UK-EU Relationship (European Affairs Committee Report)

Lord Kerr of Kinlochard Excerpts

Wednesday 20th September 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

Like previous speakers, I congratulate the committee on its excellent report, and the ex-chairman of the committee on the brilliant timing of this debate. Like previous speakers, I believe that we need to work together with the EU

“to safeguard the rules-based international order”

and

“co-operate against internal and external threats”

to the values and interests that we share. That means rebuilding a relationship extending beyond trade and economic partnership to

“law enforcement, criminal justice, foreign policy, defence and wider areas of co-operation”,

and doing so in an institutional framework, with both sides committed to a regular dialogue and efficient and effective arrangements

“for its development over time”.

The House will recognise that I am quoting from the political declaration referred to the noble Lord, Lord Hannay, which the May Government agreed with the EU—or rather, I am quoting from the revised version agreed by officials but rejected by Mr Johnson four years ago, when he chose instead to go for deliberate distancing. I have to say to the noble Lord, Lord Lamont, who found a splendid quotation about the Johnson desire for close co-operation, that he deliberately went for deliberate distancing, with the noble Lord, Lord Frost, as his disciple. I had hope that the noble Lord, Lord Frost, would explain why, but we are not having that pleasure today.

I do not know why we wanted to burn the bridges. I suppose that we should have seen it coming when Mr Johnson as Foreign Secretary refused to attend the Foreign Affairs Council when it planned to discuss the significance of Trump’s election in America. He dismissed the concerns of the 27 as “Euro-whinge”, and he stayed away. It is usually better to talk and, as Foreign Secretary, the responsible course, if you do not think you like what might be the emerging European consensus, might be to turn up and try to change it.

The problems we share now—aggressive Russian revanchism, the challenge of China, US protectionism, managing migration and the costs of net zero—are problems common to us and the European Union. We live in a world that is more insecure, or feels more insecure—and I think it is more insecure—than it used to be. We could do with precisely the kind of partnership that the EU and we at official level envisaged four years ago. They tell us that they particularly miss our contribution on defence, intelligence and foreign policy analysis of the big geopolitical issues. That is the first bridge that I would try to rebuild.

The Leader of the Opposition was quite right to talk security, not single market, in The Hague and Paris. I look forward to the Minister’s answer to the question from the noble Earl, Lord Kinnoull, about the Government’s response to the recommendation from the committee on foreign policy co-operation and the Foreign Secretary’s dismissive reaction to it. This debate shows that the committee’s recommendation is widely supported.

I do not dismiss the possibility of also using the 2026 implementation review of the TCA to correct some of its obvious errors and omissions. There are some additions that would be win-wins for both sides. The report makes very sensible suggestions, but I cannot see any great appetite across the channel for a major renegotiation. The EU has moved on. Rather than try to reopen an agreed text, we might do better to pick up and draw on the one that was agreed. Michel Barnier sweated blood to get this agreed by the Council. Precedent is quite a useful thing to have. It could be best to look at it again.

I have one more point—rather downbeat, I fear. We will be living for some time with the legacy of the posturing and lies, the arrogant amateurism and the dossiers not understood and perhaps not even read, as well as the insult of the deliberate distancing that followed. It will take time to live it all down and rebuild trust. The present Prime Minister has made a good start with the Windsor Framework and, at last, the Horizon decision, but there is a long way to go, and it would help if we could do three or four things.

We could stop making regulatory autarchy paramount and listen to the voice of business. We could stop tabling Bills which, if passed, would break international commitments, and stop threatening to leave the ECHR. We could tone down the bombast a bit—the exceptionalism and chest-beating, as with the Truss trade agreements. It jars a bit here, but it jars a lot more across the channel. Above all, we could try to get the tone right and get away from zero-sum thinking. When things go well for the EU, do we really have to sneer or, when they go badly, cheer? It is our biggest market, and it is in our interests that things go well over there. This is the Ryder Cup that we are playing—we are all on the same side. We are in this together and it is a very cold world outside, so let us build bridges and thaw the frost.

