PARLIAMENTARY DEBATE
Northern Ireland - 1 February 2024 (Commons/Commons Chamber)
Debate Detail
That the draft Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, which were laid before this House on 31 January, be approved.
Getting devolution back up and running has been the principal focus of Government policy in Northern Ireland since February 2022, when the then First Minister resigned. The agreement that I set out to the House yesterday is designed to secure the widest possible support among the community in Northern Ireland for participating in the political process. These regulations should be seen and considered in the context of forming part of a package. This package will safeguard and durably strengthen Northern Ireland’s integral place in the Union and the UK’s internal market, and it will do so by placing commitments in that package into law.
The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 affirm, strengthen and future-proof Northern Ireland’s place within the Union, underpinned by the Acts of Union and the terms of the Northern Ireland Act 1998.
The regulations address the concerns that have been expressed in parts of the Unionist community in Northern Ireland that its status has been diminished. Let me say from the outset of our discussions that what the Government wanted and the Democratic Unionist party wanted, and which we had, was our shared determination to strengthen our Union.
Again, let me say from the outset that what united the Government and the DUP was our shared determination to strengthen our Union.
I want to stress our determination to strengthen the Union, and the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) has powerfully argued that strong and effective devolution delivering a thriving Northern Ireland within our United Kingdom is the surest way to ensure that this United Kingdom remains united in the time ahead. In taking the steps he has taken, he is delivering far more for the future of Northern Ireland in the Union than any of his detractors.
The changes the right hon. Gentleman has secured in these regulations and the other instrument before this House, which we will consider shortly, will further enhance those protections. The regulations end any presumption that there is any form of automatic and unchecked dynamic alignment with European goods rules. Section 7A of the European Union (Withdrawal) Act 2018, the so-called pipeline of EU law, is now expressly subject to the operation of vital democratic safeguards that the Northern Ireland Assembly, when sitting, will be able to exercise, including the Stormont brake. Indeed when— I emphasise when—Stormont begins to sit again and first assembles, I will be able to sign that Stormont brake legislation into law and it will be available to be used by the Assembly as we move forward. When Parliament passed the 2018 Act, it was exercising its sovereignty so that the UK-EU withdrawal agreement could be implemented in domestic law.
It is right that we are updating domestic law to reflect the fact that democratically elected representatives in Northern Ireland will now be able to reject new and amended EU law and that the withdrawal agreement’s implementation is subject to robust scrutiny.
Crucially, this legislation will also change the law so that new regulatory borders between Great Britain and Northern Ireland cannot emerge from future agreements with the European Union. That is an important new safeguard to future-proof Northern Ireland’s constitutional status. No Government in the future can agree to another protocol; neither can the UK internal market be salami-sliced by any future agreement with the European Union.
This legislation will also introduce safeguards so that Government Bills that affect trade between Northern Ireland and other parts of the UK are properly assessed. Ministers in charge of such Bills will need to provide— my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) raised this point—a written ministerial statement to Parliament as to whether a Bill would have a significant adverse effect on trade between Northern Ireland and another part of the United Kingdom. If the legislation does carry that significant adverse effect, the House would expect the Minister to set out any steps to be taken in response to that assessment. Indeed, we have Select Committee Chairmen present, and they would expect to do high levels of scrutiny in that space. This is a very good transparency measure that we should all welcome.
“We will also…set out plans to introduce legislation in the spring that would avoid new regulatory divergence between GB and NI on veterinary medicines.”
Is the Command Paper saying that in that area there will be no future divergence?
As I was saying before that intervention, the SI will increase transparency by ensuring that Parliament is presented with evidence of the GB-NI trade impacts of relevant legislation before proceeding with it. The concrete steps we are taking and enshrining in law will deliver clarity to business that Northern Ireland’s unfettered access to the UK internal market will not be threatened by a new regulatory border.
