Northern Ireland Protocol Bill

David Lammy Excerpts

2nd reading
Monday 27th June 2022 Commons Chamber

[Mr David Lammy (Tottenham) (Lab)]

Less than three years ago, the Prime Minister stood at the Dispatch Box seeking to persuade the House to support the withdrawal agreement that he negotiated with the European Union. It was, he said,

“a great deal for England, Scotland, Wales and Northern Ireland.”—[Official Report, 19 October 2019; Vol. 666, c. 579.]

He urged each of us

“to show the same breadth of vision as our European neighbours”

with whom he had struck the agreement. He reassured us that

“Above all, we and our European friends have preserved the letter and the spirit of the Belfast/Good Friday agreement.”—[Official Report, 19 October 2019; Vol. 666, c. 571.]

His deal, he argued, was

“in perfect conformity with the Good Friday agreement.”—[Official Report, 19 October 2019; Vol. 666, c. 583.]

Today, 18 months after it came into force, the Government are taking a wrecking ball to their own agreement.

[Ian Paisley]

I refer the right hon. Gentleman to the very good proposal, made a few moments ago by the right hon. Member for Leeds Central (Hilary Benn), that we should trigger article 16. Do Her Majesty’s official Opposition agree with that proposal? Does the shadow Secretary of State believe that article 16 should be triggered now?

[Mr Lammy]

What can I say to the hon. Gentleman? The Opposition think that there is a better way forward through negotiation, but at least the proposition that he suggests is legal. I will come on to that in a moment.

[Sir Edward Leigh (Gainsborough) (Con)]

The most important thing in all this is peace, and getting power sharing up and running. Will the right hon. Gentleman acquaint the House with the discussions that he has had with the DUP on the solution to the problem, given that the DUP refuses to rejoin power sharing unless the protocol is dealt with? I am sure that he has discussed this with the DUP.

[Mr Lammy]

In our discussions, the DUP had consistently said that it wanted a negotiated settlement—until it saw today’s Bill.

[Several hon. Members rose—]

[Mr Lammy]

I will make some progress.

[Ian Paisley]

On a point of order, Madam Deputy Speaker.

--- Later in debate ---

[Madam Deputy Speaker]

I thank the hon. Gentleman for his point of order. He knows that he is well able to ask to intervene again on the shadow Secretary of State. It undermines our debates if we come up with endless points of order that interrupt them. It is not a fair thing to do. The hon. Gentleman will try to catch my eye later; I suggest that we try to respect each other in the Chamber.

[Mr Lammy]

rose—

[Ian Paisley]

Will the shadow Secretary of State give way?

[Mr Lammy]

I will not; I will make some progress.

The Government are bringing the Bill to the House because they object to the text that they negotiated, and the choices that they freely made. They are asking each Member of the House to vote for a Bill that flouts international law. That proposition should never be put to hon. Members. The Bill is damaging and counterproductive. The strategy behind it is flawed. The legal justification for it is feeble. The precedent that it sets is dangerous and the timing could hardly be worse. It divides the United Kingdom and the European Union at a time when we should be pulling together against Putin’s war on the continent, and it risks causing new trade barriers during a cost of living crisis.

[John Redwood]

The protocol makes very clear the primacy of the Good Friday agreement for peace in Northern Ireland and says that the EU will respect our internal market. The EU is doing neither. What is the right hon. Gentleman’s policy to persuade it to do so?

[Mr Lammy]

Negotiate—just as Labour did to get the Good Friday agreement. We negotiate. We do not break international law and alienate our partners and allies not just in Europe but across the world, and the right hon. Gentleman should know better.

As we debate the Bill, we should ask ourselves some simple questions. First, will it resolve the situation in Northern Ireland? Secondly, is it in the best interests of our great country? Thirdly, is it compatible with our commitment to the rule of law? Let me take each of those in turn.

[Layla Moran (Oxford West and Abingdon) (LD)]

Will the right hon. Member give way?

[Mr Lammy]

I will not at the moment.

