Northern Ireland Protocol Bill

Lord Pannick Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I want to focus on why this Bill would, if implemented, be a manifest breach of international law. Let me identify first what is not in dispute. The Government are not suggesting that it would be proper to bring forward a Bill which, if implemented, would breach international law—and quite rightly so. The Government also do not dispute that the Bill would resile from important aspects of the protocol and that this would be a breach of international law, unless they can rely on the doctrine of necessity. There is also no dispute about the criteria for invoking the doctrine of necessity. Your Lordships have heard that the Government must show that their action

“is the only way for the State to safeguard an essential interest against a grave and imminent peril”,

and the Government accept that necessity cannot apply if

“the State has contributed to the situation of necessity.”

The Government cannot dispute these criteria, because they are set out in Article 25 of the International Law Commission’s Draft Articles on state responsibility 2001, a codification of the basic rules of international law.

It seems to me that there are three reasons why the Bill, if implemented, would plainly breach international law. The first has already been addressed by the noble Lord, Lord Howard. The Bill is not the only way to deal with the perceived problem. The noble Lord rightly drew attention to Article 16, a mechanism in the protocol for addressing

“serious economic, societal or environmental difficulties”.

I entirely agree with what he said. But there are other problems. The second problem is that there is no “imminent peril”. The Government have been complaining about the protocol for many months—indeed, since soon after we signed it. And even if these fundamental difficulties were somehow to be overcome, there is a third fundamental difficulty: the Government have themselves caused the perceived problem, or at least substantially contributed to it. We signed the protocol in order, as then Prime Minister Boris Johnson said, to “get Brexit done”.

The Minister, the noble Lord, Lord Ahmad, in opening this debate, and the noble Lord, Lord Dodds, listed the difficulties that are caused, they say, by the protocol. Well, the Government should have thought about that before signing it. The International Law Commission’s notes to Article 25 point out, at paragraph 20, that the International Court of Justice has held that a state cannot rely on necessity when it has,

“‘helped, by act or omission’”

to bring about the situation of which it now complains. It is elementary that a state cannot sign a treaty and then seek to resile from it on the basis that the terms it has agreed damage the interests of the signing state.

The Government then say, “Yes, but the EU is not applying the protocol in good faith”—the noble Lord, Lord Forsyth, referred to bloody-mindedness, as he put it, by the EU. But there are mechanisms for resolving a dispute about the obligations of the parties to the protocol. We agreed, by Article 12, to the jurisdiction of the Court of Justice in Luxembourg to resolve disputes. The Government and the noble Lord, Lord Forsyth, may not like it, but that is what we agreed to in the protocol.

[Lord Howell of Guildford (Con)]

The noble Lord speaks with great authority and expertise—I have heard it often before and it is very good indeed—but does he think Articles 49, 50, 51 and 52 of the Vienna Convention on the Law of Treaties also have relevance and allow some scope to move away from the narrow confines of the treaty as it stands now, when the other parties may be breaking it in some way?

[Lord Pannick (CB)]

I think the noble Lord refers to obligations of good faith. The answer is that the protocol sets out a mechanism, as I said, for resolving the dispute between the parties—the UK and the EU—as to whether each is complying with its obligations. The United Kingdom cannot say that the test of necessity is satisfied when the protocol sets out a dispute-resolving mechanism.

I agree with the excellent speeches by the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis: this is a manifest breach of international law and I very much hope that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, will address these points when he answers this debate.

Northern Ireland Protocol Bill

Lord Pannick Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

I also want to know why we are not seeing the legal opinion which says what our position is with regard to international law. There is not a lawyer in this House who does not agree that this is an affront to international law, as I mentioned last time. On Monday of this week there was a meeting in this House about the treatment of Jimmy Lai in Hong Kong. He is a media owner being put on trial under the new national security law because of the erosion of the rule of law in Hong Kong. We want to say that that is an affront to international law because of the agreement made with China over Hong Kong’s future, but how can we say that with any kind of respect in the world when we are doing this to another international treaty because it has become inconvenient to us? That really is wrong, and I would like an impact assessment on the human rights implications of this piece of legislation.

[Lord Pannick (CB)]

My Lords, I pay tribute to the noble Lord, Lord Bew, because he has at least made the effort to present an argument as to why the Bill is not a breach of international law—something that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, for whom I have great admiration in other circumstances, expressly declined to do at the end of Second Reading. As I understand it, the argument from the noble Lord, Lord Bew, is that international law includes the Good Friday agreement, which recognises the need to pay close attention to the views, interests and aspirations of all sections of the community—and here, most relevantly, the views of the unionist community, and in particular the DUP.

That argument deserves an answer so I will attempt briefly to explain why, in my respectful view, it is hopeless as a matter of international law. The reason why the argument is hopeless is that international law states that the doctrine of necessity simply cannot apply where the Government have caused or contributed to the problem that they now perceive and are seeking to address. The noble Lord, Lord Bew, cannot get away from the basic facts that the Government negotiated and signed the protocol. In international law, it is simply elementary that a state cannot sign a specific agreement and then seek to resile from it because it takes the view that it is neither convenient nor in the interests of particular sections of the community. Indeed, the Government signed the protocol—and said they did so—because they took the view that it was the best way of protecting the views of all sections of the community, including the DUP. It therefore follows that, if the Government take the view that this is unacceptable, inconvenient and does not meet the DUP’s aspirations, international law demands that the Government negotiate with the EU and attempt to arrive at another solution. It is as simple as that.

[Lord Bew (CB)]

It is a little more than just “a need to”, which is definitely there. I can see perfectly clearly that the noble Lord is not familiar with Article 1(5), to which I referred, which is an international agreement held in the United States. The crucial thing is that this is also about the commitment to support the Good Friday agreement in all its parts. I am saying something slightly more complicated. We have both agreed to do this. The EU does not understand, for example, that “in all its parts” includes east-west, the totality of relations, a benign relationship and so on. It is impossible to fit the description of the east-west trading relations we now have from the protocol. This is very much a matter of decisions made by the EU, such as on how much intervention was required—or not. This is very much about its regulatory interventions going beyond what is necessary in anything that is actually in the protocol because the protocol itself says that the integrity of the UK single market will be upheld. Those are the words of the protocol—the important bit is in paragraph 25—but that is not what has happened.

My point is this: it is not just a question of the EU and the responsibility of one community, which is definitely there in paragraph 1 of the international agreement. This is about strand 3. At this point in the negotiation, we are simply saying, “We have both agreed to this. Your regulations most certainly break strand 3 at the moment”. I cannot understand why that is such a terribly complicated point in international law. We have all signed up to this; it is an argument about the interpretation of it.

[Lord Pannick (CB)]

I bow to the noble Lord, who has immeasurably more knowledge and experience of Northern Ireland than I could possibly have, but of course I have read the Northern Ireland agreement and understand that there are two documents in international law. The simple point is that, in the protocol, we agreed the means by which we take the view that the Good Friday agreement should be implemented in the context of the United Kingdom leaving the EU. That is what we agreed; we cannot now say that we are going to resile from it unilaterally. It is as simple as that.

[Lord Dodds of Duncairn (DUP)]

My Lords, I had not intended to take part in this debate because I had not realised that it would range so far and wide and across so many general issues. We had a lengthy debate at Second Reading in which a number of these topics were discussed; nevertheless, I think it is worth addressing some of the points that have been made and putting some of the issues on record as far as we are concerned.

I begin by joining noble Lords and noble Baronesses in their tributes to the late Baroness May Blood, who passed away recently. She lived and was brought up in the same part of Northern Ireland that I had the honour of representing in another place for almost 20 years, so I knew her very well indeed. I pay tribute to her great resilience, hard work, dedication and tenacity in her pursuit of the issues in which she believed strongly, as well as her dedication to young people in the Shankill and integrated education, as has been mentioned.

It is not incompatible to support this Bill and seek a negotiated outcome. On the negotiated outcome, although there is not a great history of flourishing talks with the EU and the United Kingdom on the protocol issues thus far, we hope that any negotiations lead to an outcome that is compatible with the aims and objectives contained in this Bill. This is not a matter of just tinkering around the edges and finding practical solutions, as has been said; some of the issues are fundamentally contained in the protocol. You cannot address the democratic deficit issue satisfactorily unless you address some of the content of the protocol.

