Northern Ireland Protocol Bill

Committee (1st Day) (Continued)

Debate on whether Clause 1 should stand part of the Bill.

My Lords, I am most grateful for this opportunity to discuss and debate whether Clauses 1, 2 and 3 should form part of this Bill. I am most grateful to the noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, for their support for all three stand part notices and the noble and learned Lord, Lord Judge, for his support for the proposition that Clauses 2 and 3 should not stand part of the Bill.

I have listened very carefully to the earlier part of the debate and obviously some of the themes will be repeated in debating this group. At Second Reading, reasons were explained as to why the protocol may not be working, and I think the noble Lord, Lord Dodds, spoke at some length on his view of why that is the case. I have had a number of emails from Northern Ireland since I tabled these notices and I would like to say at the outset that the reason for my tabling them is not to deny that the protocol is not working. That is not their purpose. What I am trying to understand, in debating whether these clauses should stand part, is the Government’s thinking of the legal base and to press the Minister further.

I would like to quote two paragraphs from the report which I believe was published today by the Constitution Committee of the House. In particular, paragraph 15 on page 4 states:

“We do not accept the Government’s reliance on the doctrine of necessity as justification for introducing legislation that disapplies its obligations under international law. The doctrine of necessity is narrowly construed and applicable only in exceptional circumstances, which have not been satisfied in this case.”

Further, paragraph 18 also on page 4 of the report states:

“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments. The Government’s reliance on the doctrine of necessity does not justify introducing this Bill. This raises the question of whether ministers might be thought to have contravened their obligation under the Ministerial Code to comply with the law, including international law.”

I shall also refer to when this was debated in the other place on 13 July. My honourable friend in the other place, Bob Neill, the Member for Bromley and Chislehurst, stated:

“this is an unusual and rather exceptional Bill, and not necessarily in a good way. If fully brought into effect, the Bill would lead to the United Kingdom departing unilaterally from an international agreement and therefore breaking its obligations under both customary international law and the Vienna convention on the law of treaties, which is a grave and profound step for any Government to take.

I recognise that there are circumstances in which that step can be taken, and the Government asserted on Second Reading that the operation of the Northern Ireland protocol gives rise, or potentially gives rise, to those circumstances. The essence of it, though, depends on applying a factual evidence base to a legal test. The legal test in this case is essentially the international customary law convention of necessity, which is now enshrined in article 25 of the articles on state responsibility, which were adopted by the International Law Commission in 2001 and are recognised by the UN General Assembly, by our Government and by the international community as an authoritative statement of the law. Article 25 sets out that necessity may be invoked if certain tests are met. The point of these amendments is to say that if the Government, or any Government, were to take that step, they should do so upon the most compelling grounds, so that the factual basis for their actions met the legal test. The reputational consequences, politically, internationally and legally, are very significant, so this should be done only when that is thoroughly tested and set before this House to be tested.”—[Official Report, Commons, 13/7/22; col. 365.]

I also support the arguments put forward by the noble Lord, Lord Pannick, as to why we have agreed the legal remedies of applying reference to the European Court of Justice where appropriate under Clauses 13, 14 and 20. My understanding is that these clauses would remove those remedies. I believe that the Government have failed to satisfy the test as to why the doctrine of necessity would be the most appropriate legal basis for this Bill, and yet reserve their position that they could bring forward Article 16 at a future time.

I put it to my noble and learned friend the Advocate-General that if, as he argued earlier, particularly in response to the noble Lord, Lord Purvis, it is the case that the protocol is not being applied and implemented as was intended, then the doctrine of necessity is not the appropriate legal base—it has to be Article 16. With those few remarks, I ask that Clauses 1, 2 and 3 do not stand part of the Bill.

My Lords, I oppose the removal of Clauses 1, 2 and 3 from the Bill. We had a long debate earlier this evening in which the word “delay” was used a number of times: we needed to delay, be more careful, reflect and consider. However, removing these three clauses, as proposed in the name of a number of noble Lords, shows that this is a wrecking proposal. Those Members and many others in the House do not want to see this Bill go forward. The purpose is to rip out the very heart of the Bill. If they are removed, we may as well all go home.

There are two problems with the protocol that are important. One of these, the way that the United Kingdom is affected, has been mentioned a lot this evening. I know that the noble Lord, Lord Dodds of Duncairn, mentioned this earlier, but those who oppose these clauses, and Clause 3 in particular—the noble Baronesses, Lady McIntosh of Pickering and Lady Chapman of Darlington, the noble Lord, Lord Purvis of Tweed, and the noble and learned Lord, Lord Judge—all got a letter from McBurney Transport Group, a big transport group in Northern Ireland. I hope that they read the letter and will respond. More importantly, I hope that they will listen to what was said in the letter about visiting Northern Ireland, meeting McBurney and finding out about the practical implications for a business such as that, which really understands the moving of goods back and forth. The letter said very clearly that implications would flow from the amendments they have tabled, especially their joint proposal that Clauses 2 and 3 be removed from the Bill, which would render it inoperable. The removal of these two clauses would have a particularly devastating impact on Northern Ireland.

