My Lords, in moving Amendment 3 I wish also to speak to Amendments 157 and 177, standing in my name and those of the noble Baronesses, Lady Ritchie, Lady Altmann and Lady Suttie, for whose support I am most grateful. I spoke on this Bill at Second Reading and set out my fundamental objections to it then. In particular, along with a clear majority in this House, I totally rejected Part 5, which deliberately and cynically drives a coach and horses through the UK’s respect for the rule of law. Not only that, it drives that same coach and horses through the protections we need for the Good Friday/Belfast agreement that successfully brought an end to most of the Troubles, which had blighted life in Northern Ireland since the 1960s.
In that Second Reading debate and in the Committee stage debate on the Trade Bill, I put on the record of this House the horror and disbelief felt well beyond the shores of this United Kingdom. The most striking reaction was that in the United States, where the current President’s Northern Ireland envoy—his former chief of staff—agreed fundamentally with their rivals in the Democratic party that they cannot do any trade deal with the UK if the UK acts against the Good Friday agreement. That is exactly what is happening
here in this Bill. It is a legal document that works against the peace agreement for Northern Ireland. In proposing this, the Government have pulled off a spectacular feat in uniting Republicans and Democrats at a time when they have never been more divided. This, of course, is not a feat but a spectacular own goal, even by the standards of this Prime Minister and this Government.
Since I last spoke, the front-runner in the US presidential election has made his position even clearer, in case people were not listening the first time. I want to add to the record of the House the relevant lines from his policy paper, Joe Biden, Irish-America and Ireland, published on 18 October: Joe Biden
“will support active US engagement to advance the Northern Ireland peace process”
and will ensure that there will be
“no US-UK trade deal if the implementation of Brexit imperils the Good Friday agreement.”
There is nothing subtle here. The front-runner to be President of the United States does not like what he sees as this Government seek to implement Brexit. He is sending a strong warning to us, and we in this House have it in our power, through this Bill, to force the Government to change course.
I am sad to note that the Government’s weak and pathetic defences include the wholly spurious argument that this Bill actually protects the Belfast/Good Friday agreement. Words such as “consent” are thrown about in a misleading way—to put it charitably—in order to create an impression that the purpose of these clauses is to protect all those who brought about the peace agreement. Let us look at all those who did that.
First and foremost, there are the people of Northern Ireland. They voted overwhelmingly for the agreement in 1998 and voted firmly against Brexit in 2016. They went on to vote overwhelmingly for parties opposed to Brexit in last December’s parliamentary election. Secondly, there are the political parties themselves. The majority of parties, representing the majority of the people of Northern Ireland, are opposed to this Bill. Thirdly, the Irish Government, the UK Government’s co-guarantor of our peace process, are opposed to this Bill. Fourthly, the United States, which provided the broker for the agreement in Senator Mitchell and has supported it ever since, is unanimous in its opposition, whatever the result of the forthcoming presidential election. Fifthly, the European Union, which backed up the agreement through PEACE funding and through the openness of the single market, is clear that the Bill is in breach of the Protocol on Ireland/Northern Ireland.
Not one of these groups supports what the Government are attempting through this Bill, so whose consent exactly do the Government think they have? I have been racking my brains to think of anyone, but all I have come up with are the Brexit extremists in the Conservative party and the most Brexit-obsessed end of one political party in Northern Ireland, the DUP—that is it. It has now emerged that both Brexiteer and Unionist-sympathising MPs were, late last year, promised an opportunity to address their concerns about the protocol in order to persuade them to pass the European Union (Withdrawal) Bill into law. It therefore seems most probable that No. 10 always had a step like this
in mind, even at the very time of signing the withdrawal agreement. So much for the British Government negotiating in good faith.
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The rebel MPs in question continue to urge that Boris Johnson should ditch the Northern Ireland protocol, whether there is a trade deal or not. It is a matter of speculation whether the Prime Minister’s sponsorship of the current United Kingdom Internal Market Bill reflects an anticipation of a no trade deal outcome to the current negotiations with the EU or is a tactical ploy to dissuade it from insisting on a level playing field if Britain is to have tariff-free access to the EU single market. Seeking to secure a trade agreement by threatening to break the terms of a recent treaty seems an odd way to win the trust of a trading partner, and, as the biggest integrated market in the world, the EU is unlikely to yield to bullying threats from No. 10.
The European Commission, which has a mandate from member states’ Governments, including the Republic of Ireland, rightly regards this draft legislation as a breach of international law and has begun proceedings at the European Court of Justice. Unsurprisingly, the Prime Minister’s concession that the Commons must approve the controversial plans at a later date has made no difference to the objections of Brussels to his plan to renege on that agreement.
Yet the Government continue to defend the indefensible. They also claim that these amendments would be “superfluous”, and therefore unnecessary, as the Government’s commitment to the Belfast/Good Friday agreement is clear. I am afraid that the Government’s commitment to the agreement is a million miles from clear. Instead, they are using it—a fragile peace agreement that has saved lives for over 20 years now—as a bargaining chip in the belief that they can gain some short-term advantage in the negotiations with the EU.
