My Lords, when announcing the arrival in another place of the statutory instrument that is now before this House, the leader of the House described the provision as a “keystone” in the Windsor framework. This is interesting because, until February, government engagement with the problems associated with the protocol had focused almost entirely on the practical economic difficulties relating to having a customs border dividing the UK in two.
In truth, however, the democratic problem is the place to start because it precedes the economic problem. The only reason to have a border down the Irish Sea is to protect the integrity of the different legal regime in Northern Ireland that results from the imposition of a different legal order on us, in 300 different areas of law, by the European Union—a polity of which we are not part, with a legislature in which we have no representation at all. Thus the border down the Irish Sea is, first and foremost, the border of our disfranchisement before it is the border that sets us apart from the rest of the UK economically. Both result from the partial suspension of the Acts of Union.
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When announcing the Windsor Framework in Windsor, the Prime Minister told the people of the United Kingdom that it
“removes any sense of a border in the Irish sea”.
On this basis, it made sense that he was then able to affirm in another place a couple of hours later that the Stormont brake, as part of the Windsor Framework, eliminated the democratic deficit. The Prime Minister made this claim not just once but four times. On one occasion he said:
“The Stormont brake eliminates that democratic deficit and restores sovereignty to Northern Ireland”.—[Official Report, Commons, 27/2/23; col. 610.]
This a high threshold against which to measure the efficacy of the statutory instrument before us today. It is right that it should be, because—and perhaps it will not surprise noble Lords to hear this from the chairman of the Democratic Unionist Party—there can be no cutting corners when it comes to democracy.
Indeed, the need to defend and uphold democracy in Northern Ireland is never far away. Yesterday, I was saddened to receive a letter from the Minister highlighting that the threat level in Northern Ireland has been raised to severe. I found myself very much at one with him when he wrote:
“Collectively we will ensure Northern Ireland continues to move forward and there is no return to the violence of the past. Democracy and consent will always prevail.”
Do the Windsor Framework (Democratic Scrutiny) Regulations rise to this exacting democratic threshold? I do not believe that they do. That is why I have taken the step of tabling my amendment in your Lordships’ House today.
It did not take long after the announcement of the Stormont brake, as part of the Windsor Framework, before its utility was being called into question. Commentator after commentator piled in to question whether the Stormont brake could be made to work. I will come to their critiques presently. In the rush to expose the practical problems associated with pulling the brake, people forgot the elephant in the room: as
I pointed out on 1 March, even if the Stormont brake worked perfectly, far from eliminating the democratic deficit, the regulations seek to cement in that deficit and the debasement of UK citizenship in Northern Ireland.
Nothing in the regulations before us today, or in any other aspect of the Windsor Framework, changes the fact that, under the protocol, the people of Northern Ireland cannot stand for election to make the law to which we are subject in some 300 different areas. These regulations suggest that, uniquely within the UK, our citizenship is debased, in that we must become law-takers rather than lawmakers, not just for 300 laws but for 300 areas of law.
As it stands, as of 1 January 2021, over 640 laws have been imposed on us. That number will just go up over time. Into this context the suggestion is made that the Stormont brake solves the problems because, if it works, it provides us with the opportunity to veto laws made for us by a polity of which we are not a part and a legislature in which we have no representation. However, that facilitates only an infantilised citizenship that is empowered to reject law but not given responsibility to make new laws. As I said in the House on 1 March:
“Citizenship of the United Kingdom is about citizenship of a parliamentary democracy wherein we can stand for election and make all the laws to which we are subject, or can elect fellow citizens to undertake this task for us. If we have concern about a Bill, we can contact our legislator and ask for a meeting. They can represent our concern in Parliament in the making of the law, by tabling amendments and making the case for the rest of the Parliament to change what they believe is necessary. In short, citizenship in the UK is about being part of a process wherein the laws to which you are ultimately subject are made.”—[Official Report, 1/3/23; col. 358.]
