Northern Ireland Protocol Bill

Lord Howard of Lympne Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Howard of Lympne (Con)]

If the Government wish to take action to remedy the situation the Minister has identified, why do they not take that action by invoking Article 16 of the protocol, which provides a perfectly legal route for such action to be taken?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I know that my noble friend has raised this point. As I have indicated, there are parts of the protocol that we believe are working. I have already alluded to the common travel area, for example. While Article 16 remains a provision that the Government obviously know is at their disposal, and can enact it if so required, we believe that the Bill seeks to present a solution to the exact issues that we are identifying and need to be addressed, but not by removing the protocol altogether. I have cited two or three reasons that are currently operational and work within the existing protocol.

To continue, we also believe that the current protocol creates new, cumbersome processes and bureaucracy for traders. It undermines Northern Ireland’s position within the United Kingdom internal market and, as I said, has contributed to the diversion of east-west trade. Most urgently, it has provided an obstacle to the restoration of the devolved Government in Northern Ireland, undermining the important power-sharing institutions established by the Belfast/Good Friday agreement. The Government are continuing, again, as I said earlier, to engage in constructive dialogue with our EU partners to find shared solutions to these problems. I have referred to the discussions under way on current technical decisions between the UK and EU officials, which are a positive forward step.

Let me say again, as I said at the start of my remarks, that our strong preference remains to have a negotiated solution. However, we cannot stand by and allow the current situation to continue. We must ensure that the United Kingdom Government have the powers they need to address these urgent problems and enact lasting solutions to the problems inherent in the protocol, given any scenario. The Bill ensures that we have covered all the bases to implement what we believe are durable solutions while, to reiterate the point on the issue raised by my noble friend Lord Howard, preserving those parts of the protocol which are currently working.

I am confident that once the Bill has received Royal Assent, we will be well on our way to restoring the balance between the communities in Northern Ireland, which is integral to the Belfast/Good Friday agreement. I assure your Lordships that we continue to engage directly on the ground with businesses and communities in Northern Ireland; importantly, we continue discussions with our EU partners. The purpose of the Bill is to ensure that we have all the tools available to the Government to deal with the scenarios that we currently face, but we remain committed to finding a lasting solution.

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[Lord Howard of Lympne (Con)]

My Lords, I am genuinely grateful for the opportunity to follow the noble Lord, Lord Dodds, for whom I have much respect, and indeed I have a good deal of sympathy with the concerns which he has expressed. But, as I hope to explain, this Bill is not the way to alleviate those concerns.

I also echo those who have paid tribute to my noble friend the Minister and expressed pleasure that he remains in his post, and of course I share the hope and aspirations, which have been widely expressed, that the difficulties we face can be solved through negotiation—and I welcome the fact that those negotiations are now under way. But the Government have asked your Lordships’ House to give this Bill a Second Reading today, and it is our duty therefore to consider its merits.

The Government seek to justify the provisions of the Bill, which would otherwise be a clear breach of international law, by reference to the doctrine of necessity. That doctrine is set out in Article 25 of the relevant treaty, which states that the doctrine cannot be invoked unless it

“is the only way”—

I stress: “the only way”—

“for the State to safeguard an essential interest against a grave and imminent peril”.

Even if it is assumed that all the other requirements of the article are met—and there are of course many reservations about that—it cannot possibly be argued that this Bill is the only way in which the state’s interests can be safeguarded. It is not the only way because the protocol itself provides a way, a perfectly legal way, in which that objective can be achieved. It is to be found in Article 16.

I did not properly hear the answer which my noble friend the Minister gave in response to my intervention, but if he really suggested that the problem with Article 16 was that it could apply only to the whole protocol, and that therefore freedom of movement provisions would be affected, I have to tell him as gently as I can that there is absolutely no basis for that interpretation of Article 16, which gives the Government a wide discretion as to the measures which they could take. I am genuinely bewildered by the Government’s decision not to proceed by invoking Article 16. Your Lordships may be interested in the explanations for its rejection which were given to me by the Home Secretary when she was Attorney-General.

