Brexit: No-deal Tariff Schedules

Lord Empey Excerpts

Monday 7th October 2019 Lords Chamber

[Lord Callanan]

My noble friend makes a very powerful point. We will want to move to permanent arrangements as quickly as possible and to consult widely with both business, consumers and parliamentarians before we do so.

[Lord Empey (UUP)]

My Lords, can the Minister respond to the point made by the noble Lord, Lord Purvis of Tweed? How is a Northern Ireland farmer expected to compete when the Republic’s farmers will be able to bring produce into Northern Ireland tariff-free, whereas they will not be able to send it to Great Britain tariff-free? Surely common sense dictates that our market will be used to dump because they can bring in products for next to nothing. How can the Government maintain the pretence—particularly after last week’s documentation—that Northern Ireland is being treated the same as the rest of the United Kingdom? It blatantly is not.

[Lord Callanan]

I thank my noble friend for his question. As I said in a previous answer, this will not be a permanent arrangement. We will want to look at it and revise it in the light of circumstances, but we remain of the view that it is the best thing to do in the short term to ensure that the Northern Ireland border works smoothly with no infrastructure or controls put in place there.

Brexit

Lord Empey Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Empey (UUP)]

My Lords, yesterday in this Chamber, as reported in Hansard, in answer to the noble Lord, Lord Wigley, the noble Lord, Lord Duncan of Springbank, said:

“It is not the intention of this Government to have Northern Ireland treated any differently from any other part of this, our United Kingdom”.—[Official Report, 1/10/19; col. 1622.]


Will the Minister stand over that statement when he winds up this evening? I do not know how he can, because the document that has just been circulated to us before this debate creates the very thing that most of us feared most: the border up the Irish Sea. If anybody doubts that that is what this is, the Government says in paragraph 4 of this paper:

“The proposal set out in this note would see regulatory checks applying between Great Britain and Northern Ireland”.


There are border inspection posts or designated posts of entry as required by EU law. They talk about the boundary of the zone, the zone of regulatory compliance governed by laws into which they have no say, because, of course, Northern Ireland would be in the single market and subject to its rules. Then we are supposed to go into a form of purgatory because this proposal would be that before the end of the transition period, and “every four years afterwards”, the UK will provide an opportunity for a democratic consent to these arrangements.

This would mean that all our subsequent political discourse at every election would be a row over this. While of course I, like every other Member of this House, will have to take time to read the document carefully, at first sight it looks worse to me than the last one, which was the EU withdrawal agreement negotiated by Mrs May. I am not surprised that the DUP Peers have scuttled out of the Chamber, because they set out their views here in one statement after another. Mr Dodds, their deputy leader, said that there would be no internal UK border in the Irish Sea. Now, we do not have one border; we have two borders. Then another colleague goes on to say that,

“there can be no arrangements agreed that compromise the integrity of the UK single market and place barriers, real or perceived, to the free movement of goods, services and capital between Northern Ireland and the rest of the United Kingdom”.

But there will be. They then say:

“We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom”.


They also said:

“But not in relation to following the rules of the single market or the customs union for Northern Ireland as a generality”.


But not only will agricultural goods be covered; all products will be covered.

Then, of course, the travel correspondent of the DUP, Ian Paisley, says,

“Northern Ireland has not been designated some purgatorial relationship of neither being in or outside the EU but will be treated completely the same as every other component part of the UK”.


No. I just do not know at this stage how the DUP can even look in the mirror in the morning. The red lines that it drew up were that there would be no interruption in the integrity of the United Kingdom. That red line has been broken by these proposals without any doubt whatever.

Diane Dodds MEP said,

“There will be no internal trade borders within the UK”.


Yes, there will.

I had hoped tonight to put forward proposals that I believed would provide an alternative to the backstop. We could make it an offence for UK territory to be used for the transport of goods to the European market that are not compliant. We could indemnify the European Union were it to be the case that it was found that any goods slipped through and entered the EU. I also believe that on to the Good Friday agreement a cross-border body should be created, an additional one by treaty, involving the European Union, the Republic and the United Kingdom where that body would have a role in monitoring and policing the appropriate arrangements on the island.

We also find that these proposals mean that Her Majesty’s Government will allow the EU Court of Justice to administer EU law in Northern Ireland. That was another red line. Therefore, this requires very careful consideration and I am horrified—shocked—that anybody describing themselves as unionist would be not simply accepting but advocating a border up the Irish Sea. They are advocating, because they have signed up to this and they are promoting that, so they are advocating a border up the Irish Sea. I do not know how any unionist can possibly stand in front of the electorate and say that. It is an outrage, and people need to think very carefully where we are going with all of this. I accept what the noble Lord, Lord Tugendhat, said: the decision has been made and we should implement it, but there are ways and means and I really fear that this is not the way or the means.

European Union (Withdrawal) (No. 6) Bill

Lord Empey Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Empey (UUP)]

The noble Lord, Lord O’Donnell, is not in his place right now but, before I begin my remarks, I wanted to mention the problem of spads, because it is not only here that they have caused problems. I personally believe that a lot of the problems in Northern Ireland are the result of spads out of control and their Ministers creating a culture where they can function, interrupting the normal flow of business in the department. That is something that, as a country, we need to examine, because it has a serious impact on our structure of government.

During the debate, a number of Members, some of whom have considerable experience, have been kind enough to refer to the problems in Northern Ireland. We know that that has been at the core of the blockage to progress for quite some time—though it is not confined to that, because there are quite a number of Members in the other place who see a range of other problems with the withdrawal agreement and would wish to replace that and have an entirely new negotiation.

I think it is true to say that the negotiation has been wrong from the very beginning. Someone said that we should have tried to get more of a cross-party consensus before we started the negotiations and, I have to say to noble Lords opposite, their leader was first out of the trap to call for triggering Article 50 immediately after the referendum, which seems to have been forgotten in discussions. He was out there wanting that done before we had even agreed a negotiating position.

The danger with the Bill—it is most unfortunate—is that it puts us into a further period of purgatory where we do not get an agreement. My sense is that what we should concentrate on in Parliament is finding alternatives. We need solutions. We do not need to rehearse the arguments of the referendum debate again and again. I just point out that, in 2015, when the referendum Bill became law, 554 Members of the House of Commons voted for it, and we were no better. Having let Pandora out of the box, we are now confronted because, for political and party reasons, we let a particular process emerge that was different to our normal parliamentary process—and then we complain about the problems created by it. It has been done by our own hand. We all, on all sides of this House, live in glass houses and that is something we need to reflect on as we move forward.

I believe there are alternatives, and I have been trying with colleagues for some months now to influence government and to speak to other people to look at what they might be. The noble Lord, Lord Howell of Guildford, referred to the alternative arrangements working group. I understand that its work—I have seen some of it, but I have not read every detail—is terribly technically focused. Many of the problems we have in all parts of Ireland are not technical. They go to the heart of what people feel is their identity. Some feel that they have been short-changed. They supported the 1998 agreement and feel that this process upsets that. Others are exploiting the situation for cynical reasons. Sinn Féin is the most anti-European party in Ireland. It has opposed every treaty. It has opposed everything from the 1970s, and its support for it now is purely from the teeth out.

Leaving that aside, let us focus on what possible alternatives there could be. Instead of being a problem for the Belfast/Good Friday agreement, why do we not use the agreement and some of its institutions and precedents as part of the solution? I have mentioned this to noble Lords before. With some modest devolution from here to Stormont, perhaps based on trade issues and others, I believe that we could address the democratic deficit created by the backstop where Northern Ireland would be receiving regulations from Brussels but would have no representation there. It would be a rule taker and effectively a European colony, and over time a gradual difference would emerge between Northern Ireland and the rest of the United Kingdom in terms of rules and regulations.