The statutory instrument before us is about something entirely different. It is concerned with cementing in our second-class citizenship, disinheriting us from the right to be involved in making the law to which we are subject in some areas. It says, “You will continue to be subject to laws made for you by a polity of which you are not a part and by a legislature of which you are not a member, and you will have to make do with the opportunity after the law has been made for you to say that you do not like it”. That is not the British political tradition, nor indeed the Irish political tradition, or that of any self-respecting polity. I am not aware of any polity whose people’s right to stand for election, through a full adult franchise, to make all the laws to which they are subject for nearly 100 years has then being partly taken from them, and yet that is what the statutory instrument proposes.
We did not build the peace process in return for the offer of a debased citizenship, but rather the offer of full citizenship. We did not persuade terrorists to turn their backs on terrorism to pursue exclusively democratic means in a context where exclusively democratic means did not afford the people of Northern Ireland the right to stand for election to make all the laws to which they are subject. If these regulations become law then our arrangements will tell the people of the United Kingdom living in Scotland, Wales and England that they are worthy of the right to stand for election to make all the laws to which they are subject, even while they tell the people of the United Kingdom living in Northern Ireland that they are worthy of the right to
stand for election to make only some of the laws to which they are subject. In this context, if one accepts the Stormont brake at face value, we will have to make do with the right to try to veto the laws made for us by another country.
Before assessing whether the Stormont brake provides a brake, it is important to pause to reflect on the consequences of this statutory instrument and the wider Windsor Framework, arising from the fact that Northern Ireland is part of the United Kingdom. The point I am making is simply this: it is plainly a profound humiliation on the part of any country to be subject to the forceable debasement of citizenship in order to assuage the misguided demands of a foreign power, but it is also a grave humiliation for the rest of the country that is required to offer those people up for this purpose. Our humiliation is your humiliation. The question is not just, “Does Northern Ireland have any self-respect?”, but, “Does the United Kingdom have any self-respect?”
On the question of whether the Stormont brake provides Northern Ireland with what might be regarded as a negative form of democracy—the right to say no through a veto—we encounter three difficulties. The first problem is that the Stormont brake part of the SI before us—I shall come to the Westminster brake part of it later—addresses only the 300 areas of law with respect to existing laws where those laws are amended or replaced, and it then engages with only a subset of the law in question, that pertaining to product regulation. Thus, the Stormont brake has no remit in relation to existing laws in the 300 areas that are not amended or replaced, and is limited to product regulation. It cannot be applied even when existing laws are replaced or amended in relation to customs, VAT, state aid, electricity, et cetera. Thus, the supposed right to veto retains only a subsection of the laws imposed in Northern Ireland within the 300 areas of law.
Having narrowed the application of the veto down to existing laws that are amended or replaced with respect to product regulation, we then encounter yet a further narrowing down. The Stormont brake can be applied only to existing laws that are amended or replaced with respect to product regulation if the law change in question has a significant practical effect on daily life that is likely to persist.
This relentless curtailment of the remit of the veto is then complemented by a curtailment of its nature as we are confronted with the fact that the notion that the brake affords us a negative form of democracy, a right of veto, is also revealed to be far from secure. Specifically we discover that even if the brake is applied, the EU can object and then the matter is sent to independent arbitration that could find against the UK and Northern Ireland. Thus, rather than delivering a veto in relation to all the laws imposed on Northern Ireland, what the Stormont brake offers is the opportunity to try to apply a veto in relation to just some of the laws imposed on Northern Ireland, with no assurance that this will work. Furthermore, if it does work, Northern Ireland will be subject to retaliatory remedial measures from the EU.
At the beginning of this speech I humoured the Government, giving them the benefit of the doubt that the Stormont brake would work as a veto, and made it clear, for all the reasons I explained, that this
would still debase our citizenship. However, examination of the workings of the Stormont brake reveals that the situation is infinitely worse. In truth, these regulations do not generally seek to ameliorate Northern Ireland concerns about the provisions of a negative citizenship—the right to say no. Their primary effect is actually to clarify that in most cases with respect to the imposition of changes in existing laws, in the form of the text being amended or replaced, the people of Northern Ireland are subjected to a non-citizenship. We cannot stand for election either to make the laws to which we are subject or to try to veto laws imposed on us. In a very narrow area with respect to the imposition of changes in existing laws, in the form of the text being amended or replaced, when this pertains to product regulation and has a significant and lasting impact on daily life, the people of Northern Ireland have what is effectively, as a negative citizenship, the right to try— I emphasise that it is the right to try—to veto law made by others for them rather than the right to make the law to which they are subject. But this is subject to arbitration that could veto the veto.
