Standards in Public Life

Lord Kerr of Kinlochard Excerpts

Thursday 9th September 2021 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am indebted to the noble Lord, Lord Blunkett, for securing this debate and for the way he introduced it. We are also indebted to the noble Lord, Lord Evans of Weardale, for providing us with the agenda for the debate in his June report, which the noble Lord, Lord Blunkett, referred to. I cannot really share the sunny optimism of the previous speaker. I speak from the perspective of an ex-public servant and I fear that there is a huge amount of evidence around that standards are slipping. The report of the noble Lord, Lord Evans, cites a good deal of evidence; I will just touch on three points and then add two thoughts of my own.

First, to me it is shocking and, in the words of the report by the noble Lord, Lord Evans, it is not “sustainable” that most public servants now have

“no confidence in the regulation of the Ministerial Code.”

That is very dangerous, and the report says it is unsustainable. The noble Lord, Lord Geidt, must be given the ability to instigate his own investigations.

Secondly, so must ACOBA, the committee chaired by the noble Lord, Lord Pickles, which currently can only advise when advice is sought. We can see someone occupying a senior position in the Cabinet Office while being paid a salary by a financial company and joining it immediately on leaving the Cabinet Office without having any contact with ACOBA; that absolutely cannot be right. The rules need to be made enforceable in employment contracts of officials and in arrangements with Ministers.

Thirdly, another recent case reveals that special advisers can be double-hatted as non-executive directors in departments. That is absurd. The concept of the non-executive director was to help Whitehall by bringing in the expertise of senior businesspeople who knew how useful to a CEO was the challenge provided by a strong board. The position is not meant for chums; it is meant for challenging. Clearly, there is a need to bring the non-executive directors into the scope of the regulated appointments.

All these changes are clearly necessary and urgent, but will they be sufficient? Here are my own thoughts. The tone from the top seems to be the problem. It is not just about overruling the watchdog or a casual insouciance about the rules on financial disclosure; it is more fundamental. Standards in public life will continue to slip if there is a continuing failure to see that the public servant is most loyal when he has the courage to challenge what he believes would not work or would be improper. I am no fan of the French cabinet system, but at least their cabinets do not just consist just of political chums. The administrative experience is also imbedded in the cabinet. We risk getting the worse of both worlds.

Finally, what happened to personal responsibility? We have seen the issues of the building standards for Grenfell, the Post Office and Horizon, the Kabul embassy guards, and no ministerial resignations. Noble Lords will remember Peter Carrington, who was in no way responsible for the Falklands. It was not he who paid off HMS “Endurance” or refused Cabinet discussion of the Ridley plan, but Peter Carrington resigned because it happened on his watch. That is the right tone from the top and it sets the right standard in public life.

House of Lords Appointments Commission

Lord Kerr of Kinlochard Excerpts

Monday 6th September 2021 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, we have to recognise that Mr Johnson has damaged this House in three ways. First, he has not followed the advice of the Appointments Commission on a point of propriety, damaging his own reputation but also ours. Secondly, the flow of Peers coming here on the recommendation of the commission seems to have dwindled to zero. Thirdly, of course, he has ignored the Burns report, ignored the restraint of his predecessor and reversed all the progress that we had made in reducing the size of the House. So, let us be realistic. Of course the commission should be on a statutory basis, but what is the chance of the Prime Minister agreeing to do that? What is the chance of the Prime Minister agreeing to limit his options, to fetter himself even very loosely? I think there is no chance at all, unless we separate the honour from the job, as the Burns report in fact recommended.

Detailed legislative work is an acquired taste, and it is clear that some of the recent creations have no desire to acquire it. So be it. If they do not want to do the job, why could they not just join the majority of Peers who do not sit in this place and do not receive a Writ of Summons, the majority being those culled in 1999 and their successors, as well as the growing number of us who have wisely decided to retire—a number that would grow much faster if the Burns “two out, one in” recommendation were accepted? The commission’s scrutiny of candidates to work in this House could then be confined to only those willing to work here, and not to the unwilling who would not come. Thirty years ago, the Queen was good enough to give me a knighthood. She did not require me to pick up a lance and get on a horse. It is was an honour with no equestrian duties attached—which was a relief to me and could be a precedent for the House.