My noble friend the Minister had asked me to speak to the then Foreign Secretary, now of course the Prime Minister, about this issue. When the conversation turned to the legality of the Government’s proposals, she referred me to the Attorney-General, which your Lordships may think is in itself not entirely insignificant. The then Attorney-General told me that the decision not to invoke Article 16 was a political one. The reason, she told me, was that Article 16 permits only measures which are proportionate. I should repeat that, although it will not take long for the implications to sink in: Article 16 was not invoked because it permits only measures which are proportionate. To put it very mildly, this of course reinforces the unanswerable argument that the Government simply cannot contend that the Bill is the only course open to them. It must follow, therefore, that it constitutes a clear breach of international law.

Why does all this matter? It matters because, although I acknowledge that Parliament can legislate in breach of international law, it should not do so—and it especially should not do so at the present time. Of course it is the case that, on the scale of iniquity, the Bill, for all its flaws, does not begin to compare to the invasion of Ukraine. But Ministers—our Ministers—frequently criticise that invasion on the ground that it is a breach of international law. My noble friend did it in the course of his opening remarks. The Defence Secretary, for whom I have great respect, did it in a newspaper article on 25 September. He said of Vladimir Putin:

“We take everything he does seriously, because this is a man without any scruples and any regard for international law.”


The thing about the law, whether it is domestic or international, is that you cannot pick and choose. You cannot pray it in aid in one context and have no regard for it in another, so I urge the Government to think again. They can achieve their objectives perfectly legally by invoking Article 16, but if they persist with the Bill, I shall vote against it—not, of course, today—and I urge your Lordships to do likewise.

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[Lord Stewart of Dirleton (Con)]

I hear the noble Lord and will revert to him in due course. It is not possible to equiparate international law with domestic law. There is simply not enough of it and it is too dependent on facts and circumstances which will not apply from case to case to come up with a precedent which would allow noble Lords who have spoken in these terms to speak with such certainty.

Should I address the noble Lord, Lord Purvis of Tweed, at this stage? At an early stage in these proceedings, he spoke about the nature of the plea to necessity. I say again that it is very different from the interpretation of a domestic statute. Of course in international law there are similarities with domestic legislation, and of course in international law, often being a matter of paction, there are similarities with the law of contract. But it cannot be equiparated with, to use a metaphor that emerged from the Cross Benches, a contract for the sale of sausages. It is too complex and too fact-specific. That point was continued by the noble Baroness, Lady Suttie, my noble friends Lady McIntosh of Pickering, Lady Altmann and Lord Kirkhope of Harrogate, my noble and learned friend Lord Garnier—I am sure that I have missed others out; as I said, my undertaking is to engage with your Lordships to assist them in moving this forward—and, I decipher from my scrawl, the noble Lord, Lord McDonald of Salford, speaking from the Cross Benches. The assertion that the Government’s position breaches international law is too bold and lacking in nuance. I submit that we are entitled to proceed on the basis that we anticipate that the protocol will be operated in a manner that reflects the unique and serious circumstances against which it was drawn up.

The doctrine of necessity was approached by the noble Baroness, Lady Crawley, and my noble friend Lord Hannay of Chiswick in particular, who equiparated—if I misattribute this to my noble friend, I apologise to him and will happily correct it—invocation of the doctrine of necessity with the law of President Putin. Far from it: there is authority for the existence of a defence of necessity dating back at least to the early 19th century. It was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube. It formed part of the International Law Commission’s articles on state responsibility, drawn up in 2001, as the Government’s statement on their legal position notes. In 1995, the Government of Canada justified steps taken to protect the Grand Banks fisheries on the basis that it was necessary to do so. If fisheries in the Atlantic are important, how much more so is the extension of democratic rights across the whole of this United Kingdom?

