Northern Ireland Protocol Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Pannick (CB)]

I bow to the noble Lord, who has immeasurably more knowledge and experience of Northern Ireland than I could possibly have, but of course I have read the Northern Ireland agreement and understand that there are two documents in international law. The simple point is that, in the protocol, we agreed the means by which we take the view that the Good Friday agreement should be implemented in the context of the United Kingdom leaving the EU. That is what we agreed; we cannot now say that we are going to resile from it unilaterally. It is as simple as that.

[Lord Dodds of Duncairn (DUP)]

My Lords, I had not intended to take part in this debate because I had not realised that it would range so far and wide and across so many general issues. We had a lengthy debate at Second Reading in which a number of these topics were discussed; nevertheless, I think it is worth addressing some of the points that have been made and putting some of the issues on record as far as we are concerned.

I begin by joining noble Lords and noble Baronesses in their tributes to the late Baroness May Blood, who passed away recently. She lived and was brought up in the same part of Northern Ireland that I had the honour of representing in another place for almost 20 years, so I knew her very well indeed. I pay tribute to her great resilience, hard work, dedication and tenacity in her pursuit of the issues in which she believed strongly, as well as her dedication to young people in the Shankill and integrated education, as has been mentioned.

It is not incompatible to support this Bill and seek a negotiated outcome. On the negotiated outcome, although there is not a great history of flourishing talks with the EU and the United Kingdom on the protocol issues thus far, we hope that any negotiations lead to an outcome that is compatible with the aims and objectives contained in this Bill. This is not a matter of just tinkering around the edges and finding practical solutions, as has been said; some of the issues are fundamentally contained in the protocol. You cannot address the democratic deficit issue satisfactorily unless you address some of the content of the protocol.

No matter how much consultation, prior notice, discussion or involvement you agree to give Northern Ireland politicians in relation to EU laws covering 300 areas such as the economy—as well as further issues such as state aid, VAT and so on—the fundamental fact is that no elected representative of Northern Ireland either here at Westminster or in the Northern Ireland Assembly has any vote or decision-making capacity on vast swathes of laws that apply in Northern Ireland. How will that be addressed? This Bill goes some way to addressing that, but nothing I have heard being suggested by the proponents of delay, who are against the Bill, has offered any solution to that point. The noble Lord, Lord Hain, acknowledged the problem.

Our Sub-Committee on the Protocol, of which I have the honour of being a member, has looked at this issue in considerable detail; I recommend that noble Lords and noble Baronesses read the report that we commissioned on the scrutiny of legislation now applicable to Northern Ireland. They will see the extent to which Northern Ireland has been removed from the normal processes of democratic lawmaking, which people in this House have spoken about with great eloquence but which does not apply anymore to United Kingdom citizens in the 21st century. That is entirely unacceptable and is contrary to all the traditions of democracy that this mother of Parliaments has sought to uphold both here and abroad.

It has been asked what the problem is with delay. The noble Lord, Lord Bew, has dealt with one issue—

[Lord Clarke of Nottingham (Con)]

My Lords—

[Lord Dodds of Duncairn (DUP)]

The noble Lord, Lord Clarke, has already spoken. I want to get on and not delay the House any longer, but I will give way once.

[Lord Clarke of Nottingham (Con)]

I am extremely grateful to the noble Lord. I have every respect for him; we have been together in Parliament for years. I want to understand clearly what he is saying. Is he saying that the Democratic Unionists will not withdraw their objections to the whole protocol unless Northern Ireland is allowed to leave the single market with the rest of the United Kingdom as the United Kingdom is otherwise developing? That would mean us telling the European Union that the single market has got to have a great hole in it, with no border controls at all so far as the Republic of Ireland and Ulster are concerned—because that is the Anglo-Irish agreement—no customs barriers in the Irish Sea and no application of single market law in Northern Ireland. Is that the proposition on which the DUP is saying that it is going to stop returning to a power-sharing agreement in Northern Ireland?

[Lord Dodds of Duncairn (DUP)]

I am grateful for the opportunity that the noble Lord gives me to clarify that point. If he looks in detail at the Bill, he will see that it does provide the opportunity for regulations to come forward. The Government have announced that they will produce regulations which allow for checks on goods destined for the European Union, and for the Irish Republic exclusively.

