Northern Ireland Protocol Bill

Lord Kirkhope of Harrogate Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I was not sure whether to speak in this debate on a Bill which I simply do not like, but after all the efforts to conclude the internationally acclaimed Good Friday agreement and then the withdrawal agreement and protocol with the EU, in which some noble Lords were involved, I was very disappointed to see this Bill being presented. My noble friend Lord Frost, who was much involved, describe the withdrawal agreement and protocol at the time as a carefully negotiated agreement. In the light of some of his remarks earlier this evening, I think he perhaps might want to revisit that quotation, but I think it probably was. The then Prime Minister, my right honourable friend Boris Johnson, called it

“a great deal for England, Scotland, Wales and Northern Ireland”,—[Official Report, Commons, 19/10/19; col. 591]

but we are now trying to unpick it just as our negotiators, to whom I pay full tribute, are hoping to achieve the flexibility to alleviate the known concerns of all the communities in Northern Ireland, as well as the interests of the EU, the Republic of Ireland and the USA.

In considering the effects of our contributions today and bearing in mind the sensitivities, I hope nothing I say or others say will have harmed the progress being made. It would have been better if we had held off while the process is so active. However, we have had the chance to speak on the proposals in the Bill, and although it is inevitable that what I say will involve a lot of repetition of remarks made by others, I hope the Government will take note of all the remarks.

The Bill is unnecessary. Its provisions and the extra powers it gives to the Executive are unnecessary. At Second Reading in the other place, a long discussion took place as to whether necessity kept this measure within our international law obligations. The doctrine of necessity—noble Lords have heard from distinguished lawyers—requires a solid evidential base showing “grave and imminent peril” as a reason for such a measure. That, I would say, was not present at the time when the Bill was in the other place, and it certainly is not present now. To meet that test, there must be no alternative available. Here there is an abundance of alternatives, including the negotiations and Article 16.

In the other place, my right honourable friend the Prime Minister, then the Foreign Secretary, cited the refusal of the EU to co-operate as evidence of necessity. That was, and is, in my view, incorrect. Otherwise, how are we in the current situation? The Government cited the opinion of mainly outside lawyers to support their proposals that seemed to ignore the views of their own First Treasury Counsel. If breaking international law is not of concern, then how could we lecture others such as Bolivia, Sri Lanka, Myanmar, South Sudan, Ethiopia and, of course, Russia and China?

What about Article 16? As my right honourable friend Theresa May said in the other place,

“Article 16 does not justify this Bill … Article 16 negates the legal justification for the Bill.”—[Official Report, Commons, 27/6/22; col. 63.]


I agree. As long as we are negotiating, we do not currently need either Article 16 or this Bill.

My second concern is with regard to the extensive extra powers given to the Executive by the Bill. This is not the first time we have debated this trend. Trying to exclude proper parliamentary scrutiny of sensitive and important matters is undesirable. This Bill would have Henry VIII seething with envy. No less than 15 of the 26 clauses give the Executive new powers to amend Acts of Parliament, disapply part of the Northern Ireland protocol and increase secondary legislation to avoid scrutiny, and Clause 19, in particular, allows for a new deal with the EU without any primary legislation. This is a serious overreach by the Executive and our Ministers.

The current negotiations must be carried on in a calm manner, while recognising the fears and concerns of all those communities in Northern Ireland, which I greatly respect. The UK must retain its position as a trusted and responsible power in the world. Leading roles in the G7, the United Nations and with our European and American friends can exist only with adherence to a rules-based system, in which we, this country, set the example. There is great potential for this country, but the rule of law must always prevail.