Safety of Rwanda (Asylum and Immigration) Bill

Lord Dodds of Duncairn Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

Moved by

[Lord Dodds of Duncairn]

44ZA: Clause 8, page 6, line 24, at end insert—
“(1A) The provisions of this Act have effect in Northern Ireland, notwithstanding section 7A of the European Union (Withdrawal) Act 2018 (General implementation of remainder of withdrawal agreement).”

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[Lord Dodds of Duncairn (DUP)]

My Lords, this amendment seeks to put beyond doubt what the Government claim to be the case—so they should have no difficulty accepting it or bringing forward an amendment of their own with the same purpose and effect.

The Government assert that Article 2 of the Northern Ireland protocol or Windsor Framework is not engaged in regard to immigration and therefore can have no application to the Bill before us. Their argument, however, has been blown out of the water on a number of occasions recently in the High Court of Northern Ireland. There should be little surprise at that, given the supremacy of Article 2 of the Windsor Framework and EU law over any domestic British law by virtue of Section 7A of the European Union (Withdrawal) Act 2018. A number of court cases in recent weeks have confirmed that in the High Court in Belfast.

First, in the application for judicial review in the Angesom case on 18 October, Mr Justice Colton ruled that Article 2 of the Windsor Framework is applicable and relevant to immigration cases, and that EU law and the EU Charter of Fundamental Rights continue to apply.

Secondly, in the case of application JR 295 for leave for judicial review concerning the Illegal Migration Act, Mr Justice Humphreys stated in his judgment of 12 February, in paragraph 43:

“It is clearly arguable that this applicant enjoys the protection of Article 2(1) of the Windsor Framework and can seek to rely on the rights enshrined in the various EU Directives, Regulations and the Charter in order to challenge the provisions of the IMA”.


He went on to say that this was entirely consistent with the granting of leave to the Northern Ireland Human Rights Commission, which is bringing a parallel challenge.

Thirdly and most recently, on 28 February 2024, the High Court in Belfast ruled that the immunity provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are incompatible with European Convention on Human Rights and Article 2 of the Windsor Framework once again. The significance of that of course is that it was not just a ruling of incompatibility under the European Convention on Human Rights, but it was ruled that a number of the provisions, all relating to immunity under that Act, were disapplied. Mr Justice Colton stated that Section 41 of that legacy Act was “incompatible with” Article 2 of the Ireland-Northern Ireland Protocol/Windsor Framework. So, pursuant to Section 7A of the EU withdrawal Act 2018, Article 2 has primacy over Section 41, thereby rendering it to have no force and effect—so Section 41 should be disapplied.

These very recent rulings of the High Court in Belfast have far-reaching consequences for the Bill before the House, and more generally. The ruling in relation to Article 2 of the Windsor Framework is highly significant because of the reasons I set out regarding disapplication, not just incompatibility. I put down this amendment to explore, first, how the rulings of the High Court fit with the Government’s assertions. Secondly, how do they sit with paragraph 46 of Command Paper 1021 Safeguarding the Union? That paper says:

“The important starting point is that the Windsor Framework applies only in respect of the trade in goods—the vast majority of public policy is entirely untouched by it. This includes important areas like immigration”.


This is clearly at variance with what three High Court judgments have now ruled. Some of us were pointing this out when the Command Paper was published, and indeed, long before that. If European law is enshrined and given primacy in Northern Ireland as a result of Section 7A of the European Union (Withdrawal) Act 2018, this is the inevitable outcome. It is very clear in law that that is the case.

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[Lord Stewart of Dirleton (Con)]

I shall make sure that the noble Lord’s point is given consideration before Third Reading.

For the reasons that I have sought to set out, I would encourage the noble Lord, Lord Dodds, to withdraw his amendment at this stage.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to the Minister for his response to the debate and to everyone who has taken part. My purpose in bringing this amendment is, again, to shed light on the reality of where Northern Ireland in particular stands. I hear what he said about the appeal and what he said about meeting us before Third Reading; I would like to explore these matters in greater detail. We have heard the reassertion of the original assertion, which might have been understandable before the first case, or maybe even after the first case, but after three court cases it is beginning to wear a little thin. However, I look forward to meeting him and discussing it further. With that in mind, I beg leave to withdraw the amendment standing in my name.

Amendment 44ZA withdrawn.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, Amendment 80, in my name and that of my noble friend Lord Morrow, relates to the application of the Bill across all parts of the United Kingdom. I want to explore with the Government—I would be interested in hearing their response—whether, despite Clause 8(1) stating that the Bill

“extends to England and Wales, Scotland and Northern Ireland”,

that is in fact the case, given the effects of Section 7A of the European Union (Withdrawal) Act 2018. That is of course the conduit by which EU law flows into Northern Ireland under the Northern Ireland protocol, also known as the Windsor Framework.

Whatever one’s view of the merits of the Bill, it appears to apply across the UK with equal effect. That is according to the Bill and of course it should be the case: immigration law has always applied with equal effect right across the United Kingdom; otherwise, the danger is that one part of the country will be operating different rules, with all the attendant consequential problems that would arise. So what is the position and what effect would the Bill have on Northern Ireland?

As we know, under Article 2 of the Northern Ireland protocol, which remains fully in place today despite the recent Command Paper which the Government have published, there is no diminution of rights for Northern Ireland compared with what previously existed under the Belfast agreement. The Government argue that the issues of immigration are not captured under that provision, and that therefore the Bill can proceed and Article 2 does not have any effect. However, in my view there is no doubt that Section 7A of the European Union (Withdrawal) Act 2018 allows for the continuing application to Northern Ireland, uniquely within the United Kingdom, of the Charter of Fundamental Rights and EU general principles.

I refer the Committee and the Minister to the recent High Court case in Belfast and its judgment in the Aman Angesom case, on 18 October 2023. This was a case of judicial review and at paragraph 94 of that judgment it was stated:

“The combined effect of section 7A of the European Union (Withdrawal) Act 2018 … and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit”


from the European Union. It continued:

“Thus, the Charter of Fundamental Rights remains enforceable in Northern Ireland and falls within the ambit of Article 2(1) of the protocol”.


