Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

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

My Lords, I begin by expressing my appreciation for the very large number of thoughtful and informed contributions we have heard during this debate. It has been an honour to have heard it and now to become a part of it. It has grappled with not only the grave political and constitutional matters before us but has cited the Marquess of Salisbury, by my noble friend Lady Nicholson, Montesquieu and The Spirit of the Laws by the noble Lord, Lord Morrow, Shakespeare’s “The Merchant of Venice” by my noble friend Lord Moylan and that peerless advocate and exemplary parliamentarian Sir Edward Carson by the noble Baroness, Lady Hoey. The debate also heard the expression “Piss off” used by the noble Lord, Lord Russell of Liverpool, which I had perhaps not anticipated hearing in a debate in your Lordships’ House.

On behalf of the whole House, I am sure, I echo the words of the noble Lord, Lord Rogan, and others on the loss to our counsels constituted by the death of Lord Trimble. I also echo his comments on the loss to Lord Trimble’s community, the whole of Northern Ireland and his family.

Before I turn to the points raised by various noble Lords, I will briefly restate the reasons for introducing the Bill. The Northern Ireland protocol was agreed with the best of intentions, to ensure that the Belfast/Good Friday agreement was protected in all its dimensions as the United Kingdom left the European Union. The departure of the United Kingdom from the European Union is, as the noble Baroness, Lady Fox of Buckley, put it so trenchantly, a UK matter. It is not to be balkanised in terms of how it played out in London, Northern Ireland, Scotland or Wales. It is a United Kingdom matter.

But in its practical operation, the protocol is causing practical problems for people and businesses in Northern Ireland, including disruption and diversion to east-west trade. That disruption is present in the rest of the United Kingdom and it is causing significant costs and bureaucracy for businesses and traders.

Moreover, political life in Northern Ireland is, as your Lordships have heard on numerous occasions, built on compromise and power sharing across communities. However, as noble Lords have also heard, the protocol does not have the support of all communities in Northern Ireland. The noble Lord, Lord Dodds of Duncairn, was but the first to explore this point. As a result, we are seeing political and social stress in Northern Ireland, including the non-functioning of the Northern Ireland Executive and Assembly. It is clear that the protocol is putting strain on the delicate balance inherent in the Belfast/Good Friday agreement.

It remains the Government’s preference to reach a negotiated agreement on the protocol. I could not associate myself more with the comments from all sides of your Lordships’ House—the noble Lords, Lord Triesman and Lord Bach, on the Benches opposite, the noble Baroness, Lady Wheatcroft, and my noble friend Lord Tugendhat—on the importance of negotiation and the hopes the Government have that it will ultimately bear fruit. My right honourable friend the Foreign Secretary has reiterated this. He and Vice-President Maroš Šefčovič have agreed that officials should meet to discuss technical solutions. The Bill contains provisions to implement any future negotiated agreement with the European Union. I can give an assurance at this stage to my noble friend Lord Frost that we are clear that negotiations must be able to address the full range of serious issues caused by the protocol. The Bill is set up to enable us to do precisely that.

In answer to a point raised quite early in the debate by the noble Lord, Lord Ricketts, our EU partners and friends are aware of this Bill. They are aware that negotiations continue and recognise that there are problems to resolve.

My noble friend Lord Forsyth of Drumlean spoke early in the debate about the manner in which the protocol has been operated. I will revert to that point when I discuss, at a level I think appropriate to Second Reading, the implications of the Government’s stance for international law. However, I must stress to your Lordships’ House that the problems created by the protocol are urgent and require swift action. The Taoiseach, the Irish Premier, said publicly last week that the protocol as it was originally designed was a little too strict. These problems are of long standing and we now seek to address them. But while we engage in dialogue with the European Union, we must also ensure that we have covered all bases and that the United Kingdom Government have the ability to implement durable solutions in any scenario.

I now propose to turn to some of the specific themes and questions raised in this evening’s debate. I do that against the undertaking that if I should fail to refer specifically to the contributions of any of your Lordships or fail to give consideration to any of your Lordships’ arguments proper to this stage of Second Reading, I am happy to engage with your Lordships in writing or in person in the corridors of this place, or for that matter, elsewhere.

The matter that featured most strongly in your Lordships’ deliberations today arose out of the matter of international law and the argument from necessity. The Government have already published a statement of their legal position on the Bill and their position is that it is lawful and necessary. The noble Lord, Lord Birt, from the Cross Benches and my noble friend Lord Kirkhope of Harrogate seemed to suggest to your Lordships that the voice of the legal profession was as one in saying that this was not the case. That is not so. The Government have a worked-out position in international law and there is no reason why we should not take it forward.

The United Kingdom exercised its sovereign choice to leave the European Union single market and customs union. I discern that that course was not universally approved by your Lordships’ House. But the peril that has emerged was not inherent in the protocol’s provision. As to the universal opposition, which some of the contributors to this debate seemed to throw up, it is in the nature of law that it is often adversarial. It is in the nature of law that parties will have different approaches, just as it is in the nature of sincere friendship that sincere friends will often disagree, even on the most fundamental matters.

The strain that the arrangements under the protocol are placing on political institutions in Northern Ireland, and more generally on socio-political conditions, will leave the Government with no option but to take action if they cannot reach a negotiated solution with the European Union.

I listened with great interest to the comments as to law made not only by the many distinguished lawyers on the Benches of this place but from lay people concerned about the implications of the step that the Government were proposing to take. Opening for the Opposition from the Front Bench, the noble Baroness, Lady Chapman, began more correctly—or less wrongly—by saying that it was “likely” that this would amount to a breach of international law. Then she recovered the party line and said that it did breach international law. The curiosity was that I think that the lay people contributing to this debate about international law were, in fact, nearer to the truth than distinguished commentators such as the noble Lord, Lord Pannick, or my noble friend Lord Howard of Lympne, because the fact of the matter is that it is not possible—

[Lord Purvis of Tweed (LD)]

I do not want that honour.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord and will revert to him in due course. It is not possible to equiparate international law with domestic law. There is simply not enough of it and it is too dependent on facts and circumstances which will not apply from case to case to come up with a precedent which would allow noble Lords who have spoken in these terms to speak with such certainty.

