Northern Ireland Protocol Bill

Lord Howell of Guildford Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I want to focus on why this Bill would, if implemented, be a manifest breach of international law. Let me identify first what is not in dispute. The Government are not suggesting that it would be proper to bring forward a Bill which, if implemented, would breach international law—and quite rightly so. The Government also do not dispute that the Bill would resile from important aspects of the protocol and that this would be a breach of international law, unless they can rely on the doctrine of necessity. There is also no dispute about the criteria for invoking the doctrine of necessity. Your Lordships have heard that the Government must show that their action

“is the only way for the State to safeguard an essential interest against a grave and imminent peril”,

and the Government accept that necessity cannot apply if

“the State has contributed to the situation of necessity.”

The Government cannot dispute these criteria, because they are set out in Article 25 of the International Law Commission’s Draft Articles on state responsibility 2001, a codification of the basic rules of international law.

It seems to me that there are three reasons why the Bill, if implemented, would plainly breach international law. The first has already been addressed by the noble Lord, Lord Howard. The Bill is not the only way to deal with the perceived problem. The noble Lord rightly drew attention to Article 16, a mechanism in the protocol for addressing

“serious economic, societal or environmental difficulties”.

I entirely agree with what he said. But there are other problems. The second problem is that there is no “imminent peril”. The Government have been complaining about the protocol for many months—indeed, since soon after we signed it. And even if these fundamental difficulties were somehow to be overcome, there is a third fundamental difficulty: the Government have themselves caused the perceived problem, or at least substantially contributed to it. We signed the protocol in order, as then Prime Minister Boris Johnson said, to “get Brexit done”.

The Minister, the noble Lord, Lord Ahmad, in opening this debate, and the noble Lord, Lord Dodds, listed the difficulties that are caused, they say, by the protocol. Well, the Government should have thought about that before signing it. The International Law Commission’s notes to Article 25 point out, at paragraph 20, that the International Court of Justice has held that a state cannot rely on necessity when it has,

“‘helped, by act or omission’”

to bring about the situation of which it now complains. It is elementary that a state cannot sign a treaty and then seek to resile from it on the basis that the terms it has agreed damage the interests of the signing state.

The Government then say, “Yes, but the EU is not applying the protocol in good faith”—the noble Lord, Lord Forsyth, referred to bloody-mindedness, as he put it, by the EU. But there are mechanisms for resolving a dispute about the obligations of the parties to the protocol. We agreed, by Article 12, to the jurisdiction of the Court of Justice in Luxembourg to resolve disputes. The Government and the noble Lord, Lord Forsyth, may not like it, but that is what we agreed to in the protocol.

[Lord Howell of Guildford (Con)]

The noble Lord speaks with great authority and expertise—I have heard it often before and it is very good indeed—but does he think Articles 49, 50, 51 and 52 of the Vienna Convention on the Law of Treaties also have relevance and allow some scope to move away from the narrow confines of the treaty as it stands now, when the other parties may be breaking it in some way?

[Lord Pannick (CB)]

I think the noble Lord refers to obligations of good faith. The answer is that the protocol sets out a mechanism, as I said, for resolving the dispute between the parties—the UK and the EU—as to whether each is complying with its obligations. The United Kingdom cannot say that the test of necessity is satisfied when the protocol sets out a dispute-resolving mechanism.

I agree with the excellent speeches by the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis: this is a manifest breach of international law and I very much hope that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, will address these points when he answers this debate.

--- Later in debate ---

[Lord Howell of Guildford (Con)]

My Lords, I cannot pretend to offer any better ideas than anybody else about how to get Stormont going again but I must say that I sense a change of mood now in this whole situation and some welcome changes too in the wider context of the issue which, even if they are medium term or long term, can feed back positively into the immediate. So while the world drifts dangerously towards nuclear war with Russia and the Chinese carry out extending their sphere of influence and subverting Commonwealth members, among other countries, and while we are, as my noble friend Lord Skidelsky said in a remarkable speech last night in this Chamber, in effect in a war situation, I feel we can at least say that here in the British Isles there is one age-old problem that may just possibly be moving forward on the right lines.

Why do I say that? Let me enumerate some positive aspects, while not denying the negative ones. First, we are seeing distinct signs of a change of tone both in Brussels and in London, and of course in Dublin in recent days. The argument about the protocol—the one that says that one side wants changes in the protocol itself and the other side says it agrees to changes in the way it is administered but cannot open the protocol itself—is a classic diplomats’ dilemma. In the right atmosphere it really ought to be resolvable by our proverbially efficient and effective diplomatic service, with ministerial guidance, of course.

And what exactly creates that atmosphere? Let me start with a rather personalised point. We on this side have a colleague, Steve Baker MP, who is very able but also a renowned hardliner on most things. He is now newly holding the job of Minister of State for Northern Ireland—which happens to be exactly the job that I held 50 years ago. He has discovered, as I did when I went there at the height of the violence, that there are legitimate interests all round which he and others like him had not shown sufficient respect to. He said that it was time to rebuild the UK’s relations with Ireland and make sure that the two countries went forward as “closest partners and friends”.

That tells me that the talks that are about to begin will at least start on the right note, and that, despite all the aggro about the Bill, about which we have heard a considerable amount this afternoon, it is all part of a subtle and delicate negotiating positioning which could succeed. We should be very careful—I do urge my friends and other noble Lords—about barging into and upsetting what is going on. That is why, although there is plenty of room for doubts, I shall support the Bill tonight and the vote that goes with it if we have one, and why I hope that we can be spared any further, sadly misinformed if well intentioned, American advice on this matter.

However, it is in the longer-term developments where I feel the best hope is growing and where wise unionists of any shade should face reality and, if they are skilful, take their opportunities from this situation. As I said, the mood in Dublin is clearly changing. Ireland is a rich and talented neighbour nation that we should now look on with the greatest respect and treat as our major partner in the British Isles—which we have not always done in the past, to put it mildly. Before this protocol drama began, there were even signs that the forward thinking in Dublin was to be associated with the Commonwealth. We had several meetings to that effect in Dublin. Of course, that could also be part of the glue of the future as well.

Today, Ireland is far readier to drop the endless battle about old-style reunification by violence and by claim and think about different and far more constructive kinds of unity between separate communities with two capitals on the island. Issues such as energy and transport—for Ireland is one electricity market—bind both parts together, but there are also legitimate separate and lasting identities which keep them apart. With census results showing that Northern Ireland has more Catholics and Protestants for the first time, and with Sinn Féin majorities on both sides of the border, of course the conversation will change, and we will hear more about border polls. That will have to be faced. I myself bear some responsibility for that, having taken the Northern Ireland (Border Poll) Act 1972 through the House of Commons under the late Willie Whitelaw, which of course was reaffirmed in the 1998 Good Friday agreement and which Ted Heath talked about as

“a system of regular plebiscites.”

The latest survey by LucidTalk in August showed that those wanting reunification remain a clear minority. The clever unionist co-operation with Sinn Féin in Belfast can build on that to give Northern Ireland a permanent, stable and prosperous position in the future, as a constitutional part of our United Kingdom but also a good—a very good—neighbour of the Republic.