Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

Moved by

[Baroness Chapman of Darlington]

39: Clause 19, page 10, line 17, leave out “the Minister considers appropriate” and insert “is necessary”
Member’s explanatory statement
This amendment limits a Minister’s ability to use a delegated power when they consider it “appropriate” to cases where it is “necessary”.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

My Lords, I will allow a couple of seconds for people who have obviously got it off their chest during the first group to leave, in the hope that we do not go through the whole thing again.

Clause 19 is very short, at only a couple of paragraphs, but it is quite interesting, as it pleasingly addresses the situation we may find ourselves in where the Government have been successful in reaching an agreement with the European Union. Many of us have said, time and again, throughout this Committee, that we hope to see that. We have been challenging Ministers, as we have seen in the previous group, to show visible political leadership. The visibility has been lacking. I take on board what the Minister said about his right honourable friend the Foreign Secretary playing an active role, but visibility and political momentum have been lacking. I like to think that, had one of my right honourable friends been leading these events, we would have seen a far more outward-facing presence, if I can put it that way, through this process—but never mind.

Clause 19 looks at the eventuality of there being an agreement. The amendment I have tabled is one that will be familiar by now to noble Lords who have been taking part in this process from the first day of our considerations. The first line of the clause, as it stands, says that:

“A Minister of the Crown may, by regulations, make such provision as the Minister considers appropriate”.


I have asked that “appropriate” be changed to “necessary”, and I will explain why, in this particular instance, that is sensible.

This clause gives Ministers the power to implement an agreement that they hope to reach with the EU. Obviously—and we accept this—Ministers will need some flexibility in that event, and things may need to be done as a consequence of having an agreement. But I would have thought that an agreement, by its nature, would be clear and specific, and that things would be agreed that are not currently in place that would need to happen. In that instance, surely the things that need to be done by Ministers will, by virtue of the fact that they have just been agreed to with our negotiating partners, meet the test and be necessary.

It troubles me that the Government feel they should have “appropriate” there instead. That seems to give them much greater scope than is ever going to be needed in the event that this clause is used—and we hope that it will be. I would like to know from the Minister what the Government’s thinking is there, beyond thinking that “necessary” is too tight and just wanting to allow themselves a bit more room—of course they do; who would not? But this clause deals with the fact that there may be an agreement, and I do not think it is justified for the power to be as widely drawn as it is.

While I am on my feet, I note that I support the stand part notice from the noble Lord, Lord Purvis, in this case as well. The DPRRC believes that the powers in this clause are just too widely drawn, though there is obviously merit in discussing what powers are needed in the event of an agreement and what the role of Parliament should be in that situation. We think that a deal can be struck—we have said that many times—and also believe that Parliament should have the opportunity to debate any agreement, as other Parliaments will. I just note that the European Union (Future Relationship) Act 2020 was passed in a day and the TCA was ratified without direct parliamentary process. We accept that Ministers need the ability to act in the event of an agreement and we appreciate the Government demonstrating their anticipation of such an agreement in this clause, which is notable, but surely a Bill to enact an agreement would be better. That is what we have been asking for.

This is a discussion we have had with the Government on many occasions and on other agreements, when we have talked about the unsatisfactory process we still have in this country for parliamentary involvement in agreements. We do not think we have got it right yet; that is understandable, and it is perhaps going to take some time to get to that point. We have not had to engage in this for many years, but I do not think that many people in Parliament are satisfied with the way this works at the moment, and it would be helpful if the Minister could acknowledge that.

Without being too cheeky about it, we want to help the Government, given just how unsuccessful they have been so far in settling these issues. We do not see why they would be so resistant to involvement from people who are being very positive and cheering them on in their endeavours. We really do want to see a resolution to this. With that, I beg to move the amendment in my name and express my support for the stand part notice tabled by the noble Lord, Lord Purvis.

