Northern Ireland Protocol Bill

Lord Northbrook Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Northbrook (Con)]

My Lords, I am totally opposed to this Bill. I do not like the idea of “excluded” provisions in it, with this meaning that they would no longer apply in domestic law. These would include provisions dealing with customs and movement of goods between Great Britain and Northern Ireland, state aid and the jurisdiction of the European Court of Justice over the protocol. The Bill would give Ministers delegated powers to change which parts of the protocol would be “excluded provision” in domestic law. They would also have delegated powers to make new law in connection with the protocol, such as on the movement and regulation of goods. The wide scope of these powers has been criticised by our House of Lords Delegated Powers Committee, which has recommended that many of them be removed from the Bill.

The Government have argued that the Bill is needed because the protocol is failing to achieve its objectives and has led to disruption to the economy and challenges to political stability in Northern Ireland. They say that discussions with the EU over many months have not resulted in any agreement to change the protocol.

In proceedings in the other place, Simon Hoare, chairman of the Northern Ireland Affairs Committee, said that the Office of Speaker’s Counsel had provided a legal opinion to his committee that

“raises enormous concerns about this Bill’s legality”.

He said that the Bill was based on arguments that were

“flimsy at best and irrational at worst”

and that the Bill risked “economically harmful retaliation” and

“shredding our reputation as a guardian of international law.”

Julian Smith, a former Northern Ireland Secretary, feared that the Bill was

“a kind of displacement activity from the core task of doing whatever we can to negotiate a better protocol deal”.

He said that it risked

“creating an impression to Unionism that a black-and-white solution is available when the reality is that … compromise will ultimately be needed”.

At the same time, he feared the Bill risked “toxifying further” discussions with the EU as well as

“prolonging instability for Northern Ireland business, not to mention putting the whole of the UK at risk of trade and tariff reprisals”.—[Official Report, Commons, 27/6/22; cols. 55-70.]

At the heart of the NIP Bill is the interpretation of the 1998 Belfast/Good Friday agreement by the UK Government. While it seems to some that constructive ambiguity is the most essential feature of that 1998 agreement, this approach is much harder to apply to the issues arising from Brexit. What the UK Government have to face as a consequence of leaving the single market is a choice as to where EU checks and controls on the movement of goods should apply.

The Northern Ireland protocol, signed in January 2020 by the EU and the UK Government, was a compromise that followed lengthy and detailed negotiations which had produced no better option. Finding a realistic and practical way ahead now depends on being able to identify the real problems that need to be addressed, taking account of the constitutional position of Northern Ireland and understanding how the present real difficulties relating to this developed.

The NIP Bill is said to be essential because unionist opposition to the protocol is preventing the operation of the institutions created under the Good Friday agreement. However, the issue of the checks and controls on goods moving from Great Britain to Northern Ireland was known and understood when the protocol was adopted. The UK Government have given contradictory signals about that issue. Unionists claim they were promised unfettered access for goods moving from Great Britain to Northern Ireland, but there is no way that any such promise could be reconciled either with the protocol itself or with the agreements reached in December 2020 on how it would be applied. Hence, I fear the UK Government have clearly contributed to the sense of grievance strongly felt by many unionists over the protocol.

In claiming to address the issue of unionist disengagement through the NIP Bill, the UK Government have in my view adopted a one-sided analysis of the Good Friday agreement. While arguing that the Bill is needed to uphold that agreement, the solution it seeks to impose does not take into account the views of the majority of the people in Northern Ireland who are not opposed to the protocol, nor would it have the agreement of the EU or the Irish Republic Government.

The EU made significant concessions in 2021 to try to make progress in sorting out the problems arising from the protocol for the UK. These included less onerous checks on lorries transporting different food products. A business importing products of animal origin into Northern Ireland from Great Britain will also no longer be subject to the same level of checks and controls. Certain products that are generally prohibited from import into the EU will now be allowed to be imported into Northern Ireland from Great Britain, subject to them carrying certificates for which specific models will be provided. A Northern Ireland business buying goods from Great Britain will have a much simpler process of customs clearance. A smaller Northern Ireland business importing wood and other raw materials from the UK will have much simpler customs formalities. Food manufacturers and retailers exporting from the UK to Northern Ireland will also have simpler or no customs formalities. Finally, British wholesalers of medicines will be able to continue to supply Northern Ireland from the current British base without relocating infrastructure. I am glad to read that protocol negotiations have resumed and hope that the Government really take on board these concessions.

Non-Contentious Probate (Fees) Order 2018

Lord Northbrook Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Faulks (Con)]

My Lords, the 2014 Act was passed by Parliament when there was a coalition Government in power. I had the privilege of bringing in enhanced fees that, it has been suggested, should be viewed in rather a favourable light compared with the probate fees that are the subject of this statutory instrument. I certainly do not remember that being the response at the time, although the arguments—namely cross-subsidy—were the same. Indeed, I specifically remember making the point that it was always an option whether you chose to litigate. That has been raised as a favourable point in support of this statutory instrument, where obviously there is no question of choice.

