It is a privilege to follow the noble Lord, Lord Bew, who has made the important point—strangely ignored by all the lawyers who have spoken so far—that we are subject to conflicting international agreements that cannot be reconciled without breaking, in part, some of them.
We all agree that there should be no infrastructure or checks at the border between Northern Ireland and the Republic. Why? Not just because they would disrupt trade but because they would be a provocation to republicans and would probably be blown up, threatening the whole peace process. By the same token, we should all agree that there should be no border between Great Britain and Northern Ireland. It disrupts a far larger volume of trade and, as we have seen, it is provocative to unionists and is gravely undermining the Belfast agreement. As it happens, Article 6.2 of the protocol commits both parties to avoid infrastructure at the ports and airports of Northern Ireland to the extent possible—but the EU ignored that and actually invoked legal procedures to require the introduction and building of checkpoints at Northern Ireland ports.
The EU’s only legitimate interest in the protocol is to protect its internal market. At present, the threat to its market is imaginary, and in the future any threat would only come from third-country goods which incur a lower tariff to enter the UK than the EU tariff, from goods, if any, which are subject to lower standards in the UK market than are required under EU law, and a minority of those two groups of goods which are actually destined for the Republic. If this Bill provides an equal, or possibly greater, protection against these pretty minor threats, the EU has no pragmatic reason to insist on retaining the complex procedures envisaged under the protocol. Moreover, under Article 24 of the WTO Trade Facilitation Agreement, to which all EU states adhere,
“where two or more alternative measures are reasonably available for fulfilling the policy objective”, the least trade restrictive measure must be taken—an obligation which the EU is in fragrant breach of.
But some in the EU have an illegitimate reason for hanging on to the protocol, which is to make sure that Britain suffers for Brexit. That raises the question: can we lawfully, unilaterally, replace the Northern Ireland protocol by other measures which meet the EU’s legitimate objectives, avoid a hard border and protect the Belfast/Good Friday agreement? I believe we can do so.
First, the sole justification for the protocol was to uphold the Belfast agreement. As the former Lord Chancellor pointed out, the very first article of the protocol says:
“This Protocol is without prejudice to the provisions of the 1998 Agreement”.
So, as he said, the Belfast/Good Friday agreement takes precedence over the protocol. The UK, as guarantor of the Belfast agreement, has not just a right but a duty to ensure that, where the protocol threatens the Good Friday agreement, it is changed—preferably by agreement, but if not, otherwise—as envisaged in Article 13 of the protocol.
Secondly, the protocol is intrinsically temporary; the EU itself said so. It said that no permanent agreement with a member state can be reached under Article 50 —only temporary and transitional relationships. That is why we had to leave first before we could negotiate the permanent trade and co-operation agreement. The then Solicitor-General told Parliament:
“article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states.”—[Official Report, Commons, 3/12/18; col. 547.]
So, he went on, if someone were to mount a challenge to the protocol on the basis that the EU said that Article 50 is not a sound basis for a permanent agreement,
“I tell you frankly, Mr Speaker, they are likely to win”.—[Official Report, Commons, 3/12/18; col. 555.]
That was pretty emphatic advice from a lawyer. If the EU now repudiate that doctrine, then the protocol was negotiated in bad faith, which itself is grounds for us to replace it.
The reason the protocol is undermining the Belfast agreement is that it lacks the consent of the unionist community, who see it as undermining the Act of Union itself. Indeed, the court in Northern Ireland has ruled that the protocol “subjugates” the Act of Union.
What should a state do if it finds that its obligations under one treaty conflict with those under another treaty or with its own constitutional law? Let me answer that question in the words of the European Court of Justice in the Kadi case. The court affirmed that,
“although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework … it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”— what is right for the EU is surely right for the UK too.
In short, we have a right and a duty to replace this protocol—preferably by agreement; if not, unilaterally—under EU law because it is temporary, under the EU’s own doctrine that international obligations must be subordinated to supreme constitutional laws by the Act of Union, under the protocol itself which says that the Belfast agreement takes precedence over the protocol, and under the WTO Trade Facilitation Agreement, of which the EU is in breach. So I support this Bill.