I agree with what the noble Baroness, Lady Chapman, said in her amendment about the publication of regulations. It is important that the regulations provided for in the clauses in the Bill are published, and as quickly as possible, so that we can all see exactly what is proposed to replace the current, unacceptable arrangement. However, my understanding is that those regulations have talked about a red and a green channel, and that checks will be applied only to goods coming into the Irish Republic, so there will not be that gap or hole that the noble Lord, Lord Clarke, talked about.

It is also clear from the Bill that access to the single market would be retained, but that it would be the choice of businesses in Northern Ireland whether they want to be subject to EU or UK regulation, therefore sorting out to a large extent the democratic deficit point, while providing a way forward economically which is in everybody’s interests. When we come to sorting out the problems of the protocol, we have been told that no impact assessment has been carried out and that we need one for the Bill. There was no impact assessment carried out when the protocol itself was introduced, of course, concerning the negative impact that it has had on business.

I have a letter here from hauliers in Northern Ireland, who have written to a number of noble Lords saying that it is their contention that the economic costs of the protocol far outweigh the economic benefits. They say that if the protocol was implemented in full, it would crash Northern Ireland’s chilled and frozen food supply chains within 48 hours, and that it is reasonable to anticipate that this would cause a socioeconomic crisis. They talk about the need for the Bill. These are businesspeople. These are people who carry goods into Northern Ireland from Britain, into the Irish Republic, and from the Irish Republic and Northern Ireland into Great Britain. They know what they are talking about, so we should not generalise here. We must take the evidence of the damage that has been done economically and constitutionally.

On international law, I bow to the superior knowledge of many very distinguished lawyers and practitioners in this House, but the noble Lord, Lord Bew, is right when he argues about the prior position of the Belfast agreement and that the protocol references the Belfast agreement in its wording—as amended by the St Andrews agreement, of course—and that cannot be ignored. We are told that upholding and keeping our word is vital to our international standing. However, I have in front of me the joint report, from the negotiators of the European Union and the United Kingdom Government, of 8 December 2017, when Theresa May was trying to make progress in her negotiations with the European Union. That agreement was hammered out over a number of days. If we are talking about people maintaining and upholding their word, I point out that it contains the following, in Article 50:

“In the absence of agreed solutions… the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom”,


which they now have,

“unless, consistent with the 1998 Agreement”—

so the EU and the UK Government recognise that it is inconsistent with the Belfast agreement to have such regulatory difference—

“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.”

The Northern Ireland Executive and Assembly have never agreed to that. They were never even asked. This was the promise made to people in Northern Ireland by the EU and the UK. After that was agreed, the UK Government, never mind the EU, paid scant attention to that article when seeking the agreement of people in Northern Ireland to any regulatory divergence. If we are talking about upholding our word, people in Northern Ireland are entitled to ask, “What happened to that agreement? What happened to that commitment? Why was the protocol imposed without any say or consent by people in Northern Ireland?”

We talk about the blunderbuss—the threat that has been put on the table. I remind noble Lords that the EU has now launched infringement proceedings against the United Kingdom for its having unilaterally extended grace periods and other matters—without which, as the hauliers say in their letter, the supply chain to Northern Ireland would crash and burn within 48 hours. This is essential for the free flow of goods to Northern Ireland, yet the EU has put on the table legal action against the UK Government, and that is not mentioned.

I will close; I am conscious of time, but it has been a wide-ranging debate thus far. The Bill is necessary because the protocol, as it stands, is incompatible with the Belfast/Good Friday agreement. At the heart of that agreement, as amended by the St Andrews agreement, is the principle of consent. It is not only the DUP that opposes the current arrangement. Every single unionist elected to the Northern Ireland Assembly, as late as five or six months ago, opposes the protocol. The foundation of power-sharing in Northern Ireland is not majority rule any more; we have not had majority rule for 50 years in Northern Ireland. It is the mutual agreement of unionists and nationalists, and not a single unionist of the Ulster Unionist Party, the Democratic Unionist Party, the Traditional Unionist Voice, or independents, of which there are a number, supports the current arrangements.

The protocol is incompatible not only with the Belfast agreement but with Northern Ireland’s constitutional position. I am conscious of the point made by the noble Lord, Lord Bew, that it was not necessary to deal with that in this legislation, but the courts have ruled that Article 6 of the Act of Union has been subjugated by the protocol and that Great Britain is now a third country as regards “imports” from Great Britain into Northern Ireland.

