My Lords, I first thank all noble Lords with whom—together with my noble friend Lord Caine and my noble and learned friend Lord Stewart—I have been engaging on this Bill. While there may be different perspectives and views, I am as ever grateful for the courtesy extended to myself and my colleagues and for the engagement that we have had through our conversations.
This Government remain very much committed to upholding the Belfast/Good Friday agreement, which has, as we all acknowledge, for almost 25 years brought peace and political stability in Northern Ireland. Irrespective of the speeches that will follow, I believe that all noble Lords without exception share strongly in this key principle. The Northern Ireland protocol was also agreed with the objective of protecting the Belfast/Good Friday agreement in all its dimensions and, indeed, in avoiding a hard border on the island of Ireland. That was key. Furthermore, it was also agreed by both sides that it would not undermine the wish of the United Kingdom and the interests of all parties in Northern Ireland.
In practice, however, the Northern Ireland protocol is undermining the delicate balance of the Belfast/Good Friday agreement and, as we all know, the functioning of the power-sharing institutions in Northern Ireland. Indeed, the Executive are not functioning at all. The protocol has diverted east-west trade between Northern Ireland and Great Britain and it is creating fractures within the UK internal market. Again, I am sure all noble Lords would agree that this cannot be right and cannot continue. It is also impacting negatively on the everyday lives of people in Northern Ireland. It has weakened their economic rights and contributed to the sense of a democratic deficit in Northern Ireland—a point to which I will return shortly.
This Bill gives the Government powers to address these urgent political challenges by seeking to fix the practical problems created by the protocol. It allows the Government to restore the balance of the original objectives of the protocol, thereby avoiding a hard border on the island of Ireland and—as I know to be important to all—protecting the integrity of the United Kingdom internal market while also protecting the EU single market.
The Government remain clear—a point that, again, I have shared with colleagues through engagement—that our preference would be to reach a negotiated solution to the protocol with our partners in the European Union. We have always said that we remained open to constructive dialogue and discussions with the European Union on the Northern Ireland protocol. I assure all noble Lords that this remains the case today.
Within the past fortnight, my right honourable friend the Foreign Secretary and EU vice-president Maroš Šefčovič have spoken to reiterate their shared commitment to exploring potential solutions on this very issue. I am pleased to take this opportunity to report to the House in response to a question that I received from noble Lords in advance of Second Reading, including from my noble friend Lady Altmann: I can confirm that officials from the UK and the European Union are now conducting further technical discussions on the protocol.
If the Government wish to take action to remedy the situation the Minister has identified, why do they not take that action by invoking Article 16 of the protocol, which provides a perfectly legal route for such action to be taken?
My Lords, I know that my noble friend has raised this point. As I have indicated, there are parts of the protocol that we believe are working. I have already alluded to the common travel area, for example. While Article 16 remains a provision that the Government obviously know is at their disposal, and can enact it if so required, we believe that the Bill seeks to present a solution to the exact issues that we are identifying and need to be addressed, but not by removing the protocol altogether. I have cited two or three reasons that are currently operational and work within the existing protocol.
To continue, we also believe that the current protocol creates new, cumbersome processes and bureaucracy for traders. It undermines Northern Ireland’s position within the United Kingdom internal market and, as I said, has contributed to the diversion of east-west trade. Most urgently, it has provided an obstacle to the restoration of the devolved Government in Northern Ireland, undermining the important power-sharing institutions established by the Belfast/Good Friday agreement. The Government are continuing, again, as I said earlier, to engage in constructive dialogue with our EU partners to find shared solutions to these problems. I have referred to the discussions under way on current technical decisions between the UK and EU officials, which are a positive forward step.
Let me say again, as I said at the start of my remarks, that our strong preference remains to have a negotiated solution. However, we cannot stand by and allow the current situation to continue. We must ensure that the United Kingdom Government have the powers they need to address these urgent problems and enact lasting solutions to the problems inherent in the protocol, given any scenario. The Bill ensures that we have covered all the bases to implement what we believe are durable solutions while, to reiterate the point on the issue raised by my noble friend Lord Howard, preserving those parts of the protocol which are currently working.