Finally, with this legislation the Government will provide for additional duties and further requirements in statute regarding the operation of an independent review of the Windsor framework, reflecting our steadfast commitment to ensuring that the framework operates on the basis of the broadest cross-community support. As Secretary of State, I will be put under a duty to commission a review within one month of the Assembly having passed a consent vote, but without cross-community consent, and I will be obliged to respond to the report from that review within six months. That constitutes a new and important commitment by this Government. All those steps we are taking are designed to ensure that tangible action is taken off the back of a review and solutions are found. Government Ministers are being placed under a legal duty to raise the contents of the review at the UK-EU Joint Committee on the withdrawal agreement.
The Secretary of State will also know that in this statutory instrument, there is a proper amendment, being made here in the UK Parliament, to section 7A of the European Union (Withdrawal) Act 2018, which relates in particular to that pipeline. To give a sense of how regulations have been changed through this process, on Tuesday evening when the European Union and the UK Government reached agreement on what was contained in the red lane for rest-of-the-world products, 60 pages or more of legislative text and change were published that show the benefits. Not only has this legislation dealt with regulatory barriers that could be created in the future; as part of the overall package, some of those barriers have already been removed.
When we were members of the European Union, wading through the hundreds of different explanatory memorandums that came the Committee’s way was quite a job and quite a responsibility. One of the commitments we have made is that we will make sure that information is freely available to Assembly Members in Northern Ireland—when they take their seats—to ensure that they can undertake democratic scrutiny of proposals that might well affect Northern Ireland, so that they have the information they need to use the Stormont brake, should they so choose. Scrutiny is a vital part of all this.
The constitutional legislation and the legislation to secure our place in the internal market are here, but I and my constituents retain some level of concern, so I press the Government for more assurance. It was highlighted yesterday that European laws might be overruled by the Government, but that wording suggests they may also be accepted, allowing Northern Ireland to diverge. I want the answer, Secretary of State. Does the last word lie in this place, or does it lie with the EU when it comes to making those decisions?
I have long been clear to right hon. and hon. Members that I serve in the Government proudly as a Unionist. I am pleased that the regulations, which I commend to the House, will address the concerns expressed by part of the community in Northern Ireland in past years that our Union of nations has been somehow diminished as a whole. The regulations demonstrate that the Government have listened so that trust can be rebuilt, so that people and businesses can be reassured that they are in the UK’s long-term future, and so that we can see Northern Ireland’s political institutions restored.
In future, I will always try to treat everybody equitably, but I hope the hon. Gentleman understands that I had to ensure there was an agreement that the Democratic Unionist party could stand behind so that I could start to rebuild the trust—the hon. Member for Strangford (Jim Shannon) used the word “trust”—that had been lost between the Democratic Unionist party and the United Kingdom Government. That is something we had to do between the two of us.
Mr Speaker—sorry, Madam Deputy Speaker, it is very nice to see you in your place, and I am sorry I did not see you come in—the regulations undoubtedly will strengthen Union. It is for that reason, and more, that I wholeheartedly and unequivocally commend them to the House.
Ever since our leaving the EU created the problems that have caused Northern Ireland to be without a Government for two years, we have been trying as a nation to find a common-sense way through. The SIs are a continuation of that process to balance two objectives: first, to enable the free flow of trade between Northern Ireland and Great Britain; and secondly, to make sure that goods that enter the Republic across the open border meet the single market rules.
We should note the further commitments, to which reference has been made, contained in the Command Paper published yesterday. We look forward to regulations and guidance to implement them where required, perhaps with a little bit more time to read them, although I understand completely and support the timetable we are dealing with today.
I commend the right hon. Member for Skipton and Ripon (Julian Smith) for drawing the House’s attention to the annex of the Command Paper on the history. I certainly learned some things from reading it. I have heard the argument that there was always free and unfettered trade and now that has changed, only to discover that the Government of Ireland Act 1920 required that the movement of goods between Great Britain and Northern Ireland be treated as exports and imports, and that customs officers were instructed to conduct physical inspections of ships and daily sailings twice weekly, at a check rate of 28%. It is a jolly good idea to understand one’s history when trying to deal with the problems of the future.
