Northern Ireland Protocol Bill

Lord Browne of Belmont Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, I support the Bill. If fully enacted, this legislation has the potential to provide tangible solutions that will free Northern Ireland from the grip of the crippling protocol arrangements and restore our rights as British citizens to trade freely with the rest of our nation under Article 6 of the Acts of Union.

Nobody who values the union supports barriers remaining in place between Northern Ireland and the rest of this nation. Equally, nobody who values devolved governance in Northern Ireland should countenance the protocol, as it has undermined the principle of consent and dealt a blow to consensus-building politics. If we do not act now, we will reach a critical point where, after the full implementation of the protocol, Northern Ireland will be subject to an ever-expanding series of laws imposed by a foreign entity without any say or vote by its elected representatives.

While the rest of the United Kingdom has secured its freedom to deregulate or go in a different direction on aid or taxation, Northern Ireland will be left behind and face fresh restrictions and challenges simply because it is tied to the protocol. The trade friction between Northern Ireland and Great Britain is fuelling the cost of living crisis in Northern Ireland and restricting consumer choice. The Northern Ireland protocol is not only unsustainable in its form but incompatible with the Acts of Union. It threatens the sovereignty of this nation and undermines devolved governance, which requires cross-community buy-in and support if it is to function fully.

As it stands, the Bill provides a clear framework to address many of the issues outlined today. It provides a framework to remove the European Court of Justice as the ultimate arbiter of the protocol, smoothing the passage of goods from Great Britain to Northern Ireland and bringing Northern Ireland fully back into the UK’s VAT and excise duty regime.

The Bill must pass and its regulation-making powers be fully deployed as quickly as possible to avert impending political crisis in Northern Ireland. We must not waste any more time talking about checks. The economic problem is not the checks but the paralysing cost implications of applying third-country certification burdens on the qualitatively very different consignments of goods that flow within economies—as with Great Britain-Northern Ireland trade—rather than between them, which make trading uneconomic.

If the protocol were ever implemented economically—let us not forget that, thankfully, it never has been because of the grace periods—hauliers have made it absolutely clear that the certification costs associated with taking goods from Great Britain to Northern Ireland would make that undertaking uneconomic and Northern Ireland's supply chains would break down within 24 hours, creating an existential economic crisis for part of our United Kingdom.

Similarly, the political problem is not at root the checks, but the fact that the people of Northern Ireland have been degraded as a result of their right to make laws in some 300 areas being taken from them. The value of their vote has been diminished. Every time a new law is opposed on Northern Ireland by the EU, the human rights provisions in the Belfast agreement with respect to political engagement are violated. That violation cuts to the quick—the knowledge that, while the people of England, Wales, Scotland and the Republic of Ireland must have the right to stand for election or vote to elect people to make all the laws to which they are subject, the people of Northern Ireland must be subject to the unique and deeply distressing indignity of being told that they do not always deserve to be afforded the same level of respect.

The Bill may be needed—and needed urgently—and I strongly urge all noble Lords to pass it today, and certainly without any six-month delay. Quite apart from anything else, this will strengthen the Government’s negotiating hand, while a six-month delay would simply weaken it. I support the Bill.

Northern Ireland Protocol Bill

Lord Browne of Belmont Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

I am truly sympathetic with the problem of a democratic deficit. I was born in a different country—I was born in a colony too—so I understand what it means. However, that is not an answer to the unlawfulness of these clauses and therefore not an answer to the proposal we are making that they should be removed from the Bill.

[Lord Browne of Belmont (DUP)]

My Lords, I oppose the proposition that Clause 2 should not stand part of the Bill and that Clause 3 should also fall as a consequential amendment. If it was to succeed, the Bill would be rendered largely inoperative. In response to this, I am struck by two realities.

First, it is striking that the Government are saying, quite rightly, that the Bill is required urgently to avert a socio-economic and political crisis in Northern Ireland. Secondly, it is also striking that the democratically elected House has consented to that and deemed fit to pass the Bill with no amendment.

It is noticeable that many Northern Ireland Peers were yesterday copied into a letter of invitation—as already mentioned by the noble Baroness, Lady Hoey—sent to the movers of this amendment about the provisions in these clauses. It asked that, before they reached any final conclusions on the matter, they visit the logistics centres in Northern Ireland run by McCulla Ireland and McBurney to find out why it is not possible to apply the laws of international trade to regional trade without causing a crisis and to reflect on what they discovered before drawing any final conclusions. These are the largest haulage operators on the island of Ireland. They have considerable expertise on these matters. As Paul Jackson, the commercial director of McBurney, explained to noble Lords on the House of Lords Sub-Committee on the Protocol, were the protocol to be implemented, it would crash the Northern Ireland supply chain “within 48 hours”.

