Retained EU Law (Revocation and Reform) Bill

Baroness Hoey Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, for a number of years I was a member in the other House of the European Scrutiny Committee, under the formidable chairmanship of Sir William Cash—I expect that he will be a noble Lord eventually. I say “formidable” because he had a fervent eye for transparency and detail and a determination for scrutiny to be carried out with an attitude almost of zealotry. Sadly, the scrutiny that we had there did not mean that we could amend or stop the huge weekly package of new EU directives and regulations that came through. Occasionally, we would get a debate, if we or another Select Committee could manage it, but the result was always, as we know, that once the EU had agreed to something, it was difficult to change it. Therefore, I welcome a Bill that abolishes the supremacy of EU law.

I find it a little depressing that many in your Lordships’ House seem to have more faith in the European Union to deliver than in our own country’s ability to decide its own laws. There seems to be this misty-eyed view that the only institution that could really be trusted could never be our Government—of whatever political party—but could only be the European Union. Yet we know that so many of the rights that we got came originally from the campaigning of trade unions, which got Labour and Conservative Governments to bring into law some of our rights. It was not just about the EU.

rule of a foreign institution. Already we have seen dozens of changes to regulations brought in which have had no discussion or democratic consent in Northern Ireland. Even if the Assembly was sitting, it would make no difference. The EU makes changes which GB does not have to follow, but in Northern Ireland they do.

Noble Lords will be fed up with me saying this, but I reiterate that we in Northern Ireland had the same ballot paper on the referendum. Yes, there was a majority to remain, just as there was in Scotland, but at least Scotland is covered by this Bill under the arrangements for devolved Administrations, while Northern Ireland cannot benefit from any of it. The protocol carefully plotted by the EU, encouraged by the Irish Government and, sadly, agreed to by our Government, was not about trade; it is about trying to ensure that the divergence between Northern Ireland and the Republic of Ireland is reduced. By retaining Northern Ireland in the same single market as the Republic, under the same customs code and VAT regime, and being governed by the same laws, Northern Ireland is slowly being pushed away from Great Britain, our biggest market, and forced into an economic Ireland, which is, of course, a foreign country. This may have been a grave mistake by our negotiators, but it was certainly not a mistake by the Irish Government. It was an assault on Northern Ireland’s constitutional position and, sadly, our Government naively went along with it.

Obviously, in Committee there will be changes to this Bill, and it might get greater scrutiny. However, I say to those here who are concerned about the scrutiny of this Bill—and plead to noble Lords to remember—that, while we are talking about scrutiny of something that Ministers at least can get involved in, in Northern Ireland we are putting through more and more regulations from the European Union that nobody in this House, nobody in Northern Ireland and nobody in the Assembly, if it was sitting, has anything to do with. That is a disgrace for anyone who calls themselves pro-union.

Energy Bill Relief Scheme Regulations 2022

Baroness Hoey Excerpts

Wednesday 16th November 2022 Grand Committee

[Lord Lennie (Lab)]

My Lords, first, I thank the Minister for bringing forward the instruments today and thank the stalwarts of the energy debates, the noble Baroness, Lady McIntosh, and the noble Lord, Lord Teverson, for their questions and comments, which I am sure will be responded to.

These are the first two instruments from the Energy Prices Act, which we debated recently. We supported the Bill during its passage and appreciate the pressing need to have these arrangements in law as soon as possible. As such, we will not be preventing the passage of these instruments. This also means that many of the points that we have made in regard to these instruments have already been debated in passing the Energy Prices Act. I will not spend time dealing with that and repeating points but rather will focus on the specific contents of the instruments before us today, not least as we will be considering more before too long.

As we have heard, between them these two instruments make provision for the implementation of the energy bill relief scheme—the EBRS—for non-domestic customers across the UK, with powers derived from the Energy Prices Act: Section 9 for Great Britain and Section 11 for Northern Ireland. To comment on a point that the noble Baroness, Lady McIntosh, raised, what these instruments do not do is to set out the exact terms of the scheme, neither for the first six months, which is now clear, nor for the following 18-month period that the Act allows these powers to provide for. We now know the Government’s plans for the first six months—they were recently revealed—but we have heard little on their plans for the period thereafter. Like the noble Baroness, Lady McIntosh, if the Minister is able to, I would appreciate it if he could elaborate on what is proposed, or at least update us on the progress of their consideration as to what might happen for the latter part of the period that this Act governs.

