My Lords, I, too, am a member of the Sub-Committee on the Protocol on Ireland/Northern Ireland, under the excellent chairmanship of the noble Lord, Lord Jay.
The noble Lord, Lord Frost, has just demonstrated to us that he would not get an O-level in the constitutional law and practice of the United Kingdom. He told us that this unconstitutional Bill was drafted to strengthen the UK’s bargaining position with the EU. It is an attempt to bully the EU into making changes to the Northern Ireland protocol. In saying that, he of course concedes that the UK lacks bargaining power against the 27 other members of the union. The UK does not have a large enough shillelagh.
However, there are problems. The noble Lord, Lord Dodds of Duncairn, referred to the barriers to trade, while the noble Lord, Lord Godson, took the opportunity to praise Tony Blair for his understanding. On 9 June 2016, in the course of the referendum campaign, Tony Blair, speaking in Londonderry, said that a vote to leave would mean that the only alternative to controls on a land border
“would have to be checks between Northern Ireland and the rest of the UK”,
which, he added,
“would be plainly unacceptable as well.”
This was described by the then First Minister, Arlene Foster—then leader of the DUP—as “a deeply offensive scare story”, but it came true.
We are all familiar with what happened. In October 2019, Mr Johnson described his deal as
“a good arrangement … with the minimum possible bureaucratic consequences”.
This was in direct contradiction of a contemporaneous document drawn up by the Treasury, which warned that
“customs declarations and documentary and physical checks … will be highly disruptive to the NI economy.”
That was the advice he had received. But he advised traders to throw paperwork into the bin. Famously, he said:
“There will be no border down the Irish Sea—over my dead body.”
But there is, and he is politically no more.
The noble Lord, Lord Howard of Lympne, raised the point—the noble Lord, Lord Pannick, followed him—that there has been no attempt to trigger the dispute resolution mechanisms contained in Article 16. It would have forced the UK into detailed negotiations with the EU, not breaking the protocol but taking place within its architecture. Instead, the Government promoted Article 16 as though it were a nuclear threat that, if employed, would obliterate the protocol altogether.
In particular, the DUP and, as the noble Lord, Lord McCrea, told us, all other unionists were misled into believing that the protocol was everything—“Break the protocol”—and that triggering these unremarkable dispute resolution procedures would somehow end the virtual border in the Irish Sea. As a result, they continue to block a new Executive, perhaps hoping for a rerun of last May’s election when time runs out on 28 October. However, as the noble Lord, Lord Howell of Guildford, pointed out, there have been demographic changes. Indeed, the last opinion polling on 25 July in no way pointed to a resurgence in DUP or unionist support. The Alliance Party is on track to overhaul them.
Why has the agreed machinery of Article 16 not been used? What Boris Johnson agreed through the withdrawal agreement, of which the protocol is a part, was that any issue of EU law arising in Article 16 arbitration procedures should be decided by the European Court of Justice. The Conservative Party opposite has a completely irrational hatred for that court, despite UK advocates having historically the greatest degree of success of any EU country before its judges. Mr Johnson pushed this concession through Parliament with his majority because they did not understand what he had conceded. In all probability he did not understand it, either, but the noble Lords and noble Baronesses opposite strewed flowers in his way. But they do not have to pick up Johnson’s leavings by continuing with this mis-sold Bill which shames our country. They can start again.
Take the European Court of Justice. In a debate entitled “Brexit: Dispute Resolution and Enforcement”, I suggested that the Government should negotiate for
“a special chamber of the European Court of Justice”—
they have the power in their constitution to create one—with an equal number of UK and EU judges. As I said, it could deal with
“disputes arising out of the special circumstances of our leaving the EU”.—[Official Report, 17/10/18; col. 466.]
I developed that argument at the time and will not repeat it, but that solution would deal with the issue that the CJEU is the court of one of the parties to a dispute.
If the current Prime Minister wants to make her mark in history in the limited time available to her, she should withdraw this ignominious Bill and get down to sensible negotiations immediately. Trade barriers and the democratic deficit are genuine problems that must be resolved by agreement fashioned with good will. In the past two weeks, her Government appear to have been making a start.
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