At end insert “but that this House regrets the early introduction of this Bill, and calls on His Majesty’s Government to delay further consideration of the Bill for six months, so as to allow time to reach a negotiated settlement with the European Union”.
My Lords, I have never moved an amendment expressing regret before and I thought long and carefully before putting this one down on the Order Paper. I hope I speak for the whole House in saying how good it is to see my noble friend Lord Ahmad still on the Front Bench. He has come a long way since he was my Whip and we had a very amicable conversation yesterday, for which I am extremely grateful. I am glad that during his speech he referred on a number of occasions to the Government’s preference for a negotiated settlement. I believe that is important and, in saying so, that it will be far more helpful for the continuance of the Belfast agreement if we come to a united position with our European friends and former partners.
I believe that many things are at stake here, primarily this Government’s reputation as an upholder of international law. When we consider the serious and precarious position of the world today, underlined by those dreadful photographs in this morning’s paper, we have to realise that it is very important that we work with our international friends and neighbours and that, in our relations with them, we carry forward that spirit of unity in our nation that was so manifest only a couple of weeks ago. It is not helpful, while we continue those negotiations, to have on the statute book a Bill that is, in effect, an implied threat. I believe that there is a case for a pause.
I am not advocating, and have not advocated, that this House should go against its long custom and deny the Bill a Second Reading: we have our limitations, and we must not exceed them. But we also have a specific responsibility to uphold the constitution of our country and to maintain the rule of law nationally and internationally. We also have to remember—
My noble friend says his amendment would allow a Second Reading but in effect it wrecks the passage of the Bill by delaying it for six months. The Bill was approved by the House of Commons without amendment; does my noble friend think that this is the proper thing for this House to do?
Yes, it is entirely proper and consistent with this House’s role to pause, which is all that we are doing, and my noble friend knows that. We had a long conversation the other day, and my noble friend tried to persuade me that he was right, but I am afraid that, much as I genuinely admire and respect him as a great parliamentarian, I do not agree with him on this occasion, and he knows that.
It is crucial to remember that we have a constitutional role. We are not transgressing that role by calling for a pause, as my regret amendment and that of the noble Baroness, Lady Chapman, do. We have discussed these things and decided on the best outcome today. Because the Official Opposition are not prepared to have a vote today on either their own amendment or mine, there will not be one, so far as I am concerned. But that does not mean that the arguments have disappeared or that, in the two weeks between now and Committee, we will not continually be thinking about how best to achieve a pause in the passage of the Bill while we have proper negotiations.
My noble friend rightly paid tribute to the Minister and the fact that the negotiations are going forward. I think he shares the view that, if we can reach an agreement outside the protocol, that is the best way to go. But I am very surprised about the timing of his regret amendment, because it seems to me at this stage that every effort has been made to reach an agreement. Stopping the Bill at Second Reading might introduce all sorts of new elements into the negotiations. I suggest ensuring that the negotiations can continue. If my noble friend then feels that the outcome of the negotiation is constitutionally unacceptable, surely that is the moment at which he should raise this matter, rather than Second Reading. There are many weeks ahead of us for Committee, Report and Third Reading, which would be open for him to move his amendment. I understand my noble friend’s constitutional point, but I completely fail to understand his timing.
My noble friend is entirely entitled to his opinion, but I remind him that, until very recently—by which I mean the last two weeks—no substantive negotiations took place between March and now. My noble friend, in his great distinction, is fully entitled to have whatever view he wants, but I do not believe that to hold a sword of Damocles, as it were, in the form of this Bill over negotiations is a good idea. We would be far better negotiating with our friends and neighbours by treating them as friends and neighbours whom we totally trust. Should things go badly wrong, we will have to return to the Bill.