Turning to these particular regulations, part of them updates previous legislation to include references to the Windsor framework, which came after those pieces of legislation, or reaffirms for clarity the existing legal position. I welcome the prohibition made by regulation 2(3) of any agreement with the EU that would
“create a…regulatory border between Great Britain and Northern Ireland.”
However, if we were to form the next Government, Labour would seek to negotiate a sanitary and phytosanitary agreement with the EU with the intention of removing checks on animals, food and plants, not only between GB and NI, but between the whole of the UK and the EU. That would benefit farmers, food businesses, the horticultural industry in Northern Ireland and the rest of the United Kingdom.
Regulation 3 amends section 7A of the European Union (Withdrawal) Act to include a reference to the Stormont brake procedure and the democratic consent vote. I note that the Secretary of State said that the Windsor Framework (Democratic Scrutiny) Regulations 2023 passed by Parliament last March, which I think he said he had signed, will take effect once the Assembly is back up and running.
The point about divergence is that it is a choice. It is striking to note the number of instances since we left the European Union when the current Government decided that they were going to diverge, and then suddenly had second thoughts about it because it did not really make a lot of sense. I make no apology for having given the example of the veterinary SPS agreement that we would like to reach, because it would help our businesses in the UK, businesses in Northern Ireland and businesses in the European Union. That is my definition of common-sense negotiation—the decision has been made, but that does not mean Britain cannot seek to improve the relationship we have with the European Union in our interests and the interests of our European neighbours.
I also welcome regulation 3(3), which would require a Minister before the Second Reading of a Bill containing provisions that would affect trade between Northern Ireland and the rest of the United Kingdom either to make a statement that it would not have such an effect, or to set out the reasons why the Government want to proceed none the less. It may be difficult at this stage, but I wonder whether the Secretary of State in winding up could give us an example of the circumstances in which Ministers might want to make use of the provisions in proposed new section 13C(2)(b) to the European Union (Withdrawal) Act, found at the top of page 4 of the regulations. In other words, in what circumstances would the Government want to proceed with legislation even though it would have an adverse effect?
I welcome the clarifications made in regulation 4 regarding any independent review that may follow the democratic consent vote. That vote by Assembly Members must take place, as I understand it, by the end of this year. Has the Secretary of State had any discussions with Northern Ireland political parties as to when, exactly, that vote might take place, or does he intend to do so, or is it entirely a matter for those parties?
I will return in the subsequent debate to the matters I wish to raise on the UK internal market regulations, Madam Deputy Speaker. I now bring my remarks to a close.
This debate has properly focused on the statutory instrument that will amend primary legislation through the powers of the 2018 Act, which my right hon. Friend the Member for Skipton and Ripon (Julian Smith) and I both spent a lot of time dealing with in its enactment. However, it is right to look again at what is outlined in the helpful annex A to the Command Paper, in terms of the history and the legal background to what the parties have been dealing with and why it is that many of the arguments from the naysayers do not pass close scrutiny at all.
I am delighted to see on page 53 of the Command Paper a clear exposition of the position with regard to the Acts of Union—I say the Acts of Union because, of course, there was more than the one in 1801. Since that time the Acts have been amended, and not just by the seismic events of 1921; they were amended right through the 19th century, and indeed beyond, to take into account the evolving position of Northern Ireland. Just as every other part of our United Kingdom has evolved, so has Northern Ireland.
It is right to pause and say that the arguments that were asserted, in particular in the Supreme Court, about what we can now call the old protocol being inconsistent with the Acts of Union are just wrong. That point was never at issue before that Court. The Court specifically said that it did not have to rule on it.
But I say gently to the hon. Gentleman that there is a distinction between the integral part that Northern Ireland plays in our United Kingdom constitution and our internal market—our single market—and the inevitable access that Northern Ireland will have to the EU single market. Why? Because of the nature of the border that exists in Northern Ireland, the unique nature of its status and all the history and, indeed, the reality that goes with that. That is why there is not going to be an elegant or perfect solution to all this. It was always going to involve compromise.