In focusing on the negative implications of the protocol, and the consequences for international law, I want to make it clear that it is not my purpose to deny that the protocol is having positive effects for some—although these would become limited if the protocol were to be fully implemented. My point is simply that, in a context where 95% of our British Isles trade is with Great Britain and only 5% with the Republic, the negatives far outweigh the positives.

The discriminatory implications of denying the people of Northern Ireland the same economic right to trade with their fellow UK citizens cannot be dismissed lightly, because they cut right to the heart of our citizenship. In another instance, the negative impact of the protocol is in no way comparable with the inconvenience arising from having to negotiate customs borders between different states and the application of the rules of international trade to international trade. The inconvenience arising from applying the rules of international trade to intranational or regional trade is far greater than the inconvenience arising from the application of the rules of international trade to international trade, which is why, with the exception of Northern Ireland, it does not happen elsewhere. Thus, we are not merely confronting a situation where we are not affording members of the same polity the same levels of respect as their fellows—seeking to treat them as if they were foreigners, rather than citizens of the same country, for trading purposes—but we are actually putting on Northern Ireland a far greater inconvenience than we put on traders from other countries, and, in this sense, the UK is treating the people of Northern Ireland far worse than those from other countries.

To understand why this is so, and the implications of this from the perspective of international law, we need to understand the difference between international and intranational trade. With talk about globalisation, it is easy to get carried away into thinking that the world is defined by homogenous global economic flows, in which national borders are nothing more than an anachronism. But that is not the case: the borders, even between highly interdependent western countries, mark important lines of difference. For example, a lorry engaged in international trade will typically be a large vehicle and carry just one or two products. The cost of generating the paperwork associated with this, in terms of customs and SPS, will be tiny expressed as a percentage of the value of the cargo. By contrast, lorries engaged in trade within an economy often carry many different products, up to around 300. This is no problem because, within an economy, lorries can move freely. If, however, you introduce a border within an economy and require lorries travelling from one part to another to cross a customs border so that they must provide 300 separate customs declarations and 300 separate SPS declarations —or even more in the case of composite goods—the cost of generating the paperwork expressed as a percentage of the total value of the cargo becomes huge. It is so great in fact that the enterprise becomes either uneconomic or just not worth the bother. In this context, 200 companies in Great Britain have already ceased to provide goods to Northern Ireland, and if the protocol were to be implemented—let us not forget that it has never been anything like fully implemented—that number would increase dramatically, and we would be confronting a major socioeconomic crisis.

Some—such as the noble Lord, Lord Kerr—might respond to this by saying, “Well, why can’t Northern Ireland get its goods from the Republic?” It can to a degree, but only to a relatively small degree. It must be understood that Northern Ireland is a fully integrated part of the UK economy. If one looks at movements between GB and Northern Ireland, and between Northern Ireland and the Republic of Ireland, 95% is between GB and Northern Ireland. Only 5% is between Northern Ireland and the Republic of Ireland, and that is the case notwithstanding the fact that Northern Ireland and the Republic of Ireland have both been part of the European single market since 1993. It is not possible to restructure an economy overnight by cutting off the source of 95% of supply without creating huge damage.

In this regard, it is worth remembering that the Good Friday agreement is a treaty and part of international law, and the section entitled “Rights, Safeguards and Equality of Opportunity” commits to

“the right to equal opportunity in all social and economic activity.”

Yet the protocol now cuts Northern Ireland off from most of its own economy, with disastrous results. This is a real problem, because Article 2(1) of the protocol states:

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


In this context, notwithstanding the existence of Article 2(1), and the fact that the operation of the protocol has had the effect of diminishing the right to economic activity by cutting Northern Ireland off from most of its economy, the source of 95% of its trade, the EU has nonetheless refused to change a word of the protocol. The UK clearly has an obligation under international law to introduce the Bill before us today.

Finally, I urge noble Lords behind this group to take the opportunity to visit McBurney and McCulla before drawing any final conclusions.

[Lord Bew (CB)]

My Lords, I shall comment briefly on the important remarks by my noble and learned friend Lord Judge. I referred earlier to the fact that the opinion of international lawyers is more complex and variegated than, say, the first 10 speakers in the House this afternoon appeared to know. One of the most important figures here is Professor Alan Boyle, emeritus professor of international law at Edinburgh, who has given evidence to committees of both Houses. At one level, his analysis is close to that of my noble and learned friend, Lord Judge. As I understand it, his view is that the Government ought to apply Article 16 at this moment.