Let us deal with Northern Ireland first as context. None of us in this House doubts that the situation in Northern Ireland is serious. Opposition Members need no reminder of the importance of the Good Friday agreement, which is one of the proudest achievements of a Labour Government, together with parties and communities across Northern Ireland and the Irish Government in Dublin. It was the result of hard work and compromise, graft and statesmanship, a relentless focus on the goal of peace. It was born six months after Bloody Sunday. For more than half my lifetime, Northern Ireland endured the pain and violence of conflict and division. More than 3,500 people were killed. Thousands more were injured. Cities and communities were riven by intolerance and division. I remember what that conflict brought to my city, from the Baltic Exchange attack to the Docklands bombing. Above the door over there and other doors into this Chamber are plaques to Airey Neave, Ian Gow, Sir Anthony Berry, Robert Bradford and, most recently, to Sir Henry Wilson.

Nearly a quarter of a century has passed since that hopeful Easter in 1998. Since then, we have seen transformational progress. A generation has grown up in a new Northern Ireland, harvesting the fruits of a hard-won peace. That legacy demands that all of us act with the utmost responsibility and sensitivity. We need calm heads at this moment and responsible leadership.

We recognise that the operation of the protocol and the barriers and checks that were inherent in its design have created new tensions that need to be addressed. Unionists feel that their place in the UK is threatened, and we must listen to all concerns on all sides. We all want to see power sharing restored. The UK Government, the European Union and parties across Northern Ireland need to show willing and act in good faith. However, at its most fundamental level, the Bill will not achieve its objectives. The House cannot impose a unilateral solution when progress demands that both sides agree. This is not an act of good faith, nor is it a long-term solution.

Only an agreement that works for all sides and delivers for the people and businesses of Northern Ireland will have durability and provide the political stability that businesses crave and the public deserve. Instead, the Bill will make a resolution more difficult. By breaking their obligations, the Government dissolve the little trust that remains; by taking this aggressive action, we make it harder for those on the other side of the table to compromise. On that basis alone, the Bill should be rejected.

[Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)]

I recognise the comments that the shadow Secretary of State has made about the Belfast agreement and the need for consensus. He is aware that there is not a consensus in support of the protocol; there never has been one, from day one, in Northern Ireland. I gave time—a lot of time—for the negotiations to progress, but that did not work because the EU fundamentally refuses to change the text of the protocol. If the shadow Secretary of State is serious about getting a solution that works, will he go to the EU and join the Government in making the argument that the EU needs to agree to a negotiation in which it is prepared to change the text of the protocol?

[Mr Lammy]

I am grateful for the right hon. Gentleman’s experience in these matters, and indeed when the protocol was being negotiated in the first place. May I say that I met EU ambassadors in London last week and made that very point? I point him to the speech that I made last week, in which I highlighted exactly what he has just said.

[Sir Bernard Jenkin]

I do not think that anyone in this House can doubt the right hon. Gentleman’s personal commitment to the Belfast/Good Friday agreement, after the remarks that he has made. As someone whose father was nearly blown up in the Grand Hotel, I share that passion, but the problem that the right hon. Gentleman has to grapple with is that he wants a negotiation. What if the EU will not negotiate? What would he do then? That is the position that we are in. We cannot elevate the protocol to be more important than the Belfast/Good Friday agreement. That is the necessity we face.

[Mr Lammy]

I accept the sincerity with which the hon. Gentleman makes his remarks. Let me just say that they have said that trust is at an all-time low. The question for this House is whether the Bill maintains or assists trust, given that ultimately this will be an agreement and it will be negotiated.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

My right hon. Friend is making a brilliant speech. Is he aware of comments by the US trade representative Ambassador Tai, from Speaker Pelosi and indeed from a host of our American allies in Congress? They have been very clear with us that there will be no US-UK trade deal unless there is a durable way forward on the Northern Ireland question. Not only does this reckless approach risk destroying relations with the EU, but it puts a deal with America at risk.

