Tuesday 25th October 2022
(1 year, 6 months ago)
Lords ChamberNorthern Ireland Protocol Bill 2022-23 View all Northern Ireland Protocol Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 52-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (25 Oct 2022)
Baroness McIntosh of Pickering (Con)
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.]
That was from my honourable friend next door, Bob Neill, who chairs the Justice Select Committee in the other place.
At Second Reading and earlier, the Advocate-General referred to the legal advice that was published by the Government. I quote from the Northern Ireland Protocol Bill UK Government Legal Position:
“The Government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations. This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the Government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the non-performance of certain obligations. It is the Government’s position that in light of the state of necessity, any such non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”
In my view, for reasons that were well rehearsed at Second Reading and earlier today, that is not an appropriate legal basis. I ask my noble and learned friend the Advocate-General to set out why the Government have reserved their position on Article 16 and have not brought it forward as the more appropriate legal base at this time.
The Law Society of Scotland has also been instrumental in my bringing forward these clause stand part debates. In its view,
“The Government do not rely on Article 16 of the NI Protocol to justify the Bill. That Article would entitle the UK Government to take unilateral ‘safeguard measures’ in certain circumstances but those measures ‘…must be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation’.
Instead, the Government argues that these provisions do not breach international law because the situation in Northern Ireland is such that, under the doctrine of necessity in international law, any: ‘non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law’”.
The Law Society of Scotland’s quotations are from the UK Government’s legal advice, which I quoted from earlier.
I believe that the Government have failed, and I regret to say that my noble and learned friend the Advocate-General has failed as yet to state why this doctrine of necessity satisfies the legal test which is understood in that regard. I again press my noble and learned friend. I am not asking him to bring forward Article 16—though I realise that, as we heard earlier from the noble Lord, Lord Dodds, the protocol is perhaps not working in a way that the Government and those representing Northern Ireland would have wished. If that is the case, why have the Government not taken what I believe is the more appropriate measure, Article 16, in that regard?
Baroness Hoey (Non-Afl)
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.
For me, the important thing about the protocol, and the second reason why I hope these clauses are not removed, is that the Irish Sea border checks are only a symptom of the core constitutional incompatibility of the protocol—the way that Northern Ireland is left subject to EU law and under the jurisdiction of the European court. This has been said over and over again. For those Peers who think it is just a matter of technical changes, and that negotiations will lead to a green line or a red line or that all these different things will happen, that will not change a single person in Northern Ireland who opposes the protocol because it has fundamentally changed how they feel and how, obviously, His Majesty’s Government feel about the status of Northern Ireland.
All the Bill is doing is trying to restore the balance that the Belfast/Good Friday agreement gave, which has been broken. It is also there to protect peace in Northern Ireland. Somehow, out of this misplaced loyalty, which we have heard again tonight, of the EU always being right and the British Government always being wrong, we are finding that people want to remove these clauses really to make the Bill not worth going forward with. I urge everyone in the Committee to think carefully about what they are doing.
We have heard a lot of very true things tonight about how sad we are at the death of Lady Blood last week and about the contributions she made to Northern Ireland. I remind noble Lords of Lord Trimble, who also recently died, and his contribution to Northern Ireland and to this place. He was Nobel Peace Prize winner. He sounded warnings when he said that the protocol is a potent threat to peace and stability in Northern Ireland. It must be removed as a matter of urgency.
We would all love to see negotiations work, of course we would, but as the Minister said earlier, Mr Šefčovič’s mandate has not changed one single bit in all these months. I genuinely do not believe that we are going to get very far with negotiations. Yes, we have a new Prime Minister and new people, and I am glad that the Foreign Secretary stayed the same, and I hope those negotiations will speed up and will get some movement. But we have to have security, and people in Northern Ireland need to know that the Government are prepared to act for the citizens of the United Kingdom and that they come first.
I hope that noble Lords will reflect before we get to Report and listen to what people in Northern Ireland are saying, particularly to those who understand just how easily peace in Northern Ireland can be threatened. We do not want that to happen.
Lord Morrow (DUP)
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.
