Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, nearly three years ago, Ministers and the then Prime Minister returned from Brussels triumphantly, holding the withdrawal agreement and a brand-new protocol on Northern Ireland. We were told that this was a great deal for the country, and especially for Northern Ireland. It was, we were told, the best of both worlds. Most importantly, we were told that the letter and spirit of the Belfast/Good Friday agreement had been preserved. Now, Ministers tell us that none of this really happened. They insist that the protocol—that they negotiated, signed and campaigned on—does precisely the opposite of what they claimed then, and that it is the source of the problems that they vowed it would solve. Their answer now is to take a wrecking ball to their own agreement and to ask noble Lords to support a Bill that is a flagrant breach of international law. Frankly, your Lordships’ House should not have been asked to consider this Bill.

The truth is that the Bill is an abject admission of failure: first, a failure to understand the deal that they themselves negotiated; and, secondly, a failure to right the wrongs of their previous decisions. As my noble friend Lord Ponsonby of Shulbrede will outline later, the Bill is an insult to our political, legal and diplomatic traditions. Its aims and the powers it grants to Ministers of the Crown amount to nothing short of constitutional vandalism. It damages Britain’s hard-won reputation as a country that plays by the rules. It divides us from our European allies when we should be walking in lockstep in the face of Putin’s war in Ukraine. Further, it risks creating new trade barriers and more uncertainty for the people and businesses of Northern Ireland, and the rest of the UK, in the middle of a cost of living crisis.

There are many reasons to object to the Bill but I will focus on just three. First, the Bill will not solve the problems it purports to fix. Secondly, it is incompatible with our obligations under international law. Thirdly, it affords Ministers unreasonable, unwarranted and unprecedented powers. I shall take each one in turn.

We are all aware of the serious and difficult political challenges facing Northern Ireland today. The Good Friday agreement is an article of faith for the Labour Party: it is one of the proudest achievements of the last Labour Government, negotiated in partnership with parties and communities across Northern Ireland and with the Government of the Republic of Ireland. The institutions born out of that transformative peace are now under strain. Stormont is unable to function; months have passed without power-sharing; and democratic elections have not produced a functioning Government, meaning that the Executive cannot deliver for people during this economic crisis. This is a serious problem.

We recognise that the operation of the protocol, and the checks and barriers to trade that are an inherent feature of its design, have created problems for businesses. We accept that. Regrettably, it has heightened concerns, particularly among the unionist community, about their place in the UK, and these concerns must be heard.

As I have said on multiple occasions, this is not a one-sided issue. The EU too, as well as the UK Government, must show flexibility, but the only feasible way forward is through negotiation. Without swift progress there will have to be fresh elections in Northern Ireland and a serious Westminster Government, one with cool heads and steady hands, would work with all parties to ease current tensions.

With trust, good will, statecraft and hard work, these problems can and will be overcome. Instead, the Bill seeks to impose an unrealistic and likely unlawful unilateral solution. It is fundamentally flawed. Only a deal that works for all sides and which delivers for the people of Northern Ireland can be durable and provide the stability that businesses and the public deserve.

The good news is that the Government may finally be realising this. Last week, talks between the Government and the EU resumed. While some chose not to endorse this approach, Ministers apologised for their prior conduct in an extraordinary but welcome admission of the damage done in recent years. The Secretary of State for Northern Ireland has even said that he wants to make this legislation redundant—hear, hear to that. I welcome the Government’s long-overdue conversion to the merits of negotiation, but does that not undermine the entire basis for this Bill?

This brings me to our second central objection: the Bill is by any reasonable reading incompatible with international law. Britain has a proud record as a champion of the rule of law. This transcends personalities and party politics, stemming from our unique history and legal traditions, from Magna Carta to the Bill of Rights. However, this Government are willing to rip up those traditions and override a central element of an international treaty in domestic law, despite only recently agreeing the treaty forbidding such behaviour. They argue that this Bill is necessary, yet the Secretary of State for Northern Ireland says that he is very positive about the chances of success in these new negotiations. Not only is there an alternative to this Bill but the Government prefer it, are working on it and think it is achievable.

Moreover, the Government have not exhausted all legal routes available to them under the protocol and wider agreements with the EU. We do not wish to see Article 16 triggered, but if the Government are so keen to implement safeguards, why have they not done so through the legal means at their disposal? Despite what the Minister said in response to the noble Lord, Lord Howard, Article 16 could of course be used without jeopardising the common travel area or the energy market. I ask him to look again at his argument on that point.

The Bill shows the Government are willing to break binding treaties when it suits their internal party-political objectives to do so. That is disgraceful. If they proceed with this legislation, can they be surprised if our international partners start asking themselves whether we will keep our end of the bargain? As Ministers travel the globe to challenge the actions of dictators and despots, what message does it send when they stand here, in the mother of all parliaments, proposing measures that break international law? Reputations are hard won and easily lost. This Bill tarnishes our country’s reputation. That is simply not in our national interest. It is not who we are, nor is it the country we want to be. There is nothing more patriotic that this House can do than to defend Britain’s proud political values and legal principles.

The Bill is also a blatant power grab. It gifts the Government extraordinary powers while denying proper scrutiny by Parliament. Ministers may use these powers whenever they feel it is appropriate, disapply other parts of the protocol, or even amend Acts of Parliament. These are some of the widest-drawn Henry VIII powers I have seen during my more than 10 years in both Houses of Parliament. I am aware that that is a blink of an eye compared to the experience of some noble Lords here today, but surely this sets a dangerous precedent for the future. Just as we should defend our nation’s reputation as a law-abiding member of the international community, we should also preserve Parliament’s role as a check on ministerial power.

Finally, I know colleagues are interested in the various amendments to the substantive Motions on today’s Order Paper, as referred to by the noble Lord, Lord Cormack. First, let me say that I empathise with the noble Lord a great deal. If he does not mind my saying so, he has been a Conservative parliamentarian for more than 50 years and has been present in either this House or another place during all manner of political events and crises. It therefore says a lot about the Government and their handling of the protocol that he has felt compelled to table his amendments. I have tabled my own, setting out the concerns of not only the Labour Party but many noble Lords across the House. I am grateful to those who have engaged with the process of drafting it.

The Government need to reconsider this legislation. Ministers should at least report to the House on whether a pause in the passage of the Bill would be beneficial to these new negotiations. I know that many noble Lords would like to see the back of this Bill. I would, too; it is an abomination. But, however flawed, the Bill has the support of the elected House and we will proceed with it for today.

I welcome the Minister’s remarks that a negotiated settlement genuinely is the Government’s goal. I do not believe that that has always been the case, so his remarks to that effect are welcome. Taking that in good faith and with flexibility from both sides, an agreement is surely possible and we hope that this Bill can be consigned to history, where it belongs. It may be that Ministers reflect on today’s debate and decide to take the noble Lord, Lord Cormack, up on his suggestion of a pause, but if they insist on pushing ahead with Committee in two weeks’ time, we will, of course, be open to discussions with colleagues across House as to possible next steps.

To summarise, this Bill is the wrong approach at the wrong time. It breaks international law, damaging our reputation; it gives Ministers unparalleled delegated powers; and it does not enjoy the support of the majority of businesses or Assembly Members in Northern Ireland itself. The way forward is a grown-up, level-headed negotiation, not the continued threat of unilateral action, which would result in retaliatory measures that our economy could do without at such a precarious time.

We have been presented with a window of opportunity in recent days. The gap between the UK and the EU is not vast. Let us seize that opportunity and do the deal that should have been done three long years ago: a deal with the people of Northern Ireland at its heart that enables the whole of the United Kingdom to move forward and to regain our reputation as a country that acts in good faith.

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Tabled by

[Baroness Chapman of Darlington]

At end insert “but that this House regrets that His Majesty’s Government have introduced legislation which is widely perceived to breach the United Kingdom’s obligations under international law; further regrets that they have proposed unparalleled delegated powers to be exercised by Ministers of the Crown, which could be used to undermine international law and which would be subject to little or no parliamentary scrutiny; calls attention to the serious concerns expressed by the Northern Ireland business community and the majority of members of the Northern Ireland Assembly over the contents of the Bill; notes that the Bill contradicts the policy platform endorsed by the electorate at the 2019 General Election; therefore calls on His Majesty's Government to prioritise a negotiated solution with the European Union, and to pursue existing legal options to resolve outstanding issues around the operation of the Protocol on Ireland/Northern Ireland; and further calls on His Majesty’s Government to consider and report to the House on whether pausing this legislation would be beneficial to the progress of those negotiations or other processes”.

Amendment not moved.

Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

Moved by

[Baroness Chapman of Darlington]

At end insert “but that this House regrets the absence of (1) a response by His Majesty’s Government to the 7th Report of the Delegated Powers and Regulatory Reform Committee, (2) the publication of an impact assessment outlining the likely consequences of the use of powers in this Bill on the Northern Ireland business community, (3) the publication of draft regulations which may be laid using the powers in this Bill, and (4) any formal report to Parliament on the status of negotiations with the European Union; and calls on His Majesty’s Government to provide this information before the House considers the Bill at Report Stage.”

[Baroness Chapman of Darlington (Lab)]

My Lords, I begin by taking this opportunity to extend the condolences of these Benches—and I am sure of other noble Lords across the House—to the family of Baroness May Blood, who passed away late last week. May was the first woman from Northern Ireland to be elevated to this House, reflecting her long record of defending and advancing the rights of women, children and working people. I hope that her family will find some small comfort in the warm tributes from all communities and political parties in Northern Ireland, which must be a reflection of the peace process she did so much to advance.

In moving my amendment to the Motion, I express thanks to colleagues across your Lordships’ House for the many hours of discussions that have taken place since Second Reading. The Second Reading debate highlighted near-unanimous opinion across the House that the Bill is neither wise in a political or diplomatic sense, nor constitutionally acceptable. I know that various colleagues have said at multiple points that they feel very strongly that the Bill should not have a Committee stage, and I sympathise greatly with those who hold that view. In an ideal world, the Government would have recognised this too by accepting the strength of feeling against the Bill and paused it. Perhaps that will still happen.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Baroness, Lady Altmann, has done such fantastic work on pensions and much more that I admire. However, inevitably, in this instance, I completely disagree with her and with the whole tenor of her remarks and the remarks made by many since then. When the noble Baroness, Lady Ritchie, was speaking, I thought that that was the kind of detail I would like to go through when scrutinising the Bill, and the kind of discussion I assumed we would be having here. In fact, the points of view have become much broader.

I will comment on a few things and will not drag this out for too long. The noble Baroness, Lady Altmann, said that the issues in this Bill go far deeper, and are more important and fundamental, than Brexit. I think that this is because so many in this House still do not really understand what Brexit was all about or the important and fundamental principles at its heart. They do not understand, even now, as we have heard, why millions of people voted for it. When the emphasis is constantly on trustworthiness and integrity, and restoring the trust of the UK Government internationally, maybe people ought to consider that that is always the external focus of this discussion—but there is an internal focus. Surely at this moment, of all times, when political parties on all sides have a very fragile relationship with the voting public—who, let us be honest, are pretty disillusioned—we need to consider how we can restore trustworthiness and integrity with UK voters here at home.

The key to this protocol Bill is that many people in the UK, when they voted in 2019 for that manifesto, wanted to see through the decision of 2016 to leave the European Union. The issue of Northern Ireland was one of the ways through which people were saying, “You can’t have Brexit, because look at the Northern Irish issue”. So people wanted to find a solution to it. I regret that they were overreassured by the Government when they were told, “Don’t worry, we’ve dealt with the protocol issue”—I always had concerns about the protocol issue. However, the intention was not to allow the issue of Northern Ireland to undermine the decision of 2016, because—lest we forget—that 2016 decision was nearly undermined. Some here say, “Our word is our oath” and so on, but they did not think that then; everybody else voted for something, but some here said that it did not make any difference and then ignored it.

It seems that, even now, so much of the discussion we have had is disingenuous. I ask opponents of the Government and the Government this: when people say that surely we should spend a bit more time and pause, how long do they want? Is it any wonder that nothing gets done in this country, if people think that this is a speedy process? Since 2019 we have had this protocol Bill and it is going wrong. Something needs to be done. The idea that we can pause or stop it and reconsider is not because anybody thinks we should not rush it through. Really, the message is: can the Government pause it, slow down, change their mind and agree with me? That is not the same as saying that we should pause and rethink; it is saying, “Pause and do what I tell you to do”.

The noble Baroness, Lady Altmann, suggested that the Bill creates a bullying approach to negotiations with the EU. I disagree. For me, what the debate so far has illustrated is the bullying approach within this House on this discussion. The noble Baroness, Lady Chapman of Darlington, says that the Bill is not going to get through this House unless it is changed beyond all recognition. Really? Do we not have votes? What does the noble Baroness mean when she says it is not getting through?

[Baroness Chapman of Darlington (Lab)]

Just to correct what the noble Baroness said about my contribution, I did not say that the Bill will not get through; I said that it will not get an easy ride, and I think the discussion today has rather borne that out.

[Baroness Fox of Buckley (Non-Afl)]

I wrote it down and I will check. It was said that if there were not substantial alterations to the Bill, this House will block it. I suggest that it might be a bit of an affront to democracy for people in this House to say that we should block the Bill. That is not our decision. When people here talk about how the Bill is an affront to democratic decision-making, I point out that threatening to block a Bill is an affront to democratic decision-making. When people say that they are worried that the Bill bypasses Parliament, and that they want to protect democratic norms and do not want the Government to become an elected dictatorship, they should note that blocking the Bill would imply bypassing Parliament, undermining democratic norms and turning this House into an unelected dictatorship.

