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.

--- Later in debate ---

[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.