Part 3 of the instrument relates to discount recovery, on which I have a small item to raise. I understand that Energy UK previously expressed concerns to the Minister about the arrangements in this part. Its interpretation is that energy suppliers would not receive financial cover to cover the difference between normal and capped unit rates, which is inconsistent with what the Energy Prices Act suggested. That issue appears to have been fixed, which is welcome, but it is troublesome that it was not the case from the outset. I am keen to hear an explanation from the Minister of how these issues emerged and some reassurance that, in action, energy companies will have no difficulty receiving their entitlements.

I also understand that the consultation to resolve the issue took place under non-disclosure agreements, which not only is concerning in itself but, as Energy UK raised, often means that not all suppliers are included in talks and that the industry cannot work together with the Government to come to the best solutions. This seems neither a sustainable nor an effective way of creating policy.

Part 5 of the instrument, which relates to qualifying financially disadvantaged customers, requires the Secretary of State to make rules about further reductions that the suppliers must apply to the amounts payable of these customers within 14 days of the scheme’s introduction date. As the Explanatory Memorandum says,

“The current levels of many deemed and out-of-contract tariffs mean that, even with the discounts provided by the rest of the EBRS scheme, these customers … would often still experience particular difficulty in obtaining a supply of energy at a reasonable rate”.


It is welcome that additional support will be set out. However, given the situation, waiting until 14 days after the scheme’s introduction does little to offer reassurance to these customers and makes it difficult, if not impossible, for your Lordships to scrutinise the plans. Perhaps the Minister could give some advance notice of the Government’s plans for this section.

Before I finish, I briefly revisit one broader area from the Energy Prices Act, regarding the powers of the Secretary of State, some of which allow them to escape secondary legislation. Of course, that is not the case here, as we are debating secondary legislation, but I use this opportunity to repeat our regret that other significant powers given by the Act are not subject to parliamentary debates such as this.

[Baroness Hoey (Non-Afl)]

My Lords, could I intervene before the Minister responds? I have carefully gone through the Energy Bill Relief Scheme Regulations 2022 and the Energy Bill Relief Scheme (Northern Ireland) Regulations 2022, which are about the same thickness, to see where the differences are. Obviously, we know that the situation is different in Northern Ireland, so there have to be some differences, but it would be helpful if, in winding, the Minister could clarify any substantial differences between how the scheme is going to work in Northern Ireland and in the rest of the United Kingdom. As the Minister is aware, we in Northern Ireland are always wary of being treated slightly differently for some unknown reason that we find out about later. I appreciate that there have to be separate regulations on this, but I would appreciate clarification on any substantial differences.

[Lord Callanan (Con)]

I first thank noble Lords for their contributions to this debate. As I said, the Government have implemented the EBRS GB and NI schemes to ensure that non-domestic consumers are protected from excessively high energy bills over the winter period. The schemes will make sure that the amount that eligible businesses pay for their wholesale energy costs comes down to a reasonable level, with some saving over 50% on those costs.

I am sure it is reassuring for the House to know that the schemes are already in force and delivering support to organisations across the UK. I hope this reassures the public that the Government are committed to taking decisive action to alleviate at least part of this energy crisis.

As well as providing immediate relief, these schemes will support economic growth and have the happy effect of limiting inflation caused by increasing energy bills and the knock-on effects on prices, labour, goods and services. As I said at the start, we are confident that the schemes will seek to avoid firm closures and redundancies and will ensure that vital public services and charities can continue to operate over the winter.

We will continue to monitor the schemes to ensure that this support is provided to the people and businesses that they are designed to help. We are committed to reviewing the schemes by the end of the year and will continue to work with stakeholders to ensure that their feedback is taken into account. We will use the review to look at how best to offer further support to customers who are most at risk from energy price increases beyond April 2023.

I start off with the contribution of my noble friend Lady McIntosh, who asked whether the House would have the opportunity to review the rules accompanying the statutory instrument. It is worth pointing out that the schemes have been set up at pace, and the House of course helped by passing the legislation at pace, to deal with the crisis. Therefore, it is right that the more technical details of the scheme have been included in statutory rules, which have been published on GOV.UK. The first tranche of EBRS GB and NI rules were published on 1 November; amendment rules relating to discount recovery were published on 4 November; and a third tranche of amendment rules relating to disputes and treatment of financially disadvantaged customers was published on 9 November. Minor changes made via amending rules were published on 10 November. If the noble Baroness wants to check on GOV.UK, she can while away her weekend reading the rules in detail. The business support scheme is intended to give immediate relief to businesses and other non-domestic consumers from the current level of inflated electricity and gas prices.

