Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord Dodds of Duncairn Excerpts

Report stage
Tuesday 16th January 2024 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I too thank the noble Baroness, Lady Lawlor, and congratulate her on bringing these matters to the attention of your Lordships’ House and highlighting once again the importance of transparency and lucidity in these issues and their effects on Northern Ireland.

Despite the Prime Minister’s attempts to claim the Windsor Framework as a success for his leadership and the Tory Government, it has not accomplished its main purpose: to restore devolution in Northern Ireland. One reason for that has been not just the lack of substantive change in the Windsor Framework compared with the Northern Ireland protocol—it purports to replace it but in fact there was just a decision of the joint council to rename the Northern Ireland protocol as the Windsor Framework in British law—but the overselling, spin and hyperbole, particularly by the Prime Minister but also others, when it was published. It was sold as a wonderful transformation that would erase the Irish Sea border and so on, but has done nothing of the sort and could never do so.

That lack of transparency, honesty and frankness with people about what the Government could and could not do and what they were putting forward is at the heart of the problem. If their new proposals are published, we will no doubt hear more of this in the coming days and weeks, but this Bill lacks transparency for the reasons set out by the noble Baroness in proposing her amendment.

Paragraph 53 of the Explanatory Notes includes an amazing new concept in legislation passed by this UK Parliament: laws that extend to parts of the United Kingdom but do not apply there. This is bizarre. It is not highlighted or made explicit in the Bill, as the noble Baroness has said, but hidden in the Explanatory Notes. In over 300 areas of law governing the economy of Northern Ireland, we are governed by laws made by a foreign polity—in its interests, not ours—which are not susceptible to amendment and in the development of which we have no role. It is an incredible concept, but it is not new. It was first flagged up in the main body of the withdrawal agreement and the original protocol when the Government told us that Northern Ireland would be a member of the UK customs union but that the EU customs code would actually apply.

This is a concept that is not only bizarre but inherently undemocratic and unsustainable. It a concept that is at the root of the lack of devolution in Northern Ireland. Despite efforts to browbeat, bully and otherwise people in Northern Ireland, UK citizens living there simply want the right to be able to make laws and send representatives either to Stormont or to this place to make the laws that govern them. That is an entirely reasonable position.

The Government really should now learn the lesson that they should be open and transparent about what they have created and what they are about in relation to legislation which is restricted for Northern Ireland. They cannot legislate any more; they have given away the power to a foreign body. Who would ever have thought that we would have reached such a position in this mother of Parliaments following Brexit, which was about bringing back control?

I would like to hear the Minister give a commitment that, in future, these amendments will be taken on board by the Government, and that, for as long as this iniquitous position pertains, legislation being brought forward falling within the remit of Windsor Framework provisions will be explicit and say so in such legislation.

[Lord Johnson of Lainston (Con)]

I am extremely grateful to my noble friends Lady Lawlor and Lord Jackson for Amendments 15 and 16, and to my noble friend Lady Lawlor for the very useful conversations we have had on this matter. Of course, the input from the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, is always extremely welcome.

I am very sensitive to this matter. To be honest, I see my role as bringing a powerful trade deal to the whole of the United Kingdom. I am very aware of the points being raised by noble Lords in this House, but, I am afraid, at this stage of the proceedings I must concentrate on the specifics.

To answer the amendments specifically, I assure my noble friends that we will keep this under review once an Act and stakeholders in Northern Ireland will be an important part of that. Regarding the application of EU law in Northern Ireland, I remain of the view that the people of Northern Ireland are best placed to scrutinise the legislation applicable in Northern Ireland once the Northern Ireland Executive is restored. The Windsor Framework will provide them access to the Stormont brake, as noble Lords will well know. This will enable them to block specific laws impacting Northern Ireland. Furthermore, there will be regular opportunities for the people of Northern Ireland to have a say, via the consent vote. These are all points that have been well raised.

