Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend Lady Suttie in her amendments. Notwithstanding the appeal from the noble Lord, Lord Cormack, these Benches do not need to be persuaded of his arguments. We are nevertheless tasked with scrutinising and testing this legislation, and I support my noble friend’s amendments.

I want to ask the Minister just two simple questions relating to the Sewel convention, which is now recognised as a constitutional principle. Michael Ellis, speaking on behalf of the Government in Committee in the Commons, was asked about legislative consent of this Bill. He said:

“As the hon. Member for North Down will be aware, the Sewel convention applies to this Bill, as it does to all Bills of this Parliament that intersect with devolved competence. I confirm that in the absence of functioning institutions, senior officials in the Foreign Office have already made contact with the head of the Northern Ireland civil service regarding legislative consent … The Government will consult stakeholders in Northern Ireland, including Members of the Assembly, on the operation of the Bill during its passage and thereafter”.—[Official Report, Commons, 13/7/22; cols. 385-86.]


What did the officials ask of the civil servants with regard to legislative consent in the absence of there being an Assembly? This is not a practice that has ever been seen anywhere else for the operation of the Sewel Motion. Which Members of the Assembly have been consulted during the passage of this Bill, and on what? Have they been asked, with regard to the dual regulatory regime that the Bill proposes, and what have their responses been so far?

[Lord Bew (CB)]

My Lords, I rise to put a technical point. I am not sure of the answer—it is a genuine question—but it bears on the amendment. Trade is a reserved matter in Northern Ireland. When there was first sight of Theresa May’s protocol, there was great rage in Northern Ireland. People in Northern Ireland were told, “Sorry, this is a reserved matter.” Subsequently—it was the second iteration—it was very much the view of the noble Lord, Lord Frost, that that was not itself a satisfactory answer, and there is provision in the protocol negotiated by the Johnson Government. The one significant change is to make, in very specific circumstances, a role for the consent of the Northern Ireland Assembly. That is probably the major difference between the two protocols. However, if it is a reserved matter—if that was the answer that I remember being given throughout 2017 and 2018 in this House—I cannot quite see the purchase of these amendments.

If it is a reserved matter, it is a reserved matter. It is for this Parliament to deal with these trade matters. The burden of the Bill is in dealing with Articles 5 and 10 of the protocol—not those on human rights and so on—in a way which, I accept, many Members of this House do not like. None the less, it does not seem appropriate to be raising these issues now about that role for the Northern Ireland Assembly, because trade is a reserved matter held by this House.

The history of this is perfectly clear: the Government of Ireland Act 1920 has language on trade, as do the prior Acts of Union 1800. Then there were modifications to the Government of Ireland Act—benign modernisations, I would say—under the Good Friday agreement and the legislation that went through this House, which left us with trade as a reserved matter. It seems to me that this should be taken into account. There may be some possible answer to it, and the noble Lord, Lord Frost, has negotiated a possible way that one might work around it, but trade is a reserved matter at this point. We are not concerned with the human rights provisions of the protocol and so on; they are not the issue in the Bill. It is directed mainly against Articles 5 and 10, rightly or wrongly—wrongly, I am sure many colleagues on my own Benches think—but trade being a reserved matter is a problem for amendments of this sort.

[Lord Kerr of Kinlochard (CB)]

I agree that external trade is a reserved matter, but here we are talking about trade inside the United Kingdom—as well as trade inside the single market of the European Union, of course. I do not think it follows at all that one can say there is no role for the Assembly because external trade is a reserved matter.

I would love to support the amendment in the names of the two noble Baronesses. I agree with the spirit of it. It is extraordinary how, throughout this saga, things have been done to Northern Ireland without Northern Ireland being fully consulted or even informed. It is extraordinary, when you think about it, that the protocol was concluded without the involvement—I want to embarrass him now—of the noble Lord, Lord Caine, who knows far more about these issues than most of us do and has a judgment that we would all respect. That should have been brought to bear.

I hesitate to criticise the noble Lord, Lord Frost, who is busy with his emails, but, if he would like to listen, I will criticise him. It would have been good if he had found the ability to spend more time in Northern Ireland while he was negotiating. It would have been great if his master, the then Prime Minister, had been able to spend some time trying to understand the issues and seeing people on the ground, but it is an astonishing fact that Michel Barnier had more direct personal experience of Northern Ireland than the noble Lord, Lord Frost, had. That was because Barnier had spent time there doing jobs for previous presidents of the Commission.

I feel that the syndrome of imposing things on Northern Ireland, perhaps under cover of talk about reserved matters, which I disagree with, has been damaging to the United Kingdom and, of course, to Northern Ireland. I would love to support these amendments, and of course I would do so. But it would not make an illegal act less illegal if the Northern Ireland Assembly voted for it, so what are we talking about here?