Within the Charter of Fundamental Rights of the European Union is Article 18, which has rights of asylum. Is it not the case that despite the Bill stating in Clause 8(1) that it extends to Northern Ireland, because we do not have a notwithstanding clause in relation to Section 7A of the 2018 Act, Northern Ireland is in fact not now in the same position—or would not be in the same position—as the rest of the United Kingdom, were this Bill to proceed unamended? If that is so, the Government need to be totally transparent and open about it. We have had examples recently of legislation coming to this House, including a recent debate on a matter to do with trade, in which amendments were tabled to illustrate the fact that despite that legislation being silent on the matter, major provisions of that Bill could not apply to Northern Ireland because of the effects of the protocol/Windsor Framework.

Northern Ireland Protocol Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Pannick (CB)]

I bow to the noble Lord, who has immeasurably more knowledge and experience of Northern Ireland than I could possibly have, but of course I have read the Northern Ireland agreement and understand that there are two documents in international law. The simple point is that, in the protocol, we agreed the means by which we take the view that the Good Friday agreement should be implemented in the context of the United Kingdom leaving the EU. That is what we agreed; we cannot now say that we are going to resile from it unilaterally. It is as simple as that.

[Lord Dodds of Duncairn (DUP)]

My Lords, I had not intended to take part in this debate because I had not realised that it would range so far and wide and across so many general issues. We had a lengthy debate at Second Reading in which a number of these topics were discussed; nevertheless, I think it is worth addressing some of the points that have been made and putting some of the issues on record as far as we are concerned.

I begin by joining noble Lords and noble Baronesses in their tributes to the late Baroness May Blood, who passed away recently. She lived and was brought up in the same part of Northern Ireland that I had the honour of representing in another place for almost 20 years, so I knew her very well indeed. I pay tribute to her great resilience, hard work, dedication and tenacity in her pursuit of the issues in which she believed strongly, as well as her dedication to young people in the Shankill and integrated education, as has been mentioned.

It is not incompatible to support this Bill and seek a negotiated outcome. On the negotiated outcome, although there is not a great history of flourishing talks with the EU and the United Kingdom on the protocol issues thus far, we hope that any negotiations lead to an outcome that is compatible with the aims and objectives contained in this Bill. This is not a matter of just tinkering around the edges and finding practical solutions, as has been said; some of the issues are fundamentally contained in the protocol. You cannot address the democratic deficit issue satisfactorily unless you address some of the content of the protocol.

No matter how much consultation, prior notice, discussion or involvement you agree to give Northern Ireland politicians in relation to EU laws covering 300 areas such as the economy—as well as further issues such as state aid, VAT and so on—the fundamental fact is that no elected representative of Northern Ireland either here at Westminster or in the Northern Ireland Assembly has any vote or decision-making capacity on vast swathes of laws that apply in Northern Ireland. How will that be addressed? This Bill goes some way to addressing that, but nothing I have heard being suggested by the proponents of delay, who are against the Bill, has offered any solution to that point. The noble Lord, Lord Hain, acknowledged the problem.

Our Sub-Committee on the Protocol, of which I have the honour of being a member, has looked at this issue in considerable detail; I recommend that noble Lords and noble Baronesses read the report that we commissioned on the scrutiny of legislation now applicable to Northern Ireland. They will see the extent to which Northern Ireland has been removed from the normal processes of democratic lawmaking, which people in this House have spoken about with great eloquence but which does not apply anymore to United Kingdom citizens in the 21st century. That is entirely unacceptable and is contrary to all the traditions of democracy that this mother of Parliaments has sought to uphold both here and abroad.

It has been asked what the problem is with delay. The noble Lord, Lord Bew, has dealt with one issue—

[Lord Clarke of Nottingham (Con)]

My Lords—

[Lord Dodds of Duncairn (DUP)]

The noble Lord, Lord Clarke, has already spoken. I want to get on and not delay the House any longer, but I will give way once.

[Lord Clarke of Nottingham (Con)]

I am extremely grateful to the noble Lord. I have every respect for him; we have been together in Parliament for years. I want to understand clearly what he is saying. Is he saying that the Democratic Unionists will not withdraw their objections to the whole protocol unless Northern Ireland is allowed to leave the single market with the rest of the United Kingdom as the United Kingdom is otherwise developing? That would mean us telling the European Union that the single market has got to have a great hole in it, with no border controls at all so far as the Republic of Ireland and Ulster are concerned—because that is the Anglo-Irish agreement—no customs barriers in the Irish Sea and no application of single market law in Northern Ireland. Is that the proposition on which the DUP is saying that it is going to stop returning to a power-sharing agreement in Northern Ireland?

[Lord Dodds of Duncairn (DUP)]

I am grateful for the opportunity that the noble Lord gives me to clarify that point. If he looks in detail at the Bill, he will see that it does provide the opportunity for regulations to come forward. The Government have announced that they will produce regulations which allow for checks on goods destined for the European Union, and for the Irish Republic exclusively.

I agree with what the noble Baroness, Lady Chapman, said in her amendment about the publication of regulations. It is important that the regulations provided for in the clauses in the Bill are published, and as quickly as possible, so that we can all see exactly what is proposed to replace the current, unacceptable arrangement. However, my understanding is that those regulations have talked about a red and a green channel, and that checks will be applied only to goods coming into the Irish Republic, so there will not be that gap or hole that the noble Lord, Lord Clarke, talked about.

It is also clear from the Bill that access to the single market would be retained, but that it would be the choice of businesses in Northern Ireland whether they want to be subject to EU or UK regulation, therefore sorting out to a large extent the democratic deficit point, while providing a way forward economically which is in everybody’s interests. When we come to sorting out the problems of the protocol, we have been told that no impact assessment has been carried out and that we need one for the Bill. There was no impact assessment carried out when the protocol itself was introduced, of course, concerning the negative impact that it has had on business.

