Protocol on Ireland/Northern Ireland: Follow-up Report (European Affairs Committee)

Lord Verdirame Excerpts

Monday 11th September 2023 Grand Committee

[Lord Verdirame (Non-Afl)]

My Lords, I, too, begin by paying tribute to the noble Lord, Lord Jay, and the committee for producing two extremely informative and thoughtful reports that do justice to the diversity of views and the complexity of the issues, including the legal issues on which I concentrate.

My observations are on the second report. The committee invited the Government to clarify the process by which they would decide whether the tests for the use of the so-called Stormont brake had been met. There is one aspect on which I think the Government should reflect. Article 13(3) of the protocol allows the EU to amend or replace EU law applicable in Northern Ireland without the consent of the UK. By contrast, new EU law cannot be imposed on Northern Ireland if the UK objects—that is the effect of Article 13(4). The Windsor Framework added Article 13(3a) to the text of the protocol. Read alongside the unilateral declaration appended by the United Kingdom, Article 13(3a) provides the international legal basis for the Stormont brake. One condition for the use of the Stormont brake in Article 13(3a) is that the amendment or replacement must significantly differ in content or scope from what proceeded it. The problem with this language is that it might appear to suggest that the EU’s unilateral legislative power to amend or replace existing EU law under Article 13(3) is broader than it needs to be. It is, of course, in the interest of the UK to defend a restrictive interpretation of Article 13(3). It is perfectly proper for the UK to do so as long as its interpretation is tenable.

It seems to me that one has to accept that an amendment or replacement would ordinarily introduce different content, but whether amendments or replacements that are significantly different in scope would be permissible under Article 13(3) is a different matter. So I hope that the Government will agree with me that in all their official pronouncements on the Stormont brake that it is necessary to maintain a consistent interpretation of the UK’s legal rights and obligations under the protocol as amended by the framework and, in particular as regards Article 13(3), to maintain an interpretation that states that those powers ought to be read quite narrowly.

In the little time available, there is only one further and more general comment that I would like to make. Table 1 of the report sets out a number of key dates in the implementation of the framework for the coming 12 to 24 months. The date by which the democratic consent vote under Article 18 is due to be held is 31 December 2024. There is another reason why that date is quite important. The Windsor Framework amendments to the text of the protocol, including Article 13(3a), to which I referred, were adopted with a decision of the joint committee, not with a formal new treaty.

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[Lord Verdirame (Non-Afl)]

I was explaining how the text of the treaty could be amended with a decision of the joint committee rather than a new treaty. The reason is Article 164(5)(d) of the withdrawal agreement, which empowered a joint committee to make amendments by decision to the text of the treaty, including the protocol,

“provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement”.

Using this pragmatic mechanism to achieve treaty change without going through the formal process of adopting a new treaty was a significant win for the Government in the Windsor Framework, but the mechanism it will expire on 31 December 2024—it can be used only until that date. Among the many windows of opportunity that have been discussed, this mechanism provides a further window of opportunity to consider changes to deal with problems arising from the implementation of the framework as they become apparent in the coming months. I hope that the Government and the joint committee will keep that possibility under consideration.