Invoking the doctrine of necessity does not repudiate international law or the international rules-based order. It is part of the international rules-based order. The noble Baroness, Lady Kennedy of The Shaws, my noble and learned friend Lord Clarke of Nottingham, the noble Lord, Lord Bach, and my noble friend Lord Tugendhat stated that the Government were undermining the rule of law and that this constituted a flagrant breach of the rule of law. Again, by invoking the doctrine of necessity, we operate within the framework of international law and—

[Lord Howard of Lympne (Con)]

Is not my noble and learned friend rather missing the point? None of us has suggested that the doctrine of necessity plays no part in international law. What we are saying is that it is not justified by the Government’s approach in this particular instance.

[Lord Stewart of Dirleton (Con)]

I respond to my noble friend by saying that the assertions that it breaches international law simply cannot be determined at this point because it is a matter of exploring the complex background of facts and circumstances, including the manner in which the protocol has been operated.

Northern Ireland Protocol Bill

Lord Howard of Lympne Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I apologise to the House for being unable to speak at Second Reading. I put my name down but realised that I could not be present at the end of the debate. If noble Lords will accept my apology, I assure them that I will not now make a Second Reading speech; I will simply summarise what I believe to be the case: that, as proposed legislation, this is a lamentable Bill.

If we want a careful, detailed analysis of the issues in and chronology of this case—I recommend that we do, if I may say so—the report from the House’s Library is absolutely magnificent. I personally thank those who prepared it; I recommend it to your Lordships. Everybody wants to have a say, so I am not going to add to the long list of things that are required, but can I suggest three more?

First, the Constitution Committee has just reported. The power of its report is not merely in that it repeats the concerns expressed by the delegated legislation committee on the Henry VIII aspects of the Bill; it directly addresses the Government’s contention that there is no problem with the lawfulness of the Bill. The Government have so far treated the report from the delegated legislation committee with scant respect. We have not had an answer to it. We should not proceed with this Bill until such time as there is an answer to the delegated legislation committee’s report and to the Constitution Committee’s report. These are our committees. They are cross-party, and the reports speak for the committees as a whole.

My second concern is that there is litigation afoot. A judicial review of the protocol has been taken and is due to be heard in the Supreme Court on 30 November. My question is this: has any attempt been made to expedite the hearings so that they can come on more quickly and we can have the Supreme Court’s answers to the issues raised instead of saying, “Well, we’re going to have to wait for that decision so we must act quickly because we’re having to wait too long”?

Thirdly, a number of infringement processes have been taken against us by the EU. It would helpful if we could see our responses to those. We need to know where we stand in the formal proceedings taken by the EU that we are in contravention of our treaty obligations. They are not a matter of privacy. I understand that negotiations must be conducted privately and there is confidentiality attached to them, but surely not for our Government’s response to the EU’s requests for infringement processes to be looked at.

In the end, I am very glad that this issue will not be taken to a Division today. That is sensible, particularly because all sides of the House need to understand what the problems are with the Bill and why it is, in the word which I used at the time of Second Reading, which I did not take part in, a lamentable Bill.

[Lord Howard of Lympne (Con)]

My Lords, the effect of these amendments, whether one agrees with their precise wording, is to give the new Administration time to pause, to reflect, and to consider the best way of dealing with the issues that arise from the protocol. The new Administration need that time. There is no doubt that the way that the protocol is being implemented causes considerable practical difficulties for Northern Ireland, particularly for trade between Northern Ireland and the rest of the United Kingdom. These difficulties, which would be exacerbated if the protocol were to be implemented in full, are real. A solution to them must be found.

There is agreement across the House that the best solution could be an agreement between the United Kingdom and the European Union. We are told that discussions are taking place. I hope that the new Administration will give fresh impetus to those discussions, and that it will not take what might be described as a theological approach to those negotiations. It appears to be the position of His Majesty’s Government that changes to the text of the protocol are essential. However, it may be that a solution to the practical problems which exist can be provided by other means. The European Union has a long history of creative interpretation of the texts of agreements, which has often stood it in good stead in arriving at practical solutions in one field or another—and it should be encouraged to do so here.