Finally, why do I think the Bill is needed? This bit, I can go into. The problems of the operation of the protocol are well documented. Many people have greater experience of it than I do, but when we scrutinise the Bill and go through it, that is what we should talk about, and whether the Bill is fit for purpose to resolve some of those things. I agree with that. But the reason a Bill is needed is surely because the rule of law—and everybody here seems enthusiastic about the rule of law—will be applied differently to the people of Northern Ireland unless we do something about the way the protocol is being enacted. To be able to ensure that all citizens of the United Kingdom are treated equally under the law, we need to do something—it cannot be that all citizens are treated equally under the rule of law in the UK apart from a certain section of the UK who will be subject to decisions made by legislators that they have no control over.

As a civil libertarian, regardless of what you think of Brexit, if you believe in the rule of law, you cannot let things stand as they are. We need to urgently do something. While some have indicated that the real problem is Brexit, that ship has sailed. The British people spoke. Brexit is a reality and we have to live with that. We have to ensure that the people of Northern Ireland are not punished.

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Baroness Altmann’s amendment (to Baroness Chapman of Darlington’s amendment to the Motion) withdrawn.

[Baroness Chapman of Darlington (Lab)]

I start by thanking the Minister for the tone of his response to this debate. I did not anticipate that this stage of our consideration would take quite so long, but I make no apologies for enabling us to have this discussion. It has been very helpful, and I particularly value the opportunity to listen to those with whom I may not completely agree, but it is vital that we understand one another and why we have reached the positions that we have.

Much has been said about Article 16 and why we now—for want of a better word—favour that approach. Quite simply, it is clearly a legal mechanism. We have concerns about a unilateral Act by the UK Government applied to a dispute around something happening in Northern Ireland. That has never been a good way to proceed, and I do not think it is now.

When considering what to do about the Bill, the test I have applied has nothing to do with Brexit. Brexit has happened and the challenge now is to make it work—I think most people in this Chamber accept that. The test is whether pursuing this Bill and its approach, not knowing what would be in its place, assists us to find a negotiated settlement. The view of these Benches, today, is that it does not; it hinders our ability to reach a negotiated settlement. For that reason, we remain unconvinced, but we welcome—we have to welcome—the assurances the Minister gave. We anticipate receiving the information in a timely fashion but, today, I beg leave to withdraw the amendment in my name.

Baroness Chapman of Darlington’s amendment to the Motion withdrawn.

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Moved by

[Baroness Chapman of Darlington]

1: Clause 1, page 1, line 15, at end insert—
“(e) gives Ministers of the Crown power to commence its substantive provisions by regulations, subject to the condition in section 26(3A).”Member’s explanatory statement
This amendment makes clear that the ministerial power to commence Clauses 1-20 is subject to conditions outlined in a later amendment to Clause 26.

[Baroness Chapman of Darlington (Lab)]

I am grateful and will try not to repeat myself and go over the discussion we have just had. The issue with trying to amend this Bill is that our concerns are fundamental and political, rather than about wording or drafting. We object to the very approach the Government are taking, so it is quite difficult to think of how to amend and improve it to get to a place where we could find ourselves supporting it.

It is not universal, but we have heard that many noble Lords—I would venture to say a significant proportion of the House—fundamentally disagree with the approach that the Government have adopted. They believe that it breaches international law and harms us diplomatically, not just with the EU but beyond—globally. They think it is an abuse of ministerial power and see it as detrimental to our and the Government’s stated ambition for a negotiated settlement. We have attempted to find ways to amend the Bill to answer these concerns, but we have not managed to do that successfully. In this group, noble Lords will see Amendments 1, 6 and 70 in my name, and other amendments, which place conditions on the implementation of the Bill.

I have not heard anybody argue that the Northern Ireland protocol should not be improved, amended, or implemented differently. However you want to describe it, there clearly are problems. We take them very seriously, accept that they exist, and do not hold the position that nothing should change. We have listened incredibly carefully and repeatedly to the voices of businesses and elected politicians in Northern Ireland, and we agree that change is needed. However, as we have said previously—and will now be clear to the Minister—we want a negotiated outcome, not unilateral action.

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[Lord Ahmad of Wimbledon (Con)]

My apologies; I have covered Amendments 2 and 43, which are the ones in this group. Without repeating myself, the notion of a regular report to Parliament on negotiations would in our view not be appropriate. It has been the position that the Northern Ireland protocol and negotiations regarding it are, like any other treaty, a matter for the Government operating under the foreign affairs prerogative.

In addition, as I have already said, it would not be conducive to a successful outcome in negotiations to provide a running commentary, nor, ultimately, do I believe the House would expect that. However, as I have said, where I can, I will look to update your Lordships’ House accordingly and we will update Parliament on the status of negotiations at the appropriate times. Also, the usual mechanisms for the House to scrutinise our activity will remain open to all noble Lords. I therefore hope that, at this juncture, with the responses that I have given, the noble Baroness will be minded to withdraw her amendment.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister. I note again his rather charming tone, but I am afraid he cannot disguise with a charming tone what is becoming more clearly quite a weak position. Some of the things he said have made me more inclined to support the amendments that have been tabled in this group than I was before. I thank the noble Lord, Lord Purvis, and the noble Baronesses, Lady Ludford and Lady Ritchie, for their support for our amendments.

On the point made by the noble Lord, Lord Cormack, about having a briefing, on the one hand, yes, that does make sense, but I am nervous about entering into novel processes or getting into things that are outside of the Chamber. I think it is far preferable to have something that everybody is able to participate in, and that it is on the record. Noting what the Minister said about running commentaries, no one is asking for a running commentary. This is not like negotiating through the Article 50 process; this is quite straightforward and limited in scope, everybody knows what the issues are, and there are plenty of suggested solutions. This ought not to be beyond the wit of a Minister such as he to be able to make progress. I am very—

[Lord Ahmad of Wimbledon (Con)]

Does the noble Baroness accept the principle that the noble Baroness, Lady Hoey, asked me to clarify? The starting position, which is behind one of the reasons why we put the Bill forward, is that the Northern Ireland protocol is not working for all communities. There is a democratic deficit. We can talk processes, but the Government’s intention is to unlock that principle, and I hope the noble Baroness agrees on that.

[Baroness Chapman of Darlington (Lab)]

I have been very clear about that. I am surprised by the Minister’s intervention on that point, because in both speeches I have made, and in comments elsewhere, I have been very clear on that point. The truth is that these issues are only resolved through negotiation. The question really is about the Government’s approach. I have some sympathy because Ministers have inherited this approach. It is not something, perhaps, that they would have initiated themselves, and it is born of a different political landscape. However, it is something that they have to pursue now, and the Government are not being clear enough about their preferred solutions. If it were to be so, and those solutions were to be viable, they might just find that His Majesty’s Opposition would support the Government in those. We want to approach this with as much consensus as we can; we do not want to have arguments with the Government over Northern Ireland. We want to agree with the Government. We want to help find solutions. That is a much more powerful position for the Minister to be in, when he is negotiating with EU partners, surely.

We will not go to a vote today and I will withdraw the amendment. Unfortunately, this dogged determination that the Government have to stick with their approach come what may, because they do not want to be seen to back down, is I think not really helping matters in this House. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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What reliance have we without this Bill and its provisions that people would not revert to that? We must have legislation to copper-fasten some of these issues.

[Baroness Chapman of Darlington (Lab)]

I understand that my noble friend—if I can call him that—has been lied to repeatedly, but he was lied to by the Government. I gently suggest that his beef ought to be with the noble Lords opposite me, rather than my party. As he says, our position on Article 16—as you would expect, and as I attempted to explain earlier—has evolved in the context of what we are being presented with by the Government. This approach was not previously conceived of; now that it is, it puts Article 16 in a slightly different light. This is not especially complicated, but it is the view of the Labour Party.

[Lord Dodds of Duncairn (DUP)]

I am grateful to the noble Baroness, and I understand what she is saying, but the issues that were being discussed at the time by Her Majesty’s Government, as it then was, and which the Labour Party was responding to, are the same issues that are before us today, which are affecting the political process in Northern Ireland and leading to problems with the supply of goods from Great Britain. They are exactly the same but when the solution, “Let’s trigger Article 16; let’s go into negotiations”, was suggested, the Labour Party derided that as being toxic. The Labour Party gave support and succour to those who have allowed this position of instability and economic and constitutional harm to continue. A lot of lies have been told around the place, but it is no good, if I may say so, the noble Baroness putting all the blame on to the Government when everybody in Parliament and all political parties have to accept that the goalposts have been shifted, often by consensus, in a way that has done damage to the Belfast agreement, as amended by St Andrews, in a way that has undermined the trust of the people in Northern Ireland in the institutions.

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[Baroness Chapman of Darlington (Lab)]

Not any more.

[Lord Purvis of Tweed (LD)]

I hear he has changed. The former Paymaster-General, who is now the former Attorney-General, was citing the former Attorney-General Suella Braverman, who is now the Home Secretary—even I am struggling to keep up with what is going on. Nevertheless, the principle is clear that, if the then Attorney-General was happy to provide advice to the Times in her abortive leadership campaign, we humbly seek that Parliament be equally enlightened with an update on exactly what the Government’s position is.

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[Lord Stewart of Dirleton (Con)]

My Lords, I beg respectfully to differ from my noble friend. The situation is not the same, because in the intervening period between the announcements to which my noble friend refers, and today, these problems about implementation have arisen; so the situation is not the same, and we simply cannot go back to reference the text of the argument.

[Baroness Chapman of Darlington (Lab)]

I have noticed the emphasis that the Minister has placed twice now on the word “implementation”, and I want to understand precisely where he views the problems with the protocol to lie now, because the Bill that he is supporting deals with the problems in a far more fundamental way than just looking at implementation and practicalities.

[Lord Stewart of Dirleton (Con)]

I am referring to implementation in terms of the manner in which these problems have arisen: the problems that have led to the difficulties with which the House is currently grappling, such as the suspension of institutions and the democratic deficit. I think the noble Baroness wishes to speak.

[Baroness Chapman of Darlington (Lab)]

I was muttering to myself, actually. Those are not problems of implementation of the protocol, those are issues that underlie the protocol; I am just trying to understand exactly what the Government see as the problem, because unless we do that in a fuller way than he is perhaps leading towards, we will not have a clear idea of what the Government are recommending the solution to be.

Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

I will match his “Get rid of Clause 11” with “Get rid of them all”, because that is our position.

The Advocate-General said at Second Reading:

“the peril … was not inherent in the protocol’s provision.” —[Official Report, 11/10/22; col. 764.]

But he then said today that the “problem lies in the protocol”, which the Government themselves negotiated. So, we are back to the situation regarding the Government’s proposals, and it seems that the Government are going to rest on an assertion of necessity, with an assumption that it is not going to be tested. It surely is not welcome for us, in passing legislation, that the Government are effectively asking people to challenge it in the international courts—I can only imagine that it would be the ICJ.

The ICJ has stated in clear terms that invoking necessity on wrongfulness and not adhering to a treaty commitment cannot be a permanent solution. So I ask the Advocate-General, if he responds to any of the points that I am going to make, whether the Government agree with that. The ICJ has stated on a number of occasions that, even if invoking necessity was upheld, it is only temporary in order to remove the grave and imminent peril; it is not permanent, because it still means that that party is in breach of the treaty.

So if long-term, permanent changes are required to be made, that will require protocol changes and treaty changes, and the Government have not said that. They cannot invoke necessity if they believe that this is a permanent solution. The reason why I say that with confidence is—the Advocate-General, in schooling the noble Baroness, Lady Chapman, and me as non-lawyers, said we were “less wrong” on this—that, customarily in international law, we have to look at the record of the ICJ. I asked the Library of the House to provide me with information on when the ICJ has upheld parties who have invoked necessity. It has never been upheld, for the very good reason that it has to be limited, and “grave and immanent peril” on a cumulative basis is considered an exceptionally high bar. The Advocate-General must know that.

Of the two cases that the Advocate-General cited, the one involving Hungary and Slovakia—which was referred to by my noble friend—I found fascinating, as I mentioned before, when I read the judgment. The Advocate-General said that necessity

“was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube.”—[Official Report, 11/10/22; col. 765]

As I referred to before, the Government seem to be relying on one case regarding communist Hungary in 1989 which the ICJ threw out.

The second case mentioned, involving Canada and fisheries, could refer to two cases. In one, the ICJ was asked by Spain to adjudicate because Canada had seized a vessel, invoking necessity, but the ICJ said that it could not look into it because Canada had passed legislation at that time to have a reservation from the ICJ, so the case could not even be heard. The other case relating to the Grand Banks should worry the Minister, as it was about imposing licence fees. Canada invoked necessity; the US responded saying that it would pay the fees of the fishermen and then claim reimbursement from Canada; then Canada amended its laws, which brought in all other aspects, and it was resolved by Canada removing the licence fees. Now, if that is a precedent, it is a worrying one, because I can see that there will be consequences with the EU as a result of this legislation. There will be reciprocal action and the UK will pay for it.

So can the Minister confirm what the Library told me, that there has never been a successful invocation of necessity? Can he tell me if there has ever been a case where any party has invoked necessity for framework legislation? I could not find it, so presumably the Minister will be able to help me.

[Baroness Chapman of Darlington (Lab)]

My Lords, I rise very briefly; I do not see any point in repeating what other people have said. I added my name to the attempt by the noble Baroness, Lady McIntosh, to remove these clauses, and it has been observed by some that this is a wrecking move. I guess it is, in a way, if you do not agree with a Bill and feel unable to amend it in a way that would make it satisfactory, you attempt to remove clauses which then unravel it. We are not happy with this piece of legislation and we are seeking ways—some of them creative, others more blunt, as this one is—because we think the Government are taking the wrong approach.

