Northern Ireland Protocol Bill

Lord Bew Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, I support the Bill. I speak as a remain voter, a strong supporter of the Good Friday agreement—I supported it when it was not quite so fashionable as it seems to have become—and a civil rights marcher.

However, I support the Bill and I shall explain my first reason. There is an international treaty, and under Article 1, paragraph 5 of that treaty, the Good Friday agreement, which is lodged at the United Nations, a sovereign Government have the responsibility to deal with the alienation of one or other community. A few weeks ago, because of the effect on the aspirations of the nationalist community, we passed the Irish language Bill in this House in the spirit of that international treaty. The Bill today is designed to reach out to the unionist community, which is alienated on the subject of the protocol, and is designed to offer some comfort.

Mode of address is everything in politics; it is very important to say that. I have never felt more Irish than when listening to this debate today. The Irish expression “The day that’s in it” came to mind; to give your Lordships the English translation, “Timing is everything in politics”. There is talk of suspending the Bill for six months. Obviously, I listen more to the Irish media than other Members of this House, but when the Taoiseach says the negotiation now going on is in good faith and the Foreign Minister says the Bill is not an issue causing blockage, the only effect will be to disrupt the attempt to mollify the alienation of the unionist community on this issue, but we are committed under an international agreement to act just as we did with the Irish language Act a few weeks ago. That would be the only effect of a delay. These negotiations are well ahead. It might conceivably have been argued that the negotiations would be affected in a bad way, but there is absolutely no such effect. It is important to say that.

The noble Lord, Lord Howard, raised the issue of Article 16. The truth is that at this moment—again, “The day that’s in it”—it would be ridiculous. These negotiations were started at various times. Eminent international lawyers have said the Government’s approach needs Article 16. The Government’s approach is basically right to protect the Good Friday agreement, but you have to explore all routes, and Article 16 may yet return, but at this moment it would be absurd. It would cause irritation in Dublin. Timing is everything in politics, if I may say so.

I turn to illegality: pacta sunt servanda. There is more than one treaty involved. I have already tried to explain this. In fact, there are three international treaties, including the 2017 joint agreement—which, by the way, talks about unfettered access, which apparently we are not allowed to expect but is in that international agreement.

The point about the 2017 agreement, as the Irish lead official Rory Montgomery has said, is that basically the Irish Government were ceded by the British Government sole control of the Good Friday agreement. It is a two-sided agreement; not only that, but as a sovereign Government we have more responsibilities than the Irish Government. That set the template for the difficulties in all the subsequent agreements that we are now trying to resolve. It is how we got into this place and we are now trying to sort it out. It is messy, but the negotiations are now in play. The Bill was launched in June and passed in the House of Commons, and the EU has not said, “Oh my God, this is so brutal, we can’t talk”. I am not saying we are talking because of the Bill—although I know plenty of people who believe that—but I am certain that you cannot argue that the Bill is preventing this negotiation. That is how it is going to be resolved.

In conclusion, I want to say a word about international agreements. On 12 March 2019 the Brexit Secretary—with, he said, the sanction of the Attorney-General—said the Good Friday agreement was the prior agreement. In the event of subsequent agreements being in conflict with that agreement, the UK reserved the right to resile, under the Vienna convention, from the Good Friday agreement. That may be bad law, but it was that Attorney-General in the May Government. Nobody actually knows what international law is on this, to be absolutely honest; I do not want to be too brutal about it, but nobody does know. I am simply saying that the argument in play now is exactly the original argument. For some time now, three years or more, the UK Government have been saying, “We have two treaties to work with here and the Good Friday agreement is important to us”. We have heard from the noble Lord, Lord Jay, that the east-west dimension of that agreement is not working under the protocol and therefore we have a problem. So the UK Government’s position is, at least in that limited sense, a consistent argument.

As I keep repeating, under that protocol the UK Government have special responsibilities, which the Irish Government do not, to address the alienation of communities. I could accept the argument that some of the Bill is a bit cack-handed or not to everybody’s taste, but the fact that the Government are making a separate, desperate effort to address the alienation of one community is entirely within the logic of their international obligations. It must be understood that the treaty is in the United Nations and has no other possible meaning.

I have a few words for those in the Democratic Unionist Party. I understand that they feel that a lot of civilised opinion among the commentariat in Northern Ireland is willing them to fail, and I totally accept the good-faith remarks from the noble Lord, Lord Dodds, today. For example, in the few days before the Bill was introduced, the commentariat said it was never going to happen—but nobody then apologised in the collective wisdom of Northern Ireland. I understand the irritation with all that, but it is the case that on 27 June the DUP explicitly stated in the House that in the event that the Bill passed the Commons on its Second Reading, there would be moves towards the return of devolution. No such moves have happened. This is the vulnerability, and it is why the noble and learned Lord, Lord Clarke, is able to raise the issue of good faith. Ultimately, I accept that good faith—but no such move has happened.

The consequence is that we are likely to be moving towards an agreement between the EU and this country, and those in the DUP will be excluded from the terms of it. They will just be the passive recipients of whatever comes down the line and they will lose the place that they rightly hold—Northern Ireland, by the way, is a co-premiership—under the recent election results in the institutions of Stormont. It is time to think again about moving. I know there are all kinds of issues, but it is time to think again about moving because the centrist vision that their leader is now putting forward cannot be achieved if there is a bitter and resentful election, which is extremely likely to follow if we do not move quickly.