Northern Ireland Protocol Bill

Debate between Earl of Kinnoull and Lord Cormack

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, I continue to be worried by the interrelationship between the trade and co-operation agreement and the withdrawal agreement. I mentioned this before in Committee on Monday, but I did not develop the point at all. The trade and co-operation agreement is 1,246 pages long. If you get to Part 7, “Final Provisions”, on page 402, you find a provision called “Relationship with other agreements”. I will just read it out because I think it is critical; we have been talking about Rumsfeld problems, but I think this is a kryptonite problem. It says:

“This Agreement and any supplementing agreement apply without prejudice to any earlier bilateral agreement between the United Kingdom of the one part and the Union and the European Atomic Energy Community of the other part. The Parties reaffirm their obligations to implement any such Agreement.”


This provision has been the topic of quite a debate around the place in articles, conferences and things, but it is an interlinking provision between the critical trade and co-operation agreement and the withdrawal agreement. As an interlinking provision, it means that, if something happens to the withdrawal agreement, that in turn—so goes the argument—could come back and torpedo part of, in some way, the trade and co-operation agreement, which, as I have said, is such a critical piece of our trade with our largest trading partner.

I feel that it is very important to consider that. First, I would like to ask the Minister—I am not sure who is answering this section; I now know it is the noble Lord, Lord Ahmad—whether he accepts that this an extremely important thing to consider. If by doing something to the Northern Ireland protocol and the withdrawal agreement you are causing damage to the trade and co-operation agreement, that could be very serious. Certainly, as you sought to make a change to the protocol, you would need to come back to a parliamentary process. You would need to stop and think very carefully about what would happen. That is why, when I look at Clause 13(4), naturally I agree with everything that the noble and learned Lord the Convenor said earlier about this, but I have an additional worry that any old Minister of the Crown could rush into making some regulations and not remember page 402 of the trade and co-operation agreement.

[Lord Cormack (Con)]

My Lords, I want to make yet another appeal to my noble friends on the Front Bench to pause this ridiculous Bill. We heard a very powerful speech from my noble friend Lord Deben, following another powerful speech from the noble Lord, Lord Hain. Although I understand what both of them said and endorse what both of them said, nothing that they said can make this Bill any better than it is—and it is useless.

In fact, it is worse than useless because on the one hand the Government are saying to us, “We prefer and want to have a negotiated settlement”. Amen to that. But how can you have proper negotiations if at the same time you are obliging Parliament to put you in a straitjacket—one that also confers on you frankly uninhibited powers. The whole thing is contradictory in so many ways.

Yes, we accept that the protocol is not perfect, although it was thrust on us by the Government and willingly entered into by them. Every amendment that comes before us shows that, yes, you can tinker here, you can tinker there, but you cannot make this Bill a good Bill. All the scrutiny from all the learned minds, including that of my noble and learned friend Lord Judge, cannot make this pig’s ear into a silk purse. It is impossible. If we are going to have unfettered negotiations, then for goodness’ sake let us pause the Bill and, as I said the other day, not continue, frankly, to waste Parliament’s time.

Northern Ireland Protocol Bill

Debate between Earl of Kinnoull and Lord Cormack

Committee stage
Monday 31st October 2022 Lords Chamber

[The Earl of Kinnoull (CB)]

I was hoping that others would take on the strain. I spoke at Second Reading, and I have tried to come to this really representing the settled views of the committees of this House that have been considering these areas. I think we have heard quite a bit already in debates about the wisdom, or lack of it, of passing something that has the appearance of being an illegality. It does not matter whether or not it is; it is the appearance that is hugely damaging in terms of the rule of law point.

I will add briefly to those general views by saying only that there is a further view, and that is that we have to do an awful lot of deals with the EU over the coming years on a whole lot of things, and it is fairly unwise at this very early stage in the new relationship to have such a big black put up about us not being a reliable partner. I am deeply concerned about that, and it is a concern that has flowed through to the various reports that we have written over many years in this area. I am looking at a solid former member of the European Union Committee in my noble friend Lord Kerr of Kinlochard, who made a very good speech in the previous group, and at my noble friend Lord Pannick, who made an equally good speech and who has been strong in this area. In this group, I do not want to follow up on that, but in view of the fact that everyone seems to be going very wide here in Committee I thought I would just make that point now rather than very late tonight.

