My Lords, I rise to support the noble Lord, Lord Leigh, but, before doing so, I repeat what I said the other day: I feel extreme discomfort about the extensive reliance on Henry VIII clauses in this legislation. I sit near enough to the Convenor to almost feel partly convened on the issue of Henry VIII
legislation: he and the noble Viscount, Lord Hailsham, did suggest how this particularly egregious example of it could be constrained a little. However, I think neither was here when I posed the question of what the structural alternative was, in the context of negotiations, to relying on Henry VIII legislation. I still await a satisfactory answer to that question.
To return to the point made by the noble Lord, Lord Leigh, I share an interest with him in the EIS, because I was the Secretary of State who introduced them. I had forgotten that I was until he reminded me. Indeed, slightly earlier, when I was invited to speak on the 25th anniversary of their formation, I found that I was the warm-up act for Mike Yarwood at that event. But they are important and have been useful. They, at present, will cease under EU legislation unless that EU legislation ceases to apply in this country.
I want to make a general point, which I made earlier: the protocol is intrinsically temporary under European law. The Europeans themselves said, while we were negotiating the withdrawal agreement, that they could not, under Article 50, enter into a permanent relationship with the United Kingdom. Any arrangements reached under that agreement could only be temporary and transitional. Consequently, the protocol is transitional and temporary and not permanent. Indeed, in Mrs May’s protocol, it specifically said in the recital that the withdrawal Act, which is based on Article 50, does not aim to establish a permanent future relationship between the EU and the UK.
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Subsequently, the noble Lord, Lord Pannick, wrote in a letter to the Times that
“the Protocol on Ireland/Northern Ireland states that the objective of the withdrawal agreement ‘is not to establish a permanent relationship between the Union and the UK’. If, therefore, the UK and the EU were unable to reach an agreement on Northern Ireland/Ireland, despite good faith negotiations … the UK would be entitled to terminate the withdrawal agreement under Article 62 of the Vienna convention on the Law of Treaties.”
It may be said that the final version did not include the recital that referred to Article 50. But it is still negotiated under Article 50. It still lacks any legal basis under Article 50. It is still temporary and transitional under Article 50. Therefore, if the noble Lord, Lord Pannick, is to be believed, it can be repudiated if, after good-faith negotiations, we cannot reach a satisfactory alternative.
Moreover, the final treaty omits not only the recital but the phrase that was in the original protocol but is not in the final one, that the provisions of the protocol shall apply
“unless and until they are superseded by a subsequent agreement.”
So it no longer contains that claim to permanence which the original protocol negotiated by Mrs May did.
So it is very clear that the original approach laid down in Article 50 was that you could enter into temporary and transitional arrangements which were necessary to ensure that, in case there was no final agreement, no subsequent TCA, there would be some appropriate arrangements for the Northern Ireland border. It was expected that if subsequently they could not enter into negotiations until they had completed the withdrawal agreement under Article 50, under the
TCA that would deal with such things as subsidy arrangements. Largely, it did deal with such things as subsidy arrangements, and they should not be dealt with under a temporary protocol which ceases to have any validity if, after good-faith negotiations, we fail to reach an agreement. We should then repudiate it, accepting the advice of the noble Lord, Lord Pannick.