Ireland/Northern Ireland Protocol: Scrutiny of EU Legislative Proposals (European Affairs Committee Sub-Committee Report)

Lord Hannay of Chiswick Excerpts

Friday 20th January 2023 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the valuable report we are debating, remarkably well presented by my noble friend Lord Jay of Ewelme, lifts the lid on a somewhat overlooked aspect of the Northern Ireland protocol and the withdrawal agreement with the EU: the scrutiny of single market legislation, which necessarily applies to Northern Ireland under the ratified terms of those agreements, but over which neither our Parliament nor Northern Ireland has a formal voice let alone a vote.

I speak as a member of your Lordships’ European Affairs Committee. This report was also submitted under its name, although you would not guess that from the Order Paper. I speak on my own personal behalf, and not that of the committee. Views expressed and questions posed are my own and not those of the committee.

It is surely a mistake to overlook this aspect of these agreements, which amounts to acceptance of what is often known in the jargon as “dynamic alignment” with single market legislation as it emerges down the years. That is a fact of life, whether we like it or not. We all—the United Kingdom, Northern Ireland and the EU—need to come to terms with it and mitigate its implications as best we can so that the democratic deficit does not become and ever deepening crevasse. Why so? Because it is very clear, from any reading of the withdrawal agreement and of the protocol, that that was what we signed up to and ratified in January 2020 and which is thus part of that rules-based international system which our Government purport to champion. Not even the Johnson and Frost negotiating duo have disputed this. It was not due to oversight, misunderstanding, draconian implementation by the EU, nor misrepresentation.

Moreover, despite the assertions of some, it is an integral part of every agreement with every third country which the EU has entered into which grants single market status to that state or to part of it—think of Norway, Iceland or Liechtenstein, or even Switzerland with its bundle of agreements. We should not delude ourselves into thinking that it ever was, is now, or will be somehow negotiable, nor that Northern Ireland has been uniquely picked upon. My first question to the Minister is: do the Government share that analysis?

The issue then is what can be done to mitigate the democratic deficit. Quite a lot is in our own hands and could and should be dealt with straightaway. First, we could reverse our singularly unwise decision to block the Commission’s intention to open in Belfast a subordinate office to its London office. This sub-office would provide early-stage access to emerging EU single market legislation to the whole of Northern Ireland’s civil society—the Executive, Assembly, parties, trade associations, NGOs and many others—and the opportunity to get through to Brussels the implications of its proposals for Northern Ireland. This is surely better than having to rely on periodic visits by EU officials based in Brussels or London.

Secondly, and in addition, there could be a clearly defined, dedicated section of the UK’s mission in Brussels. Its job would be to ensure that the EU’s institutions—not just the Commission but also the Council and the Parliament—fully understand the implications of emerging single market legislation for Northern Ireland and, so far as possible, take them on board. My second question to the Minister is: will the Government take those two steps which are entirely under their control? Beyond those steps, there are more complex issues, which may need to be taken up in the review of the protocol in a couple of years’ time, given the difficulty of raising them during the present fraught process of negotiations over the protocol—although all would much better be addressed sooner than that.

There need to be processes by which the views of the Northern Ireland body politic—the Executive, Assembly and parties—have some kind of voice to and links with all parts of the EU institutions with actions affecting Northern Ireland’s involvement in the single market. This could include the UK/EU parliamentary grouping, the European Parliament more widely, the Council and the Commission. It would go well beyond, in intensity and frequency of meeting, the operation of the TCA machinery. Our aim should be to achieve for Northern Ireland a voice, if not a vote. My third question is: could the Minister, when he replies to this debate, say whether the Government’s thinking is moving into the terrain I have sketched out?

Afghanistan: Ban on Women Aid Workers

Lord Hannay of Chiswick Excerpts

Thursday 19th January 2023 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s first point, we are looking at additional mechanisms and I share his concern. I am aware of the INGO that he mentioned. This morning’s meeting with the women leaders involved INGOs, NGOs and, of course, former political leaders in Afghanistan—all women. It was a very enlightening insight into specific steps that we should be taking, and that will continue to be our process. Since the Taliban takeover, I have consistently said that we will be informed by our work with key partners, including on humanitarian aid. We want to identify mechanisms, because the current issues we have with aid distribution are replicated by the concerns of other agencies, as well as other international partners.

On how we will move forward with the Islamic world, we are working on that. I am engaging directly with the OIC’s special representative, and a number of countries around the Gulf have condemned the actions. They have also made visits to Afghanistan. I will be travelling to the Gulf region in the middle of February and will look to engage with a number of Gulf partners on other issues, but, importantly, on Afghanistan as well.

[Lord Hannay of Chiswick (CB)]

My Lords, first, I offer the Minister my thanks and congratulations on being active in helping the United Nations to take the initiative that it has by sending the Deputy Secretary-General and some of her colleagues to Kabul. It must be the right thing to do, and I hope the Minister will say that they will have our unstinting support in all the efforts they are making. Secondly, he was perhaps as surprised as I was to see some amity breaking out in the Security Council in recent discussion of what has been going on in Afghanistan, with apparent unanimity in criticising some of the actions taken by the regime there. Does he think that that amity and unity in the Security Council has any development potential in the future?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I always welcome people coming together to try to work out solutions—and I say “one can only hope” in answer to the noble Lord’s second question.

On his other question, we will continue to work on our observation. I thank the noble Lord for his kind remarks. It is important that we strengthen the working of the United Nations. Often it has the access that other countries will not have. It has the structures that provide the provisions that other countries working individually will not have.

