Northern Ireland Protocol Bill

Baroness Ludford Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, in a recent speech the vice-president of the European Commission, Maroš Šefčovič, said:

“You may not hear this often from a European Commissioner, but it is high time we got Brexit done”.


The irony of this Government’s position on the protocol and this Bill is that they seek to overturn an instrument that was part of the package their party so triumphantly said got Brexit done—whatever rewriting of history we have heard tonight. Perhaps Mr Šefčovič’s answer came last Friday when the Secretary of State for Northern Ireland, Chris Heaton-Harris, said:

“I want to be very positive about the chances of getting a negotiated solution. We are working in good spirits and in good cooperation … We need to show some progress on that”.


The noble Lord, Lord Hannay, reminded us that the gap is pretty small. The noises are hopeful and these Benches urge a rapid and constructive result to the negotiations on possible adjustments to the implementation of the protocol, instead of this unacceptable unilateral abrogation of a treaty.

I note that the Minister, the noble Lord, Lord Ahmad, referred to “technical talks”, which makes the point that the protocol is not being reopened. The noble Earl, Lord Kinnoull, spoke of the impasse in the wider UK-EU relationship, not least the blockage of our access to Horizon, a very unfortunate spillover. The original mistake was pursuing the hardest of hard Brexits and cutting the UK out of the single market and customs union, as the noble Viscount, Lord Hailsham, emphasised. Let us hope that sense will prevail on that score in years to come.

But that original mistake of policy was accompanied by a complete absence of integrity. As my noble friend Lord Bruce said, it was starkly clear that “Get Brexit Done” was a great electoral slogan for a weary electorate, but at its heart it was, and is, a deliberate deception. My noble friend Lord Thomas of Gresford recalled that Mr Johnson advised traders to throw paperwork into the bin. So, when the Government now complain of the protocol’s “unnecessary checks and paperwork” and “burdensome bureaucracy”, we are entitled to point out that this was their sovereign choice. But, as my noble friend Lord Purvis of Tweed recalled, Liberal Democrats, along with our partners in the Alliance Party, were ridiculed and condemned when we repeatedly warned of the implications of the protocol for trade and business. Professor Katy Hayward of Queen’s University Belfast said:

“This is a bill that is purportedly intended to protect the 1998 Good Friday (Belfast) Agreement, but as it stands it looks set to bring new levels of economic and political uncertainty for Northern Ireland”.


As the noble Lord, Lord Jay of Ewelme, said, the present uncertainty is destabilising.

My noble friend Lady Suttie pointed out that the Bill is not something that the majority of people in Northern Ireland or the business community actually want. My noble friend Lady Doocey drew attention to the problem that a dual regulatory regime would cause for dairy farmers, since, if animal feed from the EU and the UK were mixed up, it would be impossible for vets to certify that an animal’s milk genuinely met EU standards. In fact, a dual regime may lighten the red tape load on GB exporters, but it will increase it on Northern Ireland businesses, and all the loose talk about regulatory divergence can only make matters worse.

If the internal market Bill would have broken international law in a “very specific and limited” way, the current Bill’s breach of it is absolutely blatant and comprehensive. The noble Lord, Lord Pannick, dealt fully with this subject, as did the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Howard, and the noble and learned Lord, Lord Garnier—all of them distinguished lawyers. The noble Lord, Lord Tugendhat, recalled that Margaret Thatcher was committed to the rule of law.

It has been pointed out that Article 16 provides a legal mechanism for safeguard measures within the scope of the protocol, but the Government have declined to use this, as the noble Lord, Lord Howard, said. He recounted how the former Attorney-General told him that Article 16 was not being invoked because it only allows measures that are “proportionate”. For a country such as the United Kingdom, with its web of treaties and global connections both public and private, to be so cavalier about breaking international law is a very serious error and reputational own goal. Who in the world will trust our Government and even our businesses to keep their word in future? The noble Lord, Lord Cormack, was eloquent on this point.

The noble Lord, Lord Ricketts, warned that this is a very dangerous time internationally and a moment for unity and solidarity in the alliance backing Ukraine, not divisions between the UK and the EU. The noble Baroness, Lady Wheatcroft, warned of the effect on the financial markets. The noble Lords, Lord Kerr and Lord McDonald, noted the welcome reset in relations with the EU, with Prime Minister Liz Truss, when taking part in the inaugural meeting of the European Political Community, even able to bring herself to call President Macron a “friend”. This welcome reset would be torpedoed by this hostile Bill, and the mooted bilateral UK-France summit for next summer would surely go in the bin. With our economy in a very fragile position, the last thing we need is a trade war with the EU, and the last thing that Northern Irish traders need is the loss of ready access to the EU single market.

