Protecting the Acts of Union | Baroness Hoey

The Northern Ireland Protocol Bill is key to delivering Brexit for the whole of the United Kingdom of Great Britain and Northern Ireland. The reality is that most of them who are opposing the Protocol Bill didn't want us to leave the European Union, and blame the Protocol on Brexit rather than the fact it was negotiated by our own Government. Of course, our own Government has now accepted that it isn't working but a delay isn't going to change the situation.

I spoke against Baroness Chapman’s amendment (Clause 22) in the House of Lords during the debate on the Protocol Bill, Baroness Chapman’s amendment removes the ability for regulations under the Bill to make changes that could normally only be made by an Act of Parliament (including modifying this Bill). I, therefore, proposed an amendment to insert “, but may not amend, repeal, or create an incompatibility with, the Act of Union (Ireland) 1800 or the Union with Ireland Act 1800.”

My amendment prevents a Minister of the Crown from making provision by regulation which has the effect of repealing, subordinating or otherwise interfering with the United Kingdom’s foundational constitutional statutory framework.

“I make a constitutional plea to the Government on behalf of British citizens in Northern Ireland.

This amendment is very simple. It seeks to remedy an important gap at the heart of the Bill. I believe the Bill is good. It creates the framework for a fair and balanced solution and, if the powers it confers are used appropriately, will restore Northern Ireland’s place within the union. Clause 1(c) is clear that one of the Bill’s primary purposes is to remedy the present subjugation of the Union with Ireland Act 1800 and the Act of Union (Ireland) 1800, which together are known as the Acts of Union.

The Prime Minister before the previous Prime Minister, speaking in the House of Commons, claimed that the withdrawal Act was not intended to affect the Acts of Union, yet a few months later senior counsel, on behalf of the then Government, went to court in our case in Belfast and argued precisely the opposite. As the late Lord Trimble simply put it: “The Act of Union is the union.”

That is undeniably true. In Halsbury’s Laws, the Acts of Union are described as

“the statutory warrant for the continued incorporation of Northern Ireland with the United Kingdom”.

The High Court and Court of Appeal in Northern Ireland have been clear—we should not really need a court to tell us this—that the Acts of Union remain in force and together have the status of constitutional statutes.

There has been some commentary suggesting that the Acts of Union were somehow repealed or overridden by the Government of Ireland Act 1920 or later statutory provisions, but that is simply not so. The 1920 Act simply made provision for separate devolved arrangements in two parts of Ireland, each of which remained fully part of the United Kingdom and subject to the United Kingdom Parliament. There was and is nothing in the Acts of Union to prevent the creation of subordinate legislatures, provided that the King in Parliament remains sovereign.

Section 1(2) of the Irish Free State (Agreement) Act 1922 provided that the southern parliament be dissolved, and the Irish Free State (Consequential Provisions) Act 1922 provided that the 1920 Act no longer had an effect beyond Northern Ireland. This has the effect of a non-textual amendment to Section 75 of the 1920 Act, maintaining the untrammelled authority of Parliament over Northern Ireland. In consequence, southern Ireland no longer remained within the UK but Northern Ireland did and therefore remained firmly under the constitutional protections of the Acts of Union. These legislative events in 1922 at most altered the territorial extent of the Acts of Union but did not alter the fundamental constitutional foundation of the union itself.

Here is the simple question I pose to noble Lords. Article 3 of the Acts of Union creates our Parliament, and Article 6 prescribes the economic constitutional framework—essentially, the UK internal market. Could a majority in Parliament constitutionally abolish Parliament, and thus our democratic constitutional system itself, and in its place usher in new authoritarian arrangements? If noble Lords think not, because Parliament is a constitutional fundamental, then that constitutional fundamental is derived from Article 3 of the Acts of Union. If Article 3 of the Acts of Union is a constitutional essential, as a matter of simple logic there is no reason to give some lesser status to why should one receive greater constitutional deference or protection than the other.

