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Northern Ireland Protocol: First Treasury Counsel

Volume 822: debated on Thursday 9 June 2022

Commons Urgent Question

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Minister for the Cabinet Office to an Urgent Question in another place on the Northern Ireland protocol. The Statement is as follows:

“As the Foreign Secretary set out to the House on 17 May, to respond to the very grave and serious situation in Northern Ireland, the Government intend to bring forward legislation to fix the Northern Ireland protocol. As she also set out, the Government’s view is that such a course would be lawful in international law. In line with long-standing convention, we do not set out details of the internal deliberations regarding that view. But we will be setting out further detail about the Government’s legal position in due course.”

My Lords, this is a hugely important issue and I have to say it requires calm diplomacy rather than a rerun of the internal markets Bill debacle. Noble Lords will be aware of the reports that Sir James Eadie was specifically asked not to give a legal opinion on the compatibility with international law of the Government’s proposals, but instead to assume there is a respectable legal basis. I say to the noble Lord: does he understand the concern that Ministers opt not to ask the questions that they think they will not like the answer to?

I think we all understand and appreciate the Government’s long-standing position that internal legal advice is not published, but will the Minister give his personal assurance that Members of this House will have access to all the information that is needed whenever this Bill is brought forward? And can I ask that the Government urgently consider reviving the reading rooms process that was established during the Brexit process.

My Lords, I am grateful to the noble Baroness for stating at the outset that she is aware of the terms of the convention. We do not discuss legal advice, but we have set out clearly the Government’s view that this would be lawful in international law. To go further I fear would risk trenching upon that convention. In relation to the specific question about the reading room, I shall consult with colleagues to see whether or not that position will be returned to in relation to this Bill.

My Lords, if the noble and learned Lord had been in the previous debate, he would have heard of the serious concerns about our reputation around the world on this issue. He is also aware that his predecessor, in his letter of resignation, said that he was unable to reconcile his role as a law officer with the Prime Minister’s policy objectives. He said:

“I have endeavoured to identify a respectable argument”

on the basis of international law. We do not want “respectable arguments”; we want our reputation to be held in the world and we want law to be honoured. On the basis of the noble and learned Lord giving factual information about which he can say, have any MPs been given a draft text of the Bill to be consulted on?

I am not aware of that, but I would say that the Government abide by the convention that legal advice given to the Government is not disclosed, so I would be surprised if that had taken place.

My Lords, the Minister has stated the convention about not providing the advice the Government receives on legal matters. That is interesting, but it happens to be exactly contrary to what was said. Perhaps if he looks at Hansard he will see that, when this matter was debated shortly before the Recess, the Government spokesman said quite categorically that the Government would be bringing forward a separate document setting out the basis for the legal case. He has just contradicted that.

I have a second question. Could the Minister, perhaps just now, cite word by word any part of the Northern Ireland protocol that authorises either party to it, the European Union or the United Kingdom, to unilaterally depart from its terms. Could he please cite that?

My Lords, the terms of the protocol specifically anticipate that it will change in line with developments. I refer the noble Lord to Articles 13(8) and 16 in that regard.

My Lords, one of the themes of the debate we have just had was that if we are to be looked upon as a moral leader in the world, it is completely wrong to abrogate treaties that we have signed, particularly when the same Government who signed, negotiated and commended the treaty to both Houses then wish to abrogate it. Is my noble and learned friend aware that there is deep disquiet among many Conservatives in both Houses at what is being proposed?

My Lords, to rehearse the answer I gave to the previous question, the protocol itself comprehends the possibility of its amendment, depending on circumstances as they arise.

My Lords, there is deep disquiet in Northern Ireland about undermining the very institutions of the Good Friday agreement. I come from a different position from that of the DUP, but I have to say that a majority of people in the Northern Ireland Assembly want the protocol to remain, with mitigations. What exact consultations took place between the Prime Minister and the First Treasury Counsel in relation to this new legislation, which is considered a breach of international law?

My Lords, first, the Government’s intention is to protect the operation of the protocol. As the noble Baroness is aware, the Northern Ireland Executive has not been re-formed. It will not be re-formed in the face of such disquiet as currently exists. The Government intend that the protocol should be protected by the measures that they will bring forward, and they will bring forward simultaneously a statement of their legal position.

My Lords, I was present on the occasion to which the noble Lord, Lord Hannay, referred, and I expressed an interest in the opinion apparently provided by the Attorney-General to the Government. We were assured that that opinion, or something similar, would be made available. If the noble and learned Lord checks Hansard, he will find that to be the case. But we should not really be surprised, because this is a Government of recidivists. They are very happy to offer the alternative of breaching the law. Indeed, they set out to do so in the internal markets Bill but had to retreat with their tail between their legs. The noble and learned Lord, like me, was reared in the Scottish legal tradition. He will remember his Roman law: pacta sunt servanda—promises ought to be kept. Why are the Government departing from this fundamental principle?

My Lords, pacts are indeed there to be kept: pacta sunt servanda. The Government are not departing from a legal principle; they are acting in good faith to preserve the protocol for the benefit of all communities within Northern Ireland.

My Lords, is the Minister aware that senior representatives of Sinn Féin were recently in this building, setting out their vision? At the very least, they put a case that I felt the Government should respond to—will the Minister care to do so now?

First, will the Minister consult the noble and learned Lord, Lord Keen of Elie, on his opinion of the legality of what the Government are now proposing? I really recommend that he does so. Secondly, does the Minister not see that there is a clear distinction between changing the protocol under its terms and Britain legislating independently to breach an international treaty?

My Lords, once again, the Government are confident in their position that what they propose will not breach international law

My Lords, I sympathise with my noble and learned friend the Minister, but I echo the concerns raised by my noble friend Lord Cormack and will ask a brief question. When the Prime Minister insisted that there would not need to be any checks between Northern Ireland and the rest of Great Britain on goods entering Northern Ireland, where did he expect those checks to take place?

My Lords, the intention of the Government is to restore the situation envisaged at the framing of the protocol whereby equal importance was given to east-west and to north-south transactions.

My Lords, the Minister referred to the absence of the Executive. It was expected that the publication of the Bill would be an incentive to create the Executive, but I understand it is being reported that the DUP has said that the publication of the Bill will not make any difference; it wants to see it implemented. How many steps have to be taken?

My Lords, we are in contact with all shades of opinion in Northern Ireland, trying to move forward the position whereby the institutions of devolved government can be restored and the process of normalising relations between communities and between the United Kingdom and its international partners can proceed.