Retained European Union Law

Debate between Baroness Ludford and Lord Frost
Thursday 16th December 2021

(6 months, 3 weeks ago)

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Baroness Ludford Portrait Baroness Ludford
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To ask the Minister of State at the Cabinet Office (Lord Frost), further to his Written Statement on 9 December (HLWS445), how Her Majesty’s Government will consult Parliament in their reviews of (1) the substance of retained European Union law, and (2) the status of retained European Union law in United Kingdom law.

Lord Frost Portrait The Minister of State, Cabinet Office (Lord Frost) (Con)
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My Lords, the Written Ministerial Statement referred to sets out full details of the two reviews of retained EU law. I and other responsible Ministers are of course ready to engage with Parliament in an appropriate way—for example, directly with this House, with interested Select Committees and with noble and learned Lords who have a particular interest in this question. Of course, we wish to establish proposals which are likely to be acceptable to the largest possible number of parliamentarians while achieving our policy aims.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, Parliament agreed with the Government that a snapshot of EU law at the point of exit should be onshored into UK law in the 2018 and 2020 withdrawal Acts. This was for the sake of continuity, certainty and stability for manufacturers and service providers, and thus the economy, throughout the UK, including Northern Ireland, beyond the protocol. A mere nine months on, the Minister expressed his desire—in what seems a highly ideological and unnecessary move when all the practical issues of financial services, Horizon, and so on are unresolved—not only to take a wrecking ball to the settlement but to do so in a way which takes back control for the Executive such as to represent, in the words of EU law expert Professor Catherine Barnard,

“a full takeover by Whitehall of Westminster”.

The announced intention is only to “incorporate Parliament’s views”, which is not good enough. I thus ask the Minister now for a commitment not only to involve Parliament fully in the review but then to make any changes via primary legislation and not Henry VIII powers.

Lord Frost Portrait Lord Frost (Con)
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My Lords, the noble Baroness is of course right in saying that retained EU law was brought on to our statute book for reasons of convenience and a smooth transition. It does not mean that it can never change; indeed, it must change, because that is how we get the benefits of reform and change after leaving the European Union. That is the process we intend to begin. As I have said before, I do not think that it makes sense for rules which never had proper scrutiny in this House to require full dress processes to remove them. The way they were incorporated was not normal in terms of parliamentary procedure, and therefore we should look at other ways of dealing with the consequences.

Retained EU Law

Debate between Baroness Ludford and Lord Frost
Thursday 18th November 2021

(7 months, 3 weeks ago)

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Baroness Ludford Portrait Baroness Ludford
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To ask Her Majesty’s Government, further to the Statement by the Minister of State at the Cabinet Office (Lord Frost) on 16 September (HL Deb, col 1533), whether the review of the substantive content of retained European Union law has commenced; and what engagement they are planning to undertake with stakeholders, including those in Northern Ireland.

Lord Frost Portrait The Minister of State, Cabinet Office (Lord Frost) (Con)
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My Lords, I have now launched two reviews: one into the substance of retained EU law and one into its status in law. As regards the substantive review, departments have been asked to review and map the content of retained EU law that falls within their responsibility in order to be clear where the heaviest concentrations are and what the effect is. Departments are responsible for consulting stakeholders as appropriate in order to complete this task, including, of course, those in Northern Ireland.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, the freezing of EU law in domestic law at the end of last year delivered legal certainty and stability, including for the position of Northern Ireland in relation to the EU single market. Will the Government take great care in unravelling that? How do they intend to implement any change to retained EU law? Will they commit to doing so through primary legislation only?

Lord Frost Portrait Lord Frost (Con)
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My Lords, as regards Northern Ireland, we will of course proceed with an eye on stability and with predictability, as we have made clear on many occasions. On retained EU law more broadly, I noted in my Statement on 16 September that many such laws had not been discussed or agreed to in this Parliament in any way during the course of our EU membership and any amendments to those laws in future would need to reflect that reality.