I have a letter here from hauliers in Northern Ireland, who have written to a number of noble Lords saying that it is their contention that the economic costs of the protocol far outweigh the economic benefits. They say that if the protocol was implemented in full, it would crash Northern Ireland’s chilled and frozen food supply chains within 48 hours, and that it is reasonable to anticipate that this would cause a socioeconomic crisis. They talk about the need for the Bill. These are businesspeople. These are people who carry goods into Northern Ireland from Britain, into the Irish Republic, and from the Irish Republic and Northern Ireland into Great Britain. They know what they are talking about, so we should not generalise here. We must take the evidence of the damage that has been done economically and constitutionally.

On international law, I bow to the superior knowledge of many very distinguished lawyers and practitioners in this House, but the noble Lord, Lord Bew, is right when he argues about the prior position of the Belfast agreement and that the protocol references the Belfast agreement in its wording—as amended by the St Andrews agreement, of course—and that cannot be ignored. We are told that upholding and keeping our word is vital to our international standing. However, I have in front of me the joint report, from the negotiators of the European Union and the United Kingdom Government, of 8 December 2017, when Theresa May was trying to make progress in her negotiations with the European Union. That agreement was hammered out over a number of days. If we are talking about people maintaining and upholding their word, I point out that it contains the following, in Article 50:

“In the absence of agreed solutions… the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom”,


which they now have,

“unless, consistent with the 1998 Agreement”—

so the EU and the UK Government recognise that it is inconsistent with the Belfast agreement to have such regulatory difference—

“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.”

The Northern Ireland Executive and Assembly have never agreed to that. They were never even asked. This was the promise made to people in Northern Ireland by the EU and the UK. After that was agreed, the UK Government, never mind the EU, paid scant attention to that article when seeking the agreement of people in Northern Ireland to any regulatory divergence. If we are talking about upholding our word, people in Northern Ireland are entitled to ask, “What happened to that agreement? What happened to that commitment? Why was the protocol imposed without any say or consent by people in Northern Ireland?”

We talk about the blunderbuss—the threat that has been put on the table. I remind noble Lords that the EU has now launched infringement proceedings against the United Kingdom for its having unilaterally extended grace periods and other matters—without which, as the hauliers say in their letter, the supply chain to Northern Ireland would crash and burn within 48 hours. This is essential for the free flow of goods to Northern Ireland, yet the EU has put on the table legal action against the UK Government, and that is not mentioned.

I will close; I am conscious of time, but it has been a wide-ranging debate thus far. The Bill is necessary because the protocol, as it stands, is incompatible with the Belfast/Good Friday agreement. At the heart of that agreement, as amended by the St Andrews agreement, is the principle of consent. It is not only the DUP that opposes the current arrangement. Every single unionist elected to the Northern Ireland Assembly, as late as five or six months ago, opposes the protocol. The foundation of power-sharing in Northern Ireland is not majority rule any more; we have not had majority rule for 50 years in Northern Ireland. It is the mutual agreement of unionists and nationalists, and not a single unionist of the Ulster Unionist Party, the Democratic Unionist Party, the Traditional Unionist Voice, or independents, of which there are a number, supports the current arrangements.

The protocol is incompatible not only with the Belfast agreement but with Northern Ireland’s constitutional position. I am conscious of the point made by the noble Lord, Lord Bew, that it was not necessary to deal with that in this legislation, but the courts have ruled that Article 6 of the Act of Union has been subjugated by the protocol and that Great Britain is now a third country as regards “imports” from Great Britain into Northern Ireland.

As I have said, the protocol is incompatible with the upholding of proper British and UK democratic standards, for the reasons that I have already outlined, and it is damaging our prosperity. You cannot have VAT exemptions or derogations, which the UK Government have recently announced on energy products, applied to Northern Ireland, because we are subject to EU VAT rules. That cannot be right. It is also contrary to the New Decade, New Approach document, which was agreed by all the parties, the Dublin Government and the UK Government in January 2020. It says on page 47, annexe A:

“The Government is absolutely committed to ensuring that Northern Ireland remains an integral part of the UK internal market”,


As has been set out in the reasons given for the introduction of the Bill, this is to address the fact that Northern Ireland is no longer an integral part of the UK single market. That is indisputable.

To those who say it is unbelievable that a Conservative Government would be doing this and bringing forward this legislation, I say it is unbelievable that a Conservative and Unionist Party ever brought forward the protocol in the first place. That is the really telling point. We did not support it. What we are asking for is our democratic rights to be restored.

The Conservative Party can be criticised for many things, and we have criticised it very often. We have had our battles over the years. But if there is now an attempt to put right something that is fundamentally wrong, antidemocratic and runs counter to the Belfast agreement, runs counter to the agreement the basis of which was for the restoration of Stormont and the Assembly, that should be applauded. I hope negotiations can succeed, but they will have to deliver what is in the protocol, otherwise we will not get to a point where we will have stable government restored in Northern Ireland. That is a fundamental fact. Sinn Féin kept Stormont down for 1,044 days over the Irish language issue that the noble Lord, Lord Bew, referred to.

We do not want instability to continue for one day longer. In July 2021, the Government published a Command Paper saying that the conditions had been met then for the instigation of Article 16. As has been said, Article 16 is now very much flavour of the month, but at the time it was denounced by all the parties in Northern Ireland and most people here as being an outrageous infringement of democratic norms and a breach of good faith and of international law. All sorts of things were said about it. So there is urgency, and that is why I urge noble Lords to proceed with the Bill and move ahead. If negotiations do not end in a satisfactory outcome, we will have to return to this legislation, and it is better to proceed with it now than to have to start further down the road at a point when it would become absolutely essential.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, first I thank all noble Lords who have taken part in this debate. As I was rising, I looked at the clock and never in the Ahmad history in the House of Lords has something so innocuous as saying “I beg to move that the House do now resolve itself into a Committee on the Bill,” resulted in such an intense debate. I shall remember for next time.