It seems to me that it would be appropriate for a number of measures to be taken. We need to send a signal to our European colleagues that we take their single market seriously. We need to make it clear that, if anybody uses United Kingdom territory to export goods to the European single market that are not compliant, that is an offence. We should create a new north/south body under the 1999-2000 treaty specifically to deal with cross-border trade issues.

I was Trade Minister for some years in Northern Ireland and set up two of the six cross-border bodies—InterTradeIreland and Tourism Ireland. They have worked for 20 years. The six bodies have staff working on both sides of the border. There is no problem. There are no complaints. They get on with their business and it is totally acceptable. I see no reason why that body should not have at least two functions. We both start with the same rulebook and the same regulations on education. Any new regulations coming from either side could be notified to that body. It could then ensure that the totality of the people who export into the Republic are advised of the regulations and the same would apply the other way round.

You could further ask them to ensure that, if they see any sign of inappropriate movement of goods or processes when visiting depots and companies, it is reported to the relevant authorities. Do you realise that if the backstop were implemented as it stands to date, goods coming from Great Britain to Northern Ireland would have to be treated as coming from a third country? There was mention of that in other speeches but not in that context. It creates a huge problem for us because it is the beginning of a separation process. I think that that is unnecessary and extremely difficult.

The cry from Dublin and Brussels is that we need an insurance policy. I get that. I think this insurance policy should be that the United Kingdom should indemnify the European Union by treaty. If our territory were used to export goods not covered by European rules to the Republic, we would have to indemnify them. If we found that goods slipped through, it would be our responsibility to them. People can always smuggle, whatever agreement you have, but it would mean that the insurance policy would come from us, by treaty. With the cross-border treaty, you could join the EU to that treaty, so that the body which would operate and be democratically answerable both to Stormont and Dublin could have EU observers, or they could be linked into the treaty. There would be no secrets; it would all be above board. The North/South Ministerial Council to which that body would report is an existing, widely accepted institution. We also have the east-west dimension, with the British-Irish Council, which could also have a role. Instead of the agreement sitting there as a threat, it should be used as part of the solution.

There are these technical schemes, such as trusted trader status. I get all that. The big problem we have in Ireland is not simply technical. It is people feeling that they have been short changed and that they are in a situation not of their own making and which is out of their control. We could give them this control back.

My party does not have the technical back-up and support necessary to work out the detail. At least the Taoiseach said, when we released it the other day, that he was prepared to look at it. It is easy to say that; it does not mean anything. Instead of having the referendum argument all over again, we need to spend our time concentrating on solutions. Only solutions are going to avoid the difficulties of leaving the European Union in a disorderly manner which does not suit anybody in Ireland—north, south, east or west. I certainly do not want to see it.

There is another thing that people forget. There is a land border of 300-odd miles—we know all about that. The vast majority of material moving between Ireland and Great Britain does not come across the border. It goes from Dublin to Holyhead and Fishguard to Rosslare. Some 80%-90% of Irish goods travel on the British land bridge. They either go to the UK market or to the European or world markets. The north-south trade flows represent one-10th of 1% of EU trade flows. Of total imports to the Irish Republic from the whole of the world, only 1.6% comes from Northern Ireland. The vast majority of this is agri-food and animals. It may be 1.6% of imports to the Irish Republic, but it is a bigger percentage of our exports, so a lot of our small businesses depend heavily on it. It is a bigger deal for us in many respects than it is for them. Their problem is the exports to Great Britain, where for instance 55% of their beef comes to the UK. This is a huge quantity which is not going to be replaced by other markets in five minutes, particularly if you get 45% tariffs applied.

Let us redouble our efforts and stiffen every sinew to find solutions. There is no point in arguing over who said what in 2016 at the referendum. Everybody is to blame either through sins of omission or through sins of commission. We all put our hands up for the legislation. Let us look for solutions. I accept what the noble Lord, Lord Howell, said. Those technical issues are part of it, but we need—

[Lord Lea of Crondall]

Is the noble Lord not effectively saying that the whole of the British Isles should be part of one internal market and customs union?

[Lord Empey]

If that is the case, why would we leave the European Union? If the noble Lord is arguing that the referendum results in us staying in the customs union and the single market, I do not see what the point of leaving is because the whole rationale is different. It is all right saying that here, but we must not forget that the coalition Government brought this legislation into Parliament in the first place. We must remember that everybody has had their hands on this issue, and not always with distinction. Let us focus on solutions that can work.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I have not spoken on a European issue for two years—

[Lord Empey]

I am sorry. I thought the noble Lord was intervening and was giving way. Perhaps the noble Lord is giving me a hint. I have not quite broken the record of some distinguished noble colleagues in making the 20-minute mark, but I urge colleagues that we need to be prepared to open our minds. We do not want a disorderly departure or to have the can continuously kicked down the road or to retain the uncertainties that not having a solution brings. I think that, despite what people say about their negotiating tactics, with what has been said by Chancellor Merkel and President Macron, the time has come for Her Majesty’s Government to put some solid things on the table, and then we can get to grips and have a proper negotiation. Once things are on the table, people will have to say why they reject them and if they cavalierly dismiss them, they will be weakening their case in public opinion.

European Union (Withdrawal) Bill

Lord Empey Excerpts

Monday 18th June 2018 Lords Chamber

[Lord Alderdice (LD)]

My Lords, in Committee I added my name to an amendment with the noble Lord, Lord Patten, and the noble Baronesses, Lady O’Neill and Lady Smith, and was strongly supportive of an amendment that entrenched in the Bill the Good Friday agreement and the north/south co-operation that emanated from it. I did not feel able to give the same support to the amendment which came on Report. I pointed out at that time that there was a border but it was important that it was not obtrusive. However, there were circumstances that were easily foreseen in which, for example, some degree of security infrastructure was necessary, but only in the event that there was a real security requirement for it. My concern was that the wording of the amendment that was passed on Report was too loose and did not address those kinds of problems.

I pay tribute to the Minister and his colleagues. I agree with the noble Lord, Lord Cormack, that the intervention of the House of Lords has been very helpful. It is also the case that the co-operation between the House of Lords and the House of Commons was to try to ensure that what came back to us improved on our improvement, and I think that that is the case.

Sometimes one can have the impression that those who support the Belfast agreement think that there is now no border in Ireland. This is not the case. The Good Friday agreement is absolutely clear. We have addressed the relationships within Northern Ireland, between north and south, and between Britain and Ireland. But the border is still there and anybody who lives close to it knows exactly where the border is and which Government they pay—or in some cases do not pay—their taxes to. Police and others know exactly where the border is because there is no right of hot pursuit. It is important that the border is not obtrusive and obstructive to the free movement of people. The tremendous achievement of the Good Friday agreement and the Irish peace process is that no political party in Ireland, north or south, is asking for a hard border or to in any way obstruct the free movement of people, goods and services. That is a tremendous achievement and we must build on it.

The Commons amendments that have come back to us represent an increased nuance, yet one that is legally tight and does not obstruct us in appropriate checks and balances. I am happy to support them in that light. No doubt there will be other issues in future and we will come back to them. But I pay tribute to the Minister. He has taken things forward from the amendment that went from this House and I appreciate that. I support the Commons amendments.

[Lord Empey (UUP)]

My Lords, I was not keen on the amendment originally proposed by the noble Lord, Lord Patten of Barnes, and I still think there are issues with the proposal before us.

Reference has been made to the joint report issued in December last year. The problem is that that was completely contradictory. It contained almost mutually exclusive objectives. I feel that putting that into the Bill has its problems. The truth of the matter is that the border as we refer to it on the land is only part of the border. The rest of the border is in the sea. Of course, the vast majority of trade goes across the sea from Irish ports to Welsh ports. That is where the bulk of trade takes place. One statement is that we have regulatory alignment, and the other is that that will not obstruct access to the UK-wide market. That can happen in only two circumstances: either we all remain in “a” or “the” customs union, or Northern Ireland businesses have to have two entirely separate regulatory environments in which to function—one for the UK-wide market and another for the EU-wide market. Anybody who thinks that will be progress is wrong.

