Ireland/Northern Ireland Protocol: Scrutiny of EU Legislative Proposals (European Affairs Committee Sub-Committee Report)

Lord Ponsonby of Shulbrede Excerpts

Friday 20th January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Jay, for his skilful and diplomatic chairing of the sub-committee. He has produced a report of real substance which this House has benefited from.

The protocol is a unique arrangement. It was designed, as we know, to manage the consequences of the Government’s approach to Brexit, avoid a hard border on the island of Ireland and maintain the delicate balance of institutions created by the Good Friday agreement. It does so by requiring Northern Ireland to remain aligned with aspects of EU law. We need to make the protocol work, but the arrangement none the less creates some specific challenges for scrutiny and accountability.

As the report notes, the protocol lists more than 300 pieces of EU legislation that apply to Northern Ireland, not just in their present form but as they may be amended in future. In addition, new EU legislation that falls within the scope of the protocol may apply to Northern Ireland too. While the protocol will be subject to a vote of consent in the Northern Ireland Assembly in 2024, the reality is that new EU legislation that applies in Northern Ireland under it will not have been subject to a direct democratic decision-making process involving the UK Government or another representative body of Northern Ireland.

This creates three obvious challenges. The first is a democratic challenge, since no elected representatives of people in Northern Ireland are involved in agreeing the legislation at EU level. Secondly, there is an application challenge: legislation which is not primarily designed with Northern Ireland in mind may have unintended or disproportionate consequences when applied there. Thirdly, there is a divergence challenge, since the dynamic nature of the application of new EU legislation within the scope of the protocol creates the potential for greater divergence between Northern Ireland and the rest of the UK.

These challenges are inherent to the nature of the protocol, but it is right that this House plays a role to help make it work, mitigate any negative consequences and maximise the benefits of this arrangement for people in Northern Ireland. The work of the committee in scrutinising EU legislation applying in Northern Ireland is therefore a vital function.

I will make three points on the committee’s work; the first is on the facilitation of scrutiny. In the unique circumstances of the protocol, it is all the more important that the Government meet their obligations to enable the committee to perform its functions properly. The report is absolutely correct to emphasise that the Government have an obligation to explain the impact of legislation that will apply in Northern Ireland. It is concerning to hear the committee’s characterisation of some of the Government’s Explanatory Memoranda on these pieces of legislation as “frankly poor”. The Government must comply with their undertakings and ensure the proper quality of Explanatory Memoranda.

The report lays out a very reasonable set of requirements the Government should meet when setting out the implications of legislation for Northern Ireland, including the risks of regulatory divergence, the views of the devolved Administrations and the consultations that the Government have undertaken. Here, it is worth referring to the point made by the noble Baroness, Lady Ritchie, about the importance of an audit of EU legislation and of monitoring divergence; the noble Baroness, Lady Suttie, also made this point.

There is, regrettably, a troubling pattern from this Government when it comes to parliamentary oversight and scrutiny. The Government’s retained EU law Bill is an insult to the proper scrutiny function of Parliament. The protocol Bill, with its Henry VIII clauses, is a power grab that gifts Ministers significant and unaccountable powers. It seems that the Government are also failing to provide quality materials to enable the proper scrutiny function of the European Affairs Committee. I urge the Government to take heed of the committee’s concerns in this area.

The second point is the importance of engaging with stakeholders in Northern Ireland. This is a duty that I believe is incumbent not just on the UK Government but particularly on the EU. The more the EU engages with those affected by the new legislative proposals that will apply in Northern Ireland, the better. We have heard in today’s debate some practical proposals for trying to facilitate better engagement from my noble friend Lord Hain, and a number of others. This can help address democratic concerns about the protocol, as well as ensure that Northern Ireland’s unique circumstances are taken into account. Too often, the voices of communities and businesses in Northern Ireland have not been heard sufficiently. I urge the EU to think creatively about how it can best engage with those voices in Northern Ireland. The work of the committee also provides, through its written and oral evidence sessions, an important platform to engage with Northern Ireland’s stakeholders, and that should continue.

Thirdly, I make the wider point that the most effective step that could be taken to promote effective governance and democratic accountability in Northern Ireland would be the restoration of power-sharing, and the return of a functioning Northern Ireland Executive and Assembly. Some 44% of families in Northern Ireland have no savings and it has the worst waiting list figures in the United Kingdom. These problems can be solved only by a functioning government. It is an abject failure that power-sharing has not been restored. It is the job of politicians to solve the problems of residents and voters; it is not the job of voters to solve the problems of politicians.

There is a window of opportunity now to reach a negotiated agreement with the EU that the Government must not squander. We sincerely hope to see a swift and comprehensive negotiated solution. I hope the Minister will be able to update the House on negotiations. If there is a deal that delivers for our national interest and the people of Northern Ireland, we in the Labour Party will support it. I am grateful to the noble Lord, Lord Jay, and his committee for their work; I hope that the important issues raised in this report will receive appropriate consideration from the Government.