The changes introduced by the Bill do not in fact amount to just a “specific and limited” adjustment made in the light of, for example, unforeseen circumstances. The purpose of the Irish border protocol is to ensure that the customs and regulatory alignment between the Republic of Ireland and Northern Ireland, which has underpinned an all-island-of-Ireland economy and is necessary to avoid a harsh border on the island, remains in place, even if there is no trade deal after 1 January. The reason this is so vital is that these questions do not relate only to trade; in order to give practical effect to the identity provisions of the Belfast/Good Friday agreement on the entitlement to identify as British, Irish or both, it is essential that the customs border, removed by the EU single market from 1 January 1993, should not return.
UK membership of the EU facilitated the delivery of the agreement in a manner which respected both communities. It was the Johnson Government’s choice of a hard Brexit which has brought about the need for a border in the Irish Sea, to avoid a hard border on the island of Ireland. The land border is 310 miles long, with over 200 crossing points, 110 million people crossing annually and up to 30,000 crossing daily for work. The Northern Ireland Statistics and Research
Agency estimates that two-thirds of Northern Ireland-Republic of Ireland trade is linked to cross-border supply chains.
In view of the potential consequences for increasing the tensions within Northern Ireland/Irish border communities, it is chilling to note that Clause 47 explicitly disapplies Section 6(1) of the Human Rights Act, which requires public authorities to act in a way that is compatible with the European Convention on Human Rights. This means that regulations made under these clauses cannot be struck down on the grounds of human rights, as they normally could be as secondary legislation.
The Government are now claiming that the deal they made with the EU in 2019 was “legally ambiguous” and that Northern Ireland would be isolated from the UK—something which they say, implausibly, was unforeseen last year. We need to ensure that these objectionable measures to disapply the protocol, which were not included in the Conservative manifesto and are in conflict with Parliament’s approval of the withdrawal agreement, are voted down in your Lordships’ House.
To those who want to defeat these amendments by arguing that they are superfluous and appealing to this House to “trust us”, I respond: “We can’t trust you; we don’t trust you; you’ve proved, sadly, why we can’t trust you.”
Of course, the provisions of the present Bill, as amended by the Government in the House of Commons, do indeed propose to break international law in specific ways. For example, they allow the UK Government to break the protocol to waive the requirement for export declarations from Northern Ireland to Great Britain. Ministers can also decide whether goods moving from Great Britain to Northern Ireland need border checks and can curtail the scope of EU state aid rules that could otherwise potentially apply in the UK through the protocol.
State aid is an important and complex area. It appears that the Government are trying to pull back from the relevant provisions in the protocol because they were apparently warned by civil servants earlier this year that these could reach back into the rest of the UK. Nevertheless, according to the Financial Times of 14 September, the recent trade agreement with Japan commits the UK to tougher restrictions on state aid than the Government are willing to offer to the EU. Products from Northern Ireland produced to EU standards will still be covered, as there is already an existing deal between the EU and Japan. There may, however, be potential conflicts between future free trade agreements entered into by the UK with other countries and access for products from Northern Ireland.
There have also been plans by the Government to use a future finance Bill to overcome another aspect of the protocol, covering payment of tariffs on goods entering Northern Ireland, which would otherwise be necessary under the withdrawal agreement.
The EU has been seeking common high standards in return for tariff-free access, with legal guarantees that neither side will seek an unfair competitive advantage. The UK has in the past been supportive of the EU state aid regime, but the Government announced on 9 September that after 1 January the UK would follow
the relatively light WTO anti-subsidy rules and would not announce details of its new regime until 2021—in itself seen as a provocation by EU negotiators.
The precise impact of the United Kingdom Internal Market Bill will of course depend on the outcome of the UK-EU trade talks, which have themselves been thrown into doubt by the proposals in this Bill. The Government are claiming that these powers are just a safety net. However, there is nothing in the Bill which limits the use of this legislation to circumstances where there is no trade deal.
The Prime Minister should abide by the terms of the withdrawal agreement and use the forum which was set up under it—namely, the joint committee for the protocol on Ireland/Northern Ireland, which is co-chaired by Michael Gove for the UK and Maroš Šefčovič for the EU—to resolve the outstanding issues on the movement of goods between Great Britain and Northern Ireland after 1 January 2021. In other words, there is a mechanism to deal with some of the issues that arise from the protocol in respect of trade across the Irish Sea.
Amendments 3, 157 and 177 therefore effectively ensure that this Bill cannot come into force unless the full provisions of both the Irish protocol and the Good Friday agreement remain intact. Even if the Government listen to the clamour and remove Part 5, the amendments seek to add much-needed protections which the Bill could really benefit from. They bind the Government to fully respect the Belfast/Good Friday agreement, the withdrawal agreement and the protocol on Ireland and Northern Ireland.
The amendments therefore provide much-needed safeguards for the protection of two international agreements that the United Kingdom has entered into and ratified freely—namely, the Belfast/Good Friday agreement and the Northern Ireland protocol within the EU withdrawal agreement—and with them continued peace and security for the people of Northern Ireland. I urge your Lordships’ House to support these amendments, and so important are they that I will seek to discuss with colleagues dividing on Report.