Other noble Lords have adequately covered how the Bill represents an almighty power grab by the Executive, as have the excellent reports from our Delegated Powers Committee, so I will not repeat that point. However, I will quote the Conservative chairman of the Justice Select Committee in the other place, Sir Bob Neill, who said,

“the reality is that there are Henry VIII powers and Henry VIII powers; and this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together”.—[Official Report, Commons, 13/7/22; col. 370.]

I also point—as did a stellar quartet of the noble Baronesses, Lady Ritchie, Lady O’Loan, Lady Kennedy and Lady Goudie—to the very legitimate concerns of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland about the impact of the Bill on the implementation of Article 2 of the protocol, the commitment by the UK Government to ensure

“no diminution of rights, safeguards and equality of opportunity”

protections as a result of the UK’s withdrawal from the EU. If the Bill progresses, that will need detailed examination.

I conclude with what the former Prime Minister Theresa May said in the other place—words widely echoed across this House today, including by the noble Lord, Lord Kirkhope:

“In thinking about the Bill, I started by asking myself three questions. First, do I consider it to be legal under international law? Secondly, will it achieve its aims? Thirdly, does it at least maintain the standing of the United Kingdom in the eyes of the world? My answer to all three questions is no. That is even before we look at the extraordinarily sweeping powers that the Bill would give to Ministers.”—[Official Report, Commons, 27/6/22; col. 63.]


We have two previous Conservative female Prime Ministers, Margaret Thatcher and Theresa May: one who cannot now give her opinion but would surely not have approved of this Bill, and another who has said that she does not approve of this Bill. The most recent previous Prime Minister did his Government and country no favours in bringing it forward. In words he might have spoken, it is time for the present Prime Minister to “donnez-nous un break”—indeed, to give herself a break by ditching it.

Northern Ireland Protocol Bill

Baroness Ludford Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Baroness Ludford (LD)]

Has the noble Baroness seen the latest opinion poll, which shows that, when you exclude “Don’t knows”, 60% of British people want to rejoin the EU?

[Baroness Fox of Buckley (Non-Afl)]

I am always delighted when people think that opinion polls and what is said on Twitter are democracy in real life. I do not know why we bother with the ballot box—we should just go to an opinion poll. I believe in democracy and the democratic right of the British and UK people to make their decisions without rushing off to Opinium Research, or whoever it may be.

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[Baroness Ludford (LD)]

My Lords, we heard two views earlier in the debate, which was longer than any of us expected, on the two amendments. We heard two views on whether this Bill was going to poison the chance of negotiations with the EU. One was from the noble Lord, Lord Bew, who thought it would not. I agreed with the view put forward by the noble Lord, Lord Clarke, that the Bill is extremely unhelpful to negotiations, and with the point he made about the risk of a trade war with the EU, which is the last thing we could possibly afford to risk—and I would add the prospect of undermining relations with the United States.

I noted the helpful and sensible suggestion of the noble Lord, Lord Cormack, that we get a briefing session on the negotiations, but perhaps even today we might hope that in replying the Minister can give us some flavour of the issues that the Government believe can be the peg for progress in the negotiations in, hopefully, the weeks rather than the months to come. The EU has been making suggestions for the best part of 18 months, I think—certainly more than a year—but the Government have not taken up the opportunities that have been offered, so I fervently hope that they are now going to be extremely serious about these negotiations.

I want to pick up three suggestions—which are not exhaustive—made by my Alliance Party friend in the other place, Stephen Farry MP. The first is about flexibilities in the protocol. The EU has made numerous suggestions and progress on the issue of medicines. The Government do not seem to have given much acknowledgment to the progress that was made on that subject. Perhaps the Minister might give us some idea of other sectoral issues where he thinks progress could be made.

The second suggestion made by Stephen Farry was to use Article 13(8) of the protocol, which allows the protocol to be superseded in whole or in part. Apparently, that was put in at the request of the UK Government, and it could be used to negotiate changes to the protocol by mutual agreement. Perhaps the Government could tell us whether they have any intention of invoking Article 13(8) of the protocol.

