Grand Committee

Tuesday 1st December 2020 Grand Committee

Tuesday 1 December 2020

The Grand Committee met in a hybrid proceeding.

Arrangement of Business

Tuesday 1st December 2020 Grand Committee

Announcement

14:30

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

My Lords, the hybrid Grand Committee will now begin. Members know the spiel regarding hygiene and capacity, so I will not repeat that, but let me say to Members participating here in the Room that their microphones are turned off. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin to speak. The process for unmuting and muting for remote participants remains the same.

Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020

Tuesday 1st December 2020 Grand Committee

Considered in Grand Committee

14:32

Moved by

[Viscount Younger of Leckie]

That the Grand Committee do consider the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.

Relevant document: 34th Report from the Secondary Legislation Scrutiny Committee

[Viscount Younger of Leckie (Con)]

My Lords, these regulations have a straightforward aim: to reflect in domestic law the consent mechanism set out in Article 18 of the Ireland/Northern Ireland protocol and the UK Government’s unilateral declaration of 17 October 2019. The protocol itself is an annexe to the withdrawal agreement and was developed with the intent of protecting the Belfast/Good Friday agreement. That intent was at the heart of our negotiations with the EU last year and is reflected here in the consent mechanism. It is something we will always uphold.

These regulations provide for the locally elected politicians of Northern Ireland to decide whether Northern Ireland remains aligned with certain aspects of EU law set out in Articles 5 to 10 of the protocol. These articles cover customs, the UK internal market, technical regulations of goods, VAT and excise, the single electricity market and state aid. The unilateral declaration published by the Government concerning the operation of the consent mechanism provides further detail on the obligation described within the protocol. These regulations implement that consent process by providing for a vote in the Assembly as to whether to continue this alignment. These commitments have been set out and committed to in international law, and now it is for us to bring them into domestic law with this instrument.

It will perhaps help to begin with the fundamentals. The Belfast/Good Friday agreement was ratified by referenda in both Northern Ireland and Ireland and is built on the principle of consent. In the protocol, the necessity of consent is recognised in the provision for Northern Ireland’s alignment with certain aspects of EU law to be disapplied if Northern Ireland’s political representatives decide that it is no longer what is wanted. Be in no doubt that reflecting this principle of democratic consent in the protocol was intrinsic to its acceptance by the Government. As noble Lords will know, the protocol was designed as a practical solution to avoiding a hard border on the island of Ireland while ensuring that the UK, including Northern Ireland, could leave the EU as a whole. The protocol necessarily included, therefore, a number of special provisions which apply only in Northern Ireland for as long as the protocol is in force. That is why it is for the elected representatives in Northern Ireland to decide what happens to the protocol alignment provisions in a consent vote that can take place every four years, with the first vote taking place in 2024. Only elections to the Northern Ireland Assembly and its Members’ votes will decide the outcome.

I will now turn to the detail of the process. These regulations implement both a default consent process and an alternative consent process. The default process will apply if a First Minister and Deputy First Minister are in office on the day the Secretary of State issues the notification to begin the process. In 2024 that will be on 31 October. Under that default process, the First Minister and Deputy First Minister have one month during which they can, acting jointly, table a consent resolution. This is our central scenario: that the Executive will be functioning normally in 2024 and the First Minister and Deputy First Minister will jointly table the Motion, which will be debated in the normal way in the Assembly. Everything else that follows in these highly technical regulations is designed to cater for increasingly unlikely scenarios, but they are reflected here in the regulations to ensure that a consent decision can always be reached.

In that vein, if, before 1 December, the First Minister and Deputy First Minister have not tabled a Motion for a consent resolution, any Member of the Assembly can table a consent Motion before 7 December. It would then be debated in the normal way, although if the Motion has not been decided by 17 December, the debate will be scheduled automatically and the Speaker will move the Motion.

The process I have just described will operate if the political institutions in Northern Ireland are functioning as expected. That is our central scenario, as I said earlier, and the path we expect to go down. But we must be prepared for all scenarios. The alternative process will therefore apply if, on 31 October 2024, or any future such point, a First Minister and Deputy First Minister are not in office. We should remember that the protocol was drafted at such a time—a deeply challenging time for Northern Ireland. While we all welcome the restoration and subsequent stability that the Executive have achieved, it is right that we have this in reserve.

The alternative process enables any MLA to bring forward the consent Motion in the absence of a First Minister and Deputy First Minister at any time from 1 November until 7 December. If no Motion has been tabled or has not been decided on by 7 December, the Speaker must summon the Assembly to sit and consider the Motion. The alternative process also puts in place a procedure to enable the consent vote to happen under the alternative process even if the Assembly is unable to elect a Speaker when required to do so. In this case, the Assembly would move to elect by simple majority an interim Speaker, whose only role would be to preside over the consent debate and transmit the result to the Secretary of State. The interim Speaker would have no wider role beyond this narrow task. This provision ensures that MLAs will always be able to take a decision on a consent Motion, discharging the obligation in international law to facilitate this process.

If these draft regulations are approved, the first consent process would, as I have set out, take place in 2024. If consent is given at that point, the process will then be repeated every four or eight years. So, if consent is given with a simple majority, that is four years. If consent is given with cross-community support, it will be eight years. Cross-community support means the support of a majority of the Members voting, a majority of the designated nationalists voting and a majority of the designated unionists voting, as set out in the Northern Ireland Act 1998. This illustrates that the mechanism itself is designed to encourage cross-community support, giving the Assembly the chance to provide eight years of certainty to Northern Ireland’s businesses through cross-community agreement.

There are arguments that this approach is not compatible with the Belfast agreement. That could not be further from the truth: our approach is entirely compatible with the agreement; let me explain why. The principle of cross-community consent as set out in the Belfast agreement applies to matters for which the Northern Ireland Assembly is responsible. The consent mechanism, as contained in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU. This is an excepted matter in Northern Ireland’s devolution settlement. This means that the matter at hand falls outside the responsibility of the Assembly and outside the principle of requiring cross-community consent in order for it to pass.

I can assure noble Lords that the Government remain fully committed to implementing the withdrawal agreement and the protocol, which was specifically designed to protect the 22 year-old Belfast/Good Friday agreement and the huge gains of the peace process. That is why the alignment provisions in the protocol depend for their legitimacy on consent. This ensures that democratically elected local politicians will decide the future of the protocol in Northern Ireland. By making these regulations, we will ensure that this can be delivered for the people of Northern Ireland by the institution established by the Northern Ireland Act 1998. I beg to move.

14:40

[Lord Empey (UUP)]

It is difficult to know where to start. The Minister said that this was all about protecting and upholding the Belfast agreement. I do not know where he has been in recent years, but if he, or whoever wrote the notes for his contribution, thinks that any of this is compatible with the Belfast agreement, they are way off. This is a corruption of the agreement.

First of all, we are in this mess because of a terribly badly negotiated protocol which severs the economic activity of Northern Ireland from the rest of the United Kingdom. Our regulatory functions will be governed by European Union law, and, while a fig leaf of a customs territory has been invented, I refer the Minister to a House of Commons Library note of October last year which specifically sets out that, to all intents and purposes, we are in the customs union as well.

What we have actually done is the antithesis of the Belfast agreement, which insisted that the status of Northern Ireland would not be changed without the consent of its people. Nobody can claim that the status of Northern Ireland has not changed, with the result that our regulatory activities are governed by Brussels, where we will have no say whatever in the regulatory environment in which we operate. Border inspection posts will be established, one of which, in Larne Harbour, will occupy 14 acres. Every item of food that comes into Northern Ireland will have to be notified in advance to the relevant authorities and will be subject to inspection, including physical inspection if required. Each of the statutory instruments in this whole apparatus separates Northern Ireland by minute amounts each time. Nevertheless, a border has been constructed in the Irish Sea, which is the antithesis of the Belfast agreement.

The document refers to consent. Where was the consent from the people of Northern Ireland to enter into this twilight zone, this constitutional mess whereby we are neither in nor out of the United Kingdom but we have a new status—whatever that may be? It is like saying that you are married but every four years you can divorce; however, you are not given any choice in how you go into the arrangement in the first place. I have to say to the Minister that I find nothing remotely compelling in his argument.

The mechanisms governing how this consent is to be given are also against the Belfast agreement, because it set out to remove simple majoritarianism from key decisions so that each section of the community could protect its own interests, thereby having a cross-community vote. There has been no cross-community vote to enter into this process. Rather than some kind of protection, this is a fig leaf covering the fact that a border has been created against the wishes of the people. I did not want to see a border on the island—nobody wants to—but there should not be a border in the Irish Sea, either. Any border on either side does not uphold the agreement but is a repudiation of it.

This also creates uncertainty, because investors will not know what regulatory environment their company will be operating in in every four-year cycle. People in the Republic and in Great Britain will know, but we will be in this twilight zone of uncertainty, which is a negative push against investment.