I remind noble Lords in all parts of the House that, in Northern Ireland, there is certainly a majority opinion—I am not talking about the DUP—reflected in the composition of the Northern Ireland Assembly, which has been elected but sadly does not meet, that the protocol should be amended but should not be ditched, and that this Bill should not pass. I have many correspondents from Northern Ireland who tell me that this is very much the general view, and certainly the general view in the business community of Northern Ireland. They want a degree of certainty and to have these matters resolved as soon as possible, but they want them resolved in a way that preserves the essence of the protocol. That is the opinion of that part of the United Kingdom. I find it very sad that the world is in such a precarious state—I refer again to those terrible photographs in today’s newspapers about what happened in Ukraine yesterday. During this time, we need to try to have the sort of unity that our Prime Minister is, I believe, arguing for today in the G7—and that should apply throughout. Therefore, there is a very strong case for pausing these negotiations.
As I have said, I have had conversions with the noble Baroness, Lady Chapman; she is not going to move her amendment to a vote tonight and I am not going to push mine to a vote tonight—I make that absolutely plain here and now. However, this is not going to solve the position. Before we come to Committee, we must see whether it would not be advisable to pause the Committee while negotiations continue—the Bill will have had its Second Reading, so that is not in jeopardy. I accept the ultimate supremacy of the House of Commons—as I have argued many times in your Lordships’ House on a whole range of issues—but we have a role to play, and we should seek to play it.
My Lords, nearly three years ago, Ministers and the then Prime Minister returned from Brussels triumphantly, holding the withdrawal agreement and a brand-new protocol on Northern Ireland. We were told that this was a great deal for the country, and especially for Northern Ireland. It was, we were told, the best of both worlds. Most importantly, we were told that the letter and spirit of the Belfast/Good Friday agreement had been preserved. Now, Ministers tell us that none of this really happened. They insist that the protocol—that they negotiated, signed and campaigned on—does precisely the opposite of what they claimed then, and that it is the source of the problems that they vowed it would solve. Their answer now is to take a wrecking ball to their own agreement and to ask noble Lords to support a Bill that is a flagrant breach of international law. Frankly, your Lordships’ House should not have been asked to consider this Bill.
The truth is that the Bill is an abject admission of failure: first, a failure to understand the deal that they themselves negotiated; and, secondly, a failure to right the wrongs of their previous decisions. As my noble friend Lord Ponsonby of Shulbrede will outline later, the Bill is an insult to our political, legal and diplomatic traditions. Its aims and the powers it grants to Ministers of the Crown amount to nothing short of constitutional vandalism. It damages Britain’s hard-won reputation as a country that plays by the rules. It divides us from our European allies when we should be walking in lockstep in the face of Putin’s war in Ukraine. Further, it risks creating new trade barriers and more uncertainty for the people and businesses of Northern Ireland, and the rest of the UK, in the middle of a cost of living crisis.
There are many reasons to object to the Bill but I will focus on just three. First, the Bill will not solve the problems it purports to fix. Secondly, it is incompatible with our obligations under international law. Thirdly, it affords Ministers unreasonable, unwarranted and unprecedented powers. I shall take each one in turn.
My Lords, over the Recess, the Minister and I both travelled to regions of the world where peace building continues to need to be nurtured and where trust is a vital commodity. The offensive nature of this Bill is that in just one measure it breaches international law, undermines our reliability for other international trade agreements, divides communities rather than brings them together and abuses proper parliamentary legislative processes to an egregious degree. The fact that it is a Foreign Office Bill—a department which is meant to promote the currency of the British word in an unreliable world—is doing immeasurable damage. I believe that the House knows it and that the Minister, who is very highly respected here, must know it too. My colleagues will expand on these areas in their contributions.
When the Government presented their protocol, they did so with somewhat of a Janus face. “Best of both worlds” and “oven-ready deal” was how it was how it was spun, but the unspun accompanying impact assessment was clear that it was neither, and far more complex.
Chapter 6 of the impact assessment at the time, on risks, states in paragraph 295:
“An increase in uncertainty associated with the UK’s regulatory or customs position with the EU could affect the business environment and consumer confidence. The costs of new checks and administration associated with the Ireland/Northern Ireland Protocol may affect the profitability of businesses trading to and from NI … given uncertainty around price changes, or the UK’s and NI’s relationship with the EU, consumers may decide to delay spending, reducing consumer demand for goods and services”.
