My Lords, in responding to the regulations before us, it is easy to allow our attention to be drawn to the Irish Sea border and its implications
for trade and lose an important aspect of the bigger picture. We must always keep in mind that the reality of the border is a function of a more basic and underlying problem—the fact that, in some 300 areas, Northern Ireland is subject to laws made for us by the European Union. These laws create a different legal regime in Northern Ireland from that which obtains in GB.
The purpose of the border, regulated in part by these new Windsor regulations, is to protect the integrity of that different regime. This was arguably not particularly important to begin with because our laws were the same, but over time they have diverged, and will continue to diverge more and more. Since 1 January 2021, we have been subject to the gross indignity of having more than 700 laws made for and imposed on us by a foreign legislator. This is a problem not just for Northern Ireland but for the rest of the United Kingdom and the international community, for reasons I highlighted during the King’s Speech debate.
At the heart of international relations we find the doctrine of recognition and the principle that international relations depend on two states recognising each other. This amounts to each acknowledging and respecting the right of the other to govern itself across the extent of its territory. This is foundational, because it is only when two sovereign states afford each other this mutual respect that international relations can really happen.
To be sure, there are other important doctrines, such as the principle that agreements must be kept, but we cannot collapse international society into that principle, abstracted from the other conventions that make international agreements a possibility, otherwise a treaty to promote slavery or disfranchisement would be sacrosanct because it would rest upon an agreement between states. In reality, the impact and importance of pacta sunt servanda, first mentioned in the House by the noble Lord, Lord Kerr, in treaty-making assumes the basic integrity of the actors—sovereign states—between which those agreements are reached.
If we want to uphold the international society of states that is definitive of world order and upon which international law is based, we have to remember that valid treaties are not just whatever two parties agree. They are agreements made in a context that respects the norms and assumptions on the basis of which the peace and stability of the international arena depends.
For example, the United Nations Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations states:
“Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State”.
It also says:
“Nothing … shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”
and that:
“Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country”.
As I pointed out on 15 November:
“Lest there should be any doubt about the importance of these principles, the declaration also affirms:
‘The principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles’
and:
‘Where obligations arising under international agreements are in conflict with the obligations of Members of the United Nations under the Charter of the United Nations, the obligations under the Charter shall prevail’.
One of the most obvious ways in which a state, A, or a group of states, AB, can act in violation of the territorial integrity of another state, C, is to apply pressure for the right to make some of the laws over part of C, and to insist on the imposition of a customs border across C at the point at which their law ceases to have effect and the laws of C alone obtain. This is what the 27 member states of the European Union have decided to do to the United Kingdom, imposing laws made by a legislature in which we are not represented and imposing a border cutting the country in two”
different legal regimes and two different internal markets—
“requiring the construction of border control posts for its enforcement”.—[Official Report, 15/11/23; col. 524.]
The sense in which the border states of the EU refuse to recognise the territorial integrity of the UK is expressed eloquently through the full title of EU regulation 2023/1231, which is partly given effect by the regulations before us today. The said regulations are defined by the EU as:
“Regulation (EU) 2023/1231 of the European Parliament and of the Council of 14 June 2023 on specific rules relating to the entry into Northern Ireland from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes, machinery and certain vehicles operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals into Northern Ireland”.
It is quite extraordinary legislation when one thinks about it because, far from being a piece of legislation made by and for the 27 EU member states that also applies to Northern Ireland, this regulation applies only to the governance of one country—the UK, a country that is not in the EU—and the effect of that legislation is to divide that country into two.
In 2017, the United Kingdom Government suffered a catastrophic failure of statecraft of a kind we have not seen certainly since 1688. It has resulted in our country being divided into two different legal regimes and a customs border, with UK citizens on one side of the border disfranchised and no longer able to stand for election to make all the laws to which we are subject. It is quite extraordinary that we should have fallen so low that, rather than being the occasion for the UK to reassert itself, Brexit was the occasion for our complete humiliation. While it will come as no surprise to noble Lords to know that I disagreed profoundly with Mrs Thatcher on the Anglo-Irish agreement, I cannot imagine she would ever have contemplated a Brexit deal that not only failed to secure the departure of the whole United Kingdom from the EU but split the nation territorially in the process.
We are all familiar with the phrase, “When in a hole, stop digging”. In 2017, the then Government fell into the hole and since then every Government have kept digging. The time has come for a fundamentally different approach. The imperative for making it is not merely to help UK citizens living in Northern Ireland
or restoring the honour of the United Kingdom as a whole in the face of an extraordinary humiliation, but about upholding the fundamental foundational norms and assumptions on which the well-being of the international society of states depends. If one of the permanent members of the UN Security Council is unable to defend its territorial integrity in peace, what hope is there for the world?
There has been an alternative to the protocol since 2019, namely mutual enforcement. The EU decided not to go for this solution, but it is interesting to note that, in the context of expressing real concerns about the reasons for rejecting it, one of its authors, Professor Weiler, acknowledged that the alternative has been
“the introduction, however disguised, of a customs frontier within the UK”.
So it is not only unionists who are saying this; others are saying it too. He then poses a profound question. Let me say it again: the result of the EU decision not to run with mutual enforcement was
“the introduction, however disguised, of a customs frontier within the UK. But does anyone believe that this is a stable solution?”
Today’s debate has helped expose some of the disguise and has answered the question about whether anyone believes this is a stable, sustainable solution. The answer is an emphatic no. What we need is not a Government who table regulations such as those before us, so obediently and attentively to the EU’s bidding, but rather a Government who discharge their basic function in standing up for their people as a people and a Government who restore the dignity and territorial integrity of the United Kingdom. In contemplating this need, I continue to greatly rejoice that no Parliament can bind its successors.
5.45 pm