Northern Ireland Protocol Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Lilley (Con)]

I am saying that there may well be problems. Indeed, I asked the noble Lord the other day, down the corridor, whether he was of the opinion that Article 16 could be used to solve all the problems. If it can be, fine; I am not ruling that out. However, if it cannot be, then the issue raised by the noble Lord, Lord Bew, is there on the table, and the issue raised by the Lord Chancellor is there on the table. Whatever about that, the protocol is intrinsically temporary. The whole basis of the negotiations that we entered into on the withdrawal agreement was that a permanent agreement could not be entered into in the withdrawal Act with the United Kingdom covering trade or other matters; that could happen only after we had left. Therefore, anything in the withdrawal agreement was intrinsically transitional and temporary.

Again, I have not heard a response on that today. I wait to be interrupted with a response to the point. Usually, it comes from the noble Lord, Lord Kerr, who wrote Article 50, but he has forgotten what the alternative is.

These are important issues. We need to know why we were told one thing, that this was temporary, and now are told another thing, that it is permanent. Until we get an answer to those questions, I do not know that our debate can proceed as productively as it ought to. There are other more general points which I would like to make but I will save them for another batch of amendments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has indeed been a very wide-ranging debate, but I will comment specifically on the amendments themselves.

The DPRRC refers to the power contained in Clause 18 as “strange” and notes that

“Despite its being highly unusual”


there will be “no parliamentary oversight” whatever. This was the subject of some debate in another place, with much head-scratching as to what the Government were trying to achieve. Indeed, we cannot know that, because they have not offered a clear justification. A former head of the government legal service, Sir Jonathan Jones KC, described this as a “do whatever you like” power, but why is it needed in the first place? We have no definition of “conduct”. Can the Minister have a go at giving us a definition today? If that is not possible, can we have a detailed explanation ahead of Report?

In the Commons, the Minister tried to insist that concerned MPs had misconstrued the intent and that Clause 18 simply makes clear that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation. I cannot remember any other legislation where the Government have felt it necessary to clarify that Ministers are acting lawfully. Until recently, we took it for granted that this was always the case. Therefore, is this power an admission that the Government’s approach to the protocol is incompatible with international law and, as a result, in conflict with the Ministerial Code’s requirements to comply with the law?

There were a number of very interesting contributions in this debate. I highlight that of the noble Lord, Lord Empey, which was very constructive, about bringing into the process which is being embarked on by the UK Government respected people from Northern Ireland. I am interested to hear the Minister’s reaction to the proposals made by the noble Lord. The noble Lord, Lord Kilclooney, gave a rather chilling example of the stakes we are dealing with and how important it is that we take every opportunity we possibly can to resolve the current position. This has been an interesting debate, and I look forward to the Minister’s response.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, I thank all noble Lords who have contributed to the debate on the amendments and the wider context. The noble and learned Lord, Lord Stewart, the noble Lord, Lord Caine, and I always look down the list to see when the first group in Committee will be. We know that the clock will strike an hour because of the context that will be set in relation not just to the amendments in front of us but opinions on the particular Bill. Like the noble Lord, Lord Ponsonby, I will focus on the specific amendments. Where I can add a degree of Ahmad colour, I will seek to do this in the best way possible.

As I and my colleagues have said, to pick up on a key point on the ultimate nature of the Bill, the reasoning behind the Government’s approach is that the Bill is consistent with our obligations in international law and supports our prior obligations to the Belfast/Good Friday agreement, as has been said in various parts of today’s debate—and very eloquently by my noble friend Lord Lilley.

I will begin with Amendment 36, tabled by the noble Lord, Lord Purvis, on the issue of the powers. In the Government’s view, Clause 18 is not an extraordinary power. It simply makes clear, as would normally be the case, that Ministers are acting lawfully in this case. This point was made by the noble Lord, Lord Ponsonby, and others and I will attempt to put some colour on this—I do not know whether it will be to noble Lords’ satisfaction. Clause 18 is included because the Government recognise that the Bill provides, in a way that is not routinely done for other legislation, for new domestic obligations to replace prior domestic obligations that stem from our international obligations. Those international obligations are currently implemented automatically by Section 7A of the European Union (Withdrawal) Act 2018. That conduit pipe currently constrains—and in the Government’s view could cause confusion in the future—how Ministers can act in support of the Bill. The Government put forward that Clause 18 is to provide clarity on that point.