Taking up the point of the noble Lord, Lord Purvis, I assure noble Lords that we are working with the UN, the Islamic world and near neighbours. The challenge remains the Taliban perspective and I am going to be very candid. They believe that every challenge and test, erroneously and rather perversely, is an added challenge from God. That will be their interpretation. That is why we need the Islamic world to speak. I have said to them quite directly, as a direct challenge, that women’s rights were not suppressed by the religion of Islam; they were enhanced. If they claim to follow the Prophet Muhammad, they should look at his personal example. Look at who was the first person to accept the religion. He was working for someone. That person was a woman.

Ukraine: Tactical Nuclear Weapons

Lord Hannay of Chiswick Excerpts

Thursday 1st December 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, President Putin’s war of aggression in Ukraine has upended our own country’s national security strategy, along with those of many other countries, particularly fellow European states. As our strategy is currently being reviewed and reset, this debate in the name of my noble and right reverend friend Lord Harries of Pentregarth could not be more timely or more welcome. I will focus my own remarks on the nuclear aspects of the Ukraine conflict, both military and civil.

It is a bitter irony that in the first days of 2022, the five legally recognised nuclear weapon states—China, France, Russia, the UK and the US—rather belatedly reaffirmed their support for the Reagan-Gorbachev statement that

“a nuclear war cannot be won and must never be fought”.

A few weeks later, President Putin was threatening the possible use of nuclear weapons against a non-nuclear weapon state—indeed, one whose territorial integrity and sovereignty Russia had explicitly pledged to respect as part of the agreement by Ukraine to give up its Soviet-era nuclear weapons, known as the Budapest memorandum. Then, in August, Russia blocked the agreed conclusions of the UN’s nuclear non-proliferation review conference. Perfidy does not come in much purer form than that.

We will know for certain only after this war has ended whether President Putin was merely sabre rattling or whether his remarks presaged something far worse. Let us hope that the unambiguous passage in the recent G20 communiqué:

“The use or threat of use of nuclear weapons is inadmissible”


will have given him some thought. It was, of course, signed by the Chinese too.

Either way, President Putin will have put back on the table several key aspects of nuclear policy. First is whether a doctrine of “constructive ambiguity” on the use of nuclear weapons, as all members of the P5, including ourselves, currently maintain, is the best approach. There is nothing much constructive in Russia’s interpretation of that doctrine and not much benefit from the ambiguity. It might be preferable to move to a “sole purpose” doctrine, meaning that nuclear weapons’ only purpose is to deter their use by other nuclear weapon states.

Secondly, engagement with the whole issue of global strategic stability between nuclear weapon states will surely need to be resumed at some stage, drawing in the Chinese, whose nuclear arsenal is increasing by leaps and bounds; nor should we overlook the desirability of ensuring that the New START Treaty between the US and Russia on strategic nuclear weapons does not lapse and is, if possible, replaced by more constraining limits. There is also a need to look again at the question of intermediate nuclear weapons in Europe. While ensuring that Russia does not use nuclear weapons in or around Ukraine—it would be good to hear whether the UK, like the US, has conveyed any messages about the consequences of stepping across that line—this much wider agenda is coming towards us and we need to be ready for it.

There is another nuclear dimension to the Ukraine conflict: the need to safeguard civil nuclear installations in conflict zones. Both at Chernobyl in the early days after the invasion and at Zaporizhzhia, the site of the largest nuclear power plant in Europe, Russia has taken quite horrendous risks without any heed to the possible consequences. We all owe a debt of gratitude to the director-general of the International Atomic Energy Agency, Rafael Grossi, and his officials for the courage and professionalism they have shown in safeguarding those installations. I hope the Minister agrees with that and, if he does, will convey our collective thanks to the IAEA. Do we think that the international rules and conventions governing vulnerable civil nuclear sites in conflict zones are sufficient, or does experience in Ukraine show that they need, over time, to be strengthened and supplemented? This will not be the last occasion on which civil nuclear power stations find themselves in conflict zones.

I realise that some of the nuclear issues raised by the conflict in Ukraine are extraordinarily sensitive and not easy to handle in open debate, but we surely need to be thinking about and getting ready to engage with them.

BBC World Service

Lord Hannay of Chiswick Excerpts

Thursday 1st December 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I only truly understood and valued the significance of the BBC World Service for Britain’s soft power influence around the world when I was our ambassador to the UN from 1990 to 1995. That was the period when Mikhail Gorbachev, rightly or wrongly, attributed the failure of the hard-line coup against him in 1991 to the BBC. It was also the period when the first post-communist Albanian ambassador to the UN arrived in New York speaking perfect English despite having never travelled outside his country before. “How did you do it?”, I asked. “Oh, I listened to the BBC every day,” he said.

The BBC was influential because of its global network of reporters, because it is fast and accurate and because of its journalistic professionalism; it is never simply an apologist for our Government. Since that time, now 30 years ago, the value of that national asset has increased both overall and relatively, as other feeders of our soft power—our aid programme and the British Council—have been cut back.

Moreover, the need for its qualities in a world awash in misinformation and disinformation, much of it purveyed by authoritarian regimes that are our adversaries, has increased. It is needed to counter the jihadist propaganda of terrorist organisations such as IS and to provide a window on the world to oppressed groups such as Iranian women. The absolutely disgraceful harassment by the regime of BBC Persian’s journalists and their families is, in an odd way, a back-handed compliment to the BBC. It is needed, too, to set out the facts during a world crisis such as that in Ukraine. The reporting of BBC journalists such as Lyse Doucet, Jeremy Bowen, Steve Rosenberg and many others is something of which we can all be proud.