Secondly, my noble friend Lord Clarke mentioned that he looks towards the House of Lords and, as he comes here more often, I assure him, not that I agree with the substance of what he has said, but that his contributions and those of all noble Lords enrich the debate. One of the key components of the House of Lords is asking the Government to think again. I am sure I speak for my colleagues on the Front Bench as well in saying that we have certainly been in thinking mode.

There is a third element before I get into the detail. I was taken by the various descriptions of the Bill. The noble Lord, Lord Kerr, referred to it as a “pig”. As a Minister who also is a practising Muslim, I thought for a moment that the stewardship and handling of the Bill would cause me a cultural challenge. But I soldier on with loyalty to King, country and Government.

In all honesty, this debate has been an important one. I think we are all agreed that it has again brought forward views on the importance of Northern Ireland as an integral part of what defines our very United Kingdom. Notwithstanding the different perspectives, I know all Members of your Lordships’ House are at one on the principle that the integrity of the United Kingdom must be protected. The fact is that the Northern Ireland protocol must work for all communities in Northern Ireland and, of course, the wider United Kingdom. Of course, the noble Lord, Lord Pannick, is correct—we signed the Northern Ireland protocol. But any contract—I do not speak as a lawyer but I have done a few contracts in a previous life as a banker—is also signed in good faith. It has to work for all sides and all communities.

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[Baroness Altmann (Con)]

My Lords, with all due respect to the noble Lord, Lord Bew, and in due deference to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, I will now inject the perspective of an economist and businessperson.

I support Amendments 3 and 67 and will try to inject a different perspective here. The arguments about protecting the Good Friday agreement are of course important and real. However, it seems that, despite arguing that the UK has contributed to the problem—which is essentially part of the reason why the doctrine of necessity seems unable to be applied here—there are options open to the United Kingdom to respect the Good Friday agreement, including maintaining regulatory alignment. Were regulatory alignment to be maintained, the east-west problem would not necessarily arise—because the EU could be reassured that there is less of a threat to its single market—and the north-south element would also not arise. If the UK wanted to diverge regulatorily, it has the option to negotiate that. So there are practical resolutions within our power to protect the Good Friday agreement and the protocol.

If we cast our minds back to the awful Brexit and post-Brexit periods, an assurance was given to noble Lords, including myself, that there would be technical arrangements—alternative arrangements—that would permit the flow of goods across the border that could be tracked, with trusted traders and technology being introduced, that would mean that we would not have these problems of customs procedures. If those arrangements were to be in place, the problem would not arise. So again, the UK Government have the option of saying, “We will maintain regulatory alignment until we have introduced those arrangements”. That would allow us to be in a position where we would not be breaking international law.

I agree with the noble Lord, Lord Bew, when he said that, if there is a problem, we should try to find a compromise, but that again means negotiation and using the facilities we have signed up to ourselves rather than threatening to blow up the whole agreement. I urge my noble friends on the Front Bench to try to get away from the magical thinking that we can somehow square this circle by threats or by breaking international law—or even by threatening to break international law—and instead to get around the table and negotiate a reasonable way forward that gets away from this kind of argument.

[Lord Dodds of Duncairn (DUP)]

My Lords, this debate illustrates one of the issues deeply affecting Northern Ireland politics: trust and agreements. Noble Lords have talked about agreements entered into and then broken. One of the problems that exists for unionists at the moment in Northern Ireland is that so many promises and pledges have been made but have not been fulfilled. I referred in the earlier debate to the provisions of Article 50 and the joint report published on 8 December 2017, a commitment entered into by both the European Union and the UK Government. The noble Lord, Lord Caine, was present for some of the discussions we had with Theresa May in Downing Street when this matter was discussed. Provisions were inserted, and this was agreed by the European Union and the UK Government: no regulatory difference would exist unless by the express agreement of the Assembly and the Executive. That was ditched.

This has led to a situation—and this is just one example—where unionists now feel that their voice is not listened to and that commitments entered into are not accepted or followed through. This has led to a hardening of views across unionism generally, resulting in people now saying, “We need to see the colour of people’s money and actual delivery, not promises”. I listened with great interest to Steve Baker the other day, who said, “You know, unionists should choke down their concerns; they can count on us”. I have the greatest respect for Steve Baker and others in the Government, but quite frankly the days of counting on others and taking people’s word for it—even when international agreements are set aside during negotiations —have unfortunately gone.

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[Baroness Chapman of Darlington (Lab)]

I understand that my noble friend—if I can call him that—has been lied to repeatedly, but he was lied to by the Government. I gently suggest that his beef ought to be with the noble Lords opposite me, rather than my party. As he says, our position on Article 16—as you would expect, and as I attempted to explain earlier—has evolved in the context of what we are being presented with by the Government. This approach was not previously conceived of; now that it is, it puts Article 16 in a slightly different light. This is not especially complicated, but it is the view of the Labour Party.

[Lord Dodds of Duncairn (DUP)]

I am grateful to the noble Baroness, and I understand what she is saying, but the issues that were being discussed at the time by Her Majesty’s Government, as it then was, and which the Labour Party was responding to, are the same issues that are before us today, which are affecting the political process in Northern Ireland and leading to problems with the supply of goods from Great Britain. They are exactly the same but when the solution, “Let’s trigger Article 16; let’s go into negotiations”, was suggested, the Labour Party derided that as being toxic. The Labour Party gave support and succour to those who have allowed this position of instability and economic and constitutional harm to continue. A lot of lies have been told around the place, but it is no good, if I may say so, the noble Baroness putting all the blame on to the Government when everybody in Parliament and all political parties have to accept that the goalposts have been shifted, often by consensus, in a way that has done damage to the Belfast agreement, as amended by St Andrews, in a way that has undermined the trust of the people in Northern Ireland in the institutions.

[Lord Pannick (CB)]

I entirely understand the noble Lord’s political grievance, but the fact is that Article 16 is part of the protocol and the political grievance cannot itself provide the basis for necessity in international law. This group of amendments is seeking to understand what the legal advice of the Government is.

