Rt Hon Lord Lilley

    Lord Lilley:

    My Lords, this has been unusual in the debates that we have had so far in that far more has been said that I can agree with than that I disagree with. I even found myself agreeing with two-thirds of what the noble Lord, Lord Kerr, said, which is unusual. He is undoubtedly right that the negotiations cannot really be going as well as we would all like to hope, and as so many commentators and Ministers imply they are, as long as the EU has not been prepared to change its negotiating mandate. It will not allow a single jot or tittle of the protocol to be changed under its existing mandate, even though the protocol itself envisages the possibility of it being changed in part or in whole. That surely has to change. Maybe it has de facto; maybe the EU is agreeing to talk beyond its mandate. Let us hope that that is the case.

    The disappointing aspect of the debates so far is that I have been waiting throughout for any coherent response from noble Lords, in their very powerful speeches about the illegality of what we are doing, to the questions raised by the noble Lord, Lord Bew, in particular as to what happens when there is a conflict between two international obligations, as the noble and learned Lord, Lord Brown, implied that there is between the obligations that we have under the Belfast agreement and those that we have under the protocol. I have not heard any direct response to that question: what do you do when you have conflicting international legal obligations?

    Lord Pannick:

    I am very grateful to the noble Lord but the Committee has heard repeated explanations of what the answer is. The answer is that the protocol contains Article 16, which allows for a process to commence by which disputes can be resolved with an arbitration process. That is the answer. There is no conflict because the protocol provides a mechanism for addressing conflicts.

    Lord Lilley:

    I am grateful to the noble Lord for sidestepping the question by saying that he does not need to answer it because there is an article in the protocol that means you do not have to answer on what happens when there is a conflict between two international obligations. Clearly, however, the Government and many noble Lords from the Province who have spoken think that there is a conflict and it cannot be solved just by invoking Article 16. If it can, fine; that is wonderful.

    The other related question that we have not had a response to is the point made by the Lord Chancellor in the other place that Article 1 of the protocol specifically says that in the event of a conflict between the Belfast agreement and the protocol, the Belfast agreement takes precedence. I have not heard any response to that, nor to the point, which I might be alone in making, that the whole protocol is intrinsically temporary. We know that because the EU told us that it could not enter into a permanent relationship with us because we were then a member state and it could not, under Article 50, enter into a permanent relationship with a member state; it could be only temporary and transitional. That is why the protocol itself contains provision for it to be superseded, but I have heard no response to that point from anyone.

    Baroness Altmann:

    I heard the responses given to my noble friend so far, which he seems reluctant to accept. If he does not agree that the Article 16 process would be a way of resolving some of these conflicts that have arisen and caused problems, in what way does he feel that the passage of the Bill would itself resolve those conflicts, or indeed support the Good Friday agreement?

    Lord Lilley:

    I certainly do not say absolutely that Article 16 is not the way to proceed, but I have spoken to lawyers much respected by people in this House—unfortunately I do not have their permission to give their names—who told me that we should not go down the Article 16 route because it would be a nightmare.

    Lord Pannick:


    Lord Lilley:

    I will put the two in touch discreetly and thereby not betray confidences.

    Lord Pannick:

    I am sorry to interrupt the noble Lord and I am grateful for his patience, but it really is not good enough, when this Committee is debating these matters, for him to say that there are problems in using Article 16 but not tell us what they are.

    Lord Lilley:

    I am saying that there may well be problems. Indeed, I asked the noble Lord the other day, down the corridor, whether he was of the opinion that Article 16 could be used to solve all the problems. If it can be, fine; I am not ruling that out. However, if it cannot be, then the issue raised by the noble Lord, Lord Bew, is there on the table, and the issue raised by the Lord Chancellor is there on the table. Whatever about that, the protocol is intrinsically temporary. The whole basis of the negotiations that we entered into on the withdrawal agreement was that a permanent agreement could not be entered into in the withdrawal Act with the United Kingdom covering trade or other matters; that could happen only after we had left. Therefore, anything in the withdrawal agreement was intrinsically transitional and temporary.

    Again, I have not heard a response on that today. I wait to be interrupted with a response to the point. Usually, it comes from the noble Lord, Lord Kerr, who wrote Article 50, but he has forgotten what the alternative is.

    These are important issues. We need to know why we were told one thing, that this was temporary, and now are told another thing, that it is permanent. Until we get an answer to those questions, I do not know that our debate can proceed as productively as it ought to. There are other more general points which I would like to make but I will save them for another batch of amendments.


    Lord Lilley:

    Would the noble Lord deal with the Article 50 point? If it is intrinsically temporary and transitional, can it last for ever?

    Lord Purvis of Tweed:

    That is the point. We have now legislated for it, and the element we have legislated for includes Article 13.8, which is the process by which it would be superseded. I do not think there is any doubt about it; the noble Lord may have doubt in his mind about it, but in the other agreements there are mechanisms if we wish to open them.

    The difficulty with this process taking such a long time is that if we were in grave and imminent peril—the Government have invoked the defence of necessity—then we would have anticipated some urgent, high-level talks to have resolved this by now. Regrettably, we are back to a situation where the stakes are getting higher because expectations are higher, but the reality, perhaps, is that some of these talks are technical.

    With the greatest respect for the Minister, who I know tried to offer clarification, I am worried about what this power could be used for, and we will need to return to this. In the meantime, I beg leave to withdraw the amendment.