Northern Ireland Protocol Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I express my support for the observations of the noble Baroness, Lady Chapman, and the amendment advanced by my noble friend Lady Altmann. I would very happily have supported either, were this matter to be put to the vote.

I am against the Bill. I expressed my reasons at Second Reading and will not repeat them today because I appreciate that we are concerned here with a very narrow issue: whether this matter should go into Committee. In expressing my opposition to it going into Committee, I want to focus on one issue only, namely our relations with the European Union.

We have a new Prime Minister. I wish him well. Mr Sunak supported Brexit, a policy that I deeply regret. However, I am sure that he will be the first to recognise the need to improve our relations with the European Union. We must do so: they are our nearest, biggest and most important trading partner, very important allies and neighbours. We need to give this Government, led by Mr Sunak, the opportunity to reset their policy towards the European Union. I believe that the Bill, if enacted, will aggravate our relations with the European Union. It is possible that it will trigger a trade war. Both of these things would be highly undesirable. What this Government need is time: time to negotiate sensibly with the European Union. If we agree to defer the Bill and not let it go into Committee at this stage, we will be giving the Government and the European Union time to come to a sensible agreement. I commend that to this House.

[Lord Kerr of Kinlochard (CB)]

My Lords, I too will be brief. I have heard nothing in the preceding speeches with which I disagree, but I have one point that I would like to add.

I agree with the amendment put down by the noble Baroness, Lady Chapman, and with the amendment suggested by the noble Baroness, Lady Altmann. However, even in the unlikely event that the Government were to provide all six dossiers that have been requested, and in the even more unlikely event that these proved reassuring, I would still want to vote against this Bill. It is a matter of principle and honour.

You cannot make a silk purse out of a sow’s ear, and this is a pig of a Bill. The powers it confers on government using these powers is simply not compatible with how this country views its commitments. We do not tear up treaties. That is the point of principle; that is the matter of honour. A deal is a deal is a deal: pacta sunt servanda. The noble and learned Lord the Advocate-General told us at Second Reading, in a rather labyrinthine reply:

“The assertion that the Government’s position breaches international law is too bald and lacking in nuance.”


When questioned by the noble Lord, Lord Howard, he said that

“it would be wrong … to engage in a deeper debate.”—[Official Report, 11/10/22; cols. 765-66.]

He did not say why it would be wrong or when the moment would be, but I imagine he was waiting for the Constitution Committee’s report. Now that we have it, we see that the Constitution Committee is clear that even enacting this Bill would

“clearly breach the UK’s international obligations”.

There is not a lot of nuance there.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I hear he has changed. The former Paymaster-General, who is now the former Attorney-General, was citing the former Attorney-General Suella Braverman, who is now the Home Secretary—even I am struggling to keep up with what is going on. Nevertheless, the principle is clear that, if the then Attorney-General was happy to provide advice to the Times in her abortive leadership campaign, we humbly seek that Parliament be equally enlightened with an update on exactly what the Government’s position is.

[Lord Kerr of Kinlochard (CB)]

Perhaps I might provide a lifeline to the Advocate-General for Scotland, because I am a Scotsman too and I hate to see him being so tortured. The noble Lord, Lord Pannick, asked to see the legal advice. I am sure, as he was sure, that in reply the Minister will remind us of the convention. The noble Lord’s alternative option was that the Minister should tell us now what he was unable to tell us, as it was an inappropriate time, at Second Reading.

I have a third option. I was struck that nowhere in the Minister’s quite long speech at Second Reading did he ever fall into the trap of making the applicability of the doctrine of necessity his view. It was never him explaining that he believed the doctrine of necessity applied. It seems to me that the concerns of the House might be satisfied by a memorandum. A memorandum was produced in June and July, which was a singularly unsatisfactory document in my view. It looks even less good now, having been subjected to critique at Second Reading and by the noble Lords, Lord Campbell, Lord Purvis and Lord Pannick, tonight. However, there could be a second edition setting out the Government’s response to the arguments that have been advanced, including by the Constitution Committee. So I suggest that a third option that would satisfy me and might satisfy the noble Lord, Lord Pannick, would be for the Minister to undertake tonight to produce for us a revised edition of the pre-summer memorandum.

[Lord Bew (CB)]

My Lords, very briefly, I have been trying to say that the legal advice is a little more complicated and nuanced. I am not claiming, for example, that any prominent international lawyers such as Professor Boyle support this Bill. In fact, I do not think he does; he is one of the many who believe in Article 16.

I am quite astounded. Only a few weeks ago, every civilised person knew that Article 16 was the most brutish thing they had ever heard of. All civilised Peers across all parties and all civilised people knew it was the most brutish thing they had ever heard of, just as they are sure of this tonight. However, at this point we have a serious negotiation with the EU. Why do they think that, to improve the atmosphere of these talks, it would be a smart idea for the British Government to come in on Monday morning and say, “Well, you know, civilised opinion has changed. A few months ago, we thought it was brutish; we now think this Bill is so brutish that we want you now to declare Article 16”. This is not serious. There is a serious negotiation going on. You cannot seriously ask the Government to do this. I sympathise and fully accept that the legal arguments are more complex than has been acknowledged in this Chamber this afternoon—they are difficult and I have no firm, final view—but it would be absurd for the Government to say at this point, “Oh, we were having this negotiation but, by the way, here is Article 16”. I am sorry, it just would not work.