Protocol on Ireland/Northern Ireland: Effect of Renegotiation on Other Trade Negotiations

Lord Frost Excerpts

Thursday 21st October 2021 Lords Chamber

[Baroness Hayter of Kentish Town]

To ask the Minister of State at the Cabinet Office (Lord Frost) what assessment Her Majesty’s Government have made of the diplomatic consequences for (1) current, and (2) future, trade negotiations, of their decision to seek to renegotiate the Protocol on Ireland/Northern Ireland.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, the Government are implementing a successful programme of trade negotiations around the world. Agreement in principle was announced with New Zealand overnight, and we have already reached agreement in principle with Australia. In both cases, these are hugely beneficial free trade agreements to both parties. We do not believe that our efforts to resolve the difficulties arising from the Protocol on Ireland/Northern Ireland will have any diplomatic consequences for our FTA negotiations programme.

[Baroness Hayter of Kentish Town (Lab)]

That really sounds like wishful thinking. We have heard about New Zealand, and indeed I think the noble Lord was in his place at the time. We have applied to the CPTPP and we have the Australia deal. Can he really think that his willingness to tear up an agreement that he negotiated and the Prime Minister signed—in good faith, we assume—just two years ago will help the work of his fellow Ministers as they negotiate delicate deals with other countries around the world regarding the likelihood that we will hold to any agreement that we sign?

[Lord Frost (Con)]

My Lords, no one is speaking of tearing up the Northern Ireland protocol. We have made very clear that our wish is to negotiate a new version of the protocol with a new balance, and to do so consensually. That is not unusual in international relations, and there are plenty of examples that one could give. On the FTA question, look at the facts: we negotiated 60-plus free trade agreements last year before withdrawal; we have a huge programme of negotiations going on; and I am sure that they will come to good and beneficial results.

[Baroness Altmann (Con)]

My Lords, does my noble friend agree that, in any trade negotiation, trust is important and that, having signed agreements, it is important for the UK to maintain that trust? Does he agree that, in almost all cases, the free trade agreements agreed thus far do not require us to remove regulations that we already have? Would it be possible for the UK to commit to a period until, let us say, 2024 or 2025 for maintaining our regulations in order to rebuild trust and work out a solution that can demonstrate the UK’s good faith in trying to identify a new resolution for Northern Ireland?

[Lord Frost (Con)]

My Lords, as I have said on previous occasions, the question of trust is important and it takes two sides to create trust. As I set out in the speech in Lisbon to which the noble Baroness previously referred, there are a number of things that the EU has done that have not necessarily been conducive to building trust either, but we need to move on from that and generate new momentum to try to reach agreement on a revised protocol. On the question of SPS regulations, the difficulty is that free trade agreements are not the only reason why you might wish to evolve your own agri-food regulations, and indeed the EU has evolved its own autonomously since the start of 2021. Where there is divergence it is for that reason, not because of anything that we have done.

[The Earl of Kinnoull (CB)]

My Lords, 24 committees and groups were set up under the trade and co-operation agreement. Have all 24 now met and can they be considered fully operational?

[Lord Frost (Con)]

My Lords, they have not all met yet, although they have largely met. I think four of these committees still have to meet this year, then the trade partnership committee, and then we hope for another meeting of the Partnership Council before the end of the year. The agendas for specialised committees are published on GOV.UK for those who are interested. So the programme has well begun and we expect to complete a full round by the end of the year.

[Lord Anderson of Swansea (Lab)]

My Lords, can anyone trust this Government on international legal matters? They have already admitted to breaching international law again on Northern Ireland. Now they have failed to honour a protocol that they freely entered into, and they threaten to breach our clear obligations under the European Convention on Human Rights. Is this cavalier attitude to international legal obligations likely to be a positive or a negative feature in relation to our future partners?

[Lord Frost (Con)]

My Lords, I am afraid I do not entirely agree with the suggestion that we have been cavalier about our obligations under the protocol. Unfortunately, the problems that exist in Northern Ireland are the problems of implementation of the protocol, not of non-implementation of it. We have spent hundreds of millions of pounds on setting up services to help British businesses to trade with Northern Ireland, but unfortunately that has not solved the underlying difficulties. So implementation is not the solution; renegotiation and a better solution is.

[Lord Newby (LD)]

My Lords, in his speech in Portugal the Minister said that the Government are

“constantly faced with generalised accusations”

that they

“can’t be trusted and are not a reasonable international actor.”

When I asked him last time that he was at the Dispatch Box why this might be the case, he said that was a question that he constantly asked himself. I wonder whether this constant process of self-reflection has produced a clearer answer than the one that he was able to give me at that point.

[Lord Frost (Con)]

My Lords, I like to think that I engage in a constant process of self-reflection. I am reassured that it usually reaches the same result, which is that when I look at the way that this Government have acted on the international stage since Brexit was established, the role that we have played in the world, the establishment of AUKUS and our position on issues to do with China and many other issues, I think we stand as a constructive and fully responsible international player.

[Viscount Trenchard (Con)]

My Lords, does my noble friend agree that it is internationally recognised that the UK is rightly standing by its obligations to protect the Belfast/Good Friday agreement and that the EU has also recognised this, as evidenced by its agreement to negotiate changes to the protocol? Does he not also agree that the UK can now act as a leading advocate at the WTO of free and fair principles-based international trade, leading to greater prosperity for many millions around the world?

[Lord Frost (Con)]

My noble friend makes an extremely good point: that after Brexit, as an independent global trade player, we are one of the biggest in the world. We are very influential and hope to become more so in the WTO, and to be able to stand up and speak for trade liberalisation across the world, which is of huge benefit to us all.

[Lord Hannay of Chiswick (CB)]

My Lords, will the Minister tell us what the case is for the UK being the only country in the world which has two separate Ministers and two separate departments, each dealing with roughly one-half of our overseas trade? What are the consequences for our handling of negotiations? What analysis has he received from the embassy in Washington on the realism of expecting decisive progress on a US-UK trade agreement under the Biden Administration?

[Lord Frost (Con)]

My Lords, the decision taken, which I think is a good one, is that the UK-EU TCA is so sui generis—in fact, it goes much beyond trade into many wider areas such as law enforcement, road transport and so on—that it is best to handle it in a sui generis way. I do not know whether that decision is for ever, but it is the one that has been taken at the moment. We are ready to talk to the US about an FTA when it is ready. The US is conducting a review of its external trade policy at the moment. Some negotiating rounds have already taken place, but we stand ready to talk when both sides are ready.

[Baroness Smith of Basildon (Lab)]

My Lords, I have listened carefully to the Minister’s answers today and rarely have I heard answers so complacent about the concerns raised in your Lordships’ House on our international reputation and future ability to negotiate agreements, whether they be trade agreements or the complex negotiations around COP 26, if there is a lack of faith in us being trusted to keep our word on agreements we have already negotiated. I hope that he will go away and reflect on the comments he has made to your Lordships’ House today. On that issue, I bring him back to his earlier comment about the legal text. He said, “We will publish the legal text if it is useful”. We think it would be very useful and, if there is no difference from what has already been said, can he explain why he will not publish it? I bring him back to the issue of trust and transparency as something on which this Government have to make up for lost ground.

[Lord Frost (Con)]

My Lords, we will publish the legal text if it is useful to the negotiating process between us and the European Union. At the moment, I am not convinced that it would be; circumstances may change, so that is not a decision of principle. To return to the first point of the question, I am of course in no way unmindful—quite the opposite—of our international reputation but, in the end, I cannot do anything about how others perceive us.

[Noble Lords]

Oh!

[Lord Frost (Con)]

I am not complacent about things that are in our hands, which is the situation in Northern Ireland. I am in no way complacent about that and it is the focus of the activity we are trying to pursue. This Government are responsible for the prosperity and security of Northern Ireland. That is why we are pursuing the task as we are and that, along with the support of the Good Friday agreement, is our primary objective as we go forward.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords—

Protocol on Ireland/Northern Ireland: EU Proposals

Lord Frost Excerpts

Thursday 21st October 2021 Lords Chamber

[Baroness Ritchie of Downpatrick]

To ask the Minister of State at the Cabinet Office (Lord Frost) what discussions he has had with the Vice President of the European Commission following the publication of the European Union’s proposals regarding the Protocol on Ireland/Northern Ireland on 13 October.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, I am in regular contact with Vice-President Šefčovič about the full range of issues relating to the UK-EU relationship. Most recently, I met him in Brussels on 15 October for an initial discussion of the EU’s proposals. I expect to talk to him again very shortly. My teams and that of the EU have been in talks in Brussels this week about the detail of the proposals that the EU has put on the table.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, ongoing discussions will undoubtedly highlight the innumerable benefits that have flowed from the Northern Ireland protocol, encompassing business and economic development, inward investment opportunities and job creation, as well as the areas in which a joint UK-EU approach is required around mitigations for medicines and agri-food products. In view of this, can the Minister indicate whether the Government have undertaken an evidence-based assessment of the impact of the removal of the European Court of Justice on local businesses in Northern Ireland? It is a yes or no answer. By the way, no business in Northern Ireland has highlighted a problem with the European Court of Justice.

[Lord Frost (Con)]

My Lords, opinions differ on the innumerable benefits of the protocol, as the noble Baroness puts it. I certainly hear concern from business about the imposition of EU law without consent that the Court of Justice of the European Union is at the summit of. The difficulty is that it is not true to say, as some do, that the protocol gives the benefit of both worlds. It gives access to the EU single market for goods but at the very significant price of restricted access to Northern Ireland’s major trading partner, which is Great Britain and the rest of the United Kingdom. That is the unsatisfactory balance that we currently have, one that needs to be redressed.

[Baroness Crawley (Lab)]

My Lords, does the Minister intend to promote the benefits of the protocol, as set out by the noble Baroness, Lady Ritchie, to the business community in Northern Ireland, 67% of which believes that Northern Ireland’s status now represents many opportunities for the region? Will he say which of the many benefits set out in the European Union’s 13 October proposals he is most excited about and engaged with? For example, is it that if a lorry transports 100 different food products from GB to Northern Ireland, only one certificate will now be needed instead of 100 certificates? We would join him in such a campaign.

[Lord Frost (Con)]

My Lords, my team has been in discussion with the EU on this subject all week. We are seeking to understand the detail that underlies some of the headline claims that the EU has made. It is possible that we do not fully understand that detail yet, but perhaps that will come. One aspect of the EU proposals that I am excited about is that they show that what previously it has considered impossible—changing its own laws for the special circumstances of Northern Ireland—is now possible. That is a very important and welcome step, and I hope the EU might be able to go further than the proposals it put on the table last week.

[Baroness McIntosh of Pickering (Con)]

I think my noble friend would agree that the Northern Ireland protocol is an integral part of the withdrawal agreement. Does he not share my concern that, if we go back and seek to renegotiate the Northern Ireland protocol, we will open up and have to renegotiate the withdrawal agreement as well?

[Lord Frost (Con)]

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

[Baroness Ludford (LD)]

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

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


It also said that

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

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

[Lord Frost (Con)]

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

[Lord Kerr of Kinlochard (CB)]

I am really puzzled by the Minister’s reply to the question from his noble friend, the noble Baroness, Lady McIntosh. Does he not acknowledge that in law the protocol is an integral part of the treaty? Does he accept that safeguard action under Article 15 of the protocol could not extend to abrogating Articles 12 and 5 of the protocol, which set out the role of the court? Does he accept that the EU could not conceivably agree to amend Article 12 to confer on a non-EU court the right to interpret EU law? If so, how would he deliver on his threat? Since it cannot be done legally, does he again envisage legislating to act illegally in a “limited and specific way”? If so, I do not believe this House would agree.

[Lord Frost (Con)]

My Lords, obviously the protocol is part of the withdrawal agreement but that does not prevent its being reopened and renegotiated separately. The same is true of any treaty; it is possible to negotiate part and not the whole thing. On the Article 16 question, obviously the Article 16 provisions in the protocol are nearly sui generis. There are very few parallels for them anywhere else. The scope of how they may be used remains to be tested. What is clear is that they are safeguards to deal with an evolving and difficult socioeconomic situation and the issue of trade diversion. When and if we take action under Article 16, obviously that will be the purpose of any action. As I say, though, we hope to come to a consensual agreement rather than having to go down that road.

[Baroness Chapman of Darlington (Lab)]

I take it from the answers the Minister provided to the previous Question that he did not consult Ministers in Northern Ireland about his new draft text and does not intend to publish it for the benefit of politicians in this country. I gently say to him that contentious issues in Northern Ireland are never resolved without the engagement of senior figures, and he needs to take this far more seriously. Rather than flying around Europe making speeches, why is he not speaking with Mr Šefčovič in Belfast to thrash out these issues? The people of Northern Ireland and the public here will tire of this endless Brexit drama vortex that he seems to want to keep us captured in. We want solutions and he will find them only through dialogue, and I suggest that that should take place in Belfast.

[Lord Frost (Con)]

My Lords, we are obviously engaged in a very intensive dialogue on this question, both at my level and among teams and beyond that. As I said, obviously we talk to senior politicians in Northern Ireland across the range of opinion the whole time, and that is the responsibility of others in this Government as well as myself. We will publish the legal text if it is useful to the process, just as we did last year in negotiations on the trade and co-operation agreement. When it is useful and when it can help to get us closer to agreement then we will consider doing that, but at the moment it is a confidential negotiating document.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the time allowed for this Question has elapsed.

Protocol on Ireland/Northern Ireland: Impact on Trade

Lord Frost Excerpts

Thursday 21st October 2021 Lords Chamber

[Lord Hain]

To ask the Minister of State at the Cabinet Office (Lord Frost) what assessment Her Majesty’s Government have made of the impact of the Protocol on Ireland/Northern Ireland on trade within the island of Ireland since 1 January.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, as noble Lords would expect, the Government continue to observe very closely the situation as regards trade on the island of Ireland and more broadly, for example, trade in goods from Great Britain to Northern Ireland. It is clear that trade in both directions between Ireland and Northern Ireland has increased significantly since the start of the year and that this constitutes trade diversion created by the pressures of the protocol.

[Lord Hain (Lab)]

I thank the Minister for his reply. On the protocol, he told the Centre for Policy Studies at the Conservative Party conference on 5 October that he was “keeping the other side on the hop, cultivating uncertainty with regard to how we are going to react”. Why?