With regard to the difference between hard and soft, the terms are unfortunate. The only conceivable way any hard border could arise is if the European Union were to try to force the Irish Government, if disagreement were arrived at, to put in a border to protect the single market. There are no circumstances in which any UK Government will put up infrastructure. I cannot see any circumstances in which an Irish Government could put any physical infrastructure. It is almost totally inconceivable. Unless Mr Barnier is going to bring his breezeblocks and cement with him and build it himself, I do not know who will do it, because we will not and I do not think our colleagues in Dublin will. The noble Lord, Lord Alderdice, may hold their coats, but politically and emotionally it is an impossibility. What we should be doing—perhaps the Minister can update us on where we are with this—is sitting down with our Irish colleagues and Mr Barnier and working out the detail. Only we who live in Ireland can erect it and only we have to live with it, so we have a vested interest.

It is such a shame—I have had this conversation with the noble Lord, Lord Cormack—that Stormont is not functioning because that would open up so many more opportunities for us. We could devolve some issues to Stormont and, with the north-south bodies and the regulatory arrangements we agreed there, there could be a flexible approach that would avoid so many of the difficulties that the Government are now facing. I have to say to the Minister that we have arrived at a position of paralysis and stasis where nothing is happening politically, and that is a mistake. History tells us, and colleagues who have experience of Northern Ireland know, that vacuums get filled with all the wrong people. We are allowing this vacuum to develop and take root, and the longer we leave it the harder it will be to get people around the table to get this fixed. We are moving into local government elections next year. We do not even know where we are in this place with regard to what might happen. It is not the Minister’s responsibility to answer today on this, but if Stormont was working, we could do so much more on these issues to get a resolution that would be satisfactory to the British Government, ourselves and our Irish colleagues.

I attended the British-Irish Parliamentary Assembly the week before last. The noble Lord, Lord Murphy, was there. We talk regularly to colleagues there. There is huge anxiety. We understand that, and why there is anxiety. People have to understand the emotion behind this. This is often misunderstood. I have brought it to the attention of this House that relatively modest amounts of trade go between Northern Ireland and the Republic. It is only about 1.6% of Irish exports and 1.6% of Irish imports, but there is the emotion that goes with that. The main trade goes from Dublin to Holyhead, or from Rosslare to Fishguard and so on. However, that is not the issue for a lot of people. The issue for a lot of people is what that represents. As the noble Lord, Lord Alderdice, rightly points out, it is not that there is no border. Of course there is a border; we are two jurisdictions. We have eliminated the physical manifestation of division, if I may put it that way, and these emotional things are what is driving a lot of our Irish colleagues. It is not always pounds, shillings and pence. There is an emotional issue which we have to take into account.

My only anxiety about where we are with this is the December statement, which I believe has fundamental contradictions that we have not solved. If the Minister, his colleagues and his right honourable friend in the other place could put more pith into their attempts to get Stormont going again, that would add enormous flexibility to what we could achieve in the next few months.

European Union (Withdrawal) Bill

Lord Empey Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Dubs (Lab)]

My Lords, the difficulty with contributing late to a debate is that all the effective arguments have been deployed, so I shall be brief.

I very much agree with what the noble Lord, Lord Patten, just said. I remember meeting him when I was serving as a Minister there, when he was doing his magnificent job on the future of policing. I support very much what my noble friends Lord Hain, Lord Browne and Lord Murphy said in deploying the arguments.

Just after the Brexit vote took place, I said to an intelligent and thoughtful businesswoman, “You know, there’s a real problem here. We’ve got an insoluble difficulty, which is Northern Ireland”, and I explained why. She said, “But nobody ever told us”. That may just be one person, but it is my feeling listening to the debate that none of those who were pro-Brexit have given this a thought—I have no sense that they have. I have argued with people about this. I was at a dinner and was sitting one seat away from an individual—I will not name him—who leads a very important Conservative-supporting think tank. I said to him, “You lead a think tank; you may have some ideas. What are you going to do about Northern Ireland?” He said, “Oh, it can be solved”. I said, “Give me a hint of how”. He replied, “It can be done”. “Well, how?” I asked. He said, “With will”. I said, “You haven’t got a clue, have you?”, and there was silence. I am afraid that is the position we are in. I would like to feel that the Government have some control over this but I have no sense that they have.

Somebody mentioned Senator George Mitchell. I was reflecting just the other day that I was at the opening of the Senator George Mitchell Peace Bridge, connecting the north and the south, and I thought, “There was a symbol of communication and unity, and of Ireland working as one economy”. Are we going to put all of that away and have some sort of border there?

I had for parliamentary reasons to go to Andorra last autumn. I had never been before, and there was a conference there. Andorra is not in the EU, and going in, all the heavy goods vehicles were lined up to be checked by customs, and there were border controls and so on. They let people go through—there were just spot checks on us—but there was the whole paraphernalia of a border. I thought to myself, “Are we going to have that in Northern Ireland at its 250 border crossings?” For heaven’s sake, I hope not.

Somebody said that technology is the answer. I know that has been mentioned before this evening, but if there was a technological solution that required no border controls, surely somewhere in the world, somebody would have already found it. There is not a single example of that anywhere, so to the people who say, “It can be done by technology; we can be clever”, and so on, I say, “Give me a hint of where it is being done”. Because if it is so useful and effective, surely somebody, somewhere, would already have put it in—whether at the border between Sweden and Norway, Canada and the United States, or wherever. There is no sign of that, so I challenge the people who say that technology is the answer to give us a hint.

I feel quite strongly and emotionally about this because I, along with colleagues, was at Castle Buildings when the Good Friday agreement was finalised. It was such an achievement. We all felt so happy and that it was a real success, and that there would be peace and we were moving forward. Now, we are in danger of turning the clock back for no good reason.

My heart sinks when I hear the Government say, “We are against the customs union and we will have nothing to do with the single market”, because surely the only answer, as has been said before this evening, is to be a member of the customs union and to have membership of the single market or a close association with it. There is no other answer; otherwise, we will have a hard border.

[Lord Empey (UUP)]

My Lords, naively, I thought we were discussing the relevance of the amendment to the Bill but I am afraid we have moved on to another Second Reading debate.

There a few specific items I want to mention about the amendment. I do not know how “hard border” is defined on the face of the Bill. There is disagreement as to what a hard or a soft border is, and they are not terms that I particularly identify with.

Subsection (2) of the proposed new clause says:

“Subsection (1)(c) applies unless Her Majesty’s Government, the Government of the Republic of Ireland and the EU agree alternative specific solutions”.


I believe that those three parties should sit down to agree specific solutions. But unfortunately last week the Irish Prime Minister rejected that suggestion. Ultimately, that is one avenue of discussion that should not be closed.

Having listened for an hour and three-quarters to this debate, I sincerely appeal to Members to moderate their language. If you link the decision of the United Kingdom to leave the European Union, and whatever border arrangements might exist on the island of Ireland as a result, with the return of violence, people will listen to that and pick it up as a justification. I appeal to Members to be very careful with what they say. The noble Lord, Lord Patten, talked about people getting in the boat and going home—but we have to stay there. We know how much damage language can do in this situation, and things are being linked that should not be.

[Lord Patten of Barnes]

I think the most explicit reference to the dangers of a hard border—of border crossings and customs officials being re-established—and the most serious warning about those has come from the chief constable of the Northern Ireland police service. He was very explicit on this subject, and I think he was much more explicit about the dangers than anybody has been in this House. I do not want to question the importance of what the noble Lord is saying, but it is worth recalling that the most outspoken remarks have come from the chief constable.

