Union Capability: Dunlop Review

Lord Kerr of Kinlochard Excerpts

Thursday 19th November 2020 Lords Chamber

[Lord True (Con)]

My Lords, I very strongly agree with my noble friend, and spoke yesterday of the importance of not imputing bad intent where there is none. We are at our strongest when we work as one union, with the needs of all our citizens as the priority. The UK Government have provided billions in support of businesses and individuals in all parts of the UK during the Covid crisis. Our welfare system has been able to support people across the UK and our armed services have been invaluable. My noble friend is quite right: this is a story that unionists from all parties should tell.

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

The Prime Minister may choose to disparage the devolution settlement, but this House showed yesterday that it is not ready to destroy it, and we can infer that—like the noble Lord, Lord Dunlop, and Sir John Major—the House thinks that it is better to improve and use rather than abuse the intergovernmental consensus-building mechanisms which exist. Why can we not get on with that now? Why must we wait until the end of the year before we see the Dunlop report? Can the Minister answer the pertinent questions which the noble Lord, Lord Dunlop, put to him in the Chamber on 19 October? How do the Government react to Sir John Major’s lecture 10 days ago?

[Lord True (Con)]

My Lords, I have not had the time to read Sir John’s lecture. I said that the review would be published before the end of the year. It is important that we do not denigrate the substantive progress being made in the review of intergovernmental relations. I commend the devolved Administrations and the UK Government in the work going on there. It is very risky to claim that there is no co-operative work going on in this kingdom.

Great Britain and Northern Ireland: Access for Goods

Lord Kerr of Kinlochard Excerpts

Thursday 12th November 2020 Lords Chamber

[Lord True (Con)]

My Lords, I will not follow the noble Lord into international diplomacy. What I will say is what I said with some force to the House on Monday: this Government are absolutely dedicated to the Belfast/Good Friday agreement. That agreement has east-west as well as north-south aspects, and the rejection of the unfettered access commitment by your Lordships’ House was deeply unhelpful.

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

My Lords, to go back to the Question that the noble Baroness asked, I am sure the whole House understands the concerns about supply to retailers in Northern Ireland, well expressed in the joint letter from the First Minister and the Deputy First Minister. However, the NAO report last Friday shows where the problem lies, when it confirms that the new border control posts we are constructing at Larne, Warrenpoint and Belfast will not be ready. What interim plans have the Government in mind to ensure that supply to retailers in Northern Ireland continues unaffected?

[Lord True (Con)]

My Lords, I gave an assurance on supermarkets and food supplies in an earlier answer. The Government are constantly, on a daily basis, monitoring and considering the maintenance of all links between Great Britain and Northern Ireland, and have every confidence that they will be secure.

EU Exit: End of Transition Period

Lord Kerr of Kinlochard Excerpts

Thursday 24th September 2020 Lords Chamber

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

I am not shocked by Kent access permits; the Dutch have done the same already. Serious border friction and supply chain disruption are inevitable as the barriers Lord Cockfield tore down 40 years ago are rebuilt. Yes, it is absurd to have a ring-fence around Kent, but it is just a particular facet of a general absurdity. I would like to ask the Minister about businesses’ shock at Mr Gove blaming them for being unready. Ready for what? The Government have not produced the documents or the IT, so if the 50,000 new customs brokers had been recruited—I am sorry the Minister cannot tell us how many have been; perhaps he would write to us—they would be twiddling their thumbs with nothing to practise on. Will he say when the new IT systems will be tested and available for practice?

[Lord True (Con)]

My Lords, I did not hear that I was asked about customs agents originally, and I apologise to the House; £80 million was set aside for that. Not all that has been drawn down, but a good deal has. As for the specific IT we are talking about—the “Check an HGV” and the smart freight—next month detailed contacts and practice in that system will begin in concert with the road haulage industry. The target is to have that fully operational by December and the Government are confident it will be.

EU: Future Relationship

Lord Kerr of Kinlochard Excerpts

Wednesday 23rd September 2020 Grand Committee

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

How should one react if one’s Government deliberately, knowingly, admittedly and formally break international law? Like the noble Baroness, Lady Hayter, I think that Mrs May got it exactly right in the other place on Monday, and I congratulate her on her honesty and courage.

What matters for our debate today is how the 27 will react. They will have been as shocked as was Mrs May by the Bill that the Government produced, and shocked again when our Prime Minister had the nerve to accuse them of bad faith. However, I do not see them breaking off the negotiation; I see them starting infraction proceedings. The European Union runs on laws and pacta sunt servanda. I do not see them rejecting an agreement if the Barnier-Frost negotiations are to produce one but I cannot see them signing it—not without suspending its coming into force if our Government persist with what is now Clause 45 of the internal market Bill. Suspension seems to me to be the minimum on which the European Parliament would insist.

