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Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Volume 817: debated on Wednesday 19 January 2022


Amendment 1

Moved by

1: After Clause 2, insert the following new Clause—

“First Minister and deputy First Minister to be referred to as Joint First Ministers

The First Minister and deputy First Minister elected under the Northern Ireland Act 1998 are to be referred to as Joint First Ministers, and all references in that Act (other than to their election) to the First Minister and deputy First Minister are to be read as references to the Joint First Ministers.”Member’s explanatory statement

This new Clause provides that First Minister and deputy First Minister be referred to as Joint First Ministers reflecting their identical status, powers and responsibilities.

My Lords, Amendment 1 is in my name. I also support Amendment 2 in the name of the noble Lord, Lord Empey. Amendment 1 would provide that the

“First Minister and deputy First Minister be referred to as Joint First Ministers reflecting their identical status, powers and responsibilities.”

At Second Reading, I indicated that the Good Friday agreement provided a level of hope and expectancy back in May 1998, and that we in Northern Ireland want

“to use the architecture of the Good Friday agreement to work together in partnership, reconciliation, parity of esteem and respect for difference. Those are the kernels we urgently need to build the political stability and resilience of government.”—[Official Report, 29/11/21; col. 1234.]

We need to revert to that position through the title of Joint First Minister for the good delivery of policies, for proper identification, for equality, for reconciliation and, in terms of that good delivery of policies and operational matters, for the people of Northern Ireland. Why do I say that? To recreate that hope and sense of fairness and equality that we all felt back in 1998.

Central to the Good Friday agreement were consensus and the principle of consent. As I said, the agreement contained the infrastructure and architecture that provided the framework for people to work together with respect, mutual understanding, trust and confidence in each other. Those basic principles were also discussed at St Andrews but there was a change of emphasis in terms of the appointment of the First and deputy First Ministers, as the noble Lord, Lord Empey, will refer to when he introduces his amendment.

Now, we need to build on this Bill and return to that vision of 1998, which created the infrastructure and architecture to manage differences and realise a better shared future based on partnership and working together in Northern Ireland. It is important that we revert to the spirit of the 1998 agreement. I believe that this amendment in my name, to which the noble Baroness, Lady Suttie, has added her name, would ensure that the Joint First Ministers are classified as such to demonstrate that they have identical status, powers and responsibilities. I firmly believe that this would confer on the people of Northern Ireland the sense of responsibility that the Northern Ireland Executive have, and it would help them to see people physically and ethically working together because, to all intents and purposes, both posts are equal. This also needs to be reflected in the way they are elected, hence my support for the amendment in the name of the noble Lord, Lord Empey.

Both amendments would provide a solution to the Government in that they would de-sectarianise the Assembly election coming up on 5 May; diminish the focus of the election on, “Make me First Minister and do not let that other party and them ones get in”; and ensure that the election concentrates on health, post-pandemic recovery, jobs, education, the economy and improving the lives of people, which is what politics should be about and which we discuss in this House and the other place on a day-to-day basis.

I note that the Minister indicated in Committee that he was sympathetic to the intent and import of this amendment but felt that, at this stage, the Bill was not the “right vehicle” as it is about the legislative commitments in New Decade, New Approach. In the past week, we have seen other commitments that were definitely outwith that agreement that were going to be made but, as I understand it, will now not be made. What is the position of the Government now? Are they and the Minister acting on their behalf prepared to accept this amendment, which would help to stabilise the institutions, diminish the volatile situation and further prevent the instability that currently exists or could exist in a post-election sphere?

If the Government cannot accept this amendment today, can the Minister give other types of assurances to your Lordships’ House about how it can be, shall we say, discussed or legislated for in terms of negotiations in the future?

I have a word of warning. My belief and understanding is that things may not be all that settled in the post-election sphere and that, therefore, it may be better to do things at this juncture to bring about that necessary political stability. In that vein, I beg to move.

My Lords, I have a great deal of sympathy with the amendment that the noble Baroness, Lady Ritchie of Downpatrick, just moved, and I say that as somebody who was not a fan of the Belfast agreement when it was signed. I opposed it, I hasten to add, not on orange or green grounds but on democratic grounds—being Ulster Catholic on one side and Scots Presbyterian on the other, I always felt I had a bit of a personal stake in power-sharing. However, I did not like the way that there was no proper opposition, the way it enshrined all the parties being in office, and the implication that things would become a scramble to reward supporters of those parties with public sector positions. I lost that argument—Northern Ireland went in a different direction and there is now a consensus behind it.

However, having gone down that road, it seems, as the noble Baroness says, that this is closing a loophole. We have decided to create these two positions as effectively coequal. The only difference between them is one of nomenclature, and if that is causing a sense of inequality or, if you like, forced competition in elections, as the noble Baroness said, it seems a quite small alteration that this amendment would address. Of course, I understand that the Bill is primarily about something else but I reiterate her call and hope that my noble friend the Minister will keep it under consideration.

My Lords, I too speak in support of Amendment 1 in the name of my noble friend Lady Ritchie of Downpatrick. In doing so, I will say a word or two about the fairly dangerous context that Northern Ireland politics is now in.

There is no greater or more enthusiastic supporter of devolution than I but where processes put in place for the best of motives are abused, there is an obligation on us all to rectify that. Regrettably, there have been examples in the recent past where the implementation of legislation passed at Westminster—because, for whatever reason, it could not be passed at Stormont—has been thwarted by either the DUP or Sinn Féin.

That was the case for payments for those severely injured through no fault of their own during the Troubles, which were disgracefully blocked by Sinn Féin despite being in statute as a legal obligation—as a result of an initiative taken in your Lordships’ House—until it was humiliatingly ordered to obey the law by High Court judges. It is perfectly legitimate for the DUP to oppose the protocol but it is not legitimate unilaterally to seek to block it. How can one party alone in a devolved Administration seek to block an international treaty agreed between the Government of the United Kingdom whom they support and the European Commission?

Amendment 1 seeks to improve the Bill and thus strengthen the institutions supporting devolution in Northern Ireland. I hope that the Bill will have the support of noble Lords across the House, and I particularly welcome the recent commitment in the letter from the Minister to early commencement, as well as his Amendments 8, 9 and 10, which I support but which I will not speak to now.

However, I am concerned that, while we are discussing how best the institutions underpinning devolution can be made to function more effectively, there is a threat from the DUP to bring down those very institutions. Threats, veiled or otherwise, to collapse the Good Friday agreement institutions, whether over the outworking of the hard Brexit policy the Government disastrously pursued—supported by the DUP—despite repeated warnings about the inevitable outcome for Northern Ireland, or because the democratic process may produce a result that some parties may dislike, do not serve the people of Northern Ireland and their democratic self-government at all well.

The Government have a responsibility to do all they can to ensure that the long-term stability of Northern Ireland is not jeopardised in the way I fear is currently the case. The whole House acknowledges the Northern Ireland expertise and long experience of the Minister, the noble Lord, Lord Caine, who is not to blame for successive Secretaries of State since 2010—Julian Smith honourably excepted—failing to play the genuinely honest broker role essential for sustaining and deepening the Good Friday peace and democratic process which this amendment is designed to support.

At Second Reading, I intervened on the Government’s proposals to deal with the legacy of Northern Ireland’s past and I do so briefly again today, because I fear that this too is heading in the wrong direction and could pull down the institutions if we are not careful. We have yet to see anything of substance on the legacy legislation since the publication of the Command Paper back in July 2021, but what we do know is deeply disturbing.

Surely, the Government know that a proposal that creates an equivalence between military personnel and the people who murdered them is unacceptable? Surely, they also know that a partial amnesty covering only veterans is incompatible with both our international legal obligations and the imperatives of the Good Friday process? Surely, the Government also know that telling victims that those on all sides of the conflict who murdered their loved ones and carried out unspeakable atrocities will be able to sleep easy in their beds, while they have to live with the pain, grief and trauma of what those people did to them, is also completely unacceptable. I hope that the Minister will listen because I know he is sensitive to these matters.

This is a circle the Government should not be even trying to square. They must abandon their current amnesty plan and listen to those who are offering a truth-seeking alternative based on Operation Kenova, headed by former Chief Constable Jon Boutcher, which has been praised by victims and which, by the way, rightly includes the possibility of prosecutions if evidence unearthed leads that way, as has been the case under Kenova.

It is a notable political feat to manage to produce a legacy policy that every political party in Northern Ireland, along with every victims’ and survivors’ group, is opposed to. In the foreword to the Command Paper the Secretary of State promised a time-limited period of intensive engagement on the proposals contained in it. He has been promising “intensive engagement” on legacy since March 2020, when he unilaterally dumped the cross-party Stormont House agreement. His understanding of intensive engagement is not even close to that which those of us on both sides of the House who have worked to see progress in Northern Ireland over many years would expect—including, I suspect, the noble Lord, Lord Caine, although I would not expect him to publicly acknowledge it.

I realise that this speech has strayed a little from the amendment in question, but I think it essential to put this on record to try to encourage rethinking by the Government, in order to enable the Minister’s objectives to progress with this Bill and ensure stability where there is danger of instability.

Where there has been engagement it has been between special advisers and “sources” in government-supporting newspapers, which received far more detailed briefings than those who will be directly affected by these ill-conceived legacy proposals. The most recent engagement of that kind, in the Daily Telegraph before Christmas, revealed that even the Secretary of State for Defence found what was being proposed unacceptable. The reality is that there has been no meaningful engagement.

When the Minister, the noble Lord, Lord Caine, winds up this debate perhaps he will be able to tell the House precisely how many engagements with the WAVE Trauma Centre and/or other victims’ and survivors’ support groups in Northern Ireland were initiated by the Secretary of State from the publication of the Command Paper in July last year to today’s date. Is the answer none, as I suspect may be the case? I understand that he may not have the detail to hand, in which case I would be grateful if he would write to me with the information as soon as he has it.

Meanwhile, in concluding, I place on record my profound disquiet, along with other former Labour Secretaries of State—including my much-respected noble friend Lord Murphy, to whom I spoke only the other day and who cannot attend these proceedings, as he would have liked to do—about the dangerous drift of government policy on Northern Ireland, which has managed the singular feat of alienating each and every one of the local political parties, the Irish Government, the United States President and the European Union: all partners, some statutory, to the hard-won Good Friday agreement. I urge the Secretary of State to change course before it is too late. Meanwhile, I strongly support this amendment.

My Lords, although I complete share and agree with every word of the point of view expressed by the noble Lord, Lord Hain, I will none the less return to Amendment 1, which we are discussing this afternoon. The noble Baroness, Lady Ritchie, clearly spelled out the purpose of Amendment 1, to which I have added my name, and I will not repeat the many powerful points she made.

On these Benches, we believe that making the change set out in Amendment 1 and referring to the roles as “Joint First Ministers” would reflect the reality of the situation and remove an artificial and unhelpful distinction. Such a change would also do much to take some of the heat out of the debate and allow for a more constructive and issues-based debate in the run-up to the elections to the Northern Ireland Assembly in May this year.

I understand from previous conversations with the Minister that he is open to giving proper consideration to making these changes. Does he not agree that it would be better if these changes were made sooner rather than later, and can he say when and how he intends to consult with the parties in Northern Ireland on this issue?

My Lords, I will make a few brief remarks in relation to Amendments 1 and 2. At the outset, I say that most people who live in the real world acknowledge that the Belfast agreement is a flawed piece of work. It is not perfect, and those of us who try from time to time to point out the imperfections are frowned upon as anti-democratic in some way.

I and my colleagues cannot support Amendments 1 or 2, not least because they are very much outside the scope of the Bill and the New Decade, New Approach agreement, which focused on ensuring the stability of the institutions. The appropriate vehicle for scrutinising the existing rules and appointments is the Assembly and Executive Review Committee at Stormont. This should certainly not be tagged on to the coat-tails of the Bill.

Your Lordships’ House should keep very much before it that, to put it mildly, the Northern Ireland Assembly is in a very difficult and precarious position. The protocol, which has already been referred to, has virtually put the Executive and the very existence of the Northern Ireland Assembly on life support. We were always told that nothing could move forward in Northern Ireland without the consent of the majority, and the consent of the minority. Of course, no unionist supports the protocol. But, somehow, we have been told, “Just suck it up and get on with it”.