We have been talking about this for years. I can remember, three and a half years ago, sitting down with the noble Lord, Lord Caine, looking at Article 16 and having an initial conversation about it. The Government have, at various times, been close to applying Article 16. They did not know then how fashionable it would become in this House to say that it is the way out. Had they known that that was going to happen, I am sure they would have done it, but civilised opinion said, “That is a terribly British thing, you can’t do it.” Amazingly, there has been a change of attitude now.

The point that Professor Boyle made, and which was not made by my noble and learned friend Lord Judge or anybody who has spoken for Article 16 this afternoon, is based on the idea that he accepted the underlying logic that the approach of the Bill to protect the Good Friday agreement was correct. There was a problem that the obvious features of the Good Friday agreement —strand 3 in particular, on the east-west relationship—are not being respected in the way the protocol was working.

It is pretty well documented, historically, how that situation arose in negotiating terms, but my point is this. My noble and learned friend, whose skills are so admirable in this matter, is just following a route that was followed for some hours today, which is to say, “Why do the Government not implement Article 16?” I more than half understand it. I am looking at the noble Lord, Lord Caine, and I suspect that at certain times in the last few years he might have thought that might not be a bad idea either. That is not the point. At this moment, politically, we just cannot do it. We have a serious negotiation with the EU. I have said this before: you cannot walk in and suddenly say, “Oh, by the way, chaps, we are now throwing this on top of your heads”. The moment has gone.

Further, the advocacy offered in this House is weakened by the fact that, for the majority of those people who have suddenly discovered what a wonderful device it might be, it is not accompanied by what Professor Alan Boyle did, which is to say that the saving of the Good Friday agreement is critical. He defended it on the grounds that it might be a step we have to take, and he accepted that there is a conflict between the way the protocol is working and that original international agreement, which we also have a duty to uphold.

Northern Ireland Protocol Bill

Lord Browne of Belmont Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Hannay of Chiswick (CB)]

I support the amendment, so ably moved by the noble Baroness, Lady Suttie, for a simple reason. It relates to what is frequently called the “democratic deficit”—a phrase that often finds itself in the mouths of those who support this Bill, among whom I am not numbered. They talk about the democratic deficit in Northern Ireland mainly in respect of the fact that the people of Northern Ireland do not have a say over the legislation for the single market, which will be passed in Brussels. They erroneously say that that is the only place in Europe where that happens. That is untrue; it is the same for Norway, which has no say over legislation passed in Brussels but accepts it when it is sent through on a fax. So the use of the words “democratic deficit” by the supporters of the Bill is in any case a bit erroneous. It is even more erroneous when you consider that the people of the Northern Ireland actually voted to remain in the European Union; that surely is something of a democratic deficit.

These amendments, which I imagine the Minister will explain the Government cannot support, are also an attempt to address the democratic deficit, to say that the people of Northern Ireland collectively should have some say in the operation of this deeply flawed legislation. So why will the Government oppose it? We know why: because a majority of Members of the Assembly who were elected in May have said they do not want any of it, and that would not be helpful to the Government’s objectives. When you bandy around phrases such as “democratic deficit”, you should follow them through to their logical conclusion, and that logical conclusion is in the amendments that the House is now debating.

[Lord Browne of Belmont (DUP)]

My Lords, the amendments would subject aspects of the Bill to the approval of the Northern Ireland Assembly. However, my contention is that they will work only if preceded by a prior vote on the protocol itself in accordance with the standards of cross-community consent put in place for the controversial matters set out by the Belfast/Good Friday agreement.

The Good Friday agreement is now very vulnerable because of the approach of the European Union in relation to two key principles at the heart of it. First, the Good Friday agreement is predicated on a commitment to affording the interests of both communities parity of esteem. The interests of unionism have not been afforded parity of esteem vis-à-vis those of nationalism with respect to the protocol. While the protocol represents an existential threat to all that unionists hold dear and is rejected by all the unionist parties, it authenticates that which nationalists and republicans desire: the breaking of the UK economy. Secondly, the Good Friday agreement is predicated on a commitment to non-majoritarian politics, which means that controversial decisions have to be made on the basis of cross-community consent. Again, that has been cast aside.