The noble Lord, Lord Lennie, and my noble friend Lady McIntosh asked the good question about what will happen in six months’ time, once these schemes come to an end. I cannot say that I have an answer for the Committee at the moment, because we are still to conduct the review of the scheme, which we have said that we will do by the end of the year. Perhaps if I set out what the review will consider, that will give the Committee some clues as to where we intend to go with this. The review will consider how best to offer further support to customers who are most at risk of energy price increases. By their very nature, they are likely to be those who are least able to adjust—for example, by reducing their energy uses or increasing their energy efficiency. Of course, any further support will begin at the end of the initial six-month support scheme.

My noble friend Lady McIntosh asked something that, I have to say, has nothing to do with these regulations, about lessons learned from Storm Arwen. We have had extensive discussions on that subject in this House. We published a comprehensive review of the recommendations for improvement of the electricity sector in response to Storm Arwen. There were a number of key recommendations covering enhancing system resilience; protecting customers; and additional support, such as compensation. The recommendations are due to be finalised by December 2023, but the majority are already complete, ahead of this winter.

My noble friend also asked about the assessment of the impact of administration and resource costs to Ofgem. Of course, we are working very closely with Ofgem to ensure the effective enforcement of the scheme requirements, and we will ensure that it has the necessary resources to carry out its role in this and many other government schemes operating in the energy sector. Given the pace at which we had to deliver the impact assessments of this time-bound intervention, we have focused on the largest and most significant impact—of course, the direct costs to the Exchequer.

My noble friend also asked about the 28-day disqualification policy. The arrears rule already referred to applies only to the additional discounts that suppliers are required to apply to those qualifying disadvantaged on deemed or out-of-contract contracts. That is in addition to the main EBRS discount.

On the points made about suppliers increasing energy bills, the EBRS scheme is shielding businesses across the country from soaring energy prices. The vast majority of energy suppliers are operating responsibly and within the spirit of the scheme. Of course, we are aware of reports that some companies are being faced with excessively high quotes this winter. I can tell the House that we will take a robust approach to this, and we are working with Ofgem to ensure that the licensing conditions have not been breached and that businesses are able to see the full effects of support offered by the scheme.

My noble friend Lady McIntosh also raised the issue of the UK’s energy resilience in winter. We have a secure and diverse energy system, and we are confident of our plans to protect households and businesses in the full range of scenarios this winter, in light of Russia’s illegal war.

Energy Prices (Domestic Supply) (Northern Ireland) Regulations 2022

Baroness Hoey Excerpts

Wednesday 16th November 2022 Grand Committee

[Lord Teverson (LD)]

My Lords, I thank the noble Lord, Lord Browne, for explaining the details of the Northern Ireland energy market. I did not realise that it was quite so complicated, as it sometimes is here with multiple suppliers, and so on.

I want to make two points. The first has already been covered by noble Lords—the predominance of oil provision in Northern Ireland and how that is dealt with. Despite the strong competition, I suspect that the £100 is far from enough in being able to compensate those rural households for their energy costs.

Secondly, as the Minister will be well aware, there is a single electricity market in Northern Ireland. The grids are integrated. As noble Lords have said, it is separate from the British system. Are there any potential issues in relation to differential charging either side of the border? There may be no issues—

[Baroness Hoey (Non-Afl)]

The noble Lord said that it was different from the “British system”. I think he means the Great Britain system. Northern Ireland is part of the United Kingdom; we are British.

Subsidy Control Bill

Baroness Hoey Excerpts

Committee stage
Monday 7th February 2022 Grand Committee

[Lord Dodds of Duncairn (DUP)]

My Lords, I have tabled this amendment, to which the noble Baroness, Lady Hoey, has added her name, in order to probe the Government’s understanding of the application of the state aid rules which will apply to Northern Ireland and those which will apply to rest of the United Kingdom as a result of the Bill. I know that on previous days in Committee there has been consideration of the relationship between the different rules. When I looked at the Bill, I sought to put down an amendment which would have brought Northern Ireland into line with the subsidy regime for the rest of the United Kingdom, but I was told that because of the provisions of Article 10 of the Northern Ireland protocol, an international treaty, it is not possible to amend the Bill to have the effect that I would have wished to bring Northern Ireland into line with the rest of the United Kingdom.