I have to say to the Minister that I have seen absolutely nothing in this document that is compelling in any way. To prove my point, the Government are putting forward £355 million to handle the trading consequences over the first two years—£355 million. People tell us, and the Government will not admit, that they have created a border in the Irish Sea. I think we would be as well to be straightforward with each other: I do not find anything in this document that is remotely compelling or advantageous to the people of Northern Ireland.

14:45

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Empey, on this issue. These regulations are described as a “Democratic Consent Process”. In the view of many people in Northern Ireland, it is neither democratic nor is it a proper definition of consent.

I want to take the Committee through the background to this issue. It goes back to the joint report of 2017 agreed between the United Kingdom and the European Union, which said in paragraph 50 that “no new regulatory barriers” will

“develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement”—

the Belfast agreement—

“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.”

Of course, under devolution for Scotland, Wales and Northern Ireland, within the union, there can be different laws in place, but that can happen only with the democratic consent of the institutions in each of those countries. In paragraph 50, Her Majesty’s Government and the European Union made a commitment that there would have to be the agreement of the Executive and the Assembly—I will come back to the point about the Executive, because that is significant as well.

Then, of course, in October 2019 Her Majesty’s Government committed to the same thing. Prime Minister Boris Johnson wrote to Jean-Claude Juncker on 2 October 2019 setting out proposals for a new protocol on Ireland/Northern Ireland, based on five principles. The fourth said that any potential regulatory zone on the island of Ireland must have the endorsement of the Northern Ireland Executive and the Assembly before it enters into force—that is, during the transition period and every four years afterwards. Paragraph 13 of the Explanatory Notes sent by Downing Street to the European Commission states:

“Our proposal is that before the end of the transition period and every four years afterwards, the UK will provide an opportunity for democratic consent to these arrangements in the Assembly and the Executive within the framework set by the Belfast Good Friday agreement.”


The point I am trying to make is that these regulations do not faithfully implement what was set out by Her Majesty’s Government and the European Union back in December 2017 and do not set out the proposals put forward by Her Majesty’s Government in October 2019. The Government have dropped any prior consent by the Northern Ireland Assembly to the implementation of this regulatory regime by the European Union in Northern Ireland. What they are saying is that you can have a vote after four years, but you are not to be allowed any vote to actually begin the process, contrary to all previous assurances. How on earth is that democratic? How on earth is that consent?

The Government are also saying that only the Assembly will be included, not the Executive. That is important because the powers of the Executive in terms of the parties being able to proceed by consensus or to veto proposals are very significant; that is why “Executive” was included, but it has been completely dropped. The whole customs regime is also included. Originally, only single market regulatory issues were to be considered. Now the whole panoply of customs is also included, as the noble Lord, Lord Empey, pointed out. Again, that is contrary to what the Government and the EU set out in December 2017, and to what Her Majesty’s Government committed to in October 2019.

These regulations are extremely defective and are opposed by anyone who believes in democracy and proper consent in Northern Ireland. They are contrary to the Belfast agreement—there is no doubt about that. These points have been clearly made by the noble Lord, Lord Empey, who was instrumental in negotiating it, and by the noble Lord, Lord Trimble, who is also here and was one of its main architects. Yet, their voices are not listened to. I would have thought that they were worthy of respect and of being harkened to on this very issue.

To say that this is a reserved matter really misses the point. Agriculture and the regulation of manufacturing are devolved matters. Okay, the rules are set down in European Union directives, but many are implemented through legislation in the Northern Ireland Assembly: they are devolved. A mechanism of approval is going to be given to the Northern Ireland Assembly after four years, not immediately—not now, when it should be happening. I challenge the Minister in his response to give me one example of a significant controversial issue in the Northern Ireland Assembly which is not based on cross-community voting or is not susceptible to being turned into a cross-community vote through the petition of concern. There is not a single one; yet, on this most significant issue of all, it is to be a bare, simple majority. If this is a reserved matter, you would say it is a matter for Westminster to vote on, but it has been given to the Northern Ireland Assembly, so the mechanism set out in the Belfast agreement, the St Andrews agreement, and so on, for implementing how the Assembly should work should be respected.

Finally, this measure is contrary to the basic tenets of democracy, as has been said. The rules for a whole swathe of manufactured goods and agriculture products in Northern Ireland—the laws—will now be made in Brussels. No one at Stormont will be able to have any say or vote. Nobody at Westminster will have any say or vote. How on earth can that be democratic? I agree with the basic principle of taking back control through Brexit, but I challenge the Minister: how can the people of Northern Ireland be left in this position of having no say or control over laws affecting the basics of the economy of Northern Ireland—laws that could be put in place in Brussels, and which could actually be injurious to the position of Northern Ireland? Nobody here, and nobody at Stormont, will be able to do anything about it. The Minister really does need to deal with these issues.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

My Lords, before we go to the next speaker, just to alert you, the clock is not working on the screen, so I am relying on noble Lords to self-regulate and to be aware that the time limit is seven minutes. If you do go substantially over, I am sure that someone will drag you off. On that basis, I call the next speaker, the noble Baroness, Lady Hoey.

14:53

[Baroness Hoey (Non-Afl)]

My Lords, I thank the Minister, who has probably drawn the short straw today. He has just heard from two noble Lords who understand hugely the history and the whole process of the Belfast/Good Friday agreement and subsequent policies. It is also a privilege to have here the noble Lord, Lord Trimble, who also knows it inside out. I therefore sympathise with the Minister because clearly, even the title of this statutory instrument—“Democratic Consent Process”—is amazing. As the noble Lord, Lord Moylan, who is also here today, said in a debate on a statutory instrument last week, the only place in Europe where we are de-democratising is Northern Ireland. We have had an explanation from the Northern Ireland Office of the administration of this process in four years’ time which is genuinely full of gobbledegook. It would require quite a lot of concentration even to work out how it could possibly happen. Of course, that is four years away.

What concerns me is that, as both noble Lords have already said, we are talking about consenting in four years’ time. We have not agreed, and Northern Ireland has not agreed, to the protocol. It is ironic that we are talking about how it could be changed in four years’ time, given that we have not even had the opportunity to discuss how we could change it now, because we have not been asked.

Obviously, I continue to be very involved with Northern Ireland, but I bow to the experience of those who have already spoken. The Minister, the various interpretations given and the Library briefing talk about protecting the Belfast/Good Friday agreement. My question to the Minister is: how can you protect something that has already been broken, and broken so clearly? The withdrawal agreement overall rips the Good Friday agreement apart. The laws governing some 60% of economic activity in Northern Ireland will no longer be made at Westminster or by the devolved Assembly, but by an outside law-making body—the European Union—and will be subject to interpretation by a non-UK court. Clearly, anyone who looks at this issue will see that the constitutional position of Northern Ireland has been changed, without the consent of the people of Northern Ireland as required by the Belfast agreement. No one is going to have a say in this.

The noble Lord, Lord Dodds, talked about no one having a say in these decisions. Of course, the people who will likely have more of a say in Northern Ireland are the Irish Government, who are members of the European Union and are well in with the European Commission. We will find more and more that decisions will be taken based on what the Dáil and Ministers in the Irish Government think, rather than our own Government in the United Kingdom.

The whole issue of consent has been based on the fallacy that it was impossible to have a trade arrangement between Northern Ireland and the Republic of Ireland, whereas it was very simple, apparently, to have a trade border between Great Britain and Northern Ireland. I appreciate that the Government have to try to defend this, but I cannot see how anyone cannot accept that this has broken the Belfast agreement. It has broken the trust of many, many people in Northern Ireland in their own Government and their protection of their right to be British.

Obviously, we will get the internal market Bill and I will fight very hard to ensure that your Lordships’ House reinserts the clauses that were taken out, because they are absolutely crucial, and just a little bit of help in what is a very dangerous situation.

I ask the Minister: what happens if all this breaks down before the four years is up? We have no idea what could happen. Hopefully, the Assembly and the Executive will continue, but what happens if the Assembly breaks down and there are no MLAs? Frankly, if the Assembly breaks down again, I doubt whether the people of Northern Ireland will accept MLAs continuing to be paid fully for another three years. It appears that the word “consent”, as interpreted by the Government, means “consent” only if it something that suits the Government; if it does not, it is no longer required.

As someone who campaigned very hard to get us to leave the European Union, I voted for the whole of the United Kingdom to do so. Let us not forget that 44% of the people of Northern Ireland voted to leave the European Union, and as part of the United Kingdom—not as this little sideshow, separated out, with new rules, new business difficulties and extra costs that taxpayers will pick up. Very little can be done between now and the beginning of January, but I just want Ministers and the Government to be honest about this and accept the situation. I know that when this was finally signed up to, the Government were under great pressure from those who wanted us to stay in the European Union, and there was time pressure, but it should not have happened without the people of Northern Ireland being taken along with them.