The points about necessity have been made at length. I think the Minister needs to be as thorough as he can—although perhaps not as lengthy as he can, just very clear. I think we want clarity about exactly where the Government think they are on this. My suspicion is that the Government are backfilling their answers as they go along and that they did not really think about this, because this piece of legislation was not really thought about. Introducing it in the first place was a political act to give the impression that the Government were playing hardball in negotiations. It has kind of served its purpose, as some people have explained, over the months. Ministers are now having to justify where they have got themselves, and we are all intrigued about where it is going to go next.

I do not know how the Minister is going to respond to the concerns raised by the DUP, which are incredibly serious and ought to be considered with the utmost thoughtfulness. Especially in the absence of any draft regulations, I do not know how those concerns are going to be dealt with. It is all very unclear. This is not the way we should proceed with any issues, and especially not when it comes to Northern Ireland.

We have been around the houses on the issue of Article 16 rather a lot. It is just ridiculous to claim that Article 16 lacks the flexibility to be able to deal with the concerns that have been raised—obviously it does. The Minister’s explanation for why that is no longer the Government’s preferred route does not really add up. Again, I think that in their desire to have some legislation, they are having to make up reasons going backwards, and that is why they are now coming unstuck on the Floor of the House.

I listened carefully to the noble Baroness, Lady Hoey, and her concerns about the haulage industry. It is absolutely right that those concerns should be raised. I would be very happy to go to Ballymena and to meet Mr Jackson to listen to what he has to say, because I am sure that what he said in his letter to us is true. Of course we ought to be looking at ways to make sure that those issues are fixed, but I do not think that this is the right way to go about it. This is not about the EU always being right; I think the EU was wrong to link these issues with Horizon. They have absolutely nothing to do with each other. We should have made progress on both issues, but separately. So, we do not always take the EU’s side. That is just not true.

The principal concern we have is that unless we get at the very least the things we have asked for in our earlier amendments—specifically these draft regulations; that is really important—we are going to be looking at ways to make sure that the Bill does not proceed as smoothly as the Minister would like. This is not a tweaking issue; we just do not think the Government are going about this in the right way.

Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

I very much sense that I am in a majority in this Chamber—I can see very well where most people stand. However, I plead with your Lordships to consider in mitigation that the Government are dealing with imperfect alternatives, it is simply a question of how far you want to go to prioritise one over another, and that therefore some of the more extreme rhetoric that we had both at Second Reading and on the first day of Committee about dictatorships, this being the worst Bill ever, tyranny and so on may be a little misplaced.

[Baroness Chapman of Darlington (Lab)]

This has been a much more wide-ranging debate than I had anticipated. I guess we will see a lot of that in Committee, because, as many noble Lords observed, of the fundamental nature of our objection to what the Government are trying to do. However, this group of amendments is timely and makes an important point. Whether or not we agree that we should be supporting these to the letter is not, I think, what the noble Baronesses, Lady Suttie and Lady Ritchie, were trying to ask in tabling them. They were trying to make an important point. The issues which the noble Lord, Lord Frost, quite rightly reminds us are real on the ground in Northern Ireland absolutely are. However, this situation is now unique to Northern Ireland, and in every instance where there are a set of problems that relate to one specific geographical area—perhaps especially Northern Ireland, but it could be Wales or the north of England—the idea that you would try to resolve them unilaterally, without proper engagement with communities who live there, is unrealistic. Whatever happens with our deliberations on the Bill, with the negotiations or even if there are to be elections, and as a consequence of all that, we will not be able to move forward unless all the parties in Northern Ireland get together and agree a way to proceed. Any other way of going about this will not provide us with a durable solution, and that durability of an agreement is what we all want.

The Government were warned about the protocol at the time. It has been said, “But we were in a bit of a hurry because we weren’t allowed to leave without a deal; we just had to do something and this was better than nothing.” We have heard all that, and whatever we think about a Government making that kind of argument when they had an 80-seat majority and could pretty much at that point do whatever they wanted, we are where we are. However, these problems were completely foreseeable, and I regret that we have got to where we are.

Some people say that we need to expedite the Bill—I think that the noble Lord, Lord Frost, said this—and move on. That is fine, but to do what? What is it that the Government want to do instead? We do not know. Last week, the noble Lord, Lord Dodds, said he was concerned that he did not know. We have not seen draft regulations. We are being asked to agree to something without knowing what it is we will be left with at the end of the process; that is not reasonable for this Committee.

At the risk of making a wide-ranging and ponderous speech that deviates all over the place and does not address these amendments, let me say that saying, “Oh well, some people on your side said it was a bad idea at the time; therefore we must never do it”, is not a serious response to the challenge from the noble Lord, Lord Pannick, about this being the legal mechanism to which the UK Government agreed. We have not heard an adequate response from the Government on why they now view Article 16 as an inadequate provision that would not address the issues with the protocol that they say, and we agree, need to be resolved.

Also, on the idea that having this issue on the table will somehow make the EU more forthcoming in giving us what we want—although we lack clarity on that—I think we could be forgiven for not placing too much faith in the brilliance of the UK’s negotiating ability, given that it has brought us to precisely where we are today. The point that the noble Baronesses were making in tabling these amendments is a very important one, and one that we want to take seriously—especially in what the noble Lord, Lord Dodds, said about the cross-community nature of that involvement. We absolutely take that on board but it remains a point of principle, and one we should not lose, that we cannot do things to or act unilaterally in a way that has a huge impact on Northern Ireland without proper, full engagement with the communities there.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I trust that the Committee will forgive me if I, somewhat unfashionably, pay lip service to the Standing Orders of the House and actually speak to the amendments. In so doing, I want to try to live up to the comments from my noble friend Lord Cormack. As an admirer of Harold Macmillan and the Baldwinite tradition in the Conservative Party, I will try to deliver my comments in that quiet, calm, deliberative way of which Mr Macmillan was so fond.

I am grateful to the noble Lord, Lord Kerr of Kinlochard, for his kind words. I fear that, from now on, I will only disappoint him. Without going over the history, I say that he is well aware of what my views were three years ago but, as I have said many times, I am less interested in how we got here and more interested in how we can move on and get out of here into a more satisfactory state of affairs.

Before I turn directly to the amendments, as this is my first opportunity to speak from the Front Bench since the passing of May Blood, I want to reiterate a number of the comments made about her last week. She was an absolutely fearless and tireless champion of the rights of everybody in Northern Ireland. Her record in bringing people together, particularly through her work on integrated education, was absolutely inspirational.

I have just been sent a text. Some people will have come across a chap called Bob Mauro, who was the director of Irish Studies at Boston College; I see the noble Lord, Lord Hain, nodding. Sadly, I have just been informed that he has passed away. He was a man with whom those of us who have been involved in the affairs of Northern Ireland over a number of years had a great many dealings, so our sympathies go to his family and colleagues as well.

I emphasise a couple of points on which I strongly agree with the noble Baronesses, Lady Suttie and Lady Ritchie of Downpatrick, and which underline the frustrations that we all share in this House over the lack of devolved government since February. A number of us have sadly been through this experience on too many occasions in recent years, and Members opposite went through it from 2002 to 2007. It is not a satisfactory state of affairs. We are firmly committed to the Belfast agreement, to its institutions and to getting devolved government back up and running as soon as possible. My right honourable friend the Secretary of State will have this at the top of his agenda when he meets the political parties in Northern Ireland over the coming days.

Amendments 4 and 5, in the names of the noble Baronesses, would essentially, by requiring the prior approval of the Northern Ireland Assembly, undermine the ability to exclude elements of the protocol and therefore undermine the entire operation of the Bill. In application, these amendments, if passed, would be wrecking amendments. We are very committed to restoring a fully functioning Executive and Assembly, but I remind the Committee that it is because of the operation of the protocol in its current form that the Northern Ireland Assembly has not sat since February. Sadly, we cannot be sure how long that state of affairs will persist. Therefore, these amendments risk setting a test which, in the current circumstances, could not be met due to the lack of an Assembly. The disapplication of elements of the protocol is also an excepted matter of foreign affairs reserved for the UK Government. Although we of course engage with parties in Northern Ireland, it would be improper, effectively, to transfer a new competence to a devolved Assembly in this way.

I assure the noble Lord, Lord Purvis of Tweed, that we are committed to the Sewel convention and that we are pursuing options for obtaining legislative consent to the Bill from devolved Administrations. The Permanent Under-Secretary at the Foreign, Commonwealth and Development Office wrote to the head of the Northern Ireland Civil Service regarding legislative consent and it remains our hope that we can reach a positive resolution on this point as soon as the institutions are restored. Regarding conversations with MLAs and political parties in Northern Ireland, I assure the noble Lord that these continue all the time, involving the Secretary of State, the Minister of State and me. We are in Northern Ireland, talking to political parties, all the time. It will not surprise the noble Lord that these issues surface from time to time. Without going into details of individual conversations, we continue to engage.

The noble Baroness, Lady Suttie, referred to the letter sent earlier this year to the then Prime Minister, setting out opposition to the protocol Bill. This was raised by a number of noble Lords. Like the noble Lord, Lord Dodds of Duncairn, I am somewhat surprised, as one who spent many years as an adviser in the Northern Ireland Office and was told that particular arrangements for Northern Ireland were completely unsuitable because they did not have the support of a minority, now to be told that somehow majority rule, after a 50-year absence, ought to make a return. As a number of noble Lords have pointed out, cross-community consent is at the heart of the Belfast agreement. Following the May election, the largest single designation in the Assembly remains unionist. Under the 1998 rules, we would still be looking at a unionist First Minister. That remains the largest single designation and it is worth pointing out again that not a single unionist Member of that largest designation in the Assembly supports the protocol in its current form. In those circumstances, it is fair to point out that we have a problem.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I shall speak also to Clauses 5 and 6 standing part. There is consistency in some of the arguments to some extent, so this will not necessarily need to be as long.

As the DPRRC indicated, the Government have not yet formed their policy on the precise elements that they are seeking powers for. The DPRRC indicated and highlighted—I agree with it—that we should not legislate when government has not yet formulated its policy. Let us be clear that the Government’s memorandum states that the powers that they seek under these clauses could make criminal offences by negative instrument. Can the Minister confirm that in his response? We should not make new criminal offences by negative instrument.

The Government also state that they need these powers but should not present them through primary legislation. This includes certain areas of new powers for HMRC and other agencies. In primary legislation—in the Trade Act and elsewhere—proper procedures for dating sharing on customs arrangements within the UK have been brought forward. The Government felt that primary legislation was necessary for that, but, under this Bill, they say that they do not believe that primary legislation is the correct approach for it. This is simply not consistent.

I am interested to know what the Government consider to be the interactions with the Taxation (Cross-border Trade) Act 2018. The regulation-making powers under this legislation, providing more powers for HMRC legislative competence, were not provided for Northern Ireland under that Act. I am not sure what has changed. The interactions between Sections 30A, 30B and 30C of that Act are not clear.

Secondly, we can perhaps explore what the Government seek to do on the use of delegated powers to make new law in an area where we have made an international agreement—as we heard, they have not provided illustration for it. The Government’s response to the European Union’s proposals in October 2021 has not been entirely clear either. I am not sure whether they supported its proposals for having just one certificate per consignment of food products, rather than per product—presumably, that would have a major impact on the HMRC statistics and declarations that the Minister referred to. The European Union indicated that that would remove 80% of checks on products of animal origin, or new procedures for prepared meats, such as sausages, import of which into the EU is generally prohibited. So I am not sure what impact assessment was carried out for the EU proposals, had they been fully adopted.

As the noble Lord, Lord Dodds, said, the Ministers took credit for the Trader Support Service, but they now seem to suggest that it has failed. Why? What has been the impact of the Trader Support Service? As I understand, it raises all the documentation and it states that it has been successful. It is on a lucrative contract from Fujitsu Services Ltd, which is at the centre of the Post Office scandal, so what is the Minister’s view about how Fujitsu has carried out its contract? Fundamentally, legislating first before introducing proposals should not be done, and trying to say that legislating for areas where agreement can be made will not be sustainable elsewhere.

I close by thinking that there must be a prize somewhere for government irony. As we know, the delegated powers memorandum on Clause 6 states that it is a breach of an “international obligation”. Paragraph 56 says that

“regulatory procedures … can be updated to ensure compliance with, or give effect to, any international obligation or arrangement to which the United Kingdom is a party.”

That is quite welcome. However, it is a shame that these powers are removing those obligations and are providing such unprecedented breadth to the regulation-making powers for Ministers. The case has not been made; therefore I beg to move.

[Baroness Chapman of Darlington (Lab)]

I will speak briefly to Amendments 10 and 11, which we have tabled because, like the noble Lord, Lord Purvis, we too wanted to highlight concerns about these issues. As I am sure noble Lords can see, in the current Bill, delegated powers are to be used when Ministers consider it “appropriate”; we would change this to “necessary”. Prior to tabling these amendments, we have signalled our general concerns about delegated powers fairly consistently throughout the process of leaving the EU, since the EU withdrawal Bill in 2018. It is disappointing Ministers’ fondness for this technique seems to have grown; we now see it frequently in things that are quite wide-ranging. I was recently involved with the Schools Bill, which was riddled with these powers because, frankly, the Government did not know what they wanted to do on a wide policy area, so inserted a bunch of Henry VIII powers to give themselves the flexibility to backfill their argument later and decide what they wanted to do once the Bill had passed. Obviously, there was a huge row about that and the Schools Bill is no more, so we can only hope that lessons were learned.

We have been raising concerns again and again about how the Government are just relying on delegated powers, but for some reason the scope of the powers in EU-related Bills seems incredibly wide and we are starting to tease out, with the Minister, some of their intentions. However, an intention stated at the Dispatch Box—or something indicated in other government documents—is not sufficient when we are talking about these sorts of issues. What we really want is clarity and the ability to scrutinise and have those discussions on the Floor of this House, but the way the Government are going about this denies us this opportunity. One of our main concerns is the Government deciding to use skeleton Bills in the way they are.

