Northern Ireland Protocol Bill

Debate between Lord Hannay of Chiswick and Lord Frost

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Frost (Con)]

My Lords, I thank noble Lords, in particular my noble friend Lady Nicholson, for allowing me to speak out of sequence so that I could give evidence to the European Affairs Committee. I reassure my noble friend Lady Wheatcroft that I have been following as much of this very important debate as I can. It is a huge pleasure to be here to support the Government on this Second Reading of the Bill.

The House heard my views on the sad deterioration of the situation in Northern Ireland many times when I was on the Front Bench. I do not need to repeat them, as many noble Lords have made the point this afternoon. Clearly, the attempt to apply the protocol is no longer delivering the original intention of supporting the Belfast/Good Friday agreement, but undermining it. Unionism has lost confidence in it, the status quo is highly unstable and risky, and change is needed.

That change is needed for economic as well as political reasons. Those who argue, as some have today, that Northern Ireland is benefiting from the protocol are simply wrong. Since the entry into force of the protocol, the UK’s economy has grown by 7.5% and Northern Ireland’s by 5.5%. PMI surveys in Northern Ireland have been consistently lower than the UK’s, and have actually been negative in the last four months. Exports from Great Britain to the EU have grown faster than those of Northern Ireland to the EU, which suggests that the supposed export boom from Northern Ireland to Ireland is a bit of a fantasy or an artefact of trade diversion. The Government are well within their rights to try to remedy this situation and bring forward this Bill. I note that it passed the other place unamended; that fact must influence the approach taken in this House.

The Government have made their view clear too, in their statement on 13 June, that the Bill is

“justified as a matter of international law.”

Of course, it is possible to find lawyers who take a different view—we have heard many distinguished lawyers today—but the Government are entitled to proceed on the basis of their own legal analysis, and that analysis is not disproven just by the existence of alternative opinions.

This Bill is essential not only on its own merits but in order to strengthen the hand of the British Government in their negotiations. If a negotiated agreement can be reached, that is obviously much better, but it is very hard to see that an agreement that does not amend the protocol very significantly will do the job. I work on the assumption that it is the intention of the Government to achieve a negotiated settlement of that level of ambition. The Prime Minister said in Parliament on 7 September that she preferred a negotiated solution, but

“it does have to deliver all the things that we set out in the Northern Ireland Protocol Bill.”—[Official Report, Commons, 7/9/22; col. 237.]

Some of the more recent mood music from the Government has been less clear-cut on that point, so perhaps in winding up my noble and learned friend the Minister will confirm that is still the Government’s approach and that they are not looking to endorse a negotiated settlement that delivers less than that. On the assumption that is still the Government’s policy, it is absolutely clear that they will need this Bill to deliver it. I will conclude by saying why.

As has been pointed out on several occasions and is well known, I was responsible for negotiating the protocol as we now have it. That negotiation, such as it was, has an important lesson for today. The crucial point is that any negotiation, if it is to find the right balance between the parties, needs to have a meaningful “walk away” option for both sides. We did not have that in 2019. This Parliament and this House had passed a law prohibiting us from leaving the European Union without a deal. The choice we faced, therefore, was on the one hand to see the endless continuation of negotiations with the EU from a position of weakness, some subversion of our efforts by Members of this Parliament and others in the political scene and perhaps see the referendum overturned altogether, or on the other hand do the best deal we could, accept the risks, and deliver the referendum result. I make no apology for choosing the latter, even though our forebodings have been amply justified by events.

The point of this Bill is to avoid that situation being repeated. If this Bill becomes law, the British Government—

[Lord Hannay of Chiswick (CB)]

Will the noble Lord confirm that what he has just said amounts to saying that he was negotiating under duress in 2019 and the duress was applied by the British sovereign Parliament?

[Lord Frost (Con)]

I have made the point many times that we were operating within the constraint of a law that usurped the functions of the Executive and prevented us conducting negotiations. I have made that point many times, and I make it again today.

If this Bill becomes law, the British Government will regain agency over events. If they cannot reach an agreement through negotiation, they will be able to use the powers in this Bill to correct the current unsatisfactory situation under international law. The incentives on both sides will still be to reach agreement, but there will still be a “walk away” option, which means that a proper negotiation can take place.

If noble Lords prevent this Bill passing, they will put this Government into the same position I faced in 2019. Once again, there will be no “walk away” option. The Government will have to try to get the best negotiated outcome that the EU will allow them to have. They will be a petitioner for the EU’s grace and favour, not a negotiating partner. If the Government are not happy with what is on offer, the outcome will be even worse—the continuation of the current unsatisfactory situation and the current protocol.

I urge noble Lords not to make the same mistake as in 2019. Give the Government the powers they need to conduct a meaningful negotiation. Do not make them a supplicant in Brussels. Allow them to get the job done.

EU–UK Partnership Council

Debate between Lord Hannay of Chiswick and Lord Frost

Thursday 16th December 2021 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, would the Minister not agree that a slightly more proactive approach to holding meetings with the TCA might be better than simply standing at the Dispatch Box and saying that we have fulfilled the minimum requirement under law? Would he perhaps answer the part of the Question from the noble Baroness, Lady Hayter, that related to matters which might be discussed at such a future meeting? Has he given consideration, for example, to raising the issue of performing artists so that the work that the Government are doing bilaterally is supplemented by work with the EU where the EU has competence in these matters—for example, with cabotage?

[Lord Frost (Con)]

My Lords, the Partnership Council is, of course, the highest body of the governance structure created by the TCA, and as such it does not need to meet very frequently. That is why the treaty commitment is to once a year. However, the specialised committees are important and look through the detail, and those have been running since June. As I said, all of those will shortly have met. So the governance structures are working well. We obviously have been giving thought to the agenda of the Partnership Council; it will no doubt take the issues that are of highest priority at that point. We touched on the question of touring artists at the 9 June meeting, and I imagine that we will do so again at the next meeting.

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

Debate between Lord Hannay of Chiswick and Lord Frost

Thursday 21st October 2021 Lords Chamber

[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.

Protocol on Ireland/Northern Ireland (EUC Report)

Debate between Lord Hannay of Chiswick and Lord Frost

Monday 13th September 2021 Grand Committee

[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.