Brexit: Withdrawal Agreement and Political Declaration

Lord Bew Excerpts

Wednesday 5th December 2018 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to address the vexing Northern Irish backstop issue. I should perhaps first say that I entirely accept the Government’s good-faith desire to deal with the difficulties created for the Irish Republic by Brexit—in particular, their desire to avoid a hard border in Ireland.

The Government indicated before last Christmas that there are no circumstances in which they would create anything that might be described as a hard border in Ireland—none at all. There are no circumstances even now, including a no-deal Brexit. We have greatly exercised ourselves, not so much to prevent a hard border on our side but to ensure that the EU will not tell the Irish Government, “You must establish a border on your side”. Maybe we were right to do it, but we should be absolutely clear that that is what we have been doing. We have put ourselves through a lot of pain to do it, and I absolutely accept it is right to be sensitive to the needs and problems created for Ireland by Brexit.

We ought to be clear about exactly what we have done and why, and not talk in too general terms. Even the noble Baroness the Leader of the House this morning made another, more generalised statement that this is being done to save the Good Friday agreement. She knows my admiration for her, and I have spent significant time with her. Having grown up in Northern Ireland, I know her understanding of and sympathy for Northern Irish issues. But there is one great problem with the backstop: it does not protect the Good Friday agreement. The reason is twofold. First, if people do not have democratic control upwards—the Matthews European Court of Human Rights case raised this issue in the context of Gibraltar in 1999—you have a problem. I turned to the Attorney-General’s advice this morning to read if there was any reference to the Matthews case, which clearly bears on the situation envisaged in the backstop. There is no such reference.

The Good Friday agreement is profoundly based on a bottom-up approach to north/south regulatory arrangements, not a top-down approach. The backstop is a top-down imposition on how Northern Ireland matters will be handled in future. There is a huge gap between the Good Friday agreement and the backstop; there is no avoiding it. I was myself much involved in the period between 1993 and 1998 in the struggle for the Good Friday agreement, and I spent much ink writing newspaper articles to convince the unionist community that you could have a north/south arrangement that did not automatically drag you into the orbit of the Irish Republic—that there were areas in which you could co-operate pragmatically, and that this would work. The great achievement of the Good Friday agreement since 1998 has been that these areas have grown without controversy; they have created little tension, and what tension we have had is all to do with other issues such as decommissioning and the implementation of the Good Friday agreement. It is quite remarkable how successful this has been. The objective was to end the cold war between the north and the south and we did so, but that is not the model in the backstop. It is absolutely clear that the model of the Good Friday agreement is not the model in the backstop.

We could look at this another way and talk about the disappearance of paragraph 50 from the text of the December agreement. The Prime Minister, even after Salzburg, explicitly referred to her support for paragraph 50, which places the Northern Ireland Assembly at the centre of north/south regulatory developments and the relationship with the EU. But it is not in the final version of the report. You could say that there is a category problem here: that EU law is dealing in a clunky way with nation states, that it has difficulty dealing with the subtleties of political agreements in Northern Ireland and so on, and that the language is creating a problem. You could say that the many references in the document to defending the Good Friday agreement in all its parts must mean that people understand that at its centre, the agreement say that, on issues such as north/south regulatory alignment and harmonisation, you must have “the specific endorsement of the Northern Ireland Assembly”. You could say that they know all that is there, and that is what they mean by supporting all aspects of the Good Friday agreement. You could say that they have read paragraph 17 of the Good Friday agreement, which says explicitly on the matter of EU issues that the Northern Ireland Assembly must play the key role in determining how this develops. You could say it—unless you have read what the backstop on agriculture actually says.

Article 10 of the backstop provides that the EU law on agriculture and environment should apply in full in Northern Ireland and that to enforce EU law, neither the UK Government nor the Northern Irish Government are allowed to carry out checks on farming in Northern Ireland. That is precisely the area, by the way, where the agreement has worked so well up to now—protecting animal health on the island of Ireland. It was one of the models, and it has worked like a dream. Now, however, the British Government are explicitly not allowed to carry out checks if there could be an animal disease such as mad cow disease on a farm in Ballymena, for example, and nor can the Northern Irish Government. That is how the agreement is interpreted in Northern Ireland. The language is absolutely explicit: it is repeated at page 429 of the withdrawal agreement and in two or three other places. Why it is there, I have no particular idea.

To be honest, the hope is that the EU does not care too much about this point, but it is a sign that we are getting very close to infringing the basic principles of the agreement. You can defend this on lots of grounds, some of which I absolutely accept, but you cannot defend it on the grounds that it is defending the Good Friday agreement. It is constructed on an entirely different principle: top-down, not bottom-up. This is a huge difficulty that will have to be attended to; otherwise, we lose the template of the Good Friday agreement, which all parties in Northern Ireland accept. Even now, when we cannot make it work, everybody accepts that that is the basic template for a settlement. If we throw it away, which will be the effect of going along these lines, we will be taking a massive risk with the stability of Northern Ireland.

I read the Attorney-General’s legal advice this morning in the hope that some of these issues would be addressed. It is extremely interesting legal advice but nothing is said about the implications of the 1999 Matthews case—the Gibraltar case—which raises these issues. Nothing is said about the obvious conflict between the core principles of the agreement—the text of the agreement—and the principles in the withdrawal agreement on the backstop. I really hope that the Minister, when he concludes, can give me clarification and reassurance on this matter, but on the face of it, there is a conflict.