Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Motion to Approve

Moved by

That the draft Regulations laid before the House on 31 January be approved.

My Lords, I shall speak also to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024. I offer my gratitude to my noble friend Lord Hunt of Wirral, chair of the Secondary Legislation Scrutiny Committee; the Joint Committee on Statutory Instruments; and members of those committees in this House and the other place for their expeditious consideration of both instruments.

These regulations deliver on key commitments set out in the Safeguarding the Union Command Paper, the contents of which I set out on the Floor of the House on 1 February. The commitments made in that Command Paper will strengthen our union and the UK internal market now and for the long term. I am pleased that the Command Paper has created a situation whereby the Democratic Unionist Party agreed with the recommendation of its leadership to end the boycott of Stormont and has provided the basis on which the devolved institutions in Northern Ireland have returned, with support from across the community; a Speaker of the Northern Ireland Assembly has been elected with a full complement of Assembly Members now able to serve fully their constituents; a First Minister and deputy First Minister are now in office, and a full complement of Executive Ministers is now forming the Administration in Northern Ireland. It is in that context that I ask noble Lords to consider the two regulations before the House.

I turn to the first of these, the draft Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, which seek to strengthen and future-proof Northern Ireland’s place within our union in law. They do so consistent with the vital protections contained in the Acts of Union 1800 and by the terms of the Northern Ireland Act 1998. They seek to address sincere concerns among some in the unionist community that Northern Ireland’s status within the union has somehow been diminished. The Government have been clear in our determination to see our union strengthened, and these regulations have been designed with that in mind. They clarify that Section 7A of the European Union (Withdrawal) Act 2018, the sovereign Act of Parliament that gives effect to the Government’s commitments under the withdrawal agreement, operates subject to the democratic safeguards in the Windsor Framework. That, of course, includes the Stormont brake, which gives the Assembly, now that it is up and running once again, powerful and vital democratic oversight over new, amending and replacing EU laws.

These regulations also provide a safeguard against any prospect of regulatory borders between Great Britain and Northern Ireland emerging from future agreements with the European Union. They mean that no Government in the future can agree to another protocol or form of agreement which would undermine the integrity of the United Kingdom internal market. On matters of domestic legislation, the regulations will introduce new safeguards so that government Bills that might affect trade between Northern Ireland and other parts of the UK are properly assessed. Ministers in charge of such a Bill would need to provide a Written Statement to Parliament on whether legislation would have a significant adverse effect on trade between Northern Ireland and other parts of the UK.

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.

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.

My Lords, I endorse the remarks of the noble Lord, Lord Hain, in relation to the wind-down of the inquests as a consequence of the legacy Act. What is happening in Northern Ireland is outrageous at the moment and causes huge distress to victims.

These instruments derive from the Command Paper Safeguarding the Union, which was stated to be the product of detailed discussions with the Democratic Unionist Party. Paragraph 2 of the paper refers to these discussions being conducted alongside

“engagement with other Northern Ireland political parties and the business community”.

Could the Minister tell the House with whom that engagement took place, since other parties were apparently not sighted of the content of this Command Paper? Can the Minister tell your Lordships’ House why the agreed processes of the Good Friday agreement, which are intended to ensure inclusivity and all-party engagement in order to make change or develop matters, and the Northern Ireland Act 1998, which was passed to make provision for the Government of Northern Ireland for the purpose of implementing the agreement reached at the multi-party talks in Northern Ireland, did not operate in this case?

It may have been predicated on enabling the DUP to return to government in the Northern Ireland Assembly—and I am glad to see the Assembly back and running. However, exclusion of all but one party at this critical time, and the failure to follow the principles established in the Northern Ireland Act in the creation of government policy affecting Northern Ireland, are unlikely to generate trust among the political parties or in the UK Government.

In the multiparty document recommending the Good Friday agreement to the people of Northern Ireland, the signatories said:

“We acknowledge the substantial differences between our continuing, and equally legitimate, political aspirations … we will endeavour to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements … we will, in good faith, work to ensure the success of each and every one of the arrangements to be established under this agreement. It is accepted that all of the institutional and constitutional arrangements—an Assembly in Northern Ireland, a North/South Ministerial Council, implementation bodies, a British-Irish Council and a British-Irish Intergovernmental Conference and any amendments to British Acts of Parliament and the Constitution of Ireland—are interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on … the other”.

My Lords, it is a pleasure to follow the noble Baroness, Lady O’Loan, and to take part in the debate. There are two aspects to the package that the Government have brought forward. One is the Command Paper itself, which contains much in the way of the presentation, justification, pledges and promises of new bodies and so on. I hope that there will be an opportunity, at some time in the near future, to debate in full the Command Paper, because what we are also dealing with tonight is the second aspect of the package: the legal instruments and provision. They are what really matter, because it is only legal change—by legislation—that can alter the current arrangements under the protocol/Windsor Framework.

What do these statutory instruments actually do? In essence, the critical question for many unionists in Northern Ireland, from various parties and none, is: do they remove the Irish Sea border and its cause—the subjection of Northern Ireland to foreign jurisdiction regarding the production of goods and agri-food, a large part of our economy?

Looked at objectively, clearly and forensically, the answer is that, clearly, they do not. Whatever else they represent, they do not remove, at all, the serious constitutional, democratic and, for many, economic damage of the Windsor Framework. However, I accept that they do provide reassurances, clarifications and modifications to certain procedures in how the Irish Sea border and EU jurisdiction operate in practice. Many will see positives in that, and I fully understand it. However, these are all within the context of the continuing application of the framework and the protocol, since not a word of the protocol has changed.

I accept that, in the overall package that has been put forward by the Government in their Command Paper, there are things which are positive, which have been referenced already, such as the east-west council, InterTrade UK and the changes to the budget with the new formula, although I share the concerns about the intervention that appears to be taking place in terms of revenue raising. On the one hand, we are told by many that we need to get devolution back to allow Northern Ireland politicians to make decisions; then, almost immediately, we have senior politicians, including former Secretaries of State, warning that if Stormont does not act in a certain way, Westminster will intervene —so much for respecting the Sewel convention and devolution. I commend the work in other areas too and congratulate those who have been involved in achieving this. There are some significant promises and pledges, although we have heard some of them before; I hope that this time they will be delivered.

Coming back to the legislation, which is the key and operable part of what changes or does not change as far as the current position is concerned, these regulations are being made under Section 8C of the European Union (Withdrawal) Act 2018. These enable Ministers to make regulations for the purpose, importantly, of implementing the Northern Ireland protocol and for related purposes. That is the purpose of the section under which these relations have been found—to implement the protocol. That guides us in terms of what is presented in these SIs.

The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 contain five parts. First, we have the new provision, inserted into Section 38 of the 2018 Act, about the union. It is positive in words and declaratory in nature. I take no issue with its contents. However, it does not and cannot change or reduce any obligation under EU law in Northern Ireland. It is not operable or effective, nor has it any efficacy in terms of changing anything that is applied to Northern Ireland under the protocol following the Windsor Framework.