Northern Ireland Protocol Bill

Lord Cormack Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

Moved by

[Lord Cormack]

At end insert “but that this House regrets the early introduction of this Bill, and calls on His Majesty’s Government to delay further consideration of the Bill for six months, so as to allow time to reach a negotiated settlement with the European Union”.

[Lord Cormack (Con)]

My Lords, I have never moved an amendment expressing regret before and I thought long and carefully before putting this one down on the Order Paper. I hope I speak for the whole House in saying how good it is to see my noble friend Lord Ahmad still on the Front Bench. He has come a long way since he was my Whip and we had a very amicable conversation yesterday, for which I am extremely grateful. I am glad that during his speech he referred on a number of occasions to the Government’s preference for a negotiated settlement. I believe that is important and, in saying so, that it will be far more helpful for the continuance of the Belfast agreement if we come to a united position with our European friends and former partners.

I believe that many things are at stake here, primarily this Government’s reputation as an upholder of international law. When we consider the serious and precarious position of the world today, underlined by those dreadful photographs in this morning’s paper, we have to realise that it is very important that we work with our international friends and neighbours and that, in our relations with them, we carry forward that spirit of unity in our nation that was so manifest only a couple of weeks ago. It is not helpful, while we continue those negotiations, to have on the statute book a Bill that is, in effect, an implied threat. I believe that there is a case for a pause.

I am not advocating, and have not advocated, that this House should go against its long custom and deny the Bill a Second Reading: we have our limitations, and we must not exceed them. But we also have a specific responsibility to uphold the constitution of our country and to maintain the rule of law nationally and internationally. We also have to remember—

[Lord Forsyth of Drumlean (Con)]

My noble friend says his amendment would allow a Second Reading but in effect it wrecks the passage of the Bill by delaying it for six months. The Bill was approved by the House of Commons without amendment; does my noble friend think that this is the proper thing for this House to do?

[Lord Cormack (Con)]

Yes, it is entirely proper and consistent with this House’s role to pause, which is all that we are doing, and my noble friend knows that. We had a long conversation the other day, and my noble friend tried to persuade me that he was right, but I am afraid that, much as I genuinely admire and respect him as a great parliamentarian, I do not agree with him on this occasion, and he knows that.

It is crucial to remember that we have a constitutional role. We are not transgressing that role by calling for a pause, as my regret amendment and that of the noble Baroness, Lady Chapman, do. We have discussed these things and decided on the best outcome today. Because the Official Opposition are not prepared to have a vote today on either their own amendment or mine, there will not be one, so far as I am concerned. But that does not mean that the arguments have disappeared or that, in the two weeks between now and Committee, we will not continually be thinking about how best to achieve a pause in the passage of the Bill while we have proper negotiations.

[Lord King of Bridgwater (Con)]

My noble friend rightly paid tribute to the Minister and the fact that the negotiations are going forward. I think he shares the view that, if we can reach an agreement outside the protocol, that is the best way to go. But I am very surprised about the timing of his regret amendment, because it seems to me at this stage that every effort has been made to reach an agreement. Stopping the Bill at Second Reading might introduce all sorts of new elements into the negotiations. I suggest ensuring that the negotiations can continue. If my noble friend then feels that the outcome of the negotiation is constitutionally unacceptable, surely that is the moment at which he should raise this matter, rather than Second Reading. There are many weeks ahead of us for Committee, Report and Third Reading, which would be open for him to move his amendment. I understand my noble friend’s constitutional point, but I completely fail to understand his timing.

[Lord Cormack (Con)]

My noble friend is entirely entitled to his opinion, but I remind him that, until very recently—by which I mean the last two weeks—no substantive negotiations took place between March and now. My noble friend, in his great distinction, is fully entitled to have whatever view he wants, but I do not believe that to hold a sword of Damocles, as it were, in the form of this Bill over negotiations is a good idea. We would be far better negotiating with our friends and neighbours by treating them as friends and neighbours whom we totally trust. Should things go badly wrong, we will have to return to the Bill.

I remind noble Lords in all parts of the House that, in Northern Ireland, there is certainly a majority opinion—I am not talking about the DUP—reflected in the composition of the Northern Ireland Assembly, which has been elected but sadly does not meet, that the protocol should be amended but should not be ditched, and that this Bill should not pass. I have many correspondents from Northern Ireland who tell me that this is very much the general view, and certainly the general view in the business community of Northern Ireland. They want a degree of certainty and to have these matters resolved as soon as possible, but they want them resolved in a way that preserves the essence of the protocol. That is the opinion of that part of the United Kingdom. I find it very sad that the world is in such a precarious state—I refer again to those terrible photographs in today’s newspapers about what happened in Ukraine yesterday. During this time, we need to try to have the sort of unity that our Prime Minister is, I believe, arguing for today in the G7—and that should apply throughout. Therefore, there is a very strong case for pausing these negotiations.

As I have said, I have had conversions with the noble Baroness, Lady Chapman; she is not going to move her amendment to a vote tonight and I am not going to push mine to a vote tonight—I make that absolutely plain here and now. However, this is not going to solve the position. Before we come to Committee, we must see whether it would not be advisable to pause the Committee while negotiations continue—the Bill will have had its Second Reading, so that is not in jeopardy. I accept the ultimate supremacy of the House of Commons—as I have argued many times in your Lordships’ House on a whole range of issues—but we have a role to play, and we should seek to play it.

