Northern Ireland Protocol Bill

Lord Campbell of Pittenweem Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

I am always delighted when people think that opinion polls and what is said on Twitter are democracy in real life. I do not know why we bother with the ballot box—we should just go to an opinion poll. I believe in democracy and the democratic right of the British and UK people to make their decisions without rushing off to Opinium Research, or whoever it may be.

[Lord Campbell of Pittenweem (LD)]

My Lords, I am sure the House would not expect me to, or hope that I would, follow that contribution. I apologise for not being able to speak at Second Reading. I was travelling, as it happens, back from the United States and could not get here before the proper time and date to indicate a wish to speak in the debate. However, that travel to the United States prompts me to say this: we ignore at our peril the importance attached on both sides of the aisle, and in both Houses of Congress, to the Belfast agreement. To put it neutrally, this Bill puts a stress and strain on that settlement. For that reason, and for all the others eloquently put forward today, this Bill should at the very least be delayed.

I remind the House that, some time ago, we were presented with a Bill nominally in relation to internal markets. It contained a Part 5, the purpose of which was to create a law whereby the Government would be excused when it broke the law. The Government have form on this matter, and there is a sense in which the Bill we are discussing is simply part of the same kind of thinking. What has been said today has been said with great eloquence; what was said in this House on the internal markets Bill was said with great eloquence and eventually the Government had to abandon it.

[Lord Bew (CB)]

My Lords, I rise to speak with some trepidation as, apart from the noble Baroness, Lady Fox, this has been a convention of like-minded people, as the noble Lord, Lord Cormack, put it.

I have just come hot-foot from a Committee A (Sovereign Matters) meeting at the British-Irish Parliamentary Assembly in Cavan. We were addressed by the Taoiseach at some length and by other Irish Ministers. There was much discussion of these matters during the day. However, no Irish Minister said, “Whatever you do, when you get back to London, make sure that this protocol Bill is stopped”. It is simply not a contentious matter in these negotiations. That is a simple fact. A very large percentage of what has been said today about the need for good faith and how dropping this blunderbuss will strengthen our position is, with the kindest of respect, totally irrelevant.

The EU has decided, for its own perfectly good reasons—it is keen to reach this deal; I utterly believe in its good faith—that this Bill will not stop substantive negotiation. What it would do, if the majority opinion in this House were to prevail, is stop the Government’s attempt to bring the DUP back into the Assembly. That will be its only real effect. Neither the Taoiseach nor the other Irish Ministers said a word about it yesterday at Committee A (Sovereign Matters), because this Bill is not central to them. What is central to them is the ongoing negotiation, which is proceeding with good faith on both sides and from which I sincerely hope for a result. It is very important to say that.

A great part of what has been said is, I am sure, very well meant but, to put it bluntly, totally irrelevant. It is not the realpolitik of the moment. That is very important to understand. Dropping this Bill will not transform those negotiations into a better or worse state. They are going on now; they are facing some very difficult problems—I think there may be some progress—and we can certainly hope, as I am sure everybody in the House does, for an outcome on this. But it is simply pointless, bootless and, worst of all, deeply irrelevant to keep arguing and going on about the need to drop the Bill because it would lead to greater faith in negotiation. The negotiations are already in play, in good faith—end of story. However, it would have an effect on our ability to get the DUP back into government.

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The most telling blow against the doctrine of necessity is that the Government themselves negotiated, signed and gleefully proclaimed the protocol as part of the withdrawal agreement, saying it had “got Brexit done”. Political convenience cannot now prevail against these weighty and damning arguments. If the Government have any hope or desire to persuade us against all these contrary views, surely the minimum they can do is share with us their full legal argument, by publishing the legal advice and justification they received. I beg to move my amendment.

[Lord Campbell of Pittenweem (LD)]

My Lords—oh, I give way to the noble and learned Lord.

[Lord Judge (CB)]

Thank you very much. Just so that we are not met with the argument that we never show legal advice as it is confidential—that there is no obligation to show it and we never do—and bearing in mind that I support the noble Lord, Lord Purvis, in arguing that Clauses 2 and 3 should not stand part of the Bill, I have some simple questions.