I argue that it is a time for doubling down, not cutting back, but that is not what is happening. That is why I greatly welcome the success of my noble friend Lord Alton in securing this debate. I also welcome the contribution of my noble friend Lord Hampton, who put the issues on a much higher level.

I believe the root of the problem is the decision to fund the World Service from the licence fee—a clever trick by a clever Chancellor of the Exchequer, but a fundamental mistake all the same. Why on earth should we expect the BBC to find the right balance between its domestic and overseas services when the latter are an integral part of our foreign policy? Does any other country do that? No. Is it effective and efficient? Not really, since the FCDO is now having to top up the resources available to the BBC’s overseas services by an increasing amount each year.

Surely it would be better to go back to the old system of bearing the cost of those overseas services on the FCDO budget, paid for out of general taxation like other parts of our overseas expenditure. Would that not prejudice the impartial reputation of the BBC? I do not believe so. I doubt whether one person in a million among the BBC’s viewers and listeners knows or cares a thing about the origin of its resources.

The key to impartiality is the professionalism of the BBC’s journalists and the prohibition on any meddling in its editorial freedom, which was as rigorously observed when its resources came from the Foreign Office budget as it is now. So it is for the BBC to decide the allocation of resources and its editorial policy, which is why I will not enter into the argument as to whether it is getting the balance right between digital and audio services.

I am of course aware that this is hardly a propitious moment to be making the case that I have put forward, but the present financial arrangements are neither sustainable nor, I suggest, beneficial to the national interest.

Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Baroness Butler-Sloss (CB)]

I very much support what the noble Lord, Lord Pannick, said, and add that it seems quite astonishingly narrow-minded and short-sighted to want to be rid of the European court in these circumstances. We heard at length last week about the effect on electricity, but there is a wider effect.

May I just put in a word of defence of the European court? I happened to visit it on numerous occasions. It has made some extraordinarily sensible decisions that have affected this country and particularly women, which is one of the reasons I support it. It is quite extraordinary that a Conservative Government, who I always thought had a broad view, should be quite unbelievably narrow-minded, and that some quite erroneous view of sovereignty should be taking over from the crucial role that the ECJ has to play in the work we are considering.

[Lord Hannay of Chiswick (CB)]

I echo, from a non-legal point of view, the points made by the previous two speakers but, when looking at the European Court of Justice and its role under the protocol, I imagine that even the noble Lord, Lord Lilley, would not contradict the point that I am about to make, which is that the properly constituted British Government, supported by the properly constituted British Parliament, entered into a treaty that gave a role to the European Court of Justice. That is a simple fact. It is there, written. It is another simple fact that there is no provision in the protocol to remove that role of the European Court of Justice—none.

What we are talking about is a breach of our international commitments. I am sure one of the noble Lords on the Front Bench will again hotly deny that this is the case because, like the Red Queen in Alice, their only argument is, “It is so because I say it is so”. Fortunately, that is not a terribly convincing argument in this place, where occasionally—not all the time—reason has a way of prevailing. I should like to suggest that we recognise this reality, which is that the Government’s attempt to remove the European Court of Justice unilaterally from two international treaties, which they entered with the consent, support and approval of Parliament, is a breach of our international commitments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we had a brief debate on matters relating to the European court last week, which largely focused on the earlier parts of the Bill. It is helpful to have this opportunity to deal with some of these issues in more detail.

The agreement reached with the EU on the status and role of the CJEU in relation to the protocol and other parts of the withdrawal agreement was carefully crafted and informed part of the oven-ready deal the Conservative Party was proud to call its own. There is some logic in what Clause 20 seeks to achieve. If the protocol no longer functions as intended, the legal processes cannot either, but that is only if one accepts that it is acceptable to tear up a binding international agreement in the first place.

The power for Ministers to introduce some form of referral process is interesting and a little surprising. It seems to contradict the earlier power in subsection (2). From a practical point of view, would not any referral scheme work only if the EU and European court agreed to engage in the process? Would this point not need to be negotiated?

There has been a wide-ranging debate on these issues, but it seems that there are some very practical consequences of trying to put into place a new referral process while at the same time needing to negotiate with the organisation one has just torn up a formal agreement with. How would that work in practice?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 56 deals with the

“Duty to seek an agreement on outstanding issues with the Northern Ireland Protocol”.


This amendment would make it a statutory requirement for the Government to seek a negotiated outcome with the EU and to exhaust legal routes under the EU withdrawal agreement before availing themselves of the powers in this Bill. The amendment would also require Ministers to provide regular updates to Parliament regarding the ongoing UK-EU negotiations.

In this amendment, we seek to bring together two issues in a single text: the negotiated settlement and the regular updates. This would ensure that the extraordinary measures in this Bill could not be used until all legal routes are exhausted. We know that the Government will say this amendment is unnecessary, yet the very existence of this Bill highlights the lack of good faith displayed by Ministers. We have been asked to trust in the new negotiations, but we have not yet had an update from the Foreign Secretary—although we are told we may get one later this week, and I would be grateful if the Minister could confirm that. Colleagues such as the noble Lords, Lord Hannay and Lord Kerr, often remind us of the Commission’s duties to the European Parliament, so why, after all this time, does the Conservative Party continue to sideline what they call the mother of Parliaments—this House? If the Government really are acting in good faith, they should take no issue with this amendment. It is a restatement of their own policy, coupled with a request for further information. I beg to move Amendment 56.

