Amendment to the Amendment to the Motion

Northern Ireland Protocol Bill - Committee (1st Day) – in the House of Lords at 3:57 pm on 25th October 2022.

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Baroness Altmann:

Moved by Baroness Altmann

Leave out from “information” and insert “and to lay before Parliament (a) a comprehensive United Kingdom economic and sectoral impact assessment of the legislation, and (b) a report on their consultations with representatives of all the main Northern Ireland political parties and business sectors, before the House considers the Bill at Report Stage.”

Photo of Baroness Altmann Baroness Altmann Conservative

My Lords, I would like to add my support to the remarks of the noble Baroness, Lady Chapman, and to her amendment; my amendment simply adds extra requests for what I believe is vital information to be provided to Parliament before Report stage. I would also like to express my gratitude to colleagues across the House for their engagement with discussions on this Bill, and indeed I would like to thank my noble friend on the Front Bench, who has also been generous with his time in discussing these issues.

The problems with this Bill are far deeper, more fundamental, and indeed more important, than Brexit. This is about right and wrong, about protecting parliamentary democracy and about the values that our country believes in and holds dear—the importance of keeping our word, trustworthiness, honesty, integrity. This Bill drives a coach and horses through these things: it seeks to tear up an international agreement signed recently, supposedly in good faith.

Besides the issues of international law that other noble Lords are much better qualified than me to comment upon, there are also serious constitutional consequences of allowing Ministers untrammelled powers to bypass Parliament, changing laws at will. No parliamentary democracy should be asked to accept this. If noble Lords do not make a stand now, I believe we are failing in our duties. Slowly, slowly, the usual freedoms and democratic norms we have lived by are being chipped away; Parliament must not become inured to these power grabs. It is time to make a stand before it is too late, for continuing down this path is heading us toward an elected dictatorship, with a supine Parliament that can be bypassed at Ministers’ whim.

Even aside from the legal and constitutional dangers, we have not been given, as the noble Baroness, Lady Chapman, explained, the necessary information on which to base proper assessment of how passing this legislation would impact the UK economy, important sectors of Northern Ireland and British business. Nor are we told the results of consultations that have taken place with all the main political parties and business sectors in Northern Ireland. My amendment calls for these to be provided as well.

The history of Ireland is full of turbulence created by one group overriding the wishes of others rather than working together to seek peace and a harmonious relationship. The Good Friday agreement achieved peace because we were part of the EU, but a hard Brexit has upended this. The idea that Britain can unilaterally force its own interests on the island of Ireland and still retain peaceful, fruitful trading and other relations is a fantasy. The Bill demands that the UK be the final arbiter of what constitutes a risk to the EU’s single market, or that the ECJ cannot ultimately arbitrate matters of dispute. This cakeism is unsustainable.

This Bill also risks upsetting our trading relations with the EU, and indeed the US, at a time when we need them to boost growth. The new Prime Minister has a chance to reconsider this Bill and set it aside in the interests of growth, I hope that he will decide at the very least to put it on hold, so that proper negotiations can take place and trust can be restored. The EU has offered concessions, and I believe we have a chance to find resolutions.

To restore our international standing, we must end this unilateralist, bullying approach and start recognising reality: that Northern Ireland is attached to the EU; it is not physically attached to Britain; passage of this Bill will force a border on the island of Ireland, which runs directly counter to the Good Friday agreement. My amendment calls for the Government to present to Parliament their economic impact assessment on all main sectors in the UK, including in Northern Ireland, and to include how they will mitigate, for example, the damage to the dairy, agri-food, and potentially electricity sectors, and to tell us before Report stage what they believe are the views of all main political parties and business sectors in Northern Ireland. I beg to move.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs) 4:15 pm, 25th October 2022

My Lords, it may assist the House to know that we from these Benches can confirm our support for the amendment in the name of the noble Baroness, Lady Chapman, and the amendment we have just heard.

If we are to scrutinise legislation properly in this House—which is our constitutional duty—there is also a duty on us to highlight areas where we are prevented from doing so because the Government have not presented sufficient information. There is clear precedent for this. We did so on the Professional Qualifications Bill, when the mood of the House was reflected to the Minister in very clear terms that accompanying information was devoid of sufficient information and that we would not progress discussion of it unless further information was provided. To his credit, the then Minister, the noble Lord, Lord Grimstone, provided that. We stated in clear terms when the Government presented more than 350 government amendments to the Subsidy Control Bill shortly after they introduced it that they needed to bring further information. To his credit, the noble Lord, Lord True—now the Leader of the House—indicated that the Government would change their position and allow for more debate.

The Government have not sufficiently responded to the desires expressed both at Second Reading and by the committees of this House for further information. They have not responded properly to the Delegated Powers and Regulatory Reform Committee report, which was excoriating in its condemnation of the use of regulation-making powers. As we have heard, the Government have failed to bring forward an impact assessment to show their own estimate of what impact policy options taken to present the Bill will have. The House will recall that I quoted from the original impact assessment of the protocol legislation, so it is fair to ask for the successor legislation, which will have equally profound implications, also to have impact assessment information. The Bill itself is extremely controversial, and it will have an impact on the business community, society, trade and the wider economy. Therefore, an impact assessment is vital.

This is not just a debating point. The Cabinet Office in its 2022 Guide to Making Legislation is very clear on what the requirements are on departments when they bring forward legislation. Section 13, on impact assessments, says:

“The Government has international obligations in free trade agreements to conduct impact assessments on regulation that has an impact on trade.”

Clearly, this Bill has such an impact. It goes on:

“A development, options or consultation stage impact assessment must be submitted alongside any bids for legislation, and a final proposal stage impact assessment must accompany requests for collective agreement to the policy in a Bill.”

The guide says clearly:

“The final impact assessment must be made available alongside bills published in draft for pre-legislative scrutiny or introduced to Parliament.”

When the Advocate-General for Scotland replied to me at Second Reading, he said that the Bill did not have an impact assessment but that

“full details of the new regime will be set out in regulations”. —[Official Report, 11/10/22; col. 767.]

That is just not good enough. We need to scrutinise these now.

On delegated powers, I remind the House that the Constitution Committee report concluded in paragraph 29:

“In examining clause 9, the Delegated Powers and Regulatory Reform Committee concluded: ‘[l]egislation has preceded policy development rather than vice versa’. We agree and recommend that clause 9 be removed from the Bill.”

We will discuss this later, but the essential point is that legislation should follow policy development, not vice versa. The Advocate-General said in response to the Second Reading debate:

“Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime … There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.”—[Official Report, 11/10/22; cols. 767-8.]

But on what? We do not have proposals in front of us. The Government’s own code of conduct for consultations states that they should be based on public questions. I have not seen a consultation document. I have not been able to find any draft regulations on which the Government have consulted. I have not been able to see any details of how the new regime might operate in practice, and we have not been presented with an assessment of what the responses are in order to shape views of costs. There is no footnote to the Cabinet Office document from this year that says, “None of this applies when a Minister so decides for political purposes”.

The Minister seemed confident that draft regulations will solve the problem, although he and the noble Lord, Lord Ahmad, did not spell out in detail what they will be; we will hear that later in Committee. I remind the House that we have been furnished with draft orders before, when we asserted our desire to receive them. However, at Second Reading, the Advocate-General contradicted himself. In defence of the Government’s legal position, he said that

“the peril that has emerged was not inherent in the protocol’s provision”, but, later, he said that

“the problem lies in the protocol and not in its application”.—[Official Report, 11/10/22; cols. 764-68.]

I suspect that a witness contradicting himself in court might have been pounced on by a certain advocate, but we in this House need to see the draft regulations if they are the fix for the root causes, as the Minister said.

Finally, we need formal reporting. We need detail on where the negotiations stand and what the current areas of consideration are. In Committee in the Commons, the then Paymaster-General said:

“I am not sure how much more could be done in terms of negotiation … Good faith negotiations to resolve the issues with the protocol have already been exhausted.”—[Official Report, Commons, 13/7/22; cols. 383-84.]

I think the whole House was encouraged by the comments from the noble Lord, Lord Ahmad, at the start of Second Reading, when he said that the talks have resumed and are of a positive nature. However, we need full updates with technical papers so that we can properly scrutinise this legislation and so carry out our constitutional duty.

Photo of Lord Judge Lord Judge Convenor of the Crossbench Peers

My Lords, I apologise to the House for being unable to speak at Second Reading. I put my name down but realised that I could not be present at the end of the debate. If noble Lords will accept my apology, I assure them that I will not now make a Second Reading speech; I will simply summarise what I believe to be the case: that, as proposed legislation, this is a lamentable Bill.

If we want a careful, detailed analysis of the issues in and chronology of this case—I recommend that we do, if I may say so—the report from the House’s Library is absolutely magnificent. I personally thank those who prepared it; I recommend it to your Lordships. Everybody wants to have a say, so I am not going to add to the long list of things that are required, but can I suggest three more?

First, the Constitution Committee has just reported. The power of its report is not merely in that it repeats the concerns expressed by the delegated legislation committee on the Henry VIII aspects of the Bill; it directly addresses the Government’s contention that there is no problem with the lawfulness of the Bill. The Government have so far treated the report from the delegated legislation committee with scant respect. We have not had an answer to it. We should not proceed with this Bill until such time as there is an answer to the delegated legislation committee’s report and to the Constitution Committee’s report. These are our committees. They are cross-party, and the reports speak for the committees as a whole.

My second concern is that there is litigation afoot. A judicial review of the protocol has been taken and is due to be heard in the Supreme Court on 30 November. My question is this: has any attempt been made to expedite the hearings so that they can come on more quickly and we can have the Supreme Court’s answers to the issues raised instead of saying, “Well, we’re going to have to wait for that decision so we must act quickly because we’re having to wait too long”?