My Lords, there appears to be some echo in the Room, and I am not sure what is causing it. I shall stand further back from the microphone—I shall pretend that we are in the Ulster Hall—though I am tempted to do without a microphone altogether. I hope that noble Lords can hear me clearly now.

The subsidy control regime in the Bill would apply to only about 50% of the financial support that will be provided to Northern Ireland with the remainder continuing to fall within the scope of EU state aid rules—those applying to goods and wholesale electricity markets. Northern Ireland will be forced to adhere to the strict rules and conditions of EU law on things such as no expansions, maximum grant rates, only new establishments and so on, and when the projects are large or outside the scope of the exemption regulations Northern Ireland will have to seek European Commission approval. Effectively, we have two regimes which are very different in policy terms and practical effect. Under the UK scheme, things will be automatically approved unless specifically prohibited. In Northern Ireland, we are subject to EU rules under which everything is prohibited unless approved, effectively. They are very different policies, and two different systems are applying in one country.

From time to time, the Government have set out their views on the effects of the operation of Article 10 of the protocol. In their May 2020 Command Paper, they were of the view that the provisions of the protocol would apply only in Northern Ireland. However, they later acknowledged that there was a risk of a maximalist interpretation of Article 10 by the EU, which could give the European Commission extensive jurisdiction over subsidies granted in the rest of the UK—an issue that the Government sought to address by tabling amendments to the United Kingdom Internal Market Bill, but we know how that ended. The European Commission also published a notice to stakeholders in January 2021 setting out its guidance. I would be grateful if the Minister could tell us whether or not, as things stand, he is concerned about the conflicting guidance on the scope of subsidies that would be covered by Article 10.

In July 2021, as we know, the Government published a significant Command Paper arguing that the TCA and the provisions of this Bill

“provide a more than sufficient basis to guarantee that there will be no significant distortion to goods trade between the UK and EU, whether from Great Britain or Northern Ireland, thus making the existing provisions in Article 10”,

referred to in Section 48(3),

“redundant in their current form.”

When the noble Lord, Lord Frost—the Minister responsible—resigned, he said in his statement on 17 December, regarding the negotiations with the EU in this regard, that there had been

“some limited discussions on subsidy control”

but made it clear that:

“The rules need to evolve to reflect this new reality”


of the trade and co-operation agreement and the UK’s subsidy control regime. He said:

“Northern Ireland businesses are facing unjustified burdens and complexity, and the Government cannot deliver aid to Northern Ireland, for example for Covid recovery support, without asking for the EU’s permission.”


Since assuming responsibility from the noble Lord, the Foreign Secretary has said that the UK’s position on the protocol, and with regard to the issue of Article 10, has not changed.

So the Government’s position appears to remain as set out in the Command Paper of July 2021, which states that the aim of their negotiations, their policy objective, is to erase Article 10 from the protocol. I should be grateful if the Minister could therefore indicate what progress has been made in the discussions, particularly on this issue. It is an area that is not discussed much. There is a lot of talk about phytosanitary checks and customs, which are important issues in their own right, but little discussion of the subsidy control regime. However, it is significant for Northern Ireland and I would be grateful for an update.

If negotiations do not result in the objectives set out in the Government’s Command Paper, will the Minister indicate what action they will take on their own account to protect Northern Ireland’s economy and what the timescale is? If action is not taken to resolve this matter, either through negotiations or by action on their own account by the Government, there will be no level playing field across the UK when it comes to the subsidy control regime. Northern Ireland will be at a disadvantage, according to the Department for the Economy in Northern Ireland, compared to other parts of the UK when competing for inward investment, for example. Other parts of the UK could be much more attractive as a location for investment as a result of not having to wait for the Commission to grant formal approvals. In Northern Ireland, approvals will take significantly longer than the new timescales envisaged in the Bill for the rest of the UK; they could have far fewer conditions or restrictions and might well receive greater levels of funding than would be possible under the EU regime in Northern Ireland, which prohibits subsidies greater than 50%, whereas under the Bill subsidies may be proportionate but no maximum is specified.

