European Union (Withdrawal) Bill

Baroness O'Loan Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I will speak on two issues. The first is the Secondary Legislation Scrutiny Committee, to which I belong, and the second is Northern Ireland. The Minister referred in her opening remarks to the Secondary Legislation Scrutiny Committee and to the question of the additional scrutiny that will be the responsibility of the committee. We stand ready to serve and we are reassured by the statements about enhanced membership and resources for the committee. But I cannot help wondering from whence the Government found the figure of 800 to 1,000 measures that will be necessary to deal with the fallout from withdrawal. If I look at the number of areas of intersection between EU law and UK law, I cannot believe that it will be dealt with as quickly as that. Will the Minister explain why the Government say that there will be only about 1,000 instruments? Are they sure—or even fairly sure? Can we really plan this very important work on that basis?

On Northern Ireland, we have heard at length from noble Lords from all the devolved Administrations who expressed their concern about the effect of the Bill, which is the biggest framework Bill that I have ever seen in terms of the magnitude of the instruments with which it deals. It attempts to provide mechanisms for dealing with situations that we are not yet capable of analysing with any degree of accuracy. Other noble Lords have quoted the Constitution Committee’s description of the situation as “uncharted territory”. It is particularly uncharted for Northern Ireland as we contemplate the range of policy areas and powers returning from the EU that intersect with the devolution settlement in Northern Ireland—some 141 of them, ranging from agriculture to animal welfare to consumer law, in itself a massive area, company law, environmental law, forestry, healthcare, transport procurement and so on. All these areas of law have evolved through Europe. Under the Bill they will be effectively frozen as retained European law.

Currently, devolved institutions are prevented from legislating or otherwise acting in a way that is incompatible with EU law. For the purposes of Northern Ireland, this Bill will change the law so that:

“The Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law”.


The Government have stated that powers to legislate will then be released in the manner described in the Bill. Some of these areas of activity devolved under the Welsh, Scottish and Northern Irish arrangements, such as agriculture, are governed by common frameworks, and the Government are concerned to ensure that there will continue to exist a common UK framework once the EU framework ceases to be binding.

The Government therefore propose, as the Minister for the Cabinet Office David Lidington explained at Report in the other place, that direct EU legislation that applies uniformly across the UK will be corrected, at UK level in the first instance, to avoid the risk of early unhelpful divergence in areas where it may ultimately be determined that a common approach should apply. In these areas the Bill will prevent the devolved Assemblies from legislating on matters until they are released to do so by the Government. At Third Reading in the other place, the Secretary of State said that the Government had intensified their discussions with the devolved institutions and reiterated the Government’s intention to bring forward amendments in your Lordships’ House.

The excellent briefing provided by the House Library researchers contains little reference to these issues as they affect Northern Ireland, while reporting at length on the various views expressed by the Welsh Assembly and the Scottish Parliament. That is because no views have been expressed from Northern Ireland. There can be no discussion with Northern Irish legislators because we do not have any. We have not had any for over a year. There was nobody with whom to discuss these issues since we do not have a functioning Executive and civil servants cannot act politically as Governments can. Northern Ireland has been unrepresented in effect.

Both the Welsh and Scottish Governments have expressed their total rejection of Clause 11 as drafted and called for an amended Clause 11. Both legislatures are up in arms about what is described as a “power grab” by Westminster. Through this Bill the Government will effectively be taking back powers which had previously been devolved, albeit possibly temporarily. My question is how the interests of the people of Northern Ireland, predominantly agricultural and agrifood-related, will be protected.

We have been assured that there will be no hard border. InterTradeIreland estimates that some 177,000 lorries and 250,000 vans cross the border every month for trade purposes. That is a lot of trade, carried on in 90% of cases from Northern Ireland by small companies with fewer than 50 employees. They are very vulnerable to the uncertainties of this frictionless border of which we have been assured. They are even more vulnerable to the time that may be required to make everything work after withdrawal.

I used to teach European Union commercial law and I do not understand how we can have regulatory alignment with Ireland without being regulated exactly as we are currently under EU customs law and the single market rules. If we are to be regulated in that way, effectively we must be part of the customs union and the single market. We cannot have different rules and be in regulatory alignment.

Ireland is Northern Ireland’s largest trading partner, accounting for nearly 30% of its trade in goods. It is much more complicated than that, though. Goods are produced in part on one side of the border, with further activity on the other side of the border. How many of you have drunk Baileys or bought a bottle? It is produced in Dublin, bottled about 20 miles from where I live in the north, in Mallusk, re-exported to Ireland and then exported from Dublin. During peak production up to 500,000 bottles a day are produced, according to Diageo. What happens if crossing the border becomes an issue—if duties become a problem?

The sensitivities, and the risks of the uncomfortable situation in which we have no legislature and no voice, have been recognised by the EU 27 and by the Government. Assurances have been given that we will be protected, but it is surely inevitable that the UK Government will legislate for the greater good of the UK, as opposed to that of Northern Ireland alone or Northern Ireland in its trading relationships with Ireland, with inevitable consequences. My question to the Minister is: what steps will be taken to deal with this lacuna? How will the interests of the people be taken into account when there is neither devolved government nor direct rule? When will the discussions promised in the other place take place and when will we receive the Government’s proposed amendments?