Thirdly, a number of infringement processes have been taken against us by the EU. It would helpful if we could see our responses to those. We need to know where we stand in the formal proceedings taken by the EU that we are in contravention of our treaty obligations. They are not a matter of privacy. I understand that negotiations must be conducted privately and there is confidentiality attached to them, but surely not for our Government’s response to the EU’s requests for infringement processes to be looked at.

In the end, I am very glad that this issue will not be taken to a Division today. That is sensible, particularly because all sides of the House need to understand what the problems are with the Bill and why it is, in the word which I used at the time of Second Reading, which I did not take part in, a lamentable Bill.

Photo of Lord Howard of Lympne Lord Howard of Lympne Conservative

My Lords, the effect of these amendments, whether one agrees with their precise wording, is to give the new Administration time to pause, to reflect, and to consider the best way of dealing with the issues that arise from the protocol. The new Administration need that time. There is no doubt that the way that the protocol is being implemented causes considerable practical difficulties for Northern Ireland, particularly for trade between Northern Ireland and the rest of the United Kingdom. These difficulties, which would be exacerbated if the protocol were to be implemented in full, are real. A solution to them must be found.

There is agreement across the House that the best solution could be an agreement between the United Kingdom and the European Union. We are told that discussions are taking place. I hope that the new Administration will give fresh impetus to those discussions, and that it will not take what might be described as a theological approach to those negotiations. It appears to be the position of His Majesty’s Government that changes to the text of the protocol are essential. However, it may be that a solution to the practical problems which exist can be provided by other means. The European Union has a long history of creative interpretation of the texts of agreements, which has often stood it in good stead in arriving at practical solutions in one field or another—and it should be encouraged to do so here.

We all hope that those negotiations succeed, but we must face up to the possibility that they may not succeed. If that turns out to be the case, I hope that the Government will look again at the possibility of dealing with the practical difficulties by invoking Article 16 of the protocol rather than through this Bill.

I think that my noble friends on the Front Bench will recognise on reflection that the explanations that they gave at Second Reading for not proceeding by Article 16 were—how can I put it?—rather less than convincing. Presumably it was precisely to deal with difficulties of this kind that Article 16 was inserted into the protocol. It is a perfectly legal route if the preconditions in the article can be satisfied. If they cannot be, there is certainly no justification for this Bill.

I do not need, or propose, to repeat the arguments against the application of the doctrine of necessity in these circumstances, which I and others advanced at Second Reading. I urge the Government to think again. I hope these amendments will prove to be unnecessary.

Photo of Lord Hain Lord Hain Labour

My Lords, I hope that I will not embarrass the noble Lord, Lord Howard, by saying that I agree with virtually everything that he said.

First, however, I pay a brief tribute to May Blood, a stalwart warrior for peace who crunched fearlessly through all the political posturing, was dynamic, warm, passionate, blunt at times, and incredibly courageous on the front line of peace. I also apologise that, when the date was switched, I was unable to be present for Second Reading as I had intended. I speak in support of the amendment tabled by my noble friend Lady Chapman of Darlington, which I trust that she will re-table before Report and call a vote on if necessary.

I also commend the noble Baroness, Lady Altmann, for her amendment and pay tribute to her. She has been absolutely consistent in speaking up fearlessly and speaking the truth about the impact on Northern Ireland. I do so as a former Secretary of State for Northern Ireland who between 2005 and 2007 under Tony Blair negotiated a settlement that brought those bitter old-blood enemies Ian Paisley Sr and Martin McGuinness to share power together. This led to relatively stable self-government for 10 years before Stormont self-suspended and has been more or less so ever since.

I am desperately worried that the Government’s decisions over Northern Ireland following Brexit are reversing the progress made since the 1998 Good Friday agreement and this Bill is continuing that sad and disturbing pattern. Have all the main Northern Irish political parties and businesses been properly consulted and their views taken into account by the Government over this Bill? No. The policy is being driven by one party, and one party alone: the DUP. I do not attack it for that. It is entitled to press its view; I have many friends in the DUP and they speak up fearlessly for their cause and are entitled to do so. This is not an attack on them; it is a criticism of the Government because they are not right to give the DUP an effective veto among all the parties. Without majority support in Northern Ireland, this Bill risks being yet another thing this UK Government do to Northern Ireland, rather than with Northern Ireland.

As of June this year, 55% of Northern Irish people in an opinion poll supported the protocol as a means of managing the impact of Brexit. The same poll found that 57% of respondents did not think the UK Government would be justified in taking unilateral action on the protocol, as this Bill does. The last elections for the Northern Irish Assembly—and it looks like we will have a fresh set of elections sooner rather than later—also saw a majority of voters opt for parties which support the protocol: 53.5% of all first preference votes went to Sinn Féin, the Social Democratic and Labour Party, the Alliance and the Green Party.

But, of course, everybody—and this is the important point—in all those parties agrees that the protocol needs to be altered, or rather that its implementation needs to be altered, to borrow the word from the noble Lord, Lord Howard, “creatively”. I think there is common agreement on that, and that is where the Government should be focusing. As the noble Baroness, Lady Suttie, pointed out at Second Reading, the Bill

“risks alienating the majority in the Northern Ireland Assembly who want to see a negotiated settlement.”—[Official Report, 11/10/22; col. 693.]

This is the thrust of the amendment from my noble fried Lady Chapman and, indeed, the amendment to that from the noble Baroness, Lady Altmann.

Pushing ahead with the legislation could exacerbate social tensions in Northern Ireland and fuel further, damaging instability in that part of the UK. With negotiations under way with the EU and increased opportunities for a negotiated outcome, because I believe all the mood music suggests that that is the case, surely your Lordships’ House would be right to delay the passage of a Bill which breaks international law, at least before Report stage.

The UK Government have themselves said that if a negotiated solution is reached, the Northern Ireland Protocol Bill will no longer be necessary, and I commend Ministers for that assurance. Given that the negotiations are under way, surely delaying the passage of the Bill while communities in Northern Ireland are properly consulted and an economic impact assessment is carried out is the most responsible course of action, rather than bulldozing ahead with the Bill.

The UK Government’s legal justification for the Northern Ireland Protocol Bill under the doctrine of necessity has been widely rejected and the view of Treasury counsel on this specific matter has not been published. The view given so far was based on counsel being asked to assume that the Bill is legal, rather than advising on whether that is indeed the case. The Northern Ireland Protocol Bill is already damaging the UK’s reputation, our diplomatic relationships and our economy at a time when unity in the face of Russia’s illegal invasion of Ukraine is required. Delaying the passage of the Bill while the UK and EU negotiate allows more time to avoid causing further damage.

Again at the risk of embarrassing him, I quote the noble Lord, Lord Howard, who pointed out at Second Reading that government Ministers have condemned President Putin for his breaches of international law. He said:

“The thing about the law, whether it is domestic or international, is that you cannot pick and choose. You cannot pray it in aid in one context and have no regard for it in another”.—[Official Report, 11/10/22; col. 697.]

That is an irrefutable argument from a noble Lord who is both a senior Conservative and a passionate Brexiteer—unlike me in either respect.

President Biden has refused to negotiate a US-UK trade deal while this protocol Bill is being pursued. Delaying its passage will enable time for the Government to consider concessions over the oppressively ubiquitous powers to Ministers that are more reflective, in my view, of an elective dictatorship than a proper parliamentary democracy.

The Bill contains 19 Henry VIII clauses, which would grant the UK Government unprecedented powers to breach international law and bypass Parliament. I mention in passing that the EU has signalled that, if this Bill is enacted, it will suspend the trade and co-operation agreement, leading to huge uncertainty for UK and Northern Ireland businesses at a time when the financial markets have lost confidence in the UK’s economic management. Only a few days ago, a former Governor of the Bank of England, the noble Lord, Lord King of Lothbury, gave a dire forecast of our economic prospects.

Before it passes, surely your Lordships’ House is entitled to have a full economic impact assessment of the Bill, both on the UK economy, and whether it could worsen the UK’s economic outlook at the height of the cost of living crisis, and on Northern Ireland’s economy. The Government have not done that. But the most important reason to support this amendment is to give time and space for proper negotiations.

It is important to put on record that Brexit, in the form of the protocol, has created a crisis of identity for unionists and loyalists. That has to be acknowledged. Likewise, prior to the Good Friday agreement, there was a crisis of identity for nationalists and republicans. If something like the protocol had not been agreed, that crisis for nationalists and republicans would have been reignited, because the external frontier of the European Union had to be somewhere. The Government chose the Irish Sea, rather than the Irish border across the island, triggering deep resentment and insecurity among both loyalists and the majority of unionists. I quite understand that, but it need not be the case.

Is anyone seriously arguing that finding acceptable solutions to the problems triggered by the protocol is harder than finding the solutions that were found through the 1998 Good Friday agreement and the 2006 St Andrews agreement? Most thought neither of those agreements would ever happen, yet they did. This is easy compared to those two agreements, to be frank. The problem is eminently soluble by serious negotiation, give and take, and understanding of the different interests at stake. The EU should understand the interests of unionists, who feel threatened, and the British Government should understand and take into account the views of the majority of parties.

There are important issues to address. The democratic deficit, in which laws are passed in Brussels that affect Northern Ireland, can be addressed in representation through the joint committee and directly in Brussels on behalf of Northern Ireland government Ministers and the Northern Ireland Assembly. That would be easy to achieve if the UK Government were willing to propose and support it, and press the EU to grant it. I suspect it would agree to this.

If it is not elevated into some fundamentalist article of faith and dogma, a solution is possible around the European Court of Justice. The Liberal Democrat Peer, the noble Lord, Lord Thomas of Gresford, has suggested a solution and many fellow Members of the Protocol on Ireland/Northern Ireland Sub-Committee, on which I sit—this House’s own committee—have heard his arguments. There are creative solutions such as that, without the ECJ being entirely removed from the situation. If it is, and this becomes an article of dogmatic faith for the Government, Northern Ireland would be ripped out of the single market and the customs union, because the ECJ polices the single market. That is one of its functions. It is hardly ever active on it, by the way; it is a backstop. Solutions could easily be found to this.

