Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Baroness Hoey and Lord Dodds of Duncairn

Report stage
Wednesday 21st June 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, as a signatory to Amendment 9 in the name of the noble and right reverend Lord, Lord Eames, and the amendments that follow from it, I support it very strongly. Realistically, we know that the Government are going to push the Bill through, so rather than trying to wreck it completely, it is important that we try to make it as good as it can be.

Fundamentally, Amendment 9 seeks to make what is imperfect legislation that little bit less imperfect. It would do so by at least making the immunity process absolutely victim centred. To put it simply, save for exceptional circumstances which we have set out in the amendment—such as a disagreement among family members as to whether to consent—the core principle will be that an immunity certificate cannot be granted unless there is the consent of a victim.

We have built in a provision whereby if a close family member requests a review, that is taken as consent. Once consent is given, a perpetrator—within the scope set out in the Bill—can obtain immunity, the family can obtain information and the chief commissioner can publish a report of his findings. But crucially, if there is no family consent, none of those things can happen. The chief commissioner may still conduct a review if a referral is made by one of the specified statutory bodies, but he may not grant immunity, provide information to families or publish a report if there is no consent. That means that the wishes of victims’ families are central to the process.

We would prefer that the Bill in this format was not here at all—but it is. These amendments seek to make the best of a bad situation and at least give victims, in all but exceptional cases, a veto over perpetrator immunity.

It should be noted—I raise it now because it is central to the whole issue of outcomes for victims—that if you look at paragraph 5(1) of Schedule 11, it appears that Section 4 of the Northern Ireland (Sentences) Act 1998 is being amended to, in effect, reduce the tariff to zero or at the most one day. At the moment, it works out as a two-year sentence for anyone convicted of a pre-1998 offence. On the face of it, this seems to mean that even if one were to be convicted of an offence on referral to the DPP by the chief commissioner, there would be a term of imprisonment of, in effect, one day maximum. That may not be called an amnesty, but it is a de facto amnesty. I am very sad about that and regret it. It is wrong. It was wrong in 1998, it is wrong now and it will be for ever wrong.

If the Government are determined to force the Bill through, at least our amendment would put victims at the centre of an imperfect process. I ask a simple question: how could anyone reasonably object to elevating the interests of victims over those of perpetrators?

[Lord Dodds of Duncairn (DUP)]

My Lords, first, I join with other noble Lords who have thanked the Minister for his engagement in relation to both the amendments he has tabled on Report and the amendments we considered in Committee and have brought forward again on Report. I think it has been a genuine engagement. I am pleased that the Minister has listened to some extent and that there have been improvements as a result of the discussions that have taken place, and indeed following amendments tabled in the other place which the Government responded to.

In paying tribute to the Minister, we should also pay tribute, as others have, to the innocent victims of terrorism, murder and mayhem in Northern Ireland over many years. We should pay tribute to their enormous tenacity and fortitude in the face of what has been happening in recent days in Northern Ireland, with the continuing eulogy and glorification of murderers and criminals by elected representatives, including those who purport to be the First Minister “for all”.

In relation to the Bill being brought back, given the pause and the length of time that has passed, and the universal opposition to it, some had hoped that this would be one area where the Government might actually listen to all the parties in Northern Ireland, but that does not appear to be the case. The Minister and your Lordships will be aware that on 19 June, the leader of the Democratic Unionist Party, Sir Jeffrey Donaldson, and others wrote to the Prime Minister asking, even at this stage, for the proposals to be withdrawn. The letter restated our fundamental opposition to an amnesty—which is what the Bill in effect creates—paid tribute to the victims and recognised that while we and other noble Lords have tabled amendments, that should not be misconstrued in any shape or form as providing tacit consent to this regime, which undermines confidence in the rule of law and has done so much harm to victims.

I will speak to the amendments in my name and those of my noble friends, but I say initially that I have a lot of sympathy with Amendment 9, moved by the noble and right reverend Lord, Lord Eames, on putting the victims at the centre of this immunity process if we are to have it. It talks about those cases that involve death; I would prefer it to cover all cases. Having said that, I think it is worthy of support, and I hope the Government will consider it.

The noble and right reverend Lord, Lord Eames, talked about hypocrisy in relation to mentioning reconciliation, yet we have the Bill before us. That was a very powerful but correct description, and I often hear that word mentioned by victims in relation to the approach taken in the Bill by the Government.