[Lord Purvis of Tweed (LD)]

We support the amendment in the name of the noble Baroness. In supporting it, I want to make two points. First, this clause effectively turns the Constitutional Reform and Governance Act principles on their head. We have well-established mechanisms, which are set down in statute, on how we approve new international agreements. If this is a mechanism to replace the Northern Ireland protocol, an internationally made agreement, with a new agreement, then why is the CRaG process, which allows parliamentary scrutiny, debate and, unlike this, an ability to have enhanced approvals or indeed vetoing by Parliament, not going to be the route for it? I do not understand why.

Secondly, it also sets on its head every commitment that has been provided for every trade agreement: namely, that if a trade agreement requires any primary legislation to bring it into effect in domestic law, primary legislation is brought forward—this is not done by regulation. But, again, this is being set on its head. The Trade (Australia and New Zealand) Bill is coming up, which is primary legislation—not regulation —implemented with agreement. The two Bills contradict each other really quite glaringly.

I think that this is significant because of an interaction I had with the noble Lord, Lord Dodds, on one of the previous days in Committee. I asked him whether he had given consideration—if there is, as a result of these talks, an agreement with the EU—as to how that should be put in force. The Government are saying “by regulations”, which are unamendable and could even be under a negative process; they could use Clause 19 to do this. If the noble Lord’s concern—as well as that of the noble Lord, Lord Empey—was about the need for consent, this is not the means by which that would be secured. Yet this is the means by which the Government could enforce it. There is a very jarring comparison between what consent of any new agreement would be and how the Government are seeking powers under Clause 19 to enable them to put this into force. Clause 19 should not be the mechanism by which we have sustainable support for any agreement. An order-making power for a Minister is simply not the route—and that is in addition to the fact that they are turning on their heads long-standing practices by which we put international agreements into domestic legislation. For this reason, I do not think that Clause 19 should stand part of the Bill.

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

My understanding is that we would certainly abide by our previous commitments in that respect. In the interests of clarity, I will confirm that in writing to the noble Lord.

[Baroness Chapman of Darlington (Lab)]

I do not think we are very happy about this. The Minister says that he wants to address stability in Northern Ireland, yet this whole process goes over the heads of people in Northern Ireland. We heard from the noble Lord, Lord Empey, and others just how unsuccessful they expect that to be. There are so many issues here, I just do not understand why Clause 19 is required when there are processes available to the Government to do this. We shall come back to this, but the only thing about saying that we shall come back to it on Report is that we do not know whether we will actually get to Report, given the amendments that we discussed before we started our formal consideration of the Bill. We still have not heard anything from the Government on that. Obviously, we shall leave it for today but the discussion we have had leaves a few more questions than answers. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

--- Later in debate ---

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the noble Baroness, Lady Doocey, for her amendment because it goes to the heart of the protocol and the protocol Bill issues in relation to the need for an SPS veterinary agreement. The dairy and farming industries on the island of Ireland require an SPS agreement. I have written to the noble Lord, Lord Caine, today, following last week’s debate on this issue following further discussions with elements of the dairy industry. The bottom line is that unless there is an SPS agreement, that could very much interfere with our dairy industry and totally undermine it.

I shall give a short explanation from the letter. Those in the dairy industry acknowledge the issues that the Northern Ireland retail sector is dealing with regarding the protocol and support for a dual regulatory regime, but such a regime would not work for the dairy industry because we are looking at the very survival of Northern Ireland dairy farmers. Approximately 30% of all Northern Ireland milk is processed in the Republic of Ireland because there is not the capacity to do so in Northern Ireland. It may be worth visiting some of the processing factories in Northern Ireland that are part of a greater co-operative group to see what they do and what they are trying to tell us.

If you create a hard border for milk, which the dual regulatory scheme outlined in the Bill will, there will be enormous environmental issues. Northern Ireland does not have the capacity to dump 30% of its milk, and milk has special regulations for its disposal. You could then move to the culling of perfectly healthy animals which, in a cost of living crisis, is inconceivable. Finally, this would lead to devastating consequences for the economy of Northern Ireland, as the agri-food industry is its bedrock.

