Northern Ireland Protocol Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my noble friend Lady Chapman dealt with some of the political and practical considerations of this Bill, and a number of speakers have since mentioned the important challenges in relation to legality, precedent and the UK’s reputation as an actor operating in good faith. The noble Lords, Lord Howard, Lord Pannick and Lord McDonald of Salford, my noble friends Lord Bach, Lady Kennedy of The Shaws and Lord Triesman and many other noble Lords have commented on the legality of the Government’s position. However, we cannot forget how the protocol came into force in the first place: the noble Lord, Lord Frost, and his then boss, Boris Johnson, decided that this was the solution to the question of Northern Ireland’s future. Three years ago, the Government had a large majority of 80 and this was presented as a solution to Parliament. The UK signed the protocol, as well as committing in Article 4 of the withdrawal agreement to ensuring that domestic law is consistent with the agreements made, only to claim post ratification that it was only ever intended as a stop-gap until something better could be agreed.

As the Bill gives powers to UK Ministers unilaterally to override the terms of the protocol, it cannot possibly be consistent with the UK’s obligations under international law. The Government lean on the doctrine of necessity, as we have heard, but there are severe doubts, as we have also heard, about their legal position. Indeed, some government lawyers were asked for only a selective opinion on the protocol, and other lawyers were not consulted at all. The doctrine cannot possibly apply to a state in cases where the necessity has been brought about—even partly—by the state’s own actions. That point was made brilliantly by a number of speakers.

The now Lord Chancellor famously said that the internal markets Bill, which is of course related to the protocol, broke the law in only a “limited and specific way”. The noble and learned Lord, Lord Garnier, referred to this in his powerful speech. I sit as a magistrate at Westminster Magistrates’ Court and if, on a Monday morning after a busy weekend and as the cells are emptied, a defendant came in front of me and said that he had broken the law in only a “limited and specific way”, I would take that as a plea of guilty and would sentence accordingly.

Nobody thinks the protocol is perfect but, as my noble friend Lady Chapman and others observed, the majority of Northern Ireland businesses have confidence in it. Our concern is that by acting unilaterally, the Government run the risk of harming the economy and destabilising community relations. I pay tribute to two noble Lords who will not be expecting me to pay tribute to them. One is the noble Lord, Lord Northbrook, and the other the noble Earl, Lord Kinnoull. Both gave very thoughtful speeches about the practical destabilising provisions of the Bill.

The political situation in Northern Ireland is well known. It is difficult, which is why the Government should have been seeking a negotiated outcome all this time, as well as engaging with all communities in Northern Ireland about the future they want to see. We welcome the more productive tone witnessed in recent UK-EU discussions and hope that, as a result of that shift, Northern Ireland will soon have a functioning political system. Residents want their concerns about the cost of living, public services and other matters addressed, a point very ably made by my noble friend Lady Ritchie.

I want to comment on the speech of the noble Lord, Lord Frost. He was very explicit when he addressed the House that he wants the Bill to provide a “walk away” option for the Government. He repeated that phrase several times. I want to give the noble and learned Lord, Lord Stewart, an opportunity to say whether he recognises the Bill as providing a “walk away” option. His noble friend Lord Ahmad was not so explicit when introducing the Bill. I want to comment, as somebody who has done many business-type negotiations, that I have never entered a business negotiation where I accented the “walk away” option. It may have been in the background, but it was not something I said when I wanted a successful negotiation. I think it is the wrong approach.

In his comments the noble Lord, Lord Forsyth, seemed to downplay the importance of the US and President Biden’s interest in the Bill. It may be interesting for the noble Lord if I tell him that at the Labour Party conference, I was lobbied by US diplomats on this Bill. That did not happen by accident; it happened because they were very concerned.

Moving on, we have been given a number of concrete assurances during the passage of earlier Bills that this or that piece of retained EU law would be protected, yet now the Government have set a hard deadline for revoking some regulations. With that in mind, it seems that we can no more accept assurances about the use of delegated powers than our international partners can when UK Ministers put their signatures to binding agreements.

My noble friend Lady Chapman described the Bill as an insult to our political and legal traditions. We have heard, from both my noble friend and the noble Lord, Lord Cormack, that we will not be voting on their amendments tonight, but I very much hope that there will be constructive discussions across the House as we move towards Committee.