The right hon. Gentleman has some neck to ask the Social Democratic and Labour party not to make divisions over Brexit an issue in the election. The wishes of the people of Northern Ireland, which were clearly expressed in the referendum last year, are being ignored. Are we now also to tell the people, “Ignore your own wishes”? The right hon. Gentleman obviously expects a party like the SDLP, which honourably fought a campaign to remain, to say, “Ignore your wishes. Set them aside. You have to be slaves to the impulses of a vote in England in response to some crazy argument.”
Clause 1(2) denies any regard whatever to protecting the constitutional, institutional or rights provisions of the Good Friday agreement or their due reflection in the Northern Ireland Act 1998, which is why we tabled amendment 86. Clause 1(2) seeks to ensure that that Bill is not restricted by any other legislation whatever. Amendment 86 would create an exception for the Northern Ireland Act 1998. Crucially, it would uphold the collateral principles in the other part of the Good Friday agreement, which is between the Governments of the UK and Ireland, and is not fully reflected in the 1998 Act. The amendment would also exempt section 2 of the Ireland Act 1949 from the override power in the Bill or its
outworkings. I admit that the amendment would act as a boundary to the powers provided to the Prime Minister by clause 1(1) and would galvanise the protection for the agreement but, given that the Prime Minister is trying to tell us that she would observe those boundaries, why should she fear that being on the face of the Bill?
New clause 150 draws on key language from the Good Friday agreement, as I made clear to the right hon. Member for Forest of Dean. It is intended to ensure that any future UK-EU treaty—we are told that the Government want to negotiate a new UK-EU treaty—will make explicit reference to upholding the fundamental constitutional precept of the Good Friday agreement, which is the principle of consent that affords a democratic route to a united Ireland if that ever becomes the wish of a majority of people in Northern Ireland. In the case of any such future referendum, no uncertainty whatever must hang over Northern Ireland’s direct admission to the EU as a consequence of a vote for a united Ireland. Nor, indeed, must there be any uncertainty over Ireland’s terms of membership of the European Union.
Such uncertainty was deployed during the Scottish independence referendum, when people said, “Don’t make assumptions about Scotland having an automatic place in the EU or that it will be easy. Article 49 will make it very difficult.” The difference for Northern Ireland is that it does not have the choice of becoming a new state. Under the Good Friday agreement, its only choice is membership of the United Kingdom or membership of a united Ireland. That agreement was made at a time when both countries had common membership of the EU. Any future referendum will not take place in that situation. Lots of people can place question marks over whether Northern Ireland would have straightforward entry to the EU in that context. Under the terms of the Good Friday agreement, that could constitute an external impediment to the exercise of that choice or even to the choice of having a referendum.
The Taoiseach identified this issue at the MacGill Summer School last year. It will be an issue for the Irish Government, as one of the 27 member states, when they negotiate their side of the treaty. It would be an odd position for the Irish Government as a co-guarantor of the Good Friday agreement to want this to be reflected in a new UK-EU treaty. This is not just an issue for the British Government as a co-guarantor of the Good Friday agreement; it should be something that they are equally and comfortably committed to.
Let us remember that the key precept of the principle of consent and the democratic choice for a united Ireland, as reflected in a referendum in 1998, was the key point that turned it for those people who had locked themselves on to the nonsense idea that they supported violence sourced from a mandate from the 1918 election. That was the key for quite a number of people to say, “Physical force has no more place in the course of Irish politics.” Physical force is now parked because the Irish people as a whole have, in this generation, by articulated self-determination, upheld this agreement, and that gives them the right, by further articulated self-determination, to achieve unity in the future. Anything that diminishes or qualifies or damages that key precept will damage the agreement. People need to know the difference between a stud wall and a supporting wall: just knocking something through because it is convenient and gives a bit more space might be grand and might do, but if at
some future point, when other pressures arise, things start coming down around us, people should not complain. We have to be diligent and vigilant on these matters.
