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.