Northern Ireland Protocol Bill

Debate between Lord Purvis of Tweed and Lord Dodds of Duncairn

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

The 44% who voted to come out was a much higher figure than people had expected—but I accept what the noble Baroness says. But we are part of the United Kingdom and, just as Scotland and London and other parts of England voted in a certain way, we had to respect the overall vote. And if every single person in Northern Ireland had voted to remain—never forget—there would still have been a majority for Brexit and Northern Ireland would still have left the European Union, because we are part of the United Kingdom. The Belfast agreement did not create a hybrid situation in Northern Ireland. The sovereign UK Government are the responsible Government. We are United Kingdom citizens. Special arrangements were made for governance, but not for sovereignty, and that needs always to be borne in mind by those who try to conflate the two things. I think I have said enough on the specific detail.

[Lord Purvis of Tweed (LD)]

Before the noble Lord sits down, I am grateful. I understand his arguments. It is not a question with regards to the result of the referendum. My question is in the context of having scrutinised many trade agreements and treaties, and the deficiencies in the CRaG process. I agree with the noble Lord that there are challenges when it comes to agreements made by the Executive under their prerogative power to negotiate, and then what ability do we have, even quasi-representatives in an unelected Chamber such as this, to raise issues? I get that entirely. But, if the Government secure agreement as a result of these talks, has the noble Lord given any thought to the mechanism for seeking consent for what the Government bring forward?

[Lord Dodds of Duncairn (DUP)]

Well, there are a lot of “ifs” there. If I understand the noble Lord, he is asking, “If there’s an agreement, what should the Government do in terms of getting an endorsement of it?” I presume they would come to both Houses of Parliament and consult with the parties in Northern Ireland. As we learned from the original Brexit negotiations, the Government would be very wise to consult with the parties in Northern Ireland before any final arrangements are entered into.

I have a lot of sympathy with the view expressed by the noble Lord, Lord Hannay, that there is a lot of secrecy around the negotiations. Nobody is quite sure what is going on—technical talks, negotiations or whatever. However, I remember living through one particular week when the UK Government went off to Brussels and then came back again because they had not consulted properly. I would not like to see that happen again, because the whole objective here is to ensure that we can get arrangements which allow the devolved Government to get up and running again, with the support of nationalists and of unionists. So, before we came to any formal vote, I suspect that there would need to be quite considerable discussions and consultations with the parties in Northern Ireland.

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[Lord Purvis of Tweed (LD)]

My Lords, we will build up a fair canter with the next couple of groups because their principles are similar.

Part of the thrust of the argument is that we should be considering how we approach a new regime regarding Northern Ireland as we would for all other parts of the UK. The amendments in this group would do exactly that. They would adopt commitments provided by the Government in other legislation for the implementation of other agreements, including trade agreements, the operation of the single market and consideration of how that market will operate.

For example, Amendment 31 seeks that when the Government wish to operate the framework, they do so informed by the statutory bodies that Parliament has placed in legislation that would operate for all other parts of the UK single market. They should therefore, similarly, consult the Trade and Agriculture Commission, a statutory body tasked with looking at what Governments propose for the operation across the whole United Kingdom, and the Competition and Markets Authority, in relation to the operation of the UK internal market.

These have not been considered burdensome or lacking in timeliness, since these are all provisions in other pieces of legislation. If the thrust of the argument is that there should be consistency in operation for these, surely the Government would want to put in place the consultation of the statutory bodies to inform and advise, on the same statutory basis as in the other pieces of legislation. These amendments should not be too troublesome for the Minister to accept. I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, as the noble Lord, Lord Purvis, said, I hope we are speeding up a little. I will speak very briefly to Amendments 27 and 28 in this group, in his name and that of the noble Baroness, Lady Ludford.

In relation to consultation with various organisations —not statutory bodies—such as the chamber of commerce, the CBI, the Federation of Small Businesses, Trade NI, and, as mentioned in Amendment 28, the UFU, Food NI and the Northern Ireland Food and Drink Association, I wonder why those ones were chosen. If you are a member of Hospitality Ulster, you might be feeling a bit left out. If we are putting this in statute, why are certain groups put into statute and others left out?