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[Lord Dodds of Duncairn (DUP)]

Do not worry, I will not be arguing that passionately for any Bill that could end up being withdrawn. We have been down this road before. All I say is that I support measures that, in my view, help to deal with the protocol issues that we have. I accept what the noble Lord is saying in terms of the LibDem position, although Layla Moran pointed out last year that triggering Article 16 would be a terrible thing and tragic, and all the rest of it, so it is not exactly totally consistent on the Article 16 point.

[Lord Purvis of Tweed (LD)]

As the noble Lord, Lord Pannick, said, there is a difference between recognising that there are mechanisms that could be put in place as safeguarding and rebalancing measures, and unilateral actions that seek to go beyond what Article 16 would be for the protocol. That is the entire point.

In supporting my noble friend’s Amendments 3 and 67, I understand that the Government will have prepared—the Advocate-General will correct me if I am wrong—a legal issues memorandum, a LIM, before the Bill was approved. That goes to the Attorney-General and to the Advocate-General for Scotland, and they will have approved this legal issues memorandum which, I understand, would have had to consider the very questions that the noble Lord, Lord Pannick, indicated with regard to the options open to the Government to meet their policy ambitions. That would have included the protocol element of Article 16, as the noble Lord, Lord Dodds, indicated. In many respects, and I cover many trade debates in this House, Article 16 elements are fairly typical WTO mechanisms of safeguarding and rebalancing. The legal issues memorandum will have had to consider these options. So, at the very least, the Advocate-General can confirm to the Committee that there was a legal issues memorandum, and it did consider all these options.

The next question, therefore, is precisely where the legal argument on necessity originated. Did it originate from the FCDO? I understand that the memorandum goes to the FCDO also, for the treaties department. I am sure the Advocate-General will say that he cannot disclose this information for us, but on an issue of this importance, where did the argument for legal necessity originate? Was it his department? Was it the Office of the Advocate-General for Scotland? He is in his place precisely because his predecessor resigned, saying that his position was undermined in his endeavour to find, to quote from his letter, “a respectable argument” for breaches of international law in the United Kingdom Internal Market Act. The then Secretary of State for Northern Ireland said, notoriously, that it was a “specific and limited” breach, but the noble and learned Lord, Lord Keen, struggled hard to find a respectable argument to present for it, and because the Secretary of State was honest, the noble and learned Lord resigned. I note that the Constitution Committee report said, as has been referred to before:

“In this case, reliance on the doctrine of necessity is not a ‘respectable’ legal argument.”


I think we will touch on it when we discuss whether Clause 123 stands part, so it will be very interesting to hear what the Advocate-General says in winding on this group in order to inform some of our discussions on the next group.

I have sympathy with what has been referred to by others and I have an inkling as to what the Advocate-General may have in the folder in front of him. He may say, “It’s a long-standing convention, for very good reason, that legal advice is not published in full”, and he is no doubt prepared to say it, but why my noble friend Lord Campbell of Pittenweem is correct is that we are now in a realm of significance, given the scale of what the breach of international law would be.

I will refer to it in the next group, but my noble friend provided an amuse-bouche of the case of Hungary and Slovakia, to which the Advocate-General had referred. I also read that judgment in full. It may help the noble Lord, Lord Bew, to know what the ICJ has found repeatedly. Let me quote from its judgment in one of the cases that the Advocate-General cited.

“According to the Commission”—


that is the International Law Commission—

“the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied;”—

this is the point I want to stress—

“and the State concerned is not the sole judge of whether those conditions have been met.”

So even if he is right, one state party cannot determine solely, and the ICJ has found that repeatedly.

Even if the Advocate-General for Scotland says that it is a long-standing convention and cites examples of where legal advice was not furnished—he may overlook some examples of where it has been, of course, but that is a separate issue—the area that I want to ask about concerns what the former Advocate-General for Northern Ireland and the Attorney-General, Sir Geoffrey Cox, said in Committee in the Commons.

“There is plenty of precedent for the Attorney General coming to the House—I should know, I did it—to answer questions about the international law compatibility of a measure in this House. Indeed, it goes way back, I think, to either the Wilson Government or the Heath Government … I invite the Minister … to invite the Attorney General to come and answer those questions, because, in my judgment, it is an obligation to the House. The Attorney General has a residual duty to advise the House on matters such as this.”—[Official Report, Commons, 13/7/22; col. 400.]


Will the Advocate-General state why this has not happened? Will he provide the equivalent to this House in a Statement? We are asking the same as has been asked in the past of Attorneys-General.

Northern Ireland Protocol Bill

Lord Dodds of Duncairn Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Jay, who chairs our committee on the protocol with such distinction.

In my view, the Bill is necessary and provides the potential for helping to resolve the crisis in the political process in Northern Ireland brought about by the protocol. There are many aspects that we would prefer were dealt with differently, all of which will need to be addressed and resolved in due course. However, it is clear that the protocol, albeit implemented only partially so far, has the following effects. First, as the courts in Northern Ireland have adjudicated, it rips up the free trading arrangements enshrined in Article 6 of the Act of Union itself. It runs completely contrary to the cross-community arrangements—not majority rule, which some people are referring to, but the cross-community arrangements—that are at the heart of the Belfast agreement, unless people want to change the Belfast agreement to majority rule. It is contrary to the consent principle. As the Minister said, it upsets the delicate balance of the agreements, and it has undermined and continues to undermine the institutions of the very agreement that it was designed and purports to safeguard.

The protocol also negates democracy itself. Up until 31 December 2020, the people of Northern Ireland, in common with the rest of the United Kingdom, were able to elect legislators to make all the laws to which they were subject. From 1 January 2021, every citizen of the United Kingdom living in Northern Ireland has had the experience of having the significance of their votes slashed as the responsibility for making the laws of Northern Ireland over vast swathes of the economy has been taken from them and given to the members of a legislature of a foreign political entity of which they are not part, and in which they have no representation—in relation not just to one statute or one area of law, but to 300 areas of law.