Compromise is a difficult word—it implies weakness and fudging; it implies a lack of clarity—but right hon. and hon. Members opposite have recognised that that is the world in which they operate, which is why we are able to be here today to debate important changes that will underpin not just declaratory words about Northern Ireland’s place within the UK internal market, but concrete actions that are set out in the Command Paper. I am thinking in particular of the operation of the Stormont brake. Yes, we need to see more guidance about its operation—we need to understand the evidential thresholds that will be required for MLAs to bring the brake to the attention of the UK Government to lodge their objections; that work has to be done—but today will allow it to happen.
In its judgment, the Supreme Court looked in particular at the question of the sovereignty of Parliament, and affirmed that—as article 6 of the Acts of Union itself recognised—it is the most fundamental rule of UK constitutional law. There is nothing novel, unexpected or controversial about that, which is why some of the language that emerged from that case was not just unhelpful but wrong. I know that the right hon. Member for Lagan Valley, the leader of the Democratic Unionist party, shares my view. It was time for leadership, and leadership means being straightforward and getting it right. That is why I commend the right hon. Gentleman and his colleagues for the work that they have done: they got it right, and as a result of their approach we are able today, I hope, to pass this much-needed change. I welcome it warmly, I commend my right hon. Friend the Secretary of State, and I commend this measure to the House.
The manner in which Brexit has come about has, as I say, caused issues in Scotland. It has placed our own constitutional question back at the forefront and under renewed scrutiny, but despite the tensions that that has released, or brought about, politically, I hope that my party and I have been able to understand and empathise with some of the concerns of people in Northern Ireland, and not just over the way in which Brexit, as originally constituted, threatened to undermine the basis on which peace and progress had been secured over the previous quarter century.
I hope that my party and I have also been able to understand and reflect on the fact that aspects of the protocol have left Unionists in Northern Ireland in particular feeling that they have been in some way separated, or set on a course of being separated, from the UK. In that regard, as I have said on a number of occasions, we never considered it unreasonable in and of itself, in the light of experience, that the UK Government should seek to renegotiate, or to rework, aspects of the deal that had been put in place.
Although there were certainly opportunities to recast a deal which, I would argue, could have worked better in the interests of all parts of the UK—I would highlight sanitary and phytosanitary alignments as being essential to that—and while I regret that those options have not been pursued today, I do not begrudge Northern Ireland a single aspect of what has been agreed in recent days or what appears in the statutory instruments.
There appears to be something of a contradiction, in that Northern Ireland cannot conform to the requirements of the single market to maintain access there, and also the UK internal market, in the event of a future divergence. That brings to mind paragraph 146 of the Command Paper, which provides that
“the Government will legislate to require that a Minister in charge…must assess whether or not”
something
“has an impact on trade between Great Britain and Northern Ireland”
and make statements.
That contrasts with new section 38A (1) of the SI, which states:
“His Majesty’s Government must not ratify a Northern Ireland-related agreement with the European Union that would create a new regulatory border”.
A Minister might lay a statement before Parliament to that effect, but that does not mean that the Minister’s opinion will necessarily be shared, or make the statement any less subjective. Ministers might be capable of thinking six impossible things before breakfast, and indeed at times during the Brexit debate it seemed that that was a necessary qualification for office. Nevertheless, I would be grateful if the Secretary of State, in summing up the debate, could clarify how any such dispute might ultimately be determined and resolved.
With these publications, we appear to have reached something of a conclusion. It has been a thoroughly exhausting process, which has occupied talents and energies—not just in the Government and Parliament here, but across swathes of public life in Northern Ireland and beyond—that could, I believe, have been directed more productively. Much work has built up in the absence of an Assembly, but hopefully these provisions will allow for all the political mechanisms to bring the Assembly back. It is important for that to happen because a peaceful, prosperous Northern Ireland, at ease with itself, in control of its future and able to be respectful of all shades of opinion, is manifestly in the interests of all people in all these islands. To the extent that the statutory instruments pave a way towards restoring that state of affairs, we support them.
