Northern Ireland Protocol Bill

Baroness Goudie Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Goudie (Lab)]

My Lords, I am a member of the European protocol sub-committee under the chairmanship of the noble Lord, Lord Jay, who tries to guide us at every meeting with great diplomacy. It is a great pleasure to serve with my colleagues on that committee. I welcome my great friend the noble Lord, Lord Ahmad, to the Bench and am so pleased that he is still here answering on this and on other issues—not just on PSVI for us today, or the Year of the Girl, but on this issue too. I further thank all those outside organisations which have sent very helpful information and offered to have meetings.

The Northern Ireland protocol is part of the EU withdrawal agreement—a formal, international treaty—that attempted to deal with several specific problems that Brexit generated for relations between Ireland and the United Kingdom, between Northern Ireland and the Republic of Ireland, and within Northern Ireland. Overall, the protocol has three main objectives: to preserve the integrity of the EU’s single market, ensuring that Ireland’s relations with the rest of the UK remained significantly unaffected; to prevent the creation of a hard border between Ireland and Northern Ireland; and to protect the Good Friday agreement in “all its dimensions”. As part of protecting the Good Friday agreement, Article 2 of the protocol aims to ensure that there is,

“no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement”

that deals with these issues.

The Northern Ireland Protocol Bill would break international law by the unjustified, unilateral breach of an international treaty with the European Union and thereby threaten a trade war between the UK and the EU. One central purpose of the Bill is to unilaterally disapply the trade and customs provisions of the protocol, which require some customs and regulatory checks on exports from Great Britain to Northern Ireland, but it also gives “extraordinarily sweeping powers” to Ministers —to quote Theresa May—and weakens the Article 2 protections for human rights in Northern Ireland. I have heard much evidence of this in the committee.

The Bill is unjustified. The legislation is unnecessary, because the purpose could be achieved through negotiation. The resumption of talks between the UK and the EU, halted since February, is welcome, and I hope that they will continue. The comment last Thursday by the Tánaiste that the implementation of the protocol might have been “a little too strict” allows a willingness to compromise.

The protocol does not threaten the Good Friday agreement, as alleged by some unionists and the Government; its main purpose is to protect it. Some have argued that the Good Friday agreement requires the consent of unionists to any significant political change in Northern Ireland, arguing that the protocol is designed to offset the dangerous impact of Brexit in such a change. That contradicts the fact that the consent of the people of Northern Ireland as a whole was not deemed necessary for Brexit itself; now it is held that the consent of one of Northern Ireland’s minorities is needed for an aspect of its outworking. There is nothing in the Good Friday agreement that requires that, although the protocol itself requires the consent of the majority of the Assembly after four years—cross-community consent if possible; otherwise a simple majority. The protocol will be subject to a democratic vote in Northern Ireland.

The Government have to seek to justify their breach of international law by reliance on the doctrine of necessity, which allows some breaches of treaties if an essential interest is threatened by grave and imminent peril. That is hardly the case and, as David Lammy argued when the Bill was first debated,

“there is not a serious Queen’s Counsel in the country who would support the use of the doctrine of necessity in the way in which the Government have sought to use it.”—[Official Report, Commons, 27/6/22; col. 51.]

The Bill weakens Article 2 of the protocol and hence allows a diminution of human rights in Northern Ireland. This is absolutely vital. As we have noted, human rights and equality protections are included in Article 2 of the Northern Ireland protocol to prevent the diminution of rights protections in Northern Ireland after Brexit and to provide remedies in local courts for breaches of this obligation. It references the list of human rights and equality provisions in the Good Friday agreement and backs them up by specifying the EU legislation that underpins them. The UK Government have claimed that the Bill does not undermine these provisions of the protocol, but that is not the case. It is true that the Bill excludes Article 2 from some of the powers that the Bill provides to Ministers to revoke other provisions in the protocol. But this apparent protection is misleading, because the Bill fatally undermines the operation of Article 2 in several other critical respects.

Because of time, I will just say that we have a piece of legislation involving a breach of the international rule of law itself, which is unnecessary and unjustified, which could provoke a disastrous trade war and which allows for the weakening of the structure of human rights and equality which underpin the Northern Ireland peace process. It should not be supported.