Amendment 3

United Kingdom Internal Market Bill - Committee (1st Day) – in the House of Lords at 3:45 pm on 26th October 2020.

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Lord Hain:

Moved by Lord Hain

3: Clause 1, page 1, line 11, at end insert—“( ) This Part only has effect during any time when the United Kingdom is fully in compliance with—(a) the terms regarding the United Kingdom internal market set out in the Northern Ireland Protocol, and(b) the terms of the Good Friday Agreement which are relevant to the United Kingdom internal market.”

Photo of Lord Hain Lord Hain Labour

My Lords, in moving Amendment 3 I wish also to speak to Amendments 157 and 177, standing in my name and those of the noble Baronesses, Lady Ritchie, Lady Altmann and Lady Suttie, for whose support I am most grateful. I spoke on this Bill at Second Reading and set out my fundamental objections to it then. In particular, along with a clear majority in this House, I totally rejected Part 5, which deliberately and cynically drives a coach and horses through the UK’s respect for the rule of law. Not only that, it drives that same coach and horses through the protections we need for the Good Friday/Belfast agreement that successfully brought an end to most of the Troubles, which had blighted life in Northern Ireland since the 1960s.

In that Second Reading debate and in the Committee stage debate on the Trade Bill, I put on the record of this House the horror and disbelief felt well beyond the shores of this United Kingdom. The most striking reaction was that in the United States, where the current President’s Northern Ireland envoy—his former chief of staff—agreed fundamentally with their rivals in the Democratic party that they cannot do any trade deal with the UK if the UK acts against the Good Friday agreement. That is exactly what is happening here in this Bill. It is a legal document that works against the peace agreement for Northern Ireland. In proposing this, the Government have pulled off a spectacular feat in uniting Republicans and Democrats at a time when they have never been more divided. This, of course, is not a feat but a spectacular own goal, even by the standards of this Prime Minister and this Government.

Since I last spoke, the front-runner in the US presidential election has made his position even clearer, in case people were not listening the first time. I want to add to the record of the House the relevant lines from his policy paper, Joe Biden, Irish-America and Ireland, published on 18 October: Joe Biden

“will support active US engagement to advance the Northern Ireland peace process” and will ensure that there will be

“no US-UK trade deal if the implementation of Brexit imperils the Good Friday agreement.”

There is nothing subtle here. The front-runner to be President of the United States does not like what he sees as this Government seek to implement Brexit. He is sending a strong warning to us, and we in this House have it in our power, through this Bill, to force the Government to change course.

I am sad to note that the Government’s weak and pathetic defences include the wholly spurious argument that this Bill actually protects the Belfast/Good Friday agreement. Words such as “consent” are thrown about in a misleading way—to put it charitably—in order to create an impression that the purpose of these clauses is to protect all those who brought about the peace agreement. Let us look at all those who did that.

First and foremost, there are the people of Northern Ireland. They voted overwhelmingly for the agreement in 1998 and voted firmly against Brexit in 2016. They went on to vote overwhelmingly for parties opposed to Brexit in last December’s parliamentary election. Secondly, there are the political parties themselves. The majority of parties, representing the majority of the people of Northern Ireland, are opposed to this Bill. Thirdly, the Irish Government, the UK Government’s co-guarantor of our peace process, are opposed to this Bill. Fourthly, the United States, which provided the broker for the agreement in Senator Mitchell and has supported it ever since, is unanimous in its opposition, whatever the result of the forthcoming presidential election. Fifthly, the European Union, which backed up the agreement through PEACE funding and through the openness of the single market, is clear that the Bill is in breach of the Protocol on Ireland/Northern Ireland.

Not one of these groups supports what the Government are attempting through this Bill, so whose consent exactly do the Government think they have? I have been racking my brains to think of anyone, but all I have come up with are the Brexit extremists in the Conservative party and the most Brexit-obsessed end of one political party in Northern Ireland, the DUP—that is it. It has now emerged that both Brexiteer and Unionist-sympathising MPs were, late last year, promised an opportunity to address their concerns about the protocol in order to persuade them to pass the European Union (Withdrawal) Bill into law. It therefore seems most probable that No. 10 always had a step like this in mind, even at the very time of signing the withdrawal agreement. So much for the British Government negotiating in good faith.

The rebel MPs in question continue to urge that Boris Johnson should ditch the Northern Ireland protocol, whether there is a trade deal or not. It is a matter of speculation whether the Prime Minister’s sponsorship of the current United Kingdom Internal Market Bill reflects an anticipation of a no trade deal outcome to the current negotiations with the EU or is a tactical ploy to dissuade it from insisting on a level playing field if Britain is to have tariff-free access to the EU single market. Seeking to secure a trade agreement by threatening to break the terms of a recent treaty seems an odd way to win the trust of a trading partner, and, as the biggest integrated market in the world, the EU is unlikely to yield to bullying threats from No. 10.

The European Commission, which has a mandate from member states’ Governments, including the Republic of Ireland, rightly regards this draft legislation as a breach of international law and has begun proceedings at the European Court of Justice. Unsurprisingly, the Prime Minister’s concession that the Commons must approve the controversial plans at a later date has made no difference to the objections of Brussels to his plan to renege on that agreement.