So I say to the Minister that those in the dairy industry have looked at the impact of a 30% reduction in sales to an average Northern Ireland farmer. When you consider their average interest on loans and their loan repayments, this would result in an annual negative cash flow. In other words, their costs would be greater than their income.

In summation, it is vitally important that the negotiations achieve an SPS veterinary agreement. From what I have read in the non-papers from the EU of October last year, it is very prepared to enter into such an agreement as part of the negotiations. However, the dual regulatory regime will not work for the agri-food sector. Maybe a bespoke arrangement is required for the retail sector where some of the problems lie.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Doocey, for her amendment because it roots our discussions in the real world of farmers and manufacturers and focuses our minds on jobs and prosperity. The noble Baroness, Lady Ritchie, as usual, got it completely right and explained the impact on the dairy industry very powerfully. I will not repeat some of what she has already said, although I was intending to.

We ought to be working towards an SPS agreement. We on these Benches have thought that we should be working towards that sort of agreement for the whole of the UK and we have held that position for over a year because of the very clear benefits it would bring to food and drink manufacturers. I think the food and drink industry is still our biggest manufacturing sector in England, so there would certainly be significant benefits to the whole of the UK of this approach.

One benefit would surely be to assist—not to resolve completely—in overcoming some of the issues experienced by producers, hauliers and those wishing to trade east-west. We are reminded quite rightly by the noble Lord, Lord Bew, that we need to be concerned about this. It would be hugely beneficial to our industries in Northern Ireland and beyond. We understand that not every problem will be solved this way and we know that some SPS checks were there prior to the protocol, for other reasons. That seemed to work fairly well for quite a long time, so that may still be necessary. It will be interesting to see what the Minister thinks about that.

At this stage, we think we need this to help with the costs and administrative burdens faced by producers, distributors and retailers. A couple of examples have been referred to. I will briefly refer to the Swiss deal. They have an agreement where regulations are aligned, eliminating virtually all documentary, identity and physical checks. New Zealand, as we have heard, has an equivalence model that has made processes simpler and reduced checks. We probably would not want to replicate either of those models directly. Obviously there are differences, such as the volumes coming from New Zealand and the fact that many of the loads going east-west in our situation are mixed, that make neither model directly replicable. We think we probably need a bespoke agreement and the door to that seems to be open with the EU, so it is curious that the UK Government seem quite so reluctant to explore that option.

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank all noble Lords who have taken part in this debate. In particular I thank the noble Baroness, Lady Doocey, for tabling her amendment. I was saying to my noble friend Lord Caine that I think we are getting into some of the reasons. Irrespective of people’s views on the Bill itself, the fact is that businesses are facing problems and challenges that need resolution. I will come on to the specific point that the noble Baroness tabled so ably.

Amendment 43B, in the name of the noble Baroness, Lady Doocey, asks the Government to update Parliament on the progress of negotiations on the veterinary agreements between the UK and the EU. Let me say right from the outset that we have always been very serious about our negotiations on the protocol, and we remain so. Our preference remains to resolve the issues with the protocol through negotiations, and the Bill provides a power to implement any agreement which follows those negotiations—indeed, we had quite an extensive discussion on that particular point. I assure the noble Baroness that the Government have engaged quite extensively with the EU on reducing the burden of SPS checks and controls under the protocol, which she also highlighted.

Where we are right now—I am seeking to provide detail while also acknowledging what the noble Baroness, Lady Chapman, said—is that, currently to date, the EU has proposed that any veterinary agreement should be based on dynamic alignment; the Government believe that this would compromise UK sovereignty over our own laws, including our ability to strike trade deals. However, on the specific points that the noble Baroness raised, we remain open to broader negotiated solutions, and we hope that the talks taking place currently can secure a bespoke biosecurity assurance—I welcome the contribution of the noble Baroness, Lady Chapman, in this respect—which maintains our high standards for animal, plant and public health. I know that resonates with all noble Lords.