I find it very difficult to support this SI, but I know that my vote will not make any difference, so I will not be calling any kind of vote.

14:59

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I thank the Minister for his explanation of the regulations. It is important to remember the political reasons for the Northern Ireland protocol and to recall and emphasise that the purpose of the Good Friday agreement was to ensure that those who come from a unionist background, from a nationalist background and from neither can work together and build relationships. It is not one-sided by any manner of means. The whole purpose of the protocol was to prevent a hard border on the island of Ireland and to protect our peace and political process—the delicate political architecture that was carved out of the Good Friday agreement and the Northern Ireland Act 1998.

I remind your Lordships that Northern Ireland voted on a majority vote to remain in the European Union and did not ask for Brexit, so it is important that those delicately balanced relationships are nurtured and built on. The Good Friday agreement was not an end in itself: we need to be able to build the healing process on our island, which has been painfully slow, characterised by long interruptions to the political institutions over the past 22 years. No political impediments should be put in the way of such processes taking place in a natural way.

I remind my unionist colleagues here today that I, as a democratic Irish nationalist, do not want a border in the Irish Sea, nor on the island of Ireland. I think that characterises the view of democratic Irish nationalism. We have to get around this in some way or another. The protocol is important, but I have a problem with the way the Government have invoked the consent principle contained in the Good Friday agreement. The point was raised in the House of Commons Delegated Legislation Committee by Karin Smyth of Labour’s Front-Bench team. The UK Government are stretching the idea of consent way beyond the real, explicit consent principle which is in the Good Friday agreement—the provisions around a border poll and a change in the constitutional status of Northern Ireland.

It may be helpful if I quote from that agreement. I bear in mind that certain people in this debate, such as the noble Lords, Lord Empey and Lord Murphy, were part of the negotiating process of the agreement, but the principle of consent is set out clearly in the Good Friday agreement in the constitutional issues provision, which recognises that it is

“for the people of … Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland”.

It also specifically only requires a majority of the people of Northern Ireland, not a majority of any one community. It is important to be clear that the principle of consent is in no way undermined by the protocol to the withdrawal agreement, which specifically reaffirms it and the territorial integrity of the UK.

Even if it could be legitimately argued that the principle of consent applies more broadly, or should apply to any implementation of the protocol, it is difficult to see why, then, it should not also apply to Brexit itself, which a clear majority of the people in Northern Ireland expressly voted against. In practice, the Government seem selective about what consent really means and whose consent they are really talking about.

In this respect, I ask the Minister: what discussions have taken place with the Northern Ireland Executive, Northern Ireland political parties and the Irish Government, with whom the Government are supposed to be in a bipartisan approach in the implementation and working out of the agreement? Did the Government talk to those various people in the Irish Government, the Northern Ireland Executive and the Northern Ireland Assembly about the content of this statutory instrument? If so, what was the outcome of those discussions; and, if not, why did they not talk to them, because surely they are the people who will be most directly affected, as well as the people of Northern Ireland.

I will leave it there with the Minister and hope that the Government will reconsider this use of the consent principle and will not bring forward these regulations in this form.

15:06

[Baroness Suttie (LD) [V]]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Ritchie, and I agree with so much of what she just said. This has been an extremely interesting short debate and has clearly illustrated the strength of feeling on this matter. It would not be an exaggeration to say that none of us taking part in this debate from our very different perspectives would have wanted to start from here—but we are where we are.

The withdrawal agreement and the Northern Ireland protocol are both compromises and are far from perfect, for many of the reasons set out this afternoon. Very few people—including many on the government Benches—would now claim otherwise. But, as the noble Baroness, Lady Ritchie, said so powerfully just now, the Northern Ireland protocol has none the less been an essential element in maintaining the peace and progress on the island of Ireland since 1998. We should also acknowledge, as did the Minister in his opening remarks, that the Northern Ireland protocol is an internationally agreed treaty. As part of that internationally recognised agreement, it was agreed to allow the MLAs in the Northern Ireland Assembly an opportunity every four years—or eight years, as the case may be—to indicate their support for continuing with the arrangements laid down in the protocol. In that context, somewhat reluctantly from these Benches, we will support the statutory instrument before us today.

In this afternoon’s debate, we have heard views from many of the political parties represented in the Assembly, although we have not heard from Sinn Féin or Alliance. I add in passing that, as a result of the mechanisms set out before us today, my colleagues from Alliance in the Assembly may very well find themselves having the casting vote. It is also worth noting that this consent mechanism was not asked for by most of the Northern Ireland political parties or by the Northern Ireland Assembly. The debate this afternoon has illustrated one of the concerns about this consent process. The consent vote, potentially taking place every four years, risks creating a new layer of instability and friction in what is already a fragile and polarised political system. The position taken on this vote by the Northern Ireland political parties risks becoming a key issue during Assembly elections at the expense of other hugely important issues that affect the lives of ordinary Northern Ireland people. As the noble Lord, Lord Empey, said so clearly in his speech, the whole process will add significantly to the general feeling of uncertainty.

During the debate in the House of Commons, as the noble Baroness, Lady Ritchie, said, Karin Smyth MP raised concerns about the use of the word “consent”. Language and the use of words are hugely important in any political context, but most especially in the context of debate in Northern Ireland. As Karin Smyth said in the debate in the other place, it may have been preferable to use different language in this context. The carefully crafted principle of consent as set out in the 1998 Good Friday/Belfast agreement is based on a different mechanism from that set out in this order, and this produces an inevitable tension. There is tension, too, about inconsistencies of approach as to when and how a majoritarian rather than cross-community vote is applied.

I will conclude by asking the Minister for a little further clarification on how the independent review mechanism set out in Part 6 of the instrument would work in practice. There is an understandable view that there has been insufficient consultation across the board throughout the Brexit process. Can the Minister therefore say whether it would be the intention of the Government to seek the approval of the Assembly on the remit and content of the review in advance of it beginning its work, and will they consult the Assembly on who will carry out such a review? I would be very grateful if the Minister could expand a little on these processes, as the unilateral declaration does not make it entirely clear.

15:10

[Lord Murphy of Torfaen (Lab) [V]]

My Lords, this has been a very interesting short debate. The Opposition will—reluctantly—support the Government on this, but I endorse what the noble Baroness, Lady Suttie, just said. It is with reluctance because, although obviously it is important to get as much consent and consensus as possible, the invocation of the principle of consent, as defined in the Good Friday agreement, is not absolutely right in this context.

Like the noble Lords, Lord Empey and Lord Trimble, I was heavily involved in establishing the Good Friday agreement and chaired many of the talks that led up to it being signed in 1998. I have to say that the definition of consent that the Minister referred to, as it applies to this issue, is not quite right. The main reason for that is that the consent, as opposed to the consent to get either a united Ireland or to remain as part of the United Kingdom, for other issues within the Good Friday agreement was based on agreement: it was based on consensus. The problem here is that because, among other things, the Northern Ireland Assembly and Executive were not operating when all these negotiations took place, no one in Northern Ireland has really had any say on Brexit or the protocol, in the way that they did when the Good Friday agreement was constructed.

Some people say that the Good Friday agreement could have been written in a few weeks. That may well be the case—but it would have failed, because the agreement had to be written by the people involved on both sides, with the parity of esteem that is the central part of the Good Friday agreement. The fact that there was nobody involved in the working out of the protocol or the withdrawal agreement, or of course the particular issue we are dealing with today, means that it has been in a sense imposed on the people of Northern Ireland—and that is very unfortunate.

The other issue of course is that there is a bit of a muddle about what consent is. Is it a simple majority or cross-community approval? They are two very different issues. The absence of Northern Ireland people as Members of either the Executive or the Assembly in establishing what has now happened to Northern Ireland because of the withdrawal agreement and the protocol has meant that there has been a deep misunderstanding about how these issues work.

The other issue of course is that the majority of people in Northern Ireland actually voted to remain in the European Union. Of course, we voted as a United Kingdom to stay in or go out, but it is a factor that people in Northern Ireland voted to remain and a substantial minority voted to leave. So there is a divided position in Northern Ireland. That is all the more reason why consensus among people, and particularly among politicians in Northern Ireland, would have been much more acceptable than the situation we are in today. So to invoke the consent issue as defined in the Good Friday agreement does not work. I understand the plight of the Government, and the need to try to get that consensus. This is a genuine attempt to do it, but it will be very difficult.

The other problem is that this has the potential to create enormous instability every four years. In between in Northern Ireland, there are elections for local government, elections to the Assembly and elections to Parliament. All those things are destabilising in themselves, but the fact that the Assembly then has to vote in the way that is prescribed by this statutory instrument is indeed a recipe for instability over the next eight years.

I honestly do not know what the alternative is, but I must say that this is not ideal—far from it—and it is a great pity indeed that the Northern Ireland Executive and the Assembly were not functioning when all this was agreed, because frankly they would have come up with a solution that would have been better than the one we have today.