I note the DPRRC’s view on the issue of delegated powers, which the noble and learned Lord, Lord Judge, highlighted again in his contribution. However, it is the Government’s view that the power being proposed here is within the normal scope of executive action. To provide a bit more detail, this would include, for example, direct notifications from Ministers to the EU. While I am sure—I am going to hazard a guess as I look around your Lordships’ House—that I may not have satisfied every question on that, I hope that that has provided a degree more detail.

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[Lord Hannay of Chiswick (CB)]

I echo, from a non-legal point of view, the points made by the previous two speakers but, when looking at the European Court of Justice and its role under the protocol, I imagine that even the noble Lord, Lord Lilley, would not contradict the point that I am about to make, which is that the properly constituted British Government, supported by the properly constituted British Parliament, entered into a treaty that gave a role to the European Court of Justice. That is a simple fact. It is there, written. It is another simple fact that there is no provision in the protocol to remove that role of the European Court of Justice—none.

What we are talking about is a breach of our international commitments. I am sure one of the noble Lords on the Front Bench will again hotly deny that this is the case because, like the Red Queen in Alice, their only argument is, “It is so because I say it is so”. Fortunately, that is not a terribly convincing argument in this place, where occasionally—not all the time—reason has a way of prevailing. I should like to suggest that we recognise this reality, which is that the Government’s attempt to remove the European Court of Justice unilaterally from two international treaties, which they entered with the consent, support and approval of Parliament, is a breach of our international commitments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we had a brief debate on matters relating to the European court last week, which largely focused on the earlier parts of the Bill. It is helpful to have this opportunity to deal with some of these issues in more detail.

The agreement reached with the EU on the status and role of the CJEU in relation to the protocol and other parts of the withdrawal agreement was carefully crafted and informed part of the oven-ready deal the Conservative Party was proud to call its own. There is some logic in what Clause 20 seeks to achieve. If the protocol no longer functions as intended, the legal processes cannot either, but that is only if one accepts that it is acceptable to tear up a binding international agreement in the first place.

The power for Ministers to introduce some form of referral process is interesting and a little surprising. It seems to contradict the earlier power in subsection (2). From a practical point of view, would not any referral scheme work only if the EU and European court agreed to engage in the process? Would this point not need to be negotiated?

There has been a wide-ranging debate on these issues, but it seems that there are some very practical consequences of trying to put into place a new referral process while at the same time needing to negotiate with the organisation one has just torn up a formal agreement with. How would that work in practice?

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I am grateful to noble Lords for their participation in this debate. I will first address Amendment 40 in the name of the noble Baroness, Lady Suttie. I am delighted to see her in her place and will do my utmost to address her points, as I turn to the first group.

The amendment would require a positive resolution of the Northern Ireland Assembly before the provisions of Clause 20 can be brought into force. I point out, and it is a matter that the whole Committee is seized of, that we need to see the restoration of the institutions as quickly as possible. It is because of the breakdown of those institutions that the Government consider that the Bill is needed.

Clause 20 engages a complex combination of the transferred, devolved and reserved matters relating to foreign affairs and the court systems of the United Kingdom’s three jurisdictions. It would not be appropriate for the Northern Ireland Assembly to constrain the UK Parliament’s power to legislate, even if that legislation relates to a reserved matter.

Clause 20 is a key part of the Bill. It addresses how we treat CJEU case law, principles, and references, including in relation to those parts of the protocol that we are excluding in domestic law. I will come back to this point, but to reiterate matters taken at earlier stages before your Lordships, this is not a ripping up or tearing up of the protocol, but a recognition that parts of the protocol are not working and parts are. We seek to retain those parts that are working and dispense with those that are not.

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Moved by

[Lord Ponsonby of Shulbrede]

44: Clause 22, page 11, line 15, leave out subsection (1)
Member’s explanatory statement
This amendment removes the ability for regulations under the Bill to make changes that could normally only be made by an Act of Parliament (including modifying this Bill).

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 44, in the name of my noble friend Lady Chapman of Darlington, concerns Henry VIII powers and general rules regarding regulations. This amendment removes the ability for regulations under the Bill to make changes that could normally be made only by an Act of Parliament, including modifying this Bill. I also support the clause stand part notice in the name of the noble Lord, Lord Purvis, which seeks to oppose the inclusion of Clause 22, which sets out the general scope and nature of the powers contained in this Bill.

Clause 22(1) has the effect of making every regulation-making power in the Bill what the DPRRC has referred to as

“a super Henry VIII power.”

Ministers would be able to make any provision that would normally be made by an Act of Parliament, as well as modifying the Bill once enacted. The DPRRC’s report included a helpful comparison with the powers afforded by the European Union (Withdrawal) Act. It felt those powers were too broad, yet Section 8 of that Act was subject to a sunset clause and a number of clear and important restrictions.

