Northern Ireland Protocol Bill

Lord Bew Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Deben (Con)]

My Lords, the noble Baroness, Lady Ritchie, has done the Committee a great favour by detailing this particular aspect of the Bill. She has shown that the powers which the Government are seeking to take cover so much that none of us has any idea whatever as to what it may mean. No doubt, the Minister will be able to write a letter which details the answers to each of her excellent questions, but behind those questions is the fundamental falsehood of this Bill. The Bill gives to Ministers powers the strength, width and depth of which none of us have any idea, and the Government have even less idea, clearly, because if they did, they would have restricted those powers and would not have asked this House to accept a proposition which is manifestly undemocratic and which could not be accepted by any democratic House in any country in western Europe.

By the noble Baroness’s detailed forensic explanation of her particular interest, she has revealed the basic falsehood in the Bill and the reason that many of us are not going to allow it to pass, because it is contrary to everything that we have ever done in our political lives. I have been in politics in one House or another for more than 40 years, and no one has ever suggested a Bill of this kind ever before. Ministers had better understand just how serious this is.

I want to say one thing about Ministers too. Having been a Minister for 16 years, which is longer than most people are in post, I learned how important it was to have parliamentary restrictions—how important it was that civil servants could say to you, “I’m afraid, Minister, you can’t do that because that requires Parliament’s acceptance.” It was a vital part of the democratic process. We are being asked to remove that from Ministers, and I say to my noble friends that it is very bad for them, as Ministers, because it is that restriction and control which ensure that they do not move beyond where they ought to go merely because it is convenient.

The last thing that I will say about the excellent offering of the noble Baroness, Lady Ritchie, is this. However detailed the answer is, it will not overcome the fact that any promise made in this House can be taken apart if we give the Government these powers. It is not for Ministers to promise us things, because, if the Act gives them powers, however fine they may be—and what a fine list of Ministers we have—their successors will be able to use these provisions in a way which undermines any promise made to the noble Baroness, Lady Ritchie. That is why I wanted to come in particularly to congratulate her, because she has revealed the fundamental falseness of this whole proposition and the reason why this Bill, of all Bills, should not be passed by this House.

[Lord Bew (CB)]

My Lords, I rise to comment on the nature of the Bill, which has now taken on gargantuan proportions. It is a raging beast running through our constitutional rights and liberties.

However, to be clear cut, it is a good deal more modest. It says that there will be no hard border. It guarantees that it will protect the European single market. Just before the dinner break, the noble Lord, Lord Purvis, pointed out that, even if the Bill were implemented, it would not restore Northern Ireland completely to the UK single market in some pure form. He was quite right but it rather misses the point that this Bill is significantly more modest.

As for human rights, a very serious topic—the record of the noble Baroness, Lady Ritchie, in this respect is unequalled—the fact of the matter is that the Bill’s focus is the trade aspects of Articles 5 to 10. It is an attempt to remodel them so that it could reasonably be argued that the commitment in the protocol that the UK single market will be protected is lived up to rather better than it currently is. This seems entirely reasonable to me. I understand that there is a new doctrine in the House: if we read a document, we are all struck dumb by what was in the protocol and cannot even think. All further thought and debate about it is now over, as some mental trauma afflicts us all and we are so lost in admiration for it, but it is a problem. One of the many problems is this: there is a commitment to protecting the UK single market but we have many examples of how it is not protected.

However, the Bill is more limited than many would guess from listening to our discourse today. The crucial point with respect to this amendment is that Article 2 is not the target. That article and its points on human rights remain untouched by this Bill. It is Articles 5 to 10, which deal with the way trade is to be conducted, that are the target of the Bill. The Bill is therefore much more limited, and possibly less of a threat to our constitutional traditions, than has been said.

Above all else, there is a very simple thing that nobody seems to accept is critical: rather than saying, “We’re terribly sorry about the democratic deficit and so on,” how do you respond to the communities in Northern Ireland, who have a right under Article 1 of the international Good Friday agreement to have their aspirations protected by the sovereign Government and are saying, “We have a major problem here: the major issue of our alienation”? That seems to have disappeared entirely. For all its problems, at least the Bill is an effort to do this.

I am not convinced that the constitutionality of the United Kingdom and its great provisions are incredibly protected or defended by saying, “We just could not care less about that question.” This is about a more complicated balance. Is it not obvious that there is a balance to be found here? I desperately hope that it is reached in the negotiations with the EU. Is it not obvious that these strong, dramatic statements on both sides are not helpful in the struggle to reach the balance that must be found?

--- Later in debate ---

The third and final point I want to make in support of the comments of the noble Lord, Lord Deben, is that two committees of our House have now highlighted the unprecedented nature of this. With his experience as a Minister operating and then implementing legislation, he should be listened to. Whenever a Parliament passes something considered unprecedented, it immediately becomes precedent. Of course, we cannot bind our successors, but Ministers will be able to say as soon as this is done that this precedent is not tightened; of course it is not tightened. This is why we have gone from Henry VIII to Donald Rumsfeld. The breadth becomes wider and wider and, unless we say no, the ability to prevent that precedent becomes even harder; that is why these amendments are so important.

[Lord Bew (CB)]

My Lords, I will comment again briefly. I have said on the Floor of this House during these debates that I did not consider it necessary to reopen the mandate. If the EU can genuinely commit itself, as it is committed in the protocol, to defending the Good Friday agreement in all its parts, although it has not really understood what that means, my personal view is that that would be enough. I can understand why the Government feel the EU should reopen the mandate, but it is not a problem for me. I accept the point and I believe there could be successful talks without the reopening of the mandate; that is, providing that the EU accepts what it said itself that this is about protecting the Good Friday agreement in all its parts. As long as that part of the commitment, which has already been made, is upheld, I think there is a good prospect for these talks.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking my noble friend Lady Ritchie for tabling this group of amendments. It has provoked an extremely interesting debate, with some strongly held views. First, in welcoming these amendments, my noble friend built on the contribution of my noble friend Lady Kennedy of The Shaws, who spoke last week about the importance of preserving the rights of people from all communities. The withdrawal agreement was not about the practicalities of trade; first and foremost, it was about setting out matters relating to the rights of citizens. Article 2 of the protocol reflects this, with the Government having committed to

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

under the 1998 agreement.

The concerns raised by my noble friend Lady Ritchie are legitimate and need a detailed answer from the Minister. The Government’s obsession in relation to the European court is not helpful when it comes to questions about the rights of individuals. As my noble friend said, this is indeed an opportunity for the Government to show that they are protecting Article 2 at all costs.

The noble Lord, Lord Deben, asked a couple of very important questions. I think I wrote down correctly that he said that the Government do not even know the extent of the powers they are asking for in this Bill. That is quite a statement to make. He also gave a very telling comment about the importance of parliamentary restrictions when one has the responsibilities of a Minister. I thank him for making those points.

The noble Lord, Lord Bew, had a different view. He said that the Bill is less important than the noble Lord, Lord Deben, seemed to imply and that really the focus was on Articles 5 to 10; they are really the target of the Bill, not Article 2. I would be interested to see how the Minister reconciles those two points of view.

The noble Baroness, Lady Ludford, spoke of the law of unintended consequences. She went into some detail—almost the same level of detail as the noble Baroness, Lady Ritchie—with a number of questions that I hope the Minister will be able to answer, maybe in writing at a later stage.

The noble Lord, Lord Purvis, asked some interesting questions and reminded us all that two committees have highlighted the unprecedented nature of the Bill. This is an opportunity for the Minister to reassure us that the Article 2 rights can indeed be dynamically maintained through the Bill.