Yet the Government continue to defend the indefensible. They also claim that these amendments would be “superfluous”, and therefore unnecessary, as the Government’s commitment to the Belfast/Good Friday agreement is clear. I am afraid that the Government’s commitment to the agreement is a million miles from clear. Instead, they are using it—a fragile peace agreement that has saved lives for over 20 years now—as a bargaining chip in the belief that they can gain some short-term advantage in the negotiations with the EU.

The changes introduced by the Bill do not in fact amount to just a “specific and limited” adjustment made in the light of, for example, unforeseen circumstances. The purpose of the Irish border protocol is to ensure that the customs and regulatory alignment between the Republic of Ireland and Northern Ireland, which has underpinned an all-island-of-Ireland economy and is necessary to avoid a harsh border on the island, remains in place, even if there is no trade deal after 1 January. The reason this is so vital is that these questions do not relate only to trade; in order to give practical effect to the identity provisions of the Belfast/Good Friday agreement on the entitlement to identify as British, Irish or both, it is essential that the customs border, removed by the EU single market from 1 January 1993, should not return.

UK membership of the EU facilitated the delivery of the agreement in a manner which respected both communities. It was the Johnson Government’s choice of a hard Brexit which has brought about the need for a border in the Irish Sea, to avoid a hard border on the island of Ireland. The land border is 310 miles long, with over 200 crossing points, 110 million people crossing annually and up to 30,000 crossing daily for work. The Northern Ireland Statistics and Research Agency estimates that two-thirds of Northern Ireland-Republic of Ireland trade is linked to cross-border supply chains.

In view of the potential consequences for increasing the tensions within Northern Ireland/Irish border communities, it is chilling to note that Clause 47 explicitly disapplies Section 6(1) of the Human Rights Act, which requires public authorities to act in a way that is compatible with the European Convention on Human Rights. This means that regulations made under these clauses cannot be struck down on the grounds of human rights, as they normally could be as secondary legislation.

The Government are now claiming that the deal they made with the EU in 2019 was “legally ambiguous” and that Northern Ireland would be isolated from the UK—something which they say, implausibly, was unforeseen last year. We need to ensure that these objectionable measures to disapply the protocol, which were not included in the Conservative manifesto and are in conflict with Parliament’s approval of the withdrawal agreement, are voted down in your Lordships’ House.

To those who want to defeat these amendments by arguing that they are superfluous and appealing to this House to “trust us”, I respond: “We can’t trust you; we don’t trust you; you’ve proved, sadly, why we can’t trust you.”

Of course, the provisions of the present Bill, as amended by the Government in the House of Commons, do indeed propose to break international law in specific ways. For example, they allow the UK Government to break the protocol to waive the requirement for export declarations from Northern Ireland to Great Britain. Ministers can also decide whether goods moving from Great Britain to Northern Ireland need border checks and can curtail the scope of EU state aid rules that could otherwise potentially apply in the UK through the protocol.

State aid is an important and complex area. It appears that the Government are trying to pull back from the relevant provisions in the protocol because they were apparently warned by civil servants earlier this year that these could reach back into the rest of the UK. Nevertheless, according to the Financial Times of 14 September, the recent trade agreement with Japan commits the UK to tougher restrictions on state aid than the Government are willing to offer to the EU. Products from Northern Ireland produced to EU standards will still be covered, as there is already an existing deal between the EU and Japan. There may, however, be potential conflicts between future free trade agreements entered into by the UK with other countries and access for products from Northern Ireland.

There have also been plans by the Government to use a future finance Bill to overcome another aspect of the protocol, covering payment of tariffs on goods entering Northern Ireland, which would otherwise be necessary under the withdrawal agreement.

The EU has been seeking common high standards in return for tariff-free access, with legal guarantees that neither side will seek an unfair competitive advantage. The UK has in the past been supportive of the EU state aid regime, but the Government announced on 9 September that after 1 January the UK would follow the relatively light WTO anti-subsidy rules and would not announce details of its new regime until 2021—in itself seen as a provocation by EU negotiators.

The precise impact of the United Kingdom Internal Market Bill will of course depend on the outcome of the UK-EU trade talks, which have themselves been thrown into doubt by the proposals in this Bill. The Government are claiming that these powers are just a safety net. However, there is nothing in the Bill which limits the use of this legislation to circumstances where there is no trade deal.

The Prime Minister should abide by the terms of the withdrawal agreement and use the forum which was set up under it—namely, the joint committee for the protocol on Ireland/Northern Ireland, which is co-chaired by Michael Gove for the UK and Maroš Šefčovič for the EU—to resolve the outstanding issues on the movement of goods between Great Britain and Northern Ireland after 1 January 2021. In other words, there is a mechanism to deal with some of the issues that arise from the protocol in respect of trade across the Irish Sea.

Amendments 3, 157 and 177 therefore effectively ensure that this Bill cannot come into force unless the full provisions of both the Irish protocol and the Good Friday agreement remain intact. Even if the Government listen to the clamour and remove Part 5, the amendments seek to add much-needed protections which the Bill could really benefit from. They bind the Government to fully respect the Belfast/Good Friday agreement, the withdrawal agreement and the protocol on Ireland and Northern Ireland.

