Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Committee stage
Monday 19th February 2024 Lords Chamber

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I am grateful to noble Lords for their contributions to an interesting debate on this important point.

Clause 4 provides that a Home Office decision-maker, or a court or tribunal, can consider a claim that Rwanda is unsafe only

“based on compelling evidence relating specifically to the person’s individual circumstances”.

Subsection (2) prevents a decision-maker or the courts considering any claim where it relates to whether Rwanda

“will or may remove or send the person in question to another State in contravention of any of its international obligations”.

Where the duty to remove under the Illegal Migration Act does not apply, subsections (3) and (4) prevent the courts granting interim relief unless that person can show that they would face

“a real, imminent and foreseeable risk of serious and irreversible harm”

if they were removed to Rwanda. This is the same threshold that can give rise to a suspensive claim based on serious and irreversible harm under the Illegal Migration Act. Subsection (5) provides that the consideration of “serious and irreversible harm” will be in line with the definition set out in the Illegal Migration Act, with any necessary modifications. Any allegation relating to onward removal from Rwanda is not an example of something capable of constituting serious and irreversible harm, as the treaty ensures that asylum seekers relocated to Rwanda under the partnership are not at risk of being returned to a country where their life or freedom would be threatened.

Regarding the amendments tabled by the noble Baroness, Lady Chakrabarti, which the noble and learned Baroness, Lady Hale of Richmond, spoke to in opening, I remind noble Lords that the evidence pack published alongside the Bill details the evidence the United Kingdom Government have used to assess the safety of Rwanda. It concludes that, alongside the treaty, Rwanda is safe for the purposes of asylum processing, and the policy statement outlines the key findings. As experts on the bilateral relationship between the United Kingdom and Rwanda and its development over the past 30 years, FCDO officials based in the relevant geographic and thematic departments, working closely with colleagues in the British high commission in Kigali, have liaised with the Home Office throughout the production of the policy statement.

As my noble friend Lord Sharpe of Epsom and I set out in earlier debates, the United Kingdom Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. These assurances and commitments provide clear evidence of the Government of Rwanda’s ability to fulfil their obligations generally and specifically to ensure that relocated individuals face no risk of refoulement. In answer to the points raised by the noble and learned Baroness, Lady Hale of Richmond, which were adopted by the right reverend Prelate the Bishop of Chichester, and by the noble Lord, Lord Coaker, from the Opposition Front Bench, among others, the position is that a person cannot argue this fundamentally academic point over a long period of time, occupying court resources. It is a point rendered academic because of the provision of the treaty governing the Bill.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for stating clearly that the Government of Rwanda have begun putting the safeguards in place. That is consistent with what he said earlier in Committee—that the Government of Rwanda are moving towards putting safeguards in place—but he accepted that Rwanda will be a safe country only when those are place, which may be after Royal Assent. Will an applicant be able to argue, even after Royal Assent, that Rwanda is not safe until the measures that are being moved towards are put in place?

[Lord Stewart of Dirleton (Con)]

My Lords, on the passing of the Bill, the Act will decree that Rwanda is safe. Just because work is being done to render a place safer it does not make it unsafe.

[Lord Purvis of Tweed (LD)]

The Minister just said that Rwanda is becoming safer, but in his earlier comments he said that it has begun to put measures in place, and he has previously confirmed to me that until they are in place, it cannot be determined that Rwanda is safe. The Bill will decree that it is safe before the measures are in place so that it is safe. Surely someone would be able to argue in a court that it is not safe until those measures are in place. That is what the Minister just said.

[Lord Stewart of Dirleton (Con)]

My Lords, what I said was that on the passing of the Bill, Rwanda is safe. What I say is that it is—

[Lord Purvis of Tweed (LD)]

You said that the safeguards had to be in place.

[Lord Stewart of Dirleton (Con)]

I did not. I said that just because safeguards have not yet been fully put in place, it does not mean, as a result, that Rwanda cannot be deemed safe.

[Lord Stewart of Dirleton (Con)]

I reiterate my previous answer: the fact that further work is being done does not mean that the safety or otherwise of a place is conditional on the completion of that further work.

The noble Baroness, Lady Whitaker, cited the question posed by the noble Lord, Lord McDonald of Salford, concerning a journalist. She is quite correct: I did not address that specifically when I spoke earlier. The question was not pressed on me subsequently, but given that the noble Baroness has returned to it, I will look into the matter with officials and correspond.

[Lord Purvis of Tweed (LD)]

I have one final point for the Minister. If this legislation decrees on Royal Assent that Rwanda is a safe country, what is the point of having the safeguards he has mentioned?

[Lord Stewart of Dirleton (Con)]

My Lords, any work being done to improve a place is desirable of itself.

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[Lord Stewart of Dirleton (Con)]

The point I am making is that I have been told the body is up and running. That does not touch on the matter of the recruitment of a support team, which is the basis of the noble and learned Lord’s supplementary question.

From the Opposition Front Bench, the noble Lord, Lord Coaker, touched on advice said to have been given by the former Solicitor-General and by the Attorney-General. I think he is aware—I have touched on it from the Dispatch Box at earlier stages—of the existence of the law officers’ convention. I will return to it again in a later group, but the essence of that convention is not only that the content of advice given is confidential but also that it is confidential that advice has even been sought. The reason for that, accepted by Governments of every stripe over the years, is to assist with the passage of decision-making and the consideration of legal matters that touch on legislation to be passed. As I said, if I may, I will revert to that in consideration of a later amendment.

The assurances and commitments that the Government have received, together with the treaty and conclusions from the FCDO experts reflected throughout the policy statement, allow his Majesty’s Government to state with confidence that the Supreme Court’s concerns have been addressed and that Rwanda is safe. As the point has been taken in this debate, albeit in passing, I stress once again that this is a matter not of overturning the findings of the United Kingdom Supreme Court but rather of acting on them.

[Lord Purvis of Tweed (LD)]

The Minister is being generous in giving way, but what he just said contradicts what he said previously in Committee. At col. 70 of 12 February’s Official Report, I asked about the mechanisms for safeguards. It had been the Government’s position—until today, it seems—that the requirements of the Supreme Court would be met by the implementation of the treaty, which includes the safeguards within it. These include the appeals mechanism and the training and capacity-building. They have to be in place. If they are not in place, the treaty is not operative. Progress is being made towards them, as the Minister said, but he has just said that the Government’s view is that the requirements of the Supreme Court have been met. These comments are contradictory. This is important because, when I asked,

“can the Minister at the Dispatch Box reconfirm that position: that no individual will be relocated before the safeguards—including the appeals mechanism, the training and the capacity-building—are in place?”,

the noble and learned Lord, Lord Stewart, responded:

“I can answer the first part of the noble Lord’s question in the affirmative”.—[Official Report, 12/2/24; col. 70.]


Is that still the case, or did he mislead the House?

[Lord Stewart of Dirleton (Con)]

The point I was making was in answer to the point raised earlier in the debate by noble Lords, who were characterising the Government’s actions as going back on, or overturning, the Supreme Court’s decision. As I said, the point is that the terms of the Bill and the treaty are a response to the Supreme Court’s decision.

