Northern Ireland Protocol Bill

Baroness Ludford Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

I shall speak very briefly because this amendment gives rise to many of the same debates that we have already had this evening. We have tabled Amendments 12 and 15, which would prevent

“the delegated powers in Clause 9 from being used unless a draft of the instrument, a report of a relevant consultation exercise, and an appropriate economic impact assessment have been laid before Parliament.”

The Government say that Clause 9 is needed because the policy is not yet developed. We are worried about this, so these amendments would act as a safeguard by preventing the power being used unless the conditions in the amendment are met. We think Northern Ireland businesses would be better served if our amendment were to be accepted, notwithstanding all our previous comments on our approach to the Bill more generally. Businesses were telling us—I am sure other noble Lords have heard the same—that they want and need stability, predictability and security. I do not think this will be delivered by the Bill; it comes only through negotiation. We must amend the Bill; it is what we are here to do this evening. We have made this suggestion because we think it would be particularly helpful to the business community to have more of a say and to get more clarity from the Government on what they might intend to do.

[Baroness Ludford (LD)]

My Lords, I support these two amendments, but they are not even contesting the making of regulations or asking for substance or content; they just require a process for making the regulations. As my noble friend Lord Purvis said in the debate on the previous group, there is nothing in the Bill on consultation. Assuming that Clause 9 remains—which we hope it does not—this amendment is trying to put some meat on the bones that should probably already exist. The Government said in the delegated powers memorandum that the regulations under this clause would

“need to reflect the results of consultation with businesses”.

The problem is that this clause provides for no such consultation. Our Delegated Powers Committee commented:

“This is the frankest admission by the Government that policy is so embryonic that it has not yet been consulted on.”


The committee’s comment on Clause 5 is also pertinent and relevant:

“Ministers are said to need flexibility, but the reality is that policy has not yet been formulated … the Government could have formulated their policy, consulted on it, refined it (if necessary) and then brought forward legislation with the details filled in. This would have facilitated meaningful parliamentary debate.”


Yet, the Delegated Powers Committee went on,

“Parliament is being presented with a major Bill on the subject. Legislation has preceded policy development rather than vice versa”.

I think I may be repeating what my noble friend has already quoted.

Amendment 15 therefore contains reasonable and sensible conditions for a draft of any proposed SI—for a report on consultations with business and an economic assessment to be laid. I suggest that the Government will, or ought to, have some difficulty in finding arguments to resist these amendments.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I want to bring the focus back to Article 2. The noble Lord, Lord Bew, said that this Bill is modest but the problem is that the law of unintended consequences could come into play here.

My noble friend Lord Purvis of Tweed coined the phrase “Rumsfeld clauses”. I do not want to detract from his trademark on that phrase—he will kill me—but, as concerns Article 2, the Bill shows some evidence of having been written on the back of an envelope. Concerns about human rights and equality have been at the heart of the conflict in Northern Ireland, so those concerns were central to the Good Friday agreement.

Thus Article 2 of the protocol, ensuring a non-diminution of the wide range of rights set out in the Good Friday agreement, is a key clause. However, there are worrying implications of the Bill for human rights and equality protections, which are in danger of being overlooked. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland point out that the Explanatory Notes to the Bill make no reference to any consideration having been given to compliance with Article 2 of the protocol. Those two commissions have previously recommended that this should be the case regarding all relevant legislation. I understand that the Leader of the House of Commons, the right honourable Penny Mordaunt, is talking about draft guidance to Bill teams on this matter. This is in response to concerns that have been raised for quite a few months now by various committees, such as the Northern Ireland Affairs Committee and Women and Equalities Committee in the other place, the Joint Committee on Human Rights, on which I have the pleasure to sit, and our own Northern Ireland Protocol Sub-Committee. They have all raised concerns about compliance with Article 2 of the protocol.