[Lord Hannay of Chiswick (CB)]

My Lords, I support this amendment. I have spoken on a number of previous occasions about the fact that we are fumbling around in the dark. The noble Lord, Lord Ahmad, made a noble attempt at an earlier stage in today’s debate to say something about what was going on but I am sorry to say that, if I was being impolite, I would say that what he said was the square root of nothing. Are we going to get something more than that? We ought to. That has been the practice of previous British Governments in negotiation as a third party when we were outside the European Union and in many other negotiations. I think it is pretty shocking that we are not getting that.

It also underlines a point which all our debates illustrate: that the Government have put the cart before the horse. Surely the right sequence would have been for the Government to enter into a serious process of negotiation from last February onwards; but they did nothing—absolutely nothing. We now know that nothing happened after February. As that process went along, they should have reported it to Parliament. At some stage or another, it would have been perfectly reasonable for the Government to say that we cannot go on like this for ever and, if we cannot get a negotiated agreement to sort out the implementation of the protocol in order to cure it of some of the imperfections which none of us contests, then we may have to go down a unilateral course.

If the Government had done that, I suspect that we would have had an agreement by now—but the lady who was Foreign Secretary at the time and who had her eye on higher things, which, alas, turned out to be a flash in the pan, went down another course, which was to put the cart before the horses. And that is where we are: with the cart firmly before the horses. Here we are, spending hours and hours discussing what we are going to do if this process of negotiation, which the Government say is their preference, fails. Well, the time to do that is when it has failed, when the Government have made a full and detailed report of why it had failed, and when we can see what the other side in the negotiation says about whether those reasons for failure are justified. Then Parliament can take a view on what to do next.

Instead of which, we are being asked to do all this now in the, alas, totally futile belief that this will somehow put the frighteners on Brussels. Well, it does not look to me as if Brussels is terribly frightened; nor has it been for many months. So I wish we could just get away from this and leave the process of deciding what we do if the Government’s preferred option fails, and then we will deal with that when we get to it. We will cross that bridge when we get to it.

[Lord Murphy of Torfaen (Lab)]

My Lords, I too support my noble friend’s amendment. When we look at this pointless and rather daft Bill, we realise that it has achieved absolutely nothing. They would have been more influenced by the man in the moon than by this Bill.

The Bill might have done something, but so far has done nothing, to achieve progress in Northern Ireland. I would be very interested if the people negotiating on the European Union’s behalf looked at a video of the last couple of hours’ debate in this Chamber. They would then realise that these are not the “technical issues” that we are told are being resolved at the moment. It is not about oranges, sausages and the rest of it; it is about people’s identity in Northern Ireland, whether they be unionists, who feel that their own British identity is threatened by the protocol, or nationalists, who feel that they are threatened in some other way.

The first thing the Government should understand is that in some ways the negotiations now have to be parallel: a negotiation between the European Union—with, as I said earlier, a much bigger involvement by the Irish Government—and the United Kingdom Government on the protocol itself, in parallel with negotiations to restore the institutions of the Good Friday agreement. Those institutions have effectively collapsed and there is a case for looking at them again. The noble Lord, Lord Dodds, referred to the Taoiseach’s comment about changing the rules on the way the Assembly and Executive operate—remembering, of course, that the St Andrews agreement changed the rules of the Good Friday agreement. But they were changed by agreement. That is the issue: they were not changed unilaterally by one side or the other.

In the next six months—I will come to that in a second—there should be a structured negotiation on the one hand with the European Union and on the other between the political parties in Northern Ireland and, where appropriate, on strands 2 and 3, with the Irish Government. I do not think that has entered the Government’s head over the past eight to nine months. For all sorts of reasons, which everybody knows about, they have not really been bothered; they have let things drift. There have not been proper negotiations. It seems to me that one of the Government’s most important responsibilities is to ensure that Northern Ireland does not go backwards 30 years—and it is quite possible that that could happen.

I think the European Union sometimes does not understand the absolute uniqueness of the Northern Ireland situation, of the Good Friday agreement and of the identity issue. There is no comparison anywhere within Europe, perhaps even in the world, with what has happened in Northern Ireland, and it seems to me that that has not been appreciated by the people doing the negotiating.

Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Bruce of Bennachie (LD)]

My Lords, I rise to support these amendments tabled by my noble friend Lady Suttie and signed by the noble Baroness, Lady Ritchie, and I thank both of them for the way they have introduced them. This is a Foreign Office Bill, but its implications are vital for the people of Northern Ireland and for the people of the United Kingdom, because it is a political Bill which is dangerous in terms of what the Government are playing with.

At the heart of the protocol is the debate about unfettered access to both the UK market and the EU single market. Of course, unfettered access to both those markets is what we had before we left the European Union, and leaving that Union inevitably led to a situation where an open border between the UK, GB, Northern Ireland and the EU is not compatible with the agreement post leaving the EU. That is clearly the source of the problem—but everybody knew that at the time when the agreement was struck and signed, including the UK Government and Northern Ireland politicians. However, on the face of it, from all the implications that the noble Baroness, Lady Ritchie, quoted, there is a clear majority for moving on—not for setting aside the protocol or, by implication, the trade and co-operation agreement or, frankly, the Bill to repeal EU law, when we have sweated for the past several years to transfer that EU law into UK law.

