Northern Ireland Protocol Bill

Baroness Ritchie of Downpatrick Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

Moved by

[Baroness Ritchie of Downpatrick]

15A: Clause 9, page 5, line 34, at end insert—
“(3) In exercising any of the powers under this section, a Minister of the Crown—(a) must act in a way that is compatible with the terms of Article 2 of the Northern Ireland Protocol,(b) must not suspend or seek to diminish any of the other provisions of the EU withdrawal agreement or the Northern Ireland Protocol so far as they relate to Article 2 of the Protocol, and(c) must not suspend or repeal, or make alternative provision to, domestic law so far as it gives effect to Article 2 of the Northern Ireland Protocol or any other part of the EU withdrawal agreement to the extent that it relates to Article 2 of the Northern Ireland Protocol.”Member’s explanatory statement
This amendment seeks to protect the operation of Article 2 of the Ireland-Northern Ireland Protocol.

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[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I rise to support the amendments standing in my name in group 6, which all seek to protect the operation of Article 2 of the protocol. There is much that is highly contentious about the Bill that we are considering, but I hope that there is at least one issue that is not controversial: that fundamental human rights should not be undermined by this Bill. As my noble friends Lady Kennedy and Lady Goudie both argued in their powerful speeches at Second Reading, they are too fundamental to the Northern Ireland peace process to risk that happening.

The purpose of Article 2 is quite clear: it is to protect the rights that those negotiating the Belfast/Good Friday agreement identified as the basis for moving Northern Ireland forward. The fear that Article 2 addressed was that these rights were underpinned by European Union law, and that that underpinning could be weakened, and in some cases destroyed, when the UK left the EU. The operation of Article 2 has never been regarded as controversial; indeed, when the Government identified the list of controversial issues in the protocol, Article 2 was explicitly identified as uncontroversial. So far as I am aware, no unionist politician—and in fact the noble Lord, Lord McCrea, referred to Article 2 earlier in a previous debate—has ever tried to argue that the operation of Article 2 is a problem for them, whatever other problems they consider the protocol to give rise to.

The Government themselves appear to have recognised the importance of Article 2 in Clause 15(3) of the Bill, which provides that the powers given to Ministers in that clause cannot be used to repeal Article 2. However, welcome as that protection in Clause 15(3) is, it does not deal with the problem. First, it does not apply to the vast panoply of ministerial powers granted by other clauses. Secondly, even regarding the limits it places on the exercise of ministerial powers under Clause 15, it only prevents Article 2 ceasing to have effect, not a weakening of Article 2 that falls short of repeal. Thirdly, it does not protect Article 2 from other provisions of the Bill that limit its scope immediately the Bill is brought into force and which are not dependent on the exercise of delegated powers to Ministers.

What is the problem and why are a significant number of amendments needed to protect Article 2? Simply put, the effectiveness of Article 2 in practice depends on other provisions of the withdrawal agreement and the protocol threatened by the Bill. To use an analogy, having a chair to sit on is pointless if all its legs are sawn off; it ceases to function as a chair. If the necessary supports for Article 2 are removed, it will cease to function. If the Bill is passed in its current form, it appears it will cut off one crucial support immediately, as well as enabling Ministers to remove all the other supports as they please.

I turn to the detail. I will identify the key questions which I expect the Minister to answer immediately or at least before Report; immediately following this debate, I will forward to him the text of the questions to which I seek answers.

When read together with Article 13 of the protocol, Article 2 requires that Northern Ireland equality law keep pace with EU equality law. This is the dynamic alignment requirement. My first question is this: may a Minister by regulation under Clause 14(4) provide that Article 13(3) of the protocol is disapplied in relation to Article 2? If so, can this power be used to prevent the equality directives in Annexe 1 being subject to dynamic alignment? Amendment 23A is relevant in this regard.

Clause 14(4) provides that:

“A Minister of the Crown may, by regulations, make any provision which the Minister considers appropriate in connection with any provision of the Northern Ireland Protocol and other parts of the EU withdrawal agreement to which this section relates.”


My second question is: does this mean that a Minister could, by regulation, provide that the provisions of the withdrawal agreement that enable disputes relating to Article 2 to go to international arbitration if they cannot otherwise be resolved—Articles 170 to 181 of the withdrawal agreement—may be disapplied with regard to disputes concerning Article 2? Amendment 23A is relevant in that regard.

Clause 15(2) provides that:

“A Minister of the Crown may, by regulations, provide for any provision of the Northern Ireland Protocol or any related provision of the EU withdrawal agreement … to become excluded provision”.


My third question is: does this empower a Minister to disapply Article 5 of the withdrawal agreement, which requires that the provision of the agreement be applied in good faith, in so far as it applies to Article 2 of the protocol? Amendment 31A is relevant in this case.

Clause 15(2) also appears to permit Ministers to designate Article 14(c) of the protocol as excluded provision. My fourth question is: does Clause 15(2) permit Ministers to limit the current powers of the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission to refer matters to the specialist committee under Article 14(c) of the protocol? In this regard, Amendment 31A is relevant.

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[Lord Caine (Con)]

I am grateful to my noble friend, and I will ensure that the answers to the noble Baroness are as full and detailed as possible.

In conclusion, given the lateness of the hour and the need to make progress, I genuinely believe that the aims of the Government, the noble Baroness and other noble Lords who have spoken in the debate this evening are broadly aligned. There might be differences of approach, but we do not believe that the amendments are required. I will write to the noble Baroness in detail and, in that spirit, urge her to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate, including the Minister who responded. I obviously look forward to the detailed answers following the submission of my speech, outlining the questions to him. What the noble Lord, Lord Deben, has just expressed, and it is the thread running through the contributions made by noble Lords this evening, is the fear of the power that Ministers will have through the regulations. That will have a damaging impact on Article 2, perhaps by default, but it is the worry and the concern of both commissions in Northern Ireland. I understand that they have a statutory duty under the dedicated mechanism to deal with these issues, but it might be useful for the Government to enter into discussions. I do not know whether that is possible, because one is the responsibility of the Northern Ireland Executive and the other is the responsibility of the Northern Ireland Office, but it might be useful, because of their joint responsibility, to have further discussions with them in relation to these issues.

Because of the lateness of the hour, I look forward to the answers from the Minister. I believe that the problem lies with the further powers in the regulations that are yet to be revealed to your Lordships’ House. At this stage, however, I beg leave to withdraw the amendment, with the proviso—dependent on the answers received—that I might bring some of these issues back on Report.

Amendment 15A withdrawn.