I ask noble Lords to reflect for a moment: most of us in this House are anxious to preserve the United Kingdom as a union. We are anxious to have the closest possible relationships with other western democracies in Europe and across the Atlantic. Do not let us forget that one of the people who is most troubled by the Bill and its implications is the President of the United States, who has made his views very plain to the Prime Minister and others.

There will be no vote tonight, but I beg noble Lords to think carefully about some of these issues and to reflect on the importance of having a stable relationship and a series of agreements, which have not come about and will not come about by our seeking to ride roughshod over the principles of international law. I rest my case and beg to move.

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[Lord Cormack (Con)]

My Lords, we have had a very long debate. I have heard every single word of it because I have not been out of the Chamber. I will be very brief.

All I say to my noble friends on the Front Bench is that there were 59 speakers, 40 of whom were troubled and against the Bill and 19 of whom were in favour of it, including government Ministers. I urge my noble friends please to consider carefully what has been said: consider what has been said about the emasculation of Parliament; consider what has been said about alienating friends at a time when we need them most of all, in a dangerous world; and please, before Committee begins, realise that there is deep disquiet throughout this House and in many quarters of the Conservative Party—I think I heard 10 speeches on this subject. Please can my noble friends talk and consider, and remember that decisions made in haste are not always the best decisions—that was really the subtext of the speech made by my noble friend Lord Frost.

I will not trouble the House further. I beg leave to withdraw my amendment.

Amendment withdrawn.

Northern Ireland Protocol Bill

Lord Cormack Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

However, it dates back to the last Prime Minister but one, and today, as the noble Viscount, Lord Hailsham, said, we have a new Prime Minister and a new Administration, a chance to turn over a new leaf, to bring back honour, to make our word again our bond and to negotiate in good faith with the EU on the practical implementation of our mutual obligations under the protocol. I am sure that Mr Sunak is an honourable man—it would be tactless to say, “like Brutus”. I hope he will now choose not to pursue this Bill. It would be the right thing to do, and it would also be the sensible thing to do, because negotiations cannot succeed while this blunderbuss is on the table and because I believe that this House will, if it has to, vote the Bill down.

[Lord Cormack (Con)]

My Lords, I speak with a sense of something approaching elation from yesterday. We have a new Prime Minister, who appears to be a man of absolute honour—I take up the points made by the noble Lord who has just spoken. I have hope in him, and I hope he will justify that hope, which I believe is shared by many.

I do not want to make a long speech. I moved a regret amendment at Second Reading, and I was rather sorry in many ways that I was not able to put it to the vote, but clearly the House did not want that to happen at that time and it was right to listen to the House.

I would like to give one message above all others to the Prime Minister. What took Northern Ireland forward—the noble Lord, Lord Hain, with whom I worked in Northern Ireland when he was Secretary of State and I was chairman of the Northern Ireland Affairs Committee, knows this better than I—was prime ministerial involvement; that was the key to success.

Both John Major and Tony Blair devoted enormous time and attention to what led to be the Good Friday agreement. I remember being present in the Royal Gallery when the Taoiseach, Bertie Ahern, came, together with Tony Blair, to speak to both Houses of Parliament. Tony Blair was particularly careful to say that this was not just his achievement, and that without the building blocks laid by John Major this could not have happened. There has to be a cross-party accord; there has to be prime ministerial involvement.

Our present Prime Minister has inherited a herculean task. If he is going to devote time to the economy, he clearly cannot be devoting an equal amount of time to Northern Ireland at the moment. What he can do, however, is to encourage those who are negotiating on this country’s behalf to negotiate. He can remove what I called in the Second Reading debate the sword of Damocles, which is this Bill. It is a bad Bill; it is a Bill that gives powers that no democratic Minister should ever seek in a plethora of Henry VIII clauses. Therefore, what I beg Mr Sunak to do is to just go carefully and then, as soon as it is possible, to go to Northern Ireland with the Secretary of State. I do not know who that will be, because the Prime Minister is reconstructing his Government even as we sit in this Chamber this afternoon. He has promised—and I was there when he promised it yesterday afternoon in Committee Room 14— a broadly based Administration, which we desperately need. We have had Administrations produced by Boris Johnson and Liz Truss which were by no means broadly based. They were merely gatherings of like-minded people and, in constructing their Governments, the two Prime Ministers did not really take sufficient account of variety and ability.

I hope that Mr Sunak is doing that as we speak. I hope that he will go to Northern Ireland soon; that he will talk to those who are negotiating on behalf of the Government with the European Union; that he will recognise that the very last thing that this country needs is a trade war, referred to earlier in this debate; and that he will pause. There is no great hurry and, even if the Government are in a hurry, your Lordships’ House is not in a hurry. This could take hours and hours and days and days, but at the end of the day this Bill is unimprovable, because it trashes our international reputation and the things that we are most proud of.