[Lord Frost (Con)]

My Lords, I did indeed say that, because it is my job to get the best outcome for this country in the negotiations that I am charged with conducting. That is what we did over the previous 18 months and that is what I intend to do now. I do not think it would be particularly good tactics to reveal to the other side exactly what we are going to do or how we are going to go about it.

[Lord Moylan (Con)]

My Lords, in addition to disrupting and diverting trade, the Northern Ireland protocol contains a systemic democratic deficit, in that laws are made with direct effect for Northern Ireland by the European Union with no opportunity for democratic say by those affected. This is unique in Europe. Does my noble friend agree that the removal of the jurisdiction of the European Court of Justice in Northern Ireland is a necessary but not sufficient step for correcting this anomaly and restoring this basic human right?

[Lord Frost (Con)]

My Lords, I very much agree with the thrust of the question asked by my noble friend. We made very clear in the Command Paper that we published in July that the European Court of Justice and the system of law of which it is at the apex are a big part of the political difficulty that has arisen in Northern Ireland, and we need to find more balanced ways of resolving disputes in future.

[Lord Liddle (Lab)]

My Lords, in the Minister’s recent speech, which he made in Lisbon, not in this House, he said that

“the Protocol represents a moment of EU overreach when the UK’s negotiating hand was tied”.

But are the facts not somewhat different? Is it not the case that the Johnson Government, on the Minister’s recommendation, accepted an arrangement that Theresa May said no British Prime Minister would ever accept; that the Johnson Government, presumably on the Minister’s recommendation, decided to prioritise a hard Brexit over the sustainability of the Good Friday agreement and peace and security in Northern Ireland; and that the Johnson Government, perhaps on the Minister’s recommendation, signed a treaty in the full knowledge that they had no intention of implementing its full provisions? Is it not about time that the Minister accepted some personal responsibility for the mess we are in in Ireland?

[Lord Frost (Con)]

So, my Lords, I reject the implication of the question that there is any contradiction between a so-called hard Brexit, which is the only real Brexit and the only form of Brexit that allows this country the freedom it needs, and peace and security in Northern Ireland. Those two objectives are perfectly and absolutely compatible. We agreed a protocol that we hoped would do the job; it needed sensitive handling; it was highly uncertain in some of its mechanisms; and unfortunately it has not had the sensitive handling it needed. Therefore, we need to come back to the question. That is a pity, but unfortunately it is the reality.

[Lord Purvis of Tweed (LD)]

My Lords, the Northern Ireland Statistics and Research Agency’s most recent publication, issued on 4 August, highlighted that in 2019 trade between Northern Ireland and the Republic of Ireland increased by 9.9%, whereas trade with GB increased by 6.6%—so the Minister’s claim that there is trade diversion as a result of the protocol is not the case. There is now a trend, with growth in the Republic. Therefore, is it not part of the UK Government’s responsibility to promote exports from Northern Ireland to Ireland and to make sure that the Northern Ireland economy benefits from certain parts of the protocol? What are the elements of the protocol that the Minister is most proud of?

[Lord Frost (Con)]

My Lords, I am proud of securing a deal that delivered democracy and took this country out of the European Union in 2019, which the people of this country voted for. On trade, the figures from the Irish Central Statistics Office for the first eight months of the year show that trade from Ireland to Northern Ireland has gone up 35% and from Northern Ireland to Ireland has gone up 50%. Those are significant figures and clearly show that there is something unusual going on—which I think is trade diversion.

[Baroness Chapman of Darlington (Lab)]

I have a couple of very simple questions for the Minister about this. I tried to ask them last week, after he flew back from Lisbon, but he did not seem to want to answer them then. I shall try again today. They are very simple.

First, the Minister has sent a draft legal text of the protocol, which he says he has written, to Brussels. He does not want to show his cards on other issues but, seeing that he has already shown the text to Brussels, why is he not showing it to parliamentarians in the UK? Secondly, it is very important that he engages meaningfully and fully with elected politicians in Northern Ireland on this issue. Did he consult any Ministers in the Northern Ireland Assembly before he sent his draft text of the Northern Ireland protocol to Brussels?

[Lord Frost (Con)]

My Lords, I think the question is based on a slight misconception that the legal text that we sent in represents some new stage or evolution in our position. It does not. It reflects the position that was set out in the Command Paper on 21 July and puts it into legal form. It is a negotiating document for the purposes of negotiations. It does not change the UK Government’s position in any way. Of course we discuss with elected politicians in Northern Ireland all the time what our position is, and we did that while preparing the Command Paper.

[Baroness Neville-Rolfe (Con)]

My Lords, I am interested in trade and especially in exports, because they are vital to UK growth and success. We heard from the Minister about trade within the island of Ireland, but how does he expect the pattern of UK trade within the EU 27, both in goods and services, to change in the years ahead?

[Lord Frost (Con)]

My Lords, my noble friend identifies an important point, which is that trade in both goods and services is subject to a lot of noise at the moment—the ongoing Covid pandemic, the effects of leaving the customs union and the single market, stock building and so on—and it is difficult to isolate trends. Nevertheless, our goods exports are nearly back to the levels of 2019. Services exports and imports are down somewhat, but of course the huge impact on the movement of persons, tourism and so on has very significantly affected those figures. So it will be a long time before we reach a steady state, but I have huge confidence in the ability of our exporters and traders to manage that situation.

[Lord Wallace of Saltaire (LD)]

My Lords, can the Minister clarify whether he understood when negotiating the protocol that it was incompatible with British sovereignty, or whether he has discovered that since? He will recall that AV Dicey’s definition of UK sovereignty as indivisible, which I know he now follows, was shaped by his active and bitter opposition to Irish home rule. In those terms, the Good Friday agreement is also an infringement of indivisible UK sovereignty. Does the Minister think that should also be renegotiated?

[Lord Frost (Con)]

My Lords, the difficulty we have with the protocol is not so much the sovereignty issue, because the territorial integrity of the UK and the integrity of the internal market of the UK are very clearly protected in the protocol, but the difficulty it has generated in movements of goods and trade within the United Kingdom. If the protocol was to work, it would have required very sensitive handling. Unfortunately, it has not had that sensitive handling, and therefore we have a political problem.

[Lord Adonis (Lab)]

My Lords, the new EU ambassador to the United Kingdom presented his credentials to Her Majesty the Queen earlier this week. Afterwards there was a reception at which many Members of the House were present. The Minister was not present, nor was any representative of the Government, which—as a senior diplomat pointed out to me—would have been utterly inconceivable at an equivalent reception for a new ambassador from the United States or any of our other principal allies. I know that the Minister has now decided to set himself up as an anti-diplomat rather than a diplomat and unlearn all the arts and craft of his trade that he had accumulated over the previous 20 or 30 years, but does he not think that the interests of the United Kingdom would be well served by him once again becoming a diplomat, rather than gratuitously insulting our European partners?

[Lord Frost (Con)]

My Lords, I very much wished to go to that reception. Unfortunately, as colleagues know, I was not well on Tuesday and could not attend, but my office was there and represented me. I wished to avoid any apparent discourtesy, and the ambassador has acknowledged that. It is very important that we maintain the normal diplomatic arrangements between our countries and territories, and it is absolutely my intention that we should do that.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the time allowed for this Question has now elapsed and we move to the second Question.

Northern Ireland Protocol

Lord Frost Excerpts

Wednesday 13th October 2021 Lords Chamber

[Baroness Ludford]

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

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

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

[Baroness Ludford (LD)]

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

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

Does ideology trump pragmatism and business in Northern Ireland?

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

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

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

[Lord Frost (Con)]

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

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

[Baroness Chapman of Darlington (Lab)]

My Lords, I welcome the Minister back from his brief stop in Portugal yesterday. I note that your Lordships’ House was sitting then; we too would have appreciated hearing from him as he announced his new text.

Although we welcome the opportunity to hear from the Minister this afternoon, it is a shame that this Question is taking place at 3.45 pm, given that the EU’s proposals for amending the protocol are due to be published in just two hours’ time. Can the Minister confirm that he will consider the EU’s proposals in good faith, and that the Government will engage constructively in finding solutions to protect livelihoods and communities in Northern Ireland? In his speech yesterday, the Minister said that he has drafted a new protocol. When will we see the legal text? Given the direct importance of this process for the people of Northern Ireland, has he consulted Northern Ireland Ministers on his text?

[Lord Frost (Con)]

My Lords, my speech in Lisbon yesterday covered much more than the Northern Ireland protocol. I am sure that the noble Lords who have read it have seen that it was an attempt to set out our wider relationship with the European Union; the protocol policy was as set out in the Command Paper. I agree that we are looking forward to getting the proposals from the Commission later today. Obviously we will look at them positively and constructively; I am sure that we will want to discuss elements of them in more detail. We very much want to get into an intensive talks process on those proposals, as well as on the proposals we sent. As the noble Baroness points out, we have sent a draft of the legal text to the Commission. It is a negotiating document at the moment but, of course, I expect that we will make it public if that seems to be useful to the process in future.

[Lord Lamont of Lerwick (Con)]

My Lords, would the noble Lord confirm that more than 200 GB firms have stopped supplying goods to Northern Ireland and that the Northern Ireland protocol is just not working satisfactorily? Secondly, as regards accusations that we are going against the rules-based international order and the rule of law, is it not a fact that Article 13(8) of the protocol itself envisages that it could be succeeded by other agreements?

[Lord Frost (Con)]

My Lords, my noble friend is absolutely correct that 200 firms have ceased trading with Northern Ireland this year, including some quite significant ones. The existence of this customs process between Great Britain and Northern Ireland is at the heart of some of the problems we are experiencing with the protocol. My noble friend is also right that Article 13(8) of the protocol provides for successor arrangements. This was envisaged and explicitly written into the protocol when we negotiated it. It reflects the fact that it is not unusual in any way to renegotiate or supersede international agreements, which is what we hope to do in this process.

[Lord Anderson of Ipswich (CB)]

My Lords, the Minister said in Lisbon that we are being asked to apply EU law in part of our territory without our consent. Article 5 of the protocol provides that significant parts of EU law,

“shall apply to and in the United Kingdom in respect of Northern Ireland”.

Having agreed that protocol, how can the Minister say that this law applies without our consent?

[Lord Frost (Con)]

My Lords, there is, of course, a difference between what is in an international legal instrument and what happens day to day, as I am sure is well understood. The political difficulty being created in Northern Ireland is because individual legal instruments, which come out in profusion from the European Union day to day, are applied automatically in Northern Ireland without any sort of process. That system is not sustainable, which is why these governance arrangements need to change to bring them more in line with democratic norms elsewhere. We need to find a solution that everybody in Northern Ireland can get behind and which they think represents their interests.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, this Question is about trust and reputation. The admission by the Northern Ireland Secretary last September in another place that his Brexit Bill broke international law in a very specific and limited way was denounced by Members of this House from all parties, including the noble Lord, Lord Howard, and others. It led to a tit-for-tat reaction from the EU that it would unilaterally reject the protocol and, later, that it might not ratify the withdrawal agreement. Can the Minister tell your Lordships from where this reputation-destroying tactic by the UK Government of abandoning the rule of law emanated?

[Lord Frost (Con)]

My Lords, these matters were well debated at the time. The then UK Internal Market Bill is now a very good Act to protect the integrity of the single market of the UK. It does that very well. I am now looking forward. We are trying to find solutions to a problem that we hoped would not arise but which has now arisen because of the relatively insensitive way in which we have been forced to implement this protocol. We need to find a solution that everybody in Northern Ireland can get behind, which provides a better balance and which fully supports the Belfast/Good Friday agreement.

[Lord Newby (LD)]

My Lords, in his speech yesterday, the noble Lord said that

“we are constantly faced with generalised accusations that we can’t be trusted and are not a reasonable international actor.”

Why does the noble Lords think that this is now the case?

[Lord Frost (Con)]

My Lords, I asked myself that question implicitly in the speech and I still do not really know the answer. I think our behaviour since the start of the year as a fully independent country has been extremely constructive internationally. For example, we have established our own sanctions regime; we have been very proactive in it; we have welcomed citizens of Hong Kong to this country; we have been among the first to raise questions about the treatment of the Uighurs; and we have been the first to bring in sanctions against Belarus. I think we have been extremely constructive in this process over the years. I am sorry that from time to time we have faced accusations that we do not behave accordingly, but I do not think they are justified by the facts.

[Lord Dodds of Duncairn (DUP)]

My Lords, issues of sovereignty and democracy lie at the heart of the problems with the Northern Ireland protocol. Does the Minister agree that we may solve some practical issues, and the EU will produce proposals on that later, but unless we do away with the issue of laws being made for part of the United Kingdom in the 21st century without any say—yea or nay—of elected representatives of Northern Ireland, it will store up future problems of divergence and diversion of trade? Therefore, issues such as the ECJ and the democratic deficit need to be addressed if there is to be a permanent solution to the problems of the protocol.

[Lord Frost (Con)]

I very much agree with the thrust of the noble Lord’s question. We would like to find a permanent solution to this problem, a solution that everybody can get behind in Northern Ireland and beyond and that represents everybody’s interests. That is why partial solutions that tinker around the edges of the existing arrangement will not do the job. The question of sovereignty is fundamental. We have to find solutions that are consistent with UK sovereignty in Northern Ireland and, to come back to it, that support the Belfast/Good Friday agreement, which is fundamental to politics in Northern Ireland.

[Baroness Ritchie of Downpatrick (Non-Afl)]

My Lords, reports about the EU’s proposals, which are to be announced later this afternoon, suggest that they contain a lot of opportunities and solutions. Does the Minister agree that moving goalposts from positions which the British Government agreed with the EU and setting new red lines around the removal of the European Court of Justice, which is not a problem for Manufacturing NI, the leading law firms of Belfast and academics, keeps people divided and undermines businesses in Northern Ireland? Will the Minister ensure that this stops now?

[Lord Frost (Con)]

My Lords, we wait to see what the EU proposes to us later this afternoon. We will look at those proposals very positively and, I hope, constructively. If there are elements in them with which we can work, we will seek to do so. I do not agree that we have been moving the goalposts. We have been clear on our position since we put forward the Command Paper in July. Although other people may use the words “red lines”, I never do. We are beginning a negotiation. We have a track record of reaching successful outcomes in negotiations, despite the predictions that we would not. I hope that we will do so again this time.

