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.

--- Later in debate ---

[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.