Should I address the noble Lord, Lord Purvis of Tweed, at this stage? At an early stage in these proceedings, he spoke about the nature of the plea to necessity. I say again that it is very different from the interpretation of a domestic statute. Of course in international law there are similarities with domestic legislation, and of course in international law, often being a matter of paction, there are similarities with the law of contract. But it cannot be equiparated with, to use a metaphor that emerged from the Cross Benches, a contract for the sale of sausages. It is too complex and too fact-specific. That point was continued by the noble Baroness, Lady Suttie, my noble friends Lady McIntosh of Pickering, Lady Altmann and Lord Kirkhope of Harrogate, my noble and learned friend Lord Garnier—I am sure that I have missed others out; as I said, my undertaking is to engage with your Lordships to assist them in moving this forward—and, I decipher from my scrawl, the noble Lord, Lord McDonald of Salford, speaking from the Cross Benches. The assertion that the Government’s position breaches international law is too bold and lacking in nuance. I submit that we are entitled to proceed on the basis that we anticipate that the protocol will be operated in a manner that reflects the unique and serious circumstances against which it was drawn up.

The doctrine of necessity was approached by the noble Baroness, Lady Crawley, and my noble friend Lord Hannay of Chiswick in particular, who equiparated—if I misattribute this to my noble friend, I apologise to him and will happily correct it—invocation of the doctrine of necessity with the law of President Putin. Far from it: there is authority for the existence of a defence of necessity dating back at least to the early 19th century. It was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube. It formed part of the International Law Commission’s articles on state responsibility, drawn up in 2001, as the Government’s statement on their legal position notes. In 1995, the Government of Canada justified steps taken to protect the Grand Banks fisheries on the basis that it was necessary to do so. If fisheries in the Atlantic are important, how much more so is the extension of democratic rights across the whole of this United Kingdom?

Invoking the doctrine of necessity does not repudiate international law or the international rules-based order. It is part of the international rules-based order. The noble Baroness, Lady Kennedy of The Shaws, my noble and learned friend Lord Clarke of Nottingham, the noble Lord, Lord Bach, and my noble friend Lord Tugendhat stated that the Government were undermining the rule of law and that this constituted a flagrant breach of the rule of law. Again, by invoking the doctrine of necessity, we operate within the framework of international law and—

[Lord Howard of Lympne (Con)]

Is not my noble and learned friend rather missing the point? None of us has suggested that the doctrine of necessity plays no part in international law. What we are saying is that it is not justified by the Government’s approach in this particular instance.

[Lord Stewart of Dirleton (Con)]

I respond to my noble friend by saying that the assertions that it breaches international law simply cannot be determined at this point because it is a matter of exploring the complex background of facts and circumstances, including the manner in which the protocol has been operated.

[Lord Thomas of Gresford (LD)]

Can the Minister define in a few words what the necessity is in this particular instance?

[Lord Stewart of Dirleton (Con)]

My Lords, I think it would be wrong of me at this stage in the Second Reading to engage in a deeper debate. I refer the noble Lord to the terms of the legal statement issued by the Government.

On the diminution of rights which were raised among your Lordships, I return to the point raised by my noble friend Lord Moylan and indeed by other Members of your Lordships’ House from Northern Ireland: what are we to say of the diminution of rights which strips from citizens of this country the right to make laws? Must we not look to that? At present, the circumstances of Northern Ireland strip our fellow countrymen of that right.

[Baroness Altmann (Con)]

My Lords—

[Lord Stewart of Dirleton (Con)]

I will not give way at this stage.

An argument which was deployed by some of your Lordships, beginning with the noble Lord, Lord Ricketts, and continued by my noble friend Lord Northbrook, was that by these steps the Government are damaging the trust in the United Kingdom among its international partners. There is no reason why this legislation should damage trust among our international partners. The Government want to move past issues with the protocol and focus on the key global challenges, such as those emanating from the current Government of Russia. As regards this country’s standing in the world at large, people furth of this country will look to the unhesitating support offered by this country to a democratic state imperilled by an aggressive neighbour and take that as the badge and measure of this country’s approach.

[Baroness O’Loan (CB)]

My Lords—

[Lord Stewart of Dirleton (Con)]

My Lords, again, with the utmost respect, I decline to give way to the noble Baroness. She has my assurance that I will engage with her.

[Lord Purvis of Tweed (LD)]

The point is to answer noble Lords.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord; I will not give way.

It remains the Government’s preference to reach a negotiated agreement on the protocol, and further discussions are now under way with our European Union counterparts with the aim of identifying shared solutions. I can give my noble friend Lady McIntosh of Pickering repeated assurance of the importance of negotiation. We will continue to work closely with the European Union on the crisis of Ukraine, as we will with the United States and with all friendly powers and democracies throughout the world. We have always said that we want to fix the problems created by the protocol, in part so that we can focus our full collective energy on global challenges such as these.

The point was taken up at various points during the debate that the Bill threatens Northern Ireland access to Ireland and to the wider European Union single market. I stand before your Lordships in place of my noble friend Lord Caine, who I feel is far better equipped to answer these questions, drawing on his extensive experience of affairs in Northern Ireland. Again, he will undertake to engage with noble Lords on that point. Any perception of risk posed to the EU single market can be managed through market surveillance activities delivered by relevant United Kingdom bodies which will continue to prevent, deter and remove non-compliant and unsafe activity to protect the consumers of both the United Kingdom and EU markets. Market surveillance will follow the risk-based and intelligence-led approach as it does at present. As we have said all long, our preference is for a negotiated solution, and we stand ready to discuss appropriate assurances with the European Union.

The noble Baronesses, Lady Ritchie of Downpatrick, Lady Doocey and Lady Ludford, and the noble Lord, Lord Browne of Belmont, raised matters specific to agribusiness and dairy farming in particular. Again, I offer the House assurance that negotiations continue.

I am grateful to my noble friend Lord Frost for his account of the current economic situation and his summary of the historical situation in 2009 which my noble friend Lord Hannan of Kingsclere joined with his customary brio and, in the process, released a cat among the Liberal Democrat pigeons. I am also grateful to the noble Baroness, Lady Fox, whom I took to adopt the historical summary which my noble friend Lord Frost advanced.

I come next to the noble Lord, Lord Purvis of Tweed, who again very early in the debate raised the important point of an impact assessment. As the noble Lord pointed out, the Bill does not have an impact assessment. The full details of the new regime will be set out in regulations alongside and under the Bill, including economic impacts where appropriate.

Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime to ensure that it is as smooth and as operable as possible. The Government are getting on with that task now.