[Lord Cormack (Con)]

My Lords, as my noble friend bears some responsibility for this protocol, will he use all his diplomatic gifts, acquired during his years in the Foreign Office, to ensure that we emerge from this difficulty with friends in Europe—those who used to be our partners—and that European friendships at this time of world instability are strengthened, not weakened? Will he be the diplomat?

[Lord Frost (Con)]

My Lords, my noble friend makes an extremely good, apposite point. I am sure he has read my speech made in Lisbon yesterday because I put great emphasis on the need to resolve the current problems, move forward and build friendships in Europe. We have too much in common to have unnecessary division over such questions. We need to resolve them. The western alliance has major interests and major problems to face around the world. We need to stick together and do that. That is why we want to resolve this question, so that we do not have to come back to it and can move on.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I am afraid that the 15 minutes allowed for this Question have now elapsed.

Brexit Opportunities

Lord Frost Excerpts

Thursday 16th September 2021 Lords Chamber

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, with the leave of the House, I will now make a Statement, which is also being made in the other place, on the opportunities this country has now that we have left the European Union.

While we were an EU member, some of the most difficult issues that Governments of both parties faced were over regulatory issues generated by the European Union—to take just some examples, the services directive, the REACH directive, reforms of agricultural policy, very many pieces of financial services legislation and so on. Very often such laws, which had effect in this country, reflected unsatisfactory compromises with other EU member states. We knew that if we did not rescue something from the legislative sausage machine, we would be voted down and risk getting nothing. The laws that resulted were designed to lock every country—no matter its strengths or weaknesses—into the same structures. They were very often overly detailed and prescriptive. Moreover, the results of those negotiations and laws usually either had direct legal effect in the UK or were passed into our law through secondary legislation—either way, with very limited genuine democratic scrutiny.

This Government were elected to get Brexit done and to change this situation, and that is what we intend to do. Much has already changed, even in the last few months, but, given the extent of EU influence over our political system over nearly 50 years, this is a mammoth task. To begin it, we asked my right honourable friend Sir Iain Duncan Smith to lead a team to examine our existing laws in this area and our future opportunities. That team reported back earlier this year, and since then my right honourable friend the Chancellor and I, and other colleagues, have been considering his so-called TIGRR report in some depth. I am writing today to Sir Iain with our formal response to his report and, more importantly, with our plans to act on the basis of it. I am sharing the Government’s response with committee chairs and will deposit it in the Libraries of both Houses. It will also be available very shortly on GOV.UK.

I will now highlight some of the most important elements of these plans. First, we will conduct a review of so-called retained EU law. By this, I mean the very many pieces of legislation which we took on to our own statute book through the European Union (Withdrawal) Act 2018. We must now revisit this huge, but for us anomalous, category of law. In doing so, we have two purposes in mind. First, we intend to remove the special status of retained EU law so that it is no longer a distinct category of UK domestic law but normalised within our law, with a clear legislative status. Unless we do this, we risk giving undue precedence to laws derived from EU legislation over laws made properly by this Parliament. This review also involves ensuring that all courts of this country should have the full ability to depart from EU case law, according to the normal rules. In so doing we will continue, and indeed finalise, the process of restoring this sovereign Parliament, and our courts, to their proper constitutional positions.

Our second goal is to review comprehensively the substantive content of retained EU law. Some of that is already under way—for example, our plans to reform the procurement rules we inherited from the EU, or the plan announced last autumn by my right honourable friend the Chancellor to review much financial services legislation. We will make this a comprehensive exercise. I want to be clear: our intention is eventually to amend, replace or repeal all retained EU law that is not right for the UK. That problem is obviously a legislative one. Accordingly, the solution is also likely to be legislative. We will consider all the options for taking this forward. In particular, we will look at developing a tailored mechanism for accelerating the repeal or amendment of this retained EU law in a way which reflects the fact that, as I have made clear, laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the Government of this country.

Secondly, we intend to begin a new series of reforms to the legislation we inherited on EU exit, in many cases as recommended by the TIGRR report. Let me give just a few examples. We intend to create a pro-growth, trusted data rights regime, more proportionate and less burdensome than the EU’s GDPR. My right honourable friend the previous Secretary of State for Culture announced on 10 September a consultation that is the first stage in putting new rules in place. We intend to review the inherited approach to genetically modified organisms, which in our view is too restrictive and not based on sound science. My right honourable friend the Environment Secretary will also shortly set out plans to reform the regulation of gene-edited organisms. We will use the provisions of the Medicines and Medical Devices Act 2021 to overhaul our clinical trial frameworks, which are based on outdated EU legislation, giving a major boost to the UK’s world-class R&D sector and getting patients access to new life-saving medicines more quickly. The MHRA, which as we know is a world-class regulator, is already reforming the medical devices regulations to create a world-leading regime in this area.

We will unleash Britain’s potential as a world leader in the future of transport. My right honourable friend the Transport Secretary will shortly set out ambitious plans, which include modernising outdated EU vehicle standards and unlocking the full range of new transport technologies. We also intend to repeal the EU’s port services regulations—a very good example of a regulation which was geared heavily towards EU interests and never worked properly for the UK.

We will drive forward our work on artificial intelligence, where the UK is already at the forefront of driving global progress. We will shortly publish the UK’s first national AI strategy, which will set out our plans to supercharge the UK’s AI ecosystem and set standards which will lead the world.

Thirdly, as recommended by TIGRR and the Penrose review, and as promised in the current consultation on reforming the better regulation framework, we will put in place much more rigorous tests within government before we take decisions to regulate. Now that we have control over all our laws, not just a subset of them, we will consider the reintroduction of a one-in, two-out system, which has been shown internationally to make a significant difference to how regulation proceeds.

Finally, Brexit was about giving everybody in this country, once again, a say in how it is run. That is true in this area too. We aim to tap into everybody’s ideas. So we will create a new standing commission, under visible and energetic leadership, to receive ideas from any British citizen on how to repeal or improve regulation. The commission’s job will be to consider such ideas and make recommendations for change, but it will be able to make recommendations only in one direction,: the direction of reducing or eliminating burdens. I hope that, in this way, we will tap into the collective wisdom of the British people and begin to remove the dominance of the arbitrary rule, of unknown origin, over people’s day-to-day lives.

Let me finish by being clear that this is just the beginning of our ambitious plans. I will, of course, return to this House regularly to update your Lordships on our progress and, more importantly, to set out our further intentions.

Brexit was about taking back control—the ability to remove the distortions created by EU membership, to do things differently, in ways that work better for this country, and to promote growth, productivity and prosperity. That is what we intend to do. I recognise that Brexit was not a choice originally supported by all in the country, or even, it seems, by some in this House. But Brexit is now a fact. This country is now embarked on a great voyage. We each have the opportunity to make this new journey a success—to make us, as a country, more contented, more prosperous and more united. I hope everyone will join us in doing so.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, like the noble Baroness, I was slightly surprised by the Statement, which I thank the Minister for giving advance notice of. When I heard that there was going to be a Statement—and we were told only this morning that there would be one this lunchtime—I was quite excited, because I thought it would be on the much-awaited impact assessment showing the economic opportunities for the United Kingdom as a result of Brexit. The Minister’s colleague on the Government Bench, the noble Lord, Lord True, promised me in correspondence two years ago that this impact assessment would happen. But as we heard during Questions to the Minister, it is the fault of everybody other than the Government that this has not happened. Instead of an economic opportunities assessment, we have a shuffling of the legislative rulebook.

Apart from a bit of revisionist narrative from the Minister about some of these regulations that the UK helped design, and then added to when we put them into domestic legislation, there has also been an enormous increase in the bureaucracy and number of regulations as a result of the Brexit process itself. Even during the Questions we just asked the Minister, we saw that the Government have failed to prepare our borders, failed to prepare systems for businesses to be ready and failed to have a system where businesses will even label the goods that are manufactured in the UK. Why do the Government not tackle these urgent issues first?

The Government have indicated that they wanted to end the legislative sausage machine, but by the end of 2020, Ministers had laid around 960 Brexit SIs, with more this year and more to come. Three chairs of committees in this House condemned the use of broad delegated powers instead of policy detail. Will the Government now rationalise the delegated powers they had given themselves to do all of this, where they had indicated that they need new legislative powers to do so, or will the UK legislative sausage machine increase?

The Minister did not mention in his Statement that the EU now has proposals for higher standards on carbon emissions, chemicals, medical devices and copyright protections. Will we fall in line on those areas? Will we update our own legislation to ensure that we are consistent with these higher standards, or will we fall behind?

Why was there no mention in the Minister’s Statement of copyright protection, which is currently being put in place by the European Union? If we do not follow suit, for generated content the UK will have less protection for copyright than our competitors within Europe.

I understand that we will need to review and then replace continuity trade agreements; the Minister did not mention the fact that we have incorporated into many trade agreements the very areas that he said we now want to review. What is the status of all the trade agreements the Government have heralded that we have made up until now?

On the specific areas the Minister mentioned on GDPR, is it still the Government’s position that in the adequacy review from Europe for 2025 we will still seek to be considered to be adequate when it comes to data? Is that a consideration as far as the Government’s position is concerned?

On GMOs, can the Minister confirm that this is England only? There is no reference to the devolved powers. I think the Minister is listening, so can he state that this is England only or will this now be for Scotland too? On clinical trials, is that England only? There was no mention of Northern Ireland in his Statement, which I was curious about. As we heard in Questions and as we debated in Grand Committee, the Government indicated in their Statement today that

“laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the Government of this country.”

However, Northern Ireland will be continuing under many laws from a foreign entity, with no say over them. When I asked the Minister to set out proposals of how the democratic deficit would be addressed for Northern Ireland, he said to me that

“we have set out the issue without proposing a specific way forward”.—[Official Report, 13/9/21; col. GC 286.]

Finally, then, what is the specific way forward? There are many areas that are not present in the Minister’s Statement today, so when will there be a proper debate to allow us to have proper consideration of the Government’s legislative proposals?

[Lord Frost (Con)]

My Lords, I am encouraged by what I have heard from the noble Baroness and the noble Lord because it seems that they share our ambition to do more in this area and are disappointed by the fact that there seems to be less than they had hoped for. I encourage them to read the full reply to Sir Iain Duncan Smith, which I was not able to do justice to in my Statement.

The noble Baroness and the noble Lord underplay what we have been doing. We left the transition period only a few months ago, and already we have a new immigration system; we have agricultural reform arrangements that are different from the common agricultural policy; we are putting in place a new subsidy regime; we are planning to reform procurement rules; and we have put in place an international sanctions regime. We have plans for free ports and, as I said, for data and gene editing, and for reforms of port services, HGVs, energy and much more. That is not a bad list for a few months. We note the ambition and will do our very best to keep driving it forward. I note only that it is self-evident that none of these things would be possible if we had remained in the European Union, and they would also largely not be possible if we had remained in a so-called soft Brexit or European Economic Area model of Brexit, which so many parties opposite recommended.

We are pushing forward change. A large number of issues were raised and I am quite pressed for time. We are setting out a plan to increase the supply of HGV drivers. As I have said, we are in constant touch with the EU about equivalence and SPS rules, and if we could make progress that would be excellent. We are taking steps to support our agricultural industry—my right honourable friend the Prime Minister touched on that yesterday. Labelling is certainly something that we are consulting on, and we are supporting our fishing industry after Brexit, and so on.

The question of the devolved Administrations was raised. I have written to my opposite numbers in all the devolved Administrations and obviously I can guarantee that we will work very closely with them where these reforms intersect with devolved competence, and we wish to work as closely with them as we possibly can.

On the question of the impact assessment and the effect on the economy, I note that the economy is the fastest-growing in the G7. We have 1 million vacancies in the economy in this country, and this economy and this country are already prospering vastly under the arrangements that we are putting in place.

I had better wrap up, but I just say that we stand for change as a country and as a party; that is what people voted for. We want to make us a high-wage, high-productivity economy with controlled migration. People have to invest in the skills of everyone in our country. We do not want to be a low-wage, low-skilled economy reliant on cheap labour and where parts of the economy are neglected. We are putting in place reforms, a process of constant change and improvement, and rules that suit this country and will make a big difference for us in the future.

[Lord Grocott (Lab)]

My Lords, I welcome a number of the advantages that the noble Lord has identified of us being able to make our own laws again, but it might have been interesting or even entertaining if he had also listed the things that have not happened as a result of us leaving the European Union, which I have certainly listened to interminably over the last four years. At random, I say that we do not have the half a million unemployed that George Osborne said would occur; I seem to remember that it was said somewhere that the M20 would be a car park; and essential medicines were not going to be able to get into the country as a result of it all. It might be quite useful to have a list of that sort. However, the exhilarating thing in the Minister’s essential remarks is that if the Government make a mess of this, in two or three or maybe fewer years the British people will throw the Government out—they will have the capacity to do that. In contrast, when the EU has made laws via the Commission over so many years, many of them very bad, no one has been able to do that. That is at the heart of what has happened, and it is still exhilarating.

[Lord Frost (Con)]

My Lords, I thank the noble Lord for his comments. That is a very good suggestion; indeed, a lot of things have not happened that the gloom-mongers said would happen, and they are not going to happen. He is right that this is about bringing back democracy; if you do not like what we are doing, there are ways of dealing with that. We believe we are doing the right thing for the country and that it will prosper under the agenda we are setting out.

[Lord Cormack (Con)]

My Lords, will my noble friend give me some comfort? I thought that “take back control” meant an elevation of parliamentary sovereignty. Why are we therefore seeing so many government Bills stuffed with Henry VIII clauses? We had one on Tuesday this week. What we want is the sovereignty of Parliament—Parliament in control—not the sovereignty of the Executive.

--- Later in debate ---

[Lord Frost (Con)]

My Lords, I have a huge amount of sympathy with the thrust of my noble friend’s comment. It is about bringing back democracy and restoring the authority of this Parliament. I recognise the controversy about the Henry VIII clauses, as he describes them. They deal with a particular situation involving the inherited EU law and the complexities of managing the legal transformation out of the European Union, and I hope that they will be seen in that very specific context.

[Baroness Wheatcroft (CB)]

My Lords, the Minister now boasts on his Twitter feed profile:

“You don’t get something for nothing, you can’t have freedom for free.”


Apparently, it is from a Rush song from “2112”. I do not recall him carrying that message around as he was leading us into Brexit. Since we have heard what we are going to do with that new-found freedom, in the absence of an impact assessment, can he tell us at what cost this freedom has been bought?