House of Lords (Peerage Nominations) Bill [HL]

Lord Kerr of Kinlochard Excerpts

2nd reading
Friday 18th November 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I was very shocked, the other day, when the noble Lord, Lord Forsyth of Drumlean—I am sorry he is not here—talked of rumours of another Johnson list and said he was reminded of Caligula appointing his horse to the senate. I was shocked because the analogy is wholly inappropriate. The horse, Incitatus, never made it to the senate, because Caligula was assassinated. Here we have had the assassination but it seems we will still get the horses.

I am a reformer and strongly in favour of the Bill of the noble Lord, Lord Norton. We owe him a great debt for all the work he has done on this issue down the years. I would go further, if I could: I agree with my noble friend Lord Burns on term limits but, because I worry about how to keep the kingdom united, I would go so far as to think about indirect elections on a different cycle from the Commons, as a way to cement the union. But there is not a snowball’s chance in hell that this House of Commons would approve such measures. The great merit of this Bill is its modesty. That is wise and sensible, and it has my full support.

I would like to probe two issues in Committee. First, the Bill says that

“The Prime Minister must not recommend a person to the Crown … until such time as the Commission has advised the Prime Minister as to whether the person meets the criteria”


set out in the Bill. When I look at the history of, say, Sir Alex Allan, or my noble friend Lord Geidt, I think it might be good to dot the i’s and cross the t’s and say that the Prime Minister must have regard to the advice of the commission. Here I slightly part company with my noble friend Lord Butler.

The second point is that under this Bill an incoming Prime Minister would be able to appoint 40 new Peers. I did not hear an explanation of that figure from the noble Lord, Lord Norton. Why 40? Perhaps he is a devotee of Arabian Nights and was thinking of Ali Baba. I think that a proportionality criterion would be wiser and that, if we went for a number, 40 would be far too many.

These are minor points. The major point is that we all know that reform is badly needed. Here we have a sensible, modest Bill. I believe, like the noble Lord, Lord Butler, that this Bill would have a chance in the House of Commons. We will reform this place by getting them in singles. We must not get overambitious or we will end up securing nothing. I rather disagree with the letter to the Times from the noble Lord, Lord Fowler, the other day. Many of the things he said were correct, in my view, but now is not the time to proceed with them. We should remember that it is important not to let the best become the enemy of the good and we should escape from the Fowler snare.

Economy: The Growth Plan 2022

Lord Kerr of Kinlochard Excerpts

Monday 10th October 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is a great pleasure to see the noble Baroness, Lady Neville-Rolfe, back on the Front Bench. I welcome her. There is a great deal in the growth plan that she introduced that I welcome.

I plead guilty to living in north London, to chairing a think tank and to having been against Brexit, but I honestly do not think that I am part of a coalition against growth. I have not heard many in the Chamber arguing against growth, which, on the whole, seems to be something we should pursue, but I do not think the best way of pursuing it in the present circumstances could possibly be by tax cuts. The big-picture speech from the noble Lord, Lord Bridges of Headley, got this exactly right.

Nor do I think that tax levels explain our productivity problem. Our business tax levels are well below those of the French and the Germans. Brexit is, of course, partly the explanation. The OBR says it meant a 4% fall in long-term productivity as new non-tariff barriers inhibited the exploitation of comparative advantage—a point made by the noble Lord, Lord Inglewood. But our productivity problem long preceded Brexit. Investment is well below the level of our past and of our competitors. Tax cuts will not cure that.

My advice to the beleaguered Chancellor would be to study the first Budget presented by his distinguished predecessor, the noble Lord, Lord Lawson of Blaby. I was present at the creation. Corporation tax rates were reduced in 1984, but allowances—tax breaks—were scrapped, and the tax take went up; and so did investment, because business really liked the simpler system and the Lawson promise, which he wrote into the statute book, of further rate reductions in subsequent years. It was the simplicity, stability and predictability which unlocked the extra spending on plant and machinery, training and research.

