rights of any person who may be named with critical comment.

[Lord Bew (CB)]

My amendment to Clause 4 is similar to Amendments 99 and 101, which I spoke to in previous discussions on the Bill. I express my gratitude to the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Smith, for their support for those amendments. My concern here is the functioning of the commission rather than its appointment.

I would also like to express my thanks to the noble Lord, Lord Caine, in a rather different vein from the thanks expressed already, for the very fair, frank and open discussion he gave to the people of Northern Ireland on Ulster Television last night, explaining the whys and wherefores of this Bill, in difficult circumstances. I was at times slightly puzzled, because it felt as if the Bill is the first assault on the principle of equality of justice for the people of Northern Ireland that we have seen. But for 25 years there has been irregular process.

I well remember Tony Blair, at the time of the Good Friday agreement, talking about tearing up the criminal justice system and the release system that was then put in its place, and the importance of getting a referendum result in its favour because it was so complicated, difficult and controversial. I well remember new Labour’s entirely reasonable—in my opinion—interest in an amnesty across the board, which was pursued at some length. While it failed because of party machinations in Northern Ireland, it did not fail because of an uprising of victims or sensitivity to the opinions of victims. It fell because of the workings out of political intrigues, particularly between the SDLP and Sinn Féin. I remember the letters of comfort and the royal pardons. All of these things were very unusual and all long pre-date this Bill. I remember Denis Bradley, the distinguished co-author of the noble Lord, Lord Eames, saying that we were now in a place where we could not reasonably expect Governments to deliver justice but that they should be doing their utmost to deliver truth. However inadequate and flawed this Bill is, it is an attempt to deliver more truth. We are in a darker place, and I felt for the Minister as he struggled under the weight of an accusation which is at least 25 years old and could be directed to others with more point than to him, especially in the context of the amendments that he seeks to make to the Bill.

--- Later in debate ---

[Baroness O'Loan (CB)]

I thank my noble friend for giving way. I think the Supreme Court decided that the particular applicants in that case were not entitled to get their cases reinvestigated—or investigated. They did not say that there was no obligation on the state to provide investigation.

[Lord Bew (CB)]

I thank my noble friend for that intervention. I think the implications of the Supreme Court ruling are somewhat broader. I was going to say that, at some point or other, the Government will have to refer to this major change, possibly with the Attorney-General, because there is controversy about what it really means. We cannot finish the Bill as though something of that importance has not happened, because it clearly bears on the issues at stake in the Bill and on the international obligations or otherwise of the United Kingdom Government.

Like my previous amendments, my Amendment 36 is designed, essentially, to get the best possible practice in play for the commission. It calls for the ICRIR to publish

“guidelines containing best practice on the rights of those likely to be named in any reports”.

I think the Minister will have a reasonable reply. We already know that there is a process of Maxwellisation. During the long period of the Iraq report, many will have felt frustrated about the amount of time devoted to Maxwellisation but, none the less, people who are challenged in their conduct have every right to take time to give a decent reply.

I am sure that that will be the Minister’s reply—that we already have rights in law. But things have moved on since then. It seems to me that the best practice now is something that we might call Maxwellisation-plus. I again draw attention to the way in which the Green Paper to the Commons Treasury Committee sets out proceedings and an approach to the rights of those involved under questioning in the ICRIR, which the Government should adopt. They should follow that Green Paper.

[Lord Hain (Lab)]

My Lords, I too pay tribute to the Minister for his open door and willingness to engage. I hope to knock on that door in the next few days to persuade him to support the Operation Kenova amendments.

--- Later in debate ---

[Lord Caine (Con)]

I will need to read the clause through again and come back to the noble Baroness on that, if I may. As I was just saying, moving Clause 19 into the schedule is simply intended to make this legislation easier to follow.

The ability of commission officers to use their powers of arrest and detention as part of its investigations is important. That includes cases where a suspect, having not obtained immunity, needs to be detained for the purposes of questioning. That would happen as part of the case-building process in a criminal investigation before a file was referred to prosecutors. I have tabled Amendment 151 to remove any doubt as to the circumstances in which criminal enforcement action can be taken where immunity has not been granted, and where a referral to a prosecutor has not yet been made. In addition to allowing for the exercise of powers of arrest and detention, the amendment also ensures that the commission would be able to charge a person with an offence before a referral to a prosecutor had been made. The amendment also clarifies that those with existing powers of detention—for example, the police—may continue to use those powers where they are being exercised in connection with the commission’s functions.