[Lord Frost (Con)]

My Lords, I do not think it has been bought at any cost. I make no apology for standing up for freedom—free enterprise and freedom to think and debate—and that is what we did not have very much of in the final years of our EU membership until the referendum. It is axiomatic, in my view, that free debate, free enterprise, free economies and the ability to change your Government will always benefit the countries that have those things. There is a lot of empirical evidence around the world that that proposition is correct.

[Lord Liddle (Lab)]

My Lords, the Minister’s predecessors in his position—the noble Lord, Lord True, who is sitting next to him, and the noble Lord, Lord Callanan—gave us repeated promises during the passage of the Brexit Bills through Parliament that the Government had no intention to weaken in any way the social, environmental and consumer protections that were involved EU law. Will he repeat that commitment today? Moreover, if he is not prepared to repeat it in full, will he give us a guarantee, following on from the question of the noble Lord, Lord Cormack, that these issues will not be dealt with by some tailored mechanism to speed up legislative passage but will be put before this House for full debate?

[Lord Frost (Con)]

My Lords, we are a high-standards country. The manifesto on which we won the election in 2019 was very clear about our intention to maintain high standards in all those areas. That does not mean that we do not intend to change them. The world moves on; high standards need to reflect the context in which we are operating. I am sure there will be change, but I do not believe that those changes will result in regression of standards.

On the noble Lord’s second point, I come back to the point I made earlier: many of these laws were not subject to any form of meaningful scrutiny in this Parliament and may have been imposed against the will of the Government. The way we progress on them needs to reflect that fundamental reality.

[Lord Hannan of Kingsclere (Con)]

My Lords, I very much welcome the Statement and the fact that my noble friend is here to give it. I very much welcome the report. I was astonished, when I was a new MEP 21 years ago, by how much big corporations lobbied for precisely these kinds of regulations, almost always because they saw an opportunity to disadvantage a rival by getting standards that they happened to follow anyway. Of course, they did not put it in that way— they would call it consumer rights or environmental protection—but that is almost always what it was, and it is wonderful that we are finally doing something about it.

Does my noble friend agree that the same principle should apply to our trade policy? Does he share my concern that the Trade Remedies Authority’s recommendation to remove some of the steel tariffs brought in by the European Union in retaliation against Trump was overturned? Does he see the same possibility of politics overriding economics, and does he believe that a global Britain should be an engaged, free-trading country where imports are cheap, costs are low and people have more money to spend on stimulating the entire economy?

[Lord Frost (Con)]

My Lords, I do believe those things. I have two points in response. On industry support for regulation, one reason that we intend to set up our standing commission is to make sure that we can listen not just to trade associations and big companies, important though they are, but to small and medium-sized enterprises, the people who gain from change and doing things differently, as well as those who gain from things being as they are. On free trade, of course I am a free trader. I believe that this country prospers by free trade; I think the whole Government believe that. On steel, obviously there is a particular situation in the global market in steel which has been discussed elsewhere, but, as a general proposition, we wish to reduce barriers, reduce tariffs, get in place free trade agreements and allow everyone to prosper.

[Baroness Ritchie of Downpatrick (Non-Afl)]

My Lords, the Minister referred to medicines and the MHRA in his Statement. Can he give your Lordships’ House assurances that the issues around the delivery and supply of medicines to Northern Ireland will be resolved in an amicable manner with the European Union? When do the Government expect to bring forward legislation to deal with that issue?

[Lord Frost (Con)]

My Lords, we set out our view on that in the Command Paper. It is obviously right and essential that people in Northern Ireland have the same access to medicines as those anywhere else in the United Kingdom, and we intend to ensure that. We think the best way would be to remove medicines from the protocol entirely, and that is what we still hope to be able to agree consensually but, as we have made clear, the tests for using Article 16 are met, safeguards are justified and this is obviously an area where there is a matter of the state’s responsibility to all our citizens. The actions we take need to be seen in that context.

[Baroness Hoey (Non-Afl)]

My Lords, I very much welcome this Statement from the Minister. It is one of the reasons millions of people all over the country voted to leave the European Union. I want to ask him about the timescale, because I worry that sometimes reviews get stuck at the bottom of some civil servant’s tray. I would like to make sure that this comes back to us very quickly and that we see the results of leaving the European Union as soon as possible. I ask him to say something about the timetable.

[Lord Frost (Con)]

My Lords, there is a complex list of proposals, consultations, ideas for legislation, specific plans for legislation, and so on, so it is hard to generalise. However, I wish to be clear that we intend to pursue all this urgently. That is why it is my responsibility as a Cabinet Minister to make this happen, over and above the departmental responsibilities that other Secretaries of State have. We certainly intend to pursue the review of EU law extremely urgently so that we can deliver results and make a difference rapidly.

[Lord Lilley (Con)]

My Lords, I welcome my noble friend’s Statement and, like him, I welcome the call from the Labour Front Bench for even more ambitious deregulation. It is healthy that there should be this competition between the two sides to improve and update our legislation, which we had no opportunity to do when we were in the European Union. I suggest that the way to move forward now, on top of the excellent TIGGR report, is to go back to the original briefs that Ministers were given when these directives were being negotiated. Invariably, they said, “Minister, we don’t really want this, but the best thing to do is to try to get it amended a bit here and a bit there”—and, if possible, a bit more than we actually got. If nothing else, there would be a guide to changes we can make just by going back to those briefs.

[Lord Frost (Con)]

My Lords, I very much welcome that suggestion from my noble friend. It is an extremely good one and a reminder that in many cases, Governments of both parties opposed proposals that have now become law and to which we are supposed to reconcile ourselves. I will certainly take that up and see what we can find—within the limits of Civil Service record-keeping capacity, which may impose some limits on what we are able to do.

[Lord Empey (UUP)]

My Lords, the Minister will be aware that the issue with the protocol in Northern Ireland is not necessarily its operation but its existence; that is the basic problem. Will he confirm that large swathes of the law that he proposes to amend and change will not be possible in Northern Ireland? We had evidence at our committee yesterday to that effect. The gap between the two parts of the United Kingdom will increase, not decrease, as this process goes on.

[Lord Frost (Con)]

This is obviously a very significant issue and why we put forward the proposals that we have in the Command Paper to try to deal with the problem. Our proposals for dual standards for goods circulating in Northern Ireland and a different way to manage the governance of the arrangements would, we hope, deal with the anomalies that exist, but, of course, they remain to be negotiated. It is a very significant difficulty which we have debated frequently and hope to resolve.

[Lord Davies of Brixton (Lab)]

My Lords, I am not used to this unarmed combat. Will the Minister update the House on the work of the Partnership Council? It held its first meeting on 9 June, since when we have heard nothing. This is despite the series of difficult issues that the council is meant to resolve following our departure from the EU, not least the recognition of professional qualifications. This body has the appearance of being the “long-grass council” where the issues that the Minister has failed to resolve will be left to fester.

[Lord Frost (Con)]

My Lords, I am certainly happy to update the House. The Partnership Council met before the summer, as the noble Lord noted. I would expect it to meet again before the end of the year. It is of course the supreme body of a complex substructure and the specialised committees have been meeting. Those that have not will meet over the rest of this month and in October, and will provide proposals and ideas to the council. So, although it may not be as visible as we would wish, there is a huge process under way that is designed to look at difficulties and, we hope, find ways of resolving them, including the question of qualifications that the noble Lord mentioned.

[Lord Dodds of Duncairn (DUP)]

My Lords, the issue of taxation without representation is becoming a bigger problem every day for Northern Ireland. These suggestions and proposals by the Minister, which are very welcome in many respects, simply cannot be applied to Northern Ireland. He must recognise the urgency of this situation. The EU is trying to kick the can down the road until after the Assembly elections next year. Will he act within the very short timeframe that we now have if stability is to be restored and proper democratic accountability for laws made for Northern Ireland introduced?

[Lord Frost (Con)]

My Lords, we certainly recognise the urgency of the situation and very much share the noble Lord’s anxiety on this question. The relative stability in Northern Ireland is because our Command Paper proposals are regarded as a good set of proposals that are capable of resolving the problem. Obviously, it is one thing to put them forward and another to see them implemented, so we absolutely need to have a meaningful negotiating process with the EU, which we do not quite have yet, to see whether we can resolve the issues centrally and to know that quickly. If we cannot do so, as I have said, other ways forward are possible.

[Lord McLoughlin (Con)]

My Lords, I very much welcome the Statement by my noble friend. Can he assure us that the Government will be able to respond quickly in certain areas when problems arise unexpectedly—not least on the issue of lorry drivers, which is perhaps a good example at the moment, and the requirements of the CPC regulations? For some lorry drivers who recently retired and are unable to go back into the industry because they do not have CPC regulation, would one of the solutions not be to allow them to operate within the United Kingdom without that regulation if they have a long record of driving safely?

--- Later in debate ---

[Lord Frost (Con)]

My Lords, my right honourable friend the Secretary of State for Transport has of course set out proposals in this area, and I am confident that they will deal with the situation over time. My noble friend’s general point is a good one. There is often a tendency to dismiss problems until they are evident, rather than get ahead of them. A degree of responsiveness, perhaps, via our standing commission—but not only through that—should help us to reap the benefits of the ability to move quickly, which we did not have in the European Union.

[Lord Adonis (Lab)]

My Lords, what would the Minister regard as the essential benchmark of success for the reforms he set out today in a year’s time?

[Lord Frost (Con)]

My Lords, the purpose of these reforms is, in the long run, to improve the productivity of the UK by putting in place regulations that are tailored to our conditions, rather than the average. So the goal of this Government is to improve productivity, growth and prosperity for everybody after Brexit. That is obviously one of the metrics on which the British people will make their judgment when the time arises.

[Lord Lansley (Con)]

My Lords, I am sure that the business community, which faces considerable pressures on costs and competitiveness, will be pleased to hear about the standing commission and the opportunity to address regulatory issues. However, will my noble friend add something about the Government’s quantified objectives in this regard? Last year, not including the effects of Covid, Brexit or Grenfell, regulation on business increased by £5.7 billion while the Government’s target was a net-zero increase. So what kind of objectives are the Government looking for in this regard, and will he and the Government confirm the importance of independent verification of that by the Regulatory Policy Committee?

[Lord Frost (Con)]

My Lords, the matters that my noble friend raised in his question are germane to the consultation on the regulatory framework, which I touched on and which obviously is still open—so I do not want to get ahead of that. I certainly very much agree with his general proposition that there is a kind of dead weight that tends to move in one direction, and it takes a lot of effort to push back against it and improve regulatory conditions overall. As I said, the possibility of “one in, x out” is one way of doing that, but there are other ways, and we are looking into how Governments around the world, including national sub-states and so on, have achieved this—so we will have more to say on that question.

Protocol on Ireland/Northern Ireland: Power-sharing

Lord Frost Excerpts

Thursday 16th September 2021 Lords Chamber

[Baroness Hoey]

To ask the Minister of State at the Cabinet Office (Lord Frost) what assessment Her Majesty’s Government have made of the operation of the Protocol on Ireland/Northern Ireland on power sharing in Northern Ireland and the Belfast/Good Friday Agreement.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, the Government’s position on this matter is set out in the Command Paper we published on 21 July. In brief, the Government are indeed concerned that the operation of the protocol is causing political instability in Northern Ireland and risks undermining the Belfast/Good Friday agreement. That is why we wish to negotiate significant changes to its operation on the basis of the proposals in our Command Paper. We are, of course, discussing these issues with the EU.

[Baroness Hoey (Non-Afl)]

I welcome Her Majesty’s Government recognising that the east-west dimension of the Belfast/Good Friday agreement has been broken by the protocol, which has led to destabilisation of all the institutions in Northern Ireland. Does the Minister understand that many people in Northern Ireland are saying that Her Majesty’s Government must actually choose, very soon, between the protocol and making the devolved institutions carry on successfully?

[Lord Frost (Con)]

My Lords, the institutions in Northern Ireland are, of course, extremely important, including for delivery in a range of domestic policy areas—health, transport and so on—and it is important they are robust and continue. We absolutely recognise the frustration with the current situation, which is leading to the build-up of tensions and pressures on the institutions that we are seeing. That is why we need to find durable solutions to the protocol and the trading situation in Northern Ireland that will be a reasonable settlement consistent with the integrity of the UK and the UK’s internal market.

[Lord Caine (Con)]

My Lords, given the rising political temperature in Belfast, does my noble friend agree that it would be a supreme and tragic irony if the EU’s implementation of a protocol that it insists is necessary to preserve the Belfast agreement actually became an instrument for the destruction of that agreement, which I would deeply deplore? Does he share my concern that if the institutions were to fall again at Stormont, it could take very many years for them to be restored, if at all?

[Lord Frost (Con)]

My Lords, I very much agree with the thrust of my noble friend’s question. Protecting the Belfast/Good Friday agreement is our top priority; it was the overriding purpose of the protocol and it is why we are so concerned about the destabilising character of the way it is being implemented. Actually, I recognise and welcome the signals that the EU is beginning to understand this and reflect on it, but we still need solutions based on the ideas for significant change that were in our Command Paper.

[Lord Kerr of Kinlochard (CB)]

There clearly is a general and continuing sense in Northern Ireland that its fate is still being decided over its head—that it is not being fully involved or consulted. That was presumably why Commission Vice-President Šefčovič said in Belfast last week,

“let’s see how to involve the people of Northern Ireland in our discussions on the implementation of the protocol.”

The noble Lord’s White Paper talks about the need to give Northern Ireland a greater role in discussions under the protocol, but we do not actually need to change the protocol to do that. Does he agree that when the joint committee considers future single-market laws on devolved subjects, members of the Northern Ireland Executive should play the leading role in the UK delegation?

[Lord Frost (Con)]

The noble Lord is correct, of course, that the issue of involving political opinion and institutions in Northern Ireland is for the UK Government. We do that, and the Northern Ireland Executive attend the joint committee when the Irish Government attend on the EU side, which is always the case. I think the EU should exercise caution in suggesting that Northern Ireland parties or political opinion should take part in the EU’s own institutions and decision-making procedures in this area: I do not think that would be consistent with the sort of arrangement we want in the future. The protocol is a treaty between two parties, the UK and the EU, and supporting arrangements need to be consistent with that.