The noble Lord, Lord Russell of Liverpool, seemed to invoke the concept of historical inevitability in his contribution towards the end of the debate. I am no Marxist but I am by no means clear that his exercise in foresight in relation to society in Northern Ireland will prove to be accurate.

A matter of grave and, if I may say, fully appropriate interest to your Lordships is that of the breadth of the Henry VIII powers. The noble Lord, Lord Bruce of Bennachie, my noble friend Lord Northbrook, the noble Baroness, Lady Ritchie of Downpatrick, once again, my noble and learned friend Lord Garnier, and the noble Baroness, Lady Meacher, in particular, raised these matters, and I apologise to other noble Lords whom I have not mentioned by name.

The Bill provides specific powers to make new law where we are disapplying the EU regime and where such law is appropriate to make the Bill’s regime work. These powers are restricted. They can be used only in connection with certain provisions and subject matter of the protocol, for example changing valued added tax rules in Northern Ireland.

It is important to emphasise that we are engaged in negotiations. We are not, as the noble Lord, Lord Kerr of Kinlochard, said, engaging in blackmail; nor are negotiations, as the noble Lord, Lord Thomas of Gresford, said, engaged in attempting to bully the European Union; and nor, as my noble friend Lady Altmann suggested, have we by this proposal become an elected dictatorship.

These provisions are necessary. They allow the Government to act as quickly as possible to deliver new policy arrangements, for example to introduce the green and red lane for traders. Since the Bill was introduced in June this year, the Government have consulted extensively. There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.

I am being warned once again: noble Lords will doubtless be glad to see the back of me. The steps which we are taking are necessary to reflect the unique and dynamic situation in which the Bill passed in the other place.

In conclusion—

[Noble Lords]

Hear hear.

[Lord Stewart of Dirleton (Con)]

The Government have not triggered Article 16—from early in the debate, I note my noble friend Lord Howard of Lympne. The position is that it would not solve the radical, fundamental problems with the protocol. It would treat only some symptoms without fixing those root causes. As my noble friend Lord Moylan explained to your Lordships, the problem lies in the protocol and not in its application.

[Noble Lords]

Well done.

[Lord Stewart of Dirleton (Con)]

It would appear that I am losing the House’s patience.

The Bill allows the Government to implement lasting and durable solutions to the existing problems with the Northern Ireland protocol. While we remain committed to exploring shared solutions with the European Union, it is critical that we retain the ability to take action on the very real and urgent problems inherent in the protocol. I hope that noble Lords will recognise this and act in the best interests of the people of Northern Ireland by voting with the Government for the Bill. I am obliged to your Lordships.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[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—

[Lord Cormack (Con)]

Yes, you did.

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend. I was left by some of the strictures and anticipations of my point from noble Lords looking for synonyms for the words “long-standing convention”. However, in light of having been criticised for going on a bit long and the hour, I will confine myself to repeating—or rehearsing—the point noble Lords anticipated I would make.

It is a long-standing government policy and convention accepted by Governments of all parties not to comment on legal advice provided to the Government. A number of noble Lords who have been present in this debate or at Second Reading will understand personally the importance of that, having acted as internal or external counsel to His Majesty’s Government.

I was asked by the noble Lord, Lord Pannick, about the protocol and its place in relation to the Belfast/Good Friday agreement. The protocol puts that agreement at the forefront; the problem is that, in its implementation, it is undermining it.

[Lord Hannay of Chiswick (CB)]

The Advocate-General has just given the totally conventional response about the Government not publishing their legal advice. In that case, why did the Government publish a four-page document in the summer setting out their legal advice?

[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.

[Baroness McIntosh of Pickering (Con)]

I listened very carefully to what my noble and learned friend said, but the situation remains the same today, as the noble Lord, Lord Pannick, set out, as it was on the day that the Government claimed to have an “oven-ready deal”—I think those were the words—of which the protocol was an integral part. It is a cornerstone of the EU Withdrawal Agreement and, as the noble Lord, Lord Pannick, has stated, the remedy is in the protocol. So it is very unfair for the Members on the DUP Benches to be put in this position, but that is the position that was sold to both Houses.

[Lord Stewart of Dirleton (Con)]

My Lords, I beg respectfully to differ from my noble friend. The situation is not the same, because in the intervening period between the announcements to which my noble friend refers, and today, these problems about implementation have arisen; so the situation is not the same, and we simply cannot go back to reference the text of the argument.

[Baroness Chapman of Darlington (Lab)]

I have noticed the emphasis that the Minister has placed twice now on the word “implementation”, and I want to understand precisely where he views the problems with the protocol to lie now, because the Bill that he is supporting deals with the problems in a far more fundamental way than just looking at implementation and practicalities.

[Lord Stewart of Dirleton (Con)]

I am referring to implementation in terms of the manner in which these problems have arisen: the problems that have led to the difficulties with which the House is currently grappling, such as the suspension of institutions and the democratic deficit. I think the noble Baroness wishes to speak.

[Baroness Chapman of Darlington (Lab)]

I was muttering to myself, actually. Those are not problems of implementation of the protocol, those are issues that underlie the protocol; I am just trying to understand exactly what the Government see as the problem, because unless we do that in a fuller way than he is perhaps leading towards, we will not have a clear idea of what the Government are recommending the solution to be.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Baroness for her intervention, and I hope I will be able to, if not clear it up directly, refer the noble Baroness to the statements in the Order Paper. Perhaps I may say, in relation to the amendments with which we are currently engaged in relation to publication of the Government’s legal advice, that it may well be—and I think I made the same observation to my noble friend Lady Altmann—that these points might be dealt with better in relation to later groups which will address the question of the protocol and the amendments which the Government propose. I give way to the noble Lord.

[Lord Purvis of Tweed (LD)]

The noble and learned Lord has just told the Committee that the problem is with the implementation of the protocol. In his Second Reading winding speech he said that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

So, which is it?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, the problems with which we are grappling lie in the implementation of the protocol: I think the protocol has given a basis upon which these implementations may be made.

[Lord Purvis of Tweed (LD)]

Is this the noble and learned Lord correcting the record now from his Second Reading speech? I am quoting directly from Hansard that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

But he is telling the Committee today that it is in its application.

[Lord Stewart of Dirleton (Con)]

The noble Lord promised at the very outset of Committee, when he opened the earlier debate, that this inconsistency would be pounced upon, and he has returned to the point. My answer to him is that the implementation has given rise to the difficulties we now face, and that the protocol has permitted that implementation to take place.