No matter how much consultation, prior notice, discussion or involvement you agree to give Northern Ireland politicians in relation to EU laws covering 300 areas such as the economy—as well as further issues such as state aid, VAT and so on—the fundamental fact is that no elected representative of Northern Ireland either here at Westminster or in the Northern Ireland Assembly has any vote or decision-making capacity on vast swathes of laws that apply in Northern Ireland. How will that be addressed? This Bill goes some way to addressing that, but nothing I have heard being suggested by the proponents of delay, who are against the Bill, has offered any solution to that point. The noble Lord, Lord Hain, acknowledged the problem.

Our Sub-Committee on the Protocol, of which I have the honour of being a member, has looked at this issue in considerable detail; I recommend that noble Lords and noble Baronesses read the report that we commissioned on the scrutiny of legislation now applicable to Northern Ireland. They will see the extent to which Northern Ireland has been removed from the normal processes of democratic lawmaking, which people in this House have spoken about with great eloquence but which does not apply anymore to United Kingdom citizens in the 21st century. That is entirely unacceptable and is contrary to all the traditions of democracy that this mother of Parliaments has sought to uphold both here and abroad.

It has been asked what the problem is with delay. The noble Lord, Lord Bew, has dealt with one issue—

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[Lord Ahmad of Wimbledon (Con)]

What I said, and I have said it before, and without prejudice to our position on other mechanisms available under the withdrawal agreement and protocol, is that the Government reserve their position on Article 16. Article 16 remains an option—the Government have not taken it off the table—and it remains an option for the EU has well.

[Lord Pannick (CB)]

Can the Minister explain how the doctrine of necessity can be satisfied when the Government themselves reserve their position to use a power that is contained in the protocol?

[Lord Ahmad of Wimbledon (Con)]

I am sure we will return to the principle of the doctrine of necessity in later amendments. The use of Article 16 was debated during Second Reading, when a number of noble Lords, including my noble friend Lord Howard, suggested its use—indeed, that has been cause for debate. The noble Lord will be aware that that remains very much at the Government’s disposal, as it does at the disposal of the EU, because that was an agreement that was signed. On the principle of necessity, as I said, I will defer to my noble and learned friend Lord Stewart, who I am sure will discuss this with the noble Lord in other amendments that we are scheduled to discuss.

The noble Baroness, Lady Ludford, talked about Article 13(8) of the protocol, which deals with how subsequent agreement interact with the NIP. The EU, from our perspective when this has been raised, continues to reject any changes to the NIP itself. However, in saying that—and I am going by the discussions we are having with the European Union at this time—my experience is that it is not just the substance of what is being discussed with the EU at the moment but the tone of the engagement as well. While there are differing opinions—I accept fully that some are saying that a delay, which has been proposed, would strengthen the Government’s position—our view remains that the EU is very clear on our position on what we are seeking to do with the Bill, but that has not prejudiced the tone or substance of our engagement with the EU.

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[Lord Campbell of Pittenweem (LD)]

My Lords, I thought my days of trying to beat the gun had left me behind a long time ago. I apologise.

I wish to speak in support of Amendment 3 and am glad to see that the noble Lord, Lord Ahmad, is back in his place. I have a recollection, and no doubt he will correct me if I am wrong, that on one previous occasion when this issue was raised, he expressed some sympathy for the idea that the legal advice should be made available. We have heard already in these proceedings that there is not a lawyer in the House who does not think that the Government are acting illegally and that, I suppose, is a pretty unusual state of affairs.

We have also seen that the Delegated Powers and Regulatory Reform Committee observed at paragraph 4 of its report:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations.”


Given that the chorus of legal responses in the House is against the Government, perhaps the most notable being that of the noble Lord, Lord Howard of Lympne, and given the extreme criticism of the Government contained in paragraph 4, I respectfully suggest that the convention that legal advice is not made public should be set aside on this occasion. It is a convention; it is not a rule of law. If I may put it so, this is a case of such novelty and importance that it justifies the setting aside of the convention.

I also understood my noble friend Lady Ludford to be raising some questions about the issue of necessity. The Advocate-General will recall that in the course of his long response at Second Reading, he referred to the case of Slovakia against Hungary. I took the opportunity to read that case, and what we discover is that it is not in point at all. It was a case where both states were in breach of legal obligations and the international court called on them both to carry out their relevant treaty obligations. That is nothing to do with the issues which we have before us. But the noble and learned Lord was not satisfied with Slovakia; he went to Canada in 1995. He prayed in aid decisions taken then by the Canadian Government in relation to the Grand Banks and their overfishing, but there was no question of a treaty on that occasion.

If these two cases are offered as support for the notion that this case is one where necessity is justified, I would respectfully suggest that they do not support that thesis. The Government will have to do something rather more if they are to establish any question that necessity arises in this matter.

[Lord Pannick (CB)]

My Lords, I very much agree with what the noble Lord, Lord Campbell, said about this being a context where it would be enormously helpful to this House, and to Parliament generally, for the Government to publish legal advice so that we can understand why they assert, contrary to the views of most—if not all—lawyers, that what they propose to do is not a breach of international law. I anticipate, however, that the Advocate-General for Scotland will tell us that there is a convention that the Government are not prepared to publish legal advice. If that is his position, it would be enormously helpful to the House if he could at least address the substance of the criticisms that have been made of the Government’s position in international law. The noble and learned Lord told us at Second Reading that that was not the time or the place for him to address these arguments. I very much hope that today is the time and that he will tell the House, if he is not prepared to publish the legal advice, at least the substance of the Government’s argument.

First, why do they say that the test of necessity is satisfied, even though the protocol contains a mechanism for addressing disputes and even though, as the noble Lord, Lord Ahmad, told us a few moments ago, the Government are reserving the right to use Article 16? How can it be necessary to set aside the protocol when the Government themselves reserve the right to use a provision in the protocol which is designed to address the very problems that they are concerned about?

Secondly—I dealt with these points at Second Reading, but we had no answer—how can there be an “imminent peril”, when this dispute has been going on for three years, since the protocol was agreed? Why is it imminent, which is the requirement in international law?

Thirdly, since they have not told us this, what is the Government’s case as to how the doctrine of necessity can be satisfied when the International Law Commission, the academic analysis and the case law all say, “You cannot rely on the doctrine of necessity when you, the state relying on it, have contributed to the problems which you are complaining about”? How can it not be the case that the Government have at least contributed to the perceived problem when they signed the protocol after negotiations? If we are not to have the legal advice, can we please have at least some indication or hint as to what the Government’s case is?

While we are dealing with that, could we also please be told whether the Government’s legal advice associates itself with the argument of the noble Lord, Lord Bew? They have never said this, but is their argument that the Good Friday agreement establishes the test of necessity? I would like to know, please, the answers to those basic questions so that when we proceed with Committee we are at least informed as to what the Government’s position actually is.

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[Lord Dodds of Duncairn (DUP)]

I am grateful to the noble Baroness, and I understand what she is saying, but the issues that were being discussed at the time by Her Majesty’s Government, as it then was, and which the Labour Party was responding to, are the same issues that are before us today, which are affecting the political process in Northern Ireland and leading to problems with the supply of goods from Great Britain. They are exactly the same but when the solution, “Let’s trigger Article 16; let’s go into negotiations”, was suggested, the Labour Party derided that as being toxic. The Labour Party gave support and succour to those who have allowed this position of instability and economic and constitutional harm to continue. A lot of lies have been told around the place, but it is no good, if I may say so, the noble Baroness putting all the blame on to the Government when everybody in Parliament and all political parties have to accept that the goalposts have been shifted, often by consensus, in a way that has done damage to the Belfast agreement, as amended by St Andrews, in a way that has undermined the trust of the people in Northern Ireland in the institutions.

[Lord Pannick (CB)]

I entirely understand the noble Lord’s political grievance, but the fact is that Article 16 is part of the protocol and the political grievance cannot itself provide the basis for necessity in international law. This group of amendments is seeking to understand what the legal advice of the Government is.

