Good Friday Agreement: Impact of Brexit

Lord Carswell Excerpts

Thursday 11th October 2018 Lords Chamber

[Lord Carswell (CB)]

My Lords, I have lived all my 84 years in Northern Ireland. My home is in Belfast, but I also feel at home in Dublin, Cork or Galway. Like many other people living in Northern Ireland, I have visited, travelled and holidayed in the Republic. My brother lives in Dublin. It is not a foreign place as far as people are concerned. They are not aliens, they are not people we are glaring at through a forest of barbed wire, they do not seem different, like Othello’s people,

“men whose heads do grow beneath their shoulders”.

There is a great deal more contact and friendship between people in Northern Ireland from different backgrounds than many noble Lords may be aware of. It goes without saying that, during the Troubles, tensions were severe. Those of us who lived through it and close to it, as I did—sometimes too close for comfort—are well aware that. It was a bad time and we never want to see it again.

Things have changed since then, thank the Lord. Even during the worst times, links were kept up. My own profession maintained friendly links with southern lawyers, as it had for generations and still does. It also worked hard to prevent steps being taken that might increase sectarianism within the profession. I am glad to say that we largely succeeded in that. Both Bench and Bar are well integrated institutions, and comfortably so. What I am saying is that things are much more normal, agreeable and as they should be. Go to Belfast or any part of Northern Ireland and you will find it much more recognisable as the place that it was, that you would like it to be, and that those in other countries are familiar with.

I will not try to say that it is all Pollyanna and lovely, with people kissing and making up all the time. There are tensions, and pockets where people are at odds with each other; there are people with atavistic attitudes and, of course, dissident republicans are a constant thorn. But, on the whole, I have a clear feeling that things are improving. People want it that way. I remember being asked a number of years ago in London, “What does Northern Ireland need now?” I replied without hesitation, “Twenty years of nothing happening”. We have got quite a long way down that road, and I think it is having an effect.

How does this bring us to the agreement of 10 April 1998? Its proper legal name is the multi-party agreement; one can call it the Belfast agreement, the Good Friday agreement or what you will. But it is there, an international agreement between states; whatever happens, that matter is not subject to change.

The focus of this debate is on what the impact—to use the precise word of the noble Lord, Lord Dubs—of Brexit on the Good Friday agreement will be. Noble Lords will remember that right at the core of the agreement are two fundamental safeguards. One is that any constitutional change in Northern Ireland will take place only with the agreement and consent of the majority of people of Northern Ireland. The second, complementary, safeguard is that if such consent came about and a majority of people wished to change the constitutional position, the British Government would not block this but would facilitate it. That is very proper. Whatever might happen in the future, one would hope that principled democrats will accept whatever is agreed by a majority.

In addition, the European Convention on Human Rights is given formal protection in the agreement. Nobody has suggested that this will be altered. It is separate and distinct from the European Union and agreements of the European Union; it is not under threat. Another thing not under threat is the common travel area. One can travel quite peaceably; there has been passage of peoples since 1923 and it has been perfectly easy. Noble Lords may remember my talking of riding my bicycle to Dublin without the slightest let or hindrance. Nobody has suggested that will change. Any such talk, I am afraid, is somewhat misplaced.

Where does this take us? The answer is that a lot of concerns have been expressed, but what are they? There are some, of course. Arranging a border is obviously a matter of difficulty and I shall not attempt to minimise it. I have given my views on it before and I have every hope that it can be resolved, but it does not mean that the agreement is affected by such difficulties. However, there is one facet that might have an effect and that is if a proposal is put forward and accepted between Governments to in effect create a border down the Irish Sea. I could see room for very strenuous arguments about that and where they might lead I do not know. However, I feel that other matters are ones of perception and inchoate fears. It is the responsibility of people such as, I hope, your Lordships to attempt to put them to rest and to persuade people that they are unfounded and that the agreement is safe and sound and on a solid base for now and the future.