[Baroness Suttie (LD)]

My Lords, further to the question of the noble Lord, Lord Kerr, does the Minister now regret signing up to the Northern Ireland protocol without prior consultation of the political parties in Northern Ireland?

[Lord Frost (Con)]

My Lords, as I think is well known, there was at the time in 2019 quite a degree of consultation as we developed our negotiating position but, unfortunately, the outcome of that process and the positions taken by different parties are well known. We did the right thing for the country in putting in place an agreement that delivered a full and fair Brexit but, unfortunately, that agreement has not been implemented in the way we hoped it would, and that is why it needs to change.

[Baroness Donaghy (Lab)]

My Lords, the Minister was extremely frank in the debate on Monday afternoon about the origins of the Northern Ireland protocol. I for one was grateful for that and, dare I say, for his slight change of tone. In a previous life as chair of ACAS, I would advise the parties to say as little as possible, to maximise the possibility of agreement, so I am aware of the irony of asking him a question, and I will make it a full toss if that helps. Does he agree that the top priorities are peace in Northern Ireland, good relations with the Irish Republic, and assisting those very impressive businesspeople in Northern Ireland that the EU Select Committee and its successor have spent the last two years getting to know?

[Lord Frost (Con)]

My Lords, the noble Baroness is obviously correct that it can be helpful to say as little as possible when you are trying to find solutions. This is obviously a matter of considerable political interest on all sides and what we say has to reflect that. I very much agree that the top priority is peace—protecting the Belfast/Good Friday agreement—but the other aims she mentions are extremely important. It is our job as a Government to promote peace and prosperity for everybody in Northern Ireland.

[Lord Robathan (Con)]

If our friends, neighbours and allies across the channel, or indeed on the island of Ireland, are not willing to compromise and make changes to this agreement, is it not time to withdraw unilaterally from the protocol, before the political and trading chaos in that part of the United Kingdom—Northern Ireland—gets worse or, as we have heard, before the entire Belfast agreement collapses?

[Lord Frost (Con)]

My Lords, we have set out our position in the Command Paper. We are very clear that the conditions for Article 16 safeguards are met, but we think the right way forward is to see whether we can find a consensual solution with the EU. That is what we are trying very hard to do and will continue to do. Consensual solutions are likely to be the solutions that stick—but, if we cannot find a consensual solution, we will have to go down other routes, as my noble friend notes.

[Lord Kilclooney (CB)]

My Lords, does the noble Lord agree that the protocol is a breach of the Belfast agreement, that it may undermine that agreement and bring about the closure of devolved government within weeks, and that it may even, worse still, lead to violence on the streets? Does the Minister recall that the Belfast agreement, signed by both the United Kingdom and the Republic of Ireland, stated that it would be wrong to make any change to the status of Northern Ireland, save with the consent of the majority of its people? Were the people of Northern Ireland consulted about this protocol? If not, was the Secretary of State for Northern Ireland advised in advance of its contents before Her Majesty’s Government agreed it with the European Union?

[Lord Frost (Con)]

My Lords, the question involves a lot of rather complex issues and I feel I cannot really do justice to it in the time available. The overriding purpose of the protocol is to support the Belfast/Good Friday agreement, and it is a matter of great regret to us that it is being implemented in a way that is undermining that agreement and causing many of the problems that the noble Lord mentions. The protocol is clear that nothing in it infringes the territorial integrity of the UK or its internal market, or our customs territory; the problem is that, in practice, those requirements are not necessarily being put in place as fully as we would wish. That is why we need to find solutions that deal with these problems definitively and consensually, if we can, so that we can move on.

Imports from EU to UK: Grace Period

Lord Frost Excerpts

Thursday 16th September 2021 Lords Chamber

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, as I have noted, the Government have set out a pragmatic new timetable for introducing full import controls for goods imported from the EU to the UK. This revised timetable gives businesses more time to adjust to the new processes as they recover from the pandemic, which has impacted supply chains across Europe. As I have also noted, we have no plans to change this timetable further.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, as well as a damaging, dangerous shortage of HGV drivers and millions of pounds’ worth of food rotting in the fields around the United Kingdom, we now have this unbalanced situation where UK exports to the EU have full checks but there is this further, “pragmatic” delay in checks on imports, which will cause problems for our importers. Can the Minister remind the House who was responsible for negotiating this disastrous deal? Could he tell us the secret which might be of interest to some of his former colleagues: how did he get reappointed to the Cabinet?

[Lord Frost (Con)]

My Lords, there are some things that are best not delved into, I think. I am sorry that the noble Lord feels that an agreement with the EU which restores democracy to this country and gives us power over our own rules is so disastrous. It was nevertheless what we were elected to achieve and have achieved. We are very confident that we will benefit from it.

[Lord Purvis of Tweed (LD)]

My Lords, in his answer to my previous question, the Minister indicated that the appropriate comparison on trade figures would be with 2018, the last time that the economy was stable. The latest ONS figures, from July, show that trade with the EU is now down by 11%. What other pragmatic measures can the Government take to restore trade with the single market of the European Union?

[Lord Frost (Con)]

My Lords, as I frequently note, there are obviously many things going on in the global economy and in global supply chains, including the pandemic, increased costs and so on, and it is very difficult to draw firm conclusions from trade figures. It is true that July’s figures show a small dip in exports to the EU but, nevertheless, since January, exports to the EU have been rising consistently. In June, they were higher than the pre-pandemic, pre-Brexit figures. We are confident that British business is rising to the challenge and will continue to do so.

[Lord Liddle (Lab)]

My Lords, does the Minister agree that what he describes as a “pragmatic” policy is in fact a measure of discrimination by the British Government against non-EU imports at our borders, because they face controls in a way that EU imports do not? Does he accept that, as a result of that, we are potentially in breach of our WTO legal obligations as discriminating against different categories of people? Does he further accept that Covid is no excuse for these “pragmatic” delays? After all, the EU was able to impose its proper border controls in January 2021. Is this not yet a further example, of the many, of this Government’s incompetence in managing a very botched Brexit?

--- Later in debate ---

[Lord Frost (Con)]

My Lords, obviously there is a distinction in how we manage goods imported from the rest of the world compared to those from the European Union. That is consistent with WTO law and is obviously dependent on the special circumstances of us leaving the customs union and the single market. It is our intention, of course, to have a single set of world-class rules by 2025—if possible, earlier—for all goods that will give us the best border in the world. The decisions that we have taken on import controls are consistent with that and on that trajectory.

[Lord Lilley (Con)]

I welcome my noble friend’s decision to prolong the grace periods, for the reasons that my noble friend Lord Moylan spelled out earlier, but will he confirm that experience of grace periods in Northern Ireland shows the wisdom of what he is doing: that refraining from introducing the additional controls that the EU wanted us to impose on trade between Great Britain and Northern Ireland has not resulted in a flow of goods into the EU across the Irish border or undermined EU standards in any way, and that the only reason the EU is persisting in wanting us to apply those controls is to punish us and the people of Northern Ireland for Brexit?

[Lord Frost (Con)]

Of course, I agree very much with the thrust of my noble friend’s question. We believe that in the decisions we have taken, both in the context of the protocol and on trade more broadly, we are showing pragmatism in the way we are managing our borders, with a due focus on the real levels of risk involved. We hope that the European Union will do the same in the context of Northern Ireland and allow us to put in place arrangements, as set out in our Command Paper, that are consistent with those levels of risk.

[Baroness Chapman of Darlington (Lab)]

My Lords, it is striking that none of the problems raised is anything to do with the Minister or with the Government; it is all about Covid, the French, the Irish or the EU, but the nation is starting to suss this out. The Food and Drink Federation said just this week that the Government are undermining trust and confidence, because responsible businesses prepare for changes that repeatedly do not happen. Frustration is growing. Food and drink is Britain’s biggest manufacturing sector, employing people in every region, and it needs certainty. Does the Minister accept that if we do not reach a lasting agreement soon, these stopgap solutions will cost jobs?

[Lord Frost (Con)]

My Lords, we have great food and drink industries in this country; some of them have imports in their supply chains as well as exports and the free flow of trade in both directions is very important. I have noted what the Food and Drink Federation has said on this subject. I could not help noting that, last week, it was worrying about the consequences of introducing these controls and fearing that the just-in-time system would not work, while, this week, it is concerned that we have delayed the controls, so I think we just have to take the best decisions we can in the interests of the whole economy and enable our businesses to prosper as a result.

[Baroness Neville-Rolfe (Con)]

Does the Minister realise that the grace period puts British industries at a substantial short-term disadvantage? Are there any upsides beyond those already described by my noble friend Lord Moylan? I am very glad to see that my noble friend Lord Frost is still a Minister. What diplomatic and other steps will he take to put this matter on to a more satisfactory long-term basis?

[Lord Frost (Con)]

My Lords, we are obviously in constant touch with the European Union through the institutions created in the trade and co-operation agreement and many others. We sought last year to negotiate more relaxed arrangements at the border in both directions, on food and drink and on other issues. Unfortunately, the EU was not open to that at that point, but if it were to become open to it in future, we would obviously wish to engage in that discussion. That is clear, and we will keep making that case, because we believe that it is in the interests of both parties.

[Lord Dubs (Lab)]

My Lords, is the Minister aware that accusations are being made against him that he is of the view that sabre-rattling gets results from Brussels? What can he do improve our relationships both with Brussels and in particular with the Irish Government? Does he agree that our relations with those two are pretty poor at the moment?

[Lord Frost (Con)]

My Lords, I do not agree that relations with either Government or entity are poor, though relations can always be better, of course, and there are some significant differences between us at the moment. I am not sure that I agree with the suggestion that we are sabre-rattling; that is not the way we go about things. We are setting out our case and being clear about what changes would produce a better situation, whether as regards the protocol or anything else. It helps relations when countries are clear about what they think and others can respond.

[Baroness Randerson (LD)]

My Lords, one of the things deterring people from becoming HGV drivers is the amount of time now spent going through the ports, with so many extra forms to deal with. The Minister has recognised this by extending yet again the date for implementation of the new rules, but of course they apply going into the EU. What is the Government’s estimate per average lorry of the additional time it now takes to transport goods to the EU? How many additional HGV drivers do we need for that alone?

[Lord Frost (Con)]

My Lords, we obviously keep the flow of HGVs, lorries and trade at all our ports under very close scrutiny. I do not have figures to hand on that subject, but I know that trade is now flowing freely, delays are minimal and I pay tribute to the customs authorities not only of our Government but of our closest trading neighbours—France, Belgium and others—who show a degree of pragmatism in enabling this to happen, so that whatever difficulties there were at the start of the year are no longer significant and trade is flowing freely.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, the time allowed for this Question has now elapsed.

Imports from EU to GB: Business Preparation

Lord Frost Excerpts

Thursday 16th September 2021 Lords Chamber

[The Earl of Kinnoull]

To ask the Minister of State at the Cabinet Office (Lord Frost) what steps Her Majesty’s Government are taking to prepare businesses for the introduction of new checks and controls on imports into Great Britain from the European Union on 1 October 2021 and 1 January 2022.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, on 14 September I announced a pragmatic new timetable for introducing certain controls for goods imported from the EU to the UK to give businesses more time to adjust. These controls will be introduced in two stages, on 1 January and 1 July. The Government continue to support all businesses trading with the EU in all sectors, including by putting in place additional staffing, comprehensive guidance for businesses and funding infrastructure to ease border processes.

[The Earl of Kinnoull (CB)]

In February 2020, the Government indicated that full border controls on EU imports would commence on 1 January 2021. In June 2020, the Government announced that many controls would instead be phased in, with mixed deadlines, from April to July 2021. In March 2021, the Government delayed the introduction of this mix of controls further, with phases from October 2021 to March 2022. Earlier this week, just three weeks before the first part of the mix was due to be implemented, the Government announced yet another delay, with phases from January to July 2022. Three times now, businesses have spent time, and no doubt money, preparing for key deadlines, and three times they have seen the can kicked down the road. What steps will the Government take to restore business confidence in their timetable for import controls, and will they compensate businesses for their wasted efforts?

[Lord Frost (Con)]

My Lords, it has of course been an extraordinary year to 18 months economically. We have been dealing with a pandemic of unpredictable quality, and it is very clear that there are global strains on supply chains and other aspects of the business environment. That is why we do not apologise for taking this series of pragmatic decisions to respond to the evolving situation. We have no plans to evolve these changes further, and the money that businesses have already spent in dealing with the situation will have been well spent.

[Lord Grantchester (Lab)]

Experiences of déjà vu are becoming not uncommon in this Government’s implementation of their own EU plans, despite repeated assurances. This means that Britain will continue to face full checks and controls on its exports, as it did from day 1, while imports will continue with border-free access. Supply chain problems resolve around massive labour shortages. To keep Christmas dinner on the table, will the Government now introduce a 12-month emergency visa implementation? Can the Government give assurances that extending agreements on the provision of veterinary services and updating paper health certificates online will become part of the solution to guard against the potential risk of disease and infections?

[Lord Frost (Con)]

My Lords, we face a complex set of interacting economic facts at the moment, and the decision that we took responds to that. We maintain the controls that are right for us, and we now have the powers to control and manage our economy as we see fit. We do not have to do the same thing as the European Union, and indeed, after 1 July, we are unlikely to have exactly the same levels of physical checks as the EU. We monitor the situation in all its respects, and we will take the decisions that are necessary to support the British economy.

[Lord Purvis of Tweed (LD)]

My Lords, on 21 July, the Government published their new border operating model, page 8 of which gives a commentary about how they have taken into consideration the impacts of Covid as the reason why they had made the delays already. So what has happened in the intervening seven weeks, between 21 July and now, that allows the Government to think that they are still not ready at their ports?

--- Later in debate ---

[Lord Frost (Con)]

My Lords, it has been very evident over the early autumn that there are challenges with maintaining supply chains, and these are not limited to the UK. There are shortages of HGV drivers across Europe and beyond, and there has been a very significant increase in costs globally in the shipping of goods. These strains have become evident over the summer, and we have taken a pragmatic decision to respond to that and do what we can support British business in these circumstances.

[Lord Moylan (Con)]

My Lords, I welcome this delay, and indeed I hope that it becomes permanent. EU goods are safe, and the food is wholesome; we have been using them and eating it for 40 years. Trade rules do not need to be reciprocal, and, if the European Union chooses stupidly to impose upon its consumers the penalties of protectionism, there is no need for us to reciprocate. Does my noble friend agree that it is about time that the British Government were setting a free trade example to the European Union, and indeed showing it that such an approach could be applied with benefit on the UK’s border with Ireland, in place of the undemocratic protocol?