Mr Farry’s third point is one that has just been made by the noble Baroness, Lady Ritchie, and by my noble friend Lady Doocey at Second Reading. It relates to the very valuable contribution that a veterinary or SPS agreement could make, particularly to solve problems around food and agriculture, especially in the dairy industry. This offer has been on the table from the EU since the protocol was first signed, and it has been a matter of considerable puzzlement that the Government have not progressed that.

Perhaps the Minister, in replying, could give us some sort of steer on where he thinks the opportunity exists to make improvements either in the protocol itself, if Article 13(8) were to be exploited, or in the implementation of the protocol by taking the route of flexibility and additions, such as an SPS agreement.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank all noble Lords for their contributions. I will go straight to the amendments. Amendments 1 and 70 in the name of the noble Baroness, Lady Chapman, would make the commencement of regulations under this Bill dependent on the Government confirming that they have been unable to reach a negotiated settlement with the EU and are of the opinion that all legal routes have been exhausted. I will repeat what I have said a number of times: our preference remains to resolve the issues around the protocol through talks. As I have already indicated, my right honourable friend the Foreign Secretary and Vice-President Šefčovič have already spoken a number of times to reiterate their shared commitment to finding solutions to this issue. Consequently, as I have also said already, the Government are engaging in constructive dialogue with the EU to find solutions to these problems. The Government will update Parliament on the talks with the EU at the appropriate time.

My noble friend referred to possible briefings. I cannot make the detailed commitment that my noble friend is seeking, but I will certainly reflect on his suggestion. I have just spoken to my noble friend Lord Caine about whether we could provide, as the noble Baroness, Lady Ludford, suggested, an outline at times; I certainly respect your Lordships’ insights on this. I will take that back and reflect on the proposals that have been put by my noble friend. As I said in concluding the earlier debate, to the Front Benches in particular, I assure noble Lords that I will seek to continue to update noble Lords on progress. I know that I speak with a similar commitment to that of my noble friend Lord Caine in dealing with Northern Ireland on this issue as well.

However, it is the Government’s view that we need to progress this Bill now to fix the practical problems that have been highlighted. Under these amendments, the UK would not be able to implement the solutions to the issues of the protocol while discussions with the EU were ongoing. This would mean that the EU could, for example, seek to introduce discussions indefinitely, under the knowledge that this Government would have to admit that negotiations had not reached a successful conclusion.

I am sure noble Lords would agree that we should not present ourselves with a choice between continuing negotiations indefinitely and no unilateral solutions for Northern Ireland. The Government—although I know that other noble Lords have different perspectives —have given their position as to why we feel it is necessary at this time to pursue and continue with the progress of this Bill.

We also believe that these amendments would require the Government to confirm that they have exhausted all legal routes under the withdrawal agreement before they could bring substantive provisions of the Bill into force. The Government have been clear that the Bill is justified, in our view, under international law. That is without prejudice to our position on other mechanisms available—

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Moved by

[Baroness Ludford]

3: Clause 1, page 1, line 15, at end insert—
“(e) requires Ministers of the Crown to set out their legal advice on altering the effect of the Northern Ireland Protocol in domestic law.”Member’s explanatory statement
This is linked to Baroness Ludford’s amendment after Clause 25 (Publication of legal advice).

[Baroness Ludford (LD)]

My Lords, I rise to move Amendment 3 and speak to Amendment 67. If the Government are so confident of their legal case, which rests on the doctrine of necessity, they should surely have no hesitation in making a full legal justification available to us.

They surely owe us that much, as we grapple with the contrary views that have been expressed by many distinguished sources. The International Law Commission has stressed that the doctrine of necessity must be construed narrowly and can be invoked only in exceptional circumstances, being strictly necessary to safeguard essential interests against a “grave and imminent peril”. Our Constitution Committee finds:

“It is difficult to conclude that the circumstances cited by the Government”


in their own short legal paper, have indeed

“created ‘grave and imminent peril’.”

As the noble Lord, Lord Pannick, pointed out at Second Reading, the Government have been complaining about the protocol for a long time—almost since they signed it, in fact. So if it was not imminent three years ago, it is not really imminent now. The Constitution Committee also doubts that this Bill is the “only way” to protect UK interests since, as has already been explored, there is Article 16, which has not, despite many noises over the past year, been initiated. There are also dispute resolution provisions, and of course negotiations—or talks or something—which are, as we have been discussing, thankfully now going on.

