My Lords, the Government have proposed changes to the governance arrangements in the protocol involving the Court of Justice of the European Union. The court’s jurisdiction in settling disputes under the protocol is currently limited, of course, to those covered by the second sub-paragraph of Article 12(2), Article 5 and Articles 7 to 10 of the protocol. In other withdrawal agreement disputes, including those under Article 16, cases are ultimately resolved by arbitration, with a role for the court only where disputes raise questions of interpretation of EU law.
My Lords, is the Minister aware that he has created an impression that his position is softening on many of these issues? A German journalist asked me bluntly after the noble Lord’s 10 November Statement, “Is it true that Lord Frost is moving from his earlier position?” Would the noble Lord care to comment?
My Lords, the answer is “no”. We are trying to reach an agreement. That has always been our position; it was our position in July and it is now. I suggest that our friends in the EU do not interpret the reasonable tone that I usually use in my discussions with them as implying any softening in the substantive position.
My Lords, despite bordering four EU countries and being part of Schengen and the single market, with an excess of 120 bilateral agreements, Switzerland does not permit EU law to override Swiss law. Therefore, the ECJ cannot be the final arbiter of any dispute. As a third country, as the UK now is, can my noble friend reassure the House that there will be no role for the ECJ in Northern Ireland or across the UK and that the provisions of the trade and co-operation agreement will be interpreted in line with international law, including the 1969 Vienna Convention on the Law of Treaties, as agreed?
My Lords, my noble friend asks a very good question. I assure her that there is no role for the court of justice in the trade and co-operation agreement. There are provisions in that agreement which make it very clear that interpretations by one court cannot bind the courts of the other and that they are to be interpreted in line with the normal provisions of international law. That is 100% unambiguous. Regarding the withdrawal agreement and the protocol, we know that we have a problem. Most people would regard it as unusual for disputes between two parties to be solved in the court of one of the parties.
My Lords, the Minister baffled the House earlier with his answer to the question asked by the noble Baroness, Lady Chapman. He is now baffling the House again. The conceptual core of the protocol is that the EU agrees that Northern Ireland may remain in the single market. The necessary concomitant to that is that the ECJ must have a role. I agree that we should not be shocked by the Minister’s line. He told us in his speech in Oxford during October that difficulties with the protocol come not from the way that it is being implemented but from the way that it was constructed. Coming from its constructor, that could seem a curious statement, but that is what he said, and that is what he goes on saying.
If the Minister insists on attempting to remove the court of justice, which is central to the conceptual core of the protocol and the deal struck by him, he cannot do it under Article 16, because, as he has just explained, that is simply about trade safeguards. Under what powers would he do it? He has the powers by regulation under the withdrawal Act to act in a way that is consistent with Article 16 to act on trade measures, but he has no power to withdraw the court of justice. Are we back to primary legislation and a specific and limited breach of the treaty and international law? If so, I doubt that the House will agree.
My Lords, I cannot believe that I have really baffled the noble Lord, with his deep knowledge of EU affairs that is much greater than mine. The Government will set out the basis on which we would use Article 16 if and when that eventuality arises. We hope that it will not, but obviously we will be clear when and if we reach that point. Of course, it is well understood that the court has a role as the final arbiter of EU law. We do not seek to change or challenge that. What is not working is the role of the court as the arbiter of disputes between the two parties, which is unusual.
My Lords, I am trying to follow the Minister’s answers as well, and with some difficulty. In answer to the question on the Northern Ireland protocol, he spoke about changing the arrangements. Does this mean that he is no longer arguing for removal of the court of justice’s jurisdiction over the European single market, which, if we are to keep no border in Ireland, must still apply in Northern Ireland? If we keep the border open, does he agree that he must accept some role for the court of justice?
My Lords, I cannot add very much to what I said earlier, which is that the EU defines the court of justice as the final arbiter of what EU law means. We do not challenge that and cannot do anything about it. For as long as EU laws apply in Northern Ireland, no doubt the court will continue to assert that right, but that is not the same as saying that it is reasonable for disputes to be settled in the court or for infraction processes to be launched by the Commission, as they already have been in this context. It is the settlement of disputes that is the difficulty.
The noble Lord just said that the role of the court is not working; as far as I am aware, the court has not yet been asked to adjudicate on anything in terms of the operation of the protocol. If that is correct, why was the Minister so prepared to sign up to a role for the court in 2019, when he is now implying that it is a constitutional outrage?
My Lords, it is true that the dispute has not reached the court yet but, nevertheless, an infraction process was launched in March. The Commission’s launch of an infraction process, seemingly on a hair trigger, has created many of the concerns that we now have about the court. That sort of process is appropriate for member states, with all the checks and balances that exist when you are a member state. As we can now see from the way that it is being used, it is not appropriate for this country, of which Northern Ireland is a part and which is not a member state of the EU.
My Lords, I am not the only one scratching my head as a result of these exchanges. Can the Minister help us by outlining what the benefit to the UK position of triggering Article 16 would be? Surely it would only set the clock ticking and increase the pressure, while he would be negotiating on the exact same issues with the exact same people, probably in the exact same rooms. What do we gain by triggering Article 16?
My Lords, Article 16 is a safeguard. It changes reality because it enables us to safeguard, within the provisions of the protocol, against certain effects of the way that it is currently being implemented and working out. Of course, it begins a new and slightly different phase if Article 16 is used, but it also creates a new reality and safeguards against some of the difficulties that we currently find. That is why it is such a relevant provision.
Naturally I wish my noble friend success in his negotiations, but as he bears some responsibility for the protocol, can I urge him not to rule things in and out from the Dispatch Box, but to negotiate as a trained diplomat, which he is—calmly, gently and with the aim of coming to agreement with our friends and neighbours?
My Lords, my noble friend is right, as always. It is good to negotiate calmly and find the best possible agreements between two parties. That applies to both sides. I urge the EU not to overplay the significance of using Article 16, as perhaps it has in the last couple of weeks. It is a legitimate provision within the protocol which we are discussing, and can as such be used if the situation arises.