In our largely unwritten constitution, something may be unconstitutional—that is, offensive to or subversive of our constitutional order—without being necessarily unlawful. Our constitution, however, is entrusted primarily to us and our colleagues in another place. We are here as guardians of the constitutional arrangements of the United Kingdom as much as we must be guardians of the rule of law. But if a law, even one made by Parliament, is unconstitutional, it is our duty to stand against that in the discharge of our functions in this House. In my view and that of many others, Section 7A of the European Union (Withdrawal) Act 2018, which brings the into domestic law, is unconstitutional, given that its effect is the subjugation of the Acts of Union and thus the fundamental constitutional basis of the union itself.

While this Bill may well conflict with international obligations under the —although I think that Article 16 of itself makes any such claim doubtful—any such obligations must yield for two reasons. The first is the doctrine of necessity, which has been set out by the Government and dealt with expertly by many Members of this House, including the noble Lord, Lord Bew. I need not repeat those contributions but, in so far as I have heard them relate to international law, I support them.

The second, which I think needs to be gone into a little more fully, is that the subjugates the fundamental constitutional foundation of the United Kingdom. The Government have an overriding constitutional obligation to remedy that and, if that requires acting against a previous treaty, so be it. The Bill as it stands would remedy the present breach of the Acts of Union if Clause 4 were brought into force via commencement order. However, there still seems to be a hole. Although the Bill, in line with its intent in Clause 1, would remedy the present breach of the Acts of Union by removing the most offensive elements of Article 5 from having an effect in domestic law, it does not prevent a Minister of a Crown from using the Henry VIII powers that we have heard so much about to replace the current arrangements with new arrangements that would again breach the Acts of Union. The superficially attractive answer to that point is to say that Parliament could legislate again to subjugate the Acts of Union if it so wished. As a matter of parliamentary sovereignty, it could - notwithstanding the validity of my point about how it is constitutionally improper.

The distinction here is that Parliament, with all the checks and balances, could do it or try to do it. As it stands, Clause 22 permits—or, to put it another way, does not prevent—a Minister of the Crown by regulation to alter the foundational constitutional arrangements of the United Kingdom. If it were to stand, it would mean that a Minister of the Crown, in exercising powers as specified in Clause 22, could again subjugate the Acts of Union and thus act in a manner contrary to what is, superficially at least, a fundamental aim of the Bill, which is to restore the Acts of Union.

It is notable that Clause 22 prevents a Minister of the Crown from doing anything by regulation that would create a north/south border. This inherent imbalance, which my amendment seeks to remedy, once again eliminates the entirely one-sided nature of the so-called “peace process” in Northern Ireland. A Minister of the Crown, as we heard from the noble Lord, Lord Dodds of Duncairn, earlier, is prohibited in the exercise of these powers from doing anything to facilitate or create a land border where it should be, but there is no such constraint on creating a border in our own country and subjugating the Acts of Union. That simply is an absurdity. I know that the Minister could not really give a reason why this had not gone in but I trust—being very naïve, perhaps—that it was simply an oversight on the part of the drafters.

There is no reason why the Government could not adopt this amendment. In answer to a question posed in the House of Commons by Sir Jeffrey Donaldson MP, the then Secretary of State—the previous Secretary of State, not the current Secretary of State; it gets a bit confusing—gave an assurance that the exercise of powers under the Bill would have to be in a manner compatible with the Acts of Union. He made that assurance in the House. If that assurance, given to Parliament, is to be worthwhile, why would the Government not give effect to it by way of a straightforward clause in this Bill?

I, therefore, ask again for clarity from the Government. I know the Minister may well need to go back and discuss whether they will perhaps be able to adopt this amendment, so I do not expect an answer right now, but I do pose a question—and, if possible, I would like a response in the wind-up—about the commitment made by Brandon Lewis MP. Is the Minister willing to reaffirm to this House that any new arrangements to be made by regulation will have to be compatible with the Acts of Union?

This is fundamental. If the Government cannot do so, they will be saying to pro-union people, who the Conservative Government continue to urge to trust them, that the promises made to them about the restoration of the Acts of Union are in fact hollow and that once again they may well be being tricked. There seems to be little point in remedying the Acts of Union breach via the commencement of the relevant provision in this Bill and then replacing that which has been removed with another breach of the Acts of Union. It brings us back to the same place because no self-respecting unionist will support arrangements which occasion a breach of the Acts of Union.

