Rt Hon Lord Lilley

    Lord Lilley: My Lords, I rise to support the noble Lord, Lord Leigh, but, before doing so, I repeat what I said the other day: I feel extreme discomfort about the extensive reliance on Henry VIII clauses in this legislation. I sit near enough to the Convenor to almost feel partly convened on the issue of Henry VIII legislation: he and the noble Viscount, Lord Hailsham, did suggest how this particularly egregious example of it could be constrained a little. However, I think neither was here when I posed the question of what the structural alternative was, in the context of negotiations, to relying on Henry VIII legislation. I still await a satisfactory answer to that question.

    To return to the point made by the noble Lord, Lord Leigh, I share an interest with him in the EIS, because I was the Secretary of State who introduced them. I had forgotten that I was until he reminded me. Indeed, slightly earlier, when I was invited to speak on the 25th anniversary of their formation, I found that I was the warm-up act for Mike Yarwood at that event. But they are important and have been useful. They, at present, will cease under EU legislation unless that EU legislation ceases to apply in this country.

    I want to make a general point, which I made earlier: the protocol is intrinsically temporary under European law. The Europeans themselves said, while we were negotiating the withdrawal agreement, that they could not, under Article 50, enter into a permanent relationship with the United Kingdom. Any arrangements reached under that agreement could only be temporary and transitional. Consequently, the protocol is transitional and temporary and not permanent. Indeed, in Mrs May’s protocol, it specifically said in the recital that the withdrawal Act, which is based on Article 50, does not aim to establish a permanent future relationship between the EU and the UK.

    Subsequently, the noble Lord, Lord Pannick, wrote in a letter to the Times that

    “the Protocol on Ireland/Northern Ireland states that the objective of the withdrawal agreement ‘is not to establish a permanent relationship between the Union and the UK’. If, therefore, the UK and the EU were unable to reach an agreement on Northern Ireland/Ireland, despite good faith negotiations … the UK would be entitled to terminate the withdrawal agreement under Article 62 of the Vienna convention on the Law of Treaties.”

    It may be said that the final version did not include the recital that referred to Article 50. But it is still negotiated under Article 50. It still lacks any legal basis under Article 50. It is still temporary and transitional under Article 50. Therefore, if the noble Lord, Lord Pannick, is to be believed, it can be repudiated if, after good-faith negotiations, we cannot reach a satisfactory alternative.

    Moreover, the final treaty omits not only the recital but the phrase that was in the original protocol but is not in the final one, that the provisions of the protocol shall apply

    “unless and until they are superseded by a subsequent agreement.”

    So it no longer contains that claim to permanence which the original protocol negotiated by Mrs May did.

    So it is very clear that the original approach laid down in Article 50 was that you could enter into temporary and transitional arrangements which were necessary to ensure that, in case there was no final agreement, no subsequent TCA, there would be some appropriate arrangements for the Northern Ireland border. It was expected that if subsequently they could not enter into negotiations until they had completed the withdrawal agreement under Article 50, under the TCA that would deal with such things as subsidy arrangements. Largely, it did deal with such things as subsidy arrangements, and they should not be dealt with under a temporary protocol which ceases to have any validity if, after good-faith negotiations, we fail to reach an agreement. We should then repudiate it, accepting the advice of the noble Lord, Lord Pannick.

    Lord Pannick: There are many difficulties with that argument, the first being that there are good-faith negotiations that the United Kingdom is involved in. One cannot assume that they will not succeed. We do have a protocol.

    The noble Lord, Lord Dodds, made a point which has been made previously in Committee, concerning the democratic deficit in Northern Ireland. There is a provision in the protocol that expressly addresses democratic consent in Northern Ireland: Article 18. It sets out a detailed procedure to ensure that there is democratic consent, and it requires in detail provisions to ensure the consent, in due course, of both communities, the nationalist and the unionist. I am sure that the noble Lord, Lord Dodds, will say that it is far from perfect and that he does not like the detail set out there—but that is what we agreed. It simply cannot be said that the subject of democratic consent has been ignored. It was negotiated and it was agreed.

    Lord Dodds of Duncairn: Does the noble Lord accept that the provisions of Article 18 are contrary to the agreement that was made between the European Union and the UK Government in December 2017? Article 50 of the joint report said that before there could be any regulatory difference between Northern Ireland the rest of the United Kingdom, there had to be the assent of the Northern Ireland Assembly and the Executive. The current arrangements are in breach of an EU-UK agreement and the process for giving consent is deliberately made a non-cross-community vote, contrary to the Belfast agreement.

    Lord Pannick: It is elementary as a matter of diplomacy and of international law that a country is perfectly entitled to reach a new agreement in the circumstances as they then exist. That is what happened when the protocol was agreed. Both sides agreed a mechanism in Article 18 for ensuring democratic consent.

    Lord Lilley: I am grateful to the noble Lord for effectively giving way. He rightly said, both in his letter to the Times and his remarks today, that, as long as there was good faith, fair enough, but if good-faith negotiations failed to reach an agreement—not if there was any lack of good faith, I think—we would be entitled under Article 62 to repudiate the treaty.

    Certainly, the EU is showing a lack of fulsome good faith in two respects. First, it is refusing to accept in the current negotiations that any change to the protocol can be made—only to its implementation. Secondly, it is repudiating its original position that it could not enter into a permanent arrangement, which was the whole basis of the negotiations we entered into under Article 50. It is now trying to make something which was intrinsically temporary, and which it said could be only temporary and provisional, into something permanent. I would have thought that, in both respects, had the British Government taken such positions, he and his friendly noble Lords would have denounced it as an appalling demonstration of bad faith.

    Lord Pannick: If the noble Lord’s position is that the EU is acting in bad faith, the United Kingdom, if it takes that view, is perfectly entitled to use the procedures set out in the protocol of independent arbitration—if it does not like that, it can go to the Court of Justice—to resolve any dispute. What the United Kingdom cannot do is ignore the dispute resolution mechanisms that are set out in the protocol and simply make an assertion that it thinks there is no good faith. Indeed, I had not understood it to be the position of the Government at the moment that there was no good faith. They are about to enter into negotiations.