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[Lord Ahmad of Wimbledon (Con)]

This is turning into a very long letter. I think I am going to get something from the Box which says, “Minister, do not commit to writing anything ever again.” But I know what the noble Lord has asked of me.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Minister has been put in an impossible situation. I thank all noble Lord who have spoken in this debate. It is a hard act to follow. We have had the noble and learned Lord, Lord Judge, talking about extraordinary legislation and quoting from the Proclamation by the Crown Act 1539, the noble Lord, Lord Pannick, talking about wasting the Committee’s time and then using that very legal words “otiose” when comparing Clause 22(1) and Clause 22(3). We have had the noble and learned Baroness, Lady Butler-Sloss, talking about never seeing so many Henry VIII powers in her time in Parliament. The noble Lord, Lord Purvis, asked a number of questions, including one we have heard just now, and the noble Lord, Lord Dodds, very relevantly asked about the reason that there is an exception in Clause 22(3) about border infrastructure on the north-south border, so I look forward to seeing this letter as well. I beg leave to withdraw the amendment.

Amendment 44 withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede (Lab)]

56: After Clause 22, insert the following new Clause—
“Duty to seek an agreement on outstanding issues with the Northern Ireland Protocol
(1) Before a Minister of the Crown may exercise any of the powers in sections 1 to 20, His Majesty's Government must—(a) seek an agreement with the European Union regarding outstanding issues with the Northern Ireland Protocol, or(b) pursue and exhaust all legal options under the EU withdrawal agreement.(2) Within the period of three months beginning with the day on which this Act is passed, and every month thereafter until—(a) an agreement is reached, or(b) a Minister of the Crown is of the opinion that an agreement cannot be reached,a Minister of the Crown must lay before each House of Parliament a statement outlining what progress has been made in negotiations.”Member’s explanatory statement
This amendment would make it a statutory requirement for the Government to seek a negotiated outcome with the EU, and to exhaust legal routes under the EU withdrawal agreement before availing itself of the powers in this Bill. The amendment would also require Ministers to provide regular updates to Parliament regarding the ongoing UK-EU negotiations.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 56 deals with the

“Duty to seek an agreement on outstanding issues with the Northern Ireland Protocol”.


This amendment would make it a statutory requirement for the Government to seek a negotiated outcome with the EU and to exhaust legal routes under the EU withdrawal agreement before availing themselves of the powers in this Bill. The amendment would also require Ministers to provide regular updates to Parliament regarding the ongoing UK-EU negotiations.

In this amendment, we seek to bring together two issues in a single text: the negotiated settlement and the regular updates. This would ensure that the extraordinary measures in this Bill could not be used until all legal routes are exhausted. We know that the Government will say this amendment is unnecessary, yet the very existence of this Bill highlights the lack of good faith displayed by Ministers. We have been asked to trust in the new negotiations, but we have not yet had an update from the Foreign Secretary—although we are told we may get one later this week, and I would be grateful if the Minister could confirm that. Colleagues such as the noble Lords, Lord Hannay and Lord Kerr, often remind us of the Commission’s duties to the European Parliament, so why, after all this time, does the Conservative Party continue to sideline what they call the mother of Parliaments—this House? If the Government really are acting in good faith, they should take no issue with this amendment. It is a restatement of their own policy, coupled with a request for further information. I beg to move Amendment 56.

[Lord Hannay of Chiswick (CB)]

My Lords, I support this amendment. I have spoken on a number of previous occasions about the fact that we are fumbling around in the dark. The noble Lord, Lord Ahmad, made a noble attempt at an earlier stage in today’s debate to say something about what was going on but I am sorry to say that, if I was being impolite, I would say that what he said was the square root of nothing. Are we going to get something more than that? We ought to. That has been the practice of previous British Governments in negotiation as a third party when we were outside the European Union and in many other negotiations. I think it is pretty shocking that we are not getting that.

It also underlines a point which all our debates illustrate: that the Government have put the cart before the horse. Surely the right sequence would have been for the Government to enter into a serious process of negotiation from last February onwards; but they did nothing—absolutely nothing. We now know that nothing happened after February. As that process went along, they should have reported it to Parliament. At some stage or another, it would have been perfectly reasonable for the Government to say that we cannot go on like this for ever and, if we cannot get a negotiated agreement to sort out the implementation of the protocol in order to cure it of some of the imperfections which none of us contests, then we may have to go down a unilateral course.

If the Government had done that, I suspect that we would have had an agreement by now—but the lady who was Foreign Secretary at the time and who had her eye on higher things, which, alas, turned out to be a flash in the pan, went down another course, which was to put the cart before the horses. And that is where we are: with the cart firmly before the horses. Here we are, spending hours and hours discussing what we are going to do if this process of negotiation, which the Government say is their preference, fails. Well, the time to do that is when it has failed, when the Government have made a full and detailed report of why it had failed, and when we can see what the other side in the negotiation says about whether those reasons for failure are justified. Then Parliament can take a view on what to do next.