The outworking of Northern Ireland being subject to European Union law, while the rest of the United Kingdom is not, has massive, far-reaching, detrimental consequences, both constitutional and economic, which will get worse over time as divergence increases. Given that the rest of the United Kingdom is by far our greatest market for trade, as a result of dividing up our country in this way we have increasing friction for goods from one part of the United Kingdom to another as a result of needless checks and tonnes of paperwork, and we have divergence of trade, restricted consumer choice and increased costs. We have threats to investment through having different state aid arrangements and regimes for Northern Ireland and Great Britain, as the Minister acknowledged when we discussed this in Committee. We are denied the benefit as British citizens of the United Kingdom of UK-wide tax changes, while being subject to EU VAT rules.

As I looked around to try to describe the reality of what confronts us, the only model that I could find that comes close to fitting is the UN category of a non-self-governing territory, which is the current term for a colony. Most colonies today are largely self-governing; they remain classified as colonies because they are not entirely self-governing. That such a solution be thought desirable, or indeed workable, for part of this United Kingdom in the 21st century beggars belief.

We have heard about this Bill and international law this afternoon. Of course, nobody seems to object to the breach of international law which is at the heart of extending unilaterally grace periods or standstill. That is a breach of international law, and yet everybody seems quite content to go along with that.

The erosion of our citizens’ rights to fundamental democratic rights under this protocol is contrary to international law. We should look again at Article 25 of the International Covenant on Civil and Political Rights and Article 21 of the Universal Declaration on Human Rights, which states:

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”.


That is denied to the people of Northern Ireland when it comes to legislating on large parts of the economy, and of course it violates the Belfast agreement, which commits to no erosion of democratic rights. Article 2.1 of the protocol refers to no diminishment in the rights accorded by the Belfast agreement, and those who support the Belfast agreement so vehemently should be defending what we are trying to do in restoring democratic rights to the people of Northern Ireland.

So, the greatest urgency now is to restore full democratic rights to people in Northern Ireland. We cannot defend and support the sovereignty of Ukraine—rightly so—and at the same time defend and support the trashing of the sovereignty of the United Kingdom. Whether by negotiation or by legislation, the objective of restoring sovereignty to the people of Northern Ireland, to all citizens of the United Kingdom who should all be treated equally, must be achieved, and with it the full restoration of Northern Ireland’s place in the internal market of the United Kingdom.

--- Later in debate ---

[Lord Clarke of Nottingham (Con)]

My Lords, by far the most important reason for opposing this Bill is the fact that it is a clear breach of international law and gives Ministers powers to free themselves from parliamentary supervision in future, on an unprecedented scale. This has already been eloquently and authoritatively set out by many speakers, so I do not propose to dwell on it. I agree entirely with everything that everybody from my noble friend Lord Cormack onwards has said on that subject, and I think it would be a great blow if we were to pass legislation of this kind.

I thought in the 1990s and the 2000s—that more optimistic time—that one of the greatest things happening across the globe was the development of a rules-based international order, which gave us all great hope that we should have a more peaceful future. I never imagined that the United Kingdom would contemplate defying the rule of law—moving away from the basis of international order in a treaty with its closest allies and friends—in the way now being contemplated, but there we are. As I said, many Members of this House have eloquently set out that case, and I am sure many Members of the Government are secretly, privately, very worried about their being party to this.

Moving on to the actual politics of it, remember how we got here. The policy now being put forward is not that of a Conservative Government, unless the new Government are a total reversal of their predecessor. Boris Johnson was very proud of the agreement he reached after it was negotiated by the noble Lord, Lord Frost. There were long negotiations and no doubt about what had been negotiated. They had found a solution to the Irish problem caused by the Good Friday agreement and the fact that you cannot safely have controls on the border—something rightly sacrosanct to both the Republic of Ireland and the United Kingdom Government. They came up with this marvellous remedy that Northern Ireland would remain in the single market and the customs barriers that would inevitably follow from our withdrawal would be, first, along the English Channel between Dover and the continent, and then down the Irish Sea, with the Northern Irish having the advantage to many parts of its economy of being able to remain in the single market.

That was the policy; it should be the policy still. The part that changed was changed by the policy of the Democratic Unionists. They are the authors of this Bill, as already very eloquently expressed in this debate by the noble Lord, Lord Dodds, and his colleagues. They demanded the pistol. Theirs is the finger on the trigger because they used it as the basis for not joining a power-sharing Executive in Northern Ireland, causing the crisis. Boris Johnson immediately started changing his position once this happened. Within a week or two, he was making statements about what he had just signed—which were plainly incompatible with the policy contained in what he had just signed. From then on, so long as the Democratic Unionists would not join the power-sharing Executive, we have gone on and on until the stage we have reached now.

I do not doubt the Democratic Unionists’ sincerity on the symbolism of a customs border down the Irish Sea; they have always been consistent. But I think there is another reason behind the DUP’s position: the party has just done badly in Ulster elections and is using the Northern Ireland protocol as its explanation, as it would say—excuse, I would say—for not joining a Northern Irish Executive under Sinn Féin leadership. Sinn Féin should be entitled to the First Minister’s position. They are all nodding away at me. They still hold that pistol and the Government—

[Lord Dodds of Duncairn (DUP)]

I am very grateful to the noble and learned Lord for giving way since he has made a direct accusation. I reassure him and the House that the Democratic Unionist Party would have no difficulty in re-entering the Executive with a Sinn Féin First Minister. We do not like that outcome but we will do that if the protocol is sorted out, so let us not go down a blind alley or a false argument as far as that is concerned.

[Lord Clarke of Nottingham (Con)]

I am extremely reassured to hear that but it is still “if the protocol is sorted out”. Who will decide whether the protocol is going to be sorted out? Who will determine the negotiating position of British Ministers in their discussions with the European Union? It will be the noble Lord, Lord Dodds, and his Democratic Unionist colleagues. The British Government will not—and, given the policy now, cannot—sign up to anything unless the Democratic Unionists agree because they will not achieve their aim of getting back to power-sharing. This is an impossible position.