My noble friend Lord Howard’s reference to Putin, in his brilliant speech on Second Reading, was entirely apposite. We have to set an example; we have to show that we are indeed the guardians of one of the best democracies in the world. We have got to show that we are not prepared to sanction a Bill that rides roughshod over our national reputation. Like my noble friend Lord Hailsham, I would support either of these amendments if they were put to the vote tonight. But I understand why those who have proposed them in very persuasive terms perhaps do not want to do that. However, there must be a day of reckoning in your Lordships’ House because this Bill is bad for our country and bad for our future, and it must not go onto the statute books.

[Baroness O'Loan (CB)]

My Lords, I speak as one who lives in Northern Ireland and experiences on a regular basis the impact of the bureaucracy associated with the operation of the protocol. I spoke at Second Reading of my concerns about the Bill and I want to support both amendments placed before your Lordships today, because we do not have the information that would underpin proper consideration of the necessity for the Bill. No doubt a solution has to be found to the various problems arising in the operation of the protocol but, as witnesses to the Northern Ireland protocol sub-committee of the European Affairs Committee told us—we heard evidence last Friday in the Northern Ireland Assembly—this Bill is like placing a gun on the table at the negotiations.

I hope that, even at this late stage, the Prime Minister and the usual channels will consider the matter further and withdraw the Bill—in light of your Lordships’ interventions today, of the reports of the sub-committee on the protocol, those of the Delegated Powers and Regulatory Reform Committee and, most of all, in light of the report of the Constitution Committee, which says:

“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments. The Government’s reliance on the doctrine of necessity does not justify introducing this Bill. This raises the question of whether ministers might be thought to have contravened their obligation under the Ministerial Code to comply with the law, including international law.”


This is the most serious of observations by the Constitution Committee. I will vote against the Bill when we get an opportunity to do so but, at present, I support the amendments.

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[Lord Cormack (Con)]

My Lords, I would like to make a suggestion. It seems to me that we are not going to achieve a great deal by going through amendments that are not going to be voted on. I understand it is the convention anyhow that we do not vote in Committee, but I would like to appeal to my noble friends on the Front Benches. Rather than the next Committee session, which is scheduled for Monday next week, why can we not have, perhaps in the Moses Room, a thorough briefing from Ministers on exactly where negotiations are, what has already been agreed and what remains to be agreed, so that we move forward on the basis of being informed by our ministerial colleagues on this very complicated and important subject?

In making that suggestion, I take into account the points made by the noble Lord, Lord Bew, in his brave intervention. I agree with the noble Lord, Lord Pannick. He and I did not agree with what the noble Lord, Lord Bew, was saying, but it was a brave and helpful contribution. I think a discussion, perhaps in the Moses Room or another committee room, could be very helpful. It would not hold up progress for more than one day and we would go forward perhaps knowing a little more about the Government’s thinking.

There is, of course, the point made by the noble Baroness, Lady Ritchie. I know my noble friend Lord Caine. I admire him very much, and I know he spends a lot of time in Northern Ireland, but the other Ministers should be there, too. I very much want to see, and I made this point in my earlier intervention, our Prime Minister going there as soon as possible, and I take the amendment to that suggestion which came from the noble Baroness, Lady Ritchie, that it would be good to have the Taoiseach there as well, because the Republic and the United Kingdom have to work together. Without working together there would have been no Northern Ireland agreement, and without, in fact, the participation of George Mitchell there probably would have been no Northern Ireland agreement. I put this forward as a constructive suggestion. I would be grateful if whichever Minister is going to reply to this debate could make some reference to it.

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[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I turn to Amendments 3 and 67 in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Purvis of Tweed. The Government acknowledge that the noble Lord and the noble Baroness are right to raise the important issue of the relationship of this Bill to the United Kingdom’s international legal obligations.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, I consider that the amendments proposed are not necessary. The Government have published a statement setting out their legal position. I will expand on that position during my submission, in particular to answer the points raised by the noble Lords, Lord Pannick and Lord Kerr of Kinlochard, and others. None the less, a statement has been published, to which the noble Lord referred, setting out the Government’s legal position that the Bill is consistent with the United Kingdom’s international obligations.

Noble Lords chided me gently for perhaps going on a bit long at Second Reading—

[Lord Cormack (Con)]

Yes, you did.

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend. I was left by some of the strictures and anticipations of my point from noble Lords looking for synonyms for the words “long-standing convention”. However, in light of having been criticised for going on a bit long and the hour, I will confine myself to repeating—or rehearsing—the point noble Lords anticipated I would make.

It is a long-standing government policy and convention accepted by Governments of all parties not to comment on legal advice provided to the Government. A number of noble Lords who have been present in this debate or at Second Reading will understand personally the importance of that, having acted as internal or external counsel to His Majesty’s Government.

I was asked by the noble Lord, Lord Pannick, about the protocol and its place in relation to the Belfast/Good Friday agreement. The protocol puts that agreement at the forefront; the problem is that, in its implementation, it is undermining it.