This would be bad enough in itself, but in order to understand the difficulty, we need to see it in the context of Brexit. The UK was never relaxed about its membership of the EU. According to Professor Vernon Bogdanor, the reason for this was the sovereignty problem: the fact that the UK could be overruled and was not completely in charge of its own legislative fate. We could be overruled in the European Parliament in the context of majority voting. We could be overruled in the Council of Ministers in the context of qualified majority voting. We could be overruled by the European Court of Justice. Of course, we were a part of European governance acting through the Council of Ministers and the European Parliament, and, in this context, worked hard to defend our national interest. Many times, we were not overruled, but on occasion we were, and there was ultimately nothing that we could do about it. The fact that, notwithstanding our representation within European governance, we could nevertheless be overruled, informed our lack of sense of being part of the European demos—the problem of the democratic deficit.
Thus, the deficit was not about a complete absence of democracy, but about a shortfall of democracy arising from being overruled in a context where the absence of a sense of being part of the European demos meant that people increasingly felt that government was something that was being done to them rather than something that they were part of. In this context, one of the chief benefits of Brexit was the end of the democratic deficit. We would make our own laws. What then was the implication of the protocol for the democratic deficit? It very properly completely removed the democratic deficit in relation to the EU for England, for Wales and for Scotland, and rightly so.
What about Northern Ireland? Did it result in the removal of the democratic deficit in Northern Ireland, as in the rest of the United Kingdom? No. Did it result in the partial correction of the democratic deficit in Northern Ireland, while it was fully corrected for the rest of the United Kingdom? No. Did it result in the democratic deficit problem in Northern Ireland remaining unchanged but its correction in the rest of the United Kingdom? No. Did it result in the further deterioration of the democratic deficit in Northern Ireland, while it was fixed in the rest of the United Kingdom? No. Any of these outcomes would have had a progressively more and more damaging impact on our politics, as we go down the list—but what actually happened was infinitely worse.
In some 300 areas of law-making—this has been mentioned before—the democratic shortfall that was the deficit was replaced by a complete absence of democracy. In this context, we need to be very clear that attempts to describe the democracy problem with the protocol as a democracy shortfall or a democratic deficit radically understate and obscure the problem. The democracy shortfall or deficit was the problem we all had when we were in the EU. The problem that Northern Ireland now faces is both qualitatively and quantitatively completely different. Far from constituting a shortfall in democracy, it actually presents us with its complete negation, with all that this means for our defaced citizenship.
As my colleague and noble friend Lord Dodds of Duncairn rightly articulated to the House at Second Reading, the perverse and intolerable situation in which Northern Ireland now finds itself is akin to the UN category of non-self-governing territory—a colony of the 21st century. The United Nations charter was very clear in 1945 that countries should be self-governing, and it subjected countries that continued to make the laws of other countries to special scrutiny, requiring that they submitted regular reports to the UN on the state of the jurisdiction in their care.
Lord Kerr of Kinlochard (CB)
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.
Lord Morrow (DUP)
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 not about to start a campaign for the UN to vote to classify Northern Ireland as an EU NSGT. However, it is clear, on the basis of the UN definition of an NSGT and the level of self-government enjoyed by existing NSGTs, that Northern Ireland not only meets the UN definition of an NSGT, but one in relation to which the colonial power—in our case the EU—controls more of the governance of Northern Ireland than do many officially recognised colonial powers in relation to their NSGTs.
The story of colonisation since 1960 has been the story of decolonisation. The actions of the EU arguably amount to the first example of new colonisation, as opposed to annexation by military force, since 1960. I find it quite extraordinary that the EU should have even dreamt of seeking this agreement. It does not reflect well on the EU at all that it should have requested this, and the fact that the UK Government had to fight it for even the most ridiculous four years, after the fact, is quite extraordinary. Of course, its justification was allegedly defending the Good Friday agreement—or Belfast agreement, whichever you choose—but this is utterly absurd.
The citizens of Northern Ireland deserve the full rigour of protection under international law in respect of their democratic right to political participation as our counterparts have in each of the other constituent parts of the United Kingdom or indeed any other country. However, that protection has been patently undermined by the protocol.
Lord Purvis of Tweed (LD)
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?
Lord Morrow (DUP)
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 United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.