Also, picking up on concerns raised earlier—I listened very carefully—proposed new subsection (3A)(e) talks about

“any other persons whom the Minister considers appropriate as representatives of business, trade and economic interests”.

The Government could be consulting for a very long time. Is the noble Lord not concerned that that could give a very open-ended power to the Minister, and would maybe provide him with too much discretion? I am very concerned about anything given to Ministers that allows them an open-ended process. Surely that would be of concern. I agree with the necessity of consultation with bodies such as this, and statutory bodies and so on, but I do not think it is necessary to put it in statute.

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[Lord Purvis of Tweed (LD)]

My Lords, I have a 25-minute speech on VAT and tax, but I might just summarise it for the benefit of the Committee. Again, the Delegated Powers and Regulatory Reform Committee has highlighted an inappropriately wide delegation of power. Here, it is on what would genuinely be an extremely controversial and sensitive issue of tax powers, excise and tax policy. The Government have said it is “not possible” to make such provisions in the Bill. I am just testing why it is not possible to state what a framework would be for provision of taxes, VAT and excise duties.

Everywhere else, what the framework would be is in the Bill—and for good reason. People need to know what the tax powers are and who holds them, and of course it is of controversy that the protocol has these linked elements. So I am simply seeking for the Government to fill in the gaps, state in clear terms why it is not possible and give a bit more information about what they consider to be their proposed framework when they move away from the protocol in these areas. This is the first attempt to get some more information from the Government—because the memorandum was not clear—in order for us to consider it, review it and perhaps return to this issue.

I would be happy for the Minister to write to me on my final point, rather than answer at this stage, because it is genuinely a probing question. Noble Lords may well recall that there had been successful attempts to amend the cross-border trade Act in Section 54, which is the prohibition on the collection of certain taxes or duties on behalf of country or territory without reciprocity. That includes in Section 54(2) that it shall be unlawful for HMRC to account for any duty or customs or VAT or excise duty collected by HMRC to the Government of the country outside the United Kingdom unless reciprocal.

The Government seem to be proposing a breach of Section 54, because the regime that they seem to be proposing is that we would be accounting to the European Union for taxes which we have set ourselves. I am happy to be contradicted about that and similarly happy if the Minister wishes to write on that point. I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, I rise to speak to Amendment 35A in my name on VAT and excise. I do not wish to prolong the debate at this hour. Very briefly, noble Lords will remember back in March when the then Chancellor Rishi Sunak announced measures in the fiscal event—mini-budget, estimate, whatever it was—that there was a zero VAT cut for households installing energy-efficiency measures, which would apply throughout Great Britain, but not to installation in homes in Northern Ireland of materials such as solar panels, insulation or heat pumps.

Consumers in Northern Ireland could not benefit from that VAT cut because of the protocol. Something that was warmly welcomed across the rest of the United Kingdom provoked concern and outrage across the communities in Northern Ireland. Mr Sunak announced that there would be extra money provided by way of Barnett consequentials to make up for it, but, as people with experience of the operation of the Executive know, sometimes the direct tax cut is the most effective and efficient way of getting these things done.

I have tabled this amendment to explore and seek the Government’s reasoning on their approach to the VAT issue. They have not gone down the route that they have in relation to state aid in Clause 12 of excluding Article 10 and annexes 5 and 6 of the protocol. They have not decided to exclude the relevant article of the protocol which applies the VAT rules. Instead, they have adopted the approach of saying there are large areas where we simply disapply that article and we can make provision by regulations in relation to the VAT excise duties and other taxes.

It is more akin to the situation that we find ourselves in with the protocol itself in relation to customs: Northern Ireland is nominally within the UK customs regime, but all the rules of the EU apply. What is the impact of the Government taking this approach in relation to VAT? Why are they not taking the same kind of approach to VAT as they have to state aid? What are the implications? It says clearly in the subsections what steps can be taken in relation to differences in VAT and making sure that the situation that we saw in March may not arise in the future, but what are the implications of not taking out the relevant article in the protocol completely?