Amendment 59A, standing in my name and in the names of my noble friends, would require the commissioner for investigations to refer a file to the PPS when an individual is found to have provided false statements to the ICRIR. At present there is no explicit provision in the Bill to require the ICRIR to provide material evidence of false statements to the prosecutor in aid of proceedings. I would be grateful if, when the Minister responds, he can address that point and reassure your Lordships that this is not some kind of loophole that can be exploited but that, in the absence of this amendment, there will be no gap and that we will ensure that there is a joined-up approach to pursuing convictions.

Amendment 61A would require an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution, Although the concept of immunity is in our view irredeemable, a further problem is that the Bill as drafted places no impediment to a perpetrator gaining the protection of immunity and then going on to publicise, promote or commemorate—the favourite word now used by terrorist apologists—his or her deeds in such a way that harms victims and generally offends the cause of peace and reconciliation. The Government have brought forward new proposals allowing immunity to be revoked in instances of glorification of terror, and I welcome that. However, I think it could go further in capturing activities that do not necessarily constitute offending but which will cause deep harm to victims, survivors and their families. Our Amendment 86A follows on by requiring the permanent revocation of immunity of individuals engaged in the sort of activity that I have outlined.

It should not be acceptable in general terms that political representatives of the IRA and Sinn Féin, including the potential First Minister or anyone else, and especially people who have taken advantage of this system, should go around the country, not doing enough to fall foul of the “glorification of terrorism” legislation but doing enormous harm psychologically to victims and their families by their continuing commemoration, eulogising and glorification of the perpetrators of some of the most heinous criminal and obscene acts that we have seen anywhere over the last 30 years. The purpose of these amendments is to address that point and to urge that the Government do something about it. It is not only causing trauma to victims and retraumatising their families but is toxifying the political atmosphere in Northern Ireland as people try to get the Assembly up and running again.

Northern Ireland (Interim Arrangements) Bill

Debate between Baroness Hoey and Lord Dodds of Duncairn

3rd reading & Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, I strongly support this amendment in the names of the noble Lords, Lord Morrow and Lord Dodds. I agree very much with what has been said by everyone who has spoken so far, although obviously I disagree with the noble Baroness, Lady Ritchie, that somehow the only way in which this can be dealt with is by getting the Executive back. There is no reason for that, given that the Fiscal Council said what it did, and the Minister knows that Northern Ireland is not being fully funded because the Barnett squeeze is getting greater. Surely if the Government know that that is happening to a part of the UK, they should be able to act without waiting for an Assembly or an Executive, which, given what has been said, is very unlikely to come back in the near future. I urge the Minister not to treat this as some kind of bargaining point with politicians in Northern Ireland; that is not the way to deal with this serious financial situation.

It is important that the point about consultation be included in the Bill. Being realistic, there are things in Northern Ireland that—forgetting the whole issue of the Barnett formula and the overall funding—could raise more money. That has always been difficult because controversial decisions are very difficult to take between the two mainstream political parties and the two factions —or perhaps three factions—in Northern Ireland. There are some things that are not the same as in the rest of the UK but should be. No doubt I would be slated by the media in Northern Ireland for saying this, but I genuinely think we should be looking at prescription costs. There is a huge amount of waste due to the fact that prescriptions are free for everyone in Northern Ireland. That is just one small thing, but I am certain that, if the public were properly consulted on it, talked about it and understood it, there would be support in many areas for that way of raising extra funds.

There are other such issues but I will not go into any of those. I know the Minister is particularly knowledgeable about and supportive of Northern Ireland, but he may not have a Secretary of State who is necessarily quite so knowledgeable and supportive, so it is important that the Secretary of State listens to what people who understand Northern Ireland are saying.

As we are on finance, I will ask the Minister about policing in Northern Ireland, which is in a particularly difficult situation over its funding. Morale among the Police Federation there is very low. Are the United Kingdom Government giving extra money to the police to make up for the huge amount that it cost to have the very short visit of President Biden and all the other dignitaries who flew in and flew out again as quickly as possible, having joined in the commemoration of the Belfast/Good Friday agreement? It cost a huge amount of money to bring over police officers from Great Britain. Have the Government given any extra money for that? If not, why not?