That is why the sunset clause in the retained EU law Bill is so damaging for growth. Uncertainty is the real killer of investment. Major investments have long lead times, and what business needs is a clear, stable and preferably simple rulebook. Fifteen years ago, a European company with which I was privileged to work made a £12 billion investment in this country. It told me its main reason for doing so was respect for British regulatory competence and political stability. It prioritised predictability. The returns were, and are, better elsewhere, and taxes are lower elsewhere, but it has continued to invest more than £1 billion a year in this country, even after Brexit, and I really hope the chairman has not read the Birmingham speech. “Setting out to disrupt” sounds fine in a seminar, but wise Governments respect and try to create stability, and respect experience. Our Government have no mandate for moving fast and breaking things. It may be fun, but I am sure it is the wrong recipe for getting the growth we all want, and I join the noble Lord, Lord Inglewood, in his campaign for boring government.

Negotiating Objectives for a Free Trade Agreement with India

Lord Kerr of Kinlochard Excerpts

Tuesday 6th September 2022 Grand Committee

[Lord Kerr of Kinlochard (CB)]

Despite the undoubted quality of the report so ably introduced by the noble Baroness, Lady Hayter, and despite the expertise available in the Room, I have the feeling that the eyes of the nation are not on us. I think we now know how Rosencrantz and Guildenstern must have felt.

In another sense, this is an oddly timed debate. Here we are, looking at the Government’s objectives in a negotiation that has been going on for eight months and is due to finish in seven weeks. The document in which those objectives are set out is drafted in such general, unspecific terms as to make it clear that its objective is to tick every lobbyist’s box so that the Government can say at the end of the day, “Well, at least we tried.” It is not the basis for a serious debate. It should be possible—I look for support on this from my old colleague, the noble Lord, Lord Frost—to devise a more grown-up relationship between Parliament and the Government on trade negotiations.

However, this is the only document we have, so debate it we must. If we do not, the next thing to happen will be a fait accompli: an agreement that we then cannot change. I hope that, with the help of the noble Lord, Lord Frost, and possibly with that of the noble Lord, Lord Grimstone, we may be able to establish something a little more meaningful. Like the noble Baroness, Lady Hayter, I have never understood why taking back control means Parliament cannot be as well informed as it was when our trade negotiators were Brussels based, or as the European Parliament then was and now is. It would be in everybody’s interest that we be as well informed. As an ex-negotiator myself, I know from Washington and Brussels experience how the oversight of an informed legislature strengthens the hand of the negotiator. Therefore, the Johnson Government’s policy of concealment, highlighted in the ludicrously contrasting texts at appendix 5 in the committee’s report, seems to constitute a severe case of self-harm.

However, a new Prime Minister means a new Foreign Secretary. Perhaps we can turn over a new leaf and have a new start on this relationship. Meeting during the changing of the guard means that we can offer a bit of advice to the next occupant of the great office where Lord Grey watched the lights go out over Europe, Johnson penned his pieces for the Telegraph and Truss put up more flags.

I have three quick tips for the incoming Foreign Secretary, whoever he is; sadly, the forecast is not for frost. First, pay attention to the office experts on international law. They are very good. Defending the international system, as we must, means not just opposing people who scorn and subvert it, such as President Putin, but not breaking our international agreements, such as the 2019 treaty of the noble Lord, Lord Frost, or the 1951 refugee convention. The Foreign Secretary’s job is to remind Cabinet colleagues that our word is our bond and insist that pacta sunt servanda.

Secondly, respect my old service’s understanding of other countries’ attitudes and interests. In international relations, there are few symmetrical, zero-sum games. Widening the parameters in a negotiation and bringing in areas of interest to the other side are usually more effective than pouting and shouting. Use the expertise of the embassies—and not just for arranging photo ops.

Thirdly, believing in alliances means not disparaging allies. France is a friend, not a foe. There are only two types of European state: middle-sized countries and those that have yet to realise that they are now only middle-sized. Like it or not, we are Europeans too. We depend on their co-operation and custom. Naturally, our biggest market is our closest market. It is a pretty inexorable rule that trade halves as distance doubles. Global trade is now 20% above pre-Covid levels; ours has flatlined. We are not going to put that right until we rebuild a productive trading relationship with the rest of Europe. That must be the number one trade policy aim.