Protocol on Ireland/Northern Ireland: EU Proposals

Debate between Baroness Ludford and Lord Frost
Thursday 21st October 2021

(8 months, 2 weeks ago)

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Lord Frost Portrait Lord Frost (Con)
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My Lords, the protocol has always been a somewhat separable bit of the withdrawal agreement, in the sense that it was renegotiated after the first version of the withdrawal agreement was agreed back at the start of 2019. It is to some extent free-standing in that sense, so I do not think that opening it up should affect wider parts of the deal. It is a text that is there to deal with a very specific problem, and therefore we need to find the correct, very specific solution.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, the New York Times ran an interesting article a few days ago under the headline “Showdown Over Northern Ireland Has a Key Offstage Player: Biden”. It was clearly briefed by administration officials and said:

“In recent days, unprompted, Mr. Biden asked his staff for an update on the negotiations between Britain and the European Union over trade arrangements in Northern Ireland. He urged them to relay a message to the Johnson government that it should not do anything that would jeopardize the peace accord in the North”.


It also said that

“pressure from the American president may cause Mr. Johnson to think twice about provoking another destabilizing clash with Brussels.”

Does that pressure do so, or are this Government really going to antagonise what they love to describe as their closest ally?

Lord Frost Portrait Lord Frost (Con)
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My Lords, as a Government we obviously have our own dialogue with the US Government that does not depend on messages in the New York Times. I refer back to the statement made by the Prime Minister when he was in Washington last month, when he noted that he and President Biden were “completely at one” on the importance of protecting the Belfast/Good Friday agreement. We are completely at one on that subject.

Northern Ireland Protocol

Debate between Baroness Ludford and Lord Frost
Wednesday 13th October 2021

(8 months, 3 weeks ago)

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Baroness Ludford Portrait Baroness Ludford
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To ask Her Majesty’s Government, further to the speech made by Lord Frost on 12 October 2021, what plans they have to change the Northern Ireland Protocol.

Lord Frost Portrait The Minister of State, Cabinet Office (Lord Frost) (Con)
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My Lords, the objective of the Northern Ireland protocol was to support the Belfast/Good Friday agreement. It is now undermining it. I set out our proposals to change these arrangements to this House and in a Command Paper on 21 July. We expect written proposals from the Commission today in response to the current difficulties. I hope that we can resolve this situation by agreement but, if we are to do so, we will need to see significant change to the current arrangements.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I want to ask the Minister two questions. First, apart from with the DUP, what consultation have the Government undertaken in Northern Ireland to lead the Minister to threaten to breach the protocol? The chief executive of Manufacturing NI says that

“no one in business has raised the issue of the ECJ oversight as a problem … It is purely a political and sovereignty issue, and not a practical or business issue.”

Does ideology trump pragmatism and business in Northern Ireland?

Secondly, the Minister has trashed the political credibility of the Government and, indeed, its electoral legitimacy, given that the 2019 election was won on the basis of “Get Brexit done” triumphalism about the withdrawal agreement and the protocol. However, he is also trashing the UK’s international reputation. In the words of legal expert Professor Mark Elliott,

“the UK, if it wishes to be part of the rules-based international order, cannot pick and choose the international legal obligations that it honours”,

and to believe otherwise is “legally illiterate”. Does that bother the Minister?

Lord Frost Portrait Lord Frost (Con)
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My Lords, there is quite a lot in that question but I will try to deal with the two points. We talk to people of all opinions across the spectrum of political opinion in Northern Ireland. In doing so, I personally have heard quite a lot of concern about the imposition of European Union law in Northern Ireland without democratic consent; of course, the Court of Justice stands at the apex of that system.

On the second question, we set out our approach in the Command Paper. I do not think that there is much more to say. We have been clear that the threshold for using Article 16 has passed; Article 16 is a mechanism in the protocol whose use is legitimate if the circumstances require it. We would prefer to find a solution by consensus but Article 16 is there.