[Baroness Altmann (Con)]

Could I ask my noble and learned friend to amplify what it is in the way that the protocol is working that was not anticipated? The role of the European court was always enshrined in the protocol, so I am struggling to understand what has suddenly changed to require this unilateral action to get rid of the CJEU, rather than using the mechanisms within the protocol.

[Lord Stewart of Dirleton (Con)]

My Lords, the diversion of trade and the effects upon the confidence of the unionist community in their membership of the United Kingdom have given rise to the difficulties we now face.

As I was saying before dealing with that spate of interruptions from noble Lords, it has become apparent that one of the communities—I remind your Lordships of the importance of the concept of consent in the Belfast/Good Friday agreement—has recognised that the CJEU is a part of the problem, as unionist parties have cited the CJEU as a key driver of a major democratic deficit. The Bill therefore seeks to ensure that Great Britain and Northern Ireland courts will have the final say over the laws that affect their citizens. It will permit a referral mechanism to the Court of Justice of the European Union, recognising legitimate EU interests and supporting north-south trade. We consider this to be a reasonable step which places the matter in line with normal dispute resolution provisions in international treaties.

[Lord Purvis of Tweed (LD)]

On that point, would the Minister be able to cite any other agreement the UK has signed where the dispute resolution mechanism affords the UK the ability to bring forward unilateral legislative solutions which are contrary to the agreement we had signed? What other examples can he cite?

[Lord Stewart of Dirleton (Con)]

My Lords, that question brings me on to dealing with the terms of the argument in relation to Article 16, about which we have had some submissions from the noble Lord himself, the noble and learned Lord, Lord Judge, the noble Lord, Lord Dodds of Duncairn, and the noble Baroness, Lady Ludford. Triggering Article 16 would not solve the problems of the protocol. It would only treat some of the symptoms, without fixing the root causes of those problems. It has inherent limitations in terms of its scope. Such safeguard measures might address trade frictions but not the broader identified impacts of the protocol such as I have been founding upon. The legislation that the Government propose provides the comprehensive and durable solution required and certainty for businesses and the people of Northern Ireland.

[Lord Cormack (Con)]

I must confess that I am very troubled and puzzled. If the Government have decided that this is what they are going to do, that is incompatible with having proper negotiations. How can my noble and learned friend explain that?

[Lord Stewart of Dirleton (Con)]

My Lords, as your Lordships have heard from my noble friend Lord Ahmad of Wimbledon and the noble Lord, Lord Bew, this is not identified as an inconsistency by our counterparties in relation to this matter.

The Government’s legal position is that our legislation is necessary and justified, and we make that assertion without prejudice to our position in relation to Article 16—again, as your Lordships heard from my noble friend Lord Ahmad of Wimbledon earlier. Article 16 is expressly limited. It is the Government’s view that it would not solve all the societal and political issues identified, including those identified today in some of your Lordships’ contributions to the earlier debate, whereas the Bill provides a comprehensive solution to those problems.

The noble Lord, Lord Campbell of Pittenweem—who in another context is my learned friend—referred me to the examples I cited when winding up at Second Reading of cases which set out the doctrine of necessity. The Canadian fisheries case concerned the Convention on Cooperation in the Northwest Atlantic Fisheries, which was a treaty. The Hungary-Slovakia case to which I also referred was a dispute about an agreement between the two parties for navigation of a river and the construction of infrastructure. In any event, I think the answer to his point is that the concept of necessity and its application in these circumstances is admitted within the articles of state responsibility.

[Lord Purvis of Tweed (LD)]

I will refer to this in the next group, but the Minister might want to add a little extra with regards to the case he cited: the International Court of Justice threw out the Hungarian case on invocation of necessity. It said that

“Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it about.”

I think there are some similarities in what we are hearing now, but could the Minister confirm that the ICJ did not accept Hungary’s case?

[Lord Stewart of Dirleton (Con)]

My Lords, in any case, there will be parties that are disappointed to a greater extent than others. The point is that one party proposes. That party does not determine the question; the determination of that question falls to someone else.

In relation to the point made by my noble friend Lady Altmann, our preference for negotiation clearly remains. As the Committee has heard, that negotiation is not interrupted or affected by the Bill moving through your Lordships’ House.

[Baroness Ludford (LD)]

My Lords, the Minister said that the four-page document we saw in July was designed to assuage our concern. Unfortunately, it did not. In one sense, I am impressed that the Government are prepared to receive criticism of their legal assertions in that document from people of the stature of Sir Jonathan Jones, Professor Mark Elliott, the noble Lord, Lord Pannick, and my noble friend Lord Campbell of Pittenweem, and still say, “Well, the four-page document adequately sets out our case”. I am sort of impressed but also surprised that the Government are not provoked by the level and depth of that criticism to make a bit more of an effort.

One of my noble friends—I cannot remember which—highlighted the difference between the assertion made at Second Reading that the problem lies in the protocol and the emphasis this evening that the problem lies in its implementation. That would imply that there is no need to rip up the protocol, which is what the Bill is designed to achieve, and that negotiations or dispute resolution up to the ECJ would fit the bill as the problem is in the implementation. The Government keep switching their ground depending on, it seems to me, who most recently raised a point as to whether the real problem is the protocol or its implementation. The Minister said that invoking Article 16 would deal only with the symptoms not the protocol, but surely “symptoms” are the same thing as “implementation” in this context. Again, there is inconsistency here over whether the problem lies with the text of the protocol or its implementation.

The Minister rather confused me with his references to the CJEU being part of the problem. Again, that was known three years ago. The Government agreed and signed up to what the EU would not have otherwise agreed to—Northern Ireland being effectively part of the single market—without the CJEU being the ultimate arbiter of legal disputes. However, I have frankly never taken the point from the right that court adjudication creates a democratic deficit. We do not expect courts to be democratic. They are part of a liberal democracy but are not themselves supposed to be an epicentre of democracy. They rule on the application of the law.

I do not think that it says much for the Government’s knowledge, understanding, foresight or policies that they are now seeking to diverge from the single market, not least in the Bill—I cannot remember its full title; it is something like the revocation of retained law Bill, otherwise known as the Brexit freedoms Bill—that had its Second Reading in the other place today; I do not know whether that is still going on. Diverging from single market legislation makes the implementation of the protocol more difficult so there does not seem to be any coherence in the Government’s policy. They criticise the implementation of the protocol but are going to make that implementation more problematic; indeed, the noble Baroness, Lady Altmann, talked about how maintenance of regulatory alignment would help east-west trade. A UK return to the single market, if not the EU, would do so even more.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

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

My Lords, as we approach what I think will be the final series of amendments for discussion tonight, I am grateful to all noble Lords for their thoughtful and entirely well-intentioned contributions to this important debate.