Do the Government really want to provoke a trade war when our economy is in such a fragile condition? The Prime Minister says, and I agree, that we are facing a profound economic crisis. Is tearing up the protocol more or less likely to alleviate this or help recovery in Northern Ireland? The issue, therefore, is surely not how to achieve the minimal friction. We all agree that we want minimal friction; we want as free access as we can get. The issue is not how to achieve it but how we can get it to the lowest compatible level for business to carry on with minimal cost and delay.

The case for consulting the Northern Ireland Assembly is overwhelming. Not least, it is not just a matter of the numbers. The whole point of legislatures is that they are where compromises can be negotiated and struck; where the balance can be found. And there is the rub. The DUP insists that the Irish Sea border must go. As I have said, it would of course be ideal to have no borders, but that would be inconsistent with being outside the single market and the customs union. So a low-friction agreement on implementation of the protocol appears to be the answer, appears to have wide support and could surely be negotiated with good will on all sides.

Unfortunately, as I understand it—and I would be happy to be contradicted when the DUP enters the debate—the DUP is insisting on what it knows to be an impossible solution: no borders. The party has said that, unless it gets that solution, it will never re-enter the Assembly or the Executive. The Good Friday agreement—the Belfast agreement—is a power-sharing arrangement between the largest nationalist and largest unionist grouping. It is not a majoritarian arrangement, as the DUP rightly insists on telling us—but nor is it a never-ending veto. To share power is to seek and find compromise. Refusal to do so is to deny the spirit and probably the letter of the agreement. It is to deny democracy. Most important of all, it is to deny the people of Northern Ireland the delivery of essential services that they require and that they voted for—and, as the noble Baroness, Lady Ritchie, said, they desperately want solutions to be addressed.

So we are facing the prospect of a fresh election. I do not think anybody wants an election, and nor does anybody believe that it is likely to make a huge difference; it will not change much. I hope that it might further strengthen the Alliance but, on the whole, it is not likely to make a huge difference. If the DUP, before or after the election, blocks any compromise—I repeat, any compromise—is it not time to reconsider the arrangement? I have already said that power sharing requires compromise. Should refusing to compromise question the right to share power? Is it not time for some hard consideration of the rights of the people of Northern Ireland—their rights to have a functioning Government, to move forward and to have a solution that is based on reality, not fantasy?

[Lord Hannay of Chiswick (CB)]

I support the amendment, so ably moved by the noble Baroness, Lady Suttie, for a simple reason. It relates to what is frequently called the “democratic deficit”—a phrase that often finds itself in the mouths of those who support this Bill, among whom I am not numbered. They talk about the democratic deficit in Northern Ireland mainly in respect of the fact that the people of Northern Ireland do not have a say over the legislation for the single market, which will be passed in Brussels. They erroneously say that that is the only place in Europe where that happens. That is untrue; it is the same for Norway, which has no say over legislation passed in Brussels but accepts it when it is sent through on a fax. So the use of the words “democratic deficit” by the supporters of the Bill is in any case a bit erroneous. It is even more erroneous when you consider that the people of the Northern Ireland actually voted to remain in the European Union; that surely is something of a democratic deficit.

These amendments, which I imagine the Minister will explain the Government cannot support, are also an attempt to address the democratic deficit, to say that the people of Northern Ireland collectively should have some say in the operation of this deeply flawed legislation. So why will the Government oppose it? We know why: because a majority of Members of the Assembly who were elected in May have said they do not want any of it, and that would not be helpful to the Government’s objectives. When you bandy around phrases such as “democratic deficit”, you should follow them through to their logical conclusion, and that logical conclusion is in the amendments that the House is now debating.

[Lord Browne of Belmont (DUP)]

My Lords, the amendments would subject aspects of the Bill to the approval of the Northern Ireland Assembly. However, my contention is that they will work only if preceded by a prior vote on the protocol itself in accordance with the standards of cross-community consent put in place for the controversial matters set out by the Belfast/Good Friday agreement.

The Good Friday agreement is now very vulnerable because of the approach of the European Union in relation to two key principles at the heart of it. First, the Good Friday agreement is predicated on a commitment to affording the interests of both communities parity of esteem. The interests of unionism have not been afforded parity of esteem vis-à-vis those of nationalism with respect to the protocol. While the protocol represents an existential threat to all that unionists hold dear and is rejected by all the unionist parties, it authenticates that which nationalists and republicans desire: the breaking of the UK economy. Secondly, the Good Friday agreement is predicated on a commitment to non-majoritarian politics, which means that controversial decisions have to be made on the basis of cross-community consent. Again, that has been cast aside.

In the first instance, the EU sought to pressure the UK Government into the protocol without affording Northern Ireland any say in the matter, notwithstanding the fact that the effect of the protocol is to slash the value of the Northern Ireland vote, as 300 areas of lawmaking to which we are subject are taken from us and made by a legislature of a foreign power. When the EU finally agreed that the Northern Ireland Assembly should be given some say in the matter, it insisted for some bizarre reason that it should happen four years afterwards. It made provision for it to continue for at least another four years without cross-community support, resulting in eight years of government outside the confines of the Belfast agreement, which could of course continue indefinitely with regular four-year extensions.

