Northern Ireland Protocol Bill

Baroness Ritchie of Downpatrick Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

In concluding, I ask the Minister to set out what constructive engagement will now take place on this Bill with those who do not want to see it implemented; they are the majority in Northern Ireland. In the continued absence of the Northern Ireland Assembly, how will the Government keep the political parties in Northern Ireland informed of the progress, or otherwise, of the negotiations? I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I am absolutely delighted to add my name to this suite of amendments in the name of the noble Baroness, Lady Suttie.

These amendments clearly have a specific purpose. First, I believe that full recognition needs to be given by your Lordships’ House and the UK Government that the Good Friday agreement is the bedrock upon which all institutions are based and out of which they emerged. It includes three strands: the Northern Ireland Assembly and the Executive; north/south; and east/west.

Devolved structures and the power of the MLAs must be recognised, acknowledged and reflected, and their mandate must be so acknowledged. They must be allowed to have an accountability role. If this Bill becomes law and results in the limitation of the protocol, your Lordships should remember, as the noble Baroness, Lady Suttie, said, that a majority of MLAs elected in early May wrote to the then Prime Minister, Boris Johnson, indicating their opposition to the provisions in the Bill.

It is important, as I said, that the UK Government recognise that the majority of Assembly Members support the protocol, with refinements. They believe, as I do, that mitigations are required and, most importantly, they want the restoration of political institutions, particularly after Friday’s very odd press conference, given by the Secretary of State in the middle of Chichester Street in Belfast with onlookers walking past. An election will serve no purpose whatever. We would probably end up with a more polarised outcome in Northern Ireland and it will not have served its purpose.

The view of Assembly Members was also reflected in a recent poll by Queen’s University Belfast, which stated that 51% think that the protocol is having a positive impact on the Northern Ireland economy. Immediately we see the evidence of our divided society in Northern Ireland—63% think that it offers opportunities that could benefit Northern Ireland and 60% think the same about its impact on British-Irish relations. There is a fear that the UK Government are not operating or proposing a consensual approach through this Bill and are recognising only the views of unionists. Arrangements work in Northern Ireland only when they have the buy-in of unionists, nationalists and the non-aligned, and that is not possible under the provisions of the Bill.

We have no political structures operating at the moment, with no impetus from the Government to have them up and running. I hope that this week’s discussions between the Secretary of State, the political parties and the Irish Government will produce better outcomes and a better trajectory of travel. People do not want direct rule; they want their own Government.

Elections will not provide the answer, as the default legal position allows. Designation of Joint First Ministers should have been allowed. That would have obviated many of the problems currently being experienced. I hope that if there are negotiations and there is a review of the institutions, this issue comes back into; the Minister will recall this item being discussed in debates on the Elections Bill. It is worth noting that, very sadly, institutions have operated only at a very low percentage in the last 24 years. There is a need to end the inherent sectarianism that was ushered in by the St Andrews agreement in 2006-07.

It is also important to remember that the poll from Queen’s University told us that 65% of the Northern Ireland Assembly agree that the Northern Ireland Executive should be fully functioning regardless of what happens with the protocol, while 32% disagree. Broadly, these figures represent the political support and opposition in the Assembly in relation to the protocol.

The protocol should not have prevented the restoration of all the institutions. Noble Lords will become very angry when they realise that there are important issues for many people, such as the cost of living, the cost of doing business, and health waiting lists and getting on to these. It is worth noting that, at the evidence session during the protocol sub-committee’s visit to Belfast two weeks ago, young people who were there as community representatives viewed health waiting lists and the cost of living as much more important than the protocol.

The bottom line is therefore that the GFA standard, in all its strands, must be adhered to and protected. The pathway to that includes the need for all-party talks to resolve the outstanding issues. Rather than having a potential election, there must be renewed vigour in the UK-EU negotiations on the protocol, not only on the technical aspects but with the political negotiations that are urgently required. My fear is that any election process could stop the political negotiations. There has been a renewed focus on the technical, and it is important that renewed focus is given to the political.

I support the amendments in my name and that of the noble Baroness, Lady Suttie. I urge the support of your Lordships’ Committee. The accountability mechanisms in the Northern Ireland Assembly must be recognised and adhered to if this Bill is passed. They must be given their say, because the vast majority of Assembly Members elected do not agree with this Bill. They would prefer that it were not on the table and that the Government removed it.

[Lord Cormack (Con)]

My Lords, Harold Macmillan, that great Tory Prime Minister, had a quotation on his desk or wall—I forget which—by WS Gilbert:

“Quiet, calm deliberation disentangles every knot.”


If there were ever a need for this, it is now, on the issue of the Northern Ireland protocol: a treaty negotiated by a British Prime Minister and one of his colleagues, who is present this afternoon; commended to both Houses of Parliament; and given support—with a degree of reluctance, because many of us realised that it was far from perfect.

