Northern Ireland Protocol Bill

Lord Dodds of Duncairn Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I want to bring the focus back to Article 2. The noble Lord, Lord Bew, said that this Bill is modest but the problem is that the law of unintended consequences could come into play here.

My noble friend Lord Purvis of Tweed coined the phrase “Rumsfeld clauses”. I do not want to detract from his trademark on that phrase—he will kill me—but, as concerns Article 2, the Bill shows some evidence of having been written on the back of an envelope. Concerns about human rights and equality have been at the heart of the conflict in Northern Ireland, so those concerns were central to the Good Friday agreement.

Thus Article 2 of the protocol, ensuring a non-diminution of the wide range of rights set out in the Good Friday agreement, is a key clause. However, there are worrying implications of the Bill for human rights and equality protections, which are in danger of being overlooked. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland point out that the Explanatory Notes to the Bill make no reference to any consideration having been given to compliance with Article 2 of the protocol. Those two commissions have previously recommended that this should be the case regarding all relevant legislation. I understand that the Leader of the House of Commons, the right honourable Penny Mordaunt, is talking about draft guidance to Bill teams on this matter. This is in response to concerns that have been raised for quite a few months now by various committees, such as the Northern Ireland Affairs Committee and Women and Equalities Committee in the other place, the Joint Committee on Human Rights, on which I have the pleasure to sit, and our own Northern Ireland Protocol Sub-Committee. They have all raised concerns about compliance with Article 2 of the protocol.

The Government gave assurances about their commitment to Article 2, and it is true that this article gets a degree of protection under the Bill; for instance, that Clause 15 does not permit Ministers to make regulations defining Article 2 among “excluded provisions”. However, even Clause 15 needs completion, as the noble Baroness, Lady Ritchie, pointed out. The logic of protection of Article 2 is far from fully reflected in other clauses of the Bill. Hence these amendments—and I support all those tabled by the noble Baroness, Lady Ritchie, not just the two I have co-signed—propose a strengthening of Clauses 9, 10, 13 to 15 and 20.

This Government do not like the European Court of Justice, but its role is essential at various points in relation to Article 2. That article includes a commitment to keep pace with EU laws, as the noble Baroness pointed out, with EU law developments falling within the scope of the six equality directives listed in Annexe 1 to the protocol. As these directives are updated or replaced under the normal process of EU legislation, the UK Government are committed to ensuring that domestic legislation in Northern Ireland reflects any substantive enhancements in relevant protections. There are also other relevant EU laws beyond the six equality directives that underpin rights in the Good Friday agreement, such as the victims’ directive, the parental leave directive, and the pregnant workers’ directive.

The Government are committed to ensuring that there will be no diminution of protections as contained in relevant EU law on 31 December 2020. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have acquired additional powers to oversee the Government’s commitment under Article 2. However, it is essential that Clause 20, which removes the binding nature of judgments of the European Court of Justice, is amended to ensure that the dynamic alignments—the keeping pace—guaranteed under the protocol for citizens’ rights in Northern Ireland can be delivered. The same applies to Clause 13.

The UK-EU joint committee supervises the implementation of the withdrawal agreement, but where there is a dispute regarding the interpretation of EU law which the joint committee or the arbitration panel cannot resolve, then under Article 174 of the withdrawal agreement, the ECJ must be asked to give a binding interpretation. This needs to be recognised and incorporated in Clause 13.

I mentioned Clause 15. The remaining problem there is that it does not prevent Article 14(c) of the protocol, which provides for the UK-EU specialised committee to consider matters brought to its attention by the two commissions in Northern Ireland—human rights and equalities—from becoming excluded provision by sort of oversight. The same applies to the lack of protection of the protocol’s Article 15, which provides for a joint consultative working group on the effective operation of Article 2.

The other amendments in this group raise similar and related issues. For reasons of time, I will not dwell on them. I am sure that noble Lords get the drift. One is left to conclude that there was either a lack of thorough preparation on the Bill—hence my quip about the back of an envelope—or a disturbingly cavalier disregard for Article 2 of the protocol. I am not sure which is worse. Neither is excusable, but I hope the Minister can tell me that the Government will take away especially all those excellent, very dense and precise questions raised by the noble Baroness, Lady Ritchie. Quite honestly, what is in the Bill at the moment is not remotely satisfactory to honour and safeguard Article 2 of the protocol.

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

“The United Kingdom shall ensure no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.

[Lord Purvis of Tweed (LD)]

My Lords, I want to rise very briefly in support of these amendments and also to say that my noble friend Lady Ludford made an extremely clear and very good case. I just want to add three very brief points.

The first is that I refer the noble Lord, Lord Dodds, to Hansard in 2019 and my contributions, among others from these Benches. We debated these issues and highlighted them, and he knows that. I am sure this evening it is just rhetoric in our Committee. He knows we have raised the concerns that he just outlined now. They are why we opposed it. So I do not think he can present that fact towards these Benches.

The second is that in my view Article 2 of the protocol should not be seen in a static form. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights … results from its withdrawal from the Union”.


This is a permanent agreement, a permanent commitment, and therefore it cannot be seen that those that were in place in 2019 are now kept in aspic. So my noble friend is absolutely right that if you are taking away what is case law and when those rights and freedoms protected by Annexe 1 powers are adapted, unless they are dynamic, there is a diminution of those rights, by definition. The Bill proposes retaining them in aspic. The noble Baroness, Lady Ritchie, is absolutely right to highlight the fact that those Article 2 rights need to continue to be dynamic.

I know the hour is late, but I want to remind the noble Lord, Lord Bew, and others of Northern Ireland Protocol Bill: UK Government Legal Position, which is the founding basis upon which this Bill has been brought for our consideration. The final sentence of the penultimate paragraph is:

“The UK urges EU Member States to provide a new negotiating mandate to the Commission, wide enough to change the terms of the Protocol to respond to the full range of issues addressed by this legislation.”


So far, I have not heard a squeak from any Minister saying that the position of the Government is still that there should be a new negotiating mandate from the Commission to EU member states. I have not heard that; I am willing to be intervened on, or, if not, I want to hear from the Minister whether that is still the position. That was the legal position of the Government: that they are seeking a new negotiating mandate from the Commission. It is there in black and white, but I have not heard whether that remains the same. When it comes to putting faith in the negotiations, what is the basis of these negotiations if the Government’s legal position is that there has to be a new mandate and that is not forthcoming?