Northern Ireland Protocol Bill

Lord Lilley Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, there has been much discussion today, and it goes back to the issue of democratic deficit and how we deal with what Northern Ireland’s public representatives cannot deal with. There is a very simple solution. Under the Good Friday Agreement and the Northern Ireland Act 1998, amended by the Northern Ireland (St Andrews Agreement) Act 2006, provision was made for the institutions according to a three-stranded approach: the Northern Ireland Executive and Assembly, the North/South Ministerial Council, and the British-Irish Council, with east-west, north-south, and internal to Northern Ireland being addressed.

At the moment, we have no Northern Ireland Assembly, no Northern Ireland Executive and no North/South Ministerial Council that would hold these matters to account and address that democratic deficit. I would say to the DUP: there is a duty and an obligation to ensure, working with all the parties in Northern Ireland and both Governments, that those institutions are up and running. That will allow all of these issues to be adequately addressed by the MLAs who were duly elected in May.

[Lord Lilley (Con)]

My Lords, I rise to support the noble Lord, Lord Leigh, but, before doing so, I repeat what I said the other day: I feel extreme discomfort about the extensive reliance on Henry VIII clauses in this legislation. I sit near enough to the Convenor to almost feel partly convened on the issue of Henry VIII legislation: he and the noble Viscount, Lord Hailsham, did suggest how this particularly egregious example of it could be constrained a little. However, I think neither was here when I posed the question of what the structural alternative was, in the context of negotiations, to relying on Henry VIII legislation. I still await a satisfactory answer to that question.

To return to the point made by the noble Lord, Lord Leigh, I share an interest with him in the EIS, because I was the Secretary of State who introduced them. I had forgotten that I was until he reminded me. Indeed, slightly earlier, when I was invited to speak on the 25th anniversary of their formation, I found that I was the warm-up act for Mike Yarwood at that event. But they are important and have been useful. They, at present, will cease under EU legislation unless that EU legislation ceases to apply in this country.

I want to make a general point, which I made earlier: the protocol is intrinsically temporary under European law. The Europeans themselves said, while we were negotiating the withdrawal agreement, that they could not, under Article 50, enter into a permanent relationship with the United Kingdom. Any arrangements reached under that agreement could only be temporary and transitional. Consequently, the protocol is transitional and temporary and not permanent. Indeed, in Mrs May’s protocol, it specifically said in the recital that the withdrawal Act, which is based on Article 50, does not aim to establish a permanent future relationship between the EU and the UK.

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[Lord Pannick (CB)]

It is elementary as a matter of diplomacy and of international law that a country is perfectly entitled to reach a new agreement in the circumstances as they then exist. That is what happened when the protocol was agreed. Both sides agreed a mechanism in Article 18 for ensuring democratic consent.

[Lord Lilley (Con)]

I am grateful to the noble Lord for effectively giving way. He rightly said, both in his letter to the Times and his remarks today, that, as long as there was good faith, fair enough, but if good-faith negotiations failed to reach an agreement—not if there was any lack of good faith, I think—we would be entitled under Article 62 to repudiate the treaty.

Certainly, the EU is showing a lack of fulsome good faith in two respects. First, it is refusing to accept in the current negotiations that any change to the protocol can be made—only to its implementation. Secondly, it is repudiating its original position that it could not enter into a permanent arrangement, which was the whole basis of the negotiations we entered into under Article 50. It is now trying to make something which was intrinsically temporary, and which it said could be only temporary and provisional, into something permanent. I would have thought that, in both respects, had the British Government taken such positions, he and his friendly noble Lords would have denounced it as an appalling demonstration of bad faith.

[Lord Pannick (CB)]

If the noble Lord’s position is that the EU is acting in bad faith, the United Kingdom, if it takes that view, is perfectly entitled to use the procedures set out in the protocol of independent arbitration—if it does not like that, it can go to the Court of Justice—to resolve any dispute. What the United Kingdom cannot do is ignore the dispute resolution mechanisms that are set out in the protocol and simply make an assertion that it thinks there is no good faith. Indeed, I had not understood it to be the position of the Government at the moment that there was no good faith. They are about to enter into negotiations.