[Lord Purvis of Tweed (LD)]

I always find it very interesting to follow the noble Lord. As I said before, I have been trying to understand his dilemma. For all the accusations against these Benches, suggesting that we may have been party to shifting goalposts to the Government is a stretch too far in any sport, whether it is rugby or football. We have been fairly consistent with our warnings, and I refer the noble Lord to Hansard when we debated the protocol and I raised these issues in 2019. We knew there were going to be the difficulties, because what the noble Lord wanted, we knew the Government were not going to satisfy. We have had three years of government gymnastics—I am mixing my sporting metaphors all over the place—trying to present a political argument which we knew was fundamentally flawed.

The only way that this will be sustainably resolved, if one part of the UK, Northern Ireland, is to remain part of the single market, is for there to be agreement. Unilateral actions against treaty obligations is not a sustainable solution to any of these problems. I understand when the noble Lord talks about a lack of trust. It is a stretch for him to make an impassioned contribution such as that and then say, “But I am going to argue passionately in favour of a Bill that gives unprecedented Henry VIII powers” to the exact same people he has said he had lost entire trust in.

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[Lord Bew (CB)]

My Lords, very briefly, I have been trying to say that the legal advice is a little more complicated and nuanced. I am not claiming, for example, that any prominent international lawyers such as Professor Boyle support this Bill. In fact, I do not think he does; he is one of the many who believe in Article 16.

I am quite astounded. Only a few weeks ago, every civilised person knew that Article 16 was the most brutish thing they had ever heard of. All civilised Peers across all parties and all civilised people knew it was the most brutish thing they had ever heard of, just as they are sure of this tonight. However, at this point we have a serious negotiation with the EU. Why do they think that, to improve the atmosphere of these talks, it would be a smart idea for the British Government to come in on Monday morning and say, “Well, you know, civilised opinion has changed. A few months ago, we thought it was brutish; we now think this Bill is so brutish that we want you now to declare Article 16”. This is not serious. There is a serious negotiation going on. You cannot seriously ask the Government to do this. I sympathise and fully accept that the legal arguments are more complex than has been acknowledged in this Chamber this afternoon—they are difficult and I have no firm, final view—but it would be absurd for the Government to say at this point, “Oh, we were having this negotiation but, by the way, here is Article 16”. I am sorry, it just would not work.

[Lord Pannick (CB)]

For my part, and I am sure it is true of others who have spoken in this debate, I am not asking the Government to exercise Article 16 tomorrow. The point is that the availability of Article 16 at a later stage is the reason why the test of necessity cannot be satisfied.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I turn to Amendments 3 and 67 in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Purvis of Tweed. The Government acknowledge that the noble Lord and the noble Baroness are right to raise the important issue of the relationship of this Bill to the United Kingdom’s international legal obligations.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, I consider that the amendments proposed are not necessary. The Government have published a statement setting out their legal position. I will expand on that position during my submission, in particular to answer the points raised by the noble Lords, Lord Pannick and Lord Kerr of Kinlochard, and others. None the less, a statement has been published, to which the noble Lord referred, setting out the Government’s legal position that the Bill is consistent with the United Kingdom’s international obligations.

Noble Lords chided me gently for perhaps going on a bit long at Second Reading—

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[Lord Stewart of Dirleton (Con)]

My Lords, the Government set out their position at the outset to assuage, hopefully, the concerns of Peers and Parliament generally about the steps which they intended to take. I do not intend to go beyond that on the Government’s legal advice.

I was going on to address the point raised by the noble Lord, Lord Pannick, and others—the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Ludford—about the matter of necessity. The noble Lord, Lord Pannick, paid me a restricted compliment earlier. May I respond in kind by saying that I am grateful to him for the wise, kindly, and friendly manner in which he has always engaged with me since I started in this House? I look forward to further engagements with him and the noble Lord, Lord Kerr of Kinlochard, and others on these points.

The noble Lord I think was the first to pose the question, how would it be possible for the Government to depend on the doctrine of necessity when the Government have put their signature, have become a party, to the protocol, having negotiated it? Do those facts, of themselves, prevent the Government from relying on this? Because, as the noble Lord said, the doctrine of necessity cannot be relied on by a party which by its conduct has caused the problem. The noble Lord, Lord Bew, nods his head.

[Lord Pannick (CB)]

Or contributed.

[Lord Stewart of Dirleton (Con)]

Or contributed. Where I and the Government differ from the noble Lord is in this regard: we signed the protocol in good faith, we negotiated in good faith, but we are entitled also to look beyond the terms to the manner in which the protocol has been implemented and interpreted by the other side. In relation to that point, it is not a—

[Lord Pannick (CB)]

I am very grateful and I apologise for speaking so often, but this is Committee. If the Government’s belief is that the other side has not faithfully performed its obligations on the protocol, the protocol itself provides a mechanism by which that dispute can be resolved. The means provided is through the Court of Justice. I entirely understand why politically the Government do not like that remedy, but that is what we agreed.

[Lord Stewart of Dirleton (Con)]

To pick up the noble Lord’s point about the CJEU, the Belfast/Good Friday agreement is based, as we have heard, on the consent of both communities. It is part of a package, along with VAT and state aid rules, that causes unionists to feel less connected and less part of the United Kingdom. As your Lordships have heard in the course of the debate today, all unionist parties cited the CJEU as a key driver of a major democratic deficit. This is not a hypothetical issue; there have been seven separate infraction proceedings brought against the United Kingdom by the EU, covering issues such as value-added tax, excise, pet passports and parcels. We consider it inappropriate for the CJEU to be the final arbiter.

Northern Ireland Protocol Bill

Lord Pannick Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

But what I would say is that, if you are going to give the Assembly a say on these matters, then respect the Belfast agreement. Why change it? Give it a cross-community vote. What is the problem with that? I humbly say that, when it came to the protocol itself, all of those safeguards were of course jettisoned, and we need therefore to go back to the rationale for this Bill. Whether it is through the Bill or new negotiations, we have got to get to a situation where we have a position which both unionists and nationalists can support in Northern Ireland.

[Lord Pannick (CB)]

My Lords, I am not going to comment on the politics of Northern Ireland—I am a mere lawyer—but the noble Lord, Lord Campbell, raised a particular point on Article 16, and the answer given by the noble Lord, Lord Dodds, as I understood him, was that there were discussions about that, and statements were made at various times by various politicians. But the fact of the matter is that Article 16 is part of the protocol; it cannot be ignored.

What it says is that it provides a procedure for dealing with

“serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

It is a very broad concept; it provides a means by which such disputes can be resolved and, as I have said before in debates on this Bill, I simply do not understand how the test of “necessity” in international law can be satisfied when the Government have available, and are not using, a provision that is expressly provided in the protocol. You simply cannot resile from an international agreement because of problems when the protocol itself, the international agreement, provides a means of addressing them; it is as simple as that.

There is one other legal point. The noble Lord, Lord Browne, deserves an answer. He rightly emphasised that Articles 1 and 2 of the protocol preserve the Belfast agreement in various respects, upholding and emphasising it. As I understood it, his argument is that the Bill is consistent with international law because the protocol, in his view, undermines the Belfast agreement. However, if I may respectfully say so, there is an insuperable difficulty with that argument: this country signed the protocol on the basis of the view that the protocol was consistent with the Belfast agreement in the context of the difficult problems posed by Brexit.

Having signed the agreement, with respect, it is trite as a matter of international law that the United Kingdom cannot unilaterally resile from the protocol because, under political pressure, it now wishes to take a different view. Therefore, this Bill, as I have suggested before, is quite simply inconsistent with international law.

[Lord Frost (Con)]

My Lords, I appreciate that I am a relative newcomer to this House, but I had understood that in Committee discussion is supposed to focus on the amendments before us. What I have heard today is very much a rerun of the discussion we heard in this place last week, with repeated invocations of issues of principle around this Bill and the protocol, which are extremely important but might not be resolved in this debate simply by repeating the points over and over.