I will also provide some detail on where we are on both the Swiss and the New Zealand agreements. Of course, the EU has a precedent for making such agreements with other countries—as all noble Lords acknowledged, and I am grateful for that—either through stand-alone agreements, such as the EU-NZ veterinary agreement, or as part of wider agreements with trading partners such as Canada and Switzerland. The UK proposed an SPS model predicated on equivalence and similar to the EU-New Zealand model in the TCA negotiations last year and, indeed, in earlier negotiations and discussions with the EU on the Northern Ireland protocol. However, the EU rejected the possibility of an agreement based on equivalence. The Swiss-EU SPS arrangement is the model that the EU has put forward repeatedly to agree with the UK and is based on dynamic alignment. There is a difference here, but at the same time I appreciate both the tone and substance of this debate, and I want to assure noble Lords that we remain open to these specific points because they address the practical problems being experienced.

Let me say a brief word on the issue of statutory reporting, although I think I have already covered this point previously. As with any negotiations, this is a matter of the foreign affairs prerogative. As I said previously—and I have sought to provide a bit more detail on some of the context in my response—I will certainly seek to update noble Lords, and I appreciate the insights that the noble Baroness, Lady Doocey, has brought to this debate.

Turning now to the other contributions, including those from the noble Baronesses, Lady Ritchie and Lady Chapman, I will discuss Amendments 58, 60 and 63 together. These amendments would also place a number of requirements on the Government relating to various specific sectors within Northern Ireland, notably the publication of draft regulations and a sector-specific impact assessment, as well as to engage in consultations with representatives from those sectors. Let me say immediately that I entirely sympathise with the desire to ensure that we are properly considering the impact of legislation on all businesses within Northern Ireland. It is for this reason that we have engaged extensively with stakeholder groups across business and civic society in Northern Ireland, in the rest of the UK and internationally—I know that my noble friend Lord Caine will speak to this in subsequent groups; indeed, he covered this in our previous debates in Committee.

In addition to routine engagement, during the summer the Government held over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators to inform the details of how the dual regulatory and trade boundary models should work in practice. In this respect, I can share with all noble Lords—and, in particular, with the noble Baroness, Lady Doocey—that we gained a lot of practical information from that, and we are reflecting on the wealth of feedback received as we continue to develop the details of the underlying regime. The regulations themselves will be the product of this very engagement with business to ensure that the implementation of the new regime is as smooth and operable as possible. Your Lordships’ House will have the opportunity—

[Baroness Chapman of Darlington (Lab)]

Although what the Minister has just said is very welcome, ordinarily there would be engagement so that the Minister could make well-informed suggestions. Then, of course, a period of consultation on whatever ideas the Government intended on implementing would follow. Is the Minister saying that that process would be followed in this case?

[Lord Ahmad of Wimbledon (Con)]

I know that the noble Baroness, and other noble Lords—the noble Lord, Lord Purvis, among them—have pressed me on the issue of the detail of the draft regulations. That is, again, very much the process we have adopted to make sure that we are speaking to industry and businesses and reflecting those in the draft regulations that will be published. The regulations will be reflective, as I said earlier, of the wealth of the feedback we have received. The scrutiny of the regulations will be done in the usual fashion and, of course, the Government will provide all the usual accompanying material under parliamentary procedures. The full details of the new regime will be set out in and alongside the regulations made under the Bill, including any economic impacts where appropriate. This will allow Parliament to be informed in its scrutiny of the new regime when it has been put in place.

On the issue of a statutory duty to publish such material, as suggested in the amendments, the Government’s view is that it would not be appropriate to place a statutory duty on the Government. The legislation is needed to tackle the urgent problem we have sought to identify with the workings of the protocol in Northern Ireland. While we do not anticipate any issues with providing information before regulations are brought forward, we do not want to tie our hands unnecessarily in this respect.