European Union (Withdrawal) Bill

Lord Carswell Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord King of Bridgwater (Con)]

My Lords, I congratulate my noble friend Lord Patten on a most impressive and, if I may say so, entertaining introduction to this subject. Having enjoyed listening to his speech, I think anyone who saw this amendment would say, “It’s all pretty obvious, isn’t it? There’s an overwhelming case and it must be right”. But then we had a little opening into the world of Northern Ireland in the contributions that came from one or two of those who are more closely involved directly with the Province and understand some of the background to it. The noble and right reverend Lord—a former Archbishop of Armagh and Primate of all Ireland—and the noble Lords, Lord Alderdice and Lord Trimble, have spoken and they have echoed some of my concern about this. Everybody wants to see the concept that is contained in this amendment; my concern is about putting it into legislation in this form.

The noble Lord, Lord Alderdice, raised the details, as do I. We are back in the same country that we were in during our discussion on the proposed clause on the meaningful vote. That amendment got longer and longer as dates were added into it that would complicate it. My noble friend Lord Callanan shakes a rueful head as I say that. The complications introduced seemed to me to make the position of the Government in their negotiations increasingly difficult. I echo the surprise about the activities of Monsieur Barnier, negotiating with different bodies within the United Kingdom. I do not know whether he asked permission to do that and whether it was agreed but I thought that was open to question, in the circumstances.

Looking at the situation, the amendment has all this detail set down. Is it all exactly right? Will it all be held tight or will it be subject to legal challenge thereafter? All sorts of complications arise within this. I have devoted quite a few years of my life, both in Northern Ireland and in defence, to trying to see what we now see as the much happier, and hopefully continuing, life in Northern Ireland. I have written too many letters of condolence to people—there are others here who carried similar responsibilities and know what I am talking about—about those who stood to try to ensure a happier future for people in the Province and for everybody on the island of Ireland. I am therefore determined to see that, whatever comes out of Brexit, we do not undermine the important advances that have been made. However, then I look at the details of this amendment.

I recall that the noble Lord, Lord Trimble, glossed a bit over the arrangements and problems that I had over the Anglo-Irish agreement, which was of course the start of the peace process and led on to the further discussions in which we introduced the principle of consent. There was one item that I had to stand on continually. I was challenged by unionists who said, as the noble Lord, Lord Empey, will remember well, that we had sold out to the Irish Government and no longer was Northern Ireland a part of the United Kingdom, a sovereign country. They said that we had let joint authority be introduced and that the Irish Government were able to rule part of Northern Ireland in that respect. All that time, with some personal embarrassment and threat to myself on certain occasions, I stood to make it absolutely clear that joint authority was not contained in it. We would listen with good will, attention and interest to any representations the Irish Government wished to make. They had a perfectly legitimate interest in the interests of the nationalist community of Northern Ireland but, in the final analysis, joint authority did not exist. The United Kingdom Government have the responsibility for the whole of the United Kingdom of Great Britain and Northern Ireland, and we maintained that position.

I am not a lawyer, so I tried to consult the Convenor of the Cross Benches on this. I see the last line of this amendment introducing something like a touch of joint authority. I spent a lot of my life persuading and assuring people in the Province that we would not have joint authority, but we seem to have it here. This is exactly the problem that I tried to raise on the meaningful vote issue and I raise it on this as well. Although the intention is good and the ambition absolutely right, we now start the complication of drawing up a very specific and long, detailed amendment. That is not the way to go. We make our position absolutely clear: I expect the Government to achieve those objectives, and I would look very hard indeed and wonder what my vote would be in the final analysis. There will be a final parliamentary vote at the end of these proceedings if we do not get a satisfactory outcome that we all wish to see for Northern Ireland, but this amendment is not helpful.

