Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the Bill we are debating today is deeply flawed, on grounds of both practice and principle. Moreover, it is a completely unnecessary piece of legislation, as anyone can see who takes the trouble to read the report of the Northern Ireland protocol sub-committee of your Lordships’ House, chaired by the noble Lord, Lord Jay of Ewelme, which was published just before the Summer Recess. That report makes it clear that, on the main issues dogging the implementation of the protocol—the need for a fast-track procedure and the safeguards protecting the EU’s single market in Northern Ireland for trade in agri-food products—the gap between the Commission’s and the UK’s positions is now very small. That seems to be the view of the Commission; is it that of the Government? If so, what is the rationale for this objectionable piece of legislation?

The practical flaws in this legislation are pretty obvious. It is said by the Government to be designed to bring the Commission to accept the UK’s version of the protocol. Has it had that effect? There have been no meaningful negotiations since February, so it does not seem to be working terribly well. Negotiations are now at last beginning; I noticed that the Minister described them as “technical contacts”, which was not terribly encouraging. I hope—we must all hope—that they succeed in bridging those rather narrow gaps that remain because, if the activation of the unilateral measures provided for in this Bill lead to retaliatory action by the EU, both Northern Ireland and the rest of the UK will be left worse off for an indefinite, open-ended period until another lot of negotiations begin.

It is also said by the Government that unilateral action is needed to safeguard the Good Friday agreement—an objective shared by every noble Lord who has spoken. But will this course of action be helpful or will it make things worse? The latter view seems to be that of the Irish and US Governments, the Commission, the non-unionist parties in Northern Ireland who hold a majority of seats in the Assembly and of most reasonably objective observers. Clearly, the views of the unionist community must be listened to with care, but the principal party on the unionist side of the Northern Ireland divide, the Democratic Unionist Party, actually bitterly opposed the Good Friday agreement, so may just possibly not be the best judge of what is now needed to safeguard it.

Then there are the considerations of principle against the course of action proposed. These are, if anything, even more compelling than the practical ones. We are being asked to approve unilaterally changing the protocol in a way for which there is no provision in the text negotiated and ratified by the Johnson Government, and which the manifesto that won the Government their majority in the other place said they were committed to implementing.

What then should we think of the so-called “doctrine of necessity” set out in an official document published in conjunction with the laying before Parliament of this Bill and purporting to provide the legal justification for the UK to unilaterally break the terms of the protocol? If the doctrine does exist—which I seriously question in anything like the circumstances of the Northern Ireland protocol—it presumably applies potentially to all the UK’s international commitments and obligations, ranging from the UN charter to Article 5 of the Atlantic alliance to every other commitment entered into and ratified following parliamentary approval. That is absurd and extremely dangerous. The doctrine of necessity was the doctrine that President Putin applied when he invaded Ukraine and the doctrine to which President Xi would turn if he wished to use force against Taiwan. We should have nothing to do with a doctrine which is so clearly the very antithesis of the rules-based international order to which the Government continue to pay lip service while ignoring its implications.

Overall, this is an unnecessary Bill which, in its present form, will do more damage than good and which thus requires radical amendment or not to be pursued at all.

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[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 Hannay of Chiswick Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

I am sure we will return to the principle of the doctrine of necessity in later amendments. The use of Article 16 was debated during Second Reading, when a number of noble Lords, including my noble friend Lord Howard, suggested its use—indeed, that has been cause for debate. The noble Lord will be aware that that remains very much at the Government’s disposal, as it does at the disposal of the EU, because that was an agreement that was signed. On the principle of necessity, as I said, I will defer to my noble and learned friend Lord Stewart, who I am sure will discuss this with the noble Lord in other amendments that we are scheduled to discuss.

The noble Baroness, Lady Ludford, talked about Article 13(8) of the protocol, which deals with how subsequent agreement interact with the NIP. The EU, from our perspective when this has been raised, continues to reject any changes to the NIP itself. However, in saying that—and I am going by the discussions we are having with the European Union at this time—my experience is that it is not just the substance of what is being discussed with the EU at the moment but the tone of the engagement as well. While there are differing opinions—I accept fully that some are saying that a delay, which has been proposed, would strengthen the Government’s position—our view remains that the EU is very clear on our position on what we are seeking to do with the Bill, but that has not prejudiced the tone or substance of our engagement with the EU.