15:15

[Viscount Younger of Leckie (Con)]

My Lords, I will start by saying that I am grateful to all noble Lords for their contributions to this debate. I am also very aware, having listened to some passionate and hard-hitting speeches from certain noble Lords, that this is not an easy subject. Those speeches came in particular from the noble Lords, Lord Empey and Lord Dodds. I am very happy to welcome the noble Baroness, Lady Hoey, and of course I take into account the experience of the noble Lord, Lord Murphy. I will also say that I welcome the presence of my noble friend Lord Trimble. I know that he could have put his name down to speak today.

I will do my best to address the points raised in the debate. I will start with some of the basics. I may sound a bit like a long-playing record, but I will reiterate that the UK Government are committed to implementing the Northern Ireland protocol, with work being progressed across government and in partnership with the devolved Administrations. Our top priority is to protect the Belfast/Good Friday agreement and the gains of the peace process, and to preserve Northern Ireland’s place in the UK. Our approach, whether we agree or do not agree, is at all times guided by these priorities, and our Command Paper and the guidance we published in August set out how we will meet our obligations under the protocol.

I remind the Committee that the protocol states that it should

“impact as little as possible on the everyday life of communities”.

These communities were certainly alluded to in the interesting speech of the noble Baroness, Lady Ritchie. The Committee will also know that the proposals will deliver unfettered access for Northern Ireland business to the whole of the UK market; ensure no tariffs on goods remaining within the UK customs territory; uphold our obligations without the need for any new customs infrastructure; and guarantee that Northern Ireland businesses benefit from the lower tariffs that we will deliver through trade agreements with third countries.

I will go straight in to answer a question raised by the noble Baroness, Lady Suttie, who asked about Part 6 of the regulations and the independent review, which I have a copy of here. She asked whether we would need to seek the approval of the Assembly on the remit and content of the review, and whether the Assembly would be consulted. I note her comments and can say to her that the review will include close consultation with Northern Ireland political parties, businesses, civil society groups, representative organisations, including of the agriculture sector, and trade unions, as stated in paragraph 9 of the unilateral declaration made by the UK Government on 17 October 2019. The review will be chaired by an independent person, who will be decided on, if needed, at the time. Of course, this is in circumstances where a consent Motion has been approved by a simple majority but not by cross-community consent.

One of the themes of this debate has been consent, which was raised by the noble Baroness, Lady Ritchie, the noble Lords, Lord Dodds, Lord Murphy, and, of course, the noble Lord, Lord Empey. I note their comments but want to offer them further reassurance that it is the firm intent and desire of the Government to preserve Northern Ireland’s place in the UK. I say again that the approach is entirely compatible with the Belfast/Good Friday agreement. The principle of cross-community consent applies to matters for which the Northern Ireland Assembly is responsible. The consent mechanism, contained as it is in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU—an excepted matter in Northern Ireland’s devolution settlement. That is why the principle of cross-community consent does not apply.

Following on from that, the noble Lords, Lord Empey and Lord Dodds, made some strong comments about consent and where it came from. My response is that consent was intrinsic in the withdrawal agreement Act, including provisions to implement the Northern Ireland protocol. That received the approval of both Houses in January of this year. However, it is rightfully a matter for Northern Ireland’s political representatives to determine whether provision for alignment in the protocol should continue to apply, and that is why these regulations are necessary, as I set out in my opening remarks.

Let me clarify that the Government see the consent principle in the Belfast/Good Friday agreement as relating to the right of the people of Northern Ireland to decide whether to remain part of the United Kingdom. That is not the matter at hand, which is about the application of an international treaty to Northern Ireland. Therefore, it would not be right to allow one community to veto that decision. This matter was raised also by the noble Baroness, Lady Hoey.

The noble Lords, Lord Empey and Lord Murphy, spoke about businesses needing certainty, and of course they are quite right. On the points raised about the difficulty of returning to this matter every four or eight years—that is, if we get cross-community consent—it is essential that the continued application of certain aspects of EU law maintains the democratic consent of Northern Ireland’s elected representatives.

The noble Lord, Lord Empey, talked about a border down the Irish Sea. I say in response—he would expect me to say it, but I mean it—that trade between Great Britain and Northern Ireland is vital to the prosperity of the four nations of the UK, and we have committed to delivering unfettered access for Northern Ireland to the whole UK market. That is why we have provided legal protections against new checks or controls on Northern Ireland goods. Ensuring there are no barriers to the UK market for Northern Ireland firms is extremely important.

The noble Baroness, Lady Hoey, asked what would happen if the Northern Ireland Assembly broke down. I alluded in my opening remarks to the alternative mechanism, which is designed specifically for a scenario in which the Executive are not functioning. I point out to the noble Baroness that MLAs remained in office even when the Executive were not functioning, during their previous challenges.

The noble Baroness, Lady Ritchie, rightly raised a point about communication and asked what communication regarding the regulations there had been with the Northern Ireland Executive and the Assembly, and what discussions had been had. I say first that the Irish Government have been kept fully informed of the regulations. The noble Baroness can rest assured that working with Northern Ireland’s businesses and citizens to prepare them for the end of the year continues to be a top priority for me, the team and this Government. My department continues to work intensively with the Northern Ireland Executive, industry stakeholders and civic society, including through more than 20 meetings of the Business Engagement Forum and multiple meetings with community leaders over the past six months. I hope that this gives some reassurance that strong communication is at hand.

As I said in my opening remarks, the Government remain fully committed to implementing the withdrawal agreement. Our intent and purpose are to protect the Belfast agreement, and these regulations are an important part of that. This must be done in order to fulfil our obligations in international law. The regulations recognise the unique situation of Northern Ireland and give responsibility to those whom the people of Northern Ireland have elected to represent them. It will be up to those elected representatives whether Northern Ireland’s alignment with aspects of EU law continues. That is the essence of the regulations and I commend them to the Committee.

Motion agreed.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

The Grand Committee stands adjourned until 3.34 pm. I remind Members to sanitise their desks and chairs before leaving the Room.

15:24

Sitting suspended.

Food and Feed Hygiene and Safety (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020

Tuesday 1st December 2020 Grand Committee

Considered in Grand Committee

15:34

Moved by

[Baroness Penn]

That the Grand Committee do consider the Food and Feed Hygiene and Safety (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

My Lords, the hybrid Grand Committee will now resume. I will not read out the entire spiel because noble Lords are familiar with the drill.

[Baroness Penn (Con)]

My Lords, these regulations were laid before the House on 14 October. As noble Lords will be aware, this is one of a number of statutory instruments that implement the Northern Ireland protocol and technical changes ahead of the end of the transition period. The Government’s priority is to ensure that the high standard of food and feed safety and consumer protection that we enjoy in this country continues to be maintained now that the UK has left the EU, and beyond the end of the transition period.

The instrument does not introduce any changes that will impact the day-to-day operation of food businesses, nor does it introduce any new regulatory burdens. The overarching aim of the SI is to provide continuity for business. It will reflect our obligations under the Northern Ireland protocol and ensure that, following the end of the transition period, high standards of safety and quality for food and feed regulation will continue across the UK. These regulations concern food and feed law. The instrument is made under the powers in the European Union (Withdrawal) Act 2018 to make necessary amendments to UK regulations. It follows on from the 17 EU exit instruments in the field of food and feed safety made in 2019, which I will refer to as the 2019 regulations.

I must briefly draw attention to two technical corrections to the original SI, which were identified after the SI was laid and have been rectified by means of a correction slip. The corrections are as follows. First, on page 1, Regulation 1(2) previously read:

“Part 2 and Part 4 come into force on”.

It is now corrected to read:

“This Part, Part 2 and Part 4 come into force on”.


Secondly, on page 12, in Regulation 10(13), in the inserted Regulation 20A(b)(i), the substituted text at lines four and five, “may made regulations”, has been corrected to read “may make regulations”. Officials in the devolved Administrations have been kept fully informed.

The primary purpose of the instrument is to provide necessary amendments to implement the Northern Ireland protocol in the field of food and food safety by ensuring that retained EU law on food and feed applies only to Great Britain. It does so by removing references to Northern Ireland authorities and revoking corrections previously made to Northern Ireland domestic legislation in the 2019 regulations. EU food and feed legislation will continue to apply in Northern Ireland. For example, those functions currently undertaken by the European Commission to review and make changes to legislation were assigned by the 2019 regulations to the “appropriate authority”, these being the relevant Secretary of State in England and the relevant Ministers in Scotland, Wales and Northern Ireland. To implement the Northern Ireland protocol, it is now necessary to amend the definition of “appropriate authority” in retained EU law to remove references to Northern Ireland.