[Lord Carswell (CB)]

My Lords, I have lived all my life in Belfast. That is rather a long time: even longer than my old and valued, noble and right reverend friend Lord Eames has. During those years, I have been backwards and forwards across the border many, many times, without let or hindrance. That is why I want to focus—just for the purpose of my remarks this afternoon—on subsection (2)(b) of the proposed new clause. I am not going to touch on the rest of it: there are many good things in the rest of the new clause, but I will say nothing about them. However, one thing is very clear: people of good will all agree on the ideal of the smoothest possible operation of the passage of people, goods, livestock and vehicles across the border. However, that good will needs something more: it needs good sense. When that criterion is applied, I fear that it is rather more difficult to accept the portion of proposed new subsection of (2)(b) that deals with this. It would, in effect, have the consequence of fixing everything in aspic: not a stone to be moved, not a blade of grass to be bent unless the two Governments agree.

Recent history does not give us any great confidence in that. I say with regret that the approach of the EU negotiators to this issue has been rigid and intransigent to the point of being obstructive. I am equally sorry to say that the Government of the Republic have thrown themselves in line with that. That is most regrettable because their predecessors were taking a very much more constructive, co-operative and sensible line. When the present Government took over, they immediately reversed that policy to being equally difficult—if I may put it as politely as possible—as the EU.

What the amendment really appears to involve, if the Governments do not agree, is the status quo, which in effect means a full customs union: either the whole United Kingdom with the EU or Northern Ireland alone with the EU. I am afraid that I would find it equally impossible to support them. I hope that sense will prevail and that it will triumph over experience, but, as with all the old phrases about hope and experience, it is difficult to be entirely confident. If it does not, what will happen? I am talking about this imprecise and unfortunately misleading phrase of a hard border.

I ask your Lordships to look at three facts. First, it would not involve some sort of iron curtain. I lived through times, personally and professionally, with a real hard border during what we called the Troubles, with checkpoints manned by armed soldiers, border posts, watchtowers looming over the countryside—dreadful things—large numbers of roads closed off, bridges destroyed and roads cratered to stop access. There is no suggestion, and should never be, that we want to return to that or will do so. Going back before we joined the EEC as it was, I remember the border. It was an ordinary border between states. There were customs officers, you had to have a triptyque for your car and there were inspections, but they were not terrible obstructive or difficult to negotiate. With the greater volume of trade these days, we will want to do something better than that and, if possible, not return to that.

Secondly, the passage of persons has never been a problem—the common travel area sees to that. When I was a youngster in the 1940s and early 1950s, I rode my bicycle up and down to Dublin many times, and nobody looked sideways at me. In the 1970s and 1980s my dear late mother sat happily on the train travelling down to visit my brother who lives in Dublin. That is not a problem and should never be.

Thirdly, as noble Lords have mentioned, the Provisional IRA war ended 20 years ago, and it has stayed that way. Most of the perpetrators of dissident violence are dissident republicans who, in various manifestations, have been causing violence in smallish quantities compared with what it was, but it is still there. The source of discontent leading to violence in the first place was nothing to do with the border and its arrangements. It was a wholly different fons et origo. I am not going to go into it now, but it was focused on discontent which had many sources and many problems in it from other directions. I am sorry to say that those who talk up the risk of a resumption of violence are misguided. It is an emotive argument, another project fear, which was roundly described a few days ago by a highly respected, very experienced and very independent-minded commentator in the Belfast Telegraph as “quite simply scaremongering”.

We need to look realistically at what could be arranged even in the absence of agreement between Governments. Technology is advancing at a dizzying rate. The possibility of resorting to it has been dismissed airily by the EU negotiators, and I am sorry to say that the Irish Taoiseach has run along with that and dutifully repeated their sentiments by talking about magical thinking. One of the things I have seen practically no mention of during the whole of this affair is an important document which emanates from the EU itself. A report by Lars Karlsson, a senior customs officer in Sweden, was commissioned by the policy department of the EU Parliament. It goes into very great detail about possible technological devices and concludes that a border arrangement can be managed,

“that serves both sides of the border with maximum predictability, speed and security and with a minimum burden and cost for traders and travellers”.