The CPTPP takes account of the Windsor Framework, and it is specifically noted that this is the case. Amendment 16 is superfluous, because under the Windsor Framework the EU’s GI schemes continue to apply to Northern Ireland. Our accession to CPTPP does not alter this. The treaty, accession and becoming a party to CPTPP do not change any of the discussions that noble Lords have had previously about Northern Ireland.

Additionally, the text reflects the recommended drafting practice in Bills for amending an assimilated EU regulation where the extent is to the UK, even if application is only to Great Britain. I have worked with my officials to see whether or not it is appropriate to include the phrase, and the reality is that it is not considered appropriate. It is felt that it would cause complications and confusion in the drafting of the Bill.

I hope noble Lords will be assured that I have spent a great deal of time discussing these points internally. I am very comfortable, as Investment Minister—as I am sure my noble friend Lord Offord of Garvel will be in his role as Exports Minister—to continue the work that we have done to promote Northern Ireland, following on from the success of the well-supported Northern Ireland Investment Summit and the work my colleague is doing to ensure that we have a strong export market for first-class Northern Irish produce. This will benefit from our trading relationships through CPTPP.

I look upon this Bill as an enormous positive for trade in Northern Ireland. We will do everything we can at the Department for Business and Trade to make sure that traders, businesspeople, farmers and citizens of Northern Ireland can get the most benefit from it. I recommend that the technical amendments that my noble friend Lady Lawlor seeks to place in the Bill are not pressed, because I do not think they will help in the promotion of CPTPP or in the clarity of the Bill. I am very grateful for this debate at this stage of Report.

Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations (Northern Ireland) 2017 (Amendment) (Northern Ireland) Regulations 2023

Lord Dodds of Duncairn Excerpts

Wednesday 28th June 2023 Grand Committee

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I rise in support of these regulations. I declare two interests. First, I am a member of the Secondary Legislation Scrutiny Committee; it agreed with the regulations but I have certain questions. Secondly, I am a member of your Lordships’ Protocol on Ireland/Northern Ireland Sub-Committee, which now looks at the Windsor Framework. If I may, I will ask the Minister some questions.

As part of our committee’s proceedings, officials asked the department for further information about engagement with a cross-representation of stakeholders. The Government have not undertaken a public consultation. Given this instrument’s specific remit, is that normal or should such consultation have taken place? The department said that, in the absence of a functioning Northern Ireland Executive, it was not able to engage with Northern Ireland Ministers but did maintain strong engagement with Northern Ireland colleagues in the Health and Safety Executive for Northern Ireland, the Department for the Economy and the Department of Justice; no concerns were raised. Can the Minister indicate in his response the format of that engagement? Was it by email, face-to-face consultation or some other means?

Obviously, because of the Windsor Framework there will be an element of divergence in standards. How will that be managed to ensure that there are no conflicts or challenges? Who will monitor that level and degree of divergence and how will it be recorded? Is the Department for Business and Trade undertaking an audit of areas of divergence as a result of the implementation of the Windsor Framework? The noble Lord, Lord Dodds, is also a member of the protocol committee, and that is one area that we have been exploring with the Foreign Secretary. We have been trying to get that list or audit and, as far as I can recall, we have been told simply that it does not exist. It is important that that audit is conducted and updated on an ongoing basis.

From what I can see, the purpose of these regulations is to ensure that they are implemented in accordance with the Windsor Framework. What role will the EU have in relation to that implementation? Will the Department for the Economy in Northern Ireland have a surveillance role and report to the Department for Business and Trade in London to ensure that implementation is in accordance with the Windsor Framework and with proper health and safety standards? As the Minister suggested, the regulations deal with explosives, gas and petrol stations, and the output thereof.

I agree with the regulations, but I have those few questions, to which I would like a response.

