Northern Ireland Protocol Bill

Baroness Kennedy of Shaws Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, like so many others, I oppose this Bill because it contravenes the rule of law. First, there is this flagrant breach of international law and its serious implications for our global reputation. Others have mentioned our invocation of international law when we are denouncing Putin’s conduct in relation to Ukraine. How can we—as I sought to do last night—condemn China for its conduct towards Hong Kong in breach of the Sino-British agreement, an international treaty, when we are breaking an international treaty ourselves? It is this sort of shocking conduct which I am afraid will do great damage to our reputation around the globe for law and our commitment to it.

The Government claim the defence of necessity. The noble Lord, Lord Pannick, has very effectively demolished that. There has to be grave and imminent peril, and that is not the situation here, as the history of this Bill relates.

In addition to breaching international law, this legislation also puts at risk other legal obligations. I remind the House that the protocol was designed to do more than protect economic interests; it had a number of objectives, one of which was to protect the Good Friday agreement “in all its dimensions”. The House will remember that concerns about human rights and equality have always been at the heart of the conflict in Northern Ireland, and a lot of work has gone into addressing those problems—I do not have to explain what I am referring to. As a result, we have seen the creation of important legal remedies, as well as institutions such as the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which have expressed concern about this Bill.

Article 2 of the protocol provides that the UK has continuous obligations regarding human rights and equality in Northern Ireland. It provides that there shall be “no diminution of rights”. No diminution means that the people in Northern Ireland had rights before the UK left the European Union and these cannot be reduced as a result of Brexit. Rights can only stay the same or advance; they cannot regress.

As we know, Article 2 does not stand alone. It is supported by and must be interpreted in the light of other provisions of the protocol and the withdrawal agreement. In particular, there is an obligation on the United Kingdom for what is known as dynamic alignment in certain situations. That means keeping Northern Ireland up to date with developments in European Union law. Let me emphasise: protected rights in the Good Friday agreement that are underpinned by EU law may not be diminished as a result of Brexit and have to keep up with EU advances. Article 2 of the protocol gives that overarching guarantee. However, Clause 14 of this Bill provides that Article 13(3) of the protocol, which is on dynamic alignment, is to be disapplied immediately. Clause 20(2) provides that, in proceedings relating to the protocol, a court or tribunal is not to be

“bound by any principles laid down, or any decisions made … by the European Court”.

I am afraid that that does involve a departure. It is important to understand that this Bill ranges more widely than undermining only the trade and customs provisions of the protocol. The Bill presents a real danger to the protection of human rights provisions because of the powers that it gives to Ministers, which are not confined to trade. I remind the House of the law of unintended consequences. It could have serious implications for the citizens of Northern Ireland and their rights. That is yet another reason why this Bill should be abandoned.

[Lord Moylan (Con)]

My Lords, I do not want to put the noble Baroness on the spot. However, since she is speaking of rights, does she have any answer made by the noble Lord, Lord Dodds of Duncairn, that the protocol itself abridges the democratic rights of the people of Northern Ireland as guaranteed by the UN declaration and the European convention in the making of their own laws?

[Baroness Kennedy of The Shaws (Lab)]

I agree with the noble Lord, Lord Dodds, that the Bill is ill-conceived and does not consider the ways in which the overlapping provisions create real difficulties for the democratic rights of the people of Northern Ireland.

Northern Ireland Protocol Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Bew (CB)]

We are in political negotiations. Here is our problem; I have already explained it. When I tried to persuade the noble Lord, Lord Dodds, I said, “Just believe the British Government when they say that the Good Friday agreement is the dominant thing”. We can see now what has happened here. You only have to read the Dublin newspapers, to be frank, to realise what has had happened.

We cannot undo a negotiation that we lost. It is not the officials’ fault; the Prime Minister had lost an election and was desperate to get in and to make any kind of progress to justify her existence. You cannot undo this; I am not suggesting that it is possible. You lose, you lose—end of story, at one level. However, at another level, what it means is that the EU is committed to the Good Friday agreement, and it does not understand what it is committed to. You only have to read Michel Barnier’s memoirs to see that he has no idea about the importance of the east-west dimension and that his description of the north-south dimension is literally fantasy, which has been derisorily commented on in all sections of the Irish media.

We are bound into this agreement, but we cannot be bound into a fantasy. We have to unhook. We must have a good-faith negotiation in which we have to acknowledge the things that have gone wrong on our side and the EU has to acknowledge that the version of the Good Friday agreement it thought it had is not the real agreement. There is a strand three, for example, which talks about the importance of the east-west arrangements and so on. You can see how the original misunderstanding runs through all the texts and leads to the difficulties we are now in. To go back again to why I agree with the noble Lord, Lord Howard, we do not need to ask the EU to change its mandate. We need to ask it to understand its mandate. Its mandate is the agreement. It does not take long to read it, by the way. There is a strand three about the importance of east-west relations, although you would not know it from Michel Barnier’s memoirs. You would not know it, and you would not really know what the north-south relationship is either. So, that is one reason why this negotiation has some potential, because both sides have to come to terms with their errors in the past.

I conclude with one thing, because I have great respect for the noble Lord, Lord Hain, and what he said about Baroness Blood—as did the noble Baroness, Lady Ritchie. However, we also have to remember what other former distinguished Labour Secretaries of State said in acknowledging this difficulty. The noble Lord, Lord Mandelson—who was deeply involved in saving this process—said last week that he accepts that the Good Friday agreement and the protocol do not sit easy together; the tension is there. The noble Lord, Lord Murphy, talked about this in this Chamber as long ago as 6 December 2018. Distinguished Labour Secretaries of State know that there is a problem. The existence of the problem was not really acknowledged by the noble Baroness, Lady Chapman, earlier this afternoon.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in all this discussion, not enough is said about the horror of what was experienced in the years leading up to the Good Friday agreement. We are forgetting that. In the language of decency in the House of Lords, we are allowing ourselves to somehow not remember the full horror of that period. That horror was rooted in inequality, a lack of rights for certain people in the community, and a strong sense that the only way towards peace was to somehow protect the rights and equalities of people in Northern Ireland. You would not have got people to the table if there had not been a very honest discussion about the pain, loss and suffering that came out of those inequalities. I can say this as somebody who did more trials involving those Troubles than probably anybody in this House.