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[Lord Stewart of Dirleton (Con)]

If the noble Lord were to be threatened with refoulement, it could only happen to him once the Bill and the treaty were in place. A person could not be relocated to Rwanda until the Bill and the treaty are in place, and once the Bill and treaty are in place, there is no risk of refoulement.

[Lord Purvis of Tweed (LD)]

I am very concerned with what the Minister has literally just told us. The Minister has just said that, once this Bill has passed, there is no risk of refoulement. Article 10 of the treaty says:

“The Parties shall cooperate to agree an effective system for ensuring that removal contrary to this obligation does not occur”.


Those are not consistent. The effective system has to be in place, because that is what the treaty says; the effective system is not the passage of this Bill. So can the Minister now correct the record?

[Lord Stewart of Dirleton (Con)]

My Lords, the Government are working with the Government of Rwanda to implement new protections to the Rwandan asylum system, including the introduction of new legislation. I am reverting to a point that was taken earlier, but I give the same answer that I gave to the noble Lord, Lord Coaker. Protections offered by the treaty will prevent refoulement from Rwanda to elsewhere.

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[Lord Stewart of Dirleton (Con)]

My Lords, I will expand on the matter in the correspondence to which I referred the noble Lord.

I will go into more detail about the work that has been and is being conducted between Rwandan and British officials. Officials from the UK and Rwanda have worked closely together to strengthen Rwanda’s asylum system. We have already developed and commenced operational training for Rwandan asylum decision-makers and strengthened procedural oversight of the MEDP and asylum processes.

In November 2023, technical experts from the Home Office, working with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda. It focused on applying refugee law in asylum interviews and decision-making, and on best practice in assessing credibility and utilising country-of-origin information.

Furthermore, as set out in paragraph 14.1.15 of the published country information note on Rwanda’s asylum system, once the treaty is ratified there are provisions for Rwanda to move to a case-worker model when deciding asylum claims. Under that model, for the first six months Rwanda’s decision-making body will consider advice from a seconded independent expert prior to making any decision in relation to a claim.

[Lord Purvis of Tweed (LD)]

Under CRaG, the scrutiny period for the treaty has now been concluded, so, for clarification, when will the UK ratify the treaty?

[Lord Stewart of Dirleton (Con)]

That is a decision not for me to take. It will be taken by the Government collectively. I am not in a position to give a date to the noble Lord, if he was asking me to give one. In the circumstances, I cannot supply him with any further information.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, the point of the principle of the Bill is to remove the matter from the consideration of the civil courts and to place it before the court of Parliament; to take the matter from the civil courts and place it in the international and diplomatic sphere.

[Lord Purvis of Tweed (LD)]

What are the mechanisms —since, as my noble friend Lord Scriven said, the courts are no longer able to look at this—by which we can judge whether Rwanda will adhere to its treaty obligations? The Minister said that this is now going to be a duty of the court of Parliament: what is our mechanism in Parliament for doing that?

[Lord Stewart of Dirleton (Con)]

First, I remind the noble Lord of some of the constitutional truths that were adverted to in the debate on Monday. No Parliament can bind its successor. Parliament can always come back and revisit matters in future. On the specific point of how Parliament will come to learn of any matters that are of concern, I will refer to this in greater detail in the course of my submission, but I can refer the noble Lord to the independent monitoring committee which the treaty and the Bill establish, and to the work that that will do, feeding back to the joint committee of the two Governments.

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[Lord Stewart of Dirleton (Con)]

First, as the noble and learned Lord is perfectly well aware, the Bill blocks the possibility of refoulement and of return to any country other than the United Kingdom. In relation to the point from the noble Baroness, Lady Chakrabarti, that Parliament is a court is a familiar and well-known concept; it is a name by which Parliament is well known.

[Lord Purvis of Tweed (LD)]

Not on the theory point but on the practical point of what the Bill states, can the Minister just expand a bit more? He said that there will be a monitoring committee that will report to the joint committee of the Governments. How will they report to Parliament if we are to make a judgment, subsequently, that we wish to repeal this?

[Lord Stewart of Dirleton (Con)]

As I said to the noble Lord when first responding to him, I will address those matters in more detail in the course of my submission.

Clause 2 creates a conclusive presumption that Rwanda is generally safe and will not send someone to another country in breach of the refugee convention. I respectfully disagree with my noble friend Lord Clarke of Nottingham, the right reverend Prelate the Bishop of Bristol and others that this amounts to an abuse, far less to a constitutional innovation. In relation to a point that the noble and learned Lord, Lord Falconer of Thoroton, made on the matter of how the courts might respond, the noble and learned Lord put it to the Committee that there would be one case that would decide. I congratulate him on his optimism, but he must surely recognise—reflecting on the practice of immigration across the decades—that what happens is that, where a position is advanced and set forth before the court, it will remain open subsequently for people to argue that there has been a change in fact or a change in circumstances. Therefore, the proposal that the noble and learned Lord advances to the Committee that there would simply be one case that would determine all things is, I regret, a proposition to which I cannot accede.

The conclusive presumption as to the safety of Rwanda enables Parliament to confirm that Rwanda is safe for the purposes of the Migration and Economic Development Partnership. It reflects the strength of commitment from the Government of Rwanda on the safety and support that they will provide to individuals relocated there. Clause 2(2) notes that a decision-maker means the Secretary of State, immigration officers and the courts, including tribunals, when considering a decision relating to the relocation of an individual to Rwanda under provision of the Immigration Act. Clause 2 also excludes several general grounds of challenge and, as set out in subsection (3), prohibits generalised appeals or reviews.

As I have said already, the Government have signed an internationally legally binding treaty responding to the Supreme Court’s conclusions, in particular on the issue of refoulement. We have been clear that Rwanda will not remove any individual relocated there to another country, except to the United Kingdom in very limited circumstances. The implementation of these provisions in practice will be kept under review by the independent monitoring committee, whose role is enhanced by the treaty, and which will ensure compliance with the obligations. Therefore, as set out in subsection (4), there is no reason for a court or tribunal to consider any claim that Rwanda may remove a person to another state, that an individual may not receive fair and proper consideration of an immigration claim in Rwanda or that Rwanda will not abide by the treaty terms. Finally, subsection (5) is a “notwithstanding” provision, requiring courts to honour—I give way to the noble Lord, Lord Scriven. I am so sorry, I thought the noble Lord was poised to intervene.

Finally, subsection (5) is a “notwithstanding” provision, requiring courts to honour the previous clauses, notwithstanding all relevant domestic law, the Human Rights Act 1998 to the extent that it is disapplied by this Bill, and any alternative interpretation of international law reached by the court or tribunal.

The effect of Amendments 19, 21, 25 and 28, in the name of the noble Lord, Lord Carlile of Berriew, would be to remove the requirement for decision-makers and courts or tribunals to treat conclusively Rwanda as a safe country. That is similar to the terms of Amendment 22, tabled by the noble Lord, Lord German. These amendments would allow individuals to present evidence to challenge removal decisions on the grounds that Rwanda is not generally a safe country.