That is the height of irony because anyone who studies democracy will know that leading academics in the field, such as Professor Arend Lijphart, are very clear that the EU is one of the most consensual, non-majoritarian polities in the world today. That the EU decided to betray its own commitment to non-majoritarianism by going out of its way to impose majoritarianism on a polity that it knew was based on non-majoritarianism is quite extraordinary.

This is a major problem not just for the Good Friday agreement but for the protocol. The protocol subjects itself to the Belfast agreement in all its dimensions through Articles 1 and 2. That is a problem for those who wish to argue that international law constrains those seeking to address the clear injustices of the Northern Ireland protocol, because Article 3 of the Vienna Convention on the Law of Treaties is very clear that:

“When a treaty specifies that it is subject to … an earlier or later treaty, the provisions of that other treaty prevail.”


Given that the convention also sets out mechanisms, such as Article 56(1)(b), whereby a state party can lawfully and unilaterally withdraw from a treaty, the refusal of the EU to amend the protocol so that it is properly brought into line with the prior treaty clearly gives grounds for our withdrawal.

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

I am most grateful to the Minister for giving way. Could he perhaps give an instance in which Norway has not immediately adopted a piece of European legislation since the EEA agreement came into effect?

[Lord Caine (Con)]

The noble Lord is a former diplomat. He is a far greater expert on these matters than I will ever be. However, my noble friend Lord Hannan has just whispered in my ear “the post office directive”. I will come back to the noble Lord with further details.

Genocide Determination Bill [HL]

Lord Hannay of Chiswick Excerpts

2nd reading
Friday 28th October 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, it is a pleasure to follow the right reverend Prelate, who, like other speakers, set out the route by which we arrived at this Second Reading of the Bill—it was painful and too long. I support the Bill for a very simple reason: it helps to fill a gap in the implementation of our British international obligations under the 1948 genocide convention, signed and ratified by this Parliament, but all too often overlooked when heinous crimes are actually being committed. It is thus an essential reform, if we mean it when we say that we are stalwart backers of the rules-based international order.

As other speakers have said, the 1948 convention was of course a response to the Holocaust, designed to give effect to the worldwide feeling of revulsion and to the cry of “never again”. Unfortunately, that cry has proved to be grossly overoptimistic and, since then, there has been a rising number of instances of genocide. Some of them—those in Rwanda and Cambodia and at Srebrenica—were tried and punished, however belatedly, in international courts, but many were left untried and unpunished. Most shamefully perhaps of these were the genocide against Iraqi Yazidis by IS and the treatment of Rohingya Muslims in Burma—and there have been others.

Unfortunately, and misguidedly in my view, our Government have, so far, declined to take any steps to define emerging acts of genocide, either ones in the making or even those that are under way. They have sheltered behind the excuse that the determination of genocide lies in the hands of international tribunals, even when they know perfectly well, as we all do, that in some instances—the Uighurs in Xinjiang, for example —such a determination by an international tribunal will likely never be forthcoming. As someone whose conscience was scarred by sitting as Britain’s representative on the UN Security Council during the Rwanda and Srebrenica genocides, I say that this excuse—that is what it is—is shameful. It has been called a Gordian knot, something to be cut with a knife, but I would call it a Catch-22: a convoluted way of ensuring that nothing is done to determine whether a genocide is taking place, even when we know that it is.

This Bill will remedy that lacuna in our performance of our obligations under the genocide convention. It will not in itself prevent further genocides, but it will be a building block in deterring them and provide a basis for taking action against those perpetrating such appalling crimes. For the benefit of those who have marshalled the arguments in the FCDO, for which I used to work, I add that it would also, incidentally, provide a safeguard against excessively loose accusations of genocide. I hope therefore that the Government will feel able to assist the Bill’s passage into law in both Houses.

--- Later in debate ---

[Lord Alton of Liverpool (CB)]

My Lords, I am grateful to the Minister for his response. In his concluding remarks, I heard him say that the Government “are continuing to look at” this question, which at least leaves a door ajar. I therefore hope that the Government will support the committal of this Bill to a Committee of the Whole House, and that we can then start to look at the detail he has been discussing. I was very struck by his answer to my intervention, which was about the Human Rights Council but also the implications for the Security Council. Some countries veto any kind of action being taken on any issue concerning human rights, crimes against humanity, genocide or whatever it may be, on the “ladder” that the noble Lord, Lord Collins, was right to refer to.

We have heard a series of compelling and powerful speeches from all sides of the House on why our response to this horrific and grotesque crime of genocide must change. The noble Baroness, Lady Sugg, a former Minister, endlessly had to give the same arguments from the Dispatch Box that the current Minister has given today. We have heard these arguments as recently as this week, in a Procurement Bill Grand Committee debate about forced organ harvesting of Falun Gong and Uighurs in Xinjiang. In the Moses Room, the Minister said that this is a matter for the courts and not something on which the Government can decide. Yet little changes, even when the courts do decide—as in Germany recently, where, on the issue of the Yazidis in northern Iraq, the courts found that there was genocide. Why has that not changed the definition we are able to make, at least on that significant point, without there having to be further intervention?

[Lord Hannay of Chiswick (CB)]

Both the noble Lord, Lord Mann, and the Minister recognised that these are very complex matters. Surely, the answer to that is to say, “Yes, they are very complex matters, and that is why we need legislation such as that put forward by Lord Alton”. That would enable a court—not the Government, not Parliament—to say, “Yes, that is genocide”, or, “No, sorry, it isn’t genocide but it is a crime against humanity”. That is the case for this legislation and the very complexity of it.