As I have said, the protocol is incompatible with the upholding of proper British and UK democratic standards, for the reasons that I have already outlined, and it is damaging our prosperity. You cannot have VAT exemptions or derogations, which the UK Government have recently announced on energy products, applied to Northern Ireland, because we are subject to EU VAT rules. That cannot be right. It is also contrary to the New Decade, New Approach document, which was agreed by all the parties, the Dublin Government and the UK Government in January 2020. It says on page 47, annexe A:

“The Government is absolutely committed to ensuring that Northern Ireland remains an integral part of the UK internal market”,


As has been set out in the reasons given for the introduction of the Bill, this is to address the fact that Northern Ireland is no longer an integral part of the UK single market. That is indisputable.

To those who say it is unbelievable that a Conservative Government would be doing this and bringing forward this legislation, I say it is unbelievable that a Conservative and Unionist Party ever brought forward the protocol in the first place. That is the really telling point. We did not support it. What we are asking for is our democratic rights to be restored.

The Conservative Party can be criticised for many things, and we have criticised it very often. We have had our battles over the years. But if there is now an attempt to put right something that is fundamentally wrong, antidemocratic and runs counter to the Belfast agreement, runs counter to the agreement the basis of which was for the restoration of Stormont and the Assembly, that should be applauded. I hope negotiations can succeed, but they will have to deliver what is in the protocol, otherwise we will not get to a point where we will have stable government restored in Northern Ireland. That is a fundamental fact. Sinn Féin kept Stormont down for 1,044 days over the Irish language issue that the noble Lord, Lord Bew, referred to.

We do not want instability to continue for one day longer. In July 2021, the Government published a Command Paper saying that the conditions had been met then for the instigation of Article 16. As has been said, Article 16 is now very much flavour of the month, but at the time it was denounced by all the parties in Northern Ireland and most people here as being an outrageous infringement of democratic norms and a breach of good faith and of international law. All sorts of things were said about it. So there is urgency, and that is why I urge noble Lords to proceed with the Bill and move ahead. If negotiations do not end in a satisfactory outcome, we will have to return to this legislation, and it is better to proceed with it now than to have to start further down the road at a point when it would become absolutely essential.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, first I thank all noble Lords who have taken part in this debate. As I was rising, I looked at the clock and never in the Ahmad history in the House of Lords has something so innocuous as saying “I beg to move that the House do now resolve itself into a Committee on the Bill,” resulted in such an intense debate. I shall remember for next time.

Secondly, my noble friend Lord Clarke mentioned that he looks towards the House of Lords and, as he comes here more often, I assure him, not that I agree with the substance of what he has said, but that his contributions and those of all noble Lords enrich the debate. One of the key components of the House of Lords is asking the Government to think again. I am sure I speak for my colleagues on the Front Bench as well in saying that we have certainly been in thinking mode.

There is a third element before I get into the detail. I was taken by the various descriptions of the Bill. The noble Lord, Lord Kerr, referred to it as a “pig”. As a Minister who also is a practising Muslim, I thought for a moment that the stewardship and handling of the Bill would cause me a cultural challenge. But I soldier on with loyalty to King, country and Government.

In all honesty, this debate has been an important one. I think we are all agreed that it has again brought forward views on the importance of Northern Ireland as an integral part of what defines our very United Kingdom. Notwithstanding the different perspectives, I know all Members of your Lordships’ House are at one on the principle that the integrity of the United Kingdom must be protected. The fact is that the Northern Ireland protocol must work for all communities in Northern Ireland and, of course, the wider United Kingdom. Of course, the noble Lord, Lord Pannick, is correct—we signed the Northern Ireland protocol. But any contract—I do not speak as a lawyer but I have done a few contracts in a previous life as a banker—is also signed in good faith. It has to work for all sides and all communities.

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[Baroness Altmann (Con)]

My Lords, with all due respect to the noble Lord, Lord Bew, and in due deference to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, I will now inject the perspective of an economist and businessperson.

I support Amendments 3 and 67 and will try to inject a different perspective here. The arguments about protecting the Good Friday agreement are of course important and real. However, it seems that, despite arguing that the UK has contributed to the problem—which is essentially part of the reason why the doctrine of necessity seems unable to be applied here—there are options open to the United Kingdom to respect the Good Friday agreement, including maintaining regulatory alignment. Were regulatory alignment to be maintained, the east-west problem would not necessarily arise—because the EU could be reassured that there is less of a threat to its single market—and the north-south element would also not arise. If the UK wanted to diverge regulatorily, it has the option to negotiate that. So there are practical resolutions within our power to protect the Good Friday agreement and the protocol.