The Constitution Committee also argues that the Bill’s provisions

“go beyond those strictly necessary to remedy the peril that the Government”

claim to identify. After all, if the Bill includes, in Clause 13, the removal of the oversight role of the CJEU, what has that got to do with the doctrine of necessity and “grave and imminent peril”? I would be interested in the Government’s reply to that point.

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[Lord Stewart of Dirleton (Con)]

My Lords, in any case, there will be parties that are disappointed to a greater extent than others. The point is that one party proposes. That party does not determine the question; the determination of that question falls to someone else.

In relation to the point made by my noble friend Lady Altmann, our preference for negotiation clearly remains. As the Committee has heard, that negotiation is not interrupted or affected by the Bill moving through your Lordships’ House.

[Baroness Ludford (LD)]

My Lords, the Minister said that the four-page document we saw in July was designed to assuage our concern. Unfortunately, it did not. In one sense, I am impressed that the Government are prepared to receive criticism of their legal assertions in that document from people of the stature of Sir Jonathan Jones, Professor Mark Elliott, the noble Lord, Lord Pannick, and my noble friend Lord Campbell of Pittenweem, and still say, “Well, the four-page document adequately sets out our case”. I am sort of impressed but also surprised that the Government are not provoked by the level and depth of that criticism to make a bit more of an effort.

One of my noble friends—I cannot remember which—highlighted the difference between the assertion made at Second Reading that the problem lies in the protocol and the emphasis this evening that the problem lies in its implementation. That would imply that there is no need to rip up the protocol, which is what the Bill is designed to achieve, and that negotiations or dispute resolution up to the ECJ would fit the bill as the problem is in the implementation. The Government keep switching their ground depending on, it seems to me, who most recently raised a point as to whether the real problem is the protocol or its implementation. The Minister said that invoking Article 16 would deal only with the symptoms not the protocol, but surely “symptoms” are the same thing as “implementation” in this context. Again, there is inconsistency here over whether the problem lies with the text of the protocol or its implementation.

The Minister rather confused me with his references to the CJEU being part of the problem. Again, that was known three years ago. The Government agreed and signed up to what the EU would not have otherwise agreed to—Northern Ireland being effectively part of the single market—without the CJEU being the ultimate arbiter of legal disputes. However, I have frankly never taken the point from the right that court adjudication creates a democratic deficit. We do not expect courts to be democratic. They are part of a liberal democracy but are not themselves supposed to be an epicentre of democracy. They rule on the application of the law.

I do not think that it says much for the Government’s knowledge, understanding, foresight or policies that they are now seeking to diverge from the single market, not least in the Bill—I cannot remember its full title; it is something like the revocation of retained law Bill, otherwise known as the Brexit freedoms Bill—that had its Second Reading in the other place today; I do not know whether that is still going on. Diverging from single market legislation makes the implementation of the protocol more difficult so there does not seem to be any coherence in the Government’s policy. They criticise the implementation of the protocol but are going to make that implementation more problematic; indeed, the noble Baroness, Lady Altmann, talked about how maintenance of regulatory alignment would help east-west trade. A UK return to the single market, if not the EU, would do so even more.

[Lord Bew (CB)]

This is a little simpler than our discussion, which has reached a rather convoluted shape. The Government were clear when they launched the Bill that its function is to fix it, not to nix it, as the then Prime Minister said when he came to Belfast, in one of his graphic expressions. That is the simple fact with the protocol, not that you would realise it from anything said in this House today. For example, the Government’s most important commitment to the EU, which is not to have a hard border and to protect the single market, is completely up front in the Bill.

This debate is on whether the Bill is completely destroying things, but we have all been told that it is to fix it, not to nix it. There really is not much to add. The idea may be wrong. There are a number of reasons why it might not work. The Government’s case in international law may not be as strong as the Government believe. The general views of international lawyers on this subject are certainly more complex than most speakers in this House acknowledge. It is certainly a more complex matter—but this is to fix it and not to nix it.

[Baroness Ludford (LD)]

I will not prolong the debate as we all want something to eat. I simply disagree with the noble Lord.