[Lord Empey]

I am grateful to the noble Lord for that. I have to say that the chief constable was using as an example the erection of customs posts and things that used to exist in the 1950s and 1960s, as well as all sorts of other concrete establishments and so on which we are not going to have. In many respects, the United Kingdom Government have committed themselves not to produce that material at the border. Whether Brussels wants or would insist on the Irish Government doing so, no Irish Government I can conceive of would do anything of the sort. I just do not believe they would—it would be politically impossible for them to do it. Brussels may have its own objectives and determinations to protect the single market—we understand that—but when push comes to shove. I do not believe it is possible.

[Lord Liddle]

Surely it is we who have created this problem. It is not a Brussels problem—we in this country have decided to leave.

[Lord Empey]

I understand what the noble Lord is saying perfectly well. To put this into context, my party supported remain in the referendum, on a free vote. We cited two things: Scotland and the border. I have had this discussion with the noble Lord, Lord Cormack. I am not a Europhile at all—I never have been, even though I spent eight years in Brussels on the Committee of the Regions, very minor body that it is. I have some sense of the EU. But a vote has taken place, and we accept the outworkings of that vote. We are trying to get on with it and to find a solution that works for all of us.

When we talk about “the” border we must remember that it is not confined to the island of Ireland. The primary bit of the border between the United Kingdom and the Republic of Ireland is actually between Dublin and Holyhead, Rosslare and Fishguard—it is in Wales. That is where the vast majority of the problem lies, and where the bulk of the goods go in order to use Great Britain as a land bridge. The noble Lord, Lord Hain, mentioned that a very large percentage of goods that travel via Northern Ireland go to Great Britain. These are goods in transit.

Noble Lords need to appreciate what we are talking about in terms of scale. In this amendment we use the phrase, “all-island economy”. I was privileged to serve as Trade Minister and Energy Minister, and I was the Northern Ireland Minister who established InterTradeIreland, which is designed to promote trade. On taking office, I discovered that neither the United Kingdom nor the Irish Republic could agree on the amount of trade that they do, and that is still the case. In 2015, the Central Statistics Office in Dublin produced a report on goods exports classified by commodity, listing where the goods were going. Exports from the Republic of Ireland to Northern Ireland accounted for 1.6% of the Irish Republic’s total exports. The CSO also produced a report setting out the percentage of imports to the Irish Republic from Northern Ireland, including live animals and food products, and that was also 1.6%.

I had to deal with these matters for years. I set up a cross-border body and implemented the outworkings of the agreement. I think that the noble Lord, Lord Murphy, and I are the only two Members still in the Chamber tonight who were involved in the agreement. He will know the heavy lifting that had to be done by the noble Lord, Lord Trimble, who is not in his place, the noble Lord, Lord Alderdice, and others to get the agreement approved. It was approved by 71.2% in a referendum in Northern Ireland. We are talking about a referendum of 52%, but we had a majority vote of 71.2%. It was a hard slog and he knows that.

I agreed with the earlier remark of the noble Lord, Lord Kerr, that the Government have not produced sufficient hardcore copy to match the proposals put forward by Brussels. He makes a fair point. Brussels has put forward 118 or so pages. I am not asking for that but I think that we have to have a counterproposal on paper. If that happens to involve technology, so be it. I have no difficulty with that and nor does the European Union. A report was recently published in Brussels by the EU’s Policy Department for Citizens’ Rights and Constitutional Affairs, which comes under the Directorate-General for Internal Policies. It sets out what are thought to be feasible proposals involving technology and other things. We already have a currency border—Northern Ireland and the Republic have different currencies—and we have different taxes, so we are not dealing simply with a one-dimensional problem.

[Baroness Kennedy of The Shaws]

My Lords, I have noticed that the discussions have concentrated on trade, and I understand the good reasons for that. However, the matter that I raised concerns the movement of people. The noble Lord, Lord Empey, is very knowledgeable about Northern Ireland and the south and so forth, so I would like to ask him how we deal with the fact that the Republic will remain part of the European Union and have free movement of people, whereas the north will not if we leave completely and are not part of the single market. How do we deal with that in the context of immigration policy? Technology cannot deal with this. Where will people’s documents be examined to see whether they have an entitlement to make the passage? Where will that happen?

[Lord Empey]

I was not responding to that part of the amendment but I am quite happy to give my opinion on it. I think that a number of measures can be achieved. First, the Republic is not in Schengen, and that is helpful. Clearly, there has to be co-operation between the relevant authorities, which there already is. Regarding immigration controls, cars are often stopped by the authorities on both sides. The guards recently arrested people who had entered the Republic from Northern Ireland whom they believed were illegal immigrants. Therefore, that works.

There is a series of measures that the United Kingdom and the Republic should take to create a disincentive. People have to have a reason for coming, and very often that reason is work. First, we should make it much more difficult to get national insurance numbers and have a much better system for that. Secondly, employers should face greater penalties if they employ people who are not there legally, and that should be done on both sides of the border. Thirdly, we should have much more detailed intelligence sharing to create a disincentive throughout the United Kingdom and the Republic of Ireland. That is something that I think we should do anyway, but it would certainly act as a disincentive.

However, if people are saying that we can put structures in place, the point is that we do not even have them today. Reference was made to smuggling. Smuggling is rife and has been for years. One has only to look at fuel smuggling—the paramilitaries have been making an absolute fortune out of it. As for the common travel area, citizens of both countries have the right to move freely between the two and that will continue. However, the noble Baroness mentioned people who would somehow be in the middle, saying that there would be a difference between EU citizens who have a right and EU citizens who do not. To get on to the island, they have to come through a port and the immigration system of the Republic of Ireland or they have to come through the United Kingdom. How many people are we talking about? I would have thought that creating disincentives for people to enter the jurisdiction illegally would be as good as anything rather than having to look at every individual who appears. I do not see that that will be a huge problem and, quite frankly, I do not think that it will affect many people.

Perhaps I may return to the amendment. We are obviously very grateful for the great support there has been for the Good Friday agreement, and it was painful to hear Members in the other place saying that the time had come to get rid of it. I have said to several people that I cannot think of a worse proposal. I cannot begin to think where we would start in trying to put things together again—I cannot even contemplate that. We have achieved something that generations failed to achieve. I make a point of repeating that and I regret the comments that have been made. However, the agreement that we are talking about and defending—the noble Lord, Lord Hain, knows my views on this—is not the agreement that we negotiated and it is not the agreement that was voted on in the referendum in 1998. It has been changed. The noble Lord, Lord Hain, did his best in 2006 to try to get things going again, and I understand why he did so, but there was a substantial change at the core of the agreement which in my opinion has led to the present impasse. However, that is for another day. Let us concentrate on the common ground, of which there is quite a lot here.

We want to solve this problem and I think that the Government have an obligation to be more precise. Quite frankly, the document of 8 December is contradictory—in my opinion, it does not really add up. People are saying that there will be the same regulations and that that will be the default position after Brexit but that, at the same time, there will be no difference in the regulations between Northern Ireland and the rest of the United Kingdom. The only logical outworking of that is that you remain in the single market, but we are not going to do that and I do not think that it is what Brexit means.

[Lord Adonis]

My Lords, that being the logical argument, why is the noble Lord against it?

[Lord Empey]

First, I believe that you cannot leave the European Union and remain in the single market and the customs union. I am making the point that the December statement has a contradiction in it.

[Lord Adonis]

But does the noble Lord not also see that he does not have to take account of the Government’s position? He can express his own view freely in this House. Does he not think that remaining in the single market and the customs union would be best for Northern Ireland?

[Lord Empey]

No, I do not. Our big market is here; it is not in the Republic. The same applies to Scotland and everywhere else. The common market of the United Kingdom is more important to us economically than the European Union.

[Lord Adonis]

I am sorry to intervene again, but who knows? Britain might remain in the single market and the customs union too.

