Protocol on Ireland/Northern Ireland: Court of Justice of the European Union

Lord Kerr of Kinlochard Excerpts

Thursday 18th November 2021 Lords Chamber

[Lord Frost (Con)]

My Lords, my noble friend asks a very good question. I assure her that there is no role for the court of justice in the trade and co-operation agreement. There are provisions in that agreement which make it very clear that interpretations by one court cannot bind the courts of the other and that they are to be interpreted in line with the normal provisions of international law. That is 100% unambiguous. Regarding the withdrawal agreement and the protocol, we know that we have a problem. Most people would regard it as unusual for disputes between two parties to be solved in the court of one of the parties.

[Lord Kerr of Kinlochard (CB)]

My Lords, the Minister baffled the House earlier with his answer to the question asked by the noble Baroness, Lady Chapman. He is now baffling the House again. The conceptual core of the protocol is that the EU agrees that Northern Ireland may remain in the single market. The necessary concomitant to that is that the ECJ must have a role. I agree that we should not be shocked by the Minister’s line. He told us in his speech in Oxford during October that difficulties with the protocol come not from the way that it is being implemented but from the way that it was constructed. Coming from its constructor, that could seem a curious statement, but that is what he said, and that is what he goes on saying.

If the Minister insists on attempting to remove the court of justice, which is central to the conceptual core of the protocol and the deal struck by him, he cannot do it under Article 16, because, as he has just explained, that is simply about trade safeguards. Under what powers would he do it? He has the powers by regulation under the withdrawal Act to act in a way that is consistent with Article 16 to act on trade measures, but he has no power to withdraw the court of justice. Are we back to primary legislation and a specific and limited breach of the treaty and international law? If so, I doubt that the House will agree.

[Lord Frost (Con)]

My Lords, I cannot believe that I have really baffled the noble Lord, with his deep knowledge of EU affairs that is much greater than mine. The Government will set out the basis on which we would use Article 16 if and when that eventuality arises. We hope that it will not, but obviously we will be clear when and if we reach that point. Of course, it is well understood that the court has a role as the final arbiter of EU law. We do not seek to change or challenge that. What is not working is the role of the court as the arbiter of disputes between the two parties, which is unusual.