I have been trying to follow the detail of this on my electronic device, with my documents in front of me—I know the technique may not be familiar to everybody in this House, but I am trying my best. I was not intending to speak but, as some points of principle have been raised, I feel it is right to put certain circumstances on record.

I will make three brief points. First, I feel we are having a highly abstract discussion about a very concrete and real situation. Noble Lords all know what is happening in Northern Ireland at the moment and what has happened over the last year and in recent months: the constant, gradual deterioration of the real political situation in Northern Ireland, the undermining of the institutions of the Good Friday agreement, and the degradation of some of the habits of co-operation and working together that we have seen over the years. This is a real situation, which must be dealt with. This Bill is a way of dealing with it and the Government—rightly, in my view—believe it is the best way of doing so.

We have to engage with that. We have to take real-life action to deal with the problems that exist on the ground in Northern Ireland. Important though discussions of international law and a reinvocation of why we signed this agreement may be, they do not deal with the real situation on the ground now. The Government are the Government of this country, and they are right to put forward proposals that deal with this situation. The best way to deal with it would be to expedite this Bill, not to delay, defer or withdraw it. The best contributor to stability in Northern Ireland would be to get this on the statute book and enable people to know what they are dealing with.

Secondly—

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[Lord Cormack (Con)]

In effect, we have heard this evening a reiteration of Dunning’s Motion in the reign of George III:

“The influence of the Crown has increased, is increasing, and ought to be diminished.”


We are seeing in the Bill not only an abrogation of international law and our obligations, which is what primarily concerns me, but in the process, by the design of the Bill, an accretion of power to Ministers and the Executive—an unbalancing of the relationship between Parliament and the Executive.

The Executive are answerable to Parliament in our constitution. Here, great chunks are being given to the power of the Executive. We owe an enormous debt to the noble Earl, Lord Kinnoull, and his committee, and other committees in this House, which have pointed this out calmly—to use a word I used earlier—but very forcefully. We are embarking on a road towards executive superiority such as is incompatible with our constitution, which is moving away in the 21st century from what our forefathers fought for in the past. We cannot emphasise that too greatly.

The person who could make this speech far better than I and whose name is on the amendments spoken to eloquently by the noble Lord, Lord Purvis of Tweed, is the noble and learned Lord, Lord Judge. Time and again, in a variety of Bills and contexts, he has pointed out to your Lordships’ House how the accumulation of Henry VIII powers in the hands of Ministers, without proper accountability to the House, is the road towards executive domination such as is incompatible with our constitution, as I said a few moments ago.

In wholeheartedly supporting these amendments, I urge my noble friend, when he comes to reply from the Front Bench, to address this issue and address it directly. I have great admiration for my noble friend Lord Caine. I certainly have great admiration for his knowledge of, and concern for, Northern Ireland, to which he has dedicated a large part of his life; but is he really happy to be put in a position, or see any of his ministerial colleagues put in a position, where they can override Parliament effectively by diktat?

[Lord Pannick (CB)]

I completely agree with the noble Lord, particularly in relation to his tribute to the noble and learned Lord, Lord Judge. In his absence—as his junior as it were—I draw this Committee’s attention to the quite extraordinary report of your Lordships’ Delegated Powers and Regulatory and Reform Committee to which reference has been made before, particularly at Second Reading, but it bears repetition. Its seventh report of this Session says at paragraph 4 that this is

“a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms.”

It continues:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament”.


That is quite an extraordinary criticism of this legislation. It is made not by novices but by highly experienced and respected Members of your Lordships’ House across party lines. I find it deeply regrettable that the Government should think it appropriate to continue with a Bill that has attracted such cross-party criticism.

[Lord Lilley (Con)]

My Lords, I came into Parliament nearly 40 years ago and was told first of all that you should never ask a question to which you do not already know the answer. Now that I have been here so long, I feel that I can take the risk of asking some questions to which I do not know the answer, about a very important aspect of the Bill that has just been raised by the noble Lord, Lord Pannick.

There are two criticisms of the Bill, the first being that it is allegedly against international law. I do not believe that and have not really heard any answers to the points raised by the noble Lord, Lord Bew. What happens when you have two conflicting international obligations? The second criticism is that it relies, very largely and to an almost unprecedented degree, on Henry VIII clauses. Historically, I am very reluctant to rely extensively on Henry VIII clauses, and I was rather shocked by the committee report to which the noble Lord, Lord Pannick, has just referred.

The questions that I want to ask, and to which I do not know the answer, are: first, what is the alternative in the context in which we are to have open-ended Henry VIII clauses; and secondly, why did the Government not adopt that alternative? I assume that the alternative to the Henry VIII clauses is to spell out in detail, in primary legislation, what you intend to do, but the context in which we are doing it is that we are simultaneously legislating and negotiating.

The noble Lord, Lord Purvis, said that we cannot do that. It seems to me perfectly compatible with the doctrine of necessity to do that. We have to do something, we need the power to do something, we have taken the legal power to do something, but we would like that something to be negotiated if possible. So we are simultaneously negotiating and legislating. If we spell out in primary legislation, in detail, the outcome that we want to get, in the context of a negotiation that involves give and take, we either have to spell out the maximum we want—what we want to take without any give—or the minimum we are prepared to accept: what we are prepared to give without any prospect of taking.

In this unusual situation of having to have the legal powers to act while we are negotiating and hoping for a negotiated solution, I am not sure what alternative there is to what the Government have done. I would be grateful to hear what noble Lords would do who share my reluctance to rely on Henry VIII clauses. Effectively, we are saying we are recreating the royal prerogative in the negotiation, giving the Government a free hand, while giving them the power to take legislative action if those negotiations do not achieve a satisfactory result.

Northern Ireland Protocol Bill

Lord Pannick Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

I hope all those speaking to Clause 12 standing part understand that there is a fundamental difference in approach to subsidies between the EU and UK. The EU tends to favour money handed out to companies at its discretion for the companies’ direct benefit—frequently, of course, through individual states. We like to empower investors and, as such, the markets to decide where the money should go. It is, in effect, the investors who decide which companies will benefit from their money, which is enhanced by a tax break. Like so many areas in business life, we have a different way of thinking from the EU and we have to protect our interests first. Concerns that this is a breach of other international treaties or laws are fair to raise and difficult for many of us non-lawyers to understand. But even if they are correct, what I do know is that UK companies need protection to enable them to carry on being financed in the way our Parliament feels appropriate.

[Lord Pannick (CB)]

May I ask the noble Lord two questions? First, should these problems not have been considered by the United Kingdom Government before they signed the protocol? Secondly, is there any reason why these problems cannot be raised in the negotiations with the EU to take place in the near future?

[Lord Leigh of Hurley (Con)]

I cannot answer for the UK Government on whether they should have been raised before; that is clearly historical and we are where we are. In theory, there could be a negotiation with the EU to try to deal with some of these problems, but we would be on the back foot and there would be no reason for the EU to agree, whereas Clause 12 deals with it satisfactorily.

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[Lord Cormack (Con)]

I should just like to ask a question of whichever Minister will reply to this brief debate. I am of course entirely on the side of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Purvis, in what they said. I understand why my noble friend raised his commercial points, but between us and him is a great gulf fixed. What we are concerned about is the arbitrary and unfettered power of Ministers.

I have great respect for all three of the Ministers who are handling this Bill, and great sympathy for them, but are they truly happy to exercise such unfettered powers without reference to Parliament and proper debate? We go back to where we were on Monday: the imbalance of power and the excessive power of the Executive, which has been growing like a mad Topsy for the last few years. It is deeply disturbing to anybody who believes in parliamentary government, and I want to know if it is deeply disturbing to the Ministers on Front Bench this afternoon, because if it is not, it should be. I would be much more worried than when I got up if they tell me that they do not mind.

[Lord Pannick (CB)]

Could I suggest to the noble Lord, before he sits down, that the real question is not whether the Ministers on the Front Bench would be happy to exercise these powers, but whether they would be happy for their opponents, were they to be in office, to exercise these powers.

[Lord Cormack (Con)]

As so often, the noble Lord puts it very well. It ought to be a parliamentary lesson to us all: never seek to take to yourself powers that you would not be happy to see the other side have. The noble Lord put it very succinctly and I endorse what he said.