Northern Ireland Protocol

Debate between Baroness Ludford and Lord Frost
Wednesday 21st July 2021

(11 months, 3 weeks ago)

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Baroness Ludford Portrait Baroness Ludford (LD) [V]
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My Lords, this Government drove through the arrangement whereby Northern Ireland would have a different customs and regulatory status from that of Great Britain. The Prime Minister then claimed that this would not lead to controls on trade between Great Britain and Northern Ireland. That claim was not true. The Prime Minister and his colleagues, including the Minister, knew that the EU needed to protect its single market from unauthorised goods entering it through the back door, that this meant checks in the Irish Sea and that this was what they had agreed to. “Economy with the actualité” does not quite do justice to the deception that was perpetrated.

What the Prime Minister and his Government signed up to and their misinformation about it are the real source of the problems and tensions in Northern Ireland—not the EU, which has, true to form, been made a scapegoat. So, when the Minister repeatedly says in this House and elsewhere that the protocol is having a bad effect, we are entitled to ask: why did he promote it, then? The Government’s refusal to accept the consequences of their own actions and choices around the nature of Brexit is deeply unimpressive.

The Statement claims that the Government have

“tried to operate the protocol in good faith”—

but, sadly, that is not the case. The Government admit that they did not know

“what the real-world impacts on the ground would be”

of the protocol and that the problem is the way that it is currently operating. However, they either knew, as everyone else did, that this was indeed how it would operate, with Great Britain and Northern Ireland under different regulatory and customs regimes—in which case they are now being dishonest and disingenuous—or they did not, in which case they are incompetent. The answer is of course both. Mr Johnson, the noble Lord, Lord Frost, and their colleagues wanted a hard Brexit for Great Britain at any cost. The great god of sovereignty was their overlord, and no practical argument could be allowed to impede the achievement of that goal. In fact, the Tory Brexiters gave barely a thought to Northern Ireland, despite claiming to be fervent unionists.

The closer the level of alignment, the lower the lever of checks—hence, from these Benches, we have consistently urged that the best way to eliminate checks on food, agricultural products and animals was to reach a veterinary or SPS agreement with the EU. However, the Government have stubbornly put ideology before the needs of industry and consumers in refusing to take that level playing field step or any others. Instead, they simply throw their hands in the air and cry that the protocol is untenable and that it is up to the EU to show pragmatism and forgo most or all checks on goods going from Great Britain to Northern Ireland. You could not make this up. It is rich coming from a Government who have been thoroughly dogmatic, and it is a breath-taking passing of the buck. It would be gratifying if the Minister, just once, here and now, accepted that he and his colleagues must take full responsibility for where we and Northern Ireland are now.

So, while the Minister believes that the protocol

“must work in a different way if we are to find a stable route going forward”,

he now presents us with a set of proposals that have anything but stable and certain prospects, since they are an attempt to rewrite the protocol with an enhanced threat to trigger Article 16. The choice of confrontation and instability over real solutions, and pushing Article 16 as a potential remedy, are offering a populist, ineffective and false solution. No major business organisation in Northern Ireland or beyond is calling for Article 16 to be invoked, and, if it were, the EU would have the right to take its own rebalancing measures. It is thus not the silver bullet that its advocates think it is.

One of the new suggestions has been labelled an “honesty box” approach, whereby companies that said that their goods were destined only for sale and use in Northern Ireland should be exempted from checks on the Irish Sea border. The deep irony of this from a Government who have proved very far short of honesty and trustworthiness over the protocol does not escape us.

Unilateral action will see a reaction from the Biden Administration and will have consequences for UK-US relations. In view of the fact that the State Department has urged the UK to stay within “existing mechanisms”, since the protocol and the TCA

“protect the gains of the Belfast/Good Friday Agreement”,

how will the Government prevent harm to the transatlantic relationship that they claim to value so much? It is wholly counterproductive for the Government to engage in more brinkmanship and unilateral action, rather than working in partnership with the EU to address problems.

