Grand Committee
(1 year, 3 months ago)
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Arrangement of Business
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The Deputy Chairman of Committees (Viscount Colville of Culross) (CB)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes. I think we are expecting at least six votes this afternoon.
Protocol on Ireland/Northern Ireland: Follow-up Report (European Affairs Committee)
(1 year, 3 months ago)
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Lord Jay of Ewelme
That the Grand Committee takes note of the Report from the European Affairs Committee Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: Follow-up Report (2nd Report, HL Paper 57).
Lord Jay of Ewelme (CB)
My Lords, I rise to move the Motion standing in my name on the Order Paper, one of two Motions which invite the Grand Committee to take note of recent work by the Sub-Committee on the Protocol on Ireland/Northern Ireland, which I have the privilege to chair. The first of the reports was published more than a year ago, at the time when the UK’s relationship with the European Union was not good. The second, and most recent, report was published in an altogether more positive climate, following the agreement in February this year on the Windsor Framework between the UK and the EU. Given the changed political landscape since the beginning of this year, it is this most recent report that will be the focus of my remarks this afternoon.
The Government replied to the report earlier this afternoon. I am very grateful for such a speedy response, but I am afraid that I have not yet been able to study it in all the detail that I am sure it deserves. I look forward to doing so after this debate, and it will no doubt inform the Minister’s reply to the debate later this afternoon.
The sub-committee’s membership includes a wide range of views both on the constitutional status of Northern Ireland and on the protocol and the Windsor Framework. None the less, we once again succeeded in agreeing our report unanimously and by consensus. I believe this gives added weight to our conclusions and recommendations.
The Windsor Framework inquiry received many oral and written submissions, including from the British Government, business representatives, trade bodies, academic, legal and trade experts and representatives of community organisations. The sub-committee also visited Brussels in May and had a number of useful and productive discussions, including with Vice-President Šefčovič and his team. I congratulate Maroš Šefčovič on his new and expanded responsibilities, but I hope that he will not lose sight of his continuing responsibilities for relations with Great Britain and Northern Ireland.
On the basis of the wide-ranging evidence we received, we concluded that the Windsor Framework was an improvement on the Protocol on Ireland/Northern Ireland as originally negotiated. Indeed, I would say it is a marked improvement. Nevertheless, it is evident that problems remain. Business representatives and other stakeholders have welcomed the agreement on the Windsor Framework by the UK and the EU and the potential it provides to resolve problems sensibly in future. They particularly highlighted the benefits of the provisions of the Windsor Framework on movement from Great Britain to Northern Ireland via the green lane of retail goods, agri-food produce, including chilled meats, parcels, pets and human medicines. However, for some businesses we heard that the processes under the Windsor Framework would be more burdensome than under the protocol as it has operated with its grace periods and easements. While the green lane will benefit large retailers in particular, some retailers and some other sectors may have to use the red lane.
The report analyses evidence from witnesses on the overall impact of the Windsor Framework. Witnesses describe the technical and legal complexity of the Windsor Framework and the confusion that may arise from the difference in emphasis between the UK and the EU in their description of some of its provisions. We concluded that the UK and EU together really must publish a comprehensive summary of the Windsor Framework provisions, including the consolidated text of the original protocol as amended by the Windsor Framework. Perhaps the Minister can confirm that the Government will indeed do so.
Chapter 3 of our report focuses on the movement of goods, including the red and green lanes and the movement of agri-food, with the attendant requirements for new labelling. We endorse the calls for more clarity about the new arrangements for movements of goods between Great Britain and Northern Ireland.
Our report was in its final stages of preparation when the Government published additional guidance on 9 June. That guidance and the subsequent guidance of 28 July will be the subject of a follow-up committee evidence session next week.
Chapter 4 looks at human and veterinary medicines and the movement of pets. We noted the widespread welcome from the pharmaceutical industry for the Windsor Framework’s provisions on human medicines, which are seen as a sustainable solution to the problems with medicine supply to Northern Ireland, albeit with calls for the Government to intensify their engagement with stakeholders as the pharmaceutical industry prepares for the start of new measures on 1 January 2025.
While welcoming the extension of the grace periods for veterinary medicines until the end of 2025, the veterinary, farming and agri-food sectors all expressed serious concerns that a mutually agreed solution has yet to be reached. The report urges the Government to intensify their engagement with the EU and industry to identify a sustainable solution as a matter of urgency, to avoid a cliff edge in 2025. I hope the Minister will be able to tell us what progress has been made since the report was published.
I do not want to go into detail on VAT, excise duties or state aid, important though they are. I do want to say, as chapter 6 of our report notes, that business representatives stressed to us that regulatory divergence, whether between Great Britain and Northern Ireland or between Northern Ireland and Ireland, remains their number one concern. The report urges the Government and the EU to undertake substantive assessments, for all planned legislation, of the impact of regulatory divergence on Northern Ireland.
The committee also renewed its call, made repeatedly since March 2022 with the support of Northern Ireland stakeholders, for the Government to create and maintain an up-to-date record of regulatory divergence and its impact on Northern Ireland. The committee simply fails to understand why this is apparently either too difficult or unnecessary, or both. Perhaps the Minister can set us straight there, too.
Chapter 7 examines the democratic deficit occurring under the protocol and the extent to which it was addressed by the Windsor Framework, not least by the new Stormont brake. The Stormont brake divides opinion: some regard it as a genuine and innovative attempt to give Northern Ireland politicians a voice on the application of EU law to Northern Ireland, while others argue that the stringent conditions for its use and the limited scope of its application mean that it will have negligible impact. Time will tell us how significant it will prove to be in practice.
Chapter 8 of our report examines the role of the Court of Justice of the European Union, concluding that there has been no substantive change.
Chapter 9 analyses the proposals in the Windsor Framework on enhanced dialogue and engagement, both between the UK and the EU and with Northern Ireland stakeholders. The proposals for enhanced dialogue between the UK and the EU and engagement with Northern Ireland stakeholders are of course welcome. However, the structure for bilateral dialogue between the UK and the EU is more developed than the engagement with Northern Ireland, where detail remains lacking. If such engagement is to give Northern Ireland stakeholders a really meaningful voice, as it must, the UK and the EU need to ensure that it is properly structured and resourced and has real substance.
Finally, as the continued suspension of the power-sharing institutions demonstrates, political tensions in Northern Ireland over the protocol and the Windsor Framework remain acute. In welcoming the Windsor Framework but focusing on the work still to be done, we acknowledge the importance and the difficulty of resolving these issues to the satisfaction of all communities in Northern Ireland. I beg to move.
Lord Frost (Con)
My Lords, I thank the noble Lord, Lord Jay, and his sub-committee for this excellent and important report. It rightly highlights many of the uncertainties around the Windsor Framework and the lack of clarity about its operation. I too look forward to digesting the Government’s response when I have time.
I understand why the Prime Minister wanted to put an end to the tensions of recent years over Northern Ireland, but I am sorry to say that I regret the way in which it has been done. The Windsor Framework is said to be proof that good faith and a softer approach can pay dividends with the EU; I am afraid that I disagree. For me, it is proof that you never get a good result in a negotiation if the other side can tell that you just want a deal. As a result, I fear that its benefits have been oversold and the temporary reduction in friction over Northern Ireland has been bought only by conceding many of the points at issue. I will briefly explain why and highlight four problems.
First, I do not honestly think the Government have been totally clear about the nature of this agreement. The name may have changed, but we are still dealing with, essentially, the old protocol. The EU is still the goods and customs regulatory authority in Northern Ireland; its provisions are implemented by EU laws, not ours. In my view, the Stormont brake is a trivial and probably unusable add-on to something that was already in the protocol. The committee said and the noble Lord, Lord Jay, noted:
“There has been no substantive change to the role of the CJEU”.
It is not a new solution. Fundamentally, it is the old one and can be expected to generate the same problems.
Secondly, the workability of the framework’s limited new elements looks increasingly questionable. I wrote in February that the red and green lanes and the more relaxed rules on food standards and so on would probably improve the situation. I am no longer quite so sure. We are seeing operators setting out the practical difficulties with the green lane; on food standards, we seem to have agreed that people in Northern Ireland can consume GB-standard foods only if they are imported—they are not allowed to make them themselves. The Government claimed six months ago that there would be “no sense” of an Irish Sea border. We cannot really say that that is the case at the moment.
The third difficulty, which is crucial, is that the Government’s stance has changed. They have now committed to defending and supporting the framework. This is fundamental. The Johnson Government, of which I was part, always took the view—many criticised us for taking it—that the protocol was unsatisfactory and temporary. We always hoped that, ultimately, divergence by GB would produce the collapse of the protocol arrangements, whether consensually through a vote, a further negotiation or otherwise. We always wanted something better. Now, though, the Government are committed to the view that the Windsor Framework is better and should be defended. The consequence is that, as problems emerge—as they will—the Government must ally themselves with the EU, defend these new arrangements and impose them on a deeply divided Northern Ireland. They must actively support rules that destroy long-standing trade arrangements in this country and impose laws without consent in Northern Ireland. When problems emerge, as they do, for example over horticultural trade in Northern Ireland, they deny that they exist. I am afraid the Government will not find that comfortable. I fear the long-term consequences.
The final difficulty is that the Government’s commitment to the framework will shape their broader policy. That is why I cannot entirely share the view of those on my side of the argument who say, “Yes it’s imperfect, but it’s time to move on”. The framework creates a huge incentive to avoid diverging from the EU in relevant areas, because doing so will make its arrangements less and less workable, more vulnerable to EU interdiction and harder to defend as a success. Perhaps we have already seen the first consequences in the watered-down retained EU law Act.
The Windsor Framework exists. It seems that we will have to live with it for some years yet, but it is a sticking plaster and not a real solution to the underlying problems. If the Government had said something such as, “This deal softens the protocol but it does not remove it; it is the best we can get for now because we did not want to use the NI Protocol Bill and the EU knew it, but that cannot be the end of the story”, that would have been a fair statement of their position and much easier for people on my side of the argument to get behind. As it is, we are supposed to believe that the problems have been solved, but they have not. It leaves us where we started, with the British Government only partly sovereign over their territory. That is still a bitter pill to swallow, and in the long run I do not see how it can stand.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I record my thanks and grateful appreciation to our chair, the noble Lord, Lord Jay, who has steered a committee of individuals from varying political perspectives to achieve consensus and agreement around two reports: last year’s follow-up report on the protocol and this year’s report on the Windsor Framework. That was no mean achievement, because we all came from different persuasions, some of us supporting the protocol and the Windsor Framework and others opposed to it. However, I want to move on from the reports; they are both very detailed, but we are now in the space where we have to move forward.
For me, the Windsor Framework is the only show in town, and over the next two days we will have business leaders from across the world descending on Belfast. In that context, and the need to, shall we say, underpin our political institutions—I hope they can be restored shortly—I would say that we need political and economic stability. Therefore, why would businesses in Northern Ireland not want to avail themselves of the economic, business and trade opportunities provided by the Windsor Framework when we can trade in the UK internal market and in the EU single market? Other areas would eat our hand to get that opportunity.
We need to top up those opportunities as well as to address the issues that were presented to us by businesspeople, who found the framework burdensome. In that respect, at that stage the Government had not provided the guidance, and only tomorrow will we deal with the four statutory instruments that will implement those guidance issues and information dealing with labelling. I say gently to the Minister that that is all in very short order when much of this stuff has to be implemented by October this year, some three weeks away.
However, in moving forward, we need to look at the Good Friday agreement. It deals with three sets of relationships, and the purpose of the Windsor Framework is to look at those three sets of relationships, obviously, and the accompanying document of the protocol in its entirety. There is, therefore, now an opportunity to look at those north-south opportunities. Can the Minister say what evidence and what work is being done for the EU-UK joint committee to keep under constant review the extent to which the implementation and application of Windsor and the protocol maintain the necessary conditions for north-south co-operation on the island of Ireland? Perhaps the Minister could provide me with an update on this particular area of any work the joint committee may be doing, and, if that has not been activated, provide an undertaking to do so when that happens.
With regard to the specialised committee, will it engage with the north-south implementation bodies? One of them is InterTradeIreland, which deals specifically with trade; another is Tourism Ireland, and there are several others. Will the Minister, working with colleagues, ensure that the specialised committee engages with north-south implementation bodies and the north-south joint secretariat on their experiences of the operation of the Windsor Framework for north-south co-operation? And will the joint committee signal how it intends to review the effect of the implementation and the application of the Windsor Framework on maintaining the necessary conditions for north-south co-operation?
Another area that needs to be examined is apportionment with HMRC. Before the Windsor Framework, there was no problem about apportioning the amount of trade for the EU and the Republic of Ireland and the amount that would stay in Northern Ireland. That information is not available in the guidance. I look forward to the Minister’s response.
Lord Alderdice (LD)
My Lords, the noble Lord, Lord Jay, admirably fulfilled his challenging role as chairman of the Protocol on Ireland/Northern Ireland Sub-Committee in achieving a considerable level of agreement across the wide range of views in the committee about the impact of the Northern Ireland protocol and, in the second report, the Windsor Framework.
The first report found, wholly unsurprisingly, that businesses reliant on trade between Great Britain and Northern Ireland had been negatively affected. Contrarywise, businesses trading with Ireland and the rest of the EU found that the protocol had had a beneficial impact. The committee caveated its observations by noting that the overall impact of the protocol on the Northern Ireland economy was perhaps uncertain because of all the other things that have been happening: the Covid pandemic, labour shortages, rising costs from the war in Ukraine and so on.
Interestingly, the committee noted that those from whom it took evidence could reach opposite conclusions from the same information. That is characteristic of our problems. It is not surprising: those who are unionists but supported Brexit, which they did not all, will naturally look for something other than Brexit to be the main reason for their undoubted problems. Those who are nationalists, who were mostly opposed to Brexit, will see any development towards an all-Ireland economy as in their long-term political interest. Businesspeople, of course, will simply try to do the best that they can, whatever circumstances they work in.
The committee tried to avoid judgments on these issues of deep difference, but we need to address them if we are to take our thinking forward. Those who supported Brexit did not pay much attention to what were quite predictable consequences for Northern Ireland. They thought that it would be relatively straightforward and easy, but it has not been.
A number of realities need addressing and, given my professional background, noble Lords will not be surprised that the first reality I suggest is the psychological one. When a relationship breaks up because one side wishes to walk away from it and the other does not, there are inevitable emotional consequences. The one who is leaving minimises the consequences and says, “We can still be friends”, and the one who is being abandoned feels anxious and angry. The EU was never going to respond with equanimity to Brexit for these reasons, so even where there were some problems that could be mitigated in the early days, it was not going to happen immediately until people had begun to settle down to the reality of what had happened.
There were some problems that I would characterise as real-world problems. It is ironic that those who most fervently upheld the importance of taking back control of national borders were the very ones who dismissed the importance of the national border between Northern Ireland and the Republic of Ireland. That was never a coherent position. If national borders are not important, there was no reason to leave the EU; if they were important enough to leave the EU, they were going to be important and problematic in respect of Northern Ireland and the Republic of Ireland, particularly given the historic, and even current, matter of dispute about that border.
Let me be clear: Brexit was an entirely legitimate ambition and, when it was voted on by the people and the people supported it, it had to be implemented. However, it has consequences. If I jump off a windowsill I will fall and there is no point in me saying how unfair it is that gravity will result in me being crippled. There are certain consequences to our actions, especially in relationships.
One of the other consequences was for our relationships with the EU and the United States. When Prime Minister Sunak took over the reins of government, he realised that the key challenges for his Government were resetting the relationships with the EU and the US. They had been damaged by Brexit and the UK cannot afford to be at odds with its most important trading and security partners. That is why the Windsor Framework was a dramatically successful initiative in resetting relationships with the EU and the United States. I think it extremely unlikely that the current UK Government or any successor Government will embark on an unstitching of those relationships and these arrangements.
There can be some window-dressing about the constitutional position of Northern Ireland, but that position and the devolved settlement of Northern Ireland are of less consequence for Britain as a whole now than relationships with the EU and the United States. The emotional attachment, which was very strong when I came to this House more than a quarter of a century ago, does not feel the same now. For example, I was struck when John Simpson, a very distinguished journalist, on seeing what had happened with the Scottish nationalists, said that the “union is now safe”. I could not help but think to myself that he was not thinking very much about the union with Northern Ireland and that he is not the only one on this side of the water who has that perspective.