So let us get the India deal into perspective. According to the Government’s own analysis, by 2035, it might add between 0.12% and 0.22% to our GNP—not exactly game-changing. Incidentally, I hope that the new Government will tone down the boosterism. I am much less critical than some—including some in this Room—of the new trade agreements with Japan, Australia and New Zealand, but their economic effects will also be pretty marginal. It does not help those ready to defend them when government spokesmen systematically insist that what seem to be perfectly respectable geese are actually stupendous swans.

That brings me to my last, and very serious, point about the negotiation with India. Why the rush? Today’s top geopolitical priority must be the survival of a free and sovereign Ukraine. National Governments tend to be against invasions lest they prove habit-forming. The 1982 attack on the Falklands and Saddam Hussein’s 1990 occupation of Kuwait were condemned; with UNSCRs 502 and 678, sanctions followed. Russia’s veto rules out any similar UN action now, but I am struck by our apparent inability to orchestrate any similar worldwide condemnation of Putin’s aggression and Russia’s blatant breaches of the Geneva conventions. If we have been trying—if we have been calling the Commonwealth from Chequers—we have been keeping quiet about it.

We have not been doing very well in Delhi. Mr Modi’s Government have raised no objections to the invasion of Ukraine or the barbaric methods employed. His Government have refused to join any sanctions. Indian exports to Russia are rising steeply: India bought no Russian oil before February but is now taking close to 1 million barrels a day. Indian forces are, as we speak, taking part in the Russian Vostok military exercise. Are we sure that now is the time to reward Mr Modi with new trade concessions? Are we bringing any Ukraine conditionality into this deal? If not, should we not? If the conditionality is resisted and rejected, should we not go slow?

If Putin eliminates Ukraine, as he said he aims to, there goes the post-World War II international settlement. There goes the rules-based system. There, incidentally, goes the reputation of the new Foreign Secretary, whoever he is, and the new Prime Minister. Trade policy cannot be ring-fenced and immune from geopolitics, so my key advice is to get our priorities right, which, in this case, means not being driven by a vacuous Diwali deadline. I say to the noble Lord, Lord Hannan, that I do not think it is enough to be disappointed at the Indian attitude. We have to use all the means at our disposal and all the skills of our diplomacy, including our trade diplomacy, to try to get the Indians to think again.

Elections Bill

Lord Kerr of Kinlochard Excerpts

2nd reading
Wednesday 23rd February 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I rise with some diffidence, because almost everybody else in the House has much greater personal experience of electoral law than I have. One of us, so we have learned today, has had his visit to the polling station followed by a visit from the constabulary. I join those who congratulate the noble Lord, Lord Moore, on his remarkable maiden speech.

I think my credential to speak is that I lived abroad for a while and have a basis for comparison of our system with those of other countries. My impression is that ours is relatively clean, reasonably efficient, well understood and rather well liked—so what is the problem? My first question about the Bill is why, and what is the disease that it is trying to cure? As the noble Lord, Lord Stunell, has just said, why has it been given priority over long-delayed measures responding to very real demands, such as the reform of social care, for example, or more pertinently, for real action against foreign interference and foreign finance in our elections? I would like to find a respectable rationale for the Bill, but I have not heard it yet.

My concerns are particularly about four provisions: voter ID, back to first past the post, denying the local election vote to EU citizens newly resident here, and Clause 13, Schedule 8 and the attack on the independence of the Electoral Commission. In all four, my question is why?

On voter ID, as the Public Administration and Constitutional Affairs Committee in the other place put it, the Government’s answer

“simply is not good enough”.