Some time ago, when Sinn Féin sought to bring changes to welfare reform, it pulled the whole edifice down. Not only did it not get its demands at that time around welfare reform, but it then added three other demands and said that it would not go back until those were met—and nor did it go back until they were met in totality. They were steamed through the other place, and the Northern Ireland Assembly was given no say whatever. So the abuse of the cross-party and the majority of the majority and the majority of the minority has well and truly been kicked into touch.

Some of us are conversant with how decisions were agreed to assist in getting devolution done. That would not have happened if there had not been a St Andrews agreement. Again, everyone who lives in the real world recognises that. I know that some, even in this House, refuse to recognise that, but it is a fact.

The DUP is also opposed to Amendment 2. The purpose of the Bill is to legislate for measures agreed under the New Decade, New Approach deal, not to undo and tear up previous commitments at St Andrews in the absence of political consensus. It should be said that NDNA is a package, not a single item on its own, but that has been ignored to all intents and purposes. I know that at a later stage we will hear about a very useful amendment tabled by the noble Lord, Lord Coaker, and I add that that is helpful.

Some seem to be asking for a full reset of the institutions, but we certainly are not. That is not in keeping with the spirit of what has been agreed. I said that the Executive and the Assembly are now in a very difficult place. This House should be ever mindful of that and keep it before us in all our deliberations. I reiterate that had it not been for the St Andrews agreement element of the devolution settlement then there would never have been an Executive and an Assembly at Stormont. Those who do not acknowledge that are just living in denial.

I listened intently to what the noble Baroness, Lady Ritchie, said. She said that the St Andrews agreement had changed the emphasis on the First Minister and Deputy First Minister in the Belfast agreement, or the Good Friday agreement, as some call it. I say this: the identical status never existed, even in the Belfast agreement. There was always a difference between the First Minister and the Deputy First Minister, which helped to make things happen, so it did.

Furthermore, in the last election in Belfast North we had a very hard-working, industrious full-time Member of Parliament, Nigel Dodds, now the noble Lord, Lord Dodds. What did the SDLP and Sinn Féin do? They locked horns and a cabal was formed to oust that hard-working Member of Parliament. Who did they put in? Someone who declared, “I will never attend Parliament”, but has a fully paid-for political office while continuing to run his legal business elsewhere. Is that double-jobbing? It seems that it is not, yet if someone were to sit in Parliament, the Assembly or a local council and do that, it would be. We really need to catch a grip of things and try to realise what exactly is going on. This behaviour should be called out. Not only did the SDLP and Sinn Féin come together in Belfast North; as a quid pro quo, Sinn Féin stands aside in Belfast South to help to elect the SDLP.

Let us be very careful about rushing ahead and doing things in Northern Ireland without the consent of the majority in Northern Ireland. That is exactly what is happening at the moment. We have a protocol that is strangling our economy, but that does not seem to matter. We will continue to work for the changes in the protocol—indeed, it has to go; it is a massive hindrance. It will be one of the uppermost things that will help to destroy the Belfast agreement, and indeed the Executive and the Stormont Assembly.

My Lords, after that contribution it is difficult to know where to start. I begin by saying to the Minister that this is the first piece of legislation of substance that he has had to deal with. He will obviously have detected that this Bill is supposed to implement elements of New Decade, New Approach, and I suspect that he will notice the absence of references to that and its substance, as people have moved on to other things. My party is not a party to the New Decade, New Approach agreement and did not support it. There are elements within it that are okay, but we did not agree with the totality of it. Of course, the Bill is before us only because various abuses of the system have taken place over the years, and this particular piece of legislation is trying to patch up holes in the bucket.

There are differences between the amendment proposed by the noble Baroness, Lady Ritchie, and the amendment from my noble friend Lord Rogan and me. One deals with how to describe the offices of First Minister and Deputy First Minister, and the other deals with how we identify and arrive at them. The reason why we have suggested going back to the original in Amendment 2 is relatively obvious. First, it is what was agreed at the talks. Secondly, it is what was there when the people of Northern Ireland voted in the referendum to pass the agreement. Therefore, it has the legitimacy of being agreed by the parties at the time—those that participated —in strand 1 at Stormont. Neither Sinn Féin nor the DUP participated, but those parties that did put that proposal to the electorate before anything was operated at Stormont the first time.

I have disagreed with the noble Lord, the former Secretary of State, over his decision in 2006-07 to make changes following the St Andrews agreement, because the changes to the methodology for electing the First Minister and Deputy First Minister were not in the communiqué for St Andrews, but they appeared in the draft legislation immediately after it. The differences appeared at the time to be relatively modest—unless you looked at the minutiae—but they are actually very profound. The reason why we negotiated the arrangements as set out in Amendment 2 is that it was designed to give political, public and constitutional expression to the partnership of the Office of the First Minister and Deputy First Minister.

The regret that I have is that we were perhaps influenced to some extent by what was happening in Scotland at the time, where its devolution was coming together, and the names of the titles of the two officeholders perhaps are misleading. Some people saw them as hierarchical; I do not. I think I am the only person in this Chamber who has held the office. I can tell your Lordships that they are equal, and I will tell you why. In the first week I held the office, with the late Seamus Mallon, we were unable to agree on the notepaper heading for the department. The department was incapable of sending out any correspondence for a week, until such time as we agreed on what the notepaper looked like.

It may seem a trivial matter, but it proves the point. When, in the first Assembly, First and Deputy First Ministers were answering questions, we respectively moved to each other’s Benches on a rotational basis to answer the questions to demonstrate that the posts were equal. The reason they were equal was because we sought, after years of difficulty and disagreement, to give each of the larger sections of our community a hand on the steering wheel.

The noble Lord, Lord Morrow, said that without the changes made at St Andrews, there would be no devolution. That is nonsense. There was devolution before St Andrews and there will be devolution after it. What changed was that the goalposts were moved to the extent that changing from designations within the community—I know there are many Members who want to change that, and we will obviously have to address that at some point—meant it was the largest party. Therefore, the largest party in the Assembly could be from a minority designation but still have First Minister. That would have been impossible under the arrangements that we negotiated in 1998. It has been used at every election since, as “If you don’t vote for me, you will get Sinn Féin.” It is in the manifestos, in black and white. It is there. That fear is irrational but significant, and not to be underestimated. That is the only shot in the locker that some people have to win elections. “If you don’t vote for me, you get them.” That is the way it is. That is the only leg that some people have to stand on.

The reason why there is a difference in these two amendments, therefore, is that we believe that if you are going to significantly change the rationale behind the institutions, it should be done by going back to the people who negotiated them in the first place. That is basically the rationale for the difference. This is not to be underestimated. I know that the Minister has a genuine case to make, that we have moved into things that have not been part of the original legislation. In fact, in a Statement he made or in a letter that he sent out, I think he described the Bill as “technical”. My goodness me, we are well beyond “technical”, are we not?

What we need to be looking at is that there is a pattern of messing around with agreements and trying to change them on the hoof to deal with the latest crisis, instead of having a rational process to deal with it. I agree to some extent with the noble Lord, Lord Hain, in his point that there is erratic engagement by the Government from time to time. Sometimes, they are engaged and sometimes they are not. Then we get up and arrange backstairs deals here.

Double-jobbing was mentioned by the noble Lord, Lord Morrow. Of course it is nothing to do with New Decade, New Approach; nothing to do, strictly speaking, with the legislation. We all were involved in it. In fact, there is one noble Lord in the room who spoke in Brussels, Westminster and back in Belfast in one day: that is the noble Lord, Lord Kilclooney, who, at that time, had multiple mandates, as many of us have had. That was because it was not clear whether the institutions were going to survive or not and people therefore helped to try to get the thing started, and it was a perfectly legitimate thing to do, but we have strayed quite a bit from the legislation.

I just make those points. I sincerely hope that the Government will look very closely at this, because it has the potential to derail things after May. I can see it all: it is there in black and white. It is no secret that it will be a huge issue, against the background of the pandemic, our young people having lost two years of their schooling, and the huge rise in the cost of living and inflation. All of these things will be swept aside and we will concentrate on “If you don’t vote for us, you’ll get them.” It is such a waste of time and effort; it is a wasted opportunity to try to make devolution work so that it delivers something different and better than if the legislation and the Administration were coming from here. Otherwise, what is the point of having it?

My Lords, I sympathise with what the noble Lord, Lord Empey, has said, and with the important words of the noble Baroness, Lady Ritchie. However, the fate of Amendment 4 shows what happens when we try, late in the day, to inject new elements into this piece of rather specific technical legislation. The fate of Amendment 4 rather implies that, however desirable in principle this is—and I accept the point about the effective equality of the First Minister and Deputy First Minister—this is probably not the moment to try to move that ahead.

With respect for what was said by the noble Lord, Lord Morrow, it is forgotten in this House that, but for the DUP and the St Andrews agreement, we would not have had 10 or more years of stability in Northern Ireland. Those of us who do not like aspects of the St Andrews agreement, particularly around this point, must accept that as an important political reality. It is important to bear that in mind. However, as a footnote to what the noble Lord, Lord Morrow, said, the provision dealing with the election of First Minister and Deputy First Minister in the St Andrews agreement is not quite the agreement which the then Labour Government suggested at the time; it is not what was implemented in law.

The reason that I mention this is because I think it is possible—I almost said, looking at the noble Baroness, Lady Ritchie, “Your day will come”, but because of the implications of that phrase in Northern Ireland, I will not—that the day will come, perhaps not too far in the future, when we return to this point. I wanted to check with the Minister that the realities are that, if the Government do decide to return to this point at a later date, there is no forbidding aspect and nothing saying, “You can’t do that because it is in the Good Friday agreement or St Andrews agreement.” The Government would be free to act if this looked to be the only way out of a major crisis of the institutions.

My Lords, I will confine my remarks to the amendments under discussion. As I did in Committee, I support the amendment standing in my name and that of my noble friend Lord Empey.

As your Lordships will be fully aware, this amendment would reinstate the original procedure by which First Ministers and Deputy First Ministers are elected to the Northern Ireland Assembly. Requiring MLAs to endorse the post holders was intended to give elected representatives buy-in to the process. It also empowered the First and Deputy First Ministers with the added authority that comes with their endorsement by a cross-community vote. The changes to these arrangements, carved up at St Andrews, were not good for democracy in 2006. As we head towards an Assembly election in three and a half months’ time, they are even less appealing to the people of Northern Ireland in 2022.

As my noble friend Lord Empey has said, in every Stormont election since the St Andrews deal was done, the DUP has sought to scare the Unionist people by claiming that a vote for anyone but them was a vote for Sinn Féin/IRA. My noble friend and I feel that it is time for that to end. Speaking in Committee, the Minister, with his characteristic frankness, said that he had sympathy for the amendment and the arguments of my noble friend. However, he added that there was not sufficient consensus to return to the old model of election. I would advance the precise same argument against the Government’s foolish attempt to use this Bill as a vehicle to reintroduce double-jobbing when only the DUP regards that as a good idea.

Should our amendment not be accepted today, I would hope that the Minister will commit in his response to keeping what it seeks to achieve high on his “to do” list, so that we can return to the issue after the new Northern Ireland Assembly is elected.

My Lords, I oppose Amendments 1 and 2. The Bill before us is simply designed to legislate for measures agreed under the New Decade, New Approach deal, not to undo previous commitments entered into at St Andrews. To try to go back in time would help only to undermine the fragile peace that presently exists in Northern Ireland.

As a unionist, I believe that the constitutional framework of our union should be strengthened, especially now, when the smooth functioning of the three devolved settlements is increasingly under attack. In specific circumstances, and during uncertain times, with the backdrop of an Irish sea border and threats to political stability in Northern Ireland, it would be foolish to return to what was clearly a failed system, used to appoint the First Minister and Deputy First Minister. Indeed, there was a lot of instability there. I find it difficult to understand the explanations from those noble Lords supporting the amendment. Therefore, I am afraid that I am forced to conclude that their support is based on petty political manoeuvring, which is clearly inappropriate at a time of increasing societal division and instability in Northern Ireland.