At this point someone might seek to argue that I have got it all wrong and that the Stormont brake provision within the Windsor Framework actually provides the people of Northern Ireland with the right to veto new laws because I have forgotten about Part 4 of the new Schedule that the statutory instrument introduces. However, EU officials have confirmed that Part 4 is not part of the Windsor Framework. It is presumably an attempt by the Government to try to compensate for the lack of content within the Windsor Framework for the purposes of addressing the democratic deficit from 1 January 2021.
The protocol provided what Professor Steve Peers has called the Westminster brake—not to be confused with the Stormont brake—which has given the UK Government the right to veto any completely new EU laws applying to Northern Ireland from the joint committee. The right to assert this right, which has never been used, was not changed in any shape or form by the Windsor Framework, but what the Government have done in Part 4 of the Schedule before us today is to add a provision allowing a committee of the Northern Ireland Assembly to pass a Motion in support of new legislation, without which the UK Government will use their veto.
However, there are two major problems with any suggestion that this eliminates the democratic deficit. First, it still cements in negative democracy and infantilised citizenship in the context of which, rather than being treated with dignity, such that we can stand for election to make all the laws to which we are subject in 300 areas, we can stand for election only to try to block laws made for us in those areas by a polity of which we are not part and in whose legislature we have no representation.
Secondly, even then, paragraph 18(2) in Part 4 of the Schedule gives the Government the right to overrule the Assembly. In confronting the fact that both the Stormont brake and the Westminster brake cement in rather than eliminate the democratic deficit, we are forced to acknowledge, first, that uniquely within the UK we can no longer stand for election to make all the laws to which we are subject and, secondly, that rather than removing any sense of the border down the Irish
Sea, the Windsor Framework cements in the border literally. We are confronted with this fact when we consider the following two questions. First, under the Windsor Framework, which types of commercial goods can travel on a lorry between Cairnryan and Larne ports without a customs declaration? The answer is none. Secondly, under the Windsor Framework, which commercial movements of dairy, meat and fish can travel on a lorry between those ports without an SPS declaration? Again, the answer is none.
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If this is not enough, yesterday Bernard Van Goethem told the European Parliament that Windsor will not commence until such time as the UK has literally cemented in border control posts and those have been checked by EU officials and deemed by the EU to meet its requirements and standards. If the Prime Minister wants us to believe that he has removed any sense of the border in the Irish Sea and that through this SI he has eliminated the democratic deficit, we cannot accept this because his words simply do not align with reality.
The effect of the legislation before us is clear. It cements in both the border and the reality of our disenfranchisement, and no self-respecting part of the UK—or any self-respecting part of any polity—would or should accept that. I urge all noble Lords to reject it today because it gives effect to the humiliation of not only Northern Ireland but the whole United Kingdom, and we should not be prepared to contemplate that.
I conclude by quoting from no one better than my own party leader, Sir Jeffrey Donaldson. When this measure was debated in another place last week, the leader of the DUP said:
“We are committed to continuing to work with the Secretary of State and with the Prime Minister, but that has to be about delivering on the commitment given to protect Northern Ireland’s place within the internal market of the United Kingdom, and to ensure that where EU law is applied to facilitate cross-border trade, it does not impede our ability to trade with the rest of our own country in the internal market of our own country. That is the bottom line for us, and until that is resolved, I cannot give the Government a commitment to restore the political institutions. It is what I want to do, but we need to get this right. I want Stormont to be restored on a sustainable and stable basis, where there is cross-community consent and consensus, but that does not exist at the moment. We need that consensus to be restored.”—[Official Report, Commons, 22/3/23; col. 358.]
I beg to move.