Northern Ireland Protocol Bill

Debate between Lord Purvis of Tweed and Lord Dodds of Duncairn

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

“The United Kingdom shall ensure no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.

[Lord Purvis of Tweed (LD)]

My Lords, I want to rise very briefly in support of these amendments and also to say that my noble friend Lady Ludford made an extremely clear and very good case. I just want to add three very brief points.

The first is that I refer the noble Lord, Lord Dodds, to Hansard in 2019 and my contributions, among others from these Benches. We debated these issues and highlighted them, and he knows that. I am sure this evening it is just rhetoric in our Committee. He knows we have raised the concerns that he just outlined now. They are why we opposed it. So I do not think he can present that fact towards these Benches.

The second is that in my view Article 2 of the protocol should not be seen in a static form. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights … results from its withdrawal from the Union”.


This is a permanent agreement, a permanent commitment, and therefore it cannot be seen that those that were in place in 2019 are now kept in aspic. So my noble friend is absolutely right that if you are taking away what is case law and when those rights and freedoms protected by Annexe 1 powers are adapted, unless they are dynamic, there is a diminution of those rights, by definition. The Bill proposes retaining them in aspic. The noble Baroness, Lady Ritchie, is absolutely right to highlight the fact that those Article 2 rights need to continue to be dynamic.

I know the hour is late, but I want to remind the noble Lord, Lord Bew, and others of Northern Ireland Protocol Bill: UK Government Legal Position, which is the founding basis upon which this Bill has been brought for our consideration. The final sentence of the penultimate paragraph is:

“The UK urges EU Member States to provide a new negotiating mandate to the Commission, wide enough to change the terms of the Protocol to respond to the full range of issues addressed by this legislation.”


So far, I have not heard a squeak from any Minister saying that the position of the Government is still that there should be a new negotiating mandate from the Commission to EU member states. I have not heard that; I am willing to be intervened on, or, if not, I want to hear from the Minister whether that is still the position. That was the legal position of the Government: that they are seeking a new negotiating mandate from the Commission. It is there in black and white, but I have not heard whether that remains the same. When it comes to putting faith in the negotiations, what is the basis of these negotiations if the Government’s legal position is that there has to be a new mandate and that is not forthcoming?

Northern Ireland Protocol Bill

Debate between Lord Purvis of Tweed and Lord Dodds of Duncairn

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

Do not worry, I will not be arguing that passionately for any Bill that could end up being withdrawn. We have been down this road before. All I say is that I support measures that, in my view, help to deal with the protocol issues that we have. I accept what the noble Lord is saying in terms of the LibDem position, although Layla Moran pointed out last year that triggering Article 16 would be a terrible thing and tragic, and all the rest of it, so it is not exactly totally consistent on the Article 16 point.

[Lord Purvis of Tweed (LD)]

As the noble Lord, Lord Pannick, said, there is a difference between recognising that there are mechanisms that could be put in place as safeguarding and rebalancing measures, and unilateral actions that seek to go beyond what Article 16 would be for the protocol. That is the entire point.

In supporting my noble friend’s Amendments 3 and 67, I understand that the Government will have prepared—the Advocate-General will correct me if I am wrong—a legal issues memorandum, a LIM, before the Bill was approved. That goes to the Attorney-General and to the Advocate-General for Scotland, and they will have approved this legal issues memorandum which, I understand, would have had to consider the very questions that the noble Lord, Lord Pannick, indicated with regard to the options open to the Government to meet their policy ambitions. That would have included the protocol element of Article 16, as the noble Lord, Lord Dodds, indicated. In many respects, and I cover many trade debates in this House, Article 16 elements are fairly typical WTO mechanisms of safeguarding and rebalancing. The legal issues memorandum will have had to consider these options. So, at the very least, the Advocate-General can confirm to the Committee that there was a legal issues memorandum, and it did consider all these options.