When these issues were raised in the other place, the Business Secretary responded by pointing to the changes to the protocol being sought by the Government in the negotiations, which would bring all subsidies within the domestic regime. Can the Minister confirm that there is not really any solution other than that indicated by the Business Secretary? If EU law applies, it is hard to envisage that there can be any mitigation. There is certainly nothing in the Bill that would ease the problems that Northern Ireland will face in this regard.

The reality is that the interaction of the protocol with the Bill before your Lordships has the potential to impact negatively on the development of the economy of Northern Ireland, and I hope sincerely that the Government will implement the necessary measures to avoid that bad outcome. I beg to move.

[Baroness Hoey (Non-Afl)]

My Lords, I was pleased to add my name to the amendment in the name of the noble Lord, Lord Dodds. It is particularly because of the situation now in Northern Ireland that many of us want to raise this issue at every opportunity—it was raised also at Second Reading. I accept from the beginning that the Government are trying to deal with some of the problems that have come about. They were perhaps seen some time ago, but the Government are now trying to deal with the realities. The noble Lord, Lord Dodds, has given a clear outline of the detail of how the current situation will affect business in Northern Ireland. I want to speak more from the point of view of morality—the idea that, once again, Northern Ireland is being treated so differently and so separately from the rest of the United Kingdom.

At Second Reading, the Minister said—it was said a number of times:

“We are seizing the opportunities of Brexit.”—[Official Report, 19/1/22; col. 1712.]


As someone who was a passionate supporter of Brexit, I want to seize those opportunities, and I want the people of Northern Ireland to be able to seize them, but it is clear that we will have a different regime and that businesses will lose out, whatever happens, unless this is changed. It is a pity that we could not have a real debate and a vote on Article 10 at some stage in your Lordships’ House, but I accept that we cannot do it in this Bill.

We have a form of colony in Northern Ireland at the moment. Northern Ireland now has a foreign market, a foreign customs regime and a foreign VAT regime adjudicated by a foreign court, and now we will have foreign state aid. I know that the negotiations that are going on are slightly above the Minister’s pay grade, but I hope that he will do his bit as the Business Minister to realise and understand just how unfair this is for the people of Northern Ireland. I hope that he will be able to give us some comfort as to how the Government are going to take this forward if the negotiations with the European Union get nowhere, as I expect.

[Lord Empey (UUP)]

My Lords, the issue of state aid goes beyond even the points that have already been made, because there is theoretically a possibility of reach-back into Great Britain depending on whether a product was subsidised before it left Great Britain and was part of, or added to, another product of a business in Northern Ireland. The truth is that the Minister does not know the answer to these questions.

I do not understand why there is surprise. The Minister may not wish to comment, but the situation in which we find ourselves is a direct consequence of the proposals made by the Prime Minister to the European Union. He proposed the protocol. When I hear the phrase “Let’s get Brexit done”, it drives me mad. Brexit is done for 97% of the United Kingdom; we are still in the European Union for as much as half of our activities.

This was entirely anticipated, but it was not worked out. So, the protocol came along in late 2019 as the deathbed plan to get Brexit done in a couple of months, and this is one of the pickles we are left in. I may have some issues with the wording of the amendment in the name of the noble Lord, Lord Dodds, but its heart is in the right place. He said, if I picked him up correctly, that it is a probing amendment to try to get answers. I totally support that; it is the right thing to do.

Post Office: Horizon Compensation

Baroness Hoey Excerpts

Monday 10th January 2022 Lords Chamber

[Lord Callanan (Con)]

The noble Lord makes a good point but this is in the hands of the court. So far, 72 people have had their convictions overturned. As soon as the others have had their convictions overturned, we will proceed with offering compensation to them as well.

[Baroness Hoey (Non-Afl)]

My Lords, the postmasters and postmistresses were treated shockingly by the Post Office. Can the Minister tell us whether anyone in the Post Office seniority has been reprimanded or sacked or had money taken off them? Has anything happened to anyone? Has anyone in the Post Office taken responsibility for this appalling treatment of men and women?

[Lord Callanan (Con)]

“Shockingly” is almost an understatement of the full extent of the terrible injustices that went on for sub-postmasters over many years and many different Governments, Ministers et cetera. Most of the senior executives of the Post Office who were responsible are not there anymore, but the appropriate mechanism to find out exactly who was to blame and who was responsible is the independent public inquiry with full statutory powers, which is currently considering these matters.

