Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

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


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.

[Lord Purvis of Tweed (LD)]

My Lords, I want to rise very briefly in support of these amendments and also to say that my noble friend Lady Ludford made an extremely clear and very good case. I just want to add three very brief points.

The first is that I refer the noble Lord, Lord Dodds, to Hansard in 2019 and my contributions, among others from these Benches. We debated these issues and highlighted them, and he knows that. I am sure this evening it is just rhetoric in our Committee. He knows we have raised the concerns that he just outlined now. They are why we opposed it. So I do not think he can present that fact towards these Benches.

The second is that in my view Article 2 of the protocol should not be seen in a static form. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights … results from its withdrawal from the Union”.


This is a permanent agreement, a permanent commitment, and therefore it cannot be seen that those that were in place in 2019 are now kept in aspic. So my noble friend is absolutely right that if you are taking away what is case law and when those rights and freedoms protected by Annexe 1 powers are adapted, unless they are dynamic, there is a diminution of those rights, by definition. The Bill proposes retaining them in aspic. The noble Baroness, Lady Ritchie, is absolutely right to highlight the fact that those Article 2 rights need to continue to be dynamic.

I know the hour is late, but I want to remind the noble Lord, Lord Bew, and others of Northern Ireland Protocol Bill: UK Government Legal Position, which is the founding basis upon which this Bill has been brought for our consideration. The final sentence of the penultimate paragraph is:

“The UK urges EU Member States to provide a new negotiating mandate to the Commission, wide enough to change the terms of the Protocol to respond to the full range of issues addressed by this legislation.”


So far, I have not heard a squeak from any Minister saying that the position of the Government is still that there should be a new negotiating mandate from the Commission to EU member states. I have not heard that; I am willing to be intervened on, or, if not, I want to hear from the Minister whether that is still the position. That was the legal position of the Government: that they are seeking a new negotiating mandate from the Commission. It is there in black and white, but I have not heard whether that remains the same. When it comes to putting faith in the negotiations, what is the basis of these negotiations if the Government’s legal position is that there has to be a new mandate and that is not forthcoming?

--- Later in debate ---

[Lord Caine (Con)]

My Lords, as ever, I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, for her amendments, which have provoked a wide-ranging debate at this late hour. I put on record my acknowledgment of her forthright defence of human rights in Northern Ireland over very many decades.

I note that some of the amendments that have been debated this evening follow on from briefings and comments made by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which are important institutions that were established under the 1998 agreement and were set out in the Northern Ireland Act 1998. They perform a hugely important function, as noble Lords have pointed out, as part of the dedicated mechanism under Article 2 of the protocol. I do not think there is any difference between us on that point.

I therefore reaffirm at the outset that the Government are committed to Article 2 and to ensuring that rights and equality protections continue to be upheld in Northern Ireland. If noble Lords will forgive me, I think I have long enough experience in Northern Ireland itself to understand the importance of those protections. That is why Article 2 is explicitly protected from being made an excluded provision by Clause 15 in the Bill. To be clear, the Government will not do anything to undermine the provisions of Article 2. We believe that the Bill gives us all the powers we need to ensure that we can protect it. The noble Baroness’s amendments therefore seek to address problems that we do not envisage arising from the Bill.

I could go into great detail now but, given the lateness of the hour, I will say that we will continue to look at these issues as we consider plans for secondary legislation under the Bill. We will be particularly mindful of any interactions with Article 2, given the interest of the Committee. In that spirit, I look forward to receiving the detailed questions from the noble Baroness in writing. Of course, I give her an undertaking that we will provide her with very detailed responses, which will be placed in the Library well in advance of Report so that noble Lords have a chance to consider them.

On the noble Baroness’s specific question, Article 2 is not excluded and cannot be. Section 7A of the European Union (Withdrawal) Act 2018 will always apply. None of the provisions that the noble Baroness mentioned ceases to apply to Article 2 under this Bill, including Article 13(3), the arbitration provisions, Article 5 of the withdrawal agreement and Section 7C of the European Union (Withdrawal) Act. As I say, I am happy to put this down in much more detail in writing so that all noble Lords will have a chance to consider the responses.

On the point made by the noble Lord, Lord Purvis of Tweed, regarding the EU negotiating mandate, I am happy to confirm that the Government are still engaging with the EU in talks, and we are clear that movement from the EU is needed that goes beyond its 2020-21 proposals. We need to be able to make changes to the protocol.

To conclude—

[Lord Purvis of Tweed (LD)]

I know that it is late; it is very kind of the Minister to give way. Just so we are crystal clear, that means that we have formally sought EU member states to seek a new mandate from the Commission.

[Lord Caine (Con)]

I am sure that the noble Lord will forgive me if I do not give a running commentary on the negotiations. I have set out the Government’s position, and I do not really want to be drawn beyond it.