Finally, I say to all noble Lords who have participated in this debate that I welcome these specifics, and I hope noble Lords will appreciate that I have sought answers and am listening during the course of Committee, as are my colleagues. I am seeking to provide a bit more detail on what we have but, while asking the noble Baroness to withdraw her amendment, I do value the insight and the practical and constructive nature of the amendments that have been tabled.

--- Later in debate ---

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I thank the noble Baroness. That then begs the question: why is it not in her amendment? Why is it simply the consent of the Northern Ireland Assembly, which in fact removes it from cross-community consent? That is not what they are talking about here. If it had been, it would be in this. I listened very carefully to the noble Baroness, Lady Suttie, saying that this would be looked at on a later date. I trust that this will be taken on board. We will not move forward unless there is cross-community consent, and there is no cross-community consent and no unionist consent for this protocol, which they believe is a vehicle for taking Northern Ireland out of the United Kingdom.

[Baroness Chapman of Darlington (Lab)]

My Lords, this is an extraordinary clause. The speech made by the noble Baroness, Lady Hoey, introducing this group, proved the point. She argued that Ministers could, under this clause, act in a way that is incompatible with the Act of Union. My interpretation of this clause is similar to that described by the noble Lord, Lord Pannick, in the discussion of the previous group, in that it gives Ministers the ability to do pretty much anything. There is no restriction on powers. Maybe the Minister had been briefed that there was. Clearly, in this clause at least, that is not the case. That is the point that many noble Lords have been trying to get across to Ministers, and it is the underlying reason for much of the unhappiness with this Bill.

It is probably a bit tedious for the noble Lord, Lord Bew, to listen to us wittering on about this again and again. I completely understand that, as it does seem rather separate from what is happening on the ground and the political issues that he quite rightly says the Bill is really all about. I totally agree with him on that. Nevertheless, the method that the Government are choosing to deal with these political issues is one which gives them these quite unprecedented powers. We have come across this sort of thing many times, but we have never seen it quite as blunt as this. That is why they are getting a sort of two-pronged dissatisfaction with this approach.

The amendment in my name refers specifically to subsections (2)(a) and (2)(b). This is the bit where Clause 22 makes it clear that Ministers would be breaking international obligations and gives them permission to do so. Obviously, if the Bill became law, Ministers would not be breaking domestic law because it would be domestic law, but they would be breaching their international obligations. Ministers’ answers on this issue have been far from convincing. How is passing the Bill responsible if we do not know what the Government are going to do? We do not know that because they are giving themselves such wide powers. If the powers were in some way restricted to issues relating to the problems that the Bill tries to solve, perhaps the Government would be on a firmer footing. However, we are at such a precarious point; for example, there may be elections and there may not be.

I am trying not to have a dog in this race but, from the discussion we have just heard, it is absolutely clear that the problems being described are real and need to be dealt with. They need a Government who are properly engaged and will deal with them seriously. A clause such as this one says the opposite to all communities. Who knows where this will go? There is obviously no trust in the Government on this issue. We have heard it; it is very clear. Even the people who broadly support the Government’s approach do not trust them to do this correctly and do right by them. That is a big problem. It is a problem here in getting support for this clause, but it sure as heck is also a problem on the ground in Northern Ireland.

The Government have got themselves into a real mess on this issue. The powers in the Bill are not constrained to a particular purpose. I just do not know how the Government will deal with this. We have been told that we will get a letter, as if this is a discussion that the Government could not have foreseen, anticipated and had proper answers for. While we are doing our job of going through this Bill, the Government do not have an answer on what was foreshadowed well by noble Lords’ contributions at Second Reading but have to go away and write us a letter. It is not good enough. We need to know the Government’s response to that issue, and particularly on this clause, before we can properly proceed.