[Lord Frost (Con)]

My Lords, I think our position on the protocol is well known, and we may come to it later. Of course, my noble friend is absolutely right to say that it makes sense for us to put in place the controls that are right for us. Of course, there are controls—customs controls came in on 1 January—but we do not have to replicate everything that the European Union does. We intend to have a world-class border by 2025, with proportionate checks based on risk. That is the right way to proceed.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, yesterday, my noble friend Lord Adonis shared with us a six year-old photograph of a very slimline David Frost saying that the whisky industry needed the “fewest possible barriers” in order to sell into European markets. That is what business still wants, but the Government do not seem to listen, despite the fact that surely they must be involved in the design of the procedures and not just told at the end, “This is what you must implement”. Next week, almost a year after the trade agreement was signed, the Minister’s consultation on engagement with business closes. Can he assure the House that he will respond rapidly to that and put in place a robust system of consultation with business, unions and consumers?

[Lord Frost (Con)]

I thank the noble Baroness for that question. She is of course correct that our consultation on involving industry and civil society more generally in the implementation of the trade and co-operation agreement closes shortly. We will of course respond soon: we need to get these bodies up and running before the end of the year, and it is absolutely our intention to do so. As a general principle, it is right that the fewest possible controls are always best—that is clear. Of course, we are not always in control of the controls that the European Union puts in place. We believe that the benefits of being outside the customs union and in control of our own trade policy very much outweigh any disadvantages.

[Baroness McIntosh of Pickering (Con)]

Of course, the greatest free market was the single market, which we very sadly left. My noble friend negotiated very successfully the trade and co-operation agreement. Will he use his good offices to ensure that this world-class border, which we would all welcome, will lead to a single portal for documentation that will be largely online? If he finds that we have trained most of the EU drivers that have left and gone back to their respective countries, could we at least give them a short-term visa to come back and help us out over the Christmas period—the noble Lord, Lord Grantchester, suggested that we might need this?

[Lord Frost (Con)]

My Lords, I agree of course with my noble friend that an aspiration for a world-class border is very important; that is where we intend to go. Indeed, we hope that the so-called single trade window —a single portal—will be a very significant part of that, as we take this forward. As regards HGV drivers, my right honourable friend the Secretary of State for Transport has, on a couple of occasions, set out our plans to make it easier to increase the supply of drivers, and I am sure that that will bear fruit very soon.

[Baroness Smith of Newnham (LD)]

Last weekend, I left the United Kingdom for the first time since the end of transition period. I went to France, and I got in very easily: I showed my passport and my vaccine pass, and that was it. When I came back, it looked like a world-class border when I got to Stansted, where I just showed my electronic passport, but, to get there, I had to fill in numerous forms that the airline was expected to verify. Are the Government proposing to keep that sort of regulation going? Surely that is a deterrent to tourism and other people coming to the United Kingdom, which surely a world-class country would be wanting, not trying to discourage?

[Lord Frost (Con)]

I am sure that we all share the aspiration for borders that are as freely flowing as possible. Obviously, we are dealing with the consequences of a pandemic, and that requires controls and processes that, in an ideal world, we would not want to be in place. This matter is very much debated elsewhere. I repeat my point that we wish to see goods and people flow as freely as possible, consistent with maintaining responsible border controls of all kinds. That is what we intend to put in place.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, all supplementary questions have been asked, and we now move to the next Question.

Protocol on Ireland/Northern Ireland (EUC Report)

Lord Frost Excerpts

Monday 13th September 2021 Grand Committee

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, I begin by thanking all noble Lords who have contributed to today’s debate, and everyone on the two committees, the European Union Committee and the Sub-Committee on the Protocol on Ireland/Northern Ireland, who prepared the two reports that we have discussed today.

It has been an incredibly rich debate and very many interesting points have been raised. It is fair to say that quite a lot of them have been discussed extensively already, one way or another, over the last five years, but I will do my very best to deal with the points made in the limited time I have available. Much has of course changed since the European Union Committee’s report from last year. Nevertheless, as has been noted, the report correctly anticipated many of the difficulties we are now facing, in particular, as many noble Lords referred to, the complexity of balancing the commitments in Articles 4 and 6 of the protocol with those in Article 5.

The introductory report from the Sub-Committee on the Protocol on Ireland/Northern Ireland, chaired by the noble Lord, Lord Jay, identifies many of the issues that we must confront if we are to deliver a sustainable solution for Northern Ireland. Of course, as has been said, the date of its finalisation coincided with the publication of the Command Paper, which means that the very latest evolution of the position could not be fully taken into account. The report is no less powerful and useful for that in its scrutiny of the operation of the protocol and I am grateful to the committee for it. The Government will respond later this month; lots is happening but, in doing so, we will of course provide the most up-to-date response possible, with an eye on the situation in Northern Ireland and on talks with the EU, which both continue to evolve rapidly. That timing will also us time to comment on the planned joint consultative working group which—to the point from the noble Earl, Lord Kinnoull—will take place tomorrow and on a potential specialised committee, which may take place during this month. If that is the case, we will reflect those in our response.

I also thank the noble Lord, Lord Jay, for his comments on scrutiny. It is of course our intention—I repeat it again—to ensure that the committee has what it needs to do its job in these very unusual circumstances.

As I was listening to the debate, I was reminded of the very well-known opening line from Anna Karenina:

“All happy families are alike; each unhappy family is unhappy in its own way.”


What I have heard is nobody being particularly happy about the protocol, but everybody having a different set of problems with it. Unfortunately, it is the responsibility of the Government not just to analyse but to act, and that is what we intend to do. That is what we have set out in the Command Paper and that is how we intend to take things forward.

Against the background of the comments on the two reports that we have been debating, the Government of course agree with the analysis that there has been significant economic disruption in Northern Ireland. As the noble Lord, Lord Dodds, noted, this affects everybody in Northern Ireland, not just a part of it. Much of the problems that we face can be attributed to the EU’s rigid focus on protecting the single market over and above other elements of the protocol. This has forced businesses to engage in these burdensome and disproportionate customs and agri-food requirements and has caused significant trade diversion as companies reorganise their supply chains. I agree with the noble Earl, Lord Kinnoull, that companies could consider—indeed, they arguably are, in the worst case—the viability of operating in Northern Ireland at all.

We have also seen a degree of political instability and community unrest, exacerbated by concerns—about which we have heard today—that there is a democratic deficit with large volumes of EU law applying without any say for the people of Northern Ireland. I agree that significant constitutional and democratic issues are raised by the protocol. My noble friend Lord Moylan put them very clearly. They are also touched on in the court case, the judicial review, which several noble Lords referred to. I will not go further on that as it is under appeal, but it is obviously a significant case.

I will pick up a couple of points made by a number of noble Lords. The issue of why the Government agreed the protocol in the first place was, not surprisingly, touched on by many—the noble Baroness, Lady Suttie, the noble Lords, Lord Thomas, Lord Kerr and Lord Empey, and, perhaps most strongly, the noble Lord, Lord Hannay. Many noted that the protocol was agreed by this Government and wondered why we agreed a deal the difficulties of which are so evident. In answer, I refer to my noble friend Lord Caine’s description of the circumstances that led to the unsatisfactory joint report at the end of 2017. As he rightly said, that shaped everything that followed.

In paragraphs 13 and 14 of the Command Paper, we set out our analysis of the situation. We point out the consequence of the then Parliament’s decision to undermine the Government’s negotiating hand at a critical moment in these talks. As we say in the Command Paper, in those circumstances, it was right to agree the best compromise we could, which allowed the UK as a whole to leave the EU in a genuine and meaningful way, without being locked into the backstop and enabling a free trade agreement such as that which we subsequently agreed. We feared that some of the elements of the protocol that were forced upon us in those final days and insisted upon by the EU would turn out to cause problems, and we were right in that analysis. Nevertheless, as many noble Lords said, that is how we have got to where we are now.

The noble Lord, Lord Purvis, and the noble Baroness, Lady Suttie, asked whether this is the best of both worlds, having agreed the protocol. Is the right to access the single market important? I am with the noble Lord, Lord Dodds, on this: he pointed out, as is correct, that Northern Ireland’s economic links are overwhelmingly with Great Britain. Access to the single market does not, in our view, compensate for disruption of those links. The important thing is the economic unity of the UK; the protocol purports to protect the UK single market, but it does not, at the moment.

If there is relative calm in Northern Ireland at the moment, it is because the proposals in our Command Paper are recognised as serious and enjoy a lot of support, and because there is an expectation that the EU will take them seriously. We therefore agree with the assessment of the committees’ reports that the UK and EU must collectively take urgent action to address the situation as it now is. If our proposals in the Command Paper were agreed, they would satisfactorily address many of the reports’ conclusions, including those on at-risk goods, supplementary declarations, parcels, medicines, livestock, pets, VAT, quotas—the list goes on.

As we know, the problem is that the protocol is not delivering in its current form. It is not delivering on its core objectives: to minimise disruption to everyday lives, to respect Northern Ireland’s integral place in the UK’s internal market and, above all, to preserve the delicate balance in the Belfast/Good Friday agreement, in all its dimensions. Once again, I very much agree with the noble Earl, Lord Kinnoull, that the protocol must ultimately be viewed through the lens of the peace process.

This situation needs to be fixed. We would prefer to do so by negotiation and have set out proposals to that effect. We believe they are extremely reasonable. As the noble Lord, Lord Thomas, noted, they work with the grain of the protocol. They do not scrap it or sweep it away. We agree with the noble Lord, Lord Wood, that simply scrapping the protocol is not a solution. There will always need to be a treaty relationship between the UK and EU covering Northern Ireland. The question is: what? Our proposals would put that on to a different and more sustainable footing.

Substantively, they would differentiate goods moving from Great Britain to Northern Ireland according to destination and we, as the UK Government, would take on the responsibility of managing those processes ourselves. They would enable goods of both standards, UK and EU, to circulate within Northern Ireland, thus eliminating one of the major impediments in practice to maintaining the UK’s single market.

In this context, the noble Baronesses, Lady Chapman and Lady Suttie, and the noble Lord, Lord Hannay, again raised the question of an SPS agreement. Our proposals as set out in the Command Paper would deal with the issue of agri-food and food standards by this dual-standard proposal for Northern Ireland. As we say in the Command Paper, a tailored SPS agreement could certainly help support those arrangements, but they are not essential to them. We have put forward such a proposal. It has not been discussed as much as we would like, but perhaps it will be in the future.

The noble Baroness, Lady Chapman, also raised Article 10, which, as she rightly noted, is touched on in the Command Paper. It is correct to say that Article 10 is to a large extent superseded. We will soon have a clear, legally binding framework for state aid and subsidy policy within the UK. It makes sense to fit arrangements in Northern Ireland into that context rather than the other way round.

To make all this work, we are ready to put in place exceptional arrangements for data sharing to reassure the EU, and, as has been noted, we are ready to penalise those looking to export to the EU goods which do not meet EU standards. These would be significant changes to the protocol, but they are still highly unusual by international standards. They would represent a huge compromise by the Government: to enforce others’ rules within this country.

If these arrangements under the protocol are to be sustainable, they must be underpinned by an amended governance framework. I am afraid I do not share with the noble Lord, Lord Thomas, the benign view of the European Court of Justice and the way it has worked. Our view is that, in the sensitive situation of Northern Ireland, the best way forward is to remove the role of the EU institutions and the jurisdiction of the court by negotiation if we can. I have met many in Northern Ireland. I know that the pre-eminence of these institutions has fostered a sense that Northern Ireland is being treated like an EU member, to be held in compliance in relation to rules over which there is no say and without any of the checks and balances that apply if you are a normal member state.

The noble Lord, Lord Kerr, raised north-south bodies and went a little further by suggesting that a sensible way forward would be for Northern Ireland to have some representation within the EU institutions while these arrangements applied in Northern Ireland. It probably will not surprise the noble Lord to hear that I am not a fan of that solution. The UK is not a member state of the European Union; it is not represented in the EU institutions. It could not make sense for a part of the UK to be so represented. More to the point, I do not think it would help reassure those concerned about their identity and the status of Northern Ireland within the UK if we went down that road. It is not a useful way forward. As my noble friend Lord Hannan noted, it would pull Northern Ireland further into the EU’s orbit in a way that would exacerbate some of the difficulties rather than help resolve them.

The reality is that disputes in Northern Ireland are best resolved not through imposing the EU’s legal order but by finding compromises through arbitration that can balance all the objectives of the protocol and win the support of everybody in Northern Ireland. We believe that is the right way to proceed.

As I have said, we would prefer to proceed by negotiation. I agree with the noble Lord, Lord Jay, and the conclusions of the committee that this is the most constructive way forward. I welcome the comment of the noble Baroness, Lady Chapman, that she has noted a change of tone in the way that we have pursued things in recent weeks.

We now need the space to conduct the necessary discussions with the European Union as part of a meaningful political process. That is why, straight after publishing the Command Paper, we proposed a standstill in operating the protocol to create room for exactly those negotiations. That is also why, as I have noted, last week we announced that the protocol will continue to operate on its current basis for now. The current processes for moving goods between Great Britain and Northern Ireland are maintained, and the grace periods and easements remain in place.

The Commission has noted this decision and has said that the current legal actions are on hold. We too welcome this change in tone from it, which I think allows room for discussion. It will also ensure that businesses can have confidence that there are no cliff edges in operating the protocol and that consumers in Northern Ireland can continue to be supplied. However, the extension of grace periods is not and cannot be a permanent solution to this problem and something more durable needs to be found. I can certainly reassure the noble Baroness, Lady Hoey, that our aim is not to continue this situation indefinitely. The current situation is designed to create space for discussions; that is its purpose.

[Lord Purvis of Tweed (LD)]

Can the Minister please give way? I am grateful. For clarification, regarding the democratic deficit and the need for consultation, in paragraph 71 of the Command Paper the Government are calling for

“more robust arrangements to ensure that, as rules are developed, they take account of their implications for Northern Ireland—and provide a stronger role for those in Northern Ireland to whom they apply”.

Can the Minister outline what the Government intend by some of these mechanisms, because they do not state it in the Command Paper?

