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.
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