[Lord Dodds of Duncairn (DUP)]

My Lords, as the noble Baroness said, I, too, am a member of the committee on the Northern Ireland protocol—or the Windsor Framework, as it is now called, although the two are interchangeable, not just in name but largely in substance. It should be said by way of general comment that this particularly technical statutory instrument deals with an important area but is illustrative of the fact that, under the Windsor Framework, Northern Ireland is subject to EU law, over which no one has given their consent or had a vote or any say at all.

Regarding some of the claims made about the Windsor Framework, it sometimes needs to be remembered that, in Parliament—the other place and here—we look regularly at a whole raft of statutory instruments which implement EU law in Northern Ireland, and the implications for divergence. The noble Baroness, Lady Ritchie, will know that from our experience in the protocol committee. She and others across the board raised the important point about the implications for divergence: the continuing impact over months, years and even decades, if this is allowed to continue, of rules in Northern Ireland which will diverge from the rest of the United Kingdom, either through acts of the European Union, in areas of law which pertain to Northern Ireland under annexe 2 of the protocol, or by actions of the UK Government, now or in future, to a greater or lesser extent, in which they seek to diverge from EU rules. All these will have an impact on Northern Ireland, and in areas where we cannot foresee the outcome. That is why, although people claim that the Windsor Framework is a settlement, it gives rise to future possible areas of dispute.

When our committee at some point ceases its work, there is no evidence thus far that there will be anyone else to pick up that work. People say that the Northern Ireland Assembly will become responsible for it, when it is restored, but there will need to be a massive increase in capacity, skills and personnel to begin to grapple with the massive amount of legislation that is going to come down the track—and for MLAs to get a handle on the sort of issues that are going to arise. I worry about that.

On a couple of specific points, in relation to the lack of an impact assessment, we understand that one has not been prepared because, according to paragraph 13.3 of the Explanatory Memorandum, measures resulting from the framework are out of scope of assessment. Can I have clarification on what that means? Measures resulting from the framework—I presume that is the Windsor Framework—are out of scope of assessment. That seems a rather sweeping statement, but it is there in the Explanatory Memorandum. It seems strange that we should have such a declaration, because my understanding was not that that was the case, but I would be grateful for clarification. Maybe I have misread it or taken it wrong, but it is certainly a concerning statement that is contained in the Explanatory Memorandum.

Another point mentioned in the first paragraph of the Explanatory Notes and in paragraph 7.1 of the Explanatory Memorandum is that the European Union legislation listed in annexe 2 is implemented in Northern Ireland—that is, annexe 2 of the protocol, or the Windsor Framework as it is now called. I would be grateful for clarification, if the Minister can give it—and, if he cannot give it today, I would understand if he writes to me instead—about that statement as well. The Government have told us over and over again that the Windsor Framework removes whole areas of EU law, some 1,700 pages indeed, but the vast bulk of EU law applies to Northern Ireland by virtue of annexe 2, particularly paragraphs 5 to 10.

I would be grateful again for an explanation, although I understand if it is not possible today, but in due course, of that statement as well and its implications in terms of EU legislation. It is stated twice, in the Explanatory Notes and the Explanatory Memorandum and, if these things are meaningful, they have obviously been written deliberately and with consideration.

Subsidy Control (Information-Gathering Powers) (Modification) Regulations 2022

Lord Dodds of Duncairn Excerpts

Monday 20th February 2023 Lords Chamber

We do not support this measure—I hope my comments have made that clear. We are particularly concerned that it represents the thin end of the wedge, and we have enormous concern about the damage that this could have on future relations between London, Belfast, Cardiff and Edinburgh. This measure, although it relates specifically to consultation, demonstrates why the approach to devolution generally needs to be considered in the round. Everything we do in this place must lead to growing trust in this area.