I completely agree with everyone who said that we must have the restoration of the political institutions. Some people seem to think that the Bill will help but we disagree. We think that it is bad politics and will lead to more disappointment, probably disappointing the very people who have come here tonight to support the Government in this endeavour. This clause is a problem; the Minister has learned that very well, I think. I am afraid that listening to tonight’s exchanges has made me more convinced than I was before that we on these Benches cannot support this clause unless something shifts dramatically before we reach Report. I just do not know where we go with this Bill.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am grateful to all noble Lords who spoke in this debate. I rather hesitate to say this in front of the noble Lord, Lord Bew, who was taught at Cambridge by the great Tudor historian Sir Geoffrey Elton, but as we go through these debates, I feel I am becoming increasingly isolated in being a Member of your Lordships’ House who might still have a sneaking admiration for the reign of Henry VIII. Indeed, I confess that I have a portrait of Thomas Cromwell in my office. However, I will go no further because I do not want to provoke a debate with noble Lords about the 1533 Act of Restraint in Appeals and its preamble. I will therefore fast-forward, if I may, to 1800 and the Acts of Union, referred to in the amendment moved by the noble Baroness, Lady Hoey.

Let me say at the outset that I entirely sympathise with the noble Baroness’s position and amendment. Clause 1, as she pointed out, explains that the Acts of Union are not to be affected by provision of the protocol that does not have effect in the United Kingdom. I agree with her and noble Lords who have pointed out the fundamental importance of the Acts of Union as the bedrock of Northern Ireland’s constitutional position in the United Kingdom.

However, I am sorry to point out to the noble Baroness that her amendment has the potential to risk the exercise of the powers under the Bill. For example, the red lane in our new model will continue to apply EU rules to goods moving through Northern Ireland into the European Union and single market. This is crucial to ensuring that there is no hard border on the island of Ireland and to upholding the overall objectives of the Act of Union regarding the free flow of trade in the United Kingdom. The restrictions imposed by her amendment could risk the implementation of this revised operation of the protocol, which is designed to uphold our commitments to the union.

I know the noble Baroness is very supportive of the Bill, but this amendment could undermine the certainty that it seeks to provide. She and my noble friend Lord Dodds of Duncairn made a very large number of points around subjugation and so on. I hope she will appreciate that I cannot go into great detail at the Dispatch Box because, as she knows since she is a party to it, this amendment treads very much the same territory as is the subject of a live case in the Supreme Court, which I think is expected to be heard very shortly.

I reiterate my and this Conservative and Unionist Government’s—a label I proudly wear in your Lordships’ House—strong support for the union and Northern Ireland’s integral position within it. I have no hesitation in reiterating what we said at the end of last week about joint authority; it is simply incompatible with the provisions of the Belfast agreement and we will not countenance it. I assure the noble Baroness that we are determined to resolve the issues to which she alluded in her amendment this evening and, on that basis, urge her to withdraw it.

I turn to the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. It has been said many times and in much detail, but I feel I have a duty to remind the House again that it is because of the operation of the protocol that the Northern Ireland Assembly has not been sitting since February, and the Bill aims specifically to restore political stability in Northern Ireland and facilitate the reconstituting of a fully functioning Executive and Assembly in line with the Belfast agreement. In the absence of functioning institutions, creating a legal requirement—as the amendment from the noble Baroness would do—that consent from the Assembly be granted before regulations can be made under the Bill risks in these circumstances setting a test that simply cannot be met, because there is no functioning Assembly.

This amendment would also be constitutionally problematic, effectively limiting the UK Government’s ability to exercise their powers in excepted and reserved areas of policy such as international affairs and trade, respectively. Given that it would also apply to the commencement power, it would make the coming into force of legislation of this Parliament subject to a veto by the Northern Ireland Assembly. That would affect this Parliament’s right to legislate for Northern Ireland, something the Belfast agreement makes very clear is unaffected; as such, the Government cannot accept it. For that reason, I ask the noble Baroness not to press her Amendments 46 and 55.