The secondary purpose of the instrument is to remedy deficiencies in retained European Union food and feed legislation. In particular, it accommodates legislation that has come into force since the 2019 regulations were made. The amendments are technical in nature—for example, removing references to the EU and its institutions, which will no longer be appropriate following the end of the transition period. Amendments include, for example, consolidating provisions allowing for the words “United Kingdom” or the abbreviations “UK” or “GB” to be used on identification marks. Similarly, amendments to the general food law will allow a period of 21 months after the end of the transition period for products of animal origin carrying a “UK/EC” identification mark to be placed on the English market. This measure should reduce the impact of the change in requirements for identification marks. Similar provision is expected to be introduced in Wales and Scotland.

A public consultation on the statutory instrument was issued in August. We remain grateful to the stakeholders who responded, with the majority being supportive of the legislative approach. All devolved Administrations have been closely involved in the development of this instrument and all have provided their consent for it.

In conclusion, I take the opportunity to reassure the Grand Committee that the overarching aim of the SI is to provide continuity for business. It will reflect our obligations under the Northern Ireland protocol and ensure that, following the end of the transition period, high standards of safety and quality for food and feed regulation will continue across the UK. Having effective and functional law in this area is key to ensuring that the standards of food safety and consumer protection that we enjoy in this country are maintained in the immediate and long term. I beg to move.

15:40

[Lord Bourne of Aberystwyth (Con) [V]]

My Lords, I thank my noble friend the Minister for setting out the regulations so clearly. As she says, they are technical in nature. Their purpose, as I understand it, is essentially twofold. The first is to provide in regard to a range of food and feed hygiene regulations for the implementation of the Northern Ireland protocol, which I understand and support, and to address a range of deficiencies in retained EU law in this area. The second purpose is largely to take account, as my noble friend said, of changes made in the law after withdrawal from the EU and during the implementation period.

I have some general comments to make and a few questions to ask, rather than raising a specific issue on any of the deficiencies which the regulations seek to address. I am conscious that the noble Lord, Lord Rooker, is speaking in the debate. He will doubtless have some telling points to make about areas where he certainly knows a thing or two.

I have two questions, if I may, on the implementation of the Northern Ireland protocol. The first relates to future divergence, which I assume is to happen at some stage. What is anticipated for our future law in this area and, if we diverge, what frictional pressure points will arise as a result of Northern Ireland continuing to follow the EU position while Great Britain ploughs its own furrow, if I may risk mixing the metaphor?

My second question relates to the protocol and paragraph 7.8 of the Explanatory Memorandum, on allowing

“the words ‘United Kingdom’ or the abbreviation ‘UK’ to be used on health and identification marks.

It also allows, according to the memorandum, for a continuation of the abbreviation “GB” as this is the International Organization for Standardization’s two-letter code for the United Kingdom—so “GB” and “UK” are to be used for the United Kingdom. This might appear curious and quaint and would perhaps not be a serious issue if Northern Ireland were going to be treated like the rest of the United Kingdom, but it is not. I understand why and, as I said, support that but it is a recipe for confusion if labelling is to be used in this way. It means that “UK” can be used for England, Wales and Scotland and “GB” can be used for the United Kingdom, while Northern Ireland, as a part of the United Kingdom, is to be treated as if it were a part of the EU. It smacks very much of one of those brilliantly funny episodes of “Yes, Minister”, but I suggest that it could cause confusion here. Is the Minister able to unravel this confusion a little?

I have further questions about the consultation, or should I say consultations, conducted in relation to these regulations and the impact statement—I do not think that it is an impact assessment—in the Explanatory Memorandum. I think my noble friend referred to the consultations. To the first consultation, which was made between 4 September and 14 October 2018, there were 50 responses. It is noted in the Explanatory Memorandum that 82% either

“supported or did not disagree with the … approach”.

I wonder if we can break that down a little, because there seems to be a very real difference between supporting and not disagreeing. In the second consultation, conducted more recently, between 20 August and 16 September this year, there were far fewer responses—only seven—but 71% supported it. It does not suggest that they “supported or did not disagree”. The approach in the latter consultation seems far more sensible, as it says how many people supported it and what percentage they were.

The memorandum went on to say that 29% of replies to the second consultation—the balance of them—“had mixed comments”, but there is no further elucidation of what they were. Presumably, those mixed comments involve some criticisms, if those people are not supporting the regulations for some reason or another. I wonder what those mixed comments are and I would be grateful if my noble friend could clear up some doubt on those points.

With regard to the impact statement, it is suggested that the impact on 200,000-plus agri-food businesses is that it will take each one an hour to read, digest and disseminate the information. I would suggest that that stretches credulity a little; there is far more meat in these regulations than an hour’s work. Does my noble friend have any comment on that, as it would seem to be greater than that? It also talks about the impact of familiarisation on the 419 local authorities and 22 port authorities affected. It does not say how minimal that impact is, unlike in relation to agri-food businesses. Has any assessment been made of the impact it will have on our local authorities and port authorities? I would be grateful if my noble friend could cast aside some doubt on that.

I do welcome the regulations in a couple of respects. The 21-month buffer period for the use of labels seems a common-sense approach. I also very much welcome the involvement of the devolved authorities. I hope that that approach will be followed in other regulations and orders where it has a considerable impact. That is a fundamental concern of the devolved Administrations, and I am relieved and pleased to note their involvement. With that, noting the concerns I have raised, I certainly support the regulations.

15:46

[Lord Rooker (Lab) [V]]

My Lords, I welcome these regulations. As I think I said in an aside when I signed on, I have never believed in Parkinson’s law so I will not take very long. The regulations are a good set of amendments to the law. I am a bit surprised that nobody with a Northern Ireland connection has turned up for this debate because if ever there was an example of the boundary and border down the Irish Sea, it is these regulations. What they do is to classify and regulate; they make it crystal clear that there is now a border down the Irish Sea. I am not opposed to that reality but the fact is that we were told it was not going to happen.

The industry affected by these regulations, food and feed, taken in its totality, is the UK’s largest manufacturing sector. It is very varied, as the noble Lord, Lord Bourne, said; its 220,000 businesses have been referred to, and I think there may be 500,000 to 600,000 restaurants, cafés and so on. The rest are factories, small firms and farms.

These are massive regulations. In fact, I misread the size of them and printed them by mistake, rather than searching them. I can well understand that for the specific company or business concerned, it should not take more than an hour to sort out the change in the regulations. Nobody, except I suppose the FSA itself, is responsible for the whole of these regulations—responsibility is probably shared with Defra as well. I can well understand the scepticism of the noble Lord, Lord Bourne, but the fact is that this is spread across the businesses.

I too was curious about paragraph 7.8’s explanation of whether “GB” equals “UK”. I never came across the International Organization for Standardization using “GB” to mean “UK” during my time at MAFF, Defra or the FSA. I well understand the potential confusion this may cause, specifically because Northern Ireland will be treated differently from Great Britain in respect of food and feed regulations. Reading paragraph 7.8 took me to paragraph 7.9. I made a couple of inquiries of the FSA, as it says at the end of the memorandum, “If you have a query, email Karen Pratt at the FSA”. I did that on two issues and Karen gave a brilliant response on behalf of the FSA. Overall, the Explanatory Memorandum is a model of its kind because it is so clear. I emailed about paragraph 7.8 and I am satisfied with the answer I received about slaughtering animals on the farm in certain circumstances. The other issue I raised concerned the British islands.

I have one query because my memory is uncertain on it. Paragraph 7.17 of the Explanatory Memorandum concerns Chernobyl and Fukushima. I thought that it was the case that we had lifted all of the Chernobyl restrictions in the UK regarding what would happen to sheep from the hills before they could go off to slaughter. I thought that we had got over all of that and we were clear. Do I take it that this applies only to imports from countries that are closer to Chernobyl than we are which may still have Chernobyl-type restrictions on bringing food animals to market in order to make sure that they are absolutely clear? I would like some clarity on that.

That said, this is a sensible change in the regulations that will get rid of some errors and consolidate a lot of other points, although I think that consolidation of the law in this respect will be required after we have finally broken clear of the EU once a deal has been done. However, I put on the record that after 1 January, the Food Standards Agency will not be responsible for the chaos at ports, or for the delays and shortages of food imports, which will be an inevitable consequence of the crazy way that we are leaving the EU. I have made my political point, if you like, because I want to defend the FSA. This is not its responsibility. With that, on behalf of the Opposition, for which I am guesting today, believe it or not, I consent entirely to these regulations.

15:51

[Baroness Penn (Con)]

My Lords, I thank both noble Lords for their contributions to the debate and I am glad that the regulations as outlined have been broadly welcomed. I shall pick up on the point made by my noble friend Lord Bourne, which lies at the heart of the approach in the protocol to a number of issues around where future regulations may be made and the scope for divergence between GB and Northern Ireland. On the approach to future policy, food and feed safety is one of the policy areas subject to detailed discussions between the Government and the devolved Administrations to explore what common framework arrangements are needed now that we have left the EU. The Food Standards Agency continues to have close working relationships with the Administrations in Scotland, Wales and Northern Ireland, and there is a commitment to a common approach across the UK, with the potential for evidence-based divergence. Good progress is being made to identify where common approaches are needed and what they might look like, along with the operational elements of the framework, such as how decisions will be made and the roles and responsibilities of each Administration.

