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.

--- Later in debate ---

[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—