Northern Ireland Protocol Bill

Debate between Lord Campbell of Pittenweem and Lord Pannick

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I thought my days of trying to beat the gun had left me behind a long time ago. I apologise.

I wish to speak in support of Amendment 3 and am glad to see that the noble Lord, Lord Ahmad, is back in his place. I have a recollection, and no doubt he will correct me if I am wrong, that on one previous occasion when this issue was raised, he expressed some sympathy for the idea that the legal advice should be made available. We have heard already in these proceedings that there is not a lawyer in the House who does not think that the Government are acting illegally and that, I suppose, is a pretty unusual state of affairs.

We have also seen that the Delegated Powers and Regulatory Reform Committee observed at paragraph 4 of its report:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations.”


Given that the chorus of legal responses in the House is against the Government, perhaps the most notable being that of the noble Lord, Lord Howard of Lympne, and given the extreme criticism of the Government contained in paragraph 4, I respectfully suggest that the convention that legal advice is not made public should be set aside on this occasion. It is a convention; it is not a rule of law. If I may put it so, this is a case of such novelty and importance that it justifies the setting aside of the convention.

I also understood my noble friend Lady Ludford to be raising some questions about the issue of necessity. The Advocate-General will recall that in the course of his long response at Second Reading, he referred to the case of Slovakia against Hungary. I took the opportunity to read that case, and what we discover is that it is not in point at all. It was a case where both states were in breach of legal obligations and the international court called on them both to carry out their relevant treaty obligations. That is nothing to do with the issues which we have before us. But the noble and learned Lord was not satisfied with Slovakia; he went to Canada in 1995. He prayed in aid decisions taken then by the Canadian Government in relation to the Grand Banks and their overfishing, but there was no question of a treaty on that occasion.

If these two cases are offered as support for the notion that this case is one where necessity is justified, I would respectfully suggest that they do not support that thesis. The Government will have to do something rather more if they are to establish any question that necessity arises in this matter.

[Lord Pannick (CB)]

My Lords, I very much agree with what the noble Lord, Lord Campbell, said about this being a context where it would be enormously helpful to this House, and to Parliament generally, for the Government to publish legal advice so that we can understand why they assert, contrary to the views of most—if not all—lawyers, that what they propose to do is not a breach of international law. I anticipate, however, that the Advocate-General for Scotland will tell us that there is a convention that the Government are not prepared to publish legal advice. If that is his position, it would be enormously helpful to the House if he could at least address the substance of the criticisms that have been made of the Government’s position in international law. The noble and learned Lord told us at Second Reading that that was not the time or the place for him to address these arguments. I very much hope that today is the time and that he will tell the House, if he is not prepared to publish the legal advice, at least the substance of the Government’s argument.

First, why do they say that the test of necessity is satisfied, even though the protocol contains a mechanism for addressing disputes and even though, as the noble Lord, Lord Ahmad, told us a few moments ago, the Government are reserving the right to use Article 16? How can it be necessary to set aside the protocol when the Government themselves reserve the right to use a provision in the protocol which is designed to address the very problems that they are concerned about?

Secondly—I dealt with these points at Second Reading, but we had no answer—how can there be an “imminent peril”, when this dispute has been going on for three years, since the protocol was agreed? Why is it imminent, which is the requirement in international law?

Thirdly, since they have not told us this, what is the Government’s case as to how the doctrine of necessity can be satisfied when the International Law Commission, the academic analysis and the case law all say, “You cannot rely on the doctrine of necessity when you, the state relying on it, have contributed to the problems which you are complaining about”? How can it not be the case that the Government have at least contributed to the perceived problem when they signed the protocol after negotiations? If we are not to have the legal advice, can we please have at least some indication or hint as to what the Government’s case is?

While we are dealing with that, could we also please be told whether the Government’s legal advice associates itself with the argument of the noble Lord, Lord Bew? They have never said this, but is their argument that the Good Friday agreement establishes the test of necessity? I would like to know, please, the answers to those basic questions so that when we proceed with Committee we are at least informed as to what the Government’s position actually is.