My Lords, this amendment seeks to put beyond doubt what the Government claim to be the case—so they should have no difficulty accepting it or bringing forward an amendment of their own with the same purpose and effect.
The Government assert that Article 2 of the Northern Ireland protocol or Windsor Framework is not engaged in regard to immigration and therefore can have no application to the Bill before us. Their argument, however, has been blown out of the water on a number of occasions recently in the High Court of Northern Ireland. There should be little surprise at that, given the supremacy of Article 2 of the Windsor Framework and EU law over any domestic British law by virtue of Section 7A of the European Union (Withdrawal) Act 2018. A number of court cases in recent weeks have confirmed that in the High Court in Belfast.
First, in the application for judicial review in the Angesom case on 18 October, Mr Justice Colton ruled that Article 2 of the Windsor Framework is applicable and relevant to immigration cases, and that EU law and the EU Charter of Fundamental Rights continue to apply.
Secondly, in the case of application JR 295 for leave for judicial review concerning the Illegal Migration Act, Mr Justice Humphreys stated in his judgment of 12 February, in paragraph 43:
“It is clearly arguable that this applicant enjoys the protection of Article 2(1) of the Windsor Framework and can seek to rely on the rights enshrined in the various EU Directives, Regulations and the Charter in order to challenge the provisions of the IMA”.
He went on to say that this was entirely consistent with the granting of leave to the Northern Ireland Human Rights Commission, which is bringing a parallel challenge.
Thirdly and most recently, on 28 February 2024, the High Court in Belfast ruled that the immunity provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are incompatible with European Convention on Human Rights and Article 2 of the Windsor Framework once again. The significance of that of course is that it was not just a ruling of incompatibility under the European Convention on Human Rights, but it was ruled that a number of the provisions, all relating to immunity under that Act, were disapplied. Mr Justice Colton stated that Section 41 of that legacy Act was “incompatible with” Article 2 of the Ireland-Northern Ireland Protocol/Windsor Framework. So, pursuant to Section 7A of the EU withdrawal Act 2018, Article 2 has primacy over Section 41, thereby rendering it to have no force and effect—so Section 41 should be disapplied.
These very recent rulings of the High Court in Belfast have far-reaching consequences for the Bill before the House, and more generally. The ruling in relation to Article 2 of the Windsor Framework is highly significant because of the reasons I set out regarding disapplication, not just incompatibility. I put down this amendment to explore, first, how the rulings of the High Court fit with the Government’s assertions. Secondly, how do they sit with paragraph 46 of Command Paper 1021 Safeguarding the Union? That paper says:
“The important starting point is that the Windsor Framework applies only in respect of the trade in goods—the vast majority of public policy is entirely untouched by it. This includes important areas like immigration”.
This is clearly at variance with what three High Court judgments have now ruled. Some of us were pointing this out when the Command Paper was published, and indeed, long before that. If European law is enshrined and given primacy in Northern Ireland as a result of Section 7A of the European Union (Withdrawal) Act 2018, this is the inevitable outcome. It is very clear in law that that is the case.
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But there has been a bit of a co-ordinated campaign to drown out the facts and obscure some inconvenient realities of the situation. I urge government Ministers to be more open and transparent about the effects of EU law application in Northern Ireland and, as a result of Section 7A, to the UK as a whole. This is not the first time that we have found that the Government have been somewhat economical with the reality in relation to the application of the Windsor Framework. We found it with some of the debates we had on trade deals and on the animal welfare legislation, when the Government argued that they made a policy choice on allowing the export of live animals from Northern Ireland. In fact, their own impact assessment for that Act said that they could not but allow this trade in live animals to continue. They had no choice in the matter; it was not a policy decision.
This amendment is designed to test the claims about the Windsor Framework and the claims made in the Command Paper. Can the Government and the Minister give an absolute guarantee today that all the provisions of the Bill will apply to Northern Ireland, in light of the judgments that have been given in the High Court in Northern Ireland? If the Government cannot give me that guarantee, why do they not legislate to make that clear, along the lines of the amendment I have put forward? The Government refused to take on board that amendment in the other place, and they resisted it in Committee in this House—I tabled such an amendment along with my noble friend Lord Morrow. Will they commit to taking action to put this in line with what they claim is their position and the position in the Command Paper? I would appreciate it if the Minister could commit at least to meeting with me to discuss this matter in detail before Third Reading to see how we take this forward.
The reality is that, whatever your view on all these matters—whether it is something like the animal welfare legislation or whether it is the very important and fundamental provisions of the Bill, whether you agree with the substance or not—we must have openness and transparency about the reality of how it applies in Northern Ireland and the reasons why it cannot. That is what I am eager to explore, and the Government need to tell this House and be frank with the people of Northern Ireland about the reality of how we are now governed. I look forward to the Minister’s reply.