Northern Ireland Protocol Bill

Lord Morrow Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Morrow (DUP)]

I rise with great sadness to speak against the wrecking proposals in this group that Clauses 1, 2 and 3 should not stand part of the Bill. I regret it very much. If we were effectively to turn our backs on this Bill, as those championing this group would, what would we be left with? The prospect would be carrying on failed talks with the EU for another two, three or four years. We have had two years of it, and we know where it took us to. I am not opposed to talks, and I believe this Bill does not stand in the way of those talks continuing, but let us get on with this business too.

I have studied the EU’s proposals, and I have to say that even if it conceded ground in the areas it is suggesting, we would have no solution. The only thing it is talking about pertains to the difficulties surrounding the economic disruption caused by the protocol. In the first instance, its proposals do not in any way address the present economic difficulties. The noble Baroness, Lady Hoey, has already referred to that, and my noble friend Lord Browne will refer to that as well, so I shall not say anything on that.

Right up until the final day of the Brexit transition period, the people of Northern Ireland enjoyed parity with the rest of the United Kingdom in having the right to stand for election and input directly into legislation or to elect others from across our communities to make laws to which people in Northern Ireland would be subject.

However, on 1 January 2021, that all changed. At that point, the right democratically reserved to Northern Ireland citizens to make laws effective in Northern Ireland was usurped in an instant, and the bulk of that power transferred to representatives in another jurisdiction for whom nobody in the Province voted. There are Members of this House concerned about the loss of some delegated powers to Ministers, despite an appropriate role being afforded to Parliament to scrutinise eventual regulations. Yet they demonstrate little in the way of concern for the loss of sovereignty associated with the surrender of law-making powers in Northern Ireland in perpetuity under the protocol governing hundreds of areas of policy.

This would be bad enough in itself, but in order to understand the difficulty, we need to see it in the context of Brexit. The UK was never relaxed about its membership of the EU. According to Professor Vernon Bogdanor, the reason for this was the sovereignty problem: the fact that the UK could be overruled and was not completely in charge of its own legislative fate. We could be overruled in the European Parliament in the context of majority voting. We could be overruled in the Council of Ministers in the context of qualified majority voting. We could be overruled by the European Court of Justice. Of course, we were a part of European governance acting through the Council of Ministers and the European Parliament, and, in this context, worked hard to defend our national interest. Many times, we were not overruled, but on occasion we were, and there was ultimately nothing that we could do about it. The fact that, notwithstanding our representation within European governance, we could nevertheless be overruled, informed our lack of sense of being part of the European demos—the problem of the democratic deficit.

Thus, the deficit was not about a complete absence of democracy, but about a shortfall of democracy arising from being overruled in a context where the absence of a sense of being part of the European demos meant that people increasingly felt that government was something that was being done to them rather than something that they were part of. In this context, one of the chief benefits of Brexit was the end of the democratic deficit. We would make our own laws. What then was the implication of the protocol for the democratic deficit? It very properly completely removed the democratic deficit in relation to the EU for England, for Wales and for Scotland, and rightly so.

What about Northern Ireland? Did it result in the removal of the democratic deficit in Northern Ireland, as in the rest of the United Kingdom? No. Did it result in the partial correction of the democratic deficit in Northern Ireland, while it was fully corrected for the rest of the United Kingdom? No. Did it result in the democratic deficit problem in Northern Ireland remaining unchanged but its correction in the rest of the United Kingdom? No. Did it result in the further deterioration of the democratic deficit in Northern Ireland, while it was fixed in the rest of the United Kingdom? No. Any of these outcomes would have had a progressively more and more damaging impact on our politics, as we go down the list—but what actually happened was infinitely worse.

In some 300 areas of law-making—this has been mentioned before—the democratic shortfall that was the deficit was replaced by a complete absence of democracy. In this context, we need to be very clear that attempts to describe the democracy problem with the protocol as a democracy shortfall or a democratic deficit radically understate and obscure the problem. The democracy shortfall or deficit was the problem we all had when we were in the EU. The problem that Northern Ireland now faces is both qualitatively and quantitatively completely different. Far from constituting a shortfall in democracy, it actually presents us with its complete negation, with all that this means for our defaced citizenship.

As my colleague and noble friend Lord Dodds of Duncairn rightly articulated to the House at Second Reading, the perverse and intolerable situation in which Northern Ireland now finds itself is akin to the UN category of non-self-governing territory—a colony of the 21st century. The United Nations charter was very clear in 1945 that countries should be self-governing, and it subjected countries that continued to make the laws of other countries to special scrutiny, requiring that they submitted regular reports to the UN on the state of the jurisdiction in their care.