So now we confront the central absurdity: the EU pretended that an obligation that did not exist in the protocol existed, and that an obligation in the protocol that did exist in fact did not. There is nothing anywhere in the text of the Good Friday agreement saying that there cannot be a customs border, and there is something that plainly states you cannot erode the political democratic rights of the people of Northern Ireland, which was the plain consequence of placing a border down the Irish Sea.
Of course, I am not saying for a minute that the UK and the Republic of Ireland could not agree to avoid a hard land border, only that it is not required in the Good Friday agreement. In a context, however, where the Good Friday agreement prohibits—
Viscount Younger of Leckie (Con)
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?
Lord Morrow (DUP)
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.
Lord Judge (CB)
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.”
Lord Browne of Belmont (DUP)
My Lords, I oppose the proposition that Clause 2 should not stand part of the Bill and that Clause 3 should also fall as a consequential amendment. If it was to succeed, the Bill would be rendered largely inoperative. In response to this, I am struck by two realities.
First, it is striking that the Government are saying, quite rightly, that the Bill is required urgently to avert a socio-economic and political crisis in Northern Ireland. Secondly, it is also striking that the democratically elected House has consented to that and deemed fit to pass the Bill with no amendment.
It is noticeable that many Northern Ireland Peers were yesterday copied into a letter of invitation—as already mentioned by the noble Baroness, Lady Hoey—sent to the movers of this amendment about the provisions in these clauses. It asked that, before they reached any final conclusions on the matter, they visit the logistics centres in Northern Ireland run by McCulla Ireland and McBurney to find out why it is not possible to apply the laws of international trade to regional trade without causing a crisis and to reflect on what they discovered before drawing any final conclusions. These are the largest haulage operators on the island of Ireland. They have considerable expertise on these matters. As Paul Jackson, the commercial director of McBurney, explained to noble Lords on the House of Lords Sub-Committee on the Protocol, were the protocol to be implemented, it would crash the Northern Ireland supply chain “within 48 hours”.
In focusing on the negative implications of the protocol, and the consequences for international law, I want to make it clear that it is not my purpose to deny that the protocol is having positive effects for some—although these would become limited if the protocol were to be fully implemented. My point is simply that, in a context where 95% of our British Isles trade is with Great Britain and only 5% with the Republic, the negatives far outweigh the positives.
The discriminatory implications of denying the people of Northern Ireland the same economic right to trade with their fellow UK citizens cannot be dismissed lightly, because they cut right to the heart of our citizenship. In another instance, the negative impact of the protocol is in no way comparable with the inconvenience arising from having to negotiate customs borders between different states and the application of the rules of international trade to international trade. The inconvenience arising from applying the rules of international trade to intranational or regional trade is far greater than the inconvenience arising from the application of the rules of international trade to international trade, which is why, with the exception of Northern Ireland, it does not happen elsewhere. Thus, we are not merely confronting a situation where we are not affording members of the same polity the same levels of respect as their fellows—seeking to treat them as if they were foreigners, rather than citizens of the same country, for trading purposes—but we are actually putting on Northern Ireland a far greater inconvenience than we put on traders from other countries, and, in this sense, the UK is treating the people of Northern Ireland far worse than those from other countries.
To understand why this is so, and the implications of this from the perspective of international law, we need to understand the difference between international and intranational trade. With talk about globalisation, it is easy to get carried away into thinking that the world is defined by homogenous global economic flows, in which national borders are nothing more than an anachronism. But that is not the case: the borders, even between highly interdependent western countries, mark important lines of difference. For example, a lorry engaged in international trade will typically be a large vehicle and carry just one or two products. The cost of generating the paperwork associated with this, in terms of customs and SPS, will be tiny expressed as a percentage of the value of the cargo. By contrast, lorries engaged in trade within an economy often carry many different products, up to around 300. This is no problem because, within an economy, lorries can move freely. If, however, you introduce a border within an economy and require lorries travelling from one part to another to cross a customs border so that they must provide 300 separate customs declarations and 300 separate SPS declarations —or even more in the case of composite goods—the cost of generating the paperwork expressed as a percentage of the total value of the cargo becomes huge. It is so great in fact that the enterprise becomes either uneconomic or just not worth the bother. In this context, 200 companies in Great Britain have already ceased to provide goods to Northern Ireland, and if the protocol were to be implemented—let us not forget that it has never been anything like fully implemented—that number would increase dramatically, and we would be confronting a major socioeconomic crisis.
