My Lords, I move this amendment to insert what I see as some honesty into the humble Address and to make clear what the legal and political reality is, because it is quite different from the words in the Government’s humble Address.
I accept that this humble Address, solemn as it is, has no legal status; we are neither changing nor making legislation. It does not alter one word of the protocol or its effect on the Belfast agreement. However, if we are sending this from your Lordships’ House to His Majesty King Charles, it is important that we get it right and make it honest. I am trying not to be too legalistic, but I want to refer to legal judgments and specific provisions because it is important to have on record for the future some material that confounds many of the claims made by the Government and, sadly, by the DUP leadership. This may well be the last time we have an opportunity to put all the arguments on the record.
Almost exactly a year ago, Sir Jeffrey Donaldson said in the other place that the Supreme Court had issued a judgment, and that the protocol has subjugated Article 6 of the Act of Union. He continued that it also changes a key part of the Good Friday agreement,
“which is the need for cross-community consent on matters of import to the people of Northern Ireland … These are the things that need to be addressed in UK law to restore our place within the United Kingdom”.—[Official Report, Commons, 8/2/23; col. 892.]
This humble Address pledges fidelity to the Belfast agreement and to the foundational importance of the Acts of Union. The two issues that Sir Jeffrey said had to be addressed—his words, not mine or anyone else’s—were the disapplying of cross-community consent in a manner inconsistent with the Belfast agreement and undoing the subjugation of the Acts of Union. That is what he said was necessary to restore Northern Ireland’s place in the union. Yet cross-community consent remains disapplied and Article 6 of the Acts of Union remains suspended. Noble Lords are asked to support a humble Address which does not say that. Instead, we are urged to play along and say that the Belfast agreement has not been changed and the Acts of Union are not still vandalised.
I listened last night to the debate in the other place. Sadly, I again heard the leader of the DUP attacking the very people he stood with over years of campaigning and protest—the people he now says talk nonsense, who do not know facts or history and have not read the Acts of Union. This latest attack on other pro-union people who, incidentally, he refuses to debate with in public, is based on a claim that such persons urged restoring the Acts of Union. It seems that now, perhaps after spending some time with the Northern Ireland Office—too much time—anyone who thinks that are fools. Whoever would suggest such a ridiculous thing as restoring the Acts of Union, our foundational constitutional statute?
The problem for Sir Jeffrey is that on 21 July 2021, he said in Parliament:
“what does the Prime Minister intend to do to fully restore the Act of Union for Northern Ireland and remove the Irish sea border?”—[Official Report, Commons, 21/7/21; col. 971.]
As I said earlier, he stood before on platforms all over Northern Ireland with myself, Jim Allister, Ben Habib, Jamie Bryson and many others campaigning in pursuit of that objective. Furthermore, he actually wrote a foreword to Jamie Bryson’s book on the Acts of Union, commending it to fellow unionists.
Being blunt, the only person who seems to have U-turned on all this is the leader of the DUP. His outburst on the Acts of Union is, I believe, about covering his U-turn. He is making efforts to create a puff of smoke around the Acts of Union to conceal the reality that, far from undoing the constitutional damage to that foundational legislation, he now accepts and implements it and thinks that, by talking nonsense about tariffs in 1801, everyone will be confused.
In October 2022, the DUP leader also said:
“Some lay great emphasis on cutting the number of checks on goods”
moving from GB to Northern Ireland. He continued:
“If that were to happen they say all our problems would be sorted … The truth of course is that the checks on the Irish Sea border are the symptom of the underlying problem, namely that NI is subject to a different set of laws imposed on us”.
That is very different from the Sir Jeffrey Donaldson in 2024. I hope that he will reflect on his comments. There is nothing wrong with changing one’s opinion; there is nothing wrong with people changing their views. I respect people who do that if they say it with intellectual honesty rather than lashing out at those who have not changed and have remained true to their principles. He clearly wanted to get the Assembly back, and that is fair enough, but you do that by being honest and straightforward with people, not trying to do a deal with the Government to produce words that are meaningless.
Of all the deceptions in the humble Address, those concerning the Acts of Union and the Belfast agreement are probably the most insulting. It pledges support for the Belfast agreement “in all its parts”, meanwhile omitting that the core cross-community consent safeguard found at Strand One 5(d) of the Belfast agreement and given effect in Section 42 of the Northern Ireland Act 1998 remains disapplied for the Article 18 protocol vote later this year. What is really meant by the words about upholding the Belfast agreement in all its parts is the Belfast agreement as constitutionally vandalised by the protocol and framework.
