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The House of Lords will debate the following question for short debate, tabled by Lord Lexden (Conservative):

To ask Her Majesty’s Government what steps they have taken to strengthen the Union between Great Britain and Northern Ireland.

This briefing focuses on recent statements by the UK government on Northern Ireland and recent debates in the House of Lords.

1.   Intergovernmental relations and the Union

The UK Government has said it is “steadfastly committed” to Northern Ireland’s integral place in the Union, based on the principle of consent. It has said it will strengthen the Union:

[…] by making Northern Ireland a better place to live and work for all parts of the community, and by building a stronger, more shared and inclusive society.

The Government has said this would be achieved as part of its ‘levelling up’ agenda, arguing that Northern Ireland would receive an average of £15 billion funding per year in the current spending review period.

The UK Government has also announced measures intended to improve intergovernmental relations between the UK and the devolved governments, including the Northern Ireland Executive. In March 2021, Lord Dunlop (Conservative), the chair of the independent review of intergovernmental relations published a series of recommendations for improving the way in which the machinery of UK government functions in relation to the devolved administrations. This included the establishment of a new secretary of state position to represent the union and a new cabinet sub-committee to support the secretary of state in preparing cross-government strategies to enhance the union. The report also recommended reforms to the civil service to encourage greater collaboration across different departments and the establishment of a new fund by HM Treasury to support UK wide projects.

Following the publication of these recommendations, Michael Gove, the then Chancellor of the Duchy of Lancaster, said the Government would establish a new Union Strategy Committee, chaired by the Prime Minister in his capacity as ‘Minister for the Union’, and a new policy implementation sub-committee. He also said the Government would make changes to the civil service, including giving greater weight to devolution issues in civil service training programmes. A more detailed summary of the Dunlop Review’s recommendations and the Government’s response is provided in the House of Lords Library briefing, ‘Devolution and government relations’ (23 June 2021).

On 13 January 2022, Michael Gove, now Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations, published the conclusion of a review of intergovernmental relations undertaken jointly by the UK government and the devolved administrations. Mr Gove said that, in response to this review, the four governments would introduce “new structures for more regular, formal intergovernmental engagement”. He also said the four governments would seek to work together in a more collaborative and transparent way. In March 2022, the UK Government published its first intergovernmental annual report detailing meetings held between the UK Government and the devolved governments. Further information on the Government’s review of intergovernmental relations is provided in the House of Commons Library briefing ‘Intergovernmental relations in the United Kingdom’ (21 January 2021).

However, there are a number of issues relating to the particular circumstances of Northern Ireland that are putting the relationship under strain.

2.   Northern Ireland Protocol and the Northern Ireland Executive

On 3 February 2022, the Democratic Unionist Party (DUP) First Minister of Northern Ireland, Paul Givan, announced his resignation. Under the Northern Ireland Act 1998, the Deputy First Minister, Michelle O’Neill of Sinn Féin, also ceased to hold her office.

Mr Givan cited in his resignation letter the Northern Ireland Protocol as the cause of his decision to stand down. Under the terms of the protocol agreed between the EU and the UK, Northern Ireland is both part of the UK’s customs territory and subject to the EU’s customs code, VAT rules and single market rules for goods. The Northern Ireland Protocol has been criticised by Unionist parties which have argued it creates a regulatory border between Great Britain and Northern Ireland. It has also been criticised by both unionists and nationalists on the grounds that aspects of EU law will apply to Northern Ireland without its prior consent. In his resignation letter, Mr Givan said the protocol had had a negative impact on “the delicate balance created by the Belfast and St Andrew’s Agreements”.

On 2 February 2022, the day prior to the resignation of Mr Givan, Edwin Poots of the DUP, Minister for Agriculture, Environment and Rural Affairs, announced he had ordered his officials to stop sanitary and phytosanitary (SPS) checks on goods arriving in Northern Ireland from Great Britain. These checks are required under the agreement between the UK Government and the EU. On 4 February 2022, a High Court judge made an interim order that these SPS checks should continue pending the outcome of judicial review proceedings. A full hearing of the judicial review claim had been scheduled to take place on 7 March 2022. However, this hearing was subsequently put back to May 2022.

In separate legal proceedings, a group of unionist politicians applied for a judicial review of the protocol and its position in domestic law, arguing that it was in conflict with the Northern Ireland Act 1998 and the Acts of Union. This application was dismissed first by the High Court and an appeal against this judgment was rejected by the Court of Appeal. The Court of Appeal found that the constitutional status of Northern Ireland within the UK had not changed and cannot change other than by virtue of the mechanism provided by section 1(1) of the Northern Ireland Act 1998 by way of democratic consent.

The applicants have said they will take the case to the Supreme Court.