Amendments 150 and 153 are related minor and technical amendments. We touched on the importance of the chief commissioner’s actions over the course of a review leading up to a report, as per Amendment 36. Under Clause 15, the chief commissioner is required to share the draft report with the person who requested the review, with victims, where applicable, and with any relevant family members as defined in the Bill. These persons will have the right to make representations, which must be considered before a report is finalised. Separately, the chief commissioner must share the draft report with any living individual subject to significant criticism in the draft report, who also has the right to make representations that must be considered before a report is finalised.

We have discussed today the referral of conduct to prosecutors. Amendments 114 and 135 specifically would expect the commissioner for investigations to refer conduct to prosecutors in cases where the threshold is met, unless there is a good reason not to do so. If the commission were under an obligation to refer all relevant conduct to prosecutors that it considered an offence, there is a risk this would place an unreasonable operational burden on it—a concern that was also relevant to the Stormont House agreement. I will try to get through this as quickly as I can.

I turn to post-Troubles sentencing, and specifically Amendment 149 in the name of my noble friend Lord Dodds of Duncairn. All offences, including terrorist-type offences, committed after 10 April 1998 will remain the investigative responsibility of the relevant police force. I recognise the intent behind this amendment but we have already tabled an amendment which could mean that people lose immunity if they are convicted of knowingly or wilfully misleading the commission. I am content to keep engaging with noble Lords and others on possible instances where we can strengthen the incentives to engage with the body and ensure adequate and proportionate penalties for those who do not.

The noble Baroness, Lady Suttie, and my noble friend Lord Weir of Ballyholme have probed the meaning of “general immunity from prosecution” in Clause 18. To be clear, as I have said immunity will be granted only in respect of conduct disclosed by an individual as part of their application. “General immunity from prosecution” does not mean immunity for all Troubles-related conduct in which individuals may have been involved but which has not been disclosed. Clause 18(9) makes it clear that, where immunity from prosecution is framed as a grant of general immunity, it must be framed by reference to the particular conduct that the person has disclosed. In other words, it will not confer immunity in relation to other conduct. The noble Baroness is looking at me slightly quizzically; I am happy to go through this again with her.

The noble Lord, Lord Browne of Ladyton, proposed an amendment to add an additional condition that must be met before immunity is granted: that the commission is satisfied that the grant of immunity would be compatible with convention rights, comply with the constitutional principle of the rule of law and satisfy the interests of justice. In response, the Government remain confident that the legislation is legally robust and complies with our obligations, so it is not necessary to make specific reference in the Bill to the compatibility of convention rights in respect of the commission discharging specific functions. It is the Government’s view that this is already covered.

The noble Lord referred in one of his questions to cases being initiated by the state or being initiated by families. While the commission will carry out reviews where requested to do so by a family or where a person has requested immunity, I assure the noble Lord that the Secretary of State and other public officials, such as the Attorney-General in Northern Ireland, will be able to request a review where this is necessary to ensure an effective and efficient investigation for the purposes of discharging the UK’s international obligations. Those powers are there.

As I have explained before, the commission, as a public authority, will be under a duty under the Human Rights Act to act compatibly with convention rights when exercising its functions and making any of its decisions. Working together with public prosecutors and making use of its full police powers, it will also be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In response to the noble Baroness, who I know disagrees with me on this, I set out at length last week that the Government’s view is that the absence of a prosecution or punishment outcome in individual cases where immunity is granted can be justified on the basis that the conferral of such immunity in a limited and conditional way is necessary to ensure the recovery of information about Troubles-related deaths and serious incidents that is extremely unlikely to come to light in any other circumstances. It is through the recovery of information for the benefit of families and wider communities, in part by means of the conditional immunity process, that the new body will be enabled to contribute to moving society forward in Northern Ireland. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors in a timely and efficient manner, which would not happen if we engaged in a single-minded focus simply on criminal justice outcomes.

I have gone way over time. I have tried to answer as many points as possible, but if there are any that I have missed then I am happy to sit down with noble Lords following Committee. On that basis, I urge noble Lords not to press their amendments, as I will not press mine.

[Lord Bew (CB)]

I beg leave to withdraw the amendment.

Amendment 36 withdrawn.