My Lords, before I get to the specifics of these two statutory instruments, I ask, in relation to legacy inquests under way in Northern Ireland, is the Minister not extremely perturbed—indeed, embarrassed—by the fact that state bodies appear to be openly running down the clock to 1 May, when the due process that we set such store by in the United Kingdom will no longer apply in Northern Ireland thanks to the shameful legacy Act? In one case, a Ministry of Defence official told an inquest, “We have only a single officer supporting Northern Ireland inquests.” In another, the legal representative of the PSNI admitted that further resources could be deployed and more progress made, but said, in terms, “What’s the point?” Is this not a disgraceful way to treat victims of the Troubles, who have suffered so much already? An abject failure by state officials and agencies to produce the necessary files in anything like a timely fashion also continues, despite the relevant state bodies being directed to do so by a serving coroner acting with the full authority of the Lady Chief Justice.
What on earth makes the Minister think that a body which the legacy Act sets up outside the judicial system headed by a retired former Chief Justice, however distinguished, will fare any better? Or, as many suspect, will those who will be denied proper inquests have to make do with a vastly inferior process on the cheap?
Having said that, I congratulate both the Secretary of State and Sir Jeffrey Donaldson MP on the resurrection of Stormont. We hope that the people of Northern Ireland will see the tangible benefits of functioning devolved government without delay. Sir Jeffrey’s detractors
would be wise to bear in mind that having functioning devolution is absolutely critical to safeguarding the union. The DUP recognised at St Andrews in 2006—I remember it well—that the future of Northern Ireland is necessarily shared, and its governance will always entail compromise.
Appropriately, therefore, the package of measures presented in the Safeguarding the Union Command Paper manages to address DUP concerns within the boundaries of the UK’s international legal obligations. Those obligations relate both to the EU and to the Irish Government and remain sensitive and vital relationships for the UK, particularly as they affect Northern Ireland. What happens in Northern Ireland will continue to be crucial to those relationships.
With this in mind, it is worth being exceedingly careful in legislating in this area, and I seek clarification from the Minister on four specific areas. First, relating to the amendment of Section 13 of the European Union (Withdrawal) Act 2018 regarding the transparency obligation, what is the definition of—or criteria for measuring—what would constitute
“a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”?
Furthermore, the Command Paper states in paragraph 146 that, if there was to be such a significant adverse effect,
“the Government will set out any measures it proposes to protect the internal market”.
In such an eventuality, how might such measures be made known to Parliament by the Government? I would be grateful for an answer to that question.
Secondly, how is the House to understand the
“prohibition of certain Northern Ireland-related agreements”
that is to be added to Section 38 of the 2018 Act? This regulation specifically prevents only a future UK-EU agreement that
“would create a new regulatory border between Great Britain and Northern Ireland”.
In the Government’s view, does this constitute the complete fulfilment of the Command Paper’s claim to protect against
“future EU agreements which create new EU law alignment for Northern Ireland and adversely affect the UK’s internal market”?
My third question relates to the amendment of the Northern Ireland Act 1998 on the independent review after the democratic consent vote. Why is the independent review to include consideration of any effect of the Windsor Framework on, first, the constitutional status of Northern Ireland, and, secondly, the operation of the single market in services between Northern Ireland and the rest of the United Kingdom? I ask because the Windsor Framework does not cover services and because it is without prejudice to the constitutional status of Northern Ireland as part of the UK. Indeed, the latter point is to be made law with the amendment of the European Union (Withdrawal Agreement) Act 2020 that we are currently considering.
Fourthly, the Safeguarding the Union Command Paper announces some ambitious new structures and bodies. Given their importance to the realisation of the objectives of this legislation, I would like clarification from the Minister on the following matters. How does
the new UK east-west council relate to existing bodies affecting all-UK and east-west governance, including the Prime Minister and Heads of Devolved Governments Council, the Interministerial Standing Committee, and the British-Irish Council? How, too, would it relate to the new ministerial group that, according to paragraph 152 of the Command Paper, is
“to oversee the implementation of the new arrangements”?
How is “political” and “governmental” participation in the east-west council from Northern Ireland to be decided? Is it to be the same as for the North/South Ministerial Council, with two Northern Ireland Ministers designated to attend each meeting, both of whom have to be jointly signed off by the First Minister and Deputy First Minister? How does the function of these new bodies and structures relate to the common frameworks programme?
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Finally, I ask something for clarification. The Command Paper states in paragraph 17 that this deal will
“end dynamic alignment with EU law”.
Surely this is particularly misleading. Ministers are spinning the Stormont brake—which can be used only in very specific conditions and on amendments to or replacements of EU law under the protocol—as if that ends dynamic alignment. It does not. Northern Ireland remains dynamically aligned to the same portion of European Union law. To claim that the Stormont brake ends that is like saying, because one could occasionally choose to put a finger over one of the tiny nozzles in a shower head, that the shower no longer has a full-flow function. There are dangers in misrepresenting the facts or in overspinning this deal. No matter how welcome the end—the restoration of Stormont power-sharing, and I very much welcome that—this does not justify any means of getting there.
There are serious questions to be asked as to how much of an honest broker this Government really are regarding Northern Ireland. That the Secretary of State for Northern Ireland held a joint press conference with the DUP leader, but with no other party leader, and that the Prime Minister did not hold one with the Taoiseach—as is usual on such important occasions, and as I remember witnessing—is deeply worrying. The Government claim they negotiated solely with the DUP because the other parties did not have a problem with the Windsor Framework or with the resurrection of Stormont. However, that breaches the process established under the Good Friday agreement of negotiating with all parties—for example, the multi-party talks resulting in New Decade, New Approach in 2020, to which the Minister was an important party as an adviser.
The fundamental conundrum is that Brexit meant a stark choice for English Conservatives and unionists. The harder the Brexit—and both the Tories and the DUP chose a very hard Brexit—the harder the trade border in the Irish Sea and the greater the discomfort for unionists and those Conservatives who trumpet their support for the union but—notably like Boris Johnson and the noble Lord, Lord Frost, did with their Brexit deal—in fact often betray it. None of us knows how
all this will play out over the next decade or so, but we can be sure that Brexit will continue to poison the shallow well of peace and stability on the island of Ireland, and that is a cause of continuing concern.