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[Lord Stewart of Dirleton (Con)]

My Lords, that question brings me on to dealing with the terms of the argument in relation to Article 16, about which we have had some submissions from the noble Lord himself, the noble and learned Lord, Lord Judge, the noble Lord, Lord Dodds of Duncairn, and the noble Baroness, Lady Ludford. Triggering Article 16 would not solve the problems of the protocol. It would only treat some of the symptoms, without fixing the root causes of those problems. It has inherent limitations in terms of its scope. Such safeguard measures might address trade frictions but not the broader identified impacts of the protocol such as I have been founding upon. The legislation that the Government propose provides the comprehensive and durable solution required and certainty for businesses and the people of Northern Ireland.

[Lord Cormack (Con)]

I must confess that I am very troubled and puzzled. If the Government have decided that this is what they are going to do, that is incompatible with having proper negotiations. How can my noble and learned friend explain that?

[Lord Stewart of Dirleton (Con)]

My Lords, as your Lordships have heard from my noble friend Lord Ahmad of Wimbledon and the noble Lord, Lord Bew, this is not identified as an inconsistency by our counterparties in relation to this matter.

The Government’s legal position is that our legislation is necessary and justified, and we make that assertion without prejudice to our position in relation to Article 16—again, as your Lordships heard from my noble friend Lord Ahmad of Wimbledon earlier. Article 16 is expressly limited. It is the Government’s view that it would not solve all the societal and political issues identified, including those identified today in some of your Lordships’ contributions to the earlier debate, whereas the Bill provides a comprehensive solution to those problems.

The noble Lord, Lord Campbell of Pittenweem—who in another context is my learned friend—referred me to the examples I cited when winding up at Second Reading of cases which set out the doctrine of necessity. The Canadian fisheries case concerned the Convention on Cooperation in the Northwest Atlantic Fisheries, which was a treaty. The Hungary-Slovakia case to which I also referred was a dispute about an agreement between the two parties for navigation of a river and the construction of infrastructure. In any event, I think the answer to his point is that the concept of necessity and its application in these circumstances is admitted within the articles of state responsibility.

Northern Ireland Protocol Bill

Lord Cormack Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I believe it would be for the convenience of the House if I were to put the Question to the House and perhaps allow the matters which have been raised by the noble Lord and potentially by others to be discussed when there is a question before the House. The Question is that the House do now again resolve itself into a Committee upon the Bill.

[Lord Cormack (Con)]

I understand my noble friend’s desire for clarity and certainty, but the Government would be performing an enormous public service if they withdrew the Bill today.

Motion agreed.

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[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I am absolutely delighted to add my name to this suite of amendments in the name of the noble Baroness, Lady Suttie.

These amendments clearly have a specific purpose. First, I believe that full recognition needs to be given by your Lordships’ House and the UK Government that the Good Friday agreement is the bedrock upon which all institutions are based and out of which they emerged. It includes three strands: the Northern Ireland Assembly and the Executive; north/south; and east/west.

Devolved structures and the power of the MLAs must be recognised, acknowledged and reflected, and their mandate must be so acknowledged. They must be allowed to have an accountability role. If this Bill becomes law and results in the limitation of the protocol, your Lordships should remember, as the noble Baroness, Lady Suttie, said, that a majority of MLAs elected in early May wrote to the then Prime Minister, Boris Johnson, indicating their opposition to the provisions in the Bill.

It is important, as I said, that the UK Government recognise that the majority of Assembly Members support the protocol, with refinements. They believe, as I do, that mitigations are required and, most importantly, they want the restoration of political institutions, particularly after Friday’s very odd press conference, given by the Secretary of State in the middle of Chichester Street in Belfast with onlookers walking past. An election will serve no purpose whatever. We would probably end up with a more polarised outcome in Northern Ireland and it will not have served its purpose.

The view of Assembly Members was also reflected in a recent poll by Queen’s University Belfast, which stated that 51% think that the protocol is having a positive impact on the Northern Ireland economy. Immediately we see the evidence of our divided society in Northern Ireland—63% think that it offers opportunities that could benefit Northern Ireland and 60% think the same about its impact on British-Irish relations. There is a fear that the UK Government are not operating or proposing a consensual approach through this Bill and are recognising only the views of unionists. Arrangements work in Northern Ireland only when they have the buy-in of unionists, nationalists and the non-aligned, and that is not possible under the provisions of the Bill.

We have no political structures operating at the moment, with no impetus from the Government to have them up and running. I hope that this week’s discussions between the Secretary of State, the political parties and the Irish Government will produce better outcomes and a better trajectory of travel. People do not want direct rule; they want their own Government.

Elections will not provide the answer, as the default legal position allows. Designation of Joint First Ministers should have been allowed. That would have obviated many of the problems currently being experienced. I hope that if there are negotiations and there is a review of the institutions, this issue comes back into; the Minister will recall this item being discussed in debates on the Elections Bill. It is worth noting that, very sadly, institutions have operated only at a very low percentage in the last 24 years. There is a need to end the inherent sectarianism that was ushered in by the St Andrews agreement in 2006-07.

It is also important to remember that the poll from Queen’s University told us that 65% of the Northern Ireland Assembly agree that the Northern Ireland Executive should be fully functioning regardless of what happens with the protocol, while 32% disagree. Broadly, these figures represent the political support and opposition in the Assembly in relation to the protocol.