A common framework will facilitate trade between different parts of the UK and help it to fulfil its international obligations, safeguard common resources and protect the UK internal market. I think that the question put by my noble friend was more about the potential divergence between GB, which will not follow the EU acquis, and Northern Ireland, which will, but the comments I have just made reflect the fact that policy in this area has been devolved to Wales and Scotland.

On Northern Ireland, there is of course also the potential for divergence if the EU changes its rules and regulations in this area. Under the Northern Ireland protocol, we have established the joint consultative working group. It will have both UK and EU representatives on it and will meet once a month, serving as a forum for the exchange of information and mutual consultation. The protocol provides that there will be an exchange of information about planned, ongoing and final measures in the EU laws listed in the annexes to the protocol and the EU shall inform the UK about planned EU Acts within the scope of the protocol, including EU Acts that amend or replace those listed in the Northern Ireland protocol. The UK will continue to engage with the EU through the joint consultative working group and other committees to be set up under the protocol. This will facilitate the exchange of information and ensure that, from the perspective of Northern Ireland consumers, their interests are being represented and considered in EU decisions.

The noble Lords asked a number of other questions. My noble friend Lord Bourne and the noble Lord, Lord Rooker, asked about the UK versus GB labels, the consultation responses, the impact assessment and the assessment that it would take around an hour to digest the changes in this statutory instrument. The noble Lord, Lord Rooker, also asked about the approach to Chernobyl and Fukushima. If they will allow me, I will give precise answers to their questions in writing as soon as possible after this debate and thus give them the clarity that they deserve. However, I think that we are all in broad agreement about the benefit of these regulations and I commend them to the Committee.

Motion agreed.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

The Grand Committee stands adjourned until 4.15 pm. I remind Members to sanitise their desks and chairs before leaving the Room.

15:55

Sitting suspended.

Arrangement of Business

Tuesday 1st December 2020 Grand Committee

Announcement

16:15

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, the hybrid Grand Committee will now resume. All Members will be treated equally, whether participating physical or virtually. Members in the Room should wear a face covering except when seated at their desk, should speak sitting down, and should wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.

I remind Members participating here in the Room that their microphones are turned off. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same.

Ecodesign for Energy-Related Products and Energy Information (Amendment) (EU Exit) Regulations 2020

Tuesday 1st December 2020 Grand Committee

Considered in Grand Committee

16:16

Moved by

[Lord Callanan]

That the Grand Committee do consider the Ecodesign for Energy-Related Products and Energy Information (Amendment) (EU Exit) Regulations 2020

Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, these regulations were laid before the House on 13 October 2020. The draft instrument serves several purposes, from fixing deficiencies in retained EU law to implementing the Northern Ireland protocol, which I will explain further shortly. Ultimately, it is necessary to ensure the continued operation of ecodesign and energy labelling policy in the UK after the end of the transition period.

Before I talk specifically about the instrument, it may be helpful if I speak briefly about how the EU framework for ecodesign and energy labelling has worked. In recent years, the EU has introduced, through the ecodesign directive and the energy labelling framework regulation, a suite of product-specific regulations. Ecodesign regulations are about minimising the costs and environmental impact of products used in both homes and businesses by setting minimum energy performance standards.

Energy labelling regulations provide consumers with information on a given product’s energy performance to allow them to make informed purchasing decisions. In 2020, these policies will save households approximately £100 on their annual energy bills and lead to greenhouse gas emissions savings of 8 million tonnes of CO₂, while also driving innovation and competitiveness among businesses.

This brings me to the instrument being debated today, which serves four purposes. It amends retained EU law to ensure that the ecodesign and energy labelling regime remains operable in the UK once the transition period has ended. It makes necessary amendments to the 2019 EU exit SI to account for regulations that have come into force between 29 March 2019 and 31 December 2020. It implements the Northern Ireland protocol and unfettered access for ecodesign and energy labelling policy. It also implements a change to replace energy labels’ use of the EU flag with a UK flag, and removes EU languages from these labels.

I turn to the amendments. First, amendments to retained EU ecodesign and energy labelling legislation are required to ensure that the legislation can continue to operate in the UK from 1 January 2021 without disruption. Fixes include, but are not limited to, removing EU-related references. For example, new energy labelling regulations for some products have come into force in the EU. These require suppliers of relevant goods to provide new re-scaled energy labels with their products from 1 November 2020. However, retailers do not need to display these until 1 March 2021. The SI ensures that the March 2021 requirements, which would otherwise not become retained EU law, will still come into force in March as intended.

Secondly, the 2019 EU exit SI for this policy area ensured that, in the event that no agreement was reached with the EU, existing minimum performance and energy labelling requirements would continue to operate and remain enforceable in the United Kingdom. The UK of course remains bound by EU law until the end of the transition period, and a number of EU ecodesign and energy labelling regulations have come into force since this first EU exit SI was laid. As a consequence of those new EU regulations, some aspects of our 2019 EU exit SI no longer work as intended. This SI makes amendments to the original SI to ensure that the new EU ecodesign and energy labelling regulations will be fully operable in the UK after 1 January 2021.

Thirdly, on legislative implementation of the Northern Ireland protocol and unfettered access, this instrument amends our 2019 EU exit SI and the underlying legislation so that certain UK-wide provisions are limited to Great Britain only. This will avoid confusion, as EU requirements continue to apply in Northern Ireland after the transition period, as per the terms of the Northern Ireland protocol.

This SI also allows relevant qualifying Northern Ireland goods that comply with EU ecodesign and energy labelling regulations to be placed on the GB market without undergoing additional checks. Qualifying Northern Ireland goods are defined in another instrument laid by the Cabinet Office. This SI will enable UK market surveillance authorities to ascertain whether a product came into the GB market from a Northern Ireland-based business through the information provided in a product’s declaration of conformity.

Fourthly, on labelling and marking requirements post transition period, this SI implements a decision to replace the EU flag on energy labels with the UK flag. Alongside this, we have removed EU language text from energy labels. As the UK is no longer part of the EU, the continued presence of EU logos and languages on energy labels would be inappropriate in UK legislation and could create confusion for consumers. UK energy labels have been made available to businesses free of charge through an online service to support compliance with this amendment.

Some UK trade associations wrote to the Secretary of State with concerns that they had had little time to prepare for these changes. Minister Kwarteng responded on 18 October, explaining that the change was a necessary fix to deficiencies in the law and that the Office for Product Safety and Standards would take a proportionate approach to market surveillance, as it has always done.

Officials in my department have undertaken the appropriate assessment of the impacts of this instrument on businesses and relevant bodies. It showed that the estimated cost to business was approximately £1.95 million, so a full impact assessment was not required. Nor was a formal consultation required under the legal powers used, Sections 8 and 8C of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018.

In conclusion, these regulations are necessary to ensure the continued functioning of ecodesign and energy labelling policy in the UK, while upholding our commitments under the Northern Ireland protocol, such that the UK, its consumers and its businesses may continue to realise the benefits of this policy. I commend the regulations to the Committee.

16:23

[Lord Moynihan (Con)]

My Lords, I declare my interests as set out in the register, drawing particular attention to my chairmanship of Buckthorn Partners, which is active in the energy transition space. While the regulations are welcome and specific to the narrow issue of ensuring continuity after the end of the transition period, this debate provides a useful, albeit brief, opportunity to highlight the importance of government returning to this issue as soon as parliamentary time permits, since the system we are transposing into UK law is far from perfect and needs further consideration in terms of its objectives, ease of use and effectiveness in the welcome move towards substantial government support for energy transition.

To put my questions to the Minister in context, it is important to set the regulations in context. It is many years since I was a Minister for Energy in another place. During that time, significant developments have taken place in the context of ecodesign which have led to a European framework. The first major initiative in the sector was the European ecolabel, a voluntary scheme established to encourage businesses to market products and services that were kinder to the environment, with products and services awarded the right to carry the European flower logo. Ecodesign competitions followed. Ecodesign aspects were integrated into ISO standards, and framework conditions developed by the EU moved initially from waste management strategies and packaging to other end-of-life directives which aimed to follow the three Rs—reduce, reuse and recycle.

Educational initiatives were launched and now hundreds of ecodesign-related labels have come into existence across the world. The European Commission established integrated product policies to support the sustainable consumption and production action plans which underpin the regulations before us today.