The office of first minister and deputy first minister remain vacant. Elections to the Northern Ireland Assembly are scheduled to take place on 5 May 2022. However, the leader of the DUP, Sir Jeffrey Donaldson, has said that it would be “difficult” for his party to re-enter the Executive after an election unless issues arising from the protocol were resolved.

Further information is available in the House of Lords Library briefing ‘Impact of the Protocol on Ireland/Northern Ireland on recent political developments in Northern Ireland’ (28 February 2022). Further information about the implementation of the protocol and reactions to it in Northern Ireland is available in the House of Commons Library briefing ‘Northern Ireland Protocol: Implementation, grace periods and EU-UK discussions (2021–22)’ (11 March 2022).

2.1 UK Government response

Brandon Lewis, Secretary of State for Northern Ireland, described Mr Givan’s decision to resign as “extremely disappointing”. He said the UK Government wished to see the return of a fully functioning Executive as soon as possible. However, he also said the UK Government believed that the protocol was causing “a serious unbalancing of the delicate and hard-won political stability in Northern Ireland”. He said the Government was committed to “fixing the problems with the protocol and to protecting the Belfast (Good Friday) Agreement in all its dimensions”.

In July 2021, prior to Mr Givan’s resignation, the UK Government had set out its concerns about the impact of the protocol in its command paper, ‘Northern Ireland Protocol: The Way Forward’. In this command paper, the Government said the protocol had had a destabilising effect on political and community stability in Northern Ireland. Specifically, it cited “the absence of buy-in to the existing arrangements from the unionist community”. The UK Government also said the protocol has resulted in “significant disruption” to trade flows between Great Britain and Northern Ireland.

Under article 16 of the protocol, either the UK or the EU may impose “appropriate safeguard measures” unilaterally if the application of the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. The Government argued in ‘Northern Ireland Protocol: The Way Forward’ that the disruption to trade between Great Britain and Northern Ireland, alongside other societal and economic impacts, were sufficient to justify the UK exercising its rights under article 16. The Government said it would not exercise these rights at that time, but this option remained “on the table”. More recently, during an oral evidence session with the House of Commons Northern Ireland Affairs Committee on 28 March 2022, Brandon Lewis described the protocol as “not sustainable” in its current format.

The implementation of the protocol is subject to on-going negotiation between the UK and the EU. The EU stated in its response to ‘Northern Ireland Protocol: The Way Forward’ that it would seek to develop “flexible, practical solutions” to overcome those difficulties that citizens in Northern Ireland were experiencing. However, the EU said that it would not agree to a renegotiation of the protocol itself.

Peter Kyle, the Shadow Secretary of State for Northern Ireland, has criticised the Government’s handling of the protocol, accusing it of playing “fast and loose with the Good Friday Agreement and all of the measures which have delivered peace, stability and economic growth in Northern Ireland”. He has also criticised Mr Lewis, accusing him of not effectively engaging with all of the communities in Northern Ireland.

2.2 House of Lords debate on Northern Ireland Protocol

The House of Lords debated the impact of the protocol on political developments in Northern Ireland on 3 March 2022. The debate was tabled by Lord Jay of Ewelme (Crossbench), the chair of the House of Lords sub-committee on the Northern Ireland Protocol. Lord Jay said his sub-committee had tried to avoid reaching a view on the merits of the protocol. Instead, it had focused on the effects of the protocol to date and what the effects might be once the protocol had been implemented in full. He said his sub-committee believed it was an “inescapable conclusion” that the protocol was already having an effect. He cited as an example the impact on trade flows, saying trade between Northern Ireland and Ireland had increased. He said views differed on the consequences of this impact:

To some, [increased trade flow] is a sign of the advantages of the protocol and a welcome consequence of Northern Ireland remaining in the United Kingdom’s single market at the same time as remaining a member of the European Union’s single market. To others, it is a matter of serious concern, adversely affecting businesses in Northern Ireland and Great Britain, for whom the extra bureaucratic burden of the protocol is just too great and leading to a diversion of trade that may justify the invocation of article 16.

Speaking for the first time in the Chamber following his resignation as the minister with responsibility for the protocol, Lord Frost (Conservative) described the current political situation in Northern Ireland as “very troubling”. He argued the Government should seek to renegotiate the protocol. He also said that, if the EU were unwilling to enter a renegotiation of the protocol, the UK should introduce safeguarding provisions under article 16.

Baroness Ritchie of Downpatrick (Labour), a member of the sub-committee on the protocol, described the protocol and the political instability in Northern Ireland as “intertwined”. She argued the UK Government should seek to negotiate a resolution of the issues arising from the implementation of the protocol with the EU and the Irish Government. She also said the UK Government should enter a separate negotiation with the Irish Government as co-guarantors of the Good Friday Agreement to address the political instability in Northern Ireland. She warned this was necessary as the reestablishment of the Northern Ireland Executive may be delayed following the May 2022 elections.