The experts tell us that personation is very rare. My noble friend Lord Janvrin reminds us that the missing millions is a far greater problem. We know that disadvantaged young people who are on the register, particularly those in minority communities, tend not to have passports or driving licences and, frankly, I do not see them queueing up in town halls to get specific electoral identity cards. There can be very little doubt that the Bill would further reduce participation, not because fraud has been widespread but because we would make voting harder. The conspiracy theorists say that that is the point and that some people have been looking at what is going on in the American Deep South and are taking a leaf from the Republicans’ voter suppression playbook. I do not want to believe that. I tend not to believe in conspiracy theories, but I have yet to hear a good reason why we should act in a way that is inconsistent with wider public policy on social inclusion.

As for first past the post for mayors and police commissioners, in one sense, it is no big deal. I am told that only 17 of the 217 such elections which have taken place using the SV system would have produced a different result under first past the post. Yet something quite important would be lost if we go backwards here. Fewer people in the community would see the winner as someone they had chosen. There would be an enhanced perception that party affiliation, rather than personal quality, mattered most. So why do it? The experts tell us that SV is easily understood. If it ain’t broke, why fix it? Unless of course you really want mayors to be more subservient to national political leadership, but do we not believe in more devolution?

Then there is disfranchising the EU citizens lawfully resident here with leave to remain, just because they arrived after Brexit. I have to say that this looks a little like Brexiteer spite. Surely residence, not nationality, is the right test for the local election franchise. If these people pay their council tax, then is it not a case of no taxation without representation? It is like that in Scotland, so why not in England?

Finally, much the most significant of my four points is the attack on the Electoral Commission’s independence. Having lived in America, I am convinced that what America badly needs is an impartial boundary commission to stop gerrymandering and an impartial electoral commission to see fair play in campaigns. So I was rather horrified two years ago when the then Chairman of the Conservative Party called for the abolition of the Electoral Commission—at least the Bill does not do that. However, one cannot say that wiser counsel has prevailed, because what Clause 14 of the Bill does is plain wrong in principle. I do not need to labour the point, because the noble and learned Lord, Lord Judge, put it far better than I could, but supposing we were to give the Government the benefit of the doubt and assume that, in practice, they would never use this new directing power to guide the commission, what about future Governments? Why leave this loaded gun on the table? This is wrong in principle and dangerous in practice.

I look forward to our debates in Committee. I hope the Government will listen and allay my fears. If they do not, I am sure we shall have to truncate their Bill.

Beyond Brexit: Institutional Framework (EUC Report)

Lord Kerr of Kinlochard Excerpts

Monday 6th December 2021 Grand Committee

[Lord Kerr of Kinlochard (CB)]

The pleasure of debating these excellent reports has been perhaps too long deferred, but every cloud has a silver lining, and the accident of timing means that our views will be responded to by the noble Lord, Lord True—a genial, subtle debater, and not at all frosty.

I intend to talk only about the institutional framework report and its description of the array of committees set up to manage the relationship. They have been described by my noble friend Lord Kinnoull; I will not repeat that. To me, the most striking thing about this huge construct is that nowhere in any of these committees is anyone from the 27 EU member states. We are on one side of the table, the Commission is on the other side, the members states are nowhere. That is because it is a framework for managing separation and divergence in areas of Commission competence. It is a framework for managing inevitable problems arising from separation.

It seems that the UK side did not want any similar structure for co-operating on common problems—problems that we and the 27 face in common and where we might share a common interest, such as Covid, global warming, refugees, or an ever more assertive China. The EU side did want a structure for regular meetings to handle such issues; all its association agreements with other third countries contain one. It particularly wanted one with us on foreign and security issues, but we said no. The noble Lord, Lord Frost, giving evidence to the Select Committee, is quoted at paragraph 57 of the report as explaining that there was “no need” for the treaties to provide for regular high-level meetings because

“they will happen naturally and organically”.

Really? How many have there been? I cannot recall any. Perhaps the Minister can tell us whether we have proposed any. Should we not?