The protocol should not have prevented the restoration of all the institutions. Noble Lords will become very angry when they realise that there are important issues for many people, such as the cost of living, the cost of doing business, and health waiting lists and getting on to these. It is worth noting that, at the evidence session during the protocol sub-committee’s visit to Belfast two weeks ago, young people who were there as community representatives viewed health waiting lists and the cost of living as much more important than the protocol.

The bottom line is therefore that the GFA standard, in all its strands, must be adhered to and protected. The pathway to that includes the need for all-party talks to resolve the outstanding issues. Rather than having a potential election, there must be renewed vigour in the UK-EU negotiations on the protocol, not only on the technical aspects but with the political negotiations that are urgently required. My fear is that any election process could stop the political negotiations. There has been a renewed focus on the technical, and it is important that renewed focus is given to the political.

I support the amendments in my name and that of the noble Baroness, Lady Suttie. I urge the support of your Lordships’ Committee. The accountability mechanisms in the Northern Ireland Assembly must be recognised and adhered to if this Bill is passed. They must be given their say, because the vast majority of Assembly Members elected do not agree with this Bill. They would prefer that it were not on the table and that the Government removed it.

[Lord Cormack (Con)]

My Lords, Harold Macmillan, that great Tory Prime Minister, had a quotation on his desk or wall—I forget which—by WS Gilbert:

“Quiet, calm deliberation disentangles every knot.”


If there were ever a need for this, it is now, on the issue of the Northern Ireland protocol: a treaty negotiated by a British Prime Minister and one of his colleagues, who is present this afternoon; commended to both Houses of Parliament; and given support—with a degree of reluctance, because many of us realised that it was far from perfect.

I understand why my noble friend Lord Howell of Guildford made the brief point he made before he left the Chamber. I believe that we are wasting our time in a prodigal fashion. To quote the noble Lord, Lord Reid of Cardowan, many years ago, the Bill is not fit for purpose. It never will be, however many amendments we pass on the Floor of your Lordships’ House.

We have all agreed that there will be no call for Divisions in Committee. Colleagues on both sides of the Committee know that I would have liked to have a vote to pause proceedings at Second Reading. However, it was conveyed to me that the Labour Opposition were not prepared to support that, and it would not have been right for me to go ahead when I clearly did not have strong support in all parts of the House.

We are now in an Alice in Wonderland situation where a series of amendments—the noble Baroness, Lady Suttie, moved her amendment eloquently and persuasively—are not going to change the fundamental nature of the Bill; they are not going to make it acceptable. So this charade is going to continue through today and two more days, and then the Bill will go to its Report stage. I beg my noble friends on the Front Bench: for goodness’ sake, pause it there at least, so that negotiations can take place without any implicit threats over our European friends and neighbours. I deliberately and repeatedly call for that. Let us have those negotiations, and let us hope that they are entered into in good faith on the both sides.

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[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?

[Lord Pannick (CB)]

I completely agree with the noble Lord, particularly in relation to his tribute to the noble and learned Lord, Lord Judge. In his absence—as his junior as it were—I draw this Committee’s attention to the quite extraordinary report of your Lordships’ Delegated Powers and Regulatory and Reform Committee to which reference has been made before, particularly at Second Reading, but it bears repetition. Its seventh report of this Session says at paragraph 4 that this is

“a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms.”

It continues:

“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”.


That is quite an extraordinary criticism of this legislation. It is made not by novices but by highly experienced and respected Members of your Lordships’ House across party lines. I find it deeply regrettable that the Government should think it appropriate to continue with a Bill that has attracted such cross-party criticism.

Northern Ireland Protocol Bill

Lord Cormack Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Crawley (Lab)]

My Lords, I too support the amendment in the name of the noble Lord, Lord Purvis of Tweed, for all the reasons that the noble and learned Lord, Lord Judge, gave. When the Minister replies to the noble Lord, Lord Purvis, will he point to the incident that triggered the grave and imminent peril that forms the basis of the doctrine of necessity that the Government have used in justifying the Bill, with its extraordinary powers for Ministers?

[Lord Cormack (Con)]

I should just like to ask a question of whichever Minister will reply to this brief debate. I am of course entirely on the side of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Purvis, in what they said. I understand why my noble friend raised his commercial points, but between us and him is a great gulf fixed. What we are concerned about is the arbitrary and unfettered power of Ministers.

I have great respect for all three of the Ministers who are handling this Bill, and great sympathy for them, but are they truly happy to exercise such unfettered powers without reference to Parliament and proper debate? We go back to where we were on Monday: the imbalance of power and the excessive power of the Executive, which has been growing like a mad Topsy for the last few years. It is deeply disturbing to anybody who believes in parliamentary government, and I want to know if it is deeply disturbing to the Ministers on Front Bench this afternoon, because if it is not, it should be. I would be much more worried than when I got up if they tell me that they do not mind.

[Lord Pannick (CB)]

Could I suggest to the noble Lord, before he sits down, that the real question is not whether the Ministers on the Front Bench would be happy to exercise these powers, but whether they would be happy for their opponents, were they to be in office, to exercise these powers.

[Lord Cormack (Con)]

As so often, the noble Lord puts it very well. It ought to be a parliamentary lesson to us all: never seek to take to yourself powers that you would not be happy to see the other side have. The noble Lord put it very succinctly and I endorse what he said.