The real situation is that scope continues to exist to find mutually agreed flexibilities and mitigations, within the context of the protocol, consistent with the legal regimes of both the UK and the EU. In that context, can the Minister tell me what his reaction is to the proposal from the British former senior European Commission official, Sir Jonathan Faull, in yesterday’s Financial Times? The proposal is a development of proposals that he made two years ago and amounts to “mutual enforcement” or “dual autonomy”, protecting the integrity of both the UK’s and the EU’s internal markets and based on well-tested international trade practice. The UK would introduce, as a matter of domestic law, EU rules only for goods that are exported to the EU and vice versa, and national courts could be empowered to make references to the supreme court of the other party in case of doubt about interpretation.

As Sir Jonathan says, this idea “preserves” UK regulatory autonomy, with “compliance … a legal requirement” here and not an obligation imposed by a foreign power. It avoids the complexities of the TCA’s level playing field arrangements—so will the Government pick it up and run with it? After all, the EU hates it, so this Government must find it very attractive. Such a scheme would need mature and rational consideration in a climate of trust with the EU. What the Government are now doing is, sadly, the very opposite of that.

Lord Frost Portrait Lord Frost (Con)
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My Lords, I thank the noble Baronesses, Lady Chapman and Lady Ludford, for their comments. There is a lot there, and I will try to deal with them. I will begin by picking up the point that the noble Baroness, Lady Chapman, made at the start about respect for this House in terms of briefing. I reassure her and noble Lords that we have not engaged in any such briefing. It is necessary for Statements of this kind to engage in a certain limited amount of diplomatic contact beforehand.

Brexit Opportunities Unit

Debate between Baroness Ludford and Lord Frost
Monday 19th July 2021

(11 months, 3 weeks ago)

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Lord Frost Portrait Lord Frost (Con)
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My Lords, the noble Baroness is of course right to underline the importance of procurement reform for our objectives. We have made clear that we wish to take forward a procurement Bill, which will radically simplify the arrangements that we have inherited from the European Union. We are bound by the Agreement on Government Procurement at the WTO as well as any procurement arrangements in our free trade agreements; our procurement policies have to fit within all those agreements.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, it is surprising that the Government need not just a new director but a whole unit paid for and tasked with searching for Brexit opportunities. For the Minister and his like-minded colleagues, surely these opportunities are self-evident. Can he therefore list those Brexit opportunities for me now—specifically, not with some grandiose global Britain rhetoric—and say whether they are sufficient to outweigh the very specific Brexit losses, such as the difficulty of working in the EU, the hassle in exporting and importing, and the shortage of workers in a range of sectors?

Lord Frost Portrait Lord Frost (Con)
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My Lords, I am very happy to do so. For example, we have already brought in a new points-based immigration system. We have also brought in new arrangements to support our farmers, replacing the common agricultural policy. We are beginning to agree free trade agreements with a range of countries around the world. We have brought in a new global human rights sanctions regime, which has been used extensively. In the Queen’s Speech, we set out future opportunities, including the Subsidy Control Bill, a procurement Bill, the free ports programmes, the Professional Qualifications Bill and a planning Bill. The Chancellor has also set out our road map for future financial services; I could go on. There is a long list of opportunities that we will be able to take advantage of.

Trade Agreements

Debate between Baroness Ludford and Lord Frost
Thursday 15th July 2021

(11 months, 3 weeks ago)

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Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, when granting the data adequacy decision, the European Commission imposed a four-year sunset clause over fears of UK divergence from GDPR standards, especially in transfers of data to third countries. The Government are none the less forging ahead with international agreements on data transfers such as with the US, the trans-Pacific partnership and Asian countries. Their recent digital policy paper envisaged the Information Commissioner having a key role in communicating the benefits of data sharing—there was me thinking that the Information Commissioner’s role was to safeguard privacy rights. Have the Government done an assessment on the dangers that their data policies could pose to the adequacy decision?