The report says it could be done,

“using a combination of international standards, global practices and state-of-the-art technology”.

It is much too long and too complex to try to summarise now, but I commend that report to your Lordships’ attention. I am quite sure there could be an extended argument about its viability, and I would not dispute that, but it requires consideration.

I cannot say whether it received any attention during the negotiations with the EU, but it is the EU’s own document and it deserves attention. Perhaps ideally to get to the situation that the report suggests requires governmental agreement and we may be going round in a circle. Indeed, it might not produce as easy arrangements as many people would like. But it shows that it is not necessary to resort to the complete status quo and not necessary to adopt the customs union which would be, in effect, the result of this amendment. Perhaps we should all remember, in this aspect of the withdrawal as well as others, that the best is the enemy of the good. I cannot support the amendment.

European Union (Withdrawal) Bill

Lord Carswell Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Carswell (CB)]

My Lords, I had not intended to intervene in this debate, partly because I was not present at Second Reading. I apologise to your Lordships for that but there were certain problems that I had at home. But I am impelled to do so by what has been said so very eloquently by many of your Lordships today.

I have lived the whole of my life in Belfast and been through a considerable amount in that time. I have lived there even longer than my noble and right reverend friend Lord Eames, whom I have known, liked, respected and admired—no less so today—for many years of that time. I have known the noble Lord, Lord Alderdice, and I like and respect what he has had to say. I am very happy to support the principles of what they have both said. I will come back to what I mean by “the principles” in a moment.

I was very close, personally and professionally, to what we have referred to by the usual euphemism of the Troubles. It was a dreadful time and I would hate with every fibre of my being to think that we might go back to that. The fact that we have had peace—maybe not perfect, but a great deal better than what we had before—for 20 years now has been of great importance in the life of the Province. That it should continue is also of great importance, not merely because it gives a better approach to normal life in the Province but because it conditions people to feel that that is the proper way to conduct their lives, which of course it is. If the continuance of the Belfast agreement helps in that, then I am emphatically on the side of those who say that it should be taken account of.

The only caveat I have is on the wording. The Belfast principles include certain things, uncontestably, but what else? A great deal of my professional life, both at the Bar and on the Bench, was spent in interpreting statutory wording and attempting to find its proper and expressed meaning—the way in which statutes should be approached—while trying to see either loopholes or where other people would look for loopholes. That is the great problem in drafting anything, particularly something as important as this. Therefore, that is the only reason I issue a note of warning. I would be perfectly happy to see a clause of the nature proposed on the statute book. But if it is to be done, I simply warn that defining the Belfast principles, or leaving them undefined, could allow the wording to be put to purposes which we might not think of today but which some other people will think of at some time. I leave this thought with the Minister who is replying and with your Lordships.

[Lord Mackay of Clashfern]

My Lords, I have not spoken on this subject but today I am moved to do so: first, because I had the honour of serving in government with my noble friend Lord Patten of Barnes before he was a Member of this House; and, secondly, because I held the responsibility for most of the justice arrangements in Northern Ireland for about 10 years in the middle of the Troubles. Therefore, I am extremely conscious of the difficulties of Northern Ireland and of the immense privilege of it having had a great degree of peace since the Belfast agreement and since John Major initiated the first talks, which was quite difficult to do, during my term of office.

I am convinced that the only real solution for the Northern Irish and Irish border is in some form of treaty to deal with customs matters and with trade. At the moment, we have a law under the jurisdiction of the European Union for these two matters. The Government have said, and I understand this, that we are leaving both arrangements. But it is possible to make similar arrangements under a treaty: we would not be part of the EU but part of a treaty arrangement with the EU, which would reflect that. I believe something of that kind is absolutely essential. The Belfast agreement did a terrific amount for the peace of Northern Ireland and long may it continue.