Northern Ireland Protocol Bill

Lord Frost Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Frost (Con)]

My Lords, I thank noble Lords, in particular my noble friend Lady Nicholson, for allowing me to speak out of sequence so that I could give evidence to the European Affairs Committee. I reassure my noble friend Lady Wheatcroft that I have been following as much of this very important debate as I can. It is a huge pleasure to be here to support the Government on this Second Reading of the Bill.

The House heard my views on the sad deterioration of the situation in Northern Ireland many times when I was on the Front Bench. I do not need to repeat them, as many noble Lords have made the point this afternoon. Clearly, the attempt to apply the protocol is no longer delivering the original intention of supporting the Belfast/Good Friday agreement, but undermining it. Unionism has lost confidence in it, the status quo is highly unstable and risky, and change is needed.

That change is needed for economic as well as political reasons. Those who argue, as some have today, that Northern Ireland is benefiting from the protocol are simply wrong. Since the entry into force of the protocol, the UK’s economy has grown by 7.5% and Northern Ireland’s by 5.5%. PMI surveys in Northern Ireland have been consistently lower than the UK’s, and have actually been negative in the last four months. Exports from Great Britain to the EU have grown faster than those of Northern Ireland to the EU, which suggests that the supposed export boom from Northern Ireland to Ireland is a bit of a fantasy or an artefact of trade diversion. The Government are well within their rights to try to remedy this situation and bring forward this Bill. I note that it passed the other place unamended; that fact must influence the approach taken in this House.

The Government have made their view clear too, in their statement on 13 June, that the Bill is

“justified as a matter of international law.”

Of course, it is possible to find lawyers who take a different view—we have heard many distinguished lawyers today—but the Government are entitled to proceed on the basis of their own legal analysis, and that analysis is not disproven just by the existence of alternative opinions.

This Bill is essential not only on its own merits but in order to strengthen the hand of the British Government in their negotiations. If a negotiated agreement can be reached, that is obviously much better, but it is very hard to see that an agreement that does not amend the protocol very significantly will do the job. I work on the assumption that it is the intention of the Government to achieve a negotiated settlement of that level of ambition. The Prime Minister said in Parliament on 7 September that she preferred a negotiated solution, but

“it does have to deliver all the things that we set out in the Northern Ireland Protocol Bill.”—[Official Report, Commons, 7/9/22; col. 237.]

Some of the more recent mood music from the Government has been less clear-cut on that point, so perhaps in winding up my noble and learned friend the Minister will confirm that is still the Government’s approach and that they are not looking to endorse a negotiated settlement that delivers less than that. On the assumption that is still the Government’s policy, it is absolutely clear that they will need this Bill to deliver it. I will conclude by saying why.

As has been pointed out on several occasions and is well known, I was responsible for negotiating the protocol as we now have it. That negotiation, such as it was, has an important lesson for today. The crucial point is that any negotiation, if it is to find the right balance between the parties, needs to have a meaningful “walk away” option for both sides. We did not have that in 2019. This Parliament and this House had passed a law prohibiting us from leaving the European Union without a deal. The choice we faced, therefore, was on the one hand to see the endless continuation of negotiations with the EU from a position of weakness, some subversion of our efforts by Members of this Parliament and others in the political scene and perhaps see the referendum overturned altogether, or on the other hand do the best deal we could, accept the risks, and deliver the referendum result. I make no apology for choosing the latter, even though our forebodings have been amply justified by events.

The point of this Bill is to avoid that situation being repeated. If this Bill becomes law, the British Government—

[Lord Hannay of Chiswick (CB)]

Will the noble Lord confirm that what he has just said amounts to saying that he was negotiating under duress in 2019 and the duress was applied by the British sovereign Parliament?

[Lord Frost (Con)]

I have made the point many times that we were operating within the constraint of a law that usurped the functions of the Executive and prevented us conducting negotiations. I have made that point many times, and I make it again today.

If this Bill becomes law, the British Government will regain agency over events. If they cannot reach an agreement through negotiation, they will be able to use the powers in this Bill to correct the current unsatisfactory situation under international law. The incentives on both sides will still be to reach agreement, but there will still be a “walk away” option, which means that a proper negotiation can take place.

If noble Lords prevent this Bill passing, they will put this Government into the same position I faced in 2019. Once again, there will be no “walk away” option. The Government will have to try to get the best negotiated outcome that the EU will allow them to have. They will be a petitioner for the EU’s grace and favour, not a negotiating partner. If the Government are not happy with what is on offer, the outcome will be even worse—the continuation of the current unsatisfactory situation and the current protocol.

I urge noble Lords not to make the same mistake as in 2019. Give the Government the powers they need to conduct a meaningful negotiation. Do not make them a supplicant in Brussels. Allow them to get the job done.

Northern Ireland Protocol Bill

Lord Frost Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I am not going to comment on the politics of Northern Ireland—I am a mere lawyer—but the noble Lord, Lord Campbell, raised a particular point on Article 16, and the answer given by the noble Lord, Lord Dodds, as I understood him, was that there were discussions about that, and statements were made at various times by various politicians. But the fact of the matter is that Article 16 is part of the protocol; it cannot be ignored.

What it says is that it provides a procedure for dealing with

“serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

It is a very broad concept; it provides a means by which such disputes can be resolved and, as I have said before in debates on this Bill, I simply do not understand how the test of “necessity” in international law can be satisfied when the Government have available, and are not using, a provision that is expressly provided in the protocol. You simply cannot resile from an international agreement because of problems when the protocol itself, the international agreement, provides a means of addressing them; it is as simple as that.