The amendments therefore provide much-needed safeguards for the protection of two international agreements that the United Kingdom has entered into and ratified freely—namely, the Belfast/Good Friday agreement and the Northern Ireland protocol within the EU withdrawal agreement—and with them continued peace and security for the people of Northern Ireland. I urge your Lordships’ House to support these amendments, and so important are they that I will seek to discuss with colleagues dividing on Report.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 4:00 pm, 26th October 2020

My Lords, it is a pleasure to follow my noble and honourable friend Lord Hain, who is instructive in this regard as a former Secretary of State for Northern Ireland, and who has quite clearly shown the need for these amendments as safeguards to protect the Good Friday agreement and the withdrawal agreement, with direct reference to the Northern Ireland/Ireland protocol.

As somebody who grew up in Northern Ireland and comes from a democratic nationalist tradition but seeks reconciliation with my unionist neighbours, I am in absolutely no doubt that the Bill as currently drafted in terms of trade could cause innumerable problems for north-south co-operation, east-west co-operation between Ireland and Britain, and internal co-operation in terms of the need to build relations between unionists and nationalists—the very thing that the Belfast/Good Friday agreement, as an international treaty, sought to address.

As the noble Lord, Lord Hain, has referred to, in that regard we had the support of the European Union, underscored by peace funds underscored by the United States of America. It is significant that the front runner and others, such as the US envoy to Northern Ireland, have quite clearly stated that this current Bill, with the fracturing of the agreement and the fracturing of the Northern Ireland protocol, could imperil the Good Friday agreement and imperil those relationships. They would not countenance, at this stage, the Bill remaining in its current form, with particular reference to Part 5 on a trade deal with the UK. That is a particular warning signal from one of the biggest Administrations in our global world.

These amendments focus on the need to ensure that the provisions of the Bill cannot be enacted unless they are compliant with the Good Friday/Belfast agreement and the Northern Ireland protocol—and, as my noble friend Lord Hain said, they do provide that necessary safeguard and protection.

Amendment 3 seeks to ensure that the “UK Market Access: Goods” section—Part 1—will have effect only when the UK is fully compliant with the terms regarding the UK internal market set out in the Northern Ireland protocol and the terms of the Good Friday agreement that are relevant to the UK internal market.

Amendment 157 requests the insertion of a clause specifically about the Good Friday agreement to

“address the unique political circumstances on the island of Ireland … maintain the necessary conditions for continued North-South cooperation … avoid a hard border between Northern Ireland and the Republic of Ireland”— which is what the Northern Ireland protocol was designed to do, and which is clearly and specifically referred to in the withdrawal agreement that was signed by the Prime Minister last year with the European Union—and

“support, protect or implement the 1998 Good Friday/Belfast Agreement” in so far as it is relevant to the UK internal market.

Amendment 177 is quite instructive, in that it states in the rubric explanatory section:

“No provisions of this Act come into force unless the United Kingdom is … fully in compliance with … the Northern Ireland Protocol … and … the terms of the Good Friday Agreement which are relevant to the United Kingdom internal market.”

Each of these amendments builds on the others, stressing the importance of the Belfast agreement and the Northern Ireland protocol to British-Irish relations and underscoring the bipartisan approach between Britain and Ireland that I have already referred to. In fact, the protocol stresses the essential elements of strands 2 and 3 of the Belfast agreement in respect of north-south economic co-operation and British-Irish relations. So it is important: we need to utilise the machinery of the Good Friday agreement to develop such relations as the North/South Ministerial Council and the British-Irish Council.

It does sadden me that the Government insist that they are trying to protect the Good Friday agreement. Nothing could be further from the truth, because in actual fact, through this United Kingdom Internal Market Bill, the Government are quite specifically fracturing that agreement and fracturing the withdrawal agreement that they signed up to this time last year.

The European Union Committee report, which was published some 14 days ago, has also been particularly instructive in relation to this issue. The committee states that there has been an “inherent tension” at the heart of the Northern Ireland protocol from the outset, due to the divergent expectations of the two parties: for the Government, it is

“maintaining the territorial integrity of the United Kingdom, and its internal market” and for the EU it is

“to maintain the integrity of the Single Market and the customs union.”

Originally, the idea was to negotiate, in good faith, a pragmatic compromise, providing proportionate safeguards to protect the 1998 Good Friday agreement in all its dimensions. The Lords European Union Committee argues that, instead, the Bill elevates one element—the integrity of the UK internal market—above the others. That is the danger with this particular Bill.

The EU Committee further illustrates an important point, and hence the need for these amendments to be accepted by the Government. If they are not, I hope that my noble friend Lord Hain will pursue these on Report and that in his discussions with the usual channels, he will press them to a vote. These amendments would secure that those important, interlocking relationships were respected and honoured.

The EU Committee further states:

“By focusing solely on Northern Ireland’s relationship with the rest of the UK, the Bill fails to reflect that balance, and … it could pose a threat not just to the Withdrawal Agreement (including the Protocol on Ireland/ Northern Ireland), but to the maintenance of the Belfast/Good Friday Agreement.”