The particular point I want to raise came out of the June 2019 report of the European Union Committee, Scrutiny of International Agreements: Lessons Learned. The important thing to note here, I think, is what the man in the street had in terms of scrutiny at an elected or a parliamentary representative level in the moment before Brexit. The cherry had three bites out of it—or, really, two bites and a nibble. The first bite was that his representative in the European Parliament was going through the thing very carefully indeed, as most trade deals and many international agreements were on European matters. The second bite was that, through the action of the scrutiny reserve resolutions, the European Union Committee structure in this House and the European Scrutiny Committee structure in the House of Commons were going through things in exhaustive detail, and the interaction of those two committees and the European Parliament began at the start of any process and followed it all the way through to the end.

The third little nibble came with CRaG, a simple thing which looks at the eventual results; it is a quick yes or no procedure, where the House of Lords does not have any power at all and the House of Commons has precious little. We said in our report of June 2019 that

“the CRAG Act is poorly designed to facilitate parliamentary scrutiny.”

That is pretty clear, and it seems to me on rereading the report over the weekend that it is a pretty good report. I am coming at this in a slightly different way, but what worries me now is that these are core changes to an international agreement that could be made without any form of parliamentary scrutiny—that is true of this group but other groups as well—not even the CRaG form of scrutiny, just a Minister making an agreement. For core changes to core treaties with core partners, there must be a very good parliamentary scrutiny process.

I have not arrived with the answers to exactly what the process should be but I am saying that it must be a very serious process. I think the net effect of amendments like these would be to remove the ability of a Minister to make a decision like that but leave a mechanism whereby a Minister could come back to Parliament and—after suitable scrutiny with a suitable process—have a parliamentary agreement to back up whatever the change being discussed. I have been sitting over this for six and a half years, and I find it very difficult to discuss such changes in the abstract. I would like to discuss specific changes specifically, which is why I feel very supportive of this line of amendments and thankful that they have been tabled.

[Lord Cormack (Con)]

In effect, we have heard this evening a reiteration of Dunning’s Motion in the reign of George III:

“The influence of the Crown has increased, is increasing, and ought to be diminished.”


We are seeing in the Bill not only an abrogation of international law and our obligations, which is what primarily concerns me, but in the process, by the design of the Bill, an accretion of power to Ministers and the Executive—an unbalancing of the relationship between Parliament and the Executive.

The Executive are answerable to Parliament in our constitution. Here, great chunks are being given to the power of the Executive. We owe an enormous debt to the noble Earl, Lord Kinnoull, and his committee, and other committees in this House, which have pointed this out calmly—to use a word I used earlier—but very forcefully. We are embarking on a road towards executive superiority such as is incompatible with our constitution, which is moving away in the 21st century from what our forefathers fought for in the past. We cannot emphasise that too greatly.

The person who could make this speech far better than I and whose name is on the amendments spoken to eloquently by the noble Lord, Lord Purvis of Tweed, is the noble and learned Lord, Lord Judge. Time and again, in a variety of Bills and contexts, he has pointed out to your Lordships’ House how the accumulation of Henry VIII powers in the hands of Ministers, without proper accountability to the House, is the road towards executive domination such as is incompatible with our constitution, as I said a few moments ago.

In wholeheartedly supporting these amendments, I urge my noble friend, when he comes to reply from the Front Bench, to address this issue and address it directly. I have great admiration for my noble friend Lord Caine. I certainly have great admiration for his knowledge of, and concern for, Northern Ireland, to which he has dedicated a large part of his life; but is he really happy to be put in a position, or see any of his ministerial colleagues put in a position, where they can override Parliament effectively by diktat?