I do not want to criticise the framework; I think I understand the role of the various committees and I hope that in due course they will all get around to meeting, but the structure needs to be supplemented. Quite seriously, I think we need to overcome the temptation to celebrate difference and to recognise that splendid isolation is not always all that splendid. In tackling global problems, our closest neighbours will often be our natural allies and co-operation can make sense, but it needs a framework—ad hoc arrangements can be difficult with 28 diaries—and most countries find the discipline of an ordered schedule, agreed agendas and prepared meetings rather helpful. Regular contacts also diminish distrust, whereas meetings missed mean more misunderstandings, and mutual trust seems to be in rather short supply right now. My point is quite a big one, and I do not expect the Minister to buy it today—but I ask him seriously not to reject it and to agree to think about an additional framework for handling issues common to us all but not problematical between us.

I want to make three smaller points. First, the TCA records agreement to set up a civil society forum to meet at least once a year. Mr Gove told the committee that he welcomed the idea. I like the idea—dialogue diminishes distrust—but we do not seem to be rushing to set up the forum. Can the Minister say why? Are the Government now consulting civil society on how our contingent will be constituted? If not, when will they?

Secondly—and closer to home, because it directly concerns your Lordships—whatever happened to the parliamentary partnership assembly set out in the treaty, to consist of Members of this Parliament and of the European Parliament? Mr Gove welcomed that too, and so do I. I am not party to whatever discussions there may have been between the two Houses, but it seems that the hold-up in setting up the assembly lies on this side of the channel. The European Parliament’s team is out on the pitch warming up, but we still seem to be having a selectors’ meeting. I presume that the discussions between the two Houses are ongoing. Can the Minister tell us what Mr Rees-Mogg’s position is? Is it recumbent? Is it laid back? Is it supine? Is our Leader actively seeking to rouse Mr Rees-Mogg? Does she accept the recommendation of the Select Committee in this report that the Government table the necessary constituting Motions in both Houses?

I think the partnership assembly could be rather useful in a number of practical ways, not least—and here I touch on the area of the noble Lord, Lord Jay—in allowing Northern Irish voices to convey, directly to European Union legislators, Northern Irish views on single market laws that would apply in Northern Ireland. More generally, the assembly could help to bridge the trust gap. We should talk to the 27 quite a lot, and talking to MEPs would not be a bad way to start as a supplement to, and not a substitute for, proper intergovernmental contacts.

Finally, can the Minister tell us who is now responsible for bilateral relations with our 27 neighbours? Is it the Foreign Secretary or is it the noble Lord, Lord Frost—as I think I recall we were told when he was appointed? If it is the noble Lord, can he and does he draw directly on FCO expertise? I ask because the episode of the unfortunate letter to President Macron worries me. It could have been better drafted had an expert eye looked at it. Releasing it in a tweet before the Élysée had seen it could have been avoided had experts been involved. It is easy to say that we have had enough of experts, but these things matter, and it is a fool who mocks the custom and practice of diplomacy. That is why I am delighted that my queries will be answered by the Minister, a true diplomat.

Protocol on Ireland/Northern Ireland: Court of Justice of the European Union

Lord Kerr of Kinlochard Excerpts

Thursday 18th November 2021 Lords Chamber

[Lord Frost (Con)]

My Lords, my noble friend asks a very good question. I assure her that there is no role for the court of justice in the trade and co-operation agreement. There are provisions in that agreement which make it very clear that interpretations by one court cannot bind the courts of the other and that they are to be interpreted in line with the normal provisions of international law. That is 100% unambiguous. Regarding the withdrawal agreement and the protocol, we know that we have a problem. Most people would regard it as unusual for disputes between two parties to be solved in the court of one of the parties.

[Lord Kerr of Kinlochard (CB)]

My Lords, the Minister baffled the House earlier with his answer to the question asked by the noble Baroness, Lady Chapman. He is now baffling the House again. The conceptual core of the protocol is that the EU agrees that Northern Ireland may remain in the single market. The necessary concomitant to that is that the ECJ must have a role. I agree that we should not be shocked by the Minister’s line. He told us in his speech in Oxford during October that difficulties with the protocol come not from the way that it is being implemented but from the way that it was constructed. Coming from its constructor, that could seem a curious statement, but that is what he said, and that is what he goes on saying.