[Lord Hannay of Chiswick (CB)]

I thank the Minister for giving way. I welcome very much his willingness, expressed to the noble Lord, Lord Cormack, to consider a proper process of reporting back on what is going on in Brussels. Having lived all my life in a profession where words mattered, I find it very difficult that the words through which the process in Brussels is referred to keep shifting all the time. Sometimes, they are technical discussions; sometimes they are talks. The word “negotiations” somehow never quite seems to come out of the Minister’s mouth, but how on earth do you conclude a negotiation without negotiations? I simply do not understand; it seems that we are in an Alice in Wonderland situation.

It would help greatly if the Government were prepared to give a careful and systematic account of what is going on from their point of view. We know the Commission’s point of view. It has said on a number of occasions that its mandate, which it used last October, is not exhausted. Does it have to say more than that?

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[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.

[Lord Hannay of Chiswick (CB)]

The Advocate-General has just given the totally conventional response about the Government not publishing their legal advice. In that case, why did the Government publish a four-page document in the summer setting out their legal advice?

[Lord Stewart of Dirleton (Con)]

My Lords, the Government set out their position at the outset to assuage, hopefully, the concerns of Peers and Parliament generally about the steps which they intended to take. I do not intend to go beyond that on the Government’s legal advice.

I was going on to address the point raised by the noble Lord, Lord Pannick, and others—the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Ludford—about the matter of necessity. The noble Lord, Lord Pannick, paid me a restricted compliment earlier. May I respond in kind by saying that I am grateful to him for the wise, kindly, and friendly manner in which he has always engaged with me since I started in this House? I look forward to further engagements with him and the noble Lord, Lord Kerr of Kinlochard, and others on these points.

The noble Lord I think was the first to pose the question, how would it be possible for the Government to depend on the doctrine of necessity when the Government have put their signature, have become a party, to the protocol, having negotiated it? Do those facts, of themselves, prevent the Government from relying on this? Because, as the noble Lord said, the doctrine of necessity cannot be relied on by a party which by its conduct has caused the problem. The noble Lord, Lord Bew, nods his head.

Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Bruce of Bennachie (LD)]

My Lords, I rise to support these amendments tabled by my noble friend Lady Suttie and signed by the noble Baroness, Lady Ritchie, and I thank both of them for the way they have introduced them. This is a Foreign Office Bill, but its implications are vital for the people of Northern Ireland and for the people of the United Kingdom, because it is a political Bill which is dangerous in terms of what the Government are playing with.

At the heart of the protocol is the debate about unfettered access to both the UK market and the EU single market. Of course, unfettered access to both those markets is what we had before we left the European Union, and leaving that Union inevitably led to a situation where an open border between the UK, GB, Northern Ireland and the EU is not compatible with the agreement post leaving the EU. That is clearly the source of the problem—but everybody knew that at the time when the agreement was struck and signed, including the UK Government and Northern Ireland politicians. However, on the face of it, from all the implications that the noble Baroness, Lady Ritchie, quoted, there is a clear majority for moving on—not for setting aside the protocol or, by implication, the trade and co-operation agreement or, frankly, the Bill to repeal EU law, when we have sweated for the past several years to transfer that EU law into UK law.

Do the Government really want to provoke a trade war when our economy is in such a fragile condition? The Prime Minister says, and I agree, that we are facing a profound economic crisis. Is tearing up the protocol more or less likely to alleviate this or help recovery in Northern Ireland? The issue, therefore, is surely not how to achieve the minimal friction. We all agree that we want minimal friction; we want as free access as we can get. The issue is not how to achieve it but how we can get it to the lowest compatible level for business to carry on with minimal cost and delay.