There are all sorts of examples of how the protocol is affecting business. I am not intending to go into any more on that now. We have a lot of very eminent lawyers in this House, making very strong legal speeches. I sometimes wonder just how many people back home in Northern Ireland, sitting in the streets of east Belfast or up the Shankill Road, really feel that people in this House understand the effects of the protocol on them as a community, as a country and as individuals.

I rise with great sadness to speak against the wrecking proposals in this group that Clauses 1, 2 and 3 should not stand part of the Bill. I regret it very much. If we were effectively to turn our backs on this Bill, as those championing this group would, what would we be left with? The prospect would be carrying on failed talks with the EU for another two, three or four years. We have had two years of it, and we know where it took us to. I am not opposed to talks, and I believe this Bill does not stand in the way of those talks continuing, but let us get on with this business too.

I have studied the EU’s proposals, and I have to say that even if it conceded ground in the areas it is suggesting, we would have no solution. The only thing it is talking about pertains to the difficulties surrounding the economic disruption caused by the protocol. In the first instance, its proposals do not in any way address the present economic difficulties. The noble Baroness, Lady Hoey, has already referred to that, and my noble friend Lord Browne will refer to that as well, so I shall not say anything on that.

Right up until the final day of the Brexit transition period, the people of Northern Ireland enjoyed parity with the rest of the United Kingdom in having the right to stand for election and input directly into legislation or to elect others from across our communities to make laws to which people in Northern Ireland would be subject.

However, on 1 January 2021, that all changed. At that point, the right democratically reserved to Northern Ireland citizens to make laws effective in Northern Ireland was usurped in an instant, and the bulk of that power transferred to representatives in another jurisdiction for whom nobody in the Province voted. There are Members of this House concerned about the loss of some delegated powers to Ministers, despite an appropriate role being afforded to Parliament to scrutinise eventual regulations. Yet they demonstrate little in the way of concern for the loss of sovereignty associated with the surrender of law-making powers in Northern Ireland in perpetuity under the protocol governing hundreds of areas of policy.

Before the noble Lord leaves the problem of the democratic deficit, I would like to say that I have considerable sympathy for his points. It was the principal reason why I was against the protocol when it was first produced. I would like to ask him: has he considered the mitigations that are possible—for example, the two suggested by the noble Lord, Lord Hain, earlier this afternoon? Would he also consider whether, unpleasant though it is to see this democratic deficit, it has an upside for Northern Ireland—what the then First Minister described as the “best of both worlds”? Finally, would he consider why the right solution to the democratic deficit could possibly be the destruction of the Northern Ireland protocol, given that it is an integral part of a treaty that we signed? We may like it or dislike it—the noble Lord dislikes it intensely and so do I—but we did sign up to it.

I thank the noble Lord for his comments. I did listen very carefully to what the noble Lord, Lord Hain, said and I want to read Hansard tomorrow to get better into my head exactly what he was saying, but I was struck by some of the things he said. Like the noble Lord, Lord Kerr, I voted against the protocol, as did every unionist in Northern Ireland—so it has no support among one section of the community.

We have long moved away from majoritism. As a matter of fact, I do not remember majoritism in Northern Ireland. That age has long gone and we were told that it would never return. Politics in Northern Ireland would be by consensus; that is what we were told. We were not only told it—they put it down in law. But I have yet to hear from many who berate this Bill that they are concerned about how the Belfast agreement has been kicked right, left and centre. I ask the noble Lord, Lord Kerr, to suppose for a second that this border was where it should be and not in the Irish Sea. Does anybody—but anybody—feel for a moment that that would not have caused the complete collapse of the Northern Ireland Assembly?

We have not collapsed the Northern Ireland Assembly as such. The Ministers are still in place, doing their tasks and getting on with it, because we did it in such a way. When Sinn Féin did it, they wrapped everything up. I have never heard one Member from either the Lib Dems or Labour—which surprises me—say that Sinn Féin has done wrong here. I did not hear it. Maybe it was said when I was not here, but I have never heard that said. I find that there is pick and choose. If unionists do something, they are a nasty lot, they are nasty people, but with Sinn Féin it is, “Oh no, they have a reason; they have a cause.” Well, we have a cause and we want to defend that cause.