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So it is very clear that the original approach laid down in Article 50 was that you could enter into temporary and transitional arrangements which were necessary to ensure that, in case there was no final agreement, no subsequent TCA, there would be some appropriate arrangements for the Northern Ireland border. It was expected that if subsequently they could not enter into negotiations until they had completed the withdrawal agreement under Article 50, under the TCA that would deal with such things as subsidy arrangements. Largely, it did deal with such things as subsidy arrangements, and they should not be dealt with under a temporary protocol which ceases to have any validity if, after good-faith negotiations, we fail to reach an agreement. We should then repudiate it, accepting the advice of the noble Lord, Lord Pannick.

[Lord Pannick (CB)]

There are many difficulties with that argument, the first being that there are good-faith negotiations that the United Kingdom is involved in. One cannot assume that they will not succeed. We do have a protocol.

The noble Lord, Lord Dodds, made a point which has been made previously in Committee, concerning the democratic deficit in Northern Ireland. There is a provision in the protocol that expressly addresses democratic consent in Northern Ireland: Article 18. It sets out a detailed procedure to ensure that there is democratic consent, and it requires in detail provisions to ensure the consent, in due course, of both communities, the nationalist and the unionist. I am sure that the noble Lord, Lord Dodds, will say that it is far from perfect and that he does not like the detail set out there—but that is what we agreed. It simply cannot be said that the subject of democratic consent has been ignored. It was negotiated and it was agreed.

[Lord Dodds of Duncairn (DUP)]

Does the noble Lord accept that the provisions of Article 18 are contrary to the agreement that was made between the European Union and the UK Government in December 2017? Article 50 of the joint report said that before there could be any regulatory difference between Northern Ireland the rest of the United Kingdom, there had to be the assent of the Northern Ireland Assembly and the Executive. The current arrangements are in breach of an EU-UK agreement and the process for giving consent is deliberately made a non-cross-community vote, contrary to the Belfast agreement.

[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.

[Baroness Chapman of Darlington (Lab)]

My Lords, it is certainly my understanding that the negotiations are being undertaken in good faith on both sides, and it would be useful to have that confirmed by Ministers when they reply.

There are a few issues here, but I say first that it is very helpful to have the noble Lord, Lord Dodds, make his contribution on his concerns about chapter 10 of the protocol, because sometimes our discussions can get a little philosophical—that may be the wrong word—and it is very helpful to have them grounded in reality. His view is that he does not want a scheme that is any different to that which exists in the rest of the United Kingdom. That is understood and we know why he thinks that. We may not feel that it is realistic in the circumstances that we find ourselves in after Brexit, but there are most certainly good prospects to negotiate, come to agreement and perhaps find exemptions that would give him close enough to what he needs to be able to move us forward and give clarity and certainty to businesses in Northern Ireland, which is surely what we all want to see.

I am worried about the potential for retaliatory measures should Clause 12 of the Bill come into force. We know that this is something the EU is deeply concerned about. That does not mean that we cannot negotiate a much better position for ourselves, but there is the prospect of some form of retaliatory measure being forthcoming from the EU. I would like to know from the Minister what assessment has been made of the potential for this—although I am not quite sure which Minister to address my gaze to on this.

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[Lord Pannick (CB)]

As always, the noble and learned Baroness speaks great sense. I shall address very briefly a point that is not about electricity, although I hope it may spark some general interest.

[Noble Lords]

Oh!

[Lord Pannick (CB)]

It is getting late—we are almost at dinnertime, I hope. The point is about international law. Clause 13 would exclude the jurisdiction of the Court of Justice of the European Union, which is conferred by the protocol. The test of necessity under international law requires consideration of the necessity for resiling from the protocol by reference to each individual provision: we do not look at it as a whole, we ask whether there is a necessity for this or that. My question to the Minister is: what is the necessity in international law for excluding the jurisdiction of the European Court of Justice? What is it about the European Court of Justice that so concerns Ministers?

We have debated at some length, and I agree with all the speeches that have been made on the subject, the difference between “appropriate” and “necessary”, but the test in international law is necessity. Ministers may well think it is appropriate, for political reasons, to exclude the jurisdiction of the European Court of Justice—I well understand why that may be the case—but can the Minister please tell me how it satisfies the test of necessity to exclude that jurisdiction?

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, this is the third day we have been debating the Northern Ireland protocol and I know Members may be tired or exhausted, but it seems from a unionist point of view that a lot of Members of this House are either tone deaf or totally blind—because they desire to be—about the reality of the situation with the protocol. I do not know how many times Members have to be told that the protocol is totally unacceptable to any unionist elected representative, any unionist within the Northern Ireland Assembly, or indeed any unionist Member who sits in either of the Houses here. That seems to have been just cast aside.

A few moments ago, we listened to the noble Baroness, Lady Ritchie, who stressed how important it is that the protocol is not just re-established but is put fully into operation. Then she stressed how important it is that the Northern Ireland Assembly is given its place to support this protocol. I say gently to the noble Baroness, for whom I have a personal respect, having known her for many years in the other place and in the Northern Ireland Assembly, that maybe she has forgotten that majority rule is no longer in existence in Northern Ireland. In fact, the behest of her community, and indeed the marches on the streets and other activities by others she would not necessarily associate herself with, ensured that majority rule was no longer in existence in Northern Ireland. She is basing her remarks upon the acceptance of the Northern Ireland Assembly, debating and then supporting the protocol with Sinn Féin, the SDLP, the Alliance, the Greens and a few other parties, but not one unionist.

Maybe the Committee needs to learn this fact: the very basis of the Belfast agreement was predicated upon cross-community support, not majority rule. That was decided, and indeed lauded and applauded, by every part of this House. We are also constantly reminded that nothing, but nothing, must be done to undermine the Belfast agreement. I noticed that when the noble Lord, Lord Kerr, was speaking, he mentioned the polls and what the polls are saying. I suggest we should be very careful about what the polls are saying, because they certainly got it wrong on Brexit and it seems that they got it wrong on the election in Israel just yesterday. I suggest that, since we listened to the Secretary of State say that Northern Ireland is heading to the polls, rather than telling us what the polls are saying, when the people of Northern Ireland speak we will find out what the unionist community believes about the Northern Ireland protocol.

It may surprise noble Lords, but there is a party in this House that when it takes a manifesto to the people, actually stands by its manifesto. I know that is a novel thing for the Government Benches over the years, but it is not novel for the Democratic Unionist Party. I suggest that noble Lords refrain from telling us, because to be honest, I am fed up with people telling us what the people of Northern Ireland want. Let the electorate speak. The Minister, or rather the deputy at the Northern Ireland Office, has told us that we will shortly hear the date of the Northern Ireland election. Therefore, the Northern Ireland protocol will be put to the electorate and we will see what the unionist population believes concerning that protocol.

I note, before I finish, that on a previous occasion when I was speaking the noble Lord, Lord Kerr, said that it was novel for us to support or base our opinions on the Belfast agreement when we opposed that agreement. I remind him why we opposed it. It was because the Belfast agreement was putting unreconstructed terrorists into government who would not support the police or law and order. In fact, it took another agreement, the St Andrews agreement, to bring them to the place where they had to say that they would give up their weapons, that the IRA weapons would have to go and that they would actually support the police and call upon their community. So, when noble Lords mention that we did not support the Belfast agreement, that was on the basis of the Belfast agreement at that time bringing in unreconstructed terrorists.

As one who suffered from those terrorists, I say without apology to the noble Lord and to the Committee that I did not agree at that time, but I am also long enough in public life to know that the Belfast agreement is an international agreement and therefore this House has constantly told us that we must do nothing to undermine that agreement. I can tell the Committee clearly that, day by day, those who say that the protocol must continue are undermining the Belfast agreement within the unionist community. I trust and pray that the Government will wisely accept that the Bill is not perfect, but it is certainly better than anything I have heard anyone else suggest we should move forward on.