The case for consulting the Northern Ireland Assembly is overwhelming. Not least, it is not just a matter of the numbers. The whole point of legislatures is that they are where compromises can be negotiated and struck; where the balance can be found. And there is the rub. The DUP insists that the Irish Sea border must go. As I have said, it would of course be ideal to have no borders, but that would be inconsistent with being outside the single market and the customs union. So a low-friction agreement on implementation of the protocol appears to be the answer, appears to have wide support and could surely be negotiated with good will on all sides.

Unfortunately, as I understand it—and I would be happy to be contradicted when the DUP enters the debate—the DUP is insisting on what it knows to be an impossible solution: no borders. The party has said that, unless it gets that solution, it will never re-enter the Assembly or the Executive. The Good Friday agreement—the Belfast agreement—is a power-sharing arrangement between the largest nationalist and largest unionist grouping. It is not a majoritarian arrangement, as the DUP rightly insists on telling us—but nor is it a never-ending veto. To share power is to seek and find compromise. Refusal to do so is to deny the spirit and probably the letter of the agreement. It is to deny democracy. Most important of all, it is to deny the people of Northern Ireland the delivery of essential services that they require and that they voted for—and, as the noble Baroness, Lady Ritchie, said, they desperately want solutions to be addressed.

So we are facing the prospect of a fresh election. I do not think anybody wants an election, and nor does anybody believe that it is likely to make a huge difference; it will not change much. I hope that it might further strengthen the Alliance but, on the whole, it is not likely to make a huge difference. If the DUP, before or after the election, blocks any compromise—I repeat, any compromise—is it not time to reconsider the arrangement? I have already said that power sharing requires compromise. Should refusing to compromise question the right to share power? Is it not time for some hard consideration of the rights of the people of Northern Ireland—their rights to have a functioning Government, to move forward and to have a solution that is based on reality, not fantasy?

[Lord Hannay of Chiswick (CB)]

I support the amendment, so ably moved by the noble Baroness, Lady Suttie, for a simple reason. It relates to what is frequently called the “democratic deficit”—a phrase that often finds itself in the mouths of those who support this Bill, among whom I am not numbered. They talk about the democratic deficit in Northern Ireland mainly in respect of the fact that the people of Northern Ireland do not have a say over the legislation for the single market, which will be passed in Brussels. They erroneously say that that is the only place in Europe where that happens. That is untrue; it is the same for Norway, which has no say over legislation passed in Brussels but accepts it when it is sent through on a fax. So the use of the words “democratic deficit” by the supporters of the Bill is in any case a bit erroneous. It is even more erroneous when you consider that the people of the Northern Ireland actually voted to remain in the European Union; that surely is something of a democratic deficit.

These amendments, which I imagine the Minister will explain the Government cannot support, are also an attempt to address the democratic deficit, to say that the people of Northern Ireland collectively should have some say in the operation of this deeply flawed legislation. So why will the Government oppose it? We know why: because a majority of Members of the Assembly who were elected in May have said they do not want any of it, and that would not be helpful to the Government’s objectives. When you bandy around phrases such as “democratic deficit”, you should follow them through to their logical conclusion, and that logical conclusion is in the amendments that the House is now debating.

[Lord Browne of Belmont (DUP)]

My Lords, the amendments would subject aspects of the Bill to the approval of the Northern Ireland Assembly. However, my contention is that they will work only if preceded by a prior vote on the protocol itself in accordance with the standards of cross-community consent put in place for the controversial matters set out by the Belfast/Good Friday agreement.

The Good Friday agreement is now very vulnerable because of the approach of the European Union in relation to two key principles at the heart of it. First, the Good Friday agreement is predicated on a commitment to affording the interests of both communities parity of esteem. The interests of unionism have not been afforded parity of esteem vis-à-vis those of nationalism with respect to the protocol. While the protocol represents an existential threat to all that unionists hold dear and is rejected by all the unionist parties, it authenticates that which nationalists and republicans desire: the breaking of the UK economy. Secondly, the Good Friday agreement is predicated on a commitment to non-majoritarian politics, which means that controversial decisions have to be made on the basis of cross-community consent. Again, that has been cast aside.

In the first instance, the EU sought to pressure the UK Government into the protocol without affording Northern Ireland any say in the matter, notwithstanding the fact that the effect of the protocol is to slash the value of the Northern Ireland vote, as 300 areas of lawmaking to which we are subject are taken from us and made by a legislature of a foreign power. When the EU finally agreed that the Northern Ireland Assembly should be given some say in the matter, it insisted for some bizarre reason that it should happen four years afterwards. It made provision for it to continue for at least another four years without cross-community support, resulting in eight years of government outside the confines of the Belfast agreement, which could of course continue indefinitely with regular four-year extensions.

That is the height of irony because anyone who studies democracy will know that leading academics in the field, such as Professor Arend Lijphart, are very clear that the EU is one of the most consensual, non-majoritarian polities in the world today. That the EU decided to betray its own commitment to non-majoritarianism by going out of its way to impose majoritarianism on a polity that it knew was based on non-majoritarianism is quite extraordinary.

This is a major problem not just for the Good Friday agreement but for the protocol. The protocol subjects itself to the Belfast agreement in all its dimensions through Articles 1 and 2. That is a problem for those who wish to argue that international law constrains those seeking to address the clear injustices of the Northern Ireland protocol, because Article 3 of the Vienna Convention on the Law of Treaties is very clear that:

“When a treaty specifies that it is subject to … an earlier or later treaty, the provisions of that other treaty prevail.”


Given that the convention also sets out mechanisms, such as Article 56(1)(b), whereby a state party can lawfully and unilaterally withdraw from a treaty, the refusal of the EU to amend the protocol so that it is properly brought into line with the prior treaty clearly gives grounds for our withdrawal.

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[Lord Hannay of Chiswick (CB)]

I am most grateful to the Minister for giving way. Could he perhaps give an instance in which Norway has not immediately adopted a piece of European legislation since the EEA agreement came into effect?

[Lord Caine (Con)]

The noble Lord is a former diplomat. He is a far greater expert on these matters than I will ever be. However, my noble friend Lord Hannan has just whispered in my ear “the post office directive”. I will come back to the noble Lord with further details.

Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I intervene briefly in support of these amendments requesting that the Government provide an economic impact assessment.

Nothing could better characterise the extraordinary nature of our debates today, Wednesday and next Monday—and their unreality—than the fact that the Government are asking us to enact a Bill that gives them complete powers to do whatever they like in circumstances where it has been impossible, in the Government’s view, to get a negotiated solution. I recognise that the Government’s preference is for a negotiated solution. They are proposing that we give them a blank cheque for that without telling us what the impact on the British economy or the economy of Northern Ireland might be. That is frankly bizarre. It is not truly credible.

Of course, we all know that, in the event and after we have given them those powers, they would probably publish something, but we need to know now. We need some guesstimates—I accept they could be only guesstimates—of what the likely consequences would be if the Government’s preference for a negotiated solution cannot be achieved and they use the powers in the Bill that they are asking us to enact. I cannot honestly think of an argument against it.

Five years before we joined the European Communities, the then Labour Government issued a White Paper under George Brown which was an impact assessment of joining the European Communities. Why is it impossible to do that now? Why can the Government not say what the impact would be if the car goes over the cliff? I hope the Government will relent and will provide some impact assessments of these matters, because we really need to see them before we are asked to vote on the Bill.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Chapman of Darlington, for Amendments 12 and 15 in her name.

Since the Bill was introduced, the Government have engaged extensively with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. In addition to routine engagement, as I have mentioned, during the summer, the Government held over 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators to inform the details of how the dual regulatory and trade boundary models should work in practice. In response to the noble Baroness, Lady Ritchie of Downpatrick, I refer to some of my own engagement, not just with the dairy and agri-food sectors, but with business representative groups in Northern Ireland. That has been a similar experience to that of my right honourable friends, the Minister of State and the Secretary of State. We are very committed to this and we are reflecting on the huge wealth of feedback that we have received as we continue to develop the details of the underlying regime.