[Lord Dodds of Duncairn (DUP)]

My Lords—

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[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

Lord Cormack Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I will speak in favour of Amendment 38, tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name.

My noble friend Lord Purvis of Tweed has already spelled out in great detail the potentially huge increase in power that Clause 18 could grant to a Minister of the Crown, and I believe that the noble Lord, Lord Pannick, has further explained the total lack of clarity as regards this clause.

I was reflecting on the many debates we had on this Bill last week and on the general and frankly astonishing lack of clarity from the Government as to why such sweeping powers should ever be deemed necessary—the Rumsfeld “unknown unknowns” clauses, as my noble friend has coined them. Later this week, I believe we will be hearing a Statement from the Secretary of State for Northern Ireland on progress—or, indeed, lack of progress—in bringing back the Northern Ireland Assembly and a functioning Executive, and whether there will be elections imminently in Northern Ireland to overcome this impasse.

The Government and other noble Lords have stated that one of the Bill’s main purposes was to deal with the understandable concerns of the unionist community, particularly the DUP, about the impact of the Northern Ireland protocol. One can hope that the talks taking place in Brussels and at the climate summit in Egypt will lead to genuine negotiations and a potential framework for agreement. It has also been stated that one of the Bill’s purposes was to facilitate the DUP’s return to the Northern Ireland Executive, yet it remains far from clear that passing this legislation in and of itself would achieve this. It is therefore increasingly hard to understand why we are pushing ahead with this very bad Bill, which sets so many dangerous precedents, if it does not, in itself, achieve even one of its so-called “main objectives”—namely, a much-needed return to a functioning Northern Ireland Assembly and Executive.

When the noble Lord, Lord Ahmad, replies to this group of amendments, I would be very grateful if he confirmed that re-establishing the Northern Ireland Executive remains one of the Bill’s primary purposes. If it is, does he not agree that other much more productive approaches, such as genuine negotiations and a change of tone, could be taken that would achieve exactly the same goal, but more effectively?

[Lord Cormack (Con)]

My Lords, here we are again. I could not disagree with anything that has been said by anyone who has spoken. I would like the Minister, for whom we all have real affection and high regard—

[Lord Empey (UUP)]

Wait for it.

[Lord Cormack (Con)]

Of course, everything is discerning and discriminating.

I would like the Minister to give us two reasons, or even one, why it is sensible to carry on with this Bill. We have heard today from the noble Baroness, Lady Ritchie, that sensible talks seem to be taking place on the fringes of the great COP meeting in Egypt and there are other signs of talking going on, so what is the point—I have used this expression before, and I make no apology for using it again—in Parliament putting government and negotiators into a straitjacket? It is just nonsensical. We all hope the negotiations will result in certain changes to the protocol, but why drive this Bill through at this very time?

The noble Baroness, Lady Suttie, talked about the DUP. I have always felt that it is bad to pay danegeld. That, really, is what is happening here, and it is mixed up with treaty obligations—I underline the word “obligations”—and with opportunities which many people in Northern Ireland wish to take advantage of, suitably amended.

We are on our fourth day of debate on this very bad and, in my view, wholly unnecessary Bill. Let us pause it. Let us watch the negotiations with—I hope—acclamation and welcome their results. Let us not waste parliamentary time on such a badly drafted Bill. As the noble Lord, Lord Pannick, reminded us, even the explanatory clauses do not explain it; they obfuscate and make it worse. Let us get on with some proper business and leave this rubbish in the heap where it should be.

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[Baroness McIntosh of Pickering (Con)]

Before the noble Lord sits down, could he go one step further and ask my noble friend the Minister, in responding to this debate, to say whether he agrees with the analysis of the noble Lord, Lord Kerr, which I do, that we would be in breach not only of the withdrawal agreement but of the trade and co-operation agreement? It would be very good to get that on the record at this stage. Will he just go so far as to press the Minister, in summing up, to say whether he agrees with his analysis?

[Lord Cormack (Con)]

He has done so.

[Lord Empey (UUP)]

My Lords, Amendment 38, among others, refers to the role of the Northern Ireland Assembly in approving the conduct of Ministers. I suppose that a parallel would be a legislative consent Motion; it is the same kind of principle. It is good to hear that negotiations are taking place, but the people who are most directly affected not just by this legislation but by the protocol itself are excluded from this process. Noble Lords should bear in mind that, if a trader brings a vehicle into Northern Ireland from Great Britain, the first person whom that trader will deal with will be an employee of a Northern Ireland government department, responsible to a Northern Ireland Executive Minister.

The people who are the most directly affected and who have a direct responsibility for the implementation of any of these processes—that is, the politicians in Northern Ireland—are spectators in a matter that most directly affects them. Of course, it is a national issue and an international issue; but when you drill down, as Amendment 38 is attempting to do, the people with their hands on the problem on the day, every day, are out of the frame altogether.

Now I do not care what the issue is, but have we learned nothing in this place over the last 30 or 40 years? If you exclude people from something that directly affects them—and we had the Anglo-Irish process in the mid-1980s, when we followed the same principle that you negotiate over somebody’s head and shove a piece of paper in front of them and say, “There you are: implement it”—it will not work.