[Lord Alton of Liverpool (CB)]

It is indeed. As our former distinguished ambassador to the UN has reminded us, we have had our consciences scarred so many times, whether in Rwanda, which my noble friend referred to earlier, or any of these other situations. We have a duty to act, yet, as he also said, what we have at the moment is a Catch-22 situation where we suggest that something is being done when we know that it is not.

The noble Lord, Lord Browne of Ladyton, with all the authority of a former Defence Secretary and Cabinet Minister, said that this is about not just good law but what we are compelled to do, and that it is consistent with our policy that this is a matter for the courts.

The noble Baroness, Lady Sheehan, quoted Raphael Lemkin’s role. More than 40 of his family were murdered in the Holocaust. He gave us this word “genocide” to answer the question that Winston Churchill posed about why this was a crime that we could not even describe.

The right reverend prelate the Bishop of Exeter reminded us of our commitment that we have to honour under recommendation 7 of the Truro report, which the noble Lord, Lord Ahmad, referred to. He also reminded us of a quotation, which the noble Baroness, Lady Smith, referred to as well, from William Wilberforce: you can choose to look the other way but you cannot say that you did not know.

The noble Lord, Lord Shinkwin, said that we should not even need to have this debate. The noble Lord, Lord Mann, quite rightly said that there will be detail that we need to resolve and that this is not an answer to all these problems—I never suggested that it is.

I was very struck by the speech of the noble Lord, Lord Darzi. I have read The Forty Days of Musa Dagh by the Jewish writer, Franz Werfel. It is a novel about the experiences of the Armenians during their genocide. It is a very powerful account. It is not surprising that Adolf Hitler had that Jewish writer’s books burned, because, as the noble Lord told us, Hitler himself said, “Who now remembers the Armenians?”—effectively, “Why should we worry when nobody else seems to worry?”

I have been to Nagorno-Karabakh with my noble friend Lady Cox. I took my daughter with me, and said to her, “If ever you go into public life, speak up for those for whom there is no voice”. My grandfather gave me pictures that he brought back from the Holy Land during the First World War that showed executed Armenians who had been murdered as the Ottoman Turks retreated from Jerusalem. We saw those same photographs in the genocide museum in Yerevan. I was personally very taken not only by what the noble Lord, Lord Darzi, had to say but by what everyone has said in this debate.

This Bill should be committed to a Committee and we should have further discussion. We should thrash out the details and honour the promises that were given to me by two former Foreign Secretaries, who are also now former Prime Ministers. We should be as good as our word in politics. They said that this would be reformed. This Bill provides an opportunity for it to be reformed. I commend it to the House.

China: Security and Trade (IRDC Report)

Lord Hannay of Chiswick Excerpts

Thursday 20th October 2022 Grand Committee

[Lord Hannay of Chiswick (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Teverson, particularly since he referred to a couple of themes I will mention myself: the pitiful state of our international aid performance and how that affects competition with China, and climate change.

We should perhaps be thankful for small mercies: we are debating this valuable report from the International Relations and Defence Committee a mere 13 months after it was published and nearly a year after the Government’s response to its conclusions and recommendations. I join those who say that if we cannot remedy that sort of delay, we are not performing very effectively. However, I would not give any criticism whatever to the excellent introduction and presentation by the noble Baroness, Lady Anelay, at whose feet I sat for the years I was on the IRDC—not, I hasten to say, when this report was being written—and the noble Lord, Lord Howell of Guildford, who started that committee off on its voyage of discovery.

What a year it has been. It has upended some of the foundations of both the report and the Government’s response, principally with Russia’s invasion of Ukraine, and it is now concluding with President Xi’s likely coronation for a further five years in power—or perhaps longer. It is no wonder that the Government are said to be going to revisit their pre-predecessor’s security review; it would certainly be welcome to have the Minister’s indication on the timing of that when he replies to the debate.

The first requirement for such a review would be the rather overhyped “tilt” in our security and defence policy towards the Indo-Pacific region—overhyped because not much has actually happened since it was proclaimed, other than the very welcome AUKUS agreement over the provision of nuclear propulsion submarine technology. In any case, the trouble about a tilt towards something is that it is necessarily a tilt away from something else, and this is hardly the time—following the invasion of Ukraine and Russia’s nuclear sabre-rattling—to be tilting away from European security, which surely remains at the heart of this country’s overall security and to which NATO has now committed itself with renewed vigour and determination. How do the Government plan to adjust that balance or, I suggest, potential imbalance? Do the Government recognise that perhaps the best contribution Britain could make to the security of Taiwan is to ensure that Putin’s Ukraine gamble fails?

It was somewhat surprising to see nothing in the report, or in the response to it, about China’s role as a nuclear weapons state, one which without much shadow of a doubt is substantially increasing its nuclear capabilities and arsenal. The need to draw China into a serious discussion of strategic stability between the P5 recognised nuclear weapons states is surely more necessary than ever, however daunting the obstacles may now look in the short term. What is the Government’s view and policy on that critical issue?

I found some contradictions, in both the report and the Government’s response to it, between the section on China’s role in the multilateral system, on which the report and the Government’s response were critical and rather negative, and what was said about the handling of some of the vital global multilateral challenges such as climate change and trade rules—and one should probably add health pandemics to that list. The report states bluntly:

“The challenge of climate change cannot be addressed without engagement with China.”