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I would also point out that the German precedent, which some people have told us would apply automatically, would not apply. That was under a different treaty. We should also remember that the German precedent partly relied on the fact that the West German constitution, recognised by the then EC treaty, included a territorial claim of jurisdiction over all of Germany—that the basic law applied. That is not the case now in respect of Ireland, because articles 2 and 3 were changed, rightly and properly, in the context of the Good Friday agreement. Those things should not be confounded because of the way in which Brexit takes its course over the years to come. That is why we have to take care of these things now. It is not just the Taoiseach who raised this issue last summer; it is quite clear that the Joint Oireachtas Committee of the Doyle and the Seanad is also prioritising it, and I believe it will feature in one of the Committee’s reports.
I advise Ministers that amendment 86, and quite possibly new clause 150, will also be tabled in the House of Lords. They will be tabled by Lord Murphy—Paul Murphy who piloted the 1998 Act through this House. He also chaired the strand 1 negotiations. Everybody thinks George Mitchell chaired all the negotiations to do with the Good Friday agreement, but he did not chair strand 1, which included some of the most detailed negotiations. Paul Murphy chaired strand 1, and he represented the British Government for most of the time in the strand 2 negotiations as well. If someone of his experience and insight—both from that time and from the role he played as Secretary of State—can see the importance of this and the salient, crucial need to protect the agreement through something such as amendment 86 and new clause 150, who are people in this House to dismiss that point, that experience and that insight, as well as dismissing the clear wishes of the people of Northern Ireland?
Finally, I want to address amendments 88 and 92, which make provision for any change to the legislative competence of the Assembly or to the executive competence of the Executive to require the assent of the Assembly. They address issues that found expression in the Supreme Court judgment. There has been a false shorthand around the Supreme Court judgment that has basically said that no aspect of Sewel can ever apply in any way, and that is not what the Supreme Court actually said. At paragraph 151, it said:
“we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures.”
The point is a simple one: if this House does not uphold this convention at this time on such an important change in the governance of Northern Ireland, what, then, is left of that convention?
We need to remember that the Good Friday agreement is based not just on the principle of consent but on the promise and the exercise of trust and reliable adherence. We have a situation now where this Parliament is not being seen to keep its side of what was assumed to be the bargain and the understanding in the compact
between all the people of Northern Ireland and the people of Ireland, and between the Governments of these islands. That is why we have tabled amendments 88 and 92.
On amendment 92, I want Members to understand that it is important that the Government indicate that they understand what new changes there will be to the competency of the Northern Ireland Assembly and when those will happen. If, as we are being told—this came up in exchanges between hon. Members from Wales—the great repeal Bill, when it comes, involves competencies over rights or environmental standards being held in some sort of holding pattern here before subsequently being devolved, that could do serious injury to rights protections and promises under the Good Friday agreement. If we have dilution of those rights or standards before devolution, the Northern Ireland Assembly will not be able to top them back up to the pre-existing EU standards without cross-community support, which will probably be denied courtesy of the DUP, just as it has abused and misused the parallel consent principles—the petition of concern—to block other rights. A mechanism that was meant to be there to protect rights has actually been used to frustrate rights. We have to make sure that in the journey of the transfer of powers and competences from Brussels to the UK, it is clearly a case of “Devolution, straight to devolution, do not pass Go, do not collect £200”, and that there is no dirty work at the crossroads in relation to diluting rights and standards. That is why these issues are being addressed.
That will be a key issue in strand 1 and it will become an issue in the negotiations that take place after the election. Those negotiations will touch on the petition of concern itself, but also the context that has been created by Brexit in terms of further powers that might be coming to the Assembly. Similarly, as the hon. Member for St Helens North (Conor McGinn) said, the question of strand 2 will arise in the negotiations, because the Good Friday agreement made a commitment that there would be at least six implementation bodies, on a cross-border basis. The six that were created after the Good Friday agreement were, by the insistence of the Ulster Unionist party, which was the only Unionist party negotiating by that stage, all related to areas that dealt a lot with European funding or dealt with questions of common compliance with European standards. If we no longer have common European funding or the issues of common compliance, then the rationale for those existing bodies has gone and there will have to be six new bodies. That opens up a whole area of negotiation. It brings us essentially into a review of the Good Friday agreement.