There have been proposals from the UK Government for red and green lanes, and the EU has indicated that it can do business on that. A creative solution is possible on the medicines issue, which has proven difficult, and for phytosanitary issues. There is already a border of sorts, and has been for a very long time, for plants and livestock moving from Great Britain to Northern Ireland.

This would not be some big dogmatic issue if creative solutions were sought and negotiations prioritised. There is a question of alignment: how do you align the fact that Northern Ireland is in the UK, the single market and the customs union? These things can be resolved if no dogmatism is applied.

I end by saying that negotiations require trust to be built and time; they require ministerial grip to find political solutions, as has been done time and again in Northern Ireland and other arenas. I have negotiated on behalf of the British Government in a number of different areas—the United Nations, the EU and Northern Ireland. We need less dogma and more flexibility. This Bill is getting in the way of that.

Photo of Viscount Hailsham Viscount Hailsham Conservative 4:30 pm, 25th October 2022

My Lords, I express my support for the observations of the noble Baroness, Lady Chapman, and the amendment advanced by my noble friend Lady Altmann. I would very happily have supported either, were this matter to be put to the vote.

I am against the Bill. I expressed my reasons at Second Reading and will not repeat them today because I appreciate that we are concerned here with a very narrow issue: whether this matter should go into Committee. In expressing my opposition to it going into Committee, I want to focus on one issue only, namely our relations with the European Union.

We have a new Prime Minister. I wish him well. Mr Sunak supported Brexit, a policy that I deeply regret. However, I am sure that he will be the first to recognise the need to improve our relations with the European Union. We must do so: they are our nearest, biggest and most important trading partner, very important allies and neighbours. We need to give this Government, led by Mr Sunak, the opportunity to reset their policy towards the European Union. I believe that the Bill, if enacted, will aggravate our relations with the European Union. It is possible that it will trigger a trade war. Both of these things would be highly undesirable. What this Government need is time: time to negotiate sensibly with the European Union. If we agree to defer the Bill and not let it go into Committee at this stage, we will be giving the Government and the European Union time to come to a sensible agreement. I commend that to this House.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, I too will be brief. I have heard nothing in the preceding speeches with which I disagree, but I have one point that I would like to add.

I agree with the amendment put down by the noble Baroness, Lady Chapman, and with the amendment suggested by the noble Baroness, Lady Altmann. However, even in the unlikely event that the Government were to provide all six dossiers that have been requested, and in the even more unlikely event that these proved reassuring, I would still want to vote against this Bill. It is a matter of principle and honour.

You cannot make a silk purse out of a sow’s ear, and this is a pig of a Bill. The powers it confers on government using these powers is simply not compatible with how this country views its commitments. We do not tear up treaties. That is the point of principle; that is the matter of honour. A deal is a deal is a deal: pacta sunt servanda. The noble and learned Lord the Advocate-General told us at Second Reading, in a rather labyrinthine reply:

“The assertion that the Government’s position breaches international law is too bald and lacking in nuance.”

When questioned by the noble Lord, Lord Howard, he said that

“it would be wrong … to engage in a deeper debate.”—[Official Report, 11/10/22; cols. 765-66.]

He did not say why it would be wrong or when the moment would be, but I imagine he was waiting for the Constitution Committee’s report. Now that we have it, we see that the Constitution Committee is clear that even enacting this Bill would

“clearly breach the UK’s international obligations”.

There is not a lot of nuance there.

I am no lawyer and I do not want to get into enactment, but as a practitioner I can say that what seems plain as a pikestaff to a non-lawyer like me is that to exercise the powers the Bill confers would drive a coach and horses through a treaty—and that is not what we do. It would not just be self-defeating; it would be dishonourable. We, Parliament, must not empower our Government to act dishonourably, to condone, to purport or to legitimise. That would itself be dishonourable, so I do not see how this Bill can go through. It is a stain on my old department.

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.

Photo of Lord Cormack Lord Cormack Conservative 4:45 pm, 25th October 2022

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.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

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.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated

My Lords, I rise to support both these amendments and to pay tribute to our colleague Baroness May Blood, who sadly passed away last week. May was a fearless campaigner in Belfast for the rights of the underdog, for integrated education—believing that children should be educated together rather than apart—and, above all, for the rights of women in work and in factories.

I support the contents of these amendments. So far, we have not received from the Government any reports or any assessment from their perspective about the report from the Delegated Powers and Regulatory Reform Committee. Also, we now have the report from the Constitution Committee, as was referred to by the noble Baroness, Lady O’Loan.

No assessments have been carried out in respect of the economy, business and commercial developments in Northern Ireland. Only last week, as a member of your Lordships’ committee on the protocol, I returned to Northern Ireland along with the noble Baronesses, Lady O’Loan and Lady Goudie, and our chair the noble Lord, Lord Jay. We paid a visit and took evidence—in Newry, which is along the Belfast-Dublin corridor, as well as in the Northern Ireland Assembly—from the leaders of all the political parties, and from the business, commercial and manufacturing sector. The general view of those people—apart from those in the haulage sector—was “Please remove this Bill”. This comes back to the basic point that there have to be successful negotiations, a successful negotiated outcome between the EU and the UK. That is vital. Those negotiations cannot come to a positive conclusion as long as the Bill, which is like a gun on the table, exists. I urge the Government: please remove this Bill, as it is not helpful.

Like the noble Lord, Lord Cormack, I urge the Government and the new Prime Minister to come to Northern Ireland—above all, to come with Taoiseach Micheál Martin and show the joint approach that was portrayed in the Good Friday agreement. That bipartisan approach is urgently required because, unless there are negotiations to restore the political institutions, we are in a political backwater. I urge the Government please to do that.

I believe that resolutions have to be found by negotiation and not through unilateral actions such as this Bill. The protection of the GFA in all its parts is a real and reliable standard for us. We have only to look at the North/South Ministerial Council, that was also stood down by the DUP’s non-participation. It had certain solutions to deal with the protocol, because the solutions are of a technical nature that can be resolved through the protocol.

The people in Newry and Belfast told us they wanted a joint UK-EU negotiated solution. They want economic and political certainty. The uncertainty that currently exists does not lend itself to political progress, political development or good economic development. Many people we spoke to found benefits in the protocol in increased trade. They do not want a trade war, and they do not want any further political, economic or business difficulty. They want the new Prime Minister to act now and act jointly with the Taoiseach.

I support both amendments because they encapsulate the current issues for those of us who live in Northern Ireland, who want a successful implementation of the protocol with mitigations.

Photo of Lord Clarke of Nottingham Lord Clarke of Nottingham Conservative 5:00 pm, 25th October 2022

My Lords, I spoke at Second Reading and made clear my opposition to Bill. I will not repeat any of that. I will try to avoid repeating the many views that have already been given, all of which I agree with. They have been put very eloquently and clearly. This is a quite despicable piece of legislation that shows total contempt for the rule of law. It is plainly in breach of our international obligations. It shows total contempt for parliamentary democracy by giving powers to the Government to legislate without having to bother with parliamentary scrutiny in the correct way in future. To say that I am opposed to the Bill is an understatement. I still sit here utterly astonished that, after all my decades in politics, a British Government —worst of all, a Conservative Government—could dare to bring forward a piece of legislation of this kind, in a country that is supposed to be the mother of Parliaments and has always, in the past, been respected for our form of parliamentary democracy and what we contribute to the rule of law, democracy, liberty and liberal values in the world. I am already beginning to warm to my views on the whole thing.

I want to comment on the value of delaying proceeding with all this. We are proposing to move to negotiations with the European Union. It is our closest friend and ally in the world. Certainly, since the Americans have a certain propensity to elect a President such as President Trump in the not-too-distant future, we are particularly dependent on the closest possible relationships with our neighbours and friends, whose international interests almost entirely coincide with ours. What is the Government’s answer, not on the merits of the Bill—no doubt the Minister will do his best to make an argument and keep a straight face, which I think he managed in our last debate—but about the delay? If they are genuinely opening negotiations with the European Union in good faith, and if the policy of the new Government is a genuine desire to reach a settlement of the practical problems—the stated policy of the old Government—it could, if addressed properly, improve the practical application of the Bill.

What they are doing is poisoning the whole relationship behind the negotiations before they have even started. To a lay audience, one would only have to ask: what would our reaction be if the Europeans came to the table and put a similar blunderbuss in front of us, saying, “We are already preparing, unless you agree to any terms we put forward, to now impose tariffs on all the products that you export to your most important markets in our territory—and we are going to do so, tearing up the agreements to the contrary and normal practice, in front of your eyes”?

You cannot negotiate on that basis. It is not just illegal; it is just bad negotiating tactics. We are positively inviting them to plunge us into a trade war, which is about the worst possible disaster I can imagine this country being plunged in given its economic circumstances at the moment, as we are already in a recession. We are going to have a severe recession and combine it with very high levels of inflation, unless the new Government produce some spectacular remedies for where we have already got to.

I have no doubt that something ingenious will have been prepared for the arguments on the merits, the law and parliamentary process and that undertakings will be given. What is the argument that makes it so absolutely urgent for the Government to insist that they must be seen to be proceeding to legislate in this way, before they have even sat down to start talks with our European neighbours? If anybody can think of an argument against that, I shall be absolutely astonished.

Finally, I have enjoyed this debate. I enjoy coming to the House of Lords and wish I was able to come more frequently. It is a splendid institution and I enjoy the debates. I always have a little difficulty as I still have not managed, after two years here, to take it terribly seriously and my friends criticise me for that. If I have a decent dinner in the evening, I am afraid it sometimes takes me away from debates which I am otherwise engaged in. The reason is because increasingly, over the years, the House has been totally disregarded by Governments of all kinds. It is rarely heeded by the public because it has such limitations on its powers. I entirely understand the overriding principle that the elected House must, in the end, prevail when it has a conflict with an appointed House. We do not have the legitimacy that we would need to block the express views of a majority of the House of Commons, but we concede to that convention in an extremely cautious way.

