Amendment 40

Northern Ireland Protocol Bill - Committee (4th Day) – in the House of Lords at 5:30 pm on 7th November 2022.

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Baroness Suttie:

Moved by Baroness Suttie

40: Clause 20, page 10, line 32, at end insert—“but this section does not have effect unless it has previously been approved by a resolution of the Northern Ireland Assembly.”Member’s explanatory statementThis amendment would prevent the Bill’s proposed departure from the terms of the Northern Ireland Protocol, or from any related provision of the EU withdrawal agreement, in respect of the previously agreed role of the European Court (CJEU) unless Clause 20 had first been approved by the Northern Ireland Assembly.

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

My Lords, Amendment 40 in my name is co-signed by the noble Baroness, Lady Ritchie of Downpatrick. Like so many of the earlier and similar amendments, it aims to ensure that the democratically elected Northern Ireland Assembly would have the final say on whether Clause 20 is to be implemented. In many ways, this is a probing amendment following what I felt was a very constructive and useful speech from the noble Lord, Lord Empey, who I am very glad to see back in his place after an absence. In doing this, it is incredibly important that we make sure that there is greater involvement of the Northern Ireland political parties at every stage. Perception is all in politics and, whether or not the Minister says that meetings are taking place, the representatives here from Northern Ireland do not feel that they are taking place. Therefore, they are obviously not working as they should be.

As the noble Lord, Lord Hain, who is not in his place, spelled out so clearly on an earlier group of amendments, Clause 20 would mean that domestic courts and tribunals cannot refer any matter to the European Court of Justice in relation to the Northern Ireland protocol. Last week, the noble Lord, Lord Hain, also spelled out very clearly the potential impact of this clause on the single electricity market on the island of Ireland. My honourable friend Stephen Farry MP, when speaking in the House of Commons about a very similar amendment, made the point that if the ultimate jurisdiction of the European Court of Justice is removed, Northern Ireland’s ability to access the single market for goods will be jeopardised or destroyed. A level playing field overseen by the European Court is surely in the interests of many Northern Ireland businesses and can protect access to the market in years to come. It will also protect such businesses against situations that may arise in future if any EU member state were to attempt to refuse goods coming from Northern Ireland.

Politically, it is worth stressing once again that the majority of businesses in Northern Ireland have adopted our somewhat pragmatic approach to the protocol and that the jurisdiction of the European Court has not previously been seen as a major area of concern. It is therefore hard not to draw the conclusion that Clause 20 has more to do with Conservative Party divisions and the ERG than it has to do with genuine political and business concerns in Northern Ireland. For those businesses that primarily deal with north-south trade or with the EU, any reduction of the jurisdiction of the ECJ would potentially have a profound impact on them. It is for that reason that it is very important that the Northern Ireland Assembly should be able to have its say on these matters. I beg to move.

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

My Lords, I will speak in favour of Amendment 40 in my name and that of the noble Baroness, Lady Suttie, and will refer to Amendments 42 and 43A in my name.

In many ways, Amendment 40 seeks to protect the role of the European Court of Justice and to ensure adherence to the accountability mechanisms of the Northern Ireland Assembly. Adherence to the provisions in the GFA—the Good Friday agreement—are of vital importance, and any change in the protocol with respect to Clause 20 can go nowhere unless approved by the Northern Ireland Assembly.

While this is a probing amendment, like the noble Baroness, Lady Suttie, I go back to the comments made by the noble Lord, Lord Empey, about the role of Assembly Members in the Northern Ireland Assembly. Absolutely no account, recognition or acknowledgement has been taken of the role of locally elected Members of the Northern Ireland Assembly in relation to this Bill. He is absolutely right when he says that, if they have buy-in and ownership, there is greater likelihood that the UK Government and the EU will achieve a degree of resolution on many of these vexatious issues.

Many elements of the protocol are already working well for business in Northern Ireland; for example, in relation to dairy, beef and agri-food industries. But it is important to note, as the noble Lord, Lord Empey, and other noble Lords have said—and I think the point has been made by my noble friend Lord Murphy—that negotiations succeed in Northern Ireland only when the parties are sitting around the table with the UK and the EU. So I ask the Government, in their discussions with the European Union, to try where possible to exercise a degree of flexibility that would facilitate such discussions taking place in a more all-encompassing manner.