Paragraph 302 states:
“The proposals will have an effect on all UK businesses that move goods between Great Britain and Northern Ireland, irrespective of the business’s size … a ‘one size fits all’ approach for business trade requirements is likely to have a disproportionate effect on SMBs in particular”.
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As my right honourable friend the Foreign Secretary agreed with Vice-President Šefčovič when they spoke recently, both sides—the UK and the EU—want to look for solutions to protect the Belfast/Good Friday agreement. That is another sentiment that I know has been echoed in contacts with the Irish Government, including between my right honourable friend the Foreign Secretary and the Irish Foreign Minister, Simon Coveney, most recently last week and over the weekend.
However, the situation on the ground in Northern Ireland remains urgent, and the Government cannot allow that to continue. We must ensure that the Government retain the ability to act in all scenarios that prevail. It is a fact, as we all know, that Northern Ireland has been without a fully functioning power-sharing Executive since February this year. The political settlement in Northern Ireland is based on respect between all communities and the consent of those communities. I know we all recognise the huge insight of a number of noble Lords and colleagues who were there when that agreement was set up and initiated. However, the protocol in its current form is undermining that delicate balance, as I said earlier, and is contributing to ongoing political instability.
The Government remain committed to the restoration of the power-sharing devolved institutions, including the Northern Ireland Assembly, the Northern Ireland Executive and the North/South Ministerial Council. We remain equally committed to preserving Northern Ireland’s place within the UK and removing barriers to east-west trade. This is particularly critical during the challenging economic period that has been fuelled by President Putin’s illegal invasion of Ukraine. I assure all noble Lords that the Government will continue to engage, as the Bill proceeds through your Lordships’ House, with the remaining parliamentary stages of the Northern Ireland Protocol Bill, while, I also assure noble Lords, continuing to conduct technical talks and explore shared solutions with our EU friends and counterparts.
I turn to some of the substantive provisions within the Bill. The Bill allows the Government to fix specific problems with the protocol by granting powers to make changes in four main areas: first, to provide and improve the customs and sanitary and phytosanitary regime; secondly, to create a new dual regulatory model; thirdly, to ensure that Northern Ireland can benefit from UK policies on subsidy control and VAT; and, fourthly, to legislate for new governance arrangements that address the democratic deficit created by the protocol in its current form.
On customs and SPS, the Bill allows the Government to introduce a green-lane and red-lane system to remove barriers to internal UK trade. There will be no unnecessary paperwork, checks or bureaucracy on goods staying in Northern Ireland as they will move via the green lane. Businesses will be able to use this green lane as part of a trusted-trader scheme. Goods destined for Ireland or the rest of the EU will go through full EU checks, controls and customs procedures via the red lane.
The UK is committed—a point that again several noble Lords raised with me during discussions—to a comprehensive approach to data sharing with the EU under our new model, a key ask that the EU has made of the UK. We would continue to share comprehensive data on the operation of the trusted trader scheme and on goods movements between Great Britain and Northern Ireland. This would of course enable the UK and the EU to jointly monitor the risk of abuse and allow for risk-led intelligence sharing and co-operation. Data-sharing arrangements would be delivered through a purpose-built IT system, with information available to the EU in real time. This would include standard commercial data for green-lane movements and more than 110 fields of data collected through customs declarations for red-lane movements. Any trader found abusing the green lane would incur penalties and face ejection from the trusted trader scheme. We fully understand and respect the legitimate concerns of our EU counterparts and friends that the single market should be protected. These provisions in the Bill will achieve that.
The Bill will also establish a dual regulatory regime so that businesses can choose between meeting UK or EU standards, or both, should they wish to do so. This will remove the barriers to goods made to UK standards being sold in Northern Ireland and cut the processes that drive up costs for business, particularly at this time. It will help address divergence between the two parts of the UK internal market. Anyone who trades into the EU single market will still have to do so according to EU standards. This will also protect the EU single market and we are committed to ensuring that firms in Northern Ireland that benefit from access to the EU single market retain that access.