I caused the Minister to look askance when I said that we are talking about a pig of a Bill. The Minister thought that was an indelicate reference. However, what we are doing here is trying to put lipstick on the pig. It will still be a pig even if this amendment is approved. If it were put to a vote, of course I would vote for it, but my general feeling is that we know what we have to do with this Bill. The noble Lord, Lord Cormack, has correctly pointed out that what we are engaged in now is a waste of time because I am confident that at the end of the day, we will do what we have to do to this Bill. I hope the end of the day comes soon.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, when the noble Lord, Lord Purvis, set out this group of amendments, he rightly said that Clause 4 is at the heart of the Bill, and the debate has really encapsulated that point.

I have a number of questions for the Minister. We will have several debates about the scope of the delegated powers proposed, but as this is the first group dealing with the reports by the DPRRC, it is worth recalling just how unprecedented these were. The DPRRC has chosen on a number of occasions to publish a report while a Bill is still in the Commons—there is nothing unusual in that—but rarely has it been so scathing, labelling the Bill

“unprecedented in its cavalier treatment of Parliament, the EU and the Government’s own international obligations”,

as the noble Lord, Lord Pannick, has said.

The committee was unable to propose tweaks to various powers in the Bill, including those in Clause 4. Instead, it recommended gutting several key clauses. As mentioned in the debate, the Government opted not to respond to the DPRRC before we moved into Committee, even though they had from July to do so. It is hard to see how the two sides can meet in the middle, so, if we proceed to Report, it is quite possible that this House will have to strip out several clauses.

The noble Earl, Lord Kinnoull, made interesting points when he talked about the previous level of scrutiny of EU law, in which this House played a very prominent part. I am sure many Members of this House served on those committees. The EU Committee scrutinised legislation, as did this House and a whole series of committees, and the House of Commons, of course. That was a far higher level of scrutiny than anything being proposed at the moment.

The noble Lord, Lord Lilley, asked an interesting question—and he was fair in saying it was a genuine question—about the alternatives to this multitude of Henry VIII powers. I will be interested to hear the Minister’s response. It seems to me that the alternative is to go through things in detail, as the old EU committee structure in this House used to do routinely. I will be interested to hear the answer to the noble Lord’s question.

We are sympathetic to this group of amendments. I do not know what the noble Lord, Lord Purvis, is going to do but we are happy to support him.

[Lord Bew (CB)]

My Lords, I am well aware of the sensitivity in this House regarding Henry VIII powers, and I respect that; it is a serious argument. However, Northern Ireland looks at these things from an angle that is not entirely the way the House of Lords looks at them. For one thing, there are what you might call Louis XIV powers all over the place in terms of European law and regulations, but there is silence about that.

The second issue, which has already been alluded to by the noble Lord, Lord Dodds, is that again and again, we have had the most dramatic demonstrations of Henry VIII powers in areas where I and other Members, a majority in your Lordships’ House, are in agreement—abortion laws and so on. We do it all the time. When we as a local assembly like it, when it is our kind of opinion, we have no problems. When we do not like what is proposed, we discover that this application of Henry VIII powers is intrinsically terrible. To be blunt, the House needs to avoid looking totally hypocritical on this point.

I feel that I have been living for a very long time with Article 16 and the potential illegality or otherwise of the Government’s legislation. When I first encountered it, in fact, it was Article 15 in Theresa May’s Bill; it was that long ago. I read and reread it until I was blue in the face. Let me say what the problem is in attempting to challenge the Government’s position. The best argument against the current position in the legislation is that Article 16 could be and should have been applied. At the moment, it is ridiculous. We are in the middle of a serious negotiation with the EU and it would break that up, so it is fatuous and politically absurd. Apart from the principle of reality, I can see why people want to argue that, but it is not going to happen now because the Government want this legislation with the EU to succeed. In the Financial Times as recently as September, the EU was defining the application of Article 16 as an outrage and so on. The situation would simply be aggravated.

The other weak point of this argument is that saying, “We want Article 16 but nothing else” is the sound of one hand clapping. None of those who have argued for it in this House since Second Reading has shown any grasp of the central difficulty of the relationship between the two treaties and their interaction. If you are going to argue, as distinguished international lawyers have done before both our Select Committees, that the Government have a case of sorts but Article 16 should be applied first, that is based on the idea that there is an interaction between the two treaties and this is the best way of acting to defend the Good Friday agreement. That is a perfectly respectable intellectual legal argument, but it just does not fit with the political moment we find ourselves in, with ongoing negotiations.

The sensitivity that people in this Chamber have about the attitudes and feelings of the EU is quite remarkable when they do not seem to feel it themselves; they feel that they are quite adult enough to get on with this negotiation anyway, regardless of the Bill. As I pointed out, the Irish Foreign Secretary said openly that they do not like the Bill but that is not a reason for not having the negotiations. Still, it is wonderful to see people stick up for other people’s rights and interests when they themselves do not seem quite so keen or worked up about the subject.