[Mr Lammy]

My right hon. Friend is exactly right. I have been to Washington on three occasions in the past six months, and I can say that across the political divide, Republicans and Democrats have raised the issue. On my most recent visit, they were aghast; they had not seen the content of the Bill at that stage, but they were aghast at the proposition. Perhaps the Northern Ireland Secretary might tell us what our American friends and allies have said in relation to the Bill now that they have seen the draft.

My second question is whether the Bill is in the best interests of this country. As we stand here today, Britain faces the worst cost of living crisis in decades. Inflation is at more than 9%, bills are rising, energy costs are soaring and supply chains are under pressure. It beggars belief why, at this time, the Government would choose to risk new frictions in our trading relations with the EU. They cannot get away with abdicating responsibility for this reckless conduct. If we choose to break a contract, we cannot plausibly expect the other side to take no action in response. We cannot claim that we did not foresee the consequences. Of course the European Union would respond, just as we would if the situation were reversed. I will wager that the Foreign Secretary would be one of the first people to complain if the boot were on the other foot.

A game of brinkmanship with the European Union will only add to our economic problems, but this is not just about economic concerns, important though they are. We must also see the bigger picture. For four months, the Putin regime has fought a bloody war against Ukraine. As a Parliament, we have been united in our support for Ukraine and our staunch opposition to Russia’s aggression. NATO allies and European partners have stood together. How can this be the right moment to deepen a diplomatic row? How can this be the right time to tell our friends and partners that we cannot be relied on? I cannot help noting that some Conservative Members told us that the situation in Ukraine was too serious—that this was not the right time to change Prime Minister. Apparently, however, it is not serious enough to prevent us from starting a diplomatic fight with some of our closest allies.

Thirdly, is the Bill compatible with international law? [Hon. Members: “ Yes.”] Quite simply, the Bill breaks international law. It provides for a wholesale rewrite of an international treaty in domestic law. One of the most troubling aspects is the dangerous legal distortion that is used to justify it. The doctrine of necessity is not an excuse for states to abandon their obligations. It exists to do precisely the opposite: to constrain the circumstances in which states can legitimately claim that their hand has been forced. It requires this action to be the “only way” possible to resolve the issue, but the Government have not used article 16 and still say that a negotiated solution is possible. It requires a grave and imminent peril, but the Government have chosen a route that will involve months of parliamentary wrangling to fix issues such as unequal VAT rates, which no reasonable person could consider a matter of grave peril. It requires the invoking state not to have contributed to the situation of necessity, but the problems are a direct result of the choices that the Government made when negotiating with the European Union. If they were not, we would not need to change the text of the protocol at all.

[Joanna Cherry]

The right hon. Gentleman is making a powerful speech, particularly on the legal points. He has listed all the problems with the Government’s legal note of advice. Does he, like me, find it interesting that, whenever any of us raise these points, no Conservative Member is capable of answering them?

[Mr Lammy]

The hon. and learned Lady knows that 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, and I think that Conservative Members do as well.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

If I heard him aright, the right hon. Gentleman indicated earlier that the Government should have used article 16. He said, “They have not yet used article 16”, indicating that they should use it before going down this road. It was, however, the hon. Member for Sheffield, Heeley (Louise Haigh), who I think is the shadow Northern Ireland Secretary, who said that triggering article 16 would “prolong and deepen” uncertainty in Northern Ireland and pose another huge risk to stability there. Does this now mean that the Government should have triggered article 16, or that they should not—or maybe that there is a disagreement, or maybe that it will not be decided until after the passage of the Bill?

[Mr Lammy]

I think that the right hon. Gentleman is putting words in my mouth. Article 16 arises in relation to the defence that the Government suggest: the doctrine of necessity—that is, they have not used it and the point of using it is that, at the very least, it would be legal.

