My Lords, I agree with the noble Lord’s last point. I congratulated the Prime Minister on the Windsor Framework when it was discussed the
other week, and I repeat now that I think it was an outstanding achievement which can lead to great progress with the European Union on Northern Ireland’s behalf. I also salute the work of the Secretary of State in that respect.
I cannot support the fatal amendment to the Motion. I supported, and continue to support, the Windsor Framework as improving and amending the protocol in a way that is beneficial overall to Northern Ireland, and as a way of making the consequences of Brexit for Northern Ireland and the Good Friday agreement less disruptive than they were always going to be. I thank the Minister for the letter he sent us a few days ago on the security situation in Northern Ireland. However, I worry about the vacuum that has opened up because politics are not functioning; when politics do not function in Northern Ireland, darker forces move in.
Having said that, a lot of the detail of the Windsor Framework is still unclear. I will ask a series of questions about it, which I hope the Minister will be able to answer. In that respect, I acknowledge the lecture by Professor Katy Hayward of Queen’s University Belfast to Birkbeck College on 23 March 2023 for raising many questions that need answering. Questions have also been raised by the former director-general of international relations at the Executive Office for Northern Ireland, Dr Andrew McCormick, in his evidence to the Protocol on Ireland/Northern Ireland Sub-Committee meeting on Wednesday 22 March. I followed the excellent speech by the chair of that committee, who conducts the proceedings with great expertise and empathy among a very diverse series of members.
Dr McCormick pointed out that the requirement under this statutory instrument for a Northern Ireland Assembly cross-community consent vote on applying new EU law in Northern Ireland could enable a minority in the Assembly to take Northern Ireland out of the EU single market if the EU deemed the law essential to its functioning but the Assembly minority objected. Can the Minister say whether he agrees with Dr McCormick and, if he does not, in what way Dr McCormick’s view might be wrong?
Can the Minister assure us that the potential ramifications of this statutory instrument have been properly considered, and in full? Professor Hayward has asserted that the operation of the mechanisms it contains could reshape the legislative landscape in Northern Ireland, increase tensions between the parties in the Assembly, hinder the effective operation of the institutions of the Assembly and their public accountability, and bring some disturbance to relations across all three strands of the agreement, as well as United Kingdom-European Union relations.
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Prior to the Windsor Framework, the protocol had a glaring democratic deficit. Northern Ireland’s elected political representatives were not to be consulted on new EU single market legislation applying to its citizens and I, among others, felt that that was unacceptable. It is welcome that this statutory instrument sets up three things for addressing that democratic deficit—a Democratic Scrutiny Committee, the Stormont brake and the applicability Motion—by which there can be
no new EU law added to the protocol without cross-community consent. But this statutory instrument offers no details on how the UK Government might assess the test criteria, and it provides for a minority veto over future EU single market legislation, which could leave Northern Ireland out of compliance with the single market, a point that the noble Lord, Lord Clarke, made earlier. This could have implications for north-south co-operation on the island of Ireland, which would not only put strain on strand 2 of the Good Friday agreement but could undermine Article 11 of the protocol, which requires the UK and EU to maintain the conditions for such co-operation. Does the Minster accept that?
In practice, it is not clear to me in what way the new Democratic Scrutiny Committee, a welcome new institution established in the Assembly, will interact with the functioning of the Stormont brake. That brake can be exercised by one-third of the MLAs from just two parties, who could gather evidence of their own in a process that runs outside the committee’s. Does the Minister accept that this could potentially undermine and delegitimise the work of that committee?
Overall, there are many omissions, ambiguities and ramifications in this statutory instrument, which appears not to have been designed genuinely to address the democratic deficit by providing for a proper process of scrutiny, transparency and accountability. Instead of equipping the Assembly for proper governance, the intention seems to be to reassure anti-protocol unionists that they have a potential veto. How is that compatible with the Good Friday agreement? Again, that is a point the noble Lord, Lord Clarke, raised earlier.
Secondly, the applicability Motion would seem to provide for a minority veto of new law being added to the protocol. The UK Government can still, as they always could, veto this, but the statutory instrument could ensure that such new law is not added unless there is cross-community support. Of course, the UK Government may still choose to allow the addition of new law if it is not deemed to introduce new Great Britain/Northern Ireland regulatory barriers. But does the Minister agree that, under this statutory instrument, the UK Government could veto the addition of new single market law, even if there is cross-community support for it? Does the Minister also agree that that there is no requirement under this SI for the Secretary of State to take account of the view of the scrutiny committee—an odd omission, it seems to me—or even to be bound by a positive Northern Ireland Assembly vote?
If the Stormont brake and applicability Motion are successfully used, they may well stoke tensions in the Assembly. If the minority of MLAs are unsuccessful in their quest to use it, that could well increase resentment towards the Windsor Framework and the UK Government. Has the Minister anything to reassure us that this will be avoided? Surely, at its heart, offering more minority vetoes is incompatible with effective or stable democratic governance. It is also incompatible with the Good Friday agreement. Is this device for a potential minority veto aimed at luring the DUP back into power-sharing at the expense of the very fundamentals of the Good Friday agreement? Again, I would be grateful for the Minister’s answer.
Although I welcome much in the Windsor Framework, I am also troubled by the ability under it of the UK Government to override Northern Ireland’s self-governance and to prioritise short-term political objectives and incentivisation through the use of such a device. As Sir Jeffrey Donaldson, the leader of the DUP—whom I greatly respect, not least because he is, like me, a Chelsea supporter—has observed, the issue is not only about Northern Ireland aligning with EU single market law, but Westminster not aligning in accordance with the cherished mission of the Brexiteers, and doing so through the use of delegated powers: that is, ministerial fiat through executive prerogatives, which is an increasing and unhappy feature of the last decade across a range of matters. Where are the guarantees that Northern Ireland’s interests in the round will be considered and protected in that process?
In short, this SI entrenches a more powerful UK Executive at the expense of both the UK Parliament and the Northern Ireland Assembly. The new institutions established by the Windsor agreement may be well intentioned—I think they mostly are—but they also contain long-term risks. The DUP might be attracted by the promise of being able to exercise a minority veto over replaced and new EU law in Northern Ireland, but it may well find in due course that a much bigger democratic deficit comes from the UK Government exerting their executive powers in future.
I look forward to the Minister’s replies to these points and his assurances, if possible. Meanwhile, I will vote against this fatal amendment and in support of the overall framework.