Northern Ireland Protocol Bill

Lord Clarke of Nottingham Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, by far the most important reason for opposing this Bill is the fact that it is a clear breach of international law and gives Ministers powers to free themselves from parliamentary supervision in future, on an unprecedented scale. This has already been eloquently and authoritatively set out by many speakers, so I do not propose to dwell on it. I agree entirely with everything that everybody from my noble friend Lord Cormack onwards has said on that subject, and I think it would be a great blow if we were to pass legislation of this kind.

I thought in the 1990s and the 2000s—that more optimistic time—that one of the greatest things happening across the globe was the development of a rules-based international order, which gave us all great hope that we should have a more peaceful future. I never imagined that the United Kingdom would contemplate defying the rule of law—moving away from the basis of international order in a treaty with its closest allies and friends—in the way now being contemplated, but there we are. As I said, many Members of this House have eloquently set out that case, and I am sure many Members of the Government are secretly, privately, very worried about their being party to this.

Moving on to the actual politics of it, remember how we got here. The policy now being put forward is not that of a Conservative Government, unless the new Government are a total reversal of their predecessor. Boris Johnson was very proud of the agreement he reached after it was negotiated by the noble Lord, Lord Frost. There were long negotiations and no doubt about what had been negotiated. They had found a solution to the Irish problem caused by the Good Friday agreement and the fact that you cannot safely have controls on the border—something rightly sacrosanct to both the Republic of Ireland and the United Kingdom Government. They came up with this marvellous remedy that Northern Ireland would remain in the single market and the customs barriers that would inevitably follow from our withdrawal would be, first, along the English Channel between Dover and the continent, and then down the Irish Sea, with the Northern Irish having the advantage to many parts of its economy of being able to remain in the single market.

That was the policy; it should be the policy still. The part that changed was changed by the policy of the Democratic Unionists. They are the authors of this Bill, as already very eloquently expressed in this debate by the noble Lord, Lord Dodds, and his colleagues. They demanded the pistol. Theirs is the finger on the trigger because they used it as the basis for not joining a power-sharing Executive in Northern Ireland, causing the crisis. Boris Johnson immediately started changing his position once this happened. Within a week or two, he was making statements about what he had just signed—which were plainly incompatible with the policy contained in what he had just signed. From then on, so long as the Democratic Unionists would not join the power-sharing Executive, we have gone on and on until the stage we have reached now.

I do not doubt the Democratic Unionists’ sincerity on the symbolism of a customs border down the Irish Sea; they have always been consistent. But I think there is another reason behind the DUP’s position: the party has just done badly in Ulster elections and is using the Northern Ireland protocol as its explanation, as it would say—excuse, I would say—for not joining a Northern Irish Executive under Sinn Féin leadership. Sinn Féin should be entitled to the First Minister’s position. They are all nodding away at me. They still hold that pistol and the Government—

[Lord Dodds of Duncairn (DUP)]

I am very grateful to the noble and learned Lord for giving way since he has made a direct accusation. I reassure him and the House that the Democratic Unionist Party would have no difficulty in re-entering the Executive with a Sinn Féin First Minister. We do not like that outcome but we will do that if the protocol is sorted out, so let us not go down a blind alley or a false argument as far as that is concerned.

[Lord Clarke of Nottingham (Con)]

I am extremely reassured to hear that but it is still “if the protocol is sorted out”. Who will decide whether the protocol is going to be sorted out? Who will determine the negotiating position of British Ministers in their discussions with the European Union? It will be the noble Lord, Lord Dodds, and his Democratic Unionist colleagues. The British Government will not—and, given the policy now, cannot—sign up to anything unless the Democratic Unionists agree because they will not achieve their aim of getting back to power-sharing. This is an impossible position.

We should have had a softer Brexit, but the hard Brexiteers took over. We should have stayed at least in the customs union, but that is now water under the bridge. The fact that we have come out is causing difficulties at Dover as much as it is in Belfast; it is causing damage to the United Kingdom economy just as it is to sections of the Northern Ireland economy—although some are lucky enough still to be in the single market and benefit from that. The only way out, as everybody has said, is sensible negotiations, but negotiations on the British Government’s own terms. They should get the DUP onside if they can, but we cannot allow the whole thing to be dictated by the sincere opinions of the Democratic Unionist Party, as it has been so far to get us to this position.

Northern Ireland Protocol Bill

Lord Clarke of Nottingham Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

I support both amendments because they encapsulate the current issues for those of us who live in Northern Ireland, who want a successful implementation of the protocol with mitigations.