If the Minister insists on attempting to remove the court of justice, which is central to the conceptual core of the protocol and the deal struck by him, he cannot do it under Article 16, because, as he has just explained, that is simply about trade safeguards. Under what powers would he do it? He has the powers by regulation under the withdrawal Act to act in a way that is consistent with Article 16 to act on trade measures, but he has no power to withdraw the court of justice. Are we back to primary legislation and a specific and limited breach of the treaty and international law? If so, I doubt that the House will agree.

[Lord Frost (Con)]

My Lords, I cannot believe that I have really baffled the noble Lord, with his deep knowledge of EU affairs that is much greater than mine. The Government will set out the basis on which we would use Article 16 if and when that eventuality arises. We hope that it will not, but obviously we will be clear when and if we reach that point. Of course, it is well understood that the court has a role as the final arbiter of EU law. We do not seek to change or challenge that. What is not working is the role of the court as the arbiter of disputes between the two parties, which is unusual.

Protocol on Ireland/Northern Ireland: EU Proposals

Lord Kerr of Kinlochard Excerpts

Thursday 21st October 2021 Lords Chamber

[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.

Protocol on Ireland/Northern Ireland: Power-sharing

Lord Kerr of Kinlochard Excerpts

Thursday 16th September 2021 Lords Chamber

[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.

Protocol on Ireland/Northern Ireland (EUC Report)

Lord Kerr of Kinlochard Excerpts

Monday 13th September 2021 Grand Committee

[Lord Kerr of Kinlochard (CB)]

I have very little experience of Northern Ireland and am in awe of the expertise in front of me in this Committee. I did work under the noble Earl, Lord Kinnoull, in his chairmanship of the European Union Committee and on the first of the reports he described today, but I was then exiled for bad behaviour to the icy wastes of the International Agreements Committee. I learned a very great deal from this new report and have very little to add to it, except three glosses.

However, I will first comment on one or two things that have happened since, particularly the July White Paper, the speech the noble Lord, Lord Frost, made in Oxford on 4 September, Vice-President’s Šefčovič’s speech the other day and the statement at the weekend from Sir Jeffrey Donaldson. I should say at the outset that I too dislike the protocol intensely. Like the previous Prime Minister and the present one, I thought that a customs frontier inside a state was something no Prime Minister could possibly accept. I was a bit surprised when the present Prime Minister enthusiastically signed up for it. But, as the noble Baroness, Lady Suttie, memorably said, we are where we are.

I am surprised to see the White Paper attack the protocol so strongly. Sir Jeffrey Donaldson calls for it to be thrown away, but he does not tell us what he thinks should replace it. I must say, in my view, the return of a hard border across the island of Ireland would be a complete disaster, not just for Northern Ireland but for the United Kingdom and its reputation and external relations, particularly with the United States—I used to work there and know about that. The speech of the noble Lord, Lord Frost, at Oxford was more constructive, but only marginally. The core of his attack on the protocol came when he said that

“solutions which involve ‘flexibilities’ within the current rules won’t work for us. The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.”

So why did we agree to it?

I confess I find Mr Šefčovič’s answer rather plausible:

“Everyone around the table understood what these compromises meant in practice,”


he said on 9 September.

“And the implementation of this agreement will continue to require compromise from both sides.”

That is, of course, a central theme of the Committee’s report: the need for both sides—the UK and the EU—to demonstrate greater flexibility in operating the protocol. I agree.

Of course, the noble Lord, Lord Frost, is perfectly correct when he says that the protocol could be changed by mutual agreement, as Article 13(8) acknowledges. I suspect that some of our EU friends would be perfectly willing to consider certain of the changes demanded in the White Paper—for example, Article 10 of the protocol, in respect of subsidies in Great Britain. Certain other proposals would plainly never secure mutual agreement—for example, the suggestion that the EU should concede that the application in Northern Ireland of their single market laws should not be under the jurisdiction of their court, as the protocol says, but should be a matter for international arbitration. It seems to me that Mr Šefčovič was again nearer the mark when he said:

“The Protocol is not the problem. On the contrary, it is the only solution we have. Failing to apply it will not make problems disappear.”