My Lords, I was not intending to speak on this group of amendments, but I have been provoked into it by some of the things that have been said, not least by some of the revising of history that we have heard. I can fully understand why noble Lords, on listening to this debate, would have some sympathy with some of the views that have been expressed by the noble Baroness, Lady Ritchie, on her amendment. However, it is important to remember that, in the context of the Northern Ireland political scene, it has been a general principle—up to now, anyway—that those matters that are devolved remain devolved for the parties in Northern Ireland to agree, and Westminster should be very slow not to respect that devolved settlement. That should apply, of course, across all the devolved nations and regions, but particularly in Northern Ireland, given the long and tortuous negotiations that took place in St Andrews and in the run-up to the Belfast agreement. Whatever we may think of a particular idea or amendment—whether we think that it is a good idea that sounds plausible—it is really for the host politicians in Northern Ireland to decide whether or not it should fly.

The principle of sufficient consensus was at the heart of the negotiations that took place in the run-up to the Belfast agreement and the St Andrews agreement. The noble Lord, Lord Hain, who has spoken, was a central player in the St Andrews negotiations as Secretary of State. Indeed, I remember well that he was even kind enough to offer a lift on a rather small plane to the late Dr Paisley and Martin McGuinness and a number of us on the way back from it, or we could not have got back in time to Belfast to see the thing through. It is important, therefore, to respect the views of the parties in Northern Ireland.

I want to sound a note of caution: people talk of this being a great idea and say that we should return to it. These are matters that were in the remit of the New Decade, New Approach negotiations; they took place over a considerably long period of time—far too long, in the view of many of us. But there was no agreement on either of these two amendments. Therefore, to suggest that either now or in the near future this Parliament should suddenly impose its own ideas without having that agreement and sufficient consensus, by which we mean a majority of unionist and nationalist representatives and an overall majority of everybody. Parliament has the right to do that, but I think it would be very unwise. It would be a grave mistake for Ministers to go away with the impression that this is just a minor matter, because it breaches a fundamental principle that has been at the heart of the political process in Northern Ireland.

The noble Baroness, Lady Ritchie, referred to this at the start. She talked about the consensus and how it has always been about consensus. That is why every single major vote bar one—the protocol—is either by cross-community vote or capable of being turned into a cross-community vote through the petitions of concern method. At the heart is cross-community agreement: a majority of unionists, a majority of nationalists and the majority of everybody taken together—all three must be fulfilled for all key decisions. It is very important that noble Lords remind themselves of this, because a lot of talk today has been about going back to the principles of the 1998 agreement. They should remind themselves of that important principle.

I do not want to delay the House, but it is important to put this on record. The noble Lord, Lord Bew, mentioned the period of relative stability that we had in Northern Ireland following the St Andrews agreement; that is true, and I pay tribute to those who were involved in that in the Assembly. But I challenge the idea that it all came about because there was only one issue in the election. I remember the 2016 election. I was director of elections for the DUP, when we had an overwhelming victory at that election. It was about who was going to take their seats in the Executive.

The Ulster Unionists were refusing to commit. We said we would go into that Executive and serve in government, and we were elected on that positive platform. It was not about who was going to be First Minister or not. That was an issue. In previous elections in the United Kingdom, the question of whether Jeremy Corbyn or Boris Johnson was Prime Minister was a key issue for a lot of people, just as it will be at the next election.

It is trite and trivial to say that this was what the elections were about. Of course they were not. The next election will not be about that issue either. It will be about the legacy issues that the noble Lord, Lord Hain, discussed. This will be a key point, because he is right to point to the unanimous view of the parties and victims in Northern Ireland about the dreadful nature of the proposals that are being brought forward. That will be an issue. The protocol will be an issue. Anyone who thinks that the protocol is not going to be an issue in the next election in Northern Ireland is not living in the real world that my noble friend Lord Morrow referred to.

The issue of the cultural package, the overriding of devolution when it suits on certain occasions, as we have been told, is going to happen soon. With legislation, it is a matter for the Northern Ireland Assembly. Let us not forget this and all the talk about threatening institutions. During the summer, when Sinn Féin threatened to pull down the Executive and the Assembly, unless Westminster legislated over the heads of the devolved Assembly, the Westminster Government caved in to keep the show on the road. So let us have a bit of realism and understanding on this issue.

We heard talk that there has been a lot of messing around. I remember in 2003 when the then Ulster Unionist leader went to the Government and got the elections to the Assembly postponed. The election campaign had actually started for the Northern Ireland Assembly in 2003—people had launched their manifestos. The noble Lord, Lord Empey, will well remember that they went to the then Government and got the election stopped because it was not going to suit their outcome. The DUP still managed to have a victory. If we are talking about messing about, they have all been at it. It is not a one-sided thing where some have been pure and others have been playing fast and loose with the institutions.

The fact of the matter is that this Bill is designed to implement the agreements made in New Decade, New Approach and that is what it should do. On the context for the Bill, it is important to remind people that we are in a very fragile and difficult position, mainly because of issues around the Northern Ireland protocol; unionists rightly feel that the Belfast agreement is not protected, that the east-west relationship has been trashed and that the democratic consent principle, which we will debate later, has been cast aside in the protocol. People, certainly those in the unionist community, rightly feel that their concerns have not been listened to appropriately.

We can debate this today; we are trying to create stability and help it move forward, but if the big issue—the protocol—is not resolved, all this legislation will not serve to keep the institutions afloat, not because people want to see them brought down but because government inaction will mean a one-sided implementation of the agreement. As I said at the start, you need cross-community consensus and support if you are to have stability in the institutions in Northern Ireland.

My Lords, I thought it was interesting that in the previous debate Members from all sides stood up to demand that freedom of speech in this House be paramount. With freedom of speech, even though you may disagree profoundly with a person, you respect their right to be able to say things. I have no doubt that I may say some things with which some in this House do not agree; nevertheless, I trust that no one would deny me the right to say them.

Thinking about the present debate, I believed that the legislation before the House was based on implementing a matter under the New Decade, New Approach agreement. Members rightly said that there are those who did not agree with that agreement. I certainly did not agree with the Belfast agreement; I did not agree with the destruction of the gallant RUC or the destruction of the UDR, which followed on, or with letting terrorists out to roam across the countryside, in which I reside, where so many people were murdered that it was known as the “killing fields” of the Province. But they were let out under the Belfast agreement. Nothing could be more repugnant to a democracy than to see terrorists roaming around the countryside, snooting their noses and mocking and laughing at families, like my own and many others, whose loved ones were murdered brutally.

I stood on Sunday at the roadside where eight men were brutally murdered and six others—not soldiers, but ordinary workers returning home from their work at an Army base—were injured. We stood there on the roadside, as we have done for the past 30 years, through rain, hail, snow and blizzard—whatever was thrown at us—to honour the memory of those persons who were done to death.

I do not take richly lectures from people about the election—“If you don’t vote for us, you will get someone else.” I was reared in the west of the Province. No one did that more—they were actually masters of it—than the Ulster Unionists. At every election, the candidate standing for that party did so on the 12 July platform to say, “Vote for me.” Of course, they were quite often not seen after that, but nevertheless they did it. It was clearly an orange and green election. To try to lecture this House and some Members of it about that is rather rich. Other Members who know nothing about Northern Ireland—who perhaps have never been there—would think, listening to this, that what the noble Lord, Lord Empey, was saying is right, not knowing the history of what has gone on down the years.

Of course, the noble Lord is right to talk about messing around with legislation, but let us remember that legislation on abortion was brought before this House. It was tagged on to legislation that had nothing to do with it yet it was forced on the people of Northern Ireland even though the issue was supposed to be a devolved matter. I therefore say to this House that we need to be careful in what we say or when we try to suggest what others are suggesting.

I listened to the noble Baroness, Lady Ritchie. She gave the impression that, under the Belfast agreement and the former arrangement, everything was sweetness and light. Yet the truth of the matter is this: in reality, it was a stop-start situation. You did not know when it was up; you did not know when it was down. You found out in the end that it was usually down whenever Sinn Féin said that it had to come down.

I also listened to the noble Lord, Lord Hain. Of course, he has gone back to his customary “Beat the DUP” as regards the threats of the DUP, but let me just remind him that, in actual fact, it was not the DUP that brought the Assembly down for three years. It was Sinn Féin and people he knows very well. I did not necessarily hear on those occasions the same ferocity as is now being mentioned with regard to the Democratic Unionist Party. We want devolution. We want to see our Province properly—

I am grateful to the noble Lord for allowing this brief intervention. I did not beat the DUP. I pointed out something that I thought was wrong about Sinn Féin and the DUP unilaterally breaching the consensus agreement. I have never beaten the DUP; I agreed with it that Ian Paisley Senior became First Minister and negotiated with you all. It is not about beating anybody.

I have to say, this is not the noble Lord’s first occasion but, on previous occasions when he intervened in other debates that I have sat in, once again it was anti- DUP propaganda that was being put out. It was not against Sinn Féin.

As far as the three years are concerned, it seemed that Sinn Féin had to be placated and whatever it asked for had to be done. It gave us three lines in the sand, remember: same-sex marriage, abortion, and the proposed culture and Irish language Bill. I ask Members of this House to tell us this: which of those three things have the Government not done or indicated they are about to do? Yet everything that unionism has asked for has been refused and rejected. I am sad to say that, recently, under the Brexit agreement, we found the border down the Irish Sea and the protocol. We are—indeed, every unionist in the country is— demanding that that protocol be removed, yet we find that, in actual fact, it is not to be removed.

The principle of consent is at the heart of this. I suggest to the House that the proposals that are mentioned in the amendments in the names of the noble Baroness, Lady Ritchie, and the noble Lords, Lord Empey and Lord Rogan, do not have the support of, nor command support across, the community.

My Lords, we have had perhaps a lengthier and more wide-reaching debate than originally anticipated on these amendments, which we also discussed in Committee. That serves to indicate just how much these issues hang together in people’s minds and concerns, as well as how deep some of these issues go. As the Minister will know from his discussions with me outside this Chamber, it goes back to the point about how, when Westminster deals with issues relating to Northern Ireland, there must be a lot of engagement and discussion to reach agreement. That can be difficult, as we have heard today.

When we discussed this before in Committee—I think I referred to this then—the noble Lord, Lord Rogan, said how so many people have made compromises in order to make progress. My extension to that was that, too often, if you are seeking perfection, you stall progress. As I have said before, I have nothing but admiration for those who were able and willing to compromise, often making a great sacrifice—given that these things are not easy and that passions and feelings run deep—in order to make progress. That is reiterated in the amendments before us today.

When the Minister spoke on this in Committee, he was quite sympathetic in many ways, but he said that there has not been sufficient consensus in the past and that he did not see any at this time, but that that did not prevent future discussion of these issues. I think that is the case. He was very clear, as was the Secretary of State in the other place, that, as I think the noble Lord, Lord Dodds, said, it is a very narrowly defined Bill to deal with a specific number of issues that is not intended to go beyond the New Decade, New Approach document.

Even the noble Lord, Lord Hannan, agreed with the noble Baroness, Lady Ritchie. That may be a first, and possibly a last, but we look forward to perhaps more agreement between the two of them on those issues. That was not a criticism; it was a welcome observation.

I am interested to hear what the Minister has to say on this issue, because in terms of where Northern Ireland goes from here, it is quite clear from listening to the debate today that the situation is fragile. The Minister has a task ahead of him to ensure that he keeps open channels and that we can move things forward, rather than going back to a more difficult position, which nobody wants to see. The situation is fragile, and it requires the Minister to take a lead, engage in discussions and accept the different points of view that have been expressed here today. I thought the noble Baroness, Lady Ritchie, made a powerful case from her point of view, as did the noble Lord, Lord Empey, but the point has been made that this goes beyond what was envisaged. It would be helpful if the Minister could say something about how he sees engagement on these issues in the future.

My Lords, I am grateful to everybody who has spoken in this debate. If the noble Baroness, Lady Smith of Basildon, said one thing that is incontestable, it is that this has been a very wide-ranging debate indeed. Following the comments of my noble friend Lord Empey, I might try to do something which seems increasingly unfashionable in the House these days, which is to stick to the Standing Orders and confine my comments to the amendments before the House, and not repeat at length arguments and debates that have taken place in Committee and on Second Reading.