This point has already been referred to by the Anglican Church hierarchy’s letter of last week to the Financial Times, which was addressed by the most reverend Primate the Archbishop of Canterbury last week. The letter states:

The UK negotiated the Northern Ireland Protocol with the EU to ‘protect the 1998 Agreement in all its dimensions.’”

It then talks about breaking the protocol, as well as breaching a fundamental tenet of the Good Friday agreement by limiting the incorporation of the European Convention on Human Rights in Northern Ireland law, as has already been referred to by the noble Lord, Lord Hain. This will be dealt with in greater depth in Amendment 161 in Part 5 of the Bill, whenever it is discussed next week in Committee, because the principle of reconciliation is fractured by the Government through the contents of this Bill.

Put simply: in urging support for these amendments, I again reiterate my statement of last week on Second Reading that, in the process of the contents of this Bill,

“the Government managed to set the nationalist and unionist communities against each other and undermine relations with Dublin”— where there was a bipartisan approach—

“by leaving the possibility of a hard border on the island of Ireland on the table for so long.”—[Official Report, 19/10/20; col. 1382.]

There is an urgent need to remove the inherent illegality in this Bill and the threat to peace and prosperity in Northern Ireland. These amendments seek to ensure that that peace is protected, that the Good Friday agreement is protected, that the protocol is protected and that that is placed on the face of the Bill.

Photo of Baroness Altmann Baroness Altmann Conservative 4:15 pm, 26th October 2020

My Lords, I have added my name to these amendments, moved so excellently and explained clearly by the noble Lord, Lord Hain, and of course the noble Baroness, Lady Ritchie of Downpatrick. So I will not spend too much time going through the proposals of these particular amendments. I would just like to ask the Minister, from these Benches, why the Government are objecting to these amendments being in the Bill.

I understand that one of the arguments is that they are superfluous or not really required. However, given the clear lack of trust or concerns about some aspects of recent statements, and given that, I assume, the Conservative and Unionist Party is indeed committed to the Good Friday agreement, to no hard border on the island of Ireland and to the terms of the Northern Ireland protocol—on which this Government were so recently elected and which our Prime Minister signed up to—this amendment merely aims to ensure that measures in the Bill are fully compliant with both the Good Friday agreement and the Northern Ireland protocol, which was part of the great deal that the Government negotiated and put to the country. If Part 5 is a negotiating tactic and the Government really do not intend to use it and are aiming to get a deal, or if there is no deal, surely we still need to respect the Good Friday agreement, and our internal market needs to respect the promises made that this Northern Ireland protocol will be part of our future relationship with the EU.

I ask my noble friend to explain why the Government are unwilling to accept these amendments and to confirm that our party wishes to maintain our country’s reputation for upholding the legal agreements that we have reached with other countries in good faith.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I start by apologising to the noble Baroness, Lady Ritchie, for speaking over her earlier; I had not realised that I had already been unmuted.

The issue of the Northern Ireland protocol is about nothing more nor less than peace and stability in Northern Ireland and peace and security in the United Kingdom. I share the view given with such clarity a moment ago by the noble Baroness, Lady Altmann, that this matter should be explicitly declared in the Bill. There is nothing more important to national security and public safety than the Good Friday agreement. It celebrates the 21st birthday of its effectiveness on 2 December this year. My interest in the Good Friday agreement arose from my time as Independent Reviewer of Terrorism Legislation and the years that followed. I have followed very closely both the sometimes fractious, but surviving, political process in Northern Ireland and the recent history of residual terrorism in Northern Ireland. Although it still exists, it is much reduced and is well understood, now, at least, by the authorities.

The Good Friday agreement has secured the United Kingdom. If you visit Northern Ireland and look at its political and business institutions and public authorities, you will see that it has given them a sense of benefit which is sometimes not matched in other parts of the United Kingdom.

I pay tribute to the political parties in Northern Ireland, some of which were regarded as enemies of the people until the Good Friday agreement—and whose presence at St Andrews caused a good deal of criticism of the then Government—for the way in which they embraced constitutional activity in the political issues of Northern Ireland. I once spent some time with some ex-terrorists who had, by then, become respected politicians. I was hugely impressed by the way in which they embraced those constitutional proprieties, both in Northern Ireland and the Republic of Ireland.

There is no more important issue in the context of Brexit than ensuring that nothing is done to undermine in any way the Good Friday agreement. Everything else fades into unimportance. We must be clear that no sacrifices of the stability that the Good Friday agreement has brought will be made in the name of Brexit.

I will listen with great care to what is said by the noble Lord, Lord True, in replying to this short debate. I hope we will hear unequivocally from him not only that nothing will be allowed to happen that undermines the Good Friday agreement but that the Government are prepared to declare that in the Bill.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, after that speech from the noble Lord, Lord Carlile of Berriew, I am tempted to say “Amen” and sit down, but I will just add a few words. We will, of course, return to this subject when we debate the crucial Part 5 of the Bill.