The Government gave assurances about their commitment to Article 2, and it is true that this article gets a degree of protection under the Bill; for instance, that Clause 15 does not permit Ministers to make regulations defining Article 2 among “excluded provisions”. However, even Clause 15 needs completion, as the noble Baroness, Lady Ritchie, pointed out. The logic of protection of Article 2 is far from fully reflected in other clauses of the Bill. Hence these amendments—and I support all those tabled by the noble Baroness, Lady Ritchie, not just the two I have co-signed—propose a strengthening of Clauses 9, 10, 13 to 15 and 20.

This Government do not like the European Court of Justice, but its role is essential at various points in relation to Article 2. That article includes a commitment to keep pace with EU laws, as the noble Baroness pointed out, with EU law developments falling within the scope of the six equality directives listed in Annexe 1 to the protocol. As these directives are updated or replaced under the normal process of EU legislation, the UK Government are committed to ensuring that domestic legislation in Northern Ireland reflects any substantive enhancements in relevant protections. There are also other relevant EU laws beyond the six equality directives that underpin rights in the Good Friday agreement, such as the victims’ directive, the parental leave directive, and the pregnant workers’ directive.

The Government are committed to ensuring that there will be no diminution of protections as contained in relevant EU law on 31 December 2020. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have acquired additional powers to oversee the Government’s commitment under Article 2. However, it is essential that Clause 20, which removes the binding nature of judgments of the European Court of Justice, is amended to ensure that the dynamic alignments—the keeping pace—guaranteed under the protocol for citizens’ rights in Northern Ireland can be delivered. The same applies to Clause 13.

The UK-EU joint committee supervises the implementation of the withdrawal agreement, but where there is a dispute regarding the interpretation of EU law which the joint committee or the arbitration panel cannot resolve, then under Article 174 of the withdrawal agreement, the ECJ must be asked to give a binding interpretation. This needs to be recognised and incorporated in Clause 13.

I mentioned Clause 15. The remaining problem there is that it does not prevent Article 14(c) of the protocol, which provides for the UK-EU specialised committee to consider matters brought to its attention by the two commissions in Northern Ireland—human rights and equalities—from becoming excluded provision by sort of oversight. The same applies to the lack of protection of the protocol’s Article 15, which provides for a joint consultative working group on the effective operation of Article 2.

The other amendments in this group raise similar and related issues. For reasons of time, I will not dwell on them. I am sure that noble Lords get the drift. One is left to conclude that there was either a lack of thorough preparation on the Bill—hence my quip about the back of an envelope—or a disturbingly cavalier disregard for Article 2 of the protocol. I am not sure which is worse. Neither is excusable, but I hope the Minister can tell me that the Government will take away especially all those excellent, very dense and precise questions raised by the noble Baroness, Lady Ritchie. Quite honestly, what is in the Bill at the moment is not remotely satisfactory to honour and safeguard Article 2 of the protocol.

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

“The United Kingdom shall ensure no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.

Northern Ireland

Baroness Ludford Excerpts

Monday 7th February 2022 Lords Chamber

[Lord Caine (Con)]

My Lords, the noble Lord, Lord McCrea, raises a number of very important points, many of which are subject to a legal case currently before the Court of Appeal in Belfast, so it would not be appropriate for me to comment in detail on a number of his points. He referred to Northern Ireland’s position within the United Kingdom. Northern Ireland is very much a part of the United Kingdom, something which this Government strongly support and I personally passionately support.

[Baroness Ludford (LD)]

My Lords, when will the Government prioritise getting a so-called SPS or veterinary agreement, which would remove a lot of the checks on food and agricultural products crossing from Great Britain into Northern Ireland? Are they not doing so because they want to keep open the option of allowing hormone-treated beef and chlorine-washed chickens into this country?

European Union (Withdrawal Agreement) Bill

Baroness Ludford Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Barwell (Con)]

My Lords, I had not planned to take part in this debate, but I wish to make three brief points. First, in response to my noble friend Lord Bowness, it is very clear what the Government seek to negotiate in this next phase of the negotiations; it is set out in the political declaration. For example, in relation to level playing field provisions, the political declaration goes into quite some detail about the kinds of level playing field provisions that will be required as part of the future trading relationship.