Nevertheless, despite this remarkable increase in worthy activity, many issues remain. There has been a great deal of talk about environmental product development but, in many cases, too little change in practice. To remedy this, we will need to address the definition of each phase of a product lifespan from not just the producer’s perspective but the user’s. Just as much importance should be attached to the use as well as the after-use phases in the selection of ecodesign criteria. Do the Government intend to address this in the wider context of the 10-point plan for a green industrial revolution announced last month, particularly under point 7, greener buildings, where a target milestone was set for the launch of a world-class energy-related products policy framework? The document states:

“We will push for products to use less energy, resources, and materials, saving carbon and helping households and businesses to reduce their energy bills with minimum effort.”


The target milestone for this objective is set for 2021. When does the Minister expect this work to begin and will the House have the opportunity to debate ecodesign and energy information standards in this context? If so, this measure should be seen, as I believe it is, as a stepping stone to the design and development of more whole-life standards, thus enabling the UK to take the lead in ecodesign labelling.

Only last week, the Secretary of State for Housing, Communities and Local Government published the social housing White Paper, The Charter for Social Housing Residents, which focused on providing tenants in social housing with more information so that they can hold landlords to account. This is yet another example of the welcome incoming tide of green, sustainable change to everything we do in production lines, in our economy at large and in society. Energy information and ecodesign will need to keep abreast of these changes and be embodied in life-cycle principles. At the moment, too many of the ecodesign criteria are independent of one another, which increases the complexity of ecodesign labelling’s inner logic. There is no effective connection between the production and end-of-life phase.

I appreciate that this is not the time to do more, and I urge the Government simply to ensure that in 2021 they look carefully at the current system. Clean production, zero emissions, renewable resources, non-toxic resources, compressibility, short-distance eco-transports and limited eco-friendly to no packaging are all important production-phase criteria for ecodesign. At the point of sale, we need to introduce regional businesses, upgradeability, durability, shared-use potential, repairability, guarantees and maintenance, recyclability and compostability. For today, the two must be considered together. I urge the Government to recognise the challenge and to ensure that, as far as possible, investments made in ecodesign bring returns in the sense of ecological advantage.

Elsewhere, the blind spots of ecodesign are well understood and deserve urgent consideration so that we can seek to lead the world in the area of responsible environmental practice. Ecodesign is an instrument for increasing the potential ecological performance of a product, applying specific criteria, some of them with high interrelationships. Both the selection of the criteria and the realisation of the potential ecological advantages are beyond the reach of ecodesign. Future ecodesign strategies should wherever possible encompass the entire lifecycle of a product in the design phase, from the manufacturer to the consumer.

Ecodesign is an instrument; it is not a strategy. It is a welcome instrument which concerns environmental improvements; it is not an appropriate tool for setting these goals. Government needs to integrate ecodesign into a wider strategy, which can be achieved only by close collaboration with industry and by recognising the importance of continuing dialogue in Europe with our friends.

My questions on the regulations are brief and as follows. Is the Minister satisfied that the complex rules regarding Northern Ireland are workable, in particular the need for all products listed in the categories we are considering today to comply with relevant EU legislation, including the EU flag and QR codes that link to the required product information on the EPREL database? What rules will be expected to apply to goods placed first in the Northern Ireland market which are then sold elsewhere in Great Britain? Will EU labelling on those products not create the very confusion that the Minister is seeking to avoid in the rest of Great Britain, given the contents of EU labels, flags and EU languages on such products? In that context, who will undertake enforcement of these regulations, and is my noble friend the Minister persuaded that they will be sufficiently well resourced to undertake these responsibilities?

In addition to the point my noble friend made about the time constraint, what else did the Government learn from the informal consultation phase on the regulations which he can share with the Committee? Is a year enough time to allow the permissible CE mark for some goods to continue in place of the UKCA mark? Does everyone involved understand the need to act within that allotted timeframe, and are Ministers confident that it is sufficient when taking into account the need to link QR codes to the required product information on publicly accessible websites?

I look forward to hearing from my noble friend and, in the meantime, very much welcome the Government's objective to provide for the continuity and ease necessary after the transition period.

16:30

[Baroness Bennett of Manor Castle (GP) [V]]

I thank the Minister for his clear introduction to the statutory instrument, and it is a pleasure to follow the clear expressions of concern of the noble Lord, Lord Moynihan, for green, sustainable change, the need for systems thinking and the joining up of various elements of environmental impacts in understandable ways.

It is clear that now, on 1 December, there is little alternative but to back the statutory instrument. As have so many noble Lords in recent days and weeks, I can only say thank you to the Secondary Legislation Scrutiny Committee for its clear examination of this and so many other SIs. I note that the committee says that

“this instrument allows qualifying NI goods which meet EU … requirements to be placed on the GB market, even where these requirements may differ from those that will apply in GB after the TP”

and that the instrument will also

“allow products from GB to be placed on the NI market, provisions are made for a UK(NI) mark which will have to accompany all products which have been CE certified by UK bodies and are destined for the NI market.”

The report continues, but I shall stop there. I am thinking particularly about small, independent businesses. Is the Minister confident that they are getting the advice and have the chance to understand these complex, very last-minute arrangements? As he said, this is another change from the 2019 statutory instrument. I am thinking of traders on eBay, perhaps, and similar trading platforms. What contact have the Government had not just with big businesses but such trading platforms, which are these days used by many small traders? They are suffering under the turmoil of Covid and now have this problem, but as we see regulations change and possibly diverge in future, it will only become more complex. There is a need to deal with the next month and the next 12 months, but will support also be in place for the long-term, continuing problems that will inevitably arise?

Both the Minister and the noble Lord, Lord Moynihan, noted that this is a chance to look over where we are with ecodesign. I doubt that many noble Lords can forget the period when these EU regulations were applied—or were mooted—over the past decade or so. It was a tabloid storm. British floors would turn into archaeological assemblages like a slovenly medieval household without 2,000-watt vacuum cleaners. British marmalade would be spread on soggy, white or somehow or other inadequate toast without a huge blast of heat. We would all be breaking our necks on the stairs without incandescent lighting burning up the planet while showing us the way. I wonder whether some of the journalists who were writing that guff then might like to recant now, particularly as, as the Minister noted in his introduction, it had the “terrible” effect of saving households £100 a year, as well as cutting greenhouse gas emissions.

Now it seems we are in a different age. The Government have issued a consultation on higher energy standards, improving on EU standards. I can only applaud that. The cleanest, greenest, cheapest energy you can have is the energy you do not need to use. The EU headline energy efficiency target for appliances for 2030 is at least 32.5%. Do the Government have in mind how much they would like to exceed that figure by? I also note that the consultation refers to the possibility of appliances being part of a smart grid. Your freezer might be part of the energy storage system, and there is talk of improving the performance of ovens and stove tops from A to A+, which could save 300,000 tonnes of carbon dioxide each year.

There is also talk of displaying lifetime energy costs at the point of purchase for a product, plus additional information on the cost of running it and, importantly—this picks up points made by the noble Lord, Lord Moynihan—how easily it can be repaired, reused and recycled, and how durable it is. Will the Minister consider whether the Government could sign up to the Manchester declaration, also known as the right to repair? We would be talking about an end to planned obsolescence, the creation of a situation where, if any element of an appliance goes wrong, it can be repaired, ideally at home or in a repair cafe, with the parts available when needed and the documentation available to assist the repairer. This is in a context where—I cite a German study from 2015, but I doubt the situation has changed—there was effectively a doubling in the proportion of defective appliances sold from 2004 to 2012, and the number of appliances failing in their first five years of use rose from 7% to 13%. We are talking about a real change towards ensuring that we and our appliances tread lightly on the planet.

We come back to Northern Ireland. Our discussion has already revealed how fast-changing this area is in technology, practice, consumer expectation and the urgent planetary need. The future will surely look back and ask just what we thought we were doing in the past few decades in terms of planned obsolescence. Batteries in a certain brand of popular phone were designed not to be replaced. There is the sheer profligacy of our use of resources. In Northern Ireland, the trading situation the Minister outlined in his introduction means there will be ongoing considerable difficulty. Are the Government ready? Do they have sufficient plans in place to help small business in particular, not just through the inevitable chaos of January and the next 12 months but in the years to come?

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

The noble Baroness, Lady Bowles of Berkhamsted, has withdrawn, so I call the noble Lord, Lord Grantchester.

16:37

[Lord Grantchester (Lab)]

I thank the Minister for his careful explanation of the order before the Committee. As he says, it does a number of things while basically transposing the EU ecodesign and energy labelling directives into equivalent standards in UK law. The effective continuation of the ecodesign directive of 2009 ensures a progressive energy efficiency standard for electrical products, so that the least efficient are progressively withdrawn from sale, and it embraces consumer rights in respect of the purchase of electrical goods, delivering continuous improvement in energy efficiency. In tandem with this, the labelling framework regulations of 2017 cover the energy efficiency ratings of a product as guidance to consumers.

We can all clearly see the importance of the continuation of those directives and that they are made effective. The other features of the SI update further measures to reflect changes in EU law made since the earlier order was laid at EU exit time. I can clearly approve the order today to continue the policy to reduce the carbon footprint of energy-related products, to support informed purchasing decisions and to encourage the uptake of the most energy-efficient products.