In the first instance, the EU sought to pressure the UK Government into the protocol without affording Northern Ireland any say in the matter, notwithstanding the fact that the effect of the protocol is to slash the value of the Northern Ireland vote, as 300 areas of lawmaking to which we are subject are taken from us and made by a legislature of a foreign power. When the EU finally agreed that the Northern Ireland Assembly should be given some say in the matter, it insisted for some bizarre reason that it should happen four years afterwards. It made provision for it to continue for at least another four years without cross-community support, resulting in eight years of government outside the confines of the Belfast agreement, which could of course continue indefinitely with regular four-year extensions.

That is the height of irony because anyone who studies democracy will know that leading academics in the field, such as Professor Arend Lijphart, are very clear that the EU is one of the most consensual, non-majoritarian polities in the world today. That the EU decided to betray its own commitment to non-majoritarianism by going out of its way to impose majoritarianism on a polity that it knew was based on non-majoritarianism is quite extraordinary.

This is a major problem not just for the Good Friday agreement but for the protocol. The protocol subjects itself to the Belfast agreement in all its dimensions through Articles 1 and 2. That is a problem for those who wish to argue that international law constrains those seeking to address the clear injustices of the Northern Ireland protocol, because Article 3 of the Vienna Convention on the Law of Treaties is very clear that:

“When a treaty specifies that it is subject to … an earlier or later treaty, the provisions of that other treaty prevail.”


Given that the convention also sets out mechanisms, such as Article 56(1)(b), whereby a state party can lawfully and unilaterally withdraw from a treaty, the refusal of the EU to amend the protocol so that it is properly brought into line with the prior treaty clearly gives grounds for our withdrawal.

Northern Ireland Protocol Bill

Lord Browne of Belmont Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Judge (CB)]

I shall not help the noble Lord, Lord Purvis, out, but I will say that the next time we come to this Bill, I think we will find that Clause 22 is the most devastating of all the Henry VIII powers. As to this amendment, I hope the Committee will excuse me if I do not keep repeating what I have said and would go on saying. I thought of giving the Minister a sheet of paper for him to write on, but then I thought I had better take it away as he might keep it and write on it. That is my point.

[Lord Browne of Belmont (DUP)]

I rise to speak to Amendment 22 and, indeed, all the other amendments. I am conscious that this amendment and others like it have been developed in response to concerns raised by the Delegated Powers and Regulatory Reform Committee’s report and, as such, are informed by growing concern about the Executive’s use of delegated legislation. In the context of the legislative challenges posed by Brexit and Covid-19, there has been increased use of delegated powers, which has concerned the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee and given rise to two important reports, Democracy Denied? and Government by Diktat.

The basic thesis of these reports is that there is a growing democratic deficit arising from the fact that delegated legislation does not afford the same opportunity as primary legislation for parliamentarians to scrutinise its development. The point is not that the delegated legislation is always wrong but that to avoid creating a democratic deficit, wherein the representatives of the people in the legislature are afforded less opportunity to shape legislation than in primary legislation, the use of delegated legislation must be limited.

As a democrat, I applaud this general approach and believe it is imperative in a functioning democracy that the opportunities for people to shape legislation through their parliamentarians in the legislature are maximised. Of course, there are ways in which a democratic deficit has been felt in our politics other than overreliance on delegated decision. In truth, the reason we are considering the Bill at all is the concern about the democratic deficit at the heart of the EU project, which was undoubtedly one of the key drivers of Brexit.

Brexit has been applied in England, Scotland and Wales with the effect that the democratic deficit arising from EU membership has been fixed in those parts of the United Kingdom. Laws are now made for Great Britain by Great Britain, but the democratic deficit in Northern Ireland has not been fixed. It has not been alleviated, it has not even been left untouched and it has not been allowed simply to deteriorate. The underlying difficulties have instead been allowed to become total, such that rather than amounting to a widening of the deficit—a democratic shortfall—that shortfall has been replaced by something much more radical: the complete negation of democracy in relation to the development of 300 areas of law to which we are subject.

The protocol that Parliament imposed on Northern Ireland against the clear wishes of its unionist representatives was one that, rather than addressing the principal difficulty with EU membership for anyone raised in the Westminster political tradition, has made it infinitely worse. In this context, the significance of Amendment 22—and, indeed, all the amendments debated tonight—is that it introduces not a regulation-making power that is part of a process that represents a step backwards, but one that is a step forward.

Finally, to unpack this problem, rather than using my words, I will use some very powerful words of a man living in Northern Ireland who wrote to my noble friend Lord Morrow, who unfortunately is unable to be in his place tonight due to a family illness. This man expressed his dismay at the actions of some parliamentarians from outside Northern Ireland towards our problems. I will be quick and quote just a few passages from his letter.