First, do the Government agree that the provisions of the Good Friday agreement are placed at the very front of the protocol? If the worries about the Good Friday agreement are the problem, then what is the answer to the protocol affirming that need to protect it? Secondly—this is not about legal advice—have the Government considered, and if so in what way, using Article 16 of the Northern Ireland protocol itself? I spell it all out: nothing to do with international law, just within the realms of the actual protocol. If not, why not? Thirdly, what is the necessity for Clause 13 removing the Court of Justice from the European Union’s oversight role in the determination of disputes over the withdrawal agreement? That does not involve giving legal advice; it involves informing the House. Finally, and I am sorry to ask this of an individual Minister because it is a matter for every Minister, have Ministers given thought to the possibility that they have contravened their obligations under the Ministerial Code to comply with the law?

I ask those four questions on the basis of what is contained in the Constitution Committee’s report. The noble Baroness, Lady Ludford, has raised them already, but can we just have specific answers to those questions, because without them Clauses 2 and 3 simply cannot stand?

[Lord Campbell of Pittenweem (LD)]

My Lords, I thought my days of trying to beat the gun had left me behind a long time ago. I apologise.

I wish to speak in support of Amendment 3 and am glad to see that the noble Lord, Lord Ahmad, is back in his place. I have a recollection, and no doubt he will correct me if I am wrong, that on one previous occasion when this issue was raised, he expressed some sympathy for the idea that the legal advice should be made available. We have heard already in these proceedings that there is not a lawyer in the House who does not think that the Government are acting illegally and that, I suppose, is a pretty unusual state of affairs.

We have also seen that the Delegated Powers and Regulatory Reform Committee observed at paragraph 4 of its report:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations.”


Given that the chorus of legal responses in the House is against the Government, perhaps the most notable being that of the noble Lord, Lord Howard of Lympne, and given the extreme criticism of the Government contained in paragraph 4, I respectfully suggest that the convention that legal advice is not made public should be set aside on this occasion. It is a convention; it is not a rule of law. If I may put it so, this is a case of such novelty and importance that it justifies the setting aside of the convention.

I also understood my noble friend Lady Ludford to be raising some questions about the issue of necessity. The Advocate-General will recall that in the course of his long response at Second Reading, he referred to the case of Slovakia against Hungary. I took the opportunity to read that case, and what we discover is that it is not in point at all. It was a case where both states were in breach of legal obligations and the international court called on them both to carry out their relevant treaty obligations. That is nothing to do with the issues which we have before us. But the noble and learned Lord was not satisfied with Slovakia; he went to Canada in 1995. He prayed in aid decisions taken then by the Canadian Government in relation to the Grand Banks and their overfishing, but there was no question of a treaty on that occasion.

If these two cases are offered as support for the notion that this case is one where necessity is justified, I would respectfully suggest that they do not support that thesis. The Government will have to do something rather more if they are to establish any question that necessity arises in this matter.

[Lord Pannick (CB)]

My Lords, I very much agree with what the noble Lord, Lord Campbell, said about this being a context where it would be enormously helpful to this House, and to Parliament generally, for the Government to publish legal advice so that we can understand why they assert, contrary to the views of most—if not all—lawyers, that what they propose to do is not a breach of international law. I anticipate, however, that the Advocate-General for Scotland will tell us that there is a convention that the Government are not prepared to publish legal advice. If that is his position, it would be enormously helpful to the House if he could at least address the substance of the criticisms that have been made of the Government’s position in international law. The noble and learned Lord told us at Second Reading that that was not the time or the place for him to address these arguments. I very much hope that today is the time and that he will tell the House, if he is not prepared to publish the legal advice, at least the substance of the Government’s argument.

First, why do they say that the test of necessity is satisfied, even though the protocol contains a mechanism for addressing disputes and even though, as the noble Lord, Lord Ahmad, told us a few moments ago, the Government are reserving the right to use Article 16? How can it be necessary to set aside the protocol when the Government themselves reserve the right to use a provision in the protocol which is designed to address the very problems that they are concerned about?