I came here convinced that, at the very least, I would go away feeling a little more satisfied because I had been able to cast a vote to give the chance of improving the climate of the negotiations by delaying progress on the Bill for a time, to see whether the negotiations could make some progress. Like my noble friends Lord Cormack and Lord Hailsham, I would have supported any vote put forward to that effect. So here we are; we are retreating. I must learn to understand and acquire more experience, realising that a Labour Government want to reserve the right to do similar things if they see the precedent being set for future and successive Governments. But I regret it, because the principles behind this debate are of huge and profound importance.

The quality of our democracy is deteriorating. The power of our Parliament is being eroded and we do not know where this process is going to be stopped. I still hope that we might find some pause in that development if the new Prime Minister thinks again and agrees to at least hold up any further parliamentary progress until he sees whether sensible negotiations with the Europeans are worth while. It is as much in the interests of the Europeans as ours to have successful negotiations and we might be able to return to a civilised way forward.

Photo of Lord Patten of Barnes Lord Patten of Barnes Conservative

I will not begin by following my noble friend with an autobiographical diversion, but I want to start with what he said at the beginning of his remarks. It is not outwith our experience in this Chamber or elsewhere to begin a speech by saying that everything one wanted to say has already been said, then to say it all over again rather less well than some others said it.

I wish to be very brief. I will not follow the arguments about the lack of wisdom of turning Henry VIII into our legislative guru in this House. I will not follow what has been said about the way in which the doctrine of necessity was tortured in a way the American constitution would surely regard as “cruel and unusual” treatment into providing whatever Ministers wanted it to say.

I want to borrow from a corruption of what Lord Alfred Douglas said and raise another issue which has not for some time dared to speak its name, and that is Brexit. We sometimes get the legislation and arguments about it the wrong way round. It was Brexit which was a threat to the Good Friday agreement and the relations between Northern Ireland and the Republic. The Northern Ireland protocol was meant to deal with that in an acceptable way.

The last Prime Minister—let me get this right—but two had her own proposals for dealing with the problem, which was to have the whole of the United Kingdom more or less inside the customs union and single market. That was opposed by the last Prime Minister but one and the European Research Group. They saw off Theresa May and produced the Northern Ireland protocol as their own answer to the problem. At the time, the then Prime Minister gave lots of assurances to the DUP and others that the Northern Ireland protocol would not have any effect on trade between Great Britain and Northern Ireland. I assume it was his usual habit of saying things he hoped would be true but turned out not to be, or maybe he just had not read what he had signed up to.

We are left with this debate about the Northern Ireland protocol. I think we are debating it with a Prime Minister who wants to unite the Conservative Party and the country, rescue the economy from Singapore-on-Thames-ism and do what he can to bring us all together in that very difficult fight. In doing so, I am sure he will be aware of the impact on the economy of having another row with the European Union, which remains—even though we are outside it—our largest trade market. It cannot make sense, as my noble friend said earlier, to do that. I very much agree with what both my noble friends Lord Hailsham and Lord Howard said on this. It makes sense to give Mr Sunak and the new Government a chance of looking at these issues again.

Do we need what people have called a “shotgun under the arm” or a “pistol on the table” to encourage our friends in the European Union to do whatever we want them to do? I remember Enoch Powell suggesting that Iain Macleod should have a pistol on the table when he went into discussions with Mr Macmillan and Alec Douglas-Home, the then leadership of the Conservative Party. Confronted with the question that the pistol might go off, Enoch Powell said, “Yes, that’s what pistols do; they have a trigger. When firing with a shotgun or a pistol, you are not firing doves; you are firing pellets, which kill doves”. So if we are serious in our negotiations about really wanting a deal with the European Union, what is the point of still using this blunderbuss, shotgun or pistol and thinking that it is necessary to have it on the table? It surely adds to the confusion among those with whom we are negotiating and gives them perfectly valid reason to doubt whether we are really sincere in the whole enterprise. Some say that we have to do it because we cannot challenge the European Research Group’s veto over policy, or because we have said things to the DUP leaders that we cannot go back on—but what about the things we have said to the majority of the community in Northern Ireland?

It would be a great help all round if the Prime Minister would simply encourage people to go slow on all this and listen to what has been said in this debate by my noble friend Lady Altmann and others, which would be the right and sensible way forward. It cannot make sense to proceed in this way with a rotten Bill, which may be regarded, at best, as a way of getting other people to the negotiating table. It is no way for a grown-up Government to behave. We now have a Government again with adult supervision, so I hope that we can see the Government behaving sensibly on this in relation to our European friends. I am grateful to both my noble friends Lady Williams and Lady Altmann for giving us the chance to talk about this this afternoon.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 5:15 pm, 25th October 2022

My Lords, the noble Baroness, Lady Altmann, has done such fantastic work on pensions and much more that I admire. However, inevitably, in this instance, I completely disagree with her and with the whole tenor of her remarks and the remarks made by many since then. When the noble Baroness, Lady Ritchie, was speaking, I thought that that was the kind of detail I would like to go through when scrutinising the Bill, and the kind of discussion I assumed we would be having here. In fact, the points of view have become much broader.

I will comment on a few things and will not drag this out for too long. The noble Baroness, Lady Altmann, said that the issues in this Bill go far deeper, and are more important and fundamental, than Brexit. I think that this is because so many in this House still do not really understand what Brexit was all about or the important and fundamental principles at its heart. They do not understand, even now, as we have heard, why millions of people voted for it. When the emphasis is constantly on trustworthiness and integrity, and restoring the trust of the UK Government internationally, maybe people ought to consider that that is always the external focus of this discussion—but there is an internal focus. Surely at this moment, of all times, when political parties on all sides have a very fragile relationship with the voting public—who, let us be honest, are pretty disillusioned—we need to consider how we can restore trustworthiness and integrity with UK voters here at home.

The key to this protocol Bill is that many people in the UK, when they voted in 2019 for that manifesto, wanted to see through the decision of 2016 to leave the European Union. The issue of Northern Ireland was one of the ways through which people were saying, “You can’t have Brexit, because look at the Northern Irish issue”. So people wanted to find a solution to it. I regret that they were overreassured by the Government when they were told, “Don’t worry, we’ve dealt with the protocol issue”—I always had concerns about the protocol issue. However, the intention was not to allow the issue of Northern Ireland to undermine the decision of 2016, because—lest we forget—that 2016 decision was nearly undermined. Some here say, “Our word is our oath” and so on, but they did not think that then; everybody else voted for something, but some here said that it did not make any difference and then ignored it.

It seems that, even now, so much of the discussion we have had is disingenuous. I ask opponents of the Government and the Government this: when people say that surely we should spend a bit more time and pause, how long do they want? Is it any wonder that nothing gets done in this country, if people think that this is a speedy process? Since 2019 we have had this protocol Bill and it is going wrong. Something needs to be done. The idea that we can pause or stop it and reconsider is not because anybody thinks we should not rush it through. Really, the message is: can the Government pause it, slow down, change their mind and agree with me? That is not the same as saying that we should pause and rethink; it is saying, “Pause and do what I tell you to do”.

The noble Baroness, Lady Altmann, suggested that the Bill creates a bullying approach to negotiations with the EU. I disagree. For me, what the debate so far has illustrated is the bullying approach within this House on this discussion. The noble Baroness, Lady Chapman of Darlington, says that the Bill is not going to get through this House unless it is changed beyond all recognition. Really? Do we not have votes? What does the noble Baroness mean when she says it is not getting through?

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Justice), Shadow Spokesperson (Education)

Just to correct what the noble Baroness said about my contribution, I did not say that the Bill will not get through; I said that it will not get an easy ride, and I think the discussion today has rather borne that out.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

I wrote it down and I will check. It was said that if there were not substantial alterations to the Bill, this House will block it. I suggest that it might be a bit of an affront to democracy for people in this House to say that we should block the Bill. That is not our decision. When people here talk about how the Bill is an affront to democratic decision-making, I point out that threatening to block a Bill is an affront to democratic decision-making. When people say that they are worried that the Bill bypasses Parliament, and that they want to protect democratic norms and do not want the Government to become an elected dictatorship, they should note that blocking the Bill would imply bypassing Parliament, undermining democratic norms and turning this House into an unelected dictatorship.

Finally, why do I think the Bill is needed? This bit, I can go into. The problems of the operation of the protocol are well documented. Many people have greater experience of it than I do, but when we scrutinise the Bill and go through it, that is what we should talk about, and whether the Bill is fit for purpose to resolve some of those things. I agree with that. But the reason a Bill is needed is surely because the rule of law—and everybody here seems enthusiastic about the rule of law—will be applied differently to the people of Northern Ireland unless we do something about the way the protocol is being enacted. To be able to ensure that all citizens of the United Kingdom are treated equally under the law, we need to do something—it cannot be that all citizens are treated equally under the rule of law in the UK apart from a certain section of the UK who will be subject to decisions made by legislators that they have no control over.

As a civil libertarian, regardless of what you think of Brexit, if you believe in the rule of law, you cannot let things stand as they are. We need to urgently do something. While some have indicated that the real problem is Brexit, that ship has sailed. The British people spoke. Brexit is a reality and we have to live with that. We have to ensure that the people of Northern Ireland are not punished.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

Has the noble Baroness seen the latest opinion poll, which shows that, when you exclude “Don’t knows”, 60% of British people want to rejoin the EU?

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

I am always delighted when people think that opinion polls and what is said on Twitter are democracy in real life. I do not know why we bother with the ballot box—we should just go to an opinion poll. I believe in democracy and the democratic right of the British and UK people to make their decisions without rushing off to Opinium Research, or whoever it may be.