All I really want to say to your Lordships is this: the Good Friday agreement is the greatest cross-party agreement since the war. It is the achievement, of course, of the Blair Government, but it is also the achievement of the John Major Government. As Tony Blair himself has admitted on a number of occasions, particularly when we had that great ceremony with the Taoiseach in Westminster Hall shortly after the Good Friday agreement, without the groundwork of John Major, Albert Reynolds and others, this could never have come about.

It would be an act of supreme folly if anything we did in this Parliament endangered the continuity of the Good Friday agreement. It is absolutely crucial that each and every one of us recognises this. In whichever party we sit, or on the Cross Benches, this agreement is our heritage and it is our duty to conserve it. It is nothing to do with whether you are on the Brexit or remainer side; that argument is over. What is not over is the continuing relevance and importance of an island of Ireland without hard borders and the principles and achievements of the Good Friday agreement being maintained.

I had the honour to serve as the chairman of the Select Committee on Northern Ireland in the other place. There were many memorable moments, such as addressing a meeting in Crossmaglen with my committee, which would never have been possible without the agreement, but my most memorable moment is this: being asked by the late Lord Bannside, or Ian Paisley as he was then, if I would be kind enough to have a private meeting with him. This was soon after the joint Executive had come into being, and of course Lord Bannside had not been altogether helpful at the time that the agreement was forged. When I congratulated him on working with Martin McGuinness, he said to me, “I have discovered that Martin McGuinness has a spiritual dimension.” I could have fallen off my chair. When I went to Ian Paisley’s farewell at Hillsborough, attended by the Taoiseach and others, a panegyric—and it was that—was delivered by Martin McGuinness, thanking his friend and mentor. We have come a long way and had some rough passages since then, but I will always remember that as an extraordinary illustration of what a political agreement can achieve. We must not jeopardise that.

I am glad that this was introduced by the noble Lord, Lord Hain—he was himself a notable contributor to all these things and has been since. We must not put this at risk.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 4:30 pm, 26th October 2020

My Lords, it is a pleasure to follow my noble friend Lord Cormack, who has spoken so passionately, as did the noble Lord, Lord Carlile. I, too, also pay tribute to the contribution made by the then Conservative Government at the start of the Good Friday agreement. Speaking on the eve of the US elections, never has it been more timely to remind ourselves of the ongoing importance of that agreement.

Given that I do not think that there will be another opportunity to do so, perhaps I may briefly refer to the original Clause 1(3) which states that the principles set out in that clause

“have no direct legal effect except as provided by this Part.”

If they have no direct effect, presumably statutory instruments will need to be introduced for them to have effect. Will they become directly applicable at the same time in all four constituent parts of the United Kingdom?

I welcome in particular the probing nature of Amendment 3. I shall refer in passing to the evidence that we took in the EU Environment Sub-Committee. I am disappointed by the seeming lack of urgency reflected by the Government in preparing, in particular, farmers, producers, the road haulage industry and other interested parties involved in the production of or associated with agri-food, which of course is a mega business for Northern Ireland. In our letter to the Secretary of State, we concluded:

“We urge the Government to consider the likely impacts on Northern Ireland businesses and consumers of the increased levels of checks and controls that will be required as a consequence if the UK-EU future relationship negotiations are not successful.”

We noted that in his original reply the Secretary of State did not acknowledge the challenging timetable to implement the protocol in this regard. I know that when we come to discuss Part 5, there will be opportunities to consider this in more detail, but Clause 11 already looks at some of the details in Part 1 that relate to this.

I will use this opportunity to ask the Minister to assure us that in parallel with the consideration of this Bill, that what the Secretary of State said in reply to the sub-committee on 7 October, which was that the Government are actively engaging with the Northern Ireland Assembly, along with Northern Irish farmers, producers, hauliers and all those who are involved in the agri-food industry to enable them to be fully prepared to do business on 1 January 2021, is the case. Leading up to July, the evidence we took indicated to the contrary. There had been no direct contact of any specific nature with the Northern Ireland Assembly and certainly not with those interested parties from which we took evidence. Can my noble friend put my mind at rest that this has now moved on and that there have been direct contacts with the Northern Ireland Assembly and with the parties that will be affected in this regard?

Photo of Baroness Suttie Baroness Suttie Liberal Democrat Lords Spokesperson (Northern Ireland)

My Lords, it is a pleasure to follow the noble Lord, Lord Cormack, and the noble Baroness, Lady McIntosh. Along with the noble Baroness, Lady Altmann, they have shown that there is much agreement about this matter on all sides of the House. The noble Lord, Lord Cormack, always speaks with passion, conviction and experience on matters to do with Northern Ireland, especially on maintaining the progress made since the 1998 agreement. I hope that his wise counsel was listened to by the Government Front Bench today. The noble Lord, Lord Hain, and the noble Baroness, Lady Ritchie, set out very clearly in their powerful speeches why we feel that these amendments are necessary, and I am very glad to have been able to add my name to Amendments 3, 157 and 177. As my noble friend Lord Carlile said so clearly, this is a matter of peace and stability.