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[Lord Purvis of Tweed (LD)]

There is no obligation on the monitoring committee to publish its report, so how will we know what they are?

[Lord Stewart of Dirleton (Con)]

My Lords, as I said to the noble Lord, this matter is to be dealt with in further groupings. In the interests of saving the Committee’s time, I will revert to consideration of the points raised by the noble Baroness, Lady Lister of Burtersett.

The treaty which the United Kingdom has agreed with Rwanda makes express provision for the treatment of relocated individuals, demonstrating the commitment of both parties to upholding fundamental human rights and freedoms without discrimination and in line with both our domestic and international obligations. Rwanda’s obligations under these international agreements are embedded too in its domestic legal provisions.

The High Court found that it was generally safe for individuals relocated under the MEDP to be in Rwanda. In view of its finding on the issue of refoulement, the Supreme Court found it unnecessary to decide the question of whether individuals were generally at risk of ill treatment in Rwanda. The Court of Appeal likewise did not reach a conclusion on this point. This means that the ruling of the High Court on the point of general safety remains undisturbed.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister. That is the closest we have got to an answer: “working towards”. Can we pursue that a wee bit more? If the Rwandan Government are “working towards” putting safeguards in place, that means they are not currently in place. Is that correct?

[Lord Stewart of Dirleton (Con)]

It must do.

[Lord Purvis of Tweed (LD)]

My Lords—

[Lord Stewart of Dirleton (Con)]

Just before the noble Lord sits down—

[Lord Stewart of Dirleton (Con)]

Just before the noble Lord stands up or resumes his position, I have specific information on the point he raised earlier on information available electronically. I am told that the page on the GOV.UK site to which he was referring was in fact withdrawn on 11 September 2023 and has been superseded by one dated 11 January 2024.

[Lord Purvis of Tweed (LD)]

I am grateful. I clicked on it half an hour ago. Maybe they can do some clicking in the Box, because the information the Minister has just provided is false. He needs to correct the record, but he can do it in writing to me if he so wishes.

[Lord Stewart of Dirleton (Con)]

I think a discussion on this point would be taking up too much of the Committee’s time.

[Lord Purvis of Tweed (LD)]

As the Minister confirmed to me, by definition, the safeguards that would make Rwanda safe are not in place, because the Rwandan Government are “working towards” having them in place. Why then are we asked to determine that Rwanda is currently safe when the Minister has said it is not?

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[Lord Purvis of Tweed (LD)]

For the Minister to be persuasive in response to that question, he would not have said that they are working towards putting safeguards in place—safeguards which have to be in place, in respect of the point about refoulement made by the noble Lord, Lord Howard. The Minister said that they were working towards putting safeguards in place. The noble Lord, Lord Sharpe, said no relocation would take place before these safeguards were in place. So can the Minister at the Dispatch Box reconfirm that position: that no individual will be relocated before the safeguards—including the appeals mechanism, the training and the capacity-building—are in place? And when will the date be for when relocations of individuals can happen? I ask because we will be informed in Parliament that all of those safeguards are in place; not that they will be in place or are being worked towards, but that they are in place.

[Lord Stewart of Dirleton (Con)]

I can answer the first part of the noble Lord’s question in the affirmative. On the second part, I cannot give a date.

Illegal Migration Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I hope to be able to provide that reassurance. Again, with reference to the important point that the noble Lord takes up, which is fully appreciated by the Government Front Bench, I will refer to that in the course of my submission to your Lordships.

I repeat: if it was considered that there were exceptional circumstances, a person would not be removed to his home country. Coming as quickly as I may to the point just raised in an intervention by the noble Lord, Lord Cashman, the country to which they return would be a country considered to be a safe one. A person would not be removed to their home country but at the same time would not be removed to a country where they would be exposed to the same level of risk as they would by dint of their sexual orientation.

If we were to seek to remove a third country’s national to any of the countries listed under Schedule 1 and that country were prepared to admit them, those persons would have the opportunity to make a serious harm suspensive claim. Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Such an individual would not be removed to that country if their claim was accepted by the Home Office or upheld by the Upper Tribunal on appeal. So I submit respectfully to the House that the Bill already provides for individual assessments—the very individuality for which the noble Lord, Lord Purvis of Tweed, called in his powerful submission on these important matters. The Bill already provides for that degree of consideration of individual facts and circumstances for which the noble Lord, among others, has called. As such, I consider that Amendment 20, advanced by the noble Lord, Lord Purvis of Tweed, is unnecessary.

[Lord Purvis of Tweed (LD)]

The Minister might be able to help me. Where does the Bill outline the process for that individual review of the individual circumstances?

[Lord Stewart of Dirleton (Con)]

My Lords, in the making of the serious harm suspensive claim, those individual circumstances would be outlined.

[Lord Purvis of Tweed (LD)]

My Lords, the claim can be made only after the notice is provided, but the Minister just told us that there would be an individual process before the notice was provided. Is that correct?

[Lord Stewart of Dirleton (Con)]

My Lords, I do not think I did. The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Hence there is consideration of individual facts and circumstances.

On Amendments 19, 21, 24 to 28 and 37, I make an observation, namely that much in Clauses 5 and 6 and Schedule 1 draws on existing immigration law dating back some 20 years. To that extent, the provisions contained therein are not new; they provide necessary clarity as to the country to which a person may be removed.

As regards the consideration of the status of countries as places to which persons can be removed safely and which are on the safe list, that list has been added to over the years. It is instructive that some of the countries added to the safe list in terms of the Nationality, Immigration and Asylum Act 2002 were added during the period when the party opposite was in power: in 2003 Albania and Brazil; in 2005 India, Ghana for men and Nigeria for men; in 2007 Gambia for men, Kenya for men, Malawi for men, Mali for men, Mauritius, Montenegro and Sierra Leone for men—I merely exemplify. I reiterate that these are not novel provisions. They provide the necessary clarity as to the country to which a person may be removed.

The noble Lord, Lord Alton of Liverpool, raised a matter concerning the nature of the—

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[Lord Stewart of Dirleton (Con)]

My Lords, I suspect that nothing I could say from the Dispatch Box will alter the fixed purpose of the noble and learned Lord in any event, but I do repeat my undertaking to write to him on the topic.

I was about to address the matter raised by the noble Lord, Lord Purvis of Tweed, in relation to secret agreements. The Government must retain, I submit, the ultimate discretion over the amount and detail of any information shared with Parliament, but the Government remain committed to principles of transparency and positive engagement. This is considered on a case-by-case basis, finding a balance proportionate to the level of public interest.

[Lord Purvis of Tweed (LD)]

If that is the case, by definition, these agreements will not be treaties, and these agreements will not have gone through the CRaG process, and therefore they will not be binding.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat the point. The Government retain discretion to enter into agreements and discretion in relation to the level of detail to be shared.

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[Lord Stewart of Dirleton (Con)]

In setting the benchmark for countries that are safe for persons to be sent to, the Government are looking at it from the point of view of the objectives of the Bill. We are not looking at it from the point of view of British citizens travelling abroad.