Photo of Lord Campbell of Pittenweem Lord Campbell of Pittenweem Liberal Democrat

My Lords, I am sure the House would not expect me to, or hope that I would, follow that contribution. I apologise for not being able to speak at Second Reading. I was travelling, as it happens, back from the United States and could not get here before the proper time and date to indicate a wish to speak in the debate. However, that travel to the United States prompts me to say this: we ignore at our peril the importance attached on both sides of the aisle, and in both Houses of Congress, to the Belfast agreement. To put it neutrally, this Bill puts a stress and strain on that settlement. For that reason, and for all the others eloquently put forward today, this Bill should at the very least be delayed.

I remind the House that, some time ago, we were presented with a Bill nominally in relation to internal markets. It contained a Part 5, the purpose of which was to create a law whereby the Government would be excused when it broke the law. The Government have form on this matter, and there is a sense in which the Bill we are discussing is simply part of the same kind of thinking. What has been said today has been said with great eloquence; what was said in this House on the internal markets Bill was said with great eloquence and eventually the Government had to abandon it.

Photo of Lord Bew Lord Bew Crossbench

My Lords, I rise to speak with some trepidation as, apart from the noble Baroness, Lady Fox, this has been a convention of like-minded people, as the noble Lord, Lord Cormack, put it.

I have just come hot-foot from a Committee A (Sovereign Matters) meeting at the British-Irish Parliamentary Assembly in Cavan. We were addressed by the Taoiseach at some length and by other Irish Ministers. There was much discussion of these matters during the day. However, no Irish Minister said, “Whatever you do, when you get back to London, make sure that this protocol Bill is stopped”. It is simply not a contentious matter in these negotiations. That is a simple fact. A very large percentage of what has been said today about the need for good faith and how dropping this blunderbuss will strengthen our position is, with the kindest of respect, totally irrelevant.

The EU has decided, for its own perfectly good reasons—it is keen to reach this deal; I utterly believe in its good faith—that this Bill will not stop substantive negotiation. What it would do, if the majority opinion in this House were to prevail, is stop the Government’s attempt to bring the DUP back into the Assembly. That will be its only real effect. Neither the Taoiseach nor the other Irish Ministers said a word about it yesterday at Committee A (Sovereign Matters), because this Bill is not central to them. What is central to them is the ongoing negotiation, which is proceeding with good faith on both sides and from which I sincerely hope for a result. It is very important to say that.

A great part of what has been said is, I am sure, very well meant but, to put it bluntly, totally irrelevant. It is not the realpolitik of the moment. That is very important to understand. Dropping this Bill will not transform those negotiations into a better or worse state. They are going on now; they are facing some very difficult problems—I think there may be some progress—and we can certainly hope, as I am sure everybody in the House does, for an outcome on this. But it is simply pointless, bootless and, worst of all, deeply irrelevant to keep arguing and going on about the need to drop the Bill because it would lead to greater faith in negotiation. The negotiations are already in play, in good faith—end of story. However, it would have an effect on our ability to get the DUP back into government.

Now, I said at Second Reading that I consider the DUP to be moving, bluntly, too slowly on this matter, and it does leave the Government’s strategy in an exposed position—we must be clear about this.

However, the Government must follow international law, and international law in Article 1(5) of the Good Friday agreement is quite clear: where they are faced with the potential for long-term alienation of a particular community, the UK Government have to act. That is their responsibility under the international agreement in the United Nations not to allow the long-term alienation of one community. That is why the noble Lord, Lord Caine, in recent weeks, on a matter of concern to the nationalist community, has pushed through the Irish language legislation in this House, which is principally to address potential alienation in that community.

That is where we are with international law, I am afraid, and that is the prior international agreement, so the Government have to attempt, in a serious way, to end the alienation with the unionist community, which every poll—if we are talking about opinion polls—and every election result shows is total on this point. The Government have an absolute responsibility to act; they are acting under an international obligation.

Again, I am always amazed how little discussion there is in this House about the reality, because we cannot talk about the protocol Bill on its own without acknowledging the fact that the protocol itself—both in Theresa May’s version and in Boris Johnson’s version—commits in many places to the primacy of the Good Friday agreement being observed. The primacy of the Good Friday agreement is not a new doctrine produced by the last Government and supported still by this Government, as I understand it; it is actually there in the protocol.

Therefore, when you say, “This is illegal” and “That is illegal”, you have to realise that you have to talk about the interaction of two texts. In March 2019, the then Attorney-General—supported from the Front Bench in this House—said that the Good Friday agreement was the prior agreement and that in certain circumstances the protocol could be resiled from. It was said in this House, and nobody objected. I remember when the importance of the primacy of the Good Friday agreement was asserted from the Front Bench; nobody said a word.

Now at that very time—and I look at the noble Lord, Lord Dodds—I was trying to persuade the noble Lord, Lord Dodds, to do a compromise deal with the May Government to get it through. What the noble Lord, Lord Dodds, said in effect was, “That is very interesting”—about the primacy of the Good Friday agreement—“and that could be the way forward, because it could be a way of protecting and balancing our rights, but I do not believe Parliament on this matter.” The way you have all behaved in the last hour and a half shows that he was entirely right not to believe Parliament. He said, “We need more than that, though it is an interesting opening gambit.” That is why it was said by the Attorney-General on that day on 12 March—the Attorney-General gave the Brexit Secretary the authority to say it—in an attempt to do a deal. But he said no. Why did he say no? Because he thought lots of people would not follow through, and you have just proven in spades that, unfortunately, I was wrong when I told him to compromise, and he was right, because that is exactly how you have functioned.

Photo of Baroness O'Loan Baroness O'Loan Crossbench 5:30 pm, 25th October 2022

Can I ask the noble Lord whether he thinks that the Government’s intention to call a Northern Ireland Assembly election on Friday will assist matters?

Photo of Lord Bew Lord Bew Crossbench

I thank the noble Baroness, Lady O’Loan, very much for that question. The short answer is that I agree with her. We have a new Prime Minister, which begs the occasion for looking again at that question because, frankly, we need some more weeks to see how the negotiations go and so on and, frankly—

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

That is what noble Lords have been saying.

Photo of Lord Bew Lord Bew Crossbench

The negotiation with the European Union is proceeding apace anyway. This is of no relevance —I keep saying this—and nobody in the Irish Government even bothered to talk about the protocol Bill.

By the way, is there a majority of popular opinion in Northern Ireland against the protocol? I think that is probably right, although there is a large minority for it, but you all must appreciate we have long since left majority rule behind.

On the calls from the noble Baroness, Lady Chapman, for new information, I completely respect them, but, actually, the truth is extremely simple. We basically know where we are in terms of business. As the noble Lord, Lord Jay of Ewelme, who chairs the Sub-Committee on the Protocol on Ireland/Northern Ireland, said on Sunday, businesses with a north-south dimension like the protocol, and those with an east-west dimension do not like it. We already have a lot of information and, politically, we already know.

By the way, the passion for the full implementation or support for it in Northern Ireland, which was real at one point, is dead—completely dead. That having been said, I would totally accept that the majority of the parties and Members in the Assembly—

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated

I thank the noble Lord, Lord Bew, for giving way. While I was not at BIPA, my clear understanding—and I have just had it confirmed—is that the Irish Government’s position is quite clear that they view this protocol Bill as an unnecessary, unilateral move that breaks international law. Of course, they want to see a successful outcome to negotiations between the UK and the EU.

Photo of Lord Bew Lord Bew Crossbench

I thank the noble Baroness for her intervention. Of course I take the point, but I was saying that nationalist Ireland basically does not like this Bill. That is not the point. The point is that it is not in any way stopping or infringing or slowing up the negotiations. The point is that the equality of esteem doctrine, which we are supposed to be following with the Northern Ireland protocol, means that the House is bound by international law to pay attention and to try and do something. On whether this Bill is precisely right, there are amendments starred in the normal way to be discussed, but we are not in the situation where we are talking about amendments.

I have great sympathy for the noble Lord, Lord Howard, who raised the issue of Article 16. However, when I look at the noble Lord, Lord Frost, who was in a critical position on this matter for quite long spells in recent times, I think that he is bound to be surprised by the sudden outbreak of support for the implementation of Article 16, because at any time when he voiced the same civilised opinion in this Chamber, noble Lords were totally against it and regarded it as outrageous—of course it never was.

There is even a case now for the implementation of Article 16, made by Professor Boyle, who was professor of international law at Edinburgh, to both the House of Commons Select Committee on this matter and our own Select Committee on this matter. He is actually open to the argument for the importance of the prior international agreement and the importance of protecting it. He is a very distinguished international lawyer. What I understand him to be saying is that, first, you must apply Article 16; that is a perfectly reasonable argument that I am open to. In addition—I look at the noble Lord, Lord Howard, in engaging on this point—the other point that I very much agree with him about is that there is no need to ask the EU to change its negotiating mandate; it has to live up to its commitment to the Good Friday agreement.

The context is one in which—Members of this House do not read the Irish media as I do, and Irish books, articles and so on—there is a fairly consistent admission on the part of the Irish Government’s negotiating team that, when Theresa May was on her knees in November 2017, the advantage was pushed very hard in that agreement, and that they took sole ownership, or sole guardianship, of the Good Friday agreement. In many ways, what is happening here is an attempt by the British Government to say, “Well, actually, that is not really the Good Friday agreement. First of all, you do not have sole ownership. Secondly, we have responsibilities as a sovereign Government not held by the Irish Government and”—as I have tried to explain—"we are trying to move back to deal with this in some way.”

