Kate Hoey speech 27 Feb 2024
The first thing to say is that this Humble address, solemn as it is, doesn’t have any legal status. We are neither changing nor making legislation. It does not alter one word of the Protocol, or its effect on the Belfast Agreement and Acts of Union.
I move this amendment to insert some honesty into the Humble Address: to make clear what the legal and political reality is- and it is quite different than the motion presented by the Government which requires self-deception to the point of pretending black is white.
In my contribution I do not want to be too legalistic, however I will make reference to legal judgments and specific provisions, because it is important to have some particular material on the record as it confounds many of the claims made by the Government and the DUP leadership.
On 8 February 2023, Sir Jeffrey spoke in the other place and said (and this is a direct quote)-
“the Supreme Court has issued a judgment…the Protocol has subjugated Article 6 of the Acts of Union. It also changes a key part of the Good Friday Agreement which is the need for cross community consent on matters of import for the people of Northern Ireland…these are the things that need to be addressed in UK law to restore our place within the United Kingdom”.
This humble address pledges fidelity to the Belfast Agreement, and to the foundational importance of the Acts of Union. The two issues Sir Jeffrey, in his words- not mine or anyone elses- said had to be addressed was the disapplying of cross community consent in a manner inconsistent with the Belfast Agreement, and undoing the subjugation of the Acts of Union. That is what he said was necessary to restore NI’s place in the Union.
And yet, here we are. Cross community consent remains disapplied, Article 6 of the Acts of Union remains suspended.
But unionists are asked to support a humble address which dare not say that quiet part out loud, and instead we are urged to play along that the Belfast Agreement hasn’t been changed and the Acts of Union aren’t still vandalised.
I want to speak initially directly to the DUP leader who again last night in the other place attacked the very people he stood with over years of campaigning and protest.
The people he now says talk “nonsense”. He says who do not “know facts or history” and “haven’t read the Acts of Union”. This latest attack on other unionists, who he won’t debate in public, is based on a claim that such persons urged “restoring the Acts of Union”.
It seems he now thinks, after spending time with the NIO, that such persons are fools. Who ever would suggest such a ridiculous thing such as restoring the Acts of Union, our foundational constitutional statute?
Well, you see the problem for Sir Jeffrey is that on 21 July 2021 he said, in Parliament no less:
“what does the Prime Minister intend to do, to fully restore the Act of Union for Northern Ireland and remove the Irish Sea border”.
Sir Jeffrey also stood on platforms with those of us such as myself, Jim Allister, Ben Habib and Jamie Bryson campaigning in pursuit of that objective, and further to that Sir Jeffrey wrote a foreword to Jamie Bryson’s book on the Acts of Union commending it to fellow unionists!
Let us therefore be very clear: the only person who has u-turned is Sir Jeffrey. His outburst on the Acts of Union is about covering his own embarrassment, and as I will address later in this speech, his efforts to create a whole puff of smoke around the Acts of Union to conceal the reality that far from undoing the constitutional damage to that foundational legislation, he now accepts and implements it and thinks that by talking nonsense about tariffs in 1801 he can confuse everyone.
In this speech, when I come to the Acts of Union, I hope to clear away all that smoke and put the truth on the record.
In October 2022 the DUP leader also said “some lay great emphasis on cutting the number of checks on goods moving from GB to Northern Ireland. If that were to happen they say all our problems would be sorted…the truth of course is that the checks on the Irish Sea border are the symptom of the underlying problem, namely that NI is subject to a different set of laws imposed upon us…”
Sir Jeffrey Donaldson of October 2022 would be very surprised to meet Jeffrey Donaldson of February 2024.
Jeffrey 2022 would probably say to Jeffrey 2024: you lay great emphasis on cutting the number of checks, you think that is all our problems sorted, but that is just a symptom of the underlying problem which is that NI is, and continues to be, subject to a different set of laws imposed upon us.
I hope Sir Jeffrey reflects on his comments. There is nothing wrong with changing your mind in politics. I don’t agree with his u-turn, but I would respect it far more if it was done with intellectual honesty, rather than lashing out at those who have not changed and who have remained true to their principles.
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Of all the deceptions in the command paper, this humble address- particularly on the Acts of Union and Belfast Agreement- is perhaps the most insulting to unionists of all.
Firstly, it pledges support for the Belfast Agreement “in all its parts”, meanwhile omitting that the core cross community consent safeguard found at Strand One (5) (d) of the Belfast Agreement and given effect in section 42 of the NI Act 1998 remains disapplied for the Article 18 Protocol vote.
So, when you read the words “upholding the Belfast Agreement in all its parts”, what they really mean is the Belfast Agreement as constitutionally vandalised by the Protocol and Framework.
The previous Government claim was that the cross-community consent mechanism only applied to devolved issues. That is wrong on many levels and I just want to put on the record why.