However, the difficulty of this SI clusters around the Northern Ireland protocol, which other speakers have commented on, and the timing of various directives and implementation in UK law. My first specific query relates to the fact that, since exit day, the dates of further EU measures and their implementation through this SI have got out of alignment in respect of the new lighting regulations. I understand that energy labelling requirements for luminaires are repealed in the UK, while ecodesign requirements in the new lighting regulations will not apply until September 2021. Can the Minister clarify what is being done about that mismatch?

In other respects the provisions appear to be consistent with measures that existed before EU exit and what will continue to exist into the future. However, this SI does not seem to accommodate all the issues that were highlighted through the Northern Ireland situation. Northern Ireland will continue to be in the EU regulatory system and the ecolabel with EU badging, as the Minister explained. Products within Great Britain will be marked on UK CA marking but with the additional UK(NI) mark, should products be marketed into Northern Ireland.

It is all a little confusing to understand from the Explanatory Memorandum what is the position of EU goods in Northern Ireland, whether produced there or not, and their labelling, should they be sold into Great Britain. This could have particular reference to goods from the Irish Republic. Am I correct to understand, from paragraph 2.30, that these goods must be rebadged as UK? The UK has yet to produce separate agreements conforming to EU standards, and therefore the existence of a UK mark will not be sufficient to secure marketing arrangements. In the event that no agreement is reached with the EU on the UK’s future relationship, will GB companies have to agree on an additional EU label over and above the UK label? Over time, there could be divergence between Northern Ireland and Great Britain on standards with reference to EU protocols. There will then arise many foreseeable anxieties over safety and other standards for consumers to understand their differences.

There is also no agreement yet on access by Northern Ireland to the EU product database, which informs ecolabelling and product standard activity. The UK should not, as a third country, have access to this database and needs to set one up on its own. Can the Minister update the Committee on how that work is proceeding and whether it will be ready to be implemented from 1 January? I presume the Minister will confirm that Northern Ireland will need to have access to the EU database if it is to continue to work to EU ecolabelling criteria.

What plans do the Government have regarding the declarations of conformity of goods to various standards in and out of Northern Ireland and their checking of these once divergence proceeds between the EU and the UK? What plans do the Government have to address the confusing picture that will be placed in front of the consumer? Which consumer bodies will be drawn into the communication to help with the explanations to the consumer, and how will this be done?

There was little information in the consultations undertaken with stakeholders, other than general agreement to the necessity of these regulations. However, stakeholders were anxious about the limited timeframe to implement the required changes to UK energy labels, and the Minister did update the Committee in the further communication between the Minister in the Commons and various stakeholders in October. Was anything agreed further with stakeholders that could help them comply with the reducing timeframes to agreements before the end of the transition period, and are stakeholders now content?

I thank the noble Lord, Lord Moynihan, for his further questioning on ecodesign in relation to after-use and the climate sensitivities to the lifetime of any product. These are important matters that he raised. He also forsesaw confusion in products that originate in Northern Ireland and in who is responsible for enforcement after the transition period. I also thank the noble Baroness, Lady Bennett, who also raised issues that affect small business traders and modern online platforms. Regarding ecodesign, how will the UK make further efficiency gains over and above those of the EU?

Having said that, it is very important that the UK continues with the commitment to the standards, ecodesign and energy labelling regulations that have proved so beneficial in reducing both energy bills and emissions.

16:45

[Lord Callanan (Con)]

I thank noble Lords for their valuable contributions to this debate. The Government are committed to providing certainty for businesses and, of course, the public in any scenario from 1 January 2021 by ensuring that the UK has a functioning statute book after the transition period, and these regulations will play their part in helping to accomplish that. They will ensure continuity for our ecodesign and energy labelling regime, which has to date helped us to achieve significant savings on energy bills and carbon emissions, making a realistic and noble contribution to our national carbon reduction commitment.

In response to my noble friend Lord Moynihan, the noble Lord, Lord Grantchester, and the noble Baroness, Lady Bennett, who raised questions regarding the operation of the policy in Northern Ireland, we are confident that the rules in Northern Ireland are workable. This has been communicated to stakeholders via our technical notice, and UK market surveillance authorities are confident that they have sufficient evidence to ensure compliance with this. Qualifying Northern Ireland goods are goods placed on the GB market by qualifying Northern Ireland businesses and, as such, are entitled to unfettered access to the GB market. This means that they are free to circulate without any customs supervision, tariffs or restrictions. Qualifying Northern Ireland goods are defined in draft regulations laid under Section 8C(6) of the European Union Withdrawal Act 2018 entitled the Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020.

My noble friend Lord Moynihan raised questions about the circular economy principles. They form a part of ecodesign requirements, and of course that is led by officials from Defra. In the UK, we will endeavour to support circular economy principles under ecodesign after the end of the transition period. My noble friend also asked about consultation. Formal consultation was not required, as I said, by the legal powers used, Sections 8 and 8C of and paragraph 21 of Schedule 7 to the European Union (Withdrawal) Act 2018. In addition to that, we concluded that no consultation was necessary as this SI makes the required changes only to ensure a functioning statute book in the UK, and the costs involved are minimal, as I said in my introduction.

On the issue of CE marking, the 12-month standstill approach was agreed by the Cabinet Office on advice provided by officials. Ministers are confident that this timeframe is sufficient. The Office for Product Safety and Standards is responsible for enforcement and has been for a number of years, and it is confident that it has the resources required to continue with those activities.

The need for QR codes has been communicated with stakeholders at many events over the summer and most recently in November. We have also published a technical notice on GOV.UK that supports business preparedness for the end of the transition period. Additionally, my department determined that this deficiency should be fixed from 1 January 2021 without a transition period to avoid creating potential confusion for consumers with the continued presence of EU flags on energy labels for goods designed to meet Great Britain ecodesign requirements from 1 January 2021.

I also thank the noble Baroness, Lady Bennett of Manor Castle, for her questions on whether businesses and traders are prepared for the changes brought in by this SI. We have communicated with a number of small businesses in the UK, through their various trade associations, that represent key sectoral interests in the UK. We have also responded to a large volume of direct communication from businesses, and we are confident that the majority of them are aware of the requirements. As I said in my introduction, a letter was written to the Secretary of State to this end on 14 September 2020, signed by a number of stakeholders, including the British Retail Consortium, Make UK, techUK, AMDEA, BEAMA, the Lighting Industry Association, GAMBICA and the British Home Enhancement Trade Association. However, as the market surveillance authority, the Office for Product Safety and Standards will take a proportionate and reasonable approach to market surveillance on this matter, we believe that the concern is somewhat mitigated. The noble Lord, Lord Grantchester, also raised a question on this point, and I hope that I have been able to reassure him on this matter.

The noble Baroness, Lady Bennett, also asked about the Manchester declaration. As recently announced in the Prime Minister’s 10-point plan, we will set out our world-leading product policy in 2021, continuing to work with international partners and across government to achieve the benefits of energy and resource efficiency.

The noble Baroness also asked a question on the Northern Ireland protocol. I covered that in my earlier response, so I hope that has already been answered. However, I would like to add that the Northern Ireland protocol has been implemented in such a way for ecodesign and energy labelling that it will continue to operate long into the future.

I thank the noble Lord, Lord Grantchester, for his concerns about the lighting regulations, on which officials have launched a consultation. We are closely monitoring amendments at an EU level. We will ensure that future policy meets our ambitions for high standards and consumer savings.

On the EU product database, there are no current plans to create a UK equivalent to the EPREL database. Businesses placing products on the market in Northern Ireland will, of course, have access to the EPREL database to comply with the relevant EU requirements, which they must do.

The noble Lord also asked how we will monitor and enforce the policy should requirements in the EU and the UK diverge. I reassure him that the UK market surveillance authority will continue to carry out its duties in Northern Ireland according to the relevant EU standards and in Great Britain according to the relevant UK requirements.

I hope I have been able to deal with all the questions that have been raised, and I will underline once more the four purposes of the instrument. It will use powers under Section 8 of the withdrawal Act to amend retained EU law to ensure that the ecodesign and energy labelling regimes continue to operate without hindrance in the UK after the end of the transition period. It will amend the first EU exit SI to take account of the new regulations that come into force at an EU level between 29 March 2019 and 31 December 2020, and therefore in the UK following the extension of Article 50 and the transition period. It will implement the Northern Ireland protocol and ensure the unfettered access of energy-related products that meet qualifying Northern Ireland goods requirements, as I outlined. Finally, it will enable labelling and marking requirements to take effect from 1 January 2021, replacing EU flags and language text with UK flags and text on energy labels, while implementing an end date to the recognition of CE marking 12 months after the end of the transition period. With that, I commend the draft regulations to the Committee.

Motion agreed.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

That completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.

Committee adjourned at 4.53 pm.