Northern Ireland Protocol Bill

Lord Cormack Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

However, it dates back to the last Prime Minister but one, and today, as the noble Viscount, Lord Hailsham, said, we have a new Prime Minister and a new Administration, a chance to turn over a new leaf, to bring back honour, to make our word again our bond and to negotiate in good faith with the EU on the practical implementation of our mutual obligations under the protocol. I am sure that Mr Sunak is an honourable man—it would be tactless to say, “like Brutus”. I hope he will now choose not to pursue this Bill. It would be the right thing to do, and it would also be the sensible thing to do, because negotiations cannot succeed while this blunderbuss is on the table and because I believe that this House will, if it has to, vote the Bill down.

[Lord Cormack (Con)]

My Lords, I speak with a sense of something approaching elation from yesterday. We have a new Prime Minister, who appears to be a man of absolute honour—I take up the points made by the noble Lord who has just spoken. I have hope in him, and I hope he will justify that hope, which I believe is shared by many.

I do not want to make a long speech. I moved a regret amendment at Second Reading, and I was rather sorry in many ways that I was not able to put it to the vote, but clearly the House did not want that to happen at that time and it was right to listen to the House.

I would like to give one message above all others to the Prime Minister. What took Northern Ireland forward—the noble Lord, Lord Hain, with whom I worked in Northern Ireland when he was Secretary of State and I was chairman of the Northern Ireland Affairs Committee, knows this better than I—was prime ministerial involvement; that was the key to success.

Both John Major and Tony Blair devoted enormous time and attention to what led to be the Good Friday agreement. I remember being present in the Royal Gallery when the Taoiseach, Bertie Ahern, came, together with Tony Blair, to speak to both Houses of Parliament. Tony Blair was particularly careful to say that this was not just his achievement, and that without the building blocks laid by John Major this could not have happened. There has to be a cross-party accord; there has to be prime ministerial involvement.

Our present Prime Minister has inherited a herculean task. If he is going to devote time to the economy, he clearly cannot be devoting an equal amount of time to Northern Ireland at the moment. What he can do, however, is to encourage those who are negotiating on this country’s behalf to negotiate. He can remove what I called in the Second Reading debate the sword of Damocles, which is this Bill. It is a bad Bill; it is a Bill that gives powers that no democratic Minister should ever seek in a plethora of Henry VIII clauses. Therefore, what I beg Mr Sunak to do is to just go carefully and then, as soon as it is possible, to go to Northern Ireland with the Secretary of State. I do not know who that will be, because the Prime Minister is reconstructing his Government even as we sit in this Chamber this afternoon. He has promised—and I was there when he promised it yesterday afternoon in Committee Room 14— a broadly based Administration, which we desperately need. We have had Administrations produced by Boris Johnson and Liz Truss which were by no means broadly based. They were merely gatherings of like-minded people and, in constructing their Governments, the two Prime Ministers did not really take sufficient account of variety and ability.

I hope that Mr Sunak is doing that as we speak. I hope that he will go to Northern Ireland soon; that he will talk to those who are negotiating on behalf of the Government with the European Union; that he will recognise that the very last thing that this country needs is a trade war, referred to earlier in this debate; and that he will pause. There is no great hurry and, even if the Government are in a hurry, your Lordships’ House is not in a hurry. This could take hours and hours and days and days, but at the end of the day this Bill is unimprovable, because it trashes our international reputation and the things that we are most proud of.

My noble friend Lord Howard’s reference to Putin, in his brilliant speech on Second Reading, was entirely apposite. We have to set an example; we have to show that we are indeed the guardians of one of the best democracies in the world. We have got to show that we are not prepared to sanction a Bill that rides roughshod over our national reputation. Like my noble friend Lord Hailsham, I would support either of these amendments if they were put to the vote tonight. But I understand why those who have proposed them in very persuasive terms perhaps do not want to do that. However, there must be a day of reckoning in your Lordships’ House because this Bill is bad for our country and bad for our future, and it must not go onto the statute books.

[Baroness O'Loan (CB)]

My Lords, I speak as one who lives in Northern Ireland and experiences on a regular basis the impact of the bureaucracy associated with the operation of the protocol. I spoke at Second Reading of my concerns about the Bill and I want to support both amendments placed before your Lordships today, because we do not have the information that would underpin proper consideration of the necessity for the Bill. No doubt a solution has to be found to the various problems arising in the operation of the protocol but, as witnesses to the Northern Ireland protocol sub-committee of the European Affairs Committee told us—we heard evidence last Friday in the Northern Ireland Assembly—this Bill is like placing a gun on the table at the negotiations.

I hope that, even at this late stage, the Prime Minister and the usual channels will consider the matter further and withdraw the Bill—in light of your Lordships’ interventions today, of the reports of the sub-committee on the protocol, those of the Delegated Powers and Regulatory Reform Committee and, most of all, in light of the report of the Constitution Committee, which says:

“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments. The Government’s reliance on the doctrine of necessity does not justify introducing this Bill. This raises the question of whether ministers might be thought to have contravened their obligation under the Ministerial Code to comply with the law, including international law.”


This is the most serious of observations by the Constitution Committee. I will vote against the Bill when we get an opportunity to do so but, at present, I support the amendments.