Most fundamentally, if the cross-community consent mechanism was never applicable and we are all so misguided- then why did the Government pass regulations to disapply that which never applied anyway?
This, again, exposes the duplicity.
The cross-community mechanism applies to “a matter to be voted on by the Assembly”. There is no limitation as to only matters which are devolved or within legislative competence.
This is obvious from paragraph 107 of the Supreme Court judgment in our challenge to the Protocol.
So, the Belfast Agreement is not upheld at all, it has been made subject to the Protocol- in this instance Article 18- and gives way to it.
We have come full circle: we were told the Protocol was about “protecting the Belfast Agreement, in all its parts”, now we celebrate an altered Belfast Agreement, with safeguards disapplied to the detriment of unionists, in order to protect the Protocol.
It is shameful, insulting and gaslighting unionists. That the DUP leader or Deputy leader in the other place did not utter one word highlighting this most obvious deficiency is a matter of the most profound concern.
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I turn now to the next bold claim in this humble address as to the “foundational importance” of the Acts of Union. The command paper, and DUP leadership’s endorsement of it and their own tall tales, is an exercise in deception on the Acts of Union. There is no other word which will do.
They have said lots, much of it inaccurate, about the Acts of Union, but then tried to convince unionists that black is white.
That we must believe the Supreme Court didn’t say what it said. We must close our eyes and pretend the Acts of Union are not subjugated and in suspension and must self-delude ourselves that we were all just confused, that there is in fact no conflict between the Protocol Framework and the Acts of Union, and if there is then we should in fact embrace it, because- and this is the most bizarre of all- if we don’t there might be tariffs on Bushmills Whiskey.
And let me say this, I do not like the word “subjugation”, but it isnt my word! It is the word used first not by any unionist or loyalist, but by this Government. In their written and oral submissions in the Court of Appeal, it was this Government which said the Acts of Union were subjugated. This argument was accepted and repeated in the judgment of the Court of Appeal, upheld by the Supreme Court.
So when I refer in this speech to the subjugation of the Acts of Union and some of our opponents become terribly annoyed.
I am using the Government’s words, or at least their words prior to them trying to perform a u-turn similar to turning the Titanic in the bathtub.
We are now to believe that the interpretation the courts, and all of unionism, applied to Article 6 of the Acts of Union was wrong, and instead embrace the new inventful interpretation which really amounts to nothing more than meekly accepting the fundamental change to our constitutional status, whilst pretending to be doing otherwise!
Do they honestly think we are fools?
Sir Jeffrey Donaldson now puts his case- and of course this is much different than what he said from platforms prior to partnering with the NIO to sell his ‘deal’- on the basis that we can’t restore the Acts of Union, because that would mean putting them back to 1801, and there would be tariffs on- for example- Bushmills Whiskey.
This is both designed to symbolically sound good, but in substance it means ‘the Acts of Union changed before from 1801, so there is no issue’.
The first thing to say is that if you make that case, then the basis upon which you make it is that you must be willing to embrace the change to the Acts of Union made by the Protocol. Why else would previous changes add anything to your argument?
So, when Jeffrey talks about 1801, he is deflecting from the central point. The constitutional damage we have all campaigned about was inflicted by the Protocol, that is the cause of the suspension of Article 6 of the Acts of Union, and the fundamental issue is whether that has been undone.
Let me put it simply for Sir Jeffrey, and perhaps he will respond to this question, is what he said, quoting the court, the “subjugation of Article 6 of the Acts of Union” which he said must be addressed to restore NI’s place in the Union, actually addressed?
If the answer is no, and it obviously is, then how can he claim- using his own test as a measuring stick, his deal restores NI’s place in the Union?
Sir Jeffrey hasn’t answered that. Amidst all the spin, here is another simple question: as a matter of legal reality, the Acts of Union remain subjugated and in suspension (the court’s words, not mine) – are the DUP now willing to accept that as a legitimate change to the Acts of Union?
Of course, we all knew what we meant by restoring the Acts of Union. It meant undoing the damage inflicted by the Protocol. A rather modest objective.
This has been turned around into a bizarre argument designed to confuse everyone about tariffs on Whiskey.
This is the reality: In 1801, there were no more tariffs or duties to be added to an agreed list specified, unless they were equalised. This is known as “countervailing duties”.
In simple terms, Schedule 1 to Article 6 of the Acts of Union exhaustively specified certain items that would continue to be subject to tariffs and duties. The first thing to say is this was an agreement between what was then Ireland and Great Britain, it wasn’t imposed or agreed with a foreign power.
But more fundamentally, it was designed to be transitional and, as such via the Statute Law Revision Act 1879, Schedule 1 was repealed. There have been no tariffs since!
