My Lords, I rise to support the amendments standing in my name in group 6, which all seek to protect the operation of Article 2 of the protocol. There is much that is highly contentious about the Bill that we are considering, but I hope that there is at least one issue that is not controversial: that fundamental human rights should not be undermined by this Bill. As my noble friends Lady Kennedy and Lady Goudie both argued in their powerful speeches at Second Reading, they are too fundamental to the Northern Ireland peace process to risk that happening.
The purpose of Article 2 is quite clear: it is to protect the rights that those negotiating the Belfast/Good Friday agreement identified as the basis for moving Northern Ireland forward. The fear that Article 2 addressed was that these rights were underpinned by European Union law, and that that underpinning could be weakened, and in some cases destroyed, when the UK left the EU. The operation of Article 2 has never been regarded as controversial; indeed, when the Government identified the list of controversial issues in the protocol, Article 2 was explicitly identified as uncontroversial. So far as I am aware, no unionist politician—and in fact the noble Lord, Lord McCrea, referred to Article 2 earlier in a previous debate—has ever tried to argue that the operation of Article 2 is a problem for them, whatever other problems they consider the protocol to give rise to.
The Government themselves appear to have recognised the importance of Article 2 in Clause 15(3) of the Bill, which provides that the powers given to Ministers in that clause cannot be used to repeal Article 2. However, welcome as that protection in Clause 15(3) is, it does not deal with the problem. First, it does not apply to the vast panoply of ministerial powers granted by other clauses. Secondly, even regarding the limits it places on the exercise of ministerial powers under Clause 15, it only prevents Article 2 ceasing to have effect, not a weakening of Article 2 that falls short of repeal. Thirdly, it does not protect Article 2 from other provisions of the Bill that limit its scope immediately the Bill is brought into force and which are not dependent on the exercise of delegated powers to Ministers.
What is the problem and why are a significant number of amendments needed to protect Article 2? Simply put, the effectiveness of Article 2 in practice depends on other provisions of the withdrawal agreement and the protocol threatened by the Bill. To use an analogy, having a chair to sit on is pointless if all its legs are sawn off; it ceases to function as a chair. If the necessary supports for Article 2 are removed, it will cease to function. If the Bill is passed in its current form, it appears it will cut off one crucial support immediately, as well as enabling Ministers to remove all the other supports as they please.
I turn to the detail. I will identify the key questions which I expect the Minister to answer immediately or at least before Report; immediately following this debate, I will forward to him the text of the questions to which I seek answers.
When read together with Article 13 of the protocol, Article 2 requires that Northern Ireland equality law keep pace with EU equality law. This is the dynamic
alignment requirement. My first question is this: may a Minister by regulation under Clause 14(4) provide that Article 13(3) of the protocol is disapplied in relation to Article 2? If so, can this power be used to prevent the equality directives in Annexe 1 being subject to dynamic alignment? Amendment 23A is relevant in this regard.
Clause 14(4) provides that:
“A Minister of the Crown may, by regulations, make any provision which the Minister considers appropriate in connection with any provision of the Northern Ireland Protocol and other parts of the EU withdrawal agreement to which this section relates.”
My second question is: does this mean that a Minister could, by regulation, provide that the provisions of the withdrawal agreement that enable disputes relating to Article 2 to go to international arbitration if they cannot otherwise be resolved—Articles 170 to 181 of the withdrawal agreement—may be disapplied with regard to disputes concerning Article 2? Amendment 23A is relevant in that regard.
Clause 15(2) provides that:
“A Minister of the Crown may, by regulations, provide for any provision of the Northern Ireland Protocol or any related provision of the EU withdrawal agreement … to become excluded provision”.
My third question is: does this empower a Minister to disapply Article 5 of the withdrawal agreement, which requires that the provision of the agreement be applied in good faith, in so far as it applies to Article 2 of the protocol? Amendment 31A is relevant in this case.
Clause 15(2) also appears to permit Ministers to designate Article 14(c) of the protocol as excluded provision. My fourth question is: does Clause 15(2) permit Ministers to limit the current powers of the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission to refer matters to the specialist committee under Article 14(c) of the protocol? In this regard, Amendment 31A is relevant.
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It is worth pointing out that the equality commission and the human rights commission have been given mandatory responsibility under the dedicated mechanism to deal with Article 2. Northern Ireland courts are currently under an obligation under Article 2 to interpret the equality directives listed in Annex 1, in conformity with the existing and future jurisprudence of the European Court of Justice. Clause 20(2) provides that in proceedings relating to the protocol, a court or tribunal
“is not bound by any principles laid down, or any decisions made, on or after the day on which this section comes into force by the European Court”.
Does this mean that the obligation to interpret the equality directives in conformity with the existing and future jurisprudence of the European Court of Justice ends on the day this section enters into force? In this regard, Amendments 41ZA and 41A are the relevant amendments.
The role of the European Court of Justice is also an issue in Clause 13. Clause 13(1) provides that any provision of the protocol or withdrawal agreement is an excluded provision so far as it confers jurisdiction on the CJEU in relation to the protocol or related provisions of the withdrawal agreement. Article 174 of
the withdrawal agreement provides that disputes that go to international arbitration and raise issues of EU law must be referred to the European Court of Justice. This will be relevant as regards disputes regarding Article 2 of the protocol, because the Annex 2 directives apply as EU law. What is the effect of this provision on Article 174 of the withdrawal agreement? In this regard, Amendments 19A and 21A are relevant.
Clause 22(2)(d) of the Bill provides that:
“Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”
Does Clause 22(2)(d) enable the ministerial powers provided by Clause 9 or 10 to override the application of Section 7A of the withdrawal agreement Act 2018 to Article 2? In this regard, Amendments 15A, 15B and 54A are the relevant amendments.
Since these questions are, in some cases, highly technical in their nature and as I have already referred to, I shall understand if the Minister is more comfortable writing to me subsequently, but I expect a detailed response to each of these questions at some point before Report. My last question, however, calls for an immediate answer. To the extent that the operation of Article 2 is adversely impacted by the Bill, resulting in the UK violating its obligations under the protocol and the withdrawal agreement, how on earth can this specific breach of international law be justified under the doctrine of necessity?
Therefore, it is unclear whether the Government intend to damage Article 2 or whether Article 2 is simply unintended collateral damage. I hope it is the latter and that the Government will agree to these amendments, or at least agree to bring forward their own amendments to deal with the problem. If, however, the Government see within their own case to refuse to do so, then the implication is clear: that damaging the operation of Article 2 is intentional. That would have serious consequences, for it would mean that the Government are willing to sacrifice a critically important part of the Belfast agreement in terms of its equality and human rights provisions.
I know that the Government are adamant that the 1998 agreement should be honoured in all its parts, and I fully comply with that. Now they have the opportunity to demonstrate that this commitment is sincerely meant. I hope tonight in your Lordships’ House and in subsequent correspondence to me, which I hope the Minister will place in the Library, that undertakings can be given that Article 2 is being protected at all costs.