The next question, therefore, is precisely where the legal argument on necessity originated. Did it originate from the FCDO? I understand that the memorandum goes to the FCDO also, for the treaties department. I am sure the Advocate-General will say that he cannot disclose this information for us, but on an issue of this importance, where did the argument for legal necessity originate? Was it his department? Was it the Office of the Advocate-General for Scotland? He is in his place precisely because his predecessor resigned, saying that his position was undermined in his endeavour to find, to quote from his letter, “a respectable argument” for breaches of international law in the United Kingdom Internal Market Act. The then Secretary of State for Northern Ireland said, notoriously, that it was a “specific and limited” breach, but the noble and learned Lord, Lord Keen, struggled hard to find a respectable argument to present for it, and because the Secretary of State was honest, the noble and learned Lord resigned. I note that the Constitution Committee report said, as has been referred to before:

“In this case, reliance on the doctrine of necessity is not a ‘respectable’ legal argument.”


I think we will touch on it when we discuss whether Clause 123 stands part, so it will be very interesting to hear what the Advocate-General says in winding on this group in order to inform some of our discussions on the next group.

I have sympathy with what has been referred to by others and I have an inkling as to what the Advocate-General may have in the folder in front of him. He may say, “It’s a long-standing convention, for very good reason, that legal advice is not published in full”, and he is no doubt prepared to say it, but why my noble friend Lord Campbell of Pittenweem is correct is that we are now in a realm of significance, given the scale of what the breach of international law would be.

I will refer to it in the next group, but my noble friend provided an amuse-bouche of the case of Hungary and Slovakia, to which the Advocate-General had referred. I also read that judgment in full. It may help the noble Lord, Lord Bew, to know what the ICJ has found repeatedly. Let me quote from its judgment in one of the cases that the Advocate-General cited.

“According to the Commission”—


that is the International Law Commission—

“the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied;”—

this is the point I want to stress—

“and the State concerned is not the sole judge of whether those conditions have been met.”

So even if he is right, one state party cannot determine solely, and the ICJ has found that repeatedly.

Even if the Advocate-General for Scotland says that it is a long-standing convention and cites examples of where legal advice was not furnished—he may overlook some examples of where it has been, of course, but that is a separate issue—the area that I want to ask about concerns what the former Advocate-General for Northern Ireland and the Attorney-General, Sir Geoffrey Cox, said in Committee in the Commons.

“There is plenty of precedent for the Attorney General coming to the House—I should know, I did it—to answer questions about the international law compatibility of a measure in this House. Indeed, it goes way back, I think, to either the Wilson Government or the Heath Government … I invite the Minister … to invite the Attorney General to come and answer those questions, because, in my judgment, it is an obligation to the House. The Attorney General has a residual duty to advise the House on matters such as this.”—[Official Report, Commons, 13/7/22; col. 400.]


Will the Advocate-General state why this has not happened? Will he provide the equivalent to this House in a Statement? We are asking the same as has been asked in the past of Attorneys-General.

Her Late Majesty Queen Elizabeth II

Debate between Lord Purvis of Tweed and Lord Dodds of Duncairn

Friday 9th September 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

I am privileged to follow the profound eloquence of the noble Baroness in her tribute and I echo many of her regards. It is to the personal, the local and the international personified by her late Majesty that we pay tribute today. As the sorrowful but necessary processes in my home country north of the border pass, she will continue in the wee dark hours over the border, on her last journey home, through my home town of Berwick. Like many noble Lords, I have memories of meeting her in my home area; they no doubt felt when they met her as I did—that she knew our area more than we knew it ourselves. It was just one of the many attributes she held that are receiving tribute today.

Queen Elizabeth II lived for nearly a third of all the time of our union and was sovereign of it for nearly a quarter. This will never be repeated in the future story of these isles: a semi-mystical link between old and new, a shelter of calm in storms of turbulent political waters and, in the wider world, an embodiment of reliability as the tectonic shifts in how the world sees itself have moved, along with the place of our country in this transformation, from empire to Commonwealth, from military prowess to cultural influence.