This does not mean that every clause in this Bill is particularly wise, but it does mean that we should not take the attitude that in principle we should not be doing it, or that we must stop now because otherwise the EU will stop negotiating—that is clearly not true. I agree that the Irish Government do not like the Bill and that they believe that it infringes international law. I absolutely accept that point, but the point is that we have to follow our obligations under international law, which means that the long-term alienation of one community must be avoided. Unless the Government do something substantive such as this—

Photo of Lord Howard of Lympne Lord Howard of Lympne Conservative

Does not the noble Lord think that it is slightly odd that his justification in law for supporting the Bill is not the Government’s?

Photo of Lord Bew Lord Bew Crossbench

The noble Lord has a point—but not as deep a point as he might imagine, because the Government have been consistent in saying that the primacy of the Good Friday agreement is the core of their position, in both the House of Commons and in this House. There are other details; there is phrasing. For example, as is well known, I am not as convinced of the need for language in this Bill about the Act of Union. I understand why it is there, but I am not convinced that it is relevant. There are other aspects that we will discuss, in the normal way, on amendments. There is detail that will come up later tonight, and there are things that need to be said, in the normal way. But this is not a normal discussion—

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

I am grateful to the noble Lord; he knows that I like and respect him. I am trying to follow the rationale of his argument with regards to us legislating here. Earlier, he made the case—he stressed it repeatedly—that the only purpose of the Bill as he can see it is for the DUP to return to the Northern Ireland Assembly. As far as legislators are concerned, does that mean that the DUP also has a veto on any regulations that come as a result of this Bill?

Photo of Lord Bew Lord Bew Crossbench

We are in political negotiations. Here is our problem; I have already explained it. When I tried to persuade the noble Lord, Lord Dodds, I said, “Just believe the British Government when they say that the Good Friday agreement is the dominant thing”. We can see now what has happened here. You only have to read the Dublin newspapers, to be frank, to realise what has had happened.

We cannot undo a negotiation that we lost. It is not the officials’ fault; the Prime Minister had lost an election and was desperate to get in and to make any kind of progress to justify her existence. You cannot undo this; I am not suggesting that it is possible. You lose, you lose—end of story, at one level. However, at another level, what it means is that the EU is committed to the Good Friday agreement, and it does not understand what it is committed to. You only have to read Michel Barnier’s memoirs to see that he has no idea about the importance of the east-west dimension and that his description of the north-south dimension is literally fantasy, which has been derisorily commented on in all sections of the Irish media.

We are bound into this agreement, but we cannot be bound into a fantasy. We have to unhook. We must have a good-faith negotiation in which we have to acknowledge the things that have gone wrong on our side and the EU has to acknowledge that the version of the Good Friday agreement it thought it had is not the real agreement. There is a strand three, for example, which talks about the importance of the east-west arrangements and so on. You can see how the original misunderstanding runs through all the texts and leads to the difficulties we are now in. To go back again to why I agree with the noble Lord, Lord Howard, we do not need to ask the EU to change its mandate. We need to ask it to understand its mandate. Its mandate is the agreement. It does not take long to read it, by the way. There is a strand three about the importance of east-west relations, although you would not know it from Michel Barnier’s memoirs. You would not know it, and you would not really know what the north-south relationship is either. So, that is one reason why this negotiation has some potential, because both sides have to come to terms with their errors in the past.

I conclude with one thing, because I have great respect for the noble Lord, Lord Hain, and what he said about Baroness Blood—as did the noble Baroness, Lady Ritchie. However, we also have to remember what other former distinguished Labour Secretaries of State said in acknowledging this difficulty. The noble Lord, Lord Mandelson—who was deeply involved in saving this process—said last week that he accepts that the Good Friday agreement and the protocol do not sit easy together; the tension is there. The noble Lord, Lord Murphy, talked about this in this Chamber as long ago as 6 December 2018. Distinguished Labour Secretaries of State know that there is a problem. The existence of the problem was not really acknowledged by the noble Baroness, Lady Chapman, earlier this afternoon.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, in all this discussion, not enough is said about the horror of what was experienced in the years leading up to the Good Friday agreement. We are forgetting that. In the language of decency in the House of Lords, we are allowing ourselves to somehow not remember the full horror of that period. That horror was rooted in inequality, a lack of rights for certain people in the community, and a strong sense that the only way towards peace was to somehow protect the rights and equalities of people in Northern Ireland. You would not have got people to the table if there had not been a very honest discussion about the pain, loss and suffering that came out of those inequalities. I can say this as somebody who did more trials involving those Troubles than probably anybody in this House.

The noble Lord, Lord Bew, said that the primacy of the Good Friday agreement is there in the protocol. All I can say is, let us remind ourselves of that and what was at the heart of the Good Friday agreement: a recognition that the platform on which rights were being premised was the European Convention on Human Rights and the European Court of Justice’s protection of rights. So, when it came to the protocol, a formula had to be found to protect rights. One of the things that was part of that commitment was that, in order to deal with the strong sense of injustice that had led to the Good Friday agreement, there should be no diminution of rights going forward, and that in the protocol we would be committing ourselves to making sure that rights would follow into Northern Ireland as they developed in Europe. Of course, that is one of the things that members of the DUP are not too happy about. They do not like the idea that there might ultimately be some place in which solutions are found when there is conflict over rights and the development of rights.

Noble Lords will remember that at the heart of the whole Brexit debate was the idea that we had to disentangle ourselves from European courts. There is still a whole section of the UKIP-driven Conservative Party that even wants to leave the European Convention on Human Rights. This House should not forget that rights and equality and the pursuit of them was part and parcel of the Good Friday agreement. That is why people are sensitive; it is not talked about sufficiently in this House.

If we are to have impact statements, and if we have some time to look at what the implications of the Bill might be, I would like us to look at its implications when it comes to that very carefully drawn set of protections for rights and equality in Northern Ireland which was at the basis of the Good Friday agreement, and which has to be still in our minds as we talk about the protocol. I am afraid that that is being lost in the whole business of whether there are going to be tariffs and so on. Of course, those matters are of vital importance, but there are other rights in here as well. That is why I am in favour of some delay, because I would like to see a proper assessment of the impact of the Bill, in a deep way, on that carefully wrought Good Friday agreement, which was about rights and equality as much as other things—actually, it was fundamentally about that.

I also want to know why we are not seeing the legal opinion which says what our position is with regard to international law. There is not a lawyer in this House who does not agree that this is an affront to international law, as I mentioned last time. On Monday of this week there was a meeting in this House about the treatment of Jimmy Lai in Hong Kong. He is a media owner being put on trial under the new national security law because of the erosion of the rule of law in Hong Kong. We want to say that that is an affront to international law because of the agreement made with China over Hong Kong’s future, but how can we say that with any kind of respect in the world when we are doing this to another international treaty because it has become inconvenient to us? That really is wrong, and I would like an impact assessment on the human rights implications of this piece of legislation.

Photo of Lord Pannick Lord Pannick Crossbench 5:45 pm, 25th October 2022

My Lords, I pay tribute to the noble Lord, Lord Bew, because he has at least made the effort to present an argument as to why the Bill is not a breach of international law—something that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, for whom I have great admiration in other circumstances, expressly declined to do at the end of Second Reading. As I understand it, the argument from the noble Lord, Lord Bew, is that international law includes the Good Friday agreement, which recognises the need to pay close attention to the views, interests and aspirations of all sections of the community—and here, most relevantly, the views of the unionist community, and in particular the DUP.

That argument deserves an answer so I will attempt briefly to explain why, in my respectful view, it is hopeless as a matter of international law. The reason why the argument is hopeless is that international law states that the doctrine of necessity simply cannot apply where the Government have caused or contributed to the problem that they now perceive and are seeking to address. The noble Lord, Lord Bew, cannot get away from the basic facts that the Government negotiated and signed the protocol. In international law, it is simply elementary that a state cannot sign a specific agreement and then seek to resile from it because it takes the view that it is neither convenient nor in the interests of particular sections of the community. Indeed, the Government signed the protocol—and said they did so—because they took the view that it was the best way of protecting the views of all sections of the community, including the DUP. It therefore follows that, if the Government take the view that this is unacceptable, inconvenient and does not meet the DUP’s aspirations, international law demands that the Government negotiate with the EU and attempt to arrive at another solution. It is as simple as that.

Photo of Lord Bew Lord Bew Crossbench

It is a little more than just “a need to”, which is definitely there. I can see perfectly clearly that the noble Lord is not familiar with Article 1(5), to which I referred, which is an international agreement held in the United States. The crucial thing is that this is also about the commitment to support the Good Friday agreement in all its parts. I am saying something slightly more complicated. We have both agreed to do this. The EU does not understand, for example, that “in all its parts” includes east-west, the totality of relations, a benign relationship and so on. It is impossible to fit the description of the east-west trading relations we now have from the protocol. This is very much a matter of decisions made by the EU, such as on how much intervention was required—or not. This is very much about its regulatory interventions going beyond what is necessary in anything that is actually in the protocol because the protocol itself says that the integrity of the UK single market will be upheld. Those are the words of the protocol—the important bit is in paragraph 25—but that is not what has happened.

My point is this: it is not just a question of the EU and the responsibility of one community, which is definitely there in paragraph 1 of the international agreement. This is about strand 3. At this point in the negotiation, we are simply saying, “We have both agreed to this. Your regulations most certainly break strand 3 at the moment”. I cannot understand why that is such a terribly complicated point in international law. We have all signed up to this; it is an argument about the interpretation of it.

Photo of Lord Pannick Lord Pannick Crossbench

I bow to the noble Lord, who has immeasurably more knowledge and experience of Northern Ireland than I could possibly have, but of course I have read the Northern Ireland agreement and understand that there are two documents in international law. The simple point is that, in the protocol, we agreed the means by which we take the view that the Good Friday agreement should be implemented in the context of the United Kingdom leaving the EU. That is what we agreed; we cannot now say that we are going to resile from it unilaterally. It is as simple as that.