Why are we in this mess and how can we get out of it—indeed, will we? Let us not waste time on the fanciful story, for which no evidence has yet been produced, that the 27 were planning to blockade Northern Ireland’s food supplies. Who would enforce the blockade—the Commission navy, under Admiral Ursula von der Leyen? I suspect that the more banal context is our refusal to say what our future regime will be for sanitary and phytosanitary checks. Perhaps we are refusing to say because the chlorinated chicken war may still be raging in Cabinet.

The withdrawal agreement leaves Northern Ireland in the single market. Third-country suppliers of foodstuffs to the single market need a working SPS regime but the noble Lord, Lord Frost, seems to be telling the EU that ours is none of its business. Surely that is a stalemate that is relatively easy to solve, with the solution entirely in our hands. As for the other three problems that we have now discovered in the protocol, first, the Article 5.3 issue—how to ensure that export declarations and goods moving to the mainland apply only to those originating in the Republic—is an obvious task for the joint committee, and a relatively simple one. Secondly, the Article 5.2 issue, relating to goods at risk of entering the Republic, disappears if there is a free trade agreement.

Thirdly, the Article 10 issue—reach-back into the mainland on state aid—falls away if the level playing field argument is settled. This could be the crux of the matter. On state aid, the EU has dropped its unrealistic bid for dynamic alignment and CJEU jurisdiction, but it wants to know that we will have an effective regime with an independent authority, transparency, legal redress and, where trade with it is concerned, a dispute settlement mechanism. However, we seem to have said again that all that is none of its business and we are not going to set up our system until next year—so there.

This is serious. I do not believe that there can be a UK-EU free trade agreement unless on state aid we meet the EU half way. It has moved but we have not; indeed, we have regressed, resiling on last October’s political declaration when we agreed:

“Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field.”


The EU still believes that that is needed because it has heard far too much talk of Singapore-on-Thames, so I do not see us getting an agreement if on state aid—as on food standards, the environment, fish and carbon trading—we stick to saying, “Sorry, mind your own business, we’re taking back sovereignty.”

It is the sovereignty point, so stressed by the noble Lord, Lord Frost, that really puzzles me most. I would say that France and Germany are sovereign states and that their sovereignty was not diminished by their commitment to co-operation. I would say that we never lost our sovereignty; indeed, we have just demonstrated that by using it to leave. Sovereignty does not just mean the right to be left alone. Without sovereignty one cannot make treaties, but having sovereignty does not confer the right to dictate, or unilaterally revise, the terms of treaties and does not preclude binding commitments to co-operation.

Of course, I may be being naive. If, contrary to today’s reassuring remarks from the noble Lord, Lord True, we are actually on the ERG’s preferred policy of no deal then “none of your business” and the Clause 45 blunderbuss are easily explained. Avoiding commitments to high SPS standards might make sense if one’s priority was a deal with the United States. If so, there is a fatal flaw in that logic: if we blow up the Good Friday agreement, there will be no deal with the EU or with the US. The US is a guarantor power of the Belfast treaty, and American support for the Good Friday agreement is deep and bipartisan. The Foreign Secretary’s attempt last week to convince Washington that the threat to it comes not from us but from Brussels was not British diplomacy’s finest hour; it did not wash, nor will it.

I still hope for a second UK-EU treaty. That can only be thin now, but even a thin one would be better than nothing. However, it will not be agreed if we stick to our exceptionalist “mind your own business” sovereignty, and it will not come into force if we blow up the first treaty, which is only eight months old.

EU Trade Agreement

Lord Kerr of Kinlochard Excerpts

Tuesday 8th September 2020 Lords Chamber

[Lord True (Con)]

My Lords, it was certainly never envisaged. That might be an effect of the default position. This is something which your Lordships will have the opportunity to examine. It cannot be the case that every good passing from Great Britain to Northern Ireland is at risk of being carried on into the European Union.

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

My Lords, actually, some of us did point out at the time that the default position under Article 5 of the protocol was that all goods moving into Northern Ireland would be deemed at risk of going south. We also pointed out that Article 13 meant EU export documentation for goods going the other way—from Northern Ireland to Great Britain—and that Article 10, on state aids, was capable of a very wide interpretation, with the ECJ having the last word. What was not foreseen, at least by me, was that any UK Government would seek to settle such issues unilaterally, with the domestic law purporting to override an international commitment. Pacta sunt servanda. Tearing up treaties is what rogue states do. I cannot recall us ever doing so. The Minister claims that there are precedents. Can he please name just one?