[Lord Kerr of Kinlochard (CB)]

Before the noble Lord leaves the problem of the democratic deficit, I would like to say that I have considerable sympathy for his points. It was the principal reason why I was against the protocol when it was first produced. I would like to ask him: has he considered the mitigations that are possible—for example, the two suggested by the noble Lord, Lord Hain, earlier this afternoon? Would he also consider whether, unpleasant though it is to see this democratic deficit, it has an upside for Northern Ireland—what the then First Minister described as the “best of both worlds”? Finally, would he consider why the right solution to the democratic deficit could possibly be the destruction of the Northern Ireland protocol, given that it is an integral part of a treaty that we signed? We may like it or dislike it—the noble Lord dislikes it intensely and so do I—but we did sign up to it.

[Lord Morrow (DUP)]

I thank the noble Lord for his comments. I did listen very carefully to what the noble Lord, Lord Hain, said and I want to read Hansard tomorrow to get better into my head exactly what he was saying, but I was struck by some of the things he said. Like the noble Lord, Lord Kerr, I voted against the protocol, as did every unionist in Northern Ireland—so it has no support among one section of the community.

We have long moved away from majoritism. As a matter of fact, I do not remember majoritism in Northern Ireland. That age has long gone and we were told that it would never return. Politics in Northern Ireland would be by consensus; that is what we were told. We were not only told it—they put it down in law. But I have yet to hear from many who berate this Bill that they are concerned about how the Belfast agreement has been kicked right, left and centre. I ask the noble Lord, Lord Kerr, to suppose for a second that this border was where it should be and not in the Irish Sea. Does anybody—but anybody—feel for a moment that that would not have caused the complete collapse of the Northern Ireland Assembly?

We have not collapsed the Northern Ireland Assembly as such. The Ministers are still in place, doing their tasks and getting on with it, because we did it in such a way. When Sinn Féin did it, they wrapped everything up. I have never heard one Member from either the Lib Dems or Labour—which surprises me—say that Sinn Féin has done wrong here. I did not hear it. Maybe it was said when I was not here, but I have never heard that said. I find that there is pick and choose. If unionists do something, they are a nasty lot, they are nasty people, but with Sinn Féin it is, “Oh no, they have a reason; they have a cause.” Well, we have a cause and we want to defend that cause.

In 1960 the UN went further and passed its decolonisation declaration, basically shifting its position to one of actively encouraging imperial powers to decolonise. Today, the UN still has a committee dedicated to the decolonisation of the small remaining colonies. If you examine its work, the UN is very clear that an NSGT is not a jurisdiction that is governed entirely by another country. Most NSGTs are largely self-governing. They remain classified as NSGTs because they are not entirely self-governing. Now, of course, I recognise that, in order to be formally classified as an NSGT by the UN, you not only have to meet the definition of an NSGT; you also have to persuade the Assembly to vote an agreement that a jurisdiction should be so defined.

I am not about to start a campaign for the UN to vote to classify Northern Ireland as an EU NSGT. However, it is clear, on the basis of the UN definition of an NSGT and the level of self-government enjoyed by existing NSGTs, that Northern Ireland not only meets the UN definition of an NSGT, but one in relation to which the colonial power—in our case the EU—controls more of the governance of Northern Ireland than do many officially recognised colonial powers in relation to their NSGTs.

The story of colonisation since 1960 has been the story of decolonisation. The actions of the EU arguably amount to the first example of new colonisation, as opposed to annexation by military force, since 1960. I find it quite extraordinary that the EU should have even dreamt of seeking this agreement. It does not reflect well on the EU at all that it should have requested this, and the fact that the UK Government had to fight it for even the most ridiculous four years, after the fact, is quite extraordinary. Of course, its justification was allegedly defending the Good Friday agreement—or Belfast agreement, whichever you choose—but this is utterly absurd.

The citizens of Northern Ireland deserve the full rigour of protection under international law in respect of their democratic right to political participation as our counterparts have in each of the other constituent parts of the United Kingdom or indeed any other country. However, that protection has been patently undermined by the protocol.

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord for giving way. I am concerned about his argument when it comes to the position of the new—again—Home Secretary. She said in July:

“The Northern Ireland Protocol Bill needs to be changed so that it actually solves the problem. … The bill’s ‘dual regulatory regime’ lets EU law flow into Northern Ireland in perpetuity … I’ve been fighting for while in government. Without them, the bill treats people living in Northern Ireland as second-class citizens.”


Does the noble Lord agree with Suella Braverman? If he does, will he be bringing an amendment to Bill to make sure it does not have a dual regulatory regime that allows EU law to flow into Northern Ireland?

[Lord Morrow (DUP)]

If the noble Lord, Lord Purvis, is asking me if I agree that Northern Ireland citizens are now treated as second-class citizens, yes, I do. Some people in Northern Ireland seem to be content to be treated as second-class citizens, because, like the noble Lord, they want to pull this Bill apart and the protocol to remain. I hear, in the debate today, some noble Lords saying that there are problems with the protocol, but in time that will be sorted out. Where will our economy and industry be? My noble friend Lord Browne will be making some reference to that a little later.