The issues covered in the amendments before us were debated at length in Committee on 13 December. As I made clear at the time, I am not without a great deal of sympathy for the amendments of the noble Baroness, Lady Ritchie of Downpatrick, and my noble friend Lord Empey. Indeed, I am on record over a number of years as saying that I prefer the 1998 model of appointing the First and Deputy First Ministers, which was subsequently changed at St Andrews. I do not for one second doubt the sincere motives of the noble Lord, Lord Hain, in seeking the agreement which he achieved in 2006 and implemented in 2006-07, but my personal preference is always for the parallel consent model of 1998.

As a number of noble Lords have said, a cardinal principle of the political process and the implementation of agreements in Northern Ireland since the mid-1990s has been the sufficient consensus rule. My noble friend Lord Dodds of Duncairn made that point very powerfully, as did my noble friend Lord Bew. The sufficient consensus rule means that any significant changes to or departures from those agreements require the support of parties representing majorities of unionism and majorities of nationalism. Indeed, that is how we got the Belfast agreement in the first place.

As some noble Lords have mentioned, this Bill is about implementing New Decade, New Approach. I was involved in a lot of the discussions between 2017, following the collapse of the institutions after the resignation of Martin McGuinness, and July 2019. In fact, to digress for just a second, I was very grateful to the noble Lord, Lord Hain, for his kind words absolving me of any responsibility for the actions of a number of Conservative Secretaries of State. He then made the exception of Julian Smith—who, of course, was the only one I did not work for, but I take his comments in the spirit in which I hope they were intended.

As I said, this is about New Decade, New Approach. During the discussions that formed the basis of that document, a number of these issues were raised. There was not sufficient consensus, and they did not appear in the final document.

I say to the noble Baroness, Lady Suttie, that none of this is to say that the Government have a closed mind to change in future. The Belfast agreement has not stayed set in stone over the years: there were changes at St Andrews and at Stormont House. Indeed, I was interested to hear my noble friend Lord Hannan say that one of the reasons he was opposed to the Belfast agreement was the lack of opposition. Actually, in the Stormont House agreement—the fresh start agreement—and subsequently in New Decade, New Approach, there are provisions to facilitate the functioning of a proper opposition within the Assembly. So, things do not always remain static. We are open to change so long as those changes are consistent with the underlying and enduring principles of the Belfast agreement, which have to be based around inclusive power-sharing government.

In asking the noble Baroness to withdraw her amendment and my noble friend Lord Empey not to move his, I will give a clear commitment from the Dispatch Box: these issues are not going to go away, and after the election, whatever the outcome might be, I and the Government are very happy to have discussions with the political parties to test the appetite for any further reforms along the lines suggested in this afternoon’s debate. In that spirit, I ask the noble Baroness, Lady Ritchie, to withdraw her amendment.

My Lords, I thank all noble Lords who have contributed to this rather omnibus, wide-ranging debate. It has referred to the contents of the amendments, and to matters of a very raw political nature that are outwith the responsibilities of this technical Bill, which nevertheless has great political implications for all of Northern Ireland.

In this wide-ranging debate we have had those who support the amendments and those who do not, but I would like to think that all of us in this House want to see peace, stability and reconciliation, and proper partnership government in Northern Ireland that delivers for all the people on education, health and the economy.

Various contentious issues were mentioned in this debate, such as the protocol, which we will come to later. Noble Lords also mentioned the past and legacy issues, which very much need to be resolved. We also mentioned cultural and Irish language issues. I am a Gaeilgeoir; I did Irish at school and attended the Irish college in Donegal in two separate summers, because my mother wanted me to. But I believe in that element of diversity, and I believe in respect for political difference, ethnic difference and racial difference. I would like to see that right across the community.

Therefore, I am pleased that the Minister has indicated he is not without sympathy for these amendments and that the Government intend to come back, post election, and have discussions with the parties in the Northern Ireland Assembly to further explore the appetite for these issues. But I offer a note of warning. Because the political situation is particularly fragile—as referred to by the noble Lord, Lord Hain, and others—my fear is that we may not have those political institutions in a way that is enduring, or capable of delivering for people in Northern Ireland in a post-election sense. That is because of all the turmoil, not necessarily but mostly around the protocol, and other political issues that have sought to threaten those very institutions.

It is very important that we do not walk away from these issues. In view of the Minister’s commitments at this stage, I beg leave to withdraw the amendment but point out that I will return to these issues. I hope that in those negotiations, although they relate to strand 1, the Irish Government—as the other co-guarantor of the agreement—are involved as well.

Amendment 1 withdrawn.

Amendment 2 not moved.

Amendment 3

Moved by

3: After Clause 3, insert the following new Clause—

“Transitional provision

(1) The amendments made by sections 1(2), (3) and (5) and 2(2) do not apply in a case where section 16A of the Northern Ireland Act 1998 applies as the result of an Assembly being elected before this Act comes into force.(2) The new provisions relating to vacancies in the office of First Minister or deputy First Minister—(a) apply in relation to vacancies arising within the period of seven days ending when this Act comes into force, but(b) do not otherwise apply in relation to vacancies arising before this Act comes into force.(3) For these purposes “the new provisions relating to vacancies in the office of First Minister or deputy First Minister” means—(a) the amendment made by section 1(4),(b) the new section 18(A1)(c) to be inserted into the Northern Ireland Act 1998 by section 2(3), and (c) the new paragraph 3D(A1)(c) to be inserted into Schedule 4A to that Act by section 2(5).(4) The amendments made by section 3 do not apply where the duty of the Secretary of State under section 32(1) or (3) of the Northern Ireland Act 1998 arises before this Act comes into force.”Member’s explanatory statement

This new Clause makes transitional provision in connection with the provisions of the Bill about executive formation.

My Lords, I hope that this group of amendments can be dealt with very briefly. Two of them are in my name and deal with the commencement clauses in the Bill.

At Second Reading and in Committee, I committed to going away and considering the strength of argument put forward by a number of noble Lords in regard to bringing forward the commencement date for the provisions in this legislation. As drafted, the provisions would come in two months after Royal Assent. Both here and in the other place, the Government have been clear that we would consider early commencement if the political situation in Northern Ireland were to warrant it. In debate on the previous group of amendments, a number of noble Lords referred to the delicate situation in which we currently find ourselves. In our judgment, the situation therefore warrants early commencement, which is why I have tabled an amendment to that effect.

As such, if the government amendment is accepted, the provisions in the Bill will come into effect on the day of Royal Assent. To ensure that there is no ambiguity over when the provisions of this legislation come into effect, should there be a First Minister or deputy First Minister resignation, thus triggering the seven-day executive formation period, and the legislation receives Royal Assent during that seven-day period, the provisions in this legislation will also apply. I hope noble Lords will agree that these amendments demonstrate that the Government have listened to the strength of argument put forward, in particular by the noble Baroness, Lady Suttie, and others, and will accept them.

At Second Reading and in Committee we also committed, in response to the noble Lord, Lord Coaker, who I am pleased to see here today, to considering what more the Government could do to promote and explain the commitments in, and implementation of, the New Decade, New Approach agreement. We had a lengthy exchange in Committee when the noble Lord did exactly what I would have done in his place, which was to trawl through the annexes of the document and pick out some of the more obscure commitments to try to catch me out. I think I had a fairly long list of commitments that had been implemented. I do not intend to read them out at this stage, on Report. If anybody who was not in Committee is interested, they are all in Hansard.

With this in mind, I am committing the Government to laying a Written Ministerial Statement every six months, setting out what commitments they have delivered on to date. I assure the House that the first Written Ministerial Statement to that effect will be forthcoming within the next few weeks. I hope that the undertaking I am giving today will satisfy the noble Lord, Lord Coaker, and that on that basis he will feel able not to move his amendment. I beg to move Amendment 3.

We strongly welcome Amendments 3 and 9 in this group, which are about the early commencement of the Bill, as the Minister explained. We fully support them and are pleased that the Government have come forward with them.

I thank the Minister as well for the commitment he has given in the Chamber to coming forward with a report every six months about the implementation of the New Decade, New Approach agreement. If the House will forgive me—some noble Lords were not present in Committee and may not have had the opportunity to read the debate—the purpose of Amendment 6 was to get a report from the Government. The Minister has conceded on and agreed to do that, which is welcome, particularly regarding the first report in a few weeks’ time, which I think all noble Lords will find very helpful. In New Decade, New Approach there are serious constitutional issues that have been discussed today and will be discussed in the future. But alongside that, in the document there was a huge list of commitments made by both the British and Irish Governments to improving the situation in Northern Ireland, whether that be on infrastructure or, as it was at the time, the nurses’ pay dispute. It was all of those things.

I was simply trying to say that these are some of the things that people in Northern Ireland, as those who seek to and do represent them would point out, are very serious matters. The list was tucked away in the annexes to the document and, without being raised by me and other noble Lords, would simply have passed by. But as a result of raising it in Committee, and the Government responding, we now have a report where people will be able to see—I will use the example given by the noble Lord, Lord Dodds—whether the York Street interchange is progressing. That is a serious matter, as all of us who have been to Northern Ireland know, but there are all sorts of concrete examples of various commitments made by the Government, so it is important.

The only thing I would add, because I spoke at length about the commitments that the British Government made, is that it might be worth putting on the record again that the Minister said that there was £2 billion-worth of government money committed to this, of which £600 million has so far been spent. So the people of Northern Ireland can look forward to a further £1.4 billion as being appropriate to the implementation of this deal, and that is really important.

I add that of course it was not just the British Government who made commitments. I will not read them all out because I was not trying to catch the Minister out. I was simply pointing out the commitments that have been made and negotiated to deliver for the people of Northern Ireland, which I thought was a really important point to make. Also within it, of course, are the commitments made by the Irish Government. There is a list of things that the Irish Government have said they are going to do to promote and deal with issues in Northern Ireland. Again, the report that the Minister has now agreed to publish will no doubt depend upon not only the various negotiations and discussions that the British Government have but those which the Northern Ireland Assembly has. A huge list of issues—again, I will not read them out—have been laid out there.

As I say, we support the legislative change that the Government have made with respect to the commencement of the Bill in Amendments 3 and 9. I say to noble Lords, however, that Amendment 6 on the laying of the report sounds very simple. It seems an amendment of no great consequence. It actually deals with the spending of billions of pounds of money in Northern Ireland on projects that will make a huge difference to the lives of ordinary people. It would show that the British and Irish Governments are delivering for the people of Northern Ireland but also that the Northern Ireland Assembly is doing so, as indeed the people who represent it do in this place or the other place, or indeed in Stormont. At a time when there is constitutional challenge and difficulty, it is also worth pointing out some of the positive things that legislators and Governments do to try to benefit the people of Northern Ireland.

My Lords, I am also extremely grateful to the Minister for making this concession on Amendment 9, following the amendment I tabled in Committee. I am also grateful that he has committed to giving a regular report on the implementation of the New Decade, New Approach agreement.

As the Minister knows, my honourable friend Stephen Farry MP tabled the same amendment in the House of Commons, and I am extremely grateful that the Minister has been prepared to listen to the arguments and employ common sense. This is perhaps something that could be usefully repeated by many of his ministerial colleagues in this House. I believe it demonstrates this Chamber’s usefulness in asking questions, and in revising and improving legislation. In the current political climate, waiting two months for the Bill to come into force would have risked leaving a political vacuum at this critical time. Allowing the Bill to be enacted at Royal Assent provides a greater level of stability and a political safety net. I am very grateful to the Minister.

Having warmly supported the noble Lord, Lord Coaker, at Committee stage, I welcome the fact that we are to have regular six-monthly reports on the commitments which the British Government gave in the New Decade, New Approach document. It is very important that this House is made fully aware of what our Government here at Westminster is doing, working closely with the devolved Executive and Assembly, to secure progress in Northern Ireland. These six-monthly statements will bring home to us the extent to which the British Government are, we hope, working successfully.