[Lord Clarke of Nottingham (Con)]

My Lords, I spoke at Second Reading and made clear my opposition to Bill. I will not repeat any of that. I will try to avoid repeating the many views that have already been given, all of which I agree with. They have been put very eloquently and clearly. This is a quite despicable piece of legislation that shows total contempt for the rule of law. It is plainly in breach of our international obligations. It shows total contempt for parliamentary democracy by giving powers to the Government to legislate without having to bother with parliamentary scrutiny in the correct way in future. To say that I am opposed to the Bill is an understatement. I still sit here utterly astonished that, after all my decades in politics, a British Government —worst of all, a Conservative Government—could dare to bring forward a piece of legislation of this kind, in a country that is supposed to be the mother of Parliaments and has always, in the past, been respected for our form of parliamentary democracy and what we contribute to the rule of law, democracy, liberty and liberal values in the world. I am already beginning to warm to my views on the whole thing.

I want to comment on the value of delaying proceeding with all this. We are proposing to move to negotiations with the European Union. It is our closest friend and ally in the world. Certainly, since the Americans have a certain propensity to elect a President such as President Trump in the not-too-distant future, we are particularly dependent on the closest possible relationships with our neighbours and friends, whose international interests almost entirely coincide with ours. What is the Government’s answer, not on the merits of the Bill—no doubt the Minister will do his best to make an argument and keep a straight face, which I think he managed in our last debate—but about the delay? If they are genuinely opening negotiations with the European Union in good faith, and if the policy of the new Government is a genuine desire to reach a settlement of the practical problems—the stated policy of the old Government—it could, if addressed properly, improve the practical application of the Bill.

What they are doing is poisoning the whole relationship behind the negotiations before they have even started. To a lay audience, one would only have to ask: what would our reaction be if the Europeans came to the table and put a similar blunderbuss in front of us, saying, “We are already preparing, unless you agree to any terms we put forward, to now impose tariffs on all the products that you export to your most important markets in our territory—and we are going to do so, tearing up the agreements to the contrary and normal practice, in front of your eyes”?

You cannot negotiate on that basis. It is not just illegal; it is just bad negotiating tactics. We are positively inviting them to plunge us into a trade war, which is about the worst possible disaster I can imagine this country being plunged in given its economic circumstances at the moment, as we are already in a recession. We are going to have a severe recession and combine it with very high levels of inflation, unless the new Government produce some spectacular remedies for where we have already got to.

I have no doubt that something ingenious will have been prepared for the arguments on the merits, the law and parliamentary process and that undertakings will be given. What is the argument that makes it so absolutely urgent for the Government to insist that they must be seen to be proceeding to legislate in this way, before they have even sat down to start talks with our European neighbours? If anybody can think of an argument against that, I shall be absolutely astonished.

Finally, I have enjoyed this debate. I enjoy coming to the House of Lords and wish I was able to come more frequently. It is a splendid institution and I enjoy the debates. I always have a little difficulty as I still have not managed, after two years here, to take it terribly seriously and my friends criticise me for that. If I have a decent dinner in the evening, I am afraid it sometimes takes me away from debates which I am otherwise engaged in. The reason is because increasingly, over the years, the House has been totally disregarded by Governments of all kinds. It is rarely heeded by the public because it has such limitations on its powers. I entirely understand the overriding principle that the elected House must, in the end, prevail when it has a conflict with an appointed House. We do not have the legitimacy that we would need to block the express views of a majority of the House of Commons, but we concede to that convention in an extremely cautious way.

I came here convinced that, at the very least, I would go away feeling a little more satisfied because I had been able to cast a vote to give the chance of improving the climate of the negotiations by delaying progress on the Bill for a time, to see whether the negotiations could make some progress. Like my noble friends Lord Cormack and Lord Hailsham, I would have supported any vote put forward to that effect. So here we are; we are retreating. I must learn to understand and acquire more experience, realising that a Labour Government want to reserve the right to do similar things if they see the precedent being set for future and successive Governments. But I regret it, because the principles behind this debate are of huge and profound importance.

The quality of our democracy is deteriorating. The power of our Parliament is being eroded and we do not know where this process is going to be stopped. I still hope that we might find some pause in that development if the new Prime Minister thinks again and agrees to at least hold up any further parliamentary progress until he sees whether sensible negotiations with the Europeans are worth while. It is as much in the interests of the Europeans as ours to have successful negotiations and we might be able to return to a civilised way forward.

[Lord Patten of Barnes (Con)]

I will not begin by following my noble friend with an autobiographical diversion, but I want to start with what he said at the beginning of his remarks. It is not outwith our experience in this Chamber or elsewhere to begin a speech by saying that everything one wanted to say has already been said, then to say it all over again rather less well than some others said it.

I wish to be very brief. I will not follow the arguments about the lack of wisdom of turning Henry VIII into our legislative guru in this House. I will not follow what has been said about the way in which the doctrine of necessity was tortured in a way the American constitution would surely regard as “cruel and unusual” treatment into providing whatever Ministers wanted it to say.

