Northern Ireland Protocol Bill

Lord Moylan Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, like so many others, I oppose this Bill because it contravenes the rule of law. First, there is this flagrant breach of international law and its serious implications for our global reputation. Others have mentioned our invocation of international law when we are denouncing Putin’s conduct in relation to Ukraine. How can we—as I sought to do last night—condemn China for its conduct towards Hong Kong in breach of the Sino-British agreement, an international treaty, when we are breaking an international treaty ourselves? It is this sort of shocking conduct which I am afraid will do great damage to our reputation around the globe for law and our commitment to it.

The Government claim the defence of necessity. The noble Lord, Lord Pannick, has very effectively demolished that. There has to be grave and imminent peril, and that is not the situation here, as the history of this Bill relates.

In addition to breaching international law, this legislation also puts at risk other legal obligations. I remind the House that the protocol was designed to do more than protect economic interests; it had a number of objectives, one of which was to protect the Good Friday agreement “in all its dimensions”. The House will remember that concerns about human rights and equality have always been at the heart of the conflict in Northern Ireland, and a lot of work has gone into addressing those problems—I do not have to explain what I am referring to. As a result, we have seen the creation of important legal remedies, as well as institutions such as the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which have expressed concern about this Bill.

Article 2 of the protocol provides that the UK has continuous obligations regarding human rights and equality in Northern Ireland. It provides that there shall be “no diminution of rights”. No diminution means that the people in Northern Ireland had rights before the UK left the European Union and these cannot be reduced as a result of Brexit. Rights can only stay the same or advance; they cannot regress.

As we know, Article 2 does not stand alone. It is supported by and must be interpreted in the light of other provisions of the protocol and the withdrawal agreement. In particular, there is an obligation on the United Kingdom for what is known as dynamic alignment in certain situations. That means keeping Northern Ireland up to date with developments in European Union law. Let me emphasise: protected rights in the Good Friday agreement that are underpinned by EU law may not be diminished as a result of Brexit and have to keep up with EU advances. Article 2 of the protocol gives that overarching guarantee. However, Clause 14 of this Bill provides that Article 13(3) of the protocol, which is on dynamic alignment, is to be disapplied immediately. Clause 20(2) provides that, in proceedings relating to the protocol, a court or tribunal is not to be

“bound by any principles laid down, or any decisions made … by the European Court”.

I am afraid that that does involve a departure. It is important to understand that this Bill ranges more widely than undermining only the trade and customs provisions of the protocol. The Bill presents a real danger to the protection of human rights provisions because of the powers that it gives to Ministers, which are not confined to trade. I remind the House of the law of unintended consequences. It could have serious implications for the citizens of Northern Ireland and their rights. That is yet another reason why this Bill should be abandoned.

[Lord Moylan (Con)]

My Lords, I do not want to put the noble Baroness on the spot. However, since she is speaking of rights, does she have any answer made by the noble Lord, Lord Dodds of Duncairn, that the protocol itself abridges the democratic rights of the people of Northern Ireland as guaranteed by the UN declaration and the European convention in the making of their own laws?

[Baroness Kennedy of The Shaws (Lab)]

I agree with the noble Lord, Lord Dodds, that the Bill is ill-conceived and does not consider the ways in which the overlapping provisions create real difficulties for the democratic rights of the people of Northern Ireland.

--- Later in debate ---

[Lord Moylan (Con)]

My Lords, it is a pleasure to speak after my noble friend. I welcome this Bill and support it wholly. There has been much talk of international law in the course of this debate and I trespass on that territory with some trepidation because I am not a lawyer and claim no expertise in jurisprudence. However, it seems to me that one should question some of the claims that have been made.

It is easy to imagine, given the way that it has been discussed, that international law simply because it is international is some sort of supreme law, rather like FIFA outranks UEFA and UEFA is somehow higher than the Football Association. But that of course is not the case at all. And it is easy to imagine, given the way it is spoken of, that a breach of international law is somehow akin to a criminal offence.

International law does of course create some criminal offences—the waging of an illegal war is one of them. But most of international law is much more akin to a sort of civil contract between parties agreeing how they are simply going to conduct their business on something as mundane as the quality of sausages, for example. That is where we are in this debate, and comparisons with Putin and other such extravagant claims are wholly grotesque and misleading.

In my view, there are other laws higher than international law; one of them is the law to maintain the integrity of our own state. The protocol is a clear wound and severance in the integrity of the United Kingdom. That is why this is a matter of interest not simply to the people of Northern Ireland but to all the people of the United Kingdom.

There is nothing new about this. Shakespeare, of course, had quite a lot to say about it. He envisages an onerous contract, freely entered into, that can be satisfied only by an irreparable wound in the body, possibly a fatal one. He specifically asks the question: how should the law deal with this? It is very easy to say that the answer is that the pound of flesh has got to be paid. In my view, there are too many noble Lords in the Chamber today who have been insisting on the right of the European Union to demand its pound of flesh; there are not enough lawyers who share the wisdom and humanity of Portia.

Apart from the harm to the body politic that the protocol does, there is the question of whether the protocol, far from being a shining pillar of international law, is not in fact in flagrant breach of it. The noble Lord, Lord Bew, gave a number of examples of how the protocol conflicts with other treaties that we and the Republic of Ireland are obliged to. None of the legal experts that I have heard speak in this debate has addressed satisfactorily the question raised by the noble Lord, Lord Dodds of Duncairn, and others, of whether it complies with the Universal Declaration of Human Rights and the European convention, both of which guarantee a democratic and representative say to people on the laws under which they live. That is denied to the people of Northern Ireland in respect of a large swathe of significant laws. That democratic deficit is recognised by our own Sub-Committee on the Protocol on Ireland/Northern Ireland, but no answer has come on whether the protocol is defensible.

That is also a point that goes to those who say that we should be using Article 16. Article 16 is a mechanism for adjusting the implementation of the protocol, but the democratic deficit in the protocol is not due to its implementation; it is at the very heart of the protocol, and this Bill is necessary to deal with it. Nor is the matter addressed by saying that the people of Northern Ireland through the Assembly in Stormont have an opportunity to vote on it. One cannot vote away, and one’s parliament cannot vote away, fundamental human rights.

To those noble Lords who wave about the notions of the rule of law and international law as if they were simple, straightforward, knockdown arguments against this Bill, I say that in my view the whole matter is a great deal subtler and a less robust platform for them to rest their case on than they might think. Although there are only a few speakers left on the list, I am still open to hearing someone defend how the protocol is consistent with international law on human rights.