As for the Irish Republic, I would welcome—and I am sure the House would welcome—news of developments which assist both sides of the border in social and economic co-operation. That is what we all welcome. But I hope that nothing will be forthcoming that intrudes on British sovereignty over Northern Ireland; that matters above all. So I welcome very much the six-monthly reports—and I hope they will the subject of debate in this House from time to time—to show how progress is being made in Northern Ireland with the assistance of our Government in co-operation with the Executive and the Assembly.

My Lords, I support what the Minister said, particularly in relation to the commencement date being fixed in legislation. I also support my noble friend Lord Coaker in relation to the reports on the New Decade, New Approach implementation period.

I am conscious of the devolution settlement, but I am also conscious of the fact that the Northern Ireland Executive had commitments to deliver with respect to the New Decade, New Approach. As part of that statement, would it be possible to provide a few columns about the progress of these commitments? The Minister and I are only too aware of the delays in responses to the areas of the common frameworks that were devolved from the European Union to the UK and the devolved regions in the post-Brexit scenario. Nothing happened in terms of Northern Ireland during the three-year interregnum, so we need to know, in an expeditious way, how the Northern Ireland Executive are implementing their commitments, notwithstanding the need to protect the devolution settlement. If there could be a section in the Minister’s statement to that effect, I would greatly appreciate it.

My Lords, I too thank the noble Lord, Lord Coaker, for tabling this amendment in Committee, and I think we had a very useful debate there about the Government’s commitments under NDNA—because there were many. I also thank the Minister for his commitment to a regular written statement and I share the view of the noble Lord, Lord Lexden, that hopefully we can have a debate on those issues from time to time. I also have no issue with the earlier commencement date, as tabled by the Minister in Amendment 9.

On Amendment 3, I want to ask the Minister, since this is a new amendment, to clarify its intention. It is very technical and complicated; it is to do with the transitional arrangements if things were to happen before Royal Assent of the Bill. I would like to be clear, so that the Minister has it on the record, what exactly this clause will do. It talks about events happening

“within the period of seven days ending when this Act comes into force”.

But, if we do not know exactly when the Act is coming into force, things could happen that are caught, but there is no idea at the time that they would be caught, because suddenly Royal Assent happens. It is a very vague formulation. I wonder why it is there and what it is intended to capture—as opposed to saying, for instance, that the Act will apply after a certain date. I would be grateful if the Minister could clarify, in winding up, the import of the clause.

My Lords, I am grateful to noble Lords for the responses they have made to these amendments. I assure the noble Lord, Lord Coaker, the noble Baroness, Lady Ritchie, and my noble friend Lord Lexden, that it is my intention to make these reports as comprehensive as possible while, as the noble Baroness, Lady Ritchie of Downpatrick, mentioned, respecting the boundaries of devolution. I will take away her comments, and those of my noble friend and the noble Lord, Lord Coaker, to try to ensure that the reports are as far reaching and detailed possible. I also reassure my noble friend Lord Lexden, with whom I go back many years, that I am totally committed to recognising and upholding the sovereignty of the United Kingdom Government, and of this House, with respect to Northern Ireland. It is part of the United Kingdom, and he knows well that this is a situation that I wish will endure for ever.

I welcome the amendment of the noble Lord, Lord Coaker. In his capacity of spokesperson on the union, can the Minister give us an assurance that he will be able to give us similar six-monthly reports and debates on what is happening in Scotland and Wales?

I am grateful to the noble Lord for his intervention. I think that is a matter that I will have to raise with my noble friends in the Scottish Office and the Welsh Office.

The noble Lord, Lord Dodds of Duncairn, mentioned the transitional arrangements. If I can put it as plainly as possible, under the current rules, if either the First Minister or Deputy First Minister were to resign, there would be a seven-day period by which there would have to be a renomination before an election was triggered. If that were to happen up to seven days before Royal Assent was given, it would apply retrospectively once Royal Assent had been given, and the provisions of this Bill would kick in.

Amendment 3 agreed.

Amendment 4 not moved.

Clause 5: Petitions of concern

Amendment 5

Moved by

5: Clause 5, page 7, line 42, at end insert—

“(9) This section has effect notwithstanding section 7A of the European Union (Withdrawal) Act 2018.(10) No inference is to be drawn from subsection (9) as to whether this section would otherwise have effect subject to section 7A of the European Union (Withdrawal) Act 2018.””Member’s explanatory statement

This amendment would ensure that section 7A of the 2018 Act cannot transport the requirements within the Protocol into domestic law, and thus nullify the cross community consent mechanisms.

My Lords, I beg to move Amendment 5 and will speak to Amendment 7, both of which are in my name and that of the noble Lord, Lord Dodds. In Committee, the name of the noble Lord, Lord Trimble, was also on this. Unfortunately, through a communications error, his name did not appear. He could not be here today, but he wanted me to say clearly at the beginning that he wishes that his name was on it and he supports it fully.

I believe that this amendment goes to the heart of everything that we have been talking about today and, indeed, everything that we talk about in Northern Ireland and in relation to it at the moment: the word “consent”. I have been making a note of every time that consent has been mentioned in this debate, and it is well into double figures, even in this short time.

I will talk about how the Government changed the consent principle in Northern Ireland last year, by inserting a provision, in paragraph 18(5) of Schedule 6A, into the Northern Ireland Act 1998 to expressly disallow the requirements for cross-community consent when it comes to the key vote in the future on the Northern Ireland protocol, if it is still there. Quite simply, this demolishes a core plank of the Belfast agreement and so causes many people to wonder what purpose is actually served by a cross-community protection for key decisions, as set out in paragraph 5(d) of strand one of the Belfast agreement. The consent principle was one of the reasons that men and women in Northern Ireland supported the Belfast agreement in the end, despite their concerns about many aspects of it, like prisoner release, which has been mentioned already. They went in and voted, many of them with a heavy heart, because they thought that it was best for Northern Ireland at the time. As a pro-union community, they had a safeguard to stop something that was harmful in the future to their community.

So the Belfast agreement has been unbalanced with this government move. Even the Government’s own barristers, in the High Court proceedings that I am part of in Belfast, accepted that this subjugated the Acts of Union. As I said in Committee, how can any noble Lord in this House stand over that approach? In their Command Paper, the Government themselves have conceded that the protocol has no consent from the unionist community and identified this as a core problem.

So, in these amendments, we seek to undo that injustice. Amendment 7 seeks to repeal Schedule 6A to, and Section 56A of, the 1998 Act and would undo the Government’s unilateral move to disapply community consent. Amendment 5 ensures that the 2018 Act provisions cannot, by implication or otherwise, subjugate the cross-community consent protections, which are so vital to peace and stability in Northern Ireland.

Of course, the move to disapply cross-community consent conflicts even with the protocol itself, which contains an express requirement to protect the Belfast agreement “in all its parts”. This is further replicated in domestic law in Section 10(1)(a) of the European Union (Withdrawal) Act 2018, whereby there is a requirement to

“act in a way that is compatible with the terms of the Northern Ireland Act 1998”.

The Government’s approach to apparently acting compatibly with the 1998 Act and protecting the Belfast agreement “in all its parts” was to unilaterally, without the consent of a single unionist elected representative at any political level, disapply one of the key provisions of the agreement and of the 1998 Act. I am sure that many Members of your Lordships’ House did not realise that this was happening. There was never a vote on any of this in our Parliament.

When faced with this issue, the Government’s response was that the protocol consent vote is not devolved. I will make three observations on this. Paragraph 5(d) of strand one of the Belfast agreement and Section 42(1) are directed, respectively, to “key decisions” of the Assembly and

“a matter which is to be voted on by the Assembly”.

There is no constraint on the provision only being applicable to devolved matters. Secondly, if the provision had, in any event, no force or effect, why was it disapplied? Thirdly, in any event, the protocol consent matter is devolved. The 1998 Act lists matters that are excepted or reserved, and any that are not listed are therefore devolved. In paragraph 3 of Schedule 2 to the 1998 Act, “International relations” is listed as an excepted matter. However, paragraph 3(c) of Schedule 2 makes clear that this does not include

“observing and implementing international obligations”.

In undertaking the vote derived from Article 18 of the protocol, the Assembly is implementing and observing an international obligation. Therefore, it is devolved.

The Belfast agreement is essential for protecting peace and stability in Northern Ireland. Protecting that agreement must mean protecting its provisions for the betterment of all citizens in Northern Ireland, rather than simply viewing the agreement through what effectively amounts to a principle of nationalist interpretation. It cannot be the case that cross-community protections are for one community, when it suits, but not the other. Either the Belfast agreement serves the entire community equally or it has no point, from a pro-union perspective. So these amendments are fundamentally about restoring the careful balance negotiated by the noble Lord, Lord Trimble, and others in 1998.

I am for ever genuinely astounded by those who shout loudest, as guardians of the Belfast agreement, if they do not really mean it. They seem to demand that the Belfast agreement be construed in a manner conducive to certain objectives by certain communities. So we hear nothing from the SDLP, Sinn Féin or even the Alliance Party on the heinous move to trash cross-community consent protections at the very time that it seems to be working to the benefit of those who have overwhelmingly rejected the protocol.

Over many months, the record will show that many of us have warned the Government and raised the alarm on this issue. If the Belfast agreement is to continue, the fundamental balance must be restored. Otherwise, even those within unionism who supported the agreement could not conceivably recommend continuing in a process that is fundamentally imbalanced and to the detriment of the pro-union community and, indeed, the union as a whole of Great Britain and Northern Ireland—the United Kingdom.

We met with the shadow Ministers and, obviously, the government Ministers on this, and the former showed some genuine understanding of this and an acceptance of how it was causing real problems in Northern Ireland. I also know that the noble Lord, Lord Caine, was given very little time in Committee when this was proposed, because it came in quite late, and I am hopeful that he will be able to give us a little more of his real views on it today, having, I hope, gone back and talked to people in government.

I do not need to say much on the second amendment because its objective is clear: it seeks again to undo the damage done to the Belfast agreement by the unilateral move to disapply cross-community consent. It is restoring cross-community protections on the protocol vote to ensure that, if there is to be a protocol applying in Northern Ireland, it will require cross-community consent. Without that, it cannot survive. It fixes these amendments and the Government’s error—I will put it no stronger than that—in inserting these provisions into the Northern Ireland Act without the consent of a single unionist elected representative at any level in Northern Ireland.

As I and many of us have said many times before, ultimately, the Government will have to choose between the protocol and the Belfast agreement. That is something I do not want our Government to have to do. But the reality of the situation in Northern Ireland, as has been said by many Members in this House, is very serious indeed, and there is very little time to get this sorted. It is not going to go away.

I am pleased there is a statement on the BBC because it probably means there are a few more people here than are normally here when we have debates on Northern Ireland. I appeal to noble Lords who may not have looked into this in great detail to think about this carefully, because this is crucial if we are serious about moving forward in Northern Ireland. If we cannot get this right and we break the Belfast agreement in this deliberate way, I am afraid that its long-term future is at risk.

I hope noble Lords will understand what may seem very technical but is actually very simple: do we mean what we said in the Belfast agreement and the Northern Ireland Act 1998? I beg to move.

I have great respect for the gritty texture of the speech of the noble Baroness, Lady Hoey—initially, what is important to understand is why we have got to this point. She is absolutely right; there is a major problem with the one-sided, nationalist appropriation of the Belfast agreement and the willingness, on the whole—if you read Michel Barnier’s memoir on the EU, for example—to accept that version. Getting it back to a balance—and in this respect I absolutely agree with the noble Baroness—is the clue to stability in Northern Ireland. That balance has departed.

The reality is that in 2017 the May Government lost an election they were not expecting to lose, and the UK negotiating position on these points collapsed in the autumn. Anybody who looks at it closely can see that Irish officials in recent times have published how amazed they were; one Irish official at the centre of these negotiations writes about how easily they were accepted as the only guardian of the Belfast agreement. That being the case, noble Lords will not be surprised that the version of the agreement that starts to play into the 2018 protocol in particular is one-sided. On 6 November, the noble Lord, Lord Murphy of Torfaen, said in this House that he considered that the negotiators of the 2018 withdrawal agreement for the May Government had failed to take into proper account the complexity and commitments of the Good Friday agreement across the board. To that extent, the underlying emotion impelling the noble Baroness, Lady Hoey, today is entirely correct.