The fact is that no man can serve two masters. In respect of the wording of the statutes, let me paraphrase the words of Humpty Dumpty: words mean what we choose them to mean, and the question is who is to be master—that is all. This is the problem, this is the dilemma, this is the basis on which most of the controversies occur, and I regret to have to say that it may ultimately be decided, on some day in the future, by the prospect of a referendum. That, of course, is what Sinn Féin have been asking for. I personally believe that we should protect Northern Ireland, and I have always done everything in my power to do just that.
Having said that, I should also mention that my family have been involved in the Irish question since the 1840s in this House—for instance, John Bright and Frederick Lucas, the Member of Parliament for County Meath. I make that point to emphasise that I take this very seriously, and, indeed, I pay respect to the members of the DUP for the way in which they have fought for their interests. There are some measures in the statutory instruments that I can understand as having benefits, but ultimately the question will turn on the issue of whether, given the constitutional framework within which this is being presented, with all the assurances that we are hearing and all the hopeful aspects—which I expect to be delivered—we find that it will be decided by the test of time. We will see whether it works.
There will be continuing arguments and continuing debates, but unfortunately I have to say that, just as with section 2 of the European Communities Act 1972, there is no way in which section 8C of the 2018 Act had anything other than the same fundamental limitation as regulations under that section, in that they cannot contradict or restrict the scope of EU law. It has to be said, because it is the honest truth. However, that does not alter the fact that efforts can be made; the Stormont brake may come in and may be able to make changes—I say everything with reservation. I voted against the Windsor framework, because I foresaw that issues of this kind would arise. I pay tribute to all the people involved in trying to mitigate the ultimate impact of the Windsor framework, but the scope of EU law that still remains leaves me with serious concern. As Chairman of the European Scrutiny Committee, I end by saying that we will be monitoring this and we are concerned— I am concerned. The devolved Assembly is a democratic plus: we cannot issue orders from Westminster to Northern Ireland if the people do not want it. The bottom line is that those in the DUP have a real issue on their hands with Sinn Féin. Be that as it may, I believe they will do everything in their power to maintain their democratic rights.
“On the basis of all recent polling, the Government sees no realistic prospect of a border poll leading to a united Ireland.”
To conclude, I simply say that you can read the crystal ball, but the question is: can you always read the book?
I welcome the publication of, and the opportunity to debate, the statutory instruments. They amend key constitutional laws of the UK in a way that, in my humble opinion, strengthens Northern Ireland’s place within our United Kingdom and reaffirms our place in the UK, underpinned by the Acts of Union, and by the principle of consent that is at the heart of the Belfast agreement and the 1998 legislation. That is to say, as my hon. Friend the Member for Belfast East (Gavin Robinson) has stated, that the will of the people of Northern Ireland will ultimately determine our future. Nevertheless, it is welcome that this Parliament, which is sovereign in our United Kingdom, reasserts its sovereignty in regard to Northern Ireland and reaffirms our place within the UK.
We were disappointed when the Government abandoned the Northern Ireland Protocol Bill, because all DUP Members recognised that those proposals provided a way forward for Northern Ireland. We have sought to incorporate into these new arrangements many aspects of that Bill, but we have gone further and achieved more. We will come to this more fully on the second SI before us this afternoon, but that Bill, which was endorsed fully by my parliamentary party, proposed a green lane and a red lane as the means by which goods would move between Great Britain and Northern Ireland. What we have achieved is to remove the need for the green lane, because we have restored Northern Ireland’s place within the UK’s internal market. Under these new arrangements, goods moving from Great Britain to Northern Ireland and staying within the UK will flow through the UK internal market system. There is no need for a so-called “green lane”. There is a need for only one lane, which deals with goods that flow through our Northern Ireland ports and onwards to the EU or that are deemed at risk of entering the EU.
The red lane was endorsed and supported by my party, and every one of my MPs voted for that proposal. That was my mandate and it is what I have secured. It removes the Irish sea border within our internal market of the United Kingdom, and it means the only checks we need to carry out are those on goods moving into, or at risk of going into, the European Union. That is what we stated in our response to the Windsor framework, endorsed unanimously by all our party officers. We made clear what we wanted, and I have gone further even than that response in removing the green lane from the new arrangements.