--- Later in debate ---

Moved by

[Baroness Chapman of Darlington]

57: After Clause 22, insert the following new Clause—
“Parliamentary approval of the outcome of negotiations with the EU
(1) A Minister of the Crown may make regulations under section 19 only if—(a) a Minister of the Crown has laid before each House of Parliament—(i) a statement that a relevant agreement as defined in that section has been reached, and(ii) a copy of the agreement,(b) the agreement has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(c) a motion for the House of Lords to take note of the agreement has been tabled in the House of Lords by a Minister of the Crown.(2) A Minister of the Crown may make regulations under sections 4 to 17 only if—(a) they have laid before each House of Parliament a statement that—(i) His Majesty’s Government have been unable to reach an agreement with the European Union regarding outstanding issues with the Northern Ireland Protocol, and(ii) they are of the opinion that His Majesty’s Government have exhausted all legal options under the EU withdrawal agreement,(b) they have laid before each House of Parliament an assessment of the likely impacts of the regulations, and(c) they have consulted Northern Ireland business organisations on the contents of the proposed regulations and laid a report regarding that consultation before each House of Parliament.” Member’s explanatory statement
In the event of a negotiated settlement being achieved with the EU, this amendment would require both Houses to debate that agreement, with the Commons having to approve it. In the event that no agreement is achieved, Ministers would have to follow various steps before being able to make regulations under parts of the Bill.

[Baroness Chapman of Darlington (Lab)]

My Lords, I will be very brief. I do not want to spend too much time on this amendment. Essentially, what we are asking for is a process in Parliament in the event of an agreement being reached. We want the Government to succeed in getting an agreement and think it is a helpful safeguard to allow the elected House to express its view and for this House to debate a draft of the agreement. It would be especially useful, I suggest, if the Northern Ireland Assembly is not restored in time. It would be helpful because if it is not and there is no debate in Parliament, who knows what they might be agreeing to? There would not be an opportunity for anybody’s elected representatives anywhere to have a debate about what is going to happen, and we think that is not ideal, given the history of how we got to where we are.

If Ministers are unable to achieve a deal and have exhausted legal routes under the protocol and wish to use the powers in the Bill, they should have to follow the steps in subsection (2) of this amendment, which would include a detailed impact assessment and proper consultation with Northern Ireland businesses on proposed regulations.

We have had many of these debates already and I do not propose going over each element of this in great detail now. Ministers know how we feel about consultation, draft regulations, the involvement of Northern Ireland and listening to businesses. So I think I will just leave it at that and I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank the noble Baroness for the amendment and her explanation. On her second point about consultation, I think the Government have rehearsed this point several times and the record of the Government’s position stands. It totally resonates with us. I have sought to the extent that I can to give reassurance of continued consultation in that respect.

Turning specifically to Amendment 57, on the supremacy of the House of Commons and giving the vote, I understand where the noble Baroness is coming from on this. However, I once again state quite clearly that the procedures under the Constitutional Reform and Governance Act—CRaG 2010—will apply to any qualifying treaty that needs to be implemented by regulations made under the Bill. The Act already provides for appropriate scrutiny and I hope that, while she may not be totally satisfied, based on the fact that she has tabled this amendment, I once again give her that reassurance. I am sure that we will return to several aspects of this, particularly as we move through to other stages of the Bill.

Again, I note the point she is making about the importance of parliamentary scrutiny, but I hope at this time she is minded to withdraw her amendment.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

I do not really feel the need to reply. I think we have said everything that can be said on this topic through these debates, so I beg leave to withdraw.

Amendment 57 withdrawn.

--- Later in debate ---

Moved by

[Baroness Chapman of Darlington (Lab)]

59: After Clause 22, insert the following new Clause—
“Impact assessment: construction
(1) Within the period of three months beginning with the day on which this Act is passed, and before a Minister of the Crown may exercise any of the powers in sections 1 to 20, the Secretary of State must lay before both Houses of Parliament an impact assessment pertaining to the construction sector in Northern Ireland.(2) In preparing the impact assessment under subsection (1), the Secretary of State must—(a) publish any draft regulations they intend to make under this Act, and which may be reasonably expected to relate to the sector,(b) consult such persons as the Secretary of State considers appropriate representatives of the sector.”Member’s explanatory statement
This amendment would require the Secretary of State to publish and consult on draft regulations relating to the construction sector, prior to using the powers under the Bill to make regulations affecting that sector.