The noble Lord, Lord Dodds, spoke of a lack of trust. As the noble Baroness, Lady Chapman, said, his argument is surely not with the opposition parties, because we have not caused a lack of trust. I happen to believe that unionists in Northern Ireland have long had a bad deal from English Tories, which makes me rather surprised that they have such a close relationship.

I have sympathy with the argument about the lack of democratic input from Northern Ireland into single market legislation, but only the UK being a member state of the EU can fully solve that problem, as it did before. Obviously, I speak as a long-term member of the European Parliament. If there are ways to take into account the views of Northern Ireland, I would be the first to support those suggestions.

The noble Lord, Lord Pannick, answered the point on Article 16. It is not that anybody who has raised it here this evening is advocating the use of Article 16; it is just that the Government cannot invoke the doctrine of necessity when they have not exhausted all the other possibilities.

I am afraid that the Minister, who did his best in slightly shorter time than at Second Reading, has not satisfied me, and probably not my Benches, that the Government are able to put further meat on the bones of how they can justify the doctrine of necessity and thus the legal arguments for the Bill. I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

Northern Ireland Protocol Bill

Baroness Ludford Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

But if the consequence of doing so is to embrace a Bill which drives a horse and cart through the procedures and principles by which this Parliament operates, surely that is an inhibition and we should avoid it at all costs.

[Baroness Ludford (LD)]

To prevent the noble Lord, Lord Bew, having to get up and sit down again, I ask him again to appreciate and acknowledge that, as the noble Lord, Lord Kerr, said, nobody in the debates we have had, whether at Second Reading, on the first day in Committee or today, is arguing to invoke Article 16. No one is advocating its use, let alone now. All that is being said is that the legal argument of necessity invoked by the Government is undermined by the fact that they have never resorted to the use of Article 16; hence necessity is on very shallow foundations.

[Baroness Butler-Sloss (CB)]

My Lords, is there not a very short answer to all of this: not to proceed with the Bill?

Northern Ireland Protocol Bill

Baroness Ludford Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

I shall speak very briefly because this amendment gives rise to many of the same debates that we have already had this evening. We have tabled Amendments 12 and 15, which would prevent

“the delegated powers in Clause 9 from being used unless a draft of the instrument, a report of a relevant consultation exercise, and an appropriate economic impact assessment have been laid before Parliament.”

The Government say that Clause 9 is needed because the policy is not yet developed. We are worried about this, so these amendments would act as a safeguard by preventing the power being used unless the conditions in the amendment are met. We think Northern Ireland businesses would be better served if our amendment were to be accepted, notwithstanding all our previous comments on our approach to the Bill more generally. Businesses were telling us—I am sure other noble Lords have heard the same—that they want and need stability, predictability and security. I do not think this will be delivered by the Bill; it comes only through negotiation. We must amend the Bill; it is what we are here to do this evening. We have made this suggestion because we think it would be particularly helpful to the business community to have more of a say and to get more clarity from the Government on what they might intend to do.

[Baroness Ludford (LD)]

My Lords, I support these two amendments, but they are not even contesting the making of regulations or asking for substance or content; they just require a process for making the regulations. As my noble friend Lord Purvis said in the debate on the previous group, there is nothing in the Bill on consultation. Assuming that Clause 9 remains—which we hope it does not—this amendment is trying to put some meat on the bones that should probably already exist. The Government said in the delegated powers memorandum that the regulations under this clause would

“need to reflect the results of consultation with businesses”.

The problem is that this clause provides for no such consultation. Our Delegated Powers Committee commented:

“This is the frankest admission by the Government that policy is so embryonic that it has not yet been consulted on.”


The committee’s comment on Clause 5 is also pertinent and relevant:

“Ministers are said to need flexibility, but the reality is that policy has not yet been formulated … the Government could have formulated their policy, consulted on it, refined it (if necessary) and then brought forward legislation with the details filled in. This would have facilitated meaningful parliamentary debate.”


Yet, the Delegated Powers Committee went on,

“Parliament is being presented with a major Bill on the subject. Legislation has preceded policy development rather than vice versa”.

I think I may be repeating what my noble friend has already quoted.

Amendment 15 therefore contains reasonable and sensible conditions for a draft of any proposed SI—for a report on consultations with business and an economic assessment to be laid. I suggest that the Government will, or ought to, have some difficulty in finding arguments to resist these amendments.