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It is the Government’s view that it is inappropriate for the CJEU to be the final arbiter of certain disputes between the UK and EU law under the protocol. The Bill removes the effect in domestic law of the jurisdiction of the CJEU in enforcing or interpreting law that applies in Northern Ireland. The Government are confident—notwithstanding the remarks made by the noble Lord, Lord Pannick, which ignited my response, if I may continue with the bad jokes at this hour—in the ability of UK courts to interpret the law which applies in Northern Ireland. But, of course, the powers in the Bill enable the Government to deal with any issues that might arise in relation to the interpretation of EU law underpinning—

[Lord Pannick (CB)]

The noble Lord said that the Government take the view that it is inappropriate for the court of justice to retain jurisdiction, but why is it necessary—that is the test in international law—to exclude its jurisdiction?

[Lord Ahmad of Wimbledon (Con)]

I have given the Government’s position, and I am going to totally digress at this point from my speaking notes. I am reminded of something my noble friend Lord Howard, who is not in his place, said to me during my introduction back in 2011, regard people’s various insights. This also relates to the point made by the noble Lord, Lord Kerr. I remember a debate on the withdrawal Bill, taken by my noble friend Lord Callanan, during which certain specific issues were discussed and we talked about the case against the Government at that time. I remember the interventions that were made as I sat next to my noble friend. One was in reference to the actual case. The noble Lord, Lord Pannick, corrected the Minister, saying that, actually, as lead counsel on the case, perhaps he could provide an insight. As my noble friend fought the defence of Article 50, the noble Lord, Lord Kerr, stood up and suggested, “What would I know? After all, I only wrote Article 50”. So, on this issue, where I am testing a principle of law, I repeat what the Government’s position is but I take note of what the noble Lord has said in this respect.

[Lord Pannick (CB)]

Very helpful.

Northern Ireland Protocol Bill

Lord Pannick Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, who highlights quite clearly the central proposition in Amendment 38, tabled in my name and that of the noble Baroness, Lady Suttie. It is about limiting the control of Ministers under the Bill by ensuring that the Northern Ireland Assembly is given necessary approval of the conduct in relation to the provisions within the Bill.

Amendment 38 seeks to amend Clause 18, “Other Ministerial powers”, to ensure a limitation of delegated powers to Ministers—the very issue that was discussed by the Delegated Powers and Regulatory Reform Committee—and to ensure that

“the exercise of the Minister’s power to engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol that is not otherwise authorised by the Act to a motion approving the conduct in the Northern Ireland Assembly.”

It throws up the accountability issues relating to the Northern Ireland Assembly—I hope that all the institutions will be up and running eventually—and would ensure that devolved regions and nations have particular control in relation to this issue.

It is worth noting that there were two important developments in the long road of the protocol. Today, the Prime Minister, Rishi Sunak, and the President of the European Commission, Ursula von der Leyen, met in the margins of the climate conference in Egypt and agreed to work together to end the turmoil in relation to the protocol. Also today, at the meeting of the UK-EU Parliamentary Partnership Assembly in this building, Vice-President Šefčovič said that if this Bill were to become law, the UK Government would put Northern Ireland’s unique access to the EU market of 450 million customers at risk.

I again urge the Government to put this Bill into cold storage and ensure that there is renewed political vigour given to the negotiations. It is only through joint negotiations that all the issues around the protocol in relation to east-west issues and to trade between GB and Northern Ireland can be satisfactorily resolved to the benefit of all businesses and people in Northern Ireland.

[Lord Pannick (CB)]

My Lords, when the purpose and the intended effect of a clause are unclear, it sometimes helps to look at the Explanatory Notes to the Bill. These are produced, of course, by the Government, and are designed to explain. But if we look at the Explanatory Notes to Clause 18, we see that the confusion and uncertainty are even more manifest.

Look at paragraphs 96 to 98 of the Explanatory Notes. Paragraph 96 tells us that:

“Clause 18 clarifies the relationship between powers provided by this Bill and those arising otherwise, including by virtue of the Royal Prerogative.”


That is what Clause 18(2) says. Paragraph 97 deals specifically with Clause 18(1). It says:

“Subsection (1) provides that Ministers can engage in conduct (i.e.”—


and I emphasise that it is “i.e.” and not “e.g.”—

“sub-legislative activity, such as producing guidance) relevant to the Northern Ireland Protocol if they consider it appropriate in connection with one or more of the purposes of this Bill.”

If that is the intended purpose of Clause 18(1), why not say so? Why not limit the scope of Clause 18(1) specifically to say that Ministers can produce guidance? We could then have a debate about whether it is properly drafted, whether it is too broad or whether there should be some controls. I am afraid that what we find in Clause 18(1) bears no relationship whatever to what the Explanatory Notes tell us that Clause 18(1) is designed to achieve. My conclusion from that is that there must be real doubt here; that Ministers know what Clause 18(1) is designed to achieve and are reluctant to be specific because they do not want proper controls on the scope of their powers.

[Lord Lisvane (CB)]

To follow the noble Lord, Lord Pannick, I wonder whether one route might be for the Minister to give us a glimpse behind the veil. What were the instructions given to parliamentary counsel? In other words, what were they asked to achieve by means of Clause 18(2)?

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[Lord Lilley (Con)]

My Lords, this has been unusual in the debates that we have had so far in that far more has been said that I can agree with than that I disagree with. I even found myself agreeing with two-thirds of what the noble Lord, Lord Kerr, said, which is unusual. He is undoubtedly right that the negotiations cannot really be going as well as we would all like to hope, and as so many commentators and Ministers imply they are, as long as the EU has not been prepared to change its negotiating mandate. It will not allow a single jot or tittle of the protocol to be changed under its existing mandate, even though the protocol itself envisages the possibility of it being changed in part or in whole. That surely has to change. Maybe it has de facto; maybe the EU is agreeing to talk beyond its mandate. Let us hope that that is the case.

The disappointing aspect of the debates so far is that I have been waiting throughout for any coherent response from noble Lords, in their very powerful speeches about the illegality of what we are doing, to the questions raised by the noble Lord, Lord Bew, in particular as to what happens when there is a conflict between two international obligations, as the noble and learned Lord, Lord Brown, implied that there is between the obligations that we have under the Belfast agreement and those that we have under the protocol. I have not heard any direct response to that question: what do you do when you have conflicting international legal obligations?

[Lord Pannick (CB)]

I am very grateful to the noble Lord but the Committee has heard repeated explanations of what the answer is. The answer is that the protocol contains Article 16, which allows for a process to commence by which disputes can be resolved with an arbitration process. That is the answer. There is no conflict because the protocol provides a mechanism for addressing conflicts.

[Lord Lilley (Con)]

I am grateful to the noble Lord for sidestepping the question by saying that he does not need to answer it because there is an article in the protocol that means you do not have to answer on what happens when there is a conflict between two international obligations. Clearly, however, the Government and many noble Lords from the Province who have spoken think that there is a conflict and it cannot be solved just by invoking Article 16. If it can, fine; that is wonderful.

The other related question that we have not had a response to is the point made by the Lord Chancellor in the other place that Article 1 of the protocol specifically says that in the event of a conflict between the Belfast agreement and the protocol, the Belfast agreement takes precedence. I have not heard any response to that, nor to the point, which I might be alone in making, that the whole protocol is intrinsically temporary. We know that because the EU told us that it could not enter into a permanent relationship with us because we were then a member state and it could not, under Article 50, enter into a permanent relationship with a member state; it could be only temporary and transitional. That is why the protocol itself contains provision for it to be superseded, but I have heard no response to that point from anyone.

[Lord Lilley (Con)]

I certainly do not say absolutely that Article 16 is not the way to proceed, but I have spoken to lawyers much respected by people in this House—unfortunately I do not have their permission to give their names—who told me that we should not go down the Article 16 route because it would be a nightmare.

[Lord Pannick (CB)]

Why?

[Lord Lilley (Con)]

I will put the two in touch discreetly and thereby not betray confidences.

[Lord Pannick (CB)]

I am sorry to interrupt the noble Lord and I am grateful for his patience, but it really is not good enough, when this Committee is debating these matters, for him to say that there are problems in using Article 16 but not tell us what they are.