The Bill will also ensure that the Government can set UK-wide policies on subsidy control, VAT and excise, so that people in Northern Ireland can benefit from the same policies as the rest of the United Kingdom. For example, at present, people in Northern Ireland are not able to benefit from VAT reliefs on energy-saving materials for homes. These reliefs help fight the cost of living and climate crises and pose no risk to the EU single market but cannot be implemented in Northern Ireland because of the protocol. At a time when a warm home and clean and secure energy are more important than ever, is it right that a typical family in Northern Ireland needs to find nearly £300 more to install solar panels? Surely that cannot be right.
Tax and spend are essential sovereign functions, especially in Northern Ireland where the UK Government play a significant role in the local economy. We will also maintain the VAT arrangements in the protocol, which support trade on the island of Ireland while ensuring Northern Ireland can still benefit from the freedoms and flexibilities available in the rest of the United Kingdom.
I turn now to the governance provisions in the Bill. Rules applying under the protocol are currently made without any say for Northern Ireland representatives and with no means to adapt them for the Northern Ireland context. In some cases, this has uniquely disadvantaged Northern Ireland, yet the rules have not been subject to any dialogue beforehand. This has been cited as symptomatic of the significant democratic deficit that I referred to. The proposals in the Bill will give businesses and consumers new flexibilities and freedoms to ensure that they are not bound to follow rules over which they have no say. Furthermore, prominent members of the unionist community in Northern Ireland have also expressed serious reservations about the role of the European court in overseeing the operation of the protocol. Unlike ordinary international treaties, disputes under the protocol can be taken to, and settled by, the Court of Justice, the court of one of the parties. The Bill will remove the domestic effect of the role of the European court where it is not appropriate. Disputes between the European Union and the United Kingdom would be settled by independent arbitration, in line with normal international dispute resolution provisions, including those in the trade and co-operation agreement.
However, the Bill would also enable the Government to implement a mechanism that allowed courts to seek an opinion from the European court on legitimate questions of interpretation of EU law, ensuring that it can still be applied where necessary, such as for the purposes of north-south trade. To be absolutely clear, the Bill seeks to change only those parts of the protocol that are causing problems and undermining the three strands of the Belfast/Good Friday agreement; it keeps the rest. We have, for example, explicitly protected the articles of the protocol that cover north-south co-operation, the common travel area and the rights of individuals, and we will maintain the functioning of the single electricity market, which benefits both Ireland and Northern Ireland.
The Northern Ireland protocol in its current from has created real problems and challenges for ordinary citizens and businesses in Northern Ireland and contributed to political instability in the region.
I am confident that once the Bill has received Royal Assent, we will be well on our way to restoring the balance between the communities in Northern Ireland, which is integral to the Belfast/Good Friday agreement. I assure your Lordships that we continue to engage directly on the ground with businesses and communities in Northern Ireland; importantly, we continue discussions with our EU partners. The purpose of the Bill is to ensure that we have all the tools available to the Government to deal with the scenarios that we currently face, but we remain committed to finding a lasting solution.
I ask noble Lords to reflect for a moment: most of us in this House are anxious to preserve the United Kingdom as a union. We are anxious to have the closest possible relationships with other western democracies in Europe and across the Atlantic. Do not let us forget that one of the people who is most troubled by the Bill and its implications is the President of the United States, who has made his views very plain to the Prime Minister and others.
There will be no vote tonight, but I beg noble Lords to think carefully about some of these issues and to reflect on the importance of having a stable relationship and a series of agreements, which have not come about and will not come about by our seeking to ride roughshod over the principles of international law. I rest my case and beg to move.
We are all aware of the serious and difficult political challenges facing Northern Ireland today. The Good Friday agreement is an article of faith for the Labour Party: it is one of the proudest achievements of the last Labour Government, negotiated in partnership with parties and communities across Northern Ireland and with the Government of the Republic of Ireland. The institutions born out of that transformative peace are now under strain. Stormont is unable to function; months have passed without power-sharing; and democratic elections have not produced a functioning Government, meaning that the Executive cannot deliver for people during this economic crisis. This is a serious problem.