Some—such as the noble Lord, Lord Kerr—might respond to this by saying, “Well, why can’t Northern Ireland get its goods from the Republic?” It can to a degree, but only to a relatively small degree. It must be understood that Northern Ireland is a fully integrated part of the UK economy. If one looks at movements between GB and Northern Ireland, and between Northern Ireland and the Republic of Ireland, 95% is between GB and Northern Ireland. Only 5% is between Northern Ireland and the Republic of Ireland, and that is the case notwithstanding the fact that Northern Ireland and the Republic of Ireland have both been part of the European single market since 1993. It is not possible to restructure an economy overnight by cutting off the source of 95% of supply without creating huge damage.
In this regard, it is worth remembering that the Good Friday agreement is a treaty and part of international law, and the section entitled “Rights, Safeguards and Equality of Opportunity” commits to
“the right to equal opportunity in all social and economic activity.”
Yet the protocol now cuts Northern Ireland off from most of its own economy, with disastrous results. This is a real problem, because Article 2(1) of the protocol states:
“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.
In this context, notwithstanding the existence of Article 2(1), and the fact that the operation of the protocol has had the effect of diminishing the right to economic activity by cutting Northern Ireland off from most of its economy, the source of 95% of its trade, the EU has nonetheless refused to change a word of the protocol. The UK clearly has an obligation under international law to introduce the Bill before us today.
Finally, I urge noble Lords behind this group to take the opportunity to visit McBurney and McCulla before drawing any final conclusions.
Lord Bew (CB)
My Lords, I shall comment briefly on the important remarks by my noble and learned friend Lord Judge. I referred earlier to the fact that the opinion of international lawyers is more complex and variegated than, say, the first 10 speakers in the House this afternoon appeared to know. One of the most important figures here is Professor Alan Boyle, emeritus professor of international law at Edinburgh, who has given evidence to committees of both Houses. At one level, his analysis is close to that of my noble and learned friend, Lord Judge. As I understand it, his view is that the Government ought to apply Article 16 at this moment.
We have been talking about this for years. I can remember, three and a half years ago, sitting down with the noble Lord, Lord Caine, looking at Article 16 and having an initial conversation about it. The Government have, at various times, been close to applying Article 16. They did not know then how fashionable it would become in this House to say that it is the way out. Had they known that that was going to happen, I am sure they would have done it, but civilised opinion said, “That is a terribly British thing, you can’t do it.” Amazingly, there has been a change of attitude now.
The point that Professor Boyle made, and which was not made by my noble and learned friend Lord Judge or anybody who has spoken for Article 16 this afternoon, is based on the idea that he accepted the underlying logic that the approach of the Bill to protect the Good Friday agreement was correct. There was a problem that the obvious features of the Good Friday agreement —strand 3 in particular, on the east-west relationship—are not being respected in the way the protocol was working.
It is pretty well documented, historically, how that situation arose in negotiating terms, but my point is this. My noble and learned friend, whose skills are so admirable in this matter, is just following a route that was followed for some hours today, which is to say, “Why do the Government not implement Article 16?” I more than half understand it. I am looking at the noble Lord, Lord Caine, and I suspect that at certain times in the last few years he might have thought that might not be a bad idea either. That is not the point. At this moment, politically, we just cannot do it. We have a serious negotiation with the EU. I have said this before: you cannot walk in and suddenly say, “Oh, by the way, chaps, we are now throwing this on top of your heads”. The moment has gone.
Further, the advocacy offered in this House is weakened by the fact that, for the majority of those people who have suddenly discovered what a wonderful device it might be, it is not accompanied by what Professor Alan Boyle did, which is to say that the saving of the Good Friday agreement is critical. He defended it on the grounds that it might be a step we have to take, and he accepted that there is a conflict between the way the protocol is working and that original international agreement, which we also have a duty to uphold.
Lord Judge (CB)
I understand the argument, although I do not agree with it, that if you employ Article 16 in the middle of negotiations, they will be spoiled. However, if you employ this Bill in the middle of negotiations, will the negotiations not be torpedoed even more?
Lord Bew (CB)
My Lords, we know for a fact that that is not so, as the Irish Foreign Minister has told us—maybe I am the only person who reads the Irish Times—that this Bill will not torpedo these negotiations. I am certain the Irish Government and the EU do not like it, but we know for a fact that this Bill is not torpedoing negotiations.
