Northern Ireland Protocol Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

Debate on whether Clause 1 should stand part of the Bill.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful for this opportunity to discuss and debate whether Clauses 1, 2 and 3 should form part of this Bill. I am most grateful to the noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, for their support for all three stand part notices and the noble and learned Lord, Lord Judge, for his support for the proposition that Clauses 2 and 3 should not stand part of the Bill.

I have listened very carefully to the earlier part of the debate and obviously some of the themes will be repeated in debating this group. At Second Reading, reasons were explained as to why the protocol may not be working, and I think the noble Lord, Lord Dodds, spoke at some length on his view of why that is the case. I have had a number of emails from Northern Ireland since I tabled these notices and I would like to say at the outset that the reason for my tabling them is not to deny that the protocol is not working. That is not their purpose. What I am trying to understand, in debating whether these clauses should stand part, is the Government’s thinking of the legal base and to press the Minister further.

I would like to quote two paragraphs from the report which I believe was published today by the Constitution Committee of the House. In particular, paragraph 15 on page 4 states:

“We do not accept the Government’s reliance on the doctrine of necessity as justification for introducing legislation that disapplies its obligations under international law. The doctrine of necessity is narrowly construed and applicable only in exceptional circumstances, which have not been satisfied in this case.”


Further, paragraph 18 also on page 4 of the report states:

“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments. The Government’s reliance on the doctrine of necessity does not justify introducing this Bill. This raises the question of whether ministers might be thought to have contravened their obligation under the Ministerial Code to comply with the law, including international law.”


I shall also refer to when this was debated in the other place on 13 July. My honourable friend in the other place, Bob Neill, the Member for Bromley and Chislehurst, stated:

“this is an unusual and rather exceptional Bill, and not necessarily in a good way. If fully brought into effect, the Bill would lead to the United Kingdom departing unilaterally from an international agreement and therefore breaking its obligations under both customary international law and the Vienna convention on the law of treaties, which is a grave and profound step for any Government to take.

I recognise that there are circumstances in which that step can be taken, and the Government asserted on Second Reading that the operation of the Northern Ireland protocol gives rise, or potentially gives rise, to those circumstances. The essence of it, though, depends on applying a factual evidence base to a legal test. The legal test in this case is essentially the international customary law convention of necessity, which is now enshrined in article 25 of the articles on state responsibility, which were adopted by the International Law Commission in 2001 and are recognised by the UN General Assembly, by our Government and by the international community as an authoritative statement of the law. Article 25 sets out that necessity may be invoked if certain tests are met. The point of these amendments is to say that if the Government, or any Government, were to take that step, they should do so upon the most compelling grounds, so that the factual basis for their actions met the legal test. The reputational consequences, politically, internationally and legally, are very significant, so this should be done only when that is thoroughly tested and set before this House to be tested.”—[Official Report, Commons, 13/7/22; col. 365.]


That was from my honourable friend next door, Bob Neill, who chairs the Justice Select Committee in the other place.

At Second Reading and earlier, the Advocate-General referred to the legal advice that was published by the Government. I quote from the Northern Ireland Protocol Bill UK Government Legal Position:

“The Government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations. This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the Government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the non-performance of certain obligations. It is the Government’s position that in light of the state of necessity, any such non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”


In my view, for reasons that were well rehearsed at Second Reading and earlier today, that is not an appropriate legal basis. I ask my noble and learned friend the Advocate-General to set out why the Government have reserved their position on Article 16 and have not brought it forward as the more appropriate legal base at this time.

The Law Society of Scotland has also been instrumental in my bringing forward these clause stand part debates. In its view,

“The Government do not rely on Article 16 of the NI Protocol to justify the Bill. That Article would entitle the UK Government to take unilateral ‘safeguard measures’ in certain circumstances but those measures ‘…must be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation’.


Instead, the Government argues that these provisions do not breach international law because the situation in Northern Ireland is such that, under the doctrine of necessity in international law, any: ‘non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law’”.


The Law Society of Scotland’s quotations are from the UK Government’s legal advice, which I quoted from earlier.

I believe that the Government have failed, and I regret to say that my noble and learned friend the Advocate-General has failed as yet to state why this doctrine of necessity satisfies the legal test which is understood in that regard. I again press my noble and learned friend. I am not asking him to bring forward Article 16—though I realise that, as we heard earlier from the noble Lord, Lord Dodds, the protocol is perhaps not working in a way that the Government and those representing Northern Ireland would have wished. If that is the case, why have the Government not taken what I believe is the more appropriate measure, Article 16, in that regard?

--- Later in debate ---

[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.

[Baroness McIntosh of Pickering (Con)]

I am grateful to have had the opportunity for this debate. I regret to conclude that, despite the affection, respect and regard that I have for my noble and learned friend, and the fact that we are both members of the Faculty of Advocates—albeit I am non-practising—the Government’s legal position remains confused and flawed. On my specific question, the Advocate-General said in a previous debate that the Government reserved the right to invoke Article 16 as the legal base but did not give us the basis on which they would seek to do that. That was regrettable.

I am grateful to all who have spoken, particularly from the Front Benches opposite. I thank the noble and learned Lord, Lord Judge, for responding to the points made by the noble Lord, Lord Bew, more adequately than I could possibly have done. To all those who have spoken from the Northern Irish perspective, the House is absolutely agreed that the protocol is not working. I have had briefs from the National Farmers’ Union, NFU Scotland, and the Food & Drink Federation, which would particularly like to see that matters regarding trade work as smoothly as possible, bearing in mind that the food industry is probably the largest manufacturing industry; it is larger than the car industry. It is a very big sector taken with food, farming and farm production.

So I regret that we have been put in this position and that the Government are wilfully seeking to breach an international agreement and public international law that they freely entered into. I do not intend to press this matter any further this evening, but I reserve the right to revert on Report.

Clause 1 agreed.