Instead of which, we are being asked to do all this now in the, alas, totally futile belief that this will somehow put the frighteners on Brussels. Well, it does not look to me as if Brussels is terribly frightened; nor has it been for many months. So I wish we could just get away from this and leave the process of deciding what we do if the Government’s preferred option fails, and then we will deal with that when we get to it. We will cross that bridge when we get to it.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it has been a short debate which has gone over some territory that we have covered a number of times already. The noble Lord, Lord Hannay, referred to putting the cart before the horse and my noble friend Lord Murphy described this as a pointless and daft Bill—but je went on to give some very constructive suggestions about how to move forward with proper negotiations as we come up to the 25th anniversary of the agreement.

I will withdraw Amendment 56, but I notice that the noble Lord, Lord Ahmad, was diplomatically opaque when he said that he would update the House at an appropriate time, whereas we heard from the noble Baroness, Lady Suttie, earlier this evening that it may well be later this week.

[Lord Ahmad of Wimbledon (Con)]

While there are discussions going on, I do not want to anticipate which department will give a Statement. I want to be definitive, so I do not in any way want to give misleading information or information that is not yet correct. That is why I was being “diplomatically opaque”, as the noble Lord called it.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede]

65: Clause 23, page 12, line 25, leave out from “regulations” to end of line 29 and insert “may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Member’s explanatory statement
This amendment makes most regulations under the Bill subject to the affirmative procedure.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendments 65 and 66 would make most regulations under the Bill subject to the affirmative procedure and strip out supplementary provision which would become redundant as a result.

As we discussed in earlier amendments, most powers in the Bill could be exercised with little or no formal scrutiny. These amendments would make the bulk of regulations made under the Bill subject to the affirmative procedure, ensuring that the SIs had to be debated and justified. Of course, I understand that this is no silver bullet and this House never makes a habit of voting down statutory instruments.

Last week, I asked the Minister what planning had been undertaken in relation to the powers in the Bill. Have the Government decided on a sequence yet? Do we know how many statutory instruments we may be dealing with? If the Minister is unable to comment at this time—we have received no correspondence on this matter—is he in a position to update the Committee on the likely number of statutory instruments that the Bill may generate? I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank the noble Lord for moving this amendment. I also recognise his point about these instruments being affirmative. I note that we recognised that in an earlier debate today on another issue. Of course, affirmative statutory instruments allow for those debates to be taken forward.

My colleagues and I have said before that we want an opportunity to scrutinise all regulations under the Bill. The Government will provide all their usual accompanying material under normal parliamentary procedures. I can commit at the current time that any regulations that amend Acts of Parliament will be subject to the affirmative procedure, although there will be some technical and detailed regulations under the Bill that may be subject to a negative procedure. That does not in itself mean that there will be no scrutiny, but I note what the noble Lord has said.

There are obviously details still to be determined around the volume of the SIs that would be coming, but I will see whether there are further details that I can share with the noble Lord and inform him appropriately. For now, I ask him to withdraw the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw Amendment 65.

Amendment 65 withdrawn.

Northern Ireland Protocol Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, this is the third day we have been debating the Northern Ireland protocol and I know Members may be tired or exhausted, but it seems from a unionist point of view that a lot of Members of this House are either tone deaf or totally blind—because they desire to be—about the reality of the situation with the protocol. I do not know how many times Members have to be told that the protocol is totally unacceptable to any unionist elected representative, any unionist within the Northern Ireland Assembly, or indeed any unionist Member who sits in either of the Houses here. That seems to have been just cast aside.

A few moments ago, we listened to the noble Baroness, Lady Ritchie, who stressed how important it is that the protocol is not just re-established but is put fully into operation. Then she stressed how important it is that the Northern Ireland Assembly is given its place to support this protocol. I say gently to the noble Baroness, for whom I have a personal respect, having known her for many years in the other place and in the Northern Ireland Assembly, that maybe she has forgotten that majority rule is no longer in existence in Northern Ireland. In fact, the behest of her community, and indeed the marches on the streets and other activities by others she would not necessarily associate herself with, ensured that majority rule was no longer in existence in Northern Ireland. She is basing her remarks upon the acceptance of the Northern Ireland Assembly, debating and then supporting the protocol with Sinn Féin, the SDLP, the Alliance, the Greens and a few other parties, but not one unionist.

