Northern Ireland Protocol Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to put a technical point. I am not sure of the answer—it is a genuine question—but it bears on the amendment. Trade is a reserved matter in Northern Ireland. When there was first sight of Theresa May’s protocol, there was great rage in Northern Ireland. People in Northern Ireland were told, “Sorry, this is a reserved matter.” Subsequently—it was the second iteration—it was very much the view of the noble Lord, Lord Frost, that that was not itself a satisfactory answer, and there is provision in the protocol negotiated by the Johnson Government. The one significant change is to make, in very specific circumstances, a role for the consent of the Northern Ireland Assembly. That is probably the major difference between the two protocols. However, if it is a reserved matter—if that was the answer that I remember being given throughout 2017 and 2018 in this House—I cannot quite see the purchase of these amendments.

If it is a reserved matter, it is a reserved matter. It is for this Parliament to deal with these trade matters. The burden of the Bill is in dealing with Articles 5 and 10 of the protocol—not those on human rights and so on—in a way which, I accept, many Members of this House do not like. None the less, it does not seem appropriate to be raising these issues now about that role for the Northern Ireland Assembly, because trade is a reserved matter held by this House.

The history of this is perfectly clear: the Government of Ireland Act 1920 has language on trade, as do the prior Acts of Union 1800. Then there were modifications to the Government of Ireland Act—benign modernisations, I would say—under the Good Friday agreement and the legislation that went through this House, which left us with trade as a reserved matter. It seems to me that this should be taken into account. There may be some possible answer to it, and the noble Lord, Lord Frost, has negotiated a possible way that one might work around it, but trade is a reserved matter at this point. We are not concerned with the human rights provisions of the protocol and so on; they are not the issue in the Bill. It is directed mainly against Articles 5 and 10, rightly or wrongly—wrongly, I am sure many colleagues on my own Benches think—but trade being a reserved matter is a problem for amendments of this sort.

[Lord Kerr of Kinlochard (CB)]

I agree that external trade is a reserved matter, but here we are talking about trade inside the United Kingdom—as well as trade inside the single market of the European Union, of course. I do not think it follows at all that one can say there is no role for the Assembly because external trade is a reserved matter.

I would love to support the amendment in the names of the two noble Baronesses. I agree with the spirit of it. It is extraordinary how, throughout this saga, things have been done to Northern Ireland without Northern Ireland being fully consulted or even informed. It is extraordinary, when you think about it, that the protocol was concluded without the involvement—I want to embarrass him now—of the noble Lord, Lord Caine, who knows far more about these issues than most of us do and has a judgment that we would all respect. That should have been brought to bear.

I hesitate to criticise the noble Lord, Lord Frost, who is busy with his emails, but, if he would like to listen, I will criticise him. It would have been good if he had found the ability to spend more time in Northern Ireland while he was negotiating. It would have been great if his master, the then Prime Minister, had been able to spend some time trying to understand the issues and seeing people on the ground, but it is an astonishing fact that Michel Barnier had more direct personal experience of Northern Ireland than the noble Lord, Lord Frost, had. That was because Barnier had spent time there doing jobs for previous presidents of the Commission.

I feel that the syndrome of imposing things on Northern Ireland, perhaps under cover of talk about reserved matters, which I disagree with, has been damaging to the United Kingdom and, of course, to Northern Ireland. I would love to support these amendments, and of course I would do so. But it would not make an illegal act less illegal if the Northern Ireland Assembly voted for it, so what are we talking about here?

I caused the Minister to look askance when I said that we are talking about a pig of a Bill. The Minister thought that was an indelicate reference. However, what we are doing here is trying to put lipstick on the pig. It will still be a pig even if this amendment is approved. If it were put to a vote, of course I would vote for it, but my general feeling is that we know what we have to do with this Bill. The noble Lord, Lord Cormack, has correctly pointed out that what we are engaged in now is a waste of time because I am confident that at the end of the day, we will do what we have to do to this Bill. I hope the end of the day comes soon.

[Lord Davies of Stamford (Lab)]

My Lords, for a number of years I was shadow Secretary of State for Northern Ireland. I have not been involved in recent political discussions in the Province. In a sense, I have come back to the subject afresh today. It certainly keeps all its fascination. We have just heard two immensely important contributions to the debate by the noble Lords, Lord Kerr and Lord Bew. The noble Lord, Lord Bew, dealt clearly, decisively and definitively with whether or not trade is a reserved matter. We must be grateful for that analysis, which I hope will guide us in dealing with this Bill.

The Bill is an extraordinarily unpopular document, is it not? It is quite difficult to find anybody really prepared to defend it. The DUP is obviously very much opposed to it. We have heard this afternoon from people who are close to the DUP’s leadership. The European Commission has launched infringement procedures in relation to the British Government’s activity over this Bill. The British Government do not seem to be very convinced of the virtues of the Bill. Certainly no one this afternoon has made a strong defence of the Bill.