These are quite general concerns. As we have heard, there are much bigger concerns about the Bill and we have covered some in our debates today and last week. We fully understand the concerns raised about Clauses 5 and 6, which enable the creation of new customs arrangements without primary legislation. The noble Lord, Lord Purvis, did a very effective job of going into those in some detail, which I do not feel I need to repeat. This is quite a precedent to set and we feel deeply uncomfortable about delegating these kinds of powers to the Treasury and its agencies. In the past—I mentioned the Schools Bill, but there have been other examples—the Government have backed off, removed some of these powers from legislation and changed tack by putting in place genuine checks on their use. In all honesty, I do not think that particularly helps us with this Bill because, as many have said, a whole face of make-up could be applied to this Bill but it really would not help.

That said, it is important that we, as a House, put down a marker and make our view known to the Government on this issue of delegated powers, because this is quite an extreme example in the Bill. Perhaps when some more stability is available to Ministers, this might be something we start to see less of, because the government agenda would become clearer. I must say—noble Lords can hold me to this—that should my party win power in the coming months or years, I hope that this is not an approach that we would seek to take. I am very well aware that this is on the record and will be quoted back to me. Such is our concern about the overuse of these powers that I am very happy to be held to my words.

[Lord Ahmad of Wimbledon (Con)]

I thank the noble Lord and the noble Baroness. On that final point from the noble Baroness, Lady Chapman, I am sure it will not only be held up for scrutiny but highlighted in several colours. Of course, we look forward to robust debates, and I am sure I speak for everyone in your Lordships’ House in saying this.

First and foremost, I will not go over what we have already discussed. I have heard noble Lords very clearly. Addressing the noble Lord, Lord Purvis, specifically, I am aware of the details of what the DPRRC report argues, and therefore I assure noble Lords of my good offices in seeking to have the report published on the Government’s response to the issues raised by not just that committee but the Constitution Committee.

In response to the amendments in front of us, the DPRRC report argues that Clause 5(1) contains an inappropriate delegation of power—on the basis that the skeleton construction is not justified by the circumstances and that it relates to matters of international law—and recommends it be removed. While noble Lords will have different perspectives, I have already discussed why the Government feel that there is an urgency in tabling this Bill, as well as the importance of flexibility in our approach in discussions and negotiations elsewhere, particularly with our colleagues and friends in the EU.

In relation to future policy direction, the Bill and the accompanying delegated powers memorandum provide a description of the types of circumstances under which regulations laid under Clause 5(1) may be made. This also includes necessary processes on UK or non-EU destined goods, the application of pre or post-movement requirements for those movements and the ability to undertake any checks or controls necessary to safeguard animal, plant and human health. These processes and their requirements may also be subject to change over time—due to changing risks, technologies and business practices—and it would not be proportionate to table new primary legislation every time this occurred. I have already referred to the details that would be required in this respect.

The noble Lord, Lord Purvis, referred to a couple of issues about criminal offences within the instruments and the Taxation (Cross-border Trade) Act. I have asked for responses to that, so I will write to the noble Lord specifically on those two points and will share it with your Lordships.

I now turn to Amendments 10 and 11 in the name of the noble Baroness, Lady Chapman of Darlington. These amendments would restrict the use of certain powers in the Bill to make provision only on that which “is necessary”, rather than provision which “the Minister considers appropriate”.

I say to the noble Baroness, Lady Chapman, that, as someone said to me over the weekend, after 10 years on the Front Bench, this is not an argument that I am dealing with for the first time. I acknowledge that there have been various Bills where this language has come in. I just mention to the noble Lord, Lord Purvis, that I even recall that, in 2017, when I was taking through the Sanctions and Anti-Money Laundering Bill, we had similar discussions on the use of these words.

The Government’s position is that “necessary” is a higher bar to meet and, while it would not prevent regulations from making provision for one option where alternatives are available, this amendment would, in our view, unnecessarily reduce the policy discretion for the exercise of these powers. This would provide additional uncertainty to businesses and consumers. In this clause, this would potentially limit the ability to design a green lane that aims—

[Baroness Chapman of Darlington (Lab)]

I think I may be a bit premature; I was going to ask the Minister for an example, but I have a feeling that he was about to give one.

[Lord Ahmad of Wimbledon (Con)]

The example that I was just detailing is that, in this clause, this would potentially limit the ability to design a green lane that aims to preserve the unity of the UK internal market and minimises risks to the EU’s internal market. It may also prevent the Government responding to issues facing Northern Ireland in a flexible way which, in turn, will have a negative impact on Northern Irish businesses and individuals. The issue was well-trodden ground in important legislation in recent years, particularly the EU withdrawal Act in 2018 and the withdrawal agreement Act, where your Lordships’ House accepted that “appropriate” is in fact appropriate. I therefore hope that the noble Baroness will feel able not to press her amendments on that basis.

[Baroness Chapman of Darlington (Lab)]

The example was good, but I am not sure that it meets the question in my amendment. I would have thought that a Minister would be able to make the regulation as he referred to in his example using the wording suggested in my amendment.

[Lord Ahmad of Wimbledon (Con)]

As I have alluded to, it is a question of where that bar is set. The Government are, in this instance, looking for that extra level of flexibility for the Minister concerned to be able to make that appropriate act. I accept what the noble Baroness is saying regarding her amendment. Certainly, I am sure that there will be some practical examples and insights that we will exchange on what can be met by those particular tests.

Clause 5 ensures that a Minister of the Crown also has the power to make regulations in relation to the movement of goods to which Clause 4 relates—[Interruption.]—my apologies: that is my phone. This is what happens when you have a 10 year-old and an eight year-old at home—they may be providing me with an answer to the question from the noble Baroness, Lady Chapman.

Specifically, the clause provides for the creation of secondary legislation, which will enable Ministers to define how the green and red lanes work in practice. Regulations made under this power may, in particular, provide for the application of any checks and controls before or after a movement of goods on UK or non-EU destined goods moving into Northern Ireland in order to ensure that appropriate processes are in place to manage, for example, biosecurity risks. Such powers may also be used to ensure that goods that are heading to the EU comply with relevant regulatory processes, such as sanitary and phytosanitary controls. Much of this is operationally focused or deals with the processes to be applied by the relevant government departments. We believe that this clause is essential to enable the appropriate Minister to have the flexibility to deliver the UK’s proposals for this new regime for the movement of goods.

I turn briefly to Clause 6. Again, the noble Baroness, Lady Chapman, alluded to the issue of the Treasury and HMRC having the power to make regulations in relation to the movement of goods for customs matters. Alongside Clause 5, this will enable the delivery of new green-lane arrangements, which remove unnecessary costs and paperwork for businesses trading within the UK. We heard in the previous debate from the noble Lord, Lord Dodds, on challenges being faced by businesses.

Specifically, the clause provides for the creation of secondary legislation to administer the green lane through appropriate checks, controls and administrative processes for goods that would otherwise be subject to EU customs rules. It is the Government’s view that this clause is absolutely essential to enable a Minister of the Crown to have the flexibility to deliver the UK’s proposals for the green and red lane arrangements. Taking power to provide for the regime is required and the precise detail of the regime will be properly subject to consultation with stakeholders. I therefore recommend that this clause stand part of the Bill.

Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

Moved by

[Baroness Chapman of Darlington]

12: Clause 9, page 5, line 26, at beginning insert “Subject to the conditions in subsections (3) and (4),”
Member’s explanatory statement
This amendment makes clear that the power in Clause 9(1) is subject to conditions contained in a later amendment to that Clause.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

I shall speak very briefly because this amendment gives rise to many of the same debates that we have already had this evening. We have tabled Amendments 12 and 15, which would prevent

“the delegated powers in Clause 9 from being used unless a draft of the instrument, a report of a relevant consultation exercise, and an appropriate economic impact assessment have been laid before Parliament.”

The Government say that Clause 9 is needed because the policy is not yet developed. We are worried about this, so these amendments would act as a safeguard by preventing the power being used unless the conditions in the amendment are met. We think Northern Ireland businesses would be better served if our amendment were to be accepted, notwithstanding all our previous comments on our approach to the Bill more generally. Businesses were telling us—I am sure other noble Lords have heard the same—that they want and need stability, predictability and security. I do not think this will be delivered by the Bill; it comes only through negotiation. We must amend the Bill; it is what we are here to do this evening. We have made this suggestion because we think it would be particularly helpful to the business community to have more of a say and to get more clarity from the Government on what they might intend to do.

[Baroness Ludford (LD)]

My Lords, I support these two amendments, but they are not even contesting the making of regulations or asking for substance or content; they just require a process for making the regulations. As my noble friend Lord Purvis said in the debate on the previous group, there is nothing in the Bill on consultation. Assuming that Clause 9 remains—which we hope it does not—this amendment is trying to put some meat on the bones that should probably already exist. The Government said in the delegated powers memorandum that the regulations under this clause would

“need to reflect the results of consultation with businesses”.

The problem is that this clause provides for no such consultation. Our Delegated Powers Committee commented:

“This is the frankest admission by the Government that policy is so embryonic that it has not yet been consulted on.”


The committee’s comment on Clause 5 is also pertinent and relevant:

“Ministers are said to need flexibility, but the reality is that policy has not yet been formulated … the Government could have formulated their policy, consulted on it, refined it (if necessary) and then brought forward legislation with the details filled in. This would have facilitated meaningful parliamentary debate.”


Yet, the Delegated Powers Committee went on,

“Parliament is being presented with a major Bill on the subject. Legislation has preceded policy development rather than vice versa”.

I think I may be repeating what my noble friend has already quoted.

Amendment 15 therefore contains reasonable and sensible conditions for a draft of any proposed SI—for a report on consultations with business and an economic assessment to be laid. I suggest that the Government will, or ought to, have some difficulty in finding arguments to resist these amendments.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Chapman of Darlington, for Amendments 12 and 15 in her name.

Since the Bill was introduced, the Government have engaged extensively with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. In addition to routine engagement, as I have mentioned, during the summer, the Government held over 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators to inform the details of how the dual regulatory and trade boundary models should work in practice. In response to the noble Baroness, Lady Ritchie of Downpatrick, I refer to some of my own engagement, not just with the dairy and agri-food sectors, but with business representative groups in Northern Ireland. That has been a similar experience to that of my right honourable friends, the Minister of State and the Secretary of State. We are very committed to this and we are reflecting on the huge wealth of feedback that we have received as we continue to develop the details of the underlying regime.

The clause is designed to provide stakeholders in Northern Ireland with certainty that the Government will deliver the solutions we have outlined. The House will have the opportunity to scrutinise regulations in the usual fashion, and the Government will provide all the usual accompanying material under normal parliamentary procedures. The full details of the new regime will be set out in, and alongside, regulations made under the Bill, including economic impacts where appropriate, so that Parliament may make informed scrutiny of the new regime which is being put in place.

The regulations themselves will be the product of engagement with businesses to ensure the implementation of the new regime is as smooth and operable as possible. Stakeholder views are of course important, but it is ultimately for Ministers to exercise these powers, and for Parliament to scrutinise and hold them accountable in the usual way. An additional requirement for the Government to lay an assessment and a report when it makes regulations using this power is therefore, in our view, unnecessary, and in that spirit, I urge the noble Baroness to withdraw the amendment.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister and to others who have contributed to the discussion on this group of amendments. I just gently say to the Minister that we do appreciate and respect the fact that a great deal of engagement is being undertaken by the Government and by others; we are all talking to businesses, and so we should. But that is not the same as a proper consultation process in line with Cabinet Office guidelines, which is what we really need here, because at some stage there will be decisions made by the Government about what they want to do, and it would be really unfortunate if those decisions were implemented without sufficient consultation. That is the point we are trying to get across to the Government at this stage, but for now I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Pannick (CB)]

If the noble Lord’s position is that the EU is acting in bad faith, the United Kingdom, if it takes that view, is perfectly entitled to use the procedures set out in the protocol of independent arbitration—if it does not like that, it can go to the Court of Justice—to resolve any dispute. What the United Kingdom cannot do is ignore the dispute resolution mechanisms that are set out in the protocol and simply make an assertion that it thinks there is no good faith. Indeed, I had not understood it to be the position of the Government at the moment that there was no good faith. They are about to enter into negotiations.

[Baroness Chapman of Darlington (Lab)]

My Lords, it is certainly my understanding that the negotiations are being undertaken in good faith on both sides, and it would be useful to have that confirmed by Ministers when they reply.

There are a few issues here, but I say first that it is very helpful to have the noble Lord, Lord Dodds, make his contribution on his concerns about chapter 10 of the protocol, because sometimes our discussions can get a little philosophical—that may be the wrong word—and it is very helpful to have them grounded in reality. His view is that he does not want a scheme that is any different to that which exists in the rest of the United Kingdom. That is understood and we know why he thinks that. We may not feel that it is realistic in the circumstances that we find ourselves in after Brexit, but there are most certainly good prospects to negotiate, come to agreement and perhaps find exemptions that would give him close enough to what he needs to be able to move us forward and give clarity and certainty to businesses in Northern Ireland, which is surely what we all want to see.

I am worried about the potential for retaliatory measures should Clause 12 of the Bill come into force. We know that this is something the EU is deeply concerned about. That does not mean that we cannot negotiate a much better position for ourselves, but there is the prospect of some form of retaliatory measure being forthcoming from the EU. I would like to know from the Minister what assessment has been made of the potential for this—although I am not quite sure which Minister to address my gaze to on this.

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

It should be to me.

