Northern Ireland Protocol

Debate between Lord Bruce of Bennachie and Baroness Hayter of Kentish Town

Thursday 21st May 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I start by making one correction to what the Minister said yesterday. His allegation was that I was

“always critical of the role of Mr David Frost”.—[Official Report, 20/5/20; col. 1182.]

I was critical of the apparent lack of ministerial sign-off on major statements; of a key letter being signed by a “Sherpa”—as he calls himself—rather than by a Minister; and of the inability of parliamentarians to question our EU negotiator.

Today’s Statement, by contrast, is the long-awaited admission by Ministers that the Northern Ireland arrangements will indeed involve border checks between Great Britain and Northern Ireland, with additional checks, declarations on goods moving from Great Britain into Northern Ireland, and tariffs on goods at risk of entering the EU single market.

Nevertheless, the Command Paper leaves many questions unanswered. We had thought that the EU was expecting the UK to levy duties on all goods going to Northern Ireland, unless it could be established that they were not at risk, with the 70% on goods staying in Northern Ireland then being reclaimed. Can the Minister tell the House whether the EU now accepts the approach in the Government’s paper, that duties would be levied only on goods which pose a “clear and substantial risk” of entering the single market? Can he also explain how

“goods at risk of entering the EU’s Single Market”

will be decided? Perhaps he can reassure us that the paper’s promise to

“produce full guidance to business and third parties before the end of the transition period”

is simply a typo, and that such guidance will be available in time to become operational by 1 January?

With goods from Northern Ireland to Great Britain, the paper implies a very light touch. However, Welsh ports will be required to have additional infrastructure to make customs and regulatory checks—some “expansion” of infrastructure, in the words of the Statement—but without proper consultation with Wales, and perhaps not with Scotland, about arrangements which would need to be in operation by the end of the year.

Can the Minister also explain how, in practice, there will not be significant flows of goods from the EU single market into Great Britain through the backdoor of Northern Ireland, especially if, under either a deal or no deal, there are tariffs on goods coming from the EU into Great Britain—such as from France and Benelux —but not from Northern Ireland to Great Britain?

Talk, of course, in the paper of “light-touch” checks and the “latest technology”, neither of which exist other than on paper, naturally raises concerns. After all, we do not seem to have been able to create a rather simple track-and-trace app after 10 weeks of the virus, while “light-touch” seems to include an export summary declaration, with 45 entries for every consignment. Therefore, can the Minister outline what discussions have been held with importers and exporters, and tell us what confidence he has that business, and government checkers, will be ready for this in time?

Turning to how the Command Paper was drafted, we have been given to understand that the Northern Ireland Executive were not involved in its preparation. Is that the case? The other devolved authorities were similarly excluded, despite the impact on their ports and points of arrival, and on their hopes for an internal single UK market. As the Minister knows, we do not have a Welsh, Scottish or Northern Ireland Minister in this House. Does that reflect the low priority given to these areas, even as major policy decisions affecting them greatly are being taken? The absence of territorial Ministers in our House certainly makes scrutiny of their departments somewhat more challenging, even if today’s Statement clearly falls to the Cabinet Office.

For all the effects of Brexit, Ireland is surely the most sensitive and most important issue, not simply for trade but for how the people of Northern Ireland feel about themselves and for the vital importance of retaining all the benefits of the Good Friday agreement. On this, I am sure, the Minister and I will be in total agreement. Therefore, my plea today is for Ministers to talk more to politicians and businesses, and indeed to civil society in Northern Ireland, as well as in Scotland and Wales, to ensure that all parties have confidence in how we move forward with the protocol.

[Lord Bruce of Bennachie (LD)]

My Lords, given the duplicity of the Government, the Northern Ireland protocol has all the semblance of damaged goods. In particular, the repeated denial that it would involve the need for any new UK customs declaration or checks is revealed as the hollow sham that it always was.

In his Statement yesterday, Michael Gove tried to play this down, but the White Paper cannot be gainsaid. It says that

“there will be some limited additional process on goods arriving in Northern Ireland ... There will be no new physical customs infrastructure ... We will however expand some existing entry points for agrifood goods to provide for proportionate additional controls.”

It also says in relation to

“Belfast Port, Belfast International Airport, Belfast City Airport and Warrenpoint Port”

that:

“Expanded infrastructure will be needed at some of these sites for the purpose of agri-food checks and assurance ... we expect to request additional categories of commodities at Belfast Port, and to designate Larne Port for live animal imports ... further designations may also be required at other existing sites.”


This is a clear change of a radical nature. What costs and delays does the Minister expect it to cause? It cannot be done without time being taken to deal with these matters.

The Government choose to refer to the withdrawal agreement as a “deal” when it is no such thing; it is an agreement on the terms of withdrawal. When it suits, they choose to rely on the political declaration, although this is only a declaration of intent and needs to be judged against the backdrop of the Government preparing for a no-deal Brexit and, frankly, blaming the EU for it.

The Government also seek to present the protocol as temporary, dependent only on a vote of the Northern Ireland elected representatives to abandon it after 2024. In reality, it puts Northern Ireland in the unique position of effectively remaining in the EU single market and the UK customs union—a privilege which many businesses in Great Britain would no doubt love to have. Again, the Government seek to downplay the importance of cross-border trade to the Province, yet it is worth over £5 billion and for some businesses may be their chief revenue and profit earner.

If they import components from the UK and process them before exporting to the Republic, they will be liable to tariffs. This will present them with a clear difficulty. It will involve extra bureaucracy and require them to fill out import and export forms and train and possibly recruit extra staff and maybe use agents. All this will add substantial costs. The White Paper says that HMRC will provide help and guidance to businesses, but this is to help deal with a situation they currently do not face. This will come at a cost, so will the Government cover that cost?