The Bill already includes adequate safeguards to protect those in fear of persecution based on their sexual orientation, gender identity or other protected characteristics, or those who are fearful of onward refoulement. I say again that these amendments are unnecessary, and therefore invite the noble Lord, Lord Carlile, to withdraw Amendment 19. Although we will not be voting tonight, for reasons explained, I urge the noble and learned Lord and other noble Lords—

[Lord Purvis of Tweed (LD)]

Can the Minister give clarification on the point I raised that he has not replied to—the interaction not with Section 80AA of the Nationality, Immigration and Asylum Act 2002, which will be amended by this Bill, but with the definitions of a safe third state under Section 80B of that Act? How will they interact? The asylum claims by persons with a connection to a safe state has the definition, as I referred to, of a safe third state under the 2002 Act. That is not being amended by this Bill. The definition of a safe third state in the 2002 Act, which will still be on the statute book, unamended by this Bill, states that the safety is defined if they will receive protection in accordance with the refugee convention. How will they interact? We have the 2002 Act still on the statute book, where a state that is not a signatory to the refugee convention is defined as a non-safe state, but, as the Minister has told us, under this Bill the same is not being applied.

[Lord Stewart of Dirleton (Con)]

My Lords, as I stated at the outset, the position is that the provisions for the ability of people to bring applications for serious harm suspensive claims allow for scrutiny of the safety of any location to which a person would be sent.

I was on the point of saying that, although we will not be voting this evening, I none the less urge the noble and learned Lord, Lord Etherton, and other noble Lords not to press their amendments.

Northern Ireland Protocol Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I stress, not for the first time from the Dispatch Box by myself or my noble friends on the Front Bench, that the Government’s preference remains for a negotiated solution.

The Chamber and the other place have heard from representatives of the unionist community that the presence of the European Court of Justice in the protocol is at the heart of the democratic deficit issue. Absent the provisions of Clause 20, we could end up in an incoherent position whereby substantive provisions of the protocol are disapplied but new CJEU case law associated with those provisions continues to apply. For that reason, and the others I have outlined, I urge the noble Baroness to withdraw her amendment. I emphasise that bringing back the democratic institutions in Northern Ireland is the Government’s priority.

The noble Baroness, Lady Ritchie, my noble friend Lord Cormack and others raised the matter of engagement with Northern Ireland politicians. I look to the noble Lord, Lord Empey, as well, on this matter, and the noble Lord, Lord Dodds of Duncairn, touched upon it too in his submission to your Lordships at this stage. This is an important point. The Government have committed to ensuring that representatives of the Northern Ireland Executive are invited to be part of the United Kingdom delegation in meetings of the specialised and joint committees discussing Northern Ireland matters, which are also attended by the Irish Government. Also, when the Northern Ireland Executive was functioning, the then Foreign Secretary regularly met the First Minister and Deputy First Minister of Northern Ireland, along with the Secretary of State for Northern Ireland, to discuss the protocol.

However, to reiterate the principal point, the point which brings this Bill before your Lordships’ House, the institutions are not functioning, and precisely because of the protocol. We will continue to engage, but the protocol has made things that bit more difficult.

[Lord Purvis of Tweed (LD)]

The Advocate-General will have had the opportunity to reflect on a previous day in Committee, when concerns about the single electricity market were raised. A key component is EU law, which is not in question. How does the Advocate-General anticipate that the joint regulatory system operating under our approach and that of the EU can operate if EU law cannot be interpreted?

[Lord Stewart of Dirleton (Con)]

My Lords, interpretation of foreign law is a matter with which all three jurisdictions in the United Kingdom are familiar. With the noble Lord’s leave, because my remit does not extend to the operation of the single electricity market, which, as he said, was touched upon by the noble Lord, Lord Hain, in an earlier group, I will defer to my noble friends on the Front Bench and will write to the noble Lord on that point. I am grateful to him for his forbearance.

I cannot properly address the possibly important proposition raised by the noble Lord, Lord Murphy of Torfaen, in his submission to your Lordships, anent having the Government of Ireland lead the European Union in terms of negotiations. That matter will have been heard by others in the Government and given appropriate significance. It is a novel proposition expressed with the noble Lord’s customary force. I am sure that the Government will look at it.

The noble Lords, Lord Dodds of Duncairn and Lord Empey, gave us the historical background and again laid emphasis which was valuable to us all regarding the importance of the cross-community aspect of the Belfast/Good Friday agreement. As I have said, briefly, the CJEU’s position has been identified as a major obstacle.

Your Lordships’ Committee heard something about the value to be given to polling; I think the noble Baroness, Lady Hoey, raised that as an earlier stage, contrasting polls with actual democratic exercises. However, I can say to the Committee that polling carried out by Queen’s University in Belfast has indicated that with people who have concerns about the operation of the protocol, the CJEU and its presence and status was identified as a significant problem.

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[Lord Stewart of Dirleton (Con)]

With the utmost respect to my noble friend’s question, I do not feel I can go further from the Dispatch Box on what has taken place or what I consider likely to take place in negotiations from this point.

[Lord Purvis of Tweed (LD)]

Will the Minister give way?

[Lord Stewart of Dirleton (Con)]

Before I do, I say that, in response to an earlier point on which I undertook to write, I am notified from the Box that the matter of the single electricity market and the European Court of Justice’s jurisdiction is covered in a letter being sent to the noble Lord today.

[Lord Purvis of Tweed (LD)]

That gives me an opportunity to thank the Minister for his efficiency. I look forward to reading the instant letter that is on its way.

I have a point on Article 2 and the rights associated with it. I seek some reference from the Dispatch Box, because the concern that exists, as I understand it—and I am not a lawyer; that is my declared interest—is that the directives providing the rights under Article 2 are interpretive. Therefore, if there are changes to those founding rights—or updates, interpretations or case law—there needs to be a mechanism by which we will adopt that, otherwise those rights under Article 2 are not being upheld, as I understand it. But if under the Bill the court is prohibited from having that role, what will be the mechanism while we interpret those European directives, which are protected under Article 2?

Northern Ireland Protocol Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I thank all noble Lords who have participated in this debate, which was short because, as the noble Lord, Lord Purvis of Tweed, recognised in introducing it, much of the material has been covered before. Noble Lords will, I hope, forgive me if, brevitatis causa, I do not go over all the arguments already deployed and will accept, that, because they have not been deployed, we understand where they apply in the context of this clause, and will bear them in mind when considering our responses.

Amendment 22, in the name of the noble Lord, Lord Purvis, removes the power in Clause 14(4). Clause 14 prevents those necessarily more broad and conceptual provisions from being relied upon, in the different legal context that will prevail under the Bill, to undermine the legal regime that the Government are putting in place for traders. The power in Clause 14(4) is important because it will allow Ministers to ensure, subject to the appropriate parliamentary scrutiny, that the exclusions made under the Bill are coherent. It may, for example, be necessary to make alternative provision where any other provision of the withdrawal agreement or protocol so far as it applies or relates to those exclusions is excluded. It could also be used to provide clarity as to how the horizontal exclusions referred to in Clause 14(1) interact with other exclusions in domestic law.

The noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, sought examples of how it would work out in practice. I ask the Committee to bear in mind that the position in which we are at present is one of anticipation of what will be required in relation to a dynamic situation.

The powers to make secondary legislation allow us to flesh out the precise technical or administrative details of the new regime. The powers also need to be broad to ensure that the Bill can address issues that will arise in future as EU rules continue to change. The Government submit that the powers are both necessary for the legislation to be operable and have been appropriately limited prior to their implementation. As I said earlier, I do hear the criticism in relation to breadth offered by various noble Lords in the debate today and at other stages.

The noble Lord, Lord Browne of Belmont, made points reminding the Committee of the context in which the Government bring forward this legislation, and I am grateful to him for his qualified support. The points he made were no less powerful for having been made before, in the course of various debates we have had at earlier stages.

The noble Baroness, Lady Chapman of Darlington, from the Opposition Front Bench, refers to the way in which more and more laws appear to be being cast in this fashion, with more and more use of delegated powers. I invite the Committee to consider that, in the case of this Bill, the Government are seeking to legislate in such a vital area, as the noble Lord, Lord Browne of Belmont, reminds us.

The noble Baroness speaking from the Opposition Front Bench posed a number of technical questions. The questions she posed perhaps require an answer in more detail than I am able to give from the Dispatch Box, and perhaps than would be desirable to the whole Committee—but, if she will grant me forbearance, I will write to her.

I have not yet addressed the question of Clause 14 standing part of the Bill. It will support the coherent functioning of the Bill. It is important to ensure clarity in relation to the interaction between excluded provision and any wider provisions in the protocol or withdrawal agreement to which such provision relates. Subsection (1) gives effect to this by confirming that any provision of the protocol or withdrawal agreement is excluded provision to the extent that it would apply in relation to any other excluded provision. Subsections (2) and (3) set out further the kind of ancillary provision that may be excluded.

I discussed subsection (4) in addressing the amendment proposed by the noble Lord, Lord Purvis of Tweed, but I provide further assurance that the Bill seeks to establish a coherent domestic regime and that regulations can be made under it in connection with any provision of the protocol or withdrawal agreement to which this clause relates. The Government’s position is that the clause is important to insulate fully any excluded provision from being subject to obligations arising from other provisions of the protocol and withdrawal agreement.

I think I am following the mood of the Committee by not expressing myself in as much detail as my noble predecessor, my noble friend Lord Ahmad of Wimbledon —or Wimbledon of Ahmad, as he was prepared to style himself earlier—dealt in, but the Committee as a whole will recognise that this provision is tied up with its predecessor.

I hope that, at least at this stage, I have said enough to persuade noble Lords not to press their amendments.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Advocate-General and I will be brief. I welcome his offer to write to the noble Baroness and those who have taken part in the Committee. The extremely pertinent question that was asked about the Government’s estimate of the number of regulations under the Bill that may be necessary to bring about a new regime is really important, so it would be helpful if the Minister could include it in his response.

I found it very interesting when he said that part of the reason these powers needed to be so extensive was that they needed to be sufficiently flexible for the Government to bring forward regulations when the EU changes its rules. I do not know how that brings about a response to the democratic deficit. Under the dual regulatory regime that will be put in place, we will be in the almost farcical situation that whenever the EU changes any of its rules, Ministers will bring to this Chamber negative instruments that will then be nodded through. There may be a fig leaf because it has the Crown on top of it, but it is not necessarily meaningfully different as far as people having an input.

My final element is perhaps for the correspondent of the noble Lord, Lord Browne. I understand and appreciate the frustration, and perhaps our considerations in Committee are long and tedious, but I have the liberty of putting forward amendments. They may frustrate or bore Ministers, but I am lucky to have that liberty. We cannot do that with statutory instruments, which are unamendable, so we do not have the opportunity to ask questions, tease out, challenge and maybe get concessions or further clarifications. If that is the case for framing an entire new system, that is really problematic.

However, on the basis of the Minister’s welcome commitment to write, in the meantime I beg leave to withdraw.

Northern Ireland Protocol Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Baroness for her intervention, and I hope I will be able to, if not clear it up directly, refer the noble Baroness to the statements in the Order Paper. Perhaps I may say, in relation to the amendments with which we are currently engaged in relation to publication of the Government’s legal advice, that it may well be—and I think I made the same observation to my noble friend Lady Altmann—that these points might be dealt with better in relation to later groups which will address the question of the protocol and the amendments which the Government propose. I give way to the noble Lord.

[Lord Purvis of Tweed (LD)]

The noble and learned Lord has just told the Committee that the problem is with the implementation of the protocol. In his Second Reading winding speech he said that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

So, which is it?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, the problems with which we are grappling lie in the implementation of the protocol: I think the protocol has given a basis upon which these implementations may be made.

[Lord Purvis of Tweed (LD)]

Is this the noble and learned Lord correcting the record now from his Second Reading speech? I am quoting directly from Hansard that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

But he is telling the Committee today that it is in its application.

[Lord Stewart of Dirleton (Con)]

The noble Lord promised at the very outset of Committee, when he opened the earlier debate, that this inconsistency would be pounced upon, and he has returned to the point. My answer to him is that the implementation has given rise to the difficulties we now face, and that the protocol has permitted that implementation to take place.

[Lord Stewart of Dirleton (Con)]

My Lords, the diversion of trade and the effects upon the confidence of the unionist community in their membership of the United Kingdom have given rise to the difficulties we now face.

As I was saying before dealing with that spate of interruptions from noble Lords, it has become apparent that one of the communities—I remind your Lordships of the importance of the concept of consent in the Belfast/Good Friday agreement—has recognised that the CJEU is a part of the problem, as unionist parties have cited the CJEU as a key driver of a major democratic deficit. The Bill therefore seeks to ensure that Great Britain and Northern Ireland courts will have the final say over the laws that affect their citizens. It will permit a referral mechanism to the Court of Justice of the European Union, recognising legitimate EU interests and supporting north-south trade. We consider this to be a reasonable step which places the matter in line with normal dispute resolution provisions in international treaties.

[Lord Purvis of Tweed (LD)]

On that point, would the Minister be able to cite any other agreement the UK has signed where the dispute resolution mechanism affords the UK the ability to bring forward unilateral legislative solutions which are contrary to the agreement we had signed? What other examples can he cite?

[Lord Stewart of Dirleton (Con)]

My Lords, that question brings me on to dealing with the terms of the argument in relation to Article 16, about which we have had some submissions from the noble Lord himself, the noble and learned Lord, Lord Judge, the noble Lord, Lord Dodds of Duncairn, and the noble Baroness, Lady Ludford. Triggering Article 16 would not solve the problems of the protocol. It would only treat some of the symptoms, without fixing the root causes of those problems. It has inherent limitations in terms of its scope. Such safeguard measures might address trade frictions but not the broader identified impacts of the protocol such as I have been founding upon. The legislation that the Government propose provides the comprehensive and durable solution required and certainty for businesses and the people of Northern Ireland.