Secondly—I dealt with these points at Second Reading, but we had no answer—how can there be an “imminent peril”, when this dispute has been going on for three years, since the protocol was agreed? Why is it imminent, which is the requirement in international law?

Thirdly, since they have not told us this, what is the Government’s case as to how the doctrine of necessity can be satisfied when the International Law Commission, the academic analysis and the case law all say, “You cannot rely on the doctrine of necessity when you, the state relying on it, have contributed to the problems which you are complaining about”? How can it not be the case that the Government have at least contributed to the perceived problem when they signed the protocol after negotiations? If we are not to have the legal advice, can we please have at least some indication or hint as to what the Government’s case is?

While we are dealing with that, could we also please be told whether the Government’s legal advice associates itself with the argument of the noble Lord, Lord Bew? They have never said this, but is their argument that the Good Friday agreement establishes the test of necessity? I would like to know, please, the answers to those basic questions so that when we proceed with Committee we are at least informed as to what the Government’s position actually is.

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[Lord Bew (CB)]

Both the EU and the UK Government said at a number of points—three at least—that this agreement is designed to protect the Good Friday agreement in all its dimensions. Bluntly, it has not done that. We talk about legal opinion and what the Government’s argument has been. The former Lord Chancellor, in the Commons debate on this, made exactly that point. I read the protocol agreement and what did I see? There is a reference to the Good Friday agreement and the protection of it in all its dimensions. That is not actually happening. Both sides signed up in good faith hoping that was what would happen.

Both sides signed up to the protocol, which says that the UK single market should be protected in its integrity. It might be reasonably expected for that to happen. Do noble Lords think that the current provisions for checks are protecting the UK single market in all its integrity? The idea that we both signed up for stuff is very simple. I could go on forever about how “We both signed up for stuff.” To be absolutely honest, neither side fully understood what it was doing.

In particular, the negotiating history of this is clear. The EU did not understand the Good Friday agreement. Michel Barnier’s memoir is perfectly clear. We cannot make pigs fly. Michel Barnier’s memoir is based on a view of the agreement and the undertakings in it which is based on pigs flying. We cannot do it with the best will in the world and for all our enthusiasm to be loyal to something we signed up for. We cannot make pigs fly. His version of what he was protecting is not what it is—not by a long way. The reason for this is our negotiating defeat in 2017 and Mrs May, having effectively lost an election, desperately getting into talks. We cannot undo that; I am not saying we can. In history, we signed up for stuff and we are trying to find a compromise, but we cannot make pigs fly. We cannot make nonsense be operative. It does not matter how morally committed we are.

[Lord Campbell of Pittenweem (LD)]

I am very grateful to the noble Lord for giving way. Is there not a possible remedy here? If there are conflicting views, should we apply the principle of contra proferentem? Those who argue for a particular view have the onus of establishing that that view is the correct one.

[Lord Bew (CB)]

We are in a situation now where in Dublin it is accepted by those involved in the negotiation that they achieved a one-sided appropriation of this agreement. This then flows into the agreement of 2019. It was because of our weakness. We cannot undo it and we signed up for it—I get all that—none the less it is accepted by them that there is a problem. The problem cannot be met by saying “You signed up for it”, “Boris was a fool” or anything like that. It is a real problem at this moment. That is the key thing we are stuck with.

This agreement and the protocol say in numerous places—the former Lord Chancellor said it in the other place, so the Government have argued this very clearly—that it is about protecting the Good Friday agreement and for good measure protecting the integrity of the UK single market. This debate is rather different from the terms it has been couched in. I keep saying that the reality is about the interaction of a prior international agreement and the protocol agreement. There are different views of this.

While we are on this subject—regarding the evidence of Sir Jonathan Jones that was cited earlier—the Attorney-General in 2019 explicitly said in the other place, and it was repeated in this place, that there is a problem: where the protocol conflicts with the Good Friday agreement, the UK reserves the right to operate the existing prior international agreements. Who was working in the Attorney-General’s office then? I am certain there were some quite good lawyers when that happened.