If we cast our minds back to the awful Brexit and post-Brexit periods, an assurance was given to noble Lords, including myself, that there would be technical arrangements—alternative arrangements—that would permit the flow of goods across the border that could be tracked, with trusted traders and technology being introduced, that would mean that we would not have these problems of customs procedures. If those arrangements were to be in place, the problem would not arise. So again, the UK Government have the option of saying, “We will maintain regulatory alignment until we have introduced those arrangements”. That would allow us to be in a position where we would not be breaking international law.

I agree with the noble Lord, Lord Bew, when he said that, if there is a problem, we should try to find a compromise, but that again means negotiation and using the facilities we have signed up to ourselves rather than threatening to blow up the whole agreement. I urge my noble friends on the Front Bench to try to get away from the magical thinking that we can somehow square this circle by threats or by breaking international law—or even by threatening to break international law—and instead to get around the table and negotiate a reasonable way forward that gets away from this kind of argument.

[Lord Dodds of Duncairn (DUP)]

My Lords, this debate illustrates one of the issues deeply affecting Northern Ireland politics: trust and agreements. Noble Lords have talked about agreements entered into and then broken. One of the problems that exists for unionists at the moment in Northern Ireland is that so many promises and pledges have been made but have not been fulfilled. I referred in the earlier debate to the provisions of Article 50 and the joint report published on 8 December 2017, a commitment entered into by both the European Union and the UK Government. The noble Lord, Lord Caine, was present for some of the discussions we had with Theresa May in Downing Street when this matter was discussed. Provisions were inserted, and this was agreed by the European Union and the UK Government: no regulatory difference would exist unless by the express agreement of the Assembly and the Executive. That was ditched.

This has led to a situation—and this is just one example—where unionists now feel that their voice is not listened to and that commitments entered into are not accepted or followed through. This has led to a hardening of views across unionism generally, resulting in people now saying, “We need to see the colour of people’s money and actual delivery, not promises”. I listened with great interest to Steve Baker the other day, who said, “You know, unionists should choke down their concerns; they can count on us”. I have the greatest respect for Steve Baker and others in the Government, but quite frankly the days of counting on others and taking people’s word for it—even when international agreements are set aside during negotiations —have unfortunately gone.

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[Baroness Chapman of Darlington (Lab)]

I understand that my noble friend—if I can call him that—has been lied to repeatedly, but he was lied to by the Government. I gently suggest that his beef ought to be with the noble Lords opposite me, rather than my party. As he says, our position on Article 16—as you would expect, and as I attempted to explain earlier—has evolved in the context of what we are being presented with by the Government. This approach was not previously conceived of; now that it is, it puts Article 16 in a slightly different light. This is not especially complicated, but it is the view of the Labour Party.

[Lord Dodds of Duncairn (DUP)]

I am grateful to the noble Baroness, and I understand what she is saying, but the issues that were being discussed at the time by Her Majesty’s Government, as it then was, and which the Labour Party was responding to, are the same issues that are before us today, which are affecting the political process in Northern Ireland and leading to problems with the supply of goods from Great Britain. They are exactly the same but when the solution, “Let’s trigger Article 16; let’s go into negotiations”, was suggested, the Labour Party derided that as being toxic. The Labour Party gave support and succour to those who have allowed this position of instability and economic and constitutional harm to continue. A lot of lies have been told around the place, but it is no good, if I may say so, the noble Baroness putting all the blame on to the Government when everybody in Parliament and all political parties have to accept that the goalposts have been shifted, often by consensus, in a way that has done damage to the Belfast agreement, as amended by St Andrews, in a way that has undermined the trust of the people in Northern Ireland in the institutions.

[Lord Pannick (CB)]

I entirely understand the noble Lord’s political grievance, but the fact is that Article 16 is part of the protocol and the political grievance cannot itself provide the basis for necessity in international law. This group of amendments is seeking to understand what the legal advice of the Government is.

