Northern Ireland Protocol Bill

Baroness Altmann Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

Moved by

[Baroness Altmann]

Leave out from “information” and insert “and to lay before Parliament (a) a comprehensive United Kingdom economic and sectoral impact assessment of the legislation, and (b) a report on their consultations with representatives of all the main Northern Ireland political parties and business sectors, before the House considers the Bill at Report Stage.”

[Baroness Altmann (Con)]

My Lords, I would like to add my support to the remarks of the noble Baroness, Lady Chapman, and to her amendment; my amendment simply adds extra requests for what I believe is vital information to be provided to Parliament before Report stage. I would also like to express my gratitude to colleagues across the House for their engagement with discussions on this Bill, and indeed I would like to thank my noble friend on the Front Bench, who has also been generous with his time in discussing these issues.

The problems with this Bill are far deeper, more fundamental, and indeed more important, than Brexit. This is about right and wrong, about protecting parliamentary democracy and about the values that our country believes in and holds dear—the importance of keeping our word, trustworthiness, honesty, integrity. This Bill drives a coach and horses through these things: it seeks to tear up an international agreement signed recently, supposedly in good faith.

Besides the issues of international law that other noble Lords are much better qualified than me to comment upon, there are also serious constitutional consequences of allowing Ministers untrammelled powers to bypass Parliament, changing laws at will. No parliamentary democracy should be asked to accept this. If noble Lords do not make a stand now, I believe we are failing in our duties. Slowly, slowly, the usual freedoms and democratic norms we have lived by are being chipped away; Parliament must not become inured to these power grabs. It is time to make a stand before it is too late, for continuing down this path is heading us toward an elected dictatorship, with a supine Parliament that can be bypassed at Ministers’ whim.

Even aside from the legal and constitutional dangers, we have not been given, as the noble Baroness, Lady Chapman, explained, the necessary information on which to base proper assessment of how passing this legislation would impact the UK economy, important sectors of Northern Ireland and British business. Nor are we told the results of consultations that have taken place with all the main political parties and business sectors in Northern Ireland. My amendment calls for these to be provided as well.

The history of Ireland is full of turbulence created by one group overriding the wishes of others rather than working together to seek peace and a harmonious relationship. The Good Friday agreement achieved peace because we were part of the EU, but a hard Brexit has upended this. The idea that Britain can unilaterally force its own interests on the island of Ireland and still retain peaceful, fruitful trading and other relations is a fantasy. The Bill demands that the UK be the final arbiter of what constitutes a risk to the EU’s single market, or that the ECJ cannot ultimately arbitrate matters of dispute. This cakeism is unsustainable.

This Bill also risks upsetting our trading relations with the EU, and indeed the US, at a time when we need them to boost growth. The new Prime Minister has a chance to reconsider this Bill and set it aside in the interests of growth, I hope that he will decide at the very least to put it on hold, so that proper negotiations can take place and trust can be restored. The EU has offered concessions, and I believe we have a chance to find resolutions.

To restore our international standing, we must end this unilateralist, bullying approach and start recognising reality: that Northern Ireland is attached to the EU; it is not physically attached to Britain; passage of this Bill will force a border on the island of Ireland, which runs directly counter to the Good Friday agreement. My amendment calls for the Government to present to Parliament their economic impact assessment on all main sectors in the UK, including in Northern Ireland, and to include how they will mitigate, for example, the damage to the dairy, agri-food, and potentially electricity sectors, and to tell us before Report stage what they believe are the views of all main political parties and business sectors in Northern Ireland. I beg to move.

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[Lord Ahmad of Wimbledon (Con)]

One of my introducing Peers was my noble friend Lord Howard. He often said to me, “Tariq, when noble Lords get on their feet, as a minimum, they already have the answer to the question they are asking. They have probably also written a book about the subject”. I suggest that the noble Baroness has not written a book about regulations, although a number of our colleagues may have. I cannot specify a date at the current time, but I note the noble Baroness’s comments.

I hope that my noble friend Lady Altmann and the noble Baroness, Lady Chapman, are minded to withdraw their amendments.

[Baroness Altmann (Con)]

My Lords, I shall not detain the House. We have had a very good debate. I thank my noble friend for his words and beg leave to withdraw my amendment.

Baroness Altmann’s amendment (to Baroness Chapman of Darlington’s amendment to the Motion) withdrawn.

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[Lord Bew (CB)]

We are in a situation now where in Dublin it is accepted by those involved in the negotiation that they achieved a one-sided appropriation of this agreement. This then flows into the agreement of 2019. It was because of our weakness. We cannot undo it and we signed up for it—I get all that—none the less it is accepted by them that there is a problem. The problem cannot be met by saying “You signed up for it”, “Boris was a fool” or anything like that. It is a real problem at this moment. That is the key thing we are stuck with.

This agreement and the protocol say in numerous places—the former Lord Chancellor said it in the other place, so the Government have argued this very clearly—that it is about protecting the Good Friday agreement and for good measure protecting the integrity of the UK single market. This debate is rather different from the terms it has been couched in. I keep saying that the reality is about the interaction of a prior international agreement and the protocol agreement. There are different views of this.

While we are on this subject—regarding the evidence of Sir Jonathan Jones that was cited earlier—the Attorney-General in 2019 explicitly said in the other place, and it was repeated in this place, that there is a problem: where the protocol conflicts with the Good Friday agreement, the UK reserves the right to operate the existing prior international agreements. Who was working in the Attorney-General’s office then? I am certain there were some quite good lawyers when that happened.