Lord Frost Portrait Lord Frost (Con)
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My Lords, we are obviously very pleased that the EU granted us data adequacy last month. We think that that was the right thing to do and a correct reflection of the situation. The EU grants data adequacy to other countries around the world as well which do not operate identical or close analogues to the EU’s legislation. That does not prevent the grant of adequacy. We think that it is entirely consistent with security of data to look at our own ways of doing these things and that is exactly what we are reflecting on.

Protocol on Ireland/Northern Ireland

Debate between Baroness Ludford and Lord Frost
Thursday 24th June 2021

(1 year ago)

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Baroness Ludford Portrait Baroness Ludford (LD) [V]
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My Lords, the Minister may have seen that his colleague, the noble Lord, Lord Patten of Barnes, told the Irish Times that the UK Government should “tell the truth” and implement the “legally binding” Northern Ireland protocol, adding that

“the problem at heart is not the sausages you get from Sainsbury’s but the porkies that we all get, home and abroad, from Downing Street.”

Is it not the case that honesty from the Government about what they have negotiated, signed and ratified would be a good start in finding that durable and pragmatic solution to which the Minister just referred, with maximum flexibility?

Lord Frost Portrait Lord Frost (Con)
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My Lords, I have the highest respect for the expertise of my noble friend Lord Patten on Northern Ireland. I read his speech in full this morning; it is extremely interesting. I note that he urges the European Union to show flexibility in some areas, for example areas where we have pressed for flexibility such as the trusted trader scheme and pharmaceuticals. I do not believe that the conclusions he draws from the Brexit process, as it affects Northern Ireland, are correct. It is important that all those commenting on the situation in Northern Ireland show responsibility in the way they do so. If I may say so, the tone of some of his comments in that speech was not entirely consistent with that.

UK-EU Trade and Co-operation Agreement: Regions and Industrial Sectors

Debate between Baroness Ludford and Lord Frost
Thursday 27th May 2021

(1 year, 1 month ago)

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Lord Frost Portrait Lord Frost (Con)
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My Lords, I looked at the CER report with a lot of interest. It is one in a series of reports that has, I think, been subject to some methodological debate, at least. I am not sure I personally think it entirely valid to set up a kind of mock economy based on other parallel economies and draw conclusions from that, which I understand to be the methodology. I do not think we dispute that there have been changes in trade patterns in recent months, but as the ONS said in its report published on Tuesday:

“It is difficult to fully detangle the impact the coronavirus and EU exit had on UK and international trade while they are still having an influence.”


That remains the case.

Baroness Ludford Portrait Baroness Ludford (LD) [V]
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Can the Minister include, in any assessments he can be persuaded to carry out, the loss of EU nationals in sectors such as horticulture and social care? It is reported that workers may be brought in from Belarus and Russia to pick our fruit and veg, in replacement for EU nationals. Can he rule that out? Do the Government not think it better to invite some of the EU nationals back to help us in those sectors, rather than let them be detained and deported when they come for a job interview, as permitted under the Immigration Rules?

Lord Frost Portrait Lord Frost (Con)
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My Lords, one of the great benefits of ceasing to be a member of the European Union was that we could establish our own immigration system, and indeed we have done so, on the basis of the points-based system that has been extensively discussed and implemented. The advantage of that is that it gives us control of who we wish to let enter the country, either temporarily or permanently. Obviously, when we make that assessment we look at the industries, the economics and the broader situation. We will continue to do so when we make those judgments.