[Baroness Scott of Bybrook (Con)]

I remind noble Lords that the time limit is two minutes.

Northern Ireland Protocol

Lord Kerr of Kinlochard Excerpts

Wednesday 21st July 2021 Lords Chamber

[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.

Ireland/Northern Ireland Protocol

Lord Kerr of Kinlochard Excerpts

Thursday 15th July 2021 Lords Chamber

[Lord Frost (Con)]

We agree, of course, that it is very important that the situation in Northern Ireland remains calm, and we are very glad that it has. Nevertheless, it is clear that there is a high level of political concern about the situation that currently subsists. It is very important that all of us—this Government, the European Union and everybody else with an interest—act to respond to that political difficulty and show that we can respond politically and solve problems that have arisen, rather than suggest that they do not exist.

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

I am puzzled by the Minister’s reply to the Question from the noble Baroness, Lady Ritchie—it almost sounded as if he is not very proud of his protocol. It seemed to me and to many in Scotland that Mrs Foster had a point when she talked about the best of both worlds. However, looking ahead, there clearly is a problem with the democratic deficit in relation to new EU single-market laws applicable in Northern Ireland thanks to the protocol. How does the Minister propose to mitigate this problem? Does he agree that the Partnership Council and the parliamentary partnership assembly could play some role and will the Government endorse strong Northern Ireland representation in both?

[Lord Frost (Con)]

My Lords, I learned a good deal of what I know of negotiation at the feet of the noble Lord, Lord Kerr, so wherever we have got to is at least in part thanks to his tutelage over the years. On the issue of the parliamentary partnership assembly and the Partnership Council, the parliamentary assembly is, of course, a matter for Parliament. We are in close touch with those involved as to how it should work but its composition is not a matter for the Government, although we obviously strongly support its work. On the institutions created by the withdrawal agreement and the TCA, we seek to ensure that all the devolved Administrations, including Northern Ireland, can participate in the most appropriate way.

UK Government Union Capability

Lord Kerr of Kinlochard Excerpts

Thursday 1st July 2021 Lords Chamber

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

The noble Earl, Lord Kinnoull, reminded us that the Government sat on their Dunlop report for 16 months and do not seem to be planning to implement it in full. They slipped it out surreptitiously, without allowing a proper debate, and their curious progress update document is still a disputed draft, 39 months into the review. Where is the drive or the urgency? Government documents are not at the level of events.

In Scotland, as in Northern Ireland, devolution is on life support. New structures could be agreed in a week if the Prime Minister were to engage and get them done. Maybe that is the problem. It is almost as if his heart is not in it; as if he meant it when he called devolution a disaster; as if he cannot see what is now the only alternative in Scotland to making it work; as if he really believes that refusing a Section 30 order would close out that alternative, and that Northern Ireland need not involve him and can safely be left to Mr Brandon Lewis.

I have time for one piece of advice only to the Prime Minister: when in a hole, stop digging. Do not repeat the Brexit negotiations mistake of excluding the devolved Administrations. Invite them into the joint committee under the withdrawal agreement now. Do not insist on an immigration policy that ignores their demography, so different from England’s. Why repeat under state aid the internal market Act’s override of the devolution settlement? Do not, with no prior warning, do trade deals with third countries such as Australia, which the three Celtic countries—possibly wrongly but deeply—believe will damage their farmers. Do not go on feeding the perception that you are not really a UK Government but an English Government. Cut out the unforced errors, stop digging the hole deeper and please scrap the hard hat, high-vis jacket photo-op visits, which only annoy. Instead, show parity of esteem, get around the table with your counterparts, settle the structures and make them work. You have not long; time is running out.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

The noble Lord, Lord Lang of Monkton, has been unable to connect, so I call the next speaker, the noble Baroness, Lady Taylor of Bolton.