I understand why my noble friend Lord Howell of Guildford made the brief point he made before he left the Chamber. I believe that we are wasting our time in a prodigal fashion. To quote the noble Lord, Lord Reid of Cardowan, many years ago, the Bill is not fit for purpose. It never will be, however many amendments we pass on the Floor of your Lordships’ House.

We have all agreed that there will be no call for Divisions in Committee. Colleagues on both sides of the Committee know that I would have liked to have a vote to pause proceedings at Second Reading. However, it was conveyed to me that the Labour Opposition were not prepared to support that, and it would not have been right for me to go ahead when I clearly did not have strong support in all parts of the House.

We are now in an Alice in Wonderland situation where a series of amendments—the noble Baroness, Lady Suttie, moved her amendment eloquently and persuasively—are not going to change the fundamental nature of the Bill; they are not going to make it acceptable. So this charade is going to continue through today and two more days, and then the Bill will go to its Report stage. I beg my noble friends on the Front Bench: for goodness’ sake, pause it there at least, so that negotiations can take place without any implicit threats over our European friends and neighbours. I deliberately and repeatedly call for that. Let us have those negotiations, and let us hope that they are entered into in good faith on the both sides.

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As noble Lords will be aware, the Government’s intention is to put in place a different regime with a green lane free of unnecessary paperwork, checks and duties for goods remaining within our united United Kingdom. For goods destined for the EU, there will be a red lane where full checks, controls and customs procedures would apply. I have said to officials that we are quite happy to arrange a briefing on the detail of how these lanes may work. I have said this to my noble friend Lord Cormack. Where I can, I will seek to provide clarification and more detail as necessary. If that is something that noble Lords feel would be helpful, we would be happy to arrange that.

[Baroness Ritchie of Downpatrick (Lab)]

The Minister is referring to the dual regulatory regime. I would like the Government to understand that this will work for some businesses but for other types of industry, such as the dairy and beef industries, it will not. It may be useful for the Government to take further evidence from those industries in Northern Ireland which have practical, on-the-ground experience of, for example, where there is a need for a department of agriculture certificate to certify that milk is milk and is of perfectly good quality. That needs to be addressed adequately.

[Lord Ahmad of Wimbledon (Con)]

My Lords, it would be a choice for that particular business or sector, as my noble friend Lord Caine, has just reminded me, but I take on board the noble Baroness’s point. That is what I have already suggested. When I was preparing for the sitting today, I asked officials if there were different approaches to different sectors. She has highlighted them. It would be helpful on the specifics, and I will certainly take that back to the department, but I have already offered that we could provide more insight and explanations.

On consultation, which the noble Baroness alluded to, we are doing exactly that. Our colleagues in the Northern Ireland Office are speaking with businesses and the practical issues are, where necessary, being highlighted so we can address them. As we proceed with the Bill and have further discussions, the ultimate objective is to ease the burden on the ability of businesses from Great Britain to operate effectively and in a fluid nature within the context of the wider United Kingdom, inclusive of Northern Ireland.

Clause 4(4) sets out a non-exhaustive list of criteria which may be considered when prescribing those movements. It is these “qualifying movements” which will be ultimately entitled to enter our proposed green lane. Clause 4(5) provides a power under which a Minister can make regulations about the meaning of those goods which are heading for the UK, or which are non-EU destined, including by providing the basis under which a trader registered under a prescribed scheme, such as trusted trader scheme, can state whether goods being moved are UK or non-EU destined.

Finally, Clause 4(6) defines the meaning of “qualifying movement” for the purposes of the clause. Qualifying movements are those from any place other than the EU to Northern Ireland and the reverse, including movements within the UK and movements of goods by sea into ports in Northern Ireland. Clause 4 is right at the heart of our intentions in rationalising the processes alluded to by the noble Lord, Lord Dodds, which are required when goods move into Northern Ireland. We have been clear that we do not believe it is appropriate to continue to require full customs and SPS processes when goods are not destined for the EU, and it is this clause that will allow us to put in place a more sensible regime. That is why I recommend that noble Lords allow this to stand part of the Bill.

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This is so fundamental because—the Minister knows that I have raised these questions before, about conformity marking—any good that goes through either of these routes is going to have to have a UK conformity assessment—UKCA—mark or a CE mark or a UKNI mark, if qualifying Northern Ireland goods are placed on the market in Northern Ireland. It is still not clear how this is going to operate, but the Government are indicating that from January 2023 this new scheme will be put in place. I hope that there will be some answers to these questions, which are being asked by businesses, and fundamentally the Government have to provide these answers before we complete the scrutiny of this legislation, because otherwise we simply do not know what we are giving the Government authority to do. I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the noble Lord, Lord Purvis, for his clear elucidation of the impact of these amendments. To give a practical example, the dairy industry in Northern Ireland, which I mentioned earlier, is largely all-Ireland in nature, because the greater proportion of the processing of dairy products is in the Republic of Ireland. If grain comes into Northern Ireland through either the red or green lane and could be used by a dairy farmer, the DAERA vet—the department vet—cannot certify whether the milk is produced to EU standards. How can he do so with no certificate? The milk is therefore not going south for processing. That also applies to animal healthcare products. The green and red lanes probably work for retail, but not for food processing. It does not work for primary processers who export.