The reality is that both these provisions were there to subsidise the much-needed court system. The noble Lord, Lord Marks, will remember that the coalition Government came to power facing an economic crisis and that a number of cuts had to be made, particularly to the Ministry of Justice budget, which the Liberal Democrats went along with happily, as did the Conservative Party, as a result of which the courts have been feeling the strain and are continuing to in a way that a number of noble Lords have pointed out. This is an attempt to at least alleviate some of that strain.

My noble friend Lord Hunt mentioned the case for cross-subsidisation. I respectfully suggest that he is right. He mentioned a number of areas. I could mention more: non-molestation orders, occupation orders, forced marriage protection orders and female genital mutilation protection orders. There are all sorts of tribunals involving family immigration and asylum that do not pay for themselves but need cross-subsidisation.

Crude though it may be, this order will be a valuable addition to our beleaguered legal system, about which I am sure the noble Lord, Lord Marks, and all in your Lordships’ House share concern. The Government have responded to the initial outcry, if I might describe it as such, about the amounts involved. They have been lowered. I respectfully suggest that the Minister has made out the case.

[Lord Northbrook (Con)]

My Lords, clearly, after an hour and 20 minutes, this non-contentious probate order is misnamed. It is interesting that opposition to it unites the noble Lords, Lord Marks of Henley-on-Thames and Lord Beecham, and the Daily Mail. I am also in strong agreement with my noble friend Lady Browning that it is a distinctly un-Conservative policy that will alienate our natural supporters once a lot of them have woken up to what is going on.

I will not talk about the order in detail because everyone else has discussed it, but the fee of £6,000 for an estate of £2 million is high if, for instance, a main residence is taken into consideration. It is not just I and other noble Lords in this House who disapprove of the order. A helpful Law Society brief which I do not think has been touched on so far states:

“The service involved in a grant of probate is the same whether an estate is worth £50,000 or £2 million. However, under the new proposals, some estates would face a charge of £6,000. This is excessive … It is unfair to expect the bereaved to fund/subsidise other parts of the court and tribunals service, particularly in circumstances where they have no other options but to use the probate service”.


Echoing the Law Society’s concerns, as many other noble Lords have stated, our Secondary Legislation Scrutiny Committee has stated that it has very serious concerns that the order,

“arguably amounts to a ‘stealth tax’ and, therefore, a misuse of the fee-levying power”.

Similarly, the Joint Committee on Statutory Instruments, as other noble Lords have stated, raised concerns as to whether the order is intra vires, noting that it makes an unexpected use of the power conferred by the enabling Act.

The Law Society wholly agrees with the two committees that the current proposed fee is a misuse of the fee-levying power under Section 180 of the Anti-social Behaviour, Crime and Policing Act. I will not join in the debate about this section and the different views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lord, Lord Pannick, except to say that once you start levying this sort of thing, what is to stop any amount being levied by way of an extra fee, or even applying to other aspects of the legal system?

[Lord Garnier (Con)]

Surely the point therefore is to take on board the point made by the noble and learned Lord, Lord Judge: attack the primary legislation, not the secondary legislation. We have rather missed the boat on the primary legislation.

--- Later in debate ---

[Lord Northbrook]

I thank my noble and learned friend. Obviously tackling the primary legislation would be quite a major manoeuvre, and I feel that the only easy way of tackling it is by restraint.

The Law Society says that although the powers under the Act allowed the levying of a fee, it does not confer a power on the Lord Chancellor to impose a tax. This steep increase amounts to a tax, not a fee. Failure to pay a fee means a person is precluded from benefiting from the service offered. However, a tax is a levy by the Government for the benefit of the whole population. It is compulsory and cannot be avoided.

Like other noble Lords, I have also received a briefing from the Institute for Family Business, which emphasises all the Law Society’s issues. It also stresses the difficulties in raising the cash to pay the fees as they have to be paid up front before probate is granted. Could the Minister respond to the Law Society’s and the IFB’s concerns?

In short, this is a most un-Conservative measure that will alienate our natural support, and is a stealth tax by any other name. The individual tax burden is now the highest since the 1980s. I quote from an article by the noble Lord, Lord Bassam, in the House magazine of 3 December:

“It is not a fee but a radical graduated tax, which in these times of crazy property values will hit families of modest incomes hard when a family member dies. There should be a far fuller debate than will be afforded through a statutory instrument taken late in the evening away from the gaze”,


of public scrutiny.

I shall certainly support the amendment of the noble Lord, Lord Beecham, and consider supporting that of the noble Lord, Lord Marks of Henley-on-Thames. His argument that, as it is a tax by any other name, it should have been included in the Budget, has strong validity. However, can the Minister confirm that the other place has not opposed it? I am conscious of the constitutional consequences of voting down an order, so reluctantly I will not be supporting the noble Lord’s amendment.