Against that background, I rather agree with the noble Lord, Lord Cormack. It is quite unlikely that the DUP will do a U-turn; it would be a humiliating thing to do. Therefore, one must assume that the Bill in its present form does not have very far to go. That is not surprising because—and the reason I really oppose this Bill—it seems contrary to the essence of parliamentary democracy. The principle which underlines our whole system in this country is that the law must be made by the legislature—the legally elected representatives of the public. It is their responsibility to make laws; it is not the responsibility of the Government to make laws, nor is it desirable that they should try to do so.

Many of the provisions in this controversial protocol Bill reveal that there is an ambition for the Government to rewrite the law themselves. I look at the overview of the Bill in the very helpful summary produced by the Library. It says that one of the purposes is

“giving ministers delegated powers to make new provision in domestic law ‘in connection with’ ‘excluded provision’”;

in other words, the Bill declares itself as being in the business of making law and imposing it on the public, which is quite contrary to all democratic principles, and we should be quite upset about it.

This is something which has disfigured European history in the last 100 years. A number of people, from Mussolini to Hitler to Marshal Pétain, have adopted this course of deciding to get through an assembly, which would be reasonably compliant, a Bill entitling the Government to write the law themselves in the future. That is what happens to democracies if they are under that kind of attack. We should not in any way be party to that.

The House of Lords Library’s summary of the situation makes it clear that, in this case, the executive branch is deciding to write law and change international treaties more or less at the drop of a hat. That is obviously not something that anyone in this House could tolerate, and we should therefore think about this extremely carefully before it proceeds. We should make it absolutely clear that the Government cannot get away with asking for power in an enabling Act to simply write the future statute—not making this clear would be contrary to what we should do in this place.

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[Lord Bew (CB)]

My Lords, I am well aware of the sensitivity in this House regarding Henry VIII powers, and I respect that; it is a serious argument. However, Northern Ireland looks at these things from an angle that is not entirely the way the House of Lords looks at them. For one thing, there are what you might call Louis XIV powers all over the place in terms of European law and regulations, but there is silence about that.

The second issue, which has already been alluded to by the noble Lord, Lord Dodds, is that again and again, we have had the most dramatic demonstrations of Henry VIII powers in areas where I and other Members, a majority in your Lordships’ House, are in agreement—abortion laws and so on. We do it all the time. When we as a local assembly like it, when it is our kind of opinion, we have no problems. When we do not like what is proposed, we discover that this application of Henry VIII powers is intrinsically terrible. To be blunt, the House needs to avoid looking totally hypocritical on this point.

I feel that I have been living for a very long time with Article 16 and the potential illegality or otherwise of the Government’s legislation. When I first encountered it, in fact, it was Article 15 in Theresa May’s Bill; it was that long ago. I read and reread it until I was blue in the face. Let me say what the problem is in attempting to challenge the Government’s position. The best argument against the current position in the legislation is that Article 16 could be and should have been applied. At the moment, it is ridiculous. We are in the middle of a serious negotiation with the EU and it would break that up, so it is fatuous and politically absurd. Apart from the principle of reality, I can see why people want to argue that, but it is not going to happen now because the Government want this legislation with the EU to succeed. In the Financial Times as recently as September, the EU was defining the application of Article 16 as an outrage and so on. The situation would simply be aggravated.

The other weak point of this argument is that saying, “We want Article 16 but nothing else” is the sound of one hand clapping. None of those who have argued for it in this House since Second Reading has shown any grasp of the central difficulty of the relationship between the two treaties and their interaction. If you are going to argue, as distinguished international lawyers have done before both our Select Committees, that the Government have a case of sorts but Article 16 should be applied first, that is based on the idea that there is an interaction between the two treaties and this is the best way of acting to defend the Good Friday agreement. That is a perfectly respectable intellectual legal argument, but it just does not fit with the political moment we find ourselves in, with ongoing negotiations.

The sensitivity that people in this Chamber have about the attitudes and feelings of the EU is quite remarkable when they do not seem to feel it themselves; they feel that they are quite adult enough to get on with this negotiation anyway, regardless of the Bill. As I pointed out, the Irish Foreign Secretary said openly that they do not like the Bill but that is not a reason for not having the negotiations. Still, it is wonderful to see people stick up for other people’s rights and interests when they themselves do not seem quite so keen or worked up about the subject.

The main point is that just saying “Article 16” is simply one hand clapping. The only possible viable argument is to say—as indeed both the House of Commons and our own Select Committee have been told—that that is indeed the way you could use it to get a result. The best criticism of the Government is that you cannot really prove necessity unless you have gone down this route. It so happens that the Government are stuck in a moment of real politics, the real negotiation that is going on, so they cannot do it, but the majority of speakers in this House say, “I would like Article 16”. That is an amazing recent conversion to Article 16. A few months ago, most of us hated it and regarded even talking about it as a piece of British brutishness. Now we really love it because we prefer it to the Bill. Unless you add to that that you accept that there is a real problem with the interaction between this agreement and the Good Friday agreement, as the former Lord Chancellor said in the House of Commons, then, in the Chinese phrase, it is just one hand clapping.

