My Lords, the Bill we are debating today is deeply flawed, on grounds of both practice and principle. Moreover, it is a completely
unnecessary piece of legislation, as anyone can see who takes the trouble to read the report of the Northern Ireland protocol sub-committee of your Lordships’ House, chaired by the noble Lord, Lord Jay of Ewelme, which was published just before the Summer Recess. That report makes it clear that, on the main issues dogging the implementation of the protocol—the need for a fast-track procedure and the safeguards protecting the EU’s single market in Northern Ireland for trade in agri-food products—the gap between the Commission’s and the UK’s positions is now very small. That seems to be the view of the Commission; is it that of the Government? If so, what is the rationale for this objectionable piece of legislation?
The practical flaws in this legislation are pretty obvious. It is said by the Government to be designed to bring the Commission to accept the UK’s version of the protocol. Has it had that effect? There have been no meaningful negotiations since February, so it does not seem to be working terribly well. Negotiations are now at last beginning; I noticed that the Minister described them as “technical contacts”, which was not terribly encouraging. I hope—we must all hope—that they succeed in bridging those rather narrow gaps that remain because, if the activation of the unilateral measures provided for in this Bill lead to retaliatory action by the EU, both Northern Ireland and the rest of the UK will be left worse off for an indefinite, open-ended period until another lot of negotiations begin.
It is also said by the Government that unilateral action is needed to safeguard the Good Friday agreement—an objective shared by every noble Lord who has spoken. But will this course of action be helpful or will it make things worse? The latter view seems to be that of the Irish and US Governments, the Commission, the non-unionist parties in Northern Ireland who hold a majority of seats in the Assembly and of most reasonably objective observers. Clearly, the views of the unionist community must be listened to with care, but the principal party on the unionist side of the Northern Ireland divide, the Democratic Unionist Party, actually bitterly opposed the Good Friday agreement, so may just possibly not be the best judge of what is now needed to safeguard it.
Then there are the considerations of principle against the course of action proposed. These are, if anything, even more compelling than the practical ones. We are being asked to approve unilaterally changing the protocol in a way for which there is no provision in the text negotiated and ratified by the Johnson Government, and which the manifesto that won the Government their majority in the other place said they were committed to implementing.
What then should we think of the so-called “doctrine of necessity” set out in an official document published in conjunction with the laying before Parliament of this Bill and purporting to provide the legal justification for the UK to unilaterally break the terms of the protocol? If the doctrine does exist—which I seriously question in anything like the circumstances of the Northern Ireland protocol—it presumably applies potentially to all the UK’s international commitments and obligations, ranging from the UN charter to Article 5 of the Atlantic alliance to every other commitment
entered into and ratified following parliamentary approval. That is absurd and extremely dangerous. The doctrine of necessity was the doctrine that President Putin applied when he invaded Ukraine and the doctrine to which President Xi would turn if he wished to use force against Taiwan. We should have nothing to do with a doctrine which is so clearly the very antithesis of the rules-based international order to which the Government continue to pay lip service while ignoring its implications.
Overall, this is an unnecessary Bill which, in its present form, will do more damage than good and which thus requires radical amendment or not to be pursued at all.
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