My Lords, I support this proposal and do so conscious of the fact that, listening to some of the voices from Northern Ireland we have heard today, I am being asked to decide how I should approach the issue on the basis of sympathy for the way in which some of the citizens of Northern Ireland—those represented here—feel they have been dealt with by the British Government in the context of the whole negotiation relating to the EU, the GB and Brexit. I remind myself, though, that this is not a matter of sympathy. I spent a lot of my professional life having to decide cases where, if I could, I would have found the other way. But if the law required me to find a particular way, whether I liked it or not I was required to do so, so I did. What we are dealing with here is a treaty between the United Kingdom and the EU, not between the EU and Northern Ireland. I am sorry to say that, but the issue I am addressing is the treaty between our country and the EU.
Can I just get rid of Clause 1? It is a modern and unwelcome phenomenon. If you look at it, it says nothing. It is just a piece of PR, not legislation at all. We have too many Bills that include pieces of PR which do not take the legislation any further, and that is why I object to it. We should not have clauses in Bills that say, “This is a jolly good idea. This is what we’re going to do”, but more important are Clauses 2 and 3.
There have been criticisms made by the Advocate-General of the necessity argument that has been so thrown at him by, among others, the Constitution Committee. I know this has been said before, but I remind the House that necessity is not available, as it
“may not be invoked by a State as a ground for precluding wrongfulness if”
the state in question has contributed to—not caused—“the situation of necessity”. Well, we have. We march into the negotiation and sign the agreement. We broadcast the agreement as having got Brexit done, for political reasons. We do not look at the consequences to, among other places, Northern Ireland—and we have not looked at it. There were voices in Northern Ireland who, to my memory, were saying, “This is a very dangerous step to be taking.” We either did not look at it or, worse, looked at it and thought “It doesn’t matter; we will get Brexit done.”
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That argument, I am afraid, leaves us in this position. We are now seeking to go back on an agreement we entered into because now we are taking a different view. We do not think getting Brexit done matters so much because we have got it done, so there cannot be an argument about that. We are now looking for some other solution.
The solution to this problem is Article 16. I listened very carefully to the way in which the Advocate-General sought to answer the questions that I and others posed to him. There was the “democratic deficit”. Other explanations given included the implementation and the confidence of the community of the unionists in Northern Ireland. The argument overlooks what Article 16 actually makes provision for. The provision is that if we are concerned as a country—we should be and, having listened to the arguments that I have heard from Northern Ireland this evening, I see why—then we can address the effects of
“serious economic, societal or environmental difficulties”
or “diversion of trade”. If there is a democratic deficit, that is a major societal problem. The power to address it is there in Article 16.
I suspect that the Advocate-General has said to clients in his professional life, “I am sorry, Mr Smith, but you haven’t a feather to fly with”—I have told my clients that on occasion and they have not been happy—but I am afraid that, in the argument that has been put forward by him on behalf of the Government, there is not a feather to fly with. He will forgive me for saying so. For that very simple reason, I take the view that the proposals in Clauses 2 and 3 taken together demonstrate unlawfulness. It does not matter what I think; the Constitution Committee and the House think so.
I am truly sympathetic with the problem of a democratic deficit. I was born in a different country—I was born in a colony too—so I understand what it means.
However, that is not an answer to the unlawfulness of these clauses and therefore not an answer to the proposal we are making that they should be removed from the Bill.