Protocol on Ireland/Northern Ireland

Lord Kerr of Kinlochard Excerpts

Thursday 25th March 2021 Lords Chamber

[Lord Frost (Con)]

My noble friend is absolutely right; Northern Ireland is not subject to some sort of co-governance arrangement with the EU. Northern Ireland is fully part of the United Kingdom, its custom arrangements and internal market. The protocol is extremely clear on this point. However the protocol is implemented, it must be done in a way consistent with these fundamental provisions.

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

One of the effects of the Minister’s decision on the grace period is that nobody now knows when the new treaty will be ratified. I take him back to his answer to the noble Earl, Lord Kinnoull, and the Government’s February decision that the entire governance structure under the new treaty—all the myriad committees charged with tackling practical problems, tying up loose ends and rebuilding relations—should stay on ice until after ratification. No one knows when ratification will be. The report by the EU Select Committee chaired by the noble Earl, Lord Kinnoull, saw no justification for allowing matters to drift in this way. The Minister’s answer suggests that he does not agree. If so, what is his justification for this drift and what was the withdrawal agreement legal base for his unilateral decision on the grace periods?

[Lord Frost (Con)]

My Lords, our expectation is that the trade and co-operation agreement will be ratified by the end of April. We have agreed to that in the partnership council by written process. We look to the European Union to uphold that obligation. The unilateral measures were lawful as part of a progressive and proportionate implementation of the protocol.

Protocol on Ireland/Northern Ireland: Border Controls

Lord Kerr of Kinlochard Excerpts

Thursday 4th February 2021 Lords Chamber

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

I applaud the Minister’s answers. I am sure he is right. I am also sure that the joint committee could agree and will agree extensions of the grace periods until trusted trader schemes are up and running. However, SPS checks, which we agreed, and some supermarket shortages cannot possibly constitute the exceptional circumstances that annexe 7 to the protocol says would be required before Article 16 action was envisaged. Yet we have—the Prime Minister has, on 13 January and again yesterday—clearly threatened Article 16 action. Does the Minister believe that, if we were to destroy the protocol, the European Parliament would proceed to ratify the trade treaty?

[Lord True (Con)]

My Lords, I am not going to follow the noble Lord in a litany of “what ifs”. We should address “what now”, and the EU has a responsibility to help to address that.

EU-UK Trade and Cooperation Agreement

Lord Kerr of Kinlochard Excerpts

Friday 8th January 2021 Lords Chamber

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

When Donald Trump was elected in 2016, EU Foreign Ministers met to consider the implications. Given our inside track in Washington, they looked to us for a steer, but our Foreign Secretary did not turn up. He said that it would only be a “whingerama” and that President Trump would be just fine.

Previous Foreign Secretaries valued these meetings. Some dominated them—Carrington, Hurd, and, on his day, Robin Cook—but Mr Johnson did not. Perhaps that explains why this treaty contains no provision for political dialogue. Such a provision was on offer; it was in the 19 October joint declaration, which spoke of an association agreement for dialogue on foreign policy, security, defence and wider issues of co-operation. But Mr Johnson changed his mind and said that association agreements were for accession candidates—not true; Chile has one—and that an overarching treaty architecture would permit cross-sectoral sanctions, which is exactly what we have now, of course, in this treaty, minus the upside.

The institution set up by this treaty, the joint partnership council, and the innumerable committees listed by noble Lord, Lord Hain, and the noble Baroness, Lady Deech, deal only with the new trade rules, monitoring our compliance and tying up the loose ends. Crucially, these committees and the council exclude the 27. Across the table from us will be the Commission, not the member states. So we have no one to consult, nowhere to consult our neighbours on COP 26, pandemics, Russia, migration and terrorism, and no regular high-level meetings. Turkey, Norway and Iceland have them; we do not.