[Lord Lilley (Con)]

I am saying that there may well be problems. Indeed, I asked the noble Lord the other day, down the corridor, whether he was of the opinion that Article 16 could be used to solve all the problems. If it can be, fine; I am not ruling that out. However, if it cannot be, then the issue raised by the noble Lord, Lord Bew, is there on the table, and the issue raised by the Lord Chancellor is there on the table. Whatever about that, the protocol is intrinsically temporary. The whole basis of the negotiations that we entered into on the withdrawal agreement was that a permanent agreement could not be entered into in the withdrawal Act with the United Kingdom covering trade or other matters; that could happen only after we had left. Therefore, anything in the withdrawal agreement was intrinsically transitional and temporary.

Again, I have not heard a response on that today. I wait to be interrupted with a response to the point. Usually, it comes from the noble Lord, Lord Kerr, who wrote Article 50, but he has forgotten what the alternative is.

These are important issues. We need to know why we were told one thing, that this was temporary, and now are told another thing, that it is permanent. Until we get an answer to those questions, I do not know that our debate can proceed as productively as it ought to. There are other more general points which I would like to make but I will save them for another batch of amendments.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, I thank all noble Lords who have contributed to the debate on the amendments and the wider context. The noble and learned Lord, Lord Stewart, the noble Lord, Lord Caine, and I always look down the list to see when the first group in Committee will be. We know that the clock will strike an hour because of the context that will be set in relation not just to the amendments in front of us but opinions on the particular Bill. Like the noble Lord, Lord Ponsonby, I will focus on the specific amendments. Where I can add a degree of Ahmad colour, I will seek to do this in the best way possible.

As I and my colleagues have said, to pick up on a key point on the ultimate nature of the Bill, the reasoning behind the Government’s approach is that the Bill is consistent with our obligations in international law and supports our prior obligations to the Belfast/Good Friday agreement, as has been said in various parts of today’s debate—and very eloquently by my noble friend Lord Lilley.

I will begin with Amendment 36, tabled by the noble Lord, Lord Purvis, on the issue of the powers. In the Government’s view, Clause 18 is not an extraordinary power. It simply makes clear, as would normally be the case, that Ministers are acting lawfully in this case. This point was made by the noble Lord, Lord Ponsonby, and others and I will attempt to put some colour on this—I do not know whether it will be to noble Lords’ satisfaction. Clause 18 is included because the Government recognise that the Bill provides, in a way that is not routinely done for other legislation, for new domestic obligations to replace prior domestic obligations that stem from our international obligations. Those international obligations are currently implemented automatically by Section 7A of the European Union (Withdrawal) Act 2018. That conduit pipe currently constrains—and in the Government’s view could cause confusion in the future—how Ministers can act in support of the Bill. The Government put forward that Clause 18 is to provide clarity on that point.

I note the DPRRC’s view on the issue of delegated powers, which the noble and learned Lord, Lord Judge, highlighted again in his contribution. However, it is the Government’s view that the power being proposed here is within the normal scope of executive action. To provide a bit more detail, this would include, for example, direct notifications from Ministers to the EU. While I am sure—I am going to hazard a guess as I look around your Lordships’ House—that I may not have satisfied every question on that, I hope that that has provided a degree more detail.

[Lord Pannick (CB)]

I am very grateful to the Minister. Can I press him for a moment on what I understand to be his explanation for Clause 18, which is that otherwise there may be some concern that the exercise of powers is not consistent with Section 7A of the European Union (Withdrawal) Act 2018? I think that is what the Minister said.

[Lord Ahmad of Wimbledon (Con)]

I would put it slightly differently. That is the section I referred to, but it is to provide clarification in that respect. The noble Lord will interpret that in the way that he has, but I have sought to provide clarity on why the Government’s position is that this should be included.

[Lord Pannick (CB)]

Could I complete my point? I am very grateful to the Minister but I am puzzled by that explanation, because the Bill already deals specifically with this subject in Clause 2(3). I remind the Minister that it states:

“In section 7A of the European Union (Withdrawal) Act 2018 … after subsection (3) insert … This section is subject to”


this Bill. Therefore, with great respect, I do not understand why one needs Clause 18 to address exactly the same point.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I suppose that, with any Bill, the challenge for the Government is often to provide added clarification. That is exactly what we are doing, perhaps to emphasise the point that the noble Lord himself has highlighted from other elements of the Bill. I am sure that the noble Lord will come back on these issues, but if I can provide further detail on the specific actions that this would thereby permit, I will. As I said, it is a point of clarification, and I will write to the noble Lord on this point.

The best way I can sum up Amendment 37 in the name of the noble Baroness, Lady Chapman, is that it is a well-trodden theme in the context of the Bill. The positions and different perspectives on this issue are noted. All I add is that the Government’s intention is to ensure that the powers—the ability for a Minister of the Crown to issue guidance to industry or provide direction to officials in relation to the regime put in place under the protocol—reflect their ability to carry out their responsibilities. In this case I can see no reason why Ministers should be able to issue “appropriate” direction in relation to trade with the EU via the short straits but only “necessary” directions over the Irish Sea.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I have already said that the Bill does nothing to affect the procedures applying under the CRaG Act 2010. I have been clear on that and it is specifically in front of me as I speak.

[Lord Pannick (CB)]

If that is the case, would the Minister be sympathetic to an amendment on Report that puts that in the Bill?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I think my priority is to complete Committee. Of course, I look forward to Report and the amendments proposed and that is when we will have further discussions on this matter—

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[Lord Pannick (CB)]

My Lords, I draw attention to the suggestion that Clause 20 should not stand part. During these Committee debates, we have addressed a number of extraordinary provisions in the Bill that give exceptional powers to Ministers, but Clause 20 really does take the biscuit, if that is a parliamentary expression. Let me emphasise what it provides. It provides that the role of the Court of Justice in Luxembourg is excluded, which we will all have a view about, but it goes on to say that Ministers can, by regulations, recreate the role of the European Court of Justice. Is it not quite extraordinary that a Minister should be able, by regulations, to confer a power on an external body to sit as the final judicial body determining issues that are relevant for the purposes of English law? Whether you agree with the role of the Court of Justice or disapprove of it, it cannot be constitutional for a Minister of the Crown to have an exceptional power to decide who and what is the final court of appeal for this country.

[Baroness Butler-Sloss (CB)]

I very much support what the noble Lord, Lord Pannick, said, and add that it seems quite astonishingly narrow-minded and short-sighted to want to be rid of the European court in these circumstances. We heard at length last week about the effect on electricity, but there is a wider effect.

May I just put in a word of defence of the European court? I happened to visit it on numerous occasions. It has made some extraordinarily sensible decisions that have affected this country and particularly women, which is one of the reasons I support it. It is quite extraordinary that a Conservative Government, who I always thought had a broad view, should be quite unbelievably narrow-minded, and that some quite erroneous view of sovereignty should be taking over from the crucial role that the ECJ has to play in the work we are considering.

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[Lord Pannick (CB)]

If the role of the court of justice is, as the Minister puts it, a major obstacle because of democratic deficit, as he describes it, can he please explain to the Committee why Clause 20(3) would give an express power to Ministers to make regulations which would provide for a role for the court of justice? Surely that is inconsistent with what he just said.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for raising the point. The Government have always anticipated that the United Kingdom courts will be the final arbiter. The clause to which the noble Lord just referred your Lordships provides for the creation of a reference mechanism, but United Kingdom law would ultimately prevail.

The noble Baroness, Lady Ritchie of Downpatrick, addressed us on Amendments 42 and 43A. I argue that those proposed new clauses are in some respects unnecessary and in some aspects of their drafting inappropriate. Article 14(b) of the protocol already requires the specialised committee to

“examine proposals concerning the implementation and application of this Protocol from the North-South Ministerial Council and North-South Implementation bodies set up under the 1998 Agreement”.

That is an appropriate and valuable role. We submit that, by contrast, the noble Baroness’s amendments would create a statutory obligation for the United Kingdom to support

“proposals relating to the regulation of goods made by the North/South Ministerial Council and other North-South implementation bodies”.