I reviewed the Motions of condolence for the late King George VI in 1952. From these Benches, Viscount Samuel quoted Prime Minister Nehru of India as saying that

“when the relationship between England and India took a new turn and was based on friendship and free association … I was impressed by his thoughtfulness and understanding of us and our position, and we welcomed him most willingly as Head of the Commonwealth”.—[Official Report, 11/2/1952; cols. 1080-81.]

Her late Majesty built upon this foundation and became the reason beyond all others as to why peaceful transition with complex moral dimensions on an immense scale, touching every part of the world, has been a success.

Today, I was due to be arriving in Khartoum. Friends from there messaged me last evening, as others have from other parts of the world. I was greatly moved by the news that the pictures of her Majesty’s visit there in 1965 have been circulating widely. That country is vastly different from before and after independence—as is the world. Another Sudanese friend messaged me saying, “Her legacy in the decolonisation era will especially be remembered in our region of the world”.

No other leader of a country in world history has ever travelled so much or met more leaders and people from more countries. As one American publication put it this morning, “Among Queen Elizabeth II’s many talents was an ability to turn the most powerful man on the planet into an overexcited fanboy—tea with the Queen outranking a nuclear arsenal”.

At home in the Borders, where her visits were frequent and her knowledge of our equestrian common ridings was thorough—as was that of other members of the Royal Family; in fact, the Queen Consort was due to be in Galashiels yesterday—we will feel a gap as she passes through for the final time.

Her late Majesty made me feel it that it was a remarkable stroke of good fortune to be born British, and I know the pride felt by many people who have come and made Britain their home. That pride for our history is in my heart, but there is a sense of anxiety in the pit of my stomach for the future. Many people of my parents’ generation and, indeed, my own, and I myself, feel loss, but some will feel lost. Who will be the constancy in times of churn to come? So, for our union at home and our place in the world abroad, I thank her late Majesty, and I wish the new King every success.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is difficult to follow so many eloquent speeches that have already been given in the House by your Lordships this afternoon, but I rise to add few words on my own behalf and that of my noble friends in the Democratic Unionist Party, and on behalf of so many in Northern Ireland who feel the loss of Her Majesty so acutely today.

So many words have been spoken, yet, no matter how many or how eloquently expressed, they cannot do justice to the feelings that we experienced when we heard the dreadful news yesterday afternoon on the passing of Her Majesty. That shock was palpable; as the noble Lord, Lord Purvis, said, there is a sense not just of loss but that people are lost, in a bit of a limbo and worried about what might happen going forward.

As the noble and learned Lord, Lord Judge, said, we knew this day would come but we wished that it would not. The sense of loss is acute. Her Majesty was a constant presence in our lives and in the life of our communities, and in each of the countries of our United Kingdom she is, or was, the embodiment—a mother and grandmother of our United Kingdom. It is hard to process.

We think today of her family and, in particular, the new King Charles III. We pray that he will know God’s blessing and guidance in the days ahead. He has to grieve and yet immediately assume the great duties, burdens and responsibilities of the monarchy. It reminds us, of course, that, at the tender age of 26, Her Majesty herself ascended to the throne while she desperately grieved his late Majesty King George VI; but she embraced her duties without hesitation, taking upon herself the mantle or duty and service.

Those beautiful words that she spoke on her 21st birthday,

“I declare before you all that my whole life, whether it be long or short, shall be devoted to your service”,


have been fulfilled in the most exemplary way and with such grace. The qualities of integrity and great wisdom shone through brightly her entire life, with her great strength and stay his late Royal Highness the Duke of Edinburgh constantly at her side. What was striking to many of us was her deep Christian faith, so evident in her wonderful Christmas broadcasts. How we will miss sitting down on Christmas Day to hear the gentle words of Her Majesty speak to the entire nation. Today, as we look over decades of her service, we have been reminded in your Lordships’ House that, while many paid homage to her, she first placed her hands and her life in the hands of Christ the Lord himself. As we look back over 70 years, we are reminded of what the Bible says about life:

“For what is your life? It is even a vapour that appears for a little time and then vanishes away.”


But Her Majesty has left behind such a legacy and example for us all.