In 1960 the UN went further and passed its decolonisation declaration, basically shifting its position to one of actively encouraging imperial powers to decolonise. Today, the UN still has a committee dedicated to the decolonisation of the small remaining colonies. If you examine its work, the UN is very clear that an NSGT is not a jurisdiction that is governed entirely by another country. Most NSGTs are largely self-governing. They remain classified as NSGTs because they are not entirely self-governing. Now, of course, I recognise that, in order to be formally classified as an NSGT by the UN, you not only have to meet the definition of an NSGT; you also have to persuade the Assembly to vote an agreement that a jurisdiction should be so defined.

I am grateful to the noble Lord for giving way. I am concerned about his argument when it comes to the position of the new—again—Home Secretary. She said in July:

“The Northern Ireland Protocol Bill needs to be changed so that it actually solves the problem. … The bill’s ‘dual regulatory regime’ lets EU law flow into Northern Ireland in perpetuity … I’ve been fighting for while in government. Without them, the bill treats people living in Northern Ireland as second-class citizens.”

Does the noble Lord agree with Suella Braverman? If he does, will he be bringing an amendment to Bill to make sure it does not have a dual regulatory regime that allows EU law to flow into Northern Ireland?

If the noble Lord, Lord Purvis, is asking me if I agree that Northern Ireland citizens are now treated as second-class citizens, yes, I do. Some people in Northern Ireland seem to be content to be treated as second-class citizens, because, like the noble Lord, they want to pull this Bill apart and the protocol to remain. I hear, in the debate today, some noble Lords saying that there are problems with the protocol, but in time that will be sorted out. Where will our economy and industry be? My noble friend Lord Browne will be making some reference to that a little later.

Article 21 of the Universal Declaration of Human Rights, among other provisions, states:

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. … Everyone has the right of equal access to public service in his country.”

This has plainly been violated by the protocol, which has partly removed our right to take part in the Government of our country as it relates to 300 areas of law, both in terms of engaging in public service as a candidate and in terms of voting.

Of greatest importance, however, is that the plundering of aspects of our right to vote violates the Good Friday agreement. I hear many champions in this House of the Belfast agreement, and I have to admit that I would not be the best advocate of the Belfast agreement, and I am prepared to say that. But let those who are stand up, and then they will run into problems with their debate and where they are going. Specifically, the Good Friday agreement affords the people of Northern Ireland the right

“to pursue democratically national and political aspirations.”

Moreover, in the case of the Good Friday agreement, there is the additional international constraint arising from a foundational provision of the protocol, in Article 2, which specifically obliges the UK Government to ensure that there is no diminishment of any of the Good Friday agreement rights following Brexit. Article 2(1) states:

The noble Lord might like to be reminded of what the Companion says about length of speeches. Fifteen minutes is indicated as the acceptable length of a speech. Might I suggest that the noble Lord concludes his speech?

Yes, I will conclude, but it is remarkable that, earlier in the evening, I noted speeches going to more than 20 minutes. I have just come in at the wrong time, I suppose, but I will draw my remarks to a conclusion and make way for some others.

My Lords, I support this proposal and do so conscious of the fact that, listening to some of the voices from Northern Ireland we have heard today, I am being asked to decide how I should approach the issue on the basis of sympathy for the way in which some of the citizens of Northern Ireland—those represented here—feel they have been dealt with by the British Government in the context of the whole negotiation relating to the EU, the GB and Brexit. I remind myself, though, that this is not a matter of sympathy. I spent a lot of my professional life having to decide cases where, if I could, I would have found the other way. But if the law required me to find a particular way, whether I liked it or not I was required to do so, so I did. What we are dealing with here is a treaty between the United Kingdom and the EU, not between the EU and Northern Ireland. I am sorry to say that, but the issue I am addressing is the treaty between our country and the EU.

Can I just get rid of Clause 1? It is a modern and unwelcome phenomenon. If you look at it, it says nothing. It is just a piece of PR, not legislation at all. We have too many Bills that include pieces of PR which do not take the legislation any further, and that is why I object to it. We should not have clauses in Bills that say, “This is a jolly good idea. This is what we’re going to do”, but more important are Clauses 2 and 3.

There have been criticisms made by the Advocate-General of the necessity argument that has been so thrown at him by, among others, the Constitution Committee. I know this has been said before, but I remind the House that necessity is not available, as it

“may not be invoked by a State as a ground for precluding wrongfulness if”

the state in question has contributed to—not caused—“the situation of necessity”. Well, we have. We march into the negotiation and sign the agreement. We broadcast the agreement as having got Brexit done, for political reasons. We do not look at the consequences to, among other places, Northern Ireland—and we have not looked at it. There were voices in Northern Ireland who, to my memory, were saying, “This is a very dangerous step to be taking.” We either did not look at it or, worse, looked at it and thought “It doesn’t matter; we will get Brexit done.”

That argument, I am afraid, leaves us in this position. We are now seeking to go back on an agreement we entered into because now we are taking a different view. We do not think getting Brexit done matters so much because we have got it done, so there cannot be an argument about that. We are now looking for some other solution.