--- Later in debate ---

[Lord Frost (Con)]

I thank the noble Lord for his intervention. The point that he mentions in paragraph 71, the issue of engagement of the Northern Ireland institutions in this process, is one of the most sensitive of all and I do not think it would have been right for us to set out a specific way forward in the Command Paper.

The difficulty we have is the lack of democratic consent for specific measures as they come through from the EU’s law-making process. At the moment those are imposed without consent. We are proposing a reordering of the governance arrangements of the protocol so that the consent, if it exists in Northern Ireland for such measures, can be more real, meaningful and based on genuine debate. There are a number of ways of achieving that if the EU wants to go down that road and that is a pre-eminently political question for people in Northern Ireland, as well as one for the UK Government. That is why we have set out the issue without proposing a specific way forward, but it is very much an issue for discussion.

We want to proceed by negotiation and that is part of it. I want to be clear about what is possible for us in doing so. First, the Command Paper sets out how the tests for Article 16 are, in our view, met. I urge the European Union to take that judgment seriously. It would be making a significant mistake if it thought we were not ready to use Article 16 safeguards if that were the only apparent way forward to deal with the situation in front of us. As my noble friend Lord Hannan commented, there is ample justification for doing so.

Secondly, if we are to avoid this situation there needs to be real negotiation between us and the European Union. The noble Earl, Lord Kinnoull, correctly referred to the need for an atmosphere of co-operation and trust. Others, such as the noble Baronesses, Lady Suttie and Lady Chapman, and the noble Lord, Lord Empey, echoed that. The question of trust has come up a lot in these discussions. The noble Lord, Lord Jay, asked for assurances that the time we have before us would be used constructively and the noble Baroness, Lady Ritchie, asked for an assessment of progress on that negotiation. We have had several technical discussions. I will give the floor to the noble Lord, Lord Hannay.

[Lord Hannay of Chiswick (CB)]

The noble Lord mentioned Article 16. Can he answer two questions? First, does he agree with the view expressed in the debate—which I do not agree with—that the European Union triggered Article 16 in January? My understanding is that the Commission sought the powers to trigger but never triggered. The more important question is: have the Government done any analysis at all of the sort of compensatory measures the European Union would likely take if we triggered Article 16 in circumstances it considered unjustified?

[Lord Frost (Con)]

I thank the noble Lord for his intervention. The issue of what the European Union did or did not do at the end of January deserves a bit of comment. There are two aspects to this. The first is the question of Article 16: was it triggered or not? In a way, obviously, the intention is as important as the fact. It is our view that it was triggered, however briefly. It was certainly the intention to do so. The second aspect of what the EU did in January—the reason why Article 16 was used—sometimes gets less comment. It intended to use it to put in place a process across the land border on the island of Ireland, something that for the previous five years we had been told was impossible, undesirable and disastrous. That is as much why this struck and changed the debate so much as the very fact of Article 16.

On the second point, if we were to use Article 16, it would obviously be open to the EU to consider countermeasures if it wished. I do not want to get too far down the hypothetical road, but it is obviously a possibility. Of course, there has been a good deal of analysis of that. We would have to see what the situation was in those circumstances, but everyone has an interest in avoiding needless deterioration of trade and needless further economic difficulties for either side, at a time when supply chain and trade costs are so significantly raised already. That will obviously be a matter for the European Union, and we have to take it as such.

To return to my flow, regarding where we are in talks at the moment, we have had a series of technical discussions with the EU and continue to do so. These have been quite helpful, but they are nevertheless talks about talks; they are not yet a process that gets to the fundamentals, and we need to get into that. We must get into something more substantive as a matter of urgency.

A real negotiation does not mean the EU coming up with its own plans for solutions within the framework of the existing protocol and presenting them to us, take it or leave it. To be honest, I have been a bit concerned by a couple of the comments I have heard from Commission representatives in recent days, which seem to suggest they might be considering that way forward. The noble Lord, Lord Kerr, picked up the comment by Maroš Šefčovič the other day, when he said:

“A renegotiation of the protocol … would mean instability, uncertainty and unpredictability in Northern Ireland.”


Unfortunately, we already have all those things in Northern Ireland. The question is: how do we move on from them? I do not take Commissioner Šefčovič’s words as a dismissal of our position. I take them as acknowledgement of it, but also as a fairly clear indication that there is more to be done. I urge the EU to think again on that point and consider working to reach genuine agreement with us so that we can put in place something that will last.

I am conscious of time and will wind up quickly. The negotiations need to begin soon. I will not put a timescale on that, but it needs to be urgent as the situation is urgent.

Finally, I would urge the Commission to be sensitive to the situation in Northern Ireland in its actions. The EU has a treaty with us, and as my noble friend Lord Moylan made very clear, that does not make it a part of the Government of Northern Ireland. We are very happy to receive representatives of the Commission in Northern Ireland at any point, so that they understand the situation there, but I gently suggest that they should be cautious in coming to public judgments about the situation, or suggesting it is for the EU itself to decide how to resolve it. I do not think that will make the situation calmer; it will make it more difficult.

The situation we face is complex and challenging, self-evidently, but there is still a real opportunity for us both to find durable arrangements. That is our intention and our wish, and that is where we will be putting all of our effort in the next few weeks—in arrangements that can win the confidence of communities in Northern Ireland. We are ready to seize this opportunity and we urge, as strongly as we can, the EU to do the same. Bold action is needed to build a new, sustainable consensus. Once again, I thank all noble Lords for their contributions to the debate, and I look forward to continuing it, as I am sure we will, in many different fora in the future.

Northern Ireland Protocol

Lord Frost Excerpts

Wednesday 21st July 2021 Lords Chamber

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, with the leave of the House, I will now make a Statement, which is being simultaneously made in the other place, on the Government’s approach to the Northern Ireland protocol.

The Northern Ireland protocol was designed to achieve a delicate balance between a number of different aims. It reflected a truly extraordinary compromise by the Government in 2019, driven by our steadfast commitment to the Belfast/Good Friday agreement in all its dimensions. Just over a year afterwards, we also agreed the trade and co-operation agreement, the broadest and most far-reaching such agreement ever struck. Together, these offered the building blocks of a strong, constructive partnership between the UK and the EU, as sovereign equals, yet we have not been able to unlock the potential of that new partnership, and the impact of the current protocol is at the heart of that.

There is no doubt that we have tried to operate the protocol in good faith. We worked throughout 2020 to finalise the areas left open by the protocol text itself, without of course knowing what the real-world impacts of those decisions on the ground would be. This year, we are planning to invest around £500 million in delivering systems and support services to operate the protocol. We have worked with business to help its preparations for the new trading arrangements, but nevertheless, as we have sought to operate the protocol, it is clear that its burdens have been the source of considerable and ongoing disruption to lives and livelihoods. We have seen reductions in supermarket product lines. We have seen more than 200 suppliers decide that they would no longer sell to Northern Ireland. We have seen difficulties not just on the famous chilled meats issue but on medicines, on pets, on movements of live animals, on seeds and plants, and on many others.

Indeed, nowhere are these problems more visible than in the fact that the Northern Ireland Executive conduct 20% of all the EU documentary checks on products of animal origin, despite a population of only 1.8 million people. These burdens will worsen, not improve, over time as grace periods expire, leaving businesses facing ever more unsustainable burdens. These impacts risk being felt in the fabric of our union too. All dimensions of the Belfast/Good Friday agreement need to be respected—that is, Northern Ireland’s integral place in our United Kingdom just as much as the north-south dimension of the agreement.

Yet there is a growing sense in Northern Ireland that we have not found the right balance, seen in an ongoing febrile political climate, protests and occasional regrettable instances of disorder, and strains within a power-sharing Executive already dealing with an unprecedented pandemic. We have worked with the EU to try to address these challenges. Some avenues for progress have been identified in certain areas but, overall, those discussions have not got to the heart of the problem. Put very simply, we cannot go on as we are. We have therefore had to consider all our options. In particular, we have looked carefully at the safeguards provided by Article 16 of the protocol. These exist to deal with significant societal and economic difficulties, as well as with trade diversion. There has been significant disruption to east-west trade, a significant increase in trade on the island of Ireland as companies change supply chains, and considerable disruption to everyday lives. There has also been societal instability, seen most regrettably with the disorder across Northern Ireland at Easter. Indeed, the false but raw perception in the unionist community of separation from the rest of the United Kingdom has had profound political consequences. These are very serious effects, which have put people, businesses, and the institutions of the Belfast/Good Friday agreement under strain.

It is clear that the circumstances exist to justify the use of Article 16. Nevertheless, we have concluded that it is not the right moment to do so. Instead, we see an opportunity to proceed differently—to find a new path; to seek to agree with the EU, through negotiations, a new balance in our arrangements covering Northern Ireland, to the benefit of all. It is in that spirit that today’s Command Paper outlines the new balance that we wish to find. It is a balance which needs to ensure that goods can circulate much more freely within the UK customs territory, while ensuring that full processes are applied to goods destined for the EU. It is a balance which needs to enable all in Northern Ireland to continue to have normal access to goods from the rest of the UK, by allowing goods meeting both UK and EU standards to circulate there. And it is a balance which needs to normalise the basis of the protocol’s governance, so that the relationship between us and the EU is no longer policed by the EU institutions and the court of justice. We should return to a normal treaty framework, similar to all our other international agreements, that is more conducive to the sense of genuine and equitable partnership that we seek.

Of course, we also recognise our share of responsibility in helping the EU to protect its single market. As part of this, we are willing to explore exceptional arrangements around data sharing and co-operation, and penalties in legislation to deter those looking to move non-compliant products from Northern Ireland to Ireland. I repeat that all this is entirely consistent with maintaining an open border, without infrastructure or checks, between Ireland and Northern Ireland.

These proposals will require significant change to the Northern Ireland protocol. We do not shy away from that. We believe that such change is necessary to deal with the situation that we now face. We look to open a discussion on these proposals urgently. At the same time, we must provide certainty and stability for businesses as we do so, so we believe that we and the EU should also quickly agree a standstill period, as it were, including maintaining the operation of grace periods in force and a freeze on existing legal actions and processes. This is to ensure that there is room to negotiate and to provide a genuine signal of good intent to find ways forward.

The difficulties that we have in operating the Northern Ireland protocol are now the main obstacle to building a relationship with the EU that reflects our strong common interests and values. Instead of that relationship, we are seeing one which is punctuated with legal challenges and characterised by disagreement and mistrust. We do not want that pattern to be set, not least because it does not support stability in Northern Ireland.

It is now the time to work to establish a new balance which both the UK and the EU can invest in, to provide a platform for peace and prosperity in Northern Ireland and to allow us to set out on a new path of partnership with the EU. We have today in our Command Paper set out an approach which we believe can do just that. We urge the EU to look at it with fresh eyes, and to work with us to seize this opportunity and to put our relations on to a better footing. We stand ready to work with it in delivering the brighter future that is within reach.

--- Later in debate ---

[Baroness Ludford (LD) [V]]

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

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

The Statement claims that the Government have

“tried to operate the protocol in good faith”—

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

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

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

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

So, while the Minister believes that the protocol

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

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

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

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

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

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

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

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

[Lord Frost (Con)]

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

[Noble Lords]

Oh!

[Lord Frost (Con)]

No doubt, that is the source of some of what is read in the press this morning, but I would not like anyone to think that we were not showing appropriate respect to this House in the way that we have gone about this matter.

Turning to the substance: a lot was said about us not standing by our commitments as a Government, about unilateral actions and so on—which I find slightly surprising, because that is not what we have proposed. We have proposed a way forward based on consensus and negotiation. That is the responsible thing in these circumstances. We have always said that all options remain on the table, but we have chosen the way of negotiation and compromise, and we hope that the EU will respond in that way. We believe that the possibilities, if it does, are really quite exciting, so that is the way we would like to proceed.

The issue was raised of why we did not foresee this situation. The current protocol reflects the extraordinary circumstances in which it was agreed, when this Government risked being unable to deliver on a democratically determined referendum result because their negotiating hands were tied by actions in this Parliament. We proposed, and eventually agreed, a protocol that was substantially different from our initial proposals, particularly in customs arrangements and in limiting the consent principle. We thought these changes might well cause problems, but we thought that, with a pragmatic, light-touch application of the rules, the right thing to do was to try to make the protocol work.

We could not predict the future; we could not have foreseen the political turbulence the EU would spark off with its Article 16 proposal in January; we did not anticipate the very purist application that would be applied to some of its provisions. We have all learned from experience. We now know what is working and what is not, and we believe that the best way to resolve the situation is to try to negotiate changes—and we do not see what is wrong with that. Anyone would think that it was a highly unusual thing to renegotiate a treaty; of course, it is not. To take one example: the UK-France treaty on juxtaposed controls was itself a supplementary protocol to an agreement reached in 1986, signed in 1991, renegotiated in 2000 and renegotiated in 2007, as the nature of the juxtaposed controls and the situation they were working in changed. So, there is nothing particularly unusual in this, and we do not apologise for it.

The issue of checks between Northern Ireland and Great Britain was raised, and the noble Baroness raised the issue of the Prime Minister’s comments about “throwing forms in the bin”. I would note that he made those comments in the context of movements from Northern Ireland to Great Britain, and there are no forms for such movements. That was something we secured with the EU in 2020, and that unfettered access is extremely important for these arrangements.

The issue of trust was raised, which is clearly extremely important. Trust takes two, and the EU’s actions on vaccines, on Article 16 and on the immediate resort to legal action to try to stop people in Northern Ireland going on holiday to Great Britain with their pets are all actions that are not conducive to trust. We do not want a relationship with high levels of mistrust. The current problems in the relationship are caused by the extreme difficulties in operating the protocol reasonably. If we can get to a better protocol, we will have resolved some of those problems. That is why we are trying to proceed by consensus and get to a better situation.

The issue of people in Northern Ireland was raised. Of course, the protocol itself requires there to be no impact, or minimised impact, on the everyday lives of people in Northern Ireland. The fact that that is not being observed is one of the major problems with the current situation, and that is why we wish to see if we can resolve it in a negotiated way.

The veterinary agreement was raised, and we have made it clear that our position is that an agreement by equivalence could solve problems. But in this Command Paper we are proposing something more fundamental: dealing with the fundamentals of the difficulties rather than the problems. Our proposal for a dual regulatory zone with appropriate processes backing it up—and one of those things could be a veterinary agreement—will resolve these issues in a more fundamental way.

