Northern Ireland Protocol Bill

Lord Lisvane Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, when the purpose and the intended effect of a clause are unclear, it sometimes helps to look at the Explanatory Notes to the Bill. These are produced, of course, by the Government, and are designed to explain. But if we look at the Explanatory Notes to Clause 18, we see that the confusion and uncertainty are even more manifest.

Look at paragraphs 96 to 98 of the Explanatory Notes. Paragraph 96 tells us that:

“Clause 18 clarifies the relationship between powers provided by this Bill and those arising otherwise, including by virtue of the Royal Prerogative.”


That is what Clause 18(2) says. Paragraph 97 deals specifically with Clause 18(1). It says:

“Subsection (1) provides that Ministers can engage in conduct (i.e.”—


and I emphasise that it is “i.e.” and not “e.g.”—

“sub-legislative activity, such as producing guidance) relevant to the Northern Ireland Protocol if they consider it appropriate in connection with one or more of the purposes of this Bill.”

If that is the intended purpose of Clause 18(1), why not say so? Why not limit the scope of Clause 18(1) specifically to say that Ministers can produce guidance? We could then have a debate about whether it is properly drafted, whether it is too broad or whether there should be some controls. I am afraid that what we find in Clause 18(1) bears no relationship whatever to what the Explanatory Notes tell us that Clause 18(1) is designed to achieve. My conclusion from that is that there must be real doubt here; that Ministers know what Clause 18(1) is designed to achieve and are reluctant to be specific because they do not want proper controls on the scope of their powers.

[Lord Lisvane (CB)]

To follow the noble Lord, Lord Pannick, I wonder whether one route might be for the Minister to give us a glimpse behind the veil. What were the instructions given to parliamentary counsel? In other words, what were they asked to achieve by means of Clause 18(2)?

[Baroness Suttie (LD)]

My Lords, I will speak in favour of Amendment 38, tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name.

My noble friend Lord Purvis of Tweed has already spelled out in great detail the potentially huge increase in power that Clause 18 could grant to a Minister of the Crown, and I believe that the noble Lord, Lord Pannick, has further explained the total lack of clarity as regards this clause.

I was reflecting on the many debates we had on this Bill last week and on the general and frankly astonishing lack of clarity from the Government as to why such sweeping powers should ever be deemed necessary—the Rumsfeld “unknown unknowns” clauses, as my noble friend has coined them. Later this week, I believe we will be hearing a Statement from the Secretary of State for Northern Ireland on progress—or, indeed, lack of progress—in bringing back the Northern Ireland Assembly and a functioning Executive, and whether there will be elections imminently in Northern Ireland to overcome this impasse.

The Government and other noble Lords have stated that one of the Bill’s main purposes was to deal with the understandable concerns of the unionist community, particularly the DUP, about the impact of the Northern Ireland protocol. One can hope that the talks taking place in Brussels and at the climate summit in Egypt will lead to genuine negotiations and a potential framework for agreement. It has also been stated that one of the Bill’s purposes was to facilitate the DUP’s return to the Northern Ireland Executive, yet it remains far from clear that passing this legislation in and of itself would achieve this. It is therefore increasingly hard to understand why we are pushing ahead with this very bad Bill, which sets so many dangerous precedents, if it does not, in itself, achieve even one of its so-called “main objectives”—namely, a much-needed return to a functioning Northern Ireland Assembly and Executive.

When the noble Lord, Lord Ahmad, replies to this group of amendments, I would be very grateful if he confirmed that re-establishing the Northern Ireland Executive remains one of the Bill’s primary purposes. If it is, does he not agree that other much more productive approaches, such as genuine negotiations and a change of tone, could be taken that would achieve exactly the same goal, but more effectively?

Northern Ireland Protocol Bill

Lord Lisvane Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I associate myself with my noble friend Lord Purvis of Tweed and the noble and learned Lord, Lord Judge, who have made the case in very strong terms for why subsection (3) should be removed. I pause only to make one observation: it does not even specify the Minister but says:

“A Minister of the Crown”.


So not only is it an extremely wide power, it is a power available to any Minister in any ministry of any kind, at any time, without any restraint whatever. How can that possibly be consistent with the principles on which we pass legislation in this Chamber?

[Lord Lisvane (CB)]

My Lords, I apologise for not having been present for the first two days in Committee for family reasons. I am in violent agreement with my noble and learned friend the Convenor. It seems to me that this amendment, others in this group and, indeed, others in the Marshalled List seek to address something of a legislative slough of despond. If that is the case, it is a swamp that needs draining. I think noble Lords on the Government Front Bench will realise that the bar will be set very high indeed on Report.

I shall briefly address two other contributions. First, to respond to the noble Lord, Lord Campbell of Pittenweem, I may be misremembering but, from my past, I think “a Minister” is used as a generality in drafting to reflect the collectivity of government. It could be any Minister given the particular responsibility at the time, although I agree that some of the flanking provisions might draw that into a certain amount of doubt.

As for the noble Baroness, Lady McIntosh of Pickering, she is ever the peacemaker but I would discourage noble Lords from pursuing the idea of putting in an illustrative list of measures that might be subject to these powers. Illustrative is only illustrative: if they are not in the statute, they are simply a bit of an Explanatory Memorandum, if you like. Even if they are in the statute, no drafter or Minister will allow them to lie there without the assertion that they are not an exhaustive list, so that anything can be added at the whim of Ministers. As my noble and learned friend the Convenor pointed out, quite a lot is being done at the whim of Ministers.