Of course the association agreement ship has sailed. I recognise that, but I worry that isolation in Europe may not prove splendid. So I urge the Government to pour no more concrete on their feet and to authorise early in-house thinking on how best to recreate the consultative network that most member states and all Foreign Secretaries but one have found useful since the first oil shock in 1973. I think that we will need—

European Union (Future Relationship) Bill

Lord Kerr of Kinlochard Excerpts

3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Wednesday 30th December 2020 Lords Chamber

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

My Lords, I shall greatly miss the noble Lord, Lord Cavendish of Furness; one could not ask for a more congenial opponent.

I echo the comments of the noble Lord, Lord Cormack, on these farcical proceedings, rubber-stamping a crucial Bill in an afternoon.

What is most striking to me about the treaty is its asymmetry. We are a service economy running goods deficits and service surpluses, yet this treaty gives the 27 free access here for their goods but gives us nothing in return on services. There is nothing for the City or Edinburgh; no passporting, no equivalence and no recognition of qualifications; nothing on data adequacy; and nothing for the digital or creative economy, hard hit by the loss of free movement.

As for exports of UK goods, on top of the new borders and bureaucracy, our negotiators have lost on rules of origin, on SPS and on testing and certification. EU exporters to us face no similar costs here, so it is not just asymmetrical, it is lose-lose. We have let the 27 get away with saying that our service access will be determined by their autonomous, reversible decisions. Maybe the noble Lord, Lord Butler, is right, and that is just the reality of being the junior partner—we are sovereign but not equal; they are seven times bigger and they call the shots—but the outcome is a treaty that may grow their trade but cannot and will not grow ours.

But at least we have taken back control and with one bound we are free. Alas, no. Gulliver is tied down by that web of 32 committees, where we have to explain ourselves not to the member states but to the Commission. If we ever use our sovereign right to diverge on standards or subsidies, the Commission has been given—by us—the treaty right to punish us with rebalancing tariffs. So in practice we will still be rule-takers, though no longer with any say in the rule-making. We have sold our access for a mess of pottage and our real economic interests for a sovereignty shibboleth.

I reckon that is a rather bad deal, but no deal would have been worse, so today’s farce must run its course. It is a bad day for the country and a very sad day for Parliament. I share the regret of the noble Baroness, Lady Hayter, and I will vote for her amendment.

Future Relationship with the EU

Lord Kerr of Kinlochard Excerpts

Monday 14th December 2020 Lords Chamber

[Lord True (Con)]

My Lords, I can certainly agree that my noble friend Lord Frost and his colleague, Mr Lewis, are doing their duty to the very greatest extent. Of course, that is not helped by the injection of new material into the negotiations at a late stage. As I have said before at this Dispatch Box, I do not go into criticising the Governments of other nations. All I would say is that we are going to try as hard as we can and to be as creative as we possibly can in taking this on. However, what we cannot do is compromise on the fundamental nature of what Brexit is all about. It is about being able to control all our laws and to have control of our fisheries.

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

I do not think that the European Union is treating us as a colony. Indeed, the Spanish Foreign Minister reminded us this morning that trade negotiations are not about asserting independence but about managing interdependence. My question is about the language in the Statement, which yet again says that any deal must be compatible with our sovereignty and must respect our new status as a sovereign, equal and independent country. Does the Minister believe that the French Republic, the Kingdom of Spain, the Federal Republic of Germany and the other 24 EU member states are neither independent nor sovereign? If he does accept that they are independent sovereign states, just like us, why do we insist on insulting them again and again by implying in public that they are not?

[Lord True (Con)]

My Lords, the noble Lord is a masterly negotiator; I remember the Maastricht deal. However, I think he has advanced a syllogistic argument that I cannot follow. The fact is that nations may use their sovereignty in whichever way they choose, and out choice as a sovereign nation is that we wish to control our laws, our borders and our waters.