My Lords, Amendment 80, in my name and that of my noble friend Lord Morrow, relates to the application of the Bill across all parts of the United Kingdom. I want to explore with the Government—I would be interested in hearing their response—whether, despite Clause 8(1) stating that the Bill
“extends to England and Wales, Scotland and Northern Ireland”,
that is in fact the case, given the effects of Section 7A of the European Union (Withdrawal) Act 2018. That is of course the conduit by which EU law flows into Northern Ireland under the Northern Ireland protocol, also known as the Windsor Framework.
Whatever one’s view of the merits of the Bill, it appears to apply across the UK with equal effect. That is according to the Bill and of course it should be the case: immigration law has always applied with equal effect right across the United Kingdom; otherwise, the danger is that one part of the country will be operating different rules, with all the attendant consequential problems that would arise. So what is the position and what effect would the Bill have on Northern Ireland?
As we know, under Article 2 of the Northern Ireland protocol, which remains fully in place today despite the recent Command Paper which the Government have published, there is no diminution of rights for Northern Ireland compared with what previously existed under the Belfast agreement. The Government argue that the issues of immigration are not captured under that provision, and that therefore the Bill can proceed and Article 2 does not have any effect. However, in my view there is no doubt that Section 7A of the European Union (Withdrawal) Act 2018 allows for the continuing application to Northern Ireland, uniquely within the United Kingdom, of the Charter of Fundamental Rights and EU general principles.
I refer the Committee and the Minister to the recent High Court case in Belfast and its judgment in the Aman Angesom case, on 18 October 2023. This was a case of judicial review and at paragraph 94 of that judgment it was stated:
“The combined effect of section 7A of the European Union (Withdrawal) Act 2018 … and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit”
from the European Union. It continued:
“Thus, the Charter of Fundamental Rights remains enforceable in Northern Ireland and falls within the ambit of Article 2(1) of the protocol”.
Within the Charter of Fundamental Rights of the European Union is Article 18, which has rights of asylum. Is it not the case that despite the Bill stating in Clause 8(1) that it extends to Northern Ireland, because we do not have a notwithstanding clause in relation to Section 7A of the 2018 Act, Northern Ireland is in fact not now in the same position—or would not be in the same position—as the rest of the United Kingdom, were this Bill to proceed unamended? If that is so, the Government need to be totally transparent and open about it. We have had examples recently of legislation coming to this House, including a recent debate on a matter to do with trade, in which amendments were
tabled to illustrate the fact that despite that legislation being silent on the matter, major provisions of that Bill could not apply to Northern Ireland because of the effects of the protocol/Windsor Framework.
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If there is no problem then the Minister should have no difficulty in accepting the amendment in my name, which will clarify beyond any shadow of a doubt that the principle of the Bill—whatever the merits of it—should be that it applies across the board across the United Kingdom; otherwise, we will find that Northern Ireland will become a magnet for asylum seekers and others. They will say that the less rigorous application of procedures and sanctions will not apply in Northern Ireland. Therefore, people will want to move there. People who then come into Northern Ireland will perhaps wish to move to the rest of the United Kingdom. Then, not only will we have a trade border, but potentially a people border at some point in the future.
I want the Minister to look very carefully at the judgment in the High Court in Belfast I referred to. Could he explain why he believes that the amendment I and my noble friend have tabled therefore is not relevant? If we are curtailed in Northern Ireland by—or subject to, I should say—the EU Charter of Fundamental Rights, could he explain how asylum cases will be processed and dealt with in Northern Ireland compared with the rest of the United Kingdom?
What we have here, in effect, is another example of how Northern Ireland—whatever one’s views on a particular issue may be—does not have the right to decide. Even people in this mother of Parliaments, either the other place or your Lordships’ House, or in the Northern Ireland Assembly, do not have the right to decide these things for themselves—whatever side of the argument they may come down on. These matters are now decided for them as a result of the application of the Northern Ireland protocol and the direct application of EU law uniquely within this United Kingdom to one part of it. That raises very serious constitutional issues and very serious issues about democracy itself.