Baroness O'Loan (CB)
My Lords, I am privileged to serve on the sub-committee that produced today’s report, under the excellent chairmanship of the noble Lord, Lord Jay. The committee has been well served by its staff. In particular, I pay tribute to Stuart Stoner, who as clerk of the committee played such a pivotal role in the production of this report and in supporting us as Members.
Some 89% of the 80,000 or so registered businesses in Northern Ireland have fewer than 10 employees; just over 2% have more than 50 employees and 42% of businesses have a turnover of less than £100,000. These factors impact on the ability of many businesses to respond quickly and strategically to changes required to IT systems, product modification and haulage and transportation change. Business across the UK faces significant challenge at this time of inflation and uncertainty, and business in Northern Ireland, including those seeking to do business with the rest of the UK, has additional challenges. Regulatory divergence is occurring and will continue to occur as the EU and the UK legislate. Business wants to respond to legislative change and to function effectively but, in the absence of any identifiable strategy within government departments to track and publicise occasions of regulatory divergence, that divergence, whether between Great Britain and Northern Ireland or between Northern Ireland and Ireland, remains the number one concern, as the noble Lord, Lord Jay, said.
Can the Minister inform the Committee today whether His Majesty’s Government have made an assessment of the practical impact of regulatory divergence on Northern Ireland and of the issues that the sub-committee has raised? Can the Minister tell us whether, following the establishment of the EU-UK Trade and Co-operation Agreement, processes have been established that will meet the current information deficit and ensure that information is provided in a way that is coherent, industry-specific and the product of consultation, so that businesses are not hunting through the mass of guidance, policy papers, detail papers and so on to identify divergence? Much of the Government’s response seems to refer to framework structures that require to be underpinned by working groups and other modalities. Will the Minister assure us that such infrastructure exists and is functioning?
There is an underlying fear that Northern Ireland will find itself in a no man’s land between Great Britain and the EU. The processes for changing law in the myriad areas affected by the UK’s withdrawal from the EU are enormously complex. A considerable volume of legislation is produced each year in the UK, while the EU continues to legislate by means of directives, regulations and so on, on matters affecting the internal market as it operates in Northern Ireland. Business needs to know which laws are being introduced and which laws are being repealed, meaning that they are no longer obliged to operate in compliance with those laws.
The bigger question is how regulatory divergence impacts on businesses that wish to operate in both the EU single market and the UK. To what extent are separate manufacturing, labelling, tax, regulatory and enforcement regimes applicable to particular businesses and how can they best respond to maintain and expand their businesses so as to take advantage of the opportunities offered by Northern Ireland’s unique access to both the EU single market and the rest of the UK?
In the context of the EU and excise duties, stakeholders have welcomed the new enhanced co-ordination mechanism to review future legislation. Businesses have welcomed the potential for further flexibilities. The committee has urged the UK and the EU to ensure that the new body is sufficiently resourced. Can the Minister assure the Committee that this has been happening?
The sub-committee has repeatedly called on the Government to maintain a register of regulatory divergence, and we have done so again in this report. Businesses cannot be expected to derive essential commercial information on regulatory issues by way of Explanatory Notes or Memoranda on the potential impacts of proposed legislation. The expertise for tracking and identifying regulatory divergence surely exists within our government departments, which have extensive responsibilities in the areas of legislative drafting, regulation and enforcement. Can the Minister assure the Committee that that expertise will be directed to ensure that there is coherent, timely and accessible information for businesses across the UK?
Lord Dodds of Duncairn (DUP)
My Lords, I am grateful for this debate taking place so quickly after the production of our latest report on the Windsor Framework. Like others, I thank our chair, the noble Lord, Lord Jay, for the presentation today, and the way in which he chairs the committee on which I have the honour to serve. I thank Stuart Stoner and all the staff for their excellent work and the way in which they service the committee.
The committee has done extraordinarily useful work in shining a light on the complex details of the protocol/Windsor Framework because the two are really the same; there are a few tweaks here and there, but they are fundamentally the same mechanism. It has not been easy to shine that light, given the Government’s failure in many cases to be open or transparent on the issues, or to provide full—in some cases any—answers to straight questions. The detailed examination of legislation, from both the EU and His Majesty’s Government, is proving invaluable in holding the Government to account. It is proving very important to those who have a genuine interest in and concern for the facts—not spin or hype. The most recent report of the committee on the Windsor Framework is another example of this.
I would like to take a slightly broader view of where we are at with the framework and political process in Northern Ireland. There has been a lamentable failure, in practice and outcomes, to acknowledge that the Belfast agreement, as amended by the St Andrews agreement, only works when the interests of unionists and nationalists are both respected, and when it is recognised that each of the three strands of the agreement must complement each other. It is now clear that the failure to respect that balance of interests and to uphold the various strands in a balanced and fair way has led us to the place we sadly, but inevitably, find ourselves in.
The protocol/Windsor Framework could only have come about through the adoption of a nationalist interpretation of the Belfast agreement. Things that would never be tolerated by republicans, nor would be imposed upon them, have been recklessly imposed upon unionists with little regard to the need to maintain balance in all the strands and to maintain the confidence of both communities. These are essential for the political process in Northern Ireland to work.
It took a long time to move people away from the original position of rigorous implementation of the deeply flawed protocol. The Alliance Party, the SDLP, Sinn Féin, the Irish Government and, indeed, some here in Westminster were all rigorous implementers, despite the damage it would entail to both the economy and political stability in Northern Ireland. The so-called grace periods and derogations by the British Government, which were so necessary, were condemned to high heaven by many, while they turned a blind eye to similar actions—or indeed threats, such as to stop vaccines—on the part of the EU.
The reality is that the protocol/Windsor Framework and the intended imposition of EU law on Northern Ireland without consent and the creation of an Irish Sea border, which deeply impacts upon Northern Ireland’s place in the UK internal market, are things that were bound to undermine the institutions of the Belfast agreement, as amended by St Andrews. For many months, the Democratic Unionist Party worked with the Government of the day and the various Prime Ministers to bring about substantial change. It maintained its First Minister in Northern Ireland to allow that to happen for well over a year, until patience finally ran out with the continued delay and failure to deliver on commitments made by Prime Ministers.
The fact is that you cannot trash strand one—the internal affairs of Northern Ireland —and strand three—the east-west relationship—and expect no instability as a result. Work remains to be done to fulfil the pledges which have been made to the people of Northern Ireland. The DUP leader Jeffrey Donaldson in setting out his seven tests was merely consolidating and reiterating promises made by British Prime Ministers to the people of Northern Ireland. They were not invented or made up by him. Incidentally, the seven tests were part of our manifesto in the most recent elections.
The basis on which the protocol was brought about was nationalist distaste for any checks on the border on the island of Ireland. Unionists never wanted or sought such but cannot accept that such should be imposed between us and the rest of the United Kingdom. I think that is a fair and balanced position, and it is achievable. It is something that the Government must address. They have not done so so far, and the Windsor Framework has not addressed that problem. Legislation which is currently being considered by the Government must address the entirety of Northern Ireland’s place within the United Kingdom and remove impediments from Great Britain to Northern Ireland as well as reaffirming what we have for Northern Ireland to Great Britain. I trust the Government will addresses these fundamental issues and in doing so achieve political stability in Northern Ireland.
Lord Hannan of Kingsclere (Con)
My Lords, as always, I begin by thanking the noble Lord, Lord Jay of Ewelme, and his staff for these reports. I could give my whole five minutes over entirely to paeans and panegyrics, to odes and oratorios, to acclamations and encomiums, but I have done it before, as have the noble Baroness, Lady Ritchie, and the noble Lord, Lord Dodds, so shall we just take it all as read? It is a great achievement to have balanced the orange/green, remain/leave and left/right tensions three-dimensionally.
I agree with the thrust of the report’s conclusion: the Windsor Framework makes a few things a bit better and in a smaller number of areas it makes things slightly worse than the status quo plus the grace periods. The report is really an example of the importance of compromise, cool-headed temperance and the ability to talk things through in detail. I hope the Grand Committee will forgive me if I extend that logic, especially given the timing of the reconciliation Bill that we have just debated, and look at what is happening in the Province in terms of compromise.
One of the rather beautiful and underreported facts during the Troubles was the extent to which both communities consistently rejected violence. There was a Northern Ireland Life and Times survey in 1998, at the time of the Belfast agreement, and 70% of people who supported a united Ireland had no sympathy with physical force terrorism; only 8% supported it. Come forward one generation and 69% of people in that community now agree with Michelle O’Neill when she says that there was no alternative to IRA violence. Of course, this is partly just the passage of time, the sanitising effect of not being there with the funerals and the body parts and the physical destruction, but it also says something alarming about the readiness to compromise, to let the other side feel that they can live with something, on which all our deliberations, the amended Windsor Framework and the Belfast agreement itself rest.
Do not get me wrong: there has been immense progress in those 25 years—I do not think anyone will disagree with that—such as the Belfast dockyards and the Titanic quarter. The Corn Market, which I remember as a dingy and dangerous place, is now as beautiful a piece of street architecture as you will find anywhere in these islands. The sectarian murals have become tourist attractions. I hope it goes without saying that all of that is desirable and to be praised, but it all rests ultimately on a willingness to, if you like, elevate process over outcome, to accept that sometimes you are going to lose and that sometimes the other side is going to win and that that is not a threat to your whole identity. This point has been historically aimed at unionists, and not always without reason. I was amused by Senator Mitchell’s recollection at the 25th anniversary of David Trimble having said to him “You need to understand about my lot that they will travel hours out of their way to take an insult”, and we have all met politicians like that, but it applies equally to both sides.
Let me put it like this: if I were chiefly motivated by wanting a 32-county state in Ireland—whether I were on either side of the border—I would do things very differently. I would engage with British people in Northern Ireland as Brits rather than as misguided Irish protestants. I would have done a lot of things differently: I would not have left the Commonwealth; I would not have had a different foreign policy in the wars; I would not have made the Irish language a requirement. Those are water under the bridge, but going forward now is about finding a compromise that both sides can live with. We are in a world where we have a general retreat from liberal democracy, a general rise of populism and a “winner takes all” attitude even in countries that are old and established democracies—these are alarming tendencies. If there is one thing that we in this Chamber can do, perhaps it is to spread our irenic influence and to encourage people that, in the Windsor Framework and in everything else, we are never going to get 100% of what we want. That is the essence of any functioning open society.
Lord Hain (Lab)
My Lords, I too thank the noble Lord, Lord Jay, for his exceptional chairing of a group of us that is, to say the least, politically diverse, if not a right handful. My thanks also to our brilliant clerk, Stuart Stoner, who has done a superhuman job since our inception, together with his colleagues.
The Windsor Framework is welcome as an effort by both the Government and the EU Commission to address very serious concerns around the protocol. However, as the report makes clear, a lot is still unresolved. Indeed, the sense of uncertainty risks being compounded by the fact that the Government remain open to doing the bidding of only one party when it comes to further adjustments and legislation with respect to Northern Ireland’s post-Brexit position.
How can the Secretary of State consider it appropriate to tell the leader of one party that he, the Minister,
“can bring forward legislation … that does exactly what he needs it to do for his party”,—[Official Report, Commons, 21/6/23; col. 780]
namely the DUP? Yet after all that, the DUP does not trust the Government, and I do not blame it, because the Conservatives have betrayed the unionist cause that they purport to extol in a deal that the noble Lord, Lord Frost, negotiated but now condemns. When will the Government understand that finding stability in Northern Ireland is not, and never will be, about appeasing one party over others, but is rather about holding firm to the legal obligations and commitments that they have made—and, above all, that it is about being an honest broker? I say that as a former Secretary of State who brought the DUP and Sinn Féin to share power together from May 2007. That could have been achieved only by mutual respect between myself and the DUP—not necessarily agreeing with each other but building mutual trust.
That leads me back to our sub-committee’s report. There are three things worth underlining as a means of shoring up the stability and democratic governance of post-Brexit Northern Ireland, which all are agreed must be a priority. First, the Windsor deal is not merely a diplomatic “win” but a very significant framework for Northern Ireland’s future economic and trading relationships. The Government recognise that Northern Ireland enjoys potential advantages as a result of these arrangements, but those can be secured only by adequate resourcing from London, which is palpably not the case currently. It will be necessary to work in a new way with Northern Ireland officials, stakeholders, experts and—before long, let us hope—the Northern Ireland Assembly and Executive to make sure that the extensive capacity needed is there to make the Windsor Framework a success. It is a very complex animal.
Secondly, the report clearly sets out the need for information and clarity about the details of the Windsor Framework in practice. It is welcome that the Government are issuing more guidance on the details of the implementation of the schemes underpinning the green lanes, for example, but there is need for clarity and detail on a wider range of issues, from the so-called Stormont brake—which does not seem much of a brake at all—to the movement of parcels. The evidence gathered by the sub-committee is a helpful indication of not only what is needed now but what will be needed in the near future.
Finally, as our report concludes, it is vital that the UK and the EU ensure that they remain in close and productive dialogue, rebuilding the trust that is so vital but was squandered so recklessly by bellicose posturing under the Johnson and Truss regimes—trust both with each other and with Northern Ireland stakeholders and its citizens, and with the Irish Government, who are a guarantor for and signatory to the 1998 Good Friday agreement and the 2007 power-sharing self-government. Unless that trust is built with Dublin, nothing will work. It must also be built with Brussels. That is a huge challenge for this Government, which, sadly, they have so far failed to meet, except in respect of the Windsor Framework, which I welcome. I hope they rebuild that trust in future.
Lord Thomas of Gresford (LD)
My Lords, I, too, am privileged to sit on the sub-committee, under the wise chairmanship of the noble Lord, Lord Jay, and with the assistance of a brilliant team under Stuart Stoner, who have helped us so much.
The sub-committee has sought to cut through the hype and overselling of the Windsor Framework. The interrogation of witnesses from all stakeholders in Northern Ireland allowed us to outline in our report a realistic view of the effects to date and the perceived advantages and disadvantages that lie ahead.
I have previously expressed to the House my optimism for Northern Ireland’s future. I have said that, as a Welshman, I am envious of the unique position of Northern Ireland, with its access to both the EU market and the UK internal market. There ought to be a bright future, but I was impressed at a meeting we had in Brussels on 5 May with Brussels-based businessmen and academics, when we were told in no uncertain terms that, while the potential advantages of investment in Northern Ireland were well understood, the fear of political instability was causing investors to hesitate.
The lack of an Executive and a functioning Parliament is the outward manifestation of instability, but beneath the surface there lurks a fear of further violent unrest. Having listened recently to the debates on the Northern Ireland Troubles (Legacy and Reconciliation) Bill, I understand even more poignantly that the wounds of the past in Northern Ireland have not healed. It is ironic that all political parties and the whole of civil society in Northern Ireland came together to denounce the Bill with a unity of purpose ignored by the Westminster Government. Yet such cross-community assent is the bulwark of the Belfast agreement.
Since my first election address in Wales in 1964, I have been a firm advocate of devolution for every nation in the UK, for promoting a stable society. Heaven knows, the Welsh Parliament struggles to address the problems of an ageing population, ageing housing stock and exhausted extractive industries that once made the wages in the Rhondda the highest in the United Kingdom, but for all these difficulties, Wales does not lack stability and the Senedd is able to formulate and fund policies and plans to address them. By contrast, the political structures of the Northern Ireland settlement are unhappily on hold.
It is possible to implement certain aspects of the Windsor Framework, such as the green and red channels, the simplification of trade documents, labelling and so on without input from the Northern Ireland Assembly. The DUP, with its seven tests for any replacement of the original protocol, should be satisfied—at least in respect of their fifth, sixth and seventh tests. However, as our report demonstrates, the parts of the framework that mitigate the democratic deficit cannot be implemented while Stormont remains suspended. The changes to give a voice to Northern Ireland in the joint committee and the Joint Consultative Working Group cannot be carried forward in the absence of the Assembly. The Stormont brake cannot be triggered if the Members of the Assembly are not in place and, accordingly, changes to all modifications of EU law affecting Northern Ireland, and all new EU legislation, cannot be addressed.