[Lord Empey]

It is an incompatibility. There is no point in replacing one incompatibility with another. I am simply saying that if you are in the customs union and the single market, you are in the European Union. If you are out of the European Union, you are not in the single market or the customs union. It is an inevitable consequence. We are arguing for two different things.

Let me point out the scale of the problem we face. The border is not confined to the land border; it is also between the Republic and Great Britain. That side of it is ignored because if you have separate arrangements between Dublin, Holyhead, Fishguard, Rosslare and so on, and you have separate arrangements for us, that is incompatible with the core element of the Good Friday agreement—the principle of consent.

Let us follow the concept in the amendment. In addition to the negotiations with the 27, I see no good reason why we should not have negotiations involving the European Union, ourselves and the Irish Republic, in parallel with or as part of the process. With the European Union as an integral part, in that way we could perhaps narrow down and explore some of the solutions, which I hope and pray exist. I will leave it at that and thank Members for listening to me.

[Baroness Altmann]

My Lords, I support Amendment 198, so excellently spoken to by the noble Lord, Lord Hain, to which I have added my name. I also support Amendments 215, 218 and 219. I commend the many excellent speeches made in this debate.

The Good Friday agreement was premised on a balanced approach to healing and rebuilding three sets of broken relationships. The noble Lord, Lord Murphy of Torfaen, and my noble friend Lord Patten have outlined these three groups: first, the communities within Northern Ireland; secondly, the north-south relationship; and thirdly, east-west. These three groups of relationships are intertwined and the reality is that it is a whole. If you impact one part you affect the balance of the whole thing.

There is of course an economic dimension to this but it also has an important social dimension. We have signed an international agreement committed to repairing, rebuilding and protecting the people on the island of Ireland, and to co-operation among the communities, north and south. The open, frictionless border is a crucial part of this and it simply cannot be squared with leaving the single market and the customs union unless there is full regulatory alignment.

Protecting the Good Friday agreement should be the reddest of the Government’s red lines. The Good Friday agreement is essentially about co-operation and partnership. As the noble Lord, Lord Empey, said, it has developed over time—it is not exactly the same—but that was always the aim of that agreement, and those developments need to be protected if our Government are to continue to honour our commitments and obligations to the people of Northern Ireland.

The common regulatory standards mean that business in goods and services can operate freely on the whole island. Six areas of co-operation are identified: education, agriculture, environment, health, transport and tourism. This covers pretty much everything. EU regulations govern north-south co-operation, and the noble Lord, Lord Hain, mentioned the 142 areas of co-operation which would be impacted if there were not regulatory alignment or belonging still to the single market and the customs union. When summing up, can the Minister confirm to the Committee whether this is the final number of areas identified, and how many of those have the Government identified solutions for if we leave the single market and customs union and do not have full regulatory alignment?

This is an Achilles heel of Brexit. The Prime Minister has already committed to full regulatory alignment. We have heard that the opportunity to remain, for example, in the European Economic Area would solve the east-west issue as well as helping the north-south. As we have already committed, and the Prime Minister’s words reflected, that there should be no hard border, and to reassure the people of Northern Ireland and Ireland that we are a country which upholds its commitments to international agreements, I hope my noble friend will support the amendment or bring back an equivalent on Report.

European Union (Withdrawal) Bill

Lord Empey Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Empey (UUP)]

My Lords, before we whip ourselves into a lather of outrage at the prospect of doing something without the consent of the devolved Administrations, perhaps I may remind the House that we have a short memory. The devolution settlement in Northern Ireland represented by the 1998 Act was butchered—a term I used some weeks ago—by this Parliament without a by your leave, without the consent of the Northern Ireland Assembly and without the consent of the parties that negotiated the agreement. That was done in the Northern Ireland (St Andrews Agreement) Act 2006, where dramatic changes were made to the methods we had negotiated with the noble Lord, Lord Trimble, and others over many years. So this Parliament can do what it likes, when it likes. That is the nature of having a devolved institution versus a sovereign Parliament. There is a hierarchy.

The Good Friday agreement, for which the noble Lord, Lord Judd—who is not in his place—and others indicated strong support, which I welcome, was dramatically changed without a by your leave. It was done as a result of a back-stairs deal and this Parliament implemented it. There was no requirement for the Northern Ireland Assembly to agree—it was just done. So let us look back at the actions that have already been taken.

In these challenging circumstances, and from what was said by the noble and learned Lord, Lord Hope of Craighead, among others, in his forensic examination of the amendments that he introduced, I understand that there is genuine reason to be concerned. But we have to keep this in proportion. When powers are repatriated to the United Kingdom, the European Union deals with the member state—that is the way in which it works—so the only place it can come to is the member state. The question then is: what happens when it gets there? That is of significant concern to Members. But I am not as concerned as some because I believe that it is perfectly possible to arrive at an appropriate accommodation.

The word “balance” has been used, and that is an important point. But let us look at legislative consent. I have to say to noble Lords that we have got to be extremely careful about what we are doing here. If there is a Northern Ireland Assembly, do we know what legislative consent means? It means that Sinn Fein will decide whether there is legislative consent. If we build that into an Act of this Parliament dealing with such an important matter as the consequences of the EU decision, we will be handing a veto to that single party. Under our devolution settlement, it will be about Sinn Fein’s consent as a party. Whether it has a majority or a minority in the Assembly is irrelevant; it has sufficient power to block consent. What are we doing in considering that?

[Lord Hope of Craighead]

I am most grateful to the noble Lord. In Clause 7(7), which deals with Northern Ireland, there is no mention of the need for consent at all. It states simply that the power to amend or repeal the Northern Ireland Act by statutory instrument is excluded. I can see the sense in that. Does the noble Lord agree that that is a sensible way of dealing with the matter, and that perhaps the same provision should be made for Scotland and Wales?

[Lord Empey]

I think that we have to be careful because this is complicated. It is obvious that the devolution settlements are not uniform; they are at different levels. My concern with the whole point of having consent is that, while it is obviously highly desirable to have it, although we are talking about the institutions, in practice we are talking about the people who at any point in time are controlling those institutions. In our particular case, there is a veto. I take the point made by the noble and learned Lord, but in the Scottish case a similar situation arises because there is a political party which has a particular objective in mind. It is not simply about the institutions but about those who are controlling them at a point in time when these matters come forward. In fact the noble and learned Lord, Lord Morris, said in his passionate contribution—I know that he is a lifelong devolutionary —that devolution, once granted, cannot be taken away. That is a contradiction in terms, because by definition devolution is something that is given—and of course our experience is that what has been given can be taken away. That is the danger in all of this.

Obviously we are waiting to see what the Government’s proposals will be. I do not believe that what the Minister indicated at the start of this debate will be the only contribution they will be making on these clauses, because it is clear that other matters need to be dealt with in Clauses 8 and 9, and I am sure that we will hear more from the Government. But I would urge colleagues to be careful about what this may mean in practice—because it is not as straightforward as it seems.

[Lord Adonis]

We will be debating Northern Ireland at greater length later. The Minister said in response to my noble friend Lord Judd that the Government would be bringing forward on Report amendments in respect of the Good Friday agreement—or at least that is what I took him to be saying; no doubt he will clarify his remarks when he rises to speak. Will he tell the Committee more about what those amendments will contain?

[Lord Wallace of Tankerness (LD)]

My Lords, I speak in support of the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, to which I have added my name. I shall try to confine myself to the actual amendments to Clauses 7, 8 and 9. Like the noble Baroness, Lady McIntosh of Pickering, I have not yet had an opportunity to see the amendments to Clause 11 which were laid today, but I suspect that we will consider them in great detail before we come to debate them in Committee next week. Suffice it to say that it is helpful that some information has been forthcoming. I may not necessarily agree with it all but it will shed a helpful light by giving us an indication of the frameworks where the UK Government at least think that there should be a United Kingdom dimension, and hopefully some polish from outside stakeholders may help to inform our discussions when we come to them.