Maybe the Committee needs to learn this fact: the very basis of the Belfast agreement was predicated upon cross-community support, not majority rule. That was decided, and indeed lauded and applauded, by every part of this House. We are also constantly reminded that nothing, but nothing, must be done to undermine the Belfast agreement. I noticed that when the noble Lord, Lord Kerr, was speaking, he mentioned the polls and what the polls are saying. I suggest we should be very careful about what the polls are saying, because they certainly got it wrong on Brexit and it seems that they got it wrong on the election in Israel just yesterday. I suggest that, since we listened to the Secretary of State say that Northern Ireland is heading to the polls, rather than telling us what the polls are saying, when the people of Northern Ireland speak we will find out what the unionist community believes about the Northern Ireland protocol.

It may surprise noble Lords, but there is a party in this House that when it takes a manifesto to the people, actually stands by its manifesto. I know that is a novel thing for the Government Benches over the years, but it is not novel for the Democratic Unionist Party. I suggest that noble Lords refrain from telling us, because to be honest, I am fed up with people telling us what the people of Northern Ireland want. Let the electorate speak. The Minister, or rather the deputy at the Northern Ireland Office, has told us that we will shortly hear the date of the Northern Ireland election. Therefore, the Northern Ireland protocol will be put to the electorate and we will see what the unionist population believes concerning that protocol.

I note, before I finish, that on a previous occasion when I was speaking the noble Lord, Lord Kerr, said that it was novel for us to support or base our opinions on the Belfast agreement when we opposed that agreement. I remind him why we opposed it. It was because the Belfast agreement was putting unreconstructed terrorists into government who would not support the police or law and order. In fact, it took another agreement, the St Andrews agreement, to bring them to the place where they had to say that they would give up their weapons, that the IRA weapons would have to go and that they would actually support the police and call upon their community. So, when noble Lords mention that we did not support the Belfast agreement, that was on the basis of the Belfast agreement at that time bringing in unreconstructed terrorists.

As one who suffered from those terrorists, I say without apology to the noble Lord and to the Committee that I did not agree at that time, but I am also long enough in public life to know that the Belfast agreement is an international agreement and therefore this House has constantly told us that we must do nothing to undermine that agreement. I can tell the Committee clearly that, day by day, those who say that the protocol must continue are undermining the Belfast agreement within the unionist community. I trust and pray that the Government will wisely accept that the Bill is not perfect, but it is certainly better than anything I have heard anyone else suggest we should move forward on.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments brings us to the role of the European Court of Justice, with Clause 13 classifying any provision of the protocol or withdrawal agreement that confers jurisdiction on the ECJ as “excluded provision”. When the Government negotiated and signed the withdrawal agreement, they agreed to a limited role for the ECJ in certain cases. This clause ends ECJ jurisdiction, even when it does not directly relate to excluded provision, and there is a question mark about whether the Government are acting in bad faith on this matter.

Subsections (4) and (5) have been included, according to the Explanatory Notes, to allow Ministers to make arrangements for the sharing of relevant information with the EU. Can the Minister say more about this? To our knowledge, the UK has still not given the EU access to real-time customs data, as required under the withdrawal agreement.

The scope of the power in Clause 13 is very wide. The DPRRC said:

“Parliament has no knowledge of the Government’s plan but is meanwhile expected to rubberstamp all the regulation-making arrangements.”


This point has been made by a number of noble Lords, not least the noble and learned Lord, Lord Judge.

Amendments 21B to 23C, tabled by my noble friend Lord Hain and the noble Baroness, Lady Ritchie, on the potential consequences for the operation of the single electricity market, are very important. I hope the Minister will be able to clarify the legal position. I also hope he will rise to the challenge put to him that the UK Government have every intention of maintaining an all-Ireland electricity market. I look forward to the Minister’s response.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank again all noble Lords who have spoken on this issue. I will approach the question on the single market in electricity, and I am grateful to the noble Lord, Lord Hain, for tabling his amendments in this respect. I will start with Amendment 20, in the name of the noble Lord, Lord Tweed of Purvis.

Northern Ireland Protocol Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, in an earlier debate the noble Baroness, Lady Chapman of Darlington, pointed out precedents whereby the Government relied on regulations to give meat to a Bill and they had been published by this stage, so that we had some sight of what we were signing up to.

I am interested that on this occasion, on this group of amendments, my noble friends on the Democratic Unionist Benches have been strangely silent. Given what we have heard from the noble Lord, Lord Purvis, in moving the amendments and from others who supported him, to me, this amounts to a democratic deficit. All the conditions that would normally be put in place, involving a review of the regulations before they came up, appear not to be in play at this time. I hope my noble friends will find common ground with me, recognising that this could be a democratic deficit the likes of which they would not like to see.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, when the noble Lord, Lord Purvis, set out this group of amendments, he rightly said that Clause 4 is at the heart of the Bill, and the debate has really encapsulated that point.