I move on to Amendment 42, which seeks to ensure that, when the UK-EU joint committee has discussed regulation of goods in connection with the protocol, there is a full report to Parliament detailing those discussions within 21 days of the meeting. In the previous discussion on the first group of amendments, when queries were put by noble Lords about the nature and content of the negotiations with the European Union, I am afraid we did not get very much back about the actual content or level of solutions. Therefore, we are left with a query in our minds about what progress is actually being made in those technical discussions; hence the need for renewed vigour in continuous, senior political engagement at a UK/EU level.

Amendment 42 rightly emphasise the role of the Assembly and the north-south institutions of the Good Friday agreement. That is further emphasised in Amendment 43A, which requires adherence by a UK Minister in the UK-EU joint committee meetings

“to respect, reflect and support proposals made by the Strand 2”

GFA implementation bodies. That goes back to the fact that many of the implementation bodies are inextricably linked to membership of the European Union—I am thinking of InterTradeIreland and Tourism Ireland. It is important that Ministers support proposals on the regulation of goods made by the strand 2 bodies in the joint committee meetings.

It is important that we revert back—I urge the EU and the UK to do likewise—to the spirit and intention of the Good Friday agreement. It is fitting that, tonight, in another part of the parliamentary estate, a painting of the late John Hume, by the renowned Northern Ireland artist Colin Davidson, is being unveiled by the Speaker of the other place. In many ways, John Hume was the architect of the three-stranded approach that emerged in the Good Friday agreement, and the spirit of co-operation, partnership and working together. That can be achieved only when all the facets—namely the UK, the EU and the Northern Ireland parties—work together to achieve solutions in the best economic, political and societal interests of all of the people of Northern Ireland.

Photo of Lord Cormack Lord Cormack Conservative 5:45 pm, 7th November 2022

My Lords, like the noble Baroness, I hope to be able to be present for the unveiling of the portrait of the late John Hume. It is a pity that our recently departed colleague Lord Trimble is not able to be there for that extraordinary occasion.

It seems to me that what the noble Baroness, Lady Suttie, said was wholly in tune with what the noble Lord, Lord Empey, said earlier in our debates: how important it is to involve the politicians in Northern Ireland. It is also important to do something else, which was touched on by the noble Lord, Lord Kerr of Kinlochard, in his speech just half an hour ago. I am very glad that the noble Lord, Lord Murphy, is in the Chamber at the moment, because the noble Lord, Lord Kerr, talked about the crucial importance of involvement at the highest possible level. We would never have had any agreement without John Major and Albert Reynolds, built upon by Sir Tony Blair, the noble Lord, Lord Murphy, and others. It is very important indeed.

No one appreciates more than I do, I hope, the tremendous tasks facing our new Prime Minister, and I wish him every possible success. However, as soon as it is possible, he should involve himself. He should go over to Belfast and meet the Northern Ireland politicians, the Taoiseach and others, because there has to be involvement at the highest level. The success of such talks would be increased if this wretched Bill were at the very least paused.

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP

My Lords, I want to make a brief comment on Amendment 40, which is about approval by a resolution of the Northern Ireland Assembly. In support of this amendment, it has been stated that adherence to the spirit and intention of the Belfast agreement is vital. But if we are to be faithful to that agreement as amended by the St Andrews agreement, and to its spirit and intention, then the amendment is defective in that it does not include cross-community consent. Is this a resolution by cross-community consent?

The point that I have made—and as other noble Lords who are aware of the details of the Belfast agreement will know—is that every major decision in the Northern Ireland Assembly is made on a cross-community consent basis. That means a majority of nationalists, a majority of designated unionists and a majority overall. Anything that is not specifically a cross-community vote is capable of being turned into one by a petition of concern. If you are using the argument that you are defending the Belfast agreement, as amended, then why is the cross-community element of resolutions in the Northern Ireland Assembly left out? Why is that the case? Why is it not required to have the support of unionists and nationalists? That is the basis on which the Belfast agreement was written.

My second point is about the involvement of Northern Ireland parties. I have a lot of sympathy there, but it is worth bearing in mind that in the run-up, between 2018 and 2020, when we had all the discussions about the backstop and negotiations overall, the Irish Government made it clear on a number of occasions to us that they did not wish to have any engagement directly with political parties in Northern Ireland on the issue of Brexit. They did not see a role. Nor did Michel Barnier see any role for the political parties in Northern Ireland; I put that point to him directly in his office in Brussels.