In a debate following the publication of the framework, I criticised the Stormont brake as a mechanism that was so complicated as never to be used, but our subsequent visit to Brussels convinced me that, although it is highly unlikely that EU legislation would ever be negatived directly by the Stormont brake, nevertheless the process—from the presenting of a petition in the Assembly to its discussion at Stormont and subsequent proceedings in joint committees, followed by possible arbitration—would likely resolve all difficulties through negotiation, but with the voices of Northern Ireland loudly heard. That should satisfy the DUP’s fourth test of giving Northern Ireland people a say in the laws.
This leaves outstanding for that party its first test: the relevance of Article 6 of the Act of Union of 1800. Our committee did not address that issue because it has been determined already by the Supreme Court of the United Kingdom, whose jurisdiction was invoked by the DUP itself. The Supreme Court unanimously decided that
“The Acts of Union and Article VI remain in place but are modified to the extent and for the period during which the Protocol applies”.
There is no appeal possible from that.
Stability and peace, leading to prosperity, is the future within reach. It can be grasped by the people of Northern Ireland if the mechanisms that are there are used.
Lord Bew (CB)
My Lords, like other noble Lords, I commend the very impressive work of the noble Lord, Lord Jay, and his committee and its staff.
I will make a distinction between the two reports before us. The follow-up report, published on 27 July 2022, is actually the more impressive of the two. Pages 58 to 62 on medicines are absolutely on the button and I think played a benign role in the eventual resolution of the question of medicines in the Windsor Framework. On the other hand, the new and more recent document on the Windsor Framework inevitably must deal with matters of unfathomable complexity, massive technical difficulty and a huge number of known unknowns. It is beyond the wit of any committee, no matter how wise, to produce an accurate crystal ball in this area.
I labour under the disadvantage of being the only person in this debate, so far, to have read the Government’s 32-page reply in the last hour. It is gritty and tough-minded. On page 18, for example, it calls for the committee to come to terms with certain factual errors in the initial report. It is a serious response, probably more so than is often the case in replies to the work of our committees, at least in my experience. However, I acknowledge that the technical complexity of these issues is so great that some degree of weakness, compared with the second follow-up report, was almost inevitable.
There is important evidence from the Irish ambassador in the follow-up report of July 2022. I broadly support the position taken by the noble Lord, Lord Dodds; when the Irish ambassador is questioned by the committee about the Good Friday agreement, it is very clear in the series of replies he gives—although everything he says about the importance of minority rights in the Good Friday agreement is perfectly correct—that the east-west dimension, strand three of the agreement, disappears and that, characteristically, throughout the last three years and until very recently, if at all, Dublin has defined the east-west relationship as Dublin to London. It does not include Belfast and Northern Ireland. Its model for harmonious relationships was clearly totally incompatible with, for example, what Dublin put its name to in the withdrawal agreement launched by the May Government, which did not mention any role at all for the Northern Ireland Assembly. It is to the credit of the noble Lord, Lord Frost, that the agreement he produced, which is unpopular in many areas, makes a fundamental democratic transformation in returning the role of the Northern Ireland Assembly. Subsequently, the Windsor Framework was an attempt to deepen that relationship.
I mention the Irish Government because of another point that was also mentioned by the noble Lord, Lord Hannan: the tone of Irish nationalism at the moment, with the widespread singing of “Ooh ah up the Ra”. This is as important as any deliberation on the role of European law in making it difficult to get a return of Stormont. There are two problems. One is a certain glibness of tone by the Irish state itself, but the other is the popular culture, which is making it very difficult indeed. I am grateful to two people who were very important in 1998, Bertie Ahern and Rory Montgomery, a very important official on the Irish side, who have stood out against this crass, vulgar popular culture, which is more important than many of the technical difficulties in and around this report.
I absolutely accept that it is possible to accept the Government’s document completely, and even to say that the seven tests are completely met, and still not like the options for unionism on the grounds that European law continues to operate in Northern Ireland. What I want to say on this is quite simple: the union has always been impure. Dramatic examples include not having conscription in the Second World War and the failure of the Labour Party to organise in Northern Ireland. These are dramatic indications of the impurity of the union. None the less, it continues to survive and, on the latest polling from the Northern Ireland Life and Times survey, continues to have a solid basis ahead of it, but it is very important to understand that it is always evolving and that there will never be a union in accordance with the ideals of high unionism. Impurities—a role for European law is probably one for the future—are nothing new in the history of the union of Great Britain and Northern Ireland.
Baroness Hoey (Non-Afl)
My Lords, the noble Lord, Lord Jay, has done what he always does: he has managed to get a diverse group of members to agree something. He has a report that has probably not upset anyone at all. Of course, there is quite a lot of “On the one hand, and on the other” in it, but it is a really important, detailed analysis of some of the real problems with the Windsor Framework. I thank him and all of the committee for their work.
One thing struck me when I reread the report at the weekend: not a single person who gave evidence said that what the Prime Minister said when he launched the framework was absolutely correct. I looked up the Prime Minister’s speech when he came to Parliament. It was very clear that he was launching with great fanfare something that, when you look at it now, was not accurate. When you read it now, you wonder whether he really understood what he was saying. Two or three times, he talked about how wonderful it is that we are removing
“any sense of a border”
for goods destined for Northern Ireland. He reminded the House:
“We have achieved free-flowing trade, with a green lane for goods, no burdensome customs bureaucracy, no routine checks on trade, no paperwork whatsoever for Northern Irish goods moving into Great Britain”.—[Official Report, Commons, 27/2/23; cols. 571-76.]
Even a slight reading of the report shows that is just not accurate. So many people said how wonderful the protocol was, how we all should rigorously implement it and how we were really ridiculous even opposing it, but a year on they have all become wonderful supporters of the Windsor Framework. I suggest that, in a year’s time, we will be back discussing how this cannot work and needs to be radically changed, because the fundamentals have not been changed: Northern Ireland is being gradually moved away, drip by drip, from the rest of the United Kingdom.
I will raise three or four real-life examples on the ground in Northern Ireland, where I now live. There is a very large manufacturing company there. Three-quarters of its components come from Great Britain. Recently, the European Union withdrew the general system of preferences, so it now has to pay 4.2% duty on everything while its competitors in Great Britain do not. That is hardly a level playing field. That is a direct result of the Windsor Framework.
On horticulture, the Prime Minister said:
“The same quintessentially British products like trees, plants, and seed potatoes—will again be available in Northern Ireland’s garden centres”.
That is just not happening. Yes, there have been some changes, but the reality is that individuals who normally would have got their seeds and plants directly from a garden centre or a retailer in Great Britain are not getting them. Sometimes it is because the company has deliberately decided it cannot be bothered with the hassle, but that is not giving a level playing field for people in Northern Ireland.
On farming, and buying cattle from markets, I have a friend who came over just last week to buy some animals in a market. On the morning he was buying them, he was sent an email saying that the holding period has now gone up from 30 days to 45. Of course, that brings huge extra costs. They have to feed the animals, and store them for that time, and again, that is a direct result of the Windsor Framework. Cattle now come over to Northern Ireland with an ear tag; as I am sure noble Lords know, each calf gets a tag in each ear, plus the farm’s herd number, and once the cattle get from the mainland to Northern Ireland, the two tags which were in their ears have to be cut out and replaced with the next available number with the herd number on it. That is just another example of the extra bureaucracy that is affecting farmers, and of course we do not have any real clarity about veterinary medicine, where there is a real worry.
There is no mention of duty free in the report, which is disappointing, yet the Prime Minister said in his wonderful speech:
“When I was Chancellor, it frustrated me that when I cut VAT on solar panels … those tax cuts did not apply in Northern Ireland … That means zero rates of VAT”, —[Official Report, Commons, 27/2/23; col. 572.]
and added that the Government would now ensure that all excise duties are the same. They are not. I fly from Belfast to Faro or from Belfast to the EU, I do not get duty free, and the answer I get back over and over again is just a nonsense. No one is honest. The headline today in an article by Owen Polley in the News Letter, is “London Still Not Honest About Windsor Framework Debacle”. That is the reality.
Finally, what really made me angry is that just this week, someone travelling from Cairnryan to Larne on a boat—an ordinary person—gets an email, which includes at the bottom, under “Check-in times for the Cairnryan-Larne route”:
“Please allow plenty of time for border checks, which take place before check-in”.
With the Windsor Framework, individuals are now very affected.
I will simply say that people in Northern Ireland are confused, frustrated and angry, but, most of all, they are very sad that their Government seem to be neglecting them.
Lord Godson (Con)
My Lords, I wish to share in the tributes to the chair, the noble Lord, Lord Jay, and of course to the outstanding work of the committee staff, which has been attested to today and which has been the subject of so much proper and correct unanimity today.
In 2021, our committee found that the dispute over the implementation of the protocol had
“contributed to a serious deterioration in relations between London, Belfast, Dublin and Brussels”
and “a breakdown in trust”. It concluded that urgent steps were required to correct this. That was the starting point for our last two reports, which we are debating today. Our July 2022 report argued that the key to resolving the problem with the protocol was, not surprisingly, a reset in UK/EU relations. The report stated:
“Our witnesses identified four core interlinking principles that are needed to underpin this reset: prioritising Northern Ireland’s interests, constructive engagement, trust, and a renewed commitment to relationship-building”.
The Windsor Framework is based on these principles.
In the UK/EU political declaration accompanying that Windsor Framework, the two parties stated that:
“This new way forward demonstrates the joint determination of the European Commission and the Government of the United Kingdom to constructively work together to address the real issues affecting everyday life in Northern Ireland. Both express their intent to use all available mechanisms in the existing framework and arrangements announced in Windsor today to address and jointly resolve any relevant future issues that may emerge”.
It goes on to say that:
“The new way forward on the Windsor Framework marks a turning point in how both the United Kingdom and the European Union will work together collaboratively and constructively”.
It is this commitment to work together constructively and to use all available means to resolve problems that now offers the best chance of bridging the gap between what is necessary and what is sufficient in providing the answers to the complexity of securing GB to NI trade whilst protecting the EU single market.
Although the Windsor Framework was on the upside of expectations, critics point to many continuing problems, uncertainties with implementation and remaining issues, such as veterinary medicines, which all need resolution. Our witnesses expressed the hope that there will be flexibility to ensure that supply chains are able to operate in the green lane as planned and that any technical barriers that emerge as implementation proceeds will be addressed, to ensure that the aims of the Windsor Framework are delivered. The best hope for these issues to be addressed is through the UK-EU commitment to resolving practical problems and to prioritising Northern Ireland’s interests. Those hopes will only be realised if the EU plays its role as a facilitator of arrangements, not just an enforcer, and stays conscious of the fact that the Belfast/Good Friday agreement seeks to balance the interests and aspirations of both nationalists and unionists and to avoid the alienation of either community.
Our first report further pointed out that the protocol that emerged in 2018 and 2019 was not an inevitable result of Brexit but of the conscious political decisions taken during negotiations by both the EU and the UK on what form those arrangements should take. This analysis therefore contradicts the arguments of nationalists to this committee. The protocol’s basic structure was put in place by December 2017’s EU-UK joint report. We have been trying to push back against this, with some success, but it still leaves in place arrangements that have been very painful for unionists.
It might be that we could have achieved more flexibility through the Windsor accord, but we now have an agreement that the UK Government are committed to in international law. The upholding of this is key to the improved UK-EU relationship we are now enjoying, with all the benefits that brings, such as the Horizon and Copernicus deals agreed last week, which also benefit Northern Ireland. There will be more of this to come.
Therefore, despite the political difficulties for unionists, it is my firm belief that unionists will achieve improvements in these arrangements only by working within the frameworks of consultation and governance that the Windsor Framework established to resolve these problems. This, after all, represents one of the key gains of the Windsor Framework. It is through such engagement that unionists can effectively hold both the EU and the UK Government to account, both in fulfilling their commitments to the people of Northern Ireland and their joint commitment to work together constructively, along with representatives of Northern Ireland on all sides, to solve the practical problems that will arise in future and those we have identified in our latest report.
Baroness Goudie (Lab)
My Lords, I thank my chairman, the noble Lord, Lord Jay, for using every bit of his diplomatic skills on the last two reports we have worked on together. It has been a great pleasure to work with Stuart Stoner and his team, who have given us great advice and attention to detail at every moment. Every question was answered. I really appreciate all their advice.
Going forward, I am so pleased that President Biden appointed Senator Kennedy to lead the team to bring more employment and work to Northern Ireland, both from America and from Ireland itself, from the United Kingdom and from other parts of Europe. I am hopeful about the meetings over the next few days and have been privileged to know some of the company leaders and Senator Kennedy. I know that, if anyone can do this, he will be able to, and he will stick with it until they can get to some resolution. Although, there will not be a resolution—it will just be bringing in more people, because they know that there is a great workforce in Northern Ireland.
I thank the Government for their response, which I had a quick glance at after receiving it early this afternoon. I will look at it more closely ahead of our committee meeting on Wednesday. The committee report rightly underlines the importance of restoring the Northern Ireland Executive and Assembly. The restoration of these vital institutions is essential and increasingly urgent, not least in order to enable Northern Ireland to have a greater say over the operation of the Windsor Framework, upon which the committee has reported.
It is a scandal that Northern Ireland has been without a fully functioning Executive for more than 18 months. The Northern Ireland Assembly elections have not been implemented for well over a year since the Northern Ireland electorate spoke in clear terms. It is disgraceful that power-sharing remains suspended. The people of Northern Ireland must not be held hostage by the DUP. Enough is more than enough. The Windsor Framework is good for Northern Ireland, good for the United Kingdom and good for the European Union. It is not perfect but, as the committee has recognised, it is an improvement on the protocol.
No party should have a veto. The best has to be done in the circumstances in which we find ourselves. The fact is that, as long as the partition of Ireland remains, the United Kingdom and the EU have a land frontier across the island of Ireland, and the United Kingdom is split between the mainland, which has the sea frontier with the EU, and Northern Ireland, which does not.
This is a mess. There is a contradiction between the preservation of the entire United Kingdom on the one hand and Brexit on the other, and we have to do our best to manage this. The Northern Ireland elections in May last year and the Windsor Framework since enabled this to be done in a way that does not threaten the Good Friday agreement and the Irish peace process. We must disapprove when, in the United States, the loser of democratic elections will not accept the result, and we should disapprove when the results of elections in parts of the UK are not accepted on all sides. There needs to be a transition to a new working Northern Ireland Assembly in accordance with the election outcome, and this needs to be done very soon. There needs to be a functioning Northern Ireland Executive. These are categorical imperatives. If the devolved institutions are not restored, devolution in its present form may have to be suspended. The present impasse is not acceptable, and it is time to end the drift. The basis for a working Assembly and Executive, and the solidarity, is here.
Baroness Ludford (LD)
My Lords, I also applaud the excellent work of the Northern Ireland sub-committee under its chairman, the noble Lord, Lord Jay. Its report on the Windsor Framework summed up the situation. The Windsor Framework is the latest attempt to manage the implications of Brexit for Northern Ireland and, in my words rather than the committee’s, I would say that it is the best of a bad job. The noble Lord, Lord Frost, called it a “sticking plaster”, and I agree with him—but our aspirations for a final destination radically differ.
The fact is that we should not have started from here. One major reason to aspire to at least re-entry to the EU single market for the whole of the UK is to solve the problem of barriers between the different parts of our country. The problems come not from the protocol or the Windsor Framework but from Brexit. My noble friend Lord Alderdice referred to its predictable consequences, and the Financial Times journalist, Peter Foster, recently said that
“the original sin remains the prioritisation of a clean-break Brexit over the stability of the Union”.
That is a serious, but in my view justified, charge.
The proponents of Brexit, and particularly those who forced through a hard Brexit, which rejected staying in the EU single market and customs union, gave little if any thought to the effect on Northern Ireland, the Good Friday agreement or the relationship in these islands, which was shameful. If only those who advocated Brexit had given thought to the implications of creating not only economic problems but further political tensions in Northern Ireland after several decades of things seeming to settle down somewhat. The committee noted that the continued application of EU law in Northern Ireland remains politically contentious and—rightly, in my opinion—urges that, in view of these political tensions, the obligation on the UK and EU is for them both to be fully transparent with Northern Ireland stakeholders over the consequences of what they have agreed under the Windsor Framework. As the noble Lord, Lord Jay, mentioned, the committee urged publication of a consolidated text of the protocol as amended by the Windsor Framework. I hope that the Government are doing that—I have not yet had the opportunity to read their response.