However, we are in the process of trying to correct this now, and it is inevitably an imperfect process. What should have happened—it must have been obvious to any child looking at the current negotiation trying to work out how the protocol is to work out—is that we should have said to the Irish Government and the EU: “We will protect the single market, now tell us what you will do to make sure the trading arrangements for Northern Ireland are flexible.” We did not do that. It is so elementary it makes one cry looking at it. We are now desperately trying to reclaim ground that we lost in that negotiation. The trouble is that that ground is lost. When this Government came in, the first letter from the Prime Minister to the EU said we were trying to restore the delicate balance of the Good Friday agreement, which indicated that he recognised the problem—as the noble Lord, Lord Murphy, recognised the problem—and that there was work to be done.

At this point, the agreement with the EU came. The one key difference between the 2018 and 2019 agreements of the Johnson Government is the reference to assent for the Northern Ireland Assembly. It is absolutely clear that the terms of that agreement are not accepted by many unionists. In the earlier version, there were a lot of people in Northern Ireland without democratic rights. It is far better for the people of Northern Ireland across the board that their say at key points, and on how this protocol is implemented, is democratically inscribed.

There is a question mark about this and whether it is compatible with the agreement of 1998 and broader agreements. The noble Baroness, Lady Hoey, mentioned the Act of Union 1800. Article 6 of the Act of Union—I have no idea why the Government’s lawyers said it was subjugated by recent developments—is subjugated by the Government of Ireland Act 1920, which says that trade is the responsibility of this Parliament, as far as Northern Ireland is concerned. That is essentially what the 1998 Act and subsequent legislation, which took over the Government of Ireland Act, say. There is nothing obscure, oblique or implied—it is absolutely explicit in the Government of Ireland Act. That is a very weak argument.

It is important to understand this: the Act of Union is about trying to create one nation across two islands, one community of sentiment, and it failed. What we then did in 1920, perfectly reasonably, was say there are two nations on one island, in Ireland. This reflects the formation of two different Parliaments. But there is no point in any of us now wistfully talking about the Act of Union 1800. It failed. I have written an elegy on it. The circumstances are determined essentially by the legislation of 1921 up to 1998.

The crucial thing is that the UK Government then attempted to reclaim some ground, in the context of being well behind in terms of the already massive concessions made in, for example, the joint report with the EU of December 2017. It did reclaim this bit of ground, and a role for the Northern Ireland Assembly is there; it is important for its functioning and will last several years. It corrected the great insult to the people of Northern Ireland. Frankly, the rights of the people are more important than the rights of one particular community or another, or even cross-community consent, but they had no rights whatever under the 2018 agreement and just had to suck it up.

Something was done, but it is imperfect. We now have an ongoing negotiation to attempt to correct the other problems, which are, essentially, the current trading relationships between Great Britain and Northern Ireland and the hindrances to that negotiation. This should have happened a long time ago, but we are now doing it from a weaker position.

It is in the EU’s interest to guarantee stability in Northern Ireland and help the functioning of the Good Friday agreement. And it is in the Irish Government’s interest, so we must hope that these negotiations succeed. They can no longer carry on paying mere lip service to implementing the Good Friday agreement in all its aspects—something the noble Baroness, Lady Hoey, quite rightly refers to as being a phrase that is used more casually than practically. Throughout the protocol, there is a commitment to introducing the Good Friday agreement in all its aspects. There is an international agreement there, which, as has been said by law officers in this House, has in a sense a prior existence and status commanding the later agreements, especially given that the later agreements give a commitment to implementing it in all its aspects.

There is a real debate here, particularly about strand 3 and the failure of the current arrangements to reflect the model of strand 3 of harmonious development. How can there be harmonious development when so many British firms no longer feel, between east and west, it is worth their while to import into Northern Ireland? It is obviously an insult to the basic point of strand 3.

Here is my point of dissent from the amendment of the noble Baroness, Lady Hoey. When we negotiate a concession and are seeking further concessions from the weak position of what was negotiated in the 2018 withdrawal agreement, we cannot suddenly turn around to the EU and say: “We agreed the exact terms with you on which the Northern Ireland Assembly would have a say on the protocol. Now that we have thought about it, we do not like these terms, and a lot of unionists are very unhappy with them.”

It is impossible at the moment; there is a struggle going on to try and get the EU to respect the Good Friday agreement in all its parts and to realise that this is not just a document of significance or emotional importance to the nationalists but contains very important safeguards. There is a struggle to try to get the EU to accept that under the international treaty it is the United Kingdom Government who have responsibility for the economy of Northern Ireland—which currently they are supporting to the extent of £15 billion a year —as well as responsibility to deliver parity of esteem to both communities. At the moment, the ways things are, there is no parity of esteem because no unionist politician supports the protocol.

There is a labour here and an obligation on the United Kingdom in these negotiations to get this right—from really a weak negotiating position. I urge the noble Baroness, Lady Hoey, not to push this amendment. The last thing in the world that would do any good at this point in this difficult negotiation is for us to say: “By the way, the last concession you gave us, we are tearing up.” We cannot possibly do it. Our duty now is to try to convey to the EU what implementing all aspects of the Good Friday agreement actually means and how this requires a balanced outcome that both communities in Northern Ireland can live with.

My Lords, it is a pleasure to follow the noble Lord, Lord Bew, and I am only sorry that when I took politics at Queen’s he was not a lecturer then; he came in several years later. His speech was very interesting and I think we are all much better informed because of it.

It will be no surprise to Members of your Lordships’ House that I support the protocol. I say that rather advisedly because it is a matter of contention in Northern Ireland. We must remember that the protocol arose out of Brexit and that is the fundamental issue. The people of Northern Ireland, including me, voted to reject Brexit and they wanted to remain in the European Union, but history is history, and we have to respect particular outcomes.

Therefore, in this context, it is vital that we see a successful outcome to the current negotiations between the UK and the EU. We want to see a successful outcome covering such important issues for the people in Northern Ireland as the SPS veterinary agreements, medicines, customs issues and the democratic deficit. The UK Government published a Command Paper back in July. I did not agree with the content. The European Union then produced a series of non-papers—as they are characterised—in October. Both sets of papers naturally form the basis for the ongoing negotiations.

Quite honestly, I think that it is preferable at this stage to allow the negotiations to take their course. Can the Minister advise us on what stage they are at? The Minister and I, along with the noble Lords, Lord Empey and Lord Dodds, were at a meeting yesterday with the Minister for Europe, Chris Heaton-Harris, who sits in the other place. He could not necessarily give a timetable for the completion of the negotiations, but it is vital that they are dealt with in an expeditious manner and provide solutions for all the people in Northern Ireland, including the business community and wider society.

I am a supporter of the protocol, but I want to see those—let us call them—mitigations whereby the people of Northern Ireland are able to trade within the UK internal market and the EU single market and we are all able to realise the opportunities. We have already seen those benefits so it is important that they are documented and emphasised in terms of new businesses and new opportunities for investment. They are there.

Those in the business community do not want to be saddled with the politics of this issue. They want to see business opportunities opening up in this post-Covid situation and the whole community in Northern Ireland prospering. It is much better that we await the outcome of these negotiations, which I feel should be dealt with in a very expeditious manner. Many people have been talking about instability. It is those who were perhaps involved in actions of instability who are creating the instability.

It is important that we refrain from such language and try to go back to encouraging both participants in the negotiations to complete them as quickly as possible, covering all those areas, so that outcomes are achieved that bring an improvement for all the people of Northern Ireland.

My Lords, Northern Ireland has been a matter that I have thought of as very difficult in this situation for quite a long time. I believe that the explanations that have just been given by the two speakers who went before me are vital in trying to get a settlement that will be sufficiently good for all the interests in Northern Ireland. If we are going to do that, it will be by a pretty full solution to a difficult problem.

In my view, there are no reasons just now to create more difficulty than we have to deal with. Therefore, I am very much in favour of what has been said in regard to the law about this and particularly the negotiations situation, which we need to solve. Negotiation is the only way in which we will get this right, and I hope and pray that the negotiations will be entirely successful and that the people of Northern Ireland will get a bargain that will work for them from now on.

My Lords, it is a pleasure to follow the noble and learned Lord. I share his wish for a successful outcome to the negotiations that addresses the fundamental problems that are part of the Northern Ireland protocol. However, I fear that time is very short now and there is little willingness, from what I can see, on the part of the EU to address the fundamental points. It has put forward various mitigations but none of them addresses the governance issue which we are talking about today, none of them addresses the democratic deficit, and none of them addresses the fact that part of this United Kingdom in the 21st century will have laws made for it by a foreign institution, in its interests, over which no elected representation of that part of the United Kingdom has any vote or say. That is an outrageous position.

We have to address this point. The points that have been set out in the amendment proposed by the noble Baroness, Lady Hoey, have gone to the heart of trying to address this matter by saying that we have a problem. I accept what the noble Lord, Lord Bew, said, that the most recent agreement had in it something that Theresa May’s agreement did not, which really was a role for the Assembly. He is right and reminds us that when people now tell us that Theresa May’s deal was a great deal for unionism and we should have accepted it, that was not the case. It did not have any democratic legitimacy, it created a regulatory border down the Irish Sea and it would have put Northern Ireland completely inside the customs union. A lot of revisionism goes on over these matters.

The problem is that although the agreement gives a role to the Assembly, it does not give it any democratic say. The issue of the democratic deficit cannot go away. You cannot have citizens of this part of the fifth-biggest economy of the world having laws made for them that separate us from the rest of the UK—and will separate us more and more over the years to come—and create differences, not just small regulatory ones but massive differences, to our economy when we have to align with the European Union while England, Scotland and Wales go down a different path.

Remember that we in Northern Ireland do more trade with the rest of the United Kingdom than the rest of the world and the EU put together, never mind the constitutional issues. In the meeting the other day with Chris Heaton-Harris, referred to by the noble Baroness, Lady Ritchie, he reported that every business he talks to reports a problem with the Northern Ireland protocol. Yes, some businesses that export to the EU might find it convenient, but the vast majority of our trade is with the rest of the UK. Not least, some of those businesses that export to the EU take many of the inputs to their manufacturing process and so on from Great Britain. Some 20% of all checks on goods from across the world into the EU are carried out in Northern Ireland, between one part of the UK and the other. Remember that that is in a situation where we are in a grace period and 90% of the protocol has not actually been implemented yet.

This situation cannot endure. It must be resolved. One suggestion that we have looked at, and this is the purpose behind the amendment, is to say, “For this vote that’s going to happen in the Northern Ireland Assembly in 2024, let’s restore the voting mechanism under the Belfast agreement whereby it’s a cross-community vote.” As I said, this is the only significant key vote that is given to the Northern Ireland Assembly that is incapable of being a cross-community vote. It is a majority vote. For 99 years of Northern Ireland’s existence we were told that majoritarianism and majority rule was unacceptable, but the Northern Ireland protocol it the one area where the UK Government changed the Belfast agreement through an SI—not even primary legislation, but a piece of delegated legislation in Committee one day a couple of years ago. The purpose of the SI was to change the Northern Ireland Act.

People tell us that the Belfast agreement and the Northern Ireland Act are sacrosanct and cannot be changed. Indeed, the Northern Ireland protocol itself says it is designed to protect the Belfast agreement “in all its parts”. I would have thought that included the cross-community mechanisms and supporting the Northern Ireland Assembly. As we have said in previous debates, that is at the heart of the Belfast agreement, as amended by the St Andrews agreement and all the rest. It is also in the Belfast agreement itself: paragraph 5(d) of strand 1 says that all key decisions should be under the cross-community consent mechanism.

It really is important that this matter is addressed. It goes to the heart of one of the problems that bedevil the stability of the institutions. As the noble Lord, Lord Bew, referred to, massive damage has been done to strand 3 of the agreement regarding the east-west relationship between Northern Ireland and the rest of the UK, but massive damage has also been done to strand 1 through the working of the Assembly because it has been interfered with. I will not go into the arguments about whether this is a devolved matter because the noble Baroness, Lady Hoey, set them out very clearly, but if you give a decision to the Northern Ireland Assembly then it should be given on the basis of the Belfast agreement as amended. That is the basis on which the Assembly has operated since 1998 but it was unilaterally changed for this particular issue.