We recognise that the operation of the protocol, and the checks and barriers to trade that are an inherent feature of its design, have created problems for businesses. We accept that. Regrettably, it has heightened concerns, particularly among the unionist community, about their place in the UK, and these concerns must be heard.
As I have said on multiple occasions, this is not a one-sided issue. The EU too, as well as the UK Government, must show flexibility, but the only feasible way forward is through negotiation. Without swift progress there will have to be fresh elections in Northern Ireland and a serious Westminster Government, one with cool heads and steady hands, would work with all parties to ease current tensions.
With trust, good will, statecraft and hard work, these problems can and will be overcome. Instead, the Bill seeks to impose an unrealistic and likely unlawful unilateral solution. It is fundamentally flawed. Only a deal that works for all sides and which delivers for the people of Northern Ireland can be durable and provide the stability that businesses and the public deserve.
The good news is that the Government may finally be realising this. Last week, talks between the Government and the EU resumed. While some chose not to endorse this approach, Ministers apologised for their prior conduct in an extraordinary but welcome admission of the damage done in recent years. The Secretary of State for Northern Ireland has even said that he wants to make this legislation redundant—hear, hear to that. I welcome the Government’s long-overdue conversion to the merits of negotiation, but does that not undermine the entire basis for this Bill?
This brings me to our second central objection: the Bill is by any reasonable reading incompatible with international law. Britain has a proud record as a champion of the rule of law. This transcends personalities and party politics, stemming from our unique history and legal traditions, from Magna Carta to the Bill of Rights. However, this Government are willing to rip up those traditions and override a central element of an international treaty in domestic law, despite only recently agreeing the treaty forbidding such behaviour. They argue that this Bill is necessary, yet the Secretary of State for Northern Ireland says that he is very positive about the chances of success in these new negotiations. Not only is there an alternative to this Bill but the Government prefer it, are working on it and think it is achievable.
Moreover, the Government have not exhausted all legal routes available to them under the protocol and wider agreements with the EU. We do not wish to see Article 16 triggered, but if the Government are so keen to implement safeguards, why have they not done so through the legal means at their disposal? Despite what the Minister said in response to the noble Lord, Lord Howard, Article 16 could of course be used without jeopardising the common travel area or the energy market. I ask him to look again at his argument on that point.
The Bill shows the Government are willing to break binding treaties when it suits their internal party-political objectives to do so. That is disgraceful. If they proceed with this legislation, can they be surprised if our international partners start asking themselves whether we will keep our end of the bargain? As Ministers travel the globe to challenge the actions of dictators and despots, what message does it send when they stand here, in the mother of all parliaments, proposing measures that break international law? Reputations are hard won and easily lost. This Bill tarnishes our country’s reputation. That is simply not in our national interest. It is not who we are, nor is it the country we want to be. There is nothing more patriotic that this House can do than to defend Britain’s proud political values and legal principles.
The Bill is also a blatant power grab. It gifts the Government extraordinary powers while denying proper scrutiny by Parliament. Ministers may use these powers whenever they feel it is appropriate, disapply other parts of the protocol, or even amend Acts of Parliament. These are some of the widest-drawn Henry VIII powers I have seen during my more than 10 years in both Houses of Parliament. I am aware that that is a blink of an eye compared to the experience of some noble Lords here today, but surely this sets a dangerous precedent for the future. Just as we should defend our nation’s reputation as a law-abiding member of the international community, we should also preserve Parliament’s role as a check on ministerial power.
Finally, I know colleagues are interested in the various amendments to the substantive Motions on today’s Order Paper, as referred to by the noble Lord, Lord Cormack. First, let me say that I empathise with the noble Lord a great deal. If he does not mind my saying so, he has been a Conservative parliamentarian for more than 50 years and has been present in either this House or another place during all manner of political events and crises. It therefore says a lot about the Government and their handling of the protocol that he has felt compelled to table his amendments. I have tabled my own, setting out the concerns of not only the Labour Party but many noble Lords across the House. I am grateful to those who have engaged with the process of drafting it.
