Windsor Framework (Democratic Scrutiny) Regulations 2023

Motion to Approve

That the draft Regulations laid before the House on 20 March be approved.

My Lords, the Stormont brake is at the heart of the Windsor Framework. In the view of His Majesty’s Government, it addresses the democratic deficit, restores the balance of the Belfast agreement and ends the prospect of dynamic alignment. It restores practical sovereignty to the United Kingdom as a whole and to the people of Northern Ireland in particular.

In a democracy, people should have a say over any change to the laws under which they live but, under the old protocol, that was not the case, as noble Lords from Northern Ireland have frequently pointed out in this House. Changes to laws were automatically imposed on Northern Ireland whether it wanted them or not, and I, like many in this House, found that an unacceptable state of affairs.

The Stormont brake not only ends that situation but ensures that changes to rules and regulations have the consent of both main community designations in the Northern Ireland Assembly, asserting a fundamental principle of the Belfast agreement. The process works as follows: once an amendment to existing EU law within the scope of the Windsor Framework has been adopted, this will be notified by the United Kingdom Government to the Northern Ireland Assembly. The brake is triggered if, within two months of notification, 30 MLAs from two or more parties object to an amending rule or regulation. These MLAs can be from the same community designation so, in theory and in practice, they can come from two or more unionist parties or two nationalist parties. The exercise of the brake will require no other process and no vote in the Assembly. Once the brake has been pulled, the law will automatically be disapplied in Northern Ireland after two weeks. The EU could challenge the use of the brake only through international arbitration after the law had been suspended, where the bar to overturn it would be exceptionally high.

In our view, the Stormont brake is one of the most significant changes that my right honourable friend the Prime Minister has secured. It is a robust change that gives the United Kingdom a veto over dynamic alignment with EU rules. Just as importantly, the regulations put the democratically elected representatives of the people of Northern Ireland in charge of whether and when that veto will be used.

The old protocol had some measures aimed at giving it democratic legitimacy; for example, the Government had—and still retain—a veto over any new laws that the EU wanted to add to the protocol. However, that veto did not extend to amendments to laws that are already here. Crucially, there was no role for the Northern Ireland Assembly in deciding whether and when to use the veto. Of course, the old protocol also contained a democratic consent mechanism as a means of giving the Assembly the right to end the application of its Articles 5 to 10. Those measures are maintained in the Windsor Framework but they were not in themselves enough to address the democratic deficit, as my noble friend Lord Dodds of Duncairn and others have pointed out to your Lordships’ House many times.

Moved by

Leave out after “that” and insert “this House declines to approve the draft Regulations because rather than eliminating the democratic deficit they make provision for law to be made for Northern Ireland in 300 policy areas by the European Union in whose parliament the people of Northern Ireland have no representation; because they only give the Northern Ireland Assembly the right to try to prevent the amending or replacing of EU law in relation to laws pertaining to product regulation, and give no such right in relation to other legislation in areas such as VAT, State Aid, customs, electricity etc.; because the freedom of the Assembly to try to prevent the application of changes made to EU law applying to Northern Ireland is further constrained by the requirement that the change in product regulation must have a significant and lasting effect, and even then the EU can object, sending the matter to arbitration which might find against the position of the Northern Ireland Assembly, a situation which confirms that the Stormont brake is not a veto, and even if arbitration finds in favour of the position of the Northern Ireland Assembly, the consequences of this are very limited and this highly constrained expression of democracy is subject to retaliatory remedial action by the EU; and because the requirement to subject the existing Westminster brake to an applicability motion from the Assembly can be ignored by His Majesty’s Government”.

My Lords, when announcing the arrival in another place of the statutory instrument that is now before this House, the leader of the House described the provision as a “keystone” in the Windsor framework. This is interesting because, until February, government engagement with the problems associated with the protocol had focused almost entirely on the practical economic difficulties relating to having a customs border dividing the UK in two.

In truth, however, the democratic problem is the place to start because it precedes the economic problem. The only reason to have a border down the Irish Sea is to protect the integrity of the different legal regime in Northern Ireland that results from the imposition of a different legal order on us, in 300 different areas of law, by the European Union—a polity of which we are not part, with a legislature in which we have no representation at all. Thus the border down the Irish Sea is, first and foremost, the border of our disfranchisement before it is the border that sets us apart from the rest of the UK economically. Both result from the partial suspension of the Acts of Union.

When announcing the Windsor Framework in Windsor, the Prime Minister told the people of the United Kingdom that it

“removes any sense of a border in the Irish sea”.

On this basis, it made sense that he was then able to affirm in another place a couple of hours later that the Stormont brake, as part of the Windsor Framework, eliminated the democratic deficit. The Prime Minister made this claim not just once but four times. On one occasion he said:

“The Stormont brake eliminates that democratic deficit and restores sovereignty to Northern Ireland”.—[Official Report, Commons, 27/2/23; col. 610.]

This a high threshold against which to measure the efficacy of the statutory instrument before us today. It is right that it should be, because—and perhaps it will not surprise noble Lords to hear this from the chairman of the Democratic Unionist Party—there can be no cutting corners when it comes to democracy.

Indeed, the need to defend and uphold democracy in Northern Ireland is never far away. Yesterday, I was saddened to receive a letter from the Minister highlighting that the threat level in Northern Ireland has been raised to severe. I found myself very much at one with him when he wrote:

“Collectively we will ensure Northern Ireland continues to move forward and there is no return to the violence of the past. Democracy and consent will always prevail.”

Do the Windsor Framework (Democratic Scrutiny) Regulations rise to this exacting democratic threshold? I do not believe that they do. That is why I have taken the step of tabling my amendment in your Lordships’ House today.

It did not take long after the announcement of the Stormont brake, as part of the Windsor Framework, before its utility was being called into question. Commentator after commentator piled in to question whether the Stormont brake could be made to work. I will come to their critiques presently. In the rush to expose the practical problems associated with pulling the brake, people forgot the elephant in the room: as I pointed out on 1 March, even if the Stormont brake worked perfectly, far from eliminating the democratic deficit, the regulations seek to cement in that deficit and the debasement of UK citizenship in Northern Ireland.

Nothing in the regulations before us today, or in any other aspect of the Windsor Framework, changes the fact that, under the protocol, the people of Northern Ireland cannot stand for election to make the law to which we are subject in some 300 different areas. These regulations suggest that, uniquely within the UK, our citizenship is debased, in that we must become law-takers rather than lawmakers, not just for 300 laws but for 300 areas of law.

As it stands, as of 1 January 2021, over 640 laws have been imposed on us. That number will just go up over time. Into this context the suggestion is made that the Stormont brake solves the problems because, if it works, it provides us with the opportunity to veto laws made for us by a polity of which we are not a part and a legislature in which we have no representation. However, that facilitates only an infantilised citizenship that is empowered to reject law but not given responsibility to make new laws. As I said in the House on 1 March: