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.