Northern Ireland Protocol Bill

Baroness Ludford Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, in a recent speech the vice-president of the European Commission, Maroš Šefčovič, said:

“You may not hear this often from a European Commissioner, but it is high time we got Brexit done”.


The irony of this Government’s position on the protocol and this Bill is that they seek to overturn an instrument that was part of the package their party so triumphantly said got Brexit done—whatever rewriting of history we have heard tonight. Perhaps Mr Šefčovič’s answer came last Friday when the Secretary of State for Northern Ireland, Chris Heaton-Harris, said:

“I want to be very positive about the chances of getting a negotiated solution. We are working in good spirits and in good cooperation … We need to show some progress on that”.


The noble Lord, Lord Hannay, reminded us that the gap is pretty small. The noises are hopeful and these Benches urge a rapid and constructive result to the negotiations on possible adjustments to the implementation of the protocol, instead of this unacceptable unilateral abrogation of a treaty.

I note that the Minister, the noble Lord, Lord Ahmad, referred to “technical talks”, which makes the point that the protocol is not being reopened. The noble Earl, Lord Kinnoull, spoke of the impasse in the wider UK-EU relationship, not least the blockage of our access to Horizon, a very unfortunate spillover. The original mistake was pursuing the hardest of hard Brexits and cutting the UK out of the single market and customs union, as the noble Viscount, Lord Hailsham, emphasised. Let us hope that sense will prevail on that score in years to come.

But that original mistake of policy was accompanied by a complete absence of integrity. As my noble friend Lord Bruce said, it was starkly clear that “Get Brexit Done” was a great electoral slogan for a weary electorate, but at its heart it was, and is, a deliberate deception. My noble friend Lord Thomas of Gresford recalled that Mr Johnson advised traders to throw paperwork into the bin. So, when the Government now complain of the protocol’s “unnecessary checks and paperwork” and “burdensome bureaucracy”, we are entitled to point out that this was their sovereign choice. But, as my noble friend Lord Purvis of Tweed recalled, Liberal Democrats, along with our partners in the Alliance Party, were ridiculed and condemned when we repeatedly warned of the implications of the protocol for trade and business. Professor Katy Hayward of Queen’s University Belfast said:

“This is a bill that is purportedly intended to protect the 1998 Good Friday (Belfast) Agreement, but as it stands it looks set to bring new levels of economic and political uncertainty for Northern Ireland”.


As the noble Lord, Lord Jay of Ewelme, said, the present uncertainty is destabilising.

My noble friend Lady Suttie pointed out that the Bill is not something that the majority of people in Northern Ireland or the business community actually want. My noble friend Lady Doocey drew attention to the problem that a dual regulatory regime would cause for dairy farmers, since, if animal feed from the EU and the UK were mixed up, it would be impossible for vets to certify that an animal’s milk genuinely met EU standards. In fact, a dual regime may lighten the red tape load on GB exporters, but it will increase it on Northern Ireland businesses, and all the loose talk about regulatory divergence can only make matters worse.

If the internal market Bill would have broken international law in a “very specific and limited” way, the current Bill’s breach of it is absolutely blatant and comprehensive. The noble Lord, Lord Pannick, dealt fully with this subject, as did the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Howard, and the noble and learned Lord, Lord Garnier—all of them distinguished lawyers. The noble Lord, Lord Tugendhat, recalled that Margaret Thatcher was committed to the rule of law.

It has been pointed out that Article 16 provides a legal mechanism for safeguard measures within the scope of the protocol, but the Government have declined to use this, as the noble Lord, Lord Howard, said. He recounted how the former Attorney-General told him that Article 16 was not being invoked because it only allows measures that are “proportionate”. For a country such as the United Kingdom, with its web of treaties and global connections both public and private, to be so cavalier about breaking international law is a very serious error and reputational own goal. Who in the world will trust our Government and even our businesses to keep their word in future? The noble Lord, Lord Cormack, was eloquent on this point.

The noble Lord, Lord Ricketts, warned that this is a very dangerous time internationally and a moment for unity and solidarity in the alliance backing Ukraine, not divisions between the UK and the EU. The noble Baroness, Lady Wheatcroft, warned of the effect on the financial markets. The noble Lords, Lord Kerr and Lord McDonald, noted the welcome reset in relations with the EU, with Prime Minister Liz Truss, when taking part in the inaugural meeting of the European Political Community, even able to bring herself to call President Macron a “friend”. This welcome reset would be torpedoed by this hostile Bill, and the mooted bilateral UK-France summit for next summer would surely go in the bin. With our economy in a very fragile position, the last thing we need is a trade war with the EU, and the last thing that Northern Irish traders need is the loss of ready access to the EU single market.

Other noble Lords have adequately covered how the Bill represents an almighty power grab by the Executive, as have the excellent reports from our Delegated Powers Committee, so I will not repeat that point. However, I will quote the Conservative chairman of the Justice Select Committee in the other place, Sir Bob Neill, who said,

“the reality is that there are Henry VIII powers and Henry VIII powers; and this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together”.—[Official Report, Commons, 13/7/22; col. 370.]

I also point—as did a stellar quartet of the noble Baronesses, Lady Ritchie, Lady O’Loan, Lady Kennedy and Lady Goudie—to the very legitimate concerns of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland about the impact of the Bill on the implementation of Article 2 of the protocol, the commitment by the UK Government to ensure

“no diminution of rights, safeguards and equality of opportunity”

protections as a result of the UK’s withdrawal from the EU. If the Bill progresses, that will need detailed examination.

I conclude with what the former Prime Minister Theresa May said in the other place—words widely echoed across this House today, including by the noble Lord, Lord Kirkhope:

“In thinking about the Bill, I started by asking myself three questions. First, do I consider it to be legal under international law? Secondly, will it achieve its aims? Thirdly, does it at least maintain the standing of the United Kingdom in the eyes of the world? My answer to all three questions is no. That is even before we look at the extraordinarily sweeping powers that the Bill would give to Ministers.”—[Official Report, Commons, 27/6/22; col. 63.]


We have two previous Conservative female Prime Ministers, Margaret Thatcher and Theresa May: one who cannot now give her opinion but would surely not have approved of this Bill, and another who has said that she does not approve of this Bill. The most recent previous Prime Minister did his Government and country no favours in bringing it forward. In words he might have spoken, it is time for the present Prime Minister to “donnez-nous un break”—indeed, to give herself a break by ditching it.