The main point is that just saying “Article 16” is simply one hand clapping. The only possible viable argument is to say—as indeed both the House of Commons and our own Select Committee have been told—that that is indeed the way you could use it to get a result. The best criticism of the Government is that you cannot really prove necessity unless you have gone down this route. It so happens that the Government are stuck in a moment of real politics, the real negotiation that is going on, so they cannot do it, but the majority of speakers in this House say, “I would like Article 16”. That is an amazing recent conversion to Article 16. A few months ago, most of us hated it and regarded even talking about it as a piece of British brutishness. Now we really love it because we prefer it to the Bill. Unless you add to that that you accept that there is a real problem with the interaction between this agreement and the Good Friday agreement, as the former Lord Chancellor said in the House of Commons, then, in the Chinese phrase, it is just one hand clapping.

[Lord Kerr of Kinlochard (CB)]

My Lords, the noble Lord, Lord Bew, raises a fascinating conundrum, but what he said about Article 16 was based on a misunderstanding of what the noble Lord, Lord Campbell, said earlier. I do not think I have met anybody in this House who believes that the right course of action, in abstract, is to use Article 16. The right course of action is to apply the treaty that we signed: that is what a lot of us believe. Clearly, there are others who take a different view. The point that the noble Lord, Lord Campbell, was making—which is clearly correct, and has been made several times by the noble Lord, Lord Pannick—was that there is Article 16. It exists. It is the designated route—the agreed route, the treaty route—to deal with a dispute about the implementation of the protocol. I am not saying that we should be using Article 16. I am saying that we should not be using another means and pretending that it is legal so to do while Article 16 exists. That seems to be the rub of it.

I will try to deal in an amateur way with the interesting questions from the noble Lord, Lord Lilley. I do not know the answer either, but one answer would be the Irish answer: “I wouldn’t be starting from here.” I am sure that the noble Lord agrees with me that if you read Clause 18(1) or Clause 22(1) and (2) of the Bill, the only question in your mind is: is this Lewis Carroll or is it Stalin? These are astonishing powers taken for the Minister, by regulation, to do whatever he likes, providing it is broadly to do with Northern Ireland. As the noble Lord, Lord Pannick, said, the reports that we have seen from three committees—but particularly the Delegated Powers Committee—are devastating. I cannot remember seeing in this House such strong language used in a unanimously agreed cross-party report.

The noble Lord, Lord Lilley, would agree with me that we do not want to be in this situation. There must be another solution. As a former negotiator, I would say that it is crucial to avoid putting the ball in your own net. Frankly, attempting this legislation while also attempting—or claiming to be attempting—to conduct negotiations, is absurd. Here I part company with my friend the noble Lord, Lord Frost, whose third argument today was exploded by the noble Lord, Lord Purvis. He said that it is necessary for negotiating reasons to advance this protocol; this is what will make the other side sit up and pay attention. You cannot argue both necessity and that. In my view, you would be mad to argue that, because on the other side of the table it is not a playground spat. On the other side of the table is a grown-up group of 27 countries that believe in the rule of law and are concerned that bad precedents should not be set. They cannot possibly concede that, because there is a blunderbuss on the table, they must give you what you are asking for in negotiations. They are not going to do that. Therefore, my answer to the conundrum of the noble Lord, Lord Lilley, is that it is a great mistake to legislate in these terms while you are negotiating. If Ministers are telling the truth about their wish to negotiate a solution to this, the last thing they should be doing is putting forward this Bill.

--- Later in debate ---

[Lord Campbell of Pittenweem (LD)]

My Lords, I will not rehearse what I said previously about Article 16, but I will see if I can answer the question posed by the noble Lord, Lord Lilley. If you are faced with two instruments that appear to be in conflict—which I think is what we are arguing—the first thing you do is have a detailed analysis of these instruments to see whether there is a provision in them that will enable you to reconcile the difference. The advantage of Article 16 has just been set out by the noble Lord, Lord Kerr. You are adhering to the treaty by using a term within the treaty that helps you avoid being in conflict with the other treaty. That is a possible way of doing it.

[Lord Bew (CB)]

If I may intervene briefly, I have tried to explain that I had an intense relationship with Article 16 when it was deeply unfashionable in this House. Many times in the last year, I have wanted to argue privately with the Government that it should be applied. The arguments made for it are impeccable and have been for years; that is simply the case. The problem is that this is not conceivably a rational moment. There are complaints about the Bill. Does it matter what the Irish Foreign Minister says? It is said that it does not matter; we are choosing to disregard it. This is a moment when we are negotiating seriously with the EU. Suddenly to come in and say, “By the way”—and the logic is, in general terms, superb—“we are applying Article 16 now”, is bound to be destructive of the negotiations that are proceeding. We must respect the reality of the moment.

[Lord Campbell of Pittenweem (LD)]

But if the consequence of doing so is to embrace a Bill which drives a horse and cart through the procedures and principles by which this Parliament operates, surely that is an inhibition and we should avoid it at all costs.