We had a wide-ranging debate at Second Reading, so there is no point going over all the arguments again; we cannot in a debate on an amendment anyway. But let us not forget that we are here discussing the Bill only because we have no Executive, and we have no Executive because this Government—our Government—have decided that Northern Ireland is to be treated differently. We are being left under EU trading rules, which have set us apart and will set us further apart as time goes on. That is the really important issue that noble Lords need to remember.

[Lord Dodds of Duncairn (DUP)]

My Lords, I too am sorry that I was not able to be present, along with other noble Lords and noble Baronesses who have spoken, for the Second Reading of the Bill last Thursday because of other commitments in Northern Ireland. I put it on record that it was somewhat strange that the Second Reading was scheduled for the day of the local government elections in Northern Ireland. If nobody in the Government realised that, it tells us a lot about competence; if they did realise it and scheduled it anyway, it tells you a lot about their regard for Northern Ireland. I would like to know what actually happened that such a thing should be scheduled in that way.

I am glad that we have the opportunity to debate the amendment in the names of my noble friend Lord Morrow and me. It raises an important issue because, despite what is constantly said about the restoration of the Executive and the Assembly, if they were back tomorrow that would not make the slightest difference to the underfunding of Northern Ireland. In fact, Ministers—newly installed Ministers—would have to go about the business of slashing public services in health, education, policing and so on to an unprecedented degree. I do not agree with the idea that we should wait for the Executive and the Assembly to be restored. The need is here and now. The underfunding is taking place as a result of decisions taken here, in Whitehall and Westminster, by the Treasury.

It used to be the case over many years that the Northern Ireland Office was the advocate for Northern Ireland vis-à-vis central government and the Treasury, but it now appears that the current Secretary of State’s position is to become an advocate for the Treasury against the interests of Northern Ireland. He came on the other day to say that there would be no problem finding £100 million for a sports stadium. That is somewhat controversial in Northern Ireland but he was saying, “No problem at all—we’ll find the money if the bid’s successful”. But he cannot find an extra penny piece to deal with extraordinarily long waiting lists in the health service, education underfunding, police underfunding and the rest.

That sort of glib response to the crisis in Northern Ireland by the current Secretary of State, married to the refusal in this Bill to bring forward powers to give direction to civil servants, is an absolute abdication of responsibility by government Ministers who will no doubt respond and say, “Well, you should get into the Executive”. But they themselves are responsible for the current position in Northern Ireland by their refusal to restore the power of the Northern Ireland Assembly to make laws over 300 areas. Right across the economy of Northern Ireland, there are powers that do not reside in Belfast or here at Westminster or in Whitehall; they reside in Brussels with the European Commission—unaccountable and unanswerable. The Government need to recognise the current situation as it exists.

My noble friend Lord Morrow has very ably and in considerable detail set out the arguments behind our amendment. The Government may respond by saying that for many years they have funded Northern Ireland considerably well; the Minister referred to this at Second Reading. But whatever the past, what we are dealing with is now. As a result of government decisions taken by the Treasury, Northern Ireland is more below need on a funding-per-head basis than has ever been the case in any constituent part of the United Kingdom in the last 40 years. That is unacceptable and should not continue a moment longer. They cannot justify underfunding today on the basis of past settlements. Today’s budgetary position in Northern Ireland means social, economic and political dislocation. That is agreed and assented to by all the political parties in Northern Ireland across the board. It cannot be justified by looking backwards to previous financial settlements.

We will no doubt be told that Northern Ireland receives 20% per head more than the UK average spend. But, as we have heard, the true measure is spending against need. In Wales, steps were taken despite spending per head there being above the UK average. This is a question of asking not for favours or a privileged position but that the funding is structured so that services for the people of Northern Ireland meet the level of need, as is the case elsewhere in the United Kingdom. It is a quest not for privilege but for a level playing field. It is not a question of comparing Northern Ireland spending per head against England; it is about comparing Northern Ireland spending against need.

Of course, many people in Northern Ireland suspect the real game that the Northern Ireland Office is playing. I do not include in this the Minister answering on the Front Bench today, who has displayed time and again a willingness to fight Northern Ireland’s corner and stand up for the union. There are people within the NIO who no doubt believe that, by imposing this kind of budget and underfunding Northern Ireland both in the short term and going back some years, we will fix all this or come forward with a package if only the Executive and Assembly are restored and unionists operate the Northern Ireland protocol/Windsor Framework. That would entail operating measures that are injurious to the union and breach the Belfast agreement, the Acts of Union and the New Decade, New Approach document—the basis on which Northern Ireland devolution was restored in January 2020.