[Baroness Crawley (Lab)]

My Lords, I too support the amendment in the name of the noble Lord, Lord Purvis of Tweed, for all the reasons that the noble and learned Lord, Lord Judge, gave. When the Minister replies to the noble Lord, Lord Purvis, will he point to the incident that triggered the grave and imminent peril that forms the basis of the doctrine of necessity that the Government have used in justifying the Bill, with its extraordinary powers for Ministers?

Outcome of the European Union Referendum

Lord Lisvane Excerpts

Wednesday 6th July 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, we have heard some outstanding speeches in this debate. The contributions of the Leader of the Opposition, of the noble and learned Lord, Lord Wallace of Tankerness, and of the most reverend Primate the Archbishop of Canterbury were compelling and memorable. Together, they expressed a sense of shock, of lost opportunity and of the need to heal wounds. But the noble Baroness, Lady Smith of Basildon, was rightly remorseless in listing the questions which need answering before we can move forward.

I want to concentrate on one of those questions: Article 50 and the role of Parliament. There are those who say that we should trigger Article 50 immediately, but anyone who has ever negotiated with anybody on anything knows that if you do so against the clock and you are, as we shall be, supplicants, then when you run out of time you have to accept what the other side is prepared to give you. So the argument for invoking Article 50 without substantive preliminary negotiations and a route map is dangerous.

How might Parliament be involved in the process of triggering Article 50? Paragraph 1 of the article says:

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.

For 27 of the 28 member states, determining those requirements is made much easier by the fact that they have formal written constitutions. For us—and I have absolutely no wish to see a British written constitution—it is more a matter of constitutional “expectations” than of constitutional “requirements”.

A number of people have put forward the argument that because an Article 50 notification commits the United Kingdom to withdraw from the EU, it must be inconsistent with the European Communities Act 1972. This argument goes on to state that if the inevitable result of giving notice under paragraph 2 of Article 50 is that, two years after that notice, our membership of the EU ceases, that frustrates the will of Parliament in having passed the 1972 Act. The conclusion is therefore that if Parliament is given no opportunity to reconsider the matter and make new legislative provision, the giving of notice is simply unlawful.

This is an ingenious argument, but it is also wrong, being based on a misstatement of what the 1972 Act actually does. As Section 2(1) of the Act makes clear, it is a means of giving domestic legal effect to our treaty obligations. Those obligations were entered into separately, exercising prerogative powers without the approval of Parliament. The Act did not make us a member state of the then EEC.

After 44 years in this building, I am no enthusiast for the exercise of prerogative powers without parliamentary approval, but the fact remains that, like it or not, under our present arrangements notifications under international treaties are prerogative acts. The Constitutional Reform and Governance Act 2010 provided a statutory role for Parliament, although a circumscribed one, in the ratification of treaties. It was a statutory version of the previous convention, the Ponsonby rule. But an Article 50 notice is not itself a treaty and the giving of notice in no sense requires ratification in the terms of Section 20 of the CRAG 2010, although the eventual withdrawal agreement would be subject to the procedure—but that would obviously be far too late in the day for any effective parliamentary involvement.

So the conclusion must be that giving notice under Article 50 TEU is a prerogative act; it has consequences for the operation of the European Communities Act 1972 but it does not repeal or amend it. In the jargon, the provisions of Section 2(1) of the 1972 Act are “ambulatory”; they depend on there being Union obligations to be given domestic effect. If there are no such obligations, the Act has nothing to bite on. Incidentally, I join my noble friend Lord Kerr of Kinlochard in being pretty confident that an Article 50 notification can be withdrawn even though the treaty is silent on the matter. The evidence given to the European Union Committee was convincing on that point, and it may be relevant if the exit package proves to be wholly inadequate and unacceptable to the country at large. I also heed the warning of my noble and learned friend Lord Brown of Eaton-under-Heywood that if there were contention, this matter would fall to be decided by the ECJ.

There are those who suggest that the whole process could be cut short by simply repealing the 1972 Act and not worrying about Article 50. That would just be mad. Simple repeal of the primary Act would mean that the huge body of domestic law made under its Section 2(2) would cease to have effect. Section 16 of the Interpretation Act makes it clear that rights acquired up to that point would be preserved but, without savings to keep the secondary legislation effectively in place, the overall result would be chaotic. More to the point, it would not take us out of the Union; it would simply stop the mechanism by which Union obligations are given effect. So we would go into withdrawal negotiations in breach of a whole range of obligations, which would make our negotiating position a very poor one.

In my view, the giving of notice under Article 50 is without question a prerogative act. However, it is the related political imperative that brings me into agreement with those on the other side of the argument and especially with the noble and learned Lord, Lord Morris of Aberavon. I think it wholly unrealistic that any Administration could think of invoking Article 50 without the approval of Parliament, and I mean of both Houses. Yes, the Article 50 route would give effect to the will of the people but, crucially, the people were not asked on what terms we should leave the EU, and the prospects of successful negotiation will now become an increasingly important factor. Here I agree with the noble Lord, Lord Butler of Brockwell: at the end of the formal negotiations there will be an exit package. It may be good, it may be acceptable, it may be the least worst or it may be disastrous, but it will surely require further authorisation whether popular, parliamentary or, more probably, both.