It is worth noting that in 2021 the Northern Ireland dairy industry represented 31% of UK dairy exports overall. Green and red lanes, or the dual regulatory zones envisaged in this Bill, would cause huge damage to the dairy industry. I know that certain elements of the dairy industry, such as Lakeland Dairies, have had discussions with the noble Lord, Lord Caine, and, prior to that, former Minister of State Burns. I know it would be deeply appreciated if the noble Lord could have further discussions with them, because they know the practical outworkings of that.

Further to that, it is clear that these issues are fundamental to the negotiations, including the technical negotiations, that should be going on between the UK and the EU. We want to see resolutions to these issues. I recall what my noble friend Lord Hain said: where there are problems with the protocol—such as with its implementation—there are solutions. If there is good will on all sides, exactly those negotiations will try to resolve those wrinkles and difficulties.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, having listened to the debate thus far, I have again noticed that a number of noble Lords seem to be exercised about the DUP’s well-known opposition to the protocol. To be clear, not one unionist or unionist party in Northern Ireland accepts the protocol. Rather than just mentioning the DUP, I ask noble Lords collectively not to obsess over the party and realise that there is a serious problem to be dealt with. Clearly, we have an impasse at present, and until the Northern Ireland protocol is dealt with, we will not move forward into an Assembly. That must be restated.

In this group we are confronted with the proposal that Clause 7 should not stand part of the Bill. The clause deals with the option of dual regulatory routes, which arises from the Bill creating a regulatory route that does not involve complying with the protocol. Thus, those proposing the removal of Clause 7 once again engage their argument that the doctrine of necessity cannot be applied and thus excuse us from complying with the protocol. In that context, they maintain Clause 7 should not stand part of the Bill.

Once again, it seems to me that arguing for necessity and a special dispensation not to obey international law is not the best way of addressing the protocol problem. In making this case, I will pick up on the assertion made by some noble Lords that this Bill is problematic not only because no commitment was made to it in the 2019 Conservative manifesto but because the manifesto suggested that the Conservative Party was committed to the protocol. It seems to me that one can assert on this basis that it would be wrong for the Government to bring forward a Bill such as this only if we pretend that Articles 1 and 2 of the protocol are not part of it.

Not only do Articles 1 and 2 subject the protocol to the Belfast agreement treaty, but Article 30 of the Vienna Convention on the Law of Treaties makes it plain that, in the event of any conflict, the Belfast agreement should prevail. This clearly implies that if the operation of the protocol undermines the Belfast agreement, action must be taken. This is more than implied in Article 2, which actively places as a matter of international law an obligation on the UK Government to ensure that the operation of the protocol does not diminish the rights set out in the section of the Belfast agreement

“entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.

As other noble Lords have pointed out, the operation of the protocol is dramatically diminishing the right in the relevant section of the agreement to

“pursue democratically national and political aspirations”.

This right can no longer be pursued in relation to 300 areas of law that have now been removed from a legislature that includes legislators elected by Northern Ireland and placed in a legislature where Northern Ireland has no legislators. This means that, rather than international law being the enemy of this Bill, it is its friend, because the Government are subject to an obligation in international law—Article 2 of the protocol—to take action to ensure there is no diminishment of the right to

“pursue democratically national and political aspirations”.

There is an additional international legal imperative in this regard which should not be overlooked. It arises from Article 3 of the protocol of the European Convention on Human Rights and the case law arising from the case of Matthews v United Kingdom. Matthews lived in Gibraltar and was subject to legislation made by the European Union. As in the case of Northern Ireland, this legislation was made by the European Parliament, in which Gibraltar had no representation. Paragraph 64 of the judgment of the European Court of Human Rights in the case concluded:

“In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it … In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied. It follows that there has been a violation of that provision.”


This case is of seminal importance, because it established that it is not lawful for any jurisdiction to be subject to legislation made by the European Union when the citizens of the said jurisdiction are not given the opportunity to elect their own representatives to the EU institutions to make that law. The Matthews judgment rings out loud and clear across Northern Ireland. The legislation imposed on Northern Ireland, courtesy of parts of the protocol, denies the very essence of the right to vote, as guaranteed by Article 3 of the protocol of the European Convention on Human Rights.