We heard about Professor Mark Goldie’s observations, and they are absolutely true. He is a professor in public law in Cambridge who came to our committee in the Lords. I think Professor Boyle came to both committees. Professor Goldie listened to Professor Boyle, who I am certain does not support this Bill and who is much more open in principle to the arguments regarding international law, that the prior international agreement weighs heavily here. In the interaction of the two of them he personally argued Article 16 should be applied because you cannot demonstrate necessity unless it has been applied. I have often been attracted to that argument, but I am astounded by the number of Peers in this House who are mad keen for Article 16.

I am a historian, not a lawyer. I remember a few months ago when every civilised person was regarding the application of Article 16 and no one was saying “Oh, it’s in the treaty.” I remember the intensity of emotions—that this would be another foul act of disgraceful behaviour by the Government, even though it clearly is in the treaty. I am delighted there are so many converts today. I am not even sure; I think they might be right. It is a fashion change, not an international law change. The mood of the House has changed on this point, and nothing has changed in law.

I am not saying that Professor Goldie supports the Bill; I am certain he does not. As I said, I am not sure that Professor Boyle does either. Professor Goldie accepted the burden of Professor Boyle’s argument that it is very important to have upfront protection of the Good Friday agreement. The story about what international lawyers say—I am certain this will become even more complicated in this Chamber before this Bill finishes its passage—is a little bit more complicated. That is all I want to say. I am not saying that I know. I could not possibly say that sitting on this Bench with two very distinguished lawyers.

I am not making a claim about law but about history and what actually happened, how we got here and the mood on this, because that does rather matter. What I am saying is that the Government would be within their rights to say that there is a debate on this subject and there is a real problem. If you are not even talking—as most speakers today have not—about the interaction between the Good Friday agreement, the prior international agreement, and this agreement, then you are not even in the debate in any realistic way. They would have the right to say that.

Northern Ireland Protocol Bill

Lord Campbell of Pittenweem Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness Altmann (Con)]

My Lords, I congratulate the noble Baronesses, Lady Suttie and Lady Ritchie, on their amendment. I associate myself with the remarks about the democratic deficit problems that have arisen in Northern Ireland as a result of Brexit. Many of us in this House have always believed that a hard Brexit was incompatible with the Good Friday agreement. However, the Government assured the people of Northern Ireland and this Parliament that the Northern Ireland protocol was the answer to ensuring that Brexit would work with the Good Friday agreement. It clearly imposed a border between Great Britain and Northern Ireland, as the impact assessment explained. The problems that have arisen do not seem due to the intransigence of the EU; they are inherent in the protocol.

Brexit is yet another example of how, for so long—decades and decades—Britain has imposed things on the people of Northern Ireland and, as the noble Lord, Lord Kerr, said, done things to Northern Ireland, rather than working with the people there. But that is not a reason for our Government, shortly after signing the protocol, to say, “We don’t like it. We don’t like ECJ oversight or the EU deciding what it considers a risk to its single market. We must do that”, and then expecting the EU simply to accept that, in contravention of our signature on an agreement and of what was promised to the people of Northern Ireland.

Clearly, there is an issue. I hope my noble friend can explain how removing ECJ oversight and allowing the UK Government to assess risks to the single market will make hard Brexit work for all of the parties in Northern Ireland, not just the DUP.

[Lord Campbell of Pittenweem (LD)]

My Lords, the noble Lord, Lord Dodds, made a powerful—emotional, to some extent—speech last week and it certainly resonated with me. To a large extent, that has been reflected in the contributions so far, acknowledging that things have been done to Northern Ireland. Of course, when we consider what was done to Northern Ireland in relation to this protocol, it is right to remember that the then Prime Minister went to the DUP party conference and assured it that it was “oven ready”. In an aside, he also said, “Don’t worry about the paperwork”. Perhaps the DUP was overconfident in relying upon the word of the former Prime Minister: what has happened since has exploded the idea that what was in the protocol would somehow cover all circumstances.

The noble Lord, Lord Davies of Stamford, referred to the most helpful Library briefing, which says on page 50 that Article 16 is a “safeguard” mechanism. Are we looking for safeguards? Yes, of course we are. It allows either party to take temporary

“measures if the application of the Protocol leads to serious economic, societal or environmental difficulties that are liable to persist”.