Article 21 of the Universal Declaration of Human Rights, among other provisions, states:

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. … Everyone has the right of equal access to public service in his country.”


This has plainly been violated by the protocol, which has partly removed our right to take part in the Government of our country as it relates to 300 areas of law, both in terms of engaging in public service as a candidate and in terms of voting.

Of greatest importance, however, is that the plundering of aspects of our right to vote violates the Good Friday agreement. I hear many champions in this House of the Belfast agreement, and I have to admit that I would not be the best advocate of the Belfast agreement, and I am prepared to say that. But let those who are stand up, and then they will run into problems with their debate and where they are going. Specifically, the Good Friday agreement affords the people of Northern Ireland the right

“to pursue democratically national and political aspirations.”

Moreover, in the case of the Good Friday agreement, there is the additional international constraint arising from a foundational provision of the protocol, in Article 2, which specifically obliges the UK Government to ensure that there is no diminishment of any of the Good Friday agreement rights following Brexit. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


So now we confront the central absurdity: the EU pretended that an obligation that did not exist in the protocol existed, and that an obligation in the protocol that did exist in fact did not. There is nothing anywhere in the text of the Good Friday agreement saying that there cannot be a customs border, and there is something that plainly states you cannot erode the political democratic rights of the people of Northern Ireland, which was the plain consequence of placing a border down the Irish Sea.

Of course, I am not saying for a minute that the UK and the Republic of Ireland could not agree to avoid a hard land border, only that it is not required in the Good Friday agreement. In a context, however, where the Good Friday agreement prohibits—

[Viscount Younger of Leckie (Con)]

The noble Lord might like to be reminded of what the Companion says about length of speeches. Fifteen minutes is indicated as the acceptable length of a speech. Might I suggest that the noble Lord concludes his speech?

[Lord Morrow (DUP)]

Yes, I will conclude, but it is remarkable that, earlier in the evening, I noted speeches going to more than 20 minutes. I have just come in at the wrong time, I suppose, but I will draw my remarks to a conclusion and make way for some others.

[Lord Judge (CB)]

My Lords, I support this proposal and do so conscious of the fact that, listening to some of the voices from Northern Ireland we have heard today, I am being asked to decide how I should approach the issue on the basis of sympathy for the way in which some of the citizens of Northern Ireland—those represented here—feel they have been dealt with by the British Government in the context of the whole negotiation relating to the EU, the GB and Brexit. I remind myself, though, that this is not a matter of sympathy. I spent a lot of my professional life having to decide cases where, if I could, I would have found the other way. But if the law required me to find a particular way, whether I liked it or not I was required to do so, so I did. What we are dealing with here is a treaty between the United Kingdom and the EU, not between the EU and Northern Ireland. I am sorry to say that, but the issue I am addressing is the treaty between our country and the EU.

Can I just get rid of Clause 1? It is a modern and unwelcome phenomenon. If you look at it, it says nothing. It is just a piece of PR, not legislation at all. We have too many Bills that include pieces of PR which do not take the legislation any further, and that is why I object to it. We should not have clauses in Bills that say, “This is a jolly good idea. This is what we’re going to do”, but more important are Clauses 2 and 3.

There have been criticisms made by the Advocate-General of the necessity argument that has been so thrown at him by, among others, the Constitution Committee. I know this has been said before, but I remind the House that necessity is not available, as it

“may not be invoked by a State as a ground for precluding wrongfulness if”

the state in question has contributed to—not caused—“the situation of necessity”. Well, we have. We march into the negotiation and sign the agreement. We broadcast the agreement as having got Brexit done, for political reasons. We do not look at the consequences to, among other places, Northern Ireland—and we have not looked at it. There were voices in Northern Ireland who, to my memory, were saying, “This is a very dangerous step to be taking.” We either did not look at it or, worse, looked at it and thought “It doesn’t matter; we will get Brexit done.”

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, if the argument of the noble Lord, Lord Bew, is so powerful, why has he failed to persuade the noble Lord, Lord Morrow, who started his remarks by saying that he has no faith in any of these talks resulting in any agreement for two or three years at least? If the noble Lord, Lord Bew, cannot even persuade the noble Lord, Lord Morrow, he may struggle to persuade others who may be a bit more sympathetic to his arguments.

