My Lords, I am totally opposed to this Bill. I do not like the idea of “excluded” provisions in it, with this meaning that they would no longer apply in domestic law. These would include provisions dealing with customs and movement of goods between Great Britain and Northern Ireland, state aid and the jurisdiction of the European Court of Justice over the protocol. The Bill would give Ministers delegated powers to change which parts of the protocol would be “excluded provision” in domestic law. They would also have delegated powers to make new law in connection with the protocol, such as on the movement and regulation of goods. The wide scope of these powers has been criticised by our House of Lords Delegated Powers Committee, which has recommended that many of them be removed from the Bill.
The Government have argued that the Bill is needed because the protocol is failing to achieve its objectives and has led to disruption to the economy and challenges
to political stability in Northern Ireland. They say that discussions with the EU over many months have not resulted in any agreement to change the protocol.
In proceedings in the other place, Simon Hoare, chairman of the Northern Ireland Affairs Committee, said that the Office of Speaker’s Counsel had provided a legal opinion to his committee that
“raises enormous concerns about this Bill’s legality”.
He said that the Bill was based on arguments that were
“flimsy at best and irrational at worst”
and that the Bill risked “economically harmful retaliation” and
“shredding our reputation as a guardian of international law.”
Julian Smith, a former Northern Ireland Secretary, feared that the Bill was
“a kind of displacement activity from the core task of doing whatever we can to negotiate a better protocol deal”.
He said that it risked
“creating an impression to Unionism that a black-and-white solution is available when the reality is that … compromise will ultimately be needed”.
At the same time, he feared the Bill risked “toxifying further” discussions with the EU as well as
“prolonging instability for Northern Ireland business, not to mention putting the whole of the UK at risk of trade and tariff reprisals”.—[Official Report, Commons, 27/6/22; cols. 55-70.]
At the heart of the NIP Bill is the interpretation of the 1998 Belfast/Good Friday agreement by the UK Government. While it seems to some that constructive ambiguity is the most essential feature of that 1998 agreement, this approach is much harder to apply to the issues arising from Brexit. What the UK Government have to face as a consequence of leaving the single market is a choice as to where EU checks and controls on the movement of goods should apply.
The Northern Ireland protocol, signed in January 2020 by the EU and the UK Government, was a compromise that followed lengthy and detailed negotiations which had produced no better option. Finding a realistic and practical way ahead now depends on being able to identify the real problems that need to be addressed, taking account of the constitutional position of Northern Ireland and understanding how the present real difficulties relating to this developed.
The NIP Bill is said to be essential because unionist opposition to the protocol is preventing the operation of the institutions created under the Good Friday agreement. However, the issue of the checks and controls on goods moving from Great Britain to Northern Ireland was known and understood when the protocol was adopted. The UK Government have given contradictory signals about that issue. Unionists claim they were promised unfettered access for goods moving from Great Britain to Northern Ireland, but there is no way that any such promise could be reconciled either with the protocol itself or with the agreements reached in December 2020 on how it would be applied. Hence, I fear the UK Government have clearly contributed to the sense of grievance strongly felt by many unionists over the protocol.
In claiming to address the issue of unionist disengagement through the NIP Bill, the UK Government have in my view adopted a one-sided analysis of the Good Friday agreement. While arguing that the Bill is needed to uphold that agreement, the solution it seeks to impose does not take into account the views of the majority of the people in Northern Ireland who are not opposed to the protocol, nor would it have the agreement of the EU or the Irish Republic Government.
The EU made significant concessions in 2021 to try to make progress in sorting out the problems arising from the protocol for the UK. These included less onerous checks on lorries transporting different food products. A business importing products of animal origin into Northern Ireland from Great Britain will also no longer be subject to the same level of checks and controls. Certain products that are generally prohibited from import into the EU will now be allowed to be imported into Northern Ireland from Great Britain, subject to them carrying certificates for which specific models will be provided. A Northern Ireland business buying goods from Great Britain will have a much simpler process of customs clearance. A smaller Northern Ireland business importing wood and other raw materials from the UK will have much simpler customs formalities. Food manufacturers and retailers exporting from the UK to Northern Ireland will also have simpler or no customs formalities. Finally, British wholesalers of medicines will be able to continue to supply Northern Ireland from the current British base without relocating infrastructure. I am glad to read that protocol negotiations have resumed and hope that the Government really take on board these concessions.
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