Lord Judge (CB)
In that case, how do we know for a fact that Article 16 will torpedo them?
Lord Purvis of Tweed (LD)
My Lords, if the argument of the noble Lord, Lord Bew, is so powerful, why has he failed to persuade the noble Lord, Lord Morrow, who started his remarks by saying that he has no faith in any of these talks resulting in any agreement for two or three years at least? If the noble Lord, Lord Bew, cannot even persuade the noble Lord, Lord Morrow, he may struggle to persuade others who may be a bit more sympathetic to his arguments.
The noble Lord, Lord Bew, knows that I like and respect him, but let me scotch this point about Article 16. The Government insisted that they were working in the joint committee when others on the Conservative Benches were saying they should dump that work and trigger Article 16. We on these Benches said, “Let the joint committee process do its work, because that is what the Government negotiated in the agreement.” Now we have heard in Committee in the Commons that talks have been exhausted—no more on the joint committee; instead, we are bringing unilateral legislation. So the noble Lord will forgive me for being a bit cynical about the Government’s position. On the one hand, they are saying that they are using the joint committee and therefore will not trigger Article 16, and on the other that they are no longer in the joint committee and need unilateral legislation. I am afraid it does not match. That is perhaps at the heart of why there is still uncertainty over the Government’s proposals.
At the outset, I say that I am a borderer and live in Scotland—I was going to say that therefore I sympathise, but that sounds deeply patronising. I understand many of the arguments, as I said earlier to the noble Lord, Lord Dodds, because I raised them in the debates. We opposed the Government because we could see the situation was not only going to be detrimental but would effectively remove rights. But that is not something that our Benches or this Bill can resolve.
I respect both noble Lords who spoke with passion about this, but I put it to them that they and Suella Braverman cannot both be right. The new Home Secretary is on the record saying that this Bill will make citizens in Northern Ireland “second-class citizens” —this Bill, not the protocol. She is arguing for this Bill to be amended. She said in her article in the Times that she had argued that while in government. She is now back in government, so I do not know what will happen with the Government’s position in this Bill on a dual regulatory system, but maybe the noble Lords can inform me later on.
If the noble Lord, Lord Morrow, is arguing so strongly that this Bill will not have Northern Ireland operating under two systems, it is incumbent on him to bring amendments to it to remove the dual regulatory system and Clause 11 when we get to it. I look forward to debating those amendments, because he surely cannot support measures in this Bill which would allow Ministers to enforce EU rules on traders within Northern Ireland.
Lord Morrow (DUP)
I thank the noble Lord for giving way. All I wanted to say is that I am encouraged that I can get his support if we do that. Is that what he is saying?
Lord Purvis of Tweed (LD)
I will match his “Get rid of Clause 11” with “Get rid of them all”, because that is our position.
The Advocate-General said at Second Reading:
“the peril … was not inherent in the protocol’s provision.” —[Official Report, 11/10/22; col. 764.]
But he then said today that the “problem lies in the protocol”, which the Government themselves negotiated. So, we are back to the situation regarding the Government’s proposals, and it seems that the Government are going to rest on an assertion of necessity, with an assumption that it is not going to be tested. It surely is not welcome for us, in passing legislation, that the Government are effectively asking people to challenge it in the international courts—I can only imagine that it would be the ICJ.
The ICJ has stated in clear terms that invoking necessity on wrongfulness and not adhering to a treaty commitment cannot be a permanent solution. So I ask the Advocate-General, if he responds to any of the points that I am going to make, whether the Government agree with that. The ICJ has stated on a number of occasions that, even if invoking necessity was upheld, it is only temporary in order to remove the grave and imminent peril; it is not permanent, because it still means that that party is in breach of the treaty.
So if long-term, permanent changes are required to be made, that will require protocol changes and treaty changes, and the Government have not said that. They cannot invoke necessity if they believe that this is a permanent solution. The reason why I say that with confidence is—the Advocate-General, in schooling the noble Baroness, Lady Chapman, and me as non-lawyers, said we were “less wrong” on this—that, customarily in international law, we have to look at the record of the ICJ. I asked the Library of the House to provide me with information on when the ICJ has upheld parties who have invoked necessity. It has never been upheld, for the very good reason that it has to be limited, and “grave and immanent peril” on a cumulative basis is considered an exceptionally high bar. The Advocate-General must know that.