Clause 1 summarises the effect of the Bill and gives vital clarity on how it will function. The noble and learned Lord, Lord Judge, was critical of its drafting—indeed, of its presence in the Bill itself. He may be right to be critical but there have been, and will always be, changes in the manner in which legislation is drafted; there certainly have been over the past few years. In a matter of this sort, it is perhaps important as a matter of perception, given the history to which some contributors among your Lordships have referred, that the Bill carries assurances in Clause 1.

The clause sets out that the Bill makes domestic provision in connection with the disapplication of specific areas of the Northern Ireland protocol that are causing problems. It also sets out that the Bill provides Ministers with powers in connection with the further disapplication of additional areas of the Northern Ireland protocol according to specific purposes, as well as powers to make new domestic arrangements. The clause also clarifies how other legislation, such as the important Acts of Union, is affected by the Bill. I recommend that the clause stands part of the Bill.

Clause 2 will underpin the essential functioning of the Bill by confirming that any part of the protocol or withdrawal agreement that has been excluded by the Bill’s provisions has no effect in domestic law. I think it is recognised around the Committee that, at this point, we are coming away from the preamble of Clause 1, as we might call it, into the heart of the Bill and what it intends to accomplish. I certainly took the noble Baroness, Lady Hoey, and the noble Lords, Lord Morrow and Lord Browne of Belmont, to understand that fully when they talked about ripping the heart out of this Bill through these proposed amendments.

The noble Baroness, Lady Hoey, and others, including the noble Baroness, Lady Chapman of Darlington, referred to the difficulties. I think that, wherever it stands on this Bill, the Committee is united on the fact that there are grave difficulties in Northern Ireland. I had the honour of briefly meeting the commercial director of McCulla Ireland on a visit to your Lordships’ House; I listened with great interest and concern to the matters raised by him.

The vital approach of these clauses is to amend the relevant provisions of the EU withdrawal Act that currently give domestic effect to the protocol and withdrawal agreement. This technical provision is, as noble Lords have recognised, vital for the Bill to function as, without it, there may be a lack of clarity as to which of the existing protocol and EU law regime, on the one hand, and the revised operation of the protocol, on the other, has effect. Where this Bill or its powers do not exclude a provision in the protocol or withdrawal agreement, that provision will continue to have effect via the EU withdrawal Act, as now. In answer to a point made in a debate on an earlier group, I emphasise that what the Government are proposing is not the ripping up of the protocol but directed action to those parts of the protocol that are not working. The Bill seeks to leave untouched the remainder of the protocol’s passages that are providing benefit, as was always intended to be the case. I therefore recommend that this clause stands part of the Bill.

Clause 3 supplements Clause 2 and will remove the requirement for courts to interpret relevant domestic law in line with the withdrawal agreement in so far as that would lead to an interpretation of domestic law that is incompatible with the Bill and any regulations made under it. This is done by the amendment of the relevant provision of the EU withdrawal Act, which currently requires courts to interpret relevant separation agreement law and domestic law consistently with the withdrawal agreement. Instead, it is made clear that no such interpretation should be made if this would be incompatible with provisions of the Bill or any regulations made under it. It is vital to provide certainty as to how the regime should operate, so I recommend that this clause stands part of the Bill.

We have had, I submit, a lengthy and important debate during this stage of the Bill. I seek noble Lords’ forbearance—

[Lord Purvis of Tweed (LD)]

My Lords—

[Lord Stewart of Dirleton (Con)]

I am coming to the noble Lord’s point. I am not proposing to wind up immediately. I acknowledge the importance of the debate we have heard. I pray for noble Lords’ forbearance if I do not respond to every point that has been canvassed specifically in relation to the doctrine of necessity, which we had a debate about in relation to the earlier group.

I anticipate what the noble Lord, Lord Purvis, is about to say. He put certain points to me in relation to the information that he had from the Library of your Lordships’ House. He cites the occasions on which the doctrine of necessity has been founded and outlines significant aspects of those cases to your Lordships’ House, but every legal case will stand on its own merits, and comparison of individual facts and circumstances does little to advance the argument as to the role of necessity in the unique circumstances with which your Lordships’ House is faced. Therefore, with the utmost respect to the noble Lord, the point he makes is of no value.

[Lord Purvis of Tweed (LD)]

I am grateful for the answer. I respectfully believe that my point had value, because if the Government are using precedent and customary law, it is relevant to highlight that it has never been successfully invoked, and it has never been even attempted to be invoked in the way that this Government are doing. Since we are approaching customary international law, it is worth having that on the record.

My specific question was whether the Government’s interpretation of invoking necessity can be permanent, or whether the Advocate-General believes that I am correct with the ICJ stating in clear terms on many occasions that invoking necessity can only be a temporary response of wrongfulness, for grave and imminent individual aspects, but the breach is still there. Or do the Government believe that using necessity can be permanent?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for canvassing that. Again, I accept that it is an important point, as are all those that have been made around your Lordships’ House today.

Not all principles of international law are tested before a court, and acceptance by the international community of a particular practice, or codification by relevant institutions, as in the articles on state responsibility, can provide very significant precedent. Necessity provides a justification for non-performance with specific terms of the protocol, for as long as the circumstances justifying necessity persist. That relates to the temporal point which the noble Lord makes. The relevant circumstances could last for a significant length of time, so it is not necessarily a short-term justification.

[Baroness McIntosh of Pickering (Con)]

I am grateful to have had the opportunity for this debate. I regret to conclude that, despite the affection, respect and regard that I have for my noble and learned friend, and the fact that we are both members of the Faculty of Advocates—albeit I am non-practising—the Government’s legal position remains confused and flawed. On my specific question, the Advocate-General said in a previous debate that the Government reserved the right to invoke Article 16 as the legal base but did not give us the basis on which they would seek to do that. That was regrettable.

I am grateful to all who have spoken, particularly from the Front Benches opposite. I thank the noble and learned Lord, Lord Judge, for responding to the points made by the noble Lord, Lord Bew, more adequately than I could possibly have done. To all those who have spoken from the Northern Irish perspective, the House is absolutely agreed that the protocol is not working. I have had briefs from the National Farmers’ Union, NFU Scotland, and the Food & Drink Federation, which would particularly like to see that matters regarding trade work as smoothly as possible, bearing in mind that the food industry is probably the largest manufacturing industry; it is larger than the car industry. It is a very big sector taken with food, farming and farm production.