On the amendments moved by the noble and learned Lord, Lord Hope, to Clauses 7, 8 and 9, I shall certainly consider with care what the Minister said at the outset of the debate and then again in response to the noble Lord, Lord Adonis. I thought that perhaps he went slightly further when he responded to the noble Lord, but I shall read carefully what he has said just to see whether this particular part concession has substance. That is because, as the noble and learned Lord, Lord Hope, pointed out, the position with regard to Northern Ireland in Clause 7(7) is not absolute. There are qualifications to it and it will be interesting to see whether there are similar qualifications with regard to Scotland and Wales.

The noble and learned Lord, Lord Hope, also intervened on the noble Lord, Lord Empey, and said that the difference between what is there as regards Northern Ireland in Clause 7(7) as it stands and what we have proposed in our amendment is that Clause 7(7) does not make any provision for the consent of the relevant Scottish, Welsh—or in the case of my noble friend’s amendment—or Northern Irish devolved Assemblies or Parliaments. I do not know enough, and I know that it is dangerous to go into Northern Ireland politics without deep knowledge. However, I will say why our amendment, which gives the opportunity for consent, would be preferable, certainly with regard to Scotland and Wales. Ministers talk generally, and one of the concerns we have is with the breadth of the powers given to Ministers under these clauses, but we do not know whether there might be a genuine cause or reason for an amendment to be made to these founding pieces of legislation. It would therefore be helpful if there was a provision for consent so that it is not done unilaterally.

It might also be helpful looking forward. The noble and learned Lord, Lord Hope, mentioned distrust. That cuts two ways. There is distrust among the Scottish and Welsh Governments as to what United Kingdom Ministers might get up to in using these very broad powers, and there is distrust—I can speak only for Scotland—among UK Ministers that the Scottish Government might well seek to veto something that they might otherwise think is perfectly reasonable. That is holding back quite a lot of the development of a pragmatic and reasonable solution to a lot of these issues. It might be that there will be something akin to the so-called Edinburgh agreement, which paved the way for the amendments to the Scotland Act that allowed the EU and independence referendums to take place, so that we can get some understanding between the Governments that consent would not unreasonably be withheld where a compelling case could be made for it.

The problem we have at the moment is that there is no scope for that at all. It is imposition. It could be a unilateral imposition in a change to the Scotland Act or the government of Wales Acts without any form of consultation or consent at all. As the noble and learned Lord pointed out, Clause 8, certainly in terms of Scotland, and Schedule 5 allow some limited powers for the Scottish Parliament relating to international obligations. Again, we think some provision should be made in Clause 9 for putting a brake on any amendment to, or modification of, the Scotland Act or the Government of Wales Act unless there is the consent of the Scottish Parliament or the Welsh Assembly.

[Lord Empey]

Will the noble and learned Lord elaborate on his suggestion for how a middle way could be established? We would all want to see consent if that is achievable, but the problem is that it is very difficult to design a situation in the legislation to say we will seek consent but we do not really need it. The second problem that we have in Northern Ireland is the absence of the Assembly. That creates an even more dramatic situation.

[Lord Wallace of Tankerness]

My Lords, taking that second point, as I indicated earlier, the absence of the Northern Ireland Assembly raises far more questions than those specific to these amendments. My noble friend Lady Suttie touched on that when she moved her amendment. It goes far further than these particular amendments.

I will say more about consent. If it is, in fact, fear that consent will be unreasonably withheld, surely it is not beyond the wit of those negotiating to come up with some kind of agreement that the various parties can sign up to, indicating that that consent would not be unreasonably withheld. I accept that the downside is that they could go back on their agreement. There would be a political consequence to that. Ultimately, we are dealing with issues that have a practical effect on people’s livelihoods and businesses. It is far more important to get some practical solution based on good faith, if it can be restored, rather than standing in corners, not wishing to engage.

If the Government accepted these amendments it might well be a step forward to trying to establish some of that atmosphere where trust can be created. What we currently have would not, as has already been said, trigger a legislative consent Motion in circumstances where, if it was primary legislation, it would have a legislative consent Motion.

EU Exit Negotiations

Lord Empey Excerpts

Monday 13th November 2017 Lords Chamber

[Lord Callanan]

I am sure there will be lots of discussions and negotiations on all the clauses in the withdrawal Bill in the other place, and I am sure that we might have one or two suggestions to make in this House also.

[Lord Empey (UUP)]

My Lords, the Minister led with the discussions in Ireland. As the noble Lord, Lord Hylton, said, there was a paper floating around using a parallel with Hong Kong and Macau, as if we are some kind of colony. May I say to the Minister that I do not agree with his assessment that there is agreement between the UK Government and the Irish Government? The Irish Government are contradicting the position of the UK Government by saying that we need to remain in the single market and the customs union. Mr Verhofstadt, the European Parliament’s rapporteur, is saying the same thing. They are both wrong, and if that is where we are today, we have a lot of work to do. Will the Minister please confirm that our UK Government will make it absolutely clear that we will not allow an internal border to be created within the United Kingdom? If our time and effort, at this stage, is still being spent arguing about that fundamental point, we have a very long way to go.

[Lord Callanan]

The noble Lord speaks with great authority on this subject and I am happy to confirm to him that we will not agree to the imposition of an internal border in the UK.

European Union (Notification of Withdrawal) Bill

Lord Empey Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Empey (UUP)]

My Lords, I believe that citizenship is not threatened by the decision of the United Kingdom to leave the European Union. Indeed, I am absolutely certain that people of whatever outlook can be confident that the undertakings given to them will be honoured. I refer to the Good Friday agreement, where in the section under constitutional issues, paragraph vi of Article 1 refers to recognising,

“the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”.

We can link that to the matter that I brought to your Lordships’ attention in the debate last week. We go back to our friends in the Supreme Court, who said that the Supreme Court has now unanimously endorsed the Belfast ruling without caveat, which was to say that the rights of people in Northern Ireland were not affected by Brexit—but the Attorney-General John Larkin decided to put the case to the Supreme Court for clarity, and it is a good thing he did. That included the three judges who were dissenting from the final judgment in Miller. Furthermore, because there will now be a UK Parliament vote on Article 50, the court added that nothing about Northern Ireland’s removal from Europe breaches any law, treaty or part of the constitution.

Therefore, I contend, though not being a lawyer, that the position of citizenship is secure. As the noble Baroness, Lady O’Neill, clearly indicated, that goes back way before the Belfast agreement ever existed. In fact, the Irish constitution, before it was amended in 1998, made it absolutely clear that any person born on the physical ground of the island of Ireland was an Irish citizen, which has pertained ever since. It was reinforced in the Belfast agreement, but it says that it shall,

“not be affected by any future change in the status of Northern Ireland”.

In other words, people argue that leaving the European Union changes the status in some way, but the Supreme Court says that no injury is done to any treaty, law or the constitution.

--- Later in debate ---

[Lord Empey]

I am obliged to the noble Lord. Would he not confirm that, even going back to 1998, one of the principal objectors to drawing a line or trying to treat everybody equally was the Army? It did not wish to be treated in the same way as terrorists who were being prosecuted. It wrote to the Government at the time, objecting strongly to being treated in the same way as ex-paramilitary prisoners. I understand that the security forces still object to that. It is an issue that needs to be addressed. I hope that the noble Lord is at least aware of it.

[Lord Hain]

I am aware of it. It is more complicated than the view that the noble Lord attributed to the Army—but my noble friend Lord Reid may be able to clarify.