The clause is designed to provide stakeholders in Northern Ireland with certainty that the Government will deliver the solutions we have outlined. The House will have the opportunity to scrutinise regulations in the usual fashion, and the Government will provide all the usual accompanying material under normal parliamentary procedures. The full details of the new regime will be set out in, and alongside, regulations made under the Bill, including economic impacts where appropriate, so that Parliament may make informed scrutiny of the new regime which is being put in place.

The regulations themselves will be the product of engagement with businesses to ensure the implementation of the new regime is as smooth and operable as possible. Stakeholder views are of course important, but it is ultimately for Ministers to exercise these powers, and for Parliament to scrutinise and hold them accountable in the usual way. An additional requirement for the Government to lay an assessment and a report when it makes regulations using this power is therefore, in our view, unnecessary, and in that spirit, I urge the noble Baroness to withdraw the amendment.

Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, the noble Lord, Lord Purvis, has again referred to the issues raised in the eloquent letter read out by the noble Lord, Lord Browne. First, I want to say something directly to his constituent on behalf of the House. This is what the House of Lords does. We have a big thing about Henry VIII powers and would do this with any Bill. I fully expected that and nothing I have heard has been the remotest surprise in several days of debate on the Bill. There has been not even the slightest tincture of originality. However, the problem is that the Bill, unlike the other Bills the House deals with, is not quite being dealt with in the normal way. This is part of a three-dimensional strategy of the Government. The other dimension is negotiations with the European Union. When I said weeks ago in this Chamber that these negotiations would proceed and would clearly not be badly affected by the existence of the Bill, I was greeted with howls of disapproval. In fact, we all know that they are proceeding and they have not been affected by the Bill. That is one dimension and the reality.

The other point is that this is related to a strategy that may very well fail to get the institutions of the Good Friday agreement up and running before the 25th anniversary of that agreement. This strategy may well fail, but anybody who thinks that the immediate dropping of the Bill now would help with the return of the Good Friday agreement and that strategy is also wrong. The UK Government are acting under the international agreement—Article 1(5)—which permits the Government with sovereign power to address the alienation of one or other community, as we did over the Irish language a few weeks ago and as we are now trying to do with this issue, because there is significant alienation in the unionist community over the cause of the protocol.

I simply want to make the point that, although I have been slightly cold in response to the noble Lord’s constituent’s resentment, I understand it—but this is what the House of Lords does. It will do its thing about regulatory powers, delegated powers and so on, and it ought to do that thing. What we and the noble Lord’s constituent are entitled to ask is that it should take some account of the fact that we are involved in a three-part process. The Bill is not quite just a thing in this way. It coexists with other key elements: the negotiation with the European Union, which the House now accepts, somewhat grimly, is going on unaffected by the Bill and is by far the best outcome; and the need to act under our international obligations to address the alienation of one community. I simply suggest that it would be less irritating to the noble Lord’s constituent if those points were at least acknowledged.

[Lord Hannay of Chiswick (CB)]

My Lords, I will briefly follow the noble Lord, Lord Bew, because he raised a point of great importance: we are breaking our teeth on a problem with three parts. At the moment, the Government are giving us absolutely nothing in terms of reporting on what is going on in Brussels. It is simply described as a “running commentary”, as if that were answer to the problem—well, it is not.

I lived through the last time the United Kingdom negotiated with the European Union as a third country, known as our accession negotiations. The process of the negotiations was reported on regularly to both Houses of Parliament by the Heath Government. No one said that was a running commentary or the wrong thing to do. We cannot go on like this, without the slightest idea of what is going on in Brussels, because it very much affects what we are discussing here. As the noble Lord, Lord Bew, rightly said, there is not the slightest sign to show whether our discussion here, and the Government pushing this absurd legislation through in an untimely manner, are either helping or hindering what is going on in Brussels.