We heard about Professor Mark Goldie’s observations, and they are absolutely true. He is a professor in public law in Cambridge who came to our committee in the Lords. I think Professor Boyle came to both committees. Professor Goldie listened to Professor Boyle, who I am certain does not support this Bill and who is much more open in principle to the arguments regarding international law, that the prior international agreement weighs heavily here. In the interaction of the two of them he personally argued Article 16 should be applied because you cannot demonstrate necessity unless it has been applied. I have often been attracted to that argument, but I am astounded by the number of Peers in this House who are mad keen for Article 16.

I am a historian, not a lawyer. I remember a few months ago when every civilised person was regarding the application of Article 16 and no one was saying “Oh, it’s in the treaty.” I remember the intensity of emotions—that this would be another foul act of disgraceful behaviour by the Government, even though it clearly is in the treaty. I am delighted there are so many converts today. I am not even sure; I think they might be right. It is a fashion change, not an international law change. The mood of the House has changed on this point, and nothing has changed in law.

I am not saying that Professor Goldie supports the Bill; I am certain he does not. As I said, I am not sure that Professor Boyle does either. Professor Goldie accepted the burden of Professor Boyle’s argument that it is very important to have upfront protection of the Good Friday agreement. The story about what international lawyers say—I am certain this will become even more complicated in this Chamber before this Bill finishes its passage—is a little bit more complicated. That is all I want to say. I am not saying that I know. I could not possibly say that sitting on this Bench with two very distinguished lawyers.

I am not making a claim about law but about history and what actually happened, how we got here and the mood on this, because that does rather matter. What I am saying is that the Government would be within their rights to say that there is a debate on this subject and there is a real problem. If you are not even talking—as most speakers today have not—about the interaction between the Good Friday agreement, the prior international agreement, and this agreement, then you are not even in the debate in any realistic way. They would have the right to say that.

[Baroness Altmann (Con)]

My Lords, with all due respect to the noble Lord, Lord Bew, and in due deference to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, I will now inject the perspective of an economist and businessperson.

I support Amendments 3 and 67 and will try to inject a different perspective here. The arguments about protecting the Good Friday agreement are of course important and real. However, it seems that, despite arguing that the UK has contributed to the problem—which is essentially part of the reason why the doctrine of necessity seems unable to be applied here—there are options open to the United Kingdom to respect the Good Friday agreement, including maintaining regulatory alignment. Were regulatory alignment to be maintained, the east-west problem would not necessarily arise—because the EU could be reassured that there is less of a threat to its single market—and the north-south element would also not arise. If the UK wanted to diverge regulatorily, it has the option to negotiate that. So there are practical resolutions within our power to protect the Good Friday agreement and the protocol.

If we cast our minds back to the awful Brexit and post-Brexit periods, an assurance was given to noble Lords, including myself, that there would be technical arrangements—alternative arrangements—that would permit the flow of goods across the border that could be tracked, with trusted traders and technology being introduced, that would mean that we would not have these problems of customs procedures. If those arrangements were to be in place, the problem would not arise. So again, the UK Government have the option of saying, “We will maintain regulatory alignment until we have introduced those arrangements”. That would allow us to be in a position where we would not be breaking international law.

I agree with the noble Lord, Lord Bew, when he said that, if there is a problem, we should try to find a compromise, but that again means negotiation and using the facilities we have signed up to ourselves rather than threatening to blow up the whole agreement. I urge my noble friends on the Front Bench to try to get away from the magical thinking that we can somehow square this circle by threats or by breaking international law—or even by threatening to break international law—and instead to get around the table and negotiate a reasonable way forward that gets away from this kind of argument.

[Lord Dodds of Duncairn (DUP)]

My Lords, this debate illustrates one of the issues deeply affecting Northern Ireland politics: trust and agreements. Noble Lords have talked about agreements entered into and then broken. One of the problems that exists for unionists at the moment in Northern Ireland is that so many promises and pledges have been made but have not been fulfilled. I referred in the earlier debate to the provisions of Article 50 and the joint report published on 8 December 2017, a commitment entered into by both the European Union and the UK Government. The noble Lord, Lord Caine, was present for some of the discussions we had with Theresa May in Downing Street when this matter was discussed. Provisions were inserted, and this was agreed by the European Union and the UK Government: no regulatory difference would exist unless by the express agreement of the Assembly and the Executive. That was ditched.

This has led to a situation—and this is just one example—where unionists now feel that their voice is not listened to and that commitments entered into are not accepted or followed through. This has led to a hardening of views across unionism generally, resulting in people now saying, “We need to see the colour of people’s money and actual delivery, not promises”. I listened with great interest to Steve Baker the other day, who said, “You know, unionists should choke down their concerns; they can count on us”. I have the greatest respect for Steve Baker and others in the Government, but quite frankly the days of counting on others and taking people’s word for it—even when international agreements are set aside during negotiations —have unfortunately gone.

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[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.

[Baroness Altmann (Con)]

Could I ask my noble and learned friend to amplify what it is in the way that the protocol is working that was not anticipated? The role of the European court was always enshrined in the protocol, so I am struggling to understand what has suddenly changed to require this unilateral action to get rid of the CJEU, rather than using the mechanisms within the protocol.

[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.