[Lord Stewart of Dirleton (Con)]

My Lords, as your Lordships have heard from my noble friend Lord Ahmad of Wimbledon and the noble Lord, Lord Bew, this is not identified as an inconsistency by our counterparties in relation to this matter.

The Government’s legal position is that our legislation is necessary and justified, and we make that assertion without prejudice to our position in relation to Article 16—again, as your Lordships heard from my noble friend Lord Ahmad of Wimbledon earlier. Article 16 is expressly limited. It is the Government’s view that it would not solve all the societal and political issues identified, including those identified today in some of your Lordships’ contributions to the earlier debate, whereas the Bill provides a comprehensive solution to those problems.

The noble Lord, Lord Campbell of Pittenweem—who in another context is my learned friend—referred me to the examples I cited when winding up at Second Reading of cases which set out the doctrine of necessity. The Canadian fisheries case concerned the Convention on Cooperation in the Northwest Atlantic Fisheries, which was a treaty. The Hungary-Slovakia case to which I also referred was a dispute about an agreement between the two parties for navigation of a river and the construction of infrastructure. In any event, I think the answer to his point is that the concept of necessity and its application in these circumstances is admitted within the articles of state responsibility.

[Lord Purvis of Tweed (LD)]

I will refer to this in the next group, but the Minister might want to add a little extra with regards to the case he cited: the International Court of Justice threw out the Hungarian case on invocation of necessity. It said that

“Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it about.”

I think there are some similarities in what we are hearing now, but could the Minister confirm that the ICJ did not accept Hungary’s case?

[Lord Stewart of Dirleton (Con)]

My Lords, in any case, there will be parties that are disappointed to a greater extent than others. The point is that one party proposes. That party does not determine the question; the determination of that question falls to someone else.

In relation to the point made by my noble friend Lady Altmann, our preference for negotiation clearly remains. As the Committee has heard, that negotiation is not interrupted or affected by the Bill moving through your Lordships’ House.

Northern Ireland Protocol Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Committee stage
Tuesday 25th October 2022 Lords Chamber

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, as we approach what I think will be the final series of amendments for discussion tonight, I am grateful to all noble Lords for their thoughtful and entirely well-intentioned contributions to this important debate.

Clause 1 summarises the effect of the Bill and gives vital clarity on how it will function. The noble and learned Lord, Lord Judge, was critical of its drafting—indeed, of its presence in the Bill itself. He may be right to be critical but there have been, and will always be, changes in the manner in which legislation is drafted; there certainly have been over the past few years. In a matter of this sort, it is perhaps important as a matter of perception, given the history to which some contributors among your Lordships have referred, that the Bill carries assurances in Clause 1.

The clause sets out that the Bill makes domestic provision in connection with the disapplication of specific areas of the Northern Ireland protocol that are causing problems. It also sets out that the Bill provides Ministers with powers in connection with the further disapplication of additional areas of the Northern Ireland protocol according to specific purposes, as well as powers to make new domestic arrangements. The clause also clarifies how other legislation, such as the important Acts of Union, is affected by the Bill. I recommend that the clause stands part of the Bill.

Clause 2 will underpin the essential functioning of the Bill by confirming that any part of the protocol or withdrawal agreement that has been excluded by the Bill’s provisions has no effect in domestic law. I think it is recognised around the Committee that, at this point, we are coming away from the preamble of Clause 1, as we might call it, into the heart of the Bill and what it intends to accomplish. I certainly took the noble Baroness, Lady Hoey, and the noble Lords, Lord Morrow and Lord Browne of Belmont, to understand that fully when they talked about ripping the heart out of this Bill through these proposed amendments.

The noble Baroness, Lady Hoey, and others, including the noble Baroness, Lady Chapman of Darlington, referred to the difficulties. I think that, wherever it stands on this Bill, the Committee is united on the fact that there are grave difficulties in Northern Ireland. I had the honour of briefly meeting the commercial director of McCulla Ireland on a visit to your Lordships’ House; I listened with great interest and concern to the matters raised by him.

The vital approach of these clauses is to amend the relevant provisions of the EU withdrawal Act that currently give domestic effect to the protocol and withdrawal agreement. This technical provision is, as noble Lords have recognised, vital for the Bill to function as, without it, there may be a lack of clarity as to which of the existing protocol and EU law regime, on the one hand, and the revised operation of the protocol, on the other, has effect. Where this Bill or its powers do not exclude a provision in the protocol or withdrawal agreement, that provision will continue to have effect via the EU withdrawal Act, as now. In answer to a point made in a debate on an earlier group, I emphasise that what the Government are proposing is not the ripping up of the protocol but directed action to those parts of the protocol that are not working. The Bill seeks to leave untouched the remainder of the protocol’s passages that are providing benefit, as was always intended to be the case. I therefore recommend that this clause stands part of the Bill.

Clause 3 supplements Clause 2 and will remove the requirement for courts to interpret relevant domestic law in line with the withdrawal agreement in so far as that would lead to an interpretation of domestic law that is incompatible with the Bill and any regulations made under it. This is done by the amendment of the relevant provision of the EU withdrawal Act, which currently requires courts to interpret relevant separation agreement law and domestic law consistently with the withdrawal agreement. Instead, it is made clear that no such interpretation should be made if this would be incompatible with provisions of the Bill or any regulations made under it. It is vital to provide certainty as to how the regime should operate, so I recommend that this clause stands part of the Bill.

We have had, I submit, a lengthy and important debate during this stage of the Bill. I seek noble Lords’ forbearance—

[Lord Purvis of Tweed (LD)]

My Lords—

[Lord Stewart of Dirleton (Con)]

I am coming to the noble Lord’s point. I am not proposing to wind up immediately. I acknowledge the importance of the debate we have heard. I pray for noble Lords’ forbearance if I do not respond to every point that has been canvassed specifically in relation to the doctrine of necessity, which we had a debate about in relation to the earlier group.

I anticipate what the noble Lord, Lord Purvis, is about to say. He put certain points to me in relation to the information that he had from the Library of your Lordships’ House. He cites the occasions on which the doctrine of necessity has been founded and outlines significant aspects of those cases to your Lordships’ House, but every legal case will stand on its own merits, and comparison of individual facts and circumstances does little to advance the argument as to the role of necessity in the unique circumstances with which your Lordships’ House is faced. Therefore, with the utmost respect to the noble Lord, the point he makes is of no value.

[Lord Purvis of Tweed (LD)]

I am grateful for the answer. I respectfully believe that my point had value, because if the Government are using precedent and customary law, it is relevant to highlight that it has never been successfully invoked, and it has never been even attempted to be invoked in the way that this Government are doing. Since we are approaching customary international law, it is worth having that on the record.

My specific question was whether the Government’s interpretation of invoking necessity can be permanent, or whether the Advocate-General believes that I am correct with the ICJ stating in clear terms on many occasions that invoking necessity can only be a temporary response of wrongfulness, for grave and imminent individual aspects, but the breach is still there. Or do the Government believe that using necessity can be permanent?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for canvassing that. Again, I accept that it is an important point, as are all those that have been made around your Lordships’ House today.