I plead with the Minister to programme a moment at which the Government will give both Houses a progress report—not of everything going on in Brussels, but so that we have some idea of how that piece fits in with the others.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Clause 15 contains what the DPRRC called the “most arresting” powers in the Bill, allowing Ministers to rip up and rewrite an Act of Parliament by granting the power to classify parts of the protocol as excluded provision or to tweak the precise nature of that classification, with virtually no parliamentary oversight.

The Minister will argue that the Government have constrained themselves by listing nine permitted purposes for which changes can be made to the application of the protocol, but that list changes very little. The DPRRC describes it as

“a very broad set of circumstances”.

Unlike SIs made under the EU withdrawal Act 2018, which must be accompanied by a declaration of the good reasons for them, the DPRRC says that there is no obligation for a Minister to include a statement setting out why the regulations are being made.

The DPRRC report does not take issue with Clause 16, although this also confers very broad powers on Ministers: they can make any additional provision that they like in relation to additional excluded provision. Once again, we need the Government to publish indicative regulations: we currently have no idea how the use of these powers would look or how often they would be used. We are told that the tearing up of the protocol is to bring stability and predictability to trade across the Irish Sea, yet these powers theoretically allow Ministers fundamentally to alter trading arrangements at short notice, with no reasoning, consultation or formal scrutiny. As with Clause 14, the provisions appear unworkable, and granting such discretion to Ministers is likely to increase uncertainty and instability.

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[Lord Hannay of Chiswick (CB)]

Although the noble Lord, Lord Dodds, has developed his argument with great eloquence, and at considerable length, he has not yet explained to my satisfaction why it was that his party did not object to the holding of a referendum that took Northern Ireland out of the European Union against its expressed wish as being a breach of the Good Friday agreement?

[Baroness Ritchie of Downpatrick (Lab)]

My Lords—

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[Lord Caine (Con)]

The vote will be on Articles 5 to 10, regardless of any changes in domestic law made by this Bill.

The noble Baroness, Lady Ritchie, will recall that securing the consent mechanism was, in the view of the Government at the time, one of the key measures which paved the way for them to agree to the revised Northern Ireland protocol in the autumn of 2019. It follows therefore that it would make no sense for the Government subsequently to remove what was seen at the time as a key part of the protocol. It is perhaps because this point is so self-evident to the Government that we did not see the need to protect this element of the protocol under Clause 15(1). The clause is not intended to provide an exhaustive list of every single article of the protocol that we do not intend to alter and therefore we have not listed other articles which we have no intention to amend.

For the avoidance of doubt, I can confirm to the noble Baroness that the democratic consent process remains an integral part of the Northern Ireland protocol. The protocol should not, and indeed cannot, continue unless it retains the support of a majority of Members voting in the Northern Ireland Assembly. Again, I hear the points made by my noble friend Lord Dodds of Duncairn in that respect, but I am just setting out the position as it stands.

I hope that this reassures the noble Baronesses, Lady Chapman, Lady Suttie and Lady Ritchie of Downpatrick, that we have no intention of using the powers to alter in any way the mechanism in Article 18.

[Lord Hannay of Chiswick (CB)]

The Minister gave a reply to the question about what the basis of the consent vote in 2024 would be, but I really did not understand what he said. Surely the vote in 2024 will take place on the Northern Ireland protocol and its arrangements for implementation as they stand at the time of the review, not as they are now and not as they would be if the Government unilaterally changed the protocol and destroyed it in the process—then there would not be a review at all. The answer is surely quite simple. It cannot be said with precision, because we do not know what the provisions of the protocol and those for its implementation might be at the time the vote takes place, but that is what it will be on.

[Lord Caine (Con)]

The noble Lord is right that it is probably not fruitful to speculate on what the circumstances might be in 2024. Our first objective is to have an Assembly in place that would be able to consider these matters and take the decision.

In conclusion, I hope I have provided some assurance to noble Lords about our intentions in respect of the powers in Clause 15, Article 18 of the protocol and the consent mechanism. I therefore urge the noble Baroness to withdraw her amendment.

Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Baroness Butler-Sloss (CB)]

I very much support what the noble Lord, Lord Pannick, said, and add that it seems quite astonishingly narrow-minded and short-sighted to want to be rid of the European court in these circumstances. We heard at length last week about the effect on electricity, but there is a wider effect.

May I just put in a word of defence of the European court? I happened to visit it on numerous occasions. It has made some extraordinarily sensible decisions that have affected this country and particularly women, which is one of the reasons I support it. It is quite extraordinary that a Conservative Government, who I always thought had a broad view, should be quite unbelievably narrow-minded, and that some quite erroneous view of sovereignty should be taking over from the crucial role that the ECJ has to play in the work we are considering.

[Lord Hannay of Chiswick (CB)]

I echo, from a non-legal point of view, the points made by the previous two speakers but, when looking at the European Court of Justice and its role under the protocol, I imagine that even the noble Lord, Lord Lilley, would not contradict the point that I am about to make, which is that the properly constituted British Government, supported by the properly constituted British Parliament, entered into a treaty that gave a role to the European Court of Justice. That is a simple fact. It is there, written. It is another simple fact that there is no provision in the protocol to remove that role of the European Court of Justice—none.

What we are talking about is a breach of our international commitments. I am sure one of the noble Lords on the Front Bench will again hotly deny that this is the case because, like the Red Queen in Alice, their only argument is, “It is so because I say it is so”. Fortunately, that is not a terribly convincing argument in this place, where occasionally—not all the time—reason has a way of prevailing. I should like to suggest that we recognise this reality, which is that the Government’s attempt to remove the European Court of Justice unilaterally from two international treaties, which they entered with the consent, support and approval of Parliament, is a breach of our international commitments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we had a brief debate on matters relating to the European court last week, which largely focused on the earlier parts of the Bill. It is helpful to have this opportunity to deal with some of these issues in more detail.

The agreement reached with the EU on the status and role of the CJEU in relation to the protocol and other parts of the withdrawal agreement was carefully crafted and informed part of the oven-ready deal the Conservative Party was proud to call its own. There is some logic in what Clause 20 seeks to achieve. If the protocol no longer functions as intended, the legal processes cannot either, but that is only if one accepts that it is acceptable to tear up a binding international agreement in the first place.

The power for Ministers to introduce some form of referral process is interesting and a little surprising. It seems to contradict the earlier power in subsection (2). From a practical point of view, would not any referral scheme work only if the EU and European court agreed to engage in the process? Would this point not need to be negotiated?

There has been a wide-ranging debate on these issues, but it seems that there are some very practical consequences of trying to put into place a new referral process while at the same time needing to negotiate with the organisation one has just torn up a formal agreement with. How would that work in practice?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 56 deals with the

“Duty to seek an agreement on outstanding issues with the Northern Ireland Protocol”.


This amendment would make it a statutory requirement for the Government to seek a negotiated outcome with the EU and to exhaust legal routes under the EU withdrawal agreement before availing themselves of the powers in this Bill. The amendment would also require Ministers to provide regular updates to Parliament regarding the ongoing UK-EU negotiations.

In this amendment, we seek to bring together two issues in a single text: the negotiated settlement and the regular updates. This would ensure that the extraordinary measures in this Bill could not be used until all legal routes are exhausted. We know that the Government will say this amendment is unnecessary, yet the very existence of this Bill highlights the lack of good faith displayed by Ministers. We have been asked to trust in the new negotiations, but we have not yet had an update from the Foreign Secretary—although we are told we may get one later this week, and I would be grateful if the Minister could confirm that. Colleagues such as the noble Lords, Lord Hannay and Lord Kerr, often remind us of the Commission’s duties to the European Parliament, so why, after all this time, does the Conservative Party continue to sideline what they call the mother of Parliaments—this House? If the Government really are acting in good faith, they should take no issue with this amendment. It is a restatement of their own policy, coupled with a request for further information. I beg to move Amendment 56.