On the attitude being taken by the DUP, what better definition can we have than this expression that embraces its concerns—almost exactly and in detail? It goes on to say that the “diversion of trade” is an issue that would justify reference to Article 16.

It seems that Article 16 has been rejected by the Government. I have never really heard a proper argument for why that should be the case. I will put it this way: if Article 16 does not cover what we are about today, when will it ever be of any relevance? This question would give an answer, though perhaps not one that would suit the DUP in every respect. Should Article 16 be invoked, an answer to this question would go a long way to helping those—including me—concerned about anything that might have the effect of undermining the Belfast agreement.

I think we will have a discussion later this week in this House about trade arrangements, so I will repeat a point I made in the last debate: the trade arrangements that were held in front of all our noses were those to be made with the United States. They were going to remedy any difficulties or subtractions that we might experience if we left the European Union. However, nothing much has happened with that. As I said then—I say it again now—we forget the extent to which the politics of the United States, as they affect us domestically in both Houses and across both sides of the aisle, are influenced by their attitudes towards Ireland. It seems that, so long as we have this unresolved issue, the prospects for a trade agreement are pretty remote. For this reason, I ask the DUP why Article 16 is not enough for it, and I ask the Government to give us a coherent explanation of why they are not willing to invoke it. At the very least, by invoking it, we would be able to test it.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is indeed a great pleasure to follow the noble Lord, Lord Campbell, with whom I had the honour of serving alongside for many years in the NATO Parliamentary Assembly. I understand that he continues to serve there with great distinction, so it is a pleasure to hear what he has to say.

On the issue of Article 16, I say with the greatest of respect: I well remember that, when this was being discussed and advocated by us and others, there was agreement that some of the articles in the Northern Ireland protocol should be suspended. Article 16 was absolutely opposed tooth and nail by the vast bulk of everybody, not just in Northern Ireland on the nationalist side but both here in this House and in the other place. In the last debate, I quoted statements from leading members of what was then Her Majesty’s Opposition, including the Liberal Democrat Benches—as well as others on the Conservative Benches—who were vociferous and vehement in their opposition to any notion of the implementation of Article 16. The Irish Government went so far as to say that it would completely upend the Belfast agreement, which seems to be the chosen form of words when something is proposed that is not liked. I hear with interest what noble Lords are saying now about Article 16, but that certainly was not what was being said a few months ago. Noble Lords should look back in Hansard to what the situation actually was. The reality is that Article 16—whether or not it was invoked—was not going to solve all the problems.

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[The Earl of Kinnoull (CB)]

My Lords, I really agree with every word that has just been said. I have another suggestion for the noble Lord, Lord Lilley. The truth is that most liberal democracies in the world exist in an environment where major changes to international agreements or the making of international agreements are scrutinised by Parliament on a fairly open basis. We all know, for instance, that Mr Šefčovič has a mandate. In fact, we know an awful lot about that mandate. Mr Šefčovič regularly briefs committees in the European Parliament and has a pretty good ability to bring the European Parliament along with him, which is important—and, indeed, to bring the 27 nations along with him as well.

I am not suggesting that we should copy and paste that, but I note that the PACAC, a committee of the other place, was in Norway last week. I had a detailed discussion with a member of that committee on Friday about how Norway deals with this. In fact, Norway also brings along its Parliament in a very open way and this does not appear to interfere with the negotiating process in the way the noble Lord was worried about. These are major changes to an international agreement. The international agreements process that we have, which we need to rebuild in this Parliament, should take account of that and should apply. That is a fairly open process to the committees and Members of both Houses; I feel that strongly. I do not see any other liberal democracies doing this. We are unique in having cut Parliament out of the process. I see no other democracies having problems of the nature that the noble Lord, Lord Lilley, is worried about. I could see that he was genuinely worried, but I have to say that I am not.

[Lord Campbell of Pittenweem (LD)]

My Lords, I will not rehearse what I said previously about Article 16, but I will see if I can answer the question posed by the noble Lord, Lord Lilley. If you are faced with two instruments that appear to be in conflict—which I think is what we are arguing—the first thing you do is have a detailed analysis of these instruments to see whether there is a provision in them that will enable you to reconcile the difference. The advantage of Article 16 has just been set out by the noble Lord, Lord Kerr. You are adhering to the treaty by using a term within the treaty that helps you avoid being in conflict with the other treaty. That is a possible way of doing it.