We have to face the reality that the failure of the Government to restore Northern Ireland’s place within the United Kingdom—subjecting it to arrangements that undermine democracy and are a breach of the agreements—is the fundamental problem we are grappling with. Unless that issue is tackled, we will continue to have a lack of devolved government in Northern Ireland. We have to accept the fundamental reasons why we are in the present position. Of course we do not want to see legislation having to be passed in this place to deal with the situation and would far rather have the Executive and the Assembly restored, but we have to have it back on the basis that we have powers to make the laws that affect and govern the economy of Northern Ireland. That cannot be avoided, and the fact is that the restoration of devolution lies in the Government’s hands.

The DUP stood on a manifesto in which we made it clear that the Northern Ireland protocol—the Windsor Framework—needs replacing

“with an arrangement that passes our seven tests”,

including getting rid of the Irish Sea border. It means restoring democracy and giving us the power to formulate and pass laws over our own economy, which seems very simple, straightforward and basic in terms of equal citizenship for all citizens of the United Kingdom. We are asking for something that would be seen as a matter of fact and common sense in every other part of the United Kingdom. Indeed, those who advocate different arrangements would never accept it for one minute for their own constituency, region or country in the United Kingdom.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Baroness Hoey and Lord Dodds of Duncairn

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, in this group we have come to memorialisation. I want to say a few words on the amendments in my name and those of my noble friends. Amendment 172 is

“intended to ensure that designated persons responsible for making recommendations about the initiation and carrying out of relevant memorialisation activities are under a duty to prevent the glorification of Troubles-related offences”.

Clause 48 says that “designated persons” carrying out the Troubles-related work programmes

“must have regard to the need to ensure that—(a) there is support from different communities in Northern Ireland for the way in which that programme is carried out, and (b) a variety of views of the Troubles is taken into account in carrying out that programme”.

This focus on “a variety of views” is problematic given that, sadly, a significant number of people in our community repeatedly not only refuse to disavow violence and terrorism but go further and eulogise and glorify acts of terrorism.

They want to put on a pedestal those who carried out acts of violence. They do this through parades, vigils, rallies and the installation of memorials and so on at sports grounds, on housing executive property and on roadsides. This is to continue what has been referred to throughout these debates as the revision of history—the rewriting of the history of the Troubles, so that those in the security forces who stood fast in the way of terrorism are denigrated to a large extent in the eyes of some. The terrorists are elevated by some to have been engaged in noble acts of warfare.

The noble and right reverend Lord, Lord Eames, referred to his experience. The sad reality is that we know the sordid, grubby, filthy acts of terrorism and violence that were carried out against innocent men, women and children daily in Northern Ireland, at times on the mainland as well and even on the continent of Europe in pursuit of the aims of violent men and women of terrorism.

Look at some of these daily events. Children witnessed the murder of their father or mother. Wives ran down lanes having heard the gunshots that cut down their farmer husband at the end of the lane. Consider the case of a young wife who had just given birth in hospital and who had been visited by her husband. As he left and went down into the car park, he was murdered. Then, at the funeral, they gloated over his murder. I know a young boy—now a man—who had lost his mother. His father was made to kneel down and was shot through the head in front of him; he ran down the lane to try to get help.

This is the reality of terrorism and what these people carried out, yet we have a situation where these people are eulogised and young people in Northern Ireland are shouting “Up the Ra”. We have a designate First Minister of Northern Ireland who says she wants to reach out to people but who continually goes to the eulogies of terrorists, continually defends the actions of terrorists and men of violence and puts these murderers on a pedestal. Until Sinn Féin disavows that, it will never reach out successfully to the unionist community or indeed to families on all sides of the community.

There will never truly be a peace process and a political process in Northern Ireland that is stable and enduring unless people move forward and stop eulogising violence. It is one of the main causes of community dislocation and the continued problems that we have in Northern Ireland. We are told continuously to move ahead, but these people continue to point backwards and eulogise the actions of terror. Today, in 2023, they are still doing it.

My Amendment 172 is intended to ensure that the designated persons will not have as part of their duties allowing terrorist activities to become the subject of glorification or justification—they should be under a duty to prevent this. They cannot be held to ransom by those who would rewrite history.