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[Lord Dodds of Duncairn (DUP)]

Do not worry, I will not be arguing that passionately for any Bill that could end up being withdrawn. We have been down this road before. All I say is that I support measures that, in my view, help to deal with the protocol issues that we have. I accept what the noble Lord is saying in terms of the LibDem position, although Layla Moran pointed out last year that triggering Article 16 would be a terrible thing and tragic, and all the rest of it, so it is not exactly totally consistent on the Article 16 point.

[Lord Purvis of Tweed (LD)]

As the noble Lord, Lord Pannick, said, there is a difference between recognising that there are mechanisms that could be put in place as safeguarding and rebalancing measures, and unilateral actions that seek to go beyond what Article 16 would be for the protocol. That is the entire point.

In supporting my noble friend’s Amendments 3 and 67, I understand that the Government will have prepared—the Advocate-General will correct me if I am wrong—a legal issues memorandum, a LIM, before the Bill was approved. That goes to the Attorney-General and to the Advocate-General for Scotland, and they will have approved this legal issues memorandum which, I understand, would have had to consider the very questions that the noble Lord, Lord Pannick, indicated with regard to the options open to the Government to meet their policy ambitions. That would have included the protocol element of Article 16, as the noble Lord, Lord Dodds, indicated. In many respects, and I cover many trade debates in this House, Article 16 elements are fairly typical WTO mechanisms of safeguarding and rebalancing. The legal issues memorandum will have had to consider these options. So, at the very least, the Advocate-General can confirm to the Committee that there was a legal issues memorandum, and it did consider all these options.

The next question, therefore, is precisely where the legal argument on necessity originated. Did it originate from the FCDO? I understand that the memorandum goes to the FCDO also, for the treaties department. I am sure the Advocate-General will say that he cannot disclose this information for us, but on an issue of this importance, where did the argument for legal necessity originate? Was it his department? Was it the Office of the Advocate-General for Scotland? He is in his place precisely because his predecessor resigned, saying that his position was undermined in his endeavour to find, to quote from his letter, “a respectable argument” for breaches of international law in the United Kingdom Internal Market Act. The then Secretary of State for Northern Ireland said, notoriously, that it was a “specific and limited” breach, but the noble and learned Lord, Lord Keen, struggled hard to find a respectable argument to present for it, and because the Secretary of State was honest, the noble and learned Lord resigned. I note that the Constitution Committee report said, as has been referred to before:

“In this case, reliance on the doctrine of necessity is not a ‘respectable’ legal argument.”


I think we will touch on it when we discuss whether Clause 123 stands part, so it will be very interesting to hear what the Advocate-General says in winding on this group in order to inform some of our discussions on the next group.

I have sympathy with what has been referred to by others and I have an inkling as to what the Advocate-General may have in the folder in front of him. He may say, “It’s a long-standing convention, for very good reason, that legal advice is not published in full”, and he is no doubt prepared to say it, but why my noble friend Lord Campbell of Pittenweem is correct is that we are now in a realm of significance, given the scale of what the breach of international law would be.

I will refer to it in the next group, but my noble friend provided an amuse-bouche of the case of Hungary and Slovakia, to which the Advocate-General had referred. I also read that judgment in full. It may help the noble Lord, Lord Bew, to know what the ICJ has found repeatedly. Let me quote from its judgment in one of the cases that the Advocate-General cited.

“According to the Commission”—


that is the International Law Commission—

“the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied;”—

this is the point I want to stress—

“and the State concerned is not the sole judge of whether those conditions have been met.”

So even if he is right, one state party cannot determine solely, and the ICJ has found that repeatedly.

Even if the Advocate-General for Scotland says that it is a long-standing convention and cites examples of where legal advice was not furnished—he may overlook some examples of where it has been, of course, but that is a separate issue—the area that I want to ask about concerns what the former Advocate-General for Northern Ireland and the Attorney-General, Sir Geoffrey Cox, said in Committee in the Commons.

“There is plenty of precedent for the Attorney General coming to the House—I should know, I did it—to answer questions about the international law compatibility of a measure in this House. Indeed, it goes way back, I think, to either the Wilson Government or the Heath Government … I invite the Minister … to invite the Attorney General to come and answer those questions, because, in my judgment, it is an obligation to the House. The Attorney General has a residual duty to advise the House on matters such as this.”—[Official Report, Commons, 13/7/22; col. 400.]


Will the Advocate-General state why this has not happened? Will he provide the equivalent to this House in a Statement? We are asking the same as has been asked in the past of Attorneys-General.