Northern Ireland (Executive Formation etc) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading
Monday 5th December 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I join all those who have spoken in warmly congratulating the noble Lord, Lord Weir, on his admirable maiden speech and welcoming him to the House, even though his arrival means that the border between the Cross Benches and the DUP is even more crowded—fortunately, cross-border relations are very good. I have no intention of being tempted into responding to some of the things said about the protocol in this debate with which I disagree rather profoundly, and I suspect that the noble Lord and I will be crossing swords on the matter in future. I made a firm resolution that I would talk about the Bill only and not about the protocol, and, as noble Lords can tell, I am not even mentioning the protocol, despite gross provocation from, for example, the noble Baroness, Lady Hoey.

It is a very unfortunate Bill; I regret it, but I support it. I regret it on constitutional grounds; we should not be passing retrospective laws and I very much regret that it confers on the Secretary of State power to legislate by a statutory instrument which we will not even see before it takes effect. This seems to be very wrong, but the admirably clear Northern Ireland Office memorandum explains that we are where we are and that we have little choice. I was grateful for the letter from the noble Baroness, Lady Drake, which also makes that pretty clear. So we are where we are, and we have to pass the Bill.

I regret it because I regret the situation which has led to its necessity. Those who voted in the Northern Ireland Assembly elections were entitled to see both a working Northern Ireland Assembly and an Executive. It seems that it is not right that their choices are being put to one side.

I also regret it because, as a former civil servant, I have deep sympathy with the plight in which senior officials in the Northern Ireland Civil Service as going to find themselves as a result of this Bill. The noble Baroness, Lady Hoey, pointed out that we are not in an unprecedented situation, but the economic and financial situation in Northern Ireland is much more complicated now than it was when this situation last obtained. Particularly in the health and education sectors, there are very serious problems which will have to be dealt with without political control, political steer and political decision-making. I feel very sorry for these civil servants; were I one of them, I would find this situation really quite difficult. However, we are where we are and, therefore, with regret, I support the Bill.

Local Housing Need

Lord Kerr of Kinlochard Excerpts

Thursday 14th September 2017 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Greaves, very much for that and give him this assurance: I certainly was not blaming local authorities. I went very much out of my way to say that action was being taken on the system as it was and that it was intra vires their powers. As I have been at pains to say, successive Governments have brought us to the position that the market is broken—bust, as they apparently say in Pendle. It is right to say we are going for a uniform approach, as he indicated, but issues about where the housing goes and the type of housing is a matter for the local authority. We seek to set out a framework here and we are of course consulting on it.

Regarding the dates for when this comes in, if there is an existing plan as of now or an existing plan goes in before 1 April 2018, or later if the national planning policy changes later than that date, that plan is the valid one until it runs its life. New ones will come in and take over from the old plans.

In relation to the issue of some authorities wanting to be or being in a position where, on the formula, they will require less housing, if they want to go further than that then of course the Government will be delighted, but they will need to justify that to the Planning Inspectorate on examination. Once again, that will be an independent process. That is the essence of what we are consulting upon but, as I say, we are very much open to this discussion, which will end on 9 November.

[Lord Kerr of Kinlochard (CB)]

I thank the noble Lord for the Statement. I admire his expertise on the subject—I admit that I have none. I welcome the Statement to the extent that I understand it and as far as it goes. I am a member of the Economic Affairs Select Committee under the noble Lord, Lord Hollick, which produced the report referred to by the noble Lord, Lord Shipley. The two things that struck me most in that exercise were that, first, if one approaches the problem from the basis of the crying need for more social housing, it really is necessary to allow local authorities to borrow to build and that, secondly, if one approaches it looking at the development by the private sector, one really has to think of a way to tackle the problem of three-quarters of a million permitted houses not being built. The big developers were very clear that their business model does not depend on land banking. Yet their results are very good at the moment and the markets might well think that they are doing pretty well on large land banking and not building the houses for which they have obtained permission. As we approach the budget season, can the Minister talk to his colleagues in the Treasury about the possibility of incentivising, taxing or penalising builders to build the houses for which permission has been obtained?

[Lord Bourne of Aberystwyth]

I thank the noble Lord for the reference to the excellent report from the committee chaired by the noble Lord, Lord Hollick. The Government are of the view that there is sufficient headroom on the borrowing at the moment which is not utilised, so there is no need to look at the cap. There are considerable reserves held by local authorities as well. Obviously this is something that we review but, just at the moment, there does not seem to be any need to move on that.

The noble Lord, Lord Kerr, also referred to the issue of land banking, which I think also came up in an Oral Question today. Obviously it is something that was tackled and mentioned in the White Paper; we are analysing the responses and will come forward following the consultation on that. I am very grateful to him for exaggerating my powers with the Treasury, but I think that that will be a matter for my right honourable friend the Secretary of State. It is obviously an option that is canvassed and talked about, as we certainly want to encourage builders to ensure that we do not need to take that action by not sitting on great reserves of land.