Baroness Hoey (Non-Affiliated) warned the House of what she described as the “increasing instability and anger in the pro-union communities” in Northern Ireland. She argued this instability was the direct result of the protocol. She contended the Union between Great Britain and Northern Ireland was being eroded, arguing the protocol undermined the Act of Union. Lord Dodds of Duncairn (DUP) also argued the political situation in Northern Ireland would continue to deteriorate unless the issues arising from the protocol were addressed. He also recommended the Government should take unilateral action using powers under article 16 of the protocol.

Lord Caine, Parliamentary Under-secretary of State at the Northern Ireland Office, restated the Government’s commitment to political stability in Northern Ireland. He said the Government continued to call for the immediate return of a fully functioning Executive. On the protocol, Lord Caine said:

[…] the blunt truth is that a protocol that was intended to preserve and protect the 1998 agreement in all its parts has now become an instrument for undermining it. Clearly, it does not work for all communities and for business in Northern Ireland, and is having a destabilising effect on politics. That cannot be an acceptable state of affairs.

He told the House that the Government’s “strong preference” was to resolve its differences with the EU on the protocol through agreement. However, he said the Government reserved the right to take unilateral actions under article 16.

3.   Abortion services in Northern Ireland

Issues concerning the relationship of the UK Government and the devolved institutions in Northern Ireland have been raised in connection with the provision of abortion services. Under Section 9 of the Northern Ireland (Executive Formation etc) Act 2019, the UK government is required to establish a legal framework ensuring the provision of abortion services in Northern Ireland. On 24 March 2022, Brandon Lewis published a statement saying that the UK government was preparing to introduce possible new regulations following the Northern Ireland Assembly elections in May 2022. Mr Lewis said these new regulations would become necessary if the Northern Ireland Department of Health had not made sufficient progress towards ensuring abortion services were commissioned in full. Further information is provided in the House of Commons Library briefing ‘Abortion in Northern Ireland: recent changes to the legal framework’ (15 March 2022).

On 31 March 2022, Lord Moylan (Conservative) asked the Government an oral question concerning Mr Lewis’s 24 March 2022 statement. He asked what assessment the Government had made of the impact of this decision on the future of the Northern Ireland Assembly. He suggested in his supplementary question that the Government’s statement undermined the power of the Northern Ireland Assembly to establish health policy in Northern Ireland. Responding to the question, Lord Caine said the Government remained committed “head, heart and soul” to maintaining devolved institutions. However, he said the Government was under a legal requirement regarding the commission of abortion services under the 2019 Act.

During the same oral question, Baroness O’Loan (Crossbench) argued that, if the Government introduced these new regulations, it would be doing so against the will of people in Northern Ireland. She asked the Government what arrangements it might be making to ensure the views of people in Northern Ireland were taken into account in this decision in the absence of the functioning Northern Ireland Executive. Lord Caine said the Government would like to see an Executive up and running as quickly as possible after the May 2022 election. However, he said the Secretary of State remained bound by the decision of the UK Parliament when it passed the 2019 Act.

4.   Other UK Government policies

In 2020, the UK and Irish Governments published the text of an agreement entitled, ‘New Decade, New Approach’. This agreement included a recommitment by both parties to the principles of power-sharing and cross community protection contained in the Good Friday Agreement. ‘New Decade, New Approach’ also included a series of commitments by the UK Government regarding investment in Northern Ireland and legislative reform.

The agreement included a commitment to introduce legislation on the implementation of the framework in the Stormont House Agreement for dealing with the legacy of the Troubles in Northern Ireland. In July 2021, the UK Government published a new set of proposals which included the establishment of an independent information recovery body concerning Troubles-related deaths and injuries, the establishment of an oral history of the Troubles and the introduction of a statute of limitations which would apply to all parties linked to Troubles-related incidents. These proposals were criticised by political parties in Northern Ireland and the Irish Government. On 20 July 2021, the Northern Ireland Assembly was recalled to discuss these proposals. The Assembly passed a motion criticising the proposal to introduce a statute of limitations. Further information is provided in the House of Commons Library briefing, ‘Investigation of Former Armed Forces Personnel Who Served in Northern Ireland’ (27 July 2021).

The agreement also included proposals for cultural and language reforms in Northern Ireland. For example, it proposed the establishment of an Office of Identity and Cultural Expression. These proposals have yet to be introduced in full. However, the UK Government stated in January 2022 that it remained committed to delivering the full package of identity and language measures set out in the agreement. On 28 March 2022, Mr Lewis told the House of Commons Northern Ireland Affairs Committee that the Government did not plan to publish any proposals during the build up to the Northern Ireland Assembly elections.

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Cover image from Wikimedia.