[Baroness Chapman of Darlington (Lab)]

That is helpful, thank you. What kind of measures do we anticipate, and what would be their impact? It is all very well to play hardball and say, “This is what we will do”, but that will always have a consequence and we need to understand what that might be. Not to do so would be deeply irresponsible.

Then there is the issue of powers. A lot has been said and I agree with pretty much all of it. Clause 12(3), which the noble and learned Lord, Lord Judge, referred to, says

“may, by regulations, make any provision which the Minister considers appropriate in connection with any provision of the … Protocol to which this section relates.”

That is incredibly broad and we ask whether it is necessary for it to be so broad. If I have understood the amendment tabled by the noble Lord, Lord Leigh, correctly, he seeks to put some sort of frame around it. We are all very concerned about where those powers might lead us.

The problem is that we have to look at this in conjunction with the Subsidy Control Act, which is itself very broad, has powers for Ministers and lacks clarity about what the UK Government intend for Great Britain’s subsidy regime. We are compounding one unknown with another. That is quite a lot for noble Lords to swallow. We have been asked to show a lot of faith in Ministers when really what we need, and what the noble Lord, Lord Dodds, has signalled he would like too, is some more information and draft regulations. We want to know where we are going with all this so that we can assess whether it will be the right approach to benefit businesses in Northern Ireland and answer the challenge made by the DUP. At the moment, I can see a set of circumstances in which it would not.

It is right that these issues are resolvable only by negotiation; we all know that. We have to start accepting that and asking ourselves whether the Bill’s approach will assist those negotiations in reaching a positive outcome. My noble friend Lady Ritchie said that this is something where we want the voice of the Northern Ireland Assembly. We want to know what MLAs from all communities have to say. It really matters that we hear from all sides, because this is about solving problems, not making things worse. The Bill really does risk making things worse.

The only other thing I would add is that there is now a different subsidy control regime in Great Britain, but where are this interventionist Conservative Government, who are making use of their new powers up and down the country? Speaking as somebody from the north-east of England, we see lots of tinkering and plenty of things that we could have done whether we were in or outside the EU. I do not particularly see that there will be the massive difference that warrants the kind of tension this is leading to. I suggest that the amendments tabled by the noble Lord, Lord Purvis, and my own are designed to be helpful. These are issues that we will not make progress on through this Bill.

[Lord Leigh of Hurley (Con)]

I agree with the noble Baroness that I was trying to create a framework, in a very amateurish way that is way above my normal pay grade. I take her point that she is trying to do the same thing with her Amendment 18, which is sensible, but does she think removing Clause 12 would weaken or strengthen our hand in the negotiations? If a vote on the clause standing part was to take place, what would be her plans for those people planning EIS investments in the future?

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

That is a very helpful question. I do not think the situation is about being with or without Clause 12. The Bill places the future of the regime in Northern Ireland in some doubt because nobody is clear about what is to be negotiated, what the outcome will be and what the rules will be. Even with Clause 12 in the Bill, we do not know the answer to those questions. The negotiations need to pick up pace, and they need political leadership as well as technical negotiations at official level. Experience tells us that you need that leadership—that buy-in and that clout—from the Prime Minister down. That is how you get resolution, and that is the approach I would take. I do not think the Bill, or this clause, are the make-or-break questions to resolve this issue.

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

I believe that my noble friend is talking about the ministerial powers that exist here. We have had this debate before as well. We believe that a broader nature is necessary, and that is why “appropriate” is being used: to allow the maximum level of flexibility that the Government believe will be required. Of course, I accept there are differing opinions and views on this. Indeed, in conversations I have had, including with the noble Lord, Lord Pannick, to which I have alluded previously, there have been various Bills that have gone through your Lordships’ House where this discussion about “appropriate” and “necessary” has taken place, particularly with regard to the powers of Ministers and how those might be exercised. Of course, I note the point my noble friend is making.

The issue raised by the noble Lord, Lord Purvis, on TCA structures and state aid continues. TCA structures allow disputes to be raised, and the withdrawal agreement also provides structures for consultations as well. That very much remains the case. The noble Lord, Lord Purvis, also asked why the Government concluded that they had to remove state aid requirements from the protocol. The Government have been clear about the problems caused in practice by Article 10 of the protocol. This was first raised in our Command Paper in July 2021.

The noble Baroness, Lady Crawley, talked about a trigger point. Partly, this has been a culmination of the evidence and the practical experience, as was articulated by my noble friend Lord Dodds. The current system of operating two subsidy control systems within one country has created complexity and uncertainty, which is impacting policy across the UK. Irrespective of how noble Lords are approaching this Bill, either in support of or against what the Government are proposing, we all recognise that what needs to be resolved is the situation in Northern Ireland. Article 10 has also placed considerable administrative and legal burdens on businesses; for example, facing detailed questions about their operations from authorities to establish whether subsidies could be in scope of the protocol itself.

I have already referred to the powers. Noble Lords have been very articulate in making their concerns about the powers known but, again, I have underlined the importance of the necessity of these powers. To demonstrate in detail, in the previous day in Committee, we alluded to what this would require if everything was put into primary legislation.

Turning to Amendments 17 and 19, tabled by my noble friend Lord Leigh of Hurley, I am grateful for my noble friend’s contribution and for his reaching out to officials before this debate. My noble friend has powerfully illustrated the problems arising from Article 10 of the protocol and how they can arise in unexpected places across the United Kingdom and our economy. Article 10 can lead to uncertainty and delays in the delivery of subsidy schemes in Northern Ireland in comparison with Great Britain. They are exactly the sorts of problems that Clause 12 is seeking and intending to resolve, including to unleash further investment, to which my noble friend alluded, across the whole of the United Kingdom. The concurrent operation of two subsidy control regimes is a fundamental challenge for public authorities and beneficiaries across the UK. The solution put forward in the Bill truly addresses the challenges the Government believe exist, and will provide certainty across the UK.

[Baroness Chapman of Darlington (Lab)]

Can I take from what the Minister said that the intention is that there would be one UK-wide scheme? If that is the case, that surely could go in the Bill.

[Lord Ahmad of Wimbledon (Con)]

I acknowledge what the noble Baroness has said. As I said, what we are looking to do in the basis of the Bill is to provide clarity and simplification in the current procedures.

[Baroness Chapman of Darlington (Lab)]

I do not think we are.

[Lord Ahmad of Wimbledon (Con)]

No, I think we are. That is exactly what we are seeking to do. It is clear that the noble Baroness remains unconvinced.

Turning back to the amendments themselves—

Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, many of us are worried about the powers to regulate, but it is not just about democracy. I have time for the concerns expressed in the email that was just read out—of course I do. I just point out, however, that the situation that we are in that is so objectionable to the noble Lord’s colleague in Northern Ireland came about because of the actions, decisions and agreements made by their elected Government. Sometimes that is how it works, too. The problem that I have with the powers is not just the issues that we have heard expressed extremely well by those far more qualified to do so than I am; it is that we do not know what Ministers intend to do with those powers. There is a circumstance in which the gentleman who wrote the email might find himself doubly aggrieved, because we do not yet know what it is that Ministers will do to resolve the problem that the noble Lord has, or whether the actions of the Government in the future would actually be ones that would satisfy that grievance. That is where I am coming from. It is because there is a lack of clarity, and uncertainty; there is an option to negotiate that is not being taken. I am now repeating myself, and using yet another set of clauses to make exactly the same general points.

I am not going to repeat what has already been said, but I want to make a wider point about the approach to law-making that the Government are getting increasingly fond of. We see some extreme examples of it in this Bill. The noble Lord, Lord Purvis, when he introduced this set of amendments, said that he could not actually be clear about how Clause 14 would be used by the Government, because, in the words of the DPRRC, the memorandum has so little to say about this broadly worded power. Nothing is said about the sort of provision that could be made under it.

Clause 14 tells us—in case we did not know—that overriding parts of the protocol is going to require a whole host of consequential changes elsewhere, and that is what I will talk about this time when we are talking about powers. We have been here before. Noble Lords will remember that as we approached the end of the transition period, departments rushed to make various changes to the operability of retained EU law. In a worryingly high number of cases during that process, as I remember, the Government made mistakes and further, correcting regulations then needed to be brought forward. This exercise is no simpler than that. If anything—because this Bill is highly contentious and because of the wider context—it is even more complicated than that previous exercise.

We need to be mindful of how these things are going to work in practice. If the Government get their Bill, how is this really going to work? Have they actually considered this? Given the difficulties that the Government had with revoking things such as the duty to post reports to the European Commission, how confident can we really be that an as yet unclear policy direction can even be delivered in a way that is in any sense timely and accurate? That really will matter to the correspondent of the noble Lord opposite. What I am saying is, putting aside my dislike for the Bill, this is not a good way for us to be making law or for the Government to put their policy into practice.

Just imagine that this Clause 14 is available to Ministers —and I hope this does not happen, but suppose it did—can we have some kind of indication from the Minister of how long this process is going to take? How many SIs does he think are going to be needed; how will the Government sequence this workload? The lack of planning around some of this in previous endeavours has really caused problems, and we do not want to be in that place again. I still think this is a bad Bill in principle, but I am afraid that its implementation is likely to render it completely unworkable in practice.

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

My Lords, I thank all noble Lords who have participated in this debate, which was short because, as the noble Lord, Lord Purvis of Tweed, recognised in introducing it, much of the material has been covered before. Noble Lords will, I hope, forgive me if, brevitatis causa, I do not go over all the arguments already deployed and will accept, that, because they have not been deployed, we understand where they apply in the context of this clause, and will bear them in mind when considering our responses.

Amendment 22, in the name of the noble Lord, Lord Purvis, removes the power in Clause 14(4). Clause 14 prevents those necessarily more broad and conceptual provisions from being relied upon, in the different legal context that will prevail under the Bill, to undermine the legal regime that the Government are putting in place for traders. The power in Clause 14(4) is important because it will allow Ministers to ensure, subject to the appropriate parliamentary scrutiny, that the exclusions made under the Bill are coherent. It may, for example, be necessary to make alternative provision where any other provision of the withdrawal agreement or protocol so far as it applies or relates to those exclusions is excluded. It could also be used to provide clarity as to how the horizontal exclusions referred to in Clause 14(1) interact with other exclusions in domestic law.

The noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, sought examples of how it would work out in practice. I ask the Committee to bear in mind that the position in which we are at present is one of anticipation of what will be required in relation to a dynamic situation.

The powers to make secondary legislation allow us to flesh out the precise technical or administrative details of the new regime. The powers also need to be broad to ensure that the Bill can address issues that will arise in future as EU rules continue to change. The Government submit that the powers are both necessary for the legislation to be operable and have been appropriately limited prior to their implementation. As I said earlier, I do hear the criticism in relation to breadth offered by various noble Lords in the debate today and at other stages.

The noble Lord, Lord Browne of Belmont, made points reminding the Committee of the context in which the Government bring forward this legislation, and I am grateful to him for his qualified support. The points he made were no less powerful for having been made before, in the course of various debates we have had at earlier stages.

The noble Baroness, Lady Chapman of Darlington, from the Opposition Front Bench, refers to the way in which more and more laws appear to be being cast in this fashion, with more and more use of delegated powers. I invite the Committee to consider that, in the case of this Bill, the Government are seeking to legislate in such a vital area, as the noble Lord, Lord Browne of Belmont, reminds us.

The noble Baroness speaking from the Opposition Front Bench posed a number of technical questions. The questions she posed perhaps require an answer in more detail than I am able to give from the Dispatch Box, and perhaps than would be desirable to the whole Committee—but, if she will grant me forbearance, I will write to her.

I have not yet addressed the question of Clause 14 standing part of the Bill. It will support the coherent functioning of the Bill. It is important to ensure clarity in relation to the interaction between excluded provision and any wider provisions in the protocol or withdrawal agreement to which such provision relates. Subsection (1) gives effect to this by confirming that any provision of the protocol or withdrawal agreement is excluded provision to the extent that it would apply in relation to any other excluded provision. Subsections (2) and (3) set out further the kind of ancillary provision that may be excluded.

I discussed subsection (4) in addressing the amendment proposed by the noble Lord, Lord Purvis of Tweed, but I provide further assurance that the Bill seeks to establish a coherent domestic regime and that regulations can be made under it in connection with any provision of the protocol or withdrawal agreement to which this clause relates. The Government’s position is that the clause is important to insulate fully any excluded provision from being subject to obligations arising from other provisions of the protocol and withdrawal agreement.

I think I am following the mood of the Committee by not expressing myself in as much detail as my noble predecessor, my noble friend Lord Ahmad of Wimbledon —or Wimbledon of Ahmad, as he was prepared to style himself earlier—dealt in, but the Committee as a whole will recognise that this provision is tied up with its predecessor.

I hope that, at least at this stage, I have said enough to persuade noble Lords not to press their amendments.

--- Later in debate ---

[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.

[Baroness Chapman of Darlington (Lab)]

I would expect that, too, and I think it is regrettable that we have got to where we are. I was one of those people in the other place who very regularly got up and asked Ministers about Northern Ireland and what the plan was, because there were obviously going to be these issues. There were other solutions; we could have had a customs union or some kind of single market arrangement that would have maybe dealt with this in a slightly different way. I remember talking to one of the noble Lord’s colleagues who said, “Well, we don’t mind what it is as long as we’re all treated the same within the United Kingdom”. Ministers cannot be surprised that we are still having these discussions now.