We have to restore that important principle of cross-community support. It is the Northern Ireland protocol and its outworking that is causing the instability in Northern Ireland. That is the inevitable result of the trade barriers, the friction and the fact that in many instances citizens in Northern Ireland cannot order goods on the internet from the rest of the UK any more. Costs are being racked up by businesses. The UK Government are spending hundreds of millions of pounds a year, which could go into investment, productivity and boosting the economy, on administrative officials under the trade support mechanisms to basically administer all the customs checks on behalf of businesses. That is an amazing dereliction of the responsibilities of the UK Government to the citizens of Northern Ireland.

I plead with noble Lords to restore the proper role of the Northern Ireland Assembly in this matter. The Government clearly now have three choices when it comes to the protocol. They are imminent choices, matters that have to be decided within a very short period. Either they will reach agreement, as we said earlier, although it is doubtful that that will happen, or they will take action on their own part, either alongside or apart from the instigation of Article 16 of the protocol—or, if neither of those happens, the resulting instability in the institutions will lead to their demise. Those are the only three options now open. I sincerely hope that the Government do not allow the third one to happen. This mechanism would provide a democratic route, in line with the Belfast agreement, to give people a political way forward and restore some kind of route map for people in Northern Ireland, whether they agree with the protocol or not, to have a vote on a cross-community basis.

My Lords, in response to the very measured intervention from the noble Lord, Lord Bew, I have two points. The first is that the Bill is about implementing some of the remaining elements of New Decade, New Approach, so we do not believe that it is the right place to make the changes set out in the amendments by the noble Baroness, Lady Hoey. Secondly, as the noble Lord said so powerfully, given that discussions are ongoing between the Government and the European Commission, the amendments would be deeply unhelpful to making progress at this time. For those two reasons, we strongly oppose the amendments.

My Lords, I have not heard anyone really deny the central point made by the noble Baroness, Lady Hoey. I have heard some brilliant and enlightening speeches but even that gorgeous threnody of the noble Lord, Lord Bew, for past agreements, his great melody against it, did not defy the central point that cross-community consent was supposed to be the basis for every major decision. The pact that we made with the communities of Northern Ireland was that important constitutional issues of this kind would not be decided by simple majoritarianism but would require the consent of both communities. As the noble Lord, Lord Dodds, says, that was the basis on which the whole previous dispensation was overturned, so we cannot in conscience arbitrarily withhold that principle on this one issue. I will therefore support the noble Baroness’s amendment.

My Lords, once again my noble friend the Minister is suffering from mission creep as far as the Bill is concerned, but I think he will have to concede that we are past the post on that and we are where we are.

The genesis of this issue is obviously our decision to leave the EU. I do not want to reopen that debate; we spent years in this House arguing the toss. However, before the vote I and my colleagues—many of whom are actually not Europhiles at all; many are very hostile to the EU’s federalist tendencies and all the rest of it—visited Prime Minister Cameron before the vote specifically to find out what his plans were in the event that the UK decided to leave the EU. It was a fairly elementary thing to do. We came away from that meeting clear in our own minds that our own Government had not worked out how our situation was going to be dealt with in future negotiations with the EU. That made us feel very uneasy.

What we are talking about tonight, and have been talking about for the past few years, is closing the stable door after the horse has bolted. As the noble Lord, Lord Bew, eloquently pointed out, we are fighting from a much-weakened position. The negotiations pertaining to the European Union started off disastrously. First, we agreed how much money we were going to pay it before we knew what the deal was. Then we put Northern Ireland matters on the table and separated them from trade. They should never have been separated from trade. It was a disaster and, unfortunately, you could see it coming. It is not any surprise. All of these problems—virtually without exception—were anticipated. That is the tragedy of it: it was avoidable and Brexit, as far as Northern Ireland was concerned, was not thought through in sufficient detail. We knew it was going to be difficult, and that was compounded by poor negotiating strategy and implementation.

Our little Province is now left with this mess that we now have. What we have here, and what the protocol currently is, is the product of a proposal from our own Prime Minister. He wrote his explanatory note to the European Union on 2 October 2019, and he proposed the border in the Irish Sea. He proposed border inspection posts; he proposed that the European Union rules would be followed; he proposed that all goods coming from Great Britain would have to be notified to the authorities before they could enter Northern Ireland so that they could be subject to inspection on EU rules. He also included a section on consent whereby the Assembly and the Executive would have to give their ongoing consent. However, he made the point that there must an ability to exit them: that is what he said in the note to the European Union. Of course, you cannot exit them if you are not in them, so the implication is that you are in them before you can get out of them.

This was our own Government’s proposal. As to the point made by the noble Baroness, that would have implied that even though the document accepted a border in the Irish Sea and all the other downstream consequences, it at least accepted that there was a road for the Northern Ireland Assembly and Executive. The one tricky point about that was that, at the time this note was written, there was no Northern Ireland Assembly or Executive to give their consent to anything, because they were out of business. It was a flawed process right the way through.

I point out to my noble friend Lord Hannan on cross-community consent: if you take that through to all decisions, Northern Ireland, as a unit, would not have left the European Union because there would not have been cross-community consent. We have to be very careful where we draw the lines here.

I do not understand—and probably to my dying day I will never understand—why some Democratic Unionist colleagues here, on the day that this was announced, endorsed it. Arlene Foster backed it as

“a serious and sensible way forward”.

They were perfectly entitled to argue that consent paragraphs were in it, but why would you even contemplate, as a unionist, a border in the Irish Sea, border inspection posts, people having to notify from Great Britain before they send a box of goods to Northern Ireland? Consent or no consent, I just do not understand it.

Anyway, it has moved on from that, so what we have to do is look for an alternative; and there is an alternative. The alternative is the Belfast agreement. We can build institutions around that, using the agreement. We are at the table; the Assembly would be at the table; the Irish Government would be at the table. They can police, from the point of view of the European Union, agreed arrangements; we can police, with devolution from here, arrangements to ensure that the UK internal single market is operating properly. We can have a new North/South body; we can use the institutions to end—or at least minimise—the democratic deficit. Nothing, of course, is going to take away from the fact that, if you have an international treaty with the European Union, where Northern Ireland is, to all intents and purposes, an EU protectorate, that union will still make our laws for large areas of our economy. That is the fundamental weakness in our position.

However, as the noble Lord, Lord Bew, rightly said, as someone who was involved in the negotiations—I am not alone in this Chamber tonight—cross-community assent was the fundamental building block, because that ensured that both communities had their hands on the steering wheel, which was the selling point of the agreement. The noble Baroness is right in that regard. We will support anything that will help move away and give people an extra chance to give their consent to these arrangements. The people of Northern Ireland have never given their consent to these arrangements.

When we look at the history of it, it was all predictable and it was all predicted. We now have to move to the position of finding solutions. I am convinced that there are solutions. Indeed, if I am not mistaken, I have one ally in my belief: the leader of the Democratic Unionist Party. On 19 September 2019, when asked on the BBC’s “Good Morning Ulster”, Jeffrey Donaldson said:

“If new arrangements are proposed to deal with the consequences of Brexit for cross-border trade, then obviously the Assembly is going to be part of that.”

Those new arrangements, he said, could involve the North/South Ministerial Council.

There we have it. We have a starting point and a departure point to solve, or at least minimise, these problems. The noble Baroness has rightly drawn the House’s attention to the severe weaknesses in the arrangements. As there is not any unionist consent—not a scintilla of unionist consent—for these arrangements, this imbalance cannot be allowed to persist.

My Lords, I want to be very brief, but I am slightly confused after listening to the noble Lord, Lord Empey. He is not being absolutely clear here in some of his comments. He quotes the former leader of the DUP saying, in relation to the protocol, that they would have to work with it now. I want to be very clear with this House, and it would be appreciated if others who are speaking will also do the same. Arlene Foster at that time made the statement on the clear understanding that the Northern Ireland Assembly, on its cross-community voting system, would have the say at the end of the day.

Having listened to the noble Lord, Lord Empey, and others, I see that it is undoubtedly a very technical issue. I commend my noble friend Lord Dodds, and the noble Baroness, Lady Hoey, on their excellent speeches. I also commend the speech of the noble Lord, Lord Bew. I do not entirely agree with him, but I can see where he is coming from and what he is driving at. Let it be said that there are some of us in this House—my colleague to my left hand and my colleague to my right hand—who were not here at the particular time that the Brexit debate was going on.

I distinctly remember the long nights, into the early hours of the morning, and I remember it continually being said, not least from the Conservative Benches, that we do not want to be just law-takers and have no say whatever in how the law is being made. That is the situation in which Northern Ireland finds itself. Is the noble Lord, Lord Empey, telling us today that he agrees—or disagrees; I am not sure what he is saying and I do not want to misquote him—on the difficulties and consequences of the protocol, that it has to go, and that any vote in the Northern Ireland Assembly must be by cross-community voting and consent? It was Arlene Foster’s understanding at that time that that is the way it would be. So let us be fair to everybody here and not misquote them. I am not interested too much in what the banner headlines of certain papers said or did not say at that time. I would rather stick with the facts, which are very clear.

Northern Ireland now has no say whatever and no vote whatever, and Europe just imposes everything. I am amazed at some in this House who seem to think that that is quite all right. Northern Ireland was not asked to vote on Europe on its own; we are a part of the United Kingdom, and the United Kingdom left the EU in a democratic vote. Someone explain to me what is wrong with that, please.

My Lords, may I simply say that the cross-community safeguards at the heart of the devolved settlement have been trashed by the protocol? The wilful and reckless decision by the Secretary of State unilaterally to remove the cross-community voting protections contained in Section 42 of the 1998 Act has damaged public confidence. Whether noble Lords want to believe it or not, they had better realise that, if the protocol continues, the Northern Ireland Assembly is on life support. Do not rub the nose of Unionists in the ground.

My Lords, when this amendment was first tabled at short notice in Committee by the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, as I know it had to be, I have to say that I struggled to understand how it was in scope, and I still feel that it is slightly outwith the Bill. Having said that, I am really pleased that we have had this debate, which has been extremely powerful. I also thank the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, for taking the time to speak to me and my noble friend Lord Coaker about their concerns on this issue.

As I say, it has been a very powerful debate and I hope the Minister understands the strength of feeling around the House. I always felt that the situation was tough on Northern Ireland. During the debate on Brexit, when the Prime Minister had his “£350 million a week for the NHS”, I do not recall many people paying attention to what the situation would be in Northern Ireland. Northern Ireland can rightly feel aggrieved that its interests did not seem to be very high on anyone’s agenda, a point made by the noble Lord, Lord Empey.

I am particularly grateful to the noble Lord, Lord Bew, for the points he made and for the extremely thoughtful way in which he addressed some of the issues. I do not support the amendment being in the Bill—that is quite a difficult stretch to make—but the Government have to listen to what has been said here. I made a similar comment earlier on the amendment proposed by the noble Baroness, Lady Ritchie. The scope of this Bill is around the New Decade, New Approach issues. The Bill’s approach is very narrow; it is looking for agreement in areas where there is cross-party agreement, which we have been discussing. The amendment goes outside that.

However, I find it absolutely extraordinary that, when the Government were debating and discussing Brexit with the EU, nobody from Northern Ireland was in the room as part of those discussions. I saw the noble Lord, Lord Frost, wander in earlier, but he left before this debate, which is a great shame, given that he is the architect of the protocol; it would have been useful had he remained and perhaps given us some explanation of how we reached this point. I have to say that the Government have let Northern Ireland down in the handling of the protocol, which was debated, discussed and agreed by this Government. Unless those with a stake in the economy and business of Northern Ireland are directly engaged in those discussions and negotiations, it will be very difficult to reach an agreement and conclusion that can satisfy and benefit Northern Ireland. The noble and learned Lord, Lord Mackay, made a very important point in his brief contribution when he talked about the way forward for negotiations and to find an agreement. If the people of Northern Ireland are not included in those negotiations, that will be extremely hard to do.