So I regret that we have been put in this position and that the Government are wilfully seeking to breach an international agreement and public international law that they freely entered into. I do not intend to press this matter any further this evening, but I reserve the right to revert on Report.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, many of us are worried about the powers to regulate, but it is not just about democracy. I have time for the concerns expressed in the email that was just read out—of course I do. I just point out, however, that the situation that we are in that is so objectionable to the noble Lord’s colleague in Northern Ireland came about because of the actions, decisions and agreements made by their elected Government. Sometimes that is how it works, too. The problem that I have with the powers is not just the issues that we have heard expressed extremely well by those far more qualified to do so than I am; it is that we do not know what Ministers intend to do with those powers. There is a circumstance in which the gentleman who wrote the email might find himself doubly aggrieved, because we do not yet know what it is that Ministers will do to resolve the problem that the noble Lord has, or whether the actions of the Government in the future would actually be ones that would satisfy that grievance. That is where I am coming from. It is because there is a lack of clarity, and uncertainty; there is an option to negotiate that is not being taken. I am now repeating myself, and using yet another set of clauses to make exactly the same general points.

I am not going to repeat what has already been said, but I want to make a wider point about the approach to law-making that the Government are getting increasingly fond of. We see some extreme examples of it in this Bill. The noble Lord, Lord Purvis, when he introduced this set of amendments, said that he could not actually be clear about how Clause 14 would be used by the Government, because, in the words of the DPRRC, the memorandum has so little to say about this broadly worded power. Nothing is said about the sort of provision that could be made under it.

Clause 14 tells us—in case we did not know—that overriding parts of the protocol is going to require a whole host of consequential changes elsewhere, and that is what I will talk about this time when we are talking about powers. We have been here before. Noble Lords will remember that as we approached the end of the transition period, departments rushed to make various changes to the operability of retained EU law. In a worryingly high number of cases during that process, as I remember, the Government made mistakes and further, correcting regulations then needed to be brought forward. This exercise is no simpler than that. If anything—because this Bill is highly contentious and because of the wider context—it is even more complicated than that previous exercise.

We need to be mindful of how these things are going to work in practice. If the Government get their Bill, how is this really going to work? Have they actually considered this? Given the difficulties that the Government had with revoking things such as the duty to post reports to the European Commission, how confident can we really be that an as yet unclear policy direction can even be delivered in a way that is in any sense timely and accurate? That really will matter to the correspondent of the noble Lord opposite. What I am saying is, putting aside my dislike for the Bill, this is not a good way for us to be making law or for the Government to put their policy into practice.

Just imagine that this Clause 14 is available to Ministers —and I hope this does not happen, but suppose it did—can we have some kind of indication from the Minister of how long this process is going to take? How many SIs does he think are going to be needed; how will the Government sequence this workload? The lack of planning around some of this in previous endeavours has really caused problems, and we do not want to be in that place again. I still think this is a bad Bill in principle, but I am afraid that its implementation is likely to render it completely unworkable in practice.

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

My Lords, I thank all noble Lords who have participated in this debate, which was short because, as the noble Lord, Lord Purvis of Tweed, recognised in introducing it, much of the material has been covered before. Noble Lords will, I hope, forgive me if, brevitatis causa, I do not go over all the arguments already deployed and will accept, that, because they have not been deployed, we understand where they apply in the context of this clause, and will bear them in mind when considering our responses.

Amendment 22, in the name of the noble Lord, Lord Purvis, removes the power in Clause 14(4). Clause 14 prevents those necessarily more broad and conceptual provisions from being relied upon, in the different legal context that will prevail under the Bill, to undermine the legal regime that the Government are putting in place for traders. The power in Clause 14(4) is important because it will allow Ministers to ensure, subject to the appropriate parliamentary scrutiny, that the exclusions made under the Bill are coherent. It may, for example, be necessary to make alternative provision where any other provision of the withdrawal agreement or protocol so far as it applies or relates to those exclusions is excluded. It could also be used to provide clarity as to how the horizontal exclusions referred to in Clause 14(1) interact with other exclusions in domestic law.

The noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, sought examples of how it would work out in practice. I ask the Committee to bear in mind that the position in which we are at present is one of anticipation of what will be required in relation to a dynamic situation.

The powers to make secondary legislation allow us to flesh out the precise technical or administrative details of the new regime. The powers also need to be broad to ensure that the Bill can address issues that will arise in future as EU rules continue to change. The Government submit that the powers are both necessary for the legislation to be operable and have been appropriately limited prior to their implementation. As I said earlier, I do hear the criticism in relation to breadth offered by various noble Lords in the debate today and at other stages.

The noble Lord, Lord Browne of Belmont, made points reminding the Committee of the context in which the Government bring forward this legislation, and I am grateful to him for his qualified support. The points he made were no less powerful for having been made before, in the course of various debates we have had at earlier stages.

The noble Baroness, Lady Chapman of Darlington, from the Opposition Front Bench, refers to the way in which more and more laws appear to be being cast in this fashion, with more and more use of delegated powers. I invite the Committee to consider that, in the case of this Bill, the Government are seeking to legislate in such a vital area, as the noble Lord, Lord Browne of Belmont, reminds us.

The noble Baroness speaking from the Opposition Front Bench posed a number of technical questions. The questions she posed perhaps require an answer in more detail than I am able to give from the Dispatch Box, and perhaps than would be desirable to the whole Committee—but, if she will grant me forbearance, I will write to her.

I have not yet addressed the question of Clause 14 standing part of the Bill. It will support the coherent functioning of the Bill. It is important to ensure clarity in relation to the interaction between excluded provision and any wider provisions in the protocol or withdrawal agreement to which such provision relates. Subsection (1) gives effect to this by confirming that any provision of the protocol or withdrawal agreement is excluded provision to the extent that it would apply in relation to any other excluded provision. Subsections (2) and (3) set out further the kind of ancillary provision that may be excluded.

I discussed subsection (4) in addressing the amendment proposed by the noble Lord, Lord Purvis of Tweed, but I provide further assurance that the Bill seeks to establish a coherent domestic regime and that regulations can be made under it in connection with any provision of the protocol or withdrawal agreement to which this clause relates. The Government’s position is that the clause is important to insulate fully any excluded provision from being subject to obligations arising from other provisions of the protocol and withdrawal agreement.