The issue of Article 16 was raised. We set out the thinking on that in the Command Paper, and it is a very legitimate tool for use within the protocol. That is why it is there. We made it clear that the situation would justify the use of Article 16, if we wished to, to deal with both current issues—for example, chilled meats, parcels and so on—and the broader arrangements under which goods enter Northern Ireland from Great Britain. But we have chosen not to go down that route. We prefer to proceed by negotiation, and I hope we can.

I will make a few final points. I have seen the comments from the US State Department spokesman overnight in which he urges everyone to solve differences by negotiation and protect the Belfast/Good Friday agreement. We absolutely 100% agree with that, and that is what we have set out today.

The issue of stability in Northern Ireland is very important: business needs stability. The problem is that we do not have stability now, and anyone who heard the comments from the chair of Marks & Spencer this morning and has seen his letter will be very clear about the kind of extreme difficulties that businesses will face if we simply proceed without trying to rectify the situation. We do not have stability now. We need to produce a solution that will generate stability and get us forward into the future.

So we look to make proposals. We have made proposals that set out a negotiated approach. They are significant and substantive; they offer a good chance, in our view, of resolving difficulties on a durable basis; and we very much hope that the EU will look at them, consider them carefully and go forward with us on that journey.

--- Later in debate ---

[Lord Jay of Ewelme (CB) [V]]

My Lords, I am grateful to the Minister for giving evidence on the protocol last week to the committee that I chair. We greatly look forward to future such meetings. We will, of course, study the proposals and the White Paper carefully. Meanwhile, I have one question for the Minister. He spoke about trust. Could he confirm that the Government will do all they can to build—or, perhaps I should say, to rebuild—the trust between the British Government, the European Union and the Irish Government that is essential if we are collectively to find a resolution to the protocol that is in the interests of all communities in Northern Ireland and that they profoundly deserve?

[Lord Frost (Con)]

My Lords, I very much agree with those comments. I could spend time, but will not, looking at the origins of this situation of mistrust and why it has been established. I do not think it is helpful to do so today; we are looking forwards and have to deal with the situation as it is. Our very clear proposal to proceed by negotiation, agreement and discussion will, we hope, begin to help re-establish some of the trust that it seems is lacking on both sides.

[Lord Caine (Con)]

My Lords, rigid and theological implementation of the protocol has severely disrupted trade, adversely impacted consumers, hit businesses in both Great Britain and Northern Ireland and contributed to political instability. In welcoming my noble friend’s Statement, therefore, I ask: does he agree that it is now the time for the EU fully to respect Northern Ireland’s position within the UK internal market, along with the constitutional and economic integrity of our United Kingdom? Failing that, I assure my noble friend that he will be entirely justified in taking whatever unilateral action is necessary to remedy the current unsustainable situation. In so doing, he will have the strong support of many of us.

[Lord Frost (Con)]

I thank my noble friend for his comments. He is obviously correct in saying the place of Northern Ireland in the United Kingdom, in the single market, in the customs territory, is protected on the face of the protocol and is absolutely fundamental. It is the doubts that have been allowed to develop on that subject that are part of the reason we face the situation we face today.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, in light of the absence of trust caused by the original internal market Bill last September and the unilateral extensions of grace periods in March, how confident is the Minister that the EU will have the appetite to consider such a fundamental departure from the protocol in terms of Article 5? After all, the UK Government negotiated, agreed and ratified the protocol.

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[Lord Frost (Con)]

My Lords, obviously we will have to see how the EU reacts to these proposals. I hope it will consider them seriously as a significant proposal to find a durable settlement. It is true that they are significant changes to the protocol text and will require that, but we hope that the EU will see that the prize of a durable settlement that allows us to move on is worth the process issue of reopening the protocol text. We must keep our eyes on the prize and what we are trying to do here.

[Baroness Goudie (Lab) [V]]

My Lords, trust is clearly broken and must be repaired. The protocol would not have been necessary but it is now, and it is an imperfect solution to a problem unnecessarily caused and created. It does, however, avoid the crippling blow to the peace process that a hard border would have represented and would represent, and it contains special measures to protect human rights and equality until someone suggests a better solution. Also, it is vital as part of the Good Friday agreement that investment will be coming to Northern Ireland and I hope that this Government will continue to encourage this, with the other partners of the Good Friday agreement. Can the Minister give me an undertaking that this is still happening? What plans does he have to take it further, working with colleagues in Europe and the United States?

[Lord Frost (Con)]

My Lords, we are obviously ready to work with anybody and plans are in train to encourage investment into Northern Ireland; I believe there are some events in prospect in the next few months. The noble Baroness is right to call the protocol an imperfect solution: I think it is very clear that it is imperfect. I would say, as she does, that much of the protocol is not in question. Issues such as the common travel area, human rights, the Good Friday agreement and so on are not controversial. What we must do is make sure that the trade and governance arrangements of the protocol work better, and the proposals we have put on the table work with the concepts in the protocol to try to achieve just that.

[Lord Empey (UUP)]

My Lords, today is not the day to enter into a discussion of how we got into this mess, but one fact is clear: the businesses and the people of Northern Ireland are the innocent victims of a situation which they did not create and did not want. With that in mind, I ask my noble friend: are we seriously, as a Government, going to look at real alternatives capable of resolving these issues within the concept of the Belfast agreement, which I believe has been completely demolished by the current protocol? We want new arrangements that are workable, coherent and long-lasting and will bring the stability that businesses and consumers in Northern Ireland urgently need.

[Lord Frost (Con)]

My Lords, I very much agree with the thrust of my noble friend’s comments. The proposals that we have put on the table are significant and pretty fundamental in the way that they would adjust the way the trading arrangements of the protocol work. They are intended to be durable and to do something significantly different from what is done now. As I say, we work, in these proposals, with concepts of the protocol; we have not swept it away. We do not agree that the right thing is simply to scrap the protocol and that nothing need fill its place. We believe that the right thing is to work with the grain and use the concepts, but use them to make sure that the arrangements work in a significantly different fashion.

[Lord Purvis of Tweed (LD)]

My Lords, decisions made by the Boris Johnson Government, not the EU, over the last year have meant that, for the first time in our history, a Government of the UK are compelling UK businesses that trade within the UK to Northern Ireland to register with the Government as an exporter. Any goods from GB to Northern Ireland will have to be separately conformity-assessed and separately labelled and, this month, new parcel and shipping taxes for consumers, set by a foreign power, are now being paid by people, over which we have no representation whatever. There is no mention at all of these in the Command Paper. Does that mean that businesses will have to live with this unacceptable and outrageous burden on UK businesses trading within the UK?

[Lord Frost (Con)]

My Lords, we have set out in the Command Paper the very high-level elements of the approach we wish to pursue. Of course, we want to discuss the detail with the European Union, including in many areas. What we are proposing is an extremely light-touch measure to allow trade to flow freely within the UK customs union and single market. We think that is a reasonable response to the situation that currently prevails.

[Baroness Noakes (Con)]

My Lords, I very much welcome my noble friend’s Statement and I hope the whole House will join me in praising his huge efforts to try to make our relationship with the EU work effectively. Does he agree that the guiding star should be what works for the citizens of Northern Ireland, and that if the EU could shift to a people-centric rather than a rules-centric approach, we could start to make some real progress?

[Lord Frost (Con)]

I very much agree with the thrust of my noble friend’s comments. The impact of the protocol on everyday lives in Northern Ireland is a significant part of the difficulty. Again, if one looks at the comments from the chair of Marks & Spencer, we see the risks to everyday life; for example, the risk of not being able to deliver supplies for Christmas under the current arrangements. I do not think that is what either the European Union or we actually want in this situation, and if we can focus on the practicalities and the reality of the situation and try to find a way through, we will all be the better for it.

[Lord Dodds of Duncairn (DUP)]

My Lords, clearly the Northern Ireland protocol is not fit for purpose; it is not working or delivering for Northern Ireland. Any noble Lord who visits Northern Ireland and talks to people will know that immediately, and the Minister has done that frequently. Whatever the benefits, they are massively outweighed by the disadvantages—economic, societal and political. Can the Minister assure me that at the end of this process of renegotiation, or if direct action may be necessary by the Government, we will end up in a position where the new balance of arrangements will restore Northern Ireland to its proper place, with no Irish Sea border and with elected representatives of the people of Northern Ireland, either here or in the Assembly, having the final say over the laws that govern Northern Ireland?

[Lord Frost (Con)]

My Lords, it is clear that the balance we have in the protocol is not working at the moment, and I have explained why on many occasions. The issue raised by the noble Lord is one reason why we think changes to the governance arrangements in this protocol are so important. It simply does not fit with the reality of the situation to have laws imposed and policed by institutions outside the UK territory and subject to the judgments of courts that are not courts of the UK. If we can agree that—I recognise that it is a significant point—I think we will find some of the problems raised by the noble Lord beginning to melt away.

[The Earl of Kinnoull (CB)]

My Lords, there are 32 committees set up under the TCA and the withdrawal agreement, only three of which are directly relevant to the Ireland/Northern Ireland protocol, leaving 29 that are not—presumably now 30, given the overnight news on Gibraltar. Does the Minister share the concerns of many that the trust problems that are taking place within the Ireland/Northern Ireland protocol might leak across to these other 30 forums, which would be most unfortunate? If he shares those concerns, what are the Government doing to address that?

[Lord Frost (Con)]

My Lords, where there are trust problems between us and the European Union, they stem ultimately from the issues that we have on the protocol. I agree 100% with the noble Lord that we must try to nip that in the bud and stop it getting in the way, in a durable way, of the rest of the relationship. The issue of Gibraltar that he raises obviously is a dispute about a different issue. There are analogous elements, but it is important to keep these things separate. The mandate that the EU agreed yesterday does seem to be problematic in a number of ways, as my right honourable friend the Foreign Secretary made clear yesterday. But I do not think it makes sense to connect one thing with another. We deal with each of these issues on its own terms and try to proceed in a constructive way.

[Lord Thomas of Gresford (LD) [V]]

My Lords, seven months ago the Minister negotiated and signed the protocol and presented it to the British people as a triumph. Today he stands at the Dispatch Box and says, “It’s rubbish, doesn’t work, we’ve got to have something better”. Would not the first step—and the best way of resolving the trust problems to which he referred—be for him to resign for a gross failure of government policy for which he is personally responsible?

[A noble Lord]

Just say no.

[Lord Frost (Con)]

My Lords, the protocol of course was agreed nearly two years ago now, and a lot of water has flowed under the bridge since then. We are saying, and we continue to say, that it needs improvement. We have experience that elements of the protocol are not working well, and there is nothing wrong with trying to improve elements of a treaty; it happens all the time.

[Baroness Hoey (Non-Afl) [V]]

I thank the noble Lord for his time spent in Northern Ireland listening to people, and for the recognition that the protocol is not working and cannot work. I welcome the proposed changes; particularly important is removing Northern Ireland from being subject to EU rules and the EU court without any say. Could the Minister give us some idea of timescale in terms of just how long these negotiations might go on before it is felt to be time to do something more drastic? Does he agree with me that, if the European Union is really concerned about peace and stability in Northern Ireland, it will respond positively to these proposals—and respond very speedily?

[Lord Frost (Con)]

My Lords, there are plenty of deadlines in this process already; I do not want to add to them by generating others. We have proposed a standstill—and I will write shortly to the Commission proposing this. Obviously, if a standstill can be agreed, it will take away some of the significance of the expiry of the current grace period. I very much hope we will be able to do that. Obviously, if we cannot, the 30 September deadline is not very far away. We do not want to be faced with the same situation that we have been faced with before on chilled meats and have to focus on solving the cliff-edge problem, rather than dealing with the fundamental underlying problems.

[Lord Lilley (Con)]

My Lords, I welcome my noble friend’s practical and forward-looking proposals and deplore the backward-looking point-scoring of both Opposition Front Benches. Can my noble friend confirm that, although the EU and its apologists in this House claim that the protocol requires rigid application of all EU rules and checks on goods entering Northern Ireland from Great Britain, in fact, Article 6 says that the Joint Committee shall adopt “appropriate recommendations” to avoid controls at the ports and airports in Northern Ireland “to the extent possible”? So, if the EU refuses to respond positively to his proposals, it will be in breach of both the letter and spirit of the protocol.

[Lord Frost (Con)]

My noble friend as always makes a very good point. The issue of the requirements in Article 5 and the requirement in Article 6 to avoid checks and controls is of course one of the areas where you cannot just read the protocol straight; you have to look at the purpose and the way its different provisions interact. It is certainly arguable that the Article 6 commitments are not being delivered on, but we have not so far sought to argue that, because the protocol is a political and purposive document and we believe that the right way to solve the problems arising is in a political way, rather than immediately reaching for legal arguments and processes.

[Lord Kerr of Kinlochard (CB) [V]]

My Lords, this is serious business. Our Queen’s name is on this treaty that we now want to change. The Minister correctly points to precedents for changes to treaties, but I cannot recall any precedent for our condoning—still less proposing—unilateral action if we do not get a negotiated change and the other side does not agree.

I have three particular questions, to which I request precise answers from the Minister, now or in writing. First, on good faith, how does he square with the treaty’s Article 5 our continuing refusal to allow the EU access to the customs database, as we said we would? Secondly, on goods at risk, how does he square his honesty box proposal with what the protocol’s Article 5.2 says about the onus of proof? Thirdly and finally, on Article 16 on safeguards, which the Minister mentioned, which UK exporters would the Government expect to be hit by EU rebalancing measures under the protocol’s Article 16.2?

[Lord Frost (Con)]

My Lords, I will address those three points very briefly. We do allow access to the databases. We have recently agreed enhanced access and we have a discussion in train to allow further access. We have no difficulty with access to data; indeed, our own solution requires quite wide access to data to provide reassurances. It is certainly true on the second point that what we are proposing is not consistent with Article 5 as it stands; that is why we need to change it. The system we are proposing is a trust and verify system, which is perfectly normal in business and in these arrangements, and which we think will work very well in this context too. On Article 16, I have set out where we are on this issue. We hope that it will not be necessary to use Article 16. We are trying to proceed by agreement—so hopefully the contingency evoked by the noble Lord will not arise.

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

My Lords, the time allowed for Back-Bench questions on this Statement have now elapsed. I will allow a minute for a changeover and we will then proceed with further business.