The previous government claim was that the cross-community consent mechanism applied only to devolved issues. That was the Government’s defence, but it is wrong on many levels, and I want to put why on record. Most fundamentally, if the cross-community consent mechanism was never applicable and we are all so misguided, why did the Government pass regulations to disapply that which never applied anyway?
Another part of what seems to many people to be duplicity is that the cross-community mechanism applies to a matter to be voted on by the Assembly. There is
no limitation as to only matters which are devolved or within legislative competence. That is obvious from paragraph 107 of the Supreme Court judgment in the challenge to the protocol that I and others were involved with. The Belfast agreement is not upheld at all; it has been made subject to the protocol—in this instance Article 18—and gives way to it.
We have come full circle. We were told that the protocol was about protecting the Belfast agreement in all its parts, but now we are celebrating an altered Belfast agreement, with safeguards disapplied to the detriment of unionists in order to protect the protocol. It is shameful, and what was so disappointing to me was that neither the deputy leader nor the leader of the DUP in the other place highlighted this most obvious deficiency. That is of profound concern.
I turn to the next bold claim in the humble Address, which is
“the foundational importance of the Acts of Union”.
I believe that the Command Paper, and the way the DUP leadership presented its endorsement of it, is an exercise in deception on the Acts of Union. No other word describes it. It said a lot, much of it inaccurate, about the Acts of Union but then tried to convince everyone that black is white. It said that we must believe that the Supreme Court did not say what it said, close our eyes and pretend that the Acts of Union are not subjugated and in suspension. We must delude ourselves that we are all confused and there is no conflict between the protocol framework and the Acts of Union, and that if there is then we should embrace it because if we do not—most bizarrely of all—tariffs might be brought back on Bushmills whiskey.
I do not like the word “subjugation”, but it is not my word. It was first used not by unionists or loyalists but by this Government in their written and oral submissions to the Court of Appeal, in which they said that the Acts of Union were subjugated. This argument was accepted and repeated in the judgment of the Court of Appeal and upheld by the Supreme Court. People sometimes get annoyed when I refer to subjugation of the Acts of Union, but I am using the Government’s words, or at least their words prior to their U-turn. We are now supposed to believe that the interpretation that the courts and all of unionism applied to Article VI of the Acts of Union was wrong and instead embrace the new inventive interpretation which amounts to nothing more than meekly accepting the fundamental change to our constitutional status, while pretending otherwise.
Sir Jeffrey Donaldson now puts his case—in a way much different from what he said on platforms prior to partnering with the Northern Ireland Office to sell his deal—on the basis that we cannot restore the Acts of Union because that would mean putting them back to 1801 and, as I said, there would therefore be tariffs on, for example, Bushmills whiskey. This sounds good symbolically and gets a good headline, but in substance it means that, because the Acts of Union have changed before since 1801, there is no issue. If you make this case, you must be willing to embrace the changes to the Acts of Union made by the protocol. Why else would previous changes add anything to your argument? When Sir Jeffrey talks about 1801, he is deflecting
from the central point. The constitutional damage we have all campaigned on was inflicted by the protocol, and that is the cause of the suspension of Article VI. The fundamental issue is whether that has been undone.
Let me put it simply, as this question must be responded to. Quoting the court, Sir Jeffrey talked about the subjugation of Article VI of the Acts of Union, which he said must be addressed to restore Northern Ireland’s place in the union. That has not been addressed. As it obviously has not, how can anyone claim, using his test as a measuring stick, that his deal restores Northern Ireland’s place in the union? That has not been answered by Sir Jeffrey or the Minister. Amid all this spin, there is a very simple question: as a matter of legal reality, the Acts of Union remain subjugated and in suspension—in the court’s words, not mine—so are the Government now willing to accept that as a legitimate change to the Acts of Union?
What we mean by restoring the Acts of Union is very simple. It means undoing the damage inflicted by the protocol. This has been turned around into a bizarre argument about tariffs on whiskey which is designed to confuse everyone. The reality is that, in 1801, there were no more tariffs or duties to be added to a specified agreed list unless they were equalised. These are known as countervailing duties. In simple terms, Schedule 1 to Article VI of the Acts of Union exhaustively specified certain items that would continue to be subject to tariffs and duties. This was an agreement between what was then Ireland and Great Britain; it was not imposed or agreed with a foreign power.
More fundamentally, it was designed to be transitional. As such, under the Statute Law Revision (Ireland) Act 1879, Schedule 1 was repealed. There have been no tariffs since. Contrary to the attempts to confuse and mislead people, doing exactly what Sir Jeffrey called for—repairing the damage done to Article VI by the protocol—would not, as if by magic, cause to spring back to life Schedule 1 and its list of tariffs abolished in 1879. It is silly and beneath such an experienced and eminent political leader, as well as others, to say such utter nonsense designed to create confusion because he will say nothing on the substance of the point around the Acts of Union.