Where I certainly have sympathy with the proposers of this amendment is that, of course, it is important that Parliament has the ability to hold the Government to account as these negotiations progress, but there is no doubt at all in the other place that that will happen. If the Government do not voluntarily come forward after major moments in the negotiating process and offer a Statement, I suspect the Speaker in the other place will grant Urgent Questions; there will be accountability.

The arguments about setting out in detail the negotiating objectives in public and having them approved by Parliament are balanced on either side. There is a case to be made that getting broad-based parliamentary support for certain negotiating positions, beyond just the Government’s majority in the other place, may strengthen the hands of Ministers in those negotiations. It is certainly my experience that the Article 50 team on behalf of the European Union often referred to the fact that the European Council had endorsed the negotiating mandate it was pursuing, and that therefore its room for manoeuvre was limited. On the other hand—I think my noble friend Lord Bridges alluded to this—if at the outset both sides set out in detail what their positions are and there is no common ground, there is a danger of driving these negotiations into a bad place. Indeed, in my maiden speech in this place last week, my one lesson to the European Union from what happened in the first phase of these negotiations was that, while it may feel tempted to repeat the trick —it may feel that it worked well to set out its negotiating position in detail and that it got most of what it wanted —if it repeats that trick this time and in February publishes a detailed negotiating mandate that rules out lots of the options, there is a real danger that any possibility of a compromise will be eliminated.

[Baroness Ludford (LD)]

The noble Lord talked first about the amendment requiring Parliament to approve the negotiating objectives. I think that has changed; it is not in the current version at this stage but was in the Committee stage version.

Secondly, he said it is very clear what the objectives are because the political declaration sets out the level playing field provisions. The problem is that the Chancellor, in a very prominent interview at the weekend, completely threw that aside and said we will not have any level playing field provisions or converge at all; we will completely diverge. So what is the Government’s position? Is it what is in the political declaration or what the Chancellor has said? Surely the noble Lord can understand the puzzlement, the bewilderment—I am sure it shared by some on his Benches—as to what the Government’s policy is. This is why we want to see the colour of their money. What are the negotiating objectives? Are they what is in the political declaration or what the Chancellor is saying in an interview to the FT?

[Lord Barwell]

It is not for me to speak for the Government, not least because I do not sit on the Government Front Bench. Indeed, noble Lords who have followed the debate closely will know that I do not entirely agree with the position that the Chancellor set out; the previous Government believed that there was a case for aligning with certain EU rules and regulations. But, having said those things, I do not think that the Chancellor of the Exchequer has done what the noble Baroness suggests. If one looks at the slides that the European Commission has published on the level playing field, one will see that, on the vast majority of issues, it is not suggesting that dynamic alignment is required; it is effectively asking for non-regression from existing commitments. There are some areas where there may well be a problem in the negotiation, particularly state aid—I read what it has said as looking for an ongoing commitment to align with EU state aid rules—but I certainly do not think the Chancellor has gone as far as the noble Baroness suggests.

I was interested in remarks that several of your Lordships made: the Chancellor’s comments to the FT came as no surprise to me at all. That has been the clear policy of this Government from the point at which they were formed.

Brexit: UK-Irish Relations

Baroness Ludford Excerpts

Tuesday 5th September 2017 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I join other noble Lords in thanking the noble Lord, Lord Jay, for leading this important debate and in wishing the noble Lord, Lord Boswell, a speedy recovery. Like many people in Britain, I have a part-Irish heritage. I have not yet pursued an application for an Irish passport, to which I believe my mother’s birth in Dublin in principle entitles me, but I have not ruled it out. Therefore, even for me, let alone for people in Ireland and Northern Ireland, there is a personal dimension to the sundering of our common membership of the EU. That common membership reflected at a political level the cultural and personal family links that we in these islands enjoy.

