European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I cannot claim the knowledge of Northern Ireland of many other noble Lords who have spoken. However, I wanted to contribute to this debate and have added my name to Amendment 218 because 25 years ago I was privileged to be a member of the Opsahl commission, an independent commission or citizens’ inquiry into the future of Northern Ireland. I have also been very much influenced by the Northern Ireland Women’s Coalition; it practises what I called in my academic work the politics of solidarity in difference, and had an influence on the wording of the Good Friday agreement which I do not think is always sufficiently recognised.

Earlier in Committee, I repeated a question that I asked at Second Reading: how is the requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic to be maintained if the citizens of the former could no longer look to the European Charter of Fundamental Rights? I noted that in his helpful letter to Peers, the noble Lord, Lord Callanan, pointed out that the agreement preceded the charter and, as the charter is not referenced in the agreement, the Bill should not affect our obligations to it. However, the point is about equivalence. If the charter now applies in the Republic and not in Northern Ireland, with the loss of various rights in the latter, how, I asked again, will that equivalence be maintained? But answer came there none, so I would very much appreciate it if the Minister could give an answer to that today, especially as, since then, I have read of the concerns of the Northern Ireland Human Rights Commission on this score, and that of a number of human rights organisations and academics in a recent letter to the Irish Times. That letter argued that we need greater clarity on how the restated commitment in the European Commission’s draft protocol to no diminution of rights in Northern Ireland will be achieved in the absence of the charter. Can the Minister explain that?

By the same token, while the,

“total, steadfast commitment to the Belfast agreement”—[Official Report, 12/3/18; col. 1414.]

given by the noble Lord, Lord Bourne of Aberystwyth, on Monday, was very welcome, it is difficult to see how that agreement will not be undermined if the charter is removed and nothing is put in its place. As a briefing by the Northern Ireland Human Rights Commission underlines, equality and rights provisions are central to the agreement. It is no wonder that people in Northern Ireland are not worried about its future. A number of organisations, including the Northern Ireland Human Rights Commission, are now arguing, in the light of these risks to the human rights framework, that this is a key moment to renew discussions on a Bill of Rights for Northern Ireland. Will the Minister undertake to consider that?

Like my noble friend Lord Browne of Ladyton, I am particularly concerned about the implications of withdrawal for children and young people in Northern Ireland, which I mentioned briefly when we debated the protection of children and their rights at an earlier stage in Committee. The Children’s Law Centre in Belfast—this links in with what the noble Baroness, Lady Suttie, said—consulted children and young people and found that they were angry and frustrated that they had no influence on a decision which has particular implications for them in terms of their childhood and their future. The report of the conference to which my noble friend referred, which was organised by children and young people themselves, details their concerns. Has the Minister read that report? If not, will he undertake to do so?

Some of us attended a recent meeting with some of the children and young people held in your Lordships’ House. Talking to them really brought home to me what a hard border means in terms of everyday life. It is about not just goods and lorries but about how everyday lives are lived across the border. For example, what happens when separated parents live either side of the border? What happens when your school is the other side of the border? When this question was put at the conference to the Secretary-General of the Department of Children and Youth Affairs, he responded, “I can confidently say I don’t know, one of many areas that we don’t know yet and have to work out”. That was not very reassuring. What happens if you need specialist health treatment on the other side of the border, or if the nearest emergency health treatment is the other side? These are the kinds of concerns the young people raised with us and they point to a real threat to their social right of access to services and to their right to family life.

The Government have not yet managed to convince anyone that they have a realistic answer to the problem of the border between Northern Ireland outside the EU and the Republic inside it. Talking to these children brought home to me the damage this could inflict on their rights and well-being. This amendment would address some of those concerns. What reassurances can the Minister give to these children, because they are listening?

[Lord Kerr of Kinlochard (CB)]

I support the amendment of the noble Lord, Lord Hain, and that of the noble Lord, Lord Browne, to which I have added my name. I do not need to say very much in support of the amendment of the noble Lord, Lord Hain, because he introduced it so clearly and fully, except to say that I agree with the noble Baroness, Lady Doocey: I cannot see any reason why the Government cannot accept the amendment of the noble Lord, Lord Hain, tonight. It seems to me that it sets out very clearly the commitments made by the UK Government, which we all agree are very important. In its second paragraph, it provides for the possibility that there might be something in the magic solutions to the border. If there were, that would be taken into account in the wording of the amendment of the noble Lord, Lord Hain. I therefore hope that the Government will accept it.

Turning to the amendment of the noble Lord, Lord Browne, my only point is that the extraordinary linguistic fudge in December is very hard for the lawyers to construe. It has been construed by the Commission lawyers in the 118-page draft withdrawal treaty, which was published on 28 February. It has been construed as requiring “a common regulatory area” in Northern Ireland and including Northern Ireland in the EU’s customs territory. Many in London have denounced these solutions; many in London and some in Northern Ireland find them unacceptable. However, they have at least tried; they have produced a draft treaty with draft clauses explaining how they think that fudge could be construed and turned into treaty language. We have not done so: all we have done is make another speech, including the same two suggestions that were made last summer, one of which the Secretary of State for Exiting the EU immediately dismissed the day after as blue-skies thinking. We still seem to be at the stage of blue-skies thinking, but next week in the European Council, we will be confronted by a draft treaty that provides a solution acceptable to some in this country but not acceptable, perhaps, to all in this country. It is half way there. I really worry that if we stick to speeches and do not produce drafts, it is very hard to see how this negotiation will reach a conclusion.