Not all principles of international law are tested before a court, and acceptance by the international community of a particular practice, or codification by relevant institutions, as in the articles on state responsibility, can provide very significant precedent. Necessity provides a justification for non-performance with specific terms of the protocol, for as long as the circumstances justifying necessity persist. That relates to the temporal point which the noble Lord makes. The relevant circumstances could last for a significant length of time, so it is not necessarily a short-term justification.

Northern Ireland Protocol Bill

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

2nd reading
Tuesday 11th October 2022 Lords Chamber

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I begin by expressing my appreciation for the very large number of thoughtful and informed contributions we have heard during this debate. It has been an honour to have heard it and now to become a part of it. It has grappled with not only the grave political and constitutional matters before us but has cited the Marquess of Salisbury, by my noble friend Lady Nicholson, Montesquieu and The Spirit of the Laws by the noble Lord, Lord Morrow, Shakespeare’s “The Merchant of Venice” by my noble friend Lord Moylan and that peerless advocate and exemplary parliamentarian Sir Edward Carson by the noble Baroness, Lady Hoey. The debate also heard the expression “Piss off” used by the noble Lord, Lord Russell of Liverpool, which I had perhaps not anticipated hearing in a debate in your Lordships’ House.

On behalf of the whole House, I am sure, I echo the words of the noble Lord, Lord Rogan, and others on the loss to our counsels constituted by the death of Lord Trimble. I also echo his comments on the loss to Lord Trimble’s community, the whole of Northern Ireland and his family.

Before I turn to the points raised by various noble Lords, I will briefly restate the reasons for introducing the Bill. The Northern Ireland protocol was agreed with the best of intentions, to ensure that the Belfast/Good Friday agreement was protected in all its dimensions as the United Kingdom left the European Union. The departure of the United Kingdom from the European Union is, as the noble Baroness, Lady Fox of Buckley, put it so trenchantly, a UK matter. It is not to be balkanised in terms of how it played out in London, Northern Ireland, Scotland or Wales. It is a United Kingdom matter.

But in its practical operation, the protocol is causing practical problems for people and businesses in Northern Ireland, including disruption and diversion to east-west trade. That disruption is present in the rest of the United Kingdom and it is causing significant costs and bureaucracy for businesses and traders.

Moreover, political life in Northern Ireland is, as your Lordships have heard on numerous occasions, built on compromise and power sharing across communities. However, as noble Lords have also heard, the protocol does not have the support of all communities in Northern Ireland. The noble Lord, Lord Dodds of Duncairn, was but the first to explore this point. As a result, we are seeing political and social stress in Northern Ireland, including the non-functioning of the Northern Ireland Executive and Assembly. It is clear that the protocol is putting strain on the delicate balance inherent in the Belfast/Good Friday agreement.

It remains the Government’s preference to reach a negotiated agreement on the protocol. I could not associate myself more with the comments from all sides of your Lordships’ House—the noble Lords, Lord Triesman and Lord Bach, on the Benches opposite, the noble Baroness, Lady Wheatcroft, and my noble friend Lord Tugendhat—on the importance of negotiation and the hopes the Government have that it will ultimately bear fruit. My right honourable friend the Foreign Secretary has reiterated this. He and Vice-President Maroš Šefčovič have agreed that officials should meet to discuss technical solutions. The Bill contains provisions to implement any future negotiated agreement with the European Union. I can give an assurance at this stage to my noble friend Lord Frost that we are clear that negotiations must be able to address the full range of serious issues caused by the protocol. The Bill is set up to enable us to do precisely that.

In answer to a point raised quite early in the debate by the noble Lord, Lord Ricketts, our EU partners and friends are aware of this Bill. They are aware that negotiations continue and recognise that there are problems to resolve.

My noble friend Lord Forsyth of Drumlean spoke early in the debate about the manner in which the protocol has been operated. I will revert to that point when I discuss, at a level I think appropriate to Second Reading, the implications of the Government’s stance for international law. However, I must stress to your Lordships’ House that the problems created by the protocol are urgent and require swift action. The Taoiseach, the Irish Premier, said publicly last week that the protocol as it was originally designed was a little too strict. These problems are of long standing and we now seek to address them. But while we engage in dialogue with the European Union, we must also ensure that we have covered all bases and that the United Kingdom Government have the ability to implement durable solutions in any scenario.

I now propose to turn to some of the specific themes and questions raised in this evening’s debate. I do that against the undertaking that if I should fail to refer specifically to the contributions of any of your Lordships or fail to give consideration to any of your Lordships’ arguments proper to this stage of Second Reading, I am happy to engage with your Lordships in writing or in person in the corridors of this place, or for that matter, elsewhere.

The matter that featured most strongly in your Lordships’ deliberations today arose out of the matter of international law and the argument from necessity. The Government have already published a statement of their legal position on the Bill and their position is that it is lawful and necessary. The noble Lord, Lord Birt, from the Cross Benches and my noble friend Lord Kirkhope of Harrogate seemed to suggest to your Lordships that the voice of the legal profession was as one in saying that this was not the case. That is not so. The Government have a worked-out position in international law and there is no reason why we should not take it forward.

The United Kingdom exercised its sovereign choice to leave the European Union single market and customs union. I discern that that course was not universally approved by your Lordships’ House. But the peril that has emerged was not inherent in the protocol’s provision. As to the universal opposition, which some of the contributors to this debate seemed to throw up, it is in the nature of law that it is often adversarial. It is in the nature of law that parties will have different approaches, just as it is in the nature of sincere friendship that sincere friends will often disagree, even on the most fundamental matters.

The strain that the arrangements under the protocol are placing on political institutions in Northern Ireland, and more generally on socio-political conditions, will leave the Government with no option but to take action if they cannot reach a negotiated solution with the European Union.

I listened with great interest to the comments as to law made not only by the many distinguished lawyers on the Benches of this place but from lay people concerned about the implications of the step that the Government were proposing to take. Opening for the Opposition from the Front Bench, the noble Baroness, Lady Chapman, began more correctly—or less wrongly—by saying that it was “likely” that this would amount to a breach of international law. Then she recovered the party line and said that it did breach international law. The curiosity was that I think that the lay people contributing to this debate about international law were, in fact, nearer to the truth than distinguished commentators such as the noble Lord, Lord Pannick, or my noble friend Lord Howard of Lympne, because the fact of the matter is that it is not possible—

[Lord Purvis of Tweed (LD)]

I do not want that honour.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord and will revert to him in due course. It is not possible to equiparate international law with domestic law. There is simply not enough of it and it is too dependent on facts and circumstances which will not apply from case to case to come up with a precedent which would allow noble Lords who have spoken in these terms to speak with such certainty.