We should have had a softer Brexit, but the hard Brexiteers took over. We should have stayed at least in the customs union, but that is now water under the bridge. The fact that we have come out is causing difficulties at Dover as much as it is in Belfast; it is causing damage to the United Kingdom economy just as it is to sections of the Northern Ireland economy—although some are lucky enough still to be in the single market and benefit from that. The only way out, as everybody has said, is sensible negotiations, but negotiations on the British Government’s own terms. They should get the DUP onside if they can, but we cannot allow the whole thing to be dictated by the sincere opinions of the Democratic Unionist Party, as it has been so far to get us to this position.

Oral Answers to Questions

Lord Dodds of Duncairn Excerpts

Wednesday 25th February 2015 Commons Chamber

[The Prime Minister]

I pay tribute to my hon. Friend, who works tirelessly to support his constituents. I think these job fairs that many Members of Parliament have taken part in and run can do a huge amount in making sure that local people can see the opportunities that are being opened up by a successful and growing economy. In Pendle, the claimant count has fallen by 54% since the election, with the long-term youth claimant count falling by 50% in the last year alone. That shows that, as the OECD itself said yesterday, Britain has a long-term economic plan, it is working, and we should stick to it.

[Mr Nigel Dodds (Belfast North) (DUP)]

As we have heard, the Prime Minister and the Leader of the Opposition agree that the reputation of politics needs improving, but would the Prime Minister agree that the latest format put forward by the broadcasters for TV election debates will not contribute to that? The broadcasters need to realise that these debates are for the benefit of voters as well as themselves, and that the unfair, irrational and legally implausible exclusion of the people of Northern Ireland from those debates—particularly the DUP, which has more votes and more seats than some parties that are included—cannot be justified. So will the Prime Minister agree to go back to the broadcasters and demand a rethink on the basis of justice and fairness, so that they come forward with proposals that he and the rest of us can agree to?

[The Prime Minister]

I have a lot of sympathy with what the right hon. Gentleman says. My argument was that you could not include one minor party without another—obviously I was referring specifically to the Greens on that occasion, but now, with it having been decided to include Plaid Cymru and the Scottish National party, there does seem to be a difficulty in not addressing the question of the DUP. Certainly my party stands in every part of the United Kingdom, so I do think that is important, but I am sure his case will be taken seriously.

Oral Answers to Questions

Lord Dodds of Duncairn Excerpts

Wednesday 7th May 2014 Commons Chamber

[The Prime Minister]

I am grateful to my hon. Friend for what she says, because for the first time in almost a decade all three main sectors of the economy—manufacturing, services and construction—have grown by at least 3% over the past year. That is further evidence that the economic plan is working. Manufacturing is important in itself and it is also important because so much of it is tradeable. We want to see Britain export more, make more and invest more. The moves made by my right hon. Friend the Chancellor in the Budget in terms of investment allowances and backing UK Trade & Investment are dedicated to that angle. As I said earlier, we must also remain an open economy, which will encourage people to invest in our manufacturing base.

[Mr Nigel Dodds (Belfast North) (DUP)]

Later this week, the opening stages of the Giro d’Italia will take place in Northern Ireland. The Tour de France is also coming to Yorkshire. Such world-class sporting events allow us to showcase our region, boost tourism and grow the local economy. Does the Prime Minister agree that as we seek to build a more prosperous and better future for all our people in Northern Ireland it is vital that the suffering and hurt of the victims is never forgotten and that whether it happened one year ago, 10 years ago or 42 years ago, justice must be pursued and the police must be allowed to follow the evidence wherever it may lead?

[The Prime Minister]

First, I agree with the right hon. Gentleman about the importance of these great sporting events—both the one he mentioned in Northern Ireland and, of course, the Tour de France, which will be starting in Leeds. That will be a great moment for Yorkshire and for the whole United Kingdom. We should do all we can to promote these events, although we should perhaps draw the line at appearing in lycra at either of them.

The right hon. Gentleman raises a very important issue about terrorist victims. We discussed recently the important issue of trying to ensure greater assistance from Libya over Semtex that is still being found in Northern Ireland as we speak today. As for his other remarks, we should be proud of the fact that a free country has an independent judiciary, an independent legal system and an independent police service and that they decide who to arrest, who to question and who to charge. That is how it must remain.

Scotland’s Place in the UK

Lord Dodds of Duncairn Excerpts

Thursday 6th February 2014 Commons Chamber

[Graeme Morrice (Livingston) (Lab)]

I add my own congratulations to my hon. Friend the Member for Glasgow North East (Mr Bain) on securing this important debate on Scotland’s place in the United Kingdom.

One way or another, 2014 will be the year that Scots will remember. In seven months’ time the Scottish people will vote to decide either to continue 300 years of partnership and shared prosperity, or to go it alone as a separate state. Unlike some, I did not get into politics to obsess over the constitution. I would rather be talking about how to build a better Scotland, a better Britain and a better world. I am just as appalled by poverty in Birmingham, Liverpool and West Ham, as I am in Broxburn, Livingston and West Calder in my own constituency. I would rather the Scottish Government were focused on their day job of improving the lives of ordinary Scots than on abusing public resources to promote an SNP agenda.

By pooling and sharing our resources, Scots have contributed to one of the most successful and prosperous political unions the world has ever seen. But whereas there is little doubt that Scotland could be an independent country, the question the Scottish people will have to consider is whether Scotland will be better off by going it alone. My view is that Scotland would not, and there is a range of positive reasons why I believe that we are all better together. Scotland is linked intrinsically to the rest of United Kingdom, socially, politically and economically.