European Union (Notification of Withdrawal) Bill

Lord Empey Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Empey (UUP)]

My Lords, we might still get the opportunity to wish our Welsh colleagues a very happy St David’s Day. As somebody who has a maternal name of Owens and a fraternal name of Morgan, I suppose there might be some fellow feeling there— I do wish noble Lords a very happy St David’s Day. That is probably the departure point of any agreement there might be between the noble Lords who proposed these amendments and me.

Let me say at the outset that I fully accept the principle that every effort should be made to engage the devolved Administrations. Anybody who has been in this House, even for a few years, knows how things across the United Kingdom are terribly London-centric. Indeed, that was part of the reason for the upsurge of negativity at the time of the referendum; people rejected the “London bubble” approach. We have seen that repeated on a number of occasions.

The Prime Minister has indicated that she has been trying to engage, but there is a big difference between making a genuine effort to engage with the Administrations and putting things in the Bill. Amendment 36, for example, states:

“The Prime Minister may not exercise the power under section 1(1) until at least one month after all devolved administrations have agreed a United Kingdom wide approach”.


I can assure noble Lords that we would then never trigger Article 50, because there will never be agreement. Why would there be? Why would Nicola Sturgeon agree to participate in something to which she is opposed? Sadly, in my own circumstances in Northern Ireland, we are on the eve of elections and the Assembly —the Executive—has effectively imploded. The two parties leading the outgoing Executive could not agree on anything except a two-page letter last August, which has been their sole contribution since we took the decision to leave the European Union.

Unless there is a very significant change in voting patterns—which could happen, and I hope it does; there would then be the outside chance of getting an Administration we could work with—things will be the same. We will know by the weekend if that is not true. If patterns are repeated, we know what will happen. The Brexit Secretary came to Belfast in September and instead of meeting an Administration to hear their views, he had to have two meetings in the First Minister’s office, one with one party and a separate meeting with the other party. They could not even meet him together, so how could the Prime Minister conduct any business on behalf of the Government if such an amendment were made?

As for the powers that would be repatriated from Brussels, may I just remind the Committee that in agriculture, for instance, there has been nobody in the United Kingdom with any policy-making capacity for 40 years? There is nobody. We have not been doing it. The policy has been made in Brussels. We do not even have this in Whitehall, never mind in the devolved Administrations. We would have to consider issues such as a national food policy and various other things. These are complicated issues, but they are not for putting in the Bill.

[Lord Wigley]

I understand that in broad agricultural terms there is a European policy, but the agricultural policies followed in Wales at the micro level have been very substantial. Some of the powers being repatriated from Brussels would undoubtedly fit in with the powers that have been exercised on agriculture in Wales over the past 18 years. It would be ludicrous if they were not there.

[Lord Empey]

I am not disputing that. We have had agricultural powers in Northern Ireland for even longer, but they are confined within a broad policy set by the CAP. Yes there is micro stuff, and I am 100% for that; I am simply saying that there is a big gap. However, we are talking about putting these amendments into the Bill, and that is a different matter entirely. This is a perfectly sensible discussion to have, and I totally support the idea that there has to be real and meaningful engagement between the Government and the devolved Administrations. I have sat on the JMC, and there are all the players on it that we need—provided that they are prepared to work with each other. Sadly, the evidence is that they have not done so.

I hope that the Prime Minister persists, and however she has to do it—through informal mechanisms, or whatever—I would be 100% in favour of that. However, I come back to the point that we are talking about a Bill to trigger Article 50. The idea of handing things over to devolved Administrations that are hostile to the very concept and expecting them to go along with it is totally unrealistic. I therefore oppose the amendments.

[Baroness Ludford]

My Lords, I want to add the support of my Front Bench for the amendment and the words written by my noble friend Lady Randerson. Not only do I personally not come from Scotland, Wales or Northern Ireland, but I am a Londoner, and I want to make it clear that it is not just the people represented by the devolved Administrations who care about diversity and plurality in this nation. Frankly, none of us, even Londoners, can be at ease if the union does not work properly.

In discussions on the Bill I have heard a lot of people say that they agree with the substance of what is being proposed, but that it must not appear in the Bill. I think it is about time to put some things in the Bill. The noble Earl, Lord Kinnoull, said something on this subject. Amendment 21 is only about arrangements for consultation and how views are to be taken into account; it is about mechanics. So some of his criticism was not quite justified.

European Union (Notification of Withdrawal) Bill

Lord Empey Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 27th February 2017 Lords Chamber

[Lord Dubs (Lab)]

My Lords, I remember that at the time of the negotiations leading up to the agreement in Belfast, the EU was there in the forefront being supportive, and indeed EU finance developed cross-border projects and played a significant part in the process.

I want to make two points. First, whatever we think, we know that the Irish Government are deeply concerned about this issue. We are belittling their concerns if we say, “We don’t need to bother about this amendment because it’ll be all right in the end”. We all know that the previous Taoiseach, the present one and many other people are very concerned. We owe it to them at least to show that we are concerned about the situation.

My key point is that I think it would be right to have the amendment in the Bill if for no other reason than that it would send a signal to Brussels. It is all right saying that the Prime Minister will do her best in the negotiations, but I would have thought that in her position she would be much better off if we had the amendment in the Bill; it would strengthen her resolve and she could say, “The British Parliament is so concerned about it that we have put it on the face of the Bill”. That is why we should move forward with the amendment.

[Lord Empey (UUP)]

My Lords, I notice that the amendment has been signed by virtually a who’s who of people who have had a high profile in Northern Ireland affairs over many years. For that reason, one has to take seriously what has been put before us. The truth, though, is that today we have really been having a Second Reading debate, not a debate on the amendment. I suppose that in the absence of a Speaker to slap us down, we will probably all be tempted on to that turf.

There are a couple of things I want to say at the outset. I have heard absolutely no one, in any political party or any Government, say that they wish to see a hard border. The closest we came to anyone saying we had to have one was the official to whom the noble Lord, Lord Hain, referred. No one wants it. The British-Irish Parliamentary Assembly, which a number of us are associated with, is working to ensure that it does not happen. Both our Governments are working to that effect, and Brussels has openly said it has got the message. With that sort of momentum, I believe we will find means.

I disagree with the noble Lord, Lord Hain, to the extent that at this stage I would rule out nothing electronic or technical, or indeed any form of technology. We do not need to paint ourselves into a corner; it all may have a part to play. I am quite sure that it already has a part to play in everyday life, in tracking criminals and so on, so we should not rule out what could be a contributing factor to finding what we all want, which is a solution other than concrete and barbed wire. Why should we rule out one possible solution at the very outset?

The House is greatly adorned by many senior legal figures who have demonstrated their robustness and capability in recent months. I am not a lawyer—I am absolving myself of any responsibility in advance—but we have had two recent cases that I wish to refer to. My fundamental disagreement with the amendment is that it is my belief that we are making a mistake in linking the Belfast agreement with triggering Article 50; they are two totally separate things. That is not just me talking. I refer to the two cases against Brexit that were brought to the Belfast High Court last September, one by a well-known victims campaigner and the other by a group of human rights organisations and Stormont politicians, including the leaders of the SDLP, the Greens and the Alliance and a Sinn Fein former Minister. The premise of each case was that taking Northern Ireland out of the EU would breach the Belfast agreement. The High Court heard both cases together and rejected them on every point.

It is worth a quick run-through of those points to demonstrate how comprehensively the breach has been debunked. The plaintiffs claimed that the constitutional establishment in Northern Ireland was being changed without the population’s permission, contrary to the consent principle underpinning the entire peace process. They said that the nine mentions of the EU in the agreement mean that membership is “inextricably woven” into the law enacting it. However, the High Court in Belfast came to the conclusion that references to the EU in the agreement are “incidental”—the judge’s own word. The Northern Ireland Attorney-General, John Larkin, decided to refer some aspects of this to the Supreme Court because, although he felt there was no link, he wanted to make absolutely certain that there was clarity at the highest possible level.