United Kingdom Internal Market Bill

Baroness Hoey Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 9th December 2020 Lords Chamber

[Lord Howard of Lympne (Con)]

I will be brief. I agree with everything that has been said by the noble and learned Lord, Lord Judge. I welcome how the Government have seen fit to remove these clauses, which, for the reasons given by the noble and learned Lord, should never have found their way into draft legislation. The Government should never have asked Parliament to agree to the breaking of international law, which these clauses would have provided.

I also welcome how the issues to which this part of the Bill gave rise have been resolved in the way that so many of us asked of the Government: through the procedures for dispute resolution that are set out in the withdrawal agreement. Who knows? Could this conceivably form a precedent for the resolution of other issues yet to be resolved? We must devoutly hope so. For the moment, I rise to welcome the removal of these clauses from the Bill. They should never have been there and it is a great relief that they will not be there any more.

[Baroness Hoey (Non-Afl)]

My Lords, I understand the pleasure that many noble Lords have in the fact that the Government have withdrawn—or want and are likely to withdraw—these clauses. However, it is a pity, in a way, that this House did not have the Statement from the Cabinet Office Secretary, heard already today in the other place, before discussing this. It is very wrong that that Statement will not come to this House before last business tomorrow. If you read it, you will find that much of what has been said is not set in stone. Yes, an agreement in principle was made yesterday—it is important to mention the words “in principle”—by the Secretary of State going over to Brussels. After all this time, he suddenly came back, after a cup of tea or, perhaps, a lunch, with something that was meant to make everything okay. It is important that your Lordships consider today what we are doing about this protocol and are under no illusion about what has now been agreed in principle by the Secretary of State and the European Union, and the co-chairs of the committee.

Noble Lords should look at why these clauses were originally put in. I accept that the noble and learned Lord, Lord Judge, has been very clear about the breaking of international law; he talked about the constitutional improperty. I urge your Lordships to think about the constitutional improperty of what is being done to a part of the United Kingdom. Let us be clear: nearly 45% of Northern Ireland people voted to leave the European Union; they voted to leave as the United Kingdom. We are not now in a position where Northern Ireland is leaving with the rest of the United Kingdom. This is important, because of all the safeguards that were being put in by these clauses. For example, the Commons Reason says:

“Because the regulation-making power conferred by clause 44 provides a necessary safety net to ensure Ministers can secure that qualifying Northern Ireland goods have full, unfettered access to the whole of the UK internal market.”


The other clauses were all designed as a safety net. Let us be clear: that safety net has now gone. We are now in a position where Northern Ireland will still be subject to the European Court of Justice, which will still exercise control there. Northern Ireland will be subject to any new European rules to do with trade. Much of the agreement announced by the Secretary of State is only for six months. What happens after six months when we have seen it on the ground? The proof of all this will be in the implementation. For example, we have already seen the very welcome announcement that, now we have left the EU, the Government can ban the export of live animals. That will not apply to Northern Ireland. There are even discussions that, if you move your dog from Great Britain to Northern Ireland, you will need a special permit. So let us not kid ourselves—to use words that are not very House of Lords—that we are not starting down the road of setting up Northern Ireland to be different and a place apart. We were promised that we would leave as a United Kingdom. Northern Ireland is not leaving the European Union in the same way as the rest of the United Kingdom. In future, noble Lords will look back on this as a very sad day for the unity of our United Kingdom.

[Lord Naseby (Con)]

My Lords, I think I am brave enough to suggest to the noble and learned Lord, Lord Judge, that his ruling or reading that Part 5 was illegal is not shared by those I have consulted since. David Wolfson QC said:

“The mere act of laying a bill before parliament which, if it were passed into statute, would breach a treaty obligation (and would amend domestic legislation bringing that treaty obligation into effect in domestic law) is not itself a breach of the treaty or of international law. Nor would merely laying such a bill be itself a breach of the rule of law”.


The noble Baroness who has just spoken is absolutely right. I had the privilege of being a very junior Minister in Northern Ireland. The safeguards of Part 5 of the Bill were there for a purpose, for a very difficult area of the United Kingdom. We all know that it needs sensitivity, understanding and, as anyone who has served in Northern Ireland will know, patience. Things do not happen quickly there—and against that particularly the Belfast/Good Friday agreement.

I welcome the joint statement received from the co-chairs of the EU-UK Joint Committee that:

“Following intensive and constructive work over the past weeks by the EU and the UK, the two co-chairs can now announce their agreement in principle on all issues, in particular with regard to the Protocol on Ireland and Northern Ireland.”


