My Lords, I rise to speak to Amendments 2 and 6 in my name and support those in the name of the noble Baroness, Lady Chapman. As we start our customary, more-detailed consideration of legislation in Committee, I reflect on the point made by the noble Baroness, Lady Fox, who thought that we were preventing proper detailed scrutiny in a bullying way. However, I cannot see her in her place. Maybe she popped out. I look forward to her return to take part in the detailed consideration of the Bill.
I very much agree with the noble Baroness, Lady Chapman. I have considerable doubts about whether we will be able to legislate an agreement with the European Union. Fundamentally, we are tasked with an almost impossible job. I therefore agree that her amendment is a kind of security for this legislation: it does its best in making the Bill consistent with customary international law. We will also debate this on the next two groups. If we are to see a political agreement, what is the best way of legislating to allow that to be in place? I believe profoundly that this is not the way that it should be done. Nevertheless, if it is done this way, there should be some form of security area.
I very strongly agree with the noble Lord, Lord Kerr, that we should not pass legislation which is a clear breach of international law, as the Constitution Committee reported. Concern about government probity was highlighted earlier: if we have an amendment that relies on the Government themselves to exercise discretion on the exercise of powers, I have my doubts whether they would bring forward a clear view on that discretion. For example, under Amendment 70, the position of the former Paymaster-General in Committee in the Commons would have been that the condition would have been satisfied because talks had been exhausted. However, we now know that they have not been. That is not as a result of the Bill. Maybe the noble Lord, Lord Bew, is right. However, I suspect that if the talks were exhausted in July when we had the Bill in Committee in the Commons, and are not while we have it in Committee in the Lords, it is about the political basis. I am therefore not sure that the security arrangements would effectively be watertight.
My amendments, supported by my noble friend Lady Ludford, are straightforward. They are also part of a form of security that should be updated now, then continuously on the basis of these talks. As I mentioned earlier, the Commons was told in Committee that they
had been exhausted, but new life has now been breathed into them. The Government said previously that this was owing to EU intransigence. Now Minister Steve Baker tells readers of the Times at the weekend that the Government say that talks are progressing because he stretched out a hand of reconciliation. Setting aside the contradiction, the reality is that we should be provided with more information, from now on and going forward, on the level and content of these talks.
For example, the EU proposals in October 2021 themselves said that there should be changes to the structure of ongoing talks and of the relationship between the EU and the people and institutions of Northern Ireland. However, I have not seen the Government’s response—the alternative presented by them in those talks. That would inform not only the mood of this House but our ability to pass legislation that gives regulation-making powers over the structure of that. I know what the EU has proposed; I do not know what our Government have proposed. If we are to consider, believe and call out EU intransigence, that case is harder when we know what the EU has put on the table but do not know what the UK has. How on earth can we come to the conclusion that it is being intransigent in these talks when we in this Chamber are effectively blind?
Now I think I understand, fundamentally, the dilemma of the noble Lord, Lord Dodds. He argued for Brexit, the majority of the people in Northern Ireland voted against it. He argued against the protocol, but the majority of the UK and the Conservatives inflicted that on him. This is a difficult dilemma, but ultimately it will mean that Northern Ireland, one part of the UK, will remain in an economic area of another entity, the EU single market. The only sustainable way that that can ever be for the benefit of the people of all parts of the UK is with agreement with that other entity. You cannot unilaterally legislate to enforce on another entity when you have already accepted that we are part of that entity. It is just an impossibility, so there has to be agreement, and in order for us to do our job in this House we have to know what the UK is putting forward in those talks. I should not imagine that our amendments will present the Committee with much difficulty.