When the Supreme Court produced its decision in the Miller case—a split decision, although there was a substantial majority—it was unanimous on the issue specific to the Northern Ireland case, and said, without any caveat, “This is not a breach”. That is the highest court in the land. When it came to other treaty issues, such as the treaty between the United Kingdom and the Republic of Ireland that deals with the border poll and issues surrounding that which are obviously linked to this group of amendments, it added that nothing about Northern Ireland’s removal from the EU breached any law, any treaty or any part of the constitution.

We were all horrified when the headline “Enemies of the People” appeared before us some months ago and, when the Gina Miller case came to a conclusion, everyone said that we must respect the views of the court and accept that a decision had been made. Here we have the clearest of clear decisions—that there is no breach of any treaty, of any Act or of the constitution as a result of the decision to leave the European Union, whatever we happen to think of that decision. I therefore contend that the amendment is defective, in that it tries to put on the face of the Bill an agreement that is not relevant, when no offence or violence is being done to the constitution of the United Kingdom.

The noble Lord, Lord Hain, said that one possibility was to devolve immigration powers to Stormont. If we did that, I assure noble Lords that people would need a pass to go from County Antrim to County Down. The last thing we need is to devolve immigration powers to Stormont. Stormont cannot agree a budget; it cannot agree anything at present. Sadly, the place has fallen in on itself again. The idea of giving it an immigration power is fanciful, and would be extremely dangerous.

The concept of special status has been mentioned. That term referred to the special category status of prisoners in the Maze prison—or Long Kesh, as it then was—which led to the hunger strike. “Special status”, certainly to a unionist, means something less than being part of the United Kingdom—and that is exactly what it would be. The fact remains that either we are in the United Kingdom or we are not. When we were trying to design the Belfast agreement—I thank my noble friend Lord Trimble for giving me and the noble Lord, Lord Kilclooney, the opportunity to be part of the team that negotiated it—we found ways, through that agreement, of resolving these very difficult issues.

The problem with leaving the European Union is not breaches of the Belfast agreement; the political problem is leaving the European Union. It may be what is upsetting a lot of nationalists, and a lot of people in Dublin, but it is not relevant to this Bill. There is something I want to say to Ministers about this—something I have raised with them many times, both privately and in this House. When it comes down to it, we need assurances that there are red lines in the forthcoming negotiations, and one of those red lines must be that there will be no internal border within the United Kingdom.

We have been talking about the border with the Republic, and I totally agree about an open free border. I had the privilege of being the Northern Ireland Minister who started up InterTradeIreland and Tourism Ireland—two of the north/south bodies—and I can say that nobody I have come across wishes to see any border, in terms of a physical construction.

--- Later in debate ---

[Lord Empey]

My Lords, the noble Lord, Lord Newby, is one of the most distinguished Members of this House. I gently say to him that I do not think that I have heard him defend an argument in such threadbare circumstances. We have sometimes been lectured on the fact that we have a representative parliamentary democracy. Now we seem to have developed referendumitis. What about the implications of this proposal for Scotland? What would it do to the Scottish nationalist argument? We said that we were having a referendum for a generation. This would open the door to the argument, “If they can do it for Europe, they can do it for us”. That is the second time that that has been mentioned today.

The ball was dropped, if dropped it was, when the referendum Bill came to this House. That was the opportunity to put in a back-up clause to say that we would put it to the test at the end. Speaking for those of us who have had referenda—in our case, the border poll in the 1970s, on the Good Friday agreement in 1998 and the potential for another one—if we are going to do this on an ad hoc basis to suit a party management situation, or a bright idea someone happened to come up with, we will destabilise the whole constitution of the United Kingdom. I caution Members on this. The time to fix this was when we started it. We should have put it in the Bill. If I recall, this House was silent when it came to that question in the Bill. That was the opportunity to do it. The question asked was amended by the Electoral Commission, if I recall correctly, which produced the clarity in the question. There was no caveat or qualification.

If we send Ministers to Brussels to negotiate with Michel Barnier and so on—

[Viscount Ridley (Con)]

Further to the point that the noble Lord is making, I remember spending long hours discussing the referendum Bill in this place. One of the things that we particularly discussed was the need to make sure that this was a decisive result that was accepted by the losing side as well as the winning side. Those of us who then went into the campaign with all sorts of disadvantages because of the Government’s ability to spend and so on were none the less just about content that, if we lost, we would be able to accept the result. The other side appears not to have come to that conclusion.

--- Later in debate ---

[Lord Empey]

I am grateful to my noble friend. Perhaps I should rephrase what I said: we were silent on amending the legislation to provide for a second referendum. Therefore, the Electoral Commission changed the wording, which was accepted to get the clarity that we need.

I fear that if we go down the road of trying to send Ministers to Brussels against the backdrop of a number of these amendments, we would not be sending Ministers with whom Brussels will negotiate. We are sending a second 11: we are sending delegates, not Ministers. As someone who has been in a prolonged negotiation, I know that it requires a stretch on the part of both parties. If you were sitting in Brussels and were minded to try to reach an agreement with our Ministers, why would you stretch yourself outside the four freedoms or take a big leap if you thought, first, that you were not dealing with people who could make agreements with you and, secondly, that you would be shot down because there were people in this Parliament and in this country who could undermine you after you had made the effort to reach an agreement? There are a number of amendments along these lines. We need to think carefully of the mechanics and atmosphere around the negotiating table.

[Lord Flight (Con)]

On the territory about which the noble Lord is talking, I cannot understand, if negotiations have gone on for two years or more and we have finally agreed all the thousands of things that need to be agreed, how we could possibly then put it to a vote. The whole process of negotiating the deal with the EU will not work if we have a vote at the end.

[Lord Empey]

One way of dealing with it would have been to make it clear that we were going to put things to a vote at the end. But now we are in a position of risking getting any kind of meaningful negotiation from Brussels because we would be sending people there who are incapable of making an agreement. We understand that it has to be approved by Parliament. Let us not forget that the European Parliament has to approve it—anyone who has had experience over there will know that that will not be a pleasant experience. I caution the noble Lord, although I understand what he is trying to say.

[Lord Robathan (Con)]

But is that not the point of the amendment—to undermine the negotiations and, in fact, reverse the decision?

[Lord Empey]

I cannot attribute the motivation. The noble Lord has his view. I am simply saying that if we are going to send people to Brussels to do a good deal for us—and whether they can, I do not know—the one thing we cannot do is saw their legs off before they go; otherwise we will get absolutely nothing.

[Viscount Hailsham (Con)]

But the noble Lord will recognise that that is already the case under Section 20 of the 2010 Act. Every treaty has to be ratified by Parliament. If that is true of every other treaty, why not of the present negotiations?

[Lord Empey]

I am not opposed to the concept, of course. We have already said that it is going to be ratified by Parliament. I make the point that if these amendments are inserted—and there are others on the Marshalled List to be dealt with at a later sitting—we are going to send a team of people to negotiate on our behalf. Clearly people in Brussels will say, “These people do not have the juice to do a deal so why would I take a political risk as a Brussels negotiator to stretch out towards them”—which is what is going to be needed on both sides—“because they know that they have no chance of getting a deal at the end of the day?”.

[Baroness O'Neill of Bengarve (CB)]

My Lords, we have already seen this afternoon in our very serious debate about the implications of the present situation—let us put it neutrally—for Northern Ireland that the referendum was, in fact, about a matter of the greatest constitutional importance and about the integrity of the United Kingdom, a great worry to any of us who come from Northern Ireland. However, although I agree with my noble friend Lord Empey that we should not tie the hands of negotiators, that a referendum at the end is a bad idea and that one constitutional error cannot be remedied by another constitutional error, nevertheless something needs to be said about the possibilities of no deal or of a bad deal. Those are two realistically possible outcomes. I think that at this stage it should be possible for the Government to say a bit about their plans in the event of either contingency.