It is an uncomfortable fact that, as the report on the Windsor Framework notes, stakeholders argued that, for many businesses, the movement of goods is likely to be more burdensome than the protocol as it has operated to date with various grace periods and easements in place, and that there are concerns that the ability of retailers based in Great Britain to use the green lane to supply the Northern Ireland market could place Northern Ireland businesses, which still need to comply with EU rules for goods, at a competitive disadvantage in their own market.
Views differ on the Stormont brake. In the view of Professor Catherine Barnard, it is something of a nuclear option to be threatened but not used. Indeed, in her opinion, it will very rarely be used. Professor Fabbrini of Dublin City University said it is a
“tailor-made way for Northern Ireland to object to future internal market laws”.
Note that he did not say to “veto” them. He warned against unrealistic expectations. He added:
“the Stormont Brake creates huge pressure for the Northern Ireland Executive to be restored because the mechanism can only be applied if the First Minister and deputy First Minister are in place”.
My noble friend Lord Thomas of Gresford mentioned that point.
The noble Lord, Lord Jay, stressed how the avoidance of divergence in regulation is the top priority for business, while the noble Lord, Lord Frost, said that he and Mr Johnson had hoped that divergence would break the protocol. I think I have quoted him accurately and apologise if I have not. I think that developments suggest that alignment might be winning the day, and I hope that that will be the case.
Can the Minister explain if and how the conditions for trade in halal and kosher meat have been eased and tell us whether the respective Muslim and Jewish religious authorities feel that they can now cater to the requirements of their communities in Northern Ireland? The problems with veterinary and agri-food products will be eased by an SPS agreement. The FT’s Peter Foster, to whom I have already referred, reminds us that in 2021 even the DUP, in the person of Edwin Poots, wanted such an SPS agreement.
Finally, can the Minister give an update on discussions with the Northern Ireland Human Rights Commission on whether issues regarding the application of Article 2 of the protocol on human rights and equalities matters have been satisfactorily resolved?
Lord Verdirame (Non-Afl)
My Lords, I, too, begin by paying tribute to the noble Lord, Lord Jay, and the committee for producing two extremely informative and thoughtful reports that do justice to the diversity of views and the complexity of the issues, including the legal issues on which I concentrate.
My observations are on the second report. The committee invited the Government to clarify the process by which they would decide whether the tests for the use of the so-called Stormont brake had been met. There is one aspect on which I think the Government should reflect. Article 13(3) of the protocol allows the EU to amend or replace EU law applicable in Northern Ireland without the consent of the UK. By contrast, new EU law cannot be imposed on Northern Ireland if the UK objects—that is the effect of Article 13(4). The Windsor Framework added Article 13(3a) to the text of the protocol. Read alongside the unilateral declaration appended by the United Kingdom, Article 13(3a) provides the international legal basis for the Stormont brake. One condition for the use of the Stormont brake in Article 13(3a) is that the amendment or replacement must significantly differ in content or scope from what proceeded it. The problem with this language is that it might appear to suggest that the EU’s unilateral legislative power to amend or replace existing EU law under Article 13(3) is broader than it needs to be. It is, of course, in the interest of the UK to defend a restrictive interpretation of Article 13(3). It is perfectly proper for the UK to do so as long as its interpretation is tenable.
It seems to me that one has to accept that an amendment or replacement would ordinarily introduce different content, but whether amendments or replacements that are significantly different in scope would be permissible under Article 13(3) is a different matter. So I hope that the Government will agree with me that in all their official pronouncements on the Stormont brake that it is necessary to maintain a consistent interpretation of the UK’s legal rights and obligations under the protocol as amended by the framework and, in particular as regards Article 13(3), to maintain an interpretation that states that those powers ought to be read quite narrowly.
In the little time available, there is only one further and more general comment that I would like to make. Table 1 of the report sets out a number of key dates in the implementation of the framework for the coming 12 to 24 months. The date by which the democratic consent vote under Article 18 is due to be held is 31 December 2024. There is another reason why that date is quite important. The Windsor Framework amendments to the text of the protocol, including Article 13(3a), to which I referred, were adopted with a decision of the joint committee, not with a formal new treaty.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
My Lords, the Grand Committee now resumes its debate on the European Affairs Committee reports. Following the noble Lord, Lord Verdirame, three noble Lords will speak in the gap: the noble Baroness, Lady Foster of Aghadrumsee, the noble Lord, Lord Weir, and the noble Earl, Lord Kinnoull.
Lord Verdirame (Non-Afl)
I was explaining how the text of the treaty could be amended with a decision of the joint committee rather than a new treaty. The reason is Article 164(5)(d) of the withdrawal agreement, which empowered a joint committee to make amendments by decision to the text of the treaty, including the protocol,
“provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement”.
Using this pragmatic mechanism to achieve treaty change without going through the formal process of adopting a new treaty was a significant win for the Government in the Windsor Framework, but the mechanism it will expire on 31 December 2024—it can be used only until that date. Among the many windows of opportunity that have been discussed, this mechanism provides a further window of opportunity to consider changes to deal with problems arising from the implementation of the framework as they become apparent in the coming months. I hope that the Government and the joint committee will keep that possibility under consideration.
Baroness Foster of Aghadrumsee (Non-Afl)
My Lords, I, too, thank all members of the committee under the chairmanship of the noble Lord, Lord Jay, for the many hours of work which have brought us not just the initial report but all the previous work too.
When reading the report, it struck me again how the announcement of the Windsor Framework was so badly mishandled. There was something seriously wrong in government communication when they sold the Windsor Framework in the way they did. How much better would it have been if the Prime Minister had said, as this report says, “I believe this is an improvement on the protocol, but significant issues remain”? My assessment is that, if that had been the announcement, Ulster people would have said, “Fair enough. At least progress has been made”, but instead we were told that it was the best deal ever thought of.
As the noble Baroness, Lady O’Loan, said, Northern Ireland is a small-business economy, and that is not really dealt with under the Windsor Framework. The trusted trader scheme deals with large retailers, which is helpful, but it does not deal with small businesses. I agree with the noble Baroness’s point in relation to that and about the need for information, which is important. It did not have to be this way: the Alternative Arrangements Commission brought forward a range of ways in which all this could have been dealt with, but it was decided not to go down that road.
I also underscore what the noble Baroness, Lady Hoey, said about what has been going on recently. Advertisements have been taken out in Scottish newspapers from horticulture companies saying that they cannot send goods to Northern Ireland. There was also the shocking announcement advising customers to book in early for the passenger ferries from Cairnryan to Northern Ireland so that they can deal with border controls.
To ease the Minister’s response to the noble Lord, Lord Hain, on why the Secretary of State was listening to just one party—of course, I am no longer a member of the Democratic Unionist Party—it was because the other parties all wanted the protocol rigorously implemented and could see no difficulty with it, despite the obvious problems. My noble friend Lord Dodds made that point. We were also told that no party should have a veto. I was kept out of office as First Minister for three years, not 18 months, by Sinn Féin, and I have very little recollection of many voices from this place pointing out that it was a denial of democracy, as it very much was, or dealing with constitutional issues.
I have used up all my time. I commend this report and wish the Government well in the investment conference. We have young, bright, skilled people in Northern Ireland, and I hope that the conference is very successful.
Lord Weir of Ballyholme (DUP)
My Lords, I join others in commending the noble Lord and the committee for a thorough, fair and balanced report. Its conclusions do not surprise me. Along with the noble Baroness, Lady Foster, I served on the DUP panel examining the Windsor Framework and receiving a wide range of evidence from stakeholders, which is largely reflected in this report. Some highlighted that burdens had been eased and improvements made. I perfectly accept that, although as a unionist it sticks in the craw that, even when we see improvements, such as on family-to-family parcels or medicines, that is through the prism of what we are being granted, in Northern Ireland in particular and the UK in general, as effectively grace and favour from the European Union. We are told what we are permitted to do within the United Kingdom.
Leaving aside that major constitutional problem, the report strongly highlights a range of practical issues and concerns from businesses with real issues on the ground. They have highlighted a lack of clarity from government. In particular, the haulage industry is concerned that the Windsor Framework has made things worse than before. Sadly, the Government’s approach to this issue has too often been characterised by obfuscation, confusion, ambiguity and spin. Two key, telling themes of the report are that a number of recommendations seek clarity from the Government on what further steps need to happen and the somewhat divergent positions between what the UK Government and the EU say which creates a major problem.
I turn to what needs to happen for a way forward. In simple terms, we need to see the constitutional position of Northern Ireland restored and the effective removal of the sea border for Northern Ireland’s internal trade. That means strengthening the internal market to ensure that goods can flow well in both directions and addressing some of the very real concerns about the green lane, such that it is not prohibitive to small companies and does not become, as described by one witness, an express red lane. We also need to see a range of unresolved issues tackled, be they veterinary medicine or horticulture, and real democratic accountability. The Stormont brake falls well short of giving genuine say.
We need to see substance rather than spin. Had the Prime Minister delivered everything he said in February, we would probably not be that far off the mark, but, unfortunately, we have had platitudes rather than substance. We do not need a perishable product that looks very good and tastes brilliant on day one, is probably okay a week down the line, but is very quickly of no use. We need something durable and comprehensive. That is the real concern that needs to be addressed and met if we are to find a way forward.
The Earl of Kinnoull (CB)
My Lords, I will make three brief points. The first follows on from the point made by many other noble Lords about the noble Lord, Lord Jay, and his industry, expertise and skill. I say that from first-hand knowledge, because the European Affairs Committee and its sister committee, the Ireland/Northern Ireland protocol committee, had to be very closely co-ordinated throughout everything to ensure we were not tripping over each other. That took the form of a weekly meeting during pretty well the whole of the currency of these reports. I never left those meetings unimproved and without being amused. I pay tribute to the noble Lord.
The second point is to underline the issue of regulatory divergence and how it is proceeding apace. Another and different meeting that we regularly had between the committees was the sift meeting, which considered the EU documents being sent through to the committee family. We had to decide whether those documents would be dealt with by the Ireland/Northern Ireland protocol committee or by the European Affairs Committee. This gave us a great look into what was going on. Regulatory divergence is proceeding apace. This issue will add a lot of long-term complexity to the relationship between the UK and the EU and will throw up many issues. It will need to continue to be watched.
The final issue is the merits of an SPS agreement. This has been considered by the European Union Committee and the European Affairs Committee several times. The committee has reported several times and unanimously said that there should be one. In its very carefully nuanced paragraph 129 of the report on the Windsor Framework, the Ireland/Northern Ireland protocol committee asks the Government to come back to it on the merits of such an arrangement. Thanks to the noble Baroness, Lady O’Loan, I have been able to look at the Government’s response at great speed this afternoon. It would appear that the Government have not responded to that paragraph at all. I would be very grateful if the Minister could give some indication as to whether there will be a response to it.
Lord Bruce of Bennachie (LD)
My Lords, I echo all the congratulations to the noble Lord, Lord Jay, and the committee, not only on a very good piece of work and on bringing so many disparate voices together but on providing a very valuable service to the House in detail and—I say to the Minister—to the Government, if they are prepared to address what is in it in detail. That is what has been provided and what the Government need to do.
To go back to the beginning of Brexit, it has been mentioned that we were promised unfettered access between the markets of Great Britain and Northern Ireland and frictionless trade. That was a lie from the start; that was not possible once we had left the single market and the customs union. The people who said that knew it perfectly well. So it was inevitable that there would be a problem and it was equally inevitable that Northern Ireland would be the focus of that problem. Unfortunately, it became subsumed in the bigger debate about Brexit, and the details of what Northern Ireland needed got overlooked to some extent.
As has been said, we all know that there is a real political divide, but businesses operating in Northern Ireland simply want clarity and the minimum amount of red tape that they can get away with. If there is to be red tape, they want to know what it is and how—indeed, whether—they can deal with it. That is where we have to get to. We know that the Windsor agreement does not get them there, but at least it sets the framework to try to help to achieve that. That will be achieved only if relations between the UK and the EU, and to some extent the UK and Ireland, remain on the basis of constructive engagement and developing trust, and if the relationship between Northern Ireland and the other components is based on a genuine desire to try to meet, wherever possible, the needs—not the political needs, but the economic, social and practical needs—of the people of Northern Ireland. That seems to be where we need to get to, and this is a really helpful process.
The noble Lord, Lord Frost, in his speech, said that you never get a good deal if they know you want one. My question to him is: how are you going to get a deal if they know you do not want one? Where does that take you? That was how he seemed to approach it—as well as threatening to breach international law and bring the whole reputation of the country into disrepute. The reality is that trade is a bargain, and a bargain is achieved by negotiation and agreement. Every trade agreement requires concessions and give and take. We had that when we were inside the EU; we decided to leave, but we want to continue to engage, and if we want to continue to engage we will have to negotiate and compromise. We can tease each other about who got a better or a worse deal, but we will know nevertheless that it is a compromise and a deal and it cannot be perfect.
This debate has served a useful purpose to provide that degree of focus. Every speech has had real merit. I absolutely accept from the DUP Members, for example, that they can focus on all kinds of details—everybody can—that are not perfect or right and could have and should have been done better. However, I would plead with them not to use that as an excuse not to try to secure progress. Everybody here is making the point about the need to re-establish the Assembly and the Executive. I absolutely accept the situation in the past—the noble Baroness, Lady Foster, made the point that Sinn Féin kept the Assembly out of action for three years—and I can recall that I criticised that in this Chamber, because I did not think that it was justified, any more than I think what the DUP is doing is justified. Democracy requires people who are elected to participate in the process—and, my God, the people of Northern Ireland need it more than they have ever needed it, if these issues are going to be addressed.
I have a simple plea to the DUP: how long are you going to leave the people of Northern Ireland abandoned at a most critical time, economically, socially and politically, without leadership or engagement or the recognition that they depend on you? Indeed, the British Government are not going to engage properly if there is no one to engage with. It is a passionate plea and genuinely sincere. It does not mean that I do not recognise the difficulties, but they must know that they are getting towards the end of the road with regard to how long this process can continue.
To conclude on what I think has been a very good debate, the argument has been made that we all supported the protocol, but it was an improvement on nothing. Many of us knew that it was critical and said that it should be changed, but the Windsor Framework took it forward. It has not resolved it all, but this committee has identified where it has and has not and where it can be improved. That is a very practical piece of work; it is to be welcomed and the committee is to be highly commended.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I, too, open by thanking the noble Lord, Lord Jay, and his committee for this second excellent report—nine chapters and five appendices, with detailed evidence gathering, conclusions and questions for the Government. I, too, have not read the letter that the Government provided today, but the noble Baroness, Lady O’Loan, described it as “gritty”. That bodes well that it is answering some of the detailed questions raised. I think that the noble Baroness said that it corrected some of the points—but, no, she is shaking her head on that. Nevertheless, it is a gritty answer to the report of the noble Lord, Lord Jay, which is a good thing. My noble friend Lord Hain described the committee as a “right handful”, and I noticed that nobody demurred from that assessment of the committee—but I suspect that that is a compliment to the noble Lord, Lord Jay, as well.
The report looked in turn at all the areas covered by the framework. In each case, it set out an overview of the UK’s and EU’s respective positions on how the framework’s arrangements will work, and the evidence that the committee received from business representatives, Northern Ireland experts and other stakeholders. Overall, the committee concluded that
“the Windsor Framework is an improvement on the Protocol on Ireland/Northern Ireland as originally negotiated”.
We in the Opposition agree wholeheartedly with this principal conclusion. Nevertheless, the committee goes on to say:
“Nevertheless, it is evident that the Windsor Framework does not resolve all the problems with the Protocol”.
For instance, while some witnesses highlighted the benefits of the new red and green lane arrangements, the committee heard that they would not be available to all businesses.
We hope that the red and green lane system will prove beneficial to eligible businesses and by extension to consumers, who will be able to buy products that were essentially banned under the unamended protocol. However, as the Library briefing note says, it does not cover all businesses and would require many businesses—SMEs in particular—to prepare for and implement yet another set of changes to how they operate on a day-to-day basis.