[Lord Bew (CB)]

If I may intervene briefly, I have tried to explain that I had an intense relationship with Article 16 when it was deeply unfashionable in this House. Many times in the last year, I have wanted to argue privately with the Government that it should be applied. The arguments made for it are impeccable and have been for years; that is simply the case. The problem is that this is not conceivably a rational moment. There are complaints about the Bill. Does it matter what the Irish Foreign Minister says? It is said that it does not matter; we are choosing to disregard it. This is a moment when we are negotiating seriously with the EU. Suddenly to come in and say, “By the way”—and the logic is, in general terms, superb—“we are applying Article 16 now”, is bound to be destructive of the negotiations that are proceeding. We must respect the reality of the moment.

[Lord Campbell of Pittenweem (LD)]

But if the consequence of doing so is to embrace a Bill which drives a horse and cart through the procedures and principles by which this Parliament operates, surely that is an inhibition and we should avoid it at all costs.

[Baroness Ludford (LD)]

To prevent the noble Lord, Lord Bew, having to get up and sit down again, I ask him again to appreciate and acknowledge that, as the noble Lord, Lord Kerr, said, nobody in the debates we have had, whether at Second Reading, on the first day in Committee or today, is arguing to invoke Article 16. No one is advocating its use, let alone now. All that is being said is that the legal argument of necessity invoked by the Government is undermined by the fact that they have never resorted to the use of Article 16; hence necessity is on very shallow foundations.

Northern Ireland Protocol Bill

Lord Campbell of Pittenweem Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Leigh of Hurley (Con)]

I cannot answer for the UK Government on whether they should have been raised before; that is clearly historical and we are where we are. In theory, there could be a negotiation with the EU to try to deal with some of these problems, but we would be on the back foot and there would be no reason for the EU to agree, whereas Clause 12 deals with it satisfactorily.

[Lord Campbell of Pittenweem (LD)]

My Lords, I associate myself with my noble friend Lord Purvis of Tweed and the noble and learned Lord, Lord Judge, who have made the case in very strong terms for why subsection (3) should be removed. I pause only to make one observation: it does not even specify the Minister but says:

“A Minister of the Crown”.


So not only is it an extremely wide power, it is a power available to any Minister in any ministry of any kind, at any time, without any restraint whatever. How can that possibly be consistent with the principles on which we pass legislation in this Chamber?

[Lord Lisvane (CB)]

My Lords, I apologise for not having been present for the first two days in Committee for family reasons. I am in violent agreement with my noble and learned friend the Convenor. It seems to me that this amendment, others in this group and, indeed, others in the Marshalled List seek to address something of a legislative slough of despond. If that is the case, it is a swamp that needs draining. I think noble Lords on the Government Front Bench will realise that the bar will be set very high indeed on Report.

I shall briefly address two other contributions. First, to respond to the noble Lord, Lord Campbell of Pittenweem, I may be misremembering but, from my past, I think “a Minister” is used as a generality in drafting to reflect the collectivity of government. It could be any Minister given the particular responsibility at the time, although I agree that some of the flanking provisions might draw that into a certain amount of doubt.

As for the noble Baroness, Lady McIntosh of Pickering, she is ever the peacemaker but I would discourage noble Lords from pursuing the idea of putting in an illustrative list of measures that might be subject to these powers. Illustrative is only illustrative: if they are not in the statute, they are simply a bit of an Explanatory Memorandum, if you like. Even if they are in the statute, no drafter or Minister will allow them to lie there without the assertion that they are not an exhaustive list, so that anything can be added at the whim of Ministers. As my noble and learned friend the Convenor pointed out, quite a lot is being done at the whim of Ministers.

Northern Ireland Protocol Bill

Lord Campbell of Pittenweem Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I think my priority is to complete Committee. Of course, I look forward to Report and the amendments proposed and that is when we will have further discussions on this matter—

[Lord Campbell of Pittenweem (LD)]

Before the Minister sits down, can he tell me whether there are any other circumstances in which the Government have promoted a clause containing terms such as these that he now urges upon us?