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[Lord Cormack (Con)]

My Lords, I would like to make a suggestion. It seems to me that we are not going to achieve a great deal by going through amendments that are not going to be voted on. I understand it is the convention anyhow that we do not vote in Committee, but I would like to appeal to my noble friends on the Front Benches. Rather than the next Committee session, which is scheduled for Monday next week, why can we not have, perhaps in the Moses Room, a thorough briefing from Ministers on exactly where negotiations are, what has already been agreed and what remains to be agreed, so that we move forward on the basis of being informed by our ministerial colleagues on this very complicated and important subject?

In making that suggestion, I take into account the points made by the noble Lord, Lord Bew, in his brave intervention. I agree with the noble Lord, Lord Pannick. He and I did not agree with what the noble Lord, Lord Bew, was saying, but it was a brave and helpful contribution. I think a discussion, perhaps in the Moses Room or another committee room, could be very helpful. It would not hold up progress for more than one day and we would go forward perhaps knowing a little more about the Government’s thinking.

There is, of course, the point made by the noble Baroness, Lady Ritchie. I know my noble friend Lord Caine. I admire him very much, and I know he spends a lot of time in Northern Ireland, but the other Ministers should be there, too. I very much want to see, and I made this point in my earlier intervention, our Prime Minister going there as soon as possible, and I take the amendment to that suggestion which came from the noble Baroness, Lady Ritchie, that it would be good to have the Taoiseach there as well, because the Republic and the United Kingdom have to work together. Without working together there would have been no Northern Ireland agreement, and without, in fact, the participation of George Mitchell there probably would have been no Northern Ireland agreement. I put this forward as a constructive suggestion. I would be grateful if whichever Minister is going to reply to this debate could make some reference to it.

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[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I turn to Amendments 3 and 67 in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Purvis of Tweed. The Government acknowledge that the noble Lord and the noble Baroness are right to raise the important issue of the relationship of this Bill to the United Kingdom’s international legal obligations.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, I consider that the amendments proposed are not necessary. The Government have published a statement setting out their legal position. I will expand on that position during my submission, in particular to answer the points raised by the noble Lords, Lord Pannick and Lord Kerr of Kinlochard, and others. None the less, a statement has been published, to which the noble Lord referred, setting out the Government’s legal position that the Bill is consistent with the United Kingdom’s international obligations.

Noble Lords chided me gently for perhaps going on a bit long at Second Reading—

[Lord Cormack (Con)]

Yes, you did.

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend. I was left by some of the strictures and anticipations of my point from noble Lords looking for synonyms for the words “long-standing convention”. However, in light of having been criticised for going on a bit long and the hour, I will confine myself to repeating—or rehearsing—the point noble Lords anticipated I would make.

It is a long-standing government policy and convention accepted by Governments of all parties not to comment on legal advice provided to the Government. A number of noble Lords who have been present in this debate or at Second Reading will understand personally the importance of that, having acted as internal or external counsel to His Majesty’s Government.

I was asked by the noble Lord, Lord Pannick, about the protocol and its place in relation to the Belfast/Good Friday agreement. The protocol puts that agreement at the forefront; the problem is that, in its implementation, it is undermining it.

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[Lord Stewart of Dirleton (Con)]

My Lords, that question brings me on to dealing with the terms of the argument in relation to Article 16, about which we have had some submissions from the noble Lord himself, the noble and learned Lord, Lord Judge, the noble Lord, Lord Dodds of Duncairn, and the noble Baroness, Lady Ludford. Triggering Article 16 would not solve the problems of the protocol. It would only treat some of the symptoms, without fixing the root causes of those problems. It has inherent limitations in terms of its scope. Such safeguard measures might address trade frictions but not the broader identified impacts of the protocol such as I have been founding upon. The legislation that the Government propose provides the comprehensive and durable solution required and certainty for businesses and the people of Northern Ireland.

[Lord Cormack (Con)]

I must confess that I am very troubled and puzzled. If the Government have decided that this is what they are going to do, that is incompatible with having proper negotiations. How can my noble and learned friend explain that?

[Lord Stewart of Dirleton (Con)]

My Lords, as your Lordships have heard from my noble friend Lord Ahmad of Wimbledon and the noble Lord, Lord Bew, this is not identified as an inconsistency by our counterparties in relation to this matter.

The Government’s legal position is that our legislation is necessary and justified, and we make that assertion without prejudice to our position in relation to Article 16—again, as your Lordships heard from my noble friend Lord Ahmad of Wimbledon earlier. Article 16 is expressly limited. It is the Government’s view that it would not solve all the societal and political issues identified, including those identified today in some of your Lordships’ contributions to the earlier debate, whereas the Bill provides a comprehensive solution to those problems.

The noble Lord, Lord Campbell of Pittenweem—who in another context is my learned friend—referred me to the examples I cited when winding up at Second Reading of cases which set out the doctrine of necessity. The Canadian fisheries case concerned the Convention on Cooperation in the Northwest Atlantic Fisheries, which was a treaty. The Hungary-Slovakia case to which I also referred was a dispute about an agreement between the two parties for navigation of a river and the construction of infrastructure. In any event, I think the answer to his point is that the concept of necessity and its application in these circumstances is admitted within the articles of state responsibility.