The committee heard concerns from witnesses about
“the technical and legal complexity of the Windsor Framework, and the multiple documents and legal texts that form part of it”.
Witnesses were also concerned about
“the lack of operational detail”
against
“the backdrop of tight deadlines for compliance”.
The committee said it would explore with stakeholders in the autumn whether the new guidance published by the Government from June 2023 onwards has answered these concerns. I had a brief chat with the noble Lord, Lord Jay, before this meeting, and I am pleased that the committee is continuing its work up until the general election.
The committee found that the solutions reached on VAT and excise were
“pragmatic compromises between the UK and EU positions”.
It believed the compromise on state aid
“gives rise to some uncertainty”.
While the pharmaceutical industry “strongly welcomed” the solution on human medicines, the committee said that an agreement on veterinary medicines
“remains elusive, and is urgently required”.
The committee will be aware that the Government have now agreed terms for the UK to return to the EU’s Horizon and Copernicus schemes, which the noble Lord, Lord Godson, referred to. Although these are not directly related to the protocol and Windsor Framework, which we are debating, this is an example of how the UK-EU relationship has changed for the better. In fact, we in the Opposition argued that returning to Horizon is the lowest hanging fruit post-Windsor, and yet it has still taken six to seven months for the Government to get it over the line. We continue to believe that the Brexit agreement can be improved. While we would not seek to renegotiate the protocol again, our talks with EU partners suggest that a more constructive approach would enable add-on deals that benefit both Northern Ireland and Great Britain.
The committee found that the new Stormont brake mechanism “divides opinion” between those who see it as an
“innovative attempt to give Northern Ireland politicians a voice over the application of EU law to Northern Ireland”
and those who believe it will have a “negligible impact” because of its “stringent conditions” and “limited scope”.
We are expecting five SIs to be debated in the coming weeks in order to implement various aspects of the Windsor Framework ahead of them going live. I would like to ask the Minister what engagement has been carried out with Northern Ireland colleagues, of all parties and none, prior to those SIs being drawn up and laid. The very presence of these SIs puts into sharp contrast the importance of getting Stormont back up and running, partly to facilitate potential use of the Stormont brake under the framework, but primarily to bring an end to the democratic deficit faced by Northern Ireland citizens.
In conclusion, in August this year, the Secretary of State Mr Heaton-Harris said that talks with the DUP were “half way there” to re-establishing an Executive and Assembly. There was further speculation in today’s Times about ongoing talks. I hope the Minister can say at least something about the intensity of those ongoing discussions and where they may lead.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, I join with all noble Lords in recognising the strength of the report and the great diplomacy skills of the noble Lord, Lord Jay. However, that does not surprise me from what I have been informed of the noble Lord as a senior diplomat both in the network and as a former Permanent Under-Secretary to what was the Foreign and Commonwealth Office. It should be no surprise to anyone in your Lordships’ Committee that he has brought all these different strands of thinking together in a very constructive report, to which the Government responded today. I was very keen to ensure that the response preceded our debate when I was advised that I was responding to this particular debate, as it is always good to get up to speed with what the Government have responded to in a timely fashion.
From the outset, I would like to say that this debate again, as the noble Lords, Lord Ponsonby and Lord Bruce, demonstrated, shows that everyone cares. This is not about different positions. Of course, that is important, but the bottom line is that when people take a particular position—I refer to my noble friends from the DUP in particular—they do it with passion and principle, because they care, and it matters.
It may be that I am being slightly starry-eyed about this in general, but when we represent the interests of our people across our united United Kingdom, while we have differing opinions, we do it with the intent that we want to get the best outcome. As someone who has seen the various discussions and debates—indeed, I served alongside my noble friend Lord Frost when he was leading on this negotiation—I know that no negotiation is easy. Every negotiation is a challenge. What we sought to do under the current Prime Minister Rishi Sunak was to reach out to the European Union, as a number of noble Lords have said, to see how we can strengthen our relationship with the EU.
I was taken by the contributions of many noble Lords. The noble Lords, Lord Alderdice, Lord Bew, Lord Dodds, and others have over many years engaged in debates as has my noble friend Lady Foster—I thank her for her best wishes. I recognise the issue of trust and engagement, which the noble Lord, Lord Hain, mentioned, as did the noble Lord, Lord Bruce. The noble Lord, Lord Hain, will know as a former Northern Ireland Secretary that that trust is key. Of course, the United Kingdom is directly engaged with our EU partners, the Republic of Ireland and all parties in Northern Ireland on these issues. I am delighted that we are joined in the Moses Room by my noble friend Lord Caine, who, together with the Secretary of State for Northern Ireland, has been leading on these discussions.
In answer to the question about continuing engagement, that is central to ensuring that the Windsor Framework moves forward positively for all, particularly for those within Northern Ireland. As my noble friends Lord Hannan and Lord Frost and the noble Baroness, Lady Ritchie, recognise, we are now dealing with the Windsor Framework and we need to ensure that we put in all practical efforts to make it work. I am pleased to recall that the Government agreed the Windsor Framework with the EU in February 2023. This led to the second report that is the focus of today’s debate, which was so ably introduced by the noble Lord, Lord Jay.
The noble Lord, Lord Bew, talked of the gritty government response. I was scribbling notes about some of the specifics—my first sheet is evidence of that. I will go over the debate with colleagues from the Cabinet Office and the Northern Ireland Office to ensure that some of the specific questions that were raised by, for example, the noble Baroness, Lady Hoey, are specifically addressed, as I will perhaps not be able to do that in the time that I have today.
The noble Lord, Lord Jay, and the noble Baroness, Lady Ludford, asked about the publication of the consolidated Windsor Framework. I can confirm that the full set of framework legal texts has been online since the deal was announced. It is a series of instruments but they are collected into a single GOV.UK page. We do not plan to consolidate the text further.
The noble Lord, Lord Ponsonby, asked about specific engagement in the run-up to the instruments that will be discussed and debated. I know that the Northern Ireland Office is doing just that. The noble Baroness, Lady Ritchie, also asked about the engagement undertaken with the north-south bodies on the specifics of the framework and what evidence is being collated. I assure her that engagement is being undertaken by the specialist committee and the joint committee, and I am happy to confirm that the new joint UK/EU stakeholder arrangements have already begun operating in this respect, as the framework demonstrated. We expect a regular rhythm and an expanded set of participants, particularly through the specialised committee and the joint committee.
We should recall that the UK Government have long recognised that we need to take account of Northern Ireland’s unique circumstances and to protect all dimensions of the Belfast/Good Friday agreement. The noble Lord, Lord Dodds, underlined the seven tests. Without going into detail on each one, I assure him that they have directly been part and parcel of our engagement and discussions.
However, as the noble Lord, Lord Jay, noted, it became clear that the old protocol did not strike the right balance: Northern Ireland has experienced persistent social, political and economic difficulties arising from its impact. It disrupted the smooth flow of trade between Great Britain and Northern Ireland with unnecessary red tape and bureaucracy. It also threatened Northern Ireland’s place in the UK market, with practical impacts on the availability of goods from Great Britain. Importantly—I remember debating this during the progress of the Northern Ireland Protocol Bill—it contained a democratic deficit, with Northern Ireland’s elected representatives unable to have a proper say on the rules that apply there.
As successive Governments have made clear, the UK’s preference was to find a negotiated solution to these issues. Indeed, I know that anyone who negotiated with the EU did so in good faith to try to find and determine the right outcome and solution. I therefore welcome the committee’s recognition that the Windsor Framework has provided an agreed, consensual basis for progress in Northern Ireland. It is a set of joint UK-EU solutions to move past the difficulties that have arisen in operating the old protocol—more durable than grace periods or any other contingency measure.
If I may make a personal reflection, I sat in some of the early meetings with European Commissioner Šefčovič and the Foreign Secretary and, as I have often said at the Dispatch Box, the tone determined the substance. Anyone who has been involved in a negotiation will know how important it is not just to achieve the right substance but to strike the right tone in the engagement.
The Windsor Framework marked a new chapter in our positive, constructive relationship with the EU, as partners. Just last week, we announced a bespoke new agreement with the EU on Horizon Europe. The noble Earl, Lord Kinnoull, has been a strong advocate of that. It was good to have some really good news, waking up to Radio 4 hearing many people talking about the positives of what had been achieved in our discussions with our European partners.
The Windsor Framework also resolves the issues with the original protocol, by fundamentally amending its texts and provisions to restore the smooth flow of trade, uphold Northern Ireland’s integral place in the United Kingdom and address the democratic deficit. Although I have heard very clearly the concerns of my noble friends in the DUP, in the Government’s view, the framework addresses the underlying issues that contributed to the social, political and economic instability in Northern Ireland as a result of the old protocol. It provides a fundamentally different basis for critical internal UK trade, seeking to streamline processes, lift unnecessary prohibitions—although I note the specific concerns raised by the noble Baroness, Lady Hoey—and provide a durable, sustainable basis for the future.
The noble Baroness, Lady O’Loan, raised the issue of VAT and excise. The Windsor Framework provides the UK Government with significant new powers to set VAT and excise rates and structures in Northern Ireland. These powers have already been used to remove EU limits on zero and reduced VAT rates in Northern Ireland. This allowed us to introduce VAT reliefs on the installation of energy-saving materials on 1 May. In August this year, comprehensive reforms to alcohol duty were introduced for all venues across the UK, including new standardised rates of excise duty. They were unequivocally incompatible with the old protocol.
The Windsor Framework also establishes the enhanced co-ordination mechanism for VAT and excise. This is jointly led by UK and EU experts and is working to secure additional flexibilities in this respect. The issues of resources and expertise were raised. The Government will ensure that this is suitably and appropriately addressed and resourced.
We have been working intensively since the deal was agreed to give effect to all the changes and processes, but I fully accept that this engagement needs to continue. Our debate today will be an important element in informing some of the Government’s thinking. However, to deliver the full range of benefits, we need to see a Northern Ireland Executive and Assembly up and running, so that they can play their part in overseeing these new arrangements. The noble Lord, Lord Weir, and the noble Baroness, Lady O’Loan—indeed most, if not all, noble Lords—agree with the principle that the representatives of Northern Ireland need to be a part of this.
Many references were made to the Stormont brake. My personal view on this is simple: let us get the Executive up and running. If there are challenges which arise based on principle, we will see the effectiveness of the Stormont brake, if and when required, in its practice. Our priority now is to do exactly that and to get what the people of Northern Ireland want: a functioning Executive.
The noble Lord, Lord Jay, the noble Earl, Lord Kinnoull, and the noble Baroness, Lady O’Loan, also raised the issue of a database on regulatory divergence. As to monitoring and managing divergence, government departments will of course continue to work together to log and analyse information, identify issues and, where necessary, raise those directly with our EU partners in the joint fora. We will continue to focus on that as part of our policy decision-making in government. We will also continue to explore how to contextualise divergence matters as they arise. We note the good work being done in this space by various think tanks as well.
On the framework, there have been challenges—again, they have repeated in this debate. However, the 2023 report asserts some conclusions that I must disagree with, which are—as was noted by the noble Lord, Lord Bew, and as the Government have outlined in our response—factually incorrect. Most importantly, the Government do not agree with the assessment that the framework is more burdensome or divisive than the grace period arrangements that preceded it. The previous set of grace periods and fixes were no more than temporary arrangements that were the subject of dispute, including in legal proceedings initiated by the EU. They relied wholly on the application of EU standards and did not cover all aspects of trade. There were, for example, no substantive easements for customs trade. Moreover, comparison, if attempted, does not stand up. The Government’s written response provides a detailed account of this but if there are further questions from the noble Lord, Lord Jay, or indeed from other noble Lords, we will of course be pleased to answer them specifically. However, I will give a few brief examples of how the previous arrangements pale in comparison to the framework’s green lane arrangements.
Previously, even under the grace periods, full international customs processes applied for all truckloads, even where goods were staying in Northern Ireland. The Windsor Framework replaces those processes with a system based on the sharing of ordinary commercial information. Previously, all food moving into Northern Ireland had to meet EU standards, which had already led to supermarkets withdrawing some products. The Windsor Framework means that UK food and drink public health standards apply to products moving in the green lane. As I think the noble Lord, Lord Hain, said, the green lane also allows more trade to benefit than was the case under the grace periods. From 30 September 2023, the new UK internal market scheme will expand the range of businesses able to benefit from the new arrangements and will protect internal UK movements from burdensome customs processes. For example, and as identified in the report, the turnover threshold for businesses involved in commercial processing has quadrupled to £2 million. There are various other areas but, in the interests of the few other points that I would like to cover, I will cover the specifics of any outstanding questions in a letter to allow for a full response to be given.
As an aside, I note that the report rightly sets out the importance of the effective functioning of the UK’s internal market, which I know all noble Lords will value and which is imperative. However, the report also takes issue with the fact that retailers in Great Britain can access the green lane. In that respect, the Government make no apologies for the important benefits secured in the Windsor Framework, which allow for smoother trade from Great Britain to Northern Ireland.
Moreover, beyond the core green lane arrangements, the framework as a whole delivers a substantial improvement. Previously, all changes to EU rules on goods applied automatically in Northern Ireland, with no say at all for Stormont. The Windsor Framework provides the Stormont brake and, as I alluded to earlier, we feel that we now need the Assembly up and running to allow for that to be tested if necessary.
Previously, the European Medicines Agency had full control over all new UK cancer drugs and other innovative medicines in Northern Ireland. The Windsor Framework removes any role for that agency in this sphere and puts UK authorities in full control instead.
Previously, EU rules applied by the old protocol precluded UK-wide VAT changes. Under the framework, we have already introduced legislation to bring Northern Ireland into line with the rest of the UK on, for instance, second-hand cars, energy-saving materials, such as solar panels, and alcohol duty.
In addition, previously, the Government were bound to collect “equivalent information” to an export declaration for every single movement of goods from Northern Ireland to Great Britain. The Windsor Framework removes that onerous burden and confirms the Government’s commitment to ensuring unfettered access for Northern Ireland goods to the whole UK market.
For these reasons and more, the Government are unequivocal in their view, as has been noted by several noble Lords in their contributions, that the framework is the right way forward. The noble Baroness, Lady Hoey, raised some issues on tagging livestock, border checks and duty free. She is right to raise some of the practical questions in this respect. Again, in the interest of time, and with her permission, I will write to her and circulate that letter to all noble Lords.
The noble Lord, Lord Jay, the noble Baroness, Lady Hoey, and others raised veterinary medicines. The Windsor Framework agreement has safeguarded the supplies of such medicines from Great Britain to Northern Ireland to the end of 2025. During this extension to the grace period, there will be no changes to the existing requirements on the supply of such medicines to Northern Ireland, and businesses should continue operating as they have done to date. While the extension is welcome, the Government’s position remains clear: there needs to be a long-term and permanent solution which maintains the uninterrupted flow of such medicines into Northern Ireland from Great Britain on which so many people and businesses rely. I can share with noble Lords that the Government are currently engaging extensively with industry and welcome the potential solutions put forward by key stakeholders in this respect.
The noble Lord, Lord Dodds, mentioned the seven tests that have been set out. I assure him that we focus on these particularly. I know that my colleagues in the Northern Ireland Office, in particular my noble friend Lord Caine, are very much focused on discussions and ensuring that there is the right deal for Northern Ireland.
The noble Lord, Lord Verdirame, also raised important issues about specific aspects of the Stormont brake. I think he mentioned Article 13.3a. I will write to him on some of the technical issues that he raised.
The noble Baroness, Lady Ritchie, asked about the insufficient public guidance on apportioning the amount of trade due to travel to the Republic of Ireland. I know that she has been in pursuit of this issue for a long time. I am reassured that colleagues in HMRC will respond to her in the near future.
The noble Baroness, Lady Ludford, raised a number of issues, including one on which I suppose I should declare an interest: the movement of halal and kosher meat. These goods are eligible to benefit from the new Northern Ireland retail movement scheme, which scraps costly individual vet-signed certification. Basically, we will now have a single general certificate per consignment.
There are a number of other questions that, in the time I have, I have not been able to respond to, but I assure noble Lords that the Government’s focus is on effectively implementing this basic framework to ensure that Northern Ireland’s citizens and businesses can take full advantage of the benefits it offers. In a few short weeks, the first phase of the green lane arrangements will be switched on. Our new schemes will provide a greatly expanded range of Northern Ireland traders with access to the facilitations agreed under the framework. Burdens will be lifted and checks will be reduced. Of course, when this happens, practical points will surface that we will seek to address.