I would like to make four points. As the noble Baroness, Lady Ritchie, and the noble Lord, Lord Hain, said, it is frankly staggering that the Government are claiming that they are acting to protect the Good Friday/Belfast agreement through the introduction of this Bill. As has been said by many noble Lords, it is the Government’s own withdrawal agreement and protocol that they are now trying to reverse through measures set out in this Bill. They were either wrong in their assessment of the impact of the withdrawal treaty on the Good Friday/Belfast agreement 10 months ago or they are wrong now. Can the Minister clarify which is the case?

My second point is that ahead of the Brexit negotiations, the European Union carried out an extensive exercise mapping the connections between the Belfast agreement and the single market. Clearly, it is important to recognise that north-south co-operation under strand 2 of the Good Friday/Belfast agreement has moved on extensively since 1998. Can the Minister say whether a similar mapping exercise was carried out by the UK Government on the potential impact on the Good Friday/Belfast agreement ahead of the drafting of this Bill?

My third point concerns the hugely important area of rights, safeguards and equality of opportunity. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have expressed understandable anxiety about the protection of these rights following the introduction of this Bill. Can the Minister confirm that there will be no reduction in the rights as set out in the Good Friday/Belfast agreement and that the relevant obligations in the withdrawal treaty will be implemented in full? Can he also clarify whether an impact assessment was carried out specifically on the potential impact on rights and equalities?

My final point is about the Good Friday/Belfast agreement itself. We are blessed to have many noble Lords from all sides of the House who were directly involved in negotiating that agreement. We have several former Northern Ireland Secretaries, including the noble Lord, Lord Hain, who I have appreciated working closely with in producing these amendments. As my noble friend Lord Alderdice said in the Second Reading debate on this Bill last Monday:

“Those of us who spent many years of our lives negotiating and implementing that agreement had assumed that if we could find a new future for the people of our islands, we could find a way of maintaining our relationships with the rest of the European Union.—[Official Report, 19/10/20; col. 1357.]

This Bill now puts a very real strain on that relationship with our European partners, not least because of the potential impact on the Good Friday/Belfast agreement. When the Government committed to the Northern Ireland protocol, it was on the understanding that it was to

“be implemented so as to maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.

Following the introduction of this Bill, do the Government still stand by that commitment?

It is deeply depressing, as the noble Lord, Lord Hain, has said, that Brussels and Washington appear to understand with greater clarity than this Government what is at stake if we start to disrupt the careful checks and balances based on trust and consent that are so essential to the Good Friday/Belfast agreement. That is why these amendments are necessary. We need to have this continuing commitment in the Bill. I look forward to hearing the Minister’s response.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, it is a privilege to speak in this important debate. I say straightaway that we on these Benches support the principles that have been outlined by my noble friend Lord Hain, and the noble Baronesses, Lady Ritchie of Downpatrick, Lady Altmann and Lady Suttie, who have all put their names to the amendment. The essence of this amendment is that the Government should commit themselves to doing nothing that breaches the Good Friday agreement.

There is no noble Lord who has spoken in this debate who does not agree that a critical part of the Good Friday agreement is an open border between north and south. No noble Lord does not agree that, if the border is closed, one of the essentials of the peace agreement goes—and that threatens security and lives in Northern Ireland. That view is obviously accepted not just by the Democratic Party in the United States of America but by the Republican Party.

The dilemma the Government faced in reaching a conclusion about how to Brexit was how to keep the border open yet, at the same time, leave the single market while giving the European Union security whereby the border between north and south would not be an open door for goods from the north of Ireland flowing into the single market to the south. The solution reached, which the current Prime Minister said was “brilliant” and which he formally endorsed “strongly”, was that goods in Northern Ireland and those brought into it which were at risk of going to the south would be compliant with the single market regulations—both regulatory requirements and the payment of duty. That would be achieved with checks on goods, in so far as necessary, coming from Great Britain to Northern Ireland. That was a good solution to the problem and was, as I said, adopted by the British Government.

It was also agreed that there would be four protections in the Northern Ireland protocol to ensure that the constitutional arrangements would not create difficulty for the unionist community in the north. First, there would be a joint committee to settle the detailed arrangements. Secondly, there would be an arbitration provision if there was a dispute about whether they went too far one way or the other. Thirdly, Article 16 would allow the British Government to impose their own measures, in accordance with the terms of the Northern Ireland protocol, if they were concerned about a threat to society, the economy or cultural links between the two. Fourthly, there is a provision for democratic consent if the people of Northern Ireland no longer wish to comply with the Northern Ireland protocol.

Those were the arrangements agreed by the UK Government. Now the Government say that we may not continue to comply with the Northern Ireland protocol. They are signalling to the European Union, to the Republic of Ireland and to the United States of America that you cannot rely on us in relation to the provision that keeps the border open. This Government have the impertinence to say that it is the European Union that is threatening the border. If you say, having just entered into an agreement, “We may not continue to agree or comply with it”, then of course the other side is going to think that you are not reliable. As it happens, you also trash our reputation as a country by doing it. You make this Government an absolute laughing-stock. First, Brandon Lewis said that they were breaking the agreement. Then the noble and learned Lord, Lord Keen, said that they were not. Then Brandon Lewis said, “Oh yes we are”. Then the noble and learned Lord resigned because of what Brandon Lewis said. Then Michael Gove said, “Maybe we are; maybe we aren’t”. That is the position of the Government of the United Kingdom, which has a reputation for complying with the law.