This is progress. Does it give us everything we want? It does not. My hon. Friend the Member for North Antrim (Ian Paisley) has been assiduous in his pursuit of a solution on veterinary medicines. He has worked with the Government and campaigned alongside representatives of the Northern Ireland agrifood sector. As a result of that work, in the Command Paper we now have clarity on the position of the UK Government. In the absence of an agreement with the European Union that maintains Northern Ireland’s full access to UK veterinary medicines, the UK Government will legislate to protect our access to veterinary medicines in the United Kingdom. That is a commitment given by the Government and I commend my hon. Friend for his work. That is the business we are in—it is unfinished business. We will continue to work to ensure the Government deliver on their commitments in the Command Paper on veterinary medicines.
Today is an important moment for us as Unionists. The strengthening of our constitutional position within the United Kingdom is important because our primary focus has been on the protection of the Union. In that context, I welcome and draw attention to annex A, paragraph 47 of the Command Paper published yesterday:
“Northern Ireland’s place in the economic union remains the single most important factor in ensuring its prosperity”.
That is the economic union of the United Kingdom: we sell more goods to Great Britain than anywhere else in the world, and we want to maintain our ability to trade freely within our own country. These new arrangements guarantee our unfettered access to the internal market of the United Kingdom, not just now but in all scenarios in the future. The safeguards built into these arrangements will protect our place in the economic union of the United Kingdom.
Going forward, it is important that we have a means of scrutiny and cutting the EU pipeline, as we have through the amendment to section 7A of the European Union (Withdrawal) Act 2018. People told us, by the way, Madam Deputy Speaker, that we would not achieve legal change, and yet that amendment to section 7A cuts the EU pipeline and ends the automatic alignment of Northern Ireland with EU law. That is something this party can take great credit for, because we have achieved what none of our detractors has been capable of achieving. That offers us the opportunity to influence clearly, as we stated in our seven tests, how we might proceed.
In conclusion, on behalf of my party, I welcome this legislation. It is important constitutional legislation that safeguards our place in the United Kingdom. We will hear later about further changes to the law that will protect our place in the UK internal market. Taken together with all the proposals in the Command Paper, I believe we have a basis for moving forward.
These are very important constitutional safeguards, as we have heard, but this SI is about much more than the constitution. It unlocks something much bigger: getting back into Stormont, making Northern Ireland a success and making it work. This SI is about people, public sector pay, health, charities that are desperate to get moving again, schools, agriculture and the economic growth of Northern Ireland. I commend this SI and believe that it will get the full support of the House.
First, I thank the right hon. Member for Leeds Central (Hilary Benn) for the way that he has approached everything we have done. He asked a few questions, which I shall try to answer. He talked about these measures and how we will be protecting the European single market with this package. What these measures also do, which is unbelievably important, is protect our internal market at the same time. [Interruption.] I know that the right hon. Gentleman knows that, but I just wanted to emphasise the point, because it is important. He asked for an example—I think that it is in proposed new section 13C introduced through the regulations—of where there would be a significant adverse effect. I can refer him best to the example I gave of the Animal Welfare (Livestock Exports) Bill, where there is an obvious advantage to Northern Ireland to be different, which we took on board. He very kindly showed some ankle on Labour’s position on our future relationship with the EU. Can I beg him to continue to do that? While we all enjoy a good political debate—I will not go too far into this point, because we are in a consensual place—we would very much like to explore exactly what Labour’s position is on European Union free movement and a whole host of other things.
I also wish to make a point—I hope that I will not punch a bruise here—about the intervention of the hon. Member for North Antrim (Ian Paisley) on the right hon. Member for Leeds Central. The hon. Member for North Antrim said that tariffs between GB and Northern Ireland would be acceptable if they were the will of the Parliament. I disagree. I think a £3 tariff on Bushmills would not be that great. None the less, all of the arrangements in the framework are given full effect by the will of this Parliament, and so, by his definition, it must be completely acceptable. I thank him for his support.
Question put and agreed to.
Resolved,
That the draft Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, which were laid before this House on 31 January, be approved.
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