I want to borrow from a corruption of what Lord Alfred Douglas said and raise another issue which has not for some time dared to speak its name, and that is Brexit. We sometimes get the legislation and arguments about it the wrong way round. It was Brexit which was a threat to the Good Friday agreement and the relations between Northern Ireland and the Republic. The Northern Ireland protocol was meant to deal with that in an acceptable way.

The last Prime Minister—let me get this right—but two had her own proposals for dealing with the problem, which was to have the whole of the United Kingdom more or less inside the customs union and single market. That was opposed by the last Prime Minister but one and the European Research Group. They saw off Theresa May and produced the Northern Ireland protocol as their own answer to the problem. At the time, the then Prime Minister gave lots of assurances to the DUP and others that the Northern Ireland protocol would not have any effect on trade between Great Britain and Northern Ireland. I assume it was his usual habit of saying things he hoped would be true but turned out not to be, or maybe he just had not read what he had signed up to.

We are left with this debate about the Northern Ireland protocol. I think we are debating it with a Prime Minister who wants to unite the Conservative Party and the country, rescue the economy from Singapore-on-Thames-ism and do what he can to bring us all together in that very difficult fight. In doing so, I am sure he will be aware of the impact on the economy of having another row with the European Union, which remains—even though we are outside it—our largest trade market. It cannot make sense, as my noble friend said earlier, to do that. I very much agree with what both my noble friends Lord Hailsham and Lord Howard said on this. It makes sense to give Mr Sunak and the new Government a chance of looking at these issues again.

--- Later in debate ---

[Lord Dodds of Duncairn (DUP)]

My Lords, I had not intended to take part in this debate because I had not realised that it would range so far and wide and across so many general issues. We had a lengthy debate at Second Reading in which a number of these topics were discussed; nevertheless, I think it is worth addressing some of the points that have been made and putting some of the issues on record as far as we are concerned.

I begin by joining noble Lords and noble Baronesses in their tributes to the late Baroness May Blood, who passed away recently. She lived and was brought up in the same part of Northern Ireland that I had the honour of representing in another place for almost 20 years, so I knew her very well indeed. I pay tribute to her great resilience, hard work, dedication and tenacity in her pursuit of the issues in which she believed strongly, as well as her dedication to young people in the Shankill and integrated education, as has been mentioned.

It is not incompatible to support this Bill and seek a negotiated outcome. On the negotiated outcome, although there is not a great history of flourishing talks with the EU and the United Kingdom on the protocol issues thus far, we hope that any negotiations lead to an outcome that is compatible with the aims and objectives contained in this Bill. This is not a matter of just tinkering around the edges and finding practical solutions, as has been said; some of the issues are fundamentally contained in the protocol. You cannot address the democratic deficit issue satisfactorily unless you address some of the content of the protocol.

No matter how much consultation, prior notice, discussion or involvement you agree to give Northern Ireland politicians in relation to EU laws covering 300 areas such as the economy—as well as further issues such as state aid, VAT and so on—the fundamental fact is that no elected representative of Northern Ireland either here at Westminster or in the Northern Ireland Assembly has any vote or decision-making capacity on vast swathes of laws that apply in Northern Ireland. How will that be addressed? This Bill goes some way to addressing that, but nothing I have heard being suggested by the proponents of delay, who are against the Bill, has offered any solution to that point. The noble Lord, Lord Hain, acknowledged the problem.

Our Sub-Committee on the Protocol, of which I have the honour of being a member, has looked at this issue in considerable detail; I recommend that noble Lords and noble Baronesses read the report that we commissioned on the scrutiny of legislation now applicable to Northern Ireland. They will see the extent to which Northern Ireland has been removed from the normal processes of democratic lawmaking, which people in this House have spoken about with great eloquence but which does not apply anymore to United Kingdom citizens in the 21st century. That is entirely unacceptable and is contrary to all the traditions of democracy that this mother of Parliaments has sought to uphold both here and abroad.

It has been asked what the problem is with delay. The noble Lord, Lord Bew, has dealt with one issue—

[Lord Clarke of Nottingham (Con)]

My Lords—

[Lord Dodds of Duncairn (DUP)]

The noble Lord, Lord Clarke, has already spoken. I want to get on and not delay the House any longer, but I will give way once.

[Lord Clarke of Nottingham (Con)]

I am extremely grateful to the noble Lord. I have every respect for him; we have been together in Parliament for years. I want to understand clearly what he is saying. Is he saying that the Democratic Unionists will not withdraw their objections to the whole protocol unless Northern Ireland is allowed to leave the single market with the rest of the United Kingdom as the United Kingdom is otherwise developing? That would mean us telling the European Union that the single market has got to have a great hole in it, with no border controls at all so far as the Republic of Ireland and Ulster are concerned—because that is the Anglo-Irish agreement—no customs barriers in the Irish Sea and no application of single market law in Northern Ireland. Is that the proposition on which the DUP is saying that it is going to stop returning to a power-sharing agreement in Northern Ireland?