Lest we move to the position that the British Government have prevented this or not done enough, I say that the Irish Government and the Brussels Commission were very clear: “This is a matter on which the EU is represented by Monsieur Barnier. He speaks for the EU.” Leo Varadkar was very clear when we met him in Belfast and urged him to encourage a more imaginative approach that would involve the Northern Ireland political parties and the Irish Government talking directly to political parties about Brexit—and the UK Government, of course. That was rejected: “No, Michel Barnier speaks for the EU. It is between Her Majesty’s Government”, as it then was, “and the EU. There is no role for anyone else.” That was spelled out explicitly.

While I have a lot of sympathy with the proposition, this is not as straightforward as it would appear. I think some of the problems we have seen might well have been made easier to resolve had there been more flexibility on the part of the EU and the Irish Government, but it needs to be put on record that it was and, as far as I understand it, remains, the position both of the Dublin Government and Brussels. It would be very interesting to see whether Leo Varadkar maintains that position when he takes over as Taoiseach in a few weeks’ time. It would be worth exploring that with the Irish Government, because the portrayal that this has been a one-sided exclusion is not accurate.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour

My Lords, I did not intend to come in at this stage—there are further amendments later that I am interested in making a contribution to—but I agree with an awful lot of what the noble Lord, Lord Dodds, has said. Over the last year or two, I have been complaining that the real difficulty in this negotiation, if that is the right word to use for it—and I do not think that it is, by the way—lies in the way the protocol was born. Whatever the rights and wrongs of the protocol, or of the Bill—and I think there is an awful lot wrong with it—I am not at all convinced it is doing what it set out to do: in fact, it has failed to do that, because the DUP has not moved considerably because of the nature of the Bill. One reason is that the negotiations have been almost exclusively between the European Union on one hand and the British Government on the other, as the noble Lord, Lord Dodds, said. That is a fundamental problem.

I understand why the Irish Government feel that way. They are part of the European Union; the European Union negotiates on their behalf. I thought it would be a good idea if that were reversed: the Irish Government could have negotiated on behalf of the European Union because, as we have heard a number of times this evening, the issues we are dealing with reflect two international agreements. The first and overriding one is the Good Friday agreement. That is an international agreement lodged at the United Nations and it overrides everything, so far as we can see, with regard to the future of Northern Ireland. How on earth can officials from the European Union understand the issues facing Northern Ireland in the way that the Irish Government could?

That reflects too, of course, on how you involve the Northern Ireland parties. If anybody thinks that this whole issue is going to be resolved in Brussels, that is for the birds. The issue is to be resolved in Belfast: that is where the impasse is. The impasse is: why have we not got the institutions of the Good Friday agreement up and running? It is simple. It is because people have not talked to each other. There have not been proper negotiations.

I spent five years of my life negotiating in Northern Ireland so I know how intense those negotiations have to be. There were negotiations involving the European Union at some stage, but nothing like the negotiations between, on the one hand, the two Governments—the British Government and the Irish Government—and, critically, the Northern Ireland political parties on the other. In the end, they will have to decide this.

One of the great tragedies of all this—it was not the fault of the DUP; it was the fault of Sinn Féin, in this case—is that the Assembly and the Executive were brought down over the then Irish language Bill. The result was that there was no proper Executive comprised of the parties in Northern Ireland, who could have discussed all the issues we have been discussing for the past three weeks. Had there been a proper Executive and Assembly up and running, we would not—I hope—be here in the way we are. I have a lot of sympathy for what the noble Lord, Lord Dodds, said.

I still hope that, over the next few months, the Irish Government can discuss meaningfully with the British Government. I particularly hope that there are proper, meaningful negotiations involving the political parties in Northern Ireland. By that, I mean negotiations; I do not mean going to Belfast for a couple of hours, meeting the political leaders, and then coming back again. That is not going to work. You have to get people around a table. You have to involve all the political parties in Northern Ireland. You have to do the things that we have done over the past 10 or 20 years to achieve a real, lasting solution to this issue. What we are doing now is a sham. It will not solve anything at all. The only way we can do it is through negotiations that involve the Governments and the political parties in Northern Ireland.