I have a number of questions for the Minister. We will have several debates about the scope of the delegated powers proposed, but as this is the first group dealing with the reports by the DPRRC, it is worth recalling just how unprecedented these were. The DPRRC has chosen on a number of occasions to publish a report while a Bill is still in the Commons—there is nothing unusual in that—but rarely has it been so scathing, labelling the Bill

“unprecedented in its cavalier treatment of Parliament, the EU and the Government’s own international obligations”,

as the noble Lord, Lord Pannick, has said.

The committee was unable to propose tweaks to various powers in the Bill, including those in Clause 4. Instead, it recommended gutting several key clauses. As mentioned in the debate, the Government opted not to respond to the DPRRC before we moved into Committee, even though they had from July to do so. It is hard to see how the two sides can meet in the middle, so, if we proceed to Report, it is quite possible that this House will have to strip out several clauses.

The noble Earl, Lord Kinnoull, made interesting points when he talked about the previous level of scrutiny of EU law, in which this House played a very prominent part. I am sure many Members of this House served on those committees. The EU Committee scrutinised legislation, as did this House and a whole series of committees, and the House of Commons, of course. That was a far higher level of scrutiny than anything being proposed at the moment.

The noble Lord, Lord Lilley, asked an interesting question—and he was fair in saying it was a genuine question—about the alternatives to this multitude of Henry VIII powers. I will be interested to hear the Minister’s response. It seems to me that the alternative is to go through things in detail, as the old EU committee structure in this House used to do routinely. I will be interested to hear the answer to the noble Lord’s question.

We are sympathetic to this group of amendments. I do not know what the noble Lord, Lord Purvis, is going to do but we are happy to support him.

[Lord Bew (CB)]

My Lords, I am well aware of the sensitivity in this House regarding Henry VIII powers, and I respect that; it is a serious argument. However, Northern Ireland looks at these things from an angle that is not entirely the way the House of Lords looks at them. For one thing, there are what you might call Louis XIV powers all over the place in terms of European law and regulations, but there is silence about that.

The second issue, which has already been alluded to by the noble Lord, Lord Dodds, is that again and again, we have had the most dramatic demonstrations of Henry VIII powers in areas where I and other Members, a majority in your Lordships’ House, are in agreement—abortion laws and so on. We do it all the time. When we as a local assembly like it, when it is our kind of opinion, we have no problems. When we do not like what is proposed, we discover that this application of Henry VIII powers is intrinsically terrible. To be blunt, the House needs to avoid looking totally hypocritical on this point.

I feel that I have been living for a very long time with Article 16 and the potential illegality or otherwise of the Government’s legislation. When I first encountered it, in fact, it was Article 15 in Theresa May’s Bill; it was that long ago. I read and reread it until I was blue in the face. Let me say what the problem is in attempting to challenge the Government’s position. The best argument against the current position in the legislation is that Article 16 could be and should have been applied. At the moment, it is ridiculous. We are in the middle of a serious negotiation with the EU and it would break that up, so it is fatuous and politically absurd. Apart from the principle of reality, I can see why people want to argue that, but it is not going to happen now because the Government want this legislation with the EU to succeed. In the Financial Times as recently as September, the EU was defining the application of Article 16 as an outrage and so on. The situation would simply be aggravated.

The other weak point of this argument is that saying, “We want Article 16 but nothing else” is the sound of one hand clapping. None of those who have argued for it in this House since Second Reading has shown any grasp of the central difficulty of the relationship between the two treaties and their interaction. If you are going to argue, as distinguished international lawyers have done before both our Select Committees, that the Government have a case of sorts but Article 16 should be applied first, that is based on the idea that there is an interaction between the two treaties and this is the best way of acting to defend the Good Friday agreement. That is a perfectly respectable intellectual legal argument, but it just does not fit with the political moment we find ourselves in, with ongoing negotiations.

The sensitivity that people in this Chamber have about the attitudes and feelings of the EU is quite remarkable when they do not seem to feel it themselves; they feel that they are quite adult enough to get on with this negotiation anyway, regardless of the Bill. As I pointed out, the Irish Foreign Secretary said openly that they do not like the Bill but that is not a reason for not having the negotiations. Still, it is wonderful to see people stick up for other people’s rights and interests when they themselves do not seem quite so keen or worked up about the subject.

The main point is that just saying “Article 16” is simply one hand clapping. The only possible viable argument is to say—as indeed both the House of Commons and our own Select Committee have been told—that that is indeed the way you could use it to get a result. The best criticism of the Government is that you cannot really prove necessity unless you have gone down this route. It so happens that the Government are stuck in a moment of real politics, the real negotiation that is going on, so they cannot do it, but the majority of speakers in this House say, “I would like Article 16”. That is an amazing recent conversion to Article 16. A few months ago, most of us hated it and regarded even talking about it as a piece of British brutishness. Now we really love it because we prefer it to the Bill. Unless you add to that that you accept that there is a real problem with the interaction between this agreement and the Good Friday agreement, as the former Lord Chancellor said in the House of Commons, then, in the Chinese phrase, it is just one hand clapping.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall speak first to Amendments 13 and 14, in the name of my noble friend Lady Chapman. These would replace the word “appropriate” with “necessary”. The arguments are the same as we heard in the previous group and express unease about the scope of ministerial powers. On the others, we can see the case for what the Government want to achieve—a differentiation of goods destined for Northern Ireland or for the single market. We believe that the best way to secure such a scheme is to negotiate with the Irish Government and the EU. The two sides’ proposals to this area differ on various points of detail, but there is undoubtedly room to compromise if there is the political will to achieve this.