Many of us recall—I am sure noble Lords from Northern Ireland recall—the film of the Prime Minister speaking to a business group in Northern Ireland and saying, “There’ll be no checks, no borders, no tariffs and no forms to fill in. If you get a form, send it to me—give them my home number and I’ll deal with it.” They were the Prime Minister’s rules, as my noble friend Lord Hain said, and we know that the Prime Minister does not always know what is in his own rules—that has been established already today. But on something of this importance, it is extraordinary that the Government were so careless with Northern Ireland. So I understand the depth of feeling on this issue, and I am grateful to the noble Baroness and the noble Lord for allowing this debate today, even though it seems to be outwith the Bill.

There are further negotiations to come and they must focus on the talks, but the Government have to be on notice on this if they do not include Northern Ireland in those negotiations. Why not have one of the meetings in Northern Ireland? Go to Northern Ireland and talk to businesses and to people who live with this, day in, day out, and there might be a better conclusion. That process has to run its course, which is why we cannot support the amendment. But let no one be under any illusion that we do not understand the problems that this Government have caused.

There is an ongoing court case, as has been mentioned, and a number of issues have to be addressed. I look forward to the Minister’s response, but I have to say to him: get a grip, because this cannot continue in this way. It has direct implications for political stability in Northern Ireland. The noble Lord, Lord Empey, made the point—my noble friend Lord Hain made a slightly different one—that it was the UK’s decision to leave the EU. When the constituent parts of the UK were looked at, Northern Ireland was one of the areas that voted against leaving the EU, yet it is facing some of the harshest consequences of that decision, which is unfair. I hope the Minister can say today that this issue will be looked at seriously and Northern Ireland will be involved in the decision-making process. It may not be a matter for the Bill today, but it is certainly not going to go away.

My Lords, my noble friend Lord Empey referred to “mission creep”, and the noble Baroness, Lady Smith of Basildon, referred to the scope of the Bill. I confess that when I started the Bill in your Lordships’ House, little did I suspect that I would probably spend more time discussing the Northern Ireland protocol, which does not form part of the Bill, than any of the provisions that do form part of it. So I congratulate the noble Baroness, Lady Hoey, and my noble friend Lord Dodds of Duncairn on their ingenuity in bringing this matter before the House through this amendment. Of course, following the comments of the noble Baroness, Lady Smith of Basildon, I completely understand the strength of feeling in Northern Ireland on aspects of the protocol. Indeed, before I assumed my role on the Front Bench, I think I gave expression to some of them myself. I completely understand the sincerity with which the noble Baroness and my noble friend have brought their case today.

In one area, I will slightly disappoint the noble Baroness, Lady Hoey. When she brought this to the Committee, I referred to the fact that a number of the issues she raised on the compatibility of the protocol with the Belfast agreement and the Act of Union, on which the noble Lord, Lord Bew, made some interesting and pertinent comments, are currently the subject of a court case. These arguments are being considered by the Court of Appeal in Belfast so I am to some extent limited in what I can say. We expect the judgment shortly; I cannot put a date on it, obviously, but we await the outcome of that case with huge interest.

This somewhat circumscribes what I am permitted to say, albeit the crux of the Government’s argument is that the consent mechanism contained in the unilateral declaration, which is directly referenced in Article 18 of the Northern Ireland protocol, is compatible with the Belfast agreement and the voting mechanisms in the Assembly because they deal with the United Kingdom’s relationship with the European Union, which is definitely an excepted matter. Therefore, the cross-community mechanisms in the Assembly, which are designed to be put in place for matters that are wholly devolved in Northern Ireland, do not apply in this case. That has always been the crux of the Government’s case but, as I say, this case is currently before the courts. I hope we will get their judgment shortly.

I will say a few words about the current state of play. As I said before, I acknowledge the widespread concerns about the protocol’s construction and implementation. It has led to divergence of trade and increased burdens on business, and has disadvantaged consumers. As we saw before Easter, it has also led to certain societal problems and contributed to political instability in Northern Ireland. Of course, those who made the case for the protocol at the outset did so on the basis that it was essential to uphold political stability in Northern Ireland and help to maintain the Belfast agreement in all its parts. The danger and unintended consequence of the way the protocol has been implemented is that it risks undermining political stability and community confidence in the Belfast/Good Friday agreement. The Government recognise that and the inherent dangers very clearly.

Let me give a couple of examples. My noble friends Lord Dodds of Duncairn, Lord Empey and Lord Hannan, the noble Baroness, Lady Ritchie of Downpatrick, and I served together on the Protocol on Ireland/Northern Ireland Sub-Committee of the European Affairs Committee. Every week, we took evidence from expert witnesses who pointed out some of the disadvantage that they faced. For example, we now have some 200 companies in Great Britain that no longer trade with Northern Ireland. Garden centres cannot get many plants; indeed, I think I have colleagues on these Benches who have historically supplied Northern Ireland with horticultural produce but are now having a great deal of trouble. There are even examples of Northern Ireland’s Jewish community struggling to access kosher food.

So the impact of the protocol has been felt across the board in Northern Ireland and represents a risk in its present form, construction and implementation to confidence across the community in the Belfast/Good Friday agreement. To that end, as has been referred to in a number of speeches this evening, the Foreign Secretary and the Northern Ireland Secretary, my right honourable friend Brandon Lewis, met the EU Vice-President, Maroš Šefčovič, last week. We are now entering a period of intensive negotiations to try to find a solution. I think that the Foreign Secretary will meet Vice-President Šefčovič again on 24 January to assess progress.

All along, the Government’s position has been that we wish to remedy the defects in the protocol by agreement and through negotiation and discussion, as was set out in the Command Paper last summer. However, in the event of there being no agreement, we will not rule out unilateral action if that is deemed necessary, but the clear preference of the Government is to address these matters through negotiation and agreement. Judging by the read-outs I have had from the meetings that took place last week, that is also the clear preference of the EU.

It strikes me that there are four reasons why I would ask the House to reject the amendments put forward by the noble Baroness, Lady Hoey, and my noble friend Lord Dodds at this stage. One is the court case to which I just referred. The second is that the amendments deal with matters that are not part of the Bill’s main focus: the implementation of the New Decade, New Approach agreement, to which the noble Baroness from the Liberal Democrats referred. Essentially, the Bill is about New Decade, New Approach, the document that led to the reestablishment of the devolved Government in Northern Ireland after an absence of some three years between 2017 and 2020.

I just want to pick up the point made by the noble Baroness, Lady Smith of Basildon, about engagement. The Assembly and the Executive were in abeyance for much of the period after the referendum, which included our triggering Article 50 and leaving the EU. It was very unfortunate, to say the least, that that was the case.

I accept that point. It was a huge detriment to Northern Ireland that the Assembly was not meeting at that time. However, there were still businesses and elected representatives. It would have been so helpful if the Government had just been a bit more thoughtful about Northern Ireland during those negotiations.

I appreciate the noble Baroness’s sentiments. To give one example, I recall that, in the aftermath of the referendum, the then First Minister, Arlene Foster, and the then Deputy First Minister, Martin McGuinness, wrote a letter to the then Prime Minister setting out the Northern Ireland Executive’s priorities for the negotiations. Of course, shortly thereafter, for reasons that we are all too familiar with, the Assembly and the Executive went into abeyance for three years, but I take the point. I was there for a good deal of that period, and there was a lot of engagement going on, but we lacked the formal mechanism of the Executive.

On engagement, my understanding is that the Minister for Europe is due to be in Northern Ireland tomorrow to meet a number of business organisations and individual businesses. He has held meetings with Members of your Lordships’ House in the past few days. This morning, along with the Secretary of State for Northern Ireland and the Europe Minister, I attended a regular meeting with the First and Deputy First Ministers of Northern Ireland; that will be an ongoing process. We recognise the need for strong engagement on these matters.

I want to go back to the reasons for urging the noble Baroness to withdraw the amendment. The noble Baroness, Lady Ritchie, and my noble and learned friend Lord Mackay of Clashfern, in a very wise contribution, emphasised the ongoing nature of the discussions and the fact that we need to try to give those discussions breathing space to reach a successful conclusion.

I thank the Minister for taking my intervention. In his wind-up, will he give us his estimation, following discussions today, of a date for the implementation of these negotiations or for their conclusion? They are absolutely vital because we do not want to see them impinge—although many believe that they will—on the election itself.

The noble Baroness, Lady Ritchie of Downpatrick, attended the meeting with the Minister for Europe yesterday at which I was present. I think that issue was raised then, and he was unable to put an absolute timeframe on this. If he cannot do so, I do not think I can answer that question directly from the Dispatch Box other than to say that the Government are seized of the urgency of this matter and the need to come to a resolution as expeditiously as possible. I take on board what the noble Baroness said and the comments in this respect from a number of Members from Northern Ireland behind me from the Democratic Unionist Party and the Ulster Unionist Party, and from the noble Lord, Lord Bew.

My final point relates to the nature of the amendments, which effectively would ask Parliament unilaterally to change an existing agreement between the United Kingdom and the European Union as set out in the unilateral declaration, the protocol and the withdrawal agreement. While negotiations are going on with the EU, it would not necessarily be helpful to those negotiations if we were to change an existing international agreement with the EU. That does not strike me as probably the most helpful way forward in negotiations. With those comments, I urge the noble Baroness, Lady Hoey, to consider withdrawing the amendment.

My Lords, I thank everyone for their contributions. This has been a thoughtful and useful debate on a part of the United Kingdom that gets far too little attention at any time other than when there is trouble. I will briefly address a couple of points that were raised.

I get tired of people going on about how the protocol is all about Brexit. Northern Ireland voted as part of the United Kingdom, and we voted as the United Kingdom to leave. Let us be realistic. What happened then is that Northern Ireland has not left the European Union. We are in the internal market for all sorts of aspects, and we are now seeing that working through in the constitutional issue which is part of this debate tonight: the question of consent.

I thank the noble Lord, Lord Hannan, for his short speech of support. As someone who was a long-time Member of the European Parliament, perhaps he more than anyone here realises, when we say, “We are waiting for these negotiations and so we cannot talk about this, vote on it or do anything now,” just how very unlikely it is that the European Union will cave in and give back what should never have been signed away. I am not interested in who made the bad decisions, who is blaming who in Northern Ireland, or in which Government did it; I am interested now in sorting it. The only way we will do that is to stand up for our country—for a United Kingdom—and not use the excuses that have always been made about why we have a protocol.

When do we get a vote on this? The noble Lord, Lord Caine, talks about the legal action. Will we get a vote after that? I believe that all the other arguments used to explain why there cannot be a vote tonight are just procrastination. The people of Northern Ireland are fed up with this place and the other place not really ever accepting that they are part of the United Kingdom. I wish people would be honest. There are Members in this House who do not want Northern Ireland to be part of the union but they will not say it. Behind the scenes, we in Northern Ireland do not believe that we have the total support of Peers in this House and Members of Parliament in the other House. I believe that we should be voting on this tonight, but I am aware that there are Members here who have said to me that they genuinely do not think that this is part of this Bill—that it should not be in it. I do not agree with them, but I know that they will use that as their reason—understandably and perhaps genuinely honestly—not to support it.

I want the people of Northern Ireland to know that we have discussed this and that we mean what we say. I will withdraw my opportunity to have a vote, because I know that if this did not pass tonight, that would be used by people to say, “There is no support for getting back cross-community consent”, and I do not believe that is true.

I therefore thank Members who have spoken and—I am not being patronising to noble Lords—I hope that some people tonight have genuinely learned something about what is happening in Northern Ireland at this moment. We can talk about New Decade, New Approach and we can say that this is what the Bill is about. There will not be any New Decade, New Approach discussions or anything coming out of New Decade, New Approach until we sort the protocol out and until Northern Ireland is fully part of the United Kingdom again. That is what this debate is really about. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6 not moved.

Clause 6: Repeal of spent provisions

Amendment 7 not moved.

Clause 8: Commencement

Amendment 8 not moved.

Amendment 9

Moved by

9: Clause 8, page 8, line 11, leave out from “force” to “the” on line 12 and insert “on”

Member’s explanatory statement

This amendment provides that the default position is for the Bill to come into force on the day on which it is passed (rather than two months later).

Amendment 9 agreed.

Amendment 10 not moved.

Clause 9: Short Title

Amendment 11 not moved.

In the Title

Amendment 12 not moved.