The Government need to reconsider this legislation. Ministers should at least report to the House on whether a pause in the passage of the Bill would be beneficial to these new negotiations. I know that many noble Lords would like to see the back of this Bill. I would, too; it is an abomination. But, however flawed, the Bill has the support of the elected House and we will proceed with it for today.
I welcome the Minister’s remarks that a negotiated settlement genuinely is the Government’s goal. I do not believe that that has always been the case, so his remarks to that effect are welcome. Taking that in good faith and with flexibility from both sides, an agreement is surely possible and we hope that this Bill can be consigned to history, where it belongs. It may be that Ministers reflect on today’s debate and decide to take the noble Lord, Lord Cormack, up on his suggestion of a pause, but if they insist on pushing ahead with Committee in two weeks’ time, we will, of course, be open to discussions with colleagues across House as to possible next steps.
To summarise, this Bill is the wrong approach at the wrong time. It breaks international law, damaging our reputation; it gives Ministers unparalleled delegated powers; and it does not enjoy the support of the majority of businesses or Assembly Members in Northern Ireland itself. The way forward is a grown-up, level-headed negotiation, not the continued threat of unilateral action, which would result in retaliatory measures that our economy could do without at such a precarious time.
We have been presented with a window of opportunity in recent days. The gap between the UK and the EU is not vast. Let us seize that opportunity and do the deal that should have been done three long years ago: a deal with the people of Northern Ireland at its heart that enables the whole of the United Kingdom to move forward and to regain our reputation as a country that acts in good faith.
Paragraph 319 states:
“This could result in higher prices for Northern Ireland consumers purchasing goods which reached Northern Ireland from both Great Britain and Ireland.”
Remember, this is what the Government said would happen if it was working—not if it was not working, which is what the Minister seems to be suggesting today. Perhaps the Government thought that we would not read the impact assessment at the time, let alone remember it. Boris Johnson said that there would be no problems. Liz Truss said that the problems were “unintended”. The noble Lord, Lord Frost, said that they were someone else’s fault. Speak no evil, hear no evil, but see evil.
When Liz Truss said in the spring that there were “unintended consequences”, the poor officials who outlined the intended consequences must have rolled their eyes. However, with the joint monitoring and systems that the Minister has outlined today, they were the very ones that were rejected by the Government at the time of the protocol. I am therefore not surprised that some want the protocol ended.
Instead, the Government say that they want to mend it, not end it. So if they mend, not end, what will be left of it? Northern Ireland will still have to operate under a foreign power’s laws and have no say over them. It will still collect its taxes, still operate under its state aid rules and still have to comply with the hundreds of regulations listed in the annexe to the Brexit agreement that I spoke of in 2019.
On countless occasions, the Liberal Democrats, along with our Alliance partners in Northern Ireland, warned constructively but repeatedly that the Government knew they were in breach of the previous commitment that the Minister, the noble Lord, Lord Callanan, gave to this House in January 2019 when he said:
“We will give an unequivocal commitment that that there will be no divergence in rules between … Great Britain and Northern Ireland”.—[Official Report, 9/1/19; col. 2222.]
We were ridiculed and condemned, especially in the House of Commons by people such as Steve Baker MP. However, today, on behalf of my colleagues, I accept Steve Baker’s apology. By the way, some might be tempted to suggest that it is the fact that we have this Bill that forced Brussels’ hand to return to talks; it is perhaps the welcome hand of apology from a Northern Ireland Minister.
The Minister’s justification for the Bill today seems to be based on the coming to pass of the very impacts that the Government themselves said were going to happen, but that case for the Government is disingenuous as the Bill does not even address all the areas in the Government’s previous Command Paper. There, they listed what they said were the problems with the protocol —not least that it would be an ongoing “democratic deficit”, which, I remind the House, was a fully intended consequence. So the Government cannot say that this is the solution when it omits whole swathes of areas that they previously said were the problem.