In my judgment, as a practical man, the original procedure has worked, not the threats from a certain section of the upper House. I therefore thank my noble friend on the Front Bench, who I imagine has been in detailed discussion with those who have come to this decision.

As an aside, I am someone who looks at votes and the results of Divisions. Noble Lords may have noticed that, in the first Division this afternoon, the votes of those voting for the Motion and, therefore, against the Government, appear to have dropped by about 100 from last time. On the second Division it dropped to 45. I venture to suggest that the Government have taken action, worked hard and made progress. It would be good if this House now got on and accepted some of the proposals from Her Majesty’s Government.

United Kingdom Internal Market Bill

Baroness Hoey Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

Most of important of all, even if the noble Lord, Lord Lilley, were right—and he is not—on the issues of principle, we should not be asked to authorise regulations to breach international law at the complete discretion of Ministers, without any legal controls in the way that I have sought to explain. When the noble and learned Lord, Lord Judge, divides the Committee, I shall be supporting him in the virtual Division Lobby.

[Baroness Hoey (Non-Afl)]

My Lords, I rise to support all the clauses that deal with the Northern Ireland protocol. I am very much aware that this House is full of lawyers; I declare an interest in that I am not a lawyer—perhaps that is a good thing sometimes. Over the four years since the referendum, I have been surprised and shocked by some of the ignorance spoken about the Belfast agreement. I sometimes wonder whether people have actually read it. It is a fact that many who disliked the referendum result used the Belfast agreement to try to make it more difficult for the Government by continually promoting the idea that the agreement said that there could be no trade checks at the border. Of course, this was wrong; the agreement made no mention of trade borders.

Unfortunately, whether by accident or design, or because of the pressure from the Irish Government, the people of Northern Ireland have, in plain words, been sold out. I believe that the way in which the fears of a hard border were deliberately escalated meant that the EU was delighted. Michel Barnier himself was seen on camera and quoted as saying that the border argument was a good way of punishing the United Kingdom for leaving.

How can any of your Lordships think that creating a trade border down the Irish Sea between Northern Ireland and the rest of the United Kingdom is protecting the Belfast agreement when the one border—the key and crucial border—recognised in the agreement is that between Northern Ireland, as part of the UK, and the Republic of Ireland, as a foreign country? How can one go against the Belfast agreement while we all have to accept the other and say that it is wonderful?

Creating a new border, cutting Northern Ireland off from the rest of the UK, is already breaking the Belfast agreement, unless Northern Ireland consents to being cut off. The principle of consent, which we hear very little about in the Belfast agreement discussions now, is central to the agreement, and it is shattered by this protocol, which I did not support in the House of Commons. It is worth stating that the “Constitutional Issues” section of the Belfast agreement says that, as

“the present wish of a majority of the people of Northern Ireland … is to maintain the Union … it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.

However, this is precisely what is happening. The protocol itself is a blatant breach of the Belfast agreement and international law.

I believe that the Bill is trying to improve this in some way, and, clearly, I have no trust whatever in the good faith of the European Union on this issue. Quite rightly, Her Majesty’s Government need to be one step ahead, and this is what the clauses that some noble Lords seek to remove are doing. They do not violate any laws but merely create a mechanism to be used in trying to make less damage come from parts of the protocol if the European Union decides to play games.

If parliamentary sovereignty means anything, it must mean that Parliament can enact legislation that breaches international law on some occasions. Ministers must be free to recommend this to Parliament. I know that lawyers hate this, but the sovereignty of Parliament is supreme, and no country can be bound for ever by an international law. Political judgment has to be used as to when it might be necessary, but I would have thought that standing up for part of the United Kingdom when an action is going to harm it is such a necessity.

The protocol sets out the principle that:

“Northern Ireland is part of the customs territory of the United Kingdom”.


Therefore, goods should be able to flow freely, but the EU judging the risk of goods crossing into the Republic is worrying, as there are strong incentives to insist on a very wide definition of “goods at risk”. Let us be honest, it has a strong economic incentive to make life as difficult as possible for British-based exporters of goods into Northern Ireland to give an advantage over them to the EU’s own exporters in the Republic and elsewhere.

