Northern Ireland Protocol Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Bruce of Bennachie (LD)]

My Lords, I rise to support these amendments tabled by my noble friend Lady Suttie and signed by the noble Baroness, Lady Ritchie, and I thank both of them for the way they have introduced them. This is a Foreign Office Bill, but its implications are vital for the people of Northern Ireland and for the people of the United Kingdom, because it is a political Bill which is dangerous in terms of what the Government are playing with.

At the heart of the protocol is the debate about unfettered access to both the UK market and the EU single market. Of course, unfettered access to both those markets is what we had before we left the European Union, and leaving that Union inevitably led to a situation where an open border between the UK, GB, Northern Ireland and the EU is not compatible with the agreement post leaving the EU. That is clearly the source of the problem—but everybody knew that at the time when the agreement was struck and signed, including the UK Government and Northern Ireland politicians. However, on the face of it, from all the implications that the noble Baroness, Lady Ritchie, quoted, there is a clear majority for moving on—not for setting aside the protocol or, by implication, the trade and co-operation agreement or, frankly, the Bill to repeal EU law, when we have sweated for the past several years to transfer that EU law into UK law.

Do the Government really want to provoke a trade war when our economy is in such a fragile condition? The Prime Minister says, and I agree, that we are facing a profound economic crisis. Is tearing up the protocol more or less likely to alleviate this or help recovery in Northern Ireland? The issue, therefore, is surely not how to achieve the minimal friction. We all agree that we want minimal friction; we want as free access as we can get. The issue is not how to achieve it but how we can get it to the lowest compatible level for business to carry on with minimal cost and delay.

The case for consulting the Northern Ireland Assembly is overwhelming. Not least, it is not just a matter of the numbers. The whole point of legislatures is that they are where compromises can be negotiated and struck; where the balance can be found. And there is the rub. The DUP insists that the Irish Sea border must go. As I have said, it would of course be ideal to have no borders, but that would be inconsistent with being outside the single market and the customs union. So a low-friction agreement on implementation of the protocol appears to be the answer, appears to have wide support and could surely be negotiated with good will on all sides.

Unfortunately, as I understand it—and I would be happy to be contradicted when the DUP enters the debate—the DUP is insisting on what it knows to be an impossible solution: no borders. The party has said that, unless it gets that solution, it will never re-enter the Assembly or the Executive. The Good Friday agreement—the Belfast agreement—is a power-sharing arrangement between the largest nationalist and largest unionist grouping. It is not a majoritarian arrangement, as the DUP rightly insists on telling us—but nor is it a never-ending veto. To share power is to seek and find compromise. Refusal to do so is to deny the spirit and probably the letter of the agreement. It is to deny democracy. Most important of all, it is to deny the people of Northern Ireland the delivery of essential services that they require and that they voted for—and, as the noble Baroness, Lady Ritchie, said, they desperately want solutions to be addressed.

So we are facing the prospect of a fresh election. I do not think anybody wants an election, and nor does anybody believe that it is likely to make a huge difference; it will not change much. I hope that it might further strengthen the Alliance but, on the whole, it is not likely to make a huge difference. If the DUP, before or after the election, blocks any compromise—I repeat, any compromise—is it not time to reconsider the arrangement? I have already said that power sharing requires compromise. Should refusing to compromise question the right to share power? Is it not time for some hard consideration of the rights of the people of Northern Ireland—their rights to have a functioning Government, to move forward and to have a solution that is based on reality, not fantasy?

[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.

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

I am most grateful to the Minister for giving way. Could he perhaps give an instance in which Norway has not immediately adopted a piece of European legislation since the EEA agreement came into effect?

[Lord Caine (Con)]

The noble Lord is a former diplomat. He is a far greater expert on these matters than I will ever be. However, my noble friend Lord Hannan has just whispered in my ear “the post office directive”. I will come back to the noble Lord with further details.