Parliamentary Constituencies Bill

Lord Kerr of Kinlochard Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 27th July 2020 Lords Chamber

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

I agree with the Minister that it would be absurd to fight the next election on boundaries that are a quarter of a century old, but let us not exaggerate the good that the Bill does. It will not give every citizen an equal say in the nation’s affairs. It cannot while we hang on to first past the post, as the noble Lord, Lord Tyler, reminded us, and, as the noble Baroness, Lady Hayter, reminded us, while we reject automatic registration, leaving off the register 9 million eligible people, primarily poorer, younger and from minority-ethnic communities. Automatic registration works elsewhere. Democracy demands it here.

My chief concern is the cohesion of the kingdom. We are told that Scotland will lose three seats and Wales will lose eight seats. Are we sure that statistical tidiness makes political sense? Right now, I oppose the 2011 Act, which would have culled six Scottish seats, so of course I welcome Clause 5, but it does not address the elephant in the room: the growing perception in Scotland, Wales, and now, strikingly, in Northern Ireland—because of the Johnson frontier in the Irish Sea—that the voices of the smaller nations go unheard. The Bill will not weaken and may slightly strengthen that perception.

If it were not against the spirit of the age, I would suggest that the Government reflect on the allocation of seats in the European Parliament, which has from the start favoured smaller member states, as has the Council’s voting systems. If it were not against their perceived party interests, the Government could have proposed amending Schedule 2 to the 1986 Act to allow the Boundary Commissions to consider the additional criterion of peripherality, and to take more account of sparsity of population. The more distant a constituency, the harder the job of representing it. To drive to the highland constituency represented for so long by Lord Maclennan of Rogart, whom we greatly miss, would take 12 hours; to drive across it would take two more hours. For distant rural seats, it would make sense to widen the permitted 5% variation. To do so makes sound strategic sense if we really think that our endangered union is precious.

“Magnanimity in politics is not seldom the truest wisdom”.


I am sure that the noble Lord, Lord True, knows his Burke.

David Frost

Lord Kerr of Kinlochard Excerpts

Tuesday 30th June 2020 Lords Chamber

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

My Lords, watching Washington provides daily lessons on the perils of a politicised public service, and the Iraq inquiry reminded us of the dangers when politics and intelligence assessment overlap. Mr Frost is a man of proven resilience and stamina—he used to work for me—but he is being put in a very difficult position. Will the Minister reassure us that the Government understand that the primary role of the National Security Adviser is speaking truth to power, co-ordinating and presenting to Government the considered collective advice of the council, welcome or unwelcome, and not acting as a delivery mechanism to impose policies born in a back shop in No. 10?

[Lord True]

My Lords, the noble Lord slightly lost my sympathy in the last few words of his question. I welcome his endorsement of Mr Frost’s qualities—I cannot judge how many he learned from the noble Lord—but assure him that anybody in public service, even a Minister, has the duty to speak truth to power. I am sure Mr Frost will be mindful of that.

Northern Ireland Protocol

Lord Kerr of Kinlochard Excerpts

Thursday 21st May 2020 Lords Chamber

[Lord True]

My Lords, I thank my noble friend for her remarks. I can certainly give her the final assurances that she seeks. We will deliver unfettered access. We will legislate for it. We will, as she asks, ensure that there are no tariffs on goods remaining in UK customs territory, which are the vast majority of goods that pass to Northern Ireland. We will give effect to our proposals without the need for any new customs infrastructure. In addition, we will guarantee that Northern Ireland businesses benefit, as my noble friend implies, from the lower tariffs that we will deliver through the new free trade agreements that we hope to conclude. I repeat what I said in response to the noble Baroness and the noble Lord opposite. My noble friend is absolutely right to stress the critical role of the vibrant small business sector in Northern Ireland. It is of fundamental importance. I can certainly assure her that it will be very closely engaged as we go forward working for implementation, and its interests will be covered within the business engagement forum that we will shortly establish.

[Lord Kerr of Kinlochard (CB)]

I welcome the White Paper because, despite the Govian smokescreen, it shows that the Government have retreated and are no longer in denial about two-way checks on Irish Sea trade. That clears the way for long- overdue consultation in Northern Ireland, which will guide the committee that decides how it is all to work. However, it is still a very odd White Paper. It tells the truth, but not the whole—[Inaudible.]—four pages and five annexes which list all the EU laws which will still apply, or the new democratic deficit, with Northern Ireland having no say in any changes to these laws, or even Article 12, on the jurisdiction of the Court of Justice. Perhaps the Minister would like to fill the lacuna, or at least correct his assurance to the House last night that the ECJ would not have jurisdiction after the transition period. The protocol states that it will, even if the White Paper does not mention the point.