Could the Minister explain? First, are we breaking the law or not? Secondly, if we are, why are we doing so—or even threatening to—when we entered into those four protections to ensure that there was no pressure on the border between Northern Ireland and Great Britain? Thirdly, can he give the assurance required by my noble friend Lord Hain, and the noble Baronesses, Lady Ritchie of Downpatrick, Lady Altmann and Lady Suttie? We all require that the Government will do nothing that threatens the Good Friday agreement. Finally, will the Minister explain how it does not threaten an open border to say, as the British Government do, “We may not stand behind the Northern Ireland protocol”?

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee 4:45 pm, 26th October 2020

My Lords, I thank all noble Lords who have spoken, particularly the noble Lord, Lord Hain, the noble Baroness Ritchie of Downpatrick, my noble friend Lady Altmann and the noble Baroness, Lady Suttie, who all signed the amendment. I congratulate the noble Lord, Lord Hain, on the measured and thoughtful way in which he presented his case, and on his ingenuity in getting this amendment in so early in the Bill, so that the Committee can debate this important topic, which is one of the abiding matters of interest in the Bill. I do not demur from sensing the opinions the House has expressed on aspects of the Bill, even if I do not agree with them.

I will and must, as invited, repeat the assurances that the Government gave to the House at Second Reading last week, and will do so again when the Committee turns more fully to the Part 5 clauses. I say again, without demur or cavil, that the Government’s overriding priority has been, and will remain, to protect the Belfast/Good Friday agreement and the gains of the peace process. We agree with all noble Lords who have spoken on that fundamental objective. I assure the noble Baroness, Lady Suttie, that Her Majesty’s Government always give the most careful consideration to the impact of any of their actions in this important respect.

I was asked about the human rights aspect. The Government are, of course, committed to the European Convention on Human Rights. We have made that clear before, time and again. However, we have brought forward amendments to the Bill clarifying that regulations made under clauses which the Committee will discuss later will be subject to judicial review on public law grounds. That will provide an effective remedy in the theoretical and limited scenarios in which regulations might conceivably interfere with convention rights. My noble friend has obviously made the due statement on the European convention on the face of the Bill.

The Government’s commitment to the Belfast/Good Friday agreement and to the peace process is beyond question. We all acknowledge the importance of the delicate balance across communities in Northern Ireland. We should all reflect on the importance of not letting opinions and comment flow which suggest, either within or outside these shores, that this Government, this party, the party opposite or any Member of this House do not believe that this agreement is fundamental. We do. Where we differ is that the Government do not agree with many noble Lords who have spoken that the United Kingdom Internal Market Bill undermines the Belfast agreement. On the contrary, the Bill delivers on our commitment to unfettered access for Northern Ireland businesses to the whole UK market. In so doing, it supports the economic and social links between Northern Ireland and the rest of the United Kingdom. In that way, it complements the provisions of the protocol which avoid a hard border on the island of Ireland. It is, and remains, the Government’s position and policy that there should be no such border. The Bill supports the interlocking and interdependent elements of the Belfast/Good Friday agreement.

The Committee will come back to the questions of the rule of law in detail in Part 5, but I repeat what I said at Second Reading: the Government believe that presenting this Bill to your Lordships’ House, and the fact that it passed through the other House, is in accordance with our constitutional norms and does not infringe the rule of law.

Northern Ireland Peers voted, by a majority, against the amendment moved by the noble and learned Lord, Lord Judge, at Second Reading. That was not every Peer from Northern Ireland and I accept that it reflects differences of opinion. We have to note and respect that. The noble Lords, Lord Kilclooney and Lord Trimble, both of whom negotiated and signed the Belfast/Good Friday agreement, voted against the amendment your Lordships agreed to at Second Reading. I repeat: it is the firm resolve of the Government to maintain, and ensure compliance with, the Belfast/Good Friday agreement, and so I disappoint noble Lords who have spoken. I do not believe that the addition of these amendments to the Bill is necessary.

Turning to the references in Amendments 3 and 177 to the Northern Ireland protocol, again, as I have set out, the Government are committed to implementing the withdrawal agreement and the Northern Ireland protocol and have already taken many practical steps to do this, and continue to do so. I assure the noble and learned Lord, Lord Falconer, and others that we are continuing to work with the EU in the joint committee to resolve outstanding issues arising from the Northern Ireland protocol. Our priority is to secure the outcomes that we need in that forum, working in a spirit of good faith, so that the protocol can be implemented in the pragmatic and proportionate way intended. This is intended to give the best platform for it to command support across the whole community in Northern Ireland. Let me repeat: as a responsible Government, we cannot allow the economic integrity of the UK’s internal market to be compromised inadvertently by certain provisions in the protocol without a safety net in place. The Government have been clear in our statements, including on the criteria set out by the Government on 17 September, that these provisions would, in any case, be used only where, in the Government’s view, there had been a material breach by the EU of duties of good faith or other obligations, and be used in parallel with the dispute resolution procedures that the protocol itself establishes.