I think I am following the mood of the Committee by not expressing myself in as much detail as my noble predecessor, my noble friend Lord Ahmad of Wimbledon —or Wimbledon of Ahmad, as he was prepared to style himself earlier—dealt in, but the Committee as a whole will recognise that this provision is tied up with its predecessor.

I hope that, at least at this stage, I have said enough to persuade noble Lords not to press their amendments.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Advocate-General and I will be brief. I welcome his offer to write to the noble Baroness and those who have taken part in the Committee. The extremely pertinent question that was asked about the Government’s estimate of the number of regulations under the Bill that may be necessary to bring about a new regime is really important, so it would be helpful if the Minister could include it in his response.

I found it very interesting when he said that part of the reason these powers needed to be so extensive was that they needed to be sufficiently flexible for the Government to bring forward regulations when the EU changes its rules. I do not know how that brings about a response to the democratic deficit. Under the dual regulatory regime that will be put in place, we will be in the almost farcical situation that whenever the EU changes any of its rules, Ministers will bring to this Chamber negative instruments that will then be nodded through. There may be a fig leaf because it has the Crown on top of it, but it is not necessarily meaningfully different as far as people having an input.

My final element is perhaps for the correspondent of the noble Lord, Lord Browne. I understand and appreciate the frustration, and perhaps our considerations in Committee are long and tedious, but I have the liberty of putting forward amendments. They may frustrate or bore Ministers, but I am lucky to have that liberty. We cannot do that with statutory instruments, which are unamendable, so we do not have the opportunity to ask questions, tease out, challenge and maybe get concessions or further clarifications. If that is the case for framing an entire new system, that is really problematic.

However, on the basis of the Minister’s welcome commitment to write, in the meantime I beg leave to withdraw.

Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we had a brief debate on matters relating to the European court last week, which largely focused on the earlier parts of the Bill. It is helpful to have this opportunity to deal with some of these issues in more detail.

The agreement reached with the EU on the status and role of the CJEU in relation to the protocol and other parts of the withdrawal agreement was carefully crafted and informed part of the oven-ready deal the Conservative Party was proud to call its own. There is some logic in what Clause 20 seeks to achieve. If the protocol no longer functions as intended, the legal processes cannot either, but that is only if one accepts that it is acceptable to tear up a binding international agreement in the first place.

The power for Ministers to introduce some form of referral process is interesting and a little surprising. It seems to contradict the earlier power in subsection (2). From a practical point of view, would not any referral scheme work only if the EU and European court agreed to engage in the process? Would this point not need to be negotiated?

There has been a wide-ranging debate on these issues, but it seems that there are some very practical consequences of trying to put into place a new referral process while at the same time needing to negotiate with the organisation one has just torn up a formal agreement with. How would that work in practice?

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

My Lords, I am grateful to noble Lords for their participation in this debate. I will first address Amendment 40 in the name of the noble Baroness, Lady Suttie. I am delighted to see her in her place and will do my utmost to address her points, as I turn to the first group.

The amendment would require a positive resolution of the Northern Ireland Assembly before the provisions of Clause 20 can be brought into force. I point out, and it is a matter that the whole Committee is seized of, that we need to see the restoration of the institutions as quickly as possible. It is because of the breakdown of those institutions that the Government consider that the Bill is needed.

Clause 20 engages a complex combination of the transferred, devolved and reserved matters relating to foreign affairs and the court systems of the United Kingdom’s three jurisdictions. It would not be appropriate for the Northern Ireland Assembly to constrain the UK Parliament’s power to legislate, even if that legislation relates to a reserved matter.

Clause 20 is a key part of the Bill. It addresses how we treat CJEU case law, principles, and references, including in relation to those parts of the protocol that we are excluding in domestic law. I will come back to this point, but to reiterate matters taken at earlier stages before your Lordships, this is not a ripping up or tearing up of the protocol, but a recognition that parts of the protocol are not working and parts are. We seek to retain those parts that are working and dispense with those that are not.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for giving way. Does he not agree that it would be much better to undertake such discussions through negotiations themselves to correct those parts of the protocol that may be causing concern at this moment in time?

[Lord Stewart of Dirleton (Con)]

I stress, not for the first time from the Dispatch Box by myself or my noble friends on the Front Bench, that the Government’s preference remains for a negotiated solution.

The Chamber and the other place have heard from representatives of the unionist community that the presence of the European Court of Justice in the protocol is at the heart of the democratic deficit issue. Absent the provisions of Clause 20, we could end up in an incoherent position whereby substantive provisions of the protocol are disapplied but new CJEU case law associated with those provisions continues to apply. For that reason, and the others I have outlined, I urge the noble Baroness to withdraw her amendment. I emphasise that bringing back the democratic institutions in Northern Ireland is the Government’s priority.

The noble Baroness, Lady Ritchie, my noble friend Lord Cormack and others raised the matter of engagement with Northern Ireland politicians. I look to the noble Lord, Lord Empey, as well, on this matter, and the noble Lord, Lord Dodds of Duncairn, touched upon it too in his submission to your Lordships at this stage. This is an important point. The Government have committed to ensuring that representatives of the Northern Ireland Executive are invited to be part of the United Kingdom delegation in meetings of the specialised and joint committees discussing Northern Ireland matters, which are also attended by the Irish Government. Also, when the Northern Ireland Executive was functioning, the then Foreign Secretary regularly met the First Minister and Deputy First Minister of Northern Ireland, along with the Secretary of State for Northern Ireland, to discuss the protocol.

However, to reiterate the principal point, the point which brings this Bill before your Lordships’ House, the institutions are not functioning, and precisely because of the protocol. We will continue to engage, but the protocol has made things that bit more difficult.

[Lord Purvis of Tweed (LD)]

The Advocate-General will have had the opportunity to reflect on a previous day in Committee, when concerns about the single electricity market were raised. A key component is EU law, which is not in question. How does the Advocate-General anticipate that the joint regulatory system operating under our approach and that of the EU can operate if EU law cannot be interpreted?

[Lord Stewart of Dirleton (Con)]

My Lords, interpretation of foreign law is a matter with which all three jurisdictions in the United Kingdom are familiar. With the noble Lord’s leave, because my remit does not extend to the operation of the single electricity market, which, as he said, was touched upon by the noble Lord, Lord Hain, in an earlier group, I will defer to my noble friends on the Front Bench and will write to the noble Lord on that point. I am grateful to him for his forbearance.