The Government will continue to engage with stakeholders directly and to produce further guidance to ensure that there is clarity on these improved arrangements and how they operate. In parallel, we will also make full use of the wider freedoms provided by the framework, some of which I have already listed, to support Northern Ireland stakeholders. We will continue to urge all Northern Ireland parties to restore the Northern Ireland Executive and Assembly. As noble Lords, including the noble Lord, Lord Bruce, have said, in our view—it is a shared view—it is crucial that we have a functioning Executive at the earliest opportunity. The Government stand ready to engage with all parties in support of this.
Lord Jay of Ewelme (CB)
My Lords, I am very grateful to the Minister for replying to the debate and to all those who took part. The debate has shown a wide and deeply held difference of views on the Windsor Framework, but I was also struck by the arguments for compromise, stability and substance. All three of those will be needed if we are to find a solution to current problems, which will be, as our report said, for the benefit of all the people of Northern Ireland.
Protocol on Ireland/Northern Ireland: The Windsor Framework (European Affairs Committee Report)
(1 year, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text
Lord Jay of Ewelme
That the Grand Committee takes note of the Report from the European Affairs Committee Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: The Windsor Framework (7th Report, HL Paper 237).
Citizens’ Rights (European Affairs Committee Report)
(1 year, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Earl of Kinnoull
That the Grand Committee takes note of the Report from the European Affairs Committee Citizens’ Rights (1st Report, Session 2021-22, HL Paper 46).
The Earl of Kinnoull (CB)
My Lords, I rise to move the Motion standing in my name and will introduce two pieces of work by the European Affairs Committee. Between May and June 2021, the committee conducted an inquiry into the rights of around 6 million EU citizens resident in the UK and around 1.2 million UK citizens resident in various EU countries. We published our report on 23 July 2021 and the Government responded on 19 November. Scheduling pressures meant that, by late 2022, we had still not been able to hold a debate on it. The committee therefore decided to undertake an updating process and contacted all the original witnesses to ask their views. They all responded and, in May 2023, the committee held an additional oral evidence session. It then sent a lengthy follow-up letter to the Government on 25 May 2023 and the Government responded on 2 August.
I pay warm tribute to the staff of the original report—Simon Pook, Dominic Walsh, Tim Mitchell, Sam Lomas and Louise Shewey—as well as to those on the more recent letter, Jarek Wisniewski, Jack Sheldon, Tabitha Brown and Elyssa Shea, with Tim Mitchell and Louise Shewey reprising their original roles. The skill and dedication of all concerned has produced two compelling documents.
At a high level, our July 2021 report applauded the Home Office’s achievement in processing more than 5.4 million settlement scheme applications of the 6 million received by 30 June 2021, the initial deadline for receipt. The report also praised the scheme’s principle of looking for reasons to grant new residence status for EU citizens rather than to refuse it. However, the report detailed various issues still to be resolved in both the settlement scheme and the systems operated by EU member states. Our update work looked at these areas again.
As of 30 June 2023, the settlement scheme had received 7.4 million applications. Thus, 1.4 million applications had been received since the 2021 deadline, showing just how live an issue this remains. It is therefore imperative that matters relating to these rights continue to receive the closest attention, being integral to the overall relationship between the UK and the EU.
Coming to the UK settlement scheme first, I start with the process of moving from pre-settled to settled status. Our original report foresaw the challenges ahead for the millions needing to apply to transfer from pre-settled status to settled status to secure their rights permanently. The committee noted that,
“although the Home Office planned to send individual reminders, the effectiveness of these would rely on holders of pre-settled status keeping their contact details up to date”.
In December 2022, following a judicial review brought by the IMA, the High Court ruled that the design of the settlement scheme was unlawful, particularly with regard to the Government’s approach to those granted pre-settled status.
The committee wrote to the Government in January, and again in our long letter in May, for clarification on the steps being taken to implement the High Court’s decision. The Home Secretary’s response on 2 August noted that the Government are
“working to implement the December 2022 High Court judgment as quickly as possible and in such a way that it will continue to be easy for EU citizens to evidence their WA rights in practice”.
The Home Office had in fact published some further details regarding the settlement scheme on its website a couple of weeks earlier, on 17 July, which was not referred to in the letter of 2 August to the committee. These July details stated that it would take steps to convert automatically
“as many eligible pre-settled status holders as possible to settled status … without them needing to make an application”.
In response to all of this, the IMA said that
“while we broadly welcome the commitment from the Home Office that no-one will lose their pre-settled status for failing to make a second application, we remain concerned about the lack of detail about how the plans will work in practice”.
Thus nine months or so on, there is still a woeful lack of clarity affecting an estimated 2 million people about how the Government intend to implement the High Court judgment of December 2022. Does the Minister accept that? When will the Government provide the vital clarity about how the automatic conversion of pre-settled to settled status will operate in practice?
The Earl of Kinnoull (CB)
Another problem area concerns backlogs and delays in the application of the settlement scheme. Since the 30 June 2021 deadline, there has continued to be a steady flow of fresh applications to the scheme. We are concerned that a backlog has developed in processing these applications and issuing certificates of application. From published data and the Home Secretary’s response, we know that in the period December 2022 to June 2023 the number of applications not concluded fell from an aggregate of 180,000 to an aggregate of 150,000 or so. We also know that between March and June 2023 the monthly number of new applications averaged just over 50,000. Broadly speaking, that would imply a pipeline of three months or so, with difficult cases no doubt taking far longer. Given these figures, can the Minister say by when the Government expect to clear the backlog in processing these applications?
The problem of digital status also persists. The committee and its predecessors have repeatedly and consistently raised concerns regarding the digital-only character of the EU settlement scheme. In our 2021 report, we noted that the absence of a physical document created the risk that many EU citizens, including the elderly and those who are digitally challenged, may struggle to prove their rights. We recommended that the Government offer holders of settled or pre-settled status the additional option of requesting and paying for physical documents, which would complement rather than replace their existing digital status. The evidence that we have considered in our follow-up research suggests that our concerns about this aspect of the design of the EU settlement scheme were well founded.
The quality of the digital system has also become an issue, which I now come to: the database error debacle. In January 2023, it was revealed that the incorrect status had been displayed online for approximately 146,000 people for an extended period. For settlement scheme applicants whose applications to the scheme were refused between June 2021 and April 2022, the online database displayed their application as “pending” instead of “refused” until 18 January 2023.
In her response letter of 2 August, the Home Secretary explained that these individuals received an email or postal notification of the decision when it was made, but that this was not reflected in an applicant’s digital status, which is used by some government departments when making decisions about access to benefits and services. She says that this
“was not due to a database error”,
but rather reflected that
“the digital status system did not have the capability to reflect that an administrative review or appeal was pending”,
and that it was necessary to ensure that such individuals
“continued to have temporary protection of their rights”.
I repeat all this hard to understand justification into Hansard so that others can form a view as I have. Systems that do not have necessary capabilities are by definition not good. Will the Minister say when the Government became aware that the online database reflected incorrect statuses?
The 146,000 concerned all had conflicting government news from two sources and, for at least some, one of the sources was not digital but a letter. There is an inconsistency between the Government’s defence of the digital systems for proof of status and their argument that users should not have relied on the information displayed on the digital system when accessing benefits or healthcare. For those who received a letter, which the Government maintain they should have relied on, this inconsistency is even worse. Can the Minister say why, given that the Government acknowledge that this situation arose out of system design problems and that it went on unstemmed for so long, the Secretary of State’s full powers of discretion to waive benefit debts has not been used, including in respect of universal credit?
Our 2021 report identified a mixed picture of how the rights of UK citizens were being upheld in EU member states. The evidence that we received in the follow-up indicates that this assessment still holds true. Although residence schemes appear to be operating relatively smoothly in the majority of EU member states, we have been aware of significant problems in others.
In her response letter, the Home Secretary informed the committee about
“regular discussions with the Commission … to raise and resolve issues”.
I welcome the Government’s engagement with the Commission on these matters and urge them to continue to raise such issues as they arise, including in relation to processes for upgrading to permanent residence. The key point is that there remain plenty of individual cases to be resolved. We are, however, very concerned to hear that resources to support UK citizens in the EU on citizens’ rights issues have been scaled back substantially since we conducted our 2021 inquiry. Several stakeholders were critical of the Government’s decision to close the UK nationals support fund, which provided funding to non-governmental organisations in some EU member states to support residence applications from UK citizens. Here, a little money has gone a long way in the past. Will the Minister provide an update on the resources available to UK embassies in EU member states to support UK citizens facing citizens’ rights issues? What government funding is currently available to non-governmental bodies that support EU-based UK nationals on citizens’ rights issues?
I have spoken for a long time and touched on only some of the key issues from this important work. I very much look forward to the debate ahead. I beg to move.
Baroness Anelay of St Johns (Con)
My Lords, I congratulate the noble Earl, Lord Kinnoull, on his opening speech and on his outstanding work as chair not only of the European Affairs Committee but of the EU Committee before that. I also thank the committee staff for their work drafting the 2021 report and assisting the committee in all its follow-up work, to which the noble Earl referred. We are also fortunate that the noble Lord, Lord Ricketts, has agreed to take on the role of chair of the committee; it is an important one, but it is onerous too.
What seems like a lifetime ago, pre-Brexit, I was a Minister in DExEU in 2017, where my portfolio included meeting UK citizens resident across the EU—for example, in Finland and Luxembourg. At that point, they felt cast aside, with no certainty about how a withdrawal agreement might affect them or when it might be agreed. They found themselves not knowing what their employment, health, residence or travel rights might be. The stress they felt was palpable. It is regrettable that so many of them still face some uncertainty about their status and access to services. Today, I will focus on the protection of their post-Brexit rights, some of which have been referred to by the noble Earl.
In the Home Secretary’s recent letter to the committee, she acknowledged that
“there is still much to do, and serious shortcomings remain in several Member States”,
particularly regarding
“the variable quality and availability of reasonable grounds guidance for late applications, and the uncertain status of UK nationals who are required to submit a second application”.
The Home Secretary stated that the Government intend to continue raising these matters at both bilateral and EU level. Like the noble Earl, I welcome that commitment. However, I note, for example, that the Specialised Committee on Citizens’ Rights met for just two hours on 23 May and it now meets only twice a year.
Subsequently, the UK and EU issued a joint statement. The EU raised several significant issues about its citizens in this country, but I shall mention just some of the UK’s concerns, which were raised by the Government. The first was how UK nationals who do not make an application for permanent residence may demonstrate their declaratory rights of permanent residence when accessing benefits and services. Secondly, there is a lack of publicly available guidance on reasonable grounds for making a late application in some states. Thirdly, there are property rights problems in some states. Finally, there are reports that UK nationals with special statuses were unable to access rights guaranteed to them under the withdrawal agreement.
I welcome the Government’s engagement with the Commission on these matters, but I would be grateful if my noble friend the Minister could indicate what progress has been made since the last meeting of the specialised committee and what preparations have been made for the next meeting. What bilateral discussions, to which the Home Secretary referred in her letter, are scheduled?
The committee’s recent letter to the Home Secretary indeed expressed concern that resources to support our citizens in the EU on citizens’ rights had been cut—indeed, the UK nationals support fund had been closed. As the noble Earl reminded us, we asked the Government for information about the resources available for embassies and NGOs. In looking at the response of the Home Secretary, I noted that she specifically said that resources included the
“Justice and Home Affairs Network of attaches”.
I would be grateful if my noble friend the Minister could give details of that network to the Grand Committee. I googled repeatedly for information but came up empty-handed. That may just be me, but I would be grateful for elucidation. How many of our embassies across the EU have an attaché whose work is dedicated to supporting UK citizens resident there? How accessible are they, and can my noble friend give examples of progress the network has made in assisting our citizens?
I appreciate that these matters are complex, but it is time that substantial progress should be made on removing the final obstacles that still face our citizens resident in the EU.
Lord Wood of Anfield (Lab)
My Lords, it is a pleasure to follow my noble friend Lady Anelay, and I am grateful to the noble Earl, Lord Kinnoull, for his excellent speech. I also want to say what a pleasure it was to serve under him on the EU Committee and the European Affairs Committee, which he chaired with distinction, good humour and balance for so long. However, I suppose that European affairs’ loss is the Cross-Benchers’ gain.
I was chair of the European Affairs Committee for six weeks. My tenure did not move markets in the way that someone else’s six-week tenure in charge in another place did. However, we managed to host witness sessions on developments regarding EU citizens’ rights since our July 2021 report, and sent the Home Secretary the 25 May letter that has been mentioned.
Brexit was always going to create difficulty and complexity for EU citizens in the UK and UK citizens in the EU, and many of the issues that have arisen have been addressed. However, far too many remain; some show no signs of improving after many years, and others are getting worse. In addition, as I will point out later, problems are still arising for UK citizens abroad and for EU citizens here in the UK as a result of new decisions that are being made, including some in the last few days, which I will talk about.
I want to touch on three legacy issues—the noble Earl, Lord Kinnoull, mentioned a couple of them. I will start with the backlog of cases. Estimates from the3million campaign group—I congratulate it on the excellent, persistent work it does on behalf of EU citizens in the UK—is that the backlog of applications for settled status will take three years to clear. Some 20,000 who applied before the original official deadline have been waiting over two years. This matters not simply for reasons of complexity and uncertainty. If your status is officially designated as “pending”, multiple rights are denied to you: you cannot replace your driving licence or get a new one, get a European health insurance card, apply for a national insurance number or sponsor family members, and multiple other problems arise if you want to prove your right to work or your ability to rent or to travel. Can the Minister please give us a sense of what is being done that has not already been done, say, a month ago to try to address this backlog?
With regard to the High Court’s decision of December 2022, I am afraid that the Government’s response is still inadequate. The court ruled that EU citizens can be required to make only one application for residence to secure their rights under the withdrawal agreement, so the Government’s requirement for a second application—from pre-settled to settled status—was contrary to that agreement. Furthermore, the court ruled that, once granted pre-settled status, EU citizens are automatically entitled to reside permanently here once they have lived continuously in the UK for five years.
As the noble Earl, Lord Kinnoull, said, nine months on from the judgment, we are still waiting for the Government to implement the requirement to automatically convert pre-settled status holders to settled status once they are eligible. When will that court-required change be introduced? Some people—not myself—suspect that the Government are deliberately treading water on the implementation of the terms of this judgment in the hope that they may not have to make any further remedial measures or changes before the election. I hope that the Minister can disavow that motive when he responds.
Secondly, applicants’ digital status still indicates that the rights of those with pre-settled status will expire after five years, when that is simply not true under the law. When will this be changed?
Thirdly, the Home Secretary’s response to our letter expressed a determination to continue with the policy of encouraging pre-settled status holders to apply for settled status, but the court made it clear that no rights can hang on such an application. Can the Minister explain why this is still government policy?
Looking to the future, there is the looming issue of the new ETIAS—electronic travel information and authorisation system—to be introduced in 2024. The Home Secretary’s reply to our letter states that,
“those with an existing UK immigration status, such as pre-settled or settled status, will not be required to obtain an ETA”.
That is good news, but they will still need to prove to airline and rail carriers that they have the formal status that means they are not required to have an ETA. Where does that proof exist? The answer is: in the advance passenger information system, which is not planned to be introduced until summer 2024, after ETAs have already begun to be introduced. Can the Minister explain how this circle will be squared?
Lastly, I want to ask the Minister about an issue that arose just a few days ago from an administrative policy change. The Immigration Minister issued a Statement announcing
“the removal of the right of administrative review”—[Official Report, Commons, 7/9/23; col. 23WS.]
for settled-status refusals and cancellation decisions made after 5 October this year. I understand the logic of this, as it brings it into line with other kinds of immigration law appeal processes, but campaign groups have said that it will penalise more vulnerable EU citizens and increase the workload on immigration tribunals. Will the Minister please respond to that?
