Northern Ireland Protocol Bill

Debate between Lord Judge and Lord Campbell of Pittenweem

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords—oh, I give way to the noble and learned Lord.

[Lord Judge (CB)]

Thank you very much. Just so that we are not met with the argument that we never show legal advice as it is confidential—that there is no obligation to show it and we never do—and bearing in mind that I support the noble Lord, Lord Purvis, in arguing that Clauses 2 and 3 should not stand part of the Bill, I have some simple questions.

First, do the Government agree that the provisions of the Good Friday agreement are placed at the very front of the protocol? If the worries about the Good Friday agreement are the problem, then what is the answer to the protocol affirming that need to protect it? Secondly—this is not about legal advice—have the Government considered, and if so in what way, using Article 16 of the Northern Ireland protocol itself? I spell it all out: nothing to do with international law, just within the realms of the actual protocol. If not, why not? Thirdly, what is the necessity for Clause 13 removing the Court of Justice from the European Union’s oversight role in the determination of disputes over the withdrawal agreement? That does not involve giving legal advice; it involves informing the House. Finally, and I am sorry to ask this of an individual Minister because it is a matter for every Minister, have Ministers given thought to the possibility that they have contravened their obligations under the Ministerial Code to comply with the law?

I ask those four questions on the basis of what is contained in the Constitution Committee’s report. The noble Baroness, Lady Ludford, has raised them already, but can we just have specific answers to those questions, because without them Clauses 2 and 3 simply cannot stand?

[Lord Campbell of Pittenweem (LD)]

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

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

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

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


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

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

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