I want to talk a little bit about this issue of cross-community consent; I am just reflecting on the speech made by my noble friend Lady Ritchie on Monday. It seems clear that the intention of Ministers is to protect the Article 2 rights of individuals, the Article 3 common travel area and the north-south co-operation in Article 11. We have debated the protection of the rights of individuals before, but what we really need is some sort of assurance from the Government that those intentions are reflected throughout the Bill in a consistent and watertight way. So can the Minister confirm that there is no prohibition on the overriding of Article 18 of the protocol, which deals with cross-community consent? We have rightly heard a great deal about this issue, and I would like the Minister to address it to make sure that I have understood it correctly.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am very grateful, as ever, to the noble Baroness, Lady Ritchie of Downpatrick, for moving Amendment 25. Much to my astonishment, the debate has veered away somewhat from the strict terms of her amendment. However, let me say at the outset, as I have said before, that I very much share the noble Baroness’s frustration at the lack of a sitting and functioning Northern Ireland Executive and Assembly. Of course, one of the motivations behind this legislation is to try to facilitate a situation in which those institutions might be restored. It is sensible that we always go back to why we are doing this and why we are legislating.

I can also sympathise with the intention behind the noble Baroness’s amendment, but the Government’s view is that it is unnecessary. To answer the noble Baroness, Lady Suttie, and I think to some extent the noble Baroness, Lady Chapman of Darlington, the Government have absolutely no intention whatever to use the powers in Clause 15 to alter the operation of the democratic consent mechanism in Article 18.

I appreciate that there are different views on the mechanism itself; they were aired to some extent a few moments ago. They have been debated extensively in this House, and I seem to recall that they even managed to make their way into the debate on the Ministers, elections and petitions of concern Bill at the end of last year and the beginning of this one—so, if my noble friend Lord Dodds of Duncairn will forgive me, I do not really wish to reopen that whole debate again at this late hour of the evening.

To answer the further question from the noble Baroness, the vote in the Assembly will be on Articles 5 to 10 of the protocol.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

Very briefly, I very much welcome these amendments for many of the reasons that have been said. We favour a veterinary agreement with the EU to assist us in resolving some of the issues brought about by the protocol.

I use this opportunity to say that I agree wholeheartedly with what the noble Lord, Lord Purvis, said, but remind Ministers of the amendment on consultation and impact assessments that we tabled at the beginning of this process, which we will come back to and want to see addressed either at the end of this process or at the very beginning of Report, if the Government bring the Bill back. That has not gone away and, much as we have engaged with this Committee process, those asks that we had of the Government remain on the table.

[Lord Caine (Con)]

I am extremely grateful again to the noble Lord, Lord Purvis of Tweed, for proceeding at a canter. To some extent, as he said, we are, to borrow a line from “Wish You Were Here”, going over the same old ground—Pink Floyd, for the uninitiated.

I will address the amendments in the names of the noble Baroness, Lady Ludford, and the noble Lord together. Again, I will try to reassure noble Lords that the Government have engaged very broadly on the issues created by the protocol with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. I remind the Committee of something that I think was raised on Monday: over the summer, in addition to routine engagement the Government held 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators.

Within my department, Northern Ireland Office Ministers held discussions with a wide range of businesses and organisations, including a number of those not actually named in the amendments tabled by the noble Lord and his colleague, such as the Dairy Council, Hospitality Ulster, as mentioned by my noble friend Lord Dodds of Duncairn, the Northern Ireland Grain Trade Association, the Northern Ireland Meat Exporters Association and the Northern Ireland Poultry Federation, either individually or as part of the Northern Ireland Business Brexit Working Group. In fact, the noble Lord might or might not be aware that most Northern Ireland food and drink representative bodies—although not one of those listed in his amendment, Food NI—are members of the Northern Ireland Business Brexit Working Group, with which we engage regularly, as are the Federation of Small Businesses in Northern Ireland, the Northern Ireland Retail Consortium, the Northern Ireland Chamber of Commerce and Industry, and the CBI in Northern Ireland.

Alongside this engagement, we have made visits to a number of individual businesses. I reminded the Committee on Monday about a farm I visited between Newry and Armagh during the summer, where senior representatives of the Ulster Farmers Union were indeed present, and where we discussed a number of issues relating to the operation of the Northern Ireland protocol in respect of the dairy sector. So the Government have already been conducting a detailed programme of engagement to inform the specific design of the regime in Northern Ireland that will be created by this Bill, and I give every assurance that we will continue to do so.

The noble Lord’s amendments would compel Ministers to engage in consultation with specific organisations as set out in the amendment, but as I said, there are many others that we are in discussions with that are not mentioned in those amendments. In many cases, the consultations that would be set out in statute would not necessarily be pertinent or proportionate to the regulations themselves and would lead only to further delays in implementing solutions. For example, I think the Committee would agree that the Northern Ireland Food and Drink Association might not necessarily need to be consulted on VAT applied to domestic energy saving materials.

However, the powers in the Bill might need to be used quickly, and while in normal cases the Government would seek to engage with stakeholder groups, there may be occasions on which the urgency of a situation would make that unnecessary and therefore it should not be compulsory. Given the extent of the consultation we are already carrying out with business organisations and others in Northern Ireland, this amendment would risk tying the Government’s hands behind their back.

Regarding the publication of consultations, it is vital that we be able to have free and frank discussions in confidence with as many groups and organisations as possible, in which they can freely express their views to government, sometimes in forthright terms. I am sure the noble Lord would not want them to be constrained in so doing, but the amendment might well inhibit that. Of course, the outcome of our engagement will be considered and reflected in the final regulations, which the House, as has been mentioned in earlier debates, will have an opportunity to consider and scrutinise under the normal procedures. In our view, we do not need a statutory obligation to do something we are already doing with a far larger number of organisations and bodies than the amendment would have us commit to. In that spirit, I ask the noble Lord to withdraw the amendment.

On the government impact assessment set out in Amendment 74, I understand completely and sympathise with the desire for an assessment of the arrangements under the new regime. I will try to reassure noble Lords that while the Bill does not at present have an impact assessment, the full details of any new regime will be set out in regulations alongside and under the Bill, including the economic impact where appropriate. We do not, however, believe it would be appropriate to mandate by statute that the Government must in all circumstances produce an economic impact assessment before the Bill can be brought into full force. Conducting an impact assessment, while important, is not and never has been a statutory bar to making legislation, and for that reason I invite the noble Lord not to move Amendment 74.

--- Later in debate ---

[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?

[Baroness Chapman of Darlington (Lab)]

I was wondering pretty much the same thing. This is a slightly odd clause, because it says a lot but actually leaves the door open to not doing anything at all. It gives Ministers the right to change

“any other tax (including imposing or varying the incidence of any tax), which they consider appropriate”.

That is fine, but they might not consider anything appropriate and might not do anything.

Subsection (2) says:

“The regulations may, in particular, make any provision”


to bring closer together, or reduce differences between, various taxes in Northern Ireland and Great Britain. I am sure that that is how the Government want to signal their intention, but the Bill does not do that—it leaves it open to Ministers to do nothing at all, or even to create greater variance in the situation. So I was curious about why the Bill says that, rather than saying, “We will make the situation in Northern Ireland the same as it is in the rest of the UK, notwithstanding the various revenue-raising powers that there are in devolved Administrations.”

[Lord Ahmad of Wimbledon (Con)]

My Lords, I am grateful to all noble Lords. Debating the nice light subject of taxation for our last group is exactly what the doctor ordered. But I am extremely grateful for the brevity shown, and I will seek the same in my response.

I will respond to Amendment 33, in the name of the noble Lord, Lord Purvis of Tweed. Clause 17(1) is drafted to enable Ministers to make provision about VAT, excise duty and other taxes in connection with the Northern Ireland protocol when they consider it appropriate. The Bill maintains the current baseline of EU rules in this area. The clause is required to enable the Government to make changes that, for example, lessen or eliminate ensuing tax discrepancies between Northern Ireland and Great Britain, support frictionless trade on the island of Ireland and preserve the essential state function.

As EU tax rules are dynamic, it is impossible to specify every circumstance where the Government may need to take such steps, and it will also not be possible to anticipate the precise nature of those steps for all possible scenarios. However, we have already set out some examples, such as alcohol duty and the tax treatment of energy-saving materials, where Northern Ireland cannot benefit from the same policies as the rest of the UK, despite these policies posing no risk to north-south trade.

The noble Lord asked about Section 54 of the cross-border trade Act—that is my favourite subject. But, in all seriousness, I will write on the specific nature of the question that the noble Lord posed to ensure that he gets a complete answer. Of course, I will share that letter with noble Lords and make sure that it is in the Library.

I turn fleetingly to Amendments 34 and 35 in the name of the noble Baroness, Lady Chapman. We have covered the government position on this before, but I add that we feel that appropriate discretion is a necessity if the Government are able to facilitate consistent VAT, excise and other relevant tax policies between Northern Ireland and Great Britain. It would be inappropriate to leave the people of Northern Ireland unable to benefit from the support available to those elsewhere in the UK.

I turn briefly to Amendment 35A, in the name of the noble Lord, Lord Dodds, which would make Article 8 of, and Annexe 3 to, the Northern Ireland protocol excluded provision. I am sympathetic to the amendment’s intentions. It would disapply relevant EU VAT and excise rules in domestic law, allowing a new VAT and excise regime to be implemented in its place. However, the Government’s view is that a blanket removal of EU VAT and excise rules is not the intention in this area. Instead, the Bill maintains the current baseline of EU rules but introduces Clause 17, in conjunction with Clause 15, to grant Ministers the power to disapply or override any restrictive EU VAT and excise laws that apply in Northern Ireland. I briefly explained why we believe that this is necessary.

--- Later in debate ---

Briefly, I turn to the question of whether Clause 17 stand part of the Bill, which is included in this group of amendments—

[Baroness Chapman of Darlington (Lab)]

I know that it is late and we all want to go home, but the Minister does not have to respond only to the amendments tabled. We are in Committee, and I would appreciate it if he answered my question about the drafting. It leaves a lot of scope, which may not necessarily address the concerns of the noble Lords behind him.

[Lord Ahmad of Wimbledon (Con)]

I think that I have answered that question. I am sure that when the noble Baroness reviews the debate, she will find that I have sought to give a specific reason why the Government have a different approach in this respect. However, if she has further specific questions, I am of course happy to discuss them with her.

In conclusion, as I have said, I have justified Clause 17 to the Committee. In short, it provides Ministers with the ability to ensure that VAT, excise and other relevant policies are aligned across the whole of the UK, including in Northern Ireland. We believe that this clause is imperative in lessening—or indeed eliminating—the unacceptable tax discrepancies that exist between Northern Ireland and Great Britain, and I recommend that it stand part of the Bill.

Northern Ireland Protocol Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

Moved by

[Baroness Chapman of Darlington]

39: Clause 19, page 10, line 17, leave out “the Minister considers appropriate” and insert “is necessary”
Member’s explanatory statement
This amendment limits a Minister’s ability to use a delegated power when they consider it “appropriate” to cases where it is “necessary”.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

My Lords, I will allow a couple of seconds for people who have obviously got it off their chest during the first group to leave, in the hope that we do not go through the whole thing again.

Clause 19 is very short, at only a couple of paragraphs, but it is quite interesting, as it pleasingly addresses the situation we may find ourselves in where the Government have been successful in reaching an agreement with the European Union. Many of us have said, time and again, throughout this Committee, that we hope to see that. We have been challenging Ministers, as we have seen in the previous group, to show visible political leadership. The visibility has been lacking. I take on board what the Minister said about his right honourable friend the Foreign Secretary playing an active role, but visibility and political momentum have been lacking. I like to think that, had one of my right honourable friends been leading these events, we would have seen a far more outward-facing presence, if I can put it that way, through this process—but never mind.

Clause 19 looks at the eventuality of there being an agreement. The amendment I have tabled is one that will be familiar by now to noble Lords who have been taking part in this process from the first day of our considerations. The first line of the clause, as it stands, says that:

“A Minister of the Crown may, by regulations, make such provision as the Minister considers appropriate”.


I have asked that “appropriate” be changed to “necessary”, and I will explain why, in this particular instance, that is sensible.

This clause gives Ministers the power to implement an agreement that they hope to reach with the EU. Obviously—and we accept this—Ministers will need some flexibility in that event, and things may need to be done as a consequence of having an agreement. But I would have thought that an agreement, by its nature, would be clear and specific, and that things would be agreed that are not currently in place that would need to happen. In that instance, surely the things that need to be done by Ministers will, by virtue of the fact that they have just been agreed to with our negotiating partners, meet the test and be necessary.

It troubles me that the Government feel they should have “appropriate” there instead. That seems to give them much greater scope than is ever going to be needed in the event that this clause is used—and we hope that it will be. I would like to know from the Minister what the Government’s thinking is there, beyond thinking that “necessary” is too tight and just wanting to allow themselves a bit more room—of course they do; who would not? But this clause deals with the fact that there may be an agreement, and I do not think it is justified for the power to be as widely drawn as it is.

While I am on my feet, I note that I support the stand part notice from the noble Lord, Lord Purvis, in this case as well. The DPRRC believes that the powers in this clause are just too widely drawn, though there is obviously merit in discussing what powers are needed in the event of an agreement and what the role of Parliament should be in that situation. We think that a deal can be struck—we have said that many times—and also believe that Parliament should have the opportunity to debate any agreement, as other Parliaments will. I just note that the European Union (Future Relationship) Act 2020 was passed in a day and the TCA was ratified without direct parliamentary process. We accept that Ministers need the ability to act in the event of an agreement and we appreciate the Government demonstrating their anticipation of such an agreement in this clause, which is notable, but surely a Bill to enact an agreement would be better. That is what we have been asking for.

This is a discussion we have had with the Government on many occasions and on other agreements, when we have talked about the unsatisfactory process we still have in this country for parliamentary involvement in agreements. We do not think we have got it right yet; that is understandable, and it is perhaps going to take some time to get to that point. We have not had to engage in this for many years, but I do not think that many people in Parliament are satisfied with the way this works at the moment, and it would be helpful if the Minister could acknowledge that.