[Mr Nigel Dodds (Belfast North) (DUP)]

It is important to point out that Scotland is linked not only to England, but to Wales and Northern Ireland, because there are strong bonds across all the countries. Those of us who are from those areas must send out a strong message to our Scottish fellow citizens that we cherish the fact that they are part of the United Kingdom and want them to remain as such. It is important that, without interfering in the democratic vote, we send out that positive message.

[Graeme Morrice]

I welcome the right hon. Gentleman’s intervention and fully understand that there are major cultural links between the people of Scotland and the people of Northern Ireland. Indeed, I have many friends and relatives from Northern Ireland.

The single market within the UK affords significant economic, trade and employment opportunities to people on both sides of the border, and our membership of the European Union, through the United Kingdom, provides a vast marketplace for Scottish exporters. Together, we have a place at the top table of the European Council of Ministers, we are one of the G8 forum of the world’s largest economies and we are a permanent member of the United Nations Security Council, all of which allows us to wield unprecedented influence on the European and global stages. As a member of NATO, we have collectively benefited since the war from international security and defence co-operation on a grand scale.

When it comes to the economy, Scotland has a very important relationship with the rest of the United Kingdom. Scotland benefits from access to a market comprising tens of millions of people within a single jurisdiction. Scots are employed by firms based in the rest of the UK, and people in the rest of the UK benefit from employment opportunities with Scottish-based companies. Indeed, Scotland’s exports to the rest of the UK are worth double its exports to the rest of the world.

Helicopter Crash (Glasgow)

Lord Dodds of Duncairn Excerpts

Monday 2nd December 2013 Commons Chamber

[Mr Carmichael]

There really is nothing I can add to the comments concerning the right hon. Member for East Renfrewshire (Mr Murphy). It struck me when the right hon. Member for Coatbridge, Chryston and Bellshill (Mr Clarke) was speaking that his constituency and mine are just about as different as it is possible to get, but I am sure, knowing that helicopter incidents are by no means unknown in my constituency, that there would have been a shared experience and reaction to the news that broke on Friday night from Shetland all the way to the Mull of Galloway. It was something that united communities across Scotland.

[Mr Nigel Dodds (Belfast North) (DUP)]

On behalf of my hon. and right hon. Friends, may I express our deepest sympathies and condolences to the bereaved and our best wishes for a speedy recovery to those who have been injured? May I tell the Secretary of State and the House that, given the very close bonds that exist between the people of Northern Ireland and Scotland in particular, this morning in the Northern Ireland Assembly all the parties and all their representatives stood together in paying tribute to the emergency services and offering their deepest sympathies and best wishes to the people of Glasgow and Scotland?

[Mr Carmichael]

The right hon. Gentleman brings to our attention a very important aspect. The relationship between the west central belt of Scotland and Northern Ireland is a long and historic one which is not always the easiest, but it does bring with it links and connections that, at a time like this, are of great importance. It was for that reason that I was particularly pleased to receive a telephone call this morning from David Ford, the Justice Minister in Northern Ireland, expressing exactly the sentiments the right hon. Gentleman has just expressed.

Oral Answers to Questions

Lord Dodds of Duncairn Excerpts

Wednesday 13th February 2013 Commons Chamber

[The Prime Minister]

My hon. Friend makes a very important point. Britain has always been an open and welcoming economy, but it is not right if our systems are being abused. That is why yesterday I chaired a committee meeting in Whitehall, which my hon. Friend the Minister for Immigration is leading, where we are going to look at every single one of our systems—housing, health, benefits—and make sure that we are not a soft touch for those who want to come here. It is vital that we get this right. Many parts of our current arrangements simply do not pass a simple common-sense test in terms of access to housing, access to the health service and access to justice, and other things that should be the right of all British citizens but are not the right of anyone who just chooses to come here.

[Mr Nigel Dodds (Belfast North) (DUP)]

If the Prime Minister is serious about tackling the serious problem of misleading labelling and the contamination of product, what possible future is there for his coalition with the Lib Dems?

[The Prime Minister]

The coalition must be clearly labelled at all points. However, the right hon. Gentleman references an important point which is that retailers bear a real responsibility. At the end of the day, they are putting products on their shelves and they must be really clear about where that meat came from and who it was supplied by. It is up to them to test that, and I think that is vital.

Oral Answers to Questions

Lord Dodds of Duncairn Excerpts

Wednesday 9th January 2013 Commons Chamber

[The Prime Minister]

My hon. Friend is entirely right: we have to tackle that problem at every level. That means making sure that we are teaching maths and science and other STEM subjects properly in schools. There are signs that the number of people taking those subjects is increasing. We need to ensure that our universities are properly funded; the tuition fees will make sure that that is the case. We also need to raise the profile of engineering, and that is one of the reasons that we introduced the £1 million Queen Elizabeth prize for engineering. That, combined with the 34 university technical colleges, will help to ensure that we train the engineers we need for the future.

[Mr Nigel Dodds (Belfast North) (DUP)]

It is more important than ever that we seek to continue to move forward and away from violence in Northern Ireland, and to create stability. I am sure that the Prime Minister will agree that full participation in and support for the political and democratic process by everyone, so that the politicians can address the people’s issues, is absolutely vital. In that context, and in the light of what is happening in Northern Ireland, will the Prime Minister agree to meet us to discuss the forthcoming legislation on Northern Ireland, so that we can consider measures to increase democratic participation by people in deprived communities, look at the deplorable state of the electoral register in Northern Ireland, which is in a bad state, and deal with the discrimination against elected Members of this House from Northern Ireland who play by the rules while others get money without taking their seats? All of that needs to be addressed.

[The Prime Minister]

I would be happy to meet the right hon. Gentleman. Indeed, I have a meeting with a number of members of his party straight after Prime Minister’s questions to discuss the vital issue of ensuring that the military covenant is properly fulfilled in Northern Ireland. He made a number of points in his question. I would throw back part of the challenge to him and his party, just as I would to others in other parties, in saying that we need to build a shared future in Northern Ireland in which we break down the barriers of segregation that have been in place for many years. That is part of the challenge to take away some of the tensions that we have seen in recent days.