As we said on the first day in Committee, we are sympathetic to the case for removing various clauses from the Bill. That is particularly the case for Clause 9, of which the DPRRC said:

“This is the frankest admission by the government the policy is so embryonic that it has not yet been consulted on. And yet Parliament is being presented with a major Bill on the subject.”


That quote was also put forward by the noble Lord, Lord Purvis. Despite our calls last week, we have not heard anything from the Foreign Secretary regarding the negotiations, beyond a brief confirmation of a phone call with Vice-President Šefčovič. I ask the Minister: when can we have a fuller, formal report on the state of the negotiations?

The only other point I want to make is to pick up the question raised by the noble Lord, Lord McCrea. My party acknowledges that there is a problem with the protocol Bill. Of course, it is the Government who are negotiating this, not Parliament. We, on our side, do not believe that the Bill is helping that process.

[Lord Caine (Con)]

My Lords, I am grateful for the opportunity to convince noble Lords of the merits of the dual regulatory regime. In doing so, it is important that we just take a step back for a second and consider the overriding purpose of these clauses and the regime itself. It is to remove barriers to trade between Great Britain and Northern Ireland for goods that will never leave the United Kingdom. It will enable us to address the so-called Irish Sea border, and support trade between Northern Ireland and Great Britain, as has been government policy since the Acts of Union in 1800, while respecting the integrity of the EU single market.

Northern Irish businesses will be able to meet UK rules when supplying the UK market should they wish, benefiting from future regulatory reform. That in turn will help to create the conditions that in our view can lead to the restoration of a fully functioning devolved Government in Northern Ireland, and therefore the implementation of all three strands of the Belfast agreement. The clauses will enable this to be achieved in the following ways.

Clause 7 makes it clear that businesses will have a choice of which regulatory route to follow when placing goods on the market in Northern Ireland. It introduces, as I have made clear, a dual regulatory regime for regulated classes of goods to which any provision of annexe 2 of the Northern Ireland protocol applies. This will create a new option to meet UK rules compared to the existing protocol arrangements, whereby goods are required to comply with the relevant EU rules. Where the relevant requirements allow, it will also be possible for the same product simultaneously to comply with both sets of requirements.

Currently, as noble Lords will be aware, traders have no choice under the protocol but to meet EU rules when supplying goods in or to Northern Ireland. This deters some companies, especially those trading exclusively within the United Kingdom, from serving Northern Ireland due to costs and administrative burdens required to meet this EU law: for example, retesting, re-marking and relabelling of goods, as well as the appointment of a representative to undertake administrative duties. All this comes at a cost, which I submit is completely unnecessary for goods that are to remain on the UK market.

The dual regulatory regime provides businesses across the UK with choice. If a Northern Ireland-based business trades north-south on the island of Ireland, they can continue, as now, to follow EU rules and sell their products into the EU and across the UK because of the Government’s commitment to unfettered access between Northern Ireland and Great Britain. If their business model is UK-focused, they can choose to follow UK rules and benefit from the opportunities afforded there.

By providing an alternative UK-rules route to market in Northern Ireland, the clause fundamentally protects the integrity of the United Kingdom internal market and addresses concerns over the so-called Irish Sea border for goods that will remain within the United Kingdom. That concern over the Irish Sea border is, as I said in response to an earlier group of amendments, the principal cause of there being no functioning Executive and Assembly in Northern Ireland.

On the comments made by the noble Baroness, Lady Ritchie of Downpatrick, I am very much aware of the concerns raised by Northern Ireland’s agri-food sector, and in particular the dairy sector, as I know from experience and have seen at first hand on a number of visits. Indeed, a short while ago I visited a farm between Newry and Armagh where the same family have been farming the land since the 1740s. The farmers in question are, if I may use the terminology, from a Protestant unionist background. It is a dairy farm, and everything they produce on it is processed in Ireland. Therefore I completely accept that, for businesses like that, the provisions of the protocol that enable EU single market access are not just desirable but absolutely essential. I assure her that we are very much committed to upholding that seamless EU single market access where it is essential for businesses. We are in favour of retaining those elements of the protocol that work while remedying those elements that do not.