I very much support the amendment of the noble Lord, Lord Browne, and it is in the spirit of that amendment that the Government should be thinking very hard of producing the legal language that they want, and then a real negotiation could start in Brussels. Personally, I do not think that it is possible to find the legal language that matches the Mansion House speech. I believe that the only solution that is likely to be acceptable to all parties in Ireland and in this country is continuing membership of a customs union for the United Kingdom as a whole, which is, of course, what the CBI, the TUC and manufacturing industry want, and we all want for other reasons as well. We do not all want it, but on my side, we do all want it. I think that that is where it will end up. But if the Government think there is another way to go, they really need to produce the language and put it on the table in Brussels quickly.

[Lord Liddle (Lab)]

Is there not a more sinister potential interpretation of the Government’s behaviour—that they have looked into the customs partnership paper that they published in August and decided that nothing can really be made to work out of it? Therefore, their hope at the moment is that the EU 26 will force Ireland to accept some form of hard border because it is in the trade interests of the EU 26 to make sure that there is a smooth exit for Britain. Is this not an extremely dangerous situation for us in the United Kingdom and in the Republic of Ireland, in which we might end up in a situation where the EU 26 agrees to some form of hard border that then leads ultimately to a further outbreak of the Troubles?

[Lord Kerr of Kinlochard]

I would not want to attribute sinister motives to the Government—I think that somebody managed to get the word “cock-up” into Hansard the other night. Conspiracies are very rare. It is possible—and there are some who believe—that the 26 will lean on Dublin; that is perfectly possible. It is unlikely, and it is of course the case that the European Council decides by unanimity, so if one were looking for a settlement in the European Council which meant that the 26 leaned on Mr Varadkar, Mr Varadkar would have his vote and could say that he did not agree. However, I have seen no signs of the 26 leaning on the Irish. It looks to me from what Mr Tusk said when he went to Dublin the other day that we are heading for another European Council where the Irish position on the hard border and our position on the hard border are recognised by everybody. Nobody wants a hard border.

[Lord Adonis]

My Lords, surely when he speculates on these matters, the Foreign Secretary himself has publicly contemplated the prospect of a hard border, and his minute to the Prime Minister has been published.

[Lord Kerr of Kinlochard]

Certainly, I was unwilling to impute evil motives to the Government, but I am even more unwilling to try to interpret the tergiversations of the Foreign Secretary.

[Lord Patten of Barnes]

My Lords, I was very moved by the speech of the noble and right reverend Lord, the former Primate of All Ireland. I hope I can say without causing too much offence that I wish all the leaders of Christian denominations in Northern Ireland and Ireland as a whole had behaved over the years with his generosity of spirit. In saying that, I include the members of the Church of which I am a member. In his remarks, he reminded us of the terrible collateral damage we can do to things that really matter if we simply blunder forward, motivated in some cases by dogma in what is, after all, very largely a faith-based project. I am sorry to use that expression after referring to the noble and right reverend Lord, but that is what it amounts to.

I do not want to go through all of the arguments that have been so persuasively used or all the evidence that has been stacked up. I spoke about this issue briefly at Second Reading because I feel passionately about it. As an addendum to the Good Friday agreement, I chaired the Independent Commission on Policing for Northern Ireland. The report was denounced at the time by some Members of this House and by some present members of the Government. I remember one calling that policing report “a moral stain”, but it has stood the test of time. I am delighted that we have not had the same number of police officers killed in the last 20 years that we had in the preceding 25 or 30 years, when 300 died. I therefore feel very strongly about this and I entirely endorse what the noble Lord said earlier about the relationship between the United Kingdom and the European Union in taking these things forward.

I remember when I was a junior Minister in Northern Ireland—a destination, according to the Prime Minister’s friends, that she regarded as a Siberian power station. I remember how important it was to meet Ministers from the Republic in Brussels. Very often, they were meeting representatives of Northern Ireland or the Northern Ireland Government for the first time in serious official discussions, so all of that matters. I want to point out the dangers involved when you wrap up together the border.

There is a wonderful book about the border by Colm Tóibín, called Bad Blood. That is not the sort of place for which you can provide easy technological solutions. We have heard a lot about that Smart Border report, which was a consultant’s report to the European Parliament. I thought I had to take it seriously, because I heard it advocated on the “Today” programme by one of the self-titled “Brains for Brexit”, who gave a whole interview about the importance and the value of this report. So I read it, and the first thing he says is that he does not know very much about Northern Ireland. You can say that again. He goes on to point out that the report does not cover agrifood or things such as phytosanitary standards, and says that while he talks about how you can speed up customs arrangements, he does not remotely suggest that you can do without a border or customs arrangements between Northern Ireland and the Republic.