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP

My Lords, I had not intended to take part in this debate because I had not realised that it would range so far and wide and across so many general issues. We had a lengthy debate at Second Reading in which a number of these topics were discussed; nevertheless, I think it is worth addressing some of the points that have been made and putting some of the issues on record as far as we are concerned.

I begin by joining noble Lords and noble Baronesses in their tributes to the late Baroness May Blood, who passed away recently. She lived and was brought up in the same part of Northern Ireland that I had the honour of representing in another place for almost 20 years, so I knew her very well indeed. I pay tribute to her great resilience, hard work, dedication and tenacity in her pursuit of the issues in which she believed strongly, as well as her dedication to young people in the Shankill and integrated education, as has been mentioned.

It is not incompatible to support this Bill and seek a negotiated outcome. On the negotiated outcome, although there is not a great history of flourishing talks with the EU and the United Kingdom on the protocol issues thus far, we hope that any negotiations lead to an outcome that is compatible with the aims and objectives contained in this Bill. This is not a matter of just tinkering around the edges and finding practical solutions, as has been said; some of the issues are fundamentally contained in the protocol. You cannot address the democratic deficit issue satisfactorily unless you address some of the content of the protocol.

No matter how much consultation, prior notice, discussion or involvement you agree to give Northern Ireland politicians in relation to EU laws covering 300 areas such as the economy—as well as further issues such as state aid, VAT and so on—the fundamental fact is that no elected representative of Northern Ireland either here at Westminster or in the Northern Ireland Assembly has any vote or decision-making capacity on vast swathes of laws that apply in Northern Ireland. How will that be addressed? This Bill goes some way to addressing that, but nothing I have heard being suggested by the proponents of delay, who are against the Bill, has offered any solution to that point. The noble Lord, Lord Hain, acknowledged the problem.

Our Sub-Committee on the Protocol, of which I have the honour of being a member, has looked at this issue in considerable detail; I recommend that noble Lords and noble Baronesses read the report that we commissioned on the scrutiny of legislation now applicable to Northern Ireland. They will see the extent to which Northern Ireland has been removed from the normal processes of democratic lawmaking, which people in this House have spoken about with great eloquence but which does not apply anymore to United Kingdom citizens in the 21st century. That is entirely unacceptable and is contrary to all the traditions of democracy that this mother of Parliaments has sought to uphold both here and abroad.

It has been asked what the problem is with delay. The noble Lord, Lord Bew, has dealt with one issue—

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP

The noble Lord, Lord Clarke, has already spoken. I want to get on and not delay the House any longer, but I will give way once.

Photo of Lord Clarke of Nottingham Lord Clarke of Nottingham Conservative

I am extremely grateful to the noble Lord. I have every respect for him; we have been together in Parliament for years. I want to understand clearly what he is saying. Is he saying that the Democratic Unionists will not withdraw their objections to the whole protocol unless Northern Ireland is allowed to leave the single market with the rest of the United Kingdom as the United Kingdom is otherwise developing? That would mean us telling the European Union that the single market has got to have a great hole in it, with no border controls at all so far as the Republic of Ireland and Ulster are concerned—because that is the Anglo-Irish agreement—no customs barriers in the Irish Sea and no application of single market law in Northern Ireland. Is that the proposition on which the DUP is saying that it is going to stop returning to a power-sharing agreement in Northern Ireland?

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP 6:00 pm, 25th October 2022

I am grateful for the opportunity that the noble Lord gives me to clarify that point. If he looks in detail at the Bill, he will see that it does provide the opportunity for regulations to come forward. The Government have announced that they will produce regulations which allow for checks on goods destined for the European Union, and for the Irish Republic exclusively.

I agree with what the noble Baroness, Lady Chapman, said in her amendment about the publication of regulations. It is important that the regulations provided for in the clauses in the Bill are published, and as quickly as possible, so that we can all see exactly what is proposed to replace the current, unacceptable arrangement. However, my understanding is that those regulations have talked about a red and a green channel, and that checks will be applied only to goods coming into the Irish Republic, so there will not be that gap or hole that the noble Lord, Lord Clarke, talked about.

It is also clear from the Bill that access to the single market would be retained, but that it would be the choice of businesses in Northern Ireland whether they want to be subject to EU or UK regulation, therefore sorting out to a large extent the democratic deficit point, while providing a way forward economically which is in everybody’s interests. When we come to sorting out the problems of the protocol, we have been told that no impact assessment has been carried out and that we need one for the Bill. There was no impact assessment carried out when the protocol itself was introduced, of course, concerning the negative impact that it has had on business.

I have a letter here from hauliers in Northern Ireland, who have written to a number of noble Lords saying that it is their contention that the economic costs of the protocol far outweigh the economic benefits. They say that if the protocol was implemented in full, it would crash Northern Ireland’s chilled and frozen food supply chains within 48 hours, and that it is reasonable to anticipate that this would cause a socioeconomic crisis. They talk about the need for the Bill. These are businesspeople. These are people who carry goods into Northern Ireland from Britain, into the Irish Republic, and from the Irish Republic and Northern Ireland into Great Britain. They know what they are talking about, so we should not generalise here. We must take the evidence of the damage that has been done economically and constitutionally.

On international law, I bow to the superior knowledge of many very distinguished lawyers and practitioners in this House, but the noble Lord, Lord Bew, is right when he argues about the prior position of the Belfast agreement and that the protocol references the Belfast agreement in its wording—as amended by the St Andrews agreement, of course—and that cannot be ignored. We are told that upholding and keeping our word is vital to our international standing. However, I have in front of me the joint report, from the negotiators of the European Union and the United Kingdom Government, of 8 December 2017, when Theresa May was trying to make progress in her negotiations with the European Union. That agreement was hammered out over a number of days. If we are talking about people maintaining and upholding their word, I point out that it contains the following, in Article 50:

“In the absence of agreed solutions… the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom”, which they now have,

“unless, consistent with the 1998 Agreement”— so the EU and the UK Government recognise that it is inconsistent with the Belfast agreement to have such regulatory difference—

“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.”

The Northern Ireland Executive and Assembly have never agreed to that. They were never even asked. This was the promise made to people in Northern Ireland by the EU and the UK. After that was agreed, the UK Government, never mind the EU, paid scant attention to that article when seeking the agreement of people in Northern Ireland to any regulatory divergence. If we are talking about upholding our word, people in Northern Ireland are entitled to ask, “What happened to that agreement? What happened to that commitment? Why was the protocol imposed without any say or consent by people in Northern Ireland?”

We talk about the blunderbuss—the threat that has been put on the table. I remind noble Lords that the EU has now launched infringement proceedings against the United Kingdom for its having unilaterally extended grace periods and other matters—without which, as the hauliers say in their letter, the supply chain to Northern Ireland would crash and burn within 48 hours. This is essential for the free flow of goods to Northern Ireland, yet the EU has put on the table legal action against the UK Government, and that is not mentioned.

I will close; I am conscious of time, but it has been a wide-ranging debate thus far. The Bill is necessary because the protocol, as it stands, is incompatible with the Belfast/Good Friday agreement. At the heart of that agreement, as amended by the St Andrews agreement, is the principle of consent. It is not only the DUP that opposes the current arrangement. Every single unionist elected to the Northern Ireland Assembly, as late as five or six months ago, opposes the protocol. The foundation of power-sharing in Northern Ireland is not majority rule any more; we have not had majority rule for 50 years in Northern Ireland. It is the mutual agreement of unionists and nationalists, and not a single unionist of the Ulster Unionist Party, the Democratic Unionist Party, the Traditional Unionist Voice, or independents, of which there are a number, supports the current arrangements.

The protocol is incompatible not only with the Belfast agreement but with Northern Ireland’s constitutional position. I am conscious of the point made by the noble Lord, Lord Bew, that it was not necessary to deal with that in this legislation, but the courts have ruled that Article 6 of the Act of Union has been subjugated by the protocol and that Great Britain is now a third country as regards “imports” from Great Britain into Northern Ireland.

As I have said, the protocol is incompatible with the upholding of proper British and UK democratic standards, for the reasons that I have already outlined, and it is damaging our prosperity. You cannot have VAT exemptions or derogations, which the UK Government have recently announced on energy products, applied to Northern Ireland, because we are subject to EU VAT rules. That cannot be right. It is also contrary to the New Decade, New Approach document, which was agreed by all the parties, the Dublin Government and the UK Government in January 2020. It says on page 47, annexe A:

“The Government is absolutely committed to ensuring that Northern Ireland remains an integral part of the UK internal market”,

As has been set out in the reasons given for the introduction of the Bill, this is to address the fact that Northern Ireland is no longer an integral part of the UK single market. That is indisputable.

To those who say it is unbelievable that a Conservative Government would be doing this and bringing forward this legislation, I say it is unbelievable that a Conservative and Unionist Party ever brought forward the protocol in the first place. That is the really telling point. We did not support it. What we are asking for is our democratic rights to be restored.

The Conservative Party can be criticised for many things, and we have criticised it very often. We have had our battles over the years. But if there is now an attempt to put right something that is fundamentally wrong, antidemocratic and runs counter to the Belfast agreement, runs counter to the agreement the basis of which was for the restoration of Stormont and the Assembly, that should be applauded. I hope negotiations can succeed, but they will have to deliver what is in the protocol, otherwise we will not get to a point where we will have stable government restored in Northern Ireland. That is a fundamental fact. Sinn Féin kept Stormont down for 1,044 days over the Irish language issue that the noble Lord, Lord Bew, referred to.