[Lord Kerr of Kinlochard (CB)]

My Lords, the noble Lord, Lord Bew, raises a fascinating conundrum, but what he said about Article 16 was based on a misunderstanding of what the noble Lord, Lord Campbell, said earlier. I do not think I have met anybody in this House who believes that the right course of action, in abstract, is to use Article 16. The right course of action is to apply the treaty that we signed: that is what a lot of us believe. Clearly, there are others who take a different view. The point that the noble Lord, Lord Campbell, was making—which is clearly correct, and has been made several times by the noble Lord, Lord Pannick—was that there is Article 16. It exists. It is the designated route—the agreed route, the treaty route—to deal with a dispute about the implementation of the protocol. I am not saying that we should be using Article 16. I am saying that we should not be using another means and pretending that it is legal so to do while Article 16 exists. That seems to be the rub of it.

I will try to deal in an amateur way with the interesting questions from the noble Lord, Lord Lilley. I do not know the answer either, but one answer would be the Irish answer: “I wouldn’t be starting from here.” I am sure that the noble Lord agrees with me that if you read Clause 18(1) or Clause 22(1) and (2) of the Bill, the only question in your mind is: is this Lewis Carroll or is it Stalin? These are astonishing powers taken for the Minister, by regulation, to do whatever he likes, providing it is broadly to do with Northern Ireland. As the noble Lord, Lord Pannick, said, the reports that we have seen from three committees—but particularly the Delegated Powers Committee—are devastating. I cannot remember seeing in this House such strong language used in a unanimously agreed cross-party report.

The noble Lord, Lord Lilley, would agree with me that we do not want to be in this situation. There must be another solution. As a former negotiator, I would say that it is crucial to avoid putting the ball in your own net. Frankly, attempting this legislation while also attempting—or claiming to be attempting—to conduct negotiations, is absurd. Here I part company with my friend the noble Lord, Lord Frost, whose third argument today was exploded by the noble Lord, Lord Purvis. He said that it is necessary for negotiating reasons to advance this protocol; this is what will make the other side sit up and pay attention. You cannot argue both necessity and that. In my view, you would be mad to argue that, because on the other side of the table it is not a playground spat. On the other side of the table is a grown-up group of 27 countries that believe in the rule of law and are concerned that bad precedents should not be set. They cannot possibly concede that, because there is a blunderbuss on the table, they must give you what you are asking for in negotiations. They are not going to do that. Therefore, my answer to the conundrum of the noble Lord, Lord Lilley, is that it is a great mistake to legislate in these terms while you are negotiating. If Ministers are telling the truth about their wish to negotiate a solution to this, the last thing they should be doing is putting forward this Bill.

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[Lord Kerr of Kinlochard (CB)]

I yield to none in my respect for the noble Lord, Lord McCrea, and the way he pursues this argument. It was an argument that we had earlier in our debate, and I share his distaste for the protocol, as he knows. I do not agree with the noble Lord, Lord Hannan, that there is no democratic deficit. I think there is a real democratic deficit and it could be put right. It would be good if the noble Lord would think about the suggestions made by the noble Lord, Lord Hain, earlier in our debate. The argument that the protocol is inconsistent with the Good Friday agreement comes across rather badly from those who opposed the Good Friday agreement. I myself was strongly in favour of the Good Friday agreement and I was sorry to see the DUP against it at the time. It is hard to sustain the argument now, in any case, given that all the parties to the withdrawal agreement—in which the protocol rests—do not agree with it. The United Kingdom Government do not buy the argument that the DUP are making—or they have always, up to now, not bought that argument. Although I understand the concerns the noble Lord puts forward, I do not think it works as a matter of law or that the Gibraltar precedent—although he is quite right about it—is relevant.

[Lord Hain (Lab)]

Will the noble Lord accept a small intervention to follow up on the point he made about the democratic deficit? I agree with him and he agrees with me on it. Would he confirm that Norway, for example, does not have Ministers in the Council of Ministers or direct representation in the European Parliament because it is not in the European Union, but does have consultative rights? It is consulted on all EU single market matters. Northern Ireland could be consulted in a similar way.

[Lord Kerr of Kinlochard (CB)]

I so confirm.

[The Earl of Kinnoull (CB)]

My Lords, I ask the Minister a more technical question about the interrelationship between the trade and co-operation agreement and the withdrawal agreement. The European Affairs Committee spent a very long time writing a report, which came out last December, about trading goods. We were very careful to make sure that we did not talk about the Northern Irish situation for two reasons. First, we have our own sub-committee for dealing with that. Secondly, it was horribly complicated.

I should like some comfort on a problem that would arise should some kind of good head from Great Britain to Northern Ireland. For the purposes of the Minister’s powers, it is a Northern Ireland good. However, it is, at the same time, latently a TCA good for the purposes of moving across an EU border. An immediate set of complications arises from this. I would, therefore, be grateful for the Minister’s thoughts on what the interrelationship is between the TCA and the withdrawal agreement on goods in general. I would also be grateful for some comfort that when Ministers are thinking about exercising all the powers that this selection of clauses would give them, they will have do so in regard to all the relevant various international agreements we have. The TCA is not our only agreement with the EU.