My Lords, I am grateful to all noble Lords who spoke in this debate. I rather hesitate to say this in front of the noble Lord, Lord Bew, who was taught at Cambridge by the great Tudor historian Sir Geoffrey Elton, but as we go through these debates, I feel I am becoming increasingly isolated in being a Member of your Lordships’ House who might still have a sneaking admiration for the reign of Henry VIII. Indeed, I confess that I have a portrait of Thomas Cromwell in my office. However, I will go no further because I do not want to provoke a debate with noble Lords about the 1533 Act of Restraint in Appeals and its preamble. I will therefore fast-forward, if I may, to 1800 and the Acts of Union, referred to in the amendment moved by the noble Baroness, Lady Hoey.
Let me say at the outset that I entirely sympathise with the noble Baroness’s position and amendment. Clause 1, as she pointed out, explains that the Acts of Union are not to be affected by provision of the protocol that does not have effect in the United Kingdom. I agree with her and noble Lords who have pointed out the fundamental importance of the Acts of Union as the bedrock of Northern Ireland’s constitutional position in the United Kingdom.
However, I am sorry to point out to the noble Baroness that her amendment has the potential to risk the exercise of the powers under the Bill. For example, the red lane in our new model will continue to apply EU rules to goods moving through Northern Ireland into the European Union and single market. This is crucial to ensuring that there is no hard border on the island of Ireland and to upholding the overall objectives of the Act of Union regarding the free flow of trade in the United Kingdom. The restrictions imposed by her amendment could risk the implementation of this revised operation of the protocol, which is designed to uphold our commitments to the union.
I know the noble Baroness is very supportive of the Bill, but this amendment could undermine the certainty that it seeks to provide. She and my noble friend Lord Dodds of Duncairn made a very large number of points around subjugation and so on. I hope she will appreciate that I cannot go into great detail at the Dispatch Box because, as she knows since she is a party to it, this amendment treads very much the same territory as is the subject of a live case in the Supreme Court, which I think is expected to be heard very shortly.
I reiterate my and this Conservative and Unionist Government’s—a label I proudly wear in your Lordships’ House—strong support for the union and Northern Ireland’s integral position within it. I have no hesitation in reiterating what we said at the end of last week about joint authority; it is simply incompatible with the provisions of the Belfast agreement and we will not countenance it. I assure the noble Baroness that we are determined to resolve the issues to which she alluded in her amendment this evening and, on that basis, urge her to withdraw it.
I turn to the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. It has been said many times and in much detail, but I feel I have a duty to remind the House again that it is because of the operation of the protocol that the Northern Ireland Assembly has not been sitting since February, and the Bill aims specifically to restore political stability in Northern Ireland and facilitate the reconstituting of a fully functioning Executive and Assembly in line with the Belfast agreement. In the absence of functioning institutions, creating a legal requirement—as the amendment from the noble Baroness would do—that consent from the Assembly be granted before regulations can be made under the Bill risks in these circumstances setting a test that simply cannot be met, because there is no functioning Assembly.
This amendment would also be constitutionally problematic, effectively limiting the UK Government’s ability to exercise their powers in excepted and reserved areas of policy such as international affairs and trade, respectively. Given that it would also apply to the commencement power, it would make the coming into force of legislation of this Parliament subject to a veto by the Northern Ireland Assembly. That would affect this Parliament’s right to legislate for Northern Ireland, something the Belfast agreement makes very clear is unaffected; as such, the Government cannot accept it. For that reason, I ask the noble Baroness not to press her Amendments 46 and 55.
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On the noble Baroness’s Amendment 54, we are sympathetic to the need to involve the Northern Ireland Executive and Northern Ireland politicians and political parties as far as possible. My noble friend Lord Ahmad of Wimbledon detailed some of the steps we have taken and will continue to take to do that. I am very happy to discuss any suggestions the noble Baroness may have, as I am with my noble friend Lord Empey, who was here earlier. The problem with Amendment 54 is that creating a legal requirement that consent be granted by the First and Deputy First Ministers acting jointly before the power to make regulations can be conferred upon Northern Ireland departments risks setting a test that cannot be met, given that we currently have no functioning Executive or Assembly. As with other amendments we have discussed, it is simply not acceptable, as the amendment would grant the First and Deputy First Ministers an effective veto on the UK Government’s ability to exercise their powers in excepted and reserved areas of policy. For these reasons, I ask the noble Baroness not to press her amendment.
Finally, I turn to Amendment 53 in the name of the noble Baroness, Lady Chapman of Darlington. I believe that the intention of this amendment is effectively to prevent regulations under the Bill making provision which is incompatible with the protocol. Taken as intended, this would effectively prevent the regulations under the Bill implementing the policy regime as a whole—I am sure that is her intention. I do not intend to go over the extensive ground we have already covered in this area, but I reiterate that, in the Government’s view, we are acting consistent with our obligations under international law and in support of our prior obligations under the Belfast agreement. Of course, the Government have published a legal statement to that effect.
I do not wish to provoke an extensive debate on an issue that has detained the House for very many hours over the past number of days, but I think it is worth pointing out that our intention here is and always has been to protect those elements of the protocol that are working while remedying those that are not. That is why the Government consider it is appropriate and proportionate to take the powers in this legislation.
In response to the noble Baroness’s final point about taking these issues seriously, I assure her that we are. That is why we brought forward this legislation in the first place to enable us to fix the elements of the protocol that are not working, to facilitate a return to functioning devolved government in Northern Ireland and to protect the Belfast agreement in all its forms. On that basis, I ask her to withdraw her amendment.