My Amendment 173 is intended to ensure that only innocent victims are included as victims in the memorialisation strategy under the Bill. It is critical that any Troubles-related work programme does not give credence to terrorists injured or killed by their own hand. They should not be considered victims in the same way as those whom they went out to maim and murder. The need to avoid drawing a moral equivalence between the victim and the perpetrator has been accepted as part of the Troubles permanent disablement payment scheme. We on these Benches and in the other place fought hard and long to ensure that that distinction was made, and Regulation 6 of the 2020 regulations made that part of the law. It is time that we saw this reflected in primary legislation. There should be a UK-wide definition of a victim that does not include the perpetrators of violence.

[Baroness Hoey (Non-Afl)]

My Lords, I support everything that the noble Lord, Lord Dodds, said and his Amendments 172 and—in particular—173; it has been a long time coming, and we need to make that definition of victim the same across the United Kingdom.

I will speak to my Amendments 174ZA and 174A. Amendment 174ZA addresses a problem with the Government’s funding body, UK Research and Innovation—UKRI—councils. Many of us who are interested in legacy are concerned about what seems the one-sided nature of much of the academic research into our past and the way that UKRI funding has been monopolised by what seems to be a single legal view. That view is radical and investigates faults only with the United Kingdom state and its security responses during the Troubles.

I cite here Queen’s University’s transitional justice department, which produced the model legacy bill referred to by the noble Lord, Lord Murphy, and others. Almost alone, that department has received some £4 million in UKRI funding. It works in conjunction with the Committee on the Administration of Justice, a largely nationalist body in Belfast that encourages legacy litigation. I note with concern that the speakers’ list at the transitional justice institute’s seminars during the events at Queen’s University on the recent 25th anniversary of the Belfast agreement was drawn from one outlook only.

The wording of my Amendment 174ZA stems from an Answer that I received on 8 November last year from the noble Lord, Lord Callanan. He said that UKRI funding on legacy

“is allocated according to research excellence as assessed by independent peer review”.

I am aware—I am sure that many noble Lords will also be—that peer reviews can often become what you could call “chum reviews”, especially when few other academics work in the same field. One academic, Dr Cillian McGrattan, wrote that

“the UKRI record does not bode well for the government’s plan to create a multi-disciplinary history that encourages the acceptance of ‘different narratives’ that transcend and challenge ethnic taboos; that is plural rather than single-identity; that is based upon the actual historical record rather than after the event collective and communal memories; and that fosters reconciliation rather than continued division”.

This lack of balance of legacy and justice at Queen’s University makes it essential that the Bill has more safeguards about academic diversity and fair funding—hence this amendment, which dovetails with others in the group that the noble Lords, Lord Godson and Lord Bew, have endorsed.

Northern Ireland Protocol Bill

Debate between Baroness Hoey and Lord Dodds of Duncairn

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Lord. I take the point that he made about Clause 22(6). As a Member of the Northern Ireland Assembly for many years, I know how much Members of the Assembly value their right to make laws in the areas that are devolved to it. However, I must say gently to your Lordships that, in recent times, there have been a number of examples of this House and the other place interfering in the devolved settlement in Northern Ireland. Although some of us have pointed that out, it has been with your Lordships’ positive assent and approval that the overriding of the devolved settlement in Northern Ireland has taken place in a number of areas. I would like to see a consistent approach to the devolved settlement in Northern Ireland, not this pick-and-choose approach where something being okay appears to depend on the issue of the day but, if you do not like what the Assembly has done, you can interfere—as seems to have happened on a number of recent occasions in this Parliament.

I want to highlight Clause 22(3). On the face of it, it appears—I am open to correction by those who are much more learned and have more legal expertise in these matters than me—to put some kind of restriction on the wide Henry VIII powers that are given under this particular clause. The one thing that it is apparently not possible for regulations under the Bill to do is

“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland which feature at the border … physical infrastructure (including border posts), or … checks and controls, which did not exist before exit day.”

Having listened to the debate, I think that may well be able to be swept aside at any point. However, why is emphasis put on the one thing that is mentioned? I look to the Government Front Bench as to why it is mentioned, given that it really has no effect. Of course, we do not want any extra infrastructure at the border between Northern Ireland and the Irish Republic and it has never been the desire or wish of anyone in the Northern Ireland political parties, or the Irish Government, the British Government or the EU, to have such infrastructure. But it would be quite helpful and an acknowledgement of unionist concerns if there were a similar provision which acknowledged—under strand 2, the north-south approach in the Belfast agreement and the importance of that relationship, but also strand 3, the east-west dimension—that regulations may not create or facilitate border arrangements between Northern Ireland and the rest of the United Kingdom.

