Northern Ireland Protocol Bill

Debate between Lord Ponsonby of Shulbrede and Lord Caine

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the continued absence of a formal budget for the coming year is a pressing problem. While there may be a draft budget, departments are unable to plan ahead, and this undermines both consumer and business confidence at the worst time. As-yet unspecified changes to the protocol are a risk to the Northern Ireland economy, which is one of the reasons why we, and many business organisations, would like to see a detailed impact assessment from the Government, alongside indicative regulations. Engaging with those departments in the weeks and months ahead is very important, as they know the Northern Ireland economy far better than any Minister in Whitehall. Can the Minister outline how frequently these discussions are taking place in Northern Ireland? Have the Government shared detailed proposals with their Northern Ireland counterparts? If they have, why should not Parliament see what those plans are as well?

[Lord Caine (Con)]

My Lords, once again I am very grateful to the noble Lord, Lord Purvis of Tweed, for speaking to Amendments 29 and 30, which I will address together. I will try to be very brief in this response, because the answers are actually very similar to the ones I gave in response to the last group. That is, the UK Government, since this Bill was introduced, have engaged extensively across Northern Ireland on the use of the powers in the Bill, including with the Northern Ireland Executive, with Ministers in the Executive when Ministers were in place, and with Northern Ireland departments. The expertise of officials in the Northern Ireland departments, to whom the noble Lord has just referred, is absolutely invaluable and crucial, and I take his point about budgets. Obviously, there are ongoing discussions about how that issue needs to be addressed in the absence of a functioning Executive and Assembly—but I cannot really go much beyond saying that this evening.

As of a minute past midnight on 29 October, we have no Ministers. The views of civil servants are obviously constrained by their positions, but the engagement with them is absolutely invaluable. Once again, the amendments from the noble Lord, Lord Purvis of Tweed, seek to place on a statutory footing things that we are already doing. He has my assurance that we will continue to engage as widely and comprehensively as possible, including with the bodies to which he refers in his amendments. On that basis, I do not think I need to say a great deal more. We are committed to continuing that dialogue with all the relevant departments and bodies, so I invite the noble Lord to withdraw his amendment.

Northern Ireland Protocol Bill

Debate between Lord Ponsonby of Shulbrede and Lord Caine

Committee stage
Monday 31st October 2022 Lords Chamber

[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.

Northern Ireland Protocol Bill

Debate between Lord Ponsonby of Shulbrede and Lord Caine

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking my noble friend Lady Ritchie for tabling this group of amendments. It has provoked an extremely interesting debate, with some strongly held views. First, in welcoming these amendments, my noble friend built on the contribution of my noble friend Lady Kennedy of The Shaws, who spoke last week about the importance of preserving the rights of people from all communities. The withdrawal agreement was not about the practicalities of trade; first and foremost, it was about setting out matters relating to the rights of citizens. Article 2 of the protocol reflects this, with the Government having committed to

“no diminution of rights, safeguards or equality of opportunity”

under the 1998 agreement.

The concerns raised by my noble friend Lady Ritchie are legitimate and need a detailed answer from the Minister. The Government’s obsession in relation to the European court is not helpful when it comes to questions about the rights of individuals. As my noble friend said, this is indeed an opportunity for the Government to show that they are protecting Article 2 at all costs.

The noble Lord, Lord Deben, asked a couple of very important questions. I think I wrote down correctly that he said that the Government do not even know the extent of the powers they are asking for in this Bill. That is quite a statement to make. He also gave a very telling comment about the importance of parliamentary restrictions when one has the responsibilities of a Minister. I thank him for making those points.

The noble Lord, Lord Bew, had a different view. He said that the Bill is less important than the noble Lord, Lord Deben, seemed to imply and that really the focus was on Articles 5 to 10; they are really the target of the Bill, not Article 2. I would be interested to see how the Minister reconciles those two points of view.

The noble Baroness, Lady Ludford, spoke of the law of unintended consequences. She went into some detail—almost the same level of detail as the noble Baroness, Lady Ritchie—with a number of questions that I hope the Minister will be able to answer, maybe in writing at a later stage.

The noble Lord, Lord Purvis, asked some interesting questions and reminded us all that two committees have highlighted the unprecedented nature of the Bill. This is an opportunity for the Minister to reassure us that the Article 2 rights can indeed be dynamically maintained through the Bill.

[Lord Caine (Con)]

My Lords, as ever, I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, for her amendments, which have provoked a wide-ranging debate at this late hour. I put on record my acknowledgment of her forthright defence of human rights in Northern Ireland over very many decades.

I note that some of the amendments that have been debated this evening follow on from briefings and comments made by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which are important institutions that were established under the 1998 agreement and were set out in the Northern Ireland Act 1998. They perform a hugely important function, as noble Lords have pointed out, as part of the dedicated mechanism under Article 2 of the protocol. I do not think there is any difference between us on that point.

I therefore reaffirm at the outset that the Government are committed to Article 2 and to ensuring that rights and equality protections continue to be upheld in Northern Ireland. If noble Lords will forgive me, I think I have long enough experience in Northern Ireland itself to understand the importance of those protections. That is why Article 2 is explicitly protected from being made an excluded provision by Clause 15 in the Bill. To be clear, the Government will not do anything to undermine the provisions of Article 2. We believe that the Bill gives us all the powers we need to ensure that we can protect it. The noble Baroness’s amendments therefore seek to address problems that we do not envisage arising from the Bill.

I could go into great detail now but, given the lateness of the hour, I will say that we will continue to look at these issues as we consider plans for secondary legislation under the Bill. We will be particularly mindful of any interactions with Article 2, given the interest of the Committee. In that spirit, I look forward to receiving the detailed questions from the noble Baroness in writing. Of course, I give her an undertaking that we will provide her with very detailed responses, which will be placed in the Library well in advance of Report so that noble Lords have a chance to consider them.

On the noble Baroness’s specific question, Article 2 is not excluded and cannot be. Section 7A of the European Union (Withdrawal) Act 2018 will always apply. None of the provisions that the noble Baroness mentioned ceases to apply to Article 2 under this Bill, including Article 13(3), the arbitration provisions, Article 5 of the withdrawal agreement and Section 7C of the European Union (Withdrawal) Act. As I say, I am happy to put this down in much more detail in writing so that all noble Lords will have a chance to consider the responses.

On the point made by the noble Lord, Lord Purvis of Tweed, regarding the EU negotiating mandate, I am happy to confirm that the Government are still engaging with the EU in talks, and we are clear that movement from the EU is needed that goes beyond its 2020-21 proposals. We need to be able to make changes to the protocol.

To conclude—