Amendment 38 is just one example. Will the Minister ask his colleagues to engage the politicians in Stormont directly in this process? That could be part of a solution. When we were part of the EU, it was not unusual for Ministers from Westminster to include devolved Ministers with them in their delegations. That was quite a normal process. Can we not adapt that principle? One Minister said a week or two ago—he meant well, I have no doubt—“Leave it to us. We’ve got your back here. We’ll look after it for you.” I have to say, with the greatest respect, that our backs are so full of dagger holes that we know all about that. We will believe only what we see and hear ourselves. Bring our politicians into the picture; bring them to the table with you so they are not your enemy.

I accept, of course, that we are dealing with an international issue, and foreign affairs and related matters are not devolved—I get that. But have we not enough flexibility to bring people along as part of our delegation so that they can see persons and papers? We do not have to break any rules. What is so secret?

Before he left office, I asked the noble Lord, Lord Frost, who is in his place, a Question about all the committees that have been set up under the agreement and who populated them. I think he left office before he was able to reply to that Question, but who are they? I do not know who they are. Where are they? How many of these committees do we have? All I can tell you is that nobody of political significance in Belfast is engaged. It will not work—fix it. Let us make these discussions meaningful. Let us get the people who have to deliver what is agreed, at the table. We would never have got the Good Friday agreement had we not done that by bringing everybody in.

I have listened at some length to the arguments about the legality of the legislation and its role. I am not a lawyer, but I respectfully invite colleagues to review the evidence submitted to the Sub-Committee on the Protocol in Ireland/Northern Ireland by Professor Boyle and another colleague from the University of Cambridge on what they consider to be the legal position of this legislation. They came to the joint conclusion that the Article 16 process would have to be involved in order to make it legal. I do not know whether that is right or wrong, but I refer Members to that piece of evidence. The transcript is available, it was a public investigation by our committee, and I commend it to colleagues. I ask them to look at it and see what merit there is for us.

There is a solution here; we can find a way through this. However, I can tell colleagues from years of experience—other people in this Chamber can do the same—that, with the process that we have chosen to take, we are going about things the wrong way. I understand where the Government are coming from with the legislation, and I do not wish to see the UK Government’s negotiating position weakened, but I want success. We are facing the worst crisis economically in many decades. Northern Ireland’s community is facing increased costs, in part as a result of the protocol, obviously we have the lowest levels of income, and we also have a different energy system to the rest of the United Kingdom.

Basically, our political class is out to lunch. We are not contributing anything to the solutions, because of the stand-off at Stormont. I do not want to see Sinn Féin’s argument that Northern Ireland is a failed political entity justified, and that is the risk we are taking. My appeal to the Minister concerning any—indeed, all—of these amendments involving support and approval from the Northern Ireland Assembly is that one of the ways to get the Assembly going again is to engage the people who have to operate the outcome of the negotiations, so that they are part of the solution and have ownership of it.

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[Lord Cormack (Con)]

I am sorry to interrupt but I am most grateful to my noble friend. The noble Lord, Lord Empey, made a very powerful and constructive speech. I listened to what my noble friend said in response to the noble Baroness, Lady Ritchie, but would it not be possible for informal invitations to be issued to Northern Ireland politicians to attend talks, particularly if the talks themselves are informal?

[Lord Ahmad of Wimbledon (Con)]

As I said to the noble Lord, Lord Empey, I will certainly take back his comments and constructive suggestions and will, of course, advise the House if there is more scope in our current discussions with the European Commission.

I listened very carefully to all contributions. The noble Lord, Lord Kerr, raised the issue from where he was seeing it. As noble Lords know, when I have come to the House, I have reported. I was certainly involved in one discussion last week and, as I said, it was constructive and positive in both tone and substance. I am sure that all noble Lords who have served in government will appreciate that there are limits to what detail I can share.

Subsequent discussions have taken place, to which the noble Baroness, Lady Ritchie, alluded. I do not share the view of the noble Lord, Lord Kerr, that they are not going anywhere. If they were not going anywhere, we would not be meeting and talking. I also challenge the premise that they have not engaged the highest level of the British Government. Last time I checked, the Foreign Secretary was among those counted in the highest levels of the British Government. I therefore say to the noble Lord, Lord Kerr, that that is definitely not the case. The lead person dealing with Commissioner Šefčovič is my right honourable friend the Foreign Secretary, who is a senior member of the British Government.

Returning to the amendment, for the reasons I have given, we cannot support it. However, I also point out that the Bill is needed because the Good Friday agreement institutions, including the Assembly, are not operating as they should be. I know that the noble Baroness will return to this issue. I welcome her valuable insights in this area, but I hope that, given my response, particularly on the important issues raised by her and the noble Lord, Lord Empey, she sees that we will certainly seek to further enhance our engagement with parties in Northern Ireland.