Lord Hannay of Chiswick (CB)
My Lords, much water has flowed under many bridges since the report we are debating today was published some two and a half years ago. Some developments in the treaty-based handling of citizens’ rights on both sides of the channel following Brexit are, frankly, worthy of respect—particularly the granting of settled and pre-settled status to several more millions of EU citizens in this country than was originally anticipated. I would add in my praiseworthy list the work of my noble friend Lord Kinnoull and the noble Lord, Lord Wood, who did the refresh of our report.
Other events are, I fear, a bit less praiseworthy and I will come to those shortly, but we must not lose sight of the basics of the affair: in June 2016, the referendum vote—I am not contesting the outcome’s legitimacy—deprived millions of citizens on both sides of the channel of their existing citizens’ rights, without their having any say in the matter. That was a shameful way of proceeding—all the more so when the governing party promised in its 2015 election manifesto to give the vote to all UK citizens resident abroad and then failed to do so in time for them to exercise that vote on an occasion of such importance to them as the 2016 referendum.
As my noble friend Lord Kinnoull mentioned, your Lordships’ European Affairs Committee has urged the Government again and again to rectify their scheme for granting settled and pre-settled status to provide the option to recipients of receiving a hard copy registering their status—the sort of thing we all had the option to receive under the Covid-19 vaccination scheme—but again and again the Government have refused to do that, most recently in the Home Secretary’s much-belated reply to the committee’s letter of May this year. They plead security concerns of a rather unconvincing and unsubstantiated kind. I really hope the Minister will indicate today a willingness to look again at this matter and to cease ignoring the considerable body of evidence that many elderly and insecure EU citizens have expressed troubling anxieties as a result of not having paper or plastic evidence of their status. To refuse this is sheer digital fundamentalism. Of course, our own citizens in the rest of Europe have no such problem because they all get identity cards.
Then there was the lamentable attempt by the Government to subject late applications for pre-selected status to an arbitrary and subjective ruling on their acceptability. This scheme was struck down in a case lodged by the IMA as illegal—incompatible with the provisions of the withdrawal agreement with the EU which we had entered into and ratified. It is good that the Government accepted that ruling and did not appeal, but it has taken far too long to produce an alternative way of handling late applications—until just before the recent Summer Recess.
It remains to be seen whether these alternative arrangements are regarded as questionable by the IMA. I would, in any case, be grateful if the Minister could confirm that the new arrangements announced on 17 July, in so far as they apply to the handling of late applicants, will in no respect lead to arbitrary, unilateral or subjective rulings of the sort that were considered by the High Court to be incompatible with our withdrawal agreement. I hope the Minister will commit to handling any problems with greater flexibility than was displayed the last time, and will avoid any further recourse to the courts, which will result only in stress and anxiety for the individuals concerned and bad blood with our European partners. Meanwhile, the European Affairs Committee will itself be considering carefully the terms of the Home Secretary’s remarkably belated reply of late July to our earlier letter. That could lead to further correspondence.
Why does all this matter? Citizens’ rights and the way we handle them are at the heart of the issues of trust and confidence between the two parties to the withdrawal agreement, the UK and the EU, which have been so lamentably deficient in recent years, to the detriment of both parties. We shall be debating in the Chamber on 20 September the best way to restore that trust and confidence and to build a more fruitful and solid post-Brexit relationship. Citizens’ rights and our willingness to stick rigorously to what we signed up to will be an integral part of any such venture.
Viscount Trenchard (Con)
My Lords, I am most grateful to the noble Earl, Lord Kinnoull, for securing time for this debate today. I am also grateful to him for his excellent chairmanship of the European Affairs Committee and its predecessor committees. It has been a great pleasure to serve on them.
Of course, it would have been much better if your Lordships could have had an opportunity to discuss this report sooner than 25 months after its publication, but I am heartened to note that our much more recent report on the overall UK-EU relationship, published on 29 April this year, will be debated on 20 September, less than five months after publication. That is impressive progress. It is, however, perhaps fortuitous that the House only now has an opportunity to debate the Citizens’ Rights report, because two more years have elapsed and therefore there has been more time to assess the extent to which the arrangements established under the withdrawal agreement have worked well or not. In addition, the committee carried out some follow-up work in May this year.
My German daughter-in-law, who lives and works in London, was not at all unhappy about the settled status scheme and how it worked. I think the scheme has worked pretty well and has been reasonably well administered. The committee recommended that the Government should introduce a non-digital option for the scheme to assist those who have difficulties with digital technology. In any case, we are all familiar with the process of obtaining certified copies of physical documents, such as passports. So why can they not go to a post office—if they can still find one that does this—or to a solicitor’s or a notary public’s office, with a device to show the original digital document, and a printed copy of it, and obtain certification of that printed copy of the digital document? Would the Minister agree that such a certified copy should have the same status, and would effectively count as a physical form of the document?
Noble Lords have spoken about the High Court’s ruling that EU citizens should not have to apply separately to transfer from pre-settled to settled status. I believe the Government’s position on that subject should be acceptable and should not cause undue inconvenience. My right honourable friend the Home Secretary has accepted the High Court judgment of December 2022 and confirmed that any holder of pre-settled status who is eligible to change to settled status suffers no loss of rights if he or she fails to make a second application.
I am interested to note that the number of grants of settled and pre-settled status to EU citizens is now in excess of 6 million, although it is claimed by some that many EU citizens have returned home following Brexit. Does the Minister think that the statistics show that, contrary to expectations, there has been an increase in EU citizens resident in the UK since our withdrawal from the union? Can the Minister explain why the Government’s original upper estimate of likely applicants to the settled status scheme was only 4.1 million, whereas well in excess of 7 million have in the event applied?
There is much less consistency when one examines the question of the residence rights of UK nationals living in the EU. This matter is, of course, not wholly a union competence, and the EU’s member states operate a wide variety of systems. In particular, at our evidence session conducted on 16 May, British in Europe made us aware of high refusal rates for late applications by British citizens for permanent residence status in Sweden and Denmark. The Home Secretary assured us that she wishes to work collaboratively with the European Commission on this. We were also made aware of specific problems in Portugal involving payment for residence documents, and documents being issued for five years when they should be valid for 10 years. Can the Minister tell the committee what discussions the Government have held with the Portuguese Government on this matter, and how they propose to solve the problem?
Other noble Lords have raised further relevant points. I am particularly supportive of all the points made by the noble Earl, Lord Kinnoull, especially his comments concerning the reduction of support available for UK citizens seeking to establish or upgrade their residence rights in EU member states. I thank the noble Earl again for obtaining this debate today and look forward to the Minister’s reply.
Lord Balfe (Con)
My Lords, first, I add my thanks to the noble Earl, Lord Kinnoull, for this report. I am not a member of his committee, but I follow what it does. I am afraid I am still an unrepentant remainer—leaving the European Union was a disaster.
My first point is about paper documents. In this country, we sometimes overlook the fact that in most of Europe, paper documents and paper residence permits are extremely important. I do not know of any country in Europe, although Estonia may be one, that does not issue paper documents. The Government should look at some way around this.
I turn to the situation of people living in the European Union and ask the two other party representatives here to tell us what their views are. It seems to me that when we talk about people in Europe, we pretend they do not exist, but they very much exist now they have votes, and we are coming to an election. I would like to see at least one of the parties, preferably the Labour Party because it is more likely to form an alternative Government, come out very clearly and say that it will move as far as it possibly can towards restoring free movement in both directions. We benefited enormously from free movement both in Europe and from people coming from Europe. It seems there are 1.2 million people there and, thanks to our Government, many of them will now have a vote. This is not a small number. It could well swing one or two marginal constituencies, and all the parties need to have a very clear policy about what they are going to do to help our citizens in Europe get their rights, because this is quite fundamental and it is something that can appeal to them.
I have been to Spain to speak to some of our expatriates who live out there, and it is a very big issue. They feel somewhat ignored. I ask that the parties look at the way in which they can make life better for people in Europe, and appeal to them—in other words, put it in the manifestos, boost and bring back the UK national support fund and work with the various migrant groups. Most of the groups in Europe have UK associations, and most of them work and pull people together. They need a message from the political parties in this country that they are wanted and valued—and we are told that there are 1.2 million such people to appeal to.
That is the main reason why I spoke. The second reason, which I have already mentioned, is that I want to see a party committed to bringing back as many of the benefits of the European Union that we have lost as they can. Within the area of citizens’ rights and free movement, a lot can be done, and it will benefit Britain. This is not charity but sheer common sense.
Lord Ricketts (CB)
My Lords, I declare an interest as a non-executive director of the Channel Tunnel operator, Eurotunnel. I am honoured to take up the baton of chairmanship of your Lordships’ European Affairs Committee from the noble Earl. I pay tribute, like others, to his wise and calm leadership of the committee through four turbulent years. The House will have the opportunity to debate his swansong report—if I may put it like that—the landmark report on EU-UK relations, on 20 September. I apologise in advance that I shall not be in the House, as I am unavoidably involved in a state visit to France.
Today’s thoughtful and detailed debate is possible only because of the interest that the noble Earl, Lord Kinnoull, and the committee have taken over several years in citizens’ rights. I wanted to start, like others, by repeating that, although these issues are complex, they are not abstract: they have a direct impact on the life chances of people across the UK and in the EU.
I pay tribute to the Home Office for the success of the process that has led to 7 million applications for settled status being received and 6.2 million accepted. I want to underline the five important questions that I think have come out of this debate, and I look forward to the Minister’s response. After that, the committee will reflect on what further work we need to do.
First, how and when will the Home Office give effect to the High Court ruling in the IMA case on the automatic conversion of pre-settled to settled status? Secondly, on the issue of new restrictions on applications to the scheme, as other noble Lords have said, on 17 July the Government announced that having reasonable grounds for a delayed application will now become a requirement for it to be a valid application, even before eligibility is considered. That is no technical change. If, in the view of the Home Office, there are no reasonable grounds for delay, the application is automatically rejected as invalid, regardless of its merits. In that case, there is no administrative review or appeal: the only recourse for an individual is to judicial review, with all the costs and complexity of that.
The Government have also announced the closure of two routes for family reunification and the removal of the right for administrative review of a refusal of eligibility for all future EUSS applications. These changes taken together mean, in effect, that there is now a policy of progressive curtailment of access to the scheme.
Thirdly, on the backlog, which has been mentioned by several noble Lords, the analysis given by the3million, as others have said, suggested that it would take three years to clear the current backlog and that the numbers waiting over two years is growing and could now be up to 20,000. Given the real disadvantages for people of being in this limbo, would the Minister accept that efforts to clear the backlog need to be redoubled?
Fourthly, there is the issue of digital status. If the Government are not prepared to think again about the option of a physical document, surely there is an even greater obligation on them to ensure that the online “view and prove” system is accurate, user friendly and robust. We continue to hear of glitches and outages that undermine confidence as well as causing practical problems. When it comes to travel, as the noble Lord, Lord Wood, said, the fact that the system does not link up multiple applications made by the same person can lead to delay, and all the stress that that causes, at the border. This problem will become only more acute with the introduction of the electronic travel authorisation. When will the promised comprehensive solution to the issue of linking multiple applications be in effect?
Fifthly, there is the error on the database—or exercise, as the Home Secretary’s letter put it. Given that, whatever the reasons, a misleading digital status was displayed for almost a year for all refusals in that time, will the Minister review with his colleagues the case for Ministers to use to the full their powers of discretion in not recovering the benefits from that period?
Lastly, I will say a quick word for UK citizens in the EU, echoing the noble Baroness, Lady Anelay. Although almost all the residence deadlines have now passed, British people will still need assistance in exercising their rights. I know of cases in France, for example, of children of permanent residents who reach the age of 18 finding it difficult to establish their status. Can the Minister confirm that, in addition to working with the Commission in the specialised committee, our excellent embassy network, including the specialised justice and home affairs attachés, will have the resources they need to continue to help British citizens to exercise rights when they are needed?
Baroness Ludford (LD)
My Lords, I have been delighted to join the European Affairs Committee, serving briefly under the noble Earl, Lord Kinnoull, and now under the noble Lord, Lord Ricketts—we are very fortunate in our chairs.
It is a matter for celebration that over 6 million EU citizens have been granted settled status in the UK such that they can continue their enormous contribution from which our country has benefited so much. As Monique Hawkins of the3million—I share the tribute that the noble Lord, Lord Wood, paid to that organisation —told our committee in May:
“I would like to acknowledge the success of the EU settlement scheme and how the Home Office … got so many applications through in a relatively short time, but”—
she adds a little sting in the tail—
“if asked to characterise the current state I would call it somewhat stuck”.
I fear the gremlins need to be addressed. To a certain extent, I will repeat what has been said.
It is pretty shocking that it took a court case to resolve the problem of Home Office insistence on a new application from those originally granted only pre-settled status. I congratulate the Independent Monitoring Authority, which took the challenge to the High Court. It could teach other watchdogs a thing or two—one thinks of water and sewage—about being on the ball and on the case. However, as the noble Earl, Lord Kinnoull, said, there is a woeful lack of clarity affecting 2 million people about how the automatic conversion to settled status will operate in practice. I look forward to the Minister’s reply.
Can the Minister also explain how the department’s stance of encouraging further applications for settled status by individuals who have already applied for and received pre-settled status is consistent with the High Court judgment? The3million says that digital status continues to say that people’s rights expire, which is giving incorrect and unlawful information to prospective employers and landlords. Can he explain why a still valid EEA permanent residence document is no longer considered a reasonable ground for a late application? Surely any common-sense reading of a reasonable ground must include such situations.
Can the Minister explain delays in issuing certificates of application? What additional steps are being taken to ensure that in future all such certificates are issued without delay? Why does the Home Office refuse to accept the IMA recommendation of a service standard of five working days to issue such a certificate? As an example of the problems that arise, given that all NHS secondary care is chargeable at 150% for the time before someone can evidence their application for a certificate of application, delay can be very expensive as well as inconvenient.
The3million, as has been mentioned, worries that the axing of rights of administrative review, which was only announced in a written form last week, is likely to hugely increase the workload on immigration tribunals. Can the Minister amplify the reasons for withdrawing administrative review?
On the issuing of public documents, organisations representing EU citizens have told us that applicants to the settlement scheme face difficulties with the certificate of application, when accessing benefits and securing a national insurance numbers and documents such as the EHIC card and a driving license. I hope that the Committee will pursue this in further correspondence, if we do not get a good response today.
The noble Earl, Lord Kinnoull, mentioned how, given the Government’s stubborn insistence on reliance on a digital-only system for proof of status, it seems highly inconsistent for the Government to say that users should not have relied on their digital status when accessing benefits or healthcare during the database debacle, but rather an email or postal notification of decisions. I agree with the3million that their proposal for an app with a QR code has substantial merit and deserves to be considered and engaged with in good faith.
Baroness Ludford (LD)
I think I had just said that I urged that the3million’s proposal for a QR code should be considered and engaged with in good faith—at least, I hope I had said that.
I have two or three final points. The first is the concern about reduced funding to support vulnerable citizens in the light of the increased complexity of late applications. That would concern EU citizens in the UK and UK citizens in the EU. I hope the Minister can give us some assurances on that point.
What systems will be in place to ensure that EU citizens face no additional checks or disruption to travel when the ETA rollout begins, given that the advanced passenger information system might not be ready?
Finally, I assure the noble Lord, Lord Balfe, who addressed questions to the party spokesmen, that Liberal Democrat policy is to rejoin the single market and hence restore freedom of movement and, long term, the aspiration may be to rejoin the EU.
Lord Collins of Highbury (Lab)
My Lords, I thank everyone who has contributed to the debate. I particularly thank the committee and its chair for their excellent report and their ongoing work to scrutinise the Government’s efforts with regard to citizens’ rights. It is vital. I think a noble Lord said that this is not an abstract issue; it is about real people. I must declare an interest: my husband is a Spanish national. Immediately after Brexit, the one thing we both feared was that our rights to be citizens of two European countries and have the benefits of that, with families and homes in both countries, and our ability to live as EU citizens would be taken away.
I will not be tempted by the questions from the noble Lord, Lord Balfe. Brexit has happened; it is there. What we need to do is ensure that the rights that the Government promised after Brexit are properly maintained and implemented. I recall that, when we had those early debates, we estimated the number of people who might be affected. I certainly welcomed all the efforts of the3million. I do not think that any of us really thought that we would be talking about 7 million. It shows the huge personal impact that this can have.