The problem is that, if the UK refuses to agree a wide definition and insists on a more limited class of goods genuinely at risk of onward sale into the EU, the default position, if there is no agreement, appears to be that all goods passing from GB to Northern Ireland would be subject to duties. This would create huge extra administrative costs and bureaucracy to move goods from one part of our country to another. I do not believe that that can be allowed. I feel that my duty here is to speak for those who just want to see your Lordships’ House stand up for our country against the bad faith, or the likely bad faith, of the European Union. Arbitration would take a long time and, in the meantime, the people of Northern Ireland suffer.

To take out these clauses now would be a further stab in the back of the people of Northern Ireland. To say, as some noble Lords have, that we must remove them to please the new US President is something I believe will shock decent people in the real world outside this House. First and foremost, we must stand up for our own country. Noble Lords can show today that they genuinely care for Northern Ireland and the union, and that they have read the Belfast agreement. I am not surprised about the position of the opposition Benches on this, as the Opposition do not even allow people in Northern Ireland to vote for their party. To noble Lords on the government side, I say: remember those true unionists of your party over the years who gave their lives—Ian Gow, Airey Neave—and do the right thing. I hope tonight that noble Lords will show that they really care about Northern Ireland and will leave these important clauses where they should be.

[Lord Stirrup (CB)]

My Lords, the Good Friday agreement was made possible, at least in part, by the fact both the United Kingdom and the Republic of Ireland were members of the EU. The common rules and procedures under which we both operated, enabled unionists and republicans to claim that the agreement went some way to advancing their political agenda. It was in many ways a classic deal—fully satisfactory to neither party but acceptable enough to allow agreement. The UK then voted to leave the EU. It was not the option I preferred, but I accepted the result. Having accepted it, I was clear that the best course for us was to leave the single market and the customs union as well. Anything else might well have had some economic advantages but would have left us in the worst of all worlds politically.

That meant that there would need to be border of some kind between the UK and the EU. The nature of the border would depend on the future relationship between the two parties, but a border there would be. This was foreseen and foretold. However, a border that separated Northern Ireland from the Republic to the south, might well have implications, both practical and political, for the Good Friday agreement. The protocol for the EU withdrawal agreement was designed to deal with this and the Government were content with it when the agreement was approved by the UK Parliament. The Government now say the EU might apply the protocol in a way that was never intended, and that Part 5 of the Bill is necessary to protect the position of the UK.

Quite why we should assume the EU would behave in such a way, no matter what ill-advised comments might have been made in the heat of argument, is not clear to me. In any event, a dispute resolution mechanism already exists to tackle any problems of interpretation and application that might arise. If this were tried and found wanting, and the Government believed the UK’s national interests were seriously at stake, they could introduce emergency legislation to Parliament at that point. They would then be responding to a breach of faith, not creating one. This would place us in a position far preferable to that which would result from accepting the provisions in Part 5. Acting in self-defence—it seems to me and, I suspect, to many others—is entirely different from getting one’s retaliation in first.

There is no reason why the Government could not have an oven-ready Bill sitting in their political refrigerator for this purpose. If it were appropriate, and proportionate, we would, I suspect, have a great deal of international sympathy and I would certainly support it. What I cannot support, however, is a Bill that authorises Ministers to break the law based on some hypothetical event and damages our power to exercise strategic influence in the wider world. I am persuaded by many of my noble and learned friends that to do so would be wrong in law. I am quite certain in my own mind that it would be wrong in principle, for all the reasons I set out in my speech on Second Reading and that I need not repeat this evening. This is not a disagreement on matters of policy; it is a question of law and principle, which we have a duty to uphold.

I am not a remoaner. I have said that I accepted the result of the EU referendum. Indeed, as I said, having accepted it, I argued for our withdrawal from the single market and the customs union. If my voting record were to be checked, it would be found that I support the Government in the Division Lobby far more often than I oppose them. I do not believe I am what the Government might regard as one of the usual suspects. However, I oppose Part 5 of the Bill and will vote accordingly in any Divisions on its clauses standing part.

I acknowledge that the Government have a difficult task in reconciling the potentially contradictory aspects of the withdrawal protocol and the Good Friday agreement. That perhaps became inevitable once we left the EU but, given the breadth and depth of the dissatisfaction with Part 5 that is evident across this House, I urge Ministers to think again about the course that they are following. It is not too late for them to adopt an approach that can command support across the United Kingdom but that maintains our hitherto exemplary status as a law-abiding and trustworthy member of the community of nations.