We all hope that those negotiations succeed, but we must face up to the possibility that they may not succeed. If that turns out to be the case, I hope that the Government will look again at the possibility of dealing with the practical difficulties by invoking Article 16 of the protocol rather than through this Bill.

I think that my noble friends on the Front Bench will recognise on reflection that the explanations that they gave at Second Reading for not proceeding by Article 16 were—how can I put it?—rather less than convincing. Presumably it was precisely to deal with difficulties of this kind that Article 16 was inserted into the protocol. It is a perfectly legal route if the preconditions in the article can be satisfied. If they cannot be, there is certainly no justification for this Bill.

I do not need, or propose, to repeat the arguments against the application of the doctrine of necessity in these circumstances, which I and others advanced at Second Reading. I urge the Government to think again. I hope these amendments will prove to be unnecessary.

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[Lord Bew (CB)]

I thank the noble Baroness for her intervention. Of course I take the point, but I was saying that nationalist Ireland basically does not like this Bill. That is not the point. The point is that it is not in any way stopping or infringing or slowing up the negotiations. The point is that the equality of esteem doctrine, which we are supposed to be following with the Northern Ireland protocol, means that the House is bound by international law to pay attention and to try and do something. On whether this Bill is precisely right, there are amendments starred in the normal way to be discussed, but we are not in the situation where we are talking about amendments.

I have great sympathy for the noble Lord, Lord Howard, who raised the issue of Article 16. However, when I look at the noble Lord, Lord Frost, who was in a critical position on this matter for quite long spells in recent times, I think that he is bound to be surprised by the sudden outbreak of support for the implementation of Article 16, because at any time when he voiced the same civilised opinion in this Chamber, noble Lords were totally against it and regarded it as outrageous—of course it never was.

There is even a case now for the implementation of Article 16, made by Professor Boyle, who was professor of international law at Edinburgh, to both the House of Commons Select Committee on this matter and our own Select Committee on this matter. He is actually open to the argument for the importance of the prior international agreement and the importance of protecting it. He is a very distinguished international lawyer. What I understand him to be saying is that, first, you must apply Article 16; that is a perfectly reasonable argument that I am open to. In addition—I look at the noble Lord, Lord Howard, in engaging on this point—the other point that I very much agree with him about is that there is no need to ask the EU to change its negotiating mandate; it has to live up to its commitment to the Good Friday agreement.

The context is one in which—Members of this House do not read the Irish media as I do, and Irish books, articles and so on—there is a fairly consistent admission on the part of the Irish Government’s negotiating team that, when Theresa May was on her knees in November 2017, the advantage was pushed very hard in that agreement, and that they took sole ownership, or sole guardianship, of the Good Friday agreement. In many ways, what is happening here is an attempt by the British Government to say, “Well, actually, that is not really the Good Friday agreement. First of all, you do not have sole ownership. Secondly, we have responsibilities as a sovereign Government not held by the Irish Government and”—as I have tried to explain—"we are trying to move back to deal with this in some way.”

This does not mean that every clause in this Bill is particularly wise, but it does mean that we should not take the attitude that in principle we should not be doing it, or that we must stop now because otherwise the EU will stop negotiating—that is clearly not true. I agree that the Irish Government do not like the Bill and that they believe that it infringes international law. I absolutely accept that point, but the point is that we have to follow our obligations under international law, which means that the long-term alienation of one community must be avoided. Unless the Government do something substantive such as this—

[Lord Howard of Lympne (Con)]

Does not the noble Lord think that it is slightly odd that his justification in law for supporting the Bill is not the Government’s?

[Lord Bew (CB)]

The noble Lord has a point—but not as deep a point as he might imagine, because the Government have been consistent in saying that the primacy of the Good Friday agreement is the core of their position, in both the House of Commons and in this House. There are other details; there is phrasing. For example, as is well known, I am not as convinced of the need for language in this Bill about the Act of Union. I understand why it is there, but I am not convinced that it is relevant. There are other aspects that we will discuss, in the normal way, on amendments. There is detail that will come up later tonight, and there are things that need to be said, in the normal way. But this is not a normal discussion—