However, I acknowledge—as does the committee—that the scheme launched has been relatively successful. The approach the Government say that they have had in terms of the response to the original committee report, a flexible and pragmatic approach, certainly helps us to persuade the EU to reciprocate and work in a collaborative way. Of course, as we have heard during the debate, changes that may impact that flexible approach will undoubtedly have a damaging effect on our citizens in the EU. I hope the Minister can give some very clear assurances on that, particularly in relation to the Home Secretary’s assurances that we will continue to make representations, as the noble Baroness, Lady Anelay, mentioned. It is vital.
I will repeat some of the ongoing issues, particularly, as the noble Baroness, Lady Anelay, said, on the resources UK citizens can rely on in dealing with citizens’ rights issues within the EU. These have obviously diminished, and the UK Nationals Support Fund has closed. We got vague terms in the response from the Government on embassy support, which is really insufficient. People need to know where they can go and what support they can expect. Certainly, that relies on consulates.
The other issue I want to raise is in relation to the Government disagreeing with the committee on the lack of physical documentation. Certainly, the3million has highlighted this, as have others. There are concerns that the digital-only nature of “view and prove” has caused issues for older people, those in Roma and Traveller communities and those with disabilities. I know this from experience; I helped my husband apply for settled status and I made a mistake. It took six months to put it right because you cannot easily pick up a phone and say “I didn’t mean to press that button. I meant to press another button”. It got resolved in the end, and it has certainly not been a problem since, but I want to add to the point.
The noble Lord, Lord Hannay, and other noble Lords raised that it is not simply about a technical issue. People who work and live in this country—people like my husband, who has lived in this country for 28 years, has paid tax and national insurance and shares a home with me—want to feel recognised as someone legitimately living in this country. However, my husband has to rely on some vague computer system. Every time we go through passport control, he does not feel that that has been recognised. That is the important point to bear in mind; it is about more than just simply a technological process. This is about rights people feel they are entitled to, and they feel vulnerable. We need to address that properly. The committee’s work has been brilliant in focusing on those issues.
My noble friend raised the question of the backlog. All noble Lords have raised the issue of people in limbo who have applications in, but the delay in dealing with them means that they will encounter problems in terms of the ETA and advanced passenger transport information which are coming in. These are practical issues that will hugely impact people’s lives. EU citizens are not people who stay in this country permanently; they need to visit their families, and they have bereavements and other issues where they need to respond. We need to hear a bit of empathy and understanding from the Government about what we are talking about here.
In conclusion, I seek reassurance from the Government that they are fully prepared, or preparing, for the influx of settled status applications over the coming years, ensuring that we have clear, simple systems in place that take into account the needs of those people needing most help to apply. It is that empathy that I would like to hear from the Minister. Also, there is the whole question of automatic conversion. We hear that it will take place in 2024—why? What is the delay? Will that cause even greater uncertainty for people? Can we be clear about who will be covered and who are digitally excluded or vulnerable? Will the digitally excluded or vulnerable be prioritised, and how will the Government make sure that those who may need to make applications know? I think these are fundamental questions that I hope the noble Lord will be able to answer this evening.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, I am very grateful for the contributions of the Grand Committee, and in particular I congratulate the noble Earl, Lord Kinnoull, on securing the debate. Clearly, this is a topic that has long been of interest to him. On behalf of the department, I congratulate him on his distinguished term as chairman of the European Affairs Committee and its predecessor body. His scrutiny has of course been very powerful and helpful, and I thank him for that.
Turning to the EU settlement scheme, it will come as no surprise—and many members of the Committee have alluded to this—that the scheme has been a great success. We have gone above and beyond our obligations in the citizens’ rights agreements to protect the rights of European Economic Area and Swiss citizens and their family members to give them a route to settle in the UK. I also understand and fully support the interest in how UK nationals are treated in EU member and the EFTA states.
As we have heard, around 1 million UK nationals live in the European Union, with thousands more UK nationals living in Switzerland and the EEA and EFTA countries. The UK Government continue to work closely with the European Commission and national authorities to ensure the rights of UK nationals in Europe under the agreements are upheld. We also continue to press the European Union for clear communications to UK nationals in the European Union on how they can secure and access their rights.
The United Kingdom publishes more comprehensive statistics on the EU settlement scheme than any EU member state on their equivalent schemes. I want now to share some of these statistics with the Grand Committee. The EUSS is the UK’s largest ever immigration scheme. The latest data, to 30 June, shows there have been 7.4 million EUSS applications, of which 98% have been concluded, and more than 5.6 million people have been granted status. The Government are delighted that so many of our family, friends, colleagues and neighbours have obtained the status they need to remain in the United Kingdom. However, as the Home Secretary set out in her August letter, to which a number of noble Lords referred, it is right and proper that we take steps to maintain the integrity of the scheme, including measures to protect it from abuse.
Despite it being more than two years since the June 2021 application deadline for those resident before the end of the EU exit transition period, the volume of late applications has remained high. Many of the applications in the so-called backlog to which the noble Lord refers are in fact recently made applications. A number of these include applications made by late applicants, such as those joining family members, or from repeat applicants, such as those looking to move from pre-settled to settled status. We received nearly 337,000 such applications in the first six months of this year alone.
We do not publish data on pending applications, but internal figures for applications pending by 31 March indicate that 66% of EUSS applications had been waiting for 90 days or less. That rises to 76% when including applications pending for 180 days or less. The Home Office will make this analysis available in the next published statistics, but no doubt noble Lords who raised the question of whether there was a backlog will ponder them and see that this is a very efficient system. Applications which have been waiting for longer than 180 days are usually due to suitability concerns, such as pending prosecutions.
As noble Lords will be aware, the citizens’ rights agreements oblige us to accept late applications where the person has reasonable grounds for failure to respect the deadline. In the first two quarters of this year, there were on average 18,000 late applications made each month. While the overall refusal rate for the EUSS remains low, at 8%, this is not the case when looking specifically at late applications. For this case type, the refusal rate stands at 47% in the most recently published data. I suggest this reflects the increasing volumes of spurious applications being made to the scheme, with refusals on eligibility grounds in the majority of cases.
I will now set out the recent changes to the EUSS, most of which have been implemented through changes to the relevant Immigration Rules. The noble Baroness, Lady Ludford, in particular alluded to the change from 9 August of a person’s reasonable grounds for submitting a late application being assessed at the very first stage of the process, known as the validity stage, as the noble Earl, Lord Kinnoull, outlined. In practical terms, this means that an individual must show they had reasonable grounds for the delay in making their application as a pre-requisite for making a valid application to the scheme. Only once their application is confirmed as valid are they issued with the certificate of application. That is important because it gives those covered by it the benefits of the citizens’ rights agreements to access temporary protections, such as the right to work in the United Kingdom and claim benefits where eligible. This change in process reduces the scope for speculative applications to the scheme solely to benefit from the temporary protection available until an application is finally determined. It aligns with similar approaches that are already being applied to United Kingdom nationals in EU member states with constitutive systems.
We have also updated our published guidance to provide clear information on how reasonable grounds considerations are now being applied. This is in stark contrast to that adopted in EU member states, where we have been unable to identify equivalent guidance or publicly available information for United Kingdom nationals that matches the comprehensive approach that the United Kingdom has taken in respect of EU citizens. Indeed, the United Kingdom Government continue to urge the European Commission to ensure that member states publish flexible and pragmatic guidance as to what constitutes reasonable grounds for late residency applications so that UK nationals do not encounter difficulties.
As has been referred to by the noble Lord, Lord Hannay, we have separately closed two transitional routes which were not required under the citizens’ rights agreements. These are commonly referred to as the Zambrano primary carers and family members of a qualifying British citizen routes. They reflected routes required by European case law, for which provision was made under the EUSS on a transitional basis. After more than four years, it is both appropriate and fair that such individuals should now meet the same family Immigration Rules that apply to other dependants of British citizens.
In addition, we have made changes that prevent illegal entrants from being able to apply as a joining family member under the EUSS. This reinforces our approach to tackling illegal migration and helps to prevent spurious applications being made by individuals seeking to circumvent our standard immigration processes.
On an issue that has been raised by a number of noble Lords in respect of the removal of administrative review, on 7 September, we laid changes to the Immigration Rules to remove the ability for EUSS and EUSS family permit applicants to apply for an administrative review. A right of appeal will, of course, be maintained as the mechanism for individuals to challenge the decision, and to meet our obligations under the citizens’ rights agreements. The changes will apply to all relevant decisions made on or after 5 October this year. We have gone above and beyond our citizens’ rights obligations in offering both a right of appeal and administrative reviews for EUSS applicants. It is therefore now the right and fair course that we bring the EUSS in line with other immigration routes, where a dual right of redress does not exist.
On a question raised by many noble Lords on the issue of the implementation of the changes in the light of the judicial review brought by the IMA, in the statement of changes in Immigration Rules taking effect in August, we also introduced amendments to that effect. The High Court found that the withdrawal agreement residence right of a person with pre-settled status under the EUSS does not expire for failure to make a second application to the scheme. The changes to the Immigration Rules reflect the fact that pre-settled status holders will have this status automatically extended by two years, if they have not obtained settled status ahead of the date when their pre-settled status was due to expire.
The extension will be applied automatically. There will be no need for individuals to contact the Home Office and they will be notified once the extension has been applied. We have already completed the extensions for those whose pre-settled status was due to expire in September—this month—and future extensions will be applied at the start of each month, to those whose status expires the following month. This ensures that nobody with pre-settled status will lose their immigration status through the lack of a second application to the EUSS. Should the Home Office find that an individual no longer meets the eligibility criteria for pre-settled status, we will take steps to cancel or curtail it—but of course those decisions could carry with them a right of appeal.
Our objective is to encourage those eligible for settled status, as has been outlined, to obtain it as soon as possible. This is, of course, permitted by the judgment. Since March this year we have been sending reminders to apply to those who have held pre-settled status for almost five years, and we strongly encourage people to apply for settled status as soon as they are eligible. This ties back to the point so eloquently made by the noble Lord, Lord Collins, in respect of wanting to know with certainty what your status is.
I am extremely pleased to see thousands of people moving from pre-settled to settled status each month as a result of those communications. To 30 June this year, 608,380 people had made that conversion. Looking to the future, we intend to take steps automatically to switch as many eligible pre-settled status holders as possible to settled status, without them needing to make a further application. To do this, we plan to undertake automated checks of pre-settled status holders against government-held information—for example, in respect of their ongoing continuous residence in the UK. We aim to have this automated process in place during 2024.
The judicial review judgment also concluded that a pre-settled status holder acquires a right of permanent residence under the withdrawal agreement automatically, once the conditions for it are met. The planned process to automatically switch eligible pre-settled status holders to settled status, alongside encouraging applications for settled status by those eligible for it, will support the implementation of this aspect of the judgment.
I turn to the question posed by the noble Earl, Lord Kinnoull, in relation to the detail of that policy. We note that the automatic conversion of pre-settled to settled status is not a requirement of the judgment, just as EU member states are not required automatically to issue permanent residency cards to UK nationals. However, in response to the noble Earl’s question on our engagement with the independent monitoring authority, I stress that we have been engaging with it on matters of implementation. We would suggest that the method of the automatic conversion I have just described is not unclear in any way, and that our implementation of the judgment is abundant for any who wish to see it. We have sought feedback and views on our planning and will, of course, continue productive engagement with the IMA and other interested stakeholders as we take forward steps to operationalise the remaining aspects of the judgment.
I turn briefly to the issue concerning the refusals backfill, described by the noble Earl, Lord Kinnoull, as the database error debacle. I perhaps would not agree with that description, although I can understand his concerns. As set out in the Home Secretary’s letter to the noble Lord, Lord Wood of Anfield, all those affected were sent an email or postal notification of their refusal decision at the time the decision was made, using the contact details they had supplied. Individuals are able to update their contact details if they need to. The Home Secretary’s letter was quite clear that maintaining a certificate of application on those accounts, rather than showing a refusal decision, was not due to an error but to allow individuals to maintain temporary protection of rights during any administrative review or appeal. This is because, prior to 19 April 2022, the digital status system did not have the capability to reflect that an individual had an administrative review or appeal pending.
At the time the decision to pause uploading refusal decisions was made, the position of the UK Government was that late applications did not attract temporary protections under Article 18(3) of the withdrawal agreement. Therefore, the volume of individuals impacted by the decision was relatively small and finite, importantly. When the numbers affected subsequently grew following the Government’s decision to extend temporary protections to those applying after 30 June 2021, we maintain it was better to ensure that an individual could access their rights while an administrative review or appeal was ongoing, rather than deny those people access to their rights should they challenge the decision.
With respect to timings, on 19 April 2022, a systems change was implemented to allow accounts to maintain a certificate of application where a refusal decision was challenged. As changes to our systems are not implemented retrospectively, a separate exercise was required for cases decided between 27 June 2021 and 19 April 2022. The exercise was not run before 18 January due to the complexity of the work and other pressing departmental priorities, such as the work to implement the Ukraine family scheme and Homes for Ukraine scheme. I hope that level of detail answers the questions posed by the noble Earl, Lord Kinnoull.
Turning briefly to the question of the DWP overpayments, it has been suggested by a number of noble Lords and the noble Baroness, Lady Ludford, that a power should be exercised by the Secretary of State for the Department for Work and Pensions to waive overpayment debt for individuals affected by the refusals backfill exercise. I remind noble Lords that under legislation passed by Parliament, the Department for Work and Pensions has the legislative power to recover overpayments of universal credit under Section 71ZB of the Social Security Administration Act regardless of how the overpayment was caused. Of course, the Secretary of State has a duty to protect public funds and will seek to recover debt in all circumstances where it is reasonable.
I will touch very briefly on some further question asked by noble Lords, in particular the question about proof of status and whether that should be in documentary form. In response to that oft-expressed request in this debate for physical documents, I respectfully reiterate that we are working towards a border and immigration system that is digital by default. Immigration status in the form of an e-visa is part of this, as of course is the rolling out of the electronic travel authorisation programme. The citizens’ rights agreement explicitly allows for status to be provided in digital form.
I appreciate that I have covered some of the points raised by noble Lords; there are many others but I notice the time. I will, of course, write to noble Lords to update them on those detailed questions that I have had not had time to answer. Again, I thank the noble Earl for raising this very interesting debate.
Baroness Ludford (LD)
Before the Minister sits down, I am not sure that he clearly explained—it may be due to the heat in this room and my head—why the Government are encouraging people to apply again. That, I am afraid, did not come over clearly—I felt the Minister glided over that issue. If he did cover it, I will obviously check the report, but if he did not, could he possibly write to me?
Lord Murray of Blidworth (Con)
I think I covered it, but rather than explain it again now, given the hour, I will certainly put it in writing for the noble Baroness, for clarity.
The Earl of Kinnoull (CB)
My Lords, I am grateful to four sets of people. First, I am deeply grateful to the Minister for the richness of what he said—it was very interesting—and his promise to continue to write. As I think he will have seen, we are all extremely passionate here about doing the right thing for people who live in our community, and I felt that he went a long way to answering some of our questions. I am very grateful for that indeed, and for his kind words.
Secondly, I thank everyone who took part. It was a high-level and extremely interesting debate. Thirdly, I thank the noble Lord, Lord Wood of Anfield. Because of my change in role, he took over at a very difficult moment, when we were trying to draw the strands of this together and created an excellent letter with the committee which has been the foundation of our debate this afternoon. I am eternally grateful to him for doing that, because it is a jolly difficult job, and he is a very busy man. He did it with his usual good humour, and I owe him lots of drinks.
My final thanks go to my noble friend Lord Ricketts, who, I must say, arrived with tremendous energy and engagement on top of his great scholarship in this area. Looking now from the sidelines, I am deeply impressed with the way in which he is grappling with all the great complexities of European affairs.
I will not go through all the other points—lots of good ones were made—other than to say that the speech that in many ways I wish I had made was that of the noble Baroness, Lady Anelay. She focused on the situation for UK nationals in the European Union, and much of what we have been saying is about European Union nationals in the UK. The IMA serves the 6 million people here so well; it is very good indeed. We had lots of chats with it before it came for the evidence session. We do not really have an equivalent servicing our people in Europe. In probably a rather coded way, we are saying that a little bit of government money there could make a big difference. I hope that element will come out in the Minister’s letter to us all.