The noble and learned Lord, Lord Judge, focused on Clause 18, which simply provides the power for a Minister to engage in normal non-legislative contact where they consider it appropriate in connection with one or more of the purposes of the Bill. The clause also clarifies the relationship between powers to make secondary legislation under the Bill and those arising by virtue of the royal prerogative. It will ensure that actions not requiring legislation, such as issuing guidance for industry or providing direction to officials, can be taken in a timely manner by a Minister of the Crown. Clause 18 simply makes clear, as would normally be taken for granted—we just had a brief discussion with the noble Lord on the Government’s position on this—that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation. The Government’s view therefore remains that it should stand part of the Bill.

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[Lord Cormack (Con)]

My Lords, like the noble Baroness, I hope to be able to be present for the unveiling of the portrait of the late John Hume. It is a pity that our recently departed colleague Lord Trimble is not able to be there for that extraordinary occasion.

It seems to me that what the noble Baroness, Lady Suttie, said was wholly in tune with what the noble Lord, Lord Empey, said earlier in our debates: how important it is to involve the politicians in Northern Ireland. It is also important to do something else, which was touched on by the noble Lord, Lord Kerr of Kinlochard, in his speech just half an hour ago. I am very glad that the noble Lord, Lord Murphy, is in the Chamber at the moment, because the noble Lord, Lord Kerr, talked about the crucial importance of involvement at the highest possible level. We would never have had any agreement without John Major and Albert Reynolds, built upon by Sir Tony Blair, the noble Lord, Lord Murphy, and others. It is very important indeed.

No one appreciates more than I do, I hope, the tremendous tasks facing our new Prime Minister, and I wish him every possible success. However, as soon as it is possible, he should involve himself. He should go over to Belfast and meet the Northern Ireland politicians, the Taoiseach and others, because there has to be involvement at the highest level. The success of such talks would be increased if this wretched Bill were at the very least paused.

[Lord Dodds of Duncairn (DUP)]

My Lords, I want to make a brief comment on Amendment 40, which is about approval by a resolution of the Northern Ireland Assembly. In support of this amendment, it has been stated that adherence to the spirit and intention of the Belfast agreement is vital. But if we are to be faithful to that agreement as amended by the St Andrews agreement, and to its spirit and intention, then the amendment is defective in that it does not include cross-community consent. Is this a resolution by cross-community consent?

The point that I have made—and as other noble Lords who are aware of the details of the Belfast agreement will know—is that every major decision in the Northern Ireland Assembly is made on a cross-community consent basis. That means a majority of nationalists, a majority of designated unionists and a majority overall. Anything that is not specifically a cross-community vote is capable of being turned into one by a petition of concern. If you are using the argument that you are defending the Belfast agreement, as amended, then why is the cross-community element of resolutions in the Northern Ireland Assembly left out? Why is that the case? Why is it not required to have the support of unionists and nationalists? That is the basis on which the Belfast agreement was written.

My second point is about the involvement of Northern Ireland parties. I have a lot of sympathy there, but it is worth bearing in mind that in the run-up, between 2018 and 2020, when we had all the discussions about the backstop and negotiations overall, the Irish Government made it clear on a number of occasions to us that they did not wish to have any engagement directly with political parties in Northern Ireland on the issue of Brexit. They did not see a role. Nor did Michel Barnier see any role for the political parties in Northern Ireland; I put that point to him directly in his office in Brussels.

Lest we move to the position that the British Government have prevented this or not done enough, I say that the Irish Government and the Brussels Commission were very clear: “This is a matter on which the EU is represented by Monsieur Barnier. He speaks for the EU.” Leo Varadkar was very clear when we met him in Belfast and urged him to encourage a more imaginative approach that would involve the Northern Ireland political parties and the Irish Government talking directly to political parties about Brexit—and the UK Government, of course. That was rejected: “No, Michel Barnier speaks for the EU. It is between Her Majesty’s Government”, as it then was, “and the EU. There is no role for anyone else.” That was spelled out explicitly.

While I have a lot of sympathy with the proposition, this is not as straightforward as it would appear. I think some of the problems we have seen might well have been made easier to resolve had there been more flexibility on the part of the EU and the Irish Government, but it needs to be put on record that it was and, as far as I understand it, remains, the position both of the Dublin Government and Brussels. It would be very interesting to see whether Leo Varadkar maintains that position when he takes over as Taoiseach in a few weeks’ time. It would be worth exploring that with the Irish Government, because the portrayal that this has been a one-sided exclusion is not accurate.

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[Lord Stewart of Dirleton (Con)]

The noble and learned Baroness doubtless speaks rhetorically. I have the utmost respect for her intellect, as does the whole House. My position, which I sought to express, was that the clause will provide a mechanism by which a reference could be laid before the Court of Justice of the European Union, but that ultimately British law, in whatever of the three jurisdictions it is operating, will prevail over that. It is a reference procedure.

[Lord Cormack (Con)]

I am following up what the noble and learned Baroness, Lady Butler-Sloss, just said. The implication of what my noble and learned friend said from the Dispatch Box is that there is nowhere at all for the European Court of Justice. Is it really a total sticking point in the negotiations? Can he tell me whether this is negotiable? If it is not, we are doubly wasting our time.

[Lord Stewart of Dirleton (Con)]

With the utmost respect to my noble friend’s question, I do not feel I can go further from the Dispatch Box on what has taken place or what I consider likely to take place in negotiations from this point.