Without being too cheeky about it, we want to help the Government, given just how unsuccessful they have been so far in settling these issues. We do not see why they would be so resistant to involvement from people who are being very positive and cheering them on in their endeavours. We really do want to see a resolution to this. With that, I beg to move the amendment in my name and express my support for the stand part notice tabled by the noble Lord, Lord Purvis.

[Lord Purvis of Tweed (LD)]

We support the amendment in the name of the noble Baroness. In supporting it, I want to make two points. First, this clause effectively turns the Constitutional Reform and Governance Act principles on their head. We have well-established mechanisms, which are set down in statute, on how we approve new international agreements. If this is a mechanism to replace the Northern Ireland protocol, an internationally made agreement, with a new agreement, then why is the CRaG process, which allows parliamentary scrutiny, debate and, unlike this, an ability to have enhanced approvals or indeed vetoing by Parliament, not going to be the route for it? I do not understand why.

Secondly, it also sets on its head every commitment that has been provided for every trade agreement: namely, that if a trade agreement requires any primary legislation to bring it into effect in domestic law, primary legislation is brought forward—this is not done by regulation. But, again, this is being set on its head. The Trade (Australia and New Zealand) Bill is coming up, which is primary legislation—not regulation —implemented with agreement. The two Bills contradict each other really quite glaringly.

I think that this is significant because of an interaction I had with the noble Lord, Lord Dodds, on one of the previous days in Committee. I asked him whether he had given consideration—if there is, as a result of these talks, an agreement with the EU—as to how that should be put in force. The Government are saying “by regulations”, which are unamendable and could even be under a negative process; they could use Clause 19 to do this. If the noble Lord’s concern—as well as that of the noble Lord, Lord Empey—was about the need for consent, this is not the means by which that would be secured. Yet this is the means by which the Government could enforce it. There is a very jarring comparison between what consent of any new agreement would be and how the Government are seeking powers under Clause 19 to enable them to put this into force. Clause 19 should not be the mechanism by which we have sustainable support for any agreement. An order-making power for a Minister is simply not the route—and that is in addition to the fact that they are turning on their heads long-standing practices by which we put international agreements into domestic legislation. For this reason, I do not think that Clause 19 should stand part of the Bill.

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[Lord Ahmad of Wimbledon (Con)]

My understanding is that we would certainly abide by our previous commitments in that respect. In the interests of clarity, I will confirm that in writing to the noble Lord.

[Baroness Chapman of Darlington (Lab)]

I do not think we are very happy about this. The Minister says that he wants to address stability in Northern Ireland, yet this whole process goes over the heads of people in Northern Ireland. We heard from the noble Lord, Lord Empey, and others just how unsuccessful they expect that to be. There are so many issues here, I just do not understand why Clause 19 is required when there are processes available to the Government to do this. We shall come back to this, but the only thing about saying that we shall come back to it on Report is that we do not know whether we will actually get to Report, given the amendments that we discussed before we started our formal consideration of the Bill. We still have not heard anything from the Government on that. Obviously, we shall leave it for today but the discussion we have had leaves a few more questions than answers. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

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[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the noble Baroness, Lady Doocey, for her amendment because it goes to the heart of the protocol and the protocol Bill issues in relation to the need for an SPS veterinary agreement. The dairy and farming industries on the island of Ireland require an SPS agreement. I have written to the noble Lord, Lord Caine, today, following last week’s debate on this issue following further discussions with elements of the dairy industry. The bottom line is that unless there is an SPS agreement, that could very much interfere with our dairy industry and totally undermine it.

I shall give a short explanation from the letter. Those in the dairy industry acknowledge the issues that the Northern Ireland retail sector is dealing with regarding the protocol and support for a dual regulatory regime, but such a regime would not work for the dairy industry because we are looking at the very survival of Northern Ireland dairy farmers. Approximately 30% of all Northern Ireland milk is processed in the Republic of Ireland because there is not the capacity to do so in Northern Ireland. It may be worth visiting some of the processing factories in Northern Ireland that are part of a greater co-operative group to see what they do and what they are trying to tell us.

If you create a hard border for milk, which the dual regulatory scheme outlined in the Bill will, there will be enormous environmental issues. Northern Ireland does not have the capacity to dump 30% of its milk, and milk has special regulations for its disposal. You could then move to the culling of perfectly healthy animals which, in a cost of living crisis, is inconceivable. Finally, this would lead to devastating consequences for the economy of Northern Ireland, as the agri-food industry is its bedrock.

So I say to the Minister that those in the dairy industry have looked at the impact of a 30% reduction in sales to an average Northern Ireland farmer. When you consider their average interest on loans and their loan repayments, this would result in an annual negative cash flow. In other words, their costs would be greater than their income.

In summation, it is vitally important that the negotiations achieve an SPS veterinary agreement. From what I have read in the non-papers from the EU of October last year, it is very prepared to enter into such an agreement as part of the negotiations. However, the dual regulatory regime will not work for the agri-food sector. Maybe a bespoke arrangement is required for the retail sector where some of the problems lie.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Doocey, for her amendment because it roots our discussions in the real world of farmers and manufacturers and focuses our minds on jobs and prosperity. The noble Baroness, Lady Ritchie, as usual, got it completely right and explained the impact on the dairy industry very powerfully. I will not repeat some of what she has already said, although I was intending to.

We ought to be working towards an SPS agreement. We on these Benches have thought that we should be working towards that sort of agreement for the whole of the UK and we have held that position for over a year because of the very clear benefits it would bring to food and drink manufacturers. I think the food and drink industry is still our biggest manufacturing sector in England, so there would certainly be significant benefits to the whole of the UK of this approach.

One benefit would surely be to assist—not to resolve completely—in overcoming some of the issues experienced by producers, hauliers and those wishing to trade east-west. We are reminded quite rightly by the noble Lord, Lord Bew, that we need to be concerned about this. It would be hugely beneficial to our industries in Northern Ireland and beyond. We understand that not every problem will be solved this way and we know that some SPS checks were there prior to the protocol, for other reasons. That seemed to work fairly well for quite a long time, so that may still be necessary. It will be interesting to see what the Minister thinks about that.

At this stage, we think we need this to help with the costs and administrative burdens faced by producers, distributors and retailers. A couple of examples have been referred to. I will briefly refer to the Swiss deal. They have an agreement where regulations are aligned, eliminating virtually all documentary, identity and physical checks. New Zealand, as we have heard, has an equivalence model that has made processes simpler and reduced checks. We probably would not want to replicate either of those models directly. Obviously there are differences, such as the volumes coming from New Zealand and the fact that many of the loads going east-west in our situation are mixed, that make neither model directly replicable. We think we probably need a bespoke agreement and the door to that seems to be open with the EU, so it is curious that the UK Government seem quite so reluctant to explore that option.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank all noble Lords who have taken part in this debate. In particular I thank the noble Baroness, Lady Doocey, for tabling her amendment. I was saying to my noble friend Lord Caine that I think we are getting into some of the reasons. Irrespective of people’s views on the Bill itself, the fact is that businesses are facing problems and challenges that need resolution. I will come on to the specific point that the noble Baroness tabled so ably.

Amendment 43B, in the name of the noble Baroness, Lady Doocey, asks the Government to update Parliament on the progress of negotiations on the veterinary agreements between the UK and the EU. Let me say right from the outset that we have always been very serious about our negotiations on the protocol, and we remain so. Our preference remains to resolve the issues with the protocol through negotiations, and the Bill provides a power to implement any agreement which follows those negotiations—indeed, we had quite an extensive discussion on that particular point. I assure the noble Baroness that the Government have engaged quite extensively with the EU on reducing the burden of SPS checks and controls under the protocol, which she also highlighted.

Where we are right now—I am seeking to provide detail while also acknowledging what the noble Baroness, Lady Chapman, said—is that, currently to date, the EU has proposed that any veterinary agreement should be based on dynamic alignment; the Government believe that this would compromise UK sovereignty over our own laws, including our ability to strike trade deals. However, on the specific points that the noble Baroness raised, we remain open to broader negotiated solutions, and we hope that the talks taking place currently can secure a bespoke biosecurity assurance—I welcome the contribution of the noble Baroness, Lady Chapman, in this respect—which maintains our high standards for animal, plant and public health. I know that resonates with all noble Lords.

I will also provide some detail on where we are on both the Swiss and the New Zealand agreements. Of course, the EU has a precedent for making such agreements with other countries—as all noble Lords acknowledged, and I am grateful for that—either through stand-alone agreements, such as the EU-NZ veterinary agreement, or as part of wider agreements with trading partners such as Canada and Switzerland. The UK proposed an SPS model predicated on equivalence and similar to the EU-New Zealand model in the TCA negotiations last year and, indeed, in earlier negotiations and discussions with the EU on the Northern Ireland protocol. However, the EU rejected the possibility of an agreement based on equivalence. The Swiss-EU SPS arrangement is the model that the EU has put forward repeatedly to agree with the UK and is based on dynamic alignment. There is a difference here, but at the same time I appreciate both the tone and substance of this debate, and I want to assure noble Lords that we remain open to these specific points because they address the practical problems being experienced.

Let me say a brief word on the issue of statutory reporting, although I think I have already covered this point previously. As with any negotiations, this is a matter of the foreign affairs prerogative. As I said previously—and I have sought to provide a bit more detail on some of the context in my response—I will certainly seek to update noble Lords, and I appreciate the insights that the noble Baroness, Lady Doocey, has brought to this debate.

Turning now to the other contributions, including those from the noble Baronesses, Lady Ritchie and Lady Chapman, I will discuss Amendments 58, 60 and 63 together. These amendments would also place a number of requirements on the Government relating to various specific sectors within Northern Ireland, notably the publication of draft regulations and a sector-specific impact assessment, as well as to engage in consultations with representatives from those sectors. Let me say immediately that I entirely sympathise with the desire to ensure that we are properly considering the impact of legislation on all businesses within Northern Ireland. It is for this reason that we have engaged extensively with stakeholder groups across business and civic society in Northern Ireland, in the rest of the UK and internationally—I know that my noble friend Lord Caine will speak to this in subsequent groups; indeed, he covered this in our previous debates in Committee.

In addition to routine engagement, during the summer the Government held over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators to inform the details of how the dual regulatory and trade boundary models should work in practice. In this respect, I can share with all noble Lords—and, in particular, with the noble Baroness, Lady Doocey—that we gained a lot of practical information from that, and we are reflecting on the wealth of feedback received as we continue to develop the details of the underlying regime. The regulations themselves will be the product of this very engagement with business to ensure that the implementation of the new regime is as smooth and operable as possible. Your Lordships’ House will have the opportunity—

[Baroness Chapman of Darlington (Lab)]

Although what the Minister has just said is very welcome, ordinarily there would be engagement so that the Minister could make well-informed suggestions. Then, of course, a period of consultation on whatever ideas the Government intended on implementing would follow. Is the Minister saying that that process would be followed in this case?

[Lord Ahmad of Wimbledon (Con)]

I know that the noble Baroness, and other noble Lords—the noble Lord, Lord Purvis, among them—have pressed me on the issue of the detail of the draft regulations. That is, again, very much the process we have adopted to make sure that we are speaking to industry and businesses and reflecting those in the draft regulations that will be published. The regulations will be reflective, as I said earlier, of the wealth of the feedback we have received. The scrutiny of the regulations will be done in the usual fashion and, of course, the Government will provide all the usual accompanying material under parliamentary procedures. The full details of the new regime will be set out in and alongside the regulations made under the Bill, including any economic impacts where appropriate. This will allow Parliament to be informed in its scrutiny of the new regime when it has been put in place.

On the issue of a statutory duty to publish such material, as suggested in the amendments, the Government’s view is that it would not be appropriate to place a statutory duty on the Government. The legislation is needed to tackle the urgent problem we have sought to identify with the workings of the protocol in Northern Ireland. While we do not anticipate any issues with providing information before regulations are brought forward, we do not want to tie our hands unnecessarily in this respect.

Finally, I say to all noble Lords who have participated in this debate that I welcome these specifics, and I hope noble Lords will appreciate that I have sought answers and am listening during the course of Committee, as are my colleagues. I am seeking to provide a bit more detail on what we have but, while asking the noble Baroness to withdraw her amendment, I do value the insight and the practical and constructive nature of the amendments that have been tabled.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

I thank the noble Baroness. That then begs the question: why is it not in her amendment? Why is it simply the consent of the Northern Ireland Assembly, which in fact removes it from cross-community consent? That is not what they are talking about here. If it had been, it would be in this. I listened very carefully to the noble Baroness, Lady Suttie, saying that this would be looked at on a later date. I trust that this will be taken on board. We will not move forward unless there is cross-community consent, and there is no cross-community consent and no unionist consent for this protocol, which they believe is a vehicle for taking Northern Ireland out of the United Kingdom.

[Baroness Chapman of Darlington (Lab)]

My Lords, this is an extraordinary clause. The speech made by the noble Baroness, Lady Hoey, introducing this group, proved the point. She argued that Ministers could, under this clause, act in a way that is incompatible with the Act of Union. My interpretation of this clause is similar to that described by the noble Lord, Lord Pannick, in the discussion of the previous group, in that it gives Ministers the ability to do pretty much anything. There is no restriction on powers. Maybe the Minister had been briefed that there was. Clearly, in this clause at least, that is not the case. That is the point that many noble Lords have been trying to get across to Ministers, and it is the underlying reason for much of the unhappiness with this Bill.