At this point, it is worth saying that the impact of the protocol has been mixed, with some benefits for people in Northern Ireland, which has benefited from the single market. Those are not my words; they are the words of the Northern Ireland Economy Ministry under a DUP Minister. I will quote from Invest NI:
“This dual market access position means that Northern Ireland can become a gateway for the sale of goods to two of the world’s largest markets … This is a unique proposition for manufacturers based in Northern Ireland as well as those seeking a pivotal location from which to service GB and EU markets … These additional benefits further enhance Northern Ireland’s already strong proposition as a prime location to establish, or grow, a business”.
I think the whole House wishes the Northern Ireland economy well and wishes growth for it, but the Government’s legal position is that all of what the DUP Minister’s department is saying is a grave and imminent peril to this country. Both cannot be right.
Describing “grave and imminent peril” is in the Government’s legal position: it seems to be their case. They cite the UN International Law Commission’s Responsibility of States for Internationally Wrongful Actsfrom 2001. However, Article 25 of that states:
“Necessity may not be invoked by a State … unless the act … is the only way for the State to safeguard an essential interest against a grave and imminent peril”.
It goes on to say that
“necessity may not be invoked by a State as a ground for precluding wrongfulness if … the State has contributed to the situation of necessity.”
The Government state that the UK has not contributed to this situation of necessity relied upon. But, of course, that is almost a risible explanation, given that the Minister at the time, in 2019, signed an impact assessment saying that they were party to it. Given that the UK has made policy decisions separate from the agreement that would have had a material impact on UK trade with Northern Ireland, such as on labelling requirements, the Government cannot credibly argue the UK has been a wholly unwitting and absent bystander to this process.
I agree with the Law Society of Scotland, which said that the Bill goes beyond what is necessary to resolve any trade problems and instead seeks to rewrite provisions in the withdrawal agreement and the NI protocol, such as those in Clauses 13, 14 and 20. When the Advocate-General winds up this debate, I would be grateful if he could clarify the Minister’s assertion, in response to the intervention, that Article 16 would bring about the cessation of the whole of the protocol, rather than be a mechanism that could resolve certain elements of it. I have to say that the contradiction in the noble and learned Lord, Lord Stewart, over these two days arguing in the Supreme Court that the Scottish Government are seeking to act unlawfully but this evening defending the Government for breaking international law is jarring.
Why should this deplorable misuse of “necessity” and redefining “grave and imminent peril” worry us so much? Since I have been speaking on trade from these Benches, I am now on my seventh Trade Minister in the Lords. Every one has said “Our word is our bond” in implementing agreements. For all the trade agreements we have signed, the other side will know that they can be changed unilaterally. How can we be trusted if we choose not to use the dispute mechanisms written into trade agreements but just bring forward domestic legislation to disapply treaty obligations? Pacta sunt servanda.
The Bill presents no baseline information on disruption, subsequent to the original impact assessment. It presents no objective assessment of overall net impact on the economy of Northern Ireland and no regulatory impact assessment contrary. This is all contrary to clear Cabinet Office guidance on legislation.
Finally, of course, the Bill reflects the Government’s view of Parliament. The Law Society of Scotland has said that
“it is inappropriate to implement international agreements by regulation. That approach departs from the precedents set by the EU (Withdrawal Agreement) Act 2020 and the EU (Future Relationship) Act 2020.”
I would add that it is contrary to every commitment for every trade agreement since Brexit.
I conclude by quoting these remarks:
“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations … the legislative mechanism by which the Government propose to give to effect to the Bill’s purpose is wholly contrary to the principles of parliamentary democracy (namely, parliamentary sovereignty, the rule of law and the accountability of the Executive to Parliament)”.
That was all from the Delegated Powers and Regulatory Reform Committee of this House.
On the basis of the breach of international law, the damage to our standing and word around the world, the adding to divisions—rather than healing them—and the abuse of Parliament, the Government should think again. At the very least, we should reflect very carefully on the necessity of proceeding, given ongoing talks that we on these Benches wish well and which need to continue and conclude.