“Pacta sunt servanda”. Agreements must be kept. This is the essence of international law: the solemn promise of states acting in good faith and upholding their commitments to treaties that they have agreed. How would we react if a country we had renegotiated with did the same thing and simply disregarded the commitments we had mutually agreed on? I do not doubt that, if an authoritarian state used necessity to justify its actions in breaking a treaty in the manner the Government are proposing to do through this Bill, the Foreign Secretary and many of us across this House would condemn it.

Since the right hon. Lady became Foreign Secretary, the Foreign Office has issued countless statements and press releases urging others to meet their international obligations. They include Iran under the joint comprehensive plan of action; China under the joint declaration of Hong Kong; and Russia under the Budapest memorandum. In just the last fortnight, the Foreign Office under her leadership has publicly called on Bolivia, Sri Lanka, Myanmar, Nicaragua, South Sudan, Eritrea and Ethiopia to meet their international obligations. Hypocrisy is corrosive to our foreign policy and I know that Members from across the House share these concerns.

[Chris Bryant]

I take this point from my right hon. Friend’s mention of the Budapest accord: when the UK signs a document, it really needs to stand by it. We did not stand by the Budapest accord either. We did not make sure that the text was proper before we brought it to Parliament, and that is one of the reasons we have the problems we have today, is it not?

[Mr Lammy]

My hon. Friend is absolutely right. When we use the word “honourable” across this House, it means something. It is about the integrity of this place and about the pre-eminent position that this Parliament and this country find themselves in on matters of international affairs. That is why this is such a sombre moment.

[Robin Millar (Aberconwy) (Con)]

The right hon. Gentleman is making a thoughtful speech and these matters deserve thoughtful consideration, but could he take advantage of his time at the Dispatch Box to tell us whether he would change the protocol? If so, how would he change it? How does he think the process of negotiation, which has failed so far, would achieve those changes?

[Mr Lammy]

I want to make some progress, but I have said that this party would negotiate, just as we negotiated the Good Friday agreement.

[Sammy Wilson (East Antrim) (DUP)]

The shadow Secretary of State has made much of the Government abandoning their obligations, but surely the obligation in the protocol was designed from the EU’s point of view to protect the EU single market. How does this Bill not give that guarantee to the EU, when goods going into the Republic will be checked, when there will be severe penalties on those who try evade those checks and when any firms producing in Northern Ireland will have to comply with EU rules when they are sending goods to the Republic? Surely that safeguards the single market and the obligations will be met.

[Mr Lammy]

Yes, it needs to be improved, but the question is how. What is the best method to achieve that? Is breaking international law and placing ourselves in a situation in which our EU partners do not trust us the best way?

[Mr Francois]

Will the right hon. Gentleman give way?

[Mr Lammy]

Let me just make some progress, because I have been on my feet for a long time and lots of hon. Members want to contribute to the debate.

Our country’s reputation is a matter beyond party. It is hard won and easily lost. When this Bill was first mooted, the right hon. Member for Maidenhead (Mrs May) asked

“what such a move would say about the United Kingdom and its willingness to abide by treaties that it has signed.”—[Official Report, 10 May 2022; Vol. 714, c. 38.]

The hon. Member for Bromley and Chislehurst (Sir Robert Neill) said in a thoughtful piece on this legislation last week that our country

“benefits greatly from our reputation for keeping our word and upholding the rule of law...We should be very wary indeed of damaging that standing.”

The right hon. Member for North Thanet (Sir Roger Gale) said,

“I don’t see how…any member of parliament can vote for a breach of international law.”

Lord Anderson and Lord Pannick, who are among the most distinguished lawyers in the country, have called this Bill a “clear breach” of international law that

“shows a lack of commitment to the rule of law and to a rules-based international order that damages the reputation of the UK.”

And Sir Jonathan Jones QC, formerly the most senior lawyer in Government, has described the legal justification for the Bill as “hopeless.” This is, of course, the same distinguished lawyer who resigned last time the Government proposed legislation in violation of their own treaty commitments. On that occasion, the Secretary of State for Northern Ireland had the temerity to tell the House the truth about the Government’s plan to break international law in a “limited and specific way.”

