Rt Hon Lord Lilley

    Lord Lilley:

    My Lords, it is a great privilege to follow the noble Lord, Lord Dodds, in what has been a fascinating debate. I have agreed with a lot of what every speaker has said but not the entirety of what any speaker has said. But what has surprised me most is what I have not heard. Over recent months, I have sat through many debates in this Chamber and listened, often with sympathy, to noble Lords calling passionately for parliamentary control over the Executive, declaring that no laws should be passed without scrutiny and accountability to Parliament, deploring the use of Henry VIII powers enabling the Executive to pass primary legislation by statutory instrument, and calling for international agreements to be subject to debates and votes in this House before they are ratified.

    So I thought it quite reasonable, as did the noble Baroness, Lady Fox, to suppose that noble Lords would be up in arms about the constitutional implications of the Windsor deal, whatever their views about the substance of it and the Northern Ireland protocol. It has already been ratified by Messrs Šefčovič and Cleverly before this House has had any opportunity to debate it, and before any comprehensive text has even been published for this House to consider. Some 90% of the changes, such as they are, will be implemented without any legislation by our Parliament, since they are being implemented by EU regulations applying directly in Northern Ireland, without this Parliament having any say. This will leave 300 laws, which neither this Parliament nor Stormont will have any power to alter or remove, directly applicable in Northern Ireland. Yet we have heard scarcely a peep out of the normal defenders and great guardians of parliamentary supremacy on the Labour, Lib Dem and Cross Benches. That is extraordinary. It seems they are perfectly happy to see executive power exercised with no scrutiny or accountability to Parliament, and not answerable to the electorate in any part of this country, as long as it is exercised by the EU under the sacred Northern Ireland protocol.

    Although all the aspects inherent in the Northern Ireland protocol, with or without the Windsor Framework, are in many ways objectionable, I found the Northern Ireland protocol tolerable as a temporary measure to ensure that there would be no infrastructure and checks on the Irish border, even if the UK had left the EU without a trade and co-operation agreement. It was, and is, temporary and transitional, because it was negotiated under Article 50 and the EU has always said that that only enabled it to enter into temporary and transitional arrangements. It remains temporary and transitional because the EU has been very insistent that the Windsor Framework makes no change to the legal basis of the Northern Ireland protocol. Indeed, I understand that the changes it will make are being introduced by the EU using a procedure designed for what it calls “small and minor” amendments to existing laws. That tells us what it thinks about the substance of what has been negotiated. It is not quite as significant as some claim.

    This statutory instrument is heralded as very important. I want my noble friend to confirm, first, that the Stormont brake gives the UK no substantive power, in practice, that it did not already possess. Secondly, I want him to confirm that the powers given to Stormont are in fact being transferred from the UK to Stormont, not from the EU. Let me explain. Under the protocol, pre Windsor, the UK could entirely veto, in a qualified way, any new EU laws and regulations under Article 13(4) of the protocol. We could not use that article to veto changes to existing EU laws that it may choose to make, but we could veto them under Article 16, again in a qualified way, if they threatened serious disruption. That is all we can do now under the Windsor Framework, so there is no change in the powers we possess. This is much the same situation as will be enshrined under the new Article 13(3a) of the protocol, following the Windsor Framework. So the only significant change introduced by this statutory instrument is the transfer from Westminster to Stormont of control of the trigger to exercise the qualified veto powers we already possess in respect of both new laws and changes to existing laws. That transfer could have been made unilaterally by the UK, with or without the Windsor Framework—it is not thanks to any concession by the EU—and there is no particular reason why we should make any concessions in return to the EU for something we could do ourselves.

    One aspect of the Stormont brake and its antecedents in the original protocol is illogical to me, although, strangely, no one else seems to find it so. Remember that the sole justification for the protocol is to protect the EU single market without creating border infra- structure and checks at the border between Northern Ireland and the Republic. So surely the Stormont brake should enable Stormont, or the UK, to veto any new or amended EU law unless that would cause serious and permanent problems to the EU single market—not serious and permanent problems within Northern Ireland, which is the test applied under the Stormont brake. If there were problems on both sides, surely it should weigh the problems for the single market against those created in Northern Ireland. I merely ask the Minister: why is there this strange and illogical approach to the protocol?

    I hope that, overall, the Windsor deal will to some extent alleviate the problems caused by the Northern Ireland protocol, and that it will mean there is less of a problem now, while we have all the grace periods that we have unilaterally taken. Those grace periods will end, which could make things much worse, but I hope this will make things better. We cannot tell from the statutory instrument we will vote on today, or from the whole thing, because it has not been published yet.

    However, I am pretty sure that in the long term, the Northern Ireland protocol, with or without the Windsor Framework, will prove unsustainable. Any solution must ensure that there continues to be no infrastructure and no checks between Northern Ireland and the Republic. But it surely means that we must also ensure that there are no checks and infrastructure at the border, or non-border, between Great Britain and Northern Ireland. I can see only one way that that can be achieved while maintaining the integrity of the European single market, which is a perfectly legitimate objective of the European Union that we wish to respect. It is using the powers—which I, as Secretary of State for Trade and Industry, had under the predecessor Act to the Export Control Act 2002—to make it an offence to export to the EU anything that does not meet its standards. We can do so using the SPIRE system, which makes it user-friendly.

    Normally, export controls are not implemented by checks at the border but, when there is suspicion of wrongdoing, via inspections at the company’s headquarters, warehouse or point of dispatch. We know that this sort of thing can be done: the Republic would not need to monitor the border any more than it has needed to monitor it since it unilaterally introduced controls on imports of coal and other fuels from the EU a few months ago. When people asked, “How are you going to do that without border infrastructure and controls?”, it said, “Oh, we’ll do it by a market surveillance mechanism in the shops and outlets in the Republic”. That is how these things should be done and, in future, could be done.

    Although I will not be voting for the fatal amendment to the Motion today, I have great sympathy with the position of the DUP. If the party goes back into government and the Assembly, it will be asked to implement controls at the border between two parts of the United Kingdom—but the DUP’s whole raison d’être is to belong to the union and it would find that very difficult. I have no doubt that, if Sinn Féin were required to implement one single camera on the border between Northern Ireland and the Republic as a condition of participation in the Assembly, it would refuse to participate in the Assembly. So we should not think that the DUP is being unreasonable, any more than I would think that Sinn Féin were being unreasonable if it refused to participate on those grounds.

    We have to find a way to enable the DUP back into power sharing which does not blame the party for the problems created by the protocol—which, as I said, is almost certainly unsustainable. I hope that the Windsor Framework will make things better, not worse. It will not solve the problem in the long term; we must find a solution that means no border with the Republic and no border between two parts of the United Kingdom.