Contrary to the attempts to confuse and mislead people, doing exactly what Sir Jeffrey called for- “repairing the damage done to Article 6 by the Protocol” would not, as if by magic, spring back to life Schedule 1 listing tariffs abolished in 1879!
It is really rather silly and beneath such an experienced and eminent political leader to spout such utter nonsense designed to create confusion because he has nothing he can say on the substance of the point around the Acts of Union.
The Acts of Union, prior to the Protocol, remained in force. In the words of Lord Justice McCloskey the intent of Article from 1801 was “unmistakable”. And yet now to listen to the DUP and NIO, we are all supposed to believe everyone had just fallen into one big misinterpretation, including our courts!
The notion that if the subjugation of the Acts of Union was lifted, the damage of the Protocol undone, then somehow Schedule 1 which was repealed in 1879 would spring back to life and there would be tariffs on Bushmills whiskey its complete and utter nonsense.
Let me also address the claim in the command paper that the Supreme Court didn’t address inconsistency between the Acts of Union and the Protocol. Yes, it did. It expressly proceeded on the basis there was an inconsistency as held by the High Court and Court of Appeal before it, the highest courts in NI.
This is set out at paragraph 54 and 64 of the Supreme Court judgment. It confounds emphatically the claims of the Government. The most remarkable thing is the Government accepted there was such an inconsistency, and did not cross appeal to the Supreme Court. Now, they tell us different!
The inconsistency was held by the courts to be (1) the continued application of EU law; (2) the ongoing fetters on trade; and (3) NI being privileged access to the EU single market, the price of which was our exclusion from being a full part of the UK internal market.
Let me address, definitively, issues raised repeatedly by the Noble Lord Bew.
He regularly says the Acts of Union have been changed before- that is true. But, as with Sir Jeffrey’s new position, the basis of Lord Bew’s argument must be that because they were changed before, the present change should not offend unionists- indeed he urges us to embrace it!
So if you want to deploy that argument, be honest about what it means: it means accepting the constitutional damage to the Acts of Union inflicted by the Protocol. It means accepting that change, on the basis the Acts of Union have changed before. That is what Lord Bew and others are really saying, so lets be honest about that.
Lord Bew also repeatedly, trying to assist Sir Jeffrey one imagines, says EU law was never a DUP test. This has, in recent months, started to be repeated by the DUP leadership, indeed it was set out last week in the Newsletter expressly by an MLA called David Brooks.
That is odd, because Sir Jeffrey said in October 2022 that the core issue was EU law. He said it again in February 2023 in an interview with Tracey Magee of UTV.
The very first of the DUP’s tests directed itself to the Acts of Union. You cannot restore the Acts of Union without removing EU law, because it is EU law which is the most fundamental breach of the Acts of Union.
A mention of restoring the Acts of Union, cannot be anything other than a commitment to end EU law- otherwise achieving such restoration would be impossible.
All of the things I have set out, lifted direct from the court judgment, are inconsistent with the Acts of Union. If Sir Jeffrey and his team are willing to forsake the fundamental principles, as determined not by me, but by the courts, of the Acts of Union in favour of the arrangements giving effect to the Protocol, then he should be clear about it and bear the political cost.
But what is happening here is something different, it is an effort- aided by the NIO- to evade the political costs for accepting the recasting of Article 6 of the Acts of Union, by pretending that is not what is happening at all.
I want it on the Parliamentary record that I have not engaged in this con-trick, for that is what it is. And that is why I have spoken the words I have today, and why I have tabled the amendment I have.
In the weeks and months ahead the glitter will fall from all of this. The unionist people will see, with their own eyes, the con-trick which has been pulled, and then- no matter how hard those who have participated in this may wish it not to be so- there will be a political cost to pay.
They were all warned, and they all know what they do.
All which I have said in this contribution is supported by independently published legal advice by NI’s former Attorney General John Larkin KC which was commissioned by myself, Jim Allister, Ben Habib and Jamie Bryson.
The DUP leadership have not been able to produce much less publish one single piece of legal advice to support the increasingly bold claims they have made. Why not?
The Acts of Union remain suspended.
The cross community consent mechanism central to the Belfast Agreement remains disapplied.
The Irish Sea border remains.
The green lane, for which you are required to provide information for customs purposes to obtain ‘authorisation’ to trade a little more freely in your own country, remains.
The red lane, which operates on the basis of an ‘at risk’ category over which the EU have a veto, and which catches a significant amount of material and goods which go nowhere near the EU, remains.
EU law continues. It is law, we did not make and cannot change.
The Protocol in all its core aspects remains in full force and continues to reign supreme.
The only thing which has changed is that the DUP leadership now accept all these facts, and have returned to Stormont to implement them.
That action- not by our opponents but by our friends- is the saddest thing of all.
My Lords…if we are going to address his Majesty the King, then let us tell him the truth!