[Baroness Chapman of Darlington (Lab)]

Similarly, these amendments would require the Secretary of State to publish and consult on draft regulations relating to various sectors of the Northern Ireland economy—including construction, electronics, energy and manufacturing—prior to using powers under the Bill to make regulations affecting those sectors. We want to see these draft regulations. They keep coming up. We have made our contentment with going to Report conditional upon them; they are very important to us and, I believe, to sectors in Northern Ireland.

We have previously had interesting debates on the merits of a UK-EU veterinary agreement and the importance of proper consultation with food-focused sectors of the economy, but it is important to remember that Northern Ireland businesses operate in every imaginable field, so these amendments cite a variety of sectors. We could have gone further—it is not an exhaustive list by any means—but we wanted to highlight to Ministers the unique challenges faced by businesses in Northern Ireland. Manufacturing, in particular, is having a tough time at present, with supply chains still experiencing disruption and inflation adding to business costs. In August, the Northern Ireland Business Brexit Working Group said that using the powers under the Bill would

“create a myriad of reputational, legal and commercial risks for many of our businesses”,

putting at risk Northern Ireland’s position as

“a top performing region in exporting goods”.

My noble friend Lord Hain has previously spoken about the challenges facing the energy sector in Northern Ireland, and the ongoing uncertainty around future trade terms is creating its own difficulties for the other sectors mentioned in these amendments.

We continue to hope that the protocol can be made to work but, if the Government are to insist on their unilateral action, they need to fully involve the businesses that are operating on the ground, trying to fill and satisfy their order books. It is an incredibly difficult time for businesses anywhere in the UK but you cannot listen to the debates that we are having and not understand how much more difficult it is to plan and run your business in Northern Ireland. Some of the problems are caused, of course, by the protocol that we all want to see fixed; others, I am afraid, are caused just by the continuing uncertainty that has been brought about by this situation. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I will speak to Amendment 59. Again, I suppose the final thing is about approach. There is nothing the noble Baroness has said that I disagree with, in that, yes, we are seeking to provide clarity to Northern Ireland businesses. I totally subscribe to what the noble Baroness said about problems arising from the operation of the protocol but that, equally, there are wider issues that businesses across the United Kingdom, and indeed globally, are facing.

I fully sympathise and align myself with the desire to ensure that we consider the full impact of our legislation and its practical application for businesses. My noble friend Lord Caine previously detailed some of the groups that we are working with; indeed, the Northern Ireland Business Brexit Working Group, which the noble Baroness mentioned, is one of them. We will continue to engage with them. We have had quite extended discussions and debates on the publication of regulations, and I have acknowledged that I fully recognise the desire to do so, and to ensure the scrutiny of these regulations in the usual fashion. Equally, our view is very clear that these regulations also need to be fully discussed—a point agreed on by all noble Lords—to ensure that businesses can make them operable in a practical sense. Notwithstanding that, I hope the noble Baroness will be minded at this time to withdraw her amendment.

[Baroness Chapman of Darlington (Lab)]

I am obviously happy to withdraw the amendment. I note what the Minister just said about understanding our desire to see the draft regulations and his desire to make sure that they are worked up—I think he said “consulted on with business” or words to that effect. However, we had asked for draft regulations before we moved to Report. Before I sit down—that is the phrase we use here—can he indicate whether he anticipates that the Government will be able to provide that?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I will have to disappoint the noble Baroness on that point. I cannot give a specific commitment. The material will be published in due course. I fully recognise and note what the noble Baroness has said.

[Baroness Chapman of Darlington (Lab)]

I beg leave to withdraw the amendment.

Amendment 59 withdrawn.