[Lord Hannay of Chiswick (CB)]

My Lords, I support this amendment. I have spoken on a number of previous occasions about the fact that we are fumbling around in the dark. The noble Lord, Lord Ahmad, made a noble attempt at an earlier stage in today’s debate to say something about what was going on but I am sorry to say that, if I was being impolite, I would say that what he said was the square root of nothing. Are we going to get something more than that? We ought to. That has been the practice of previous British Governments in negotiation as a third party when we were outside the European Union and in many other negotiations. I think it is pretty shocking that we are not getting that.

It also underlines a point which all our debates illustrate: that the Government have put the cart before the horse. Surely the right sequence would have been for the Government to enter into a serious process of negotiation from last February onwards; but they did nothing—absolutely nothing. We now know that nothing happened after February. As that process went along, they should have reported it to Parliament. At some stage or another, it would have been perfectly reasonable for the Government to say that we cannot go on like this for ever and, if we cannot get a negotiated agreement to sort out the implementation of the protocol in order to cure it of some of the imperfections which none of us contests, then we may have to go down a unilateral course.

If the Government had done that, I suspect that we would have had an agreement by now—but the lady who was Foreign Secretary at the time and who had her eye on higher things, which, alas, turned out to be a flash in the pan, went down another course, which was to put the cart before the horses. And that is where we are: with the cart firmly before the horses. Here we are, spending hours and hours discussing what we are going to do if this process of negotiation, which the Government say is their preference, fails. Well, the time to do that is when it has failed, when the Government have made a full and detailed report of why it had failed, and when we can see what the other side in the negotiation says about whether those reasons for failure are justified. Then Parliament can take a view on what to do next.

Instead of which, we are being asked to do all this now in the, alas, totally futile belief that this will somehow put the frighteners on Brussels. Well, it does not look to me as if Brussels is terribly frightened; nor has it been for many months. So I wish we could just get away from this and leave the process of deciding what we do if the Government’s preferred option fails, and then we will deal with that when we get to it. We will cross that bridge when we get to it.

[Lord Murphy of Torfaen (Lab)]

My Lords, I too support my noble friend’s amendment. When we look at this pointless and rather daft Bill, we realise that it has achieved absolutely nothing. They would have been more influenced by the man in the moon than by this Bill.

The Bill might have done something, but so far has done nothing, to achieve progress in Northern Ireland. I would be very interested if the people negotiating on the European Union’s behalf looked at a video of the last couple of hours’ debate in this Chamber. They would then realise that these are not the “technical issues” that we are told are being resolved at the moment. It is not about oranges, sausages and the rest of it; it is about people’s identity in Northern Ireland, whether they be unionists, who feel that their own British identity is threatened by the protocol, or nationalists, who feel that they are threatened in some other way.

The first thing the Government should understand is that in some ways the negotiations now have to be parallel: a negotiation between the European Union—with, as I said earlier, a much bigger involvement by the Irish Government—and the United Kingdom Government on the protocol itself, in parallel with negotiations to restore the institutions of the Good Friday agreement. Those institutions have effectively collapsed and there is a case for looking at them again. The noble Lord, Lord Dodds, referred to the Taoiseach’s comment about changing the rules on the way the Assembly and Executive operate—remembering, of course, that the St Andrews agreement changed the rules of the Good Friday agreement. But they were changed by agreement. That is the issue: they were not changed unilaterally by one side or the other.

In the next six months—I will come to that in a second—there should be a structured negotiation on the one hand with the European Union and on the other between the political parties in Northern Ireland and, where appropriate, on strands 2 and 3, with the Irish Government. I do not think that has entered the Government’s head over the past eight to nine months. For all sorts of reasons, which everybody knows about, they have not really been bothered; they have let things drift. There have not been proper negotiations. It seems to me that one of the Government’s most important responsibilities is to ensure that Northern Ireland does not go backwards 30 years—and it is quite possible that that could happen.

I think the European Union sometimes does not understand the absolute uniqueness of the Northern Ireland situation, of the Good Friday agreement and of the identity issue. There is no comparison anywhere within Europe, perhaps even in the world, with what has happened in Northern Ireland, and it seems to me that that has not been appreciated by the people doing the negotiating.