[Lord True]

My Lords, I regret to say that some of the noble Lord’s question rather broke up on my computer. However, I think I heard him say at one point that there will be checks on both sides. It is clearly the Government’s intention that there will not be checks—that there will be unfettered access from Northern Ireland to the United Kingdom. I appreciated what the noble Lord said about the nature of the White Paper, even if he does not agree with all the details and questions a few points. I believe it is a very constructive attempt to lay the groundwork for what he rightly says will be, I hope, sensible and constructive discussions on implementation. However, I repeat that the purpose of all of us in this is to maintain the integrity of the Good Friday agreement, and that in doing so it is in the interests of both sides, as has frequently been said, that the arrangements put in place should impact as little as possible on the everyday lives of the people of Northern Ireland. That is our objective, and I hope it is that of our partners in negotiation.

EU: Future Relationship

Lord Kerr of Kinlochard Excerpts

Wednesday 20th May 2020 Lords Chamber

[Lord True]

My Lords, I am not chasing either my noble friend or the noble Baroness, Lady Ludford, into descriptions of other people’s positions with epithets. Mr Barnier is an excellent negotiator, but my noble friend is right that the EU mandate is perhaps somewhat less viable than that of Monsieur le Duc de Talleyrand. It is a pity that those mandating the EU negotiations have not noticed that 23 June 2016, 12 December 2019 and 31 January 2020 have changed much in this country, and it does not serve in these circumstances to have learned nothing and forgotten nothing.

[Lord Kerr of Kinlochard (CB)]

I doubt if the Statement or Mr Frost ‘s letter will greatly advance the negotiation. I am struck by its petulant and querulous tone and the view that we are entitled to pick and choose. The Statement ends by saying that progress is possible only if the EU recognises that we are now a sovereign equal. I have two quick questions on sovereignty for the Minister. First, does he regard France, Spain, Germany and the 27 sovereign states as equally entitled to determine their own interests? Secondly, when we called in the political declaration for an overarching institutional framework that could be an association agreement, we must have had a different view on sovereignty because we now say that such an agreement is appropriate not for a sovereign equal but only for applicants for EU membership. I am really puzzled about this sovereignty doctrine. Is Israel or South Africa applying to join the EU? Do we think Ukraine is not a sovereign equal?

[Lord True]

My Lords, Question Time is not the moment for a debate on sovereignty. I must say I think the noble Lord probably used some much firmer language than Mr Frost in his diplomatic career occasionally. One of the issues is a sense that the EU wishes to exercise influence and authority within this country after the end of transition. The noble Lord quoted Latin the last time he spoke. I commend to him the wise advice of the Emperor Augustus, “consilium coercendi intra terminos imperii”—that is, a power should stay within its own fixed bounds. On issues such as the so-called level playing field, the jurisdiction of the ECJ and fisheries, we are asking the EU to recognise that the UK has chosen to be an independent state.

Beyond Brexit (European Union Committee Report)

Lord Kerr of Kinlochard Excerpts

Tuesday 12th May 2020 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

The poet said that it is good to see ourselves as others see us. We should perhaps consider why we are now so mistrusted across the Channel. In my two minutes, I will give two reasons.

First, the perception is increasingly that we are not implementing the Irish deal. It is seven months on, with only seven months to go, yet there has been no consultation, no draft legislation, no staff recruitment, no procurement of IT or construction of infrastructure and apparently, as the noble Baroness, Lady Ritchie, noted, no office for the 27 in Belfast—although the Chinese have one.

Our friends well remember Mr Johnson in denial that his deal entails a two-way EU trade frontier in the Irish Sea, even though it is spelt out in his treaty. They now suspect that he plans to persist in prevarication, forcing them back to the inner-Irish border and blaming Brussels for what that would do to the Good Friday agreement. Our good faith is being called into question.

Secondly, we have rejected the 27’s proposals for a new relationship based on the joint declaration. We will not let the Commission show the 27 our counterproposals—odd tactics if we are looking to win friends and get some influence. We have repudiated the level playing field concept that we had agreed in the joint declaration and encouraged the perception that we would be happy to have no deal.

As the noble Baroness, Lady Randerson, pointed out, the increasing perception across the channel is that, under the cover of the virus-led recession, we aim to conceal the self-harm done by our new and narrowly autarchic definition of sovereignty. Our old friends suspect that that is why we reject an extension of the transition period; the virus cover works only if the crash-out is quick. The 27 know that the virus means there cannot be a comprehensive free trade agreement by December, as the noble Baroness, Lady Wheatcroft, pointed out. They cannot believe that Mr Johnson does not know it, so they question our good faith.

We are increasingly seen as irresponsible and untrustworthy. We are not behaving as did all the Governments for whom I was proud to work. It is very sad and, worse than sad, shaming.