The noble Lord, Lord Bew, knows that I like and respect him, but let me scotch this point about Article 16. The Government insisted that they were working in the joint committee when others on the Conservative Benches were saying they should dump that work and trigger Article 16. We on these Benches said, “Let the joint committee process do its work, because that is what the Government negotiated in the agreement.” Now we have heard in Committee in the Commons that talks have been exhausted—no more on the joint committee; instead, we are bringing unilateral legislation. So the noble Lord will forgive me for being a bit cynical about the Government’s position. On the one hand, they are saying that they are using the joint committee and therefore will not trigger Article 16, and on the other that they are no longer in the joint committee and need unilateral legislation. I am afraid it does not match. That is perhaps at the heart of why there is still uncertainty over the Government’s proposals.

At the outset, I say that I am a borderer and live in Scotland—I was going to say that therefore I sympathise, but that sounds deeply patronising. I understand many of the arguments, as I said earlier to the noble Lord, Lord Dodds, because I raised them in the debates. We opposed the Government because we could see the situation was not only going to be detrimental but would effectively remove rights. But that is not something that our Benches or this Bill can resolve.

I respect both noble Lords who spoke with passion about this, but I put it to them that they and Suella Braverman cannot both be right. The new Home Secretary is on the record saying that this Bill will make citizens in Northern Ireland “second-class citizens” —this Bill, not the protocol. She is arguing for this Bill to be amended. She said in her article in the Times that she had argued that while in government. She is now back in government, so I do not know what will happen with the Government’s position in this Bill on a dual regulatory system, but maybe the noble Lords can inform me later on.

If the noble Lord, Lord Morrow, is arguing so strongly that this Bill will not have Northern Ireland operating under two systems, it is incumbent on him to bring amendments to it to remove the dual regulatory system and Clause 11 when we get to it. I look forward to debating those amendments, because he surely cannot support measures in this Bill which would allow Ministers to enforce EU rules on traders within Northern Ireland.

[Lord Morrow (DUP)]

I thank the noble Lord for giving way. All I wanted to say is that I am encouraged that I can get his support if we do that. Is that what he is saying?

[Lord Purvis of Tweed (LD)]

I will match his “Get rid of Clause 11” with “Get rid of them all”, because that is our position.

The Advocate-General said at Second Reading:

“the peril … was not inherent in the protocol’s provision.” —[Official Report, 11/10/22; col. 764.]

But he then said today that the “problem lies in the protocol”, which the Government themselves negotiated. So, we are back to the situation regarding the Government’s proposals, and it seems that the Government are going to rest on an assertion of necessity, with an assumption that it is not going to be tested. It surely is not welcome for us, in passing legislation, that the Government are effectively asking people to challenge it in the international courts—I can only imagine that it would be the ICJ.

The ICJ has stated in clear terms that invoking necessity on wrongfulness and not adhering to a treaty commitment cannot be a permanent solution. So I ask the Advocate-General, if he responds to any of the points that I am going to make, whether the Government agree with that. The ICJ has stated on a number of occasions that, even if invoking necessity was upheld, it is only temporary in order to remove the grave and imminent peril; it is not permanent, because it still means that that party is in breach of the treaty.

So if long-term, permanent changes are required to be made, that will require protocol changes and treaty changes, and the Government have not said that. They cannot invoke necessity if they believe that this is a permanent solution. The reason why I say that with confidence is—the Advocate-General, in schooling the noble Baroness, Lady Chapman, and me as non-lawyers, said we were “less wrong” on this—that, customarily in international law, we have to look at the record of the ICJ. I asked the Library of the House to provide me with information on when the ICJ has upheld parties who have invoked necessity. It has never been upheld, for the very good reason that it has to be limited, and “grave and immanent peril” on a cumulative basis is considered an exceptionally high bar. The Advocate-General must know that.

Of the two cases that the Advocate-General cited, the one involving Hungary and Slovakia—which was referred to by my noble friend—I found fascinating, as I mentioned before, when I read the judgment. The Advocate-General said that necessity

“was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube.”—[Official Report, 11/10/22; col. 765]

As I referred to before, the Government seem to be relying on one case regarding communist Hungary in 1989 which the ICJ threw out.

The second case mentioned, involving Canada and fisheries, could refer to two cases. In one, the ICJ was asked by Spain to adjudicate because Canada had seized a vessel, invoking necessity, but the ICJ said that it could not look into it because Canada had passed legislation at that time to have a reservation from the ICJ, so the case could not even be heard. The other case relating to the Grand Banks should worry the Minister, as it was about imposing licence fees. Canada invoked necessity; the US responded saying that it would pay the fees of the fishermen and then claim reimbursement from Canada; then Canada amended its laws, which brought in all other aspects, and it was resolved by Canada removing the licence fees. Now, if that is a precedent, it is a worrying one, because I can see that there will be consequences with the EU as a result of this legislation. There will be reciprocal action and the UK will pay for it.

So can the Minister confirm what the Library told me, that there has never been a successful invocation of necessity? Can he tell me if there has ever been a case where any party has invoked necessity for framework legislation? I could not find it, so presumably the Minister will be able to help me.