These amendments as drafted could remove, prevent or suspend our ability to act in the interests of the people of Northern Ireland, and so ensuring they are treated as our countrymen and countrywomen with equal access to the UK internal market. Furthermore, they could leave core elements of unfettered access—not only the safety net provisions—in a state of consistent uncertainty and open to persistent litigation. It is far from clear how compliance with the Northern Ireland protocol, for the purposes of these amendments, would be assessed or who would make the assessment. For example, it is possible that all the provisions in the Bill could cease to have effect if the EU alleged a breach of the Northern Ireland protocol. Any dispute then would be resolved by the appropriate dispute resolution mechanism, which in some cases would include the jurisdiction of the CJEU. That cannot be the means by which we safeguard the links between Northern Ireland and its most important market, Great Britain, which is the subject of the Bill. That cannot be the means by which we safeguard the interests of Northern Ireland from the end of the transition period and beyond.

I am well aware that we will return to these important matters in great detail later in Committee. At this point, however, I urge noble Lords to withdraw or not move the amendments. Before I do, I refer my noble friend Lady McIntosh to the whole of Clause 1(3), which says, as she quoted:

“Those principles have no direct legal effect except as provided by this Part.”

If she looks at the Bill, she will see that in the rest of that part there are number of provisions for secondary legislation. I apologise for that divergence, but I felt I should answer that point. I return to the fundamental position: this Government are wholly committed to the Belfast agreement, they cannot accept these amendments and I urge the noble Lord to withdraw his amendment.

Photo of Lord Hain Lord Hain Labour

My Lords, I thank the Minister for his courtesy and all those who have spoken in support of these amendments. I note that a third of the speakers are from the Minister’s own Benches. I think that shows that there is cross-party, cross-Bench support for the principles that these amendments enunciate.

My noble friend Lady Ritchie of Downpatrick spoke with passion about how this Bill, without these protections, imperils the Good Friday agreement. I want to return to that point when I pick up some of the arguments used by the Minister in a moment.

The noble Baroness, Lady Altmann, made a telling point: why are the Government not accepting their own policy? If their policy is, as the Minister states—I accept that in good faith—that the Government support the Good Friday agreement and the Northern Ireland protocol in protecting the Good Friday agreement, why are they not accepting these amendments? If there is some technical issue, and I will return to one of the issues he raised, we could discuss wording and come to an agreement. I ask the Minister to look carefully at what the noble Baroness, Lady Altmann, said about the Government’s own policy being reflected in these amendments. At least, we think it is the Government’s own policy.

The noble Lord, Lord Carlile of Berriew, spoke with great authority because he has spent many years on this. As Secretary of State, I worked with him on this and his review of terrorist legislation, as did the noble Lord, Lord Cormack, who was a distinguished chair of the Northern Ireland Affairs Committee in the other place. He was hugely respected on the island of Ireland for his diligence and the conscientious empathy he showed towards the situation in Northern Ireland.

The noble Baroness, Lady McIntosh, again speaking from the Minister’s own Benches, was compelling on the fact that this should be a cross-party matter. It was, of course, John Major, as she said, who played a crucial role in the lead-up to the Good Friday agreement that enabled Tony Blair to pick up the baton and drive it forward.

Another contributor to this debate, the noble Baroness, Lady Suttie, to whom I am also grateful to for her support for these amendments, speaks with real authority, particularly about what is at stake here. This is not some technical issue; this is about the future of peace in Northern Ireland. My noble and learned friend Lord Falconer, spoke also about the importance of keeping that border absolutely open on the island of Ireland, to take the process of peacemaking forward.

I ask your Lordships’ House to note that the Minister did not explain how the Bill upholds the Good Friday agreement. He asserted it, but he did not explain how it upholds is, especially given that it repeals the Irish Northern Ireland protocol. On Report, I would urge him to explain in great detail—if necessary, in technical detail—how he thinks the Bill actually upholds the Good Friday Agreement. The majority of contributors to this debate—in fact, everybody except him—dispute that. That is the problem that the Government face in setting their face against these amendments.

Unless there is an ulterior motive here, and I am not suggesting that of the Minister personally but of No. 10 Downing Street, I do not understand. If there are concerns about the implementation of the Northern Ireland protocol, there is a committee, as I mentioned in my speech, co-chaired by Michael Gove with a representative of the EU, to iron out the detailed implementation points. It is a joint committee. That makes us all think that there is something much more serious at stake here, which is undermining the whole foundation of the protocol and, indeed, of the Good Friday agreement with which it sits in partnership.

To conclude, this is a series of very modest amendments. They ask the Government to uphold their own professed policy. That is all they are doing. They are not suggesting some revolutionary change in the Government’s policy. They are asking them to uphold their professed policy on the island of Ireland, in particular on continued progress in Northern Ireland. Meanwhile, I will seek leave to withdraw the amendment.

Amendment 3 withdrawn.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords) 5:00 pm, 26th October 2020

My Lords, we now come to the group consisting of Amendment 4. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anybody wishing to press this Amendment to a Division should make that clear in debate.