This Bill breaks the withdrawal agreement in a broad and extensive way while maintaining the pretence that it is somehow compliant. I am not sure what is worse—to be open about breaking the law or to dress up a treaty violation with this flimsy and transparent legal distortion.

[Mr Francois]

The right hon. Gentleman is making a thoughtful speech. Will he confirm to the House that he has actually read the Northern Ireland protocol? If he has read it, will he remind the House of what article 13.8 says about the ability to amend or even supersede the protocol entirely?

[Mr Lammy]

The right hon. Gentleman has, like me, been in this House for many years. This is too serious an issue for any shadow Minister or Minister not to have spent the whole weekend working hard on the Bill, as he knows. He also knows that we all come to this House hopeful of reaching agreement, but very conscious of the lawbreaking that is going forward, so of course I have read it.

Undermining international law runs counter to Britain’s interest, damages Britain’s moral authority and political credibility, and risks emboldening dictators and authoritarian states around the world. It serves the best interests of those who want to weaken the rule of law, and it is unbefitting of this great country.

This Bill not only contravenes international law but affords the Government extraordinary powers and denies proper respect to the role of this House. Fifteen of the 26 clauses confer powers on Ministers. The Hansard Society, not an organisation known for hyperbole, has called the powers given to Ministers “breathtaking.” Professor Catherine Barnard of Cambridge University has called these powers “eye wateringly broad.”

Ministers may use these powers whenever they feel it appropriate. Clause 22 allows them to amend Acts of Parliament, and clause 15 gifts them the power to disapply other parts of the protocol, potentially including the article on democratic consent in Northern Ireland. Ministers could use secondary legislation to change not just primary law but an international treaty. This is a power grab so broad it would make Henry VIII blush.

Clause 19 allows Ministers to implement a new deal with the European Union without primary legislation. Do Conservative Back Benchers really want to give any Foreign Secretary that power? This is brazen Executive overreach. It is an act of disrespect to Parliament and all MPs should reject it.

[Karin Smyth]

As well as disrespecting Members and Parliament, the Bill is extraordinarily disrespectful to the representatives of people in Northern Ireland who will have no say on these provisions, as the Secretary of State is grabbing all the power.

[Mr Lammy]

My hon. Friend makes a very important point. Should this Bill reach Committee stage, I hope that proper scrutiny and consideration will be given to the powers that the Foreign Secretary is taking for herself and denying this Parliament and Northern Ireland.

[Colum Eastwood]

Will the right hon. Gentleman give way?

[Mr Lammy]

I must make some progress, because I am very conscious that we will run out of time.

As I have outlined, the Bill is damaging and counterproductive, and it is also unnecessary. We want to see checks reduced to an absolute necessary minimum, and there are practical solutions if we work to find them. Let us lower the temperature and focus on what works.

For months, we have been urging the Government to negotiate a veterinary agreement with the European Union that could remove the need for the vast majority of checks across the Irish sea on goods travelling from Great Britain to Northern Ireland. New Zealand has such an agreement. Why cannot we have one? I do not believe that it is beyond the ability of a British Government to negotiate one. That could be the basis of other steps to reduce friction, including improving data sharing. I am not one of those people who believe that only the UK Government need to show flexibility; the EU has been too rigid as well. However, the only way forward is to work hard on negotiation and compromise. I believe that with hard work and determination, with creativity and flexibility, we can overcome those challenges.

This Bill is not the way forward. It will exacerbate the problems it hopes to solve. It will gift Ministers unaccountable powers. It will divide us from our friends and allies in Europe when we should be united. It damages our country’s reputation. It will break international law. The rule of law is not a Labour or a Conservative value; it is our common inheritance. Since Magna Carta in 1215, it is no exaggeration to say that it is one of the greatest contributions that our country has made to the world. No party owns it. No Government should squander it. Britain should be a country that keeps its word. Let us stand for that principle and vote against this Bill tonight.

[Several hon. Members rose—]