I cannot properly address the possibly important proposition raised by the noble Lord, Lord Murphy of Torfaen, in his submission to your Lordships, anent having the Government of Ireland lead the European Union in terms of negotiations. That matter will have been heard by others in the Government and given appropriate significance. It is a novel proposition expressed with the noble Lord’s customary force. I am sure that the Government will look at it.

The noble Lords, Lord Dodds of Duncairn and Lord Empey, gave us the historical background and again laid emphasis which was valuable to us all regarding the importance of the cross-community aspect of the Belfast/Good Friday agreement. As I have said, briefly, the CJEU’s position has been identified as a major obstacle.

Your Lordships’ Committee heard something about the value to be given to polling; I think the noble Baroness, Lady Hoey, raised that as an earlier stage, contrasting polls with actual democratic exercises. However, I can say to the Committee that polling carried out by Queen’s University in Belfast has indicated that with people who have concerns about the operation of the protocol, the CJEU and its presence and status was identified as a significant problem.

[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.

[Baroness Butler-Sloss (CB)]

Can I just ask the noble and learned Lord as a lawyer what he was meaning when he gave an explanation on Clause 20(3)? I may be very stupid, but I could not understand a word of it.

[Lord Stewart of Dirleton (Con)]

The noble and learned Baroness doubtless speaks rhetorically. I have the utmost respect for her intellect, as does the whole House. My position, which I sought to express, was that the clause will provide a mechanism by which a reference could be laid before the Court of Justice of the European Union, but that ultimately British law, in whatever of the three jurisdictions it is operating, will prevail over that. It is a reference procedure.

[Lord Cormack (Con)]

I am following up what the noble and learned Baroness, Lady Butler-Sloss, just said. The implication of what my noble and learned friend said from the Dispatch Box is that there is nowhere at all for the European Court of Justice. Is it really a total sticking point in the negotiations? Can he tell me whether this is negotiable? If it is not, we are doubly wasting our time.

[Lord Stewart of Dirleton (Con)]

With the utmost respect to my noble friend’s question, I do not feel I can go further from the Dispatch Box on what has taken place or what I consider likely to take place in negotiations from this point.

[Lord Purvis of Tweed (LD)]

Will the Minister give way?

[Lord Stewart of Dirleton (Con)]

Before I do, I say that, in response to an earlier point on which I undertook to write, I am notified from the Box that the matter of the single electricity market and the European Court of Justice’s jurisdiction is covered in a letter being sent to the noble Lord today.

[Lord Purvis of Tweed (LD)]

That gives me an opportunity to thank the Minister for his efficiency. I look forward to reading the instant letter that is on its way.

I have a point on Article 2 and the rights associated with it. I seek some reference from the Dispatch Box, because the concern that exists, as I understand it—and I am not a lawyer; that is my declared interest—is that the directives providing the rights under Article 2 are interpretive. Therefore, if there are changes to those founding rights—or updates, interpretations or case law—there needs to be a mechanism by which we will adopt that, otherwise those rights under Article 2 are not being upheld, as I understand it. But if under the Bill the court is prohibited from having that role, what will be the mechanism while we interpret those European directives, which are protected under Article 2?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, the courts of the United Kingdom are fully competent to interpret and apply the law. The Government’s intention is that the laws of the United Kingdom should prevail and that the Court of Justice of the European Union should not henceforth have a role, unless a reference is made to it.

[Baroness Ritchie of Downpatrick (Lab)]

In relation to the European Court of Justice and access for the people and businesses of Northern Ireland to the EU single market, how will that be facilitated if there is no ECJ? It has legislative control there.

[Lord Stewart of Dirleton (Con)]

I think this perhaps overlaps with the point that the noble Lord, Lord Purvis of Tweed, raised, but I reiterate our commitment to Article 2. That will be covered in a letter we are presently framing to the noble Baroness. At an earlier stage, she raised the point and gave the Government until the commencement of Report to furnish her with an answer. That answer is now being drafted.

There is a Clause 20 stand part notice. I will summarise what I have said. This clause allows for the proper functioning of domestic court proceedings following the removal of the domestic effect of CJEU jurisdiction under Clause 13. Domestic courts will no longer be bound by CJEU principles or decisions when considering matters relating to the protocol. I emphasise that restoration of these democratic institutions is what we seek to accomplish. Subsection (3) provides a further power to make new provision in connection with this. Regulations made under this power could set out how the UK courts are to regard CJEU jurisprudence or provide a procedure to refer questions of interpretation of EU law to the CJEU if a domestic court considers it necessary to conclude proceedings. The clause is important to ensure that the Government can provide legal and judicial certainty for domestic courts considering proceedings relating to the protocol without being subject to CJEU jurisdiction, in line with the general principles of the Bill. For those reasons, I recommend that the clause stand part of the Bill.

[Baroness Suttie (LD)]

My Lords, I thank the Minister—not least because, as a fellow Scot, he pronounces my name correctly. The constant repetition of “Baroness Sooty” at the beginning was very pointed. Unfortunately, the rest of his reply was somewhat disappointing. However, I am very pleased that he now has on record that the pronunciation is Suttie, not Sooty.

This was a very interesting debate. It split into two distinct sections. There was a powerful debate about the negotiations taking place in Northern Ireland. The noble Lords, Lord Murphy and Lord Cormack, expressed the frustration that many of us feel, that this has to be done at the highest possible level. When the Prime Minister returns, I agree that he must go to Northern Ireland. I am sure that we will return to these matters on the Statement that we expect later this week, perhaps tomorrow or on Wednesday, where we can look at these issues in more detail. The points are very relevant, and there were some extremely good speeches.

The second major concern is around Clause 20. I listened carefully to what the Minister said, but it seems very unclear to me how the clause will protect Northern Ireland businesses, especially those that work north-south, and the single market in the future. I did not feel that we got an adequate reply to that.

The noble Lord, Lord Dodds, and his DUP colleagues raised the important point about consent. That is part of the wider principle of how we make sure that Northern Ireland politicians feel that they are involved and included in this process.

This was a probing amendment. The wording is not necessarily right. However, we should look at this again on Report, perhaps in a broader amendment on the general principle of consent. We would want to look at exactly how that was worded. None the less, on the basis that we may return to it on Report, I beg leave to withdraw my amendment.