Photo of Lord Empey Lord Empey UUP

My Lords, I want briefly to follow what the noble Lords, Lord Murphy and Lord Dodds, have said. The noble Lord, Lord Dodds, may be right about the European Union not wishing to negotiate with regional politicians. It has a long-standing position on that; the EU-Canada trade agreement got bogged down because of the Wallonians, I think, who blocked it for quite some time. But never mind what the European Union or Dublin thinks. This is what matters: what our own Government decide on who is going to speak for the United Kingdom at these talks. If our Government decide to involve people and politicians in Northern Ireland, that is our business. It is not the European Union’s business. At the end of the day we know what its stance is, but that is neither here nor there if our Government decide that they are going to create their own negotiations. Who they take advice from and consult in the United Kingdom is entirely up to them, so I do not see that as an obstacle.

I gently remind the noble Lord, Lord Dodds, that the first decision in our amendment to the Belfast agreement at St Andrews was to remove the necessity for cross-community consent for the election of the First Minister. Had that remained as it was, Sir Jeffrey Donaldson would be First Minister, not Michelle O’Neill.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

My Lords, I shall make a short comment on Amendment 40 proposed by the noble Baronesses, Lady Suttie and Lady Ritchie of Downpatrick. It says that

“this section does not have effect unless it has previously been approved by a resolution of the Northern Ireland Assembly.”

Surely that is not an honourable reflection of the Belfast agreement, which, as the noble Lord, Lord Murphy, told us, overrides all the international agreements. The spirit, and a fundamental pillar, of the Belfast agreement is cross-community support. If what the noble Baronesses are saying is that the amendment actually means “by a resolution of the Northern Ireland Assembly with cross-community support”, I challenge them to put that in and make that clear. However, I know from the previous contributions of the noble Baroness, Lady Ritchie, that she does not mean that. She means a simple majority and going back to majority rule, which has disappeared in Northern Ireland over the past 50 years—much at the behest of her former colleagues.

I therefore challenge the noble Baronesses to state clearly: do they desire recognition and an honourable reflection of the fundamental pillar of the Belfast agreement? When they speak about

“a resolution of the Northern Ireland Assembly”, are they clearly stating that that is with cross-community support? If they are not, then they are not upholding the Belfast agreement and all the pretension in this Committee is only empty rhetoric.

Photo of Lord Pannick Lord Pannick Crossbench 6:00 pm, 7th November 2022

My Lords, I draw attention to the suggestion that Clause 20 should not stand part. During these Committee debates, we have addressed a number of extraordinary provisions in the Bill that give exceptional powers to Ministers, but Clause 20 really does take the biscuit, if that is a parliamentary expression. Let me emphasise what it provides. It provides that the role of the Court of Justice in Luxembourg is excluded, which we will all have a view about, but it goes on to say that Ministers can, by regulations, recreate the role of the European Court of Justice. Is it not quite extraordinary that a Minister should be able, by regulations, to confer a power on an external body to sit as the final judicial body determining issues that are relevant for the purposes of English law? Whether you agree with the role of the Court of Justice or disapprove of it, it cannot be constitutional for a Minister of the Crown to have an exceptional power to decide who and what is the final court of appeal for this country.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

I very much support what the noble Lord, Lord Pannick, said, and add that it seems quite astonishingly narrow-minded and short-sighted to want to be rid of the European court in these circumstances. We heard at length last week about the effect on electricity, but there is a wider effect.

May I just put in a word of defence of the European court? I happened to visit it on numerous occasions. It has made some extraordinarily sensible decisions that have affected this country and particularly women, which is one of the reasons I support it. It is quite extraordinary that a Conservative Government, who I always thought had a broad view, should be quite unbelievably narrow-minded, and that some quite erroneous view of sovereignty should be taking over from the crucial role that the ECJ has to play in the work we are considering.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I echo, from a non-legal point of view, the points made by the previous two speakers but, when looking at the European Court of Justice and its role under the protocol, I imagine that even the noble Lord, Lord Lilley, would not contradict the point that I am about to make, which is that the properly constituted British Government, supported by the properly constituted British Parliament, entered into a treaty that gave a role to the European Court of Justice. That is a simple fact. It is there, written. It is another simple fact that there is no provision in the protocol to remove that role of the European Court of Justice—none.

What we are talking about is a breach of our international commitments. I am sure one of the noble Lords on the Front Bench will again hotly deny that this is the case because, like the Red Queen in Alice, their only argument is, “It is so because I say it is so”. Fortunately, that is not a terribly convincing argument in this place, where occasionally—not all the time—reason has a way of prevailing. I should like to suggest that we recognise this reality, which is that the Government’s attempt to remove the European Court of Justice unilaterally from two international treaties, which they entered with the consent, support and approval of Parliament, is a breach of our international commitments.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, we had a brief debate on matters relating to the European court last week, which largely focused on the earlier parts of the Bill. It is helpful to have this opportunity to deal with some of these issues in more detail.