Brexit: UK-Irish Relations

Lord Kerr of Kinlochard Excerpts

Tuesday 5th September 2017 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I want to make two points, or rather two pleas: a plea for realism on the issue of the border and a plea for greater political engagement to save the Good Friday agreement. The border is well covered in the excellent report from the European Union Committee. The most amazing thing about the report, which is exactly nine months old, is that it has not dated at all. It has not been overtaken in any way by events. It says at paragraph 85:

“Despite ministerial recognition of the substantial implications Brexit could have for cross-border economic activity on the island of Ireland, there is still significant uncertainty over how the UK plans to mitigate these effects”.


That is still precisely true, as the noble Lord, Lord Hain, pointed out.

Having read both the little reader’s digest essays published in August—we cannot call them “negotiating documents” because there was nothing in them for a negotiator to get his teeth into, but they are nice little aspirational essays—I can say they both bear on this debate and they still do not give us any idea of the UK Government’s concrete proposals. There are not any concrete proposals.

The impression given is that it is time that Brussels came up with some helpful suggestions here, and we occasionally suggest options, or avenues that might be pursued, and then if they do not go terribly well, we can always say, “Oh, that was just blue-sky thinking”, and put them back in our pocket again. This is not the basis for a negotiation. An honourable exception is the paper on citizens’ rights, which was a much more substantive paper and provided the basis for a real negotiation. It looks to me as if there is a real negotiation going on on citizens’ rights and I would expect sufficient progress by October on that dossier, but I cannot see it on this dossier, on the basis of the documents that we have put forward. The trouble is that the 27 do not think that it is for them to put forward solutions. They think that we created this Brexit problem, we are demandeurs for a solution, so we had better come up with some. And they are still waiting.

Another, greater difficulty on the border issue is that we are actually, in practical terms, between a rock and a hard place. This is not so much on controls on people. If we want to change our immigration policy, if we want to make it more employment related, if we want to say, “Well, let’s not worry so much about the frontier”, we can do that. The non-UK, non-Irish EU citizen may pop across to Dublin, pop up to Belfast, pop across, and we could turn a blind eye to that if we want to. That is not the problem: on controls on people it is really for us to say what we think we need, but on controls on goods it is absolutely not for us to say. When the inner-Irish border becomes the frontier of the customs union, it will be the duty of the Irish Government. They will hate it, but it will be their duty to apply the rules that apply at all the external frontiers of the European Union.

Two-thirds of the member states of the European Union have the duty of controlling a part of the external frontier of the European Union. Many of them, too, have a region just across the frontier, just outside, with which they have very close ties—a region in the neighbouring country—but they nevertheless have to apply the rules that they have all agreed: rules of origin, customs checks, sanitary checks, health checks, environmental checks, all the procedure at the border. Do not blame the Commission. It is the member states that have agreed this and if there is to be any change in respect of Ireland, it is going to be very hard to persuade these people that they should not have a change too. So it seems to me to be an unlikely way to proceed.

It is also the case that technology is not going to save us. I am sure the EU Committee’s report is correct when it says, at paragraph 105:

“The experience at other EU borders shows that … while the burden and visibility of customs checks can be minimised, they cannot be eliminated entirely. Nor, while electronic solutions and cross-border cooperation are helpful as far as they go, is the technology currently available to maintain an accurate record of cross-border movement of goods without physical checks at the border”.


The Swedes are the world leaders at this kind of technology and they say that that is correct. For their border with Norway, which is the border of the customs union, they do have to conduct spot checks, which means that the border has to be manned, and X proportion of the trucks have to be stopped and investigated—I do not know what X is. The report is not coming up with a judgment, it is a fact, and magical thinking will not magic it away. It probably means that some of these 300 roads will have to be blocked. It certainly means that the roads that stay open across the frontier will have to have some sort of control. It will not be our control, unless we want one, it will be the European Union’s control which the Irish will have to operate. All of us saying, “This is going to hurt Ireland”—that is true, of course it is going to hurt Ireland—is not going to save Ireland. Ireland is going to be required to do it because Ireland will be manning the external frontier.

I understand the Government’s difficulty in admitting this. If you are in partnership with the DUP—a party that wants out of the single market, wants out of the customs union and absolutely does not want a hard border—you have a problem. The combination is an impossible one and that will become clear, even to the DUP, at some stage. I do not know what will happen then. I am not surprised the DUP wants an impossible combination because it was what it was told by the then Secretary of State for Northern Ireland was going to happen. Ms Theresa Villiers promised that there would be absolutely no change at the border after Brexit. I am not surprised that some in Northern Ireland thought that might be true. It cannot be true.

I recall when the noble Lord, Lord Lawson—who is not in his place, sadly—then leading the leave campaign, had the intellectual honesty to slap down Ms Villiers. She replied that he was improperly briefed. He was not improperly briefed. It is the case that if we leave the customs union there will have to be some kind of hard border. What is puzzling is that although Ms Villiers left the Government, the Government seem to be still singing the Villiers song, not the Lawson song.

Of course, I understand why the unionist community —the noble Lord, Lord Trimble, made the point eloquently, as did the noble Lord, Lord Empey—absolutely rejects the slightly less implausible alternative of a special regime for Northern Ireland, with checks on movement to and from the rest of the United Kingdom. That is unacceptable. I am afraid I do not think that the solution proposed by the noble Lord, Lord Empey, that Ireland should leave the EU’s customs union in order to have a customs union with us, is legally feasible, and I do not think it is or is likely to become the policy of the Government in Dublin, although I am sure they will be grateful for the suggestion.