The Acts of Union, prior to the protocol, remained in force. In the words of Lord Justice McCloskey, the intent of Article VI from 1801 was “unmistakable”. Yet now, listening to some senior members of the DUP and Ministers in the Northern Ireland Office, we are all supposed to believe that everyone has just fallen into one big misinterpretation, including our courts. The notion that, if the subjugation of the Acts of Union were lifted and the damage of the protocol undone, somehow Schedule 1, which was repealed in 1879, would come back to life and there would be tariffs on Bushmills whiskey—which would really upset the honourable Member for North Antrim—is complete and utter nonsense.
I will also address the claim in the Command Paper that the Supreme Court did not address the inconsistency between the Acts of Union and the protocol, as Ministers have said time and again. Yes, it did. It expressly proceeded on the basis that there was an inconsistency, as upheld by the High Court and Court of Appeal
before it, the highest courts in Northern Ireland. This is set out clearly in paragraphs 54 and 64 of the Supreme Court judgment. It confounds emphatically the claims of the Government. The most remarkable thing is that the Government accepted there was such an inconsistency and did not cross-appeal to the Supreme Court. Now they are trying to tell us something different. The inconsistency was held by the courts to be: first, the continued application of EU law; secondly, the ongoing fetters on trade; and, thirdly, Northern Ireland having privileged access to the EU single market, the price of which was our exclusion from being a full part of the United Kingdom internal market.
The noble Lord, Lord Bew, who is in his place, has said repeatedly in this House that the Acts of Union have been changed before. That is quite true, but the basis of his argument, as with Sir Jeffrey’s new position, must be that, because they were changed before, the present change should not offend unionists. Sometimes he seems to be urging us to embrace it. If he wants to deploy that argument, he should be honest about what it means: accepting the constitutional damage to the Acts of Union inflicted by the protocol. It means accepting that change on the basis that the Acts of Union have changed before. That is what some, including the noble Lord, have said. We should be honest about that.
It has also been said that EU law was never one of the DUP’s seven tests. Members of the DUP answered that pretty strongly in our last debate. An MLA called David Brooks set out last week in the Belfast News Letter that it was never a DUP test. That is really odd, because the leader of the DUP said in October 2022 that the core issue was EU law, and he said it again in February 2023 in an interview with Tracey Magee of UTV. The very first of the DUP’s tests was directed to the Acts of Union. You cannot restore the Acts of Union without removing EU law, because EU law is the most fundamental breach of them. It is very simple. A mention of restoring the Acts of Union cannot be anything other than a commitment to end EU law; otherwise, achieving such restoration would be impossible.
Practically everything I have said has been lifted more or less directly from the court judgment, which I hope many noble Lords will read, because it is clear that they are inconsistent with the Acts of Union.
If there are those who are willing to forsake the fundamental principles of the Acts of Union—as determined not by me but by the courts—in favour of the arrangements giving effect to the protocol, they need to be clear about what that means. What is happening here is something quite different, aided and abetted by the Northern Ireland Office: to evade the political costs for accepting the recasting of Article 6 of the Acts of Union by pretending—yes, pretending—that it is not happening at all.
This is important, and I have gone on about it —although I have not gone on as long as Sir Jeffrey did yesterday—because I want to get it on the parliamentary record that I and others here have not engaged in this con trick, for that is what it is. That is why I have said what I have said today and why I tabled the amendment to draw out this debate. In the weeks and months ahead, we will see all the glitter fall away. Unionist people and people in this House and elsewhere in
Parliament will see what has been tricked, pulled and put out to deceive people. No matter how hard those who have participated in this and have gone along with it may wish it not to be so, there will be a political cost to pay, because they have been warned.
All this, as well as being in the courts, was also agreed to by the independent lawyer, the former Attorney-General John Larkin, in his published legal advice. There has not been one single piece of legal advice produced, by the Government or the DUP leadership, to support the increasingly bold claims that they have made—I wonder why not.
I will conclude. The Acts of Union remain suspended. The cross-community consent mechanism central to the Belfast agreement remains disapplied. The Irish Sea border remains. The green lane, for which you are required to provide information for customs purposes to obtain authorisation to trade a little more freely in your own country, remains. The red lane, which operates on the basis of an at-risk category over which the EU has a veto, and which catches a significant amount of material and goods that go nowhere near the EU, remains. EU law continues; it is law that we did not make and cannot change. The protocol, in all its core aspects, remains in full force and continues to reign supreme. The only thing that has changed over the last year are the views of the DUP leadership, who now seem to accept all those facts and have returned to Stormont to implement them. If we are going to address His Majesty the King, we should tell him the truth. I beg to move.
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