The fundamental issue for unionists—the clue is in the name—is that the Acts of Union must be restored, and the Acts of Union require equal footing in matters of trade. Let us be clear: the restoration means an end to EU law applying in Northern Ireland. If it continues to apply in Northern Ireland but not in the rest of the United Kingdom then the Acts of Union are breached. A breach of the Acts of Union is also a breach of the principle of consent because it fundamentally alters the constitutional position of Northern Ireland within the union.

That brings me to another pertinent point. Last week, after a lot of procrastination, the Northern Ireland Office ruled out lawmaking powers over Northern Ireland for Dublin. It did so correctly, on the basis that this would breach the principle of consent. Can the Government, therefore, explain how they reconcile the plainly correct position that lawmaking powers being handed to Dublin would breach the principle of consent with their continued entirely illogical claim that handing lawmaking and judicial powers to Brussels does not? What, tell me, is the difference between Brussels exercising lawmaking powers over Northern Ireland and Dublin doing the same? In truth, I do not think that there is any coherent answer to that.

This amendment would offer protection to the fundamental constitutional basis of the United Kingdom. We do not want any more trickery, clever footwork or compromising that ends up with Northern Ireland’s constitutional position not absolutely restored - not just in the present but protected in the future - to be an integral part of the United Kingdom. Amending Clause 22 would provide some measure of constitutional safeguard, which I am afraid is necessary. A little under two months ago, the Government again went before the court in Northern Ireland and argued that the territorial extent of the United Kingdom should be interpreted as meaning only Great Britain, with Northern Ireland instead treated as part of the EU’s territory. That was the Government’s case. Noble Lords can see why so many pro-union citizens in Northern Ireland have voted in huge numbers to give the DUP the mandate to take nothing on trust. I am really sad to say that this Government are increasingly losing the trust of those who cherish the union.

Over the years, unionists and loyalists in Northern Ireland have been betrayed by Conservative and Labour Governments, again and again. They had courage in times of war, fighting for the UK, and through 40 years of terrible terrorism, and their loyalty has been rewarded by being treated like second-class citizens, with constant appeasement to the Irish Government and those who are dedicated to destroying the union and the very birthright of unionists to live as equal citizens under the protection of His Majesty’s Government. They were betrayed during the home rule crisis, betrayed after the First World War and betrayed in 1985, and, sadly, many in Northern Ireland now feel that, even in the 1998 agreement, the unionist community was deceived. That is partly why many of us are determined to get rid of those injustices and ensure that what was promised by the sovereign Government of this country to its British citizens in Northern Ireland is upheld.

Of course, the final betrayal was the Northern Ireland Protocol. It was said that no British Prime Minister could allow a border in the Irish Sea—and yet we saw what happened. When such a border was put there, subjugating Northern Ireland and its citizens, it was a historic wrong. There is no justifying or explaining it. It plunged a knife into the back of British citizens in Northern Ireland, the part of the United Kingdom which I call my home. The historical record will show those who stood up for our country, the United Kingdom, and those who stood with the EU and a foreign Irish Government.

The question I pose to the Conservative—I think it is still called the Conservative and Unionist—Government is this: when future British generations look back when many of us in this House are long gone, how will they judge each of us? Have we done the right thing? Have we at all costs defended the union and all that it stands for because that is what the Government should be doing? Unfortunately, they have not done right by the unionist people of Northern Ireland all the time. We, as the representatives speaking for those very many pro-union people in Northern Ireland, will not be second-class citizens in our own country.

I am sad to say that there will be no power-sharing in Northern Ireland unless the rights of unionists are respected the same as those of nationalists. There will be either no power-sharing or those rights will be respected. The first step is to restore Northern Ireland to its integral place within the United Kingdom. That requires the restoration of the Acts of Union. There is no compromise on that fundamental issue. I genuinely cannot understand how anyone in this United Kingdom House of Lords cannot see that this amendment should be supported. The Minister may not be able to give an immediate answer when he is responding but I hope he will take this back and look at it, and that we will be able to move on this on Report.