UK-EU Trade and Co-operation Agreement

Debate between Baroness Ludford and Lord Frost
Thursday 29th April 2021

(1 year, 2 months ago)

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Lord Frost Portrait Lord Frost (Con)
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My Lords, the Government are hugely supportive of our world-class creative industries, which contribute so much to the economy and to our national life. We put forward in the negotiation ambitious solutions to the issues that they faced. Unfortunately, the EU was not willing to reach agreement on them. We are now working energetically to see if we can work with our European friends bilaterally, with the aim of reducing the most difficult barriers to travel.

Baroness Ludford Portrait Baroness Ludford (LD) [V]
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My Lords, will the Government share and discuss with parliamentarians in both Houses their plans, priorities and timetable for widening and deepening co-operation with the EU, whether on matters including mobility for professionals such as musicians—as has been mentioned—co-ordination on foreign policy issues, or easing red tape on food and seafood exports, as requested in a report today from the Environment, Food and Rural Affairs Committee in the other place?

Lord Frost Portrait Lord Frost (Con)
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My Lords, it is inevitable that there will be quite a large number of issues to be dealt with as a result of the new relationship between us and the European Union. The noble Baroness lists some of them. We will, of course, seek to deal with some of those issues in the Partnership Council as we go forward. We raised many of them during the negotiations but it was not possible to reach agreement.

Northern Ireland and Great Britain: Trade

Debate between Baroness Ludford and Lord Frost
Thursday 25th March 2021

(1 year, 3 months ago)

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Lord Frost Portrait Lord Frost (Con)
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My Lords, the noble Lord is correct in the implication of his question: that the protocol must be implemented in a way which protects the Belfast/Good Friday agreement in all its dimensions, east-west as well as north-south. On the question of a SPS or veterinary agreement, we proposed in the TCA negotiations last year that there could be an equivalence arrangement between us and the EU. Unfortunately, the EU was not open to that. We continue to be open to such an equivalence arrangement, if the EU is interested in it.

Baroness Ludford Portrait Baroness Ludford (LD) [V]
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My Lords, I too want to press on the issue of an SPS agreement. It is not only that a lot of the problems of deliveries from Great Britain to Northern Ireland concern foodstuffs and plants; exports of products such as shellfish and Scottish salmon from Great Britain to the EU have been massively hit by Brexit red tape. The noble Lord, Lord Mandelson, asked the Minister specifically whether there was any downside to an SPS agreement. He did not answer that question, so why are the Government not seeking a veterinary so-called SPS agreement?

Lord Frost Portrait Lord Frost (Con)
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My Lords, the downside to a Swiss-style SPS or veterinary agreement is that it would require our food and drink sector to accept not laws that were made in this country but the laws of the European Union. As far as this Government are concerned, that is quite a considerable downside to such an agreement. It is why we cannot accept one that is based on dynamic alignment.

UK-EU Trade

Debate between Baroness Ludford and Lord Frost
Thursday 18th March 2021

(1 year, 3 months ago)

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Lord Frost Portrait Lord Frost (Con)
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My Lords, as I say, it is too early to draw conclusions from any figures in January; there are too many other factors influencing the economic situation. We have always made clear and are assiduously implementing our plans to get businesses the support they need to manage the changes to our trading relationship with the EU. There is a new Brexit support fund and a Brexit business taskforce. We are supporting the fisheries industries and many others through the initial difficulties of the change in relationship.

Baroness Ludford Portrait Baroness Ludford (LD) [V]
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My Lords, rather than trying to deny the reality of the massive drop in exports to the EU, the Government need to address how practical improvements can be made regarding Brexit red tape. So far, their approach to solving border problems is simply to refuse to apply the rules that they agreed to. How will the Government establish trust and a good relationship with Brussels and member states that are essential to getting those improvements to help business and consumers?

Lord Frost Portrait Lord Frost (Con)
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My Lords, of course we seek a constructive relationship with our European friends in all areas relating to the trade and co-operation agreement, and we look to build a friendly relationship between sovereign equals. That is what we intend to do. That is what we are working towards. We are acting constructively when we can, but we are standing up for our interests when we must.