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[Baroness Ludford (LD)]

My Lords, I want to bring the focus back to Article 2. The noble Lord, Lord Bew, said that this Bill is modest but the problem is that the law of unintended consequences could come into play here.

My noble friend Lord Purvis of Tweed coined the phrase “Rumsfeld clauses”. I do not want to detract from his trademark on that phrase—he will kill me—but, as concerns Article 2, the Bill shows some evidence of having been written on the back of an envelope. Concerns about human rights and equality have been at the heart of the conflict in Northern Ireland, so those concerns were central to the Good Friday agreement.

Thus Article 2 of the protocol, ensuring a non-diminution of the wide range of rights set out in the Good Friday agreement, is a key clause. However, there are worrying implications of the Bill for human rights and equality protections, which are in danger of being overlooked. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland point out that the Explanatory Notes to the Bill make no reference to any consideration having been given to compliance with Article 2 of the protocol. Those two commissions have previously recommended that this should be the case regarding all relevant legislation. I understand that the Leader of the House of Commons, the right honourable Penny Mordaunt, is talking about draft guidance to Bill teams on this matter. This is in response to concerns that have been raised for quite a few months now by various committees, such as the Northern Ireland Affairs Committee and Women and Equalities Committee in the other place, the Joint Committee on Human Rights, on which I have the pleasure to sit, and our own Northern Ireland Protocol Sub-Committee. They have all raised concerns about compliance with Article 2 of the protocol.

The Government gave assurances about their commitment to Article 2, and it is true that this article gets a degree of protection under the Bill; for instance, that Clause 15 does not permit Ministers to make regulations defining Article 2 among “excluded provisions”. However, even Clause 15 needs completion, as the noble Baroness, Lady Ritchie, pointed out. The logic of protection of Article 2 is far from fully reflected in other clauses of the Bill. Hence these amendments—and I support all those tabled by the noble Baroness, Lady Ritchie, not just the two I have co-signed—propose a strengthening of Clauses 9, 10, 13 to 15 and 20.

This Government do not like the European Court of Justice, but its role is essential at various points in relation to Article 2. That article includes a commitment to keep pace with EU laws, as the noble Baroness pointed out, with EU law developments falling within the scope of the six equality directives listed in Annexe 1 to the protocol. As these directives are updated or replaced under the normal process of EU legislation, the UK Government are committed to ensuring that domestic legislation in Northern Ireland reflects any substantive enhancements in relevant protections. There are also other relevant EU laws beyond the six equality directives that underpin rights in the Good Friday agreement, such as the victims’ directive, the parental leave directive, and the pregnant workers’ directive.

The Government are committed to ensuring that there will be no diminution of protections as contained in relevant EU law on 31 December 2020. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have acquired additional powers to oversee the Government’s commitment under Article 2. However, it is essential that Clause 20, which removes the binding nature of judgments of the European Court of Justice, is amended to ensure that the dynamic alignments—the keeping pace—guaranteed under the protocol for citizens’ rights in Northern Ireland can be delivered. The same applies to Clause 13.

The UK-EU joint committee supervises the implementation of the withdrawal agreement, but where there is a dispute regarding the interpretation of EU law which the joint committee or the arbitration panel cannot resolve, then under Article 174 of the withdrawal agreement, the ECJ must be asked to give a binding interpretation. This needs to be recognised and incorporated in Clause 13.

I mentioned Clause 15. The remaining problem there is that it does not prevent Article 14(c) of the protocol, which provides for the UK-EU specialised committee to consider matters brought to its attention by the two commissions in Northern Ireland—human rights and equalities—from becoming excluded provision by sort of oversight. The same applies to the lack of protection of the protocol’s Article 15, which provides for a joint consultative working group on the effective operation of Article 2.

The other amendments in this group raise similar and related issues. For reasons of time, I will not dwell on them. I am sure that noble Lords get the drift. One is left to conclude that there was either a lack of thorough preparation on the Bill—hence my quip about the back of an envelope—or a disturbingly cavalier disregard for Article 2 of the protocol. I am not sure which is worse. Neither is excusable, but I hope the Minister can tell me that the Government will take away especially all those excellent, very dense and precise questions raised by the noble Baroness, Lady Ritchie. Quite honestly, what is in the Bill at the moment is not remotely satisfactory to honour and safeguard Article 2 of the protocol.

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

“The United Kingdom shall ensure no diminution of rights, safeguards and 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”.


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.