That surely cannot be gainsaid, in which case we will have to accept that China will need to play a major role in the search for solutions to these challenges. There I slightly differ from my noble and gallant friend when he said that we must lay down the rules; good luck to him, going off to the Chinese, telling them that we need their full commitment to climate change and saying, “By the way, here are the rules”. That sort of approach may be manageable with Russia, which can be treated as a pariah state, but it cannot be successfully used with China.

The problem of China’s human rights record, which several noble Lords have referred to, clearly cannot, should not and must not be ducked—whether one is talking about Xinjiang or Hong Kong. However, we need a rapier rather than a battle-axe when responding to the abuses taking place. Do the Government agree with that analysis? By the way, how will we handle China’s bid to join the CPTPP if, as is to be hoped, we succeed in joining that group before China does and thus acquire a say in China’s accession? How will we use that say?

In conclusion, I add one caveat to the committee’s broadly very welcome call for a clear British strategy towards China. It must surely be evident that Britain cannot, on its own, hope to fashion or apply such a strategy. We must work one out in concert with our main allies and partners. We also need to recognise that we will not get a lot of support for such a strategy from the wide range of countries in Asia, Africa and Latin America, which have been referred to by many participants in this debate, if we frame it simply as a “with us or against us” choice and, even more so, if we continue to shrink our overseas aid contribution to helping these countries face their own main challenges. We need to reach out to like-minded countries to fashion this strategy and not simply wrap a towel around our head and produce it ourselves. I noticed that the advice that the Foreign Minister of the European Union gave to the Heads of Government who are meeting today on toughening up the EU’s policy towards China bore a singular resemblance to the views expressed by many noble Lords around this Room this afternoon —so I think we know where to start.

Aiden Aslin and Shaun Pinner

Lord Hannay of Chiswick Excerpts

Tuesday 28th June 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, as the noble Lord will be aware, prisoners of war cannot be prosecuted for taking part in direct hostilities. The whole process is about their early release, and they must be released and repatriated without delay at the end of hostilities, if not before. Certainly, that is the case we have been making. I can share with the noble Lord that, of course, these situations are extremely sensitive, but we need to remind Russia that it has an obligation to ensure it upholds the principles of IHL.

[Lord Hannay of Chiswick (CB)]

My Lords, can the Minister say what contact, if any, the Government have had with the Red Cross, whose role is very clearly defined in terms of the Geneva conventions and prisoners of war? It was very active in rescuing a lot of people from Mariupol and therefore has no problem about contact with these illegal authorities.

[Lord Ahmad of Wimbledon (Con)]

My Lords, we are engaging directly with all agencies on the ground. The noble Lord mentions the Red Cross; of course, it has played an important role in reaching many communities within Ukraine, including those in the occupied areas, and we will continue to engage with it. But even an organisation such as the Red Cross is facing real challenges in this respect.

Ukraine: Defence Relationships

Lord Hannay of Chiswick Excerpts

Thursday 9th June 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the timely, multi-headed debate of the noble Lord, Lord Liddle, so well introduced by him a few minutes ago, surely requires us not only to recall but to act on Keynes’s dictum: “When the facts change, I change my views.” This is because an awful lot of facts have changed in the last few months which fundamentally affect our national security interests, and it is no good ignoring the need to change the conclusions we may previously have drawn. To recognise the need for change does not require us to admit that we were wrong before; it is just common sense.

The Russian invasion of Ukraine has quite simply torn up the post-Cold War rule book on European security we all agreed to in Paris in 1990, as well as some of the basic precepts of the UN charter. The new Cold War is not going to be over any time soon; the war in Ukraine is going to require much determination and unity with our NATO and EU allies, if it is to be brought to a conclusion that does not reward Russia for its aggression and does not merely represent a prelude to further hostilities. That will require hard thought about what we ourselves are prepared to contribute to a newly shaped European security order; it will require more resources, both military and economic. It is not a beauty contest between allies. Evidently, there are consequences and reordered priorities for those—at the time, I believed they were quite well marshalled—in the integrated defence review. There should be no shame or defensiveness about admitting that. Every one of our partners is having to reorder its priorities, and some—Germany in particular—are doing so already in a much more substantial way than we have yet done.

The Indo-Pacific tilt, of which the Government are so proud, is not rendered inoperable; China’s rise and ambitions warn against that. However, the European theatre, and countering Russia’s actions, have again become our top priority. I suggest that we need to pay more attention to Africa, where we should be working in close concert with our European partners and where, together, we could make a real difference. That brings any analysis to our relationships with the EU, its member states and within NATO. Instead of working ourselves up into a frenzy about a European army, or the supposed threat from President Macron’s strategic autonomy, we should recognise that the rise in defence spending right across Europe is precisely what we have been calling for over decades. We need, as a crucial player in European security—and, with France, one of Europe’s two nuclear powers—to be there shaping its form and content, contributing constructive thinking and co-operation, not barracking from the side of the pitch.

That sort of constructive approach is what our principal ally, the United States, would like to see us making. We really should not, yet again, fall into the trap of thinking that we know better than it does what is in the US interest; we have done that quite often in the past, and it has proved pretty painful. The reality is that these fundamental shifts in the security structures around us present us with both opportunities as well as risks and costs. However, those opportunities will be realised only if we show a decent respect for other people’s priorities and not just for our own. That was how NATO was successfully fashioned in the late 1940s by Ernest Bevin, and that is how the NATO of the 2020s will be strengthened if we have the wisdom to throw our weight behind it.