The agreement reached with the EU on the status and role of the CJEU in relation to the protocol and other parts of the withdrawal agreement was carefully crafted and informed part of the oven-ready deal the Conservative Party was proud to call its own. There is some logic in what Clause 20 seeks to achieve. If the protocol no longer functions as intended, the legal processes cannot either, but that is only if one accepts that it is acceptable to tear up a binding international agreement in the first place.

The power for Ministers to introduce some form of referral process is interesting and a little surprising. It seems to contradict the earlier power in subsection (2). From a practical point of view, would not any referral scheme work only if the EU and European court agreed to engage in the process? Would this point not need to be negotiated?

There has been a wide-ranging debate on these issues, but it seems that there are some very practical consequences of trying to put into place a new referral process while at the same time needing to negotiate with the organisation one has just torn up a formal agreement with. How would that work in practice?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I am grateful to noble Lords for their participation in this debate. I will first address Amendment 40 in the name of the noble Baroness, Lady Suttie. I am delighted to see her in her place and will do my utmost to address her points, as I turn to the first group.

The amendment would require a positive resolution of the Northern Ireland Assembly before the provisions of Clause 20 can be brought into force. I point out, and it is a matter that the whole Committee is seized of, that we need to see the restoration of the institutions as quickly as possible. It is because of the breakdown of those institutions that the Government consider that the Bill is needed.

Clause 20 engages a complex combination of the transferred, devolved and reserved matters relating to foreign affairs and the court systems of the United Kingdom’s three jurisdictions. It would not be appropriate for the Northern Ireland Assembly to constrain the UK Parliament’s power to legislate, even if that legislation relates to a reserved matter.

Clause 20 is a key part of the Bill. It addresses how we treat CJEU case law, principles, and references, including in relation to those parts of the protocol that we are excluding in domestic law. I will come back to this point, but to reiterate matters taken at earlier stages before your Lordships, this is not a ripping up or tearing up of the protocol, but a recognition that parts of the protocol are not working and parts are. We seek to retain those parts that are working and dispense with those that are not.

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

I thank the Minister for giving way. Does he not agree that it would be much better to undertake such discussions through negotiations themselves to correct those parts of the protocol that may be causing concern at this moment in time?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I stress, not for the first time from the Dispatch Box by myself or my noble friends on the Front Bench, that the Government’s preference remains for a negotiated solution.

The Chamber and the other place have heard from representatives of the unionist community that the presence of the European Court of Justice in the protocol is at the heart of the democratic deficit issue. Absent the provisions of Clause 20, we could end up in an incoherent position whereby substantive provisions of the protocol are disapplied but new CJEU case law associated with those provisions continues to apply. For that reason, and the others I have outlined, I urge the noble Baroness to withdraw her amendment. I emphasise that bringing back the democratic institutions in Northern Ireland is the Government’s priority.

The noble Baroness, Lady Ritchie, my noble friend Lord Cormack and others raised the matter of engagement with Northern Ireland politicians. I look to the noble Lord, Lord Empey, as well, on this matter, and the noble Lord, Lord Dodds of Duncairn, touched upon it too in his submission to your Lordships at this stage. This is an important point. The Government have committed to ensuring that representatives of the Northern Ireland Executive are invited to be part of the United Kingdom delegation in meetings of the specialised and joint committees discussing Northern Ireland matters, which are also attended by the Irish Government. Also, when the Northern Ireland Executive was functioning, the then Foreign Secretary regularly met the First Minister and Deputy First Minister of Northern Ireland, along with the Secretary of State for Northern Ireland, to discuss the protocol.

However, to reiterate the principal point, the point which brings this Bill before your Lordships’ House, the institutions are not functioning, and precisely because of the protocol. We will continue to engage, but the protocol has made things that bit more difficult.