He writes: “I am deeply concerned about the approach adopted by some Peers who are seeking to remove the regulation-making powers from the Northern Ireland protocol rendering it ineffective.” He goes on, very powerfully, “Anyone who does not understand what a significant, democratic step forward that will be for us in Northern Ireland is completely detached from the reality in which we live and clearly has no idea what it feels like to have your votes slashed, as ours have been. I find it shocking that some Peers seem so absorbed in their Westminster bubble battle against delegated legislation, supposedly in the name of concern for democracy, that they should have completely lost their sense of perspective such that they cannot see how inappropriate it is to oppose these regulations in the name of opposing a democratic deficit. If they wanted to have a fight about delegated legislation out of regard for a concern for democracy, this was the last context in which to do so. It is so striking that the democratically elected House did not pick this fight on this. I would urge you to call Peers to recognise how these regulation-making powers will help restore some much-needed parliamentary democracy in places where it has been completely taken from us and help restore what was promised in the Belfast agreement, namely our right ‘to pursue democratically national and political aspirations’. That right has been taken from us in the 300 areas of lawmaking. These regulation-making powers represent a first step in their restoration. Rather than opposing them in the name of democracy, Peers should examine these powers in context and celebrate them for what they are, a critical step in restoring democracy to Northern Ireland.”

By all means, declare war on regulation-making powers that reduce democratic scrutiny but, please, do not declare war on these regulation-making powers, which take a first, crucial step in its restoration.

--- Later in debate ---

[Baroness Suttie (LD)]

My Lords, I also speak in support of Amendment 25, to which I have added my name. The noble Baroness, Lady Ritchie of Downpatrick, has clearly set out the importance of Article 18 of the protocol in allowing the democratically elected Northern Ireland Assembly to give its consent on whether to continue with the protocol in a vote in 2024. I will not repeat the many powerful arguments that she has used, but it is deeply concerning that Clause 15(2) as drafted provides potentially sweeping powers for a Minister of the Crown to remove this right by regulations. It is worth repeating the view of the Constitution Committee, which set out in its report on the Bill that Clause 15

“undermines the rule of law for the UK Government to invite Parliament to pass legislation in breach of the UK’s international obligations. Enabling ministers to do this through secondary legislation, particularly via the negative resolution procedure, is even less constitutionally acceptable.”

To refer to a discussion on an earlier amendment, I understand the frustration of the constituent of the noble Lord, Lord Browne, with what sounds like procedural issues. However, my noble friend Lord Purvis gave a powerful explanation as to why what seem like procedural niceties really matter, because they make a difference in the end to people’s lives if we get them wrong. It is not true to say that we have ignored them; in fairness, in every single debate I have said that I understood the strength of feeling of the unionist community. I have said that in every single contribution that I have made on this Bill. I understand that it is something that people feel extremely strongly about.

[Lord Browne of Belmont (DUP)]

In fairness to my constituent, I quoted only a very short paragraph. Before that, he went on in quite a lot of detail about what has been discussed here. So, in fairness to my constituent, it was a much fuller letter that we received from him.

[Baroness Suttie (LD)]

I thank the noble Lord for that clarification. However, probably lots of people out there would regard statutory instruments and secondary legislation, and such phrases, as sounding rather technical—but the point that my noble friend was making is that they are important. If we get the laws wrong, they will directly impact on the people of Northern Ireland, who have gone through a difficult situation since the passing of Brexit.

The effect of Amendment 25 would be to safeguard Article 18 of the protocol and allow the democratically elected Northern Ireland Assembly to have its say. I think the noble Lord, Lord Caine, is going to respond, as he is sitting in the middle of the three noble Lords. I would be very interested to hear, for the record, whether he considers that there are circumstances under which he could imagine using the powers granted under Clause 15(2) of this Bill to remove Article 18 of the protocol and remove the right of the Assembly to have that vote in 2024. If that possibility exists, can he imagine that it would ever actually be used?

On a second issue, in an article in June this year, Tony Connelly of RTÉ raised an interesting question about which version of the protocol would be voted on in 2024 by MLAs. Would it be the original EU version of the protocol, or the version as amended by this Bill, if it were to be passed and enacted? It is an interesting question, and I would like to know the Minister’s view on it. Tony Connelly says that those parties that want the protocol to stay

“will have a very strong case to say in 2024 they are being denied a democratic vote that has been mandated by international law.”