The Government’s position paper rightly says that issues of identity go to the heart of divisions in Northern Ireland but, as the report points out, the loss of EU membership undermines the sense of an all-Ireland identity. It also undermines the enjoyment of multiple identities by many British and/or Irish and/or European people that many of us have been enabled to hold. As the noble Lord, Lord Bew, said, Brexit is indisputably disruptive for the island of Ireland. Indeed, it is arguably the most disruptive consequence of Brexit and, as other noble Lords have observed, it was shockingly neglected in the referendum. As the noble Lord, Lord Hannay, said, we are at best engaged in a damage limitation exercise. The advantage of shared EU engagement has been to allow a certain blurring of identities and allegiances in the supportive framework of a bigger European whole. It undoubtedly facilitated the Good Friday agreement, as the noble Lord, Lord Dubs, said, and it helped to achieve that delicate equilibrium, in the words of the noble Lord, Lord Jay. The noble Baroness, Lady O’Loan, spoke movingly of the achievement of peace and of the continuing divisions in Northern Ireland.

When I first went to work in Brussels 40 years ago this month as a stagiere in the jargon—an intern—I had a lot of Irish friends, and there was sometimes a slightly chippy, although cheerful, attitude to Brits. The ensuing decades have enabled the relationship to relax and mature so that, as the outgoing Irish ambassador Dan Mulhall said, it is the best ever. I was puzzled by the confirmation by the noble Lord, Lord Kilclooney, of something that my noble friend Lady Suttie mentioned: that some people are seriously suggesting that Ireland should follow the UK in exiting the EU. I find that really quite arrogant as well as totally unrealistic. The Republic of Ireland no longer clings to the UK’s coat-tails, and the idea suggested by the noble Lord, Lord Empey, of a customs union between the UK and Ireland suffers from the same delusion that Ireland wants to sever itself from the EU. As the noble Baroness, Lady Armstrong, said, the UK does itself no favours by failing to recognise and respect the integrity of the EU.

There are many cart-and-horse problems on the movement of people and goods. For instance, the Government want an agreement on protecting and upholding the common travel area to be concluded at an early stage, while wider questions on the future operation of UK border and immigration controls on EEA nationals can be addressed only as part of the future relationship, and indeed once UK immigration policy, on which the Guardian appears to have obtained a leaked document today, is settled—so which comes first, the cart or the horse? As the noble Lord, Lord Kerr, said, that issue is probably more soluble than the movement of goods.

The Government want to avoid a hard border, as we all do, but their dogmatic insistence on ruling out the customs union and the single market in the long term means that proposals that could charitably be described as innovative, less charitably as fantasy or pie in the sky, and by the Secretary of State himself—as we have had occasion to observe already today—as “blue-sky thinking” show no practical reality. As the noble Lord, Lord Hain, said, they were “breathtakingly short” on detail. My noble friend Lady Suttie said there is a lot of “wishful thinking” and “crossed” fingers. We are no more enlightened, nine months after the report, on the concrete solution on the free movement of goods outside the customs union and the single market.

The Government expect, in regard to goods,

“waivers from security and safety declarations, and ensuring there is no requirement for product standards checks or intellectual property rights checks at the border”.

I have not worked out how that is meant to work outside a single market. The Government propose regulatory equivalence in the agri-food area and cite the Swiss example. But my understanding is that Switzerland simply adopts and applies the EU sanitary and phytosanitary regime. That would mean, presumably, having to keep up with it as it evolves, not statically adopting it on day one. Is that what the Government intend to do?

As the noble Lord, Lord Hannay, stressed, continued access to justice and home affairs co-operation, such as through the EU databases—the SIS II database particularly—and the ability to make use of the European arrest warrant, is vital to avoid undermining the fight against terrorism and crime. How will the Government avoid going back to government decisions as opposed to judicial decisions on extradition, which caused so many problems in the past? I think everyone has been glad it is judges who decide these things—it takes a lot of heat out of the situation. How are we going to manage in that area?

To conclude, all speakers in this debate—I am no exception—want to avoid rolling the clock back in Ireland. But the Government have so far not adequately supplied answers to how that can be done, certainly outside the customs union and the single market.