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[Lord Campbell of Pittenweem (LD)]

My Lords, I wish to add for a moment or two to what has been some pretty powerful gunfire from those who are eminently qualified in making the serious submissions they have made.

My attention has been caught by Clause 22(6), which seeks to interfere, one might say, with devolved authorities. Looking at my friend, the noble Lord, Lord Dodds, it occurred to me that, were he part of a devolved authority in Northern Ireland and there was the exercise of a power under subsection (6), he would take pretty short shrift with it, I am sure.

To introduce perhaps a rather vulgar political point, we in Scotland are concerned constantly with the movement towards independence. Part of that movement is, often by fiction, offered to the potential electors in a referendum on the basis that Westminster wants to interfere with Scotland. It seems to me that subsection (6) might provide rather more substantial evidence of an intention of that kind.

I know that there are honourable men sitting on the Government Front Bench, but do they really believe in their hearts that it is right to urge upon this Committee the contents of this particular subsection? Surely they must realise that it is inimical to every principle upon which Parliament is founded and this House operates. If I may be forgiven for my impropriety, it is time for the Front Bench to fess up.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Lord. I take the point that he made about Clause 22(6). As a Member of the Northern Ireland Assembly for many years, I know how much Members of the Assembly value their right to make laws in the areas that are devolved to it. However, I must say gently to your Lordships that, in recent times, there have been a number of examples of this House and the other place interfering in the devolved settlement in Northern Ireland. Although some of us have pointed that out, it has been with your Lordships’ positive assent and approval that the overriding of the devolved settlement in Northern Ireland has taken place in a number of areas. I would like to see a consistent approach to the devolved settlement in Northern Ireland, not this pick-and-choose approach where something being okay appears to depend on the issue of the day but, if you do not like what the Assembly has done, you can interfere—as seems to have happened on a number of recent occasions in this Parliament.

I want to highlight Clause 22(3). On the face of it, it appears—I am open to correction by those who are much more learned and have more legal expertise in these matters than me—to put some kind of restriction on the wide Henry VIII powers that are given under this particular clause. The one thing that it is apparently not possible for regulations under the Bill to do is

“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland which feature at the border … physical infrastructure (including border posts), or … checks and controls, which did not exist before exit day.”

Having listened to the debate, I think that may well be able to be swept aside at any point. However, why is emphasis put on the one thing that is mentioned? I look to the Government Front Bench as to why it is mentioned, given that it really has no effect. Of course, we do not want any extra infrastructure at the border between Northern Ireland and the Irish Republic and it has never been the desire or wish of anyone in the Northern Ireland political parties, or the Irish Government, the British Government or the EU, to have such infrastructure. But it would be quite helpful and an acknowledgement of unionist concerns if there were a similar provision which acknowledged—under strand 2, the north-south approach in the Belfast agreement and the importance of that relationship, but also strand 3, the east-west dimension—that regulations may not create or facilitate border arrangements between Northern Ireland and the rest of the United Kingdom.

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[Lord Ahmad of Wimbledon (Con)]

On that point and the earlier issue of why this is specific, we want to avoid a border between the Republic of Ireland and Northern Ireland in any shape or form. That is the specific nature of this and we have all desired that in our discussions, but I take on board and understand the noble Lord’s point. Indeed, the noble Baroness, Lady Hoey, also pointed to this and how the operability of the border is causing challenges. This is inherent in the protocol, which provides this de facto border between two different parts of the same sovereign nation. That is the problem that we are wrestling with and seeking to resolve—so I acknowledge the noble Lord’s point.

[Lord Campbell of Pittenweem (LD)]

Before the Minister is allowed to resume his seat, I understand and accept that the Secretary of State may be engaging with the devolved authorities. On that basis, may we take it that their responses to that engagement will be publicly available?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I will not go into the speculative nature of what each devolved Administration will say, but we have great resilience and passion within our devolved Administrations and I am sure that, as discussions and negotiations progress, both the Government and your Lordships’ House will be very clear about what the Administrations think.