Renegotiating it

“would mean instability, uncertainty and unpredictability in Northern Ireland.”

Now for my three glosses on the report. First, I recall from my Foreign Office days how, following the Good Friday agreement and the Belfast treaty, we immediately strengthened inward investment teams in the United States and other diplomatic missions, and it worked: the end of the Troubles, as we saw it. Northern Ireland’s highly educated and efficient workforce made it a very attractive destination for investment. It should be even more attractive, now it is the only place in the world where manufactured goods will circulate freely throughout the EU and the UK—a point the report makes. It is not a point the White Paper makes. Finding the next Bombardier would be much easier if the Government were to stop attacking the protocol.

To me, the most surprising passage in the committee’s report is at paragraph 122, where the noble Lord, Lord Frost, is quoted as, not seeing

“a case for the Government setting out”

the inward investment benefit of the protocol and adding, rather elliptically:

“I do not think it totally makes sense to encourage a situation that generated more of something that is a problem”


I am not absolutely sure I understand exactly what that means, but in my book, inward investment is not a problem and deterring it by encouraging uncertainty and instability is. Do we not owe it to Northern Ireland to do better? Surely, a Government who believe in the market should not be complaining about the relative growth of intra-Irish supply chains and direct trade flows between Northern Ireland and the rest of the single market directly, rather than over the land bridge across Great Britain. Water tends to flow downhill, and the more efficient the Northern Irish economy, the better for the people of Northern Ireland. I believe the Government should start to sell the single market opportunity.

Secondly, I was glad to see that the committee intends to come back to the question of the democratic deficit. For me, that is a central and serious problem. Since Northern Ireland is not represented in Commission, Council or Parliament, ways must be found to ensure that these institutions take account of Northern Irish concerns in the single market laws they write, and Northern Ireland must apply. The report lists a number of ways. For my part, I strongly agree with the suggestion from both the DUP and the UUP that Northern Ireland Ministers must be allowed to play central parts—not merely attending as observers—when the withdrawal agreement Joint Committee considers EU laws that would apply in Northern Ireland. I also believe the Dublin Government could help. I have long been impressed by the pleas from the noble Lord, Lord Empey, for greater use of the north-south institutions created by the Belfast treaty. I was very sorry to see Sir Jeffrey Donaldson’s threat to boycott them. I think that would be a serious self-inflicted wound.

My additional suggestion would be to consider the precedent of the informal arrangements the EU makes to inform acceding states about laws that will apply to them on or shortly after accession. I was in COREPER and saw ambassadors from non-EU states sitting in on our debates, in working groups, before their countries joined the European Union. Such arrangements might be hard to negotiate, but we should be trying. Something similar, specific to Northern Ireland and to single market laws, might be possible. It would be completely outside the treaties and so would depend on trust and good will.

This brings me to my final point. For me, the sub-committee’s key finding is at paragraph 223, where it concludes:

“in order to maximise the prospect of the EU taking a flexible approach to the implementation of the Protocol, the Government needs to rebuild trust by demonstrating its good faith. This requires open and constructive engagement, meetings its legal obligations and fulfilling its outstanding political commitments.”

I was in Washington when John Major and Tony Blair transformed our standing in America with Bill Clinton and John McCain by demonstrating that they were trustworthy on the Northern Ireland issue.

Of course, it would be possible to cut down the number of supplementary customs declarations. I am sure that point is absolutely correct; it is an absurd number now. I suspect that that is what Mr Šefčovič had in mind when he said last week:

“Let’s see what can be done to further ease the supply of goods”.


We should take up that offer from him. With great respect to the noble Lord, Lord Frost, I find it implausible in practice that he would reject

“solutions which involve ‘flexibilities’ within the current rules”.

I hope the noble Lord drops the confrontational chest-beating tone. A good rule in negotiation is not to insult the other side.

I end with an olive branch—something the noble Lord, Lord Frost, said which seems 100% correct. In paragraph 268 of this admirable report, the sub-committee has him saying:

“it is important that we all try to act in a way that is conducive to a good negotiation”.

That is quite right. “Physician, heal thyself.”