[Baroness Hoey (Non-Afl)]

I am following the noble Lord closely on this point. Does he realise that today Maroš Šefčovič talked about the need for fewer border checks and, in fact, that they could be invisible on the Irish Sea border. Does the noble Lord agree that if they can be invisible on the Irish Sea border, they can be invisible at the frontier, where of course checks should happen between one country and another independent country?

[Lord Dodds of Duncairn (DUP)]

Of course. It appears that things may have moved on, because once all these ideas were dismissed as completely fanciful. Indeed, “unicorns” were brought into play and all sorts of dismissive language was used. I am glad that now there is at least an acknowledgement that some of these checks can be done in the way that the noble Baroness has described Maroš Šefčovič as talking about.

The important point here is that we have been told throughout the Brexit process that there cannot be a single check or single piece of infrastructure on the Irish border because otherwise that will lead to violence—it will be attacked and that will undermine the Belfast agreement—without anyone, hardly, making the obvious point that, if that is unacceptable north-south, then it is doubly unacceptable between Northern Ireland and the rest of the United Kingdom. What does that say to the unionist population?

One of the reasons we have the alienation of people in Northern Ireland is the one-sided approach and interpretation of the Belfast agreement. I would just like an explanation. Whatever its actual import or ability to be enforced, or the fact that it can be superseded by a ministerial direction, why do the Government highlight that issue and not the fact that the reason why we have such a problem in Northern Ireland with the political institutions is that we have this similar kind of infrastructure and checks between one part of the United Kingdom and the other?

On the point that has been raised very powerfully by noble Lords on the legal issue, I fully understand why they take the position they do and, as has been said, it has been raised in relation to other Bills and Acts. I would love to see the same outrage and anger expressed more widely; it may well have been during the passage of the then Bill, before my time in your Lordships’ House.

You can imagine therefore that if there is such outrage about powers being given by Parliament to the Executive and UK Ministers, how citizens of Northern Ireland—British citizens, fully part of the United Kingdom—feel about powers being not just taken from Parliament and given to Ministers but given to foreign officials of the European Commission to propose law. They are totally unaccountable to anyone in the United Kingdom. They do not have to answer to anyone or answer any questions. There is no parliamentary process whatever within the United Kingdom that can even challenge the directives and regulations that cover 300 areas of law affecting the economy of Northern Ireland. Therefore, while accepting entirely the points made about delegated legislation and Henry VIII powers, I would like to see reflected some of the same concerns about how we in Northern Ireland feel about the way that laws are now made by a foreign polity in its own interest. It is not in our interest; it is made in its own interest.

The Bill is part of an effort to try to remedy that problem. People have said we will have negotiations. But given that we have already had communicated to us that the EU is not open at this stage to changing the mandate of its main negotiator, certainly, how else are we going to get to a situation where that outrageous situation in Northern Ireland is remedied?

--- Later in debate ---

[Baroness Hoey (Non-Afl)]

My Lords, I want to make it very clear to the noble Lord, Lord Purvis, that I love listening to him speak and I have no aspersions against him whatever. I was just pleased that perhaps he felt that my amendment was worth considering enough to not contribute.

On this, I know it is extremely difficult for the Minister to do so, but could he give us some idea of how long he visualises—he is smiling, so I think he knows what I am going to ask—the negotiations going on before someone actually says that this is not going to work? One of the reasons I am very keen to get this Bill through as quickly as possible is so that we have it there as a safeguard. It would be helpful to know if there are any discussions going on behind the scenes on timing and just how long we can keep negotiating if we are not getting anywhere.

[Lord Dodds of Duncairn (DUP)]

My Lords, I commend the noble Lord, Lord Purvis of Tweed, because I think I heard him say earlier that he returned from Buenos Aires this morning and then went straight into this debate on the Northern Ireland protocol. It is very appropriate that he is the proposer of the last two amendments. I commend him on his stamina. I agree with the idea that regulations should be published as quickly as possible.

Subsidy Control Bill

Debate between Baroness Hoey and Lord Dodds of Duncairn

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.