That would cede control over the United Kingdom Government’s stance in the joint committee to a council in which the Irish Government sit. We consider that that would be inappropriate. The Government already ensure that representatives from the Northern Ireland Executive, as I said, are invited to meetings of the joint committee which discusses specific Northern Ireland matters, and which is attended also by the Government of Ireland. Therefore, we submit that there is already ample opportunity for representations to be made at the joint committee from both north and south.

We submit that the aspects of new clauses obliging the Government to lay reports before Parliament are also unnecessary. The Government have committed already to lay Written Ministerial Statements in Parliament before and after each meeting of the joint committee, and already do so. We also provide explanatory memoranda on matters to be discussed at joint committee meetings.

There is a more fundamental objection yet. The Bill is designed to restore the balance across all three strands of the Belfast/Good Friday agreement. The analogy with the milking stool has already been made: the three legs are of equal importance. To further empower the north-south dimension to the comparative detriment of the east-west dimension, as the amendment would do, will, we submit, exacerbate the problems facing Northern Ireland and undermine that delicate balance of the Belfast/Good Friday agreement. In that spirit, I urge the noble Baroness to not move her amendments.

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[Lord Judge (CB)]

My Lords, I keep hearing the words “democratic accountability” and then I look at the Bill and I cannot find any. We have listened as Clauses 4 to 21 have been debated in this Chamber. If we add those clauses together, we have a lamentable lack of democratic accountability. I expect it will be said, “Ah well, as always, the House of Commons can reject any regulations” and so on; and, “We have a long history of how there are 16 different ways in which the regulation-making powers can be exercised.” To that, I will say: but they have not exercised that power since 1979. This is not democratic accountability; this is quite extraordinary legislation, passing huge amounts of power into the hands of the Executive. Others have spoken. Clause 18 creates tertiary power—guidance—which is not quite a regulation of the sort we are talking about but can create matters that require compelling attention from those who have to abide by the guidance.

Let me just look at Clause 22(1), because it makes what has gone so far rather trivial. It states:

“Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”


I then add the words “and any regulations made under it”, because that follows. What it means is that the Bill, having been successfully enacted, could be dismantled by the Government two weeks later. It could be dismantled by a Government three years from now or by a Government 10 years from now. It could restore the very thing that the Bill says it is trying to get rid of—all in the hands of a Minister making regulations under the Act. That is not Henry VIII. I have lost count; I have tried to add it up in different ways. Is it Henry VIII plus Henry VIII for Clauses 4 and 5? That comes to about Clause 79. It cannot be. Is it Henry LXIV, because it is Henry VIII squared? This is an extraordinary power when the Bill is already riddled with Henry VIII powers. I am not jesting about this. The Bill provides for its restoration at any time that the Government of the day choose, or any part of it, or some of it along with other legislation. That is not how we should legislate. Should we not be ashamed of ourselves?

Parliament gave Henry VIII the power to bastardise his first and second children, to say that he was the Pope in England and that he was God’s messenger on earth, to decide the succession, and to say that the monasteries should all come down—the widest act of criminal damage this country has ever seen. Then he produced a Bill giving him the power, by proclamations, to create new laws. I shall not read it all out. What did the successor to that Parliament do? It said no. There was a battle, but in the end that power had this proviso to it put in by the Commons:

“nor that, by any proclamation … any acts, common laws (standing at this present time in strength and force) nor yet any lawful or laudable customs of this realm … shall be infringed, broken or subverted, and specially all those acts standing this hour in force which have been made in the King’s Highness’s time”.

He was not allowed to modify an Act of Parliament by proclamation.

We do not have proclamations anymore; we have statutory instruments. We have regulation-making powers that amount to a modern form of proclamation. We must not agree to clauses of this kind in any Bill. Those that we have agreed to—shame on us. We must not agree to this one. We must insist on the determination and, in its case, the courage shown by the 1539 Parliament not to give the King the powers he wanted. We must not give the Government the power they want in this clause.

[Lord Pannick (CB)]

My Lords, as we go through this Committee, we are discussing clauses that confound constitutional principle in ever more astonishing ways. I entirely agree with what was just said by the noble and learned Lord, Lord Judge. It is quite extraordinary that we should be asked to approve a clause that would confer power on a Minister to make by regulations

“any provision … including provision modifying this Act”.

The Committee has heard a number of powerful speeches over its four days explaining why it is wasting parliamentary time in analysing the Bill when it is a sideshow to the need to resolve the dispute with the EU. Whatever view you take about that issue, what is a manifest waste of time is for this Committee, and for Parliament on Report, at Third Reading and in the House of Commons on ping-pong if it comes to that, to debate, amend and approve legislation after lengthy debate, only for Ministers to have the power to say, “I don’t care about that. Parliament might have agreed it, but I’m going to set it aside. I’m going to substitute something else.” What is the point of parliamentary debate if that is what a Minister can do?

Indeed, such is the breadth of this provision that a Minister would have a power to substitute in the Bill something that he or she approves of that has been specifically rejected by Parliament. Parliament might have passed an amendment against the views of the Government, yet, under this clause, as the noble and learned Lord, Lord Judge, said, two weeks or three years later the Minister can say, “That may be what Parliament has done, but I’m going to insert something different”. As the noble and learned Lord said, we really have to take a stand. This cannot be right in principle and it cannot be acceptable to Parliament.

[Baroness Butler-Sloss (CB)]

I want to add to the two speeches that have just been given, with every word of which I agree. The Minister may say that we are being hypocritical, as was said earlier, because there have been earlier Bills where we have allowed Henry VIII clauses; but I have been in this House since 2006 and in my time I have never seen a Bill anything like this one, with enhanced Henry VIII powers—or Henry LXIV powers. To my knowledge, in my time we have never had a Bill that has gone so far beyond what one might almost call the “normal” Henry VIII clauses. I entirely agree with what the noble and learned Lord and the noble Lord, Lord Pannick, said. It really is time that the Government stand back and ask, “Is this actually reasonable? What is it that we are trying to do?” It is utterly unacceptable.

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[Lord Pannick (CB)]

Perhaps I could invite the noble Lord, when he writes to the noble and learned Lord, Lord Judge, to explain why it is appropriate for Ministers to have the power to make regulations to modify this very Act. Can he specifically address how Clause 22(1) fits with the clause mentioned by the noble Lord, Lord Dodds, Clause 22(3), which contains the express exception:

“Regulations … may not create or facilitate border arrangements”?


Yet, as I understand this Bill, Ministers under Clause 22(1) could simply disapply Clause 22(3). It would be completely otiose. What is the point of having a restriction in the Bill that a Minister, by regulation, could simply disapply?

[Lord Ahmad of Wimbledon (Con)]

I shall of course cover the specific point the noble Lord has highlighted, as well. I appreciate that it is for the Government to make the case on the specific provision contained in the Bill to ensure that we can, as far as possible, satisfy the issues and the questions being raised.

Clause 22 sets out the general scope and nature of the powers contained in the Bill. This will ensure the powers have the appropriate scope to implement the aims of the Bill. The clause sets out that regulations made under the defined purpose of the powers in this Bill can make any provision—this was a point noble Lords made—for that purpose that could be made by an Act of Parliament. This includes amending the Bill, as the noble Lord has just pointed out, or making retrospective provision.

As the noble Lord, Lord Dodds, said, the clause confirms that regulations under this Bill may not create or facilitate border arrangements between Northern Ireland and the Republic of Ireland that feature, at the border, either physical infrastructure or checks and controls that did not exist before exit day.

Subsection (6) provides that a Minister can facilitate other powers under this Bill to be exercisable exclusively, concurrently or jointly with devolved Administrations. The noble Lord, Lord Pannick, raised a specific point just now, which does require clarification on two elements within the clause. I will make sure that they are covered.

A concern was raised about the ability of the Government to work with the devolved Administrations. As I said on an earlier group, the former Foreign Secretary wrote to the devolved Administrations and we are engaging with them on the implementation and provisions of this Bill. It is the Government’s view that these new powers are necessary to make the regime work smoothly and to provide certainty to businesses.

While recommending in Committee that this clause stand part of the Bill, I recognise that, while we share moments of humour in Committee, it is right that these detailed concerns were tabled in the way they were. This allows the Government—