Should I address the noble Lord, Lord Purvis of Tweed, at this stage? At an early stage in these proceedings, he spoke about the nature of the plea to necessity. I say again that it is very different from the interpretation of a domestic statute. Of course in international law there are similarities with domestic legislation, and of course in international law, often being a matter of paction, there are similarities with the law of contract. But it cannot be equiparated with, to use a metaphor that emerged from the Cross Benches, a contract for the sale of sausages. It is too complex and too fact-specific. That point was continued by the noble Baroness, Lady Suttie, my noble friends Lady McIntosh of Pickering, Lady Altmann and Lord Kirkhope of Harrogate, my noble and learned friend Lord Garnier—I am sure that I have missed others out; as I said, my undertaking is to engage with your Lordships to assist them in moving this forward—and, I decipher from my scrawl, the noble Lord, Lord McDonald of Salford, speaking from the Cross Benches. The assertion that the Government’s position breaches international law is too bold and lacking in nuance. I submit that we are entitled to proceed on the basis that we anticipate that the protocol will be operated in a manner that reflects the unique and serious circumstances against which it was drawn up.

The doctrine of necessity was approached by the noble Baroness, Lady Crawley, and my noble friend Lord Hannay of Chiswick in particular, who equiparated—if I misattribute this to my noble friend, I apologise to him and will happily correct it—invocation of the doctrine of necessity with the law of President Putin. Far from it: there is authority for the existence of a defence of necessity dating back at least to the early 19th century. It was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube. It formed part of the International Law Commission’s articles on state responsibility, drawn up in 2001, as the Government’s statement on their legal position notes. In 1995, the Government of Canada justified steps taken to protect the Grand Banks fisheries on the basis that it was necessary to do so. If fisheries in the Atlantic are important, how much more so is the extension of democratic rights across the whole of this United Kingdom?

Invoking the doctrine of necessity does not repudiate international law or the international rules-based order. It is part of the international rules-based order. The noble Baroness, Lady Kennedy of The Shaws, my noble and learned friend Lord Clarke of Nottingham, the noble Lord, Lord Bach, and my noble friend Lord Tugendhat stated that the Government were undermining the rule of law and that this constituted a flagrant breach of the rule of law. Again, by invoking the doctrine of necessity, we operate within the framework of international law and—

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, again, with the utmost respect, I decline to give way to the noble Baroness. She has my assurance that I will engage with her.

[Lord Purvis of Tweed (LD)]

The point is to answer noble Lords.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord; I will not give way.

It remains the Government’s preference to reach a negotiated agreement on the protocol, and further discussions are now under way with our European Union counterparts with the aim of identifying shared solutions. I can give my noble friend Lady McIntosh of Pickering repeated assurance of the importance of negotiation. We will continue to work closely with the European Union on the crisis of Ukraine, as we will with the United States and with all friendly powers and democracies throughout the world. We have always said that we want to fix the problems created by the protocol, in part so that we can focus our full collective energy on global challenges such as these.

The point was taken up at various points during the debate that the Bill threatens Northern Ireland access to Ireland and to the wider European Union single market. I stand before your Lordships in place of my noble friend Lord Caine, who I feel is far better equipped to answer these questions, drawing on his extensive experience of affairs in Northern Ireland. Again, he will undertake to engage with noble Lords on that point. Any perception of risk posed to the EU single market can be managed through market surveillance activities delivered by relevant United Kingdom bodies which will continue to prevent, deter and remove non-compliant and unsafe activity to protect the consumers of both the United Kingdom and EU markets. Market surveillance will follow the risk-based and intelligence-led approach as it does at present. As we have said all long, our preference is for a negotiated solution, and we stand ready to discuss appropriate assurances with the European Union.

The noble Baronesses, Lady Ritchie of Downpatrick, Lady Doocey and Lady Ludford, and the noble Lord, Lord Browne of Belmont, raised matters specific to agribusiness and dairy farming in particular. Again, I offer the House assurance that negotiations continue.

I am grateful to my noble friend Lord Frost for his account of the current economic situation and his summary of the historical situation in 2009 which my noble friend Lord Hannan of Kingsclere joined with his customary brio and, in the process, released a cat among the Liberal Democrat pigeons. I am also grateful to the noble Baroness, Lady Fox, whom I took to adopt the historical summary which my noble friend Lord Frost advanced.

I come next to the noble Lord, Lord Purvis of Tweed, who again very early in the debate raised the important point of an impact assessment. As the noble Lord pointed out, the Bill does not have an impact assessment. The full details of the new regime will be set out in regulations alongside and under the Bill, including economic impacts where appropriate.

Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime to ensure that it is as smooth and as operable as possible. The Government are getting on with that task now.

The noble Lord, Lord Russell of Liverpool, seemed to invoke the concept of historical inevitability in his contribution towards the end of the debate. I am no Marxist but I am by no means clear that his exercise in foresight in relation to society in Northern Ireland will prove to be accurate.

A matter of grave and, if I may say, fully appropriate interest to your Lordships is that of the breadth of the Henry VIII powers. The noble Lord, Lord Bruce of Bennachie, my noble friend Lord Northbrook, the noble Baroness, Lady Ritchie of Downpatrick, once again, my noble and learned friend Lord Garnier, and the noble Baroness, Lady Meacher, in particular, raised these matters, and I apologise to other noble Lords whom I have not mentioned by name.

The Bill provides specific powers to make new law where we are disapplying the EU regime and where such law is appropriate to make the Bill’s regime work. These powers are restricted. They can be used only in connection with certain provisions and subject matter of the protocol, for example changing valued added tax rules in Northern Ireland.

It is important to emphasise that we are engaged in negotiations. We are not, as the noble Lord, Lord Kerr of Kinlochard, said, engaging in blackmail; nor are negotiations, as the noble Lord, Lord Thomas of Gresford, said, engaged in attempting to bully the European Union; and nor, as my noble friend Lady Altmann suggested, have we by this proposal become an elected dictatorship.

These provisions are necessary. They allow the Government to act as quickly as possible to deliver new policy arrangements, for example to introduce the green and red lane for traders. Since the Bill was introduced in June this year, the Government have consulted extensively. There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.

I am being warned once again: noble Lords will doubtless be glad to see the back of me. The steps which we are taking are necessary to reflect the unique and dynamic situation in which the Bill passed in the other place.

In conclusion—

Northern Ireland Protocol: First Treasury Counsel

Debate between Lord Stewart of Dirleton and Lord Purvis of Tweed

Thursday 9th June 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Baroness for stating at the outset that she is aware of the terms of the convention. We do not discuss legal advice, but we have set out clearly the Government’s view that this would be lawful in international law. To go further I fear would risk trenching upon that convention. In relation to the specific question about the reading room, I shall consult with colleagues to see whether or not that position will be returned to in relation to this Bill.

[Lord Purvis of Tweed (LD)]

My Lords, if the noble and learned Lord had been in the previous debate, he would have heard of the serious concerns about our reputation around the world on this issue. He is also aware that his predecessor, in his letter of resignation, said that he was unable to reconcile his role as a law officer with the Prime Minister’s policy objectives. He said:

“I have endeavoured to identify a respectable argument”


on the basis of international law. We do not want “respectable arguments”; we want our reputation to be held in the world and we want law to be honoured. On the basis of the noble and learned Lord giving factual information about which he can say, have any MPs been given a draft text of the Bill to be consulted on?

[Lord Stewart of Dirleton (Con)]

I am not aware of that, but I would say that the Government abide by the convention that legal advice given to the Government is not disclosed, so I would be surprised if that had taken place.