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)

The Advocate-General will have had the opportunity to reflect on a previous day in Committee, when concerns about the single electricity market were raised. A key component is EU law, which is not in question. How does the Advocate-General anticipate that the joint regulatory system operating under our approach and that of the EU can operate if EU law cannot be interpreted?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, interpretation of foreign law is a matter with which all three jurisdictions in the United Kingdom are familiar. With the noble Lord’s leave, because my remit does not extend to the operation of the single electricity market, which, as he said, was touched upon by the noble Lord, Lord Hain, in an earlier group, I will defer to my noble friends on the Front Bench and will write to the noble Lord on that point. I am grateful to him for his forbearance.

I cannot properly address the possibly important proposition raised by the noble Lord, Lord Murphy of Torfaen, in his submission to your Lordships, anent having the Government of Ireland lead the European Union in terms of negotiations. That matter will have been heard by others in the Government and given appropriate significance. It is a novel proposition expressed with the noble Lord’s customary force. I am sure that the Government will look at it.

The noble Lords, Lord Dodds of Duncairn and Lord Empey, gave us the historical background and again laid emphasis which was valuable to us all regarding the importance of the cross-community aspect of the Belfast/Good Friday agreement. As I have said, briefly, the CJEU’s position has been identified as a major obstacle.

Your Lordships’ Committee heard something about the value to be given to polling; I think the noble Baroness, Lady Hoey, raised that as an earlier stage, contrasting polls with actual democratic exercises. However, I can say to the Committee that polling carried out by Queen’s University in Belfast has indicated that with people who have concerns about the operation of the protocol, the CJEU and its presence and status was identified as a significant problem.

Photo of Lord Pannick Lord Pannick Crossbench 6:15 pm, 7th November 2022

If the role of the court of justice is, as the Minister puts it, a major obstacle because of democratic deficit, as he describes it, can he please explain to the Committee why Clause 20(3) would give an express power to Ministers to make regulations which would provide for a role for the court of justice? Surely that is inconsistent with what he just said.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I am grateful to the noble Lord for raising the point. The Government have always anticipated that the United Kingdom courts will be the final arbiter. The clause to which the noble Lord just referred your Lordships provides for the creation of a reference mechanism, but United Kingdom law would ultimately prevail.

The noble Baroness, Lady Ritchie of Downpatrick, addressed us on Amendments 42 and 43A. I argue that those proposed new clauses are in some respects unnecessary and in some aspects of their drafting inappropriate. Article 14(b) of the protocol already requires the specialised committee to

“examine proposals concerning the implementation and application of this Protocol from the North-South Ministerial Council and North-South Implementation bodies set up under the 1998 Agreement”.

That is an appropriate and valuable role. We submit that, by contrast, the noble Baroness’s amendments would create a statutory obligation for the United Kingdom to support

“proposals relating to the regulation of goods made by the North/South Ministerial Council and other North-South implementation bodies”.

That would cede control over the United Kingdom Government’s stance in the joint committee to a council in which the Irish Government sit. We consider that that would be inappropriate. The Government already ensure that representatives from the Northern Ireland Executive, as I said, are invited to meetings of the joint committee which discusses specific Northern Ireland matters, and which is attended also by the Government of Ireland. Therefore, we submit that there is already ample opportunity for representations to be made at the joint committee from both north and south.

We submit that the aspects of new clauses obliging the Government to lay reports before Parliament are also unnecessary. The Government have committed already to lay Written Ministerial Statements in Parliament before and after each meeting of the joint committee, and already do so. We also provide explanatory memoranda on matters to be discussed at joint committee meetings.

There is a more fundamental objection yet. The Bill is designed to restore the balance across all three strands of the Belfast/Good Friday agreement. The analogy with the milking stool has already been made: the three legs are of equal importance. To further empower the north-south dimension to the comparative detriment of the east-west dimension, as the amendment would do, will, we submit, exacerbate the problems facing Northern Ireland and undermine that delicate balance of the Belfast/Good Friday agreement. In that spirit, I urge the noble Baroness to not move her amendments.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

Can I just ask the noble and learned Lord as a lawyer what he was meaning when he gave an explanation on Clause 20(3)? I may be very stupid, but I could not understand a word of it.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The noble and learned Baroness doubtless speaks rhetorically. I have the utmost respect for her intellect, as does the whole House. My position, which I sought to express, was that the clause will provide a mechanism by which a reference could be laid before the Court of Justice of the European Union, but that ultimately British law, in whatever of the three jurisdictions it is operating, will prevail over that. It is a reference procedure.