Of the two cases that the Advocate-General cited, the one involving Hungary and Slovakia—which was referred to by my noble friend—I found fascinating, as I mentioned before, when I read the judgment. The Advocate-General said that necessity
“was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube.”—[Official Report, 11/10/22; col. 765]
As I referred to before, the Government seem to be relying on one case regarding communist Hungary in 1989 which the ICJ threw out.
The second case mentioned, involving Canada and fisheries, could refer to two cases. In one, the ICJ was asked by Spain to adjudicate because Canada had seized a vessel, invoking necessity, but the ICJ said that it could not look into it because Canada had passed legislation at that time to have a reservation from the ICJ, so the case could not even be heard. The other case relating to the Grand Banks should worry the Minister, as it was about imposing licence fees. Canada invoked necessity; the US responded saying that it would pay the fees of the fishermen and then claim reimbursement from Canada; then Canada amended its laws, which brought in all other aspects, and it was resolved by Canada removing the licence fees. Now, if that is a precedent, it is a worrying one, because I can see that there will be consequences with the EU as a result of this legislation. There will be reciprocal action and the UK will pay for it.
So can the Minister confirm what the Library told me, that there has never been a successful invocation of necessity? Can he tell me if there has ever been a case where any party has invoked necessity for framework legislation? I could not find it, so presumably the Minister will be able to help me.
Baroness Chapman of Darlington (Lab)
My Lords, I rise very briefly; I do not see any point in repeating what other people have said. I added my name to the attempt by the noble Baroness, Lady McIntosh, to remove these clauses, and it has been observed by some that this is a wrecking move. I guess it is, in a way, if you do not agree with a Bill and feel unable to amend it in a way that would make it satisfactory, you attempt to remove clauses which then unravel it. We are not happy with this piece of legislation and we are seeking ways—some of them creative, others more blunt, as this one is—because we think the Government are taking the wrong approach.
The points about necessity have been made at length. I think the Minister needs to be as thorough as he can—although perhaps not as lengthy as he can, just very clear. I think we want clarity about exactly where the Government think they are on this. My suspicion is that the Government are backfilling their answers as they go along and that they did not really think about this, because this piece of legislation was not really thought about. Introducing it in the first place was a political act to give the impression that the Government were playing hardball in negotiations. It has kind of served its purpose, as some people have explained, over the months. Ministers are now having to justify where they have got themselves, and we are all intrigued about where it is going to go next.
I do not know how the Minister is going to respond to the concerns raised by the DUP, which are incredibly serious and ought to be considered with the utmost thoughtfulness. Especially in the absence of any draft regulations, I do not know how those concerns are going to be dealt with. It is all very unclear. This is not the way we should proceed with any issues, and especially not when it comes to Northern Ireland.
We have been around the houses on the issue of Article 16 rather a lot. It is just ridiculous to claim that Article 16 lacks the flexibility to be able to deal with the concerns that have been raised—obviously it does. The Minister’s explanation for why that is no longer the Government’s preferred route does not really add up. Again, I think that in their desire to have some legislation, they are having to make up reasons going backwards, and that is why they are now coming unstuck on the Floor of the House.
I listened carefully to the noble Baroness, Lady Hoey, and her concerns about the haulage industry. It is absolutely right that those concerns should be raised. I would be very happy to go to Ballymena and to meet Mr Jackson to listen to what he has to say, because I am sure that what he said in his letter to us is true. Of course we ought to be looking at ways to make sure that those issues are fixed, but I do not think that this is the right way to go about it. This is not about the EU always being right; I think the EU was wrong to link these issues with Horizon. They have absolutely nothing to do with each other. We should have made progress on both issues, but separately. So, we do not always take the EU’s side. That is just not true.
The principal concern we have is that unless we get at the very least the things we have asked for in our earlier amendments—specifically these draft regulations; that is really important—we are going to be looking at ways to make sure that the Bill does not proceed as smoothly as the Minister would like. This is not a tweaking issue; we just do not think the Government are going about this in the right way.
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 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.