There is one other legal point. The noble Lord, Lord Browne, deserves an answer. He rightly emphasised that Articles 1 and 2 of the protocol preserve the Belfast agreement in various respects, upholding and emphasising it. As I understood it, his argument is that the Bill is consistent with international law because the protocol, in his view, undermines the Belfast agreement. However, if I may respectfully say so, there is an insuperable difficulty with that argument: this country signed the protocol on the basis of the view that the protocol was consistent with the Belfast agreement in the context of the difficult problems posed by Brexit.

Having signed the agreement, with respect, it is trite as a matter of international law that the United Kingdom cannot unilaterally resile from the protocol because, under political pressure, it now wishes to take a different view. Therefore, this Bill, as I have suggested before, is quite simply inconsistent with international law.

[Lord Frost (Con)]

My Lords, I appreciate that I am a relative newcomer to this House, but I had understood that in Committee discussion is supposed to focus on the amendments before us. What I have heard today is very much a rerun of the discussion we heard in this place last week, with repeated invocations of issues of principle around this Bill and the protocol, which are extremely important but might not be resolved in this debate simply by repeating the points over and over.

I have been trying to follow the detail of this on my electronic device, with my documents in front of me—I know the technique may not be familiar to everybody in this House, but I am trying my best. I was not intending to speak but, as some points of principle have been raised, I feel it is right to put certain circumstances on record.

I will make three brief points. First, I feel we are having a highly abstract discussion about a very concrete and real situation. Noble Lords all know what is happening in Northern Ireland at the moment and what has happened over the last year and in recent months: the constant, gradual deterioration of the real political situation in Northern Ireland, the undermining of the institutions of the Good Friday agreement, and the degradation of some of the habits of co-operation and working together that we have seen over the years. This is a real situation, which must be dealt with. This Bill is a way of dealing with it and the Government—rightly, in my view—believe it is the best way of doing so.

We have to engage with that. We have to take real-life action to deal with the problems that exist on the ground in Northern Ireland. Important though discussions of international law and a reinvocation of why we signed this agreement may be, they do not deal with the real situation on the ground now. The Government are the Government of this country, and they are right to put forward proposals that deal with this situation. The best way to deal with it would be to expedite this Bill, not to delay, defer or withdraw it. The best contributor to stability in Northern Ireland would be to get this on the statute book and enable people to know what they are dealing with.

Secondly—

[Baroness Meacher (CB)]

My Lords—

[Lord Frost (Con)]

No other noble Lords have taken interventions, so I will complete my points if I may.

It is a pleasure to follow the noble Lord, Lord Dodds, who made the points I was about to make about Article 16. When I was on the Front Bench here, I repeatedly stated that the conditions for meeting Article 16 had been met but we would prefer to proceed by negotiation. I was looked at as some sort of barbarian by many people in this House, and elsewhere, for daring to contemplate such a possibility. Yet it now seems that it is what many people would wish to do to resolve this situation—the natural way of doing so. I am very glad that is the view, but I am afraid that my view is that the situation on the ground in Northern Ireland has gone beyond that and Article 16 will not be the best way to resolve that.

[Baroness Altmann (Con)]

I thank my noble friend for giving way. The view that I think many around the Committee hold is that the triggering of Article 16 was something that we did feel would be premature and we had all expected that there would be negotiations with the EU. However, the opposition to triggering that stage never envisaged that something like this Bill could be introduced which would rip up the whole protocol before negotiations had even been completed.

--- Later in debate ---

[Lord Frost (Con)]

I thank my noble friend for her comments; she is correct to say that the situation last year was different from this year. We did not invoke Article 16 in the end and many people were disappointed about that. Since then, the situation has moved on; it has deteriorated. I think this Bill is really the only way of resolving it.

Thirdly and finally, many noble Lords seem to believe that a negotiated way through this would be made easier by withdrawing the Bill. I profoundly disagree. It is very much the best way through to find a negotiated solution and that is what I wanted to do last year. The observed behaviour of the European Union, through last year and this year, is that it does not wish to negotiate about the fundamental core of the problem. The proposals it has put on the table are at the margin; they are not to do with the core of the difficulties in so many areas—not just trade but state aid, VAT and other issues that go into the depths of the protocol. I do not believe it will unless it is forced to engage with the fact that the UK Government have an alternative, which is to use the powers in this Bill. If we take the Bill off the table, we are removing such limited leverage as the UK Government have to deliver for their people, the people of Northern Ireland, a better outcome.

I will wind up there. It is very important that we do not show infirmity of purpose on this and that the Bill continues. I urge the Minister in winding up to make it clear that we intend to move forward with it.

[Baroness Wheatcroft (CB)]

I did not plan on speaking in this debate, but I think it is only right that somebody should thank the noble Lord, Lord Frost, for explaining to us how bad things have become in Northern Ireland as a result of the treaty he negotiated. I am very happy to do that. I will, however, keep my speech brief and not make a Second Reading speech.

Of course, I support these two amendments but hope very much that we will not get to vote on them. To echo the noble Lord, Lord Kerr of Kinlochard, we have been asked to put lipstick on a pig again. We have been asked to do that many times in the last couple of years, but to my knowledge, this is first time that the pig is not only ugly but illegal. On that basis, we should not get to vote on it. What we should do now, as others have said, is invoke Article 16. If negotiations are not working, as the noble Lord, Lord Pannick, said, there is a route open to us but passing an illegal Bill is certainly not it.