The Government make great play of the benefit of lower tariffs that they hope to negotiate at some unspecified future date. Of course, while I appreciate the benefits of free trade, if this comes at the expense of tariff barriers with the EU, the net benefit may be at best limited and possibly negative. It may also be that we accept imported goods of lower standards, such as food products from the United States. This could compromise domestic producers in Northern Ireland. It is not a one-way street.

Depending on what agreement is reached with the EU, the dynamics of trade between the Republic, Northern Ireland and Great Britain could change. This would make issues of customs controls much more live. An incentive for Northern Ireland to become the bridge between the EU single market and the rest of the UK would clearly require more transparent customs controls, especially if there were divergence on tariffs and regulations.

The Government’s refusal in this context to consider an EU presence in Belfast raises questions of trust. Trust will be achieved if there is a comprehensive and mutually beneficial free trade deal. If there is a hard or no-deal Brexit, it is hardly surprising that the EU and the UK will look at each other with suspicion. There are many more questions than answers from this White Paper. As it stands, it does little to build trust with either the EU, the Republic or the business community of Northern Ireland. I hope the Minister can reassure all those bodies that it is being pursued in good faith and is entirely consistent with both the spirit and the letter of the agreement the Government signed with the EU.

European Union (Withdrawal Agreement) Bill

Debate between Lord Bruce of Bennachie and Baroness Hayter of Kentish Town

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

The intention behind this amendment is to provide a key reassurance to Scotland and Wales. As we know, Clause 38 as it stands is pretty meaningless. As we said in Committee, it was added basically as a sop to the European Reform Group. However, as the Explanatory Notes make clear, the clause makes no material difference to the scope of Parliament’s powers.

The problem with it is more what it does not say in that it fails to refer to the Sewel convention—the convention that the UK Parliament will not normally use its powers to legislate on devolved matters without the agreement of the National Assembly and the Scottish Parliament. Therefore, this stand-alone restatement of what I would call the bleeding obvious in regard to Parliament, without even a nod to the conventions, appears to backtrack on the devolution settlements.

The Welsh Government will therefore wish the Sewel convention to be restated. The noble and learned Lord the Minister said last week that that was not necessary because the settlements are already written into law. Perhaps they are but, for the same reason, there is also no need to restate parliamentary sovereignty. The problem is that doing one without the other gives the impression that the convention is being downplayed, and that is not helpful. I think I am right in saying that the Welsh Assembly, even at this moment, is debating legislative consent, and the rejection of this amendment will not be taken well by that gathering. For all sorts of reasons, it would be a poor precedent for this Bill to be the first to be passed without legislative consent from the Welsh Assembly.

The Government could decide to do what the noble Lord, Lord Newby, urged in Committee and take out Clause 38 altogether. That certainly would not detract from the Bill. They could still do that or they could accept this amendment. Either move would offer comfort to each of the devolved authorities that our departure from the EU was not being used to take back any powers or activities from their purview. Such reassurance, I know, would be welcome. The clock in Wales is ticking. I hope that the Minister can accept the amendment. I beg to move.

[Lord Bruce of Bennachie (LD)]

My Lords, I have added my name to the amendment and shall explain why. The noble Baroness, Lady Hayter, has made it clear that in a sense this clause is superfluous, but it is superfluous in a slightly sinister way. It asserts the sovereignty of Parliament and effectively says, “Therefore, this Parliament can always overrule the devolved legislatures.” We know that to be sovereign law but putting it in a Bill rubs salt into open wounds. Scotland and Northern Ireland have already refused consent and it is expected that Wales will vote today to do the same.

Over the last 20 years we have developed what is described as a quasi-federal constitution, but it is not federal; it is unitary, and Parliament, or Westminster, is sovereign. That is a fact. However, the whole point of the Sewel convention was to try to give comfort and reassurance to the devolved legislatures that they have a standing and a status that Westminster will take into account and acknowledge, and in all circumstances do its best to accommodate. It is a convention, not a law. That is obviously the argument as to why we should maybe move towards a federal constitution, which would effectively confer these conventions into law. I welcome the fact that the Labour Party is now engaged in serious consideration of federalism, which has been a long-standing policy aspiration of the Liberal Democrats. Quite genuinely, we should work together on a cross-party basis to develop the thinking behind this.

The Minister’s words may matter—not just the terms of the legislation. There should be a sense of concern that, as powers come back from Brussels to the UK, those powers that do not return directly to the devolved legislatures and Administrations will come to the central UK Government and effectively weaken the existing devolution settlement, unless there is a genuine spirit of co-operation where the devolved Administration’s views are properly weighed and taken into account. If the Government simply say, “We brought back control to a sovereign Parliament. Whether you like it or not, this Parliament can do what it likes and we intend to do so”, that is not a good way to take the UK forward.

I do not necessarily subscribe to the view that Brexit makes the break-up of the United Kingdom more or less likely. The pain and disruption of Brexit might well discourage people in Scotland and Ireland from wanting to add other disruptions to it; I do not think it is as clear and simple as that. It behoves the Government to show a genuine engagement with the devolved Administrations; not just to use sweet words but to look for practical solutions that will ensure that the devolved Administrations are taken into account.

If the Government turn around and say, “We hear how you voted but we are carrying on regardless”, that will not provide comfort and confidence that devolution is here for real and will develop. It requires the Government to show a lot more accommodation. I agree with the noble Baroness, Lady Hayter, that there are two ways to resolve this. The Government could simply repeal the clause and leave the Bill vacant on this, or they could accept the amendment. To do neither of those things would leave people in all the devolved areas very suspicious of the Government’s intentions.