[Lord Dodds of Duncairn (DUP)]

My Lords, I wish briefly to raise a couple of issues. First, the report of the Secondary Legislation Scrutiny Committee refers to the responses from the Scottish and Welsh Governments. I am keen to understand what type of engagement there was with the Northern Ireland departments. We recognise, of course, that there is no Northern Ireland Executive or Assembly, but the Select Committee on the protocol, of which I am a member, has received many regulations and explanatory memorandums. This indicates that, while there is the absence of devolved government, officials are engaging on a departmental level and seeking responses and input on behalf of Northern Ireland. I would be interested to know what consultation took place with departments in Northern Ireland. If there was such consultation, what was the response?

The second issue I would like clarified is how the statutory instrument interacts with Article 10 of the Northern Ireland protocol. Article 10 puts Northern Ireland outside the UK subsidy control regime and means that we are subject to EU state aid rules. The territorial application of this instrument appears to extend to Northern Ireland. I would like clarity for those in Northern Ireland, who are always seeking to understand the interaction between our own domestic UK legislation and the laws that now govern us from the European Union. We are unique in that respect, so I would like some clarity on the interaction between this instrument and the fact that we are under EU state aid rules.

[Lord Fox (LD)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Dodds, and the noble Baroness, Lady Blake, who, alongside the noble Lord, Lord Coaker, and my noble friend Lady Randerson, have the scars of the Subsidy Control Bill on our backs. We all worked on its passage, and my noble friend Lady Randerson also worked on the United Kingdom Internal Market Bill, to which she referred.

The wheels of ministerial responsibility have turned, and we have a different Minister answering some of the questions which, as my noble friend pointed out, were previously raised. I am grateful to the noble Lord, Lord Dodds, for raising Northern Ireland, because the ambiguity of the Northern Ireland regime was something we discussed many times with the Minister’s predecessor. That issue was never properly resolved from the Dispatch Box; perhaps a new Minister can provide some more clarity.

It is difficult to look at this, having been through the passage of the Subsidy Control Act, and feel that the Government were operating in good faith during that process. This is exactly what we said would happen, and it was essentially denied from the Dispatch Box, so here we are. I would dispute a little with the noble Baroness, Lady Blake: I do not think this is the thin end of the wedge. We have seen the thin end, and we are moving up the wedge as far as the Government’s attitude towards the devolved Administrations and devolved power is concerned. This is just another example, and it clearly shows that the Conservative model for taking back power is to remove power from the devolved Administrations, as well as assuming power from Brussels.

My noble friend pointed out that this comes at that difficult nexus between devolved and reserved powers. That is what the common frameworks process was established to deal with. Can the Minister tell your Lordships’ House why the common frameworks process was not considered the right way to resolve this issue, which, as my noble friend rightly said, sits on the border between devolved and reserved issues? That is exactly the reason why the common frameworks were put in place.

My noble friend illustrated the non-political system that was practised between the EU and the devolved Administrations. There were strict legalistic rules which set up how the money was distributed. But now, all the evidence suggests that His Majesty’s Government are departing from what I would call a legalistic framework and working to political grace and favour. Political allocation of subsidies is clearly what is happening. We only have to look at what has happened to date. Under the cover of bidding processes, money is being allocated where it suits this Government best for their electoral prospects. This is a big departure from the legalistic approach the European Union established. We could set that aside and say that this is clumsy, which it is. We could perhaps understand if the Government rushed into this in haste without proper consultation with the devolved Administrations. I would like to think that was true. It would be easier to illustrate that if the Minister could tell us whether the CMA requested these powers, why it requested them and when.

It is clear that this has again upset the relationship with the Welsh Government and, I am sure, with the other devolved Administrations, as we heard from the noble Lord, Lord Dodds. Why are the Government being so clumsy on this? What, in the long run, are they seeking by cutting themselves off from the information supply? The noble Baroness, Lady Blake, said that the Government are cutting themselves off from valuable information which should be available. I can only take the gloomy view of this. This instrument makes the process of what I will call “subsidy gerrymandering” easier. For that reason, we find it unacceptable.