If one rules out the impossible, the unacceptable and the fanciful, the choice for the United Kingdom is really quite simple: either we are in customs union with the EU or we are not. That is the choice. If we are in, the border can be reasonably frictionless. If we are out, I am sorry, it cannot. We have to be realistic about that and fudging the choice by talking of association with the customs union only excites suspicion in Brussels. How comprehensive, binding or long-lasting would such an association be—could it be, given Dr Fox’s remit and Mrs May’s rhetoric? In Brussels it sounds like cherry-picking, free riding—having the cake and eating it. It also sounds, including to me, WTO non-compliant because unless EU concessions to us covered substantially all trade, which Dr Fox would hate because it would cramp his style, or the EU offered the same deal to all its other trading partners, which obviously it would not do, the WTO would not have it. It would have to be one or the other.

I cannot see the EU buying any of this anyway, even if we put it forward a lot more concretely, convincingly and committedly than in our little August note, and even if we could persuade Mr Varadkar to act as its advocate in the European Council. I have seen no evidence that we have even tried to convince Mr Varadkar. We do not appear to be talking to Mr Varadkar very much. Yesterday his Foreign Minister dismissed the paper on the border issue as unrealistic. Dr Varadkar gave his own view on the issue when he visited the Canadian-American border. His interests are the same as ours—he does not want a hard border either—but his policy deductions seem a bit more realistic. We and Northern Ireland need to listen to him, because the European Council will. At the moment when the European Council takes its decision on this, we will not be in the room but he will. At the moment when people ask, “Are we making sufficient progress on the Irish question?”, he will be the man who speaks first. If he says, “Yes, I think so”, then the odds are that they will agree but if he says, “Actually, we’re not getting anywhere on the frontier because we’ve had no serious proposals from the Brits”, that is it—we are stuck.

This brings me to what I want to say about the Good Friday agreement.

[Viscount Younger of Leckie (Con)]

My Lords, bearing in mind the late hour I wonder whether the noble Lord might conclude his remarks.

[Lord Kerr of Kinlochard]

I realised the hour was late. Nevertheless, I would like to say something quite serious about the Good Friday agreement.

I am alarmed. Although the Government’s policy on Brexit and Ireland is no clearer than it was when the Select Committee’s report was published, the situation has worsened in at least three ways. First, the strand one institutions are, as we know, in abeyance. I say to the noble Lord, Lord Howell, whom I am glad to see in his place, that whatever the reality is—and I do not know—the perception matters, and many in Northern Ireland will think it is more difficult for the Government to play the role of honest broker, cracking the present impasse, now that they have a political alliance at Westminster with the DUP. That may not be the case but it will be the perception of some. It is more difficult for the Government to appear to the nationalist community to be impartial. I put it no higher than that.

The second development was in the point so movingly put by the noble Baroness, Lady O’Loan.

[Viscount Younger of Leckie]

My Lords, the noble Lord should consider concluding his remarks pretty rapidly, as he is on 14 minutes. The guide time for speeches is eight minutes and the hour is late. I hope that the noble Lord will agree to that.

[Lord Kerr of Kinlochard]

I will bow to the House if it feels I should say no more. I want to make two more points but if the House thinks that I should not make them, I will sit down. Shall I carry on?

[Baroness O'Loan]

Yes.

[Lord McAvoy (Lab)]

Sit down.

[Lord Kerr of Kinlochard]

Thank you.

Secondly, on the point made by the noble Baroness, Lady O’Loan, where is the voice of moderate constitutional nationalism now to be heard? Where is the voice of the majority of Northern Ireland, who voted to remain? With Stormont closed and the Assembly shut down, and nobody in the House of Commons—of course the root of the problem there is in Sinn Fein not taking its seats—this is a serious problem.

Thirdly, the strand two and strand three institutions seem to be mothballed. The North/South Ministerial Council, which brings Dublin in, has not met this calendar year; nor has the British-Irish Council, to which the noble Lord, Lord Cope, referred. It met three times last year but has not met this year at all. Lack of dialogue is very damaging. The peace process came about because successive Prime Ministers got extensively involved. I watched that happen from my perches in Brussels and then in Washington. I have yet to see a sign of the British Prime Minister’s engagement with the Taoiseach and directly with the parties.

[Viscount Younger of Leckie]

My Lords, I apologise for having to get up a third time but I invite the noble Lord to conclude his remarks immediately. I hope that it is the mood of the House that he should do so.

[Lord Kerr of Kinlochard]

I shall say three sentences. What we need from the Government today is a clear policy which delivers a soft frontier across the island of Ireland, and that means a customs union. What we need to make sure that we do not let the peace process wither on the vine and the Good Friday agreement fall into complete abeyance is active, high-level UK Government political engagement, including with the Taoiseach, to protect the interests of the north and the interests we all share in active co-operation on a basis of equality across the Irish Sea.