It is probably a bit tedious for the noble Lord, Lord Bew, to listen to us wittering on about this again and again. I completely understand that, as it does seem rather separate from what is happening on the ground and the political issues that he quite rightly says the Bill is really all about. I totally agree with him on that. Nevertheless, the method that the Government are choosing to deal with these political issues is one which gives them these quite unprecedented powers. We have come across this sort of thing many times, but we have never seen it quite as blunt as this. That is why they are getting a sort of two-pronged dissatisfaction with this approach.

The amendment in my name refers specifically to subsections (2)(a) and (2)(b). This is the bit where Clause 22 makes it clear that Ministers would be breaking international obligations and gives them permission to do so. Obviously, if the Bill became law, Ministers would not be breaking domestic law because it would be domestic law, but they would be breaching their international obligations. Ministers’ answers on this issue have been far from convincing. How is passing the Bill responsible if we do not know what the Government are going to do? We do not know that because they are giving themselves such wide powers. If the powers were in some way restricted to issues relating to the problems that the Bill tries to solve, perhaps the Government would be on a firmer footing. However, we are at such a precarious point; for example, there may be elections and there may not be.

I am trying not to have a dog in this race but, from the discussion we have just heard, it is absolutely clear that the problems being described are real and need to be dealt with. They need a Government who are properly engaged and will deal with them seriously. A clause such as this one says the opposite to all communities. Who knows where this will go? There is obviously no trust in the Government on this issue. We have heard it; it is very clear. Even the people who broadly support the Government’s approach do not trust them to do this correctly and do right by them. That is a big problem. It is a problem here in getting support for this clause, but it sure as heck is also a problem on the ground in Northern Ireland.

The Government have got themselves into a real mess on this issue. The powers in the Bill are not constrained to a particular purpose. I just do not know how the Government will deal with this. We have been told that we will get a letter, as if this is a discussion that the Government could not have foreseen, anticipated and had proper answers for. While we are doing our job of going through this Bill, the Government do not have an answer on what was foreshadowed well by noble Lords’ contributions at Second Reading but have to go away and write us a letter. It is not good enough. We need to know the Government’s response to that issue, and particularly on this clause, before we can properly proceed.

I completely agree with everyone who said that we must have the restoration of the political institutions. Some people seem to think that the Bill will help but we disagree. We think that it is bad politics and will lead to more disappointment, probably disappointing the very people who have come here tonight to support the Government in this endeavour. This clause is a problem; the Minister has learned that very well, I think. I am afraid that listening to tonight’s exchanges has made me more convinced than I was before that we on these Benches cannot support this clause unless something shifts dramatically before we reach Report. I just do not know where we go with this Bill.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am grateful to all noble Lords who spoke in this debate. I rather hesitate to say this in front of the noble Lord, Lord Bew, who was taught at Cambridge by the great Tudor historian Sir Geoffrey Elton, but as we go through these debates, I feel I am becoming increasingly isolated in being a Member of your Lordships’ House who might still have a sneaking admiration for the reign of Henry VIII. Indeed, I confess that I have a portrait of Thomas Cromwell in my office. However, I will go no further because I do not want to provoke a debate with noble Lords about the 1533 Act of Restraint in Appeals and its preamble. I will therefore fast-forward, if I may, to 1800 and the Acts of Union, referred to in the amendment moved by the noble Baroness, Lady Hoey.

Let me say at the outset that I entirely sympathise with the noble Baroness’s position and amendment. Clause 1, as she pointed out, explains that the Acts of Union are not to be affected by provision of the protocol that does not have effect in the United Kingdom. I agree with her and noble Lords who have pointed out the fundamental importance of the Acts of Union as the bedrock of Northern Ireland’s constitutional position in the United Kingdom.

However, I am sorry to point out to the noble Baroness that her amendment has the potential to risk the exercise of the powers under the Bill. For example, the red lane in our new model will continue to apply EU rules to goods moving through Northern Ireland into the European Union and single market. This is crucial to ensuring that there is no hard border on the island of Ireland and to upholding the overall objectives of the Act of Union regarding the free flow of trade in the United Kingdom. The restrictions imposed by her amendment could risk the implementation of this revised operation of the protocol, which is designed to uphold our commitments to the union.

I know the noble Baroness is very supportive of the Bill, but this amendment could undermine the certainty that it seeks to provide. She and my noble friend Lord Dodds of Duncairn made a very large number of points around subjugation and so on. I hope she will appreciate that I cannot go into great detail at the Dispatch Box because, as she knows since she is a party to it, this amendment treads very much the same territory as is the subject of a live case in the Supreme Court, which I think is expected to be heard very shortly.

I reiterate my and this Conservative and Unionist Government’s—a label I proudly wear in your Lordships’ House—strong support for the union and Northern Ireland’s integral position within it. I have no hesitation in reiterating what we said at the end of last week about joint authority; it is simply incompatible with the provisions of the Belfast agreement and we will not countenance it. I assure the noble Baroness that we are determined to resolve the issues to which she alluded in her amendment this evening and, on that basis, urge her to withdraw it.

I turn to the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. It has been said many times and in much detail, but I feel I have a duty to remind the House again that it is because of the operation of the protocol that the Northern Ireland Assembly has not been sitting since February, and the Bill aims specifically to restore political stability in Northern Ireland and facilitate the reconstituting of a fully functioning Executive and Assembly in line with the Belfast agreement. In the absence of functioning institutions, creating a legal requirement—as the amendment from the noble Baroness would do—that consent from the Assembly be granted before regulations can be made under the Bill risks in these circumstances setting a test that simply cannot be met, because there is no functioning Assembly.

This amendment would also be constitutionally problematic, effectively limiting the UK Government’s ability to exercise their powers in excepted and reserved areas of policy such as international affairs and trade, respectively. Given that it would also apply to the commencement power, it would make the coming into force of legislation of this Parliament subject to a veto by the Northern Ireland Assembly. That would affect this Parliament’s right to legislate for Northern Ireland, something the Belfast agreement makes very clear is unaffected; as such, the Government cannot accept it. For that reason, I ask the noble Baroness not to press her Amendments 46 and 55.

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Moved by

[Baroness Chapman of Darlington]

57: After Clause 22, insert the following new Clause—
“Parliamentary approval of the outcome of negotiations with the EU
(1) A Minister of the Crown may make regulations under section 19 only if—(a) a Minister of the Crown has laid before each House of Parliament—(i) a statement that a relevant agreement as defined in that section has been reached, and(ii) a copy of the agreement,(b) the agreement has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(c) a motion for the House of Lords to take note of the agreement has been tabled in the House of Lords by a Minister of the Crown.(2) A Minister of the Crown may make regulations under sections 4 to 17 only if—(a) they have laid before each House of Parliament a statement that—(i) His Majesty’s Government have been unable to reach an agreement with the European Union regarding outstanding issues with the Northern Ireland Protocol, and(ii) they are of the opinion that His Majesty’s Government have exhausted all legal options under the EU withdrawal agreement,(b) they have laid before each House of Parliament an assessment of the likely impacts of the regulations, and(c) they have consulted Northern Ireland business organisations on the contents of the proposed regulations and laid a report regarding that consultation before each House of Parliament.” Member’s explanatory statement
In the event of a negotiated settlement being achieved with the EU, this amendment would require both Houses to debate that agreement, with the Commons having to approve it. In the event that no agreement is achieved, Ministers would have to follow various steps before being able to make regulations under parts of the Bill.

[Baroness Chapman of Darlington (Lab)]

My Lords, I will be very brief. I do not want to spend too much time on this amendment. Essentially, what we are asking for is a process in Parliament in the event of an agreement being reached. We want the Government to succeed in getting an agreement and think it is a helpful safeguard to allow the elected House to express its view and for this House to debate a draft of the agreement. It would be especially useful, I suggest, if the Northern Ireland Assembly is not restored in time. It would be helpful because if it is not and there is no debate in Parliament, who knows what they might be agreeing to? There would not be an opportunity for anybody’s elected representatives anywhere to have a debate about what is going to happen, and we think that is not ideal, given the history of how we got to where we are.

If Ministers are unable to achieve a deal and have exhausted legal routes under the protocol and wish to use the powers in the Bill, they should have to follow the steps in subsection (2) of this amendment, which would include a detailed impact assessment and proper consultation with Northern Ireland businesses on proposed regulations.

We have had many of these debates already and I do not propose going over each element of this in great detail now. Ministers know how we feel about consultation, draft regulations, the involvement of Northern Ireland and listening to businesses. So I think I will just leave it at that and I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank the noble Baroness for the amendment and her explanation. On her second point about consultation, I think the Government have rehearsed this point several times and the record of the Government’s position stands. It totally resonates with us. I have sought to the extent that I can to give reassurance of continued consultation in that respect.

Turning specifically to Amendment 57, on the supremacy of the House of Commons and giving the vote, I understand where the noble Baroness is coming from on this. However, I once again state quite clearly that the procedures under the Constitutional Reform and Governance Act—CRaG 2010—will apply to any qualifying treaty that needs to be implemented by regulations made under the Bill. The Act already provides for appropriate scrutiny and I hope that, while she may not be totally satisfied, based on the fact that she has tabled this amendment, I once again give her that reassurance. I am sure that we will return to several aspects of this, particularly as we move through to other stages of the Bill.

Again, I note the point she is making about the importance of parliamentary scrutiny, but I hope at this time she is minded to withdraw her amendment.

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[Baroness Chapman of Darlington (Lab)]

I do not really feel the need to reply. I think we have said everything that can be said on this topic through these debates, so I beg leave to withdraw.

Amendment 57 withdrawn.

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Moved by

[Baroness Chapman of Darlington (Lab)]

59: After Clause 22, insert the following new Clause—
“Impact assessment: construction
(1) Within the period of three months beginning with the day on which this Act is passed, and before a Minister of the Crown may exercise any of the powers in sections 1 to 20, the Secretary of State must lay before both Houses of Parliament an impact assessment pertaining to the construction sector in Northern Ireland.(2) In preparing the impact assessment under subsection (1), the Secretary of State must—(a) publish any draft regulations they intend to make under this Act, and which may be reasonably expected to relate to the sector,(b) consult such persons as the Secretary of State considers appropriate representatives of the sector.”Member’s explanatory statement
This amendment would require the Secretary of State to publish and consult on draft regulations relating to the construction sector, prior to using the powers under the Bill to make regulations affecting that sector.

[Baroness Chapman of Darlington (Lab)]

Similarly, these amendments would require the Secretary of State to publish and consult on draft regulations relating to various sectors of the Northern Ireland economy—including construction, electronics, energy and manufacturing—prior to using powers under the Bill to make regulations affecting those sectors. We want to see these draft regulations. They keep coming up. We have made our contentment with going to Report conditional upon them; they are very important to us and, I believe, to sectors in Northern Ireland.

We have previously had interesting debates on the merits of a UK-EU veterinary agreement and the importance of proper consultation with food-focused sectors of the economy, but it is important to remember that Northern Ireland businesses operate in every imaginable field, so these amendments cite a variety of sectors. We could have gone further—it is not an exhaustive list by any means—but we wanted to highlight to Ministers the unique challenges faced by businesses in Northern Ireland. Manufacturing, in particular, is having a tough time at present, with supply chains still experiencing disruption and inflation adding to business costs. In August, the Northern Ireland Business Brexit Working Group said that using the powers under the Bill would

“create a myriad of reputational, legal and commercial risks for many of our businesses”,

putting at risk Northern Ireland’s position as

“a top performing region in exporting goods”.

My noble friend Lord Hain has previously spoken about the challenges facing the energy sector in Northern Ireland, and the ongoing uncertainty around future trade terms is creating its own difficulties for the other sectors mentioned in these amendments.

We continue to hope that the protocol can be made to work but, if the Government are to insist on their unilateral action, they need to fully involve the businesses that are operating on the ground, trying to fill and satisfy their order books. It is an incredibly difficult time for businesses anywhere in the UK but you cannot listen to the debates that we are having and not understand how much more difficult it is to plan and run your business in Northern Ireland. Some of the problems are caused, of course, by the protocol that we all want to see fixed; others, I am afraid, are caused just by the continuing uncertainty that has been brought about by this situation. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I will speak to Amendment 59. Again, I suppose the final thing is about approach. There is nothing the noble Baroness has said that I disagree with, in that, yes, we are seeking to provide clarity to Northern Ireland businesses. I totally subscribe to what the noble Baroness said about problems arising from the operation of the protocol but that, equally, there are wider issues that businesses across the United Kingdom, and indeed globally, are facing.

I fully sympathise and align myself with the desire to ensure that we consider the full impact of our legislation and its practical application for businesses. My noble friend Lord Caine previously detailed some of the groups that we are working with; indeed, the Northern Ireland Business Brexit Working Group, which the noble Baroness mentioned, is one of them. We will continue to engage with them. We have had quite extended discussions and debates on the publication of regulations, and I have acknowledged that I fully recognise the desire to do so, and to ensure the scrutiny of these regulations in the usual fashion. Equally, our view is very clear that these regulations also need to be fully discussed—a point agreed on by all noble Lords—to ensure that businesses can make them operable in a practical sense. Notwithstanding that, I hope the noble Baroness will be minded at this time to withdraw her amendment.

[Baroness Chapman of Darlington (Lab)]

I am obviously happy to withdraw the amendment. I note what the Minister just said about understanding our desire to see the draft regulations and his desire to make sure that they are worked up—I think he said “consulted on with business” or words to that effect. However, we had asked for draft regulations before we moved to Report. Before I sit down—that is the phrase we use here—can he indicate whether he anticipates that the Government will be able to provide that?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I will have to disappoint the noble Baroness on that point. I cannot give a specific commitment. The material will be published in due course. I fully recognise and note what the noble Baroness has said.

[Baroness Chapman of Darlington (Lab)]

I beg leave to withdraw the amendment.

Amendment 59 withdrawn.