We do not want instability to continue for one day longer. In July 2021, the Government published a Command Paper saying that the conditions had been met then for the instigation of Article 16. As has been said, Article 16 is now very much flavour of the month, but at the time it was denounced by all the parties in Northern Ireland and most people here as being an outrageous infringement of democratic norms and a breach of good faith and of international law. All sorts of things were said about it. So there is urgency, and that is why I urge noble Lords to proceed with the Bill and move ahead. If negotiations do not end in a satisfactory outcome, we will have to return to this legislation, and it is better to proceed with it now than to have to start further down the road at a point when it would become absolutely essential.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office)

My Lords, first I thank all noble Lords who have taken part in this debate. As I was rising, I looked at the clock and never in the Ahmad history in the House of Lords has something so innocuous as saying “I beg to move that the House do now resolve itself into a Committee on the Bill,” resulted in such an intense debate. I shall remember for next time.

Secondly, my noble friend Lord Clarke mentioned that he looks towards the House of Lords and, as he comes here more often, I assure him, not that I agree with the substance of what he has said, but that his contributions and those of all noble Lords enrich the debate. One of the key components of the House of Lords is asking the Government to think again. I am sure I speak for my colleagues on the Front Bench as well in saying that we have certainly been in thinking mode.

There is a third element before I get into the detail. I was taken by the various descriptions of the Bill. The noble Lord, Lord Kerr, referred to it as a “pig”. As a Minister who also is a practising Muslim, I thought for a moment that the stewardship and handling of the Bill would cause me a cultural challenge. But I soldier on with loyalty to King, country and Government.

In all honesty, this debate has been an important one. I think we are all agreed that it has again brought forward views on the importance of Northern Ireland as an integral part of what defines our very United Kingdom. Notwithstanding the different perspectives, I know all Members of your Lordships’ House are at one on the principle that the integrity of the United Kingdom must be protected. The fact is that the Northern Ireland protocol must work for all communities in Northern Ireland and, of course, the wider United Kingdom. Of course, the noble Lord, Lord Pannick, is correct—we signed the Northern Ireland protocol. But any contract—I do not speak as a lawyer but I have done a few contracts in a previous life as a banker—is also signed in good faith. It has to work for all sides and all communities.

There are good reasons why we are bringing forward this Bill. First, clearly the Northern Ireland protocol in itself is not working, as we heard from the noble Lords, Lord Bew and Lord Dodds, for all communities in Northern Ireland. There is clearly a problem when we talk of the east-west issue, particularly in terms of trade. The other thing is not so much a legal point and was one that I raised in briefings with noble Lords. The EU is aware of the Bill’s existence and I am delighted, as I was sitting here—there is always a bit of trepidation for any Minister doing a debate in the middle of a reshuffle of the Cabinet and the wider ministerial team—that my right honourable friend the Foreign Secretary has been reappointed to his role, because continuity in negotiations is also important. I know for a fact that my right honourable friend has prioritised the importance of our discussions with our European Union colleagues and friends.

Again, the EU as well as our colleagues in the Republic of Ireland are very much—I hope that was appreciated, I am keen to get the pronunciations right here—aware that this Bill is going through your Lordships’ House and it has not, as the noble Lord, Lord Bew, reminded us, hindered the discussions we are having. People will have different perspectives and of course I respect the point raised by several noble Lords about the position the Irish Government or indeed others within the EU may have on the Bill itself. But I can assure noble Lords that this has not prevented us from having constructive engagement with parties in Northern Ireland, as well as directly with the EU.

Therefore, I will move quickly, if I may, into the substance of the Motion and indeed the amendment from my noble friend. I will take both amendments together in the interests of time—the amendment in the name of the noble Baroness, Lady Chapman of Darlington, and the one in the name of my noble friend Lady Altmann. To address the point that the noble Baroness, Lady Chapman, made in introducing this, I say again that it is Her Majesty’s Government’s preference—I mean His Majesty’s Government’s preference; we must get that right as well—that we resolve this issue through negotiations and direct talks.

In this regard, I said I would update your Lordships’ House. Last week again my right honourable friend the Foreign Secretary and Vice-President Maroš Šefčovič had very important discussions. They have spoken again, reiterated their shared commitment to potential solutions to this issue and remain directly in touch. The Government are engaging in constructive dialogue with the European Union to find solutions to these problems and the Government will—I have given that commitment before—update Parliament on talks with the EU as these progress.

I say to the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis, as representatives of the two Front Benches, as well as the noble and learned Lord, Lord Judge, that I will continue to engage with all Front-Benchers to ensure that we are fully updating your Lordships’ House during the progress of this Bill.

I am also pleased to accept the assurances given by His Majesty’s Opposition that they will not press this amendment. I am grateful for that. It is important that we had this lengthy debate, because the issues raised are important and a Government in presenting a Bill need to deal in responding to it. Those responses may not be satisfactory, but nevertheless it is important that we have a detailed discussion.

On the specific issues that were raised, I thank the Delegated Powers and Regulatory Reform Committee for its report on the Bill, which the Government are considering. Of course, I take due note of what the noble Baroness, Lady Chapman, and other noble Lords such as the noble Lord, Lord Purvis, and the Constitution Committee’s report have said about the importance of the Government’s response being published in good time to allow for due consideration of it in advance of the next stage of this Bill, particularly at Report stage. That point is very much noted.

Taking other elements raised in both amendments, I highlight that, since the Bill was introduced—I assure my noble friend Lady Altmann of this—the Government have continued to engage extensively with groups across business and civic society in Northern Ireland. My noble friend Lord Caine has been engaging directly in some of these discussions, which will continue. They are also important for the rest of the UK and internationally. I fully accept that Ministers remain accountable to Parliament for all this work and will be examined on it, in the usual way.

The Government are also receiving feedback on our various levels of engagement, and we will continue to develop the details of our approach. Of course, your Lordships’ House will have the opportunity to scrutinise regulations. These are being worked out in the usual fashion, including through debates, and the Government will provide all usual accompanying material under normal parliamentary procedures.

The regulations were referred to by a number of noble Lords, including the noble Lord, Lord Dodds, in his closing remarks. They will be a product of the engagement with business to which I have already referred and will, importantly, ensure that the implementation of the new regime is as smooth and operable as possible.

Finally, I also stress that, while stakeholder views are of huge importance to the Government and will be given proper consideration, it is ultimately for Ministers to decide how to exercise these powers and for Parliament to scrutinise and hold Ministers to account, in the usual way.

I am sure that we will return to some of the points discussed in this opening debate during the discussions on the various amendments that have been tabled today, but I will pick up on a few of them now. The Government fully intend to respond to the Constitution Committee in due course. That was raised by the noble and learned Lord, Lord Judge, who also raised the infringement proceedings, to which the noble Lord, Lord Dodds, also alluded. We have written to the European Union stating that we intend to maintain the existing operational arrangements on the protocol. The noble and learned Lord will recognise that I cannot discuss current legal proceedings further.

In this respect, the noble and learned Lord also talked about expediting judicial review. JR raises technical points of constitutional law, on which the Government have successfully made representations to date. We are concerned with points of law that are not of primary concern to this debate. However, again it would not be appropriate for me to comment further on a case that is soon to be before the Supreme Court.

Several issues have been raised consistently, as they were during Second Reading. At this juncture and in the interests of moving on to the specific amendments, I say that we are here—there are three Ministers on the Front Bench—because of the seriousness with which the Government take the important issues being raised in your Lordships’ House. We will continue to reflect on your Lordships’ important contributions—the points of principle, the points of law and the points about standing up for international law.

As someone who has been in government for a while—the last time I checked, I still was—I assure you to my core that the point about international law and the rights of citizens, wherever they are in the world, is very important, but no more important than the rights of our own citizens, including those in Northern Ireland. We will reflect on some of the specific questions that have been raised and those that will be raised while the Bill is in Committee and respond accordingly. I am sure we will return to many aspects of our discussion as the Bill progresses.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Labour 6:15 pm, 25th October 2022

My Lords, that the Government have said they will publish the draft regulations is very welcome, but I do not think the Minister mentioned when. This is a key issue, because noble Lords deserve to see the draft regulations before progressing.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office)

One of my introducing Peers was my noble friend Lord Howard. He often said to me, “Tariq, when noble Lords get on their feet, as a minimum, they already have the answer to the question they are asking. They have probably also written a book about the subject”. I suggest that the noble Baroness has not written a book about regulations, although a number of our colleagues may have. I cannot specify a date at the current time, but I note the noble Baroness’s comments.

I hope that my noble friend Lady Altmann and the noble Baroness, Lady Chapman, are minded to withdraw their amendments.

Photo of Baroness Altmann Baroness Altmann Conservative

My Lords, I shall not detain the House. We have had a very good debate. I thank my noble friend for his words and beg leave to withdraw my amendment.

Baroness Altmann’s amendment (to Baroness Chapman of Darlington’s amendment to the Motion) withdrawn.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Justice), Shadow Spokesperson (Education)

I start by thanking the Minister for the tone of his response to this debate. I did not anticipate that this stage of our consideration would take quite so long, but I make no apologies for enabling us to have this discussion. It has been very helpful, and I particularly value the opportunity to listen to those with whom I may not completely agree, but it is vital that we understand one another and why we have reached the positions that we have.

Much has been said about Article 16 and why we now—for want of a better word—favour that approach. Quite simply, it is clearly a legal mechanism. We have concerns about a unilateral Act by the UK Government applied to a dispute around something happening in Northern Ireland. That has never been a good way to proceed, and I do not think it is now.

When considering what to do about the Bill, the test I have applied has nothing to do with Brexit. Brexit has happened and the challenge now is to make it work—I think most people in this Chamber accept that. The test is whether pursuing this Bill and its approach, not knowing what would be in its place, assists us to find a negotiated settlement. The view of these Benches, today, is that it does not; it hinders our ability to reach a negotiated settlement. For that reason, we remain unconvinced, but we welcome—we have to welcome—the assurances the Minister gave. We anticipate receiving the information in a timely fashion but, today, I beg leave to withdraw the amendment in my name.

Baroness Chapman of Darlington’s amendment to the Motion withdrawn.

Motion agreed.

Clause 1: Overview of main provisions