Photo of Lord Cormack Lord Cormack Conservative

I am following up what the noble and learned Baroness, Lady Butler-Sloss, just said. The implication of what my noble and learned friend said from the Dispatch Box is that there is nowhere at all for the European Court of Justice. Is it really a total sticking point in the negotiations? Can he tell me whether this is negotiable? If it is not, we are doubly wasting our time.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

With the utmost respect to my noble friend’s question, I do not feel I can go further from the Dispatch Box on what has taken place or what I consider likely to take place in negotiations from this point.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

Before I do, I say that, in response to an earlier point on which I undertook to write, I am notified from the Box that the matter of the single electricity market and the European Court of Justice’s jurisdiction is covered in a letter being sent to the noble Lord today.

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)

That gives me an opportunity to thank the Minister for his efficiency. I look forward to reading the instant letter that is on its way.

I have a point on Article 2 and the rights associated with it. I seek some reference from the Dispatch Box, because the concern that exists, as I understand it—and I am not a lawyer; that is my declared interest—is that the directives providing the rights under Article 2 are interpretive. Therefore, if there are changes to those founding rights—or updates, interpretations or case law—there needs to be a mechanism by which we will adopt that, otherwise those rights under Article 2 are not being upheld, as I understand it. But if under the Bill the court is prohibited from having that role, what will be the mechanism while we interpret those European directives, which are protected under Article 2?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, the courts of the United Kingdom are fully competent to interpret and apply the law. The Government’s intention is that the laws of the United Kingdom should prevail and that the Court of Justice of the European Union should not henceforth have a role, unless a reference is made to it.

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

In relation to the European Court of Justice and access for the people and businesses of Northern Ireland to the EU single market, how will that be facilitated if there is no ECJ? It has legislative control there.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I think this perhaps overlaps with the point that the noble Lord, Lord Purvis of Tweed, raised, but I reiterate our commitment to Article 2. That will be covered in a letter we are presently framing to the noble Baroness. At an earlier stage, she raised the point and gave the Government until the commencement of Report to furnish her with an answer. That answer is now being drafted.

There is a Clause 20 stand part notice. I will summarise what I have said. This clause allows for the proper functioning of domestic court proceedings following the removal of the domestic effect of CJEU jurisdiction under Clause 13. Domestic courts will no longer be bound by CJEU principles or decisions when considering matters relating to the protocol. I emphasise that restoration of these democratic institutions is what we seek to accomplish. Subsection (3) provides a further power to make new provision in connection with this. Regulations made under this power could set out how the UK courts are to regard CJEU jurisprudence or provide a procedure to refer questions of interpretation of EU law to the CJEU if a domestic court considers it necessary to conclude proceedings. The clause is important to ensure that the Government can provide legal and judicial certainty for domestic courts considering proceedings relating to the protocol without being subject to CJEU jurisdiction, in line with the general principles of the Bill. For those reasons, I recommend that the clause stand part of the Bill.

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

My Lords, I thank the Minister—not least because, as a fellow Scot, he pronounces my name correctly. The constant repetition of “Baroness Sooty” at the beginning was very pointed. Unfortunately, the rest of his reply was somewhat disappointing. However, I am very pleased that he now has on record that the pronunciation is Suttie, not Sooty.

This was a very interesting debate. It split into two distinct sections. There was a powerful debate about the negotiations taking place in Northern Ireland. The noble Lords, Lord Murphy and Lord Cormack, expressed the frustration that many of us feel, that this has to be done at the highest possible level. When the Prime Minister returns, I agree that he must go to Northern Ireland. I am sure that we will return to these matters on the Statement that we expect later this week, perhaps tomorrow or on Wednesday, where we can look at these issues in more detail. The points are very relevant, and there were some extremely good speeches.

The second major concern is around Clause 20. I listened carefully to what the Minister said, but it seems very unclear to me how the clause will protect Northern Ireland businesses, especially those that work north-south, and the single market in the future. I did not feel that we got an adequate reply to that.

The noble Lord, Lord Dodds, and his DUP colleagues raised the important point about consent. That is part of the wider principle of how we make sure that Northern Ireland politicians feel that they are involved and included in this process.

This was a probing amendment. The wording is not necessarily right. However, we should look at this again on Report, perhaps in a broader amendment on the general principle of consent. We would want to look at exactly how that was worded. None the less, on the basis that we may return to it on Report, I beg leave to withdraw my amendment.

Amendment 40 withdrawn.

Amendments 41 to 41A not moved.

Clause 20 agreed.

Amendments 42 to 43A not moved.