Protocol on Ireland/Northern Ireland: EU Proposals

Lord Kerr of Kinlochard Excerpts

Thursday 21st October 2021 Lords Chamber

[Lord Frost (Con)]

My Lords, as a Government we obviously have our own dialogue with the US Government that does not depend on messages in the New York Times. I refer back to the statement made by the Prime Minister when he was in Washington last month, when he noted that he and President Biden were “completely at one” on the importance of protecting the Belfast/Good Friday agreement. We are completely at one on that subject.

[Lord Kerr of Kinlochard (CB)]

I am really puzzled by the Minister’s reply to the question from his noble friend, the noble Baroness, Lady McIntosh. Does he not acknowledge that in law the protocol is an integral part of the treaty? Does he accept that safeguard action under Article 15 of the protocol could not extend to abrogating Articles 12 and 5 of the protocol, which set out the role of the court? Does he accept that the EU could not conceivably agree to amend Article 12 to confer on a non-EU court the right to interpret EU law? If so, how would he deliver on his threat? Since it cannot be done legally, does he again envisage legislating to act illegally in a “limited and specific way”? If so, I do not believe this House would agree.

[Lord Frost (Con)]

My Lords, obviously the protocol is part of the withdrawal agreement but that does not prevent its being reopened and renegotiated separately. The same is true of any treaty; it is possible to negotiate part and not the whole thing. On the Article 16 question, obviously the Article 16 provisions in the protocol are nearly sui generis. There are very few parallels for them anywhere else. The scope of how they may be used remains to be tested. What is clear is that they are safeguards to deal